Rebellion for the Duke of Lancaster to take up Arms against King Richard the 2 d and to Depose him I cannot see why according to your own Principles it should not be the same crime in the Duke of York to take up Arms against King Henry the 6 th to whom he had more than once sworn Faith and Allegiance and having taken him Prisoner to call a Parliament whereby himself was declared Protector of the Kingdom and the Son of King Henry disinherited after a quiet possession in three descents during the space of above sixty years which if it will not give a thorough settlement after two Acts of Parliament to confirm it I know not what can M. I confess you have given me a more exact account of this transaction than ever I had yet and I should very much incline to be of your opinion were it not that I am satisfied that our Kings have a Right to the Crown by Gods Law as well as mans as also by the Law of Nature and that more than one Parliament have been of my opinion in this matter I shall shew you from several Statutes and Declarations of Parliament which though not Printed are yet to be seen at this day upon the Parliament Rolls for after that Henry the 6 th or rather his queen for him had broken the aforesaid solemn agreement made between this King and Duke in Parliament whereby it was accorded that if King Henry made War again upon the Duke of York he should then forfeit his present Right to the Kingdom during his Life whereupon Queen Margaret and her Son Prince Edward who would not submit to this agreement renewed the War and fighting another Battle at Wakefield the said Duke was slain but though he did not live to enjoy his right yet his Son Edward Earl of March again recovered it and having in the second Battle of St. Albans taken K. Henry Prisoner triumphantly Marching to London he there declar'd himself King and having immediately call'd a Parliament it was therein declar'd that all the proceedings against K. Richard the ad are repeal'd and the taking him Prisoner by Henry Earl of Darby was declared against his Faith and Allegiance and that with violence he had usurped upon the Royal Power and Dignity c. and that he had by cruel Tyranny Murther'd and Destroy'd the said King Richard his Liege and Soveraign Lord against Gods Law and his own Oath of Allegiance And then they proceed further to declare in these words That the Commons being of this present Parliament having sufficient and evident knowledge of the said unrightwise Usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Sovereign Lord viz. King Edward the 4 th thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their True Rightwise and Natural Leige and Sovereign Lord and that he was in Right from the death of the said noble and famous Prince his Father very just King of the said Realm of England and will for ever take accept and repute the said King Edward the â—ourth their Sovereign and Liege Lord and him and his Heirs to be Kings of England and none other according to the said Right and Title And that the same Henry unrightwisely against Law Conscience and the Customs of the said Realm of England Usurped upon the said Crown and that he and also Henry late call'd K. Henry the 5 th his Son and Henry Late called Henry the 6 th his Son occupy'd the Realm of England and Lordship of Ireland and exercised the Governance thereof by Unrightwise Intrusion Usurpation and no otherwise that the â—motion of Henry late called King Henry the 6 th from the Exercise Occupation Usurpation Intrusion Reign and Governance of the said Realm and Lordship done by our Sovereign Lord King Edward the 4 th was and is rightwise Lawful according to the Laws and Customs of the said Realm and so ought to be taken holden reputed and â—ccupied I have been the larger on this point because it is a full and free Declaration of the whole Parliament nor only against all past as well as future Parliaments having any thing to do in the disposal of the Crown but is also as express a Declaration as words can make against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me if I have been a little too tedious in reciting these Records F. I cannot blame you for being very exact in this point because the whole strength of your Cause depends upon it but yet I doubt not but to shew you that this Parliament was as much awed by King Edward's Power being now Conqueror as ever those Parliaments were that Depos'd Edward and Richard the 2 d for you your self have sufficiently set forth the manner of it that it was not till after a great Victory obtain'd against King Henry the 6 th and I never found in all my reading that a Victorious Prince ever wanted power enough to get a Parliament call'd to settle himself in the Throne and declare his Competitor an Usurper as I shall shew you more fully by and by but that this Act of Parliament which thus posiâ—ively declares Edward the 4 th to be their Sovereign Lord by God's Law Man's Law and the Law of Nature I think can no ways consist either with Scripture Reason or Matter of Fact for in first place I think I have sufficiently proved that there is no Divine Right of Succession for the Heirs of Crowns any more than of other Inheritances either by the Law of God or that of Nature and as for Man's Law I think I have here also proved that the Succession to the Crown by right of Blood alone was never establisht by any positive Law nor yet setled by any constant or interrupted Custom when this Declaration was made for the Crown had then never descended from Father to Son for above two Descents without a deposition or possessed by those who claim'd by Right of Blood without any other Title for as for the three Kings of the House of Lancaster I have already proved and your self must also own it that they could have no Title to the Crown but from the Acts of Entail of the 7 th and 8 th of Henry the 4 th above mention'd so that according to Man's Law that is Custom and also the Statute Law of this Kingdom the House of Lancaster had all that time the better Title But to shew you what uncertain things Parliaments are when King Edward the 4 th had Reign'd ten years he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him and in his absence he replaced King Henry the 6 th upon the Throne who had been all this while kept
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
auire homme de People Mes Ed. Roy son fils ordeign que home sueroit vers Roy per Peticion Mos unques Roys ne seront adjugez Si non per euâ— melmes lour Iustices So that if the former part of it â—e Law the latter must be so too and then it will directly contradict what you have quoted before out of Bracton That in the time of Henry the 3d in which he lived there lay no Remedy against the King but only by Petition Whereas this Opinion makes him before the time of Edward the First to have been liable to the same Legal Process with other Men. But notwithstanding this Passage in the Year-Book may very well bear a legal Interpretation only by supplying what is indeed to be understood after the Words non pas les Peers le Commune viz. Sans assent du Roy which as it was then true So I hope it will ever be so But I think I can give you a much better Authority than this Year-Book to prove where the Power of Making and Dispensing with Laws doth truly reside viz. The Solemn Declaration of the King Lords and Commons in the 25th Henry 8. a Prince as Jealous of â—is Prerogative as any of his Predecessors where in the Preamble read these words It standeth therefore with Natural Equity and good Reason that in all and every such Human Laws made within this Realm or induced into this Realm by the said Sufferance Consents and Custom your Royal Majesty and your Lords Spiritual and Temporal and Commons Representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense with those and all other Humane Laws of this your Realm as the Quality of the persons and matter shall require And also the said Laws and every of them to Abrogate Annull Amplifie and Diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament Meet and Convenient for the Wealth of your Realm c. Whereby you may plainly see that the Power of Making Abrogating and also Dispensing with Laws is by this Act ascribed joyntly to the King and the Two Houses of Parliament But though I do not affirm that they have a Co-ordinate Power with the King in making Laws yet they have a Co-operative Power therein which yet is no more than your Co-operation for what is a Co-operation but a Power of working together and how can three Distinct Bodies work together without each contribute their share to produce the Intended effect M. Perhaps I may have bin too unwary in my expression but pray answer the Authorities I have brought from our Ancient English Saxon Laws Wherein it seems plain to me that the King had then the Sole Legislative Power F. I grant he had a chief share in the Legislative Power but not the Sole Power that is He could make no Laws but in the Great Council and by their Consent And this you might have seen as well as I if you had not slyly past by what made against you and therefore in the first place to begin with your Instance of Offa's giving that Boon to the Roman School I think the Authority you bring for it is very Slight for though I own that Matthew Paris who writes his Life Relates this Donation to have been made at Rome without mentioning any Consent or Confirmation of his Great Council Yet this seems but an imperfect account of the matter and according to the usual way of the Writers of those times who are not so exact in such matters as they should be And therefore though Offa did give or vow these Pence at Rome yet the Gift might receive its force from the Consent of his Great Council after he came home Since all his Laws and the Acts of his Councils are lost unless it be one which Sir H. Spelman hath given us from such Remains as have bin saved out of the Libraries of several Monasteries at their Dissolution And this contains no less than the Consent and Confirmation of his Great Council Assembled at Calcuith Anno 940. for the Foundation and Endowment of the Abby of St. Albans as also that of another Council at Verulam for the Conferring of divers other Lands of his own to that Monastery Now I leave it to any indifferent Man to judge Whether that King who could not bestow his own Demesnes upon the Church without the Consent of the Common-Council of the Kingdom could give away at once the 30th Peny of all his Subjects Estates for ever without their Consents I am sure the Donation of the same sort of Pence by King Edward the Confessor which is now to be found among the Laws of King William the First is said to be granted Communi Confilio Regni and that the Saxon Kings could not bestow their Lands upon Religious Uses See Sir H. Spelmans Councils where Baldred King of Kent is an evident Example who though he had given the Mannour of Mallings in Sussex to Christ-Church in Canterbury Yet because his Principes and Great Men that is his Great Council consented not thereto it was revoked untill King Egbert and his son Ethelwulf did afterwards renew the said Grant with the Consent of a Great Council held at Kingston An. 840. as you may see in the same Volume last cited And I am sure after the Heptarchy when our Kings were more Powerful the same King Ethelwulf could not by his meer Prerogative Grant the Tythes of his Subjects Estates to the Clergy without the Consent of a Great Council of his Bishops and Principal Men held at Winchester An. Gratia 855. and Intituled thus Celebris ilâ— donatio Ethelwulfi Regis decimae manfionis omnium benorum per terram suam Deo Ecclesiae factae confirmaâ—â—â— M. I Grant that perhaps these Kings could not dispose of their own Lands or the Estates of their Subjects without the Consent of their Great Council any more than the Kings of France could formerly yet I hope they were Absolute Monarchs for all that F. I beg your pardon if I have bin somewhat long in answering your Example of King Offa. But I will now shew you that they could no more make Laws than dispose of their own or their Subjects Estates without their Consent and which you your self might easily have seen if you had pleased to have Consulted Sir Henry Spelman as Diligently as you have done Mr. Lambard for there you might have found that about the Year 712. King Ina Assembled a Great Council or Parliament wherein he made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam peâ— commune Consilium Assensum Episcoporum Priâ—cipum Procerum Comitum omnium Sapientum Seâ—iorum Popillorum totius Regni So likewise if you will please to look into the Decem-Scripâ—ores you will find how Althesian's
you by undoubted Testimonies but since you are now upon the proving part pray shew me that these words I now mentioned did ever signifie the Commons of England in the sense they are now taken before the times we insist on and I have the more reason to desire this from you because it is chiefly from the mistaken Application of these Words that the Gentlemen of your opinion have imposed their false notions upon the World F. I shall undertake what you desire and I hope if I cannot satisfie you the fault will not lie in my Authorities but you prejudices against them In the first place therefore let me mind you how far you and I agreed at our last Meeting when I granted you that these words now in dispute were very equivocal and were often taken in different senses as sometimes you say true for the whole Representative Body of the Kingdom sometimes for the Community of the Barons and sometimes for the Community of the Bishops and Clergy but never as I know of for the Community of the Bishops Lords and Tenants in Capite much less for the Body of Tenants in Capite alone nor were you then able to prove to me that these words must necessarily be understood in your sense for the Community of the Tenants in Capite And tho you should prove them sometime to be taken in that sense yet would it rather make against then for your Opinion since they must then signifie a different Body of Men from your great Lords and consequently as meer Commoners as your Knights of Shires at this day which is against your first general assertion that by these words are always understood the Community of the Baronage only But to come to my proofs which I shall divide in two parts first I will prove that these words Communitas le Commune and Communalty when coming immediately after Comites Barones or Counts and Barons or Proceres in our old Statutes and Records do always signifie the Commons in the same sense in which they are now taken And for proof of this I will begin with the Reign of Hen. III when these words came first to be generally in use and so descend to his Successors as low as Rich. II. and if I can shew you that these words so put always signifie the Commons as well before as after that time I think you have reason to be satisfied that these was never once upon a time such a strange alteration in the constituent parts of our great Councils as you supposed yet none of our ancient Historians or Statutes should ever take any notice of it till these modern Antiquaries took upon them to disperse these Clouds To begin first with the words le Commune pray remember the Patent Roll of the 48th of Henry III. which I mentioned at our last Meeting viz. the â—orâ— of the Peaâ—e between this King the Prince his Son and the whole Body of the Kingdom Assembled in Parliament the Title of which is thus Haec est Forma pacis à Dom. Râ—ge Dom. Edw. Filio suo Praelatis Proceribus omnibus cum Communitate â—ota Râ—gni Angliae communiter concorditer approbata Now pray what can these words Communitate â—ota here signifie but another Body of Men distinct from the Earls and Barons or else it would be a gross Tautology And pray compare this Form of the Peace now mentioned with the Writs of Summons of the 49th of this King when your Dr. grants the Commons were Summoned to Parliament after the same manner as they are now and see if there be any change in the Terms and for proof of this we need go no further then the very Writ of Expences for the Wages of the Knights of Shires which the Dr. himself has given us at large in his answer to Mr. â— it is the 49th of Hen. III. to the Sheriff of Yorkshire wherein after other recitals it follows thus Cumque communitates Comitatuum dictorum variâ—s hoc Annâ— â—â—cerinâ— prastationes ad defensi nâ—m Regni nostri c. He therefore commands the said Sheriff quod danbus militibus qui pro Communitate dicti Comitaâ—â—s praefaâ—o Parliamento interfuerunt c. should be paid their reasonable Expenses De Communitate Comitatus praedicti For going to and staying at and returning from the said Parliament c. from whence it appears that the words Communitas and Communitates in this Writ cannot signifie the Community of Tenants in Capite alone but the Commons of the Coâ—nty in general unless you can prove to me that none but Tenants in Capite had performed these varias praesâ—aâ—iones in the Writ and that none but they then contributed to these Expences of the Knights of Shires otherwise these words must plainly signifie the Commons in general as they did in the like Writ of the 28th of King Edward I. which I shall give you by and by but I shall first shew you a few other Records of this Kings Reign concerning the word la Câ—mmunâ— which Mr. P. has given us they are in the Patent Roll of the 51st of this King wherein He by the Council and Assent of the King of the Romans des Counâ—s des Barons la Commune de la Terre Pardons the Earl of Gloucester and all his Company So likewise in the same Roll the King by the Council and Assent of the said Counts Barons de la Commune de la Terre Pardons the City of London all manner of Rancour and ill Will Now pray tell me a reason why should not the word la Commune in these Acts of Pardon signifie the same thing as the word Communitas in the form of the Peace and in the Writ of Expences of the 49th now cited Since they come immediately after the Counts Barons and so must needs signifie a Body of men distinct from them for there is the same reason why the words la Commune de la Terre should here signifie the Commâ—ns of the Land as that the word Communitates Comitatus should signifie the Community or Commons of the whole County M. Will you give me leave to answer this Question presently because I confess it is very material before you proceed farther There may in my opinion very good reasons be given 1. Why the words Communitas la Commune may signifie the Community of the Tenants in Capite in the Form of the peace and Acts of Pardon and yet signifie the Commons of the County in general in the Writ for Expences you have now mentioned As first because the subject matter is different in the Form of the Peace and Acts of Pardon from that in the Writs of Expences the one being the Communitas Regni and the other Communitas Comitatus only called also in the Plural Number Communitates Comitatuum and then I grant when thus used it always signifies the Commons in general and there may
