particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
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
usurped by any other so that any other man can become my Father or I owe him that Filial Duty and Respect as to him that begot me and brought me up And tho' I grant that God may confer a Regal Power on whom he pleases either by his express Will or the ordinary course of his Providence yet when such a person who was not a King before doth become so I utterly deny that the Power he hath then conferred upon him is a Paternal Power in relation to his Subjects which is evident from your own Instance of Saul's becoming a King over his Father Kish For tho' you say that God then conferred a Fatherly Power on Saul over his own Father this is a great mistake For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude which he owed his Father and they were all transferred from Kish to Saul so that after he became King he might have treated his Father with no more Respect or Deference than any other Subject which is contrary to God's Commandment that bids all Men Honour their Father and Mother And I know not how Kings can be excepted out of this Precept So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power And because Adam Noah or any other Father of a separate Family may be a Prince over it in the State of Nature that therefore every Monarch in the World is also endued with this Paternal Power Which that they are distinct may farther appear from your own supposed Monarchical Power of Adam who tho' granting him to have been a Prince over his Posterity yet did not this discharge any of his Descendants from their Duty and Obedience to their own Father And tho' I confess you talked at our last meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam yet this is a meer Chimera for Filial Honour and Obedience being due by the Commandment only to a Man 's own Natural Father can never be due to two different persons at once since they may command contradictory things and then the Commandment of Honour that is obey thy Father cannot be observed in respect of both of them and therefore granting Adam or Noah to have exercised a Monarchical Power over their Children and Descendants it could not be as they were Fathers or Grand-fathers when their Sons or Grand-children were separated from them and were Heads of Families of their own for the reasons already given so that if they were Princes in their own Families whilst their Sons or Grand-children continued part of them it was only as Heads or Masters of their own Families but not by any such Patriarchal or Paternal Authority as you suppose But as for the Conclusion of your Discourse it being all built upon this false Foundation that all Power on Earth is derived or usurped from the Fatherly Power I need say no more to it For if that be false all that you argue from thence concerning the subordination of all other Powers to this will signifie nothing M. I think I can yet make out my Hypothesis notwithstanding all you have said against it For tho' I grant the Paternal Relation it self can never be usurped or transferred yet you may remember I at first affirmed that Adam was not only a Father but a King and Lord over his Family and a Son a Subject a Servant or a Slave were one and the same thing at first and the Father had power to dispose of sell or Alien his Children to any other whence we find the Sale and Gift of Children to have been much in use in the beginning of the World when Men had their Servants for a Possession and an Inheritance as well as other goods whereupon we find the Power of Castrating or making Eunuchs much in use in old times And as the Power of the Father may be lawfully transferred or aliened so it may be unjustly usurped And tho' I confess no Father or Master of a Family ought to use his Children thus Cruelly and Severely and that he sins mortally if he doth so yet neither they nor any Power under Heaven can call such an Independant Father or Monarch to an account or punish him for so doing F. I am glad at last we are come to an Issue of this doughty controversie and tho I forced you at our last meeting to confess that Fatherly Power was not despotical nor that Fathers upon any account Whatsoever were absolute Lords over their Children and all their Descendants in the State of Nature Yet now I see to preserve your Hypothesis You are fain to recur to this Despotical Power of Fathers in the State of Nature Because without supposing it and that it may be transferred or usurped Princes at this day whom without any cause you suppose to be endued with this Paternal Despotick Power could never claim any Title to their Subjects Allegiance And then much good may do you with your and Sr. R F's excellent discovery For if as you your self acknowledge Princes are no longer related in Blood to their Subjects any nearer than as we all proceed from Adam our Common Ancestor that relation being now so remote signifies little or nothing so that the true Paternal Authority being lost as you confess the Despotick Power of a Lord over his Servants or his Slaves only remains since therefore you make no difference in Nature between Subjects and Slaves then all Subjects Lye at the mercy of their Kings to be treated in all things like Slaves when ever they please And they may exercise an absolute Despotick Power over their Lives and Estates as they think fit So that I can see nothing that can hinder them from selling their Subjects or castrating them as the King of Mingrâ—lia doth his Subjects at this day and as the Great Turk and Persian Monarchs do use those Christian Children whom they take away from their Parents to make Eunuchs for their Sâ—raglio's and then I think you have brought Mankind to a very fine pass to be all created for the Will and Lust of so many single Men which if it ever could be the Ordinance of God I leave it to your self to judge M. I was prepared for this objection before and therefore I think it will make nothing against this Absolute Power with which I suppose God to have endued Adam and all other Monarchs at the first So that I am so far from thinking that this Doctrine will teach Princes Cruelty towards their Subjects that on the contrary nothing can better inculcate their Duty towards them For as God is the Author of a Paternal Monarchy so he is the Author of no other He introduced all but the first Man into the World under the Subjection of a Supream Father and by so doing hath shewn that he never intended there should be any other Power in the World and whatever Authority shall be
the Power of any thing 1 Cor. 6.12 must signifie force and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 must signifie Authority and Dignity thus Ephes. 1.21 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which are several Names and degrees of Dignity and Authority as well as Power And in the second place you do much more mistake when you suppose by this word Powers to be meant only the true or just Exercise of Civil Authority whereas the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the persons themselves who exercise Authority and Dominion the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Rulers v. 3. the Ministers of God which bear the Sword v. 4. in St. Peter the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the King and his Governours and Magistrates 1. Pet. Ch. 2. v. 13 14. And therefore Imust tell you you do very ill to separate the Power or Authority from the Persons instructed with it But suppose I should grant you that this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doth here signifie the Exercise of Authority yet doth it not signifie the Right and lawful use of this Power but the Right to Exercise this Authority whether well or ill 't is all one as to the Submission due to it because no Resistance can be lawful for want of a superiour Iurisdiction over it The truth of this is evident from Iohn 19.10 11. Pilate says to Jesus Knowest thou not that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I have Power to crucifie thee and have Power to release thee Jesus grants it and answers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Thou couldest have no Power against me except it were given thee from above And therefore I shall reduce your Argument into the form of a Syllogism that you may more plainly see the absurdity of it Powers not ordained by God may be resisted without danger of Damnation But Powers used Tyrannically are not ordained of God Therefore we are not forbidden to resist them In this Syllogism the Minor is not true for though Tyranny be not the Ordinance of God yet the Power or Authority of which this Tyranny is but an abuse is of Divine Institution For though the Supream Power is commanded to rule justly yet is it withal enabled to act otherwise for the good or ill use of it is left indifferent in respect of the Subjects subjection though not of the Magistrates commanding or acting Power so that the abuse of this Power doth not make void the Authority though acting contrary to the Laws of God or Nature The Obligation not to resist the Supream Powers receiving not any Validity from their Justice nor is it weakened or annulled by their violence or injustice Saul was God's anointed and Pilate had his Authority from above notwithstanding their high abuse of it So that upon the whole matter I incline to believe that the reason which made St. Paul call the Magistrates by the abstract Powers was this He wrote to Christians living in the Roman Empire and it was the Custom of the Latin Tongue to call Persons endued witâ— Power Potestates You may observe it in Ulpiâ—n L quid sit D. de Aedil edict § 19. And in Augustine Epist. 