Point namely That the King his Nobility and Commons did Ordain and Enact the same And which is more if you shall find any Acts of Parliament seeming to pass under the Name and Authority of the King only as there be some that have that shew indeed yet you must not by and by judge that it was established without the Assent of the other Estates As for the rest of your Insinuations rather than Arguments against the Antiquity of those Expressions Be it Enacted by Authority of Parliament or Be it Enacted by the King Lords and Commons which bear so hard upon you to prove that these last have a share in the Legislative that they were introduced in the Reigns of Henry VI. and VII two Usurpers and but in the Nonage of the former I think I shall be able to shew you that you are very much out in your account for I will shew you much ancienter Authorities wherein the same words or others equivalent have been used in our ancient Statutes And first pray call to mind the Statute of Measures already recited where it is said That by the Consent of the whole Realm of England the Measure of our Soveraign Lord the King was thus made c. which certainly must mean the Assent of all the Estates assembled in Parliament And my Lord Coâ—e tells us in his Third Institutes of an ancienter Record that he had seen of the 7 th of this King wherein it was Enacted by the King the Lords Spiritual Temporal and Commons But since I have given you Presidents enough of Statutes which are said to be made or ordained by the King with the Assent of Lords Spiritual and Temporal and Commons I will shew you one where the King is not at all mentioned and that is in Rastal's Statutes 4 Hen. 4 cap. 24. concerning Aulnage of Clothes wherein it is said to be ordained and accorded by the said Parliament without any mention at all of the King And to let you see that these fatal words you except against were in use before the Reign of Hen. 6. pray see 9 Hen. 5. cap. 4. concerning the Misprision of Clerkâ— in writing which runs thus The King hath now declared and ordained by Authority of this Present Parliament that the Iustices c. which must certainly refer to the Lords and Commons unless you can make the King alone to carry the whole Parliament in his own person But whereas that Phrase had began from Vsurpation it would have been first found in the Statutes of Henry the 4 th But to let you see that Edward the 4 th tho no Usurper yet did not think that these words did abate any thing of his Royal Prerogative pray see in the 4 th of that King Cap. 1. wherein it is recited That the King by the advice assenâ— request and authority of the Lords Spiritual and Temporall and Commons in Parliament assembled hath ordained and established But that by Assent of Parliament and by Authority of Parliament is all one and the same since the Assent of Parliament makes its Authority Pray see the express Judgment in this point of the Lord Chief Justice Crew and Justice Doderidge given in the Great case of the Earldom of Oxford reported in Judge Iokes's Reports To conclude tho I do not deny His Majesties Negative Vote to all Acts of Parliament yet this Prerogative can be concluded only from his giving his last Assent to a Law for when a Bill begins from himself the two Houses have likewise a Negative upon him which is evident in an Act of Pardon which proceeds from the King first and sent down to the Parliament this neither the Lords nor Commons can add or alter one tittlâ— to yet may they notwithstanding his prior Asent refuse the whole Bill if they please tho already past under the Great Seal And tho I likewise grant that it is the Le Roy le Veult that by yielding the highest and last Assent gives the Enacting force to the Law and thus the King may in a Logical sense be said thereby to make the Laws according to that known Maxim Quod dat formam dat esse â—ei Yet this does not hinder but in a Legal sense according to the express declaration of our old Lawyers and Acts of Parliament the Laws owe their obligation to the joint consent of King and Parliament and his giving his last assent or form to the Law no more proves his sole Legislative Power than it would do that of the Lords or Commons if either of them by the Constitution of the Government were to give their Asents last thereunto So that I think upon the whole matter no man can reasonably deny but that Legally the Two Houses of Parliament have also their share not only in framing but Enacting of all Bills that shall pass for otherwise they would signifie no more than the Committee of Estates in Scotland or the King and Council of England in relation to Ireland the former of which draws up all Bills that are to pass in the Parliament of that Kingdom and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland Whereas the Authority of our Parliament consists in their consenting to and Enacting together with the King all Statutes whatsoever And this Distinction I think may very well reconcile Bracton with Fortescue the former of which says Quod leges ligant suum Lâ—torem meaning the King and the latter in the place I have already cited affirms that the People are governed by those Laws quas ipse feâ—t which they themselves make and this I think is to ascribe to the King as much Power as is requisite to a Civil Soveraign and yet to leave a sufficient share to the People to secure themselves from Tyranny M. I must beg your pardon if I cannot be satisfied with your division of the Legislative Power beiween the King and the Two Houses of Parliament since it is against the sense of our old Lawyers Glanville and Bracton who as you your self confess make the King the Sole Legislator And tho I confess Fortescue gives the People a share in it yet he is but a Modern Author in comparison of the other two and writ to support the Vsurped Title of Henry the Sixth So that I cannot comprehend how the Two Houses can have any share properly speaking in the Legislative Power without falling into that old error of making the King one of the three Estates and so co-ordinate with the other two whereas if the King be a Monarch that signifies in Greek the Government of one person whereas by giving the Two Houses a part in the Legislative you divide it into three several shares Whereas there is so close a conjunction between all the Parts of Soveraign Power that the one cannot be separated from the other but it will destroy the form of the Government and only set up an Irregular Commonwealth in its place
he could not have brought his whole design within the compass of Eight Dialogues as he at first intended and still hopes to do and therefore to ease you of the trouble of buying or reading more Discourses on these Subjects then what he takes to be absolutely necessary he hath reduced all that he had prepared for the Fifth Discourse upon the Subject above mentioned into the two last Dialogues wherein he designs to treat of the Justice and Lawfulness of the late Revolution and the Settlement of the Crown upon their present Mâ—jesties where the then Questions he intended to treat of will properly enough fall in But it is time to speak somewhat concerning this present Discourse since it treat of a Question to be decided only from the History and Laws of this Nation And the Author bids me assure you that he hath lay'd down nothing therein on either side but what he hath produced good Authorities for either from the Histories and Governments of our own or other Neighbouring Nations or from the Colleâ—â—ions of our English Saxon Laws and ancient as well as modern Writers upon the Laws of England and lastly from our Statutes or Acts of Parliament since the reputed Conquest which he found necessary to these Subjects without omitting any Authority that he judged material to be urged on either side But as for the Quotations themselves I hope they are truly cited for the Author assures me upon the word of a Geâ—tleman that he is not conscious of any unfair dealing in that kind either by any wilful omission or concealment and as for the Books Chapters or Pages here quoted if there be any error or mistake of that kind I pray impute it to the Press and not to the Author as well in this as all the rest of these Discourse since he could not be in Town to correct them himself but he intends God willing to rectifie all such mistakâ—s by a Table of Errata at the end of the whole work to which he intends also to add an Exact Index of all the Principal Matters that are debated in it but though I take the Author for an honest Gentleman and one who scorns the mean advantage of a false Quotation yet since many Writers like Montebanks are apt to cry up their own sincerity even when they deceive you most the best advice I can give you is that if you have the leâ—st distrust of any thing here quoted you consult the Authors or Books themselves from whence he hath transcribed them and then you will be best able to judge how far you may trust him another time As for those Parliamentary Records here cited they are either such as have been already Printed from the Rolls in the Tower or other Offices at Westminster and so are allowed for Authentic or else are sâ—ch as have not yet been made publick as for which as well as the former if you have the least distrust of any of them I leave you to search the Records themselves which are I hope now communicated without any reserve to all that are willing to take the pains to consult them I have no more to add but to assure you not from my own but better Iudgments that you will find more in this small Treatise than ever was yet publisht at once or perhaps at all upon these important Subjects Note If the Author hath made one of his Opponents call the Entrance of King William 1. into England and his taking the Crown upon the same condition as his English Predecessors a Conquest it may be understood in the largest Acceptation of that word and for Brevity sake only Authors made use of and how Denoted 1. Harmony of Divinity and Law H. D. L. 2. Dr. Iohnstons Excellency of Monarchical Government I. E. M. G. 3. Huntons Treatise of Monarchy H. T. M. 4. Sir R. Filmers Freeholders Grand Inquest F. F. G. Anarchy of a mixt Monarchy F. A. M. M. 5. Dr. Heylin's Stumbling-Block of Rebellion S. B. R. The Folio Edition 6 Mr. Petyt's Preface to his Ancient Rights of the Commons of England Asserted P.P.R.C. 7. Dr. Brady's Answer to the said Treatise B. A. P. The Folio Edition THE Fifth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman M. YOU are welcom Sir I pray set down by the Fire I was thinking before you came in of the best method of managing this Important Question whether by the Laws and Constitutions of this Kingdom it can in any Case whatever be Lawful to Resist the King or those that Act by Vertue of his Commissions I shall therefore proceed in the next place to the Proof of the Second Proposition in the Argument I at first proposed or to speak Logically the Minor in the Syllogism viz. That the King of England is the Sole Supream or Soveraign Power in this Kingdom and therefore is irresistible and that not only as to his own Person but also with respect to all such who act by his Orders or Commissions though the things commanded be in themselves Illegal F. I do not dislike your method though if you could never so plainly make out to me the truth of this Minor Proposition yet it will come too late to prove that all Resistance of Supream Powers is unlawful in all Cases whatever since I think you have failed in the Proof of that your fiâ—st Proposition But since I do not deny the truth of this second Proposition in some sense I pray be as short as you can in the proof of it M. I shall observe your desire and shall briefly recite some Authorities as well Ancient as Modern as also Acts of Parliament which declare an Absolute and Imperial Power to be Solely in the King To begin with the Saxon times First as to the Title of King or Emperour used Promiscuously Our King Edgar frequently in his Charters caâ—s himself Albionis Anglorum Baâ—ileus and the Grecians esteemed the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be of full as Eminent a Signification as Emperour and King Edâ—arâ— the Confessor in a Charter to the Abby of Peterburg Stiles himself Rex Anglorum and his Government a Monarchy And King Ethelred in his Charter to Canterbury Stiles himself Angligenum Orcadarum necnon in Gyrojacentium Monarcha Anglorum Induperator So that you hereby may see that the Kings of England long before the Conquest look'd upon themselves as Emperors or absolute Civil Soveraigns So likewise after that time we find W. Rufus Dates his Charter to the Monastry of Shaftsbury Secundo anno Imperiâ— mei And tho' the Title of Emperor hath bin disused yet we shall find the Substance of it sufficiently Challenged in that Letter of W. Rufus to Archbishop Anselm telling him That he had all the Liberties in his Kingdom which the Emperor challenged in the Empire And the like was challenged by Henry the First in all his Disputes with the Pope concerning the Investiture of Bishops and Abbots
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
for the Correction of the 12th Ch. of the Statute of Gloucester was Signed under the Great Seal and sent to the Iustices of the Bench after the manner of a Writ Patent with a Certain Writ closed Dated by the King's Hand at Westminster 2 Maiâ— 9 Edw. I. Requiring that they should do and Execute all and every thing contained in it though the same doth not accord with the Statute of Gloucester in all things 19 Hen. 3d. a Provision was made de assisa praesentationis which was continued and allowed for a Law until the Statute of Westminster 2 which provides the contrary in express words So that in the Old Statutes it is hard to Distinguish what Laws were made by Kings in Parliament and what out of Parliament especially when Kings called the Peers only to Parliament and of those how many or whom they pleased as it appears Anciently they did it was no easy matter to put a Difference between a Council-Table and a Parliament or between a Proclamation and a Statute Not but that I own in Old Times there was a Distinction between the Kings Special or Privy Council and the Common-Council of the Kingdom and yet his Special Council did Sit with the Peers in Parliament and were as part thereof and were of Great and Extraordinary Authority there as may appear by divers Acts of Parliament some of which I have already Recited as the Statute of Westminster I. Where it is said These are the Acts of Edward made at his I. Parliament by his Council The Statute of Acton Burnel 13 Ed. 1st hath these words The King for himself and by his Council hath Ordained and Established And in Articulis Super Chartas there are these Provisions Nevertheless the King and his Council do not intend And both the King and his Council and all they tâ—at were present Will and Intend that the Right and Prerogative of his Crown shall be saved to him in all things And before these the Commons often Petitioned the King As 1 Edw. 3d. where Magna Charta was confirmed the Preamble is thus At the Request of the Commonalty by their Petition made before the King and his Council in Parliament by the Assent of the Prelates Earls and Barons c. I could give you many more Examples of this Kind but that it is needless only these may suffice to let you see That the King's Council had a Great Authority in those times and perhaps was more Ancient than the Great Council it self Yet I cannot forbear to give you one or two Authorâ—tâ—es more to prove that the King with the Advice and Consent of a Council of his Earls Barons and other Wise Men hath sometimes taken upon him to Repâ—â—â— aâ— the Statutes made in a Precedent Parliament as contrary to the Laws and Customs of this Realm and to his Prerogatives and Rights Royal though Granted by him in manner of a Statute And for this you may see the Statute of 15th Edward the 3d. at large in Pulton's Collection So likewise in the Preface of the Statute of Westminster 20 E. 3. that We viz. The King by the Assent of our Great Men and other Wise Men of our Council have Ordained c. Where you may observe that here is no mention either of Lords Temporal or Commons I could give you more Examples of this kind were it not too tedious From which statutes it seems plain to me that this King did sometimes Exercise a Prerogative of Making and Repealing Laws without Consent of Parliament In the next place I desire you to take notice that these words you so much rely upon viz. by the Authority of this present Parliament and be it Enacted by the King Lords and Commons as if they were three Co-ordinate Estates was never in use till the Reign of Hen. 6th and Hen. 7th two Notorious Vsurpers And that the King 's Single Answer to the Lords and Commons Request is a Sufficient Act of Parliament without any mention of the Concurrent Authority of the Lords and Commons Enacting the same the President I gave you of King Charles's Answer to the Petition of Right may suffice though you have not vouchsafed to give me any Return to it So that I think these Instances may serve instead of many Arguments for the proof of this Truth that the Legislative Power as We Phrase it now is wholy and solely in the King although Restrained in the Exercise and vse thereof by constant Custom unto the Counsel and Consent of the Lords and Commons For Le Roy le veult or the King will have it so is the Imperative Phrase by which the Propositions of the Lords and Commons are made Acts of Parliament And let the Lords and Commons Agitate and propound what Laws they please for their Ease and Benefit as generally all Laws and Statutes are more for the Ease and Benefit of the Subject than the Advantages of the King yet as well now as formerly in the time of the Roman Emperors only quod Principi placet Legis habet Vigorem nothing but that which the King pleases to allow of is to pass for Law The Laws not taking their Coercive force as Judicious Hookeâ— well observes from the Quality of such as Devise them but from the Power that giveth them the Strength of Laws So that to Determine the matter Logically The Legislative Power is either largely and improperly or Strictly and Properly taken Largely taken it signifies any Power which hath the Authority to provide the Materials of a Law and to Judge what is Iust Convenient or Necessary to be Enacted and to declare when any Matters duly prepared are made and granted into a Law and this Ministerial sort of Legislative Power improperly so called the two Houses have and Exercise yet by Authority front the Grown But then the Legislative Power is Strictly and Properly taken for the Power of Sanction or for that Commanding Ordaining Power which gives Life and Being to the Law and force to oblige the Conscience of the Subject and this is radically and Incommunicably in the King as Soveraign And therefore as I have already said all the Ancient Acts run in the King's Name alone And from the Legislative Power thus properly taken the Laws are properly called the King's Laws and the Violation of them is punishable as such F. You have made a very long Speech and taken a great deal of pains to perplex a Question in it self very easy to be Resolved and to which I need return you no other Answer then what Bracton tells us in his 3 d. Book cap. 9. de actionibus Nibil aliud potest Rex in terris suâ—â— cum sit Dei minister vicarius nisi id solum quod de Iure potest nâ—â— oâ—staâ— quod dicitur quod Principi places legis habet vigorem quia sequâ—â—uâ— in fine legis cum Bege regâ—a quae de Imperio ejus laâ—a est i. e. non quiâ—quid de
Dissolving of the Assembly of the Estates was a Power of Great Trust it was put into the Prince's Hands by Writ to Convocate as also to Prorogue or Dissolve such meetings But in Process of time some Princes not caring much to have their Government lookt into or to have any Power in Being but their own taking Advantage of this Power of Assembling these Estates did more seldom then need Required make use of it Whereupon provision was made and a time set by New Statutes within which an Assembly of Parliament was to be held Now when you have made these true Suppositions in your Mind you have the very Model and History of this Monarchy and we shall easily find what to answer to the Arguments before produced on either side For first it is his Parliament because an Assembly of his Subjects Convocated by his Writ to be his Council and to assist him in making Laws for him to govern by Yet not his as other Courts are as deriving their whole Authority from the King So likewise his Power of Assembling and Dissolving them proves him thus far above them because though as to the time of their meeting it depends on him Yet their Power and Authority quoad Specificationem i. e. the Being Kind and Exercise of it is from the Original Constitution For as to that they expect no Commission and Authority from him but only for their meeting to proceed to Act but when met they Acts according to the Original Rights of their Constitution and those Acts proceed from their Conjunct Authority with not from their Subordination to the King in the Legislative as also in laying of Taxes c. on the People The Oath of Allegiance indeed binds them as his Subjects to obey him governing according to Establisht Laws But yet it supposes them to be built upon the Foundations of his Legal Government and must not be interpreted to Vndermine and Destroy it He is hereby acknowledged to be Supream so far as to Rule them by Laws already made or to be made but not without them So that this is no Derogation to the Legislative Power of Parliament And I believe of these things no unprejudic'd Man can make any Question And herein consists the accurate Judgment of the Contrivers of this Form that they have given so much into the Hands of the Soveraign as to make him truly a Monarch Yet have reserved so much in the hands of the People as to enable them to preserve their Laws and Liberties M. I confess you have given a long and plausible account of the Original and Form of our Government though if it come to be examined I doubt it will prove a meer Romance and not at all agreeable to true History or Matter of Fact Since if we look to the Eldest times either after the Saxon or Norman Conquests We shall find the Power of our Kings to have bin still more Absolute then they are now And I think I could easily trace the Steps by which the People have attained to all the Power and Priviledges they now enjoy which as I do not grudge the Nobility and People of this Nation Yet they ought to exercise it with a due respect and Subordination to that Power from which they were all at first derived least if they should ascribe them to themselves the King should be tempted to destroy those Great Priviledges and taking away the very Being of Parliaments to make Laws without them But to shew you farther that this Notion of an independent Power in the two Houses by the Original Constitution of the Government is altogether inconsistent with the King's Prerogative appears from clear Matter of Fact even as you your self have put it For when Kings thought fit not to have their Power Controuled you acknowledge they called Parliaments less frequently than usual and that thereupon there were divers Laws made appointing certain times for their meeting from whence it appears that before this the times of their meeting were wholy left to his Discretion Nay farther that the King's Prerogative of Assembling them or omitting it when he pleases cannot be limited by any Act himself can make appears from hence that notwithstanding all those Laws that have bin made for Annual and Triennual Parliaments our Kings have never thought themselves obliged to call Parliaments ofâ—ner than they saw their own occasions or the necessities of the People which they themselves were Sole Iudges of required Nor did any Parliaments ever find fault with this till that Rebellious one in 1641. which had the confidence to present to the King a Bill to be past whereby it was not only Enacted that there should be a Parliament every third Year but that upon the King 's omitting to issue forth Writs of Summons the Sheriffs nay Constables might Summon the Free-holders and proceed to Election and that the Lords might also meet without any Writs from the King which was quite contrary to the Original Constitution by which as you your self grant there could be no Parliaments without his Summons he being Principium Capus finis Parliament And if so it seems wholy improbable nay impossible to me that your Two Houses should have by the Original Constitution any Power of meeting or doing any thing without his Majesties Consent and Allowance and we know that at this day the Spâ—aker in the Name of the House of Commons desires of the King Liberty of Spâ—ech And King Henry 8th and Queen Elizabeth did sometimes Rebuke the House of Commons and sent to them to Desist when they were about to pass any Bill they did not approve of or to meddle with those things which did not belong to them Which plainly declares that contrary to your Affection neither of the Two Houses have any Power to proceed upon any Business or to pass any Bill which the King disapproves of And though I grant that they do not ask the Kings leave for the bringing in or Passing of all Bills whatsoever in either House or that the King can command them to give him what Money or pass what Bills he pleases Yet this Priviledge must needs proceed from his Grant or Concession to the contrary Whereby though he hath discharged them from an Active Obedience to such Commands Yet hath he not thereby divested himself of any of the Essential Rights of Soveraignty or at all discharged them from a Passive Obedience or Submission to his Power supposing the worst that can happen that he should take away what share he pleased of the Subjects Estates without their Consent or make his own Edicts and Proclamations to be observed for Laws Since the King's Authority is prior to all others and that as the Statutes of Edward the 6th and Queen Elizabeth which I have already quoted expresly declare All Power Authority and Iurisdiction Spiritual and Temporal is derived wholy from the King so that unless your Legislative Power of Parliament be somewhat that is neither an Authority
Citizen of London was de Assensu Praelatorum Comitum totius Communitatis Regni pardoned all Homicides The very like words are also used in the same Roll in the Act of Pardon granted to the City of London I shall trouble you but with one mâ—re in this Kings Reign but it is so remarkable I cannot omit it of the 34 th of this King and is to be found in the old Edition of Statutes Printed in French the Title begins thus Ceux sont les choses queux nostre Seigneur le Roy Prelats Seigneurs la Commune ount ordaines establéâ—s To conclude with the Reign of Richard the Second the like expression is found in the Parliament Roll of 5 th of Richard the Second where the Statutes begins thus Pur Commune prosit du Râ—yalmâ— d' Angleterre cient faiâ—es per nostre Seigneur le Roy Prelats Seigneurs la Commune de le Royalme esteantes en cest Parliament from the Titles to which two last Statutes I pray observe that the word le Commune is not only used for the Commons in the same sense as it was in the fâ—rmer Kings Reigns but also that these Statutes were made by the joint Assents of the King Lords and Commons So likewise in the same Roll are recited Concordiae sive Ordinationes factae de Communi Assâ—â—su Regis Procerum Magnatum Communitatis Regni Angliae which I give you to shew that the words Communitas le Commune always signifie the same thing in our Statuâ—es and Records viz. the Commons as now understood different from your great Lords and Tenants and if they are to be taken in this sense after the 18 th of Edward the First I would be glad if you could shew me any sufficient reason why they should not be so understood aâ— along before that time as well as in the 49 th of Henry the Third only M. Tho I grant that these words you mention are to be understood for the Commons as now taken in many Records and Acts of Parliament after the 18 th of Edward the First and therefore you need not to have taken the paâ—ns to have gone beyond that time yet notwithstanding I think I can prove to you by very good Authorities that the word Communitas which I grant is the same thing with le Commune in French tho put after the words Comites Barones does not signifie the Commons of England in general but the Community of the Tenant in Capite alone or at least the Community of all Tenants by Military Service and that as low as the Reign of Edward the Third but for proof of thiâ— I pray peruâ—e this Writ which the Doctor hath given us in his Answer to Mr. P. Rex Archiepiscopis Episcopis Abbatibus Priotibus Comitibus Baronibus Militibus omnibus aliâ—s de Comitatu Cantiae Salutem Sciatis quâ—d cum pâ—â—mo die Junii Anno Regni nostri Decimo octavo Praelati Comites Barones caeteri Magnâ—tes de Regno nostro concorditer pâ—o se pro tota Communitate ejusdem Regni in pleno Parliamento nostro nobis concesse unt Quadraginta solidos de singulis Feodis Militum in dicto Regno in Auxilium ad Primogenitam Filiam nostram Mariâ—andam c. Cujus quidem auxilii levationi faciendae pro Dictae Communitatis aisimento hucusque supersedimus gratioâ—è c. By this Record it is clear that such as pâ—id Scutage that is Forty Shiâ—â—ings for a Knights Fee were then the tota Regni Communitas and no others and of these the Tenants in Capite granted and paid it first for themselves and Tenants and then their Tenants in Military Service by vertue of the Kings Precept paid it to them again for so many Fees as they held of them so that this Tax being raised wholly upon Knights Fees must be granted only by those that held by Knights Service But further that the Communalte de Royaume the Community of the Kingdom as represented by the Tenants in Capite did still so continue as above mention'd till almost the middle of King Edward the Third's Reign is as clearly proved by this Record of that King Rex dilectis fidelibus â—uis Vicecomiti Wygorniae â—homae Bâ—ttâ—ler de Upton supeâ—â—abrinam Militi Thomae Cassy de Wych salutem â—â—â—atis quod cum in pleno Parliamento nostro apud Westmonasterium ad Diem Lunae proximo post Vestum Nativitatis Beatae Mariae Virginis proximo praeteritum tento Praelati Comites Barones Magnates de Regno nostro Angliae c. pâ—o se to a Communita e ejaâ—dem Regni nobis concesseâ—unt quadraginta solidos de singulâ—s â—eodiâ— Militum in Diâ—â—â— Regno Angliae c. so that the whole Community of England in this Record were Military Men such as held Knights Fees or parts of Knights Fees and such as paid Scutage and they were neither the ordinary Freemen or Free-holders nor the Multitude nor Rabâ—le F. I pray Sir give me leave to answer your Arguments from these Records as you â—ut them least I forget what you have said in the first place as to this Record of the 30th of Edw. I. which relates to a Tax given in the 18th Year of his Reign and recites an Aid of 40 s. upon every Knights Fee through the whole Kingdom to have been given by the Bâ—shops Earls Barons and other Magnates or great Men of the Kingdom in full Parliament for themselves and the whole Community thereof to Marry the King's Daughter and which Subsidy he had deferred to Levy till now and therefore because this was a Tax granted only upon Knights Fees that those only who payed this Scutage were then the Communitas or whole Body of the Kingdom which is no Argument at all since from this we may plainly collect the clean contrary for if none had been to pay to this Tax but those that held by Knights Service in Capite then the King would have had no need to have had it granted in Parliament since by the 14th Article of King Iohn's Charter he might have Taxed his Tenants in Capite for the Knighting of his Eldest Son and the Marriage of his Eldest Daughter without the Assent of the Common Council of the Kingdom and according to your Hypothesis and the Authorities you have brought to prove it these Tenants in Capite might also by the like reason have made their Tenants by Knights Service have Contributed to this Tax which yet you see they could not do without the consent of Parliament and therefore this Aid or Subsidy being granted in Parliament must needs extend to all the Lands in the whole Kingdom as well those that held by Knights Service as well as those that did not for it is not here said as in the Writ to the Sheriff of Sussex qui de nobis Tenent in Capite and then the words pro se â—ota
the sparing their Pains and Expences to have a Colloquy and Treatise with some of the same Members and therefore names the very Persons whom he commands should appear before him at Winchester to inâ—orm him and his Council of the best manner and form whereby the said Tax might be soonest and most conveniently levyed according to the intent of the said Grant So that nothing is more plain from the Writ it self than that this Assembly was no Parliament the proper Business of which is always to make Laws give Money or reâ—ress Grievances none of which â—ut it is apparent were the cause of this meeting To which these that were Summoned did not appear as Knights of the Shires their power being expired at the Dissolution of the Parliament but only 〈◊〉 so many particular private men who by reason of their Interest in the Country the King supposed could best inform him in the business above mentioned But that in the Reign of this King there were several Councils of this kind which tho no Parliaments as having but one Knight one Citizen and one Burgess and only making Temporary Constitutions concerning Trade and other things of less moment which were to be put in practice for a time till they could be confirmed by the next Parlâ—ament appears by the Ordinance or Statute of the Staple above mentioned And of these Mr. Pryn in the first part of his Parliamentary Register of Writs gives us divers Precedents which he rightly So that I hope I have now fairly run through and examined all the Precedents which you or your Doctor have been able to urge in this great Question and I think if you are aâ— candid and ingenuous as I take you to be you will not assert that any of them do amount to a proof either that the Commons were never Summoned from the â—9th of Henry III. to the 18th of Edward I. or that the Writs of Summons he there produces was to a Parliament and not to a great Council or that the King ever took upon him to appoint what number of Knights Citizens and Burgesses should come to Parliament or could nominate who they should be or could discharge whom he pleased from serving as Members therein All which your Doctor I think with greater confidence than right understanding of the true meaning of the ancient Writs and Records of Parliament hath undertaken to assert I beg your pardon for troubling you so long on these Heads since the length as well as diversity of Records you have now cited could not be answered in less compass M. I must confess you have given pretty plausible answers to most of the Authorities and Records I have now cited yet I cannot assent so far as to come over to your Opinion without a longer consideration of the strength of the answers you have now given me to the Doctors Authorities But in the mean time you would oblige me if you could give me the rest of your Arguments whereby you would undertake to prove that the Commons have been always an essential part of the Parliament ever since the Conquest for it seems to me by what I have read out of our ancient Historians that there is no express mention made of them by Name in any Historian or Record till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary methinks the Doctor hath given satisfactory answers to them F. I think I have made it clear enough that the Commons of England were a constituent part of the Wittena Gâ—â—ote or Common Council of the Nation before your pretended Conquest and if it doth not appear that they were deprived of that right by the Normans entrance which you have not yet proved I think we may very well conclude that things continued in the same State as to the Fundamental Constitution of the Government as well after your Conquest as they did before Nor have you as I see proved any thing to the contrary since you confess that as much a Conquerour as King William was yet he altered nothing in those Fundamental Constitutions the most that you pretend he did being only in an alteration of the Persons who were the Legislators from English to French Men or Normans so that upon the whole matter I think there is no need of any new Arguments to confirm this truth since the Commons of England claiming a right by Prescription of having their Representatives in Parliament if you nor your Doctor nor none of those whom he follows can prove by sufficient Authorities when this began then I am sure you ought if you were of the Jury in thâ—s matter to find for the Tenants in Possession since that together with a constant usage time out of mind is as well by your Civil as our Common Law a sufficient Title to any Estate yet I doubt not but to shew you the next time we meet that the Doctor has noâ— given such satisâ—aâ—â—ory answers as you imagine to most of Mr. P's best Arguments proving this right of Prescription to have been the constant Opinion of an succeeding Ages to which I shall also add divers new Authorities as well from ancient Historians as Parliamentary Records and Statutes but since it is grown now very late I beg your pardon till another opportunity M. I thank you Sir for the pains you have taken to satisfie me in this greâ—t Question but pray come again within a Night or two that we may make an end of this weighty Controversie and then we may proceed to whaâ— we at first intended viz. whether the King can ever lawfully be resisted or whether by any Act he may Commit he can ever 〈◊〉 to be King F. I accept of your Proposal and shall wait of you again as you appoint but in the mean time pray consider well of the Authorities I have now urged and the Answers I have given to your Argument and then I hope there will be the less need of new ones M. I shall not fall to do it but in the mean time am your humble Servant F. And I am yours ADVERTISEMENT THE Publisher begs your Pardon for letting a Term pass without giving you this Dialogue which has so close a dependance on the Former but it has been his own unhappyness and not his faulâ— In the next place he hopes you will not take it ill of him that he has â—welled this to a bigger bulk than the other since the Author by reason of the weightiness as well as multiplicity of the Arguments could not make it 〈◊〉 wâ—thout doing a considerable injury to this Important Subject And to let you seâ— that I do not dissemble the Author was forced to reserâ—â— two or three Sheets more of the same Argument because he would not â—ver tire you for the next Discourse And the Author also desires the Learned Doctor Brady's pardon if through his own hast or the Inadvertency of the Compositor there have been some Omissions
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
Earl and in the like pardon to the Constable and Mareschal in the time of Edward the First which I now also quoted those Lords would not own they had transgressed but the words are only etiam transgressiones si quas fecerit So that since such Reformations could not be brought about without violence and blood-shed and some Irregularities which in times of Peace could not be justified by the strict Letter of the Law it was but reason that for the quieting of mens minds and their future security they should be indemnified for what they had done with so good an intent and for the common good of the Kingdom But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown but only to their being Kings in the Eye of the Law appears by a like Act of Pardon passed in Parliament in the first of Henry the Seventh to pardon and save harmless all those that came over with the King and all that helped him to recover his just Right to the Kingdom against King Richard the Third there called that Vsurper So that you may see such Acts of Pardon do not concern the just Titles of Princes nor the Justice of the War but are to quiet mens minds under the new Government whereas those that took part with the Usurper were not pardoned but left to the Law since the present Government would not take care for their security that had obstructed its settlement So the Act of Oblivion of the second of Charles the Second tho' it pardons Treasons expresly yet it as well pardons the Treasons of them that had Commissions from King Charles the First or Second as well as those that acted by Commissions from other pretended Authorities So that you see in the Judgment of this so modern a Parliament men might be supposed to be guilty of Treason tho' they had taken part with the King and had acted by â—is Commission if the things commanded were illegal M. I confess you have taken a great deal of pains to justifie taking up Arms against nay Imprisonment of our Kings when that which you call the preservation of the Government requires it that is when there is a â—action in the Kingdom strong enough to make a disturbance for it was very well said by Tacitus in the speech he makes for Otho to the Souldiers to take up Arms and kill Galba then Emperour that it was in vain to speak more for the justification of that Action quod Laudari non potest nisi peractum Treasons if successful have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them and to pardon nay justifie all those that have been Actors in them as we may see by those Acts of Indemnity you mention and therefore I am not the more convinced that such Resistance was lawful notwithstanding those specious Declarations of Parliament of their being made for the publick good and preservation of the King and Kingdom But you have done very warily to pass by without any Justification the Deposition of King Edward the Second as also that of the Resistance as you call it of Henry Duke of Lancaster against King Richard the Second as also his Deposition tho' done in Parliament since all the proceedings against this King were repeal'd in Parliament in the first of Edward the 4th as appears by the Parliament Rolls of that King's Reign wherein the taking up Arms against King Richard by Henry Earl of Derby is said to be done contrary to his Faith and Legiance and his taking the Crown called Usurpation and the killing of King Richard his Soveraign Lord termed as it justly deserved Murder and Tyranny which does tho' not directly yet by consequence condemn his Deposition too since he is after that here called King and you do as warily pass by the late Rebellious War of the Long Parliament against King Charles the First as also his horrid Murder before his own Gates because you know cry well that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss but commonly ends with the Murder or Deposition of the King or else driving him from his Throne as we now find it by woful experience in the Person of our Unfortunate King who was so lately forced to quit this Kingdom for the security of his Person and therefore to put an end to this part of the Dispute the Parliament of the 13th of King Charles the Second were so sensible of the great Mischiefs that attended this Rebellious Doctrine as having been the destruction of one of the best Princes that ever Reigned and the occasion of the loss of so many brave Men besides the ruine of so many great and Noble Families that they were resolved to do their utmost to prevent it for the future and therefore the King and Parliament in the 13th and 14th of King Charles the Second passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors to take away all dispute about it tho' they declare it to have been his Ancient Right and therefore to take away all pretence for taking up Arms either by the Two Houses of Parliament or any other person whatsoever they in preamble to both these that these Acts thus expresly declare Forasmuch as within all His Majesties Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land and of all Forts and Places of Strength is and by the Law of England over was the undoubted Right of His Majesties and His Royal Predecessors King and Queens of England and that both or either Houses of Parliament cannot nor ought to pretend to the same nor can lawfully raise or â—evy War offensive or defensive against His Majesty His Heirs or Lawful Successors and yet the contrary hereof hath of late been practised almost to the ruine and destruction of this Kingdom and during the late Usurped Governments many Evil and Rebellious Principles have been distilled into the minds of the People of this Kingdom which unless prevented may break â—orth to the disturbance of the Peace and Quiet thereof c. And in pursuance of this Statute it was likewise ordained by the Authority aforesaid in the 2d Statute for the Militia in the 14th year of the same King wherein not only the same preamble is recited verbatim as before in the former Statute but it is also Enacted That no person no not a Peer of the Realm shall be capable of acting as Lieutenant Deputy Lieutenant Officer or Souldier by vertue of this Act unless after the Oaths of Allegiance and Supremacy they take this Oath following viz. I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traitors Position that Arms may be taken by his Authority against his Person or
disobeying of the Parliament out of his hands much less will I justifie the Murder of this King or of any others above-mentioned as being no necessary consequences of that Resistance I only allow for lawful viz. that of the whole or major part of the Nation nor were Edw. the Second or Richard the Second put to death by any Act or Order of Parliament but were murdered In Prison and the Murderers of Edward the Second were afterwards attainted by Act of Parliament and Executed as they deserved But as for the Murder of King Charles the First it is not to be taken into this account it being not done by the Authority of the Lords and Commons in Parliament but by a Factious Rump or Fag-End of the House of Commons who fate by the power of the Army after far the major part of the Members who were for the King were shut out of doors and the Lords Voted useless and dangerous M. I confess you have made as good an Apology for these Actions as the matter will bear but that neither of the Two Houses can at this day have any Coercive Power over the King or to call him to an account for any thing he has done appears by the express Declaration of both Houses in the Statute of the 12th of Charles the Second as also in those but now cited in which they utterly disclaim all making War whether offensive or defensive against His Majesty much less can he be subject to any other Coercive or Vindictive Power or ought any ways to be resisted by private persons therefore supposing I should grant as I do not that the Parliaments had formerly a power of Deposing of their Kings or that the Clergy Nobility and People had formerly a right of taking up Arms against the King in case of notorious Tyranny and Misgovernment yet is all such Resistance expresly renounced and declared unlawful by the Oath and Declarations now cited so that tho' in the dark Times of Popery such Resistance might be counted lawful not only by Laity but also by the Bishops and Clergy who ought to have taught the people better Doctrine yet I think it had been much better for the Nation to have endur'd the worst that could have happen'd from the Tyranny of Kings than to have transgrest the Rules of the Gospel and the constant Doctrine of the Primitive Church by Resistance and Rebellion against the Supreme Power of the Nation F. I shall not now maintain that the Two Houses of Parliament have any Authority at this day to Depose the King or maintain a War against him upon any account yet that they have still a power to judge of the King's Actions whether consonant to Law or not and whether he has not broke the Fundamental Constitutions of the Kingdom is no where given up as I know of But that Resistance in some cases is not contrary to the Doctrine of the Gospel I have already proved and that it was not directly contrary to the Laws of the Land before these Statutes you do partly grant But since the main strength of your Cause lies in this Oath appointed by these Acts of Parliament therefore if I can give a satisfactory Account of the true meaning and sense of these Acts to be otherwise than you suppose I hope you will grant that Resistance may still be lawfully made by the whole body of the people in the Cases I have now put against any persons who under colour and pretence of the King's Commission should violently assault their persons in the free exercise of their Religion as it is by Law Established or should go about to Invadeâ— their Just Liberties and Properties which the Fundamental Laws of England have conferr'd upon every Free-born Subject of it And in order to the clearer proof of this I shall make use of this Method I shall first explain the Terms of this Declaration and then I shall proceed to shew you that in a legal sense all Defensive Arms or Resistance of the King's Person in some cases or of those Commissioned by him is not forbidden nor intended to be forbid by these Statutes and Declarations First then By taking Arms against the King is certainly meant no more than making War against the King according to the Statute of the 25th of Edward the Third which declares making War against the King to be Treason and this is unlawful upon any pretence whatsoever Secondly The Clause by his Authority against his Person is only to be understood of the King 's Legal Authority and by his Person is meant his Natural and Politick Person when acting together for the same ends as I shall shew you by and by So that both these Statutes are but declaratory of the Ancient Common Law of England against taking up Arms and making War against the King and do not introduce any new Law concerning this matter so that whatever was Treason by the Statute of the 25th of Edward the Third is Treason by these Statutes and no more viz. all taking up Arms or actual making War against the King in order to kill depose or imprison him c. as Sir Edward Coke shews us in his third Institut in his Notes upon this Statute yet notwithstanding after this Statute of the 25th of Edward the third the Clergy Nobility and People of England assembled in Parliament did suppose it still lawful to take up Arms against those illegally Commissioned by the King in case of notorious Misgovernment and breach of the Fundamental Laws of the Nation as appears by that general Resistance made by reason of the evil Government of the Duke of Ireland and those concerned with him in the 11th of Richard the Second which as I have already proved was allowed for lawful by Act of Parliament and consequently by the King 's own consent without which it could never have been so declared The like I may say for that Resistance which was made in King Henry the Sixth's Reign by Richard Duke of York and the Earls and Barons of his Party agaist the Evil Government of the Queen and the Duke of Sommerset who governed all Affairs in an Arbitrary and yet unsuccessful manner by reason of the easiness and weakness of King Henry But tho' this Resistance was also approved of in the next Parliament of the 33d Year of this King yet I shall not so much insist upon it because I know you will alledge that this was made by the lawful Heir of the Crown against an Usurper since the Crown was not long after adjudged to be his right tho' King Henry was allowed to wear it during his life yet however it shews the Opinion of the Clergy Nobility and People of England at that time concerning the lawfulness of such Resistance before this Declaration of the Estates of the Kingdom concerning the Legality of the Duke of York's Title was made in the Parliament above-mentioned Thirdly That the Parliament by these Statutes of the
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
be resisted and yet be still unaccountable those two differing as must us Self-defence does from punishment as I have more than once told you M. I cannot rest satisfied with this Reply for though I so far agree with you that an Act without a Legal Authority carries no Obligation at all along with it and therefore cannot oblige the Subject to Obedience Now this is true if by Obedience you mean an Active Obedience for I am not bound to do an ill thing or an Illegal Action because my Prince commands me but if you mean Passive Obedience it is as manifestly false for I am bound to obey that is not to resist my Prince when he offers me the most unjust and illegal Violence Nay it is very false and absurd to say that every Illegal is an Inauthoritative Act which carries no Obligation with it This is contrary to the practice of all Human Judicatures and the daily Experience of Men who suffer in their Lives Bodies or Estates by an unjust or illegal Sentence Every judgment contrary to the true meaning of the Law is in that sense illegal and yet such illegal Judgments have their Authority and Obligation till they are rescinded by some higher Authority This is the true reason of Appeals from Inferiour to Superiour Courts to rectifie Illegal Proceedings and reverse Illegal Judgments which supposes that such Illegal Acts have Authority till they are made null and void by a higher Power And if the higher Powers from whence lies no Appeal confirm and ratifie an Unjust and Illegal Sentence it carries so much Authority and Obligation with it that the Injured person hath no Redress but must patiently submit and thus it must necessarily be or there can be no end of Disputes nor any Order or Government observed in Human Societies And this is a plain Demonstration that tho' the Law be the Rule according to which Princes ought to exercise their Authority and Power yet the Authority is not in the Laws but in the Persons that Execute them For otherwise why is not a Sentence pronounced according to Law by a private person of as much Authority as a Sentence pronounced by a Judge or how doth an Illegal Sentence pronounced by a Judge come to have any Authority For a sentence contrary to Law cannot have the Authority of the Law And why is a Legal or Illegal Sentence reversible and alterable when pronounced by one Judge and irreversible and unalterable when pronounced by another For the Law is the same and the Sentence is the same either according to Law or against it whoever the Judge be But indeed the Authority of the person is not the same and that makes the difference So that there is an Authority in persons in some sense distinct from the Authority of Laws nay superiour to it For there is such an Authority as tho' it cannot make an Illegal Act Legal yet it can and often doth make an Illegal Act binding and obligatory to the Subjects when pronounced by a competent Judge F. I think notwithstanding all you have now said your distinction of a Supreme Authority in Persons above and distinct from the Authority of Laws will prove a meer Notion for you grant that the King hath no Just or Legal Authority to act against Law and that if he put any man to death contrary to it it is downright murder but you will not allow that if the King should thus murder never so many thousands either he or those Instruments of Tyranny may be resisted And therefore you would fain top upon me your old distinction of an Active and Passive Obedience The former of which I very well understand but as for the latter I have long since proved that it is so far from being any Obedience that it is indeed downright Disobedience or a refusal to do that which the Prince Commands so that truly your self have taught me to distinguish between the King 's Personal Authority and his Legal for otherwise why are you not as much obliged to yield an Active Obedience to the King 's Personal Illegal Commissions or Commands as to his Legal ones if there were no difference between them So then all the difference between us lyes in the measure of the Disobedience you maintaining that it is sufficient not to yield Obedience to such Illegal Commissions and Commands and I that besides this denyal of Obedience if it be in a fundamental point and that which generally concerns the whole body of the Kingdom that they may not only be disobeyed but resisted too if forced upon us with violence and therefore all that you have said to prove that the Authority to which we are bound to submit consists not in the Laws but in the Persons tho' acting contrary to Law is according to your own way of reasoning altogether unconclusive And farther when you say that it is false and absurd to affirm that every Illegal is an unauthoritative Act which carries no Obligation with it I shall prove that this absurdity lyes wholly on your side For 1. Legal and Authoritative are all one in our Law for that which is not Legal carries no Authority along with it so that Illegal Authority is in plaiâ—â— English unlawful lawful Power nor had K. Charles 1. any such extravagant Notion of his Royal Authority who certainly understood his own Power better than you or I when he owns in his Declaration to the Long Parliament dated from Newmarket 1641. That the Law is the measure of his Power which is as full a Concession of the thing I affirm as words can express For if the Laws be the measure of it then his Royal Power or Authority which is all one is Limited by it For the measure of any thing is the Limits or bounds of the thing Limited and when it exceeds those bounds it is an Illegal and consequently an Unauthoritative Act which carries no Obligation either Active or Passive along with it So likewise in the said King's answer to both Houses concerning the Militia speaking of the Men by them named to him to be Commissioners for it He thus replyed If more Power shall be thought fit to be granted to them than by Law is in the Crown it self His Majesty holds it reasonable that the same be by some Law first vested in him with Power to transfer it to these Persons c. In which Passage it is granted that all the Power or Authority of the Crown concerning the Militia is by or from the Law and that the King hath no more Authority than what is vested in him by the Law of the Land 2. Your Argument from the practise of Human Judicatures is also very fallacious for you Argue from the bare abuse of a Trust or Commission with the Execution of which all Judges Officers must be intrusted to that which is quite of another Nature viz When the Person intrusted Acts directly contrary to his Commission or without any Commission