to the Pope But Anno 40 Edw. III. when the Pope demanded the Arrears of this Tribute from the King the Prelates Dukes Count Barons and Commons upon their full deliberation in Parliament resolved with one accord that neither the King nor any other could put the Realm nor People thereof into such subjection sanz assent de eux without their assent viz. as well of the Commons as of the Lords and that it appeared by many Evidences that if he had so done it was done sanz lour assent and contrary to his Coronation Oath c. Now what can be more plain than that above three hundred years ago there was not the least dispute that the Commons of England of which the Citizens and Burgesses were then undoubtedly a part ought to have been present in the Commune Concilium Regni or Parliament of King Iohn's Reign and to have assented to that King's Resignation to make it legal and valid as well as the Prelates Earls and Barons M. As for this Argument I need trouble my self no further than to give you the Dr's Answer in his own words viz. All that the Resolution of this Parliament in this case proves is that King Iohn could not subject himself his Realm or People without their Assent but proves not who they were that in such Cases at that time gave or denied their Assent or how they did it or whether 153 years before this Resolution the Commons were represented by Knights Citizens and Burgesâ—es as at this day The Prelates and Barons gave their Answer first that such a Subjection could not be made without their Assent and then the Commons were asked what their Thoughts were and they answered in the same manner and in the same Words the Barons had done and when they answer altogether They do it in the same form of Speech conceived first by the Barons without any Consideration whether the Commons were the same Body of Men at the time of Executing the Charter of King Iohns Subjection c. as at that present or no. F. I must freely tell you I am not at all satisfied with this Reply of the Drs. for if there is no heed to be taken of the House of Commons Answer to the Pope given in so solemn a manner as this was there is no Credit to be given to any thing they could say if they are once suppos'd to speak like Parrots by Roat and only as they were taught by the Lords without any Consideration of the Truth or Falshood of what they averred And tho the first Proposal of this matter was by the King to the Lords yet the Pope then threatning to Excommunicate the King and put the whole Realm under an Interdict it was certainly the Interest as well of the Commons as the Lords to avoid the blow by a wary and true Answer to the Popes demands for had their Answer been so idle and frivolous as you would make it it had been advantage enough for the Pope to have return'd in answer to this Letter had what the Dr. alledges been true that the upstart House of Commons had nothing to do to meddle or treat of any such matter since they were none of the parties to the agreement nor one of the Estates at that time when King Iohn resign'd his Crown and made himself and Kingdom Tributary to his Holinesses Predecessours nor was the space of an hundred fifty three years from the time of King Iohn to the 40th of Edward the 3d so far beyond the memory of man as that so memorable a Transaction could not be well known to the Pope as well as to the House of Commons then in being since the making them a 3d Estate fell out but in the time of all their Grandfathers at farthest so that it is scarce possible that the memory of so remarkable a Transaction of which the whole World then rang should be lost in two or three Generations But I shall now proceed to shew you that as it was the express Judgment both of the Lords and Commons that King Iohn could not make the Kingdom Tributary to the Pope without their Consent in Parliament so was it the Judgment also of the whole House of Commons in the 2d of Henry the 5th and admitted by that Noble Prince and the House of Lords that they had ever been a member of Parliament and that no Statute or Law could be made without their Assent as appears by a Petition or Protestation presented by the said Commons to the King in Parliament a Copy of which I shall now read to you as far as it concerns the matter in Question Our Soveraign Lord your humble and trewe Lieges that ben come for the Comune of your Lond bysechin unto your riht twissness that soo as hit hath ever be thair Libertie and Freedom that there should noo Statute noo Law be made of less than they yaf thereto their Assent considering that the Comune of your Lond the which that is and ever hath be a member of your Parlement been as well Aslentirs as Petitioâ—ers that fro this time forward by Compleint of the Comune of eny Mischâ—ef asking remedy by Mouth of their Speaker for the Commons outher else by Petition written that there never be no Law made thereupon and ingressed as Statute and Law neither by Additions neither by Diâ—â—inutions by no manner of Term â—e Terms the which that should change the Sentence and the intent asked by the Speakers Mouth or the Petitions by foresaid â—even up in 〈◊〉 by the foresaid without Assent of the foresaid Comune c. This Petition is so plain that it needs no Comment therefore pray tell me what you think of it M. In the first place give me leave to tell you that I do not find at all by the Kings Answer to this Petition that the King allowed the matter of Fact therein set forth to be true but rather the contrary as you may see by the Answer it self in these words the King of his Grace especial granteth that fro hensforth nothing be enacted to the Petâ—â—ions of his Comune that be contrary of their asking whereby they should be bound without their Assent saving alway to our Leige i. e. Royal Lord his Real Prerogatys to grant and deny what him lust of their Petitions and askings aforesaid And I shall farther give you the Drs. Answer to this Argument which is to this Effect The design of this Petition was not to set forth the Antiquity of their Existence but their Right that nothing might be enacted without their Assent contrary to their intent and liking and to shew that it was never done since the Commons were a third Estate or as they say a Member of Parliament therefore 't is needless to prove that which no Body denies that the Assent of the Commons was then and is now required to the making of all Statutes and Laws but pray give me leave to ask you with the Dr
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
against those that are Commissioned by him in pursuance of such Military Commissions and it is also to be noted that all Mayors of Cities or other Corporations were obliged by a former Statute of the 13th of this King to take the same Oath From both which Statutes and Declaration we may draw these Conclusions First That the Militia i. e. the Command of all Military Forces and War-like Affairs are declared to be wholly in the King Secondly That either or both Houses of Parliament cannot make any War offensive or defensive against him c. Pray mark that Thirdly That the contrary practice hath tended almost to the destruction of this Kingdom and that many evil and Rebellious Principles whereof this without doubt is intended for the chief have been instilled into the minds of the People c. And lastly That in pursuance thereof all persons above-mentioned were not only obliged to renounce taking up Arms against the King upon any pretence whatsoever but also against any that shall be authoriz'd by the King 's Military Commissions without any Exceptions And it is farther Enacted That all Clergy-men should be obliged to take this Oath as well as the Laity and it is likewise there ordained That all Clergy-men who were to enjoy any Livings or Preferments in the Church were likewise for the space of Twenty Years next ensuing obliged to subscribe this Declaration so that it is no wonder if the Loyal Clergy of the Church of England think themselves not only tied by the Express Rules of Scripture but also by the Laws of the Land strictly to observe this great Law of Passive Obedience and Non-Resistance Now pray see here the Doctrine of Non-Resistance in its full amplitude yea this very Doctrine declared to be the Law of this Kingdom and that by two express Acts of Parliament And can you think the Two Houses were not in earnest when they made this Declaration surely had they not been so they had been very ridiculous to jest with all our Laws and Liberties had they not been I say verily perswaded of the truth of this Doctrine by Law as well as by Scripture So that I hope you must now be forced to confess that even our own Representatives have solemnly renounc'd for themselves and the whole Nation all right of Resistance so much as defensive against those Commissioned by the King upon any pretence or occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings or those Commissioned by them no not if they never so much abuse their power but the old Primitive Artillery of Preces and Lachryma F. As for what you have more than once said that this Doctrine of Resistance if carried home always ends in the Deposition and Murder of the King tho' it hath I grant sometimes happened yet that has not been always so but most often to the contrary as appears in those Resistances that were made in the Reigns of King Richard the First Henry the Third Edward the First and divers times in Edward and Richard the Second's Reign before things were driven to that extremity as they afterwards were and as I will not justifie the Deposition of those Princes tho' done by Parliament yet will I not absolutely condemn them since no Act of Parliament hath as I know ever done it And tho' it is true all the proceedings in Parliament against Edward the Second are taken off the Rolls yet was it not done by Order of Parliament but by Richard the 2d alone when he by his exorbitant courses feared to be served after the same manner but that there was in those times some Ancient Law extant which was also destroyed by that King appears by that remarkable Declaration of the Lords and Commons in Parliament sent by way of Message to the King then wilfully absenting himself from the Parliament by the Duke of Gloucester his Uncle and the Bishop of Ely who sure were too great to tell so notorious a Lye The Speech you will find at large in Knyghton beginning thus Domine Râ—x And after many Petitions and good Advices at last thus concludes which I shall give you in Latine Sed unum aeliud de animo nostro superest nobis ex parte Populi vestri vobis intimare habint enim ex antiquo Statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex maligno Consilio quocunque vel inepta conâ—â—macia aut contemptu seu protervae voluntate singulari aut quovis modo irregulari se alienaverit à Populo suo nec voluerit per jura Regni Statuta laudabiles Ordinationes cum salubri Consilio Dominorum Procerum Regni gubernari regulari sed captiosâ— in suis inâ—anis Confiliis propriam voluntatem suam singularem proterve exercere tunc licituâ— est iis cum comâ—uni assensu Populi Regni ipsum Regem de Regali solio abrogare propinquiorem aliquem de stirpe Regis loco ejus in Regni solio sublimare From whence you may observe that the Lords here relate to an Ancient Statute or Law then in being tho' the execution of it on the person of his great Grand-father Edward the Second was but of times not long passed and that King Richard might as well destroy the Record of that Law being not then commonly known or in private mens hands as well as he did divers other Records as appears in the 24th Article against this King wherein it is set forth That the said King had caused the Rolls of the Records touching the State and Government of this Kingdom to be defaced and razed to the great prejudice of his People and the disinherison of the said Realm c. So that nothing is more certain than that the Two Houses of Parliament at that time did look upon it as their undoubted right to Depose the King in case he violated the Fundamental Laws and Constitutions of the Kingdom tho' how this could consist with that Power which the King then exercised of calling and dissolving Parliaments at his pleasure I do not understand since it can never be supposed that a King if in full power would permit a Parliament called in his name to sit to Depose himself for Evil Government As for the Resistance made by the Two Houses against King Charles the First I shall not undertake to justifie for the Reasons already given as also because it it was not a War undertaken by the general consent of the whole Kingdom but carried on chiefly by the Puritan or Presbyterian Party For tho' the City of London and many other great Towns were for the Parliament yet it is also certain that the major part of the Nobility and Gentry of England fought for the King and were so considerable a number as to make an Anti-Parliament at Oxford so that this War could never have happened had not the King parted with the power of
by his Majesty and those of the Popish â—unto that advised him to issue out the late Declaration so expresly contrary to Law and the sense of both Houses of Parliament and which gave the Archbishop of Canterbury and the rest of his Brethren a sufficient ground of petitioning against it and this was so evident that a Jury in which the greatest part were high Prerogative Men could not upon a fair trial but acquit them M. I shall not further dispute this point since you have dwelt so long upon it though I must still tell you I do not look upon this as a sufficient cause for the Nations taking up arms for a reason I shall shew you by and by and therefore I shall now proceed to the next head complain'd of in the Princes late Declaration viz. the late Commission for erecting a new Court for Causes Ecclesiastical but as I will not enter upon the question of the Legality of it so on the other side it was also done by colour of Law and the King as supream head of the Church was told by his Ministers that he had power to erect what new Court Ecclesiastical he pleased provided it was not of the same kind with the High Commission Court which had been abrogated by the Stat. of the 17th of King Charles the I. as likewise particularly excepted in the Proviso in the Stat. of the XIIth of King Charles the II. for restoring Ecclesiastical Jurisdiction to the Bishops Courts so that admitting that Court was not legal yet the Persons who advised the King to erect it and the Commissioners who sate in it were only answerable for it in the next Parliament and though the Bishop of London was suspended and the President and Fellows of Magdalen Colledge were unjustly expelled by this Court yet sure none of these miscarriages could give the Subjects of this Kingdom any just pretences to take up Arms to redress them being done as I said before by colour of Law without any force or violence and was also submitted to by the Parties against which these Decrees were given and was at the most but a matter of particular concern and reacht no farther than the said Bishop and Colledge and did not touch the Religion and Civil Liberties of the whole Kingdom and consequently was not of that general importance as to be any just cause of the whole Kingdoms taking Arms much less for the Kings Officers and Souldiers to run over to the Prince of Orange as they lately have done F. To answer what you have now said concerning the Ecclesiastical Commission that I must also tell you was issued forth without so much as any colour of Law for it and though the late Chancellor and some of the worst and most Mercenary Judges countenanced it by appearing for and acting in it yet it is very well known that it was never proposed to all the Judges to be argued in the Exchequer Chamber as it ought to have been before a thing of that great importance to the whole Nation had pass'd the Seals as to what you say that the Kings Ministers told him it was according to Law and that they alone ought to answer for it in the next Parliament and that no publick disturbance ought to have been made about it because the things that that pretended Court did were but of a particular concern and only reacht the Bishop of London and one single Colledge that is but a fallacy which you put upon your self for sure if you had better consider'd of it you would find that what these Commissioners have already done is of a little more publick concernment than you are aware of for pray tell me why by the same Law by which the Bishop of London was suspended for his refusal to silence Dr. Sharp all the Bishops in England might not have been suspended one after another by that pretended Court if they had refused to obey or execute any Letters or Orders from the King tho' never so illegal or unreasonable since what command could be more illegal than the King 's positive order to the Bishop to suspend a Clergyman from his Diocess without first hearing him or giving him leave to answer for himself So likewise for the case of Magdalen Colledge by the same Law by which these Ecclesiastical Commissioners took upon them to turn out the President and Fellows for disobeying the Kings Mandamus by the same Law the King might put upon any other Colledge in either University Popish Heads and Popish Fellows till instead of Nurseries for the education of our youth in the Protestant Religion they may become as absolute Popish Seminaries as the Colledges of Doway or St. Omers and though I grant that the persons concerned in these unjust Decrees might have patiently submitted to them without any protestations against the jurisdiction of that pretended Court since they might for some prudential reasons have thought fit to submit to them without making any such protestation and yet for all that not allow their Authority but indeed the matter of fact was far otherwise for when a part of these Commissioners sate at Magdalen Colledge to expel the said President and Fellows from their places contrary to Law and the express Statutes of the Colledge they did all severally protest against their whole proceedings and appealed to the Kings Courts at Westminster And it is a plain proof how willingly Dr. H. the President of this Colledge submitted to this Sentence by his locking the Doors of his Lodgings and leaving the Commissioners to break them open before they could get in and put in his pretended Successour by force But as to what you say that the King was told he might as supream Head of the Church set up what new Court he pleased for the execution of his Ecclesiastical Jurisdiction it is certainly a great mistake for I utterly deny that the King has power to erect any new Courts either Ecclesiastical or Civil unless by Authority of Parliament the Kings power to make a Vicar general being only confirmed by the Statute of King Henry the Eighth as was also the Authority of the high Commission by the Statute of the first of Queen Elizabeth and if either of those high spirited Princes hadâ— believed themselves to have been invested with such an unbounded Prerogative they would certainly have exercised it without being beholding to the Parliament but indeed it is but a subterfuge to alledge that this Court was not of the same Nature with that of the high Commission because it did not take upon it to â—â—ne or commit Men to Prison nor to administer the Oath ex Officio to those that were convened before them since it is not the different name or some small difference in the manner of the judicial proceedings but the Causes or Matters that a Court pretends to take Cognizance of that can make it a Court of a quite different nature now it is notoriously known that this late Ecclesiastical
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