48. who says sive Potestâ—s veritati savens aliquem corrigat laudem habet ex illo qui fuerit emendatus sive inimica veritati in aliquem saeviat laudem habet ex illo qui fuerit Coâ—natus and mark that Potestâ—s inimica veritati must needs signifie a Man abusing his Authority And in Iâ—venal we read An Fidenarum Gabirunque esse Potestas Aâ—d in Suetonius Iurisdictionem de siâ—ei commissis 〈…〉 tanâ—um in urbe deligari Mâ—gistratibus solitam in perpetuum atque etiam per Provincias Potestatibus delegavit The modern Languages Italian and French which were bred out of the Latin retain this antient way of speaking for potestat in old French and podesta in Italian express not the Function only but the Person who manages it Thus anciently the Latin word for the Chief Iustice was Iustitia as you may find in Glanvil Lib. 2. Cap. 6. and Roger Hoveden's Annals so our King is called in the abstract Majesty as the Graecian Emperours 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Many dangerous Consequences flow from thence but I desire not to make sport with that unhappy distinction which had almost ruined as flourishing and strongly temper'd a Kingdom as any in the Christian World It exposes Magistrates and all in Authority to the 〈…〉 and Injuries of the basest sort of People for when discontented it is very obvious for them to tell them tho' Reverence is indeed due to theâ— Function yet that setting their Office aside they will take the liberty only to kick their Persons and that the Magistrate is not at all affronted though the Man be soundly beaten Indeed it is against common sense to put such a difference between the Person and the Authority of Kings for if it were real neither God nor the Laws of the Land have made any Provision for the King's safety for his Authority is not capable of receiving any benefit and therefore it must be acknowledged by all sober and reasonable men that this Authority doth but convey such and such Priviledges upon the Person who only can be sensible of them and consequently whatever is attempted againâ—t his Person is attempted against his Authority likewise F. I doubt you will have no better luck in Criticisms than my seâ—f and that they will do your cause as little good for if there be no difference in the Scripture between 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as you affirm and that both of them signifie not the Authority alone but the Persons endued with it and that they are all from God then Tyrants and Usurters are ordained likewise by God and consequently Oliver Cromwâ—ll was as much the Ordinance of God as King Charles and if this be your Doctrine much goâ—d may it do you But pray keep it to your self lest iâ— your Friends the Old Cavaliers come to know it they will quite banish you their Company besides I can shew you other Consequences that will follow from it which I have not now a Mind to urge but may hereafter for I have no Mind to enter into that troublesome debate any more for I told you enough of my Mind concerning it the last time we met save one But since you will needs have these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not to signifie Powers or Authorities but the Persons themselves you shall have your will for once only I pray now Answer me one short Question when for Example Charles the sixth King of France fell mad and would have killed his Servants by what Authority did they distinguish and separate between his Person and his Power and thought that they might very well resist and bind the one without any Diminution to the other Or by what Right did the Portugueses seize and imprison their late King and make
lawfully have taken up Arms against the Government because they were deprived of their Lives and â—â—rtâ—inâ—s against all Equity and Humanity For to persecute men so remarkably Regular and Peaceable both in their Principles and Practises is as manifest a Violation of the Law of Nature as is possible And if it was Lawful for them to Resist then they seem bound in Conscience to do it whenever they had a Probability of prevailing For without doubt it 's a great fault for a Man to throw away his Life impoverish his Family and encourage Tyranny when he hath a fair remedy at hand F. If you had a little better remembred what I have already said on this Subject you might have spared these Objections for as to the first of them it is rather a Logical Fallacy than a true Answer For in the first place I have all along Asserted that no Man ought to give up his Right of self defence but in order to a greater good viz. the publick Peace and Preservation of the Common-wealth And therefore Dr. Fern and others of your Opinion do acknowledge that David might have made use of defensive Arms to defend himself against those Cut-throats that Saul send to take away his Life tho' he might not have Resisted Saul's own person and you your self have already granted that no Man can want Authority to defend his Life against him that hath no Authority to take it away So that if this Law of Self-defence is sometimes suspended it is onely in Submission to a Higher Law of preserving the publick Peace of the Common wealth or Civil Society which being once brâ—ken and gone by a general Violence upon all mens Lives Liberties and Properties of that Nation or Kingdom that Obligation of maintaining the publick Peace being taken away every Man 's natural Right of not only defending himself but his innocent Neighbour again takes place And therefore your Logical Maxim that nothing can be affirmed of Individuals which may not be affirmed of the whole Species signifyeth nothing in this Matter for every Individual had before potentially a Right of Self-defence tho they were under an Obligation not to reduce it into Act till the Bonds of that Civil Society were dissolved and then it is true they do not then Resist to maintain that Civil Government which is already gone but to get out of a State of Nature and set up a New one as soon as they can But as to your second Objection which I confess hath more weight in it than the former I shall make this Answer that you your self have given a sufficient Reason why a whole Nation or Church that professes the Christian Religion cannot be destroyed by all the Malice and Persecution that can fall upon it by Persecuting Monarchs for you tell us that it is the special Priviledge of the Christian Church above the rest of Mankind that they are God's peculiar Care and Charge and that he doth not permit any suffering or Persecutions to befal them but what he himself orders and appoints And that it is a great Happiness to have our Condition immediately alloted by God So that it seems it cannot be in the Power of the Cruellest Tyrant utterly to destroy Christianity in any Country where it is truly taught by all the Persecution that he can use This was the State of Christian Religion whilst it was in its Infancy and in which we may observe more particular Declarations of God's Providence by Miracles and the Divine Inspirations of his Holy Spirit than after it was grown up and that all the World became Christians In its Infancy 't is plain that Princes could not destroy it because it was supported by Miracles and supernatural Means but in the other State when Christianity was once grown up settled and able to shift for it self by being made the Religion of the Empire and the greatest part of Mankind embracing it in those and other Countries Princes then could not destroy it if they would because their Subjects had then a Right to it and a Property in it as much as they had to any thing else they enjoyed and consequently might be preserved by the same Human Means Thus during the State of the Iewish Church in the Wilderness and for some time in the Land of Canaan we find the Children of Israel fed and delivered from their Enemies by Miracles But after they had been long settled in it and had Renounced the Immediate Government of God they were then left to preserve themselves by the same natural means with other Nations And tho' I grant that such Persecutions when ever they fall out are very Prâ—judicial to the Peace and Happiness of those Nations that labour under them Yet this is no sufficient Reason against Paâ—ient-suffering for Religion without Resistance For since our Saviour is the Author of our Salvation and hath ordained that it-shall be propagated not by Force or Resistance but by Sufferings and that he hath promised us an Eternal Weight of Glory