have made use of to wit Rex habet Superiorem Legem Curiam suam viz. Comites Barones c. who ought if he transgress the Law to put a Bridle upon him yet by this as I have already proved neither Bracton nor Fleta could mean any co-active â—orce but only a Moral restraint upon the King by Petitions Remonstrances or denial of aids till he would be Reform'd by fair means but that it does not go farther appears by the parrallel Bracton there makes between our Saviour Christ and the Virgin Mary who being both free from the Law of Moses yet voluntarily chose to be obedient to it which sufficiently proves that those Authors never designed that the Parliament should oblige the King by force or whether He would or no to amend his faults since that was as you your self must acknowledge against their very institution since both their meeâ—ing and their dissolution wholly depend upon the Kings Will. F. I confess you have made a long and elaborate speech in answer to my notion that a King may forfeit his Crown that is by his own act cease to be King but I shall be able to give you a satisfactory answer to all this if you please to take it In the first place therefore I cannot but observe that all your Discourse depends upon two Principles alike false first that no absolute Monarch can by his own act forfeit or lose his right to the Government without a formal resignation of the Crown or secondly that the Kings of England have ever been such absolute Monarchs which if they are both great mistakes all that you have said on this head falls of it self Now that a King tho' an absolute Monarch may do such an act as shall make a forfeiture of his Crown without any solemn resignation of it you your self are forced to allow in the two cases you have put viz. that of such a Monarchs becoming an Enemy to his People and going about to destroy them and that of his making over his Kingdom to another without the Peoples consent now if the diffusive body of the People in an absolute Government can judge of these two cases whenever they happen without appealing to any General Council or Assembly of the whole Nation I desire to know why it may not be as easie and lawful for the People to judge without a Parliament when the fundamental Laws of the constitution are generally and wilfully broken and violated and that violation persisted in by the King for the introduction of Tyranny and an Arbitrary Government since the Rules I have laid down to know it are but a few and easie to be known and judged of by the most common capacities Now that a Superiour or Governour may lose all that power and authority he once had and that without any act of the party governed may appear by those great and natural relations of a Husband and a Master in the former of which if a Husband in the state of nature use his Wife so cruelly that she can no longer live or co-habit with him without danger of her Life I doubt not but she may quit him and may also when she is out of his Power Marry her self again to another Man that will use her better so in the other relation of a Master if such a one in the state of Nature have a Slave and will not allow him sufficient Cloaths Victuals or will beat him or use him so cruelly for no just cause that he cannot enjoy the ordinary comforts of Life no man will deny but that such a slave may lawfully run away from such a Master and â—s at liberty either to live of himself or to chuse another Master if he think good and this instance is much more strong in an hired Servant who is to serve his Master for such and such Wages or to do such and such Work and no other if in this case the Master refuse to pay him his Wages or put him to do other work than what was agreed upon between them or instead of an hired Servant will make him his absolute Slave in these cases no man can doubt but by this unjust treatment of the Master the Servant is discharged of his Service and may go whether he pleases and of these actions I have already proved at our first meeting the party injured be they Wife or Servant must be the only Judges in the state of Nature where there is no Civil Power over them or else if the Husband or Master shall Judge for himself the Wife or Servant is never like to get any Redress apply this to the case of a limited or conditional King and his Subjects and see if it be not absolutely the same upon the total breach of the Original constitution of the Government and whether the Bond of Allegiance is not then as absolutely dissolved by the sole act of the Prince without any authoritative power in the Subjects as it is in the case of such a Wife or Servant by the sole Act of the Husband or Master without any Superior Authority in such Wife or Servant to quit them and so to discharge themselves of their Wedlock or Service Therefore as to your accusation that my notion is worse than that of the Rump Parliament that put the King to death I deny it for they supposed that there was no way of being rid of a Tyrannical King but by making the People and consequently the Parliament as their Representatives his Superiours or Judges to call him to an account and Judge and Punish him for his Tyranny this I abhor as much as your self for I grant that a King cannot be properly the Supream and at the same time own another Power above him to Punish or call him to an Account for his Miscarriages but this Power that I insist on is not as I have all along told you a power of punishment but a right of resistance for self-defence in the first place and of Judging and Declaring the King to have forfeited his Crown or Right to Govern if he persist in his Tyranny without any amendment or satisfaction given to the People Nor is this Doctrine of the Peoples thus Judging for themselves so dangerous as that of the Rumpers as you suppose who put this right of Judging when the King had thus forfeited his Power in the Parliament of which they thought themselves the only lawful or necessary Members but indeed it was not so for they still supposed him to be their lawful King and yet at the same pretended to Arraign him as you may see by the Title of the Charge or Indictment they drew up against him all which I grant to be altogether unjust and illegal but it is not more but rather less dangerous to put this power of Judging when the King has thus dissolved the Government and forfeited his Crown upon such notorious and wilful breaches of the Fundamental Laws in the whole or diffusive body
as a wilful Forfeiture or Abdication of the Government and it is from this first going away that I suppose that the Convention dates his Abdication since though it is true after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popish Chappels and Papists Houses yet was it sign'd by very few of the Council and almost only by those who had been in some Office or Place of Trust so that though he was then own'd by them yet since that Order did only serve to shew his Zeal for the Popish Party and was never obey'd or taken notice of by those to whom it was directed and that neither the Prince nor the City of London owned him afterwards since it had already delivered it self up to the Prince and had as well as the Peers invited him to repair to that City I cannot see that so slight an act as this Order of Council should be counted a return to or a re-establishment in the Throne since the King had not only lost the Crown by his wilful departure without calling a Parliament or giving the P. any satisfaction in the great business of the pretended Prince of Wales or the Nation by repairing up those desperate breaches he had made upon our Fundamental Laws but had also lost his Title to the Crown by being Conquer'd by the Prince in open War as I shall prove more at large another time so that if you please better to consider this Vote of the Convention you will find that these words had Abdicated the Government do not only refer to the last clause of his having withdrawn himself out of the Kingdom but to everyone of the foregoing Clauses viz. His having endeavour'd to subvert the Constitution of this Kingdom his breaking the Original Contract and his having violated the Fundamental Laws so that it is plain their notion of Abdication was not fixt only in the Kings Desertion or bare withdrawing himself out of the Kingdom but from his renouncing the Legal Title by which he held the Crown and setting himself up as a Despotick Soveraign and ruling by a mercenary Army and therefore all that you have said about the Kings quitting the Government with a design to return to it again as soon as with safety he might is altogether vain for as he went away because he would not Govern any longer as a King by Law so hath he yet given us no satisfaction that he would not return again to Govern otherwise or rather worse than he did before had he an opportunity so to do that is as the Letter I cited but now phrases iâ— to return and have his ends of us so that this being indeed the case I think I can very well justifie the last clause in this Vote that the Throne was thereby vacant M. Sir you have spoke a considerable time and I doubt more than I can distinctly remember to answer as I should therefore before you proceed to this last Clause of the Vacancy of the Throne the dispute about which I foresee may hold longer than upon any of the former pray give me leave to reply to what you have already said in Justification of all the other parts of this Vote in the first place I will not deny but that if the King had once got the power of making what Mayors Aldermen and other Officers in Corporations at his pleasure it would have gone a great way towards the making the Majority of the Parliament-men nay I likewise grant that by his dispensing Power he might have made what Papists or other person he pleased Sheriffs in any County who would have made such return of Knights of Shires as he should have thought fit yet I suppose this would not have been to the subversion of the Constitution of the Kingdom which I think I have proved to consist originally in the K. alone before any great Councils or Parliaments were instituted And as for those violations of the Fundamental Laws and Liberties of this Kingdom the Declaration instances in I think several of them may very well be justified by antient Presidents and ad judged cases in Law and therefore were so far from being violations that they are no more than the Kings exercising of his due Prerogative and though at our ninth meeting I had not time so well to consider these matters as also because I was not then prepared to defend the Kings Proceedings I shall therefore make bold to examine the most considerable of those Articles which the Late Declaration supposes did so highly tend to subvert the Protestant Religion and the Laws and Liberties of this Kingdom I shall begin with the first viz. His assuming and exercising a power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament which Power let me tell you by the way was not asserted to Dispence with all Laws or Statutes whatsoever but only such as the Subject has no particular cause of action in and where the damage that may arise by it doth not concerns the publick safety of which the K. is sole Judge and not any particular mans interest I suppose you cannot but have read that learned and short account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales his Case written by Sir Edward Herbert Lord Chief Justice of the Common Pleas in vindication of himself wherein I think he proves beyond any possibility of a just answer that the dispensation granted to Sir Edward Hales to receive a commission and act as a Collonel of Foot was good notwithstanding his not having received the Sacrament and taken the Oaths and Test appointed by the Act of the Statute of the 25 of Charles II. where he first proves from my L. Cock's Authority that it belongs to the Kings Prerogative to Dispence with all Positive or Penal Laws the penalty thereof is only popular and given to the King and to shew you that my Lord Cook who was never counted any great friend to the Kings Prerogative was not single in this opinion he gives you also the authority of the year Book of Henry the VII where it was own'd by all the Judges That the King can Dispence with all things which are only Mala Prohibita and not Mala â—n se though expresly forbid by Act of Parliament for though says the Year Book before the Statute Coining of Money was Lawful but now it is not so yet the King can Dispence with it so that say I if he can dispence with that which is now made Treason by EÃ the III. he may certainly dispence with all other Penal Statutes of a less nature But because I grant there is some difference between Common Penal Laws which barely prohibit the doing of some things under a penalty and this Act in which there is also an express Clause of Non-obstante that all Licences or Dispensations contrary to this
Statutes of Provisors and Praemunire and I could shew you from divers Records of Parliament in the Reign of Richard II. Henry IV. and Henry V. that they never intruâ—ed the Crown with an absolute power of Dispensing with those Statutes but only for a time as till the next Parliament or longer as they thought fit But since I have not now so much time to give you so many Presidents at length I shall only tell you that as to the main instance you relye upon viz. the Kings Dispensing with the Statute of Sheriffs that at first it was not taken for Law appears by several Acts of Parliament as in 28. of Henry the VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd likewise in the Act of Edw. IV. there is a like Statute pardoning those Sheriffs Who by reason of the late troubles in the Realm had held for above a year yet nevertheless confirms all former acts concerning Sheriffs for the time to come and this held as far as the sixth of Henry VIII which is long after the Judgment you mention in the Exchequer Chamber of all the Justices in England to the contrary for there was then an Act made which reciting all the former Statutes about Sheriffs as then in full force it Enacts that the Sheriffs and under Sheriffs of the City of Bristol may continue to occupy their Offices in like manner as the under Sheriffs and other Sheriffs Officers in London do without any Penalty or Forfeiture for the same the said Acts or any other Acts to the contrary notwithstanding From all which Statutes I think it sufficiently appears that neither the Sheriffs of those times nor the City of Bristol nor the whole Parliament when that Act was made did believe the King had Power to Dispense with the Act of the 25 of Henry the VI. concerning Sheriffs for if they had certainly it had been much easier and cheaper for them to have obtain'd the Kings Dispensation than to have got an Act of Parliament for it M. I believe you may have cited these Statutes right enough but yet I think they are not sufficient proof against so solemn an Opinion as that of all the Judges in the Exchequer Chamber 2 d of Henry the 7 th and whatever the Parliament might have declared in the Case of this or that Particular Statute I confess carries some Authority with it yet ought it not to be counterval'd by so solemn a Judgment as that of all the Judges and Lawyers of England together with the King 's constant Exercise of this Prerogative not only since but before that time and that without any question or dispute with the Parliament about it as in the Case I have already put of the Statute that forbids any Welchman being an Officer in Wales to which I may add divers other Cases of like nature such as the Statute against a Judges going the Circuit in his own Country as also those Statutes that prohibit the King from granting Pardons to Persons convict nay condemned for Murther with several other Penal Statutes I could name were though the King's hands are tied up by particular Clauses of Non-obstante yet has His Majesty and his Predecessors at all times exercised their Prerogative of dispensing in all those Cases notwithstanding those Acts of Parliament with Non-obstantes to the contrary And though I grant you have given me several Presidents of the Parliaments sometimes restraining the King in this Exercise of the Dispensing Power yet they are all or the greatest part of them before the beginning of Henry the VII th's Reign when I grant the Law first began to be setled in this matter and since the Judgment of all the Judges in the Exchequer Chamber is the only Rule of Law we can have in the Intervals of Parliament and that this case of Dispensations being by them adjudged and ever since setled and own'd for Law without the least dispute I can see no reason we have to question it now But as for the Statute of the 6 th of Henry the VIII which you urge as a President to the contrary since the Reign of Henry the VII I think it will not reach the Point in question for the Act you now cited seems to me no more than a private Act for the Sheriffs of Brestol alone who being it seems afraid to rely upon the King's Dispensations because they thought them too chargeable to be taken out as often as they should have need of them did think it a great deal less charge and trouble to pass an Act of Parliament to indemnify themselves which I grant put that matter beyond all dispute But since this Act of Henry the VIII I find no contest between the Parliament and the King about his Power of dispensing with Penal Laws till the Reign of King Charles the II. when I grant the House of Commons did address to His Majesty That Penal Statutes in matters Ecclesiastical cannot be suspended but by Act of Parliament as also the last Address of the House of Commons in 1685. against the King's dispensing with the Officers of the Army their holding Employments without taking the Oaths and Test according to the Act whereby they were appointed But these being only against the King's Power of dispensing with Laws Ecclesiastical as concerning Liberty of Conscience can no ways be extended to their excepting against the King's Power of dispensing with divers other Penal Laws I will not say all which have Non obstantes in them F. Since I see not only your Opinion but also that of most of the Judges and Lawyers of England concerning this matter of the King's Dispensations with Penal Laws has been chiefly if not only founded upon that Opinion of all the Judges in King Henry VII i me give me leave to examine the validity of that Judgment for if that can be proved not to have been according to Law or elâ—e never given at all I suppose you must grant that my Lord Coke and all others who have founded their Opinions upon this adjudged Cause of Hen. the VII were mistaken Now pray give me leave to argue a little with you in point of Reason If a Non obstante from the King be good when by Act of Parliament a Non-obstante is declar'd void what doth an Act of Parliament signifie in such a case must we say it is a void Clause But then to what purpose was it put in Did the Lords and Commons who drew this Act of the 23 d of Henry the VI. as also those Acts concerning Sheriffs understand this Clause of Non-obstante to be void when they put it in If it were so and contrary to the King's Prerogative why did the King pass this Act without any refusal or protestation against it certainly it was then thought otherwise and if so we have the Authority of the two Houses of Parliament against the Opinion of the Judges But if it were not a
Crown yet the pretended hereditary right of blood was the main ground of his Establishment But as for King Henry the VII th tho' he could claim the Crown by no true Right of Inheritance yet would he never own it to be an Election by Parliament for as soon as King Richard was slain in the Battle of Bosworth the Lord Stanley put his Crown upon Henry's head who immediately stiling himself King as well by right of Conquest as by being sole Heir Male of the House of Lancaster He as such caused himself to be Crowned King and though he afterwards call'd a Parliament in which he procured his Title to be recognised yet as my Lord Bacon very well observes he was afraid to take the Crown by his only true Title in right of the Lady Elizabeth his Queen for fear he should only be King by Courtesie and must upon the Queens death have resign'd it again and should he take it by Election he knew there was a very great difference between a King that holdeth his Crown by a Civil Act of the Estates and one mind that that holdeth it originally by the Law of Nature and descent of Blood and therefore upon these Considerations he resolved to rest upon the Title of the House of Lancaster as his main Right and thereupon he caus'd an Act of Parliament to pass wherein his Title was acknowledged as my Lord Bacon there tells us not by way of Declaration or Recognition of Right as on the other side he avoided to have it by a new Law of Ordinance but chose rather a kind of a middle way by way of establishment and that under covert and indifferent words that the inheritance of the Crown should rest remain and abide in the King c. which words might be equally applied that the Crown should continue to him but whether as having former right to it which was doubtful or having it then in fact or possession which no Man denied was left fair to interpretation either way I speak not this to justifie all his actions but to let you see that he chiefly insisted upon his right of inheritance and absolutely disown'd any Title by Election from the People F. I cannot deny the matter of fact concerning King Richard the III ds Deposing his Nephew and Usurping the Crown to have been very wicked and contrary to the received Law of England concerning the Succession at that time and likewise that by Bastardizing his Brother the late King's Issue without due course of Law and by attainting the blood of his other Brother the Duke of Clarence he would have made the World believe that he was Lawful Heir by right of blood yet you will not deny but that for all this he was so sensible of the weakness of his Title that though it is true his right by blood is declar'd in the first place in that Act of Recognition yet it is plain he would not rely upon that alone and therefore you see the Parliament there also insists upon his right by Election and Coronation which they would never have done had it not been that they looked upon it for good Law that whoever was Crowned King and call'd a Parliament and had his Title therein Recognized and Confirmed was thenceforth true and lawful King to all intents and purposes therefore though you have omitted it I shall proceed to shew you what this Statute also farther declares For after they had declar'd the said King's Title as grounded upon the Antient Laws and Laudable Customs of the Realm according to the Judgement of all such Persons as were learned in them they proceed thus Yet nevertheless for as much as it is consider'd that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby truth and right in his behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of doubts and seditious Language therefore they also declare that he was the undoubted King Whence 't is evident that the reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best satisfaction that the generality of the People can possibly have in those high Matters was to rest on the judgment and determination of the Kingdom declared by Act and Authority of Parliament and therein to acquiesce for the preventing Sedition so much as in Language therefore what I said before in the Case of King Stephen is also true in this quod fieri non debuit factum valet and all the Acts made in the Reign of this King Richard though â— horrid Usurper were never repeal'd but stand good at this day As to what you say concerning the manner of King Henry the VII ths coming to the Crown is also true but as for his Title to it by right of Succession that was certainly false for his Mother the Countess of Richmond was then alive by whom he Claim'd the Crown and liv'd divers years after he was King so that though I grant that it is recited in the Parliament Roll that he claim'd the Crown in Parliament tam per justum titulum haereditantiae quam per verum Dei judicium in tribuendo sibi victoriam de Inimico suo in campo tho' the latter of these Titles may be true Viz. the Conquest of King Richard especially when once he was confirm'd and recognized in Parliament yet that the former could not be so is plain from what I have now said so that it is certain that King Henry the VII ths best Title was neither by Inheritance nor Marriage with the Princess Elizabeth but by the Act of Parliament as appears by the unprinted Statute it self still upon the Roll which since you did not repeat I will the Title is Titulus Regis and it runs in these words To the Pleasure of Almighty God the Wealth Prosperity and Surety of this Realm of England to the singular comfort of all the Kings Subjects of the same and in avoiding of all ambiguities and questions be it Ordained Established and Enacted by Authority of this present Parliament that the inheritance of the Crowns of the Realms of England and of France with all the preeminence and dignity Royal to the same pertaining and all other Seignouries to the King belonging beyond the Sea with th' Appurtenances thereto in any wise due or pertaining be rest remain and abide in the Most Royal Person of our now Sovereign Lord King Henry the VII th and in the Heirs of his Body lawfully coming perpetually with the grace of God so to endure and in none
Authority since besides that it was done by Usurpation in those rough and unsetled times yet I believe if the antient Writs of Summons were now in being you would find that they were called by those Usurpers though not by the Title of Kings but I defie you to show me since the Reign of Edward the First any Parliament ever call'd without the King's Writs of Summons and though upon the deposition of Edward and Richard the Second the Parliaments you mention might continue to sit and transact publick business yet was it during a plain Usurpation upon those Princes whom you your self must grant to have been unlawfully deposed and therefore we find upon the Parliament Roll of the 21 st of Richard the Second that an Act of the first of Edward the Third confirming the Judgment given upon the two Spencers was not only repeal'd in Parliament but declared to be unlawful because Edward the Second was living and true King being imprison'd by his Subjects at the time of that very Parliament of 1 Edward III. But as for your last instance of a Conventions declaring it self a Parliament in the Reign of King Charles the Second there is a great deal of difference between them and the present Convention since they did not take upon them to declare or make a King as this Convention has done but only to recognize him to be their Lawful Sovereign which as I have already told you being that which was their duty to do they might very well justifie though they were not Summon'd by the King's Writs but however all their Acts were looked upon as made without legal Authority and therefore were confirmed in the first legal Parliament of King Charles's Reign But as for the Authority of the Statute of the 13 th of Eliz. whereby you would prove that the Parliament has at this day power to alter or limit the Succession of the Crown besides that such an Act being against the fundamental rules of Succession was void in it self yet if you please to look upon the Act in Rastal's Statutes you will there find it was only made to serve a present turn and to keep the Queen of Scots and her Party from enterprizing any thing against Queen Elizabeth and therefore it is there only declar'd to be Treason during the Queens life for any Persons to maintain that the Queen could not riot with the Authority of the Parliament limit the Succession of the Crown and as for the last Clause that makes it forfeiture of Goods and Chattels to maintain the contrary after her decease this was made to strengthen and confirm the former part of the Statute which was a provision and security against such pretences and Practices as had been lately made against her by the Papists on the behalf of the Queen of Scots Title and this Clause could not take effect after her death but was added to preserve Queen Elizabeth's Memory from being defamed after her decease or being slanderously charged with the heinous Crime of Usurping the Crown which must have been the inevitable consequence of affirming that she and her Parliament could not limit the Succession For to confess the truth I think Queen Elizabeths best Title was by Act of Parliament since her Legitimacy might be justly question'd by reason that her Mothers Marriage was declar'd unlawful by the 28 th of Henry the VIII th and she was as good as declar'd illegitimate by her Father in that very Act that setled the Crown upon her but that this Statute of the 13 th of Queen Elizabeth is now looked upon as expired appears in Palton's and all other late Collections of the Statutes since her time wherein the Title of the Statute is barely mention'd with EXP. immediately following it to shew it is looked upon as expired So that you are mistaken to affirm that the Convention has done nothing in the late limitation of the Crown but what may be justified from that Statute therefore if it be not Law at this day I think they had no Authority to alter the Succession of the Crown from the right Line let them be of what Religion they would F. I see you do all you can to evade the force of my Authorities from History and direct matter of Fact and therefore as to what you say that those were rough and unsetled and therefore no Precedents to be drawn from thence this is to beg the Question for what could be the Law concerning the Succession of the Crown for the first hundred and fifty years after the Conquest but the constant usage of the Great Council of the Nation as low as the Reign of Henry the Third and it is a bold assertion to accuse the whole Nation of Perjury and Rebellion against their Lawful Kings during all those Successions I have now instanced in nor have you any thing to say against those Parliaments that met in the 1 st of King Edward III. and Charles the II. but that their Meeting was Lawful because it was only to recognize those Kings and not to make them which is indeed to beg the Question since you cannot deny but those Parliaments are held for good notwithstanding they were not call'd by the King's Writs But as for making a King the present Parliament have not taken upon them to do it since they do not in the Act for the Succession Elect King William and Queen Mary to be our Lawful King and Queen but only declare or recognize them to be so upon supposition that the Prince of Wales is either an Impostor or else his Legitimacy impossible to be tried and determined by them Nor are your Objections material against the Authority of those Acts of Parliament which were made in the 1 st of King Henry the IV th and Charles the II d. which were never Summon'd by those Kings Writs For as to the first of those Instances most of those Acts of Henry the IV th stand good at this day without ever being confirm'd by any subsequent Parliaments And tho' I grant that the publick Acts made in the first Year of King Charles the II d. were confirm'd in the next Parliament of that King yet this does not prove that they would have been void without it since divers private Acts passed in that Parliament which were never confirm'd in any other and yet are held for good As particularly an Act of that Parliament for making the Church of St. Paul's Covent-Garden Parochial And this Act though never confirm'd was yet adjudged to be in force by the Lord Chief Justice Hales and the rest of the Justices of the Court of King's Bench in a Case concerning Rate Tythes between the Minister and some of the Parishioners of the said Parish Nor is what you have now said to prove the Statute of the 13 th of Queen Elizabeth whereby the Crown is declared capable of being limitted by Act of Parliament to be now expired since it is plain by the purport of the
spend our dearest blood in the defence of our Sovereigns Person and the preservation of his Crown and Dignity For it is to be observed that by the Law this Allegiance is due to the Kings Person so the same Author says it was then resolved by all the Judges that that Ligeance was due to the natural person of the King which is ever accompanied with the politick capacity and the politick capacity as it were appropriated to the natural and not due to the politick capacity only To conclude if my former Oath of Allegiance to King Iames doth still continue as I am satisfied in my Conscience it doth I cannot take a new Oath of Allegiance to King William and Queen Mary since I should thereby be obliged by the force of these words in the Oath viz. I will be faithful and bear true Allegiance to yield it as much to those that are not my Lawful Sovereigns as I am to those that are so which will be contrary to my first engagement for though I grant that there is no express Declaration of the Right of the present Possessors of the Throne and that I have heard that the word rightfull which was at first inserted into this Oath was struck out because as many as could be might be drawn in to take it yet as long as the words that remain import the very same thing it is all one as if the word rightfull were there for though the deliberate omission of the word rightfull does necessarily infer that we are not obliged in this Oath to a recognition of their right to the Crown yet it does not infer that we are not obliged to pay as high a degree of Allegiance as to any rightful King whatsoever that omission indeed is an Argument that the word King in the Oath does not necessarily signifie a King de jure but it is no argument that true allegiance does not signifie true Allegiance that is an obligation to adhere to the King against all his Enemies for there was no debate that we know of about the sense of the word Allegiance neither is there the least intimation given that they design'd to restrain it to a lower signification though it was plainly necessary to do it if they intended to alter the commonly received meaning of it wherefore as the striking out of the word rightfull would not have proved that they did not intend to oblige us to an active assistance of King William against all men living if those words had been expresly inserted in the Oath so neither will it prove that the same duty is not now required of us if the word Allegiance do as I have proved in terminis import it and that as fully as if it had been in express words requir'd in it And that this word Allegiance implies something more than a bare passive submission or neutrality from all Subjects as well as Magistrates and Officers appears by that passage in the Statute of the 11th of Henry the VIIth which you have now cited where 't is plainly and expresly declared that every Subject by the duty of his Allegiance is bound to serve and assist his Prince and Sovereign Lord at all seasons when need shall require this is so express and authentick a Declaration of the true duty of Allegiance that no Art or Sophistry can possibly evade it F. I confess you have argued this point of taking this new Oath of Allegiance not only like a Civilian but a common Lawyer also and I cannot deny the force of what you have said that this Oath must extend to an active obedience and defence of their present Majesties in their right to the Throne and not only to a bare sluggish submission or a luke-warm Neutrality And therefore I cannot say but you are justly scrupulous in not taking this new Oath untill you are satisfied of their Majesties Right as well as present Power but if you will please to observe the purport of this Act of the 11th of Henry the VIIth which you now mention'd you will there find it as good as expresly declar'd that Allegiance is due to him who is lawful Sovereign and the King for the time being is still to be looked upon as such for the words in the Statute are that no Man shall suffe for assisting the King for the time being without specifying by what Title he holds the Crown whether by an hereditary Right or by Conquest Election or the solemn recognition of his Title by all the Estates in Parliament so that by this Act all that Allegiance that was once due to the former King de Iure becomes thereby wholly transfer'd to the King de facto M. I grant what you now say would go a great way to satisfie me could you once prove that this Statute is now in force and is not now either abrogated or expired or else which I rather incline to believe is not absolutely void in it self In the first place therefore I hope to shew you that this was not Law before this Statute was made and therefore not declaratory of what was Law but endeavours to make that to be Law which was not so before so that the King for the time being there mention'd must be a King de jure or at least one that was presumed such because at that time the Constitution knew no other for that Possession was not a sufficient Title before the 11th of Henry the VIIth will evidently appear from these following Remarks First that all the Kings of the House of Lancaster are declared in the Statute of the first of Edward the IVth to be Kings in Deed but not of Right and pretended Kings and particularly Henry the VIth is said to be rightfully amoved from the Government and his Reign affirmed to be Intrusion and Usurpation and himself Attainted for being in Arms against Edward the IVth Secondly all Patents of Honour Charters and Priviledges which were granted by the House of Lancaster all Acts of Royal Authority which the Kings of England have a right to execute by vertue of their sole Prerogative nay Acts of Parliament themselves particularly those relating to Shrewsbury and some others which by parity of Reason supposes the rest in the same Condition all Acts of this nature were confirmed by the first of Edward the IVth which is a good Argument that this Parliament believed the Authority by which they were performed to be defective and illegal for we never find any such general confirmation as these pass upon the grants of the King de jure Thirdly in the first year of Henry the VIIth Richard the IIId was Attainted of High Treason in Parliament under the the name of Duke of Gloucester from whence 't is plain that as there was no Statute so neither was there any Common Law to support the Title of a King de facto for Treason is an attempt against the Kings Person his Crown and Dignity but no Man can commit Treason
from the constant practice of those times that the King de facto was always own'd as Lawful Sovereign and had Allegiance still paid him by all the People of this Kingdom except those who being the heads of one or the other Party were either attainted or else forced to â—lye the Kingdom But as for all others though different and contrary Oaths of Allegiance were impos'd upon the People sometimes by the one and sometimes by the other of those Kings according as they got possession of the Throne yet I can no where find that ever any body suffer'd for barely swearing Allegiance to the King then in Being for it was always taken for Law that Allegiance was due to the King de facto since ordinary Subjects are not suppos'd to understand the legal right or justice of the Kings Title M. I must still say that there was some colour for the Peoples thus acting as you say they did during the contest for the Crown between the two Families of Yorke and Lancaster when I grant it was somewhat a difficult matter to judge which of the two had the best right to the Crown by reason that the House of Lancaster had held it for three descents as also from the speciousness of their Title since it was founded upon a pretended claim by right of blood upon supposing that Edmund Sirnamed Cronch-back who was one of the Ancestors of this House of Lancaster was the Eldest Son to Henry the Third which had it been true would have given Henry the Fourth a good right to the Crown not only against Richard the Second but his own Grandfather Edward the Third likewise had he been then alive and this descent falling out long before the memory of any man then living who could confute the falsity of this pretended Pedigree The People of England might very well be excus'd for owning an Usurper and paying Allegiance to him since they did not know but his claim might have been right especially since it was approv'd of in full Parliament without any contradiction as I have already shewn you at our last Meeting But what is all this to the matter now in debate between us when the Lineal Succession of the Crown has been so often declared to be the only means of acquiring a just Title to it and every one knows very well who was own'd for lawful King of England within these three Months and also who was pray'd for in all our Churches as his Son and Heir apparent and therefore I must still tell you that your parallel between those Kings de facto of the House of Lancaster and those Princes whom the Convention have now voted to fill the Throne does not at all agree since every Subject of this Kingdom who has but sence enough to go to Market can very well tell if they will deal sincerely to whom their Allegiance is due F. As to what you have now said it is no more than a repetition of what you have already urged to evade the force of these clear Authorities but indeed it was all one when a Prince had been once recognized for Lawful King by Act of Parliament whether the People knew his Title not to be good by right of blood or not And this I have plainly proved to you from the instance of Richard the Third who though both his Elder Brothers Children were then alive and the Eldest of them had been Proclaim'd King and also own'd for such by himself and whose Title he had also sworn to maintain in his Brother King Edwards life time as appears by the Clause Roll of the 11th of Edward the Fourth yet when he had once depos'd him and had call'd a Parliament which recognized his Title his Acts and Judicial Proceedings stand good at this day and though he himself was attained and declar'd a Tyrant and an Usurper yet all the Subjects who acted under his Authority and had taken an Oath of Allegiance to him never needed an Act of Indemnity for so doing whereas those that came over with Henry the VIIth were sain to have an Act of Pardon past to Indemnifie them for fighting against Richard the Third as I have now show'd you And though this Parliament of the first of Henry the Seventh agreed to repeal divers Acts which the King found fault with yet as for all other Statutes made in the Reign of King Richard the Third which have not been since repealed they are still in force without any confirmation likewise when Henry the Seventh had prevail'd over Richard the Third and that he was slain in the Field though all the Nation very well knew that Henry the Seventh could not be Heir of the House of Lancaster because his Mother was then alive and had never formally given up her right if she had any as certainly she could have none as being descended from Iohn Earl of Somerset who was base Son to Iohn of Gaunt Duke of Lancaster by Catherine Swinford whilst his Wife was alive and though I grant after his Marriage with the said Catherine the Children born of that Bed were made legitimate by Act of Parliament in the 20th of Richard the Second yet that legitimation only respects such private Priviledges and Inheritances which they might enjoy or succeed to as Subjects and not in respect of the Crown the Succession of which they were expresly declared uncapable of by that very Act of Legitimation still to be seen upon the Parliament Roll. But for all this when Henry the Seventh had called a Parliament and was therein recogniz'd for their Lawful Sovereign and that the Crown was setled by Statute on the King and Heirs of his Body without any mention of the Princess Elizabeth who ought to have been Queen by right of blood yet none of the Subjects of this Kingdom as I can find ever scrupled to swear Allegiance to him before ever he married that Princess though they as well knew that he could have no right by blood as you can suppose that the People at this day can know whether King Iames has abdicated or forfeited the Crown or not or whether your Prince of Wales be his true and lawful Son for since they are both nice and difficult Points and having been determined by the Convention the Supream Judges in this Case in favour of their present Majesties and that they also recognized their Title after they became a Parliament I can see no manner of reason why all the Subjects of this Kingdom may not as well justifie their taking this new Oath of Allegiance to them notwithstanding their former Oath of Allegiance to King Iames and his Right Heirs as well as the People of England could justifie their taking an Oath of Allegiance to Henry the Seventh notwithstanding their former Oath to Edward the Fourth and his Right Heirs before ever Henry the Seventh had Married the Princess Elizabeth the Heiress of the Crown especially since this Act of the 11th of Henry the
Nation as I have already sufficiently made out And therefore though I grant that all Legal Authority ought still to go according to just or rightful Titles yet since God makes no Kings at this day â—ut those who are made Kings by some humane Acts and have a legal right to Kingship by some humane Laws Now how can you prove from hence that in England none can have a legal right to govern but those who have the rightful Title of a Lineal Succession for if the Title alone does not conferr the the Authority but that the Law says a legal investiture by Coronation and Recognition by Parliament shall also conferr it it is evident that an Hereditary Title and a Legal Authority may be separated and yet the Authority continue Legal still for Legal Authority must be conveyed in such manner and by such forms as the Law has prescribed or appoints to that purpose for there is no other way of conveying it and then that Authority which is so given in form of Law and that only is the Legal Authority If then the Estates of the Realm who are the only proper Judges of such Disputes have adjudged the Crown to one whom we will at present suppose to have no antecedent legal Title to it yet he thereby becomes legally possessed not only of the external force and power but of the legal Authority of the Government also and therefore he may challenge as his due all Legal Obedience which is the true notion of Allegiance for nothing more than Legal Obedience can be due to a meer Legal Authority so that because he is invested with the Legal Authority the Crown is his Legal Property against all other Claims and his Subjects must defend him in it as the Legal Properties of private Persons being once determined by Judgements of inferiour Courts of Law are also to be defended by the Civil Power against the force of him who perhaps may have the better Title to the Estate by right of blood And if God makes Kings by humane Acts I hope it is no injustice in God to make him a King whom the Law makes a King and to enjoyn our Obedience to a Legal King which Legal Authority may be said to be annexed to the Legal Title while there is no Legal Judgement against it which was not the Case of Queen Mary and the Lady Iane her Competitor nor yet of King Charles the Second and Oliver Cromwell since neither the one ' or the other were ever Crowned or acknowledged as Lawful Queen or King by Parliament and therefore could obtain no Legal Title against the Right Heirs but on the other side when one is solemnly declar'd King or Queen being Crown'd or plac'd on the Throne by the Estates of the Realm he is then Legal King and has the Legal Authority as the Royal Estate and Dignity was owned to be in Henry the VIth when the Duke of York claimed the right to the Crown M. I am not yet convinc'd I am mistaken in this matter for waving at present any Natural or Divine Rights of Princes I think this Act of Henry the VIIth if suppos'd to be now in force is no ways to be reconcil'd with the former declar'd Laws and Statutes of the Kingdom much less can this last pretended Act of Recognition of King William and Queen Mary reverse the Statute of Recognition made to King Iames the First whereby the Parliament does not only own him for true and lawful King by descent from Henry the VIIth and Edward the IVth but also engaged themselves and their Posterities to his Majesty and his Royal Progeny for ever And they do likewise conclude in these words I have not yet mention'd which Act if Your Majesty shall be pleased as an argument of your gracious acceptation to adorn with your Majesties Royal Assent without which it can neither be compleat and perfect nor remain to all Posterity according to our most humble desires as a Memorial of your Princely and tender affection towards us we shall add this also to the rest of our Majesties unspeakable and inestimable benefits Here they plainly acknowledge these two things First that the Crown descendâ— by proximity of blood and that immediately even before any Ceremony of Coronation or otherwise so that there can be no inter-regnum or vacancy of the Throne and accordingly it is a maxim in Law that Rex non meritur Secondly That the Assent of the King is that which gives the life being and vigour to the Laws without which they are of no force therefore I shall plainly prove these Acts to the contrary to be void It is a Maxim in our Civil as well as your common Law ' that every Sâ—natus-Consultum or Decree of the Senate as also every Statute or Act of Parliament must be abrogated and repeal'd by the same Authority by which it was made since therefore that Act of the first of Edward the IVth whereby he was declar'd to be Lawful King as descended from Lâ—â—nel Duke of Clarence third Son of Edward the Third by Philippa his Daughter and Heir and that Henry the Fourth and Henry the Sixth who had successively held the Crown were Usurpers and only pretended Kings it would necessarily follow that none can after this so Solemn Law and Declaration lawfully succeed to the Crown of this Realm but such as have a true and just right as Heirs by blood according to the course of descent allow'd of by the common Laws of this Kingdom and therefore Henry the VIIth being an Usurper and enjoying no more than a Matrimonial Crown could not joyn with a Parliament in making any Law contrary to that of the first of Edward the IVth which had been so solemnly past and setled in Parliament by a King whose Title was by descent indisputable So likewise in the matter now in dispute between us I can never apprehend how a pretended Statute made in a Convention and not in a Lawful Parliament summon'd by the King can first declare the Throne vacant and then appoint those to fill it who certainly can have no just Title to it according to that Act of Recognition of King Iames which expresly declares that they themselves could not have made that Act to be compleat and perfect to remain to all posterity without his Royal Assent which being once past into a Law by a King whose Title was indisputable can never afterwards be alter'd if ever it can be at all but by a Parliament as legally call'd and that by a King whose Title is also as Legal as that of King Iames the First 's this Objection though I have often urg'd in other words yet could I never yet obtain a satisfactory answer from you F. Though I have already in part answer'd this Objection at our last Meeting and have also partly done it already in this yet since I see you so much insist upon it and do also urge it again in other words with a fresh
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
in pleyn Parliament that is in full Parliament where both Lords and Commons were present that the Proceedings of the Lords against those that were no Peers should not be drawn into Example c. Now pray see the Commentaries of the most Learned and Reverend Author of the Grand Question upon these words in this Record This hath all the formality of an Act of Parliament and therefore all the Estates were present so likewise in the same year in the next Roll but one Accorde est per nostre Seigneur le Roy son Counsell in Plein Parliament which was an Act of Parliament concerning those that had followed the Earl of Lancaster So in the 5 th of this King we have the particular mention of the Bishops as some of those who make a full Parliament Accorde est per nostre Seigneur le Roy Prelates Counts Barons autres Grands de Roiaâ—me in pleyn Parliament So in the 6 th of Edward the Ill d the Arch-Bishop of Canterbury made his Oration in pleyn Parliament which is thus explained en le presence nostre Seigneur le Roy tous les Prelats autres Grantz And in another Roll si est accorde assentu per tous in pleyn Parliament and who these were we are told in the same Roll viz. les Prelats Counts Barons tous les autres Summons à misme Parliament Now this is the clearest explication of these words in full Parliament viz. in the presence of all those who were Summon'd so that if the Commons were then Summon'd to this Parliament as certainly they were they must have given their Assents under the Title of Grantz since the Prelats Earls and Barons were particularly mention'd before To Dialogue the 10 th p. 706. after these words be Reformed by them or not read thus And that King Iames the First himself was satisfied of this Original Contract may appear by his own words in a Speech to both Houses of Parliament 1609. where he expresly tells them that the King binds himself by a double Oath to the observation of the fundamental Laws of his Kingdom Tacitly as being a King and so bound to Protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation so as every King in a setled Kingdom is bound to observe that paction made to his People by his Laws in framing the Government as agreeable thereunto according to that paction which God made with Noah after the Deluge c. To Dialogue 12. p. 874. after their Successors add this So that all the Modern Acts of Parliament for intailing the Crown being made and ordained by the Counsel and Assent of the Lords and Commons are so many plain declarations and evident Recognitions what the Fundamental Constitution of the English Government was in that grand Point To Dialogue the 12 th p. 898. after the words of the said Parish read thus and that not only all the Private Acts of that Parliament but some Publick ones also tho' never confirmed in the following Parliament of the 13th of Charles the Second are yet held good in Law appears by these that follow viz. 1. An Act for Continuance of Process and Iudicial Proceedings Continu'd By which all Writs Pleas Indictments c. then depending were ordered to stand and proceeded on notwithstanding want of Authority in the late Usurpers and therein it was farther ordained that Process and Proceedings in Courts of Justice should be in the English Tongue and the generall Issue be Pleaded till August 1. 1660. as if the Acts made during the Usurpation for that purpose had been good and effectual Laws And upon this foot only stand many Fines Recoveries Judgments and other Proceedings at Law had and passed between April 25 1660 and August 1. 1660. 2. An Act for Conforming and Restoring of Ministers This Act is usually to this day set forth and pleaded in Quare impedits tho' it was said to be refused upon debate to be confirmed in the House of Commons 13th of Car. II. when divers other Acts of the same time were confirmed yet both these Acts having no other Authority but from that Convention as you call it have been Judged and Constantly allowed to be good Laws for above these 30 years To Dialogue the 13 th p. 966. after these words were still alive read this And to shew you that the King and Parliament have deprived even Bishops of their own Communion and that such deprivations have been held good and that the King hath nominated new Bishops upon the vacancy you may see in Dr. Burnets History of the Reformation and in the Appendix to it where you will find a memorable Act of Parliament of the 25 th of Henry the VIII before his departure from his obedience to the See of Rome whereby Cardinal Campegio and Hieronimo de Ghinicci were deprived of the Bishopricks of Salisbury and Worcester which they had held for near 20 years and Campegio had without doubt been installed in it when he was in England The Act it self being so remarkable I shall give you some passages out of it verbatim first the Preamble sets forth that whereas before this time the Church of England by the Kings most Noble Progenitors and the Nobles of the same hath been founded ordained and establish'd in the Estate and degree of Prelacy Dignities and other Promotions Spiritual c. which sufficiently confirms what I but now asserted that all the Bishopricks were founded by our Kings with the consent of their Grand Councils or Parliaments and then it proceeds to recite that whereas all Persons promoted to Ecclesiastical Benefices ought to reside within the Realm for Preaching the Laws of Almighty God and keeping hospitality and since these Prelates had not observed these things but lived at Rome and carried the Revenues of their Bishopricks out of the Kingdom contrary to the intention of the Founders and to the great prejudice of the Realm c. in consideration whereof it is Enacted by the Authority of this present Parliament that the said two Sees and Bishopricks of Salisbury and Worcester and either of them henceforth shall be taken reputed and accounted in the Law to be void vacant and utterly destitute of any Incumbent or Prelate and then follows a Clause enabling the King his Heirs and Successors to nominate and appoint Successors being the Natives of this Realm to the said Sees and the King did nominate Successors according to the said Act. A Table of ERRATA THE Authors Occasions not permitting 〈…〉 Town whilst most of these Dialogue were in the Press begs pardon for the many Erratas in some of them and desires you to Correct such gross ones that alter or disturb the sense viz. Dial. 1. p. â—0 l 24. for Author r. Authority p. 52. l. 37. for 4th r. 5th p. 36. l. 38. for Rights r. Rites Dial. 2. p. 80. l. 25. del hundred r thousand p. 80 l. 22. d. Greek p. 84.