nuncios ad Iohannem Ducem Normandiae c. Where you see he calls him no more than Duke of Normandy But to come to the Election of his Son Prince Henry if this be all you have to prove a Divine right of Succession in Henry the IIId I doub it will do you but little service for according to your own principles it must have been lodged some where else than in this Prince For when King Iohn his Father died Eleanor the Sister of Duke Arthur was then alive and died not till the 25 th year of King Henrys Reign a close Prisoner in Bristol Castle as Matthew Paris relates So that it is apparent he could have no such Divine Hereditary Right as you suppose and therefore perhaps his Father to strengthen his Title and to recommend him the more to the Peoples savour appointed him his Successor by his last Testament And Matthew Paris and Matthew Westminster tell us that when King Iohn died Henricum Primegenitum suum Regni constituit haeredem So that it seems there was then no such Hereditary Right for if it had what need had there been of this Testament But for all this Divine Right I do not find that this poor Princess Eleanor had any of the Bishops or great Lords to take her part but all the dispute then was at this great Convention at Gloucester whether they should abjure Prince Lewis whom most of them had before chosen for their Lord and adhere to Prince Henry there present before them as Matthew Paris tells us Erat autem tâ tempestate inter Optimates Angliae fluctuatio maxima cui se Regi committeâ—ent Iuvenine Henrico An Domino Ludovico So that it seems by the relation our Historians give us of this matter it was not from any great sense that the Clergy and Nobility had of the justness of Prince Henry's Title that made them agree to chuse him King but the hatred they then bore to Prince Lewis when they found he had broken his contract with them and put all the strong places of the Kingdom in the hands of French men and treated the English Nobility with scorn and contempt And therefore no wonder if they preferr'd an innocent young Prince of their own Nation who had never been guilty of his Fathers faults before a Stranger whose fraudulent dealing with them they had found not to answer their expectations and therefore Mat. Westminster tells us That Omnes nobiles Terrae in brevi ipsi Iuveni Regi Hemico qui nihil culpae versus tos merueras fideliter adhaeserunt But to prove farther that this King came in by Election and not by Succession appears by what our Historians relate concerning the manner of it Henry de Knyghton in his Chronicle tells us that on the Feast of St. Simon and Iude Henry Son of King Iohn in Regem erigitur viribus industria Gualonis Papâ—e Legati which plainly shews that he was not King before and I desire no better an authority than your own Author Matthew Westminster who says that he was in Regem inunctus anointed to be King which shews that he thought him not so before his Coronation and though I grant Mat. Paris makes the Earl Marshal to begin his Speech with those words Ecce Rex vester as you relate them yet this was no more than an allusion to that place in St. Iohn ch 19. Behold your King it being usual in those days to begin their Speeches with a Text of Scripture So that the Earl did not intend to be understood literally for then he should have in this Speech contradicted what he had said bâ—fore for though to prepossess their minds he says of the young Prince there present Behold your King Yet it is plain that how much soever he thought the Kingdom his right yet that it could not be conferred upon him without their choice as appears by these words which you your self have made use of viz. You ought to chuse him to whom the Kingdom is due And it is evident by the assent which the whole Assembly gave to the reasons declared by him in this Speech that it was their choice alone that made him King their Votes being given in these words Fiat Rex which had been altogether needless had they looked upon him as King already And therefore the Speech of Hubert de Burgh which you mention may very well be reconciled to this Hypothesis of supposing a necessity of an Election and Coronation to confer a full and legal right in those times For when he said That the King if dead had yet left behind him Children who ought to succeed him This if strictly taken is altogether false for Eleanor the true Heiress of the Crown according to your rule of Succession was then alive But if taken in a limitted sense is true that is the Children ought to succeed if the great Counsel of the Nation thought fit without whose consent though they might have Ius ad rem yet had they not Ius in re This Election and Coronation being then looked upon as Livery and Seisen at this day is to an Estate in Fee without which though the writings are sealed and delivered the Land will not pass To conclude I pray answer me that question I have so long put though without any reply viz. why before this Election and Coronation was perform'd none of those Princes that came to the Crown by your supposed Right of Succession are call'd by any higher Title than Dukes of Normandy or Earls of Poictou So that from what has been here said I think it plainly appears that no less than seven of the eight Princes from your William the Conqueror reckoning him for one to King Henry the III. have owed their Title to the Crown not to any right of Succession but either to the Election of the People alone or else to the will or designation of the last King confirm'd by the general consent of the People given thereunto and without which it would not have been good according to the ancient custom of the English Saxons before your Conquest where besides the Testament of the King deceased there was also required the consent or Election of the great Council So that you see here was no alteration made in the form of our chusing our Kings after your Conquest from what it was before for no less than seven or eighâ— descents and when you can answer this I shall then come over to your opinion M. In answer to your Question I shall not deny but that all our Historians give all the Kings you mention no higher Titles than Dukes of Normandy or Earls of Poictou before their Coronations which though I suppose they might do from a foolish superstition of that Age which made them fancy that none were properly to be called Kings until they had been Anointed and solemnly Crown'd by a Bishop yet that they looked upon them as Kings indeed appears in that they
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
by you from the Parliament Roll yet for all that it doth not follow that the Parliament allowed this Kings seigned and false claim to be good by their not contradicting it For though the Record says That upon the hearing of this Challenge or Claim all the Estates of the Kingdom being then asked their Judgments severally they declared that the same States without any difficulty or delay unanimously agree'd that the said Duke should Reign over them For considering the Dukes great Power it was not safe telling him to his face that he had no true Right by Inheritance therefore they only declared in general words without expresly denying or affirming his said Claim That he should Reign over them Which words do rather amount to an Election of him to be King without declaring what Title he had to be so And this they thought they might very well justifie not only for his having delivered them from the Tyranny of King Richard but also because they then looked upon it as their Right not only to Depose the King in case of an apparent violation of the Fundamental Laws of the Kingdom but also to place in his stead any of the Blood-royal tho' not next Heir by Blood according to the Message the whole Parliament had formerly sent to K. Richard in the beginning of his Reign by the Arch-Bishop of Canterbury and his Uncle the D. of Gloucester which I gave you at our ninth Meeting as I remember And pray take notice the words were Et propinqai rem aliquem de stirpe Regia loco ejus in Regnisolio sublimare Where observe that the words were not the next of Blood but some near Kinsman of the Blood Royl And though it is true that both King Henry the Vth. and VIth might both seem to succeed to the Crown by Right of Blood yet I do rather attribute their right of Succession to an Act of Parliament made in the seventh and confirmed in the eighth year of Henry the IVth whereby the Crown was entailed upon all his Sons by Name and the Right Heirs of their Bodies By vertue of which settlement both Henry the Vth. and VIth Succeded thereunto For if he had thought his own feigned Hereditary Title to have been sufficient he would never have troubled himself to have procured the Crown to be setled upon himself and his Children by Act of Parliament M. All this signifies nothing for I have already sufficiently proved that in the 39th year of Henry the VIth upon a solemn hearing before the Paliament of the Claim of Richard Duke of York to the Crown the said Act was set aside And it was there expresly declared that the said Dukes Title could no ways be defeated And this agreement is still on Record between Henry the then possessor of the Crown and the said Duke whose Right it was and the Judgment of the Parliament was then given in the behalf of proximity of Blood as to have always been the foundation and ground of Succession to the Crown of England and of taking it from the Son of Henry the VIth and restoring it to the Duke of York and his Issue as right Heirs thereof As appears by the Title and Pedegree of the said Duke set down at large in the first Article of this Agreement confirmed by Parliament that is by King Henry the VIth himself who was then King de Facto tho' not de Iure F. I will not deny the matter of fact to be as you have set forth yet if you will but please to consider the time when this Declaration and Agreement was obtained and the manner how it was done you will quickly find that it was rather got by force and constraint upon that poor Prince Henry the VIth than by any real Right the Duke of York had to the Crown after its being setled for three Descents in the House of Lancaster For the proof of which I desire you in the first place to take notice that at this time the whole Kingdom was under general discontent noâ— only for the loss of all our Conquests in France but also for the great mismanagement of Affairs at home by reason of the exorbitant power of the Queen and her two favourites the Dukes of Somerset and Suffolk who made the King a meer Cypher and had without his consent made away Humphrey Duke of Gloucester the Kings only Uncle then living contrary to Law so that affairs being in this ill posture it was very easie for the Duke of York and the Earl of Warwick to procure a sufficient Interest in the Nobility and Great men of the Kingdom to raise an Army upon pretence at first only of reforming the grievances of the Kingdom and bringing the said Dukes of Justice the issue of which War was that the Duke not being strong enough at first to oppose the Kings Forces was forced to surrender himself and to obtain his Pardon took a Solemn Oath never to Rebel against the King again but being afterwards Attainted at a Parliament held at Coventry for new Conspiracies he then again Rebelled together with the Earl of Warwick and then that King Henry being carried to head his Army was by the Duke of York taken Prisoner in the Battle near Northampton and being thence by him brought up to London a Parliament was call'd in the Kings name though without his consent wherein the Duke of York had the confidence to seat himself in the Royal Throne and to make that challenge of the Crown you have recited and under how great a terror all the Friends and Servants of this poor Prince was at that time appears plainly from this that neither the Kings Attorney nor any of his Council durst undertake to plead his Cause before the Parliament nor yet would the Judges give their opinions in a matter of such great moment but they all answer'd That this Matter passed the Learning of the Justices and also that they durst not enter into any Communication in that matter and besought all the Lords to have them excused for giving any Advice or Council therein but the Lords would not excuse them and therefore by their Advice and Assistance it was concluded by all the Lords that the Articles following should be objected against the Claim and Title of the Duke So that you see from the Record it self that the Judges were with much ado prevail'd with to object any thing against the Dukes Title Therefore considering the great contempt the Kings Person was then under by reason of his weakness and the great hatred and weariness the Nation had then of the evil Government of the Queen and her Favourites it was no more difficult for the Duke of York to procure this Judgment in Parliament in savour of his Title than that Henry the 4 th should after he had put Richard the 2 d in Prison get him Depos'd and make his own Title to be allow'd for good and certainly if it were
Man hath in an Estate which is his Right let him be what he will or let him mannage it how he will Whereas in the Right to a Kingdom I take it to be a true Maxim That the Representatives of a Nation as the Convention was ought to have more regard to the happiness and safety of the whole People or Common-wealth than to the Dignity or Authority of any particular Person whosoever or howsoever nearly related to the Crown when it is evident that the advancement of such a Person to the Throne will prove destructive to our Religion Civil Liberties and Properties Now give me leave to apply what I have said to the Point now in question Let us therefore at the present suppose that your Prince of Wales is true and lawful Son to King Iames and Queen Mary and let me also farther suppose that in his late passage over Sea he was taken by the Pyrates of Argiers or Tunis and by them been carried to one of those places and been bred up in the Mahometan Religion and after he had been Circumcised and fully grounded in that abominable Superstition the Grand Seignior together with the Kings of Argier and Tunis should send this Nation word that if they would not admit him quietly for their King and allow him all those Priests he should bring with him a free exercise of their Religion in England they would then make War upon this Nation with all the Forces they could raise I ask you what we ought to do in this case whether we should receive him for our King or keep him out M. I must confess it is a nice Question and since it is a thing that never did yet nor I hope will ever come to pass I think I may freely Answer you That supposing this Prince could be proved to be the very same who was carried away so many years ago we ought notwithstanding his false Belief to receive him especially if he would solemnly Swear only to worship God in private after his own way and that he would Swear not to violate our Religion or invade our Liberties and Properties and this being done I think we ought then to admit him for our lawful Sovereign since as you your self have already acknowledged at our third Meeting the Supreme Powers are not to be resisted because they are of a different Religion from that of the People or Nation they Govern F. Very well But let me tell you In this you are much more kind to Mahometan and Heretical Princes than the Church of Rome who have decreed That no Prince ought to be received as right Heir to a Crown who is a Pagan Turk or Heretick and upon this ground it was that the States of France during the time of the League by the Pope's Decree refus'd to own Henry King of Navarre for their Sovereign and also that the Papists of the Nuntio Party in Ireland during the late Rebellion refused to own the late Duke of Ormond for Lord Lieutenant of that Kingdom because the King was a Protestant But pray answer me a Question or two further Suppose this Prince refus'd to promise these or such things or else if he did promise and Swear them pray tell me how could we be assured that according to the Principles of that Religion he had been bred under and those Arbitrary Notions he had learned concerning the Absolute Power of Kings in Barbary and which he would believe due to himself as being as Absolute a Monarch as any of them I say how such a Prince ever could be trusted Since if he had the whole Power of the Militia in his hands he might bring in what number of Turkish or Moorish Guards he should think fit who might easily set up that Religion and Government too in this Nation since according to your Principles of Passive Obedience and Non-resistance no Man ought to lift up so much as a Finger against him though he went about to make us all Turks and Slaves M. Well supposing all this as long as it is his Right he ought to have it let the consequence be what it will F. You have said enough I desire no more but I hope every true Protestant and English man will be of another mind if ever such a case should happen but indeed it appears very strange to me that a natural Disability such as Ideocy or Lunacy should be esteem'd sufficient in all Kingdoms to debarr the next Heir from the Government and yet that a Moral or a Religious Disability should not have the same effect and though I grant that a King ought not to be Rebelled against or resisted meerly because he is of a different Religion from that of his Subjects for I was never for resisting King Iames meerly upon that score yet it is another thing when a Prince is not actually possessed of the Throne but is to be admitted to it upon such Conditions as may appear safe for the Religion and Civil constitution of a Kingdom In this case if a Prince be certainly infected with such pernicious Principles either in relation to Religion or Civil Government it is much otherwise as for Example That no Faith is to be kept with Hereticks That his own Religion is to be propagated by Arms Blood or Persecution That no Government can be safe for the Prince or in which he can appear Great or Glorious but as an absolute Monarch let such a Prince be either a Christian or a Mahometan I think it would be a certain ruine to a Kingdom to be obliged to receive such a Prince when they were morally sure that he would not only subvert their Religion but destroy the very professors of it and not only those but alter the Civil constitution too by turning it from a limited Kingdom into an absolute despotick Tyranny To conclude I shall only desire you to consider into what a Country your Prince of Wales is carry'd and what Instructors he is like to have and what Principles he will receive from them and then pray tell me if he continues there till he is a Man what difference there will be between this young Prince bred up in such a Religion and such Principles and the same if he had been carried away by Pyrates to Argier as I at first suppos'd M. This is a very invidious Comparison for though I do not approve of the Roman-Catholick Religion yet sure there is a great deal of difference between that which professes all the Articles of our Creed and in which we of our Church own Salvation may be obtained and the Mahometan Superstition which denies that fundamental Article of our Creed viz. That Jesus Christ is the Son of God and as for Civil or Political Principles I hope the King his Father will take care to have him instructed by some of those English Noblemen or Gentlemen who are now with him in the Customs and Constitutions of the English Government and wherein it differs from the French