for our submitting our Wills and Natural Affections to his Divine Commands it is not for us to dispute the Reason of it since that he who pleased to bestow upon us so great a Benefit without our Desert might propose it to us upon what Conditions he pleased tho' never so hard to be performed Yet is this to be so understood as that this Suffering for the Testimony of Christ may serve for that great End for which he ordained it viz. the Propagation of his own true Religion by our beaâ—ing Testimony to it in our couragious and patient Suffering which in a Kingdom or Nation where Christianity or any true Prosession of it is become the general and Naâ—â—onal Religion cannot now be supposed to be necessaâ—y And this may serve also for an Answer to your last Reply For tho' I own that the Municipal Laws of Common wealths cannot abrogate any of our Natural Rights but only in order to some greater good or Benefit tending thereunto yet certainly the Revealed Law of God may and doth in some Case abridge us of divers of those Rights which Men by the Law of Nature might have made use of But as for your Quotation out of Tertullian tho I have good Reason to question the very matter of Fact since I can hardly believe that how numerous soever the Christians might be or whatever mischief they might have done privately by setting the City on fire in the Night time which he also mentions a little before as one of the ways by which they might have revenged themselves Yet do I not think that they were then either for Strength or Number sufficient to have made any Considerable Resistance if they would against the Pretorian Bands and other standing Legions which were then if not all yet for the greatest part Heathens The most part of the Christians of those times consisting of the meaner and mechanical Sort of People altogether undisciplined and unarmed and so perhaps
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâ—ians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members 〈◊〉 I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbâ—â—s de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entâ—n Sanctus 〈◊〉 praedicavit docuâ—t haec concessa sunt a Rege Baronibus Populo So that it Populus â—ere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâ—â—â— understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ— Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona â—â—am Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
which all the Lands in England were liable to as well after as before your Conquest Nor will the 58 th Law make more for you for tho it â—â—ly says that all Earls Barons Knights and their Servitors or Esquires and all Freemen of the Kingdom shall always be fitted with Horses and Arms as they â—â—ought to be and which they ought to do according to and by reason of their â—ees and Tenures Now it is plain that this Law cannot extend to the Less 〈◊〉 Capite only since they according to your own sense are comprehended â—â—eder the Word Milites and their Servientes which seems to mean their Feudataâ—y Tenants are as much tyed by this Law to find Horses and Arms as the Tâ—â—ants in capite themselves So that whereas the Law says expresly Uniâ—â—rsi Liberi â—â—mines totius Regni it should have been to make good your sense Universâ— Libeâ—â— Homines qui de Rege Tenant in capite And as for the other Freemen who were â—f lesser Estates than to find Horses they were to be ready with such Arms as beâ—â—ed their Condition as we see it explained by the Assize of Arms of Henry II. which I have now cited so that this Law of King VVilliam is not to be taken in 〈◊〉 sense you put upon it That all the true Freemen of the Kingdom were obliged to be ready with Horses and Arms as if none were Freemen that did not but referring the Words Horses and Arms to those who were to â—ind both and the Word Arms to those Freemen who were only obliged to keep Arms â—it for Footâ—en which sense the words will very well bear tho expressed generally and concisely according to the Mode of those times which abhor'd more Words than â—eeds And if these Laws will not prove what you bring them for much less till the last you have cited For if the Words Omneâ— Liberâ— Homines totius Monarâ—â— in the First Law who were to take an Oath of Fidelity to the King must â—â—tend to all the Freemen of England as certainly it did all Freemen being aâ—â—e obliged to be sworn in the Court Leer and County Court so must this too 〈◊〉 Title being that Omnes subditi all the Subjects should endeavour to mainâ—â—in the King's Rights with all their Power And tho I grant that Subditi here are the same with Liberi Homines in the first Law yet since by that Law all Freemen were to take the Oath of Fidelity to the King these must be also the very same Freemen who were to be sworn Brothers to defend the Kingdom according to their Power and Estates So that all that you have said to prove your Tenants by Knights Service in capite to be the only Freemen that served oâ— Juries c. being built upon a false Interpretation of these Laws of King VVilliam are but the meer Fancies and Imaginations of the Author from whom you borrowed them But taking the Words Liberi Homines in the strictest sense and as they are is the Magna Charta of King Iohn and H. III. Chap. 14. where it is ordained that Liber Homo non amercietur pro parvo delicto nisi secundum modum illius delicti salvâ—â—h contenemento suo mercatar eodem modo salva marchandiza villanus salvâ— VVâ—nagio Upon which Words Sir Edward Coke in his 2 d. Inst. observes that 〈◊〉 Homo is here meant such a one as enjoys a Franc Tenement that is any sort of Freeâ—â— hold But pray go on to prove by some plainer Authorities that the Arch-Bishopâ— Bishops and Abbots c. together with the Earls Barons and other Tenents in capita were the only Council of the Kingdom for the assessing of Taxes and making Laws in the Times immediately succeeding the Reign of King William the First M. I shall perform your Desires and will begin with the Great Council 〈◊〉 Parliament held at Clarendon of which Matt. Paris tells us 〈◊〉 Dom. 1164. 10 th of King H. II. In presentia Regis Henriâ—s 〈…〉 rendon 8 Calend. Febr. c. de mandato ipsius Regis presentibus 〈◊〉 Archiepiscopis Episcopis Abbatibus Prioribus Comitibus 〈◊〉 Proceribus Regni facta est Recognitio and which Quadrilogus and GErvas◠〈◊〉 Canterbury comprise under the General Terms of Brasules Prâ—ceres Regni the Bishops and Great Men of the Kingâ—dom What can be more clear by this Enumeration of the Constitâ—â—ent Parts of this full Parliament as Mr. Sâ—lden and other Authoâ— agree it to be than that the Commons were then none of theâ— and that the Clerus and Populus in Hoveden were only the 〈◊〉 and Lay Nobility So likewise when these Constitutions were again renewed by this King at â—â—thampton the same Author tells us tho by a Mistake it is writtâ—â— Nottingham That Rex Pater ibi celebravit Magnum Consilium de 〈◊〉 t is Regni coram Rege Filio Suo coram Archiepiscopis Episcopâ—â— Comitibus Baronibus Regni sui which Council is more partiâ—â—larly recited by Benedictus Abbas in his Manuscript History 〈◊〉 in the Cottonian Library Anno. 1176. which was the 25 th H. 〈◊〉 Circa Festum Conversionis Sancti Pauli venit Dominus Rex usque â—â—â—thampton Magnum ibi celebravit Concilium de Statutis Regni sui 〈◊〉 Episcopis Comitibus Baronibus Terrae suae coram eis per 〈◊〉 Regis Henrici Filii sui per Concilium Comitum Baronum Nilitâ—â— Hominum suorum hanc subscriptam assisam â—ecit c. And Ralph de Diceto Dean of St. Pauls A. D. 1210. a diligent Searcher into the Histories and Transactions of his own and former times doth yet more fully declare the meaning of Abbot Benedict in the Account he gives of this Great Council thus Rex juxta Consilium Filii sui Regis coram Episcopis Comitibus Baronibus Militibus aliis Hominibus suis in hoc consentientibus c. Hoc autem factum est apud Northamptonam â—ino Kal Febr. From all which Authorities we may collect that this Council at Northampton as well as that at Clarendon was a Great or Common Council of the whole Kingdom to which were summoned of the Laity only the Earls and Barons of his viz. the King's Land to which is also added for the better explaining who were understood under these Titles of Baronum Militum Hominum suorum that is such Tenants in capite as were Knights and such as were his Men or Tenants that is Military Tenants as were not Knighted and who held Lands either of the King or his Son to whom the King might assign divers of these Barons and Tenants in capite to atturn Tenants to him and to maintain his Court and Kingship And the King 's Comites and Barones terrae suae were the Earls and Barons of his Kingdom that held immediately of him or were his immediate Tenants in capite and that Homo suus homines sui doth for