write against any man's Opinions as they are his but only freely to examine them in order to an impartial discovery of the Truth and since some of them may have been perhaps too commonly and favourably received by our ordinary Gentry and Clergy if therefore any ingenious person will take upon him farther to assert or vindicate any Opinion here questioned either by the one or other of our Disputants and will clearly and fairly shew me where my Argument might 〈◊〉 been put more home or any Objection more solidly answered shall be so far from taking it amiss that I shall rather give him my thanks for his pains and do here farther promise to insert all or at least the substance of his Arguments under their poper Heads with all due acknowledgments to their Authors if ever the Discourses will bear a second Impression only I desire him whosoever he shall be so far to imitate the Gentlemen who are supposed to converse in these Dialogues as to for bear all rude Reflections and course Language otherwise I hope they will give me their pardon if I only take notice of their Reasons and pass by their Passion Nor would I have any Candid Reader to slight the two first Dialogues because they treat of Opinions at present out of fashion viz. The Divine Right of Monarchy and Succession from the Patriarchal Power given by God to Adam since you may easily remember that it is not many years ago that our Pulpits and Presses would scarce suffer any other Doctrines either to be Preacht or Publisht than on these Subjects It faring with some Political Opinions as with Fashions which are never so generally received and worn as when they have been in Vogue at Court Those Divines and Lawyers who were the first Inventers or new Vampers of them commonly receiving the greatest Rewards and Prefermets who as the Court Taylors did Fashions could invent such Doctrines and Opinions as were most burthensome and uneasie to all sort of People except a few Great ones who were to gain by them and I desire you also farther to consider that however odd or unreasonable these Doctrines may seem to most men yet certainly they must have at least a great appearance of Truth since they were able to Captivate the Reasons of the Major part of both Houses of Convocation in the begining of the Reign of King James the First they then declaring them by several Cannons made on purpose the only sure Foundations of all Civil Authority as also of Obedience thereunto as plainly appears by that late Treatise which goes under the name of Bishop Overal's Convocation-Book And thô neither the King nor Parliament then thought fit to give those Cannons the stamp of Civil Authority whereby they might become Laws Yet for all this it did not hinder divers Learned and Ingenious men as well of Clergy as Laity from embracing these Opinions such as were Sir Robert Filmer and his Vindicatior Mr. B. as also the most Reverend and Learned Bishop Sanderson with divers others of note whose Arguments I have made use of and considered in the two first Dialogues and that in a way as little reflective as possible since I know what is due to the memory and fame of such great and worthy Persons and therefore I have only made use of the initial Letters of their Names or Titles of their Books in the Margine with an Index at the beginning of each Discourse shewing what Book each mark does signifie which Method I have persued through all the rest of these Discourses and of what is not so markâ— I desire the Reader to look upon the words if not the sense to be my own since I do not pretend to be an Inventer of new Notions in Politicks and there is no man more sensible than my self of that Old Latine Sentence Nihil dictum quod non dictum prius But tho' I have already finisht almost all the Discourses on the Subjects above mentioned yet am I not very fond of publishing them after so many several Treatises that have been written thereon tho' my design be for the saving of the Readers money as well as time to reduce what is material in all of them into so many 12 d. Books and therefore I have at present published this first Dialogue as an Introduction to the rest that according to the success I find this meets with abroad I may be more or less encouraged to proceedâ— nor â—eed it seem strange to any considering person that I chuse rather to publish one Discourse at a time since it is but too publick a Complaint how scarce a Commodity Money as well as Paper is at this time And therefore I have given the Printer leave to publish one of these Discourses in a month or oftner as he shall think good since I am sensible the greatest part of common Reader would rather part with eight or ten shillingâ— at so many several times than all at once and have therein endeavoured to imitate the Great Council of the Nation who have thought fit to divide the present Pole-Tax into four quarterly Payments I have but one thing more to advertise the Reader viz. That tho' the Title of this Discourse mentions no more than the discussing the Question Divine Right of Monarchy yet the natural Powers of Fathers and Masters of Families and Freemen are here disâ—inctly treated of and closely enquired into as being the first Elements or Principles of all Civil Powers as those alone out of which they could be at first regularly made and into which they are upon the dissolution of Civil Governments again to be resolved To conclude therefore I hope that the Arguments in this and all the following Discourses may prove so plaiâ— and convincing to all careful and unprejudiced Readers that they may as easily discover the Truth as an honest unbyass'd Iury-man can aâ— a Tryal judge on which side the Right and Iustice of the Cause inclines upon the barehearing the Evidence on both sides nay even before the Court hath summed it up Since I think it may prove more useful as well as divertive to hear or peruse the Arguments and Reasons in short that may be brought oâ— either side and thereon to pass a Judgment than to Read over the tedious and Voluminous Deâ—ds and Evidences of the Estate in Question But on which side soever you bring in your Verdict I heartily wish that God would direct your minds and guide your Iudgments to find out and embrace the Truth which as it was the only End of my writing so it is now and will be also of publishing this and those other Treatises I intend on the Subjects I have before mentioned Adieu The Subject of the First Dialogue WHether Hereditary Monarchy be of Divine Right or Institution Authors made use of in this Dialogue and how denoted in the Margin 1. Sir Robert Filmers's 1. Observations on Grotius de Belli Paâ—u R. F. O. G. 2. Patriarcha F.
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
or not M. I thank you for the pains you have taken to inform my understanding in this matter And therefore since 't is now very late I desire we may Adjourn our conversation to another time And then I desire that you would prepare your self to discourse with me of the second important Question we agreed on viz. the irresistibility if all Supreme Powers by their Subjects not only because Resistance in any case whatsoever 〈◊〉 inconsistent with Supreme Power and destructive to the Peace of Civil Society but chiefly as they derive their Authority immediately from God and are only to render an Account to him of their Actions F. I will not deny but what you have said is true in some sense That all Soveraign Power is derived from God and is also as such irresistible by Subjects But to affirm generally and absolutely as most of your Opinion do that all Commands and Acts of Men endâ—â—d with this Supreme Authority whether good or bad lawful or unlawful are part of that Authority derived from God and therefore irresistible in any casâ— or upon any necessity whatsoever is so dangerous a Proposition that I know none that hath contributed more to the encouragement of the Râ—ng and the Popish Faction we favoured to make all those Breaches upon our Laws Religion and Liberties which we have suffered since the beginning of his Reign M. I am so well pleased with the Freeness and Ingenuity of your Conversation that I desire nothing more than to discuss this important Question with you at our next meeting But I beg your pardon if being taken up by Come Business to morrow I adjourn our next meeting to the Day after when if you please to come at the same hour at you did to night you shall here find me ready to wait on you In the mean time I must bid you good night F. Your Servant Sir I wish you heartily good night I will not fail to meet you at the time appointed FINIS Bibliotheca Politica Or a DISCOURSE By way of DIALOGUE WHETHER Resistances of the SVPREAM POWER by a whole Nation Or People in cases of the last Extremity can be Justified by the Law of Nature or Rules of the Gospel Collected out of the most Approved Authors both Antient and Modern Dialogue the Third LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First and Second Dialogues 1692. The Subject of the Third Dialogue AUthors whose Words or Sense are made use of in this Discourse and how denoted in the Margin 1. Dr. Hicks's Iovian or Answer to Iulian H. I. 2. Mr. Bohuns defence of Sr. R. Filmer B. D. F. 3. Two Treatises of Government T. T. G. 4. A Pamphlet Entituled Vindiciae Iuris Regii V. I. R. 5. Dr. Sherlocks Case of Resistance S. C. R. 6. Plato Redivivus P.R. 7. Mr. L'Estrange's Observator L. O. Advertisement to the READER THE Author in relation to this as well as the subsequent Dialogue desires you to be so Candid as to believe that tho' under the Name of Free-man he hath argued against an Opinion now or lately much in vogue viz. That an absolute Irresistibility is an insepable Prerogative of all Soveraign Powers as well Monarchies as Common-Wealths Yet no man more abhors all unnecessary Resistance or Rebellion against Supream Civil Magistrates and is more for an Absolute Submission by all particular Persons whether Private or Publick in case of the highest Injuries and Oppressions done to themselves alone and where the Common Good of the Community is not immediately concerned than himself And this he owns to be their duty not only out of a generous regard to the Peace Tranquillity of the Common-Wealth whereof they are Members which ought not to be disturbed to revenge or redress a few Private Injuries but also from the express Command of Gods Will Reveal'd in the Holy SS expresly forbidding not only all Revenge but self-defence too whilst the Supream Powers act legally tho' perhaps contrary to the Strict Rules of Justice and Equity in such Particular cases Yet for all this the Author must still declare he doubts whether those Precepts do extend to all Resistance whatever viz of any whole Nation or great Body of Men whose Preservation or Freedom from an intolerable slavery and Oppression may render it necessary for the good of the Common Wealth and is no other way to be procured but by a Vigorous Resistance or else joyning with some powerful Neighbour Prince or State who shall interpose for their deliverance So that if such a Resistance be ever Lawful it can be upon no less momentous anâ— account than that of a General Invasion either of the Lives Liberties Religion or Properties of a whole or major part of a Nation as they are established by the Law of Nature or the Fundamental Constitutions and municpial Laws of those particular Kingdoms and Common-Wealths where such an Insupportable Tyranny and Oppressions are then exercised And if this be not Lawful in such extraordinary cases it would seem as if God had preferred the unjust Power or Force and the outward Grandeur of the Governours before the good and Happiness of the Governed which is contrary to the main ends of all Civil Government viz. the common good Happiness of Mankind even as those who are most against all Resistance whatever must allow But whether such Resistance be not in these Cases a Lawful nay only means for the safeguard and deliverance of such assaulted or Oppressed Nations the Author leaves it to the Iudgment of the Impartial Reader to determine upon the perusal of this and the subsequent Discourse since all that could be urged on both sides in this important Question could not be comprised within the limits of one Eveninâ—â— conversation which the Author had prescribed to himself yet will he not be much concerned on which side you give your sentence Since however Criminal some Men have endeavoured to render the Doctrine of Resistance even in the cases proposed yet the Author must believe till he is better convinced to the contrary that the Question being only Moral or Political and not about any point of Faith or Law may be safely maintained by either party without any guilt either of Heresie or Treason The Author farther desires you to take notice that tho' he hath in both these subsequent Dialogues made one of his Disputants to make use not only of the Arguments but the very expressions of two Learned and Reverend Divines in some late Treatises on this Subject yet that he hath not acted thus out of any design of Writing against them or those Opinions there laid down as they are theirs since it is well known the same Arguments and Texts of Scripture have been made use of by other Writers on this Subject long before But as it must be confessed that none have managed this controversie with better Reason and greater Eloquence so he hopes that neither
those Laws had any thing to do in England before but always supposed the Politick Laws of our Country to be the only measure of the King's Prerogative as also of the Subject's Obedience and Subjection Nor do your own Civil Laws by as much as I know of them make any difference between the Imperial and Political Laws of the Empire for by the one as well as the Other the Civilians understand such Laws or Ediâ—ts of the Emperours which with the Approbation of the Senate were made for the Peace and Well government of the Common-Wealth but I never yet heard of any Imperial Laws whereby the Emperour declared that he had a Right to plunder or murder all the Citizens of Rome or that they believed they were obliged to Suffer by your Imperial Laws without any Resistance I am sure the Senate and People did not believe that the Emperour had any such Authority when they declared Nero and Maximin for their intolerable Cruelty not only Enemies of the Common-Wealth but of Mankind But if by these Imperial Laws of Non-resistance you mean no more than what you laid down in your Syllogism That it is an inseparable Right or Prerogative of Soveraign Powers not to be resisted by their Subjects when you have proved this Proposition by the Laws of Nature and Reason I shall then believe it But as for your Conclusion it being founded upon these Premises it needs no Confutation for if the Imperial Laws of Government do not require your Passive Obedience then Subjects are not bound to perform it And to shew you the Falseness and absurdity of this Assertion that Whatsoever the Imperial Laws of any Government require of its Subjects if it be not contrary to God's Laws they are bound to perform it In stead of Passive Obedience or Patient Suffering of Injuries let us insert to give up to the Soveraign all our Civil Properties and Estates if demanded by him is not forbid by God's Laws and therefore Subjects are bound to perform it when ever it is required by the Imperial Laws For certainly the absolute disposal of the Estates of the Subjects is as unseparable a Prerogative of Soveraign Power as Irresistibility it self as I think I am able to prove if you think fit to dispute that Question But at present I shall only confine my self to confute the Major in your Syllogism In the first place therefore tho' I do grant what you lay down for a Ground to be true That it belongs to Soveraign Powers to be accountable to or punishable by none but God Yet I suppose Resistance of their Violence and Tyranny may very well be perform'd by the People without calling them to a Iudicial Account or erecting a Tribunal for that purpose Calling to an Account and Punishment are acts of Authority of Superiours over Inferiours But Resistance for self-defence is a Right of Nature and which no Man by entering into Civil Government ever parted withal but out of Consideration of a Greater Good to be obtained thereby viz. his own greater Security together with the Common Good of that Civil Society whereof he is a Member which when by the Prince's violence it is once like to be wholly lost his Natural Right of Self-defence for the Preservation of himself and Family again takes place Nor doth he then resist the Supreme Powers as such but as Murderers and Cut-throats who by going about to destroy the People have already loft all that Right they formerly had And of this opinion is that moderate Romish Author Barclay before cited Who in the 16 Chap. of the Book last quoted hath this Remarkable passage What then Can there no Cases happen in which it may be lawful for the People by their own Authority to rise up and resist a King governing Tyrannically His Answer to this Question is there are certainly none as long as he continues King for the Scriptures forbid it which say Honour the King and he who resisteth the Power resisteth the Ordinance of God Therefore the People can have no Power against him unless he committeth something by which he may cease to be King for then he himself abdicates his Kingship and becomes a private Man and by this means the People being made Free that Right returns to them which they had before the King was made But there are but few Facts of that Nature which can produce Such effects And I cannot when I think of it find more than two Cases in which a King doth ipso facto make himself no King and thereby depriveth himself of all Honour Regal Dignity and Power which also Winzerus takes notice of One of these is if he destroys his Kingdom and then gives us the Examples of Nero and Caligula as I have already done And next proceeds to this purpose that when any King designs and doth seriously endeavour to put this in practice he casts off all care and desire of Governing And therefore thereby loses his Empire over his Subjects as a Lord of a Servant loses his Dominion over him by giving up all Care and Government of him And of this Opinion likewise are Grotius and Pâ—ffendorf the two best and most learned Writers on this Subject Who do not think it inconsistent with the Rules of the Gospel for Subjects to resist the King if with a Hostile mind He seeks the Destruction of his People for says the former the Will of commanding and destroying cannot consist together And therefore he who professes himself an Enemy of the whole People does thereby abdicate the Kingdom but that can Scarce seem to happen in a King in his right Witts and who commands only one Kingdom But if he commands more Kingdoms it may so happen that he would destroy the People of one Nation to gratifie the other that he may there make Colonies of them And this I suppose Grotius spoke in relation to the King of Spain who they say had declared that if he overcame the Dutch then in Arms against him he would fell the People for Slaves into America and people the Country with Spaniards M. You very much mistake me if you think by Imperial I meant the Roman Laws but only the Common Laws of Soveraignty which tho' they destroy no Man's Natural or Civil Rights Yet both grant and confirm unto the Legal Soveraign in every Government the Essential Rights of Soveraignty of which I take Non-resistance not only for Wrath but Conscience lake to be one of the Chief And therefore it were much better to venture the utmost that a Tyrant can do towards his People by destroying them than to give the least inlet to Rebellion by Supposing the People may in any case whatsoever resist their Prince For granting the worst that may happen that a Prince once in 1000 years to be so wicked and Malicious as to go about to destroy his People yet he could scarce find means and hands enough to bring it about and admit he should destroy by
Men may have proceeded not from their own Right or Possession but from the Assignment of their Chief Captain or Leader Yet are not the Estates which such particular Men enjoy to be look't upon only as the meer Grace or Favour of such a Prince since most of those who followed him in this Conquest or Expedition did it not as Subjects but as Volunteers and without whose Assistance he could never have Conquered at all So that they have thereby acquired to themselves a certain Portion or Share in the Land so Conquered tho' for avoiding Dissentions and Quâ—rrels amongst them it was left to the Disposal of this New Prince as a publick Trustee to Distribute to each person what share he should have But in the other Case when Fathers or Masters of Families before Free and Possest of Hereditary Estates do submit themselves to the Command of one Man Voluntarily or by Election Those Estates do much less depend upon the Will or Favour of that Prince And therefore if such a Prince should without their consents go about to take away their Property in their Estates he might very Iustly be Resisted by them since a quiet enjoyment of these in Peace and Safety was one of the chief reasons that made them chuse him for their Prince and was certainly one of the Original Compacts of the Government And that in Absolute Monarchies where the Subjects were not Slaves they look't upon themselves to have such a settled Property in their Persons and Estates by Compact That Seneca boldly pronounced Errat siquis existimat sutum â—sse ibi Râ—gem ubi nihil à Regetutum est Securitas Securitate mutua paciscenda est And Mr. Hobbs himself as much a Friend as he was to the Arbitrary Power of Monarchs and an Enemy to the Natural Rights of Subjects yet is forced in his Leviathan to confess that the Riches Power and Honour of a Monarch arises only from the Riches Strength and Reputation of his Subjects for no King can be Rich nor Glorious nor Secure whose Subjects are â—â—â—her poor or contemptible Tho' how this Riches and Strength of Subjects can consist with that Absolute Power which he gives his Sovereign over the Persons and Estates of his Subjects I cannot understand since he will not allow of any Compacts or Conditions between him and them But that their Propriety may very well consist with the Power of the Prince Seneca shews us Iure Civili says he omniâ— Râ—gis sunt tamen illa quorum ad Regem pertinet universa possessio in singulos Dominos descripta sunt unaquaeque res habet possessorem suum Itaque dare Regi donum mancipium pecuniam possumus nec donare illi de suo dicimur Ad Reges enim Potestas omnium pertinet ad singulos Proprietas And the Earl of Clarendon in his Survey of the Leviathan makes this excellent remark upon this Passage of Seneca And that Prince who thinks his Power so Greâ—â— that his Subjâ—cts have nothing to give him will be very unhappy if he hath evern nâ—ed of their Hands or their Hearts So that notwithstanding this Universal Power or Supereminent Dominion of the Emperour over all things which Seneca there supposes yet if he should have gone about to have Invaded all Men's Properties and reduced all Men's Estates into the Publick Treasury I doubt not but he would soon have had not only his own Legions but the whole Empire about his Ears And tho' I have heard that the French King doth by his Exâ—roitant Taxes and Gabels raise more Mâ—ney out of the Kingdom of France and the Territories annexed to it than the Ottoman Emperour doth out of that vast Empire of which he hath the Sole Propriety of the Lands in himself Yet if the French King should indeavour by the Power of his Standing Army to take away all Men's Hereditary Properties in their Estates and make them all to be holden at Will I doubt not but he would not only be Opposed by his Subjects and perhaps ruined in the Attempt but also if he should Succeed in it would be so far from being the Richer or more Powerful that he would become the Poorer and Weaker when he had done Since no Man would take the Pains to build till or improve their Estates any more than they do in Turkey when they were not sure 〈◊〉 soon they might be turned out of them or at least could hold them no longer than for their Lives or a few years So prevalent a thing is this empty shadow and bare Name of Property that is now left in France being often charged with 〈◊〉 to above half the value of the Estates to encourage the People to beautifie cultivate and improve a Country abounding with all those Riches that Nature or Art can produce And to let you see I am not at all partial I think I may safely affirm the same of the Legislative Power in this Kingdom so that if it should happen which tho' highly improbable yet it is not impossible that the Lords and Commons Assembled in Parliament should so far abuse the Trust reposed in them as to give up all their Civil Properties in their Estates into the Kings Fâ—ands to be disposed of as he should think fit and that the King should thereupon go about to turn all the People out of their Estates I doubt not but they might in that case resist the King if he went to do it by force Notwithstanding this Act of Parliament and my reason it that a 〈◊〉 Hereditary Property in Estates being an Antient if not more than Parliament themselves in this Nation must consequently be a Fundamental Law of the Government and so cannot be altered by its Representatives For tho' it be true the People have given them a Power to dispose of what part of their Estates they should think 〈◊〉 yet did they not make it absolute to extend either to their Liberties I mean in respect of Slavery or their whole Properties in their Estates And if the King may be resisted if he invade them by his own Sole Authority the reason would be the same why he might be also resisted tho' back't by an Act of Parliament Since the taâ—â—ing away of Civil Property would prove as distâ—uctive to the Peopleâ— Liberties and Happiness in the one case as in the other and as great an abuse of the Trust reposed 〈◊〉 them that were designed to protect it M. I cannot except against your distinction between those Governments where a Property in Estates did precede the Institution of the Government it sell for there I grant that such a Property may be a Fundamental Law of the Government but in those Monarchies that have begun by Conquest under the Command of a King or absolute Prince over an Army of his own Subjects in that case upon the Conquest of a Kingdom or forreign Nation not only the Prey or Goods of the 〈◊〉 but also their Estates were
tho' in defence of the greatest Innocence Men who draw their Swords against lawful Powers shall perish with the Sword which doth not signifie what the event shall always be but what is the desert and merit of the Action Rebels may sometimes be prosperous but they always deserve Punishment and if they escape the Sword in this World St. Paul tells us they shall receive Damnation in the next What can be said more expresly against Resistance than this St. Peter never could have drawn his Sword in a better Cause never in the Defence of a more sacred Person If we may defend oppressed Innocence against a lawful Authority if we may oppose unjust and illegal Violence if any obligations of Friendship Gratitude or Religion it self could justifie Resistance St. Peter had not met with this Rebuke But tho' it was a very unjust Action yet it was done by a just Authority and lawful Powers must not be resisted tho' it were in defence of the Saviour of the World and if St. Peter might not use the Sword in defence of Christs Person there is much less pretence to fight for his Religion for tho' some call this fâ—ghting for Religion it is only fighting for themselves Men may keep their Religion if they please in despite of Earthly Powers and therefore no Powers can hurt Religion tho' they may persecute the Professours of it And therefore when Men take up Arms to avoid Perseâ—ution it is not in defence of Religion but of themselves that is to avoid their suffering for Religion And if St. Peter might not fight to preserve Christ himself certainly neither he nor we ought to take up Arms to defend our selves from Persecution Christ was the first Martyr for his own Religion his Person was infinitely more Sacred and inviolable than any one of us can pretend to be And if St. Peter must not fight for Christ certainly we must not fight for our selves tho' we absurdly enough call it fighting for our Religion And who were these Powers St. Peter resisted They were only the Servants and Officers of the High-Priest The High-Priest did not appear there himself much less Pilate much less Caesar and yet our Saviour rebukes St. Peter for resisting the Inferiour Officers tho' they offered the most unjust and illegal Violence It seems he did not understand our modern distinctions between the Person and the Authority of the Prince that tho' his Person be sacred and must not be touched yet his Ministers who act by his Authority may be oppos'd We may fight his Navies and demolish his Garisons and kill his Subjects who fight for him tho' we must not touch his Person But he is a Mock Prince whose Authority is confin'd to his own Person who can do nothing more than what he can do with his two hands which cannot answer the Ends of Government A Prince is not meerly a natural but a Political Person and his Personal Authority reaches as far as his Commission doth His Officers and Ministers of State and Commanders and Soldiers are his Ends and Eyes and Ears and Legs and he who resisteth those who Act by his Commission may as properly be said to resist the personal Authority of the Prince as if he himself were present in his Natural Person as well as by his Authority Thus our Saviour it seems thought when he rebuk'd St. Peter for striking a Servant of the High Priest and smiting off his Ear. F. In Answer to this place which you have now brought to prove that the Resistance that St. Peter would have made on our Saviours behalf was absolutely unlawful I shall not insist as some do that Christ came into the World on purpose to be a Sacrifice for Sin and that therefore it was inconsistent with his design and the Person he undertook to resist and oppose had it been never so lawful to resist tho' our Saviour himself by the Words which St. Iohn relates him to have spoken to St. Peter seems to favour this Interpretation when after he had bid him put his Sword into the Scabbard he adds The Cup which my Father hath given me shall I not drink it and so likewise the answer he gave Pilate who asked him whether he was a King Thou sayest that I am a King to this End was I born and for this Cause came I into the World that I should bear Witness unto the Truth Nor yet shall I go about to interpret these Words For they that take the Sword shall perish by the Sword in that Sense which Grotius puts upon it tho' quite different from yours as if it were not designed as a rebuke to St. Peter but for the encouragement of his Disciples and being indeed a Prophesie that the Iews who now came against him with Swords and Staves should perish by the Sword of the Romans who should be the Avengers of Christs Death but I shall take it in the same sense as you do as a rebuke to St. Peter for going about to resist a Lawful Authority tho' employed upon a very unjust Errand Yet will it not prove that the Supream Powers may not be resisted in any Case or by any Person whatsoever let them use their Power never so Cruelly or Tyrannically against their Subjects I grant indeed it proves what I have never denyed that a private Person tho' Innocent ought not to râ—sist the Civil Officers that come to seize him for a Crime whereof he is accused before a Lawful Authority for this is not only unlawful by the Command of Christ but also by the Law of Nature and Nations For in England it is not only Penal for a Man to resist the Officers of Iustice that come to seize him tho' he be Innocent of the Crime whereof he is accus'd but also to withdraw himself from Iustice by flight And tho' upon Tryal he be found Innocent yet if he fled for the same he shall forfeit all his Goods and that very justly because no Man ought to suspect and withdraw himself from the publick Tryal of the Laws now to apply this to the Case of our Saviour tho' the Action which these Priests and Souldiers came about was in it self unjust Yet was it not so either in respect of these Officers themselves who acted by a Lawful Authority nor yet was it unjust or unlawful in respect of the High Priest and Sanbedrim who sent them For since it belong'd to them alone to Iudge of a Prophet who they supposed taught contrary to the Law of Moses since they did believe our Saviour to be such a Prophet it was in respect of them neither unjust nor unlawful to seize him and bring him before them to give an account of his Doctrine and they might likewise do this either by day or by Night with the help of more or fewer men according as they should think fit since they feared the People might rescue him especially since they look't upon him as one who went
about to make himself King of the Iews in Opposition to Caesar and therefore whilst they lay under this Mistake they were under as high an Obligation as an Erroneous Conscience could lay upon them of Seizing him and bringing him before the High-Priest and the Governour For if they had believed him to be the true Messiah and consequently the King of their Nation it had been impossible that they should ever have gone about to put him to Death Which likewise our Saviour himself acknowledges when Praying for them that Crucified him he said Father forgive them for they know not what they do I speak not this to excuse the Priests or Sanâ—edrim for condemning our Saviour to Death or for using all the Power they had with Pilate to have him executed Since I grant their Ignorance being in great part Wilful at least not Invincible they had no just excuse not to believe on him after so many Miracles he had wrought in the sight of all the World But only to prove that which I suppose you will not deny i. e. that Magistrates even whilst they Act unjustly are not to be resisted in the Execution of Publick Iustice no not to rescue an Innocent Man by force from the Hand of Iustice after he is Condemned Since the false or unjust Sentences of Iudges against particular Persons are to be taken for just in common Acceptation till they be Repealed according to that Maxime in your Civil Law Proetor dum iniquum decernit Ius dicit and therefore our Saviour coming to fulfil all Righteousness and to be the exact Patern of Divine and Moral Actions could not do less than rebuke St. Peter for making use of the Sword against a Lawful Authority but what is this to the Cases that I have put of the Resistance of whole Nations or Bodies of Men against an unjust force and destructive Violence upon their Persons and Estates by those who pretend to Act as the Supream Powers tho contrary to all Laws Natural and Divine and who have no Pretence to Act as they do but only their unjust and Arbitrary Wills back't by Power Aâ—d that there is a great difference in these two I will clearly shew you from your own Concession that no man wanteth Authority to defend his Life against him that hath no Authority to take it away and therefore I suppose St. Paul might only with the Help of those that were with Him not only have defended his Life against those whom we find in the 25 th of the Acts who were by Order of the High-Priest and Chief of the Iews to have lain â—n wait to kill Paul by the way but also against any that Festus the Governour himself should have sent for the same End Since He there decâ—ares That it is not the manner i. e. Law of the Romans to deliver any Man to dye before that he that is accused have the Accuâ—â—rs face to face and have License to Answer for himself concerning the Crime laid against him And therefore as Caesar could give Festus no Commission to Murder Men so neither did God bestow on the Emperour any Authority to commit murder or to Authorise others to do it and if a single Person might do this certainly much more a whole Nation Country or City may justifie such a Resistance where their Lives Liberties and Estates lye at Stake from the Violence or Tyranny of the Supream Powers and therefore I do not see but that I may very well grant the Instance you have put to be conclusive against this Resistance made by St. Peter on our Saviours behalf so that your Instance doth not reach the Case in hand that all Resistance of Supream Powers is unlawful And you your self have already granted as much as I can in Reason desire that no Man wants Authority to defend his Life against Him who hath no Authority to take it away So that unless Princes and their Inferiour Officers receive Authority from God to commit Murders every Man may defend himself against them when they go about to take away their Lives by Violence contrary to Law And therefore I see no Reason from any thing that you have hitherto said to believe that Christ did not allow this Distinction between the Person and Authority of the Prince to be good in some Cases or that tho' his Person should be sacred yet that his Ministers who Act not by his Regal Authority but his Personal and Tyrannical Will may be opposed nor can I find any Consequence from what you say that he is a Mock Prince whose Authority is confined to his own Person who can do nothing more than what he can do with his own Hands Since no Man in his Wits asserts any such thing for I grant that an Absolute Prince hath Power to make Laws and to Command them to be put in Execution which do not contradict the Laws of God and Nature and a Limited Prince hath likewise a Right to Command in all things that do not expresly contradict Gods Natural and reveal'd Laws and also those Positive Laws of his Country which he is not the sole maker of that do not contradict the former and if he can do this I think he is endued with an Authority sufficient to Answer all the Ends of Government without supposing that he must needs have an irresistible Power and without which he cannot Answer those Ends to Murder and Enslave whomsoever he will I grant indeed a Prince is not meerly a Natural but a Political Person but certainly his Personal Authority as King doth not reach as far as his Commission or that he who resists those who Act by his Commission may be said in all Cases to resist his Regal Authority Since at this rate the poor Protestants in Ireland at the beginning of the last Irish Rebellion had been in a very woful Condition if it had happened which was not impossible that King Charles the first should really have granted a Commission to Sir Phelim Onâ—al to destroy them which no man could then certainly tell but that he had since Sir Phelim publickly shewed such a Commission and still asserted the Truth of it till he came upon the Gallows but this is only by the by and in answer to what you have now said to this Matter So that there is no need of supposing what our Saviour thought one way or other in this matter Since he did not rebuke St. Peter for resisting the Inferiour Officers because they offered an unjust and illegal Violence but because he resisted those who acted by a true and Legal Commission from the High-Priest and Sanhedrim who supposed our Saviour to be a false Prophet M. If this Distinction of yours were true it would render the Example of Christ's suffering in obedience to the Supream Powers tho' unjustly yet without Resistance of no effect to us whereas I am firmly perswaded that Christ took such a mean and suffering a Person upon him
our Saviour were not sufficient of it self to make a Law but stood in need of the Confirmation and Additional Authority of his own Apostles but we might justly suspect our selves mistaken in the meaning of our Saviours Words or in the Intention and design of his Sufferings had none of his Apostles who were immediately instructed by himself and acquainted with the most sacred Mysteries of his Kingdom ever Preacht any such Doctrine as this of Subjection to Princes And therefore to give you the more abundant Assurance of this I shall plainly shew you that the Apostles taught the same Doctrine and imitated the Example of their great Master I shall begin with St. Paul who hath as fully declared himself in this matter as it is possible any Man can do by Words Let every Soul be subject unto the Higher Powers for there is no Power but of God the Powers that be are ordained of God Whosoever therefore resisteth the Power resisteth the Ordinance of God and they that resist shall receive to themselves Damnation This is a very express Testimony against Resistance and therefore I shall consider it at large for there have been various Arts used to pervert every Word of it and to make this Text speak quite contrary to the Design and Intention of the Apostle in it And therefore I shall divide the Words into three general parts 1. The Doctrine the Apostle instructs them in Let every Soul be subject to the Higher Powers 2. The Reason whereby he proves and inforces this Doctrine For there is no Power but of God the Powers that he are ordained of God Whoever therefore resisteth the Power resisteth the Ordinance of God The Punishment of such Resistance and they that resist shall receive to themselves Damnation I shall begin with the Doctrine That every Soul must be Subject to the Higher Powers and here are three things to be explained 1. Who are contained under this general Expression of every Soul 2. Who are meant by the Higher Powers 3. What is meant by being Subject 1. Who are contained under this general Expression of every Soul which by an ordinary Hebraism signifies every Man For Man is a Compounded Creature of Body and Soul and either part of him is very often in Scripture put for the whole sometimes Flesh and sometimes Soul signifies the Man and when every Soul is oppos'd to the Higher Powers it must signifie all Men of what Rank or Condition soever they be who are not invested with this Higher Power And again says he The design of the Apostle as you shall hear more particularly by and by was to forbid all Resistance of Soveraign Princes and had he known of any Man or Number of Men who might Lawfully resist he ought not to have express't it in such general Terms as to forbid all without Exception And therefore I shall now a little more closely examine your main Argument or indeed Foundation of all that you have Urged for Resistance viz. That tho' it is unlawful for private or particular Men to resist the Supream Powers yet that it doth not extend unto the whole or Major part of a â—eople or Nation whenever they are outragiously oppress 't or assaulted by the Higher Powers beyond what they suppose they are able to bear whereas the Apostle here commands every Soul to be subject and therefore if the whole body of the People be subject to God they must also be subject to the Prince too because he acts by God's â—uthority and Commission were a Sovereign Prince the Peoples Creature that might be a good Maxim Rex majâ—r singulis sed minor universis That the King is greater than any particular Subject but less than All together but if he be God's Minister he is upon that account as much greater than all as God is And that the whole body of the People altogether as well as one by one are equally concerned in this Command of being subject to the higher Powers is evident from this Consideration that nothing less than this will secure the Peace and Tranquillity of humane Societies The resistance of single Persons is more dangerous to themselves than to the Prince but a powerful Combination of Rebâ—ls is formidable to the most puissant Monarchs The greater Number of Subjects rebell against their Prince the more do they distress his Government and threaten his Crown and Dignity and if his Person and Authority be sacred the greater the violence is which is offered to him the greater is the Crime Had the Apostle exhorted the Romans after this manner Let no private and single man be so foolish as to rebel against his Prince who will be too strong for him but â—f you can raise sufficient forces to oppose against him if you can all consent to depose and murder him this is a very innocent and justifiable nay an heroical Atchievement which becomes a Free-born People How would this have secured the Peace and quiet of the World How would this have agreed with what follows that Princes are advanced by God and that to resist our Prince is to resist the Ordinance of God and that such Men shall be severely punish't for it in this World or the next for can the Apostle be thought absolutely to condemn Resistance if he makes it only unlawful to resist when we want Power to conquer which yet is all that can be made of it if by every Soul the Apostle means only particular men not the united Force and Power of Subjects Nor can there be any reason assigned why the Apostle should lay so strict a Command on particular Christians to be subject to the higher Powers which doth not equally concern whole Nations For if it can ever be lawful for a whole Nation to resist a Prince it may in the same Circumstances be equally lawful for a particular man to do it if a Nation may conspire against a Prince who invades their Rights their Liberties or their Religion why may not any man by the same reason resist a Prince when his single Rights and Liberties are invaded It is not so safe and prudent indeed for a private man to resist as for great and powerful Numbers but this makes resistance only a matter of Discretion not of Conscience if it be lawful for the whole body of a Nation to resist in such Cases it must be equally lawful for a particular man to do it but he doth it at his own Peril when he hath only his own single force to oppose against his Prince So that our Apostle must forbid resistance in all men or none For single Persons do not use to resist or rebel or there is no great danger to the Publick if they do but the Authority of Princes and the Security of publick Government is only endangered by a Combination of Rebels when the whole Nation or any considerable part for Numbers Power and Interest take Arms against their Prince If
may they not for the same Reason rid themselves of such a Iudgment as Intolerable Tyranny when they are able and have an Opportunity to do it since they proceed from the like Common Dispensations of God's Providence or else we must believe that the Wickedness of one or more persons for the Destruction of Civil Society the is more particularly derived from God than the Power of the whole People for their own Preservation and the common Good and Happiness of the Common-wealth By which means Princes would have the same Power and Right over their Subjects Bodies and Estates as they have over those of their Beasts to sell kill and devour them at their Pleasure M. Tho' I grant it may be lawful for a People to remove Natural Iudgments by human Means yet doth it not follow that they may therefore remove by Force such Punishments as God pleases to lay upon them from the Abuse of Civil Authority by the Supream Powers since He hath particularly enjoyned them to bear such Punishments patiently without any Resistance because they are inflicted by those whom God hath Ordained for our Temporal Governours and Masters and whose Violences and Oppressions as long as they continue in their Sins God hath very good reason to continue upon them and if they Repent they may be assured that in his good time he will either remove them or turn them to the best For all things even Afflictions work for the good of them that fear him And God will not suffer those that trust in him to be afflicted beyond what they are able to â—ear And if this Doctrine of yours might take place both Servants and Children in the State of Nature might upon the like Pretence both Resist and turn their Father and Master out of doors because forsooth their Government was so severe and Tyrannical that it was not any longer to be endured by them And tho' such severe Fathers or Masters may be Ordained by God for the Punishment of such wicked Children and Servants yet that being no more than other natural Iudgments they may be without any Sin removed by Force or Resistance when ever they thought themselves strong enough to do it And if this Doctrine be wicked and absurd in private Families then is it much more so in Kingdoms for certainly there is as perfect a Subjection due to a Soveraign Prince as to a Father or Mâ—ster for he is more Eminently the Minister of God and Acts by a more Sacred and inviolable Authority And notwithstanding what you have said to the contrary that the Precep given to Servants by St. Peter doth not concern Subjects I think I can very well prove that it doth as appears from the Example of Christ which the Apostle there recommended to our Imitation who was the most innocent person in the World and yet suffered the most barbarous Usage not from the hands of a private Master but of the Supream Powers And therefore when he commands in the same Chapter to submit to Governours as to those who are for the punishment of Evil doers and the praise of them that do well it is evident that he did not intend this as a Limitation of our Subjection or as if we were not bound to be subject in other Cases since in the very same Chapter he requires Subjection not only to the Good and Gentle Masters but also to the froward in Imitation of the Example of our Lord who suffered patiently under unjust and Tyrannical Powers I observe therefore that the Apostle doth not alledge this as the Reason of our Subjection but as a Motive or Argument to reconcile us to the practice of it The Reason of our Submission to Princes is that they are advanced by God that they are his Ministers that those who Resist them Râ—sist the Ordinance of God and therefore we must submit for God's sake out of Reverence to his Authority But it is only an Encouragement to Subjection to consider the great Advantages of Government that Rulers are not a Terrour to good Works but to the Evil. But tho' this Motive should fail in some Instances yet whilst the Reason of the Subjection lasts and that can never fail whilst we own the Soveraign Authority of God so long it is our Duty to be subject whether our Prince do his Duty or not F. Altho' what you have now replyed is no more in effect than â— Repetition of what hath been said before yet I forgive it since your Cause will admit no other nor can I see any Reason why Natural Iudgments may 〈◊〉 removed by Force or Natural Means but not Moral or Civil ones unless you could also prove that it is God's Express Command that we may remove the one but not the other nor have you proved it otherwise than by telling me that Princes are God's Ordinance and are endued with Irresistible Power all which hath been already considered And I have already shewn you it is neither Commanded by God nor yet Ordained for the Common Good of Mankind And tho' I own that Afflictions may sometimes serve for a Punishment of a sinful Nation yet it is as likely that such a great and lasting Punishment as a mercilesâ— Tyrant may as well bring the People to Repentance and when they are sâ—fficiently amended they may very well enjoy the Benefits of it and they may as well expect that God will bless all Lawful Means for that end whereof I take Resistance or self-defence to be the Principal since Miracles are ceased And of this we have an Example in the 2 d. of Kings chap. 18. For tho' Ahaz the Father of Ezekiah had submitted himself and become Tributary to the King of Assyria yet when Hâ—zekâ—ah his Son turned to the Lord it is said that he was with him and that he rebelled against the King of Assyria and served him not and yet he was then as much subject to him as Iehoiachin or Zedekiah were afterwards to Nebuchadnezzar So that all that is new in this Answer of yours is only the fatal Consequences that it would bring upon all Families in the State of Nature for then forsooth Children and Servants might likewise pretend that the Government of their Fathers and Masters were so insupportable that it was no longer to be endured and so might Rebel against them and depose them which doth by no means follow for I have already proved at our first Conversation that some sort of Resistance for the Preservation of Life and Limbs may be lawful against the Outrages or Violence of a Father or Master of a Family Yet do I by no means allow that they should Resist them for any other Correction or severe Usage which they shall inflict upon them since Servants or Slaves whilst they continue under their Masters Power can have no Liberty or Property of their own to defend and a Son whilst he remains part of his Fathers Family I grant differs not from a Servant so that all that