as we read Chancellor Fortescue did Prince Henry Son to Henry the VIth and I hope he will come over again to practise them in his own Country before he comes to be infected with the Arbitrary Principles of the French Government but as for those of not keeping Faith with Hereticks and a propagating his Religion by Persecution I doubt not but the King his Father will take care not to commit his Education to any of those who are infected with such Principles and I am the more inclin'd to believe it because it is very well known that his Majesty's tenderness and moderation in matters of Religion and not persecuting any body for the belief or bare profession of it as it was the greatest cause of his late Declaration of Indulgence so it was the main original of all his late Misfortunes nor can I see any reason why a King by being a Roman Catholick must necessarily be a Tyrant and a Persecutor since you cannot deny but that we have had many good and just Kings of that Religion and it is from those Princes that professed it that we derive our Magna Charta and most of the priviledges we now enjoy F. Though I would not be thought to affirm that the Romish Religion is every way worse than the Mahometan yet this much I may safely affirm that there is no Doctrine in all that Superstition so absurd and contrary to Sence and Reason as that of Transubstantiation held by the Church of Rome in which the far greatest part are certainly Idolators which can never be objectâ—d against the Turks and therefore though I will not deny but that a Man may be saved in the Communion of the Romish Church yet it is not for being a Papist but only as far as he practises Christ's Precepts and trusts in his Merits that he can ever obtain that favour from God But as for those evil Principles both in Religion and Civil Government which you cannot deny but are now commonly believed and practiced in France and which you hope King Iames will take care that the Prince his Son shall be bred to avoid I wish it may prove as you say but if you will consider the Men that are like to be his Tutors and Instructors in matters of Religion viz. his Fathers and Mothers Confessors the Jesuits and for Civil Government those Popish Lords and Gentlemen of notorious Arbitrary Principles and Practises who are gone over to King Iames you will have small reason to believe that there is ever a Fortescus now to be found among the English-men in France or who is likely to instill into him those true English Principles you mention And though I do not affirm that every Popish Prince must needs be a Persecutor yet since that wholly depends upon those Priests that have the management of their Consciences shew me a Prince in Europe who has a Jesuit for his Confessor and tell me if he hath not deserved that Character But though I am so much of your Opinion that King Iames ownes the greatest part of his Misfortunes to his Declaration for Liberty of Conscience yet was it not so much to the thing it self as to his Arbitrary manner of doing it by assuming a Dispensing Power contrary to Law and you may be very well assured by the little opposition which the late Acts met with for taking off the Penalties against Conventicles and not coming to Church in respect of all Dissenters except the Papists that King Iames might have as easily obtain'd a like Act to pass in respect of those also as to the free profession of their Religion and having Mass in their Houses which is more than the Papists will allow the Protestants in any Country in Europe And therefore I must beg your pardon if I still find great reason to doubt whether K. Iames his tenderness towards those that differ'd from him in matters of Religion and the Indulgence he gave them were purely out of consideration of tender Consciences and not rather thereby to destroy the Church of England Established by Law since the Dispute began between King Iames and his Parliament was not about Liberty of Conscience but those Offices and Commands which the King was resolved to bestow upon the Papists whether the Parliament would or not And certainly there is a great deal of difference between a Liberty for a Man to enjoy the free profession of his own Religion and the power and benefit of having all the chief Imployments of Honour and Profit in the Common-wealth But that the Indulgence of Popish Princes towards those that dissent from them in matters of Religion may not always proceed from pure Tenderness and Compassion appears from a Manuscript Treatise of F. Parsons that great Jesuit in Queen Elizabeth's time which I have been told was found in King Iames's Closet after his departure This if you can see it will shew you that the subtil Jesuite doth there direct his Popish Successor in order to the more quiet introducing the Romish-Catholick Religion to grant a general Toleration of all Religions out of a like design Thus did Iulian the Apostare long ago tolerate all the Sects and Heresies in the Christian Religion because he thereby hoped utterly to confound and destroy it But as to what you alledge concerning Magna Charta's being granted by Popish Princes and that there has been many good Kings of that persuasion As I will not deny either the one or the other so I desire you to remember with what struglling and great difficulties this Charter was at first obtain'd and afterwards preserved though it was no more than a Declaration of most of those Antient Rights and Liberties which the Nation had always enjoy'd And you may also remember that they were Popish Princes who more than once obtain'd the Pope's Dispensation to be discharged from those solemn Oaths they had taken to observe those Charters and though there hath been divers good Princes before the Reformation yet even the very best of them made the severest Laws against Protestants and were the most cruel in their Persecutions witness King Henry the IVth Henry the Vth and Queen Mary And indeed it is dangerous to rely upon the Faith of a Prince who looks upon it as a piece of Merit to destroy all Religions but his own and when he finds it cannot be done by Law will not stick to use any Arbitrary means to bring it about To conclude pray consider whether the strict observing or violation of Magna Charta and his Coronation Oath hath been the cause of King Iames's Abdication Pardon this long Discourse which your Vindication of the Opinion and Practises of Popish Princes hath drawn from me M. Pray Sir let us quit these invidious Subjects which can do no good since Princes must be own'd and submitted to let their Principles and Practice be never so Tyrannical and let us return again to the matter in hand I will therefore at present suppose
Childless I cannot see why the Convention may not as well now settle the Crown upon King William and Queen Mary and their issue with remainder to himself for Life especially since he hath also another Title of his own to confirm it viz. that of a Conqueror over King Iames and our Deliverer from his Arbitrary Government M. I shall not go about to derogate from King Williams Personal Vertues which you so highly extoll only I wish I may not prove too true a Prophet since that is not the main question between us I shall only take upon me to answer in the first place what you have urged on the behalf of King William's pretence to the Crown as a Conquerour over King Iames and Deliverer of the Nation for whatsoever he may pretend to in respect of the latter I am sure he cannot justly pretend to the former since sure he can never have any right by Conquest who expresly sets forth in his first Declaration that he only came to obtain a Free Parliament and to Redress our Grievances Much less can he be properly call'd a Conquerour who never overcame his Enemy in any pitched Battle but by false Stories made the King's Army desert him and then when this was done having forced the King to leave the Kingdom for fear he has in the day of his power by these means obtain'd the Crown and as for a Deliverer you must pardon me if I cannot think him so since I am not yet satisfied that the worst of King Iames's Oppressions ever deserved that the Prince of Orange should take the pains to come over to redress them And therefore your paralell between your King's Title and that of Henry the IV th and Henry the VII th doth not at all agree since both of them claimed not so much by Conquest or force of Arms as by a pretended right of inheritance as you may see by both their Claims And as for Henry the IV th 't is plain he looked upon his Title by descent of blood having been allow'd in Parliament to be so good that for the first seven years of his Reign he never thought it worth while to pass an Act for the Settlement of the Crown upon himself and his Issue but for Richard the III d and Henry the VII th they were so far from owning their Titles to any Act or Declaration of Parliament that they first clap'd the Crown upon their own heads and after they had done it they immediately call'd their Parliaments which tho' they recogniz'd their Titles yet did not make them Kings but found them so whereas the Convention has by their sole Authority made the Prince of Orange and Princess King and Queen of England to the prejudice of the right Heirs of the Crown F. I doubt not but what I have already said may very well be desended notwithstanding the utmost you have now argued against it In the first place as to what you say against King William's Title as a Conquerour over King Iames is very trivial for though it is true the Prince declar'd before he came over that his coming was for no other end but to obtain a Free Parliament Redress Grievances and to remove Evil Councellors from King Iames yet that is still to be understood that the King would agree to those reasonable demands the Prince then â—aâ—e for if by his own obstinacy he would bring things to that pass as that instead of redressing those violations he had made upon our fundamental Laws he raised an Army to support himself in them and when he thought this Army would not sight in his so bad a Cause he then disbanded it and by that as well as the desertion of the Throne owned himself vanquish'd Can any body deny the Prince of Orange a right of making what advantage he could of his Successes And therefore I doubt not but that the Prince might if he pleas'd have taken upon him the Title of King immediately upon King Iames's first departure and have summon'd a Parliament to recognize his Title as Henry the VII th did after his Victory at Bosworth Field nor would this have made him a Conquerour over the Kingdom since he never made War against it but came to deliver it from Tyranny and Oppression Nor did William the Corquerour himself by his Victory over King Harold ever pretend to a right by Conquest over the whole Kingdom but only over the Estates and Persons of those who had fought against him as I have fully proved at our Tenth Meeting nor did Henry the VII th in the first Speech he made to the Parliament after his taking upon him the Crown claim a right to it by Conquest over the Kingdom as his own words were in that Speech you mention to this first Parliament but only that by the just judgment of God in giving him the Victory over his Enemy in the Field and he then farther declar'd that all his Subjects of whatsoever State and Condition should enjoy their Lands and Goods to them and their Heirs as they did before except such Persons who were to be attainted by Act of Parliament Nor is it any objection against his right by Conquest that he obtained no Victory in a pitch'd Battle since I never heard or read that to make a Prince a Conquerour it is necessary that so many thousand Men should be kill'd upon the spot for admit the adverse Prince against whom he fights will through Cowardise desert his Army or that his Army will desert him either through fear or a sence of the greater justice of the adverse Princes Cause or an affection to his Person so that it never come to a Battle yet it has been in all Ages looked upon as all one with a Victory as I can show you from several examples in History and particularly in Plutarch concerning Pyrrhus King of Epyrus who making War against Demetrius then King of Macedon and both Armies being encamped near each other the Army of the latter forsook him and went over to Pyrrhus as well out of hatred to him as esteem for his Enemy so that Demetrius being forced to steal away in disguise Pyrrhus thereupon was immediately in the Field Proclaimed King of Macedon And I doubt not but the Prince of Orange might have done the same had it not been for his great moderation and least it might give his Adversaries occasion to traduce him that he came over for no other end but to drive the King out of his Kingdom and therefore he chose rather to owe the Crown to the free Act of the Nation than to his right by Conquest over King Iames but yet I do not think he hath at all lost that right though he doth not think fit for fear of giving offence to insist upon it and therefore certainly the Convention might very well justifie the setling the Crown upon his Highness during his Life not only as a Conquerour over K. Iames but a Deliverer of
the Nation from his Oppression though the Prince was pleas'd to accept it upon those terms expressed in the late Declaration of the Convention and upon his free promise to preserve preserve our Religion Laws and Liberties which he has since also confirm'd by his Coronation Oath But as to what you say that the Prince made the Kings Army desert him and wrought the People into hatred of his Person by lying Stories and mean Arts is altogether untrue since I know of no Reports he made of the King or his Government but what are in his first Declaration and that is certainly true in every part of it and as has been justified by the express Declaration of the Convention in every particular except that concerning the Prince of Wales which I confess is left still undecided because as I have already proved it is impossible to give any certain judgement in it unless the Witnesses as well as the Infant himself could be brought over hither nor doth the Prince in his said Declaration say any more concerning that business than that there are violent suspicions that the pretended Prince of Wales was not Born of the Queen but for the report of the Secret League with France for the extirpation of the Protestant Religion as there is no such thing in his Highnesses Declaration so the spreading of it cannot be laid to his charge since he never gave it out as I know of yet there are certainly great presumptions and too much cause of suspicion that it may be so as I proved at our last Meeting But though you will not allow the Prince the Title of our Deliverer yet I am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion that King Iames's violations both upon our Religion and Laws were so great that nothing could preserve the Kingdom from a total Subversion in its Establisht Religion and Civil Constitution but his Highnesses coming over and most of the Bishops were of that Opinion who now the Government is setled refused to take the Oath of Allegiance to their present Majesties But to answer what you say that the manner of Henry the IV ths and Henry the VII ths coming to the Crown doth not at all agree with this Case of King William because they claimed by right of blood which you say King William cannot do that is not so in respect of the Queen who has certainly a right to succeed her Father by right of blood in case the Prince off Wales be not the true Son of the Queen and untill he can be proved so we must at present look upon him as if he were not so at all so that the Convention hath done no more in setling the Crown upon the King during his Life than what the Great Council of the Kingdom have frequently done before upon other vacancies of the Throne as I have proved from the Examples of William Rufus and Henry the First King Stephen King Iohn and Henry the Third And it is very hard to suppose the whole Nation to have been guilty of Perjury and Treason upâ—n their Swearing to and Fighting for those Princes after they were so Solemnlâ— Elected Crowned and Invested with the Royal Power But as for Edward III. his first and best Title was from the election of the Great Council of the Kingdom who I doubt not but if they had found him unworthy of the Royal Dignity by reason of folly or madness or Tyrannical Principles would have set him aside and have made his youngâ—â— Brother King a Protector to govern in the King's Name with Royal Power having never been known in England till the Reign of Henry the VI th but as for Henry the IV th notwithstanding his claim by right of Blood I have already proved that the Paâ—liament by their placing him in the Throne did not at all allow it nor is any such Right recited in the Act of the 7 th of Henry the IV th which by the Crown is entail'd upon that King and his four successive Sons And though it is true Henry the Seventh also claim'd the Crown by right of Inheritance in his Speech in Parliament yet they were so far from allowing it that they do not so much as mention it in that Act of Setlement which as I have recited they made of it upon that and the Heirs of his Body And therefore I think I may still maintain that the Convention hath done nothing in the present Setlement of the Crown but what hath been formerly done upon every vacancy of the Throne either by deposition or resignation of the King or Abdication or Forfeiture of the Crown as in the case of King Iames in which the Convention have done no more than exercised that Power which has always been suppos'd to reside in the great Council of the Kingdom of setling the Crown upon such a Prince of the Blood-Royal as they shall think best to deserve it Thus much I have said to preserve the Antient Right of the Great Council of the Nation But to put all this out of dispute I have been credibly inform'd that the Princess of Denmark her self did by some of her Servants in both Houses as well of the Lords as Commons declare upon a great Debate that arose about securing her Highnesses Right to the Crown immediately after her Sister the Queen that her Highness had desired them to assure the Convention that she was willing to acquiesce in whatever they should determine concerning the Succession of the Crown since it might tend to the present setlement and safety of the Nation which I think is a better Cession of her Right to his present Majesty than any you can prove that the Empress Mawd made to her Son Henry the Second or than the Countess of Richmond ever made to her Son Henry the Seventh M. You have often talked of this forfeiture and extravagant Power of your Convention by whom you suppose they are not obliged to place the Crown upon the head of the next Heir by Blood which I shall prove to be a vain Notion for if there be an absolute forfeiture of the Crown the Government would have been absolutely Dissolved for since there is no Legal Government without a King if the Throne were really vacant and that the People might place whom they pleas'd in it yet the Convention can have no Power to do it as their Representatives since upon your suppos'd dissolution of the Original Contract between the King and the People there was an end of all Conventions and Parliaments too And therefore if a King could have been chosen at all it ought to have been by the Votes of the whole body of the Clergy Nobility and Commons in their own single Persons and not by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders are upon this suppos'd Dissolution of the Government altogether void and