Commons as at this day But that this Statute was made by the Common Council of the Kingdom and not by a Conventicle of a few of the Lords and Tenants in Capite Summoned ad Libitum Regis appears by all the original Writs founded upon several branches of this Statute whâ—ch are to be seen in the Register reciting that this Statute was made de Communi Concilio Regni Now the word Commune signifies no more than General and how could this be call'd a General Council which only consisted of a few of the wiser sort of Bishops Lords and Tenants in Capite As for what you and the Doctor cite out of Cambden's Nameless Author of King Henry's sending Writs of Summons and culling out a few of the Earls and Barons out of a great multitude that were Seditious after the War with the Barons was ended if you will have it extend to those who never forfeited by reason of Montfort's Rebellion I need not say much to it since Mr. Selden in his Titles of Honour hath sufficiently baffled that Authors authority for if it was never true as to Earls it was not like to be truer in respect of the greater Barons But as for your lesser Barons or Tenants in Capite I know not but he might be much more in the right in respect of them What you say as to Robert Walrand is not much material for tho he was never so great a Baron or Lawyer yet he could draw up this Law but as being one of the Kings Council who in those days drew up and prepared all Bills that were offered in Parliament And thus Britton might well say that this was made by the Common Assent of the Grand Seigneurs this Act being so highly for their advantage and yet the Commons might be also there as well as the Great Lords for otherwise if Britton must be literally understood what becomes of your Minores Discreti mentioned in this Statute to have given their consents as well as the Majores whereas this Author mentions none at whose request it was made but the Great Lords only But that by these Minores Incolae Regni mentioned at the end of this Statute were meant the Knights Citizens and Burgesses Pray see a Writ of Summons the 24th of Edward I. with the Doctors note upon it in his answer to Mr. P. the Writ is directed to the Arch-bishop of Canterbury and concludes thus that he should warn the Procuratores Cleri there mentioned to appear with him ad tractandum ordinandum faciendum noâ—iscum cum ceteris Praelatis Proâ—eribus aliit â—ncâ—lis Regni nostri in the Margin over-against these last words the Doctor gives us this Note the Incolae Regni were the Knights Citizens and Burgesses mentioned in the former Writ but not here particularly enumerated Now though it is true that this Writ is after the time that the Doctor will acknowledge the Commons to have been constantly Summoned to Parliament yet if these words could mean the Commons in this Writ why they should not signifie the same in this Statute I can see no reason but the Doctors strong prejudices to the contrary But if you have no more Authorities to alledg from the Reign of Henry the Third pray go on and shew me the rest of your Arguments why you suppose the Commons were never called in above half the Reign of Edward the First till the 18 th And I desire this the more because as I have already proved from the Statute of West 1. 3 Ed. 1. the words tout le Communalty de la Terre coming immediately after the Counts Barons and those other words foregoing must needs signifie the whole Commonalty of the Land and so the Doctor himself has rendered it in his Answer to Mr. P. M. But first pray observe what the Doctor there tells you that by the word Commonalty he means not the Commons in the sense they are now taken but the Community of the Tenants in Capite only and for this pray consult the Writ of Summons to the Archbishop of Canterbury to come to this Parliament which I confess is the only Writ of this kind that is left upon the Rolls from the 49 th of Henry the Third to the 23 d. of this King in which you will find the Archbishop Summoned ad tractandum ordinandum una cum Prelatis magnatibus Regni that is as the Doctor explains it with the Prelates and Great Men of the Kingdom which Great Men very frequently comprehended as well the Barons Majores as Minores the Earls Barons and greater Tenants in Capite and the less which then were the Community of the Kingdom so that your Interpretation of the words des Greindres des Mendres in the Statute of Gloucester by which you would interpret the like words in the Statute of Marlbridge for the Commons as now understood will signifie nothing as being before the time we allow the Commons to have been Summoned to Parliament in this Kings Reign F. It were a very easie thing for any man of a confident undertaking temper to frame what Interpretations he pleases from the general or equivocal of Histories or Records if he could as easily find Authorities to support it but I see nothing like a proof for it but the Doctors bare Assertion Since I have already sufficiently proved that the words Communalty and Communitas coming in our Statutes and Records immediately the Counts and Barons after do always signifie the Commons as now understood and why they should not signifie so here I can see no reason for as to the words in the Writ to the Arch-bishop of Canterbury they prove nothing at all who were the Constituent parts of that Parliament for if the word Magnates must need signifie the greater and lesser Tenants in Capite only pray why do they not signifie so in the Writ of Summons to Parliament of the 49th of Henry III. to the Bishop of Durham which the Doctor has Printed where there is no mention made of his Treating or advising with any other Persons then the other Prelates Magnatibus nostris yet the Doctor within two Leaves after gives us the Writs of Summons for the Knights Citizens and Burgesses to this Parliament But it seems in his first Edition of his Book against Mr. P. he had not made those rare discoveries he did afterwards where he pretends not to carry this Opinion beyond the 49th of Hen. III. Therefore pray go on to shew this new Light by which the Doctor discovered that the Commons were never Summoned to Parliament all the Reign of Edward I. till the 18th M. In the first place you cannot shew us any mention of the words Communalty or Communitas in any of the Parliaments of this Kings Reign not in the Statute de Bigamis made in the 4th of this King the Preamble thereof runs to this effect That these under-written
of the Marginal References to his answer to Mr. Petyr but since the Doctor knows very well how to distinguish his own from the Authors Matter and that those who are conversant in his Wâ—itings may do so likewise he hopes both the Doctor and the Reader will the more easily forgive it Especially since you will find him so fair a Representer as not to curtail the Doctors Arguments but rather to enlarge them whâ—â— he thought he had a just occasion FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE BEING A Continuation of the former Discourse concerning the Antiquity of the Commons in Parliament wherein the best Authorities for it are proposed and examined With an Entrance upon the Question of Non-Resistance c. The Third Part. Collected out of the most Approved Authors both Antient and Modern Dialogue the Eighth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth and Seventh Dialogues 1693. The Authors chiefly made use of in this Discourse and how denoted in the Margin P. R. C Mr. Petyts Rights of the Commons asserted B. A. P. Dr. Bradyes Answer To Mr. Petyts Treatise B. A. A. Dr. Bradyes Answer To Mr. Cookes Treatise intitled Argumentum Antinormannicum THE PREFACE TO THE READER I Must beg your Pardon if I have made my Publisher tell you an Untruth before I was aware in the Advertisement at the end of the last Dialogue when he told you there were but two or three Sheets behind upon this Subject whereas indeed this Dialogue is almost wholy taken up in discussing these Reasons and Authorities that have been formerly brought by Mr. Petyt or are now newly added by me to prove that the Commons had Representatives in Parliament long before the 49th of Henry the 3d in doing which if I have been too long I hope you will pardon it since so weighty a Question could not be dismist without saying the most I could find had been alledged as well for as against it And since I was to explain the meaning of those Words Clerus Populus in the times immediately after the Conquest it was fit to let you know that anciently the Inferiour Clergy who did not hold in Capite had Places and made a part of the 3d Estate as well the Bishops and Abbots in our general Councils or Parliaments There was likewise a necessity of shewing that the Commons of England claim to appear in Parliament by Prescription Time beyond Memory and consequently of shewing how that time is to be understood in all our Law Books which are the onely proper Interpreters of that Law Term of Time of which there is no Memory to the contrary And since there is no Writer that I know of who hath opposed this Notion of the Right of Prescription in the Commons but Mr. Prin. I have Impartially consider'd what he has writ against it in his 2d and 3d. part of his Parliamentary Register and put down the Substance of it in this Discourse with what may be reasonably replyed thereunto so that considering the many fresh Authorities from