ought to be done either by Sons or Servants in case the Government of their Father or Master grows so Cruel and Tyrannical as not to be endured is to run away and leave their Family And thus we read that Hagar upon the severe Usage of Sarah her Mistress fled from her nor was blamed by the Angel for so doing Nor is what you have now said to prove the Subjection of Servants and Slaves to be as absolute the one as the other at all convincing for I have long since proved that a Family and a Kingdom are very different things and that Oeconomical and Civil Power do not only differ in Specie but in Genere too For tho' I grant that Slavery might begin by Compact as well as by War yet Subjection to Civil Power could Regularly commence by Compact only and therefore since the Natural State of Mankind is that of Freedom from Slavery all Subjects are supposed to be in that State of Freedom and to have a Right both to their Liberties and Properties which if the Supream Powers go about forcibly to take away they then cease to be so since they take away the main End of their Institution I mean this of such a People who are properly Subjects and not Slaves For of those who own themselves to be Slaves to their Prince I told you already I would not take upon me to meddle Since I doubt whether such an Empire can be called a Civil Government or not So that for all that you have hitherto said I must still believe St. Peter did not direct this Precept to Subjects but to Servants under the Yoak that is to Slaves such as had no Property in any thing nor Power over their own Persons but might be sold and assigned with their Wives and Children to whom soever their master pleased which tho' not of Divine Institution Yet since it was so ordained by the Civil Laws of the Empire neither Iesus Christ nor yet his Apostles would make any Alteration in it Nor hath he thought fit to do so in any of those things which we enjoy as our Civil or Natural Rights by the Law of Nature or the Municipal Laws of our Country and therefore it is not true that there is as perfect a Subjection due to a Soveraign Prince as to a Master unless the People of that Nation have made themselves absolute Slaves to him instead of Subjects which could never be but by their own Consent It is true a Prince is more eminently the Minister of God and Acts by a more sacred and inviolable Authority than a Master Yet doth it not therefore follow that he acts as God's Minister or by this sacred or inviolable Authority when he destroys or enslaves the Subjects Nor can you say that God hath given him any Authority so to do And as for the Example of Christ's Suffering which you urge as a Reason of our absolute Subjection to Princes without any Resistance I have answered that already and therefore need say no more to it But do own that in that great Point of suffering for Religion when we are lawfully called thereunto we are to follow his Example yet doth it not prove that we are to suffer in all other Cases whatsoever concerning which he hath given us no express Precept or Command M. I have something more to say to you about this matter of Suffering for Religion but I shall defer it at present and shall only now consider the Evil Consequences of your Arguments for Resistance of the Supream Powers in any Case whatsoever the summ of which if I can well remember is to this Effect Shall a Prince be free from all Correction till God Almighty is pleased to chastise him Must I sit still and suffer my Throat to be cut my Estate ruined and not dare in any Case to defend my self till God is pleased to iâ—terpose and that in an Age in which Miracles are ceased God is for the most part pleased to respite the Punishment of Oppâ—essoâ—s till the next World and if I be ruined in this what comfort is it to me or mine that the Injury shall be punisht when I shall reap no Advantage by it And suppose the Subjects of such a Prince should succeed in their Rebellion and prevail against him they must then submit to another Prince of whom they have no more Assurance they shall be better treated and if they set up many they are all Men and subject to be corrupted by Power and Greatness And in an Anarchy every Man will become a Tyranâ— to his Neighbours so that this Doctrine of curbing and Resisting Princes is calculated for the Ruine of Mankind and tends to no bodies good but theirs who design thereby to gain a Power of doing to others what they pretend to fear And when all is done the Punishment of Princes who abuse their Power must be left to God Almighty who only can and will punish his own Ministers Now suppose all this were just as it is stated if the Injuries a Man suffer are insupportâ—ble under any Government he may Petition for relief and in all probability find it if not he may flie into another Country for succour if he cannot do that neither he will scarce be able to resist So that if it were never so justifiable it could be of no use to any such miserable man for no Prince tho' never so ill natur'd will attempt any such thing against any such number of Men as are in a capacity of revenging the Wrong done them when they will only out of hopes they will not because they ought not Nor will the Histories of all Ages put together afford one Instance of a Monarch that ever injured any Man at this rate whom he believed able if willing to revenge the Wrong but that he took care as far as he could to prevent it and either to take him out of the way or to put him out of a Possibility of a Retaliation So that all discontented fretful Rhetorick is of no use in any such Case But then on the contrary if every Ambitious and Factious Man might be left at Liberty to insinuate into the Rabble and the Great and little Vulgar that Princes are to be punished when they do amiss that they are bound to Act according to Laws and to their Oaths and if they do otherwise are presently to be treated as Tyrants and the Common Enemies of Mankind That it is Lawful for a Man to defend himself against the Injustice and Oppression of his Prince c. This can only serve to fill the World with Rebellions Wars and Confusions in which more thousands of Men and Estates must of Necessity be ruined and Wives ravished and Murdered in the space of a few Days than can be destroyed by the worst Tyrant that ever trod upon the Earth amongst his own Subjects in the space of many years or of his whole Life F. I perceive you think this place of
same thing which as St. Paul tells us signifies Non-Resistance Only as St. Paul speaks only of not resisting the Higher Powers that is Emperours and Soveraign Princes herein include all those who Act by their Authority and St. Peter to prevent all Cavils and Exceptions distinctly mentions both that we must submit to all Humane Power and Authority not only to the King as Supream that is in St. Pauls Phrase to the Higher Powers to all Soveraign Princes who are invested with the Supream Authority but also to those who are sent by him who receive their Authority and Commission from the Soveraign Prince F. You may spare your Pains for making any long Explanation on this Text for I have already granted that all due Submission is to be given not only to the Supream Powers but also to all those who are put in Authority under them and that not only for Wrath but for Conscience sake yet is this place to be understood in the same sense as the former that is as far as they make use of this Power for the great ends of Government viz. the Good and Preservation of the People and not for their Ruine and Destruction by taking away their Lives Liberties and Properties at their pleasure So that this Precept is to be understood according to the Reason which both St. Peter and St. Paul gives for this Submission because Rulers are not a Terrour to good works but to the Evil and because such Governours are for the Punishment of Evil-doers and for the praise of them that do well and even a Government where a Heathen Prince hath such Supream Power may and doth most commonly in respect to most of its Subjects give more countenance and encouragement to good works than bad ones and therefore Obedience to such a sort of Governours is not only Lawful but a Duty Nay tho' through Ignorance and Malice they might persecute the true Religion for I have already proved that at the time of Writing of these Epistles there was no Actual Persecution begun by the Roman Emperours against the Christians and tho they did afterwards persecute them yet even such as did so being commonly men of good Morals and having much of Goodness Iustice and Prudence in their Natures such as was Trajan and the two Antoninâ—u's they would not fail extreamly to encourage the Practice of such and other vertues by their Examples and by good Laws preserve their Subjects from the Mischiefs of Immoralities and keep them in Order Peace and Sobriety But is it true when Tyrants be they Usurpers or not not only govern contrary to but also subvert all the Ends of Government M. If this be the Sense you put upon this place I think I shall easily shew you not only the Absurdity but perniciousness of this Interpretation which indeed doth undermine all that Obedience and Subjection that is due from Subjects to their Soveraigns unless they rule well that is according to their Humours or Fancies Now I pray Consider whether these great Apostles intended to oblige the Christians of that Age to yield Obedience to those Powers which then governed the World If they did as I think no Man will be so hardly as to say that they did not then it will be proper to inquire whether what they here affirm and assign as the Reason of their Subjection That Rulers are not a Terrour to good works but to the Evil were true of the then Roman Emperours and Governours or not If it were true then I believe it will hold true of all Kings in all Ages of the World for there cannot well be greater Tyrants than the Roman Emperours were at this time and so this will prove an Eternal Reason why we should be Subject to Princes notwithstanding the many faults and miscarriages of their Government And if it were not true it is very strange that two such great Apostles should use such an Argument to perswade Christians to submit to the Powers as only proved the quite contrary that they ought not to be Subject to the present Powers because they were unjust and Tyrannical and which indeed in contradiction to the Original design and Institution of Civil Power weâ—e a Terrour to good works and not to the Evil. The Christians were at this time actually persecuted by the Iews in Palestine and if they were not then also persecuted by the Emperours yet it was that which they might daily expect considering their extraordinary wickedness and Cruelty And yet the Apostle exhorts them not to resist the Powers because they were not that is should not be a Terrour to good works but to the Evil. If by this he only means that they should be Subject to them while the encouraged vertue and vertuous Men but might rebel against them when they did the contrary How could the Christians of those days think themselves obliged by this to submit to the Higher Powers For this was not their Case they suffered for Righteousness sake the Supream Powers were a Terrour to them tho' they were Innocent tho' they could not charge them either with breaking the Laws of God or Men and therefore upon your Principles they were not bound to submit to them whenever they could find it safe to resist So that either you put a false comment upon the Text or while the Apostle undertakes to deter them from Resistance he urges such an Argument as was proper only to perswade them to rebel F. Had you been pleased to have minded more attentively what I said last you would not have thus misrepresented my sense for I have already proved that there was no Persecution in the Roman Empire against the Christians when those Epistles were written nor for many years after and I have also granted that if the Emperours had so persecuted them they ought not to have resisted And therefore by good works and Evil doers c. in both those Texts of St. Peter and St. Paul is not to be understood only believing in Christ or behaving themselves as became Innocent Christians but in general that at that time when the Apostles wrote these Epistles under Claudius and the beginning of Nero and indeed through his whole Reign where he governed by his Deputies the Supream Power was then really a Terrour to Evil Works that is to all offences against good manners and the publick Peace of the Common-wealth and were also a Punishment for Evil-doers that is those that did transgress against the Publick Laws ordained for the restraining Men from committing any sort of publick Wickedness or Immorality So that I own that neither the Heathens nor the Christians had any Reason to take Arms or resist the Supream Power at this time But admit there had been at that time great Miscarriages and Abuses committed under their Government and that good Men had been often times punished and Evil ones Rewarded and the Ends of Government to some Degree perverted especially at Rome where the
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
dare appeal to any indifferent Iudge for I think I have sufficiently made out that Resistance by the whole People or Major part of it against a general and Intolerable Tyranny is no Diminution of Supream Civil Power nor inconsistent with it nor is your Reason for your Opinion any truer than the rest that Private Persons whether taken single or in a whole Civil Society can have no Power but what is derived from the Supream which is by no means so for every private Man of the Society then acts by a Power precedent to it viz. the Natural Power of Self-Preservation or Defence which no man ever absolutely gave up neither for himself nor his Children when he became a Member of that Common-wealth Tho' he was obliged for the Peace of the Government or Civil Society to suspend that Right in order to a greater Good which once failing upon the Dissolution of the Government every Man 's Original Right takes place As for what you say against my Notion that Resistance is Lawful when it may prevent the Subversion of the Government your Reply to this is really Equivocal and consists in that false or wrong Notion you have of the Nature of our English Government which you suppose only consists in the Preservation of the King 's Personal Powâ—r without any respect to the Laws or Fundamental Constitutions of the Kingdom and that as long as the People are in Subjection whether to Legal Government or illegal Force it is all one the Government is still preserved which is a great mistake for the King receiving his Power from the Law and having no Authority but what that gives him when he overthrows the Fundamental Constitutions of the Kingdom he doth himself destroy the Government And therefore when in that Case the People do resist it is either to maintain it or else to restore it to the state that it was in before so that it is not the People in this Case who have subverted it but the King M. It now grows late and it is high time to give over but if you please to give me another Meeting I doubt not but to show you that by the Original Constitution of this Government the King not only hath the sole Supream Power but that by several Acts of Parliament all Resistance of the King or those Commissioned by him is absolutely against the Laws and fundamental Constitutions of this Kingdom and that they are all by our Laws Rebels that dare presume to make such unlawful Resistance And I desire that you would give me a patient bearing in this matter because I have so great a Kindness for you that I would not have you lye under so dangerous an Errour which may happen to prove fatal to your Happiness not only in the World to come but also to the Safety of your Self and Family in this Life if you should offer to put in practice what you have here maintained F. Sir I give you many thanks for your kind Intentions towards me since I do believe it proceeds from that real Friendship you have for me tho' as for the former of those Judgments you mention I hope I shall have no Reason to be afraid of it for any thing I can yet see from thâ—se Arguments you have hitherto urged But as for what may happen to me in this Life I hope I have as little Reason to fear it since I believe this great Revolution will not only Iustifie but for the future defend those Arms that have been taken up for the restoring the true Ancient Government of the Kingdom M. I confess Sir that you have now too much the advantage of me during these times of Anarchy and Confusion but yet I hope one day to see this unhappy Nation again recovered from this sad Apostacy into which I confess too many have lapsed and then I doubt not but these Primitive and Loyal Doctrines of Passive Obedience and Non-Resistance will be again restored to their former Integrity and Vigour F. Well Sir all I can say to you is that I see you are not only in Love with Slavery but also with thâ—se that would bring it in upon us yet however I think I may give you this good Advice that if you are not pleased with what hath been already done since you have had no hand in the doing of it you would be contented quietly to sit still and enjoy those Benefits that may thereby accrue to the whole Church and Nation since I thereby expect a firmer Settlement of the Protestant Religion as also of our Civil Liberties than we ever yet enjoyed M. I thank you for your Advice and you know as my humour is not to be Troublesome or Clamorous against that which is not in my Power to help so on the other side I heartily wish that the Prince may now agree with his Majesty upon such Terms as may prove for the good of the Church and security of the State But pray tell me when I may be so happy as to see you here again that we may fully resolve this last Question F. To Morrow I shall be engaged but the day after being one of the Christmas Holy-days I shall not fail to wait on you at the same hour and I am very well pleased to wait on you here since I foresee a great part of our next Conversation will depend upon Authorities out of Books with which your Study is very well furnished and my own are not in Town M. I shall expect your Coming with Impatience and in the mean time I am your humble Servant F. Sir I am yours FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Collected out of the most Approved Authors both Antient and Modern Dialogue the Fifth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third and Fourth Dialogues 1692. THE Bookseller's Advertisement to the READERS THE Author has order'd me to beg your Pardons on his behalf that he hath made bold in this Discourse to deviate from the method he at first proposed for the subject of the ensuing Dialogue since instead of treating of the Original of Civil Authority and in what sense it is derived from God and in what from the People as he promised in his Epistle to the first Discourse he hath now made the Supreme Legislative Power and the Fundamental Constitution of our Government together with the Antiquity of Great Councils or Parliaments in this Nation whether they always consisted of Bishops Barons or Temporal Lords and Commons or not the Subject of this as well as of the ensuing Dialogue so that thâ—se grand Questions taking up two entire Discourses had the Author persued the Method he at first proposed
and in all the Statutes of Praemunire made by Edward the Third the King's Soveraignty independent from the See of Rome is expresly Asserted and the Statute of the 16th of Richard the Second expresly declares That the Crown of England hath ever bin so free that it is under no Earthly Subjection but immediately subject to God in all things touching the Regality of the Crown and to no other And the Statutes of the 24th and 25th of Henry the Eighth expresly declare That this Realm of England is an Empire Governed by one Supream Head and King and the Crown or Royal Authority is also thereby declared Imperial and the Kings of England are therein Stiâ—ed Kings or Emperors of this Realm So that I think no Man needs to doubt where the Supream or Soveraign Power of this Kingdom resides F. I will not deny any of those Authorities you have now made use of Since Titles alone are no proofs of Power for it is very well known that the Germane Emperor yet notwithstanding that great Title is not therefore Vnaccountable or Irresistible Since the Colledge of the Princes Electors may Depose him for Male-administration or for Violating any of the Fundamental Constitutions of the Empire And Mr. Selden hath very well observed in his Titles of Honour that this Supremacy or Freedom from all Subjection is not only challenged by our English Soveraigns but also by the Kings of Denmark Sweden and Poland The former of which yet was so far from being an absolute Monarch that before the Reign of this King's Father he might have bin Deposed for Tyranny for Misgovernment by the Estates of the Kingdom as the King of Poland may at this Day And therefore these Titles may indeed prove a Freedom from all Foreign Jurisdiction but doth not prove that the King is Endued with an Absolute Soveraign Power within the Kingdom as you may see in these Examples I have now given you M. If you are not Satisfied with these Proofs I doubt not but to give you other Authorities both out of Antient and Modern Lawyers as also Acts of Parliament which sufficiently declare where the Supream or Soveraign Power Resides In the first place I suppose you will not deny but that it hath bin the Prerogative of the Kings of England time out of mind to Coâ—â— Money Dispose of all Offices and Create new Dignities as he should think fit as also to make War and Peace to make Laws and in short to do all things whatsoever that are Essential to a Monarch and that he alone is the Sole Soveraign Power in this Kingdom Exclusive of all others Our Ancient Lawyers Glaâ—vil and Fortescue plainly declare The former of which says thus Rex nullum â—abâ—re potest parem multò minùs Superiorem The same thing is also repeated by Bracton and a very good Reason given for it in these words Omnis quidem sub eo ipse sub nullo nisi tantum Sub Deo parem non habet in Regno Suo quia Sic amitteret praeceptum cum par in parem non â—abeâ— Imperium Item nâ—c multò fortius Superiorem nec Potentiorem habere debeâ— quia sic esset inferior sibi Subjectis inferiores pares esse non possunt potentioribus F. But pray read what immediately follows Ipse autem Rex non debet esse Sub bomine Sed Sub Deo Sub Lâ—ge quia Lex facit Regem attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominatiorem Potestatem non est enim Rex ubi dominatur Voluntas â—on Lex And though I grant the King is Subject or Inferior to no particular private Man Yet that he hath a Superior or Master within the Kingdom besides God and the Law and so is not the Sole Supream Power appears by a Passage out of the same Author in the Second Book Rex habet Superiorem Deum item legem per quam factus est Rex item Curiam Suam viz. Comites Barones quia Comites dicuntur quasi Sociè Regis qui habet Socium habet Magistrum ideo si Rex fuerit sinâ— froena i. e. Lego debent ei froenum ponere From which words it seems apparent to me that this Author thought the King was not only Inferior to the Law but was also to his Court of Parliament called here Curia Baronâ—â— who might Bridle or Restrain him if he Transgres't the Laws which are here called the King's Briale Nor can I conceive how this could be done without some kind of Force or Constraint if he refuse to receive this Bridle they would lay upon him M. I do not desire at this time to enter upon this Question concerning that Power which I know some Parliaments have pretended too of Câ—â—bing and Resisting the King by force if they supposed He Invaded the Fundamental Rights and Lâ—bâ—râ—ies as they call them of the Nation and that foâ— two Reasons First because it is not pertinent to our present purpose of proving that the King is not the Sole Supream Power as also because you very well know that both Houses did in 13 Car. 2. by an Act of Parliament concerning the Militia Solemnly Renounce all Coercive Power over the King or any Right in either or both of the Two Houses of making Offensive or Defensive War against him But if you have a mind hereafter to course further on this Subject I doubt not but to prove to you from divers other Passages out of Bracton and that old Treatise called Fleta that it was no Political Superiority in the Curia Baronum but only a Directive Power or moral Superiority which they had of Advertizing the King of any Arbitrary Proceeding or Injustice he should happen to do and by Complaint Admonition and Entreating to impose upon him to amend the same according to his Oath but not by Coaction or Constraint And in this Sense they may be said in a Moral way to put the Bridle of the Law upon him which may be called Civil Resistance but as for Military Resistance against an Unjust King it is as Inconsistent with our English Government as with any other Monarchy in the World But you very much mistake if you suppose that the King of England is not Supream because he is Limited by Laws which realy is no Objection Because a Soveraign without any Diminution to his Soveraignty may be limited in the Exercise of his Soveraign Power either by his own Acts or Condescensions or else by those of his Predecessors under whom he claims This is so certain that there is no Supream Power in Heaven or in Earth which is not limited and confined in the exercise thereof Thus the Omnipotent Power of God himself is limited by his own Wisdom Goodness and Justice which are himself So likewise the Powers of all Absolute unlimited Monarchs are only so comparatively with respect to positive Laws but as for the Laws of God and Nature which
stood but every General Rule may have some Exceptions till the beginning of the Reign of Henry 7th about which time that usual Clause at the Special Instance or Request of the Commons began by little and little to be laiâ— aside and that of their Advice or Assent to be inserted in the place thereof For which I do refer you to the Statute-Book at large which Form I confess continues to this day yet even in Hen. 7ths time in the first of that King and the 7th Chap. it runs in this Stile The King our Soveraign Lord of his Noble and Abundant Grace by the Advice and Assent of the Lords Spiritual and Temporal at the Supplication of the Commons in the said Parliament Assembled and by Authority of the same Ordaineth And though the Statutes of Hen. 8th do generally agree in their Style with those of his Father Yet in his time also many Acts were drawn up in Form of Petitions as 3 Hen. 8th c. 14. Prayen your Highness the Commons in this present Parliament Assembled and 5 Hen. 8. c. 4. Prayen the Commons in this present Parliament And in the Reign of his Son â—d 6th tho' I grant that most of his Acts do run in the usual Form yet this one is very Remarkable I Edw. 6. c. 4. Wherefore the King our Soveraign Lord c. At the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same Which last words though they may seem to refer to the Parliament and may make Men think that the Lords and Commons did then pretend some Title unto the Power of making Laws Yet neither Adviseing nor Assenting are so Opperative in the present Case as to Transfer the Power of making Laws to such as do advise about them or assent unto them nor can the Alteration of the Forms and Styles used in Ancient times import an Alteration of the Form of Government unless it can be shewed as I think it cannot that any of our Kings did Renounce that power which properly and solely did belong unto them or did by any Solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament And therefore upon the whole matter since in almost all our most Antient Statutes it is precisely express't that they were made by the King himself the meaning of those general words used in latter times that the Statutes are made by Authority of Parliament are particularly explained in former Statutes viz. that the King Ordaineth the Lords Advise the Commons Consent as by comparing the Writs with the Statutes that expound the Writs will evidently appear F. In answer to those Authorities you have now brought I doubt not but I shall give you others of as great weight that prove the direct contrary to what you now Assert To begin with your Instance of Magna Charta I shall shew that those Charters that were granted and confirmed by Henry 3d. were not his Acts or Grants alone but the Grants also of the whole Kingdom Represented in Parliament We have two Express Declarations for the one in the 25th of King Edw. 〈◊〉 Where is to be found in the Parliament Roll of that Year a Confirmation of the Great Charter of Liberties and Forests in these Words which I shall render to you in English out of the Old French for your better understanding Know ye that the Honour of God and Holy Church and for the profit of our whole Realm We have granted for us and to our Heirs that the Great Charter of Franchises and Forests which were made by the Common Assent of the whole Realm in the time of King Henry our Father should be held in all Points without any Blemishment So likewise we find another Confirmation of those Charters in the Parliament Rolls of the 15th of Edw. 3d. which being in Old French I shall render it into English Imprimiâ— it is Accorded and Assented that the Franchise of Holy Church and the Great Charter of Forest and the other Statutes made by our said Lord the King and his Progenitors the Peers and the Commons of the Land for the Common profit of the People shall be firmly kept and maintained in all Points So that you may hence plainly see that the King himself with the whole Parliament declare and that in two several King's Reigns that the Great Charters were not only the Free Grants of King Henry but also the Ioynt Acts of the Common Council of the whole Kingdom and why King Iohn's Charter should not be made by the like Authority being one of his Progenitors I see no reason especially if we consider that that Charter was first drawn up by the Barons in the Form in which we find it and was past by that King under his Great Seal in that vast General Council or Assembly at Running-Mead And certainly whoever can draw up a Law and can offer it to a Prince to Confirm and without which consent of theirs it would not be good must necessarily have a share in the making of it As for your other Instances of those Old Statutes made in the Reign of Heâ— 3d. though I grant they begin as you say in the Kings Name Yet if you would but have read a little further you would have found that in divers of them the Bishops Earls and Barons gave their Consents to them And for the Proof of this I shall begin with one of the Antientest Statutes we have left us viz. that of Merton in the Preamble of which it is recited Provisum est in Curia Domini Regis apud Merton where after the parties that were present at the making of the Laws it concludes thus in the Latin Copies ita provisum est Concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus quam ab ipso Rege aliis where you see the Providing and Enacting Part is Ascribed to the Bishops Earls and Barons as well as to the King who is here mentioned almost last of all And though I confess that there was then no Set Form of Penning of Statutes in that honest and plain Age when Parliaments did not last so many Days as they do now Weeks and that the King's Judges and Council drew up the Acts after the Parliament was up in what Form they pleased sometimes leaving out any mention of the Bishops sometimes of the Temporal Lords and most commonly of the Commons Yet that they did all give their Consents to such Acts appears by the Statute of Westminster the 1st which you have already Cited where the Assent of the Arch-Bishops Bishops c. Counts Earls Barons and all the Commonalty of the Land is expresly mentioned So likewise the Statute of 51. of King H. 3d. concerning Measures begins thus Per
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
which will scarce be able to hold long together without falling into perpetual quarrels and disputes about the Encroachments upon each other's Power and Priviledges But it appears as well by the whole Tenor of our Laws as also by divers Express Statutes that the King is the Sole Supream or consequently the Sole Legislative Power The first of these I shall prove from the common Indictments of Treason Murder Felony c. Which run always Encounter la Corone la dignitie de Roy and the Process against such Offences are called the Pleas of the Crown because they are against the Crown and Dignity of the King So that it is not the Dignity and Authority of the Lords and Commons which is Violated but the Dignity and Authority of the King In the next place this Opinion is contrary to the express Declaration of divers of those very Parliaments which you pretend have Exercised a Share in the Legislative For you cannot deny that many of our Ancient as well as Modern Statutes were made and drawn up in the Form of a Petition from the Lords and Commons or both of them to the King And it is very strange that one Fellow in the Supream Power should so humbly Petition the other But 2. Though time hath altered the Form of Petitioning into Bills yet both Lords and Commons have bin often used to call the King Our Dread Soveraign Our Soveraign Lord Our Liege Lord and the like and to Stile themselves We your Majesty's most Humble and Faithful Subjects or most Dutiful and Obedient Subjects and in that Humble Stile to beseech him to Enact such and such things which sure they could have done alone had they bin Co-ordinate with him in Law-making Lastly if they were Co-partners with him in the Supream Power how came they to declare as they did in the Preamble to the Statute of the 25th Hen. 8. which you your self have quoted that the Realm of England is an Empire Governed by one Supream Head and King unto whom the Body Politick of the Nation Compacted of several Sorts and Degrees of People divided in Terms of Temporality and Spirituality owe and bear next unto God a Natural and Humble Obedience Now how came they here farther to declare this Supream Head of the Clergy and Laity to be furnished with Plenary Whole and Enâ—ire Power by the Goodness and Sufferance of Almighty God Certainly they can have no share in it if it be Plenary Wholy and Entirely in him or how came they in the 1st Statute of Queen Eliz. c. 7. being a Recognition of the Queens Sâ—premacy to acknowledge that all Power Temporal and Spiritual was Deducted from her as the Supream Head and that they were her most Faithful and Obedient Subjects and that they did in Parliament Represent the Three Estates of this Realm and that She was the only Supream Governour thereof Which was pursuant to a Statute to the same purpose in the 2d Ed. 6. c. 2. wherein it is declared That all Authority of Iurisdiction Spiritual and Temporal is divided and Deducted from the Kings Majesty as Supream Head of these Churches and Realms Not to mention the Oath of Supremacy it self That the King or Queen's Highness is the only Supream Governour of this Realm Which these Statutes would never have acknowledged had it not bin Consonant to our Ancient Common Law by which it is expresly declared in that Old Law-Book written as it is supposed by Bishop Breâ—ton in the very first Leaf whereof it is thus expressed in the Name of King Edw. 1st himself We Will that our Iurisdiction be above all other Iurisdictions which had been spoken in vain if all other Powers had not bin Derived from and so Subordinate to the Kings Besides I could prove this farther from History and matter of Fact F. I thank you Sir and I desire I may answer what you have now said before you pass to another Head for I doubt the time will not give us leave to Discourse much further on this Subject to Night In the first place therefore I must tell you that the main Foundation of your last Arguments is founded upon a Supposition which I altogether disown viz. Co-ordination or Division of the Soveraign Power between the King and the Two Houses For I have always supposed that the King continues still Supream and that as the Modus tenendi Parliamentum declares He is Principium Caput Finis Parliamenti that is he can call and Dissolve Parliaments when he pleases and likewise that the Executivâ— part of the Government rests solely in Him as also the Power of making War and Peace And even in the Legislative it self that the King hath more eminently though together with the Parliament a Supream Enacting Power without which it cannot be a Law This being considered you will find that here is no Division of the Legislative Power Since neither the King nor the Two Houses have it Solely and Compleatly in themselves but it is joyntly Executed by them all three as one Entire Politick Body or Person So that neither can they make any Law without him nor He Enact any without their Consent and he by giving his Consent last gives it the Force and Sanction of a Law and he is therein the Supream i. e. the Last or Vltimate Power in the true Sense of that word nay the only Supream Power unless you could suppose two Supreams that is two Highest Powers at once in the same Kingdom But that for all this the Two Houses are not Subject to the King in matters relating to Legislature may hence farther appear that the King cannot Command them to give him what Mony or to pass what Laws he pleases Since if he should go about to do so they might as I suppose you your self will grant Lawfully Disobey him which they could not do without Apparent Disloyalty and High Disobedience were they in this as they are in other indifferent things Subject to his Commands when Legally issued But to return you a more particular Answer to what you have said to prove the King to have the Sole Legislative Power As to what you pretended I have quoted out of Glanville if you please better to consider of it you will not find that he gives the King any more than an Enacting Power together with his Great Council For though he tells us quod Principi placet Legis habet vigorem yet mark what follows eas Scilicet quas super dubijs in consilio definiendis Procerum quidem consilio Principis antecedente Aâ—thoritate constaâ— esse promulgatas Where by the last consilio is meant some what more than meer Advice as I have already proved But as for Bracton it is true he agrees with Glanville in making the Kings Authority necessary to the Essence of a Law Yet he is more express than the other in making the Advice and Consent of the Great Council or Common-wealth also necessary to its being as
over the King in the State of Nature than it doth for a Creditor in the like State to compel by force his Debtor to pay him a Sum of Money which he owed him in case there were no Civil Iurisdiction for him to Appeal to And let us farther suppose a Council or Parliament appointed who may Remonstrate to the King his Transgressions or Violations of the Law Yet this may be without any Coercive Power over his Person or of making War upon him since the King may if he please remedy all these Disorders by Redressing their Grievances and punishing the Authors of them So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government and do also go about to execute them upon the People by force this being in effect a making War upon them I suppose they have then a just Right to defend themselves against his Tyranny So that if these Rights or Priviledges we now enjoy were not the meer Concessions of the King's Grace and favour as you affirm but reserved as part of their Birth-Right at the Original Constitution of the Government as I shall prove all our Fundamental Laws were the People have then as much Right to defend them their Allegiance to him being upon that Condition either express or imply'd as any other Nation hath to defend their Lives Liberties and Properties against the Violence of the Supream Powers or any Commissioned by them as I hope I have already proved to you So that notwithstanding all that you have said to the Contrary I think the Notion of a mixt or limited Monarchy in the very institution may be agreeable to Reason and practicable too either in this or any other Kingdom And when you can prove the contrary by History or Matter of Fact as you promise I will give up the Cause M. You have Broached a parcel of Special Common-Wealth Notions in which you are every way out As first in making the King's Authority derived either from or by the Peoples Consent Whereas all our Ancient Lawyers call him God's Vicar or Lieutenant on Earth and not the People's and in the next place in supposing he may be Resisted by Force of Arms whenever the People shall think themselves Opprest or their Fundamental Rights and Liberties as you call them invaded it is contrary to the Express Declaration of the Parliament by two serveral Statutes in the 2d Year of the late King Charles And though you disclaim all Coercive Power of the two Houses over the King yet it is only to place this Right of Resistance in a more fallible and ungovernable Body viz. the whole People in their Natural Capacities which as it is more consistent with your Principles so it is more dangerous to all Supream Powers as well Common-Wealths as Monarchies as I have partly shewed you already and I hope may farther convince you before I have done But since I have not now time to shew you the falsity and absurdity of these Notions and to urge the Statute at large against Resistance in any Case Whatsoever I pray go on in the Method you have proposed and let me see how you can make out that even our Parliaments do not derive that Priviledge they now enjoy of giving their consent to Laws as also their very being to the Gracious Concessions of our former Monarchs F. That I shall do with all my Heart But first let me tell you that though I own the King to be God's Lieutenant in these his Dominions Yet I must likewise aver that it was only by the Consent and Voluntary Submission of the People of this Nation that the first Monarch begin where you will could obtain that Title And as for those Statutes you mention against all Resistance in any Case Whatsoever I doubt not but to shew you that it was never the intent of that Parliament to debar us from all necessary Resistance and Self-defence in cases of illegal Violence and intollerable Oppression unless you can suppose they were resolved to alter the Government and to put it into the King's Power to destroy all our Laws and Liberties and instead of a Lawful King to Set up for a Lawless Tyrant when ever he pleased But to come to the matter in Hand I shall shew you that it is not at all impossible or improbable that without any hinderance of that Power which is necessary to the King as Supream that he might for all that have bin limited as to the Legislative at the first Institution of the Government which I shall thus make out I do therefore in the first place suppose that the English Saxons being a free People after their Conquest of this Island as well Nobles as Commons did agree by their free consents and publick Compacts to set over themselves a Prince or Soveraign and to Resign up themselves to him to be governed by such and such Fundamental Laws Here is a Supremacy of Power set up though limited as to the manner of its Exercise 2. Then because in all Governments after Cases will arise requiring an Addition of Laws suppose them Covenanting with their Sâ—veraign that if there be any Cause to Constitute any New Laws he shall not by his Sole Power perform that Work but that they will reserve in themselves a Concurrent or Co-operative Power So that they will be bound by no Laws but what they joyn with him in the making of 3. I suppose that though the Nobles may personally convenâ— Yet since the Commons being so Numerous cannot meet together in Person therefore for the doing of this Work it be agreed that every City of Considerable Town should have Power to Depute one or more to Act for the whole Body in the Legislature That the Nobles by themselves in Person and the Commons by their Deputies Assembling there may be Representatively the whole Body of the Kingdom with Power to execute that Authority reserved for establishing new Laws 4. Since the Occasion and need of making such Laws and Expounding the Old Ones could not be constant and perpetual therefore we may farther suppose for the avoiding of the inconvenience of three standing Co-ordinate Powers they did not Establish these Estates to be constantly existent but occasionally as the Causes for which they were ordained should require 5. Because a Monarchy was intended and therefore a Supremacy of Power as far as was necessary must be reserved in One it was concluded that these Estates should be still Assâ—mblies of his Subjects and Swearing Allegiance to him and that all New Laws which by agreement of these Powers should be Enacted should run in his Name and be called his Laws and they all bound to obey him in them when thus Establisht And Lastly it being supposed that He who thus was to govern by Law and for the furtherance of whose Government such New Laws were to be made should best understand when there was need of them and that the Convening and
will not affirm that the Ecclesiastical Authority of Bishops as to their Right of meeting in publick Synods or Councils is derived from the Crown But the Truth is the Sense of this Statute is no more then that all such Iurisdiction is immediately derived from the King though Originally from the People which Fortesoue calls Potestatem à Populo effuxiam and by them intrusted with him as the Supream Magistrate to Distribute it to all Inferior Courts which yet he cannot at this Day Create anew without an Act of Parliament so that this will not extend to the whole Assembly of the Estates themselves Since I doubt not but to prove by undeniable Testimony that that Constitution is as Ancient as the English Nation it self M. I see you have a mind to wrest the true sense of this Statute by a forced Interpretation but I hope at our next meeting to prove to you that our first Saxon and Norman Kings were Absolute Monarchs and that not only all the Liberties and Priviledges we enjoy but also our Civil Properties were wholy derived from him and if so it will also necessarily follow that all Difference and Distinction in Honour or Power by which the Bishops and Temporal Lords can claim to Sit in Parliament is wholy derived from those Kings For as to the Commons I need not go so high for their Original since it is the Opinion of our best Antiquaries and I think the Learned Dr. Brady hath sufficiently proved it against Mr. Petyt that they are no Ancienter than the latter end of Henry the 3ds or perhaps the 18th of Edw. the 1sts Reign Nor do the Authors you have quoted for the Independant Authority of Parliaments viz. â—â—acton and the Mirrour mention any other than the Curia Baronum or that of Counts or Earls as the Author of the Mirrour hath worded it by which can be meant no other than the House of Lords for as to that of the Commons had they bin then in Being or had they had any thing to do in the Government it is not likely these Ancient Authors as well as our Acts of Parliament of those times would have omitted particularly to mention them So that the higher I go and the more I look on the History of our Ancient English Kings the more Absolute I find their Power and the less dependant upon the People Therefore I have very great reason to believe that our first Kings were Absolute Monarchs not only by the Original Constitution of Parliaments but also that our very Liberties and Properties proceeded at first from their meer Grace and Pavour F. I know you have Asserted the same things more than once All the Difficulty lies in the Proof And therefore I would not have you be too positive or rely too much upon the conciseness or Silence of the Ancient Monkish Writers of those first times For since as I own they have never given us any exact account of our Ancient Civil Government nor yet of the History of their own times We are forced for the most part to pick out the Truth from other Circumstancâ—s or such Passages as we can meet withal in their Ancient Laws and Customs nay sometimes from those of their Neighbours who lived under the same kind of Government and Laws with our Saxon Ancestors as proceeding from one Common Stock or Original as I shall shew you before we have done But since we are already in Possession of our Ancient Laws and Liberties and of a Right to Parliaments once every Year or oftner if need be by two Ancient Statutes yet in force at farthest once every three Years by a late Act of Parliament it ought to be your Task to prove to me the Absolute Power of our first English Monarchs and by what Steps and Degrees they came to part with their Power and to be thus limited as we now find them and when you can shew me this I do assure you I will come over to your Opinion M. I shall observe the Method you prescribe And therefore to begin with the first Entrance of the English Saxons into this Island I suppose you are not Ignorant of so Common a piece of History that all the Title they had to this Island was by the Sword or Conquest of their first Princes or Generals who being sent by Lot together with the Armies that followed them out of their own Country because it was too narrow or barren to sustain such great Multitudes they came over hither to seek new Dwellings Now whether these Princes were made Kings before they came over or that they made themselves so immediately after their Conquest will be all one since if we consider them as Military Captains or Leaders of Armies their Power was Absolute as that of all Generals ever was and must be by the necessary Laws of Military Discipline If we look upon them as Kings or Princes as it is very likely they were also before they came over since they were certainly of the Blood Royal all of them deriving their Pedegree from Woden their God as well as first King being thus made Kings by their Fathers or other near Relations there is no Ground to believe they owed their Titles to the Votes or Suffrages of their followers But after they had Setled a Heptarchy or Seven Kingdoms in this Part of Britain called England We find them Governing and Leading their People like Absolute Kings and Monarchs over their little Principalities And since each Kingdom was Conquered from the Britains under the Conduct according to the Laws of Nations and Right of Conquest all the Lands of each Kingdom belonged to the Conquerors who though they cantoned them out into shares to their Captains and Souldiers according to each Man's Valour or Desert Yet did this wholy proceed from their Bounty and Favour who might have kept the whole to themselves if they had pleased and hence it is that not only since the Norman Conquest but also long before all the Lands of England were holden of the King as the Supream Lord And if so I suppose you will not deny but that according to your own Principle all our other Priviledges and Liberties must have been derived from him since you have already Asserted that whoever is Lord of the Soil of a Country he is so also over the Persons of the People F. Before you proceed any farther I pray give me leave to answer what you have now said I doubt with greater shew and appearance of Truth than the matter will justly bear when well canvassed But since I grant our earliest Writers are very short in giving us the true Form or Original Constitutions of our Ancient Saxon Government it is necessary we look into the Roman Authors who treat of the Laws and Customs of the Ancient German Nations a Stirp of whom our Ancient English Saxons certainly were and in those Authors you will find that they as well as other Nations of the Gothic Original were