of Succession yet even that will not hold in respect of the present settlement thereof by the Convention upon the Prince and Princess of Orange for their two Lives since you cannot but know that no Parliament yet was ever so presumptuous as to take upon them to settle or limit the Succession of the Crown without the consent of the King or Queen then in being Whereas the present Settlement was first made by the Convention upon the making of the Prince and Princess King and Queen tho' I grant it was afterwards confirmed by another pretended Act whereby all Princes that are or shall be Roman Catholicks when the Crown shall descend unto them are debarred from their right of Succession This though I grant to be made after the Prince and Princess of Orange took upon them the Title of King and Queen yet since that Statute was not made in a Parliament call'd by the King's Writs but in a Convention who owe their Meeting wholly to the Prince of Orange's Letters it is not only void in respect of the subject matter but also in the manner of making it and therefore I cannot believe that the Throne was ever vacant And I have as little reason to be satisfied that the Prince and Princess could be lawfully placed therein or that all Roman Catholick Princes can ever be barred from their right of Succession when ever it may fall to them F. If this be all you have farther to object I think I can easily answer it for in the first place I have already told you that the Convention did not take upon them to create or make any new form of Succession to the Crown but only to declare that the Prince and Princess of Orange are Rightful and Lawful King and Queen of England for upon supposition of King Iames's Abdication of the Crown and that the Prince of Wales cannot be taken for the lawful Son of the King 'till he can be brought over and that his Legitimacy be duly proved it must 'till then certainly be their right and no others and as for King William's holding the Crown during his own Life I have already told you it was not done without the tacit consent of the Princess of Denmark her self though I doubt not but it may also very well be justified upon those suppositions of the forfeiture of the Crown by King Iames and the Conquest the Prince of Orange made over him which are sufficient in themselves to barr any legal claim of those that either are or may pretend to be right Heirs But as for the other part of your Objection whereby you would prove that Popish Princes cannot be excluded from the Succession because the Act was made not in a Parliament but a Convention this wholly proceeds from your want of Consideration that at the first institution of the Government and long after whilst the Kingdom continued Elective there was no difference between a Great Council or Convention and a Parliament for pray call to mind the four first Great Councils after your Conquest reckoning that for one wherein King William I. was Elected or declared King whether it was possible for those Councils to be summon'd in the Kings Name before any body had taken upon themselves the Title of King the like I may say in the case of King Iohn and Henry the III d and that this continued after the Succession was setled in the next Heir by Blood appears by that Great Council that was summon'd after the death of Henry the Third which Recognized or Ordain'd his Son Prince Edward to be his Successor So likewise the Parliament that deposed King Edward the Second sate both before and after his deposition and resignation and elected his Son Edward the Third to be King and appointed his Reign to begin from the time of their Election and not of his Fathers resignation of the Crown so also upon the deposition of King Richard the Second the same Parliament that deposed him placed Henry the Fourth in the Throne and though the Writs of Summons were in the name of King Richard and they were never re-summon'd or new Elected in the Reign of Henry the Fourth yet did they still continue to sit and made divers new Acts and repealed several old ones all which hold good to this day And that the Parliament are the only proper Judges of the right of Succession even without the King you your self must grant or else how could they declare in the Thirty Ninth of Henry the VI th that the claim which Richard Duke of York made to the Crown could no way be defeated and certainly if that unfortunate Prince King Henry the Sixth had had sufficient Power or Interest in that Parliament they might and would have adjudged the Duke of York's Claim to have been groundless and contrary to Law and then I believe it would scarce have ever been heard of again But to make it out beyond exception that a Convention may become a Lawful Parliament though never call'd by the King's Writs when the King's Authority and Presence come once to be added to and joined with it appears by the first Parliament of King Charles the Second which though Summon'd in the Name of the Keepers of the Liberties of England yet nevertheless continued to Sit and make several Acts which hold good to this day and I doubt not but they might have made the like limitations of the Crown in respect of Roman-Catholick Princes as the Convention have now done and that it would have held good at this day since it is so much for the security of our Religion Liberties and Properties that it should be so since we have found by a dear bought experience in the Reigns of the four last Kings of the Scotch Line that still as they began to favour the Popish Religion and Interest in this Kingdom so did the Protestant and true English Interest in respect of our Religion Liberties and Properties still decline 'till at last they were like to be totally ruin'd and extirpated for that restless and dangerous Faction very well know that there is no means possible for them to re-establish their Superstition among us by due and legal Methods but only by introducing Arbitrary Power taking away Parliaments or else making them wholly to depend upon the King's Will as we see was labour'd and almost effected in the Reigns of the two last Kings and therefore I cannot but believe that the present Parliament has not only acted wisely but also legally to enact that for the future no Prince who is actually a Roman Catholick shall succeed to the Crown though he be next heir by blood M. I must still tell you I am as little satisfied with your suppositions of the forfeiture of the Crown by King Iames and the Conquest to the Prince of Orange as I am with your instances out of History concerning the power of the Great Councils meeting and chusing a King by their own inherent
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
of Government can have any for that which is done by a person who has no Authority can lay no obligation upon us whence then has he this Authority since he has no legal Right to the Throne not sure from the presumed consent of the King de jure which is nonsence to suppose but from the possession of the Throne to which the Law it self as well as the Principles of Reason have annexed the Authority of the Government M. I am so far of Bishop Sanderson's Opinion in his Case concerning taking the Engagement that when Usurpers or Kings de facto have taken upon them the Government they are obliged to administer it for the common good and safety of the People and as far as that comes to we are also obliged to live peaceable under them and to yield obedience to them in things absolutely necessary for the upholding civil Society within the Realm such as are the defence of the Nation against Foreigners the furtherance of publick Justice the maintenance of Trade and Commerce and the like But sure this is no argument for transferring our Allegiance from the lawful King and his Heirs whilst they are alive and therefore I must still suppose that this Statute of the 11th of Henry the VIIth can do no service to the present Government because it s vertually repeal'd by several Statutes as first by the 28th of Henry the VIIIth concerning the Succession of the Crown wherein it is expresly provided that if any of his Children should Usurp upon each other or if any of those to whom he should bequeath the Crown by his last Will or Letters Patents should take the Crown in any other manner than what should be thereby limited that such Children or others should be guilty of Treason for so doing Now it is plain such Treason must only have been committed against the right Heir and consequently the person so taking the Crown was not to be looked upon as King de facto It is also vertually repealed by the Statute of 1 o Elizabeth by which we are obliged to swear to be true to the Queen her Heirs and Lawful Successors i. e. those who have a right to the Crown by proximity of Blood as also by the Oath of Supremacy Enacted in the 4th of King Iames by which we are likewise sworn to bear true Allegiance to his Majesty his Heirs and Successors from which Oaths I argue first that if we are sworn by Act of Parliament to pay Allegiance to the Heirs of a King de fure who never were in possession than a fortiori to a King de jure who besides the legality of his Title had been actually recognized as Sovereign and enjoy'd an uncontested administration of the Regal Power Secondly If our Laws oblige us to swear subjection to the Heirs c. of a Rightful Prince than by undeniable consequence we are bound not to translate our Allegiance to those who are unjustly set up by the People for without all question the words Heirs and Lawful Successors were made use of on purpose to secure the hereditary Rights of the Monarchy and to prevent all Usurpations upon the direct Line And since by vertue of that Statute which framed the Oath of Allegiance and Supremacy we are not to acknowledge any pretended Governours to the prejudice or disinherison of the Heirs of the King de jure then most certainly we ought not to do this in opposition to the King de jure himself so that now we can have no pretence to make Right the necessary consequence of meer possession of the Crown any more than in private Estates F. In the first place I agree with you in what you have said that Kings de facto are to be obeyed in all things tending to the publick good of Society but then it will also follow that Allegiance is due to them from that great Law of prosecuting the same publick good since it were much better that Kings de jure should lose their Right than that a Nation should be involved in a long and cruel War to the weakning and impoverishing thereof and to the destruction of so many thousands of ordinary as well as Noble Families as was seen in the long Civil Wars between the Families of Lancaster and York so that I cannot but think it would have been much better for this Nation if that Family had continued to Govern us unto this day rather than that Edward the IVth should have obtained the Crown with so great a destruction of the People of this Nation and so great cruelty as was then exercised upon King Henry the VIth and the Prince his Son as you may read in the History of those times But I come now to answer the rest of your Arguments whereby you will prove this Statute of the 11th of Henry the VIIth to be vertually repeal'd and here by the way I must tell you Gentlemen of this Opinion that I cannot but admire your wondrous sagacity in discovering this Act to be repeal'd when my Lord Coke and all the rest of our Lawyers do still suppose it to be in force but indeed the reason you give for it is not urged like a Common Lawyer and therefore I think it will signifie little for though I grant that an Act of Parliament may be vertually repeal'd by a subsequent Act yet it is only in such Cases where they are absolutely contradictory and inconsistent with each other but if they are not so an Act of Parliament can never be said to be vertually repeal'd and therefore I shall now show you that notwithstanding the Statute of Henry the VIIIth and the Oaths of Supremacy and Allegiance you have now mention'd this Statute may very well continue in force and unrepeal'd First as to the Statute of Henry the Eighth whereby it was declar'd Treason for any one of his Children upon whom the Crown was setled to Usurp upon each other yet that part of the Statute which makes this Treason was repeal'd by the first of Edward the the Sixth and by the first of Queen Mary or admit it had not been so yet this Clause in the Statute of Henry the Eighth would haue been absolutely void in it self against any such Usurper when actually possessed of the Crown since it was held by all the Judges in the Case of Henry the Seventh who at the time of his coming into England stood attainted by Act of Parliament that this attainder need not be reversed since Possession of the Crown takes away all precedent defects But as to the Statutes of the first of Queen Elizabeth and the fourth of King Iames by which the Oaths of Allegiance and Supremacy were Enacted I conceive neither of these Oaths can amount to a vertual repeal of this Act for though I grant one end of these Oaths may be to secure the right of the King or Queens Heirs by lineal descent yet it will not therefore follow that a King de facto
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
Seventh which we are now disputing about was made expresly to secure and indemnitie all those who should attend upon the King for the time being and do him true and faithful service of Allegiance c. And therefore it lies upon you still to prove that this Statute is either expired or else void in it self otherwise besides the constant practice of former times we have here an express Act of Parliament declaring it every Mans duty to pay Allegiance to the King for the time being and then certainly he is as much oblig'd to Swear it too M. I doubt not but I shall prove to you that this Statute expired with Henry the Seventh from a Clause in the Act it self for if you please to read immediately after those words you have now cited that all those who do the King for the time being true and lawful Allegiance c. it follows thus shall be secured from all manner of forfeitures and molestations relating to their Persons or Estates but mark provided always that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their said Allegiance now we know a proviso is an exception or restraint upon the latitude and comprehensiveness of the Law and that all Statutes are perfectly null so far as the proviso reaches Having premised this I shall endeavour to prove that this Act was design'd only for the security of that Reign in which it was made and cannot be stretched any farther To make this appear let us now suppose a competition between the King de jure and Henry the Seventh that is one de facto and that the Subject engages for the latter in this case if the King de facto prevail there is no need of the assistance of this Statute for we cannot imagine any Prince could be so impolitick as to punish those who have ventur'd their All to maintain him in his Government this besides the ingratitude of the action would proclaim the injustice of his Cause and would serve only to ruine his interest F. Notwithstanding this objection you have now made I doubt not but this Clause will bear a very fair and legal interpretation and that not in respect of the Allegiance that might be due to the King de facto but to the King de jure since if it were not for the indemnity provided by this Statute the King de facto would have been oblig'd to have punished them for opposing their lawful Prince M. This is easily answer'd for pray do Kings de facto always perform that which the Law requires if so they never would have been Kings de facto since they could not make themselves Masters of the Sovereign power without dispossessing those who are supposed the right owners of it Secondly the possessour would not so much as seem oblig'd to punish his adherents upon a competition except he own'd himself to be no more than an unjust Usurper but we have neither example nor reason to expect such singular concessions as these for no Usurper will own himself in the wrong so long as he intends to enjoy the advantages of his injustice upon supposition therefore that the Victory had fallen on the side of a King de facto the Act would be wholly superfluous F. But why may we not also suppose that this Clause was inserted not only to secure those who had assisted the King de facto against your King de jure but also to debar all those who had fallen from their Allegiance to the King de facto from receiving any benefit by this Act if ever they should plead it in their own justification after the King de jure had prevail'd and was again setled in the Throne M. You may take it in this sence if you please but if you do it will not at all mend the matter for tho' those that stood by the King de facto will have great occasion for an Act of Indemnity yet this Act will be as helpless to them now as it was needless before for either they must submit to the King de jure or not if they do not submit it 's easie to imagine the Consequences how a Victorious and irresistible Prince will treat the obstinate and rebellious opposers of his just Title if they do submit as of necessity they must then they can claim no manner of priviledge and indemnity from this Act for they cannot come into the Party of the King de jure without deserting that de facto i. e. without declining their Allegiance to him who was King when this Statute was made by declining which Allegiance the proviso expresly excludes them from all manner of benefit or advantage by this Act. In this condition the Law would have left the de facto Party if the Sovereignty had been disputed between Henry the Seventh and the House of York and that the Prince de jure of the House of York had been successful from whence it 's undeniably plain that neither the design nor words of this Statute can be drawn to such a monstrous construction as to enact bare possession to be a good Title and make Might and Right the same thing The only design of this Parliament was to continue the Crown to Henry the Seventh during his life which both by the body and proviso of the Act was effectually done as in them lay for divers reasons that might then prevail with the two Houses to consent to a temporary alteration of the Succession to the Crown such as these that though Henry the Seventh had no just Title in his own right yet in the right of his Wife he had which he did no way disavow by this Act and you must also remember that at this time Henry the VIIth had several Children by his Queen viz. Prince Arthur Henry c. So that now the contending Families of Yorke and Lancaster being thus hapily united there was no reason to sear that a security though an unusual one to the present possessor could be prejudicial to the right Line especially since the force of that Act was confined to the Reign of that Prince as has been already proved F. You may fancy if you please that you have prov'd this Act to be expired but I think if you better consider of it you will find your self mistaken for though I may very well suppose that the King and Parliament to deter men from falling from their Allegiance to the King for the time being might insert this Clause upon a supposition that the next King whoever he was whether by right of blood or only de facto would out of a generous aversion to Traytors and Deserters hinder them by vertue of this Clause from enjoying any benefit by this Act yet I shall not longer insist upon 't whether it be insignificant or not and therefore will at present grant it to be so but what then Will a void Clause vitiate or render expir'd