Historians and Records that are here inserted and that have never been Publisht altogether before I think I may safely affirm that there hath never been so much hitherto put together of this kind nor perhaps will be till Mr. Petyt shall please to publish at large his Learned and Elaberate Collections from Ancient Monuments of Antiquity Histories both Manuscript and Print as also from Parliamentary and other Records on this important Subject many of which you will here find Abbreviated and to whose Learning and Knowledg in matters of this kind I must own my self beholding for the Arguments from the Inferior Clergy's who were not Tenants in Capite being anciently part of the great Council of the whole Kingdom as also that of applying the Right of Prescription to the House of Commons But if Dr Brady or any Friend of his shall think fit to animadvert upon any thing that hath been here laid down I shall be so far from being concerned at it that I shall rather be very well satisfied sâ—nce as a fair Representer of other mens Opinions who write not for Victory but the Discovery of Truth I shall be glad if the Dr. or any other Learned Person shall think fit to give the World greater Light on this Subject by publishing somewhat that is now and more convincing then what hath been heretofore done For had it appeared so to me I declare I should not have taken so much Pains to set down the Arguments on both sides which I shall still continue to do if any thing shall be performed material in this kind I have to make up this Discourse just entred upon the Question of Non-Resistance but cannot go far in it now but shall leave what is to be fâ—rther said upon that important Subject to the next Dialogue which will be speedily Published THE Eighth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. I Am glad to see you again so soon for indeed I am very impatient to make an end of this great Question concerning the Antiquity of the Commons appearing in Parliament and therefore pray go on where you left off and give me those plain proofs you promised me whereby you would make out that both the Knights of Shires as well as the Citizens and Burgesses had a right to be there ever since the Conquest for I desire to go no higher F. I thought I had said enough on that Subject at our last Meeting to satisfie any reasonable person I am sure more than you were able fairly to answer especially as to my Replies to the best Authorities you brought from the Doctor and therefore pray before we proceed farther tell me your Opinion upon second thoughts of those Authorities and Arguments I then gave you M. I must confess they do somewhat shock me but I hope you will pardon me if I cannot come over to you without first hearing what may be said by the other side and to this end I have writ to the Learned Dr. for his Solution to several difficulties that I confesâ— upon his Hypothesis I know not how to solve but doubt not but to receive farther satisfaction from him as to those Points in a short time but in the mean while let us proceed in our intended design and examine the rest of the Arguments you have to produce on your side F. I shall obey your Commands and therefore in the first place you cannot expect more than is in our power to give you For since all the Parliament-Rolls and Writs of Summons except those of the 49th of Henry the Third are lost till after the times in question between us you must be contented with what other proofs we can produce provided they are sufficient to satisfie any unbyast indifferent Person And to this end I shall sort the Authorities I intend to
of the 49 th of Henry the 3 d which is certainly a summons to Parliament in which is no Clause of summoning the Inferiour Clergy this is no more an Argument than the former since it might not then be the Custom to insert them in the same writ with the Bishop to be summoned by him but they might have general writs of their own directed to the Clergy of each Diocesâ— but that all the Inferior Clergy as well as the Superior appeared at divers Common Councils or Parliaments during this Kings Reign which they could never have done without the Kings Summons tho the writs are lost may appear from that great Council or Parliament of the 9 th of Henry 3 d Whereto as Mat. Paris tells us in the place I have so often mentioned were summoned Clerus Populus cum Magnatibus Regionis or Regni as Mat. Westminister Words it and in this Council was given by omnes de Regno the 15 th of all the moveables of all the whole Kingdom So that certainly these omnes de Regno must take in all Degrees of men and consequently the Inferior Clergy too since it is certain the Bishops and Abbots did never represent them in the House of Peers or in Convocation so as to lay any Taxes upon the Inferior Clergy without their express Consents and this is the more evident because this Tax was a 15 th upon moveables and not a Tax upon Land and consequently could never be imposed upon those of the Clergy who held in Frank Almoign as all the Inferior Clergy then did and do at this day by the Bishops and Abbots that held in Capite and that these Charters were made by the Common Consent of the whole Kingdom and then certainly by the Inferior as well as Superior Clergy may appear by the Confirmation of the great Charters as also in the Preamble to the Statute of Articuli super Chartas made the one in the 25 th the other in the 28 th of Edward I. in both which it is expresly recited that the great Charters of Liberties and the Charters of Forrest were made per Commun Assent de tout le Royalme en Temps nostre Pere and if by the Common Assent of the Realm then sure by that of the Inferior as well as Superior Clergy since the Bishops and Abbots who saâ—e there only by their Baronies could never represent them That the Inferior Clergy were also summoned to Parliament in the 39 th of of Henry 3 d. appears from the Annals of Burton in Anno Dom. 1253. Where that Author who lived at that time relates that the Inferiour Clergy then appearing in Parliament sent Messengers to the Pope concerning the intolerable Grievances they then lay under among which the first Grievance set forth by the Procurators of the Clergy for the Diocess of Lincoln is this Quod decima bineficiorum suoram Domino Regi fuit concessa ipsis non voâ—atis maxime cum agitur de aliquo obligando necessarius est ejus expressus consensus By which it appears that the Inferior Clergy then claimed it as their undoubted Right by the Law of the Land not to be Taxed either by the King or the Pope without their express Consents and they contended so hard for it that they have preserved this Right even to this day when they now give their Votes to the choice of Knights of the Shires tho till the late King Charles's Reign they were never taxed without the Consent of their own Procurators in Convocation and this may serve to enlarge your understanding and to shew you in what sense the whole Clergy as well the Inferior as Superior did anciently make the third Estate in Parliament which was more Comprehensive than the Bishops and Mitred Abbots alone who sate in the upper House only per Baronian by Reason of their Baronies tho in the Synod or Convocation of the Clergy as Ecclesiastical Persons only Where they also joined in the making of Ecclesiastical Laws and giving Taxes which last you cannot deny but to be a meer Temporal Thing M. I grant you are so far in the Right yet tho the Inferior Clergy often joyned with the Common Council of the Kingdom in giving the same Taxes yet this was by and upon themselves alone and they had no hand in making of Temporal Laws and giving Taxes for all the rest of the Kingdom and I challenge you to shew me any precedent within these 500 years that the Inferiour Clergy ever made the third Estate in Parliament or that their Consents was ever asked to the making of Temporal Laws since the Bishops have been always lookt upon till of Late as the onely Representatives of the Inferior Clergy in Parliament how else could they be obliged by general Statutes or Acts of Parliament since according to your own Confession they gave no Votes at the Election of Knights of Shires but since the return of King Charles II. so that if they had ever joyned in this Legislative Power as you suppose they anciently did I cannot see why they should not have kept to this day F. I grant indeed it has been otherwise between 300 and 400 Years but for that it was not so from the Original Institution of the Government is also as certain for that the English Common Councils consisted of all sorts and degrees of Ecclesiasticks you must allow since before the coming in of the Normans the Bishops and Abbots did not sit in the Mycel Synods as Temporal Lords is generally acknowledged and yet even after they came to sit among the Lay Peers in the great Council of the Nation by virtue of their Baronies the Inferior Clergy also gave their Assents to the making of Temporal Laws and giving Taxes I have proved by such Authorities as I do not see you are able to answer and for further Proof of this to shew you their coming was continued down to the Reign of Henry third see Sir H. Spelmans Councils second Volume where you will find that they were in that great Council at Clarendon when those famous Constitutions were made as appears by these Words in Mat. Paris at the end of these Constitutions Hanc Recognitionem sive Recordationem de consuâ—tudinibus libertatibus iniquis Archiepiscopi Episcopi Abbates Priores Clerus cum comitibus Baronibus Proceribus cunctis juraverunt So likewise at the Council of Gaintington in the 34 th of this King Roger Hoveden has in his History these Words Dominus vero Rex statin postquam in Angliam applicuit magnum congregavit concilium Episcoporum Abbatum Comitum Baronum aliorum multorâ—m Clericorum quam Laicorum apud Gaintington And Mat. Paris in the Year 1185 being the 31 st of this Kings Reign mentions a Common Council of the Kingdom then called at Clerkenwel where Convocatus est Clerus Populus cum tota nobilitate which Dr. Heylin in his Stumbling Block of Disobedience thus