Deputies to their Great Councils at all and since the Government of England as you your self grant did very much resemble that why might it not be so here too F. I think your Reply hath no more weight in it than what you have already urged For in the first place it lies upon your side to prove that none but the King 's or chief Thanes had any Places in the Great Councils of those times and wheâ—â— you can prove that you may do something But what I have now brought to prove the great Antiquity of our Cities and Burroughs in England is not so little to the purpose as you would make it since it confirms that Right of Prescription which all ancient Cities and Burroughs is England do claim of senâ—ing Members to Parliament and therefore pray 〈◊〉 what Mr. Lambard a Person whom all the Learned own extremely knowing in the English Saxon Government tells us on this Subject in his Archeion in these Words That whereas in the beginning of the Law viz. those made by the Saxon Kings he there mentions all the Acts are said to pass from the King and â—is Wisemen both of the Clergy and Laity in the Body of the Laws each Statute being thus And it is the advice of our Lord and his Wisemen So as it appears that it was then a received Form of Speech to signifie both the Spirituality and Laity that is to say the Greater Nobility and the Less or Commons by this one Word Witena i. e. Wisemen Now as these written Authorities do undoubtedly confirm our Assertion of the continuance of this manner of Parliament so is there also unwritten Law or Prescription 〈◊〉 doth no less infallibly uphold the same For it is well known that in every Quarter of the Realm a great many Burroughs do yet send Burgesses to the Parliament which are nevertheless so ancient and so long since decayed and gone to nought that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesâ— than they have obtained this Priviledge by the Grant of any King succeeding the same So that the Interest which they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning Which thing is also confirmed by a contrary usage in the self same thing for it is likewise known that they of ancient demesne do prescribe in not sending to the Parliament for which reason also they are neither contributers to the VVages of the Knights of Shires neither are they bound by sundry Acts of Parliament tho the same be generally penned and do make no exceptions of them But there is no ancient Demesne saving that only which is described in the Book of Dooms-day under the Title of Terra Regis which of necessity must be such as either was in the hands of the Conqueror himself who made the Book or of Edward the Confessor that was before him And so again if they of ancient Demesnes have ever since the Conquest prescribed not to elect Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other Places did send their Burgesses From whence we may conclude that the Learned Author did not only believe that the Lords but that also the Inferior Nobility and Representatives of Cities and Towns were included under the Word VVites and also that these Placeâ— claimed that Priviledge by Prescription and not by Grant of any King since the Conquest or before M. I shall not deny but Mr. Lambard was a Learned Antiquary yet there are others more in number and perhaps of greater Learning who do suppose that no Cities or Burroughs sent Burgesses to Parliament but since the Conquest the I confess the time is not exactly agreed on but whenever they began to appeaâ—â— there it is certain they could have no right of coming but from the King's Summons or Grants since none but such Cities or Towns that held of thâ— King in Capite had anciently any place in those Assemblies noâ— of them neither any other but those whom the King pleased to call And from thence proceeds that great Variety we find in the List of those Towns which send Members to Parliament But I shall omit speaking any thing farther of this at present But as for those middle inferior Thanes or Vavassours as they were afterwards called whom you suppose to have made so great a Figure in the Saxon Great Councils I do not believe that they had any Votes there and I hope I shall be able to prove to you by and by that none but the King's Tenants in Capite appeared in those Meetings from the time of William the Conqueror to the 49 Hen. III. Now if it be true as you suppose King William made no alterations in the constituent parts of the Great Council of the Kingdom after his conquest of it it will likewise follow that the same sort of persons viz. Tenants by Knights Service were the only Members of it before the conquest too But if you have any express Authorities out of our Ancient Saxon Laws or Histories to prove that the Commons appeared at the Wittena Gemotes in the Saxon times pray let us see them F. I shall perform your Command immediately but in the first place give me leave to tell you that what you have said concerning Cities and Towns not sending Burgesses to Parliament till after the Conquest is a great mistake built upon a false and precarious Hypothesis that they all held in Capite of the King the contrary of which I shall make out when I come to treat of that Question So likewise is it as precarious that none but the King's Tenants in Capite had any Votes in our Great Councils in the times immediately succeeding your Conquest till the 49th of Hen III. and that therefore it must have been so before the Conquest For as I own that King VVilliam made no material alteration in the Government of the Kingdom after his entrance so I likewise affirm that as well after as before that time if not Knights of Shires yet all Thanes the or Barons i. e. great Freeholders of England had Places in that Assembly before 49th of Hen. III. But to proceed to the Authorities you desire I shall begin with the first and most ancient General Council we have left us in the Saxon times viz. that which was held at Canterbury A. D. 605. by King Ethelbert not long after the settlement of Christianity in this Island which is recorded by Sir H. Spelman in his Brittish Councils in these Words An. Incarnationis Dominicae 685. Aethelbertus Rex in fide Roboratus Catholica una cum Beria Regina silioque ipso Eadbaldo ac reverendissimo praesule Augustino caeterisque optimatibus Terrâ— Solenitatem Natalis Domini Celebrant Cantuariae Convocato igitâ—r ibidem Communi Consilio tam Cleri quam Populi Whence you may observe that
must needs signifie Tenants in Capite and no other But that it did not signifie only so after that time I shall join issue with you by and by I shall now proceed to my next Authority which is from Ailrid Abbot of Rievallis who lived not long after the Conquest who in his Life of Edward the Confessor relating the manner of that King's Election in his Mothers VVomb tells us How Ethelred his Father called a Great Council about appointing a Successor that hereupon says thus Fit Magnus coram Rege Episcoporum Procerumque Conventus Magnus Plebis Pâ—lgique Consensus VVhere you see apparently that the Abbots made a distinction between the Assembly of the Bishops and Great Lords and that of the Plebs Vulgus or Common People M. Pray give me leave to interrupt you a little before you proceed to any fresh Authorities I grant it is true that the Abbot in the place you mention tells such an idle Tale that this Edward was chosen King whilst in his Mothers VVomb and so his Father made the Nobility swear Fealty to him before he was born He is the only Author of this Legend that I know of and sure you your self must own that it is a little too gross to be believ'd and therefore I wonder that you should urge that to me for a sufficient Authority for the People or Commons having any place in the Great Council in those times F. Pray Sir observe to what purpose I make use of this Authority it is not to make good the Election of Edward the Confessor in his Mothers VVomb but only to prove who were then supposed when this Abbot writ to make up the constituent parts of the Wittena-Gemot or Parliament in the Saxon times which was then believed by all men to consist of the Clergy Higher Nobility and Comâ—â—â— unless you can suppose that the Abbot should mention the Commons by Prophecy And granting that it was only according to the custom of his own time which the Author of the Preface to the Decem Scriptores makes to be about the middle of King Henry II. Reign it will sufficiently prove the antiquity of the Commons in Parliament to be near a hundred years older than the earliest time you assign for it viz the 49th of Hen. III. But I shall now conclude with the conclusion to King Edward the Confessor's third Charter to the Abby of VVestminster in a great Council held in the last year of his Reign as you will find it thus recited in Sir H. Spelman's Councils in these Words Hanc igitur Chartâ—â— meae donationis Libertatis in die dedicationis praedictae Ecclae recitari jussi coram Episcopis Abbatibus Comitibus omnibus Optimatibus Angliae omnique Populo audiente vidente where by the Optimates Angliae I think can be understood no other than the Thanes or Freeholders of all sorts as well the Kings as others as also the Deputies of great Cities and Burroughs the Words being Optimates Angliae non Regis and tho it is not likely that the Populus who are here mention'd to be present should be the Mob or Common People only admitted to stare and harken at such a great Assembly yet since the Words are in respect of them only audiente vidente I shall not insist upon the Word Populus here as a part of this Common Council of the Kingdom But yet that the Word Populus does oftentimes refer to the Representatives of the Commons I shall conclude with the Answer of K. Harold the last Saxon King to the Message of VVilliam Duke of Normandy demanding the Kingdom of England and that Harold according to his Promise should marry his Daughter The Words are remarkable and therefore pray read them out of Will of Malmesbury who lived near that time Contra 〈◊〉 scil Heraldus quae dixi de Puellae nuptiis referens de Regno addebas praesumtuosum fuisse quod absque generali Senatus Populi Convenâ—â— Edicto alienam illi hereditatem Iuraverit now that by the Word Senatûs is to be understood the higher Nobility such as the Bishops Abbots Earls c. and by Populus the Representatives of the People we have Mr. Selden's Authority on our side who in his Dissertations on Fleta speaking of the great Question that arose in Parliament in K. Edward III. Reign concerning King Iohn's Donation of his Kingdom to the Pope gives their conclusion to this debate in these Words Ordine universi â—am generis Hieratici quam Proceres Senatus Populus sâ—lâ—â—niquâ— in it a deliberatione in Comiciis illis responderunt unanimes irritam plane fuissi 〈◊〉 Donationem illam ut pote tam sine ordinum assensu quam Iuran ento inaâ—guâ—aâ—i adversâ—n but of this great Authority I shall speak more hereafter when I come to it in order of Time Since therefore it is apparent that the Commons had a share in the Great Councils before the Conquest as you call it I desire that you would be pleased to shew me how they came to lose it after the coming in of the Normans and to be so long without it as until the 49th of Henry III. or 18th of Edward I. If your Authors are to be credited M. I must confess the Authorities you have brought out of the Saxon Councils would seem to be of some weight were I not sensible that the Monks who were the only Recorders of these Councils are very short and careless in giving a true account of them and if we go to the Councils themselves we might be sufficiently convinced that all those that are said to be present at them could not have any Places or Votes in those Assemblies as Members of them for in some of them as in this Example we find the Queen to have been there and to have given her consent to the King's Charters and yet I suppose you will not allow the Queen to have been there as an Estate by her self much less to have been a Member of any of the Three Estates The like we may say for those Abbesses we find mentioned to have been present in divers of those Councils and particularly in that of Winchester you so much insist upon wherein Tythes were granted and these are said to have approved of the Royal Charter as well as any of the rest and sure you do not make Women to have had Voices in our great Councils in the Saxon Times So that it appears plain enough to me that persons being mentioned as present in these Assemblies or being Witnesses to Charters there granted do not make them to have been constituent Members thereof And therefore since the Saxon times are so dark and obscure and so little to be collected of certainty from what we find in the old Monkish Histories and those Fragments of Laws and Charters they have left us I think it is time that we pass over this to the next Period after the Conquest wherein I doubt not
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
which by the way are here called Noble tho meer Commoners and to obviate your Objection that the Word Clerus after Barones may refer to the Bishops Abbots and Priors that could not be for they at the same time had already writ Letters apart to the Pope concerning this Matter as you may see in the same Author immediately before And therefore nothing seems plainer to me than that by these Words Clerus Populus Universus must be meant the inferior Clergy and Commons appearing by their Representatives in this Parliament and that so became Generalissimum Parliamentum as this Historian calls it M. Pray give me leave now to reply In the first place I must tell you that the Instances you have brought out of Matt. VVestm to prove that under the Words Comites and Barones Baronagium Angliae were comprehended the Commons of England and that after the time I allow them to have been there will not do your Business And as to the Instance about the Pope's Nuncio it seems to have been an Order of the Lords only the Words being in Latin de Assensu Comitum Baronum As to the Third Instance out of Knighton He said indeed that the Comites Barones met at the Parliament at Stamford and that might very well be since they alone then insisted upon the confirmation of the Charter of Forests But as for the Argument you draw from the Direction of this Letter to the Pope The Learned Dr. in his Treatise against Mr. P. hath given us a very good Answer to it to this effect That tho it is true that after the Barones Proceres there are divers other parties mentioned yet was this Troop of Words put together in this Letter to no other purpose than to make an Impression upon the Pope and make him sensible what a general dislike the Nation had of his Exactions and Incroachments and to induce him to a compliance with their Desires the Multitude or Commons not being any-ways parties or privy to the writing of the Letters For the clamour of the people was a great Argument used in all these Letters to affect the Pope how ungrateful his Impositions were to the Nation But in this of the Temporal Barons more especially who address themselves to the Pope by Petition inforcing it by the clamour of the People against those Injuries and Oppressions upon the whole Kingdom It is to no purpose to repeat all that follows only observe this Clause Alioquin necesse est ut veniant Scandala Clamore populi tam Dominum Regem quam nos intolerabiliter impellente and the King likewise in his Letter to the Pope and Cardinals aggravates the matter by the like Arguments as appears by this Clause in his Letter to them verum Clamorem incomperabilem Magnatum Angliae tam Cleri quam Populi non possumus obaudire From this general Clamour of the People and not from their being parties it was that the beginning of the Letters from the Baronage or the University of England was stuffed with so many Words and Phrases to awaken his Holiness and invite him to redress their Grievances F. In return to what you have said I must tell you that I am not convinc'd that in the Parliament mentioned by Mat. VVestm that the Demand for the Confirmation of the Charters was made by the Lords only Since it is not likely that the Commons who are there stiled Divites Plebis and are said to have been grieved by their Infringement should not have been parties to the Complaint for their Redress especially since we find that in all succeeding Parliaments the Commons are mentioned as most eager for the confirmation of these Charters But as for the most material part of your Answer to my Authority from the Parliament's Letter to the Pope I know the Dr. endeavours all he can to avoid the force of this Objection by making the Parliament top upon His Holiness meer empty Words instead of Matter that is according to the Dr.'s own Phrase they only laid an airy Ambuscade to intrap him But whether the Old Gentleman was thus like to be catch'd I give you leave to judge For certainly both he and his Consistory of Cardinals knew as well as the Parliament it self what were the Constituent parts thereof and they could quickly have answered them that they put a meer sham upon his Holiness in mentioning the Noble Inhabitants of the Sea Ports and all the rest of the people both Clergy and Laity in their Letters whereas they had nothing at all to do with the matter nor had shown any dislike of his Holiness's Proceedings For if they had no Representatives in Parliament how could it be known whether they were aggrieved or not Or is it likely that the Pope had no Nuncio or Friends among the Clergy to give him an account of the Cheat they there put upon him And they might as well have talked of the Clamours of the Tinners in Cornwall as of those of the Inhabitants of the Sea Ports if it was only put in to augment the Clamour or to fill up the Number of the Complainants if the people I mean both Nobility and Commons had not been parties of these Letters But you your self have but now recited a Clause in the King's Letter to the Pope and Cardinals which makes it plain it was so when he tells them that he could not stop his ears against the Clamour of the Magnates tam Clerâ— quam Populi i. e. as well of the Clergy as of the Laity as the Dr. renders it So that these Words Clamorem Magnatum must signifie here the clamour of the whole people in Parliament or else they signifie nothing at all And I may as well say that the Clerus and Populus never appeared in Parliament at all but that these were also meer empty Words to frighten the Pope But what say you to the next Precedent Mr. P. produces to prove that the Lords and Commons together have writ Letters to the Pope when he attempted to invade the Right of the Crown or Kingdom viz. The Letter from the Parliament at Lincoln to the Pope in the 29th of King Edw. I. wherein they assert the King's Superiority over the Kingdom of Scotland and desire that his Holiness would desist from medling farther with it VVhich Letter tho subscribed by above a hundred Earls and Barons as it was the custom of that Age yet it is said expresly in the conclusion In cujus rei Testimonium Sigilla tam pro nobis quam pro tota Communitate praedicti Regni Angliae praesentibus suâ—t opâ—pensa M. Tho this Authority is after the time we acknowledge the Commons to have been summoned to Parliament and therefore I need not speak particularly to it Yet tho I grant your Argument hath some weight in it since it here seems that the Lords did sign this Letter for the Commons as well as themselves I shall endeavours to
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
defer till another time But I think I shall be able to shew you from undoubted Records and Acts of Parliament from the Reign of Hen. III. as low as Richard II. that these Words when used as I have now said after the Earls and Barons cannot refer to them but to another distinct Estate or Order of Men then called les Communer or les Communes in English the Commons of the Kingdom distinct from the Bishops and Lords M I shall nor now dispute with you concerning the Sense you have put upon the words you mention but I grant they often signifie the Commons after the 18 th Edw. I. in some Acts of Parliament and Parliamentary Records but I must beg your pardon if I cannot allow Communitas to signifie the Commons at this time in your Sense and therefore am not yet convinced that the words la Communalty de la terre mentioned in the Statute of Westm. I. ought to be understood or englished by the word Commons who I do not suppose were then above once called to Parliament till the 18 th of this King But as for what you argue from the Knights of Shires being often called Magnates and Grantz des Countees I allow they are often so stiled in our Statutes and Rolls of Parliament but if you consider the reason of it this will do you little Service since they were so called from their being most commonly at the beginning of their Election chosen out of the Greatest and most considerable Tenants in capite under the Degree of Barons in each County and no other who were chosen to represent the Omnes alios qui de Rege Tenent in capite mentioned in King Iohn's Charter or them and all the other Military Tenants by mean Tenure For 't is scarce to be believed that those Tenants in capite who made such a noise for their Liberties would part with this main point of being personally present or else the Body of them represented by some of their own number in every County And it may be upon this account they had the Title of Notable Knights c. in the ancient Writs of Summons directed to the Sheriffs So that only the Tenants by Knights Service as suitors to the County Courts were the Electors And this was very likely the reason of the Statute of the 7 th Hen. IV. that the Election should be made in the County Court by all the Suitors and also why the Statute 18 th Hen. VI. by which any man that had 40 s. per Ann. of any Tenure who was before permitted to be an Elector was altered by 10 th Hen. VI. and so explained that none but Freeholders of 40 s. per Ann. should afterwards be Electors with respect to the least part of a Knights Fee viz. 40 s. per Annum which were now come into the hands of very ordinary Men. For anciently soon after or near the Conquest there were very few or no great Socâ—agâ— that is such as held great Estates in Soccage and neither the small ones nor the Nativi or Copyholders were reputed Liberi ot Legales Homines as before mentioned or performed the service proper to such Military Tenants or those to whom they had alienated part of their Fees But since I have tired you as well as my self in wrangling about the sense and meaning of the words in dispute between us I shall for the future take a shorter cut and give you two or three Authorities from our Ancient Laws of VVilliam the Conqueror and Hen. II. and Rich. I. which together with King Iohn's Magna Charta will I think make it plain enough in conscience that the Commons as now represented were not summoned to Parliament during the Reign of King Iohn and whether they were so summoned before 49 th H. III. when they were called but once till above twenty years after will be the other part of my Task F. I approve of your Method very well and I assure you I love pedantick Disputes about the Grammatical signification of words as little as your self unless where it is absolutely necessary as indeed you have rendred it so by raising the greatest part of your Arguments from the equivocal use of those general words whereby our Ancient Laws and Historians have stiled the Constituent Members of our Great Councils which if they are well cleared I think it is high time to fall upon some more solid Arguments But before you come to that I cannot forbear observing that your self do allow that in all Acts of Parliament and Records after the 18 th Edw. I. the words Communitas and lâ— Commune when put after the Earls and Barons do signifie the Commons in the same sense in which they are now taken but I must confess it seems incredible nay almost impossible to me that these words should signifie the Community of the Tenants in capite In the 48 th Hen III or 18 th of Edw. I. begin where you please and yet that the next Parliament after those the same words should be taken in quite another sense for the Knights of Shires Citizens and Burgesses and that no Statute Record or Historian of that or succeeding Ages should take the least notice of it is understood But before I conclude this part of the Question I cannot but rectifie a great mistake you have fallen into by adhering to the Dr. with too implicite a Faith For whereas you suppose that the reason why our Knights of Shires were called anciently Grantz des Countees was because they were at first elected out of the Tenants in capite only and who with the other Tenants by Military Service were also the only Electors of them at first till the Statute of 7 th Hen. IV. ordained the Election should be made in the County Court by all the Suitors as if it had not been many Ages so before Whereas if you please to peruse that Statute a little better you will find it was not made to enlarge the number of the Electors of Parliament men for long before that time all sorts or degrees of Freeholders as well Tenants in capite as their Tenants by any kind of Tenure or whether holding of such Tenants in capite or else of others as Abbots and Priors and other Mesne Tenants did alike owe Suit and Service to the County Court and consequently were all alike capable of giving their Voices there at the Election of Knights of Shires however small their Estates were Nor was that Statute of Hen. IV. now cited which requires the Election of Knights of Shires to be made by those that were summoned and all other that were there present made to confer any new Right upon such Feeeholders but only to prevent the Abuses of Sheriffâ— who were wont before that Statute to procure Knights of Shires to be chosen clandestinely without any due Summons or notice given to the Freeholders of the Election much less doth the Statute of 8 th Hen. VI.
that King last mentioned per Commune Consilium 〈◊〉 Regni yet there is likewise no mention made of any Knights and Citizens 〈◊〉 Burgesses F. Before I answer this main Argument of yours which I freely grant carrieth the greatest shew of probability of any you have yet brought give me â—â—â—ve to take notice that I think you are very much out in your first Conclusion that before this Charter the King exercised a Royal Prerogative of Imposing Taxes without the Assent of Parliament for if you mean that this Exaction was exercised de facto and from thence you would make it a Prerogative of the Crown I grant this was true not only before but after this Charter before the Statute de Tallagio non concedendo was made but if you mean de Iure I affirm that our Kings were as much tyed up by the 55th Law of William the First which you have already Cited from Levying any unjust Taxes or Exactions 〈◊〉 Communi Consilio totius Regni as they could be afterwards by any other subsequent Law that could be made But I shall proceed to answer the Authority you have now brought from this Clause in King Iohn's Charter to prove That none but Tenants in capite had any place in our Great Councils or Parliaments But though I confess the Charters of Henry III. and Confirmation of Edward I. are the same with this in the most material parts yet there are several Clauses of which this Clause in question is one which are in King Iohn's Charter and yet are totally omitted out of both those of Henry III. as I shall shew you hereafter So that let â—â—e sense of this place be what it will I defie you to shew me any Great Council of the Kingdom that was ever summoned according to this Imaginary Model of yours and that I do not speak without Book that Parliament or Council of 9. Henry the Third when but 11 years after King Iohn's Charter was Conâ—â—â—med Mâ—t. Paris as I have already observed tells us it consisted of Cleâ—â— Populus cum Magnatibus Regionis But give me leave to read this Clause according as your Dr. himself hath Printed and Transcribed it and as your self have now read it and I doubt not but it will appear plain enough that the Clause you insist on in this Charâ—â—r doth not at all concern the Great Council of the Kingdom and for the proof of this I desire you only to observe that by the 15th and 16th Clauses of this Charter you have now read both the City of London and all other Cities Barâ—â—ghs and Towns had a Right to have a Great Council of the Kingdom for the â—â—â—essment of Aids otherwise than in the Three Cases there expected And â—ay take the Dr's Paraphrase to this Clause along with you in his Appendix to his compleat History of England viz. That they viz. the Citizens Burgesses and Cinque Ports shall send their Representatives or Commissioners to the Common Council of the Kingdom for the Assessment of Aids So that according to his Concession there must have been Citizens and Burgesses in the Great Council in the Reign of King Iohn and if so I desire you to tell me whether those Gentlemen were Commoners or not But I will not insist too much upon his Concessions for I think it is very plain from the Words themselves which point out a distinction between the Common Council of the Kingdom mentioned in the first Clause which was to meet to grant or assess Aids or Subsidies and that other tho not Common Council or Assembly consisting of all the Tenants in capite which by the 17 th and 18 th Clauses of that Charter are to meet to assess Escuage and to do such other Business as was express'd in their Summons So that nothing seems plainer to me than that this Assembly mentioned in this Charter for assessing Escuage was a distinct Council from the Great Council of the Kingdom which was appointed for the granting of other Taxes called Auxilia and for the making of Laws M. I confess this Gloss of yours seems at first sight very plausible and agreeable enough to the way of Reading and Pointing with which the Dr. himself published this Charter but for all that I much doubt whether you are in the right or not therefore pray give me leave to put off this Debate till our nâ—â—t Meeting since it now grows late and in the mean while I will take time to consider the Arguments and Authorities you have now made use of F. Pray take your own time but do not defer it above a day or two for I have a great mind to have this Question dispatch'd off our hands I am your Servant M. Good night Sir FINIS Books Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane A Brief Disquisition of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutation of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation The Gentleman's Iournal Or the Monthly Miscellany By way of Letter to a Gentleman in the Country Consisting of News History Philosophy Poetry Musick Translations c. Compleat for the Year 1692. Printed for Rich. Parker and are to be sold by Richard Baldwin near the Oxford-Arms in Warwick Lane Where are to be had the Single Iournals for each Month or Compleat Setts bound The Tragedies of the Last Age consider'd and examin'd by the Practice of the Ancients and by the Common sense of all Ages in a Letter to Fleetwood Shepherd Edq A Short View of Tragedy its Original Excellency and Corruption With some Reflections on Shakespear and other Practitioners for the Stage Both by Mr. Rymer Servant to their Majesties Bibliotheca Politica OR A DISCOURSE By Way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were One of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. The Second Part. Collected out of the most Approved Authors both Antient and Modern Dialogue the Seventh LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth and Sixth Dialogues 1693. Authors made use of and how denoted 1. Mr. Petut's Ancient Right of the Commons of England Asserted P. R. C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Animadversions upon Mr. Atwood's Treatise Intituled Iani Anglorum faces nova B. A. I. 5. Mr. Atwood his Confutatin of the said Doctor Intituled Ius Anglorum ab Antiquo I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE Seventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. YOU are
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
the true meaning of these Villani by another Record dated but two years after this of yours viz. 21 Hen. 3. Rex Vic. Kant Salut Sciâ—s cum octavis Sancti Hillarii c. ad mandatum nostrum convenirent apud Westm ' Archiepiscopi Episcopi Abbates Priores Comites Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro Regni nostri iidem Archiepiscopi Episcopi Abbates Priores Clerici Terras habentes quae ad Ecclesias non pertinent Comites Barones Milites Liberi Homines pro se suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum From this Record we may observe 1. That the King's Writ was only issued to the Arch-bishops Bishops c. Earls Barons of the whole Kingdom 2. That in the recital of this Tax the Sheriff is told first that the Arch-bishops Bishops c. and the Clergy which had Land not belonging to their Churches a certain sign that they granted by themselves and out of nothing else but that and then that the Earls Barons Knights and Free men for themselves and their Villains granted a thirtieth part of their moveables And from this Record it is also manifest these Liberi Homines had Villanos if not Bondmen Villagars or Rusticks Colonos or Husbandmen at least of whose Estates by publick Assent and for the publick benefit they might in part dispose of which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables did grant by their Lords that is their Lords Paramount that were Tenants in Capite did grant for them though they held it not immediately of them but of other Tenants in Military Service which immediately held of the Tenants in Capite who did charge them by publick Taxes hath been shewn from divers Records So that it was frequent in those times to say such and such concesserunt granted such a Taxe that is by those who had Power and Authority to do it for them and without their consent too when those for whom they granted were not capable of being Members of Parliament themselves I could give you more Examples of the like Nature but I will not tire you F. I pray Sir give me leave to answer this long speech and to begin with your Interpretation of this word Fideles First then we are so far agreed that the word Fideles had two or three different Significations First it signified all the Subjects in general in the next place all Vassals or Feudatary Tenants whatever whether of the King or any other Lord as appears by the Passage you have cited out of William of Malmsbury as also divers antient Charters particularly those of King William I. and Maud the Emperess and King Stephen which are divers of them directed Fidelibus suis Francis Anglâ— which cannot mean Tenants in Capite since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown Lastly I grant this word Fideles may sometimes signifie the Tenants in Capite of the King all which being so I think you cannot deny that it is not the bare word but the sense it bears in the Places where it is used that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4 th of Hen. 3. could not be the King's Tenants in Capite only I have given you a sufficient reason which you do not think fit to answer viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom as well what was held by Knights Service as what was not and how your Tenants in Capite could Tax those Lands which were never held by Knights Service I desire you would resolve me And therefore by the Fideles here mentioned in this and many other Records are not to be understood the Tenants in Capite only but all other Subjects who did Fealty who though they could not all appear in Person in our great Councils or Parliaments yet were there by their Representatives the great Freeholders Lords of Mannors or else by the Knights Citizens and Burgesses But I must now make some Remarks upon your Interpretation of â—he Writs of the 16 th and 21 th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words For in the first place as for the Clerici terras habentes non ad Ecclesias pertinentes which you interpret to have been Clerks having Mannors and Military Fees not belonging to their â—enefices but held of the King in Capite seems to be altogether forced For whoever heard of Clerks that is inferior Clergy Men Parsons or Vicars of Churches who held Benefices of the King in Capite and not in Franc Almoigne or if they had any such that therefore those Lands so held should be called Lands not belonging to their Churches for at this rate the Lands of Bishops all Abbots Priors c. which held of the King in Capite would have been in your sense Lands not belonging to the Church but who but you and your Doctor ever gave such an unreasonable Comment on those words Nor will that Passage you cite out of Mat. Paris at all favour your Interpretation for either these Bishops and Prelates there mentioned gave this sortieth part of their Moveables in Parliament with the rest of the Kingdom or else as Clergy men in Convocation If the former then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove that at this time any Ecclesiastical Person below the degree of an Abbot or Prior had any place in Parliament by reason of his Tenure by Knights Service in Capite for those Lands he held in Right of his Church but if you 'll have this Tax to be granted by the whole Clergy in Convocation then such Clerks as you mention could not be there in Person First because they are said to be such as had Lands quâ—e ad Ecclesias suas non pertinent and so could not have any place there as Clergy-men nor could they be included under the Praelati since that word takes in none beneath the degree of a Dean And therefore if these Clerks gave any thing in Parliament they must do it by their lawful Representatives the Knights of Shires or if in Convocation by their Clerks of the lower House then called Procuratores Cleri So that take it which way you will those Clerks could not be present themselves at these Parliaments when those Taxes of the 30th and 40th part of their Moveables were given to the King and therefore either as Lay-men or Clergy-men must be Taxed by their Representatives but in deed the words Proceree Regni which immediately come after Episcopi Pralati in
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
to the like Exactions of his Son Hâ—n the Third which are branded by all Writers as horrible and illegal oppressionâ— nay are owned to be so by this Kings frequent Confirmations of Magna Charta and Acknowledgments of his breach of them and promised to observe them better for the future But I am sorry to find your Doctor whom you follow both in his Answers to Mr. P. and Mr. A. as also in his compleat History still to cite the most violent and illegal Actions nay the very perjuries for â—lowers of the Crown and Royal Prerogatives But as for the Authorities you urge for this Kings Talliating his Demesnes without consent of Parliament you your self grant that this Talliage was not general upon the whole Kingdom and if so could only concern his own Tenants in ancient Demesn and none else who were always exempted from being taxed with the rest of the Nation because they were lyable to yield the King a reasonable Talliage ratione Tenurae whensoever he needed it yet this was counted rather a priviledge than otherwise since they were not only free from all other burthens and Parliamentary attendance but were also Taxed much less than the rest of the Nation in regard of their Tilling the Kings Lands but when this reasonable Prerogative grew to be abused and the Exactions levyed upon them became intollerable then they would no longer suffer it but got it taken away by the Statute de Tallagio non concedendo after which we find the Tenants in ancient Demesne frequently giving their shares of Aides and Subsidies in Parliament by Delegates of their own as in the Record of the 35 th of Edward the First which you have now cited till at last they came to be resolved into the common body of the Kingdom but aâ— for the City of London it was never taken for part of the Kings Demeans and so is not to be found in Dooms day Book but as appears by Record held of the King in Capite and therefore could be no otherwise Taxed then as the rest of the Tenants in Capite that is by the Common Council of the Kingdom And this made the Londoners deny to be otherwise Talliated as appears by this Record of Henry the Third which you have now cited But the truth is they had this Exaction first laid upon them in the exorbitant Reign of King Iohn and this was afterwards trumped again upon them in all the ill part of his Sons Government because his Father had done it before and I doubt not but if Ship-mony had passed unquestioned and been as often paid in the Reign of K. Charles the First but that it would have been urged as a Precedent in the Reign of Charles the Second But as for your last Authority of the 33 d. of Edward the First pray take notice that it is before the Statute de Tallagio non concedendo and extends only to such Estates in ancient Demesn as were held of the King by Noblemen or Gentlemen either by Gift or Purchase and which for all that still kept the ancient custom of being Talliated by the King as their under Tenants were by them to enable the Lords to pay the Kings Talliage and in this sense I understand these words in this Record unde sunt in Tenantia i. e. of which they are in Tenancy to the King Nor does the Record call them Dominica sua as it does the Kings Demesns that follow so that this could not be a Tax upon all under Tenants by Knights Service as you suppose sinâ—e their Estates were never called Antiqua Dominica and therefore I think after all you cannot shew me any legal Precedent that our Kings claimed a Right under colour of their Prerogative of Taxing the whole Nation de Alto â—â—sso at their pleasure M. I shall not now dispute it longer with you whether the Kings of England had not anciently a power of Taxing the Lands held of them without the consent of their Great Council but thus much I think I may safely aver that when this Great Charter was made the Tenants in Capite as the Common Council of the Kingdom gave Taxes and made Laws not only for themselves but their Mesne Tenants and the whole Nation also Nor was this at all unreasonable that those who thus held Estates by Mesne Tenure under the Tenants in Capite should be bound by the Acts of those of whom they held them since we see in Scotland that at this day none sit there either as Commissioners of Shires or Burgesses for the Royal Buroughs but such as hold in Capite of the King for anciently before the Law for excusing the smaller Barons and free Tenants in Capite and sending Commissioners of Shires in their stead was introduced by a Statuâ—e made in the Seventh Parliament of K. Iam. 1. A. Dom. 1420 it consisted all of Tenants in Capite viz. of the Bishops Abbots Priors Earls Barons Libere Tenentibus qui de Râ—ge tâ—nent in Capite as appears by the very words in the Latine Titles to divers of those Statutes as you may find them in Slenes Collection of Scotch Laws Now if this Law did anciently and does still prevail in Scotland that the Tenants in Capite should be the sole Representatives of that whole Kingdom I cannot see any Reason why it might not have been so anciently in Englâ—nd also especially since I can give you so good Reasons to back this opinion M. I will answer your Argument from Scotland by and by but in the mean time give me leave to tell you why I think it could never have been the custom in England and that for two Reasons first because it was against Reason and 2 ly because it was against the known Law of the Kingdom that it was against Reason is apparent since what reason was there that if a Man in those times purchased an Estate for a valuable consideration of a Lord or any other Tenant in Capite as certainly thousands did to be held either by Knights Service or in Socage that such a Tenant should lye at the Mercy of his Lord to dispose of his Estate in Taxes and make Laws for him at his pleasure however exorbitant those Taxes were or inconvenient those Laws might prove the Lord being no Representative of his own choice or appointment In the next place that this was contrary to the received Law and Custom of the Kingdom in those times I can prove by two very sufficient Authorities the one of the Earl of Chester the other of the Bishop of Durham Now it is certain that both this Earl and Bishop helâ— their County Palatines in Capite immediately of the King nor had those Counties any Representatives in Parliament till long after that they had Knights of Shires and Burgesses granted them by particular Statutes made for that purpose now according to your Hypothesis all the Freeholders and Inhabitants of those County-Palatines should have been bound by all Acts