also to those of justice and right reason for an Usurper not only to seize the Throne by force but if he can once get himself solemnly Crown'd and then recogniz'd by an Act of Parliament of his own calling which your self cannot deny but to have been ever too obsequious to the will and power of Usurpers as appears by those instances you have given me in Henry the IVth Henry the VIth and Richard the IIId the consequence will then be that the whole Nation would not be only bound to swear Allegiance to him but would be also oblig'd by this Act to desend him in his Tyranny and Usurpation to the utmost of their power and it would also indemnifie them for so doing which would be to establish iniquity by a Law and would destroy all the setled foundations of right and wrong which I affirm God himself is not able to alter without departing from those great attributes of immutability and Justice so essential to his Divine Nature F. It will not be very difficult to reply to these Arguments since they are grounded on such false Principles as are already answer'd As first that this Kingdom is by the fundamental constitution of it an Hereditary Monarchy and that consequently none but he who has a right by inheritance can require our Allegiance but pray tell me where you can find this fundamental constitution for I think I have sufficiently prov'd that there never was any such thing known in England till between four and five hundred years since that King Edward the First succeeded to his Father Henry the Third without any Bequest of the Crown by his Testament and before any Election or Coronation since he was then in the Holy-Land But suppose it now to be an Hereditary Monarchy it doth not therefore follow that the Monarchy should continue always in such a Family for that may sail or may be changed by Conquest or Usurpation as has often been and the constitution continue So that the most that can be said is that when any particular Family by the Providence of God and the consent and submission of the People is placed in the Throne of right the Crown ought to descend to the Heir of that Family but suppose it does not must we pay Allegiance to no other person though pâ—ssessed of the Throne Pray Sir shew me that fundamental constiâ—ution for its being an Hereditary Monarchy does not prove it and according to the Judgement of the best Lawyers the Laws of the Land require the contrary viz. that we must pay our Allegiance to him who is actually King not to him who ought to have been King but is not and to think to confute this by pretending this fundamental constitution of an Hereditary Monarchy is to take that for granted which is still to be proved And therefore I am not at all frighted at the dreadful consequences which you suppose must follow if this Statute of Henry the VIIth should be Law viz. that it would be in the power of every Rebell and Usurper who could get himself Crown'd and then own'd to be King by a Parliament of his own calling to have a legal right to our Allegiance and that Cromwell if he could have got himself once Crown'd and recogniz'd might have been defended in his unjust Usurpation against King Charles the Second But admit this to have been so yet it is still to be understood that at this Coronation he had taken the Oath anciently taken by our Kings and that the Parliament he had summon'd to recognize his Title had consisted of the antient Lords and Commons consisting of Knights Citizens and Burgesses which never was observ'd in any of those Mock-Parliaments which Cromwell call'd had all these Conditions been observ'd I believe he would have been as legal a King within this Statute of Henry the VIIth as he himself ever was before he Married with the Princess Elizabeth which was not till near half a year after he had the Crown setled upon him by Act of Parliament So that though upon every translation of the Crown from one Family to another the first Prince of that Family could have no Hereditary Right to it yet we find such Princes to this day taken for Lawful Kings thus your William the Conquerour King Henry the IVth and King Henry the VIIth are each of them looked upon as true and lawful Kings according to our constitution as if they had been right Heirs of the Crown by lineal descent and though you may say that as to William I. he had a good right by Conquest that is only gratis dictum since I have already prov'd that he could be really no Conquerour And if the English Saxon Monarchy was hereditary before the Conquest as the Gentlemen of your opinion suppose he could be no other than an Usurper upon Edgar Athling the right Heir of the Crown by blood and as for Henry the IVth and Henry the VIIth though they both pretended a feigned Title to the Crown as Heirs by blood yet it is plain by the very Acts of Recognition I have cited that they durst not insist upon that Title since I have already prov'd there is no such thing mention'd in that Act of Parliament wherein the Estates of the Kingdom unanimously agreed that Henry Duke of Lancaster should Reign over them nor yet in the subsequent Act whereby the Crown was intail'd upon himself and his four Sons successively so likewise the Statute of the first of Henry the Seventh it is only drawn in general terms declaring that the Inheritance of the Crown of England c. shall rest remain and abide in the Person of King Henry the VIIth and the Heirs of his Body lawfully coming c. Nor is there indeed any breach made upon this Statute as you suppose nor yet upon the Act of Recognition of King Iames which you so much insist upon since the Crown is certainly setled upon two Princes who are not only lineally descended from them but who are also to be looked upon as right Heirs unto them since the Great Council of the Nation who are the Supream Judges have declar'd them to be so But as for the rest of your Speech whereby you would prove that this Act must needs be void because contrary to the Laws of Justice and right Reason this also depends upon your former errour in supposing that Princes have a Divine or Natural Right to their Crowns antecedent to the municipal Laws of their respective Kingdoms which is already sufficiently confuted so that tho' I grant it is not in the power of God himself to alter the natural foundations of right and wrong just and unjust yet it is likewise as certain that the Civil Rights of Princes as well as those of Subjects can no ways be accounted for according to those Natural Laws since all Civil property as well in Crowns as other Possessions must depend upon the particular Laws and Constitutions of each Kingdom and
in Law since we find by the whole Course both of Law and History that the Statutes made by Kings de facto are as truly and as much Laws as those made by your Kings de jure and Attainders for Treason committed against them have been so far from being declar'd void that they could not be revers'd by any other means than by particular Acts of Parliament made for that purpose as I have already shewn you from divers instances both from History and Records Nor is your exception against the present Parliaments not being call'd by the Kings Writ of any force since I have already prov'd at our last Meeting from the example of the Great Council that assembled to recognize and ordain Edward the first to be King when he was in the Holy-Land as also by the Parliaments of Edward and Richard the Second by which they were deposed and Edward the Third and Henry the Fourth declar'd to be their Successors That those Parliaments could not be summon'd by those Princes whom they so recogniz'd and therefore though they were call'd by the Writs of the former Kings yet their Authority determin'd as to be the Parliament of that King that call'd them upon his ceasing to be King and therefore must owe their sitting longer wholly to the Authority of him they had already declared King whose Presence and Authority was then looked upon as sufficient to give them power to sit and make Laws with the succeeding King though they were never summon'd by him To these Parliaments I may add that of the first of King Charles the Second which called home the King and after his return made several Statutes both publick and private which stand good to this day so that to conclude you have no reason either from Law or History to maintain that there can be no vacancy of the Throne or that none can be declar'd King or Queen but in a Parliament summon'd by the Writs of that Prince whose Title they are to recognize M. I shall not deny the matters of Fact to have been as you lay them as to the Great Councils or Parliaments you mention but in answer to this you may remember that as for those Parliaments call'd in the name of Edward or Richard the Second there is no Procedent to be drawn from them because they serv'd only to depose their Lawful Kings and to set up those who had no right at least as long as they liv'd and you very well know that any coersive power in the two Houses of Parliament over the King is expresly renounc'd and declar'd against in the Parliament of the thirteenth of K. Charles the Second as I have already shewn you but as for the Convention which was call'd in the first year of that King I have also given you my judgement of it that though they might lawfully meet to vote the return of their Lawful Sovereign and to recognize his Title yet were they not for all that a lawful Parliament as to the raising of Moneys or making of Laws and therefore what ever they did to both these they were fain to be confirmed by the Parliament of the 13th I now mention'd But indeed I cannot but admire as this mungrel hodge podge course of Succession which you now suppose to take place in England for you cannot deny but the Crown is hereditary and has been always claim'd as such for near 500 years and yet for all that when ever an Usurper and a Parliament shall agree together he to take the Crown by force and they to recognize his Title as soon as he pleases to call them he must then be looked upon as a lawful King and the just and rightful Title of the true King or lawful Heir of the Crown shall be so far destroy'd as that Allegiance must be due to this Usurper though perhaps he obtain'd the Crown by the most horrid vilanies in the World as the deposing and murthering of his Lawful Sovereign as Henry the IVth did and which would also have been the case of Oliver Cromwell had he ever taken upon him the Title of King so that is to set on foot at once two contrary legal rights a legal right and title to the Crown by descent of blood without a right to exercise the Authority belonging to a King and a legal right to wear the Crown and exercise the authority belonging to it without any antecedent legal right to the Crown it self which would indeed render the legal authority in England to be like the right that men have to those Creatures that are ferae naturae which belong to him who can get them into his power for as to the consent or recognition of Parliament I look upon that as a meer â—auble since your self cannot shew me any Usurper since the Conquest though never so wicked and notorious who ever fail'd to have his Title so recognized and confirmed by Parliament as you your self cannot deny which methinks is a high derogation from the Dignity of a true Hereditary Monarchy such as ours either is or at least ought to be F. I shall reply but this once upon this head since I see there can be nothing new said upon it and therefore you your self are forâ—ed to repeat what you have already â—urged at our last Meeting only you strive to support it by fresh Authorities therefore as to the Parliaments which deposed King Edward and Richard the Second I cannot blame you for denying them to be lawful precedents because they make directly against your opinion but you say nothing to that of the first Great Council or Parliament of Edward the First which not only ordain'd he should be King but also appointed all the Great Officers of the Kingdom which were to govern it in his absence but you may deny the authority of those Parliaments of the first of Edward the Third and first of Henry the Fourth as much as you please in a Chamber but if you should do the like at Westminster-Hall against any Act of Parliament because made whilst Edward or Richard the Second were living you would soon be over-rul'd and told that those Laws had still continued in force and unrepeal'd and it did not belong to private men to question those Acts that have been hitherto receiv'd for Law But as for what you have said against the authority of the Acts of that Parliament that brought in the King I have already prov'd that they were only confirm'd 〈…〉 cantela and that they had been good without it appears by this that all their private Acts though never confirm'd in the following Parliament are still in force But if the solemn Recognition of a Kings Title by Parliament be such a bauble and so easily obtain'd as you suppose I may say the same of that Act which recognized King Iames the firsts Title that it was done meerly out of flattery upon his Accession to the Crown nor can you reply that they might do this because he
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
the People may sometimes happen to abuse this Natural Right of Iudging and resisting by exerting it when there is no real and absolute necessity so on the other side if they are wholy debarred from it because they may happen sometimes to abuse it the Freest People in the World viz. our selves for Example may easily be reduced into a Condition of absolute Slavery and Beggery and that without all Remedy by any Humane means that I can think of and which is the worst mischief of these two I leave to your self or any indifferent Man to Iudge M. If you will have my Opinion in this pointâ— I must freely tell you that it is a hard matter to find out a mischief so destructive to the People and which they should exchange for this miserable State of War which you suppose may prove so beneficial to them and yet I doubt if it be throughly lookt into not only the Doctrine it self but also the lasting Wars and miseries it may produce would sufficiently prove the contrary since the cruellest Tyranny Slavery and loss of Estates or any thing else almost may be better born with in Peace and Unity than a Civil War with the greatest Liberty and Plenty seeing all such comforts would quickly be devoured like Pharaoh's Fat Kine by such a Cruel Mâ—nster feeding in their bowels And therefore since Civil War is one of the greatest Calamities and Punishments that God uses to send upon a Nation it seems evident to me that the Wellfare of any State or People requires them to be Obedient unto the Supream Powers tho' they be never so great Oppressors or Cruel Tyrants For when once they enter into this dismal State of War who can tell whether it will have an End without almost the total destruction of the Nation or at least by bringing them into a far worse Condition of Slavery and Suffering than they were before since the State of Princes or other Supream Powers can never be so mean and inconsiderable in the World as not to find when like to be Opprest by such insurrections and Rebellions of their Subjects sufficient assistance from Neighbouring Princes or States who making the Cause of such a Prince their own will be sure to assist him to the utmost of their Power it being found true by experience as Tully long ago observed That the afflicted State of Kings do easily draw the help and Pity of many others especially of those who are either Kings themselves or do live in a Kingdom the Regal Name being by them esteemed to be great and Sacred And farther how ready a way it is to subvert the State of any such distractâ—d Kingdom and to bring it under the Subjection of Foreigners we need not seek a plainer Proof than by an Example no farther off than Ireland where Dermâ—t King of Leinster being forced by his Rebellious Subjects to â—rave the Aid of King Henry the II. for his Restoration to his Kingdom his assistance to recover his Right produced that effect which we now see viz. That the Irish lost their Domiâ—ion and became Subject to the Crown of England even to this day And supposing that the Subjects might likewise be assisted by some Foreign Prince who would undertake their deliverance they would not be in a much bâ—ttâ—r condition since if he were an Absolute Monarch himself he would be 〈◊〉 for example sake as well as for their own security to carry as strict a hard over tâ—em and use them more severely than their own Prince had done before and I doubt not but if Lewis Prince of France had been Crowned King of this Kingdom as he was very near it toward the latter end of King Iohn's Reign but that he would have been more cruel and Tyrannical than ever King Iohn had been before So that they would have got nothing by the bargain but a change of Masters and a heavier Yoke imposed upon them by a Foreigner And so much the Viscount Melun confessed upon his Death bed to many of the English nobility which was the reason of their returning again to their Allegiance to Henry the third So that I think it had been much better for the Barons and Nobility of this Kingdom never to have stirred or Rebell'd at all against their Lawful Prince F. You seem so in Love with slavery and all the Consequences of it that it is an hundred pities but that you should feel the smart of it a little while provided no body was to suffer by it but your self and those of your Opinion But could you see the miserable Condition those poor People are in who live under Arbitrary and Tyrannical Government I doubt not but you would be of another mind and preferr a War tho' never so Violent before such a Peace for when Men are once reduced to so desperate a Condition as neither to be secured of their Lives Liberties or Estates they may have some hope to redress themselves by Resistance but need not fear to be reduced to a worse Condition than they were before and therefore I cannot understand how all the Comforts of a Civil Life would then be lost by a Civil Waâ— when I have already put-it as a chief part of the Case that Subjects are never to make such a Resistance but when the Supream Powers are just about to begin or else have actually entered into a State of War against their Subjects For what can any foreign Enemy do more if he Conquers them than take away their Lives Liberties and Estates So that this is so far from being a State of Peace that indeed the People are already exposed to all the Calamities of War but a War which you suppose may be made without any resistance whilst the Subjects forsooth are bound to keep the Peace but much such another Peace as would be in a House unto which Thieves having broken and the Inhabitants retiring into some upper Rooms there stand upon their Guard and make Resistance whilst the Thieves having Seized upon all they have below one of them should make such a speech as this I pray Sirs come down and submit your selves to us for we assure you we intend not to Kill you but only to Bind you and take away all you have And is not slavery and loss of Goods better with Peace and safety than by assaulting us to provoke us to fire the House and Kill you all for if you once enter into a State of War with us it is very likely to end with your total destruction For if you continue to resist us or think to call in Company to your Assistance we can likewise call in many more of our Party to come and help us and then eâ—pâ—â—t no mercy Now pray tell me would not this be a very rational Argument to move these People to come down and surrender themselves to these Thieves and partake of the benefits of this excellent Peace they propos'd and whether they would not tell