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
Question pray therefore satisfie me if you can those great Objections I have made First how this Resistance can consist with with that sacredness and inviolableness which you your self suppose to be due to the Kings person for either this Resistance in case of an invasion of our Civil Rights must be made even when the King's Person is actually present to back those Illegal Commissions or it must be forborn out of that due Reverence and Care of his Royal Person which the Law enjoyns If the former the King's Person is in danger to be destroyed whenever a factions Party is strong enough to rise in Arms and oppose the King's Commissions upon pretence of their being against Law But if on the other side this Resistance is not allowable when the King's Person is present then all such Resistance will signifie nothing since as soon as ever the King in Person shall appear in the Field to back his Commissions all your Defensive Arms as you call them must be immediately laid down unless they mean to destroy the Sacred Person of the King So that take it either way all Resistance is either Illegal or else unpracticable Secondly I can as little understand as I told you before how the Two Houses of Parliament should renounce all taking up Arms as well offensive as defensive against the King for themselves and yet should leave a Power in the diffusive Body of the Nation nay in any part thereof strong enough to make a Rebellion which they thought unlawful to exercise themselves Lastly By what Legal Authority the People or any part of it can justifie the taking up even defensive Arms since you your self acknowledge that no Arms can be taken up regularly but by the King's Authority and you have also disclaimed all taking up of Arms by his Authority against his Person or against those Commissioned by vertue of such Authority tho' I confess you except the Cases of Self-defence and in maintenance of the Law yet I cannot find those Exceptions allowed of in any of our Law-Books either ancient or modern F. I hope to give you such Satisfaction to every one of these Objections you have made as may serve any indifferent person therefore as to the first concerning the Sacredness of the King's person which I allow of as well as you we must in the first place distinguish between such Commissions as the King â—ssures by colour of Law when the Judges for example had given their Opinions in the Case of Ship-money for they being the sole Interpreters of the Law in the Intervals of Parliament I do acknowledge that their Determinations are not to be opposed by force but legally reversed when the next Parliament meeâ— and they are then to answer in Parliament for their false Interpretations and Opinions as Tresillian and his Companions did in the 11th of Richard II. and as the Ten Judges did upon the two Houses Declaration against Ship-Money and their Impeachment thereupon Thus tho' Mr. Hammpden refused to pay Ship-Money when demanded of him and rather chose to lye in Prison than pay it yet it had been downright Rebellion in case any resistance had been made by him against the levying of it But had this Tax been laid by the King 's sole Power without such colour of Law I doubt not but resistance might have been made even against those that were Commissioned by Him to levy it and if any one Town or Hundred were not strong enough to seize such Officers as presumed thus to levy it against Law the Sheriffs of every County in England might have raised the Posse Comitatus and seized all such Offenders and carried them to Jayl since the King's Commissions never did nor can indemnifie the persons so Commissioned in case the thing they were about to execute was contrary to Law and for this I need go no farther than the Old Mirror of Iustices which is owned for good Law at this day which speaking of Robbery and the several Kinds thereof has this passage which I shall here render out of the old Law French Into this Offence viz. Robbery all those fall that take other Mens Goods by Commandment of the King or any great Lord without the Owners consent Where you see there is no difference at all made between those that took away other Mens Goods by the Command of the King or any other but it was Robbery in all of them alike and consequently the Actors might be alike seized and punished as Robbers The same is also allowed by the Statute of the 20th of Henry the 6th whereby the King's Purveyors are forbid to take any thing to the value of 40 s. or under without ready Payment in hand of any person 〈◊〉 that it then should be lawful for every one of the King's Liege-People to retain their Goods and Chattels and to resist such Purveyors and Buyers So likewise the last Clause in this Oath viz. In pursuance of such Military Commissions seems to restrain it to such Commissions as were granted by the King's Authority that is according to Law and no other So that you see by the old Law of England the King's Commission did not render any man irresistible unless he executed it according to Law since the Constable of each Town might raise the Inhabitants thereof to seize such Wrong-doers and if they were not strong enough the High-Constable of the Hundred might raise the whole Hundred and in case they were not sufficient the High Constable might crave Aid of the Sheriff and assemble all the several Hundreds of the County till these Malefactors were seized So that as long as there were no standing Forces kept up in the Nation as I have shown you there was not till the Reign of King Charles the Second there could never be my Clashing between the King 's Civil and Military Commissions and this is one great Reason why no King of England since the Act de Tallagio non Concedendâ— was so hardy as to issue any Commissions to levy Money without colour of Law because they knew they were void in themselves and consequently would be resisted by the whole Nation So that this would not have been taking up Arms by the King's Authority against those Commissioned by him but only in order to bring those to Justice who had not any Commissions at all to do what they did the Law taking no Cognizance at all of the King 's Personal Commissions when absolutely against Law Nor if the King had joyned his own Presence to such illegal Commissions would it have mended the matter or rendered these Robbers of other mâ—â—â— Goods any more irresistible than they were before since the King can give no mâ—n Authority to do that which he has not Power to do himself and therefore face his single Person may be resisted in case he go about to Ravish Rob or Murder People then sure his joyning himself with such Men tho' never so numerous can never make