to this Parliament I conceive it was not out of any jealousie or suspition in Simon Monfort of those who were then his fast Friends but out of pure carelesness or omission of the Clerks who I suppose through hast inadvertency or multiplicity of business omitted to enter the names of all the rest of the Earls Bishops and Barons to whom Writs of Summons were likewise sent and that I do not speak without Book I appeal to the Record it self where there is a blank space left unfill'd of about four Inches breadth which could be left for no other end than to add the names of all the rest of the Earls and Barons who were certainly Summoned to that Parliament as well as those whose names are there expressed M. I shall not longer dispute this point but I think you must grant that the Commons are never mentioned in any Record or Statute of this King for after his Victory at Evesham he called a Parliament at Winchester whereto we do not find any Commons Summoned as before but the King by the advice of his Magnates alone Seised the Liberties of the City of London and also they gave Him all the Lands of the late Rebels And then there was after this a Parliament Summoned at Kenelworth in the 50 th of this King where it was agreed by the common assent of the Bishops Abbots Priors Earls Barons and all others that six Persons who were all except one either Bishops or Barons should chuse six others and the whole twelve were to judge concerning those who were disinherited for their late Rebellion and their Determination or Award is call'd Dictum de Kenelworth and was made to better the condition of the disinherited and to turn the Forfeitures and Loss of their Estates into a Composition for them after the value of five years Purchase to be paid at two or three short payments yet we do not find that to this Parliament the Commons were at all Summoned but to the contrary for though it is true that the Statute gives us all their Names Yet the Doctor further proves to you from Sir William Dugdale's Baronage that there was not one of them but what was either a Bishop or a great Baron of the Kingdom whereas had there been any Commons in this Parliament they would certainly have had Commissioners of their own order as well as the Bishops and Lords F. I shall give you a short answer to your Authorities from the Parliaments of Winchester and Kenelworth as for the former you must own that all the Rolls of it are lost and that there is no more left of it on Record than that Writ or Commission which the Doctor has given us which recites that by the unanimous consent of all the Magnatum or great Men as the Doctor renders it the King had the seisin and possession of all the Rebels Estates given to him which is no argument to prove that no Commons were there since I have so often made out that under this wordâ— Magnatum not only the Knights of Shires but Citizens and Burgesses were often comprehended 'T is true there are no Writs extant to prove the Commons were now Summoned neither is there any reason to believe the contrary since if it were a cunning invention of Montfort to Summon the Knights Citizens and Burgesses to abate the power of the Tenants in Capite it was sure as good policy for this King to continue so politick an Institution which would for the future serve for so good a ballance not only against his Tenants in Capite but his great Lords also as for the Parliament at Kenelworth I shall admit all the matter of Fact to be true as you have related it from Mat. Westminster who says that the Twelve Commissioners appointed to draw up the Statute of Kenelworth were chosen de Potentioribus Procerum Prudentioribus Praelatorum and also that the French Record cited by the Doctor together with Sir William Dugdale's Comment upon it make it out plain enough that the Lay Commissioners who were chosen by all the parties there named to make this Statute were all great Earls and Barons though in the Record it self only stil'd Knights Well what follows from all this that the Commons could have no hand in this choice because the tous Autres or omnes Alii mentioned in this and other Records must needs always signifie the smaller sort of Tenants in Capite and I say it signifies the Commons as now taken whether you have made good your Interpretation by any cogent proofs I must leave to your own ingenuity for to tell you the truth I think your Doctor has led you astray in this point and till you can make it out better than you have done I must beg your pardon if I keep my old opinion and if your Argument be good that no Commoners were there because none of them were chosen Commissioners then by the same Argument none of the small Tenants in Capite were there neither because none under the degree of an Earl or Baron were Elected As for the want of Writs of Summons to these Parliaments if that were to be the rule that makes as much against the rest of the Tenants in Capite who were no Barons nay the very Bishops and Abbots and Lords since there is no Writs of Summons found for their appearance at either of these Parliaments and so the King might call whom he pleased M. In the first place it does not follow that because Montfort had Summoned some of the Tenants in Capite to appear for all the rest and that he also called some Citizens and Burgesses to this Parliament of the 49 th yet the King might have very good reasons though we cannot now positively tell what they were nor to follow this new Invention of Monforts however it might then serve the turn for perhaps the King did not like it because introduced by a Rebel And he had also by his Victory at Evesham so quelled the power of the great Lords and Tenants in Capite that I believe he was afterwards able to call or omit whom of them he pleased according to the Testimony of Mr. Cambden's Nameless Manuscript Author cited in his Brittania that after the horrid troubles and confusions of the Barons Wars only those Earls and Barons Quibus Rex dignatus est brevia Summonitionis dirigere venirent ad Parliamentum suum non Alii And that this was true in matter of Fact I shall prove from the next Statute of Hen. 3. which is extant viz. that of Maâ—lâ—bridge made in the 52 d. year of this King to which there were no more Summoned than some of the more Discrâ—â—t of the Greater and Lessâ—r Barons as appears by these words in the Preface to that Statute Convocatis Discretioribus ejusdem Regni tam Majoribus quam Minoribus Brovisum est Statutum ac concordatum c. which seems to have been done by the King
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
make use of into these three Heads First I shall give you divers Quotations out of the most Ancient Writers who lived in or nearest the time you prefix viz. the coming in of the Norman William and shall descend down in order of time as low as your Drs. 18th of Edward I. 2. I shall shew you from the Authorities and Testimonies of the Judges of almost all our Courts of the House of Commons nay of several whole Parliaments and the King himself that the Commons had an undoubted Right of Sâ—tting there by Prescription 3. From the Consent of all our Neighbouring Kingdoms who being governed by a King and a great Council or Assembly of the Estates according to the Gothick Model the Commons had always from the Institution of the Government their Representatives in those Assemblies M. I much doubt that but pray begin with your Ancient Historians for as for my own part I must freely tell you though I have looked them over very warily yet I can find nothing in them concerning the particular constituent parts or Members of our great or Common Councils but the Magnates Optimates or Principes Comites and Barones all which tho' you have at our last meeting shewed me from some Authorities that they may take in others tho' not Nobâ—â— by Birth yet since these words have been most commonly taken in another sense it needs some better proof than to say in general that meer Commoners were there because those general words may sometimes be taken in that sense and as for the words Clerus and Populus which I confess are often mentioned to be present at those Assemblies the Learned Dr. in several places of his Answer to Mr. P. as also in his Glossary hath plainly proved that as the word Clerus sometimes signifies the Bishops and sometimes the Inferiour Clergy so Populus does also neither great nor little People but only the Layety and therefore as it is used and restrained signifies the Lay Plebs or the Lay Magnates What I mean by Plebs I shall shew you by and by but that the word Populus does not signifie the Inferiour sort of people or such as were inferiour to Barons Tenants in Capite or Noble-men the Dr. has very well proved from that passage made use of by Mr. P. to prove the Commons to have been in that great Council which made Henry the first King because it is said by Mat. Paris that Congregato Clero Populo universo c. by which word Populus he would understand the Commons alone distinct from the great Lords But the Dr. very plainly shewâ— him the falseness of this Interpretation from the same Author within three lines of the place himself had cited where the same Body of Men which is but just before called Populus is presently after called Magnates ad haec Clero respondente Magnatibus cunctis not one word in this place of any Populus but the great or Noble-men that is the Tenants in Capite must be the People or Lay-men here mentioned and this same Clerus and Populus is by Eadmerus speaking of a great Council held at Westminster in the second Year of this King called Primates Regni uâ—riusque Ordinis or as Florence of Worcester words it the Orders of Men assembled in this very Council Omnes Principes Regni sui Ecclesiastici Secularis Ordinis the which the Dr. also proves from several like passages in Eadmerus in all which as also in all other Authors the Dr. hath there cited This Populus is explained to be the Earls Barons and great Men of the Kingdom only that is all the greater as well as smaller Tenants in Capite And tho' I confess at our last Meeting you brought very good proof that the word Populus was more comprehensive among the Romans yet tho' the Roman Populus comprehended all the People as well Nobility as Plebeians and that in Scotland it took in the Burgesses of the Royal Burroughs which hold immediately of the King yet does it not follow that this word must needs signifie so in this Kingdom too since in all Countreys not all the People but only the Governing part of it is used for the Populus in all Histories Publick Acts and Laws of those Kingdoms thus in Denmark formerly and still in Poland the Populus consisted solely of the great Councils of the Nobility and Senate in which there were no Plebeians at all F. I hoped we had done wrangling about this word Populus but since I see you are not yet satisfied I shall shew you more plainly that by this word used in our Ancient English Historians is not only meant the great Lords and Tenants in Capite but another larger and more comprehensive Body and whereas you say that the word Populus is still restrained by our Ancient Historians to the Magnates Primates Principes Regni all which words do in their genuine signification signifie Great or Noble-men and that tho' they are sometimes taken in a different acceptation yet that it lies upon me to prove that they are to be taken in my sense to this I must tell you that the proving part ought to lie wholly of your side for since the Commons of England have been for above these Four hundred years constituent Members of our Parliament as is agreed on all hands and that they also claim to be so by right of Prescription it lies still upon your door to prove the contrary and to shew at what time and upon what occasion they were first introduced which if you have not been able hitherto to perform so as to give me any tolerable satisfaction you cannot blame me if I still keep my own Opinion and believe them as Ancient as Kingly Government it self in this our Island But since I grant these words Clerus and Populus are of a general and equivocal signification their true sense and meaning is best to be understood from the subject matter that is treated of as I shall shew you first from the nature and signification of the words Clerus and Populus according to the Ancient Constitution of our Government that they must signifie many more than your Tenants in Capite alone and then I shall confirm my Interpretation by the Authority of such Ancient Historians as lived either in or very near the Times I mention And therefore I shall first prove it from the great Analogy there was between the Clerus and the Populus so that if the Clerus took in more than your Tenants in Capite in our Common Councils by the same reason the Populus must do so too Now that this word Clerus when used by it self does not originally signifie either the Bishops and Abbots alone or the Inferiour Clergy alone as your Dr. asserts is evident because Clerus is a general word and comprehends all the Clergy of whatsoever sort or degree Now that all the Clergy as well the Superiour as
translates the Clergy and Commons together with the Nobility being summoned And in 1 of Richard I. R. Hoveden also tells us of a great Council held at Pipewel Abby in Northamptonshire where the Archbishop of Canterbury produced a Charter of King William I. Coram Rege Vniversis Episcopis Clero Populo And an ancient Charter of primo of King Iohn now in the Archbishop of Canterbury's Library entituled Charta Moderationis seod magni sigilli recites the said King to have been Crowned Mediante tam Cleri quam Populi unanimi consensu savore and tho the rest of his Reign was Turbulent yet the Author of the Manuscript Eulogium quoted by Mr. Selden in his Titles of Honour mentions a great Council at London in the 16 th Year of King Iohn where the Archbishop of Canterbury was present Cum toto Clero tota secta Laicali i. e. says Dr. Heylin in the same place The Clergy of both Ranks and Orders with all the Laity called here Secta Laicalis and the Lords and Commons had then their places in Parliament and the Dr. proceeds thus and in possession of this Right the Clergy stood when Magna Charta was set forth by King Henry the 3 d. Wherein the Freedom Rights and Priviledges of the Church of England of which this evidently was one was Confirmed to them i. e. the whole Clergy in general I have here shewed you what Dr. Heylins sense was to let you see that a Person of great Learning and a high Churchman thought it no Heresie to be of our Opinion and to maintain as he does all along in that Chapter that the Inferior Clergy and the Commons were a Constituent Part of the Common Council or Parliament long before the 49 th of Henry 3 d and that the Inferior Clergy continued to be so till the Reign of Henry the 4 th at least But that their Consents was also anciently asked in the making of Laws we need go no farther than the Authority I have now given you from the Continuation of Florence of Worcester And farther that they were once a part of this great Council or Parliament besides the Testimony of the Modus tenendi Parliamentum who tho he be exploded as an ancient Author yet certainly is a good Witness for his own time viz. that of Edward the third where the Procuratores Cleri are reckoned among the Constituent Members or States of Parliament which is also confirmed by the two first Writs of Summons we have left us on the Rolls viz. the 23 d of Edward I. where in this Clause of Praemunâ—entes Clerum is particularly exprest which pray read from your Drs. Answer to Mr. P. Praemunientes Priorem Capitulum Ecclesiae vestrae Archidiaconos totumque Clerum vestrae Diocaesis facientes quod iidem Prior Archidiac in propriis Personis suis dictum Capitulum per duos Procuratores idoneos plenam sufficientem potestatem ab ipsis Capitulis Clero habentes una vobiscum intersint modis omnibus tunc ibidem ad tractandum ordinandum faciendum nobiscum cum coeteris Praelatis Proceribus aliis Incolis Regni nostri qualiter sit hujusae modi periculis obviandum viz. The dangers in the Writ mentioned to be threatned from France and that this was not the first time this Clause of Praemunientes was inserted in the Writs of Summons to Bishops might be easily proved had we all the Writs of Summons before the 23 d of Edward I. as well as since But we may hence observe that the Inferior Clergy are not onely summoned to treat with the Prelates but are as well as they here authorised to Treat Ordain and Act with them and the Lords and Knights Citizens and Burgesses for so your Dr. himself here in the Margin translates Aliis Incolis Regni and how they could thus Consult and Act with them if they had not beeâ— then as well as the Prelates a part of the same Body of the great Council or Parliament of the Kingdom I confess surpasses my Capacity to understand nor is this Clause found in this Writ alone but is also in most other Writs of the Bishops Summons to Parliament as low as our own times and that these Writs were not to Convocation but Parliament appears in Pryns Parliament Register plainly by the Letters of Procuration made by the Prior and Chapter of Bath to William Swynham and Iohn de Merston appointing them to appear and Act for them as their Lawful Procurators in the Parliament summoned Ann. Dom. 1299. being the 27 th of Edward I. which is of a different form from another Letter of Procuration of the same Prior and Chapter Ann. Dom. 1295. 231. Edward I. to their Procurators therein named to act for them in the Convocation then summoned at Westminster the same difference is also observed in all the Writs of Summons to Convocation different from those whereby the same Persons are summoned to Parliament the former being directed onely to the two Archbishops or their Vicar Generals to Summon all the Bishops Abbots Priors and Clergy of their respective Provinces without any particular Writs issued to any other Bishops Abbots Priors or Clergy-men as in Summons to great Councils or Parliaments wherein there are commonly particular Orders to the Bishop to warn all the Inferior Clergy in the manner but now mentioned as Mr. Pryn very well observes in his first part of his said Parliamentary Register where you may see there is a Writ of Summons to Parliament of the 31 st Edward 3 d to the Archbishop of Canterbury reciting that he intended a Parliament for divers arduous and urgent Businesses concerning Himself and Crown and the necessary Defence of the Kingdom and Church of England And then proceeds thus Et quia Negotia praedicta perquam Ardua sine Maxima deliberatione tam Praelatorum Cleri quam Magnatum Communitatis ejusdem Regni c. and therefore it behoved him to Summon the said Clergy Great Men and Commons and then requires him to summon all the Bishops Abbots and Deans and Priors and Arch-deacons to appear personally and the rest of the Clergy by two Procurators with full Power ad tractandum consulendum super praemissis una vobiscum ad consentiendum Illis quae tunc ibidem super dictis negotiis divina savente Clementia contigerit ordinari M. But what can you say to their being omitted to be summoâ—ed in divers Writs to Parliament as appears in Pryns Register you now cited and from whence himself has there made this Observation That there is no Clause of Praemunientes c. in any Writs of Summons to Councils of State but onely to Parliaments and that not always but at the Kings Pleasure Which shews plainly that tho they were sometimes summoned as a part yet were certainly no Essential Constituent part of this general Council since they were omitted in so many of them
that that Dr. has with so much artifice put upon them still using them like Charms to bewitch and impose upon his unwary Readers especially since a right Notion of these words is absolutely necessary for the right understanding the true sense and meaning of our Ancient English Historian 〈…〉 after all this pother the Dr. makes about the signification of those words Populus Plebs Vulgus as synonimous as he grants them to be they must all signifie the whole Body of the People as well the Commons as the Lords represented in Parliament by his own confession or else I leave it to your self to consider who of the two is guilty of levelling Notions your Dr. or Mr. P. since one does but allert with the general consent of Ancient and Modern Writers that the words Barones and Baronagium Angliae did anciently take in more than the Lords and Tenants in Capite And the Dr. straight calls him a man of Levelling Principles and that jambles the Commons together with the Lords whereas your Dr. can when he pleases make the words Plebs and Vulgus to to signifie the great Lords and Tenants in Capite contrary to the subject matter on which he discourses and to their Genuine signification either in Ancient or Modern Latine M. I must consess you have now told me more than I ever yet heard or read of or indeed thought could have been urged for the Inferior Clergies having been once a part of the Civil as well as Ecclesiastical Council of the Kingdom and I will consider farther of it But in the mean time let me tell you you have not been yet so clear in your Explanation of the other opposite word Populus for admitting I should grant you that there were in some sort Commons in Parliament as represented by the lesser Tenants in Capite who were not Lords yet does it not therefore follow that there must have been another rank or order of Persons beneath or different from them since as I said it is but how 't is only the Custom and Law of each Countrey that can determine what is the Community or Representative Body of the People so that there is no such certain Analogy between the Clerus when taken for the Inferior Clergy and the Populus when taken for the lesser Nobility or Tenants in Capite Since in Scotland tho' their great Council or Parliament might consist of the Abbots and Inferior Clergy as with us who did not hold in Capite yet you cannot deny but that the Temporal Estate or Layety at least of late Ages wholly consisted of the Earls Barons Lairds or smaller Barons together with the Burgesses of Royal Boroughts all which held in Capite and for ought as I can see from any clear Proofs you have brought to the contrary did so from Times beyond all memory and so it might have been in England too for ought as I know for tho' you have taken a great deal of pains to Answer the Dr's and my Arguments against the Tenants in Capite being the Representatives of the whole Kingdom in Parliament before the 49th of Henry the Third and 18th of Edward the First and also to prove that the words made use of in our ancient Historians Records and Acts of Parliament are of a more comprehensive signification than to be confined to them alone But you have not as yet proved that these Gentlemen who you suppose to have had Places in our great Councils besides the Tenants in Capite were Knights Citizens and Burgesses or whether all the Lords of Mannours or great Freeholders in England appeared there in person for themselves and their under Tenants therefore I pray be a little more clear in this point and shew me some Authorities that the Knights of Shires Citizens and Burgesses have been always constituent Members of Parliament ever since the Conquest for methinks you waver in this Matter and sometimes you seem to assert the former and sometimes the latter F. I confess it is not my humour to be positive in any thing that is in the least doubtful or obscure and therefore as I will not maintain that Knights of Shires always a constituent part of Parliament before your Conquest or presently were after tho' it is positively asserted by the Author of the Modus tenendi Parliamentum since the Antiquity of that Piece is justly questioned by Mr. Selden and other Modern Antiquaries so on the other side I shall not assert that they were not there at all but this much I think I am able to prove that they were Summoned to Parliament long before the 49th of Henry the Third or 18th of Edward the First But as for the Cities and Boroughs that they had their Representatives in Parliament at or presently after your Conquest I think I can prove from as undeniable Testimonies as can be expected Since all the most ancient Rolls and Records of great Councils and Parliaments are long since lost and destroyed Yet to shew you that we have some very ancient Authors that seem to mention not only the Citizens and Burgesses but Knights of Shires to have been summoned before the times you insist upon and if it prove so whether they were there from the very Time of the Conquest is not material since if I confute your and your Dr's Opinion of the 49th of Henry the Third and 18th of Edward the First I carry the Cause and you may then invent if you can some other Epocha whereon to fix their first appearing at our great Councils I shall therefore give you another Quotation out of the same old Monk Sulcardus which immediately follows the conclusion of the Charter of K. William the First to the Abby of Westminster but now cited and it has been made use of not only by Mr. P. in his Ancient Rights of the Commons c. but by Sir William Dugdale himself in his Origines Iuridiciales as also by the Author of Argumentum Aâ—tinormaunicum to prove the Commons to have been summoned to a great Council in the 9th Year of K. William the First Anno Dom. 1075. the words as cited in Sir William Dugdale are these That after the King had Subscribed his Name to this Charter with the Sign of the Cross adding many of the Bishops Abbots and Temporal Nobility instead of Cum multis aliis hath these words Multis praeterea illustrissimis virorum personis Regni Principibus diversi Ordinis omissis qui huic Confirmationi piisimo affectu testes â—autores fuerunt Hii autem illo tempore à Regia potestate diversis Provinciis urbibus ad universalem Synodum pro causis cujuslibet Christiane Ecclesâ—e audiendis tractandis ad praescriptum celeberriumum Coenobium quod Westmonasterium dicitur Convoceti Now I shall only observe from this Author that Mr. Selden in his Titles of Honour and Sir Henry Spelman in his Glossary do render Provincia for a County or Shire M. I pray give me leave
England at this day M. I shall not farther dispute this matter at this time therefore pray go on to the rest of your Authorities out of our English Historians proving that any Knights Citizens and Burgesses appeared in Parliament before the times we allow them to have been there F. Tho I think I have sufficiently at our last Meeting from the Charters of King Iohn and Henry the 3 d as also from the Words Communitas and le Commune that the Common Council of the Kingdom consisted of many more Members than your Tenants in Capite yet to let you see that the Historians and Armalists of those times did comprehend all the several Orders under the general Titles of Clerus and Populus or Magnates and Proceres you may see in the Chron. of Thom. Wikes A. D. 1237. Where it is only said in general that the Clerus and Populus Regni did in that Year being the 9 th of Henry the 3 d grant the King a 30 th of all their Moveables for the Confirmation of Magna Charta and which is more remarkable the Parliament which was held in 1264. being 49 th of this King is onely thus mentioned by this Author in an historical way transacto siquidem viceâ—mo die Nâ—tivitatis Dominicae sacta est London pes Comitem seil Leyeestriae Convocatio non minima Procerum Anglicorum c. Where in the Annals of Waverly in this Year it is onely said Factum est Parliamentum magnum Londonia c. Now pray observe that either the Commons are mentioned by Wikes under the Name of Proceres or not at all and that under the Word Parliamentum the Commons were then comprehended appears by the Agreement between the King and the Barons there extant which is said to be made De unanimi assensu voluntate nostra sâ—ili Regis Edwardi Filii nostri Praeletorum Vomitum Baronum Communitatis dicti Regni nostri now it must be granted since it appears by the Writs of Summons of 49 H. 3. that the Commons were there and consequently must be comprehended under this Phrase of Communitatis Regni and if this had been the first time they had been summoned 't is strange none of these Authors should take any notice of so remarkable an Alteration and change of the Constituent parts of our English Parliaments But that the Knights Citizens and Bâ—rgesses were also summoned in the next year in a Parliament of the 50 th of this King you may see in the said Wikes Chronicle Ann. Dom. 1265. where He sets down all the Constituent Estates of Parliament which were summoned to meet at Westminster at the Translation of St. Edwards Reliques in these Words Convocatis universis Angliae Praelatis Magnatibus nec non cunctarum Regni sui Civitatum paritir Burgorum potentioribus ut Translationis Solemnia Celebrius illustrarent wherethe Knights of Shires are comprehended under Magnates and the Citizens and Burgesses are here stiled Potentiores Civitatum Burgorum And that this was not only for a meer Ceremony but for Parliament Business also see the next page where he tells us Celebratae tundem tuntae translationis solemnitate â—â—perunt Nobiles i. e. all the Estates above mentioned ut assolent Parliamentationis genere de Regis Regni negotiis pertracture c. And in which Parliament the King so far prevailed as to obtain a 20 th part of all Moveable Goods of the Laity And yet the Continuator of Mat. Paris in the Affairs of this year takes no notice of this Parliament but only says in General that St. Edwards Body was this Year translated into its new Shrine And the Annals of Waverly Printed in the same Volume under this Year make mention of this Parliament in general terms thus Facta Convocatione Episcoporum Comitum Baronum Abbatum Priorum multerum aliorum So uncertain a thing it is wholly to depend upon the general Expressions of Monkish Writers without comparing them and the Records together and considering the Subject matter about which they treat nor can we suppose that the Constituent parts of our Parliaments were shope and changed as often as they did their Phrases and ways of expressing the parts of them For they not foreseeing the differences that might arise about these matters had no Reason particularly to recite the Constituent Members or Estates of Parliament as often as they had occasion to mention them it being very well known who they were at that time But to prove further that it was not likely there was any Alteration in the Constituent parts of the Parliament from what it was in the 49 th may appear by his Writ still extant among the Parent Rolls of the 54 th of this King where it is expresly recited that it not seeming safe to the Praelatis Magnatibus Communicati Regni nostri that both Himself and his Son Prince Edward should be both out of the Kingdom at once in the Holy Land and that therefore he gives the whole Subsidy of a 20 th granted him by the whole Kingdom to his said Son and that it continued so in the beginning of Edward the firsts Reign appears by a Protestation in the 4 th of this King as it is found in the Patent Rolls wherein he recites a 15 th to have been granted him of all Moveables by the Comites Barones ac alii Magnates Communitas Regni nostri So that unless the Sense of these Words Communitas Regni must alter every Year there is no Reason for us to believe any change to have been in the Constituent parts of Parliament since the 49 th of Henry the 3 d. this I think may be sufficient to shew you that before the time you mention nor only the Knights of Shires but the Citizens and Burgesses did appear in Parliament both before your 49 th of Henry 3 d and 18 th of Edward I. M. I believe the Commons might be comprehended under the general Words Magnates Proceres by Wikes's Chronicle in the 49 th of Henry the 3 d or else not be mentioned at all which I rather incline to believe and I must also confess that the other Passage out of the same Author concerning the Citizens and Burgesses being summoned either to a great Council or Parliament in the Reign of Henry the 3 d is more than I before ever took notice of Yet since this Author does not tell us whether it was to the one or the other nor how many of them were there whether one onely or more for each City and Burrough Town or whether they were elected by the People or nominated by the King to appear there does not appear from this Author but as for the Words Communitas Regni mentioned in the Agreement of the 49 th of Henry 3 d tho it might signifie the Body of the Commons in that Record yet if they were not again summoned to Parliament till the 18 th of Edward the
in the time of King Edward I. and his Progenitors had sent two Burgesses to every Parliament or that the King and his Council should have ever received this Petition without indignation and a severe rebuke for their Impudence If all the World theâ— knew as certainly they must were it true that there was never any Election of Burgesses to Parliament before the 49th of Henry III. which was but fifty years before the 8th of Ed. II. who from thence had appeared no more till the 18th of Ed. I. which was but 24 years before the delivery of this Petition a time which must have been then fresh in the memories of most of the Kings Council there present Whereas they allow this general Claim of Prescription and every person tho' but meanly skill'd in our Law does understand a general Prescription viz. Ã tempore cujus contrarium memoria hominum non existit what it was then and so remains by the Law of England at this day as appears by our Ancient Records Law-books and Judicial Proceedings And surely the Burgesses of St. Albans did not ground their Petition of Right upon an Affirmation in Nubibus but the Justice certainty of their Claim as they very well knew which so they prayed it might be examined by uncontroulable proofs The Rolls of Chancery and the King Chancellor and all the Council did no less know there were such Entries on the Rolls and therefore order their search whereas if the very ground of their Petition had been notoriously false and idle as it must have been if neither this nor any other Burrough had sent Burgesses to Parliament before the 49th of Henry III. then instead of recording this Petition and Answer to future Ages they would with contempt and indignation have rejected it nor would the Abbot of St. Alban's Council and the Sheriff of Hertford against whom this Petition was exhibited have been wanting in their own defence to have shewed that this Ancient Prescription not only of this but of all other Burroughs was a meer Chimera and Fable But instead of this we do not find they made any opposition against it because they knew they had been summoned and appeared at divers Parliaments before that time as you may see in Prins Parliamentary Register they were in the 28th of Edward I. which is almost as early as we have any Writs of Summons left us to the Commons of this King's Reign And tho' it is true the Sheriff of Hertford in this 28th returns that the Bailiffs had made no Return of the Precept sent them yet this plainly proves that they were then looke upon as a Burrough and that it was very well known that it was wont to send Burgesses to Parliament or else it had been a vain thing for him to have sent them any such Precept at all And tho' it is also true there are no more Returns from St. Albans left us till the 35th of Edward the First yet that is no good Argument against their Appearance in the former years since the Writs and Returns upon them being in loose bits of Parchment might very well be lost as well as they are for many other places But that the Burgesses of St. Albans were summoned and appeared in Parliament in the 35th of Edw. I. appears tho' the Returns be lost by the Writs of Expences of this year being the first we have left us in Prin's Parliamentary Register for the Cities and Burroughs in which Lift the Burgesses of St. Albans are first upon the Roll and that they were in Parliament before this time may further appear by that Clause at the end of the Writ which I have already taken notice of viz. That they were to have their Experces for coming staying and returning prout in casu consimili fieri consuevit which words relate to Ancient Custom and extend to St. Albans as well as no any other Burrough there mentioned And that they also were summoned appeared in primo jecundo of Edward the Second in whose Reign this Petition was exhibited you may see in Prin's Parliamentary Registers both third and fourth parts in the last of which you may find the Names of the Burgesses returned in the first and fifth of this King as they might have been seen also in the second Had not the Return as Mr. Prin then acknowledges been torn off tho' it is plain that they appeared there and so may be likewise lost for all the rest of the years of this King till the Second of Edward the Third when we find they appeared again and so continue to send Burgesses to this day And if it be a good Argument of their Non appearance from the defect of Records I 'll undertake to prove that London and several other Cities did not send any Citizens to Parliament in several Kings Reigns as you may see in this List of Towne whose Writs of Expences we now mentioned of the â—5th of King Edward the Firstâ— where London and most other great Cities are omitted and yet St. Albans is in To conclude it is certain that this was no new Claim of this Burrough as appears by a Writ of the 5th of Edward the Second to the Sheriff of Hertford that the Bailiffs of the Abbot had refused to Levy the Expences for Ralph and Peter Picot who had served as Burgesses for the said Town in the last Parliament whereupon the said Ralph and Peter set forth before the King that the said Town used not to be Taxed with other Burroughs of the said County for the Expenses of Knights totis temporibus retroactis but that it is a Free Burrough and used to be summoned to Parliaments which have been summoned by the King and his Progenitors temporibus retroactis and that the Burgesses of the said Town used to receive their Expences as the Burgesses of other Burroughs of the Kingdom to which Plea and Petition of the said Burgesses when the King had appointed a day both to the said Burgesses and Bailiffs of the Abbot to appear before him in Chancery they failing at the day appointed the King therefore Issued out this Writ to the Sheriff of Hertford to summon the said Abbot and Bailiffs to appear again before him to shew cause why the said Ralph and Peter should not receive their Expences as aforesaid M. I will consider further of this Argument for I must ingeniously confess I never heard or understood so much of this matter before But pray proceed to the rest of your Authorities F. But that it was not only the Opinion of the Burroughs of St. Albans and admitted by the King and his Council but that also that it was the belief of succeeding Parliaments that the Commons were part of the great Council of the Kingdom long before the 49th of Henry III. for proof of which I desire you to call to mind that King Iohn in the 14th of his Reign made himself and Crown tributary
Parliament M. These Authorities tho' material yet do not in my Opinion reach the point you were to prove viz. That the Knights Citizens and Burgesses appeared in Parliament before the Reign of Richard I. for both these Authorities tho' admitted for good yet reach no higher than King Iohn's time which is within memory as your self have now set forth since the word Progenitors need not be extended any further than the time of that King who was great Grand-father to Edward the First and Second to whom these Petitions were made by these Towns-men and so do not clearly amount to your full time of prescription viz. before the Reign of Richard I. F. Well pray remember that if you grant this you have lost your Cause since certainly the Reign of King Iohn is long before the 49th of Henry III. but since you will be so over-critical I will shew you some Claims by prescription beyond all time of memory made by the Tenants in Ancient Demesne from being Taxed to contribute to the wages of Knights of Shires and if they thus prescribed it is plain there must have been Knights of Shires chosen against paying whose wages they prescribed to have had this priviledge Now this prescription must be very Ancient since as Mr. Lambard shews us in the place I have quoted there has been no new Tenants made in Ancient Demesne since the time of William I. But pray see the Writ it self in the Old Register of Writs which is there put down only as a Form for drawing of all other Writs of this kind there to be found for other Towns and particularly the Tenants of Odiham in Hampshire whenever there was occasion and therefore it is not to be wonder'd that neither the Name of the King nor of the place be expressed in words at length The Writ it self is not very long therefore I shall give it you in Latine as far as is material Rex Vicecomiti L. salutem monstraverunt nobis homines Tenenteâ— de Manerio de F. quod est de Antiquo Dominico Coâ—one Angliae ut dicitur quod licet ipsi corum Antecessores Tenentes de eodem Manerio a tempore quo non extat memoria semper hactenus quieti esse cousueverunt de expensis Militum ad Parliamenta nostra Progenitorum nostrorum Regum Angliâ—e pro Commanitate dicti Comitatus venienium c. and then proceeds that whereas the said Sheriff distrains the said Tenants to contribute to the Expences of the Knights that came to the last Parliament to their great damage otherwise than totis retroaâ—tis temporibus fieri consuevit therefore commands him that he desist from his said Distress and do not compel the said Tenants to contribute otherwise quam omnibus temporibus retroactis And now tho' this Writ be without any Kings name or date yet it appears at the bottom it was issued by G. L. Eâ—â—rope then Chancellour and William de Holston Clerk of the Chancery and this must have been before the 15th of that King because it appears by the close Rolls of that year that in December the great Seal was delivered to William d' Ayremyn under the Seals of William de Clyffe and the said William de Herlston Clerks of Chancery who are often mentioned in our Records to have been Keepers of it pro tempore till the Second of Edward the Third when the said William de Herlston had the sole custody thereof committed to him But there is yet a perfecter Writ of this kind in the 50th of Edward the Third extant on the Rolls directed to Iohn de Cobham and four other Knights therein named reciting that whereas Simon Arch-Bishop of Canterbury claims as well for himself as his predecessors and their Tenants hitherto à tempore quo non extat memoria for certain Lauds held in Gavel-kind in the County of Kent which ought to be free from the Expences of Knights coming to our Parliaments as well as those of our Progenitors and concludes with a Supersedeas to the said Sheriff not to molest the said Tenants until such time as the King be further informed and that He by the Advice of his Council has ordained what is to be done in the premisses from both which Writs we may draw these Conclusions First That there was at the time of the granting these Writs a Claim by prescription time out of mind allowed for all Tenants holding of the Arch-Bishop in Gavelkind to be exempted from contributing to the wages of Knights of the Shire or else these Petitions and the Writs upon them had been idle and ridiculous Lastly That this Claim of being thus exempted time out of mind which as I have already proved extend beyond the time of Richard the First is allowed by the King himself for good in both these Writs only in the last the King will be informed whether they are Tenants in Gavel kind or not so that the Conclusion must be that if these Tenants in Ancient Demesne and Gavel-kind were always exempted from paying to the wages of Knights of the Shires beyond memory i. e. by prescription then certainly those Knights must have been chosen time beyond memory I could give you several other Writs of like nature but I will not over charge you Now certainly if the Knights of Shires were thus Elected time beyond memory the Citizens and Burgesses must have been so too since in Scotland where there were for a long time no Commissioners for the Shires yet the Cities and Burroughs ever sent Delegates to Parliament as your Dr. himself allows M. I must beg your pardon if I cannot come over to your Opinion concerning this prescription of Knights of Shires Citizens and Burgesses appearing in Parliament before the 49th of Henry the Third since Mr. Prin in his second and third part of his Parliamentary Register has proved 1. That all the words you insist upon to prove this prescription are to be understood in another sense than what you would now put upon them so that tho' Mr. Lambard and others of great note lay the Original Title and Right of all our Countreys Ancient Cities and Burroughs Electing and sending of Burgesses to Parliament and to be by prescription time out of mind long before the Conquest yet against this Opinion Mr. Prin argues thus whose Arguments I shall contract because it would be tedious to recite them all verbatim First That as for the wages of Knights of Shires which is the principal thing you insist on in this last Argument the Ancientest Writs extant for their wages are those of 28th and 29th of Edward the First and no Records or Law-books I have seen derive their Title higher than the Reign of Edward the First The first Statute concerning them is that of the 12th of Richard II. which only enacts that the Levying Expences of Knights shall be as hath been used of old time The next Statute is of 11 of
Subjects there laid down into eight Discourses Since being obliged to vindicate the Antient Constitution of Parliaments from the Cavils of some late writers there was a necessity of considering what Dr. Brady had with so great industry heaped together against the House of Commons being antiently a constituent part of our Parliaments before the 49th of Henry the III. in the doing of which if I have proved too prolix I can only say I could not avoid it without baulking those Arguments the Doctor has made use of to support his opinion But having already treated in the third and fourth Dialogues upon the Questions of Passive Obedience and Non-Resistance as a Moralist and a Divine I come now to handle the same Question as a Lawyer and to examine whether by the ancient Laws and Constitutions of our English Government and by the late Statutes of the thirteenth and fourteenth of King Charles the II. all taking up of Arms against the King or those Commissioned by him be absolutely forbidden and declared Treasonable in the doing of which I can assure you I have not failed impartially to set down whatever I have either heard or read materially urged for one or the other opinion and I have also consulted some of the wisest and most Iudicious Members of the long Parliament of King Charles the II. to learn what was then the sense of both Houses of Parliament concerning the words of that Oath but whether I have any ways mistaken the sense of those August Assemblies I humbly submit it to the judgment of this present Parliament For cujus est condere ejus est interpretari and I hope for the like ingenuity from those who give a different and stricter interpretation to the words of those Statutes and the Oath therein contained which tho' it be now no longer enjoin'd yet since it may still be thought to bind such as have taken it it was very necessary to inquire what was the true intent of those that imposed it that is indeed what is the legal sense of the words of that Oath But as to the inconveniencies and mischiefs that may arise from the Peoples judging what Commissions of the Kings are Legal or Illegal and either resisting them or yielding obedience to them as they shall see cause I have only this to say that I desire those of the contrary opinion seriously to consider all the inconveniencies and mischiefs that may happen on the other side if the King is invested with an absolute irresistible power not only to issue what commissions but to whom and to what ends he pleases tho' never so illegal and arbitrary and that the whole Nation must yield an active obedience or at least a passive submission to them without the least resistance no not so much as to assist any Foreign Prince who should come in to their assistance as his Present Majesty when Prince of Orange generously did And when any man has without prejudice and passion considered consequences I shall freely leave it to him to embrace which side he pleases since I hope it is neither Heresie nor Treason to be of either and therefore I only desire the Reader to peruse this discourse without passion or prejudice and then it is indifferent to me what party he takes since I think men may be honest and conscientious who believe either way and I do not expect nor desire any man to be of this or that opinion farther than his reason shall guide him in which if he be mistaken he has no body to blame but himself since he is not sit to judge who is to be trusted with arguments only for that which he already believes to be the right side I have no more to mind you of at present but to suppose these Papers to be written before their present Majesties were declared King and Queen and in a time when every body not only thought but spoke freely THE Ninth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian F. SIR I am glad to see you again so soon for I was just now looking over some of our Old Historians that lie here upon the Table to rub up my Memory for sufficient Instances and Authorities that it hath been always the received and constant Custom and Practice of the Clergy Nobility and People of this Nation to defend the Ancient Government of this Kingdom by general Councils or Parliaments as also their just Liberties and Properties not only by Remonstrances and Petitions to but by Force too against the Kingâ— and those commissioned by him in case they found them evidently and violently invaded beyond what any fair or gentle means and intercession were able to redress And for proof of this I shall go as high as the Times of the Kings of the West Saxons from whom all the Kings of England before the Conquest were descended after the Kingdom of the West Saxons had prevailed over all the rest I shall therefore begin with the Reign of Sigehert King of the West Saxons who as I told you in your Sixth Conversation breaking the Laws and Constitutions of the Kingdom and Tyrannizing over all form of People was in a general Council of the whole Kingdom deposed and expelled into the Forrest of Audredswald where he was afterwards slain by a Hogheard As the Saxons Annals under the Year 755. as also Huntingdon and Malâ—sbury relate I shall not mention the Deposition of King Edwin by the Mercians and Northumbrians and their chusing his Brother Edgar in his stead because not done by the Common Council of the whole Kingdom and that also for slight and insufficient grounds Therefore since the Times before the Conquest do afford us no more examples of this kind among the Kings of the West Saxon Race to which I only confine my self since those Kings being for the most part at Wars with the Danes to the Time of Edward the Confessor had somewhat else to think on than the making themselves Absolute or Tyrannizing over their Subjects but indeed there is scarce to be found in History a Succession of more mild just and valiant Princes than Egbert the First King of all England and his Descendants M. Pray Sir tell me to what purpose you cite these Instances of the Nobility and People of England deposing and casting off their Kings in the Times before the Conquest is it that you would justifie that Common-wealth Principle that the Parliament hath the like Power to depose the King at this day in case of any Infringement of the Fundamental Laws of the Kingdom or breach of the Original Contract as those of your Party now term it if you do pray speak plain and then I shall know what Answer to give you F. Tho'l assert it as undeniable in matter of fact that the English Saxons did often exercise that Power they had reserved to themselves of Electing and Deposing their Kings when they became insupportable for Tyranny or Misgovernment as appears not only in