raising Money at his pleasure but the people reserved to themselves their share of both at the first institution of the Monarchy all those Princes that claim by Vertue of their Right are tied by this first original contract whether they ever took any Coronation Oath or not nor tho the Crown now become no more Elective does it at all alter the condition or the limitation of his Ancestors as long as the present King holds by and under the same Title and by vertue of the same original contract since as it was by the Peoples will that it was at first Elective so it was also by their Will that it became successive since every entail of the Crown upon heirs can only proceed from the Peoples agreement or consent to maintain it as a standing Law or else every King might alter it at his pleasure As for your next reply that if we resist the King because when he turns Tyrant he Acts not as Gods Lieutenant but the Devils Minister for so that tho' it is lawful to resist the Devil yet we cannot use carnal force against him this assumption is false since if we can suppose the Devil does ever use carnal force we may also repel the same by force or else those famous Stories of Witches and Spirits being afraid of and flying from naked Swords are all false I beg your pardon for speaking so long which I could not well contract into less compass without passing by your arguments and answers to my quotations M. You have indeed out-done me in making long Speeches but I have heard you patiently because I cannot deny but that you have argued fairly had it been upon a right foundation but since it is not pray give me leave to set you right and shew you that notwithstanding all you have urged to the contrary yet all our Kings since the Conquest were absolute Monarchs and if so not only irresistible upon any breach of their Coronation Oaths but also have been invested with such an absolute unconditioned power as can never be lost or forfeited upon account of the highest acts of Tyranny but before I come to my proofs give me leave to say somewhat to those last citations you have brought from King Edwards Laws as also from Bracton and Fleta First as to that Law you have cited that passes under the Title of one of those confirmed by King William the Conquerour give me leave to tell you that I much question whether it be genuine and not foisted in by some of the Monks that had the keeping of the Copies of those Laws in their Monasteries after the Original it self was no more to be found for in the first place I must observe it does not savour of that absolute Power that I take K. William to have acquited by his Sword to own his Royal Dignity forfeitable or that he could lose the name of King upon any account whatsoever at this pretended Law seems to intimate by these words nec nomen Regis in to constabit now that it strongly savours of the ignorance of the Monks I shall shew you by the very Law it self wherein the chief points for which the King must lose his Royal Title is not only if he does not defend his Earthly Kingdom but also the People of God that is the Clergy and also shall fail to reverence Holy Church that is the Bishops and Clergy of whom the Monks looked upon themselves as the chief and most considerable part as also if he fail to destroy evil doers that is Hereticks out of the Church then forsooth not so much as the name of King must remain to him now pray see the consequence of this and whether you will own this to be a fundamental Law of the Kingdom for then at this rate Henry the VIII who suppressed Monasteries and took away Abby-Lands and let injurious persons spoil the Church by Sacriledge and also all other Princes who have not extirpated those who when this Law was supposed to have been made would have passed for Hereticks that is all Protestants must have all forfeited their Royal Dignities and consequently the Pope did Henry VIII and Queen Elizabeth no wrong if in pursuance of this Law they Excommunicated them and declared they had forfeited their Crown since this Law says that Pope Iohn testified this truth quod nomen Regis perdet But nothing makes out more evidently to me the forgery of this pretended Law than the notorious faults there are in the Chronology where the sentence of Pope Iohn against King Childerick is mentioned as an evidence to make it good whereas indeed it was not Pope Iohn but Zachary who gave this sentence But in Hovedens Copy of this Law there is yet a more gross errour for it makes Pipin and his Son Charles to have writ to William the Bastard upon their hearing this definitive sentence so wisely given by him concerning the Title of King all which is so notorious a piece of folly and ignorance that it needs no other confuration But granting that part containing the Law it self to be genuine it does not at all set forth your Original Contract or make it a forfeiture in the King to do any of those things which you supposed to be main parts of the Fundamental Constitution only says in general that unless he defend his Earthly Kingdom and the People of God and reverence Holy Church by defending it from injurious Persons and removing Evil doers from it name of the King will not belong to him now all this the most absolute Monarch in Christendom even the King of France himself will say he performs to a tittle and therefore there is no fear of a forfeiture for any King tho' never so Absolute and Tyrannical upon these Terms unless he will do that which I think he is too wise ever to go about to destroy his People wilfully or to fall upon the Church of Rome and its Clergy As for the rest of the places you have cited out of Bracton and Fleta to prove this Notion of a Forfeiture I must freely tell you that they do not seem to me to come up to the point for which you bring them for as to that place you have cited out of Bracton non est Rex c. you and I differ about the sense of it and I see no reason why I may not still keep my own opinion the other place I confess seems more express viz. That it is the Crown or Dignity of the King to do Justice or Judgment without which it cannot hold or consist this also does refer only to such Justice and Judgment as the King is to give and distribute between Man and Man without any relation to his own actions towards his Subjects and if a Prince will not do this either by Himself or Deputies I grant his Crown or Royal Dignity cannot long subsist to be maintained since this will bring all things to utter confusion so that strangers will
since according to your doctrine the bare endeavouring it would be nothing and after he had once brought it to pass it would be then too late to retrieve it But that the King did really endeavour thus to subvert the fundamental constitution appears not only by his closeting and threatning Members to turn them out of their places if they would not submit to his Will in taking off the Penal Laws about Religion whereby all freedom of Voting would have been quite taken away But when the King saw this would not do he then fell a new modelling of Corporations and by bringing Quo Warranto's against their Charters to get it into his own power to nominate or approve of all Mayors Aldermen and Common Council men who in those Corporations having the sole Elections of Parliament men he would thereby have had the naming of them also in his power your next exception is against their declaring him to have broke the Original Contract between the King and the People for that you are not yet persuaded there was any such thing because we cannot shew it you in any Common Law or Statute Book written in express words as for the Statute Law I grant that there is no such express Contract to be found in any Statute yet doth it not therefore follow that there is no such Contract by the Antient Common Law of the Kingdom Now that our Fundamental Laws are not all to be found in writing is no wonder since it is a maxime of our Common Law that it was not a Law because it was Written but it was Written because it was a Law for it was a Law when it was only in the Breast and Heads of the King and People of this Nation without any writing at all and you your self must grant that if the Hereditary Succession to the Crown be a Fundamental Constitution it is notwithstanding no where to be found in Writings as I know of but the contrary asserted by divers Acts of Parliament but that there is such a thing as an Original Contract I shall prove from such a necessary consequence as I think cannot be denied for as that Statute of King Iames. I. sets forth which I have now cited and your self have already acknowledged there are such things as Fundamental Laws that is Laws that are as antient as the constitution of the Government there must have been also an implicit Fundamental Covenant or Contract on the Kings part that he would maintain them without any violation and this is that we mean by an Original Contract and if it were not so it had been the most foolish and unreasonable thing in the World to require every King to swear before he was Crown'd that he would maintain the Rights of the Church and the Antient Laws and Customs of the Kingdom and that this was Antiently looked upon as a renewal of this Original Contract appears by all our antient Historians who till the Reign of King Ed. I. never give the next Heir the Title of King but of Duke of Normandy till he was actually Crown'd and had taken his Coronation Oath and for this I desire you would consult all our antient Histoâ—ians since your Conquest beginning with Inguâ—â— and Eadmerus ending with Thom. Walsingham But as for your exception against his violating of the Fundamental Laws is yet more trivial for you cannot deny that there are such things and if so surely a King may violate them if he pleases and therefore your excuse for the Kings breach of them because they are not to be found together in any one place but are to be pick'd up here and there from Magna Charta and other Statutes makes nothing against the validity or the possibility of his knowing them for as before they were reduced to Writing by those Statutes which only declare and confirm the Antient Common Laws and Liberties of England they existed as I said but now in the Heads and Hearts of the King and People so when divers Kings of England by their Tyrannical and Illegal practices had made divers violations of these Fundamental Rights and Priviledges there then grew a necessity of new granting and confirming those Liberties and consequently of reducing them into Writing which there was not before and that is the true reason why Magna Charta and other Statutes made in the time of Henry the III. Ed. the I. and divers others of their Successors were made either for their explanation or ratification according as occasion requir'd and as several Princes had more or less violated these fundamental Laws of the Government for before they had so done there was no need of the Parliaments making or declaring any law about it But if the King would have but read and considered the Articles exhibited in Parliament against Edward and Richard the II. he might easily have seen the Laws altogether that will make a Prince to be declared by his Subjects to have forfeited his Crown But that King Iames had before his desertion endeavour'd to extirpate the Protestant Religion the Laws and Liberties of the Nation appears by those several Articles the Convention has given us in their late Declaration which they presented to King William upon their declaring him and his Princess K. and Queen of England to which I shall refer you since it is commonly to be had you know it consists in the recital of divers things the violation of which has been always counted in all Kings Reigns a breach of the Original Contract I come now to the last Clause save one you except against viz. That having withdrawn himself out of the Kingdom hath Abdicated the Government Now your main argument against it is that the Kings desertion of the Government being only for fear of his life or of being depos'd from his Royal Dignity could not by his going away be said to Abdicate or renounce the Crown since he went away with an intention to return and repossess it as soon as with safety he might to which before I make any answer I must freely own that were this the case as you have put it I think there would be no great dispute in it since I grant that a King who is thus forc'd to fly for fear of his life ought not to have any such injustice put upon him but if you please better to consider it the case was quite otherwise for I have already proved that when King Iames I. went away he had then an Army about him was free and in his own Pallace and was at that time in actual Treaty with the Prince nor had London nor any considerable strong place in England then surrender'd it self to the Prince so that if there was any necessity for his departure but what he had brought upon himself by his refusing to call a Parliament burning the Writs and sending away the Queen and Child together with the main instrument of Government the Great Seal of England this must certainly be looked upon
Parliament for as to Queen Mary it is plain that at her coming to the Crown she could not be looked upon as Heir by right of blood because by the Statute of the 25 th of Henry the VIII th his Marriage with Queen Catherine her Mother was declar'd unlawful and the Crown setled upon the King and the Heirs of his Body lawfully begotten on Queen Anne Bullen and besides all this she was but Sister by the half blood to King Edward the VI th and so could not inherit as heir to him and though in the first year of her Reign the Parliament t is true took off her illegitimation and repeal'd the Acts of the 25 th and 28 th of Henry VIII whereby she was declar'd illegitimate yet in this the Parliament seems rather to provide for the honour of her descent than as you would have it to declare her Succession to be Inheritance by right of blood because the Statute of the 35 th of Henry the VIII th whereby the Crown was setled upon Prince Edward and the Heirs of his Body the remainder upon the Ladys Mary and Elizabeth and whereby the King had also power given him of disposing the Crown by Letters Patents or by Will was not at all repeal'd and for which a memorable Reason is given in both these Acts least if such Heirs should fail and no provision made in the King's Life who should Rule and Govern this Realm for lack of such Heirs that then this Realm should be destitute of a Lawful Governour whereby it seems plain that the Parliament then esteemed no Heirs to have a Right by Law farther than had been declar'd by these Statutes So likewise for Queen Elizabeth her Title was more apparently by Act of Parliament and that she looked upon her self sufficient to have succeeded by vertue of the limitation of the Statute of the 35 th of Henry the Eighth last mention'd appears in that she never procured her Mothers Marriage to be declared good and consequently her own illegitimation to be taken off so that take it which way you will it is certain that either Queen Mary's or Queen Elizabeths Title must have been only by Act of Parliament since she was born whilst Queen Catherine King Henry's first Wife was living and therefore when the Parliament you mention in the first Year of Queen Elizabeth declar'd that she was Rightly Lawfully and Lineally descended and come of the blood Royal of this Realm yet these words can only be understood of such a lineal and lawful descent as is here declar'd to be so by vertue of this as well as the former Statute and not according to any hereditary descent at Common-Law since it is very well known that as long as the Popes dispensation for King Henrys Marriage with the Princess Catherine his Brothers Wife was allowed for good as it was till the latter end of Henry the VII ths and all the first 25 years of Henry the VIII ths Reign the Princess Mary was looked upon as the only presumptive Heiress of the Crown this I tell you not to invalidate Queen Elizabeths Title but to let you see that Acts of Parliament if they declare that which is apparently false in matter of Law or Fact are not to be credited unless you will give them more power than God himself who cannot as all Divines agree make that to have been done which was never done or that not to have been done which hath once come to pass I come now in the last place to examine the Act of Recognition of King Iames the Firsts Title to the Crown which I will not dispute to have been by right of blood since none of the descendants of King Henry the VII th could have any Title before him for though it is true it was otherwise ordain'd by King Henry the VIII ths Will yet that as you your self show was not only cancell'd in Queen Marys time but was also void in it self for whereas by the Statute of the 35 th of Henry the VIII th there was a power given him to dispose of the Crown either by his Letters Parents or else by his last Will Signed with his Hand yet was this power never legally executed for those that have argued against this Will have told us that he never Sign'd it in his life time but that a stamp of his Name was put thereunto after his decease as most manifestly appeared by open declaration made in Parliament of this matter by the Lord Paget and others that King Henry did never Sign it with his own Hand as was also proved by the Pardon obtain'd for one William Clerke for puting the Stamp unto the said Will after the King was departed So that though I grant that King Iames had a very good Title to the Crown of England by Inheritance yet whether it was from King Henry the VII th alone or from Queen Elizabeth his Wife is not there declar'd only that he was lawfully descended of Lady Margaret Eldest Daughter to King Henry the VII th and Queen Elizabeth his Wife Eldest Daughter of King Edward the IV th and therefore that they are bound both by the Laws of God and Man to Recognize his Majesty as sole Heir of the blood Royal of this Realm all which is so far true if by Gods Law and Mans Law you will thereby understand such Laws as God impowers the King and Parliament to make for otherwise there is no more heed to be taken of this Declaration than that which was made before to Richard the III d which also declared him to have a good Title to the Crown by the Laws of God and Nature and the Laws and Customs of this Realm So that I see nothing in all this Act of Recognition that at all contradicts my notion that King Iames's Title is wholly derived from the Act of Settlement made on King Henry the VII th from whom he was lineally descended so that though his Pedigree be also derived from Queen Elizabeth Eldest Daughter to King Edward the IV th yet this was only ex abundanti to show that he had every way a Title to the Crown and if she her self had any Title it was wholly by vertue of those Acts of Parliament of the 39 th of Henry the VI th and 1 st of Edward the IV th which vested the Crown in Richard Duke of York and King Edward the IV th his Son and which last Act first declar'd that the three Henrys of the House of Lancaster were only Kings in deed and not of right for before that time I defie you to show me in all our Histories or Law-books any such distinction In all foregoing times he that was solemnly Annointed and Crown'd King in Deed was also looked upon so to be in point of right and therefore let those Statutes you so much insist upon talk never so much of any Kings being so by any fundamental hereditary right precedent to and independent from