him more irresistible than he was unless you will suppose that the King may not rob with a few without resistance but may justifie the doing of it with an Army and if so pray tell me what number they must be to render the King and all those with him thus irresistible And therefore it is no wonder if our Law has made no express Provision for resisting the King's Person since it had so high a regard for his Honour as not to suppose He could be guilty of making War upon his People But if the King shall be among such wrong doers either by Force or Fraud the case will be otherwise Thus when K. Edward and Richard the Second joyned their own presence to the Illegal Actions of the two Spencers and Robert de Vere Duke of Ireland yet the Nobility and People took no notice of that but prose cuted them notwithstanding the Kings personal joyning himself with them and Thomas Earl of Lancaster tho' he had the worst of it and was taken and executed yet was his Attainder reversed in Parliament as I have already said and his Quarrel with the Spencers declared to be good and just as the like resistance was also declared to have been for the safety of the King and safeguard of the Realm in the Parliament of 11th of Rich. the Second wherein the Duke of Ireland and the rest of his Faction were Conâ—emned as I have already shewn you and tho' I grant that in such a division between the King and his People his Person may run a great hazard yet it is his own fault and not theirs if it so fall out and they are not to lose their Lives Liberties and Properties in case the King will fully joyn himself with Murderers or Robbers since this is not to resist Royal Authority but Illegal Force without any Authority at all and if he will thus expose himself to the mercy of blind Bullets charge is to be given to all not to kill him wilfully or wittingly since we are never to despair of his Repentance till he absolutely renounces all reconciliation with his People and thus even in the midst of such a resistance the King's person may be as safe as he can be in such Circumstances though not so safe as if he were in his own Pallace But if an Army of wicked and lawless men must not be resisted because they have got the King's person on their side then Prince Edward afterwards K. Edward the First could not have justified his fighting with Simon Montfort and those of his Faction who had as you your self acknowledged 〈◊〉 the Person of King Henry the Third into their Power and acted all things in â—is Name and by his seeming Authority as the Historians of those times expresly tell us and the King being in Montfort's Army at the Battel of Evâ—sham was in great Danger being then wounded in the Neck with an Arrow So that if this Oath had been then to be taken in this sense this rescuing of the King by his own Son out of the hands of these wicked Councellors had been taking up Arms by his Authority against his Person M. Pray give me leave to answer this instance you have now brought because I think it does rather make against than for your Opinion I grant Prince Edward might well justifie his fighting with Simon Montfort tho' he had the King's Person then in his Power because the Prince very well knew that his Father was carried about with them as a Prisoner against his will and therefore ought to release him tho' with some hazard to his Father's Person since it could not be otherwise brought about But sure there is a great deal of difference between fighting to release my Prince when made a Prisoner against his will and fighting against him to take him away from Evil Councellors whether he will or not as the Long Parliament did against King Charles I. tho' they knew he was in the Head of his Army with his own consent and this was sure taking up Arms by the King's Authority against his Person and is that which is to be expresly disclaimed by this Oath and will be also Treasonable if done in any Case whatsoever where the King shall think fit to be at the Head of his Forces whether the thing be lawful or unlawful for which they are raised F. Well then it seems the fear of endangering the King's Person is nothing if the end for which it be done be lawful And why it may not hold in other Cases as well as this I can see no reason I grant that what the Parliament did was unlawful because the Occasion of the War began on their side as it was then said but supposing the King made War upon the People I doubt not but the Case had been otherwise And for proof of this pray give me leave to put you a Case which may well happen now we have a Standing Army distinct from the Militia Suppose that in a Suit with a great Favourite of the King 's a Man recovers a House and Lands against him by a Judgment at Law and he also by Course of Law put into Possession thereof by the Sheriff afterwards the King's Commission is obtained by the Interest of this Favourite to Command an Officer and some Companies of Souldiers of the Standing Army to take Possesion of this House and deliver it back to the person who first had it The Man in Possession being a stout and powerful Person in his Country hearing of it resolves to maintain the Possession of his House according to Law and therefore gets in good store of his Tenants Neighbors to defend it The Officer comes with his Soldiers Summons the House they within refuse to yield up the Possession whereupon an Assault ensues in which a great many are Killed The Man in Possession is by the King's command Indicted for Treason or Murder for fighting against those commissioned by the King Now pray tell me whether the Judges ought according to their Oaths to direct the Jury to find this Man and those of his Party guilty of the Crimes above mentioned or not and whether the Officer and his Souldiers are not rather to answer for this Offence M. Truly I cannot deny but this Military Commission to put a Man out of his Freehold is Illegal and consequently void and so may be resisted since I know the Law says That a man's House is his Castle and he may justifie the defence of it against all Subjects whatsoever but what is this to resisting the King's Person who was not there for if he had I doubt not but this Person ought to deliver it up to the King rather than endanger His Majesties Sacred Person Nor is this resistance considerable it being only in a particular Case which can no way by a general Rebellion alter this Government over the whole Nation F. You speak agreeable to your own Principles Well but suppose the King
say that the King cannot be judged or deposed by the Parliament or People and that he has without any effect of ours absolutly Abdicated the Government and Deposed himself but that I may not seem to speak out of any prejudice to this Kings Person or Government I desire we may first debate it in General whether a King of England can ever fall from or forfeit his Royal Dignity let him behave himself never so like a Tyrant and when that is despatcht it will be then time to consider whether the King has so behaved himself or not M. I like your Proposal well enough only let me desire you to come again as soon as you can for since I hear there is like to be no Terme I intend to go visit some Friends in the Country till I see the times clear up a little better F. I will not fail to wait on you within a Night or two and in the mean time am your Humble Servant M. And I am Yours FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE On these Questions I. Whether a King of England can ever fall from or forfeit his Royal Dignity for any breach of an Original Contract or wilful violation of the Fundamental Laws of the Kingdom II. Whether King William commonly stiled the Conqueror did by the Conquest acquire such an absolute unconditioned Right to the Crown of this Realm for Himself and his Heirs as can never be lawfully resisted or forfeited for any male-administration or Tyranny whatever Collected out of the most Approved Authors both Antient and Modern Dialogue the Tenth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh Eighth and Ninth Dialogues 1693. Authors whose sense is made use of in this Discourse and how denoted in the Margin Dr. Hick's Iovian H. I. Mr. Petyt's Right of the Commons asserted P. R. C. Dr. Brady's Answer thereunto B. A. P. His answer to Mr. Atwood's Ianus c. B. A. I. His Answer to Mr. Cook 's Argumentum Antinormanicum B. A. A. Mr. Atwood's Treatise called Ius Anglorum ab Antiquo I. A. A. I desire the Reader to remember that I do not make use of the word People for the meer Vulgar or Mobile but for the whole community consisting of Clergy Nobility and Commons THE PREFACE TO THE READER I AM come to one of the last parts of my intended task which in pursuance of the last discourse of resistance is whether the Late King James by any breach of the Original Contract made between his Predecessors and the People of this Nation expressed by a Notorious violation of the Fundamental Laws of this Kingdom hath forfeited his Crown and Royal Dignity and hath thereby discharged the Nation from all Allegiance to him in the discussing of which to let the World see I do not Write any thing out of particular spleen or prejudice to the Late Kings Person or Government I have chose to handle this question in general without making any mention at all of him and therefore have urged all that I think can be spoken on either side in this question without applying it to any King in particular but because I find the cheif Argument next that of a Divine Right for the Absolute and Unconditioned Power of the Late King is a Right of Conquest over this Kingdom and Nation from K William I. commonly called the Conqueror whereby he is supposed to have acquired an absolute indefeasible Right to the Crown of this Realm both for himself and such lawful Heirs of his Body as shall succeed thereunto I have also examined all things considerâ—ble that have been or may be urged on either side on this question as well from Ancient as Modern Authors tho' I confess it is the more difficult to be resolved because not only our later Antiquaries such as Sir H. Spelman Sir Roger Twisden and Mr. Selden are pâ—int blank against Sir William Dugdale's and Dr. Brady's Notion of King William's Title by Conquest but also the Ancient English and Norman Historians do extremely differ in their Relations for tho' they both agree to Found the best Title he had on the Testamentary Donation of King Edward the Confessor which they also call an