there is no other means left but to resist it if they are able M. I can give you very good reasons to satisfie you why tho' I grant private Subjects may judge of the Legality or Illegality of the King's Commissions and also refuse to obey His Illegal Commands and also that all publick Officers ought to take care at their peril how they act by or execute such Illegal Commissions yet that it does not therefore follow that such illegal Commissions or Orders though executed upon the whole body of the People may be resisted by them for all limitation of the Royal Power being only voluntary and proceeding from the meer grace and favour of our Kings they are not compellable by force or resistable if they should impose their own Proclamations or Edicts upon us instead of Laws For tho' I grant that the King hath no Just or Legal Authority to act against Law and that if he knowingly put any Subject to death contrary to Law he is a Murderer and no Prince can have any such Prerogative as to commit open downright murders either in his own person or by those who act by Commission from him but what follows from hence That they may resist or oppose them if they do This I absolutely deny because God and the Law have Commanded us not to resist and I see no inconsistency between those two Propositions That a King hath no Authority to act against Law and yet that neither He nor those commissioned by Him though acting against Law may be resisted Both the Law of God and the Laws of our Countrey suppose these two to be very consistent For notwithstanding the possibility that Princes may thus abuse their Power and transgress the Laws whereby they ought to govern yet they also command Subjects in no case to resist and it is not sufficient to justifie Resistance if Princes do what they have no just Authority to do unless we have also a just Authority to resist he who exceeds the just bounds of this Authory is lyable to be called to an account for it but he is accountable only to those who have a Superior Authority to call him to an account No Power whatsoever is accountable to an Inferior for this is a contradiction to the very Notion of Power and destructive of all Order and Civil Government Inferior Magistrates are on all hands acknowledged to be lyable to give an account of the abuse of their Power but to whom must they give an account Not to their Inferiors not to the People whom they are to Govern but to Superior Magistrates or to the Soveraign Prince who Governs all Thus the Soveraign Prince may exceed his Authority and is accountable for it to a Superior Power But because he hath no Superior Power on Earth he cannot be resisted by his own Subjects but must be reserved to the Judgment of God who alone is the King of Kings F. In the first place I deny and I have sufficiently proved the contrary that all Limitation of Royal Power proceeded at first from the meer grace and favour of our Kings since the Crown of England has been from its first Institution Limitted by Laws and the People have likewise always enjoyed a property in their Lives Liberties and Estates by the same Laws Tho' I grant you and I are thus far agreed That the King hath no Just and and Legal Authority to act against Law and that if he put any man to Death or take away his Estate contrary to it it is Murder and Robbery And likewise that the Subjects may be capable of Judging concerning such illegal Commands but you will not allow that if such a Limitted Monarch should send his Mercenary Forces to take away our Estates or to Dragoon us till we will own our selves of his Religion that those Instruments of his Tyranny may be resisted or that I have brought any reason for it Whereas if you had but attended better to my discourse at our 3d and 4th Meetings you might have remembred that I plainly enough proved to you that God hath not given Princes nor those Commissioned by them any Authority to Murder or enslave their Subjects and your self then granted That every Man hath power to defend his Life against him who hath no Authority to take it away which holds more strongly in our Constitution where if the King give a Man a Commission to act contrary to the Law of the Land it is altogether void and the People may as well justifie their Resistance of those Officers or Souldiers who should come to Dragoon or persecute them for professing the Religion Established by Law as if he had sent them downright to cut their Throats and this being their Right by the Laws of God and Nature whether God hath taken away this Right by any express Precept in the holy Scripture I also examined at those Meetings but whether any Municipal Law of the Land hath restrained us from it I have also now considered and proved it contrary to the true intent and meaning of these Acts concerning the Militia And therefore to say that it is not sufficient to justifie Resistance if Princes do or command what they have no Legal Authority for unless we can also shew an Authority to resist is a mistake if by Authority you mean an express Civil Law for it because such Resistance in absolute Monarchies is justifiable by that which is Prior to all Civil Laws the Right of Self-defence or Preservation And so likewise in Limited Kingdoms there is the same necessity of Defensive Arms upon a general Breach or Violation of any Fundamental Constitution of the Government since it cannot be kept or maintained without such Resistance be allowed So that if the King hath no Authority to act contrary to Law he cannot sure delegate that to others which he had not in himself and consequently such Commissions to Persecute or Murder Men contrary to Law being in themselves void the persons that Execute them being no Officers may be justly resisted and the Resistance of such an Illegal Act doth not at all derogate from his Soveraignty as King since as I told you before that is limited only to the performance of Legal Acts and extends not to Illegal Orders or Commands and as for the rest of the Reasons you give against this Resistance viz. because he who exceeds the just bounds of his Authority is liable to be called to an account for it only by those who have a Superiour Authority to do it Whereas no Power whatsoever is accountable to an Inferiour You do but impose upon me and your self the same Fallacy which you have so often made use of in making being accountable all one with irresistible which are vastly different and therefore your Conclusion is as false that because the Soveraign Prince may exceed his Authority and is only accountable for it to God that therefore he cannot be resisted by his own Subjects for he may
at all And therefore you are quite out in your Law when you tell me that an Absolute Illegal Judgment is valid till it be reversed for if it be appearantly contrary to the known Forms of Law and practice of the Kingdom it is so far from being valid that tho' it be put in Execution it would be lookt upon as null and done without any Authority at all As suppose the King in person or any Inferiour Judge should condemn a Man to die either contrary to the Verdict of his Jury or without any Jury at all this is so far from being Authoritative or valid that such a Judgment is void in it self and those are guilty of Murder who execute it and it will need no Writ of Error to reverse it But I suppose by Illegal Judgments you mean such Judgments which have some Error in them either in matter of Law or Form for which they may be reversed I grant if these should not be lookt upon as valid and hold good till they are reversed in a higher Court there could not be any Judgment given at all since all Human Judicatories whatsoever are subject to Errors and Mistakes and there is sure a great deal of difference between such actions as are done by that Authority which the Law entrusts them with tho' not duly exercised and those violent and illegal acts which a Prince when he persecutes and enslaves his Subjects performs by his wicked Instruments contrary to all Divine and Human Laws So that the validity of such an Erroneous Judgment is not from the Judges personal Authority above the Law nor from his mistake or ignorance of the Law but from that high Credit and Authority which the Law hath given to all Courts and Judicial Proceedings which if they are done in due form are to be taken for Law however unjust and must be presumed to be free from Error till they are reversed in some higher Court. M. But if you please better to consider of it you will find a necessity of owning a Supreme Power in the King beyond all Appeal or Resistance and that there must be a personal Authority in him antecedent and superiour to all Civil Laws for there can be no Laws without a Law-maker and there can be no Law-maker unless there be one or more persons invested with the Power of Government of which making Laws is one principal branch for a Law is nothing else but the publick and declared Will and Command of the Law-makers whether they be a Soveraign Prince or the People And hence it necessarily follows that a Soveraign Prince does not receive his Authority from the Laws but Laws receive their Authority from him And I must be still of the same Opinion as to Bracton's words which you before quoted Lex facit Regem the Law makes the King by which I cannot believe that that great Lawyer meant that the King received the Soveraign Power from the Law for the the Law hath no Authority nor can give any but what it receives from the King and then it is a wonderful riddle how the King should receive his Authority from the Law And therefore I must stick to my former Interpretation that when he says the Law makes the King that is it distinguisheth him from a Tyrant as appears from the reason he gives for it i. e. Non est enim Rex ubi dominatur voluntas non Lex he is no King that Governs by his Arbitrary Will and not by Law not that he is no Soveraign Prince but he is a Tyrant and not a King And hence it as evidently follows that the Being of Soveraign Power is independent on Laws that is as a Soveraign Prince doth not receive his Soveraign Power from the Law so should he violate the Laws by which he is bound to govern Yet he is not to be resisted much less doth he forfeit his Power 'T is true he breaks his Faith to God and his Countrey but he is a Soveraign Prince still And now I hope it plainly appears that every Illegal act the King doth or Illegal Commission that he grants is not an inauthoritative Act or Commission but layes on the Subject an Obligation to yield if not Active yet a Passive Obedience And in the King 's most Illegal acts tho' they have not the Authority of Laws yet they have the Authority of Soveraign Power which is irrisistible and unaccountable In a word it doth not become any Man who can think three consequences off to talk of the Authority of Laws in derogation to the Authority of Soveraign Power The Soveraign Power made the Laws and can Repeal them and Dispense with them and make new Laws The only Power and Authority of the Laws is in in the Power that can make and execute Laws Soveraign Power is unseparable from the Person of a Soveraign Prince tho' the exercise of it may be regulated by Laws and tho the Prince doth very ill who having consented to such a Regulation breaks the Laws yet when he acts contrary to Law such acts carry Soveraign and irrisistible Authority with them while he continues a Soveraign Prince F. I am very well satisfied notwithstanding all you have hitherto said that the Government of England owns no such thing as this Arbitrary Power with which you would invest the King since I have already proved at our â—th meeting that the King is not the Sole Legislator and consequently not the Sole Supreme Power So likewise our Law it doth as little understand any such thing as a Personal Authority in the King antecedent and Superiour to all Laws For since God hath now left off making Kings by his own special appointment as he did among the Jews every King must either be so by the Law or Custome of that Countrey or else a bare possession of the Throne is sufficient to make him so and then every Usurper hath as much right to a Crown as the most lawful Prince and Oliver Cromwell was as rightful a Prince as King Charles the Second It is true the first King of any Race could not be invested with the Crown by the same Law as his Successors are that is by an Hereditary proximity of Blood Yet such a King whenever he began to be so could have no Legal Right without the Election Recognition or Consent of the People And as for an Hereditary Right that is but a Right by the Law of the Land or general Consent of the People testified by an uninterrupted Custom to entail the Crown on such a Family so that in either Case they are Kings by Law and therefore I conceive it can be only in this sense that Bracton says Lex facit Regem i. e. The Law of the Kingdom makes the King which more plainly appears by what immediately follows attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominationem Potestatem in which words nothing seems more plain than that the
by his Majesty and those of the Popish â—unto that advised him to issue out the late Declaration so expresly contrary to Law and the sense of both Houses of Parliament and which gave the Archbishop of Canterbury and the rest of his Brethren a sufficient ground of petitioning against it and this was so evident that a Jury in which the greatest part were high Prerogative Men could not upon a fair trial but acquit them M. I shall not further dispute this point since you have dwelt so long upon it though I must still tell you I do not look upon this as a sufficient cause for the Nations taking up arms for a reason I shall shew you by and by and therefore I shall now proceed to the next head complain'd of in the Princes late Declaration viz. the late Commission for erecting a new Court for Causes Ecclesiastical but as I will not enter upon the question of the Legality of it so on the other side it was also done by colour of Law and the King as supream head of the Church was told by his Ministers that he had power to erect what new Court Ecclesiastical he pleased provided it was not of the same kind with the High Commission Court which had been abrogated by the Stat. of the 17th of King Charles the I. as likewise particularly excepted in the Proviso in the Stat. of the XIIth of King Charles the II. for restoring Ecclesiastical Jurisdiction to the Bishops Courts so that admitting that Court was not legal yet the Persons who advised the King to erect it and the Commissioners who sate in it were only answerable for it in the next Parliament and though the Bishop of London was suspended and the President and Fellows of Magdalen Colledge were unjustly expelled by this Court yet sure none of these miscarriages could give the Subjects of this Kingdom any just pretences to take up Arms to redress them being done as I said before by colour of Law without any force or violence and was also submitted to by the Parties against which these Decrees were given and was at the most but a matter of particular concern and reacht no farther than the said Bishop and Colledge and did not touch the Religion and Civil Liberties of the whole Kingdom and consequently was not of that general importance as to be any just cause of the whole Kingdoms taking Arms much less for the Kings Officers and Souldiers to run over to the Prince of Orange as they lately have done F. To answer what you have now said concerning the Ecclesiastical Commission that I must also tell you was issued forth without so much as any colour of Law for it and though the late Chancellor and some of the worst and most Mercenary Judges countenanced it by appearing for and acting in it yet it is very well known that it was never proposed to all the Judges to be argued in the Exchequer Chamber as it ought to have been before a thing of that great importance to the whole Nation had pass'd the Seals as to what you say that the Kings Ministers told him it was according to Law and that they alone ought to answer for it in the next Parliament and that no publick disturbance ought to have been made about it because the things that that pretended Court did were but of a particular concern and only reacht the Bishop of London and one single Colledge that is but a fallacy which you put upon your self for sure if you had better consider'd of it you would find that what these Commissioners have already done is of a little more publick concernment than you are aware of for pray tell me why by the same Law by which the Bishop of London was suspended for his refusal to silence Dr. Sharp all the Bishops in England might not have been suspended one after another by that pretended Court if they had refused to obey or execute any Letters or Orders from the King tho' never so illegal or unreasonable since what command could be more illegal than the King 's positive order to the Bishop to suspend a Clergyman from his Diocess without first hearing him or giving him leave to answer for himself So likewise for the case of Magdalen Colledge by the same Law by which these Ecclesiastical Commissioners took upon them to turn out the President and Fellows for disobeying the Kings Mandamus by the same Law the King might put upon any other Colledge in either University Popish Heads and Popish Fellows till instead of Nurseries for the education of our youth in the Protestant Religion they may become as absolute Popish Seminaries as the Colledges of Doway or St. Omers and though I grant that the persons concerned in these unjust Decrees might have patiently submitted to them without any protestations against the jurisdiction of that pretended Court since they might for some prudential reasons have thought fit to submit to them without making any such protestation and yet for all that not allow their Authority but indeed the matter of fact was far otherwise for when a part of these Commissioners sate at Magdalen Colledge to expel the said President and Fellows from their places contrary to Law and the express Statutes of the Colledge they did all severally protest against their whole proceedings and appealed to the Kings Courts at Westminster And it is a plain proof how willingly Dr. H. the President of this Colledge submitted to this Sentence by his locking the Doors of his Lodgings and leaving the Commissioners to break them open before they could get in and put in his pretended Successour by force But as to what you say that the King was told he might as supream Head of the Church set up what new Court he pleased for the execution of his Ecclesiastical Jurisdiction it is certainly a great mistake for I utterly deny that the King has power to erect any new Courts either Ecclesiastical or Civil unless by Authority of Parliament the Kings power to make a Vicar general being only confirmed by the Statute of King Henry the Eighth as was also the Authority of the high Commission by the Statute of the first of Queen Elizabeth and if either of those high spirited Princes hadâ— believed themselves to have been invested with such an unbounded Prerogative they would certainly have exercised it without being beholding to the Parliament but indeed it is but a subterfuge to alledge that this Court was not of the same Nature with that of the high Commission because it did not take upon it to â—â—ne or commit Men to Prison nor to administer the Oath ex Officio to those that were convened before them since it is not the different name or some small difference in the manner of the judicial proceedings but the Causes or Matters that a Court pretends to take Cognizance of that can make it a Court of a quite different nature now it is notoriously known that this late Ecclesiastical
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâ—ace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very â—air Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
Childless I cannot see why the Convention may not as well now settle the Crown upon King William and Queen Mary and their issue with remainder to himself for Life especially since he hath also another Title of his own to confirm it viz. that of a Conqueror over King Iames and our Deliverer from his Arbitrary Government M. I shall not go about to derogate from King Williams Personal Vertues which you so highly extoll only I wish I may not prove too true a Prophet since that is not the main question between us I shall only take upon me to answer in the first place what you have urged on the behalf of King William's pretence to the Crown as a Conquerour over King Iames and Deliverer of the Nation for whatsoever he may pretend to in respect of the latter I am sure he cannot justly pretend to the former since sure he can never have any right by Conquest who expresly sets forth in his first Declaration that he only came to obtain a Free Parliament and to Redress our Grievances Much less can he be properly call'd a Conquerour who never overcame his Enemy in any pitched Battle but by false Stories made the King's Army desert him and then when this was done having forced the King to leave the Kingdom for fear he has in the day of his power by these means obtain'd the Crown and as for a Deliverer you must pardon me if I cannot think him so since I am not yet satisfied that the worst of King Iames's Oppressions ever deserved that the Prince of Orange should take the pains to come over to redress them And therefore your paralell between your King's Title and that of Henry the IV th and Henry the VII th doth not at all agree since both of them claimed not so much by Conquest or force of Arms as by a pretended right of inheritance as you may see by both their Claims And as for Henry the IV th 't is plain he looked upon his Title by descent of blood having been allow'd in Parliament to be so good that for the first seven years of his Reign he never thought it worth while to pass an Act for the Settlement of the Crown upon himself and his Issue but for Richard the III d and Henry the VII th they were so far from owning their Titles to any Act or Declaration of Parliament that they first clap'd the Crown upon their own heads and after they had done it they immediately call'd their Parliaments which tho' they recogniz'd their Titles yet did not make them Kings but found them so whereas the Convention has by their sole Authority made the Prince of Orange and Princess King and Queen of England to the prejudice of the right Heirs of the Crown F. I doubt not but what I have already said may very well be desended notwithstanding the utmost you have now argued against it In the first place as to what you say against King William's Title as a Conquerour over King Iames is very trivial for though it is true the Prince declar'd before he came over that his coming was for no other end but to obtain a Free Parliament Redress Grievances and to remove Evil Councellors from King Iames yet that is still to be understood that the King would agree to those reasonable demands the Prince then â—aâ—e for if by his own obstinacy he would bring things to that pass as that instead of redressing those violations he had made upon our fundamental Laws he raised an Army to support himself in them and when he thought this Army would not sight in his so bad a Cause he then disbanded it and by that as well as the desertion of the Throne owned himself vanquish'd Can any body deny the Prince of Orange a right of making what advantage he could of his Successes And therefore I doubt not but that the Prince might if he pleas'd have taken upon him the Title of King immediately upon King Iames's first departure and have summon'd a Parliament to recognize his Title as Henry the VII th did after his Victory at Bosworth Field nor would this have made him a Conquerour over the Kingdom since he never made War against it but came to deliver it from Tyranny and Oppression Nor did William the Corquerour himself by his Victory over King Harold ever pretend to a right by Conquest over the whole Kingdom but only over the Estates and Persons of those who had fought against him as I have fully proved at our Tenth Meeting nor did Henry the VII th in the first Speech he made to the Parliament after his taking upon him the Crown claim a right to it by Conquest over the Kingdom as his own words were in that Speech you mention to this first Parliament but only that by the just judgment of God in giving him the Victory over his Enemy in the Field and he then farther declar'd that all his Subjects of whatsoever State and Condition should enjoy their Lands and Goods to them and their Heirs as they did before except such Persons who were to be attainted by Act of Parliament Nor is it any objection against his right by Conquest that he obtained no Victory in a pitch'd Battle since I never heard or read that to make a Prince a Conquerour it is necessary that so many thousand Men should be kill'd upon the spot for admit the adverse Prince against whom he fights will through Cowardise desert his Army or that his Army will desert him either through fear or a sence of the greater justice of the adverse Princes Cause or an affection to his Person so that it never come to a Battle yet it has been in all Ages looked upon as all one with a Victory as I can show you from several examples in History and particularly in Plutarch concerning Pyrrhus King of Epyrus who making War against Demetrius then King of Macedon and both Armies being encamped near each other the Army of the latter forsook him and went over to Pyrrhus as well out of hatred to him as esteem for his Enemy so that Demetrius being forced to steal away in disguise Pyrrhus thereupon was immediately in the Field Proclaimed King of Macedon And I doubt not but the Prince of Orange might have done the same had it not been for his great moderation and least it might give his Adversaries occasion to traduce him that he came over for no other end but to drive the King out of his Kingdom and therefore he chose rather to owe the Crown to the free Act of the Nation than to his right by Conquest over King Iames but yet I do not think he hath at all lost that right though he doth not think fit for fear of giving offence to insist upon it and therefore certainly the Convention might very well justifie the setling the Crown upon his Highness during his Life not only as a Conquerour over K. Iames but a Deliverer of
if you say such a way of Election is now impossible I shall do so too but however it plainly shews the absurdity of supposing a King could ever now be fairly Elected were all the Blood-Royal totally extinct As for what you say concerning that Cession which the Princess of Denmark made of her Right to the Crown I never heard any thing of it before but admit it were so this could only serve in relation to her self and she could not give up the Right of her Brother the Prince of Wales no nor that of her own Children if God shall give her any F. This Objection concerning the total Dissolution of the Government proceeds from a wanâ— of your consideration of what the antient Government of England was not only before but a good while after your pretended Conquest which was not a setled Hereditary Monarchy but a Testamentary or Elective Kingdom where the Kings being often recommended by the Testament of the precedent King were chosen out of the Royal Family though not according to the Ruler of Succession now in use and therefore in all such Governments it is very well known that there was at the first institution of Kingly Government among them a great Council or Assembly of Estates of the whole Kingdom appointed who upon the death of the last King and vacancy of the Throne were still to meet of course to appoint a Successor which was commonly one of the Sons of the last King or at least some other Prince of the Royal Blood Thus it was till of late years in Denmark and Sweâ—den and so it was antiently in France during the Succession of the first Race as also in Spain during the Government of the Vandals and so it likewise was in England during the whole Succession of our English Saxon Kings and so I have also proved it continued till Edward the First And though since his time that the Crown hath been claim'd by right of Inheritance yet in all times precedent it is apparent that the great Council of the Kingdom upon the deaâ—h of every King Assembled by their own inherent Authority to consider whom they should place in the Throne which they then looked upon as vacant And therefore though I grant in the case of Edward the First the Parliament did not only ordain him Successor to his Father but also recogniz'd his â—ight by Blood yet for all this they still remain'd their anâ—ient Power of meeting without Summons from the King he being in the Holy Land and they not knowing whether he was alive or dead so that it is a false assertion to affirm that there can be no Government without a King since in all those vacancies of the Throne it is plain the Government devolved of course upon the geat Council of the Nation And though it is true there can be now no Parliament without a King according to the present notion and acceptation of that Term yet before that word was ever in use which is no older than about the middle of the Reign of Henry the Third it is plain that our great Councils often met by their own inherent Authority without any King and preserved the Peâ—ce of the Kingdom till a new King was either chosen or declared And though 't is true the Crown hath been long enjoy'd by those who have claim'd by Inheritance yet there is no reason for all that if the like cases should fall out as have done in former times why the Government should devolve to the mix'd Multitude now any more than it did then since it may be as well suppos'd that the same tacit Contract still continues of maintaining the Original constitution of great Councils which I have proved to be as Antient as Kingly Government it self And though perhaps the Form of chusing or sending thâ—se Representatives of the Nation may have been alter'd in divers particulars by for â—er Laws or received Customs yet this is nothing to the purpose as long as the thing it self remains the same in Substance as it was before for it can never be thought to have been the intent of the People who Established this form of Government that upon the extinction of the Royal Family the Government should be so quite dissolved as that it should be left to the confused Multitude to chuse what form of Government they should think fit Therefore to conclude I wish you would be perswaded to own this Government as it is now Established and to take 〈◊〉 Oath of Allegiance which is enjoyn'd by the Declaration of the Convention who are the only proper and legal Judges we can now have of conferring the Rights of those to whom our Allegiance is due And if in case a Dispute about the right Heir of the Crown the People of this Nation were not all bound to the decision of this Assembly we must necessarily fall together by the ears and fight it out as they do in the East-Indies where upon the death or deposition of a King he has still the Right who can Conquer his Competitors in Battel M. Well I wish there were not something very like it practised here of late for I think you will grant that if the Prince of Orange's Party had not prevail'd over the King 's the Convention would never have placed the Crown upon his head But I must beg your pardon if I cannot agree to your Proposals of taking the New Oath of Allegiance to King William and Queen Mary since I have already taken the Oaths of Supremacy and Allegiance to King Iames and I do not believe that any Power on earth can disengage me from that Oath as long as he and his Son the Prince of Wales are alive For as to your Doctrine of Abdication or Forfeiture they are too hard for my Reason to understand or for my Conscience to comply with and therefore it is all one to me whom your Convention places on the Throne since I am very well satisfied that none but the King can have a Right to it F. I wish I could see some better reasons for this opinion of yours than those you have already given for if you could convince that me the Nation hath done any thing in this Revolution which cannot well be justified by the Antient Customs and Constitution of the Kingdom I should come over to your opinion But if King Iames has truly Abdicated or Forfeited the Crown as I hope I have sufficiently made out and that your suppos'd Prince of Wales either is not really or else cannot now be proved to be the true Son of the Queen by reason of those Obstacles and Impediments I have shewn you I cannot see any thing to the contrary why you should not be wholly free and discharged from your former Oath of Allegiance to King Iames so that King William and Queen Mary being now placed on the Throne your Allegiance to King Iames and the suppos'd Prince of Wales is lawfully determined pray tell me therefore
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
one thing more to add in relation to somewhat I promised at the end of the Preface to the last Dialogue concerning the late Revolutions being different from the last Civil War and Murther of King Charles the First which though I have finish'd and thought to have inserted into this Discouese yet since it proves rather too long without it and that the Bookseller urges for its speedy Publication I have thought fit to omit it since also the greatest part of it relates to matter of fact which is variously stated by those who write the History of those times yet I shall make bold to give you the heads of those inquiries I have made and shall leave you to satisfie your self in these Points following first if after King Charles the first had not only passed all Bills for redressing those Grievances the Nation lay under at the beginning of the Parliament in 1640. but had also passed the Bill to make it not to be Prorogued or Dissolved without their own consents I say whether there were then any such violations of our Religion and fundamental Laws which should require the Parliament and Nations puting themselves in a posture of defence against the King's Arbitrary Power Secondly whether the fears and jealousies of Popery and Arbitrary Government which notwithstanding all that the King had done still troubled many Mens minds were a sufficient ground for the two Houses to demand the putâ—ing the whole Militia of the Kingdom out of his own Power into such hands as they should nominate and appoint Thirdly whether upon his refusal of their Adresses for the Militia their going about to take it out of his hands by force and particularly their shutting him out of Hull was not an actual making War upon the King when he was as yet unâ—armed and had given out no Commissions to raise Men or Arms. Fourthly when the War was begun whether the King did not in all his Messages to and Treaties with the Parliament propose and seem to desire Peace upon equal and reasonable terms Fifthly Whether the two Houses did not instead of complying with those reasonable Proposals still insist upon higher Terms as their Victories and Successes over the King increased Sixthly when the King was deliver'd up by the Scots whether the Parliament and Army did not keep him as good as a close Prisoner and vote no more Addresses to be made to him meerly because he refused to pass whatever Bills they brought to him Seventhly When at last he was forced by necessity to grant them at the Isle of Wight almost whatever they demanded whether he was not hurried away from thence by Cromwell's Army and for the major part of the House of Commons who had Voted the King's Concessions satisfactory excluded the House by force till the far less Party had reversed all that the rest had done and then Voted the King should he called to an account for making War upon the Parliament and for Treason against the Kingdom Eighthly Whether in pursuance of this they did not appoint Iudges to Trie the King who upon his refusal to own their Authority Condemned him to death and cut off his head before the Gates of his own Palace Ninthly Whether this fag end of a Parliament did not alter the whole frame of the Government both in Church and State destroying both Monarchy and Episcopacy and Voting the House of Peers useless and dangerous and setting up a Democratical Commonwealth or rather an Oligarcy in their stead consisting of about fifty or sixty Men wholly governed and awed by Cromwell and the Officers of the Army Now let any Man but impartially consider all these Transactions with the late Revolution and read what hath been said in the three last Dialogues and then let him tell meingenuously whether he thinks this Revolution hath been begun upon the like grounds and carried on by the same violent Courses or has ended with the same direful effects as the late Civil War and Murther of King Charles the First I have no more to propose on this Subject but only to wish that these Discourses written with a real design for the publick good and peace of my Countrey may be read with the like affection with which they were written and may really promote that end for which they were designed but if not that they may at least serve as an Impartial History to Posterity of those Principles and Opinions on which this late great Revolution hath been brought about in England and also those on which it hath been so violently opposed by the dissenting Party THE Thirteenth Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. SIR I hope I do not interrupt you by coming too soon for the truth is since I intend that this shall be the last Dispute I shall ever have with you upon this Subject I was very desirous to have it dispatched as soon as I could that when I have once discharged the duty of an old Friend and Acquaintance my mind may be at rest which side soever you take M. Dear Sir I thank you and though I intended to go abroad this Evening upon an Appointment yet I will not put it off that I may enjoy your better Conversation therefore pray begin where you left off and prove to me that I may lawfully take this new Oath of Allegiance to King William and Queen Mary F. I cannot see any reason why you may not safely do it since our best Common Lawyers are of this Opinion for my Lord Coke in his Third institutes in his Notes upon the Statute of Treason the 25 th of Edward the III d gives it for Law that this Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de Facto non de Iure yet is he Seignior Le Roy within the purview of that Statute and the other that hath Right and is out of possession is not within this Act c. And if it be Treason to Levy War against him or to Conspire his Death as long as he continues King it can only be so because the Subjects Allegiance is then due to him for that all Men have either taken the Oath of Allegiance or else are supposed to have done it M. I must beg your pardon if I cannot come over to your Opinion neither in point of Law or Reason for as long as I am perswaded in my Conscience that King Iames is King de Iure so long must the obligation of my former Oath last and I suppose that you will grant that it is as impossible to owe Allegiance to two Kings at once as it is to serve two Masters and therefore you must pardon me if I suppose that my Lord Coke depending too much upon the commonly received sence of the Statute of the Eleventh of Henry the VII th which he quotes in the Margin may be
should be so for it is not meerly a legal Title by descent but a legal investitute and recognition by Parliament that makes a legal King or a King in Law as it makes a legal Magistrate and then all Kings de facto who are placed in the Throne by a Legal Authority and with all Legal and acustomed Ceremonies are legal Kings and as such may require a legal Allegiance so that all those hard words in the Statute of the first of Edward the IVth that call those Kings of the House of Lancaster Kings in Deed and not of Right or pretended Kings mean no more than this that they were Kings for the time being and according to the Laws which had made them so though not according to that hereditary Right of Succession which those Statutes require If you have any thing to reply to this tell me or else I will proceed to answer your two other Arguments M. I will not at present say more to this than I have done and therefore you may proceed if you please F. Your two next Arguments are from the attainders of Richard the IIId and his principle Assistants which were by Act of Parliament as to that Prince himself as also his adherents the attainders of Kings de facto and their Assistants in after Parliaments do not prove that Subjects cannot be guilty of Treason against a King in possession nor does the Statute of Treason relate to a King de jure only for that Statute was not made to secure Princes Titles but the quiet of their Government whilst they sate upon the Throne for though a King if he be an Usurper when ever the Rightful King regains the Possession of his Throne if he were a Subject before may be attainted of Treason for his Usurpation as was Richard the IIId for Treason against his own Nephew King Edward the Vth yet this does no way prove that Richard the IIId was no true King during his Usurpation but only shews the Parliaments abhorrence of his Treason and to deterr others from falling into the like attainted him and several of his Accomplices who had assisted him in his said Usurpation for that they were not barely attainted for defending King Richard's Title appears from this that the Earl of Surrey Son to the Duke of Norfolk and divers other Noblemen and Gentlemen who fought for King Richard at Bosworth-Field were never attainted at all But as for the Pardon that you say passed in that Parliament of the 1 st of Henry the VIIth you are very much mistaken in the purport of it for if you please to look upon it again you will find that it was not a General Pardon for the Common People who had fought on the behalf of Richard the Third but of all those who had come over with Henry the VIIth himself or who were with him in the Field against Richard the Third for all manner of Murthers Spoils and Trespasses committed by them in taking part with King Henry against his Enemies so that you see the assisting of a King de facto was not only justifiable but those that had fought against him thought themselves not safe till they had their Pardons Nay farther that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful Kings appears from hence that when Edward the Fourth was driven out of the Kingdom and dispossessed of the Throne the next Parliament under Henry the Sixth passed an Act of Attainder against him and his Adherents But as for the Attainder of Henry the Sixth you are very much mistaken to suppose that it was for any Treason committed against Edward the Fourth but it was for breach of the agreement made with his Father the Duke of York and in making War again upon him for had he not done this he had continued lawful King during his life by the Duke of Yorks own consent for in the Parliament Roll you your self have already cited it is thus expressed That considering the possession of the said King Henry the Sixth and that he had before this time been named taken and reputed King of England and France and Lord of Ireland the said Duke is content agreeth and consenteth that he be had reputed and taken for King of England and of France with the Royal Estate Dignity and Preheminence belonging thereto and Lord of Ireland during his life natural and for that time the said Duke without hurt or prejudice of his said Right and Title shall take worship and honour him for his Sovereign Lord So that you see that by the Judgement of the Parliament and by the express consent of the Right Heir of the Crown a King de facto was to be own'd by this Right Heir for his true and lawful Sovereign and therefore could not be attainted for detaining the Crown from him or his Son M. I will not dispute this point any further but yet methinks though Treason might be comitted against the King de facto whilst he continues King yet this is not for any Allegiance due to him but because such Treason being against the due order of Government and the common peace of the Nation such actions are therefore Treason from the presumed or tacit consent of the King de jure F. I grant indeed that such Acts are against the Order of Government and very destructive to it which is the only reason why they are made Treason by Law and this is as good a reason why the Law should make them Treason against a King de facto as against a King de jure for they ere equally against the order of Government and destructive to it whoever is King and that is the only reason why they made it Treason at all Now this presumed or tacit consent of the King de jure is a very pretty notion and serves you for a great many good turns it makes Laws and it makes Treason and gives Authority to the unauthoritative Acts of a King de facto that is to say or you say nothing that the presumed consent of a King de jure invests the King de facto at the time with his Authority for if he have no Authority of his own unless what the presumed consent of the King de jure give him that cannot make any Treasonable Act done against him to be Treason for it cannot alter the nature of things nor make a Man guilty of Treason against any person to whom he ows no duty of Allegiance And if the presumed consent of the King de jure can invest the King de facto with his Authority it must transfer the Allegiance of the Subjects too and then Subjects are as safe in Conscience as if the King de jure were on the Throne for it seems there is his Authority and tacit consent though not his person But indeed this is all meer trifling the King de facto has Authority or else none of his Acts
the Government in the unsetled state it is in to follow Cromwell's Example and to impose no Oaths of Allegiance at all since the Government may be as secure without it as for all that I can see they can be with it and as it is now managed I see little it can serve for but to distinguish and divide us one from another and besides its being a snare to the Consciences of so many that take it it is like also to prove the ruine of divers of our Bishops and other honest Men both of the Clergy and Laity who will certainly rather lose their Dignities and Imployments than ever take it which will also cause a great Schism in the Church as I doubt you will find when it is too late whereas if these men might have held their Bishopricks and all other Preferments and Offices without having this Oath impos'd upon them I doubt not but they would serve both the Church and State in their several stations according to their duties and as far as lawfully they could F. I cannot deny but you have spoken very honestly and like a good English Man in many things you have now said in case your intentions towards the present Government were real as your words are fair and therefore I cannot wonder that you have been formerly a stiff asserter of the lawfulness and necessity of the Oath of Allegiance should now be for taking it quite away now it grows too hard for you self and those of your Opinion to digest As if to oblige Subjects to defend their Governours were a necessary security for your rightful Princes but were unnecessary for those whom you shall think fit to suppose to be Usurpers And though I confess I must very much pity the over-nice Principles of those of your way who are truly peaceable and consciencious and are like to be ruin'd by their refusal of it yet for all that I very much doubt whether it would be for the best to take this Oath quite away since it would make a strange alteration in the Government to admit all persons into ordinary Charges much less into Imployments of Trust and Profit without taking any Oath at all Your only Objections against it are these First that you doubt that it is unlawful to impose promissary Oaths and the next is that it will not perform the end for which it is intended viz. to distinguish those who will serve the Government faithfully and those that will not since you confess that a great many who are not at all satisfied in their Consciences will for interest not only hold their old Imployments but will also take new ones under it which I grant is not to be avoided if men will venture to be damned So likewise on the other side I must tell you that the quite taking away the Oath of Allegiance will not at all mend the matter but make it much worse since then not only those whose Consoiences will give them leave to take the Oaths but also those who think they ought not to take them will be alike capable of Imployments and when they are in them though I grant they may be both alike free to act as they please against the present Government and for restoring of King Iames yet I must needs tell you for all that that I am much more fearful of the ill will or malice of those who think themselues oblig'd in Conscience to overthrow the present settlement and who continue stiff to their first Principles than of those who will so far comply with this present Government and their own interest as to take the new Oath of Allegiance in whatever sence they please for I am very well satisfied that such men though they are not so right for the Government as I could wish them yet either fear of punishment or else the consideration of their own self-interest will always make them desire to retain those Imployments they have already got since they can never be assured of bettering their Condition under King Iames and a Popish Government should he ever return whereas those that are bigotted to Principles will always think it their duty by vertue of this notion of a Natural Allegiance as well as their former Oath to endeavour to restore him by all the ways and means that can ever lie in their power But as for the unlawfulness of a promissory Oath since you your self speak doubtfully of it and few Casuists except Grotius have been of that Opinion I think it is not safe to quit our antient Laws which particularly prescribe that not only all Magistrates and Officers but also all other of the Kings Subjects should take the old Oath of Fidelity or Allegiance as we now stile it in the Court Leet or Sheriffs Torne when they come to the Age of fourteen years which Oath as appears by what we can find of it in Edward the Confessors and King William's Laws which we have already recited as also you may find it in Sir H. Spelman's Glossary Tit. Fidelitas was made to the King as their Leige Lord of Life and Limb and which implies an active Obedience to defend him against all his Enemies without any exception of such as may claim by Inheritance or right of Blood Now this being so I cannot be perswaded that the Government ought to quit any lawful means whereby it may preserve it self and distinguish those who would really serve it from those who will not and though perhaps the Government may find it self mistaken in its account in some Men whose Consciences are large enough to swallow any Oath whatsoever yet I think I may still safely maintain that it is still in less danger from a few such Libertines than from those of your Opinion who would not only keep their Places under this Government but will also continue in a perfect state of War against it let them be treated never so kindly and therefore as to those dreadful Consequences of Schisms in the Church and the lessening and dividing our Party as to the former we must run the hazard of it since it was never heard of that the Bishops who are in some respects Temporal Barons held their Bishopricks under any King since the Conquest without owning his Authority And I can also shew you that the King and Parliament have either actually deprived or else declared such Bishops Traytors to the Government So that if any such a Schism be made it will proceed from a scandal unjustly taken by some scrupulous Men and not by the Government And as for the other inconvenience I think it is much safer for the Government to imploy fewer Men then by not knowing who are Friends or Foes to trust all promiscuously though perhaps notwithstanding their utmost care some Men of little or no Consciences will places in this as well as they have done formerly which can by no other means be prevented as I know off but by chusâ—ing Men of honest Principles