spend our dearest blood in the defence of our Sovereigns Person and the preservation of his Crown and Dignity For it is to be observed that by the Law this Allegiance is due to the Kings Person so the same Author says it was then resolved by all the Judges that that Ligeance was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural and not due to the politick capacity only To conclude if my former Oath of Allegiance to King Iames doth still continue as I am satisfied in my Conscience it doth I cannot take a new Oath of Allegiance to King William and Queen Mary since I should thereby be obliged by the force of these words in the Oath viz. I will be faithful and bear true Allegiance to yield it as much to those that are not my Lawful Sovereigns as I am to those that are so which will be contrary to my first engagement for though I grant that there is no express Declaration of the Right of the present Possessors of the Throne and that I have heard that the word rightfull which was at first inserted into this Oath was struck out because as many as could be might be drawn in to take it yet as long as the words that remain import the very same thing it is all one as if the word rightfull were there for though the deliberate omission of the word rightfull does necessarily infer that we are not obliged in this Oath to a recognition of their right to the Crown yet it does not infer that we are not obliged to pay as high a degree of Allegiance as to any rightful King whatsoever that omission indeed is an Argument that the word King in the Oath does not necessarily signifie a King de jure but it is no argument that true allegiance does not signifie true Allegiance that is an obligation to adhere to the King against all his Enemies for there was no debate that we know of about the sense of the word Allegiance neither is there the least intimation given that they design'd to restrain it to a lower signification though it was plainly necessary to do it if they intended to alter the commonly received meaning of it wherefore as the striking out of the word rightfull would not have proved that they did not intend to oblige us to an active assistance of King William against all men living if those words had been expresly inserted in the Oath so neither will it prove that the same duty is not now required of us if the word Allegiance do as I have proved in terminis import it and that as fully as if it had been in express words requir'd in it And that this word Allegiance implies something more than a bare passive submission or neutrality from all Subjects as well as Magistrates and Officers appears by that passage in the Statute of the 11th of Henry the VIIth which you have now cited where 't is plainly and expresly declared that every Subject by the duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all seasons when need shall require this is so express and authentick a Declaration of the true duty of Allegiance that no Art or Sophistry can possibly evade it F. I confess you have argued this point of taking this new Oath of Allegiance not only like a Civilian but a common Lawyer also and I cannot deny the force of what you have said that this Oath must extend to an active obedience and defence of their present Majesties in their right to the Throne and not only to a bare sluggish submission or a luke-warm Neutrality And therefore I cannot say but you are justly scrupulous in not taking this new Oath untill you are satisfied of their Majesties Right as well as present Power but if you will please to observe the purport of this Act of the 11th of Henry the VIIth which you now mention'd you will there find it as good as expresly declar'd that Allegiance is due to him who is lawful Sovereign and the King for the time being is still to be looked upon as such for the words in the Statute are that no Man shall suffe for assisting the King for the time being without specifying by what Title he holds the Crown whether by an hereditary Right or by Conquest Election or the solemn recognition of his Title by all the Estates in Parliament so that by this Act all that Allegiance that was once due to the former King de Iure becomes thereby wholly transfer'd to the King de facto M. I grant what you now say would go a great way to satisfie me could you once prove that this Statute is now in force and is not now either abrogated or expired or else which I rather incline to believe is not absolutely void in it self In the first place therefore I hope to shew you that this was not Law before this Statute was made and therefore not declaratory of what was Law but endeavours to make that to be Law which was not so before so that the King for the time being there mention'd must be a King de jure or at least one that was presumed such because at that time the Constitution knew no other for that Possession was not a sufficient Title before the 11th of Henry the VIIth will evidently appear from these following Remarks First that all the Kings of the House of Lancaster are declared in the Statute of the first of Edward the IVth to be Kings in Deed but not of Right and pretended Kings and particularly Henry the VIth is said to be rightfully amoved from the Government and his Reign affirmed to be Intrusion and Usurpation and himself Attainted for being in Arms against Edward the IVth Secondly all Patents of Honour Charters and Priviledges which were granted by the House of Lancaster all Acts of Royal Authority which the Kings of England have a right to execute by vertue of their sole Prerogative nay Acts of Parliament themselves particularly those relating to Shrewsbury and some others which by parity of Reason supposes the rest in the same Condition all Acts of this nature were confirmed by the first of Edward the IVth which is a good Argument that this Parliament believed the Authority by which they were performed to be defective and illegal for we never find any such general confirmation as these pass upon the grants of the King de jure Thirdly in the first year of Henry the VIIth Richard the IIId was Attainted of High Treason in Parliament under the the name of Duke of Gloucester from whence 't is plain that as there was no Statute so neither was there any Common Law to support the Title of a King de facto for Treason is an attempt against the Kings Person his Crown and Dignity but no Man can commit Treason
an Act of Parliament which is made indefinitely without fixing it to any time or person the words in the Act are the King for the time being which must certainly extend to any other King as well as Henry the VIIth for I suppose that an Act of Parliament and a Deed agreed in this that an unnecessary Clause can by no means render the whole void But as for what you say in relation to this Acts being a security for the Title of the Queen and her Children whom you suppose to be the right Heirs of the Crown this rather serves to strengthen the Act than otherwise for if this King had a good Title in her right then it may be also very well suppos'd that she gave her assent to this Act in the person of her Husband and that not for the benefit but to the prejudice of her own Issue since if after her death which happen'd some years before his her Son Henry Prince of Wales had set up his present Title to the Crown in the right of his Mother and so would have dethron'd his Father as an Usurper I suppose no reasonable Man will deny but that this Act would have indemnified all those who had taken up Arms in defence of King Henry the VIIth against his Son though in your sence King de jure and if it would justifie the Subjects then I cannot see why it may not do the same thing now in their swearing Allegiance nay fighting for the King in possession against him whom we will for the present suppose to be King de jure M. Well however I think I can prove that this Act was no more than temporary from the judgement of the Judges in the Case of Iohn Duke of Northumberland who when he was Tryed for Treason for leading an Army against Queen Mary to settle the Lady Iane Gray in the Throne desired to be informed by the Judges whether a man acting by the Authority of the Great Seal and the Order of the Privy Council or Princes Council as Stow and Heylin word it could become thereby guilty of Treason to which all the Judges answer'd that the Great Seal of one that was not lawful Queen could give no Authority or Indemnity to those that acted by such a Warrant upon which the Duke submitted though without question he did not want Lawyers to inforce his Plea with this Statute likewise if his cause would have born it from whence I infer against Sir Edward Coke that Treason lies against a King de jure tho' out of possession for it 's plain by all our Historians that Queen Mary was so far from being possessed of the Crown when the Duke of Northumberland acted against her that the Lady Iane was not only Proclaimed Queen in London and most of all the Cities and Great Towns in England but the Tower of London with all the Forts and Naval Forces were under her Command and she had also Allegiance sworn to her by the Privy-Council and by the Lord Mayor and Aldermen and she had also the Seals in her power by which all Patents and Commissions were granted and issued in her Name and if all this be not sufficient to constitute her Queen de facto according to this Statute of Henry the VIIth I know not what was F. Yet I can tell you what was yet wanting which because she had not she was certainly neither Queen de jure nor de facto and that was a solemn Coronation and Recognition of her Right by Parliament which legal investiture since she never had she was not the Queen for the time being and consequently not intended within this Statute of the 11th of Henry the VIIth for though it is true she was appointed Successour of the Crown-by the Letters Patents of King Edward the VIth yet since she could not claim by right of blood there being so many before her all the Kingdom looked upon it as an Usurpation and an artifice of the Duke of Northumberland whose Son she had Married to get the Government of the Kingdom into his sole power so that it was no wonder if the greater part of the People were so averse to her Title and that those of the Nobility who took her part so quickly revolted from her when once the fear they were in of the Duke of Northumberland's power was removed for had this Bequest of the Crown to the Lady Iane held good this Kingdom instead of being Hereditary would have become wholly Testamentary and disposable by the last Will or Letters Patents of the King or Queen for the time being without the consent of the Great Council of the Nation which is contrary not only to the then receiv'd Laws of Succession but also to the antient constitution of the Kingdom as well before as after the Conquest But notwithstanding all this I doubt not but that if the Lady Iane had so far prevail'd against Queen Mary as to have been able to call a Parliament and to have had her Title own'd and recogniz'd therein as it was in the Case of Richard the Third and Henry the Seventh but that she would have been true and lawful Queen according to the intent of the Statute we are now discoursing of and then the Duke of Northumberland must likewise if he had fair play have been indemnified for taking up Arms in her defence against Queen Mary since Queen Iane would have been then within the letter of this Statute as much as King Henry the Seventh himself M. You must pardon me if I cannot be of your opinion in this matter since if the bare Coronation and recognition by Parliament could confer a legal right to the Crown upon one who had no hereditary right to it before the consequence of it would be that the Crown would be so far from being Elective as you suppose it to have antiently been that it would be in the power of every bold Usurper or Rebell who had but the confidence to call himself King to gain a legal Title to be so according to your Principles and then if Oliver Cromwell could have found a Party strong enough in the Army to have declar'd him King and had call'd a Parliament in his own name who had recogniz'd him for their Lawful Sovereign he would then have had as much right to our Allegiance as King Charles the IId which certainly was not only contrary to the settlement of the Crown upon Henry the VIIth and the Heirs of his body but also to that solemn recognition of King Iames the Firsts Title as lineally descended as right Heir to the said King Henry which I insisted on at our last Meeting And therefore if you will have my sence of this Act it is either expir'd for the reasons I have already given or else was void ab initio since it is not only contrary to the setled course of Succession of the Crown according to the Laws of lineal descent for divers hundred years last past but
Nation as I have already sufficiently made out And therefore though I grant that all Legal Authority ought still to go according to just or rightful Titles yet since God makes no Kings at this day â—ut those who are made Kings by some humane Acts and have a legal right to Kingship by some humane Laws Now how can you prove from hence that in England none can have a legal right to govern but those who have the rightful Title of a Lineal Succession for if the Title alone does not conferr the the Authority but that the Law says a legal investiture by Coronation and Recognition by Parliament shall also conferr it it is evident that an Hereditary Title and a Legal Authority may be separated and yet the Authority continue Legal still for Legal Authority must be conveyed in such manner and by such forms as the Law has prescribed or appoints to that purpose for there is no other way of conveying it and then that Authority which is so given in form of Law and that only is the Legal Authority If then the Estates of the Realm who are the only proper Judges of such Disputes have adjudged the Crown to one whom we will at present suppose to have no antecedent legal Title to it yet he thereby becomes legally possessed not only of the external force and power but of the legal Authority of the Government also and therefore he may challenge as his due all Legal Obedience which is the true notion of Allegiance for nothing more than Legal Obedience can be due to a meer Legal Authority so that because he is invested with the Legal Authority the Crown is his Legal Property against all other Claims and his Subjects must defend him in it as the Legal Properties of private Persons being once determined by Judgements of inferiour Courts of Law are also to be defended by the Civil Power against the force of him who perhaps may have the better Title to the Estate by right of blood And if God makes Kings by humane Acts I hope it is no injustice in God to make him a King whom the Law makes a King and to enjoyn our Obedience to a Legal King which Legal Authority may be said to be annexed to the Legal Title while there is no Legal Judgement against it which was not the Case of Queen Mary and the Lady Iane her Competitor nor yet of King Charles the Second and Oliver Cromwell since neither the one ' or the other were ever Crowned or acknowledged as Lawful Queen or King by Parliament and therefore could obtain no Legal Title against the Right Heirs but on the other side when one is solemnly declar'd King or Queen being Crown'd or plac'd on the Throne by the Estates of the Realm he is then Legal King and has the Legal Authority as the Royal Estate and Dignity was owned to be in Henry the VIth when the Duke of York claimed the right to the Crown M. I am not yet convinc'd I am mistaken in this matter for waving at present any Natural or Divine Rights of Princes I think this Act of Henry the VIIth if suppos'd to be now in force is no ways to be reconcil'd with the former declar'd Laws and Statutes of the Kingdom much less can this last pretended Act of Recognition of King William and Queen Mary reverse the Statute of Recognition made to King Iames the First whereby the Parliament does not only own him for true and lawful King by descent from Henry the VIIth and Edward the IVth but also engaged themselves and their Posterities to his Majesty and his Royal Progeny for ever And they do likewise conclude in these words I have not yet mention'd which Act if Your Majesty shall be pleased as an argument of your gracious acceptation to adorn with your Majesties Royal Assent without which it can neither be compleat and perfect nor remain to all Posterity according to our most humble desires as a Memorial of your Princely and tender affection towards us we shall add this also to the rest of our Majesties unspeakable and inestimable benefits Here they plainly acknowledge these two things First that the Crown descendâ— by proximity of blood and that immediately even before any Ceremony of Coronation or otherwise so that there can be no inter-regnum or vacancy of the Throne and accordingly it is a maxim in Law that Rex non meritur Secondly That the Assent of the King is that which gives the life being and vigour to the Laws without which they are of no force therefore I shall plainly prove these Acts to the contrary to be void It is a Maxim in our Civil as well as your common Law ' that every Sâ—natus-Consultum or Decree of the Senate as also every Statute or Act of Parliament must be abrogated and repeal'd by the same Authority by which it was made since therefore that Act of the first of Edward the IVth whereby he was declar'd to be Lawful King as descended from Lâ—â—nel Duke of Clarence third Son of Edward the Third by Philippa his Daughter and Heir and that Henry the Fourth and Henry the Sixth who had successively held the Crown were Usurpers and only pretended Kings it would necessarily follow that none can after this so Solemn Law and Declaration lawfully succeed to the Crown of this Realm but such as have a true and just right as Heirs by blood according to the course of descent allow'd of by the common Laws of this Kingdom and therefore Henry the VIIth being an Usurper and enjoying no more than a Matrimonial Crown could not joyn with a Parliament in making any Law contrary to that of the first of Edward the IVth which had been so solemnly past and setled in Parliament by a King whose Title was by descent indisputable So likewise in the matter now in dispute between us I can never apprehend how a pretended Statute made in a Convention and not in a Lawful Parliament summon'd by the King can first declare the Throne vacant and then appoint those to fill it who certainly can have no just Title to it according to that Act of Recognition of King Iames which expresly declares that they themselves could not have made that Act to be compleat and perfect to remain to all posterity without his Royal Assent which being once past into a Law by a King whose Title was indisputable can never afterwards be alter'd if ever it can be at all but by a Parliament as legally call'd and that by a King whose Title is also as Legal as that of King Iames the First 's this Objection though I have often urg'd in other words yet could I never yet obtain a satisfactory answer from you F. Though I have already in part answer'd this Objection at our last Meeting and have also partly done it already in this yet since I see you so much insist upon it and do also urge it again in other words with a fresh