Hereditary Right yet do they very much differ about the manner of his Government Some of the most Ancient of the Norman and English Historians setting him forth as a Iust and Pious Prince and others of them and especially Mat. Paris making â—im a mâ—er Tyrant that observed neither Oaths nor Laws farther than stood with hiâ— own convenience I have not therefore omitted to my knowledge any considerable Authority or Argument that hath been made use of and not to seem partial have added several new ones that have not been taken notice of before and tho' this subject may seem antiquated and trivial to divers nice Readers yet I doubt not but it will prove sufficiently pleasant and instructive to those who are Studious in our English History and Laws But as for the Authorities I have given you on either side I have confined my self witâ—in the space of 200 years after the reputed Conquest because the Authors that writ wiâ—hin that time may be supposed to speak either on their own Knowledge or else from the then recent Tradition of their Grand-fathers or great Grand-fathers at farthest as for the Arguments they are the best I could find among our pretended Authors and where they fell short I have added the best I could think of or have heard in those conversations I have frequented and if these do not satisfie I hope the Reader will not blame me since it is not my fault they are no better but if the reverend Dr. Hick's or the learned Dr. Brady whom these questions may cheifly concern shall vouchsafe to peruse this discourse and will take the pains so far to consider them as to shew me my omissions or wherein the person whom I have all along introduced to oppose their sentiments has either argued falsely or is mistaken in matter of Fact I shall be so far from taking it ill that I shall thank them for their pains provided it be done with that civility and candour which may be expected from persons so eminent as they are for Knowledge and Civility I have no more but to beg the Readers pardon for the length of this Discourse which I could yet have enlarged farther but that I leave him to satisfie his Appetite to the full upon this Subject of the Norman â—onquest whenever Mr. Petyt and Mr. Atwood shall think fit to publish their laborious and learned collections on this Subject till when I hope the Reader will stay his Stomach with these remainders tho' they have in great part been served up already in the learned Entertainments of those Authors mentioned immediately in the Title Page THE Tenth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman
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
Latine Translation of the Old Coronation-Oath D. 8. p. 560. to 563. W Wales W. it s Titular Prince be really Son to King James the Second and Queen Mary D. 11. p. 784 to 789. W. He ought to have been received as the true Son and Heir of the said King D. 12. p. 875. to 877. and that let the consequences be what they will Ib. p. 879. to 881. Wardship Marriage and Relief W. wholly derived from the Normans D. 10. p. 750.751 Its advantages and inconveniencies considered Ib. A Wife W. she can ever be discharged from the Power her Husband hath over her in the state of Nature by any means but by his express consent D. 1. p. 43. King William the First why stiled the Conquerour D. 5. p. 325. W. He claimed to be King of England by Donation of King Edward the Confessor or by Conquest D. 10. p. 715.718 719. W. He was ever Elected and took the same Coronation-Oath as the English Saxon Kings had done before D. 10. p. 716.722 to 737. W. He might justly have seized all the Lands in England to his own use D. 2. p. 171. W. He gave most of the Lands of England to his followers Ibid. p. 721 to 729. and to 747. W. He alter'd any thing in the fundamental constitution of the Government D. 5. p. 320. to 322. W. He altered all the Old Laws of England or confirmed those of King Edward D. 10. p. 737. to 760. His Second Oath upon the Relicks of St. Alban Ib. 761 762. His Laws concerning all Freemens exemption from Taxes upon their finding Arms D. 6. p. 426 427. W. He and his Son William Rufus made Laws and imposed Taxes without the consent of the Great Council D 10. p. 744 755. King William the Third W. he hath any Title by Conquest over King James or else from his Marriage with the Princess and the Act of the Convention D. 12. p. 883. to 899. His Religion and Principles vindicated Ib. 886 887. Wites or Wise-Men in the English Saxon Councils the true signification of that term D. 6. p. 373. to 378. Wittena à Gemots or Great Councils among the English Saxons W. they consisted of more than the higher Nobility Ib. p. 381. Wives how far obliged to be obedient to the Commands of their Husbands D. 1. p. 40. Writ of Summons to the Commmons of the 49th of Henry the Third W it was the first of that kind D. 7. p. 519. to 521. W. Any Writs of Summons of Bishops or Lords to Parliament are to be found before that time Ib. p. 516. Writ of the 19th of Henry the Third to the Sâ—eriffs to levy two Marks Scutage upon Tenants by Knights Service holding of Tenants in Capite Ib. 445 Writ of the 24th of Henry the Third commanding all Men holding a whole Knights Fee of whatsoever Tenure to be Knighted D. 6. p. 432. Writs of Summons to Knights Citizens and Burgesses to Parliament at Shrewsbury in the 11th of Edward the First D. 8. p. 574. Writ of Summons to Knights of Shires cited by Dr. B. in the 18th of Edward the First W. it was to a Parliament D. 7. p. 530. to 536. Writ of the 22d of Edward the First W. a Summons to Parliament D. 7. p. 533 534. Writ of the 30th of Edward the First commanding the Levying of Forty Shillings upon each Knights Fee which had been granted ever since the Eighteenth Ibid. p. 479. W. The Commons Granted that Tax Ibid. Writs of the 28th of Edward the First and 45th of Edward the Third W. of Summons to Parliaments Ib. 537. Writs for Expences to Knights of Shires how ancient D. 8. p. 589. to 591. Y Duke of York Richard his Title declared in Parliament D. 12. p. 863. Edward Duke of York Recognized by Parliament to be lawful King from the Death of his Father Richard Duke of York Ib. p. 865. Duke of York James W. he was not intirely in the French Interest and Designs before he came to the Crown D. 11. p. 802. AN APPENDIX Containing some Authorities sit to be added for farther confirmation of some things laid down in the foregoing Dialogues TO be added to Dialogue the Fourth p. 290. at the end of F s Speech after these words no particular Church can read thus And that divers of the most Eminent Divines of our Church have used the same freedom with several other Doctrines contained in these Homilies may appear from Dr. Hammonds Dr. Heylins and Dr. Taylors with several other Eminent Writers expresly denying that the Church of Rome is guilty of Idolatry or that the Pope is Antichrist tho' both these Doctrines are as plainly laid down in the Homilies as the Doctrine of Non-Resistance And yet none of these Men are ever taxed by those of the Church of England for quitting her Ancient Orthodox Doctrines and I desire you to give me a good Reason if you can why it is more lawful and excusable to part with the former of these Doctrines than the latter The like I may say also for the Doctrine of Predestination which tho expresly asserted in the 36 Articles of the Church of England as interpreted by all the Bishops and Writers in the Reign of Queen Elizabeth and King Iames as also the Bishops and Divines sent as Delegates from our Church to the Synod of Dort who joyned in the interpretation of that Article in the strict Calvinistical sense you find in all the determinations of that Synod against the Doctrines of the Arminians which then began to prevail yet since the time that Arch-Bishop Laud had the nominating of what Persons he thought fit to be made Bishops Deans c. not one in ten of them but have been Arminians in all those Points wherein they wholly differ from the Doctrine of Calvin which is but the same with that of our 36 Articles so interpreted yet none of the Divines of our present Church who hold these Opinions are branded with Apostacy from its Ancient Doctrine but if any well meaning Divine out of love to his Country and to prevent Popery and Slavery from breaking in upon us have but Preach'd or Publish'd any thing in derogation to these Darling Doctrines of Passive Obedience and Non-Resistance he is straight branded with Apostacy from the Church in quitting its main distinguishing Character and we have lately seen Degrading nay the most cruel Whipping and Imprisonment thought too little for such a Man but one may say of some Men with truth enough Dat veniam Corvis vexat censura Columbis So Dialogue the Sixth p. 397. at the bottom after these words in those times read this But that the House of Commons were anciently often comprehended under the stile of Grantz which is the same with Magnates in Latine pray consult the Parliament Rolls of Edward the Third where you will find in the 4 th of that King this passage est assentu accorde per nostre Seigneur le Roy tous les Grantz