no Reason since they are only Declarative and Persuant to the late Act of the Convention whereby after the Declaration of the Rights and Liberties of the Subjects King William and Queen Mary are Declared That they were and of Right ought to be by the Laws of this Realm our Soveraign Leige Lord and Lady and King and Queen of England c. M. Well it is late and besides to no purpose to argue this Point any longer since it concerns not me nor any of my Principles what new Oaths you make and impose upon those whose Consciences will never permit us to take them What I have said was only to shew you the Folly and Weakness of such Oaths and Consequently that they can be subservient to no other end then a renewal and aggravation of the Sin of Perjury among us which God forgive this sinful Nation among the many crying Sins it now growns under Yet give me leave still to mind you that you have not given any answer to the Objection I have made concerning the Schism that is like to follow from the depriving of all such Bishops and Clergy that shall refuse to take the new Oath by such a time which Deprivation being uncanonically ordain'd by the meer lay power of the Convention without the authority of a Convocation or Synod such proceedings are sufficient cause for all of our way to break off all Church Communion with you as soon as the Arch Bishop of Canterbury and those other Bishops shall happen to be deprived and new ones put in their Places since all Church Communion wholly depends upon the lawfullness of the Bishops who are the supreme Pastors of our Church F. I forgot to say any thing of this because I said so much to answer concerning the new Oath I proposed as sit to taken by those in places of Trust but since you desire it I shall say somewhat though not so large as I could speak upon this Subject First I must tell you it is altogether a new Notion and contrary to the Doctrine of the Church of England whereby it is declared that the Kings of this Realm have the same Power with Persons in the Church as the Kings of Iudah and Israel had among the Jews therefore you must either depart from the Doctrine of this Canon or else the King and Parliament who are certainly as much the supreme Power of the Nation as the Kings of Iudah were to that of the Jews may as well deprive the Arch Bishop of Canterbury for Example for Treason or Disobedience to the Government as Solomon did Abiathar for Anointing his Brother Adonijah King and besides this I can shew you many Examples of the like power exercised by the Roman and Greek Emperours in depriving and banishing not only Bishops but Patriarchs for the matters of State without any Sentence or Judgment of a Synod or general Council of other Bishops if your Doctrine were true the poor Greek Church would be in a sad Condition and all her Members in a perpetual Schism for some Ages past that there hath been scarce any Canonical Elections or Deprivations of the Patriarchs of any of the great Seats viz. Constantinople Antioch and Alexandria but they are all nominated and put in and out at the Grand Seigniors nay Visiers Will and Pleasure as any Man who will but peâ—uâ—e Sr. Paul Rycauts account of the Greek Church may easily see But indeed you fall into this Errour for want of considering the original of Bishop-pricks in England and the true meaning of this intended Deprivation for pray take Notice that though Episcopacy was setled in England in the time of the Britains yet all the Seas and Jurisdictions of the Bishops of this Realm in respect of such and such Diocesses have been wholly oweing to the bounty of our Kings and the Authority of our Great Councils which were also confirmed by the Popes Bulls and since the Reformation to the Authority of the King and Parliament as were all the Bishop-pricks erected in Henry the VIII ths Reign so that let the Bishops meer Spiritual Power of Ordaining Excommunicating c. be derived immediately from Christ if you please yet the Exercise thereof as limited and appointed to this or that Precint or See is as meer a temporal Institution as that of Parishes which was not introduced till long after Christianity was settled in this Island So that the Exercise of this Ecclesiastical Jurisdiction within the See of Canterbury for Example being a Civil Institution it hath anciently belonged to Supream Powers not only to confer this Power as appears by their ancient Investitures of our Bishops per Baculum Annulum but also to take it away for Treason or Disobedience against the State since the King and Parliament do not pretend to deprive them of their Spiritual Character or Episcopal Orders but only of their right to exercise it within such Sees or Diocesses thus although the Arch-Bishop of York and the Bishops of London and Wichester with the rest of the Popish Bishops were deprived by Act of Parliament in 1 o th of Elizabeth for not taking the Oath of Supremacy the Queen and Parliament never took upon them to degrade those Bishops of their Episcopal Orders but only to forbid their acting as Bishops in their former respective Diocesses and therefore I doubt not but that notwithstanding this Depriviation those Bishops might if they had pleased have ordained Priests and confirmed Children and that such Ordinations and Confirmations would been good even in our Protestant Church if such Priests or Children had afterwards turned Protestants since 't is very well known that the Church of England ownes the orders of the Church of Rome to be valid which is more then we do for the ordinations of meer Presbyters coming from those Protestant Countrys where there are no Bishops at all the like I may say for their Confirmations too But pray Sir consider how upon your Principles this Schism can be so Universal as to influence and involve all England in it for if the Arch Bishop of Yorke for example will rather take this Oath then suffer Deprivation and that the rest of the Bishops of his Province should be of the mind as I am credibly informed they will pray tell me how the People of that Province being a distinct Church or body Ecclesiastical from that of Canterbury as to all Spiritual matters as having a distinct Convocation of their own can ever be involved in this Schism by the deprivation of the Arch Bishop and Bishops of the Province of Canterbury And pray also tell me in the next place how all the Members of the two Universities can ever be involv'd in this intended Schism since they owe no Canonical Obedience to the Arch-Bishops of Canterbury or York nor to any other Bishop but only to their Chancellour and the Vice-Chancellour as his Deputy who exercise all Ecclesiastical Jurisdiction within the said Universities and therefore their Church
Communion cannot depend upon the Canonical or Uncanonical deprivation of any Bishops in England I desire you to consider these things as a Canon-Lawyer and give me your answer if you can against the next time we meet and then tell me whether the causes of this threatned Schism be so just and apparent that it is like to involve so many of the Wisest and most Considerate of the Clergy and Laity into open separation from the Church as you suppose it will not but that I will grant there be many of the Clergy of this Opinion who as well out of Conscience as for their own interest will be contented to set up and encourage such a separation thereby to make themselves heads of separate Congregations when they shall be deprived of their present Benefices and Imployments upon their refusal of this Oath M. I must confess I never heard so much said upon this head before and if you could make out to me all the matters of fact you have now instanced in I know not but that I may come over to your Opinion tho' let me tell you this is the first time that ever you can shew me that any Bishops were deprived in England by the meer Lay Authority of the King and a Great Council or Convention of the Laity whilst they continued of the same Church-Communion with those Bishops for as to your instance of the Popish Bishops deprived by Parliament in the Reign of Queen Elizabeth I doubt you will find it does not come up to the Point in question since the Queen and Parliament having then newly declared themselves Protestants did not own them for true and Orthodox Bishops and consequently thought they might justly depart from their Communion and upon the same account might deprive them and the Queen might then nominate others of their own Religion in their Places F. I cannot but differ from you in the matter of fack as you now relate it for Queen Elizabeth and the Parliament were when they made this Act so far from being separated from the outward Communion of the Church of Rome that Mass was then said and the Romish Priests still continued in all the Parishes and Churches of England and yet they still maintain'd an outward Communion though their Bishops were deprived by the Civil â—ower and others ordain'd in their stead So that it is plain the Papists themselves had then no notion of this new cause of Schism by reason of their Bishops being Uncanonically deprived nor indeed can we well vindicate the Honour or Legality of our Reformation if the Protestant Bishops who succeeded in the places of those who were thus deprived by Act of Parliament could not be Canonical because their Predecessors deprived by the Lay Power were still alive But admit this was the first time that ever it had been thus practiced yet if it were then reasonable and done upon good grounds I cannot see but when the necessity of the Church and State require it and that the Clergy in Convocation are so wilfull and wedded to some old false notions as not to consult the peace and safety of the Church and Kingdom why the King and Queen who are acknowledged to be Supream over Ecclesiastical as well as Temporal Persons may not together with the two Houses of Parliament make the like Law now as was done in the first of Queen Elizabeth for a less matter for none of those Popish Bishops though they believed Queen Elizabeth to have no better than a Parliament Title to the Crown yet ever denied her to be their lawful and rightful Queen only they would not own her Supremacy in Spiritual Matters But leaving the farther discussion of this Point to those who better understand it I would gladly know of you what you intend to do and what you would have us do who are like to be made Deputy Lieutenants and Justices of Peace for if as you your self allow there be a necessity that some Civil Government be maintain'd during King Iames's absence I desire to know of you how it can be managed and who shall manage it in case all the Gentlemen of England were of your Principle and should positively refuse the Oath of Allegiance to their present Majesties for if King Iames be never so much our lawful King it is not now possible for us to be Govern'd by him since he is goâ—e and God knows whether ever he may return again since then you cannot have him if you would and that there is a necessity we should be Govern'd by some body And since it is also as certain that those who actually Govern us will exact this or the like Oaths of Allegiance from us as were due to their Predecessors and that no man must expect to enjoy or execute any Place or Office not only of profit but of burthen and charge for the necessary execution of Justice and the maintenance of Civil Government without which we cannot live or subsist without taking this new Oath of Allegiance as the only means to qualifie them for it if then the end viz. Civil Government be absolutely necessary and the taking of this Oath is the only means allow'd of to qualifie men for it this seems as evident to me that taking of this Oath is not only justifiable by Law but by Reason and good Conscience since it is done for the highest and noblest end viz. the publick good of the whole Nation or Common wealth which you grant cannot subsist without some kind of Civil Government amongst us M. I will say something in answer to what you have now alledged concerning the necessity of taking of the Oath in order to the maintenance of some Civil Government without which I grant the Kings good Subjects cannot subsist till his return since I confess this is the strongest Argument you have yet brought all I can say to it at present it that if all your Country Gentlemen and all the Lawyers in England would be so firm in their Loyalty to his Majesty as unanimously to declare that they cannot take this Oath with a safe Conscience the consequence then would be that either the present Usurped Power must be forced to give up the Government to the right owner or else they must at least desist from pressing this Oath upon you F. You know well enough this is altogether a vain supposition since you cannot but be sensible that their Majesties have not only a sufficient force both of Native Englishmen and Foreigners on their side who can force those that should make any opposition to the taking it and that there are also many Fanaticks and Common-wealths Men who not looking upon themselves as at all oblig'd by your notions of Natural Allegiance and the obligations of any former Oath of Allegiance will get into all the Offices and Imployments of the Kingdom to the great prejudice and destruction not only of the Church but the Monarchy it self which is as yet preserv'd tho the Person
that administred it is alter'd so that it would conduce nothing to King Iames's Affairs if all the Gentry and Lawyers of the Kingdom should go about to refuse this Oath which as I have already proved they are also obliged to take by the Law of the Land and also that greater Law of prosecuting the publick good of the Nation to the utmost of their power M. Well since I cannot expect so great firmness of mind and courage from your Country Gentlemen and especially the Lawyers who have been always but too forward to comply with all Governments how unlawful soever and since you who think that you may lawfully take this Oath not only by the Law of the Land which you have interpreted to countenance your Opinion but also from a higher and nobler Law viz. that of the common good of the Nation or Civil Society which I grant must be maintain'd during the Kings absence since you say there is a necessity for it though I am not fully satisfied of the lawfulness of it so far as to take it my self yet will I not absolutely condemn you or any other sincerely and honest men who do only take it out of a good intent to maintain some Civil Government amongst us and also to keeping out the Phanaticks from having any share in it so I hope the Government will excuse me if my Conscience will not give me leave to take it my self since there are enough of you who are free to do it without us so that if I cannot keep that small Imployment I have without taking this new Oath I will freely give it up since as long as I am not satisfied in my Conscience of the lawfulness of it and whatsoever is not of Faith is Sin as the Apostle has truly defin'd it F. I confess you speak very honestly and charitably in this matter and I could wish all those of your Opinion had the like moderation and that they would not condemn of wilful Perjury so many good Bishops Noble-Men Gentlemen and others both of the Clergy and Laity who have been perswaded that they might take this Oath with a safe Conscience and therefore pray however we differ in Opinion about these matters let us maintain the same Friendship for each other as we had before M. Sir I readily embrace so fair and kind an offer and as I hope you will do me what kind offices you can whilst you continue to act under this Government so I will promise to do the same for you when ever the King shall come to be restor'd to his Throne again F. I willingly and thankfully accept the proposal of the continuance of your Friendship since I look upon your dissenting from me not to proceed from any wilfulness or obstinacy but out of a tender Conscience and too great and high a sence of your duty which I must still confess are errours on the right hand and therefore now taking my leave of you shall only desire you to believe me your real Friend and humble Servant M. I hope you think I have the same esteem for you and therefore must always own my self yours FINIS A General Alphabetical INDEX OF THE MATTERS and QUESTIONS Debated in the Thirteen Dialogues OF Bibliotheca Politica LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also many be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. A General Alphabetical INDEX of the Matters and Questions debated in the Thirteen Dialogues of Bibliotheca Politica The Reader is desired to take notice that these Dialogues being written discursively and not determinatively this W. signifies the Question by the word Whether Note D. signifies Dialogue P. Page A ABEL W. Subject to his Brother Cain by Divine Institution D. 2. p. 67. to 70. Abesses often present in Saxon and French Great Councils D. 6. p. 393. Abbots W. all that were anciently summoned to Parliament held in Capite D. 8. p. 556. and how many came to be by degrees omitted Ibid. Abbots and Abbesses sometimes granted aids by themselves D. 7. p. 447. Abdication of the Government W. a King can do it any other way than by some express Act D. 11. p. 813 815 832 to the end Abuses of Governours their several kinds D. 3. p. 161. to 164. Kings Acts Illegal W. also Inauthoritative D. 9. p. 644. to 649. Acts of Parliament W. they to hold good tho' not called by the King D 12. p. 894. to 896. Adam W. he had conferred on him by God the Dominion of the whole Eaath and of all Creatures therein D. 1. p. 37. to 39. W. By being a Husband and Father he was also absolute Lord over Eve and all her Posterity Ib. p. 12. to 25. Adel and Adelman their signification among the Saxons and Danes D. 6. p. 374. Alderman its signification among the same Ib. p. 375. Aldermen of Countries who D. 5. p. 370. King Alfred his Testament D. 10. p. 721. St. Albans Burrough Pâ—tition to King Edw. the Second D. 8. p. 576 to 578. Allegiance W. due by Law to a King de facto D. 13. p. 905. to the end The word Alij in antient Statutes and Records W. it signifies only the lesser Tenants in Capite D. 7. p. 491 493 518. 523. Arch-Bishop of Canterbury hath been sometimes Elected in the Great Council of the Kingdom D. 8. p. 570 571. Standing Army in time of Peace against Law D. 9. p. 638 639. Great Assembly at Runne-Mead W. it was a Great Council of the whole Kingdom p. 453 454. Attainders of Treason against Kings de facto have always held good till repeal'd D. 13. p. 910. Authority of Parliament the Phrase how antient in our Statute-Books D. 5 p. 334. to 340. B Babel when Built D. 2. p. 76 77. Banneret its ancient signification D. 7. p. 540. Baro. the Title W. it antiently signified no other Person than a Baron of Parliament D. p. 402. to 407. Barones Angliae W. Tenants in Capite only Ib. p. 394 p. 406. to 411. Barones Comitatus who they were antiently D. 10. p. 743 744. Barnstaple Burrough its â—lea to send Burgesses to Parliament by grant from King Athelstan D. 8. p. 605. Bishops W. they derive their right of sitting in Parliament from the Saxon Kings D. 5. p. 366. to 368. They sometimes granted Aids by themselves D. 7. p. 447. Seven Bishops W. their Petition to King James against his Declaration and his Commitment of them were justifiable by our Laws D. 12. p. 823. to 830. Bishopricks and Abbeys anciently conâ—erred by the King per Annulum Baculum D. 5. p. 36. 38. Eldest Brother W. Lord of all Brethren by the Law of God or Nature D. 2. p. 65. to 89. Bracton that passage in his Book interpreted viz. Rex habet Superiorem Deum Legem D. 10 p. 701. Burroughs W. any of them send Members to Parliament by prescription D. 6. p. 382 383. D.
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
p. 539.540 King how far Gods Lieutenant D. 9. p. 663. W. His Authority is different from his Personal Will and Commands Ib. p. 645. to 648. His Person how far Sacred and Inviolable Ibid. p. 638.651 to 657. Kings Commission how far and in what cases resistible notwithstanding the Declarations of of the two first Parliaments of King Charles the Second Ib. p. 636. to 655. W. He hath any Authority to act against Law Ib. p. 644 to 649. Kings Commissions how far good in Law Ib. p. 640. Kings since the Conquest W. endued with the sole Legislative Power D. 5. p. 338 to 345. D. 9. p. 650 651. hath no Peer or Equal in the Kingdom D. 5. p. 354. His presence W. it will authorize all illegal actions so as to render them irresistible D. 9. p. 653 654. His Officers in what case resistible Ib. The Kings being irresistible how far different from being unaccountable D. 9. p. 644 645. Kings of England W. absolute and unaccountable or W. limited by Law D. 10. p. 693 to 698. Most High in their State-Royal when they appear in their Great Councils or Parliament D. 9. p. 643. The first Eight Kings after the Conquest never were so stiled till after their Coronations D. 12. p. 840. to 858.895 King though he have no Peer yet he had anciently Comites or Companions D. 5. p. 364 365. W. He can at this day abdicate or forfeit his Crown by the wilful violation of our fundamental Laws D. 10. p. 694 to 709. D. 11. p. 832 833. Kingly Power the end of its Institution in this Kingdom D. 5. p. 349. King de facto or for the time being W. within the Statute of the 25th of Edward the Third and whether Allegiance be due to him by the Statute of the Eleventh of Henry the Seventh D. 13. p. 905. to 940. What constitutes a legal King in England D. 12. p. 889 890. Kingdoms of Judah and Israel W. when given by Gods appointment it gave the issue of that King a like Divine Right to succeed D. 2. p. 99 100. Kingdoms Patrimonial and Hereditary their difference Ib. 84 85. Knights of Shires frequently stiled Magnates and Grantz in Ancient Records D. 6. p. 424. vid. Append. W. They were anciently chosen out of the Tenants in Capite and none others p. 425. Knights Citizens and Burgesses W. the first Writs of Summons of them that can be found is the 49th of Henry the Third D. 7. p. 519. W. This was the first time that they were summoned Ibid. p. 525 to 530. W. They were summoned no more till the Eighteenth of Edward the First Ibid. p. 522. to the end D. 8. p. 559. to 563. p. 571 to 576. L Lancaster W. that Families pretended Title to the Crown claim'd by Inheritance D. 12. p. 861 862. Laws how far they oblige Princes according to Sir R. F's Principles D. 2. p. 120 121. Laws Imperial of all Goâ—vernments W. they require a Passive Obedience or Non-Resistance in all cases whatsoever D. 3. p. 149.154 Law of Nations W. it differs from the Law of Nature D. 1. p. 26 to 31. Laws of English Saxon Councils the Titles to most of them D. 5. p. 314. to 319. Laws of Normandy W. the same in most things with those of England D. 10. p. 752.753 Laws fundamental of the Kingdom W. there are any such things and where to be found D. 9. p. 666. to 669. D. 10. p. 704. D. 11. p. 810. to 814. Law of Edward the Confessour concerning the Kings ceasing to be so if he prove a Tyrant and W. it be genuine or not D. 10. p. 705. to 712. Private League with France what Reasons there are for and against its reality D. 11. p. 800. to 802. Liberi Homines and Liberi Tenentes mentioned in Ancient Statutes and Records who they were anciently D. 6. p. 419.426 to 431. W. They were only Tenants in Capite or chose by Military service to them D. 7. p. 449. to 453.514 M Magna Charta W. obtained by Rebellion D. 3. p. 186. Magnates W. the Commons were not sometimes comprehended under that Title D. 6. p. 372.396 397. Queen Mary W. she had any Title save by the Statute of Henry the Eighth D. 12. p. 872. Our present Queen Mary W. she hath a right to succeed upon her Fathers abdication Ib. p. 853. 884. Maud the Empress why she never stiled her self Queen of England notwithstanding fealty had been sworn to her D. 12. p. 846. Several Maxims in the Civil Law considered and explained D. 1. p. 17 18 21.30 The ancient Members of the German Diets or Great Councils D. 6. p. 375. The Milites mentioned in ancient Statutes and Records who they were D. 6. p. 431 432. W. They were only Tenants in Capite or any other Tenants by Military or Socage service D. 7. p. 481.489 490. Mischiefs that may befall a People from their resistance of the Supream Power considered D. 3. p. 184. to 189. Monarchy W. of Divine Right from any Precepts or Examples in the Old or New Testament D. 2. p. 130 131. Or from Adams Patriarchical Power D. 1. p. 19. to 26. Monarchies or Commonwealths which are most Tyrannical D. 2. p. 110.111 Mixt Monarchy W. it be a Contradiction D. 5. p. 345. to 348. Sim. Montfort W. he first called the Knights Citizens and Burgesses to Parliament in the 49th of Henry the Third D. 8. p. 596.597 Moses and Joshua W. Monarchs over the Children of Israel and Successors to the Patriarchical Power D. 2. p. 92. to 100. Multitudo Cleri Populi the signification of those words in our ancient Histories D. 8. p. 569. to 571. N W. A whole Nation may resist the Supream Power in some Cases of extremity but not particular Persons D. 3. p. 146. to 150.161 162. D. 4. p. 236. to 239.272 to 275. Negative voice W. the two Houses of Parliament have it not in some Cases as well as the King D. 5. p. 341. Noah W. he was sole Proprietor of the Earth or else was Tenant in common with his own Children D. 1. p. 74 75. W. His Grandsons were all alike Princes over their several Families Ib. p. 75. to 81. W. from Noahs Seven Precepts may be deduced the Law of Nature D. 1. p. 36 37. Nobilis Nobilitas the several significations of those Titles D. 6. p. 374 388.410 W. Meer Commoners were not often comprehended under the Title of Nobiles Ib. 396 397. Non Obstantes the Clause when first inserted in our Kings Charters D. 11. p. 820. Non Resistance W. the Doctrine tend to make Princes better or else more Tyrannical to their Subjects D. 2. p. 116 117. Normandy W. its Dukes were absolute or limited Princes D. 10. p. 727. O Oath of the King at his Coronation how far obliged according to Sir F's Principles D. 2. p. 122.123 It s ancient form according to the Mirour D. 5.364 W. The taking the Coronation Oath renders the Crown forfeitable if it
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
Council of all the Layety were not summoned at all and so Vice versa the Common Council of the Kingdom often met when the Synod of the Clergy was not convened as appears by the most ancient Writs of Summons to the Bishops we have left us as particularly The first Writ of this kind that is upon the Rolls viz. That for the Bishops which Mr. Prin has Printed in the First Part of his Parliamentary Register in the 6th of K. Iohn and which I have cited from the Drs. Answer against Mr. P. at our last Meeting in which Writ tho' I grant there is a Clause for Summoning the Abbots and Conventual Priors yet there is none for the inferior Clergy But in the next Writ which the same Authors have likewise Published viz. That to the Archbishops of York there there is no Clause at all for Summoning any of the Clergy as such tho' it is true there is underneath an Eodem modo scribitur omnibus Episcopis Abbatibus c. Comitibus Baronibus which shews that this Writ was not to Summon them in their Spiritual but Temporal Capacities So likewise in the next Writ of Summons to Parliament we have left us on the Roll which is cited in Mr. Selden's Titles of Honour as also in the same Parliamentary Register and in Dr. B. against Mr. P. viz. That of the 49th of Henry the Third to the Bishop of Duresme without any Clause of Summons to the Clergy whether Abbots or others So likewise in the next Writ of Summons that is left us viz. That of the 23d of Edward the First Published also by Mr. Prin to the Archbishop of Canterbury in which there is no Clause of Summoning any of the Clergy and tho' there immediately follows another Writ of the 23d of this King in which I grant there is this Clause of Praemunientes Priorem c. viz. The Prior Chapter and other of the Clergy of his Diocess to appear in Parliament yet that they were no necessary part of it but only of the Convocation appears by the rest of the Writs of Summons to Bishops which Mr. Prin has also given us in that Chapter all which if you please to peruse you will find that in near 200 Writs to Parliaments or great Councils the Clause of Praemunientes Clerum is to be found in scarce half of them which shews that the summoning or omitting them depended wholly upon the King's Pleasure and so were no constituent part of the great Council or Parliament as you suppose they were under the first Norman Kings for then sure they would not have been omitted to have been constantly Summoned in all Parliaments as well as the Bishops and Abbots But to come to your next Argument from the numerousness of these Assemblies which you say could not be properly called Numerosa or Infinita Multitudo whereas all the Tenants in Capite as well Ecclesiasticks as Lay-men did not amount in all to 800 there may be an allowance made for this to the Monkish way of Writing of those times who might call such a great or more than ordinary Assembly of the Clergy and Tenants in Capite an innumerable or infinite Multitude when indeed they were but few more than our Lords and Commons are at this day F. I pray Sir give me leave to Answer what you already said before you proceed any farther because what I have to reply to it will be pretty long in the first place you cannot with any reason if you better consider of it deny that the Clergy as well the Superior as Inferior did before your Conquest as well as long after make but one Assembly or Body of a General Council tho' sitting in several Places as the Lords and Commons do at this day for the words in the Old Book of Ely are Adunato Concilio Cleri Populi which is to be rendred the Council of the Clergy and Layety being united and joyned together as I already shewed this word Adunato does always signifie as also by the Confirmation of that Charter of King William's to the Abby of Westminster and to which tho' a Matter of meer Temporal Concernment all the Clergy as well as Layety gave their joynt Consents as appears by the Conclusion of that Charter as also to that of K. Stephen but now cited which they could never have done had they not then made a part of the same General Council or Assembly Having proved to you that the inferior Clergy did anciently make a part of the General or Common Council of the whole Nation I shall now proceed to answer your Objection 'T is true that for a great part of some Kings Reigns for want of the Writs of Summons to the Superior as well as to the Inferior Clergy we cannot certainly tell tho' we may presume it from the general words of the Historians whether the Inferior Clergy were Summoned or not yet this I think I may boldly averâ— that wherever any ancient Author makes mention of the Clerus and Populus in general being present at any such Common Council it must necessarily mean not the Bishops and Abbots or the Superior Clergy alone or the great Lords and Tenants in Capite onely but those and the Representatives of the whole Nation both Clergy and Layety taken together as I think I have sufficiently made out Nor is your Objection considerable from that writ of the 6 th of King Iohn that no Inferiour Clergy were summoned because onely the Abbots and Priors are mentioned at the end of it to this I answer that granting it to be a writ of Summons to a Common Council of the Kingdom which is not yet proved the omission of the Inferiour Clergies being summoned is no cogent Argument to prove they were not there since for ought as you and I know there might be other writs issued to the Inferiour Clergy distinct from those to the Bishops and Abbots Which last used to have distinct writs to each by themselves and I may as well suppose these writs to be lost as you do that all the general writs to the smaller Tenants in Capite who were no Barons and yet were to be all summoned according to King Iohns Charter are all lost and as for the Abbots and Priors mentioned at the end of this writ of King Iohns they were such as held onely in Capite or else such as did not if the former this might be onely a Council of Tenants in Capite and none other of which I grant there were many held in those times upon occasion of Wars Scurages and other matters but if by these Conventual Abbots and Prioâ—â— summoned by this writ you will mean all Abbots and Priors of whatever Tenure then it appears plainly that this great Council consisted of many other Ecclesiasticks than what held in Capite and if so why might not the Inferiour Clergy as well make a part of it But as for your next Authority the writ
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
of Knights of Shires I will not dispute it farther with you since it is a Point of your Common Law in which I confess my self but meanly skilled but I shall take farther time to advise with those that know better in the mean time as for the Cities and Burroughs let them have appeared when you will their coming to Parliament could not be so ancient as before the time of Richard I. much less the Conquest as you suppose since Mr. Pryn hath in the same second part of this Parliamentary Register traced the summoning of the Burroughs to their very Original and proved it could not be ancienter then the 49th of Henry the 3d. I shall here contract his Arguments and give you them as I did the former First He here proves that there were never but 170 Cities and Burroughs who sent any Members to Parliament of which 170 in his Catalogue nine of them never had but one or two Precepts and others but four Precepts of this Nature sent them upon none of which Precepts the Sheriffs made any returns of Burgesses as these Ballivi Libirlatis nullum mihi dederunt responsum or nihil inde secerunt attest whereupon they never had any more Precepts of this kind sent them to this Day Christ-Church in Hampshire onely excepted which of late years hath sent Burgesses to Parliament so that in Truth there were only 161 Cities and Burroughs in England that ever sent Members to Parliament during all the precedent Kingâ— Reign viz. From the 26th of Edward I. to the 12th of Edw. the 4th Secondly That 22 more here named of these 161 never elected and returned Burgesses but once and no more during all the said time Thirdly That many more of these ancient Burroughs here named never sent Members some of them more then twice others thrice others four others five others six others seven others eight times and Lancaster has but 13 Elections and Returns of Burgesses and no more during all the above mentioned Reigns Fourthly That altho some of these Burroughs here named who seldom sent any Burgesses tho they were summoned by the Sheriffs Precepts to Elect Burgesses without any great intervals of time to six or seven Succeeding Parliaments yet most of them had along discontinuance of time some of above 200 others above 300 years distance between those few respective Returns of which he here gives you several Instances and referrs you to his precedent Catalogue of Returns for the proof of it So that there were but 112 Cities and Burroughs taking in the Cinque Ports and all who senâ— Members to Parliament in the Reign of Edward I. seven of which made onely one return and no more for ought I can discover before or after Edward 1st Reign till of very late Years Yet that in Edward the 2ds Reign there were Precepts issued by the Sheriffs and returns of Burgesses for 19 new Burroughs here named which for ought I can discover never elected any Burgesses before Fifthly That under this long Reign of Edward the 3d. there were Sheriffs Precepts issued to 19 new Borroughs returns made upon them to serve in Parliaments or great Councils who never sent any Members before and Precepts to more that made no returns at all thereupon as for the Cinque Ports of Dover Romney Sandwich Winchelsey Hastings Hâ—the and Rye though there be no Original Writs for or returns of their electing and sending Barons to Parliament now extant before the Reign of Edward the 3d yet it is apparent by the Clause Rolls that they sent Barons to Parliament in 49th of Henry and during the Reign of Edward 1st and 2d of which more anon Sixthly That King Richard the 2d Henry the 4th and Henry the 5th created no new Burroughs at all neither were there any Writs or Precepts issued to or Election of Citizens or Burgesses by any new Cities or Borroughs but such as elected them before their Reigns Seventhly That about the midst of King Henry the 6th long Reign there were Precepts issued to and returns made by five new Burroughs and no more which never sent Burgesses to Parliaments before viz. Gatton in Surrey Hâ—ytesbury Hyndford Westbury and Wootton Basset all in Wiitshire yet very poor inconsiderable Burroughs tho they elect Burgesses at this day That during Edward the 4th Reign there was one new Burrough here named which began to send Burgesses to Parliament under him though it never sent any before F. Well but how came this about that so many new Burroughs were made in some Kings Reigns and few or none in others â— and so many omitted that had served before in other Parliaments M. Pray read on and you will see this Author gives us a very good account of that and impures it to two Causes First The Partiality and Favour of the Sheriffs and the Ambition of the Neighbouring Gentry who desired to be elected in such new Burroughs Secondly The meer Grace and Favour of the King who by divers Charters to new Corporations have given them the Priviledge of sending Burgesses to Parliaments For Proof of which pray see what this Author here farther says It is evident by the precedent Sections and Catalogue of ancient Cities Burroughs Ports and their returns of Writs and Election before specified with these general Clauses after them Non sunt aliae or ullae Civitates nec Burgi in Balliva mea or in Comitatu praedicto praeter c. as you may see by the return of the Sheriff of Bucks Anno 26 of Edward I where he denies there were any Cities or Burroughs in his whole County and yet the very next Parliament but one within two years after the Sheriff of Bucks returns no less then three Burroughs viz. Agmundesham Wycombe and Wendover with the Burgesses Names that were returned so that the 78 new Burroughs here named were lately set up in the Counties since Edward the 4ths Reign by the Practice of Sheriffs and the Ambition of Private Gentlemen seeking to be made Burgesses for them and Consent of the poor Burgesses of them being courted and feâ—sted by them for their Votes without any Charters from the King and are all me in poor inconsiderable Burroughs set up by the late Returns and Practices of Sheriffs And tho others may conceive that the Power of our ancient Burroughs or Cities Electing and sending Burgesses and Citizens to our Parliaments proceeded originally from some old Charters of our Kings heretofore granted to them and to which Opinion I once inclined yet the Consideration of the new discovery of the old Original of Writs for Electing Knights Citizens and Burgesses I found in Caesars Chappel hath rectified my former mistake herein and abundantly satisfied me that neither bare ancient Custom or Prescription before or since the Conquest not our Kings Charters but the Sheriffs of each Counties Precepts and Returns of Elections of Burgesses and Citizens for such Burroughs and Cities as they thought meet by Authority
and Power granted to them in and by this general Clause in the Writs of Summons issued to Sheriffs for every County before every Parliament enjoyning them in these Words Tibi praecipimus firmiter injungentes quod de Comitatu praedicto duos milites de qualibet Cititate duos cives de quolibet Burgo duos Burgesses at discretioribus c. sinâ— dilatione Eligi eos ad nos ad dictos diem locum venite facias c. By vertue of which general indefinite Clauses used in all Writs of Summons ever since 23d of Edward I. without designing what particular Cities or Burroughs by Name within each County the Sheriff should cause to Elect or send two Citizens or two Burgesses but leaving it wholy to each Sheriffs Liberty and Discretion to send the Writ directed to him to what Cities and Burroughs he pleased thereupon every Sheriff used a kind of Arbitrary Power in the Execution of this general Clause according as his Judgment directed or his Assertions Favour Partiality Malice or the Sollicitations of any private Burroughs to him or of Competitors for Citizens or Burgesses places within his County swayed him this is most apparent by some Sheriffs in several Counties returning more Burroughs and Burgesses then their Predecessors others fewer some omitting those Burroughs returned by their Predecessors others causing Elections and Returns to be made for such new Burroughs which never elected or sent any before nor after their Sherivalties as is evident from the Returns Annis 28.33 E. 1. and 34. of E. 3. for Divâ—n Anno 26. E. 1. for Yorkshire Anno 33 E. 1. for Oxfordshire Anno 28. of E. 1. for Hampshire Annis 33. and 34. of E. 3. for Sommerset Annis 25.27 and 28. H. 6 for Wilts c. So that the first Writs or Memorials of any extant on Record for electing Knights Citizens and Burgesses to come to Parliament are those of 49th of Henry 3d but these Writs onely commanded that the Sheriffs cause to come two Knights c. of each County and the like Writs were directed to the Cities of London Lincoln and other Burroughs of England to elect two Citizens and two Burgesses for each of them and the rest of the Cities and Burroughs in England the like Writs were also issued to Sandwich and the rest of the Cinque Ports without expressing their Names or Number in each County and this form I conceive says Mr. Pryn continued till 23d of Edward I. when the aforecited general Clause authorizing and intrusting every Sheriff to cause two Citizens and two Burgesses to be elected c. out of every City and Burrough in his County was first put into the Writs by Authority and Colour whereof every Sheriff sent Precepts to what Cities and Burroughs of his County he pleased F. I have with Patience heard this long History of Mr. Prins concerning the Election of Citizens and Burgesses from which I must notwithstanding make bold to differ for tho I own him to have been a man of great Learning and Industry in matter of Records yet I doubt he was often too quick in taking up of Opinions upon slender grounds therefore for the answering of him I shall first shew you the improbability of his Suppositions and in the next place shall make use of no other Confutations then what his own Book will afford us as to the Writs of Summons Returns and other things he lays so much stress upon in the first place for the Notion of Sheriffs sending Precepts to what Cities and Burroughs they pleased and consequently making as few or as many send Members to Parliament as they would that this was not so at first is evident from those very Writs of 49th of Henry the 3d by which it appears that they were not then directed to the Sheriffs for any more then to the Counties but as for the Citizens and Burgesses and Barons of the Cinque Ports they were then directed to themselves and he also confesses that this continued so from that time till the 23d of Edward I. so that all this while being about 28 Years it seems the Nomination of what Cities and Towns should send Members to Parliament did not depend upon the Will of the Sheriffs but upon somewhat else and I have asked you once tho without receiving any answer what Rule Simon Montfort went by to tell what Cities and Burroughs were to send Members and what not since the Words are onely in general de quolibet Burgo c. and therefore pray answer me now if you can M. I conceive in the first place as for the Cities Simon Montfort sent to those that were anciently esteem'd so viz. such as had Bishops Sees annext to them such as London Lincoln and particularly named in these Writs and others of the same rank and as for the Burroughs tho we have not the returns of them left us yet I suppose they were such Walled or other Towns as were of some considerable Note in England such as he thought were most proper for his turn F. That this could be no Rule appears by this clear Proof First That neither Coventry and Litchfield tho the Sees of the Bishops were not counted Cities in the time of Edward the first nor long after nor yet Ely for it appears by the Lists that Mr. Prin hath given us that it never sent Burgesses but only once and that to a great Council till of late years So that the Sees of the Bishops was it seems no general rule to make Places capable of sending or not sending of Citizens to Parliament And in the next place as to Burroughs that is pure Imagination that none but considerable or walled Towns sent any Burgesses at first whereas in the first List of returns which Mr. Pryn has here given us of the 26th and 28th of Edward I. which are the first extant for ought I know except those of 23d which I have never yet seen besides the Shire Towns of the Counties there are returns of a great many small Burroughs which never had any Walls nor yet for ought as we can find had any thing remarkable to make them be pircht upon to send Burgesses more than others but of these I shall speak more by and by onely shall remark this much that there must have have been some other Rule besides Montforts own Will for all this and what this rule could be unless an ancient Prescription in those Towns to send Members I desire you or your Dr. would shew any good Reason or Authority to the contrary And after the 23d of Edward the I. when Mr. Prin supposes that the Sheriffs by this general Clause in the Writs began to take upon them this new Authority of sending Precepts to and making Burroughs of what Towns they pleased this could not in the first place extend to such as were before that Counties of themselves such as London York Bristol c. nor yet such as were Ancient and
of Government can have any for that which is done by a person who has no Authority can lay no obligation upon us whence then has he this Authority since he has no legal Right to the Throne not sure from the presumed consent of the King de jure which is nonsence to suppose but from the possession of the Throne to which the Law it self as well as the Principles of Reason have annexed the Authority of the Government M. I am so far of Bishop Sanderson's Opinion in his Case concerning taking the Engagement that when Usurpers or Kings de facto have taken upon them the Government they are obliged to administer it for the common good and safety of the People and as far as that comes to we are also obliged to live peaceable under them and to yield obedience to them in things absolutely necessary for the upholding civil Society within the Realm such as are the defence of the Nation against Foreigners the furtherance of publick Justice the maintenance of Trade and Commerce and the like But sure this is no argument for transferring our Allegiance from the lawful King and his Heirs whilst they are alive and therefore I must still suppose that this Statute of the 11th of Henry the VIIth can do no service to the present Government because it s vertually repeal'd by several Statutes as first by the 28th of Henry the VIIIth concerning the Succession of the Crown wherein it is expresly provided that if any of his Children should Usurp upon each other or if any of those to whom he should bequeath the Crown by his last Will or Letters Patents should take the Crown in any other manner than what should be thereby limited that such Children or others should be guilty of Treason for so doing Now it is plain such Treason must only have been committed against the right Heir and consequently the person so taking the Crown was not to be looked upon as King de facto It is also vertually repealed by the Statute of 1 o Elizabeth by which we are obliged to swear to be true to the Queen her Heirs and Lawful Successors i. e. those who have a right to the Crown by proximity of Blood as also by the Oath of Supremacy Enacted in the 4th of King Iames by which we are likewise sworn to bear true Allegiance to his Majesty his Heirs and Successors from which Oaths I argue first that if we are sworn by Act of Parliament to pay Allegiance to the Heirs of a King de fure who never were in possession than a fortiori to a King de jure who besides the legality of his Title had been actually recognized as Sovereign and enjoy'd an uncontested administration of the Regal Power Secondly If our Laws oblige us to swear subjection to the Heirs c. of a Rightful Prince than by undeniable consequence we are bound not to translate our Allegiance to those who are unjustly set up by the People for without all question the words Heirs and Lawful Successors were made use of on purpose to secure the hereditary Rights of the Monarchy and to prevent all Usurpations upon the direct Line And since by vertue of that Statute which framed the Oath of Allegiance and Supremacy we are not to acknowledge any pretended Governours to the prejudice or disinherison of the Heirs of the King de jure then most certainly we ought not to do this in opposition to the King de jure himself so that now we can have no pretence to make Right the necessary consequence of meer possession of the Crown any more than in private Estates F. In the first place I agree with you in what you have said that Kings de facto are to be obeyed in all things tending to the publick good of Society but then it will also follow that Allegiance is due to them from that great Law of prosecuting the same publick good since it were much better that Kings de jure should lose their Right than that a Nation should be involved in a long and cruel War to the weakning and impoverishing thereof and to the destruction of so many thousands of ordinary as well as Noble Families as was seen in the long Civil Wars between the Families of Lancaster and York so that I cannot but think it would have been much better for this Nation if that Family had continued to Govern us unto this day rather than that Edward the IVth should have obtained the Crown with so great a destruction of the People of this Nation and so great cruelty as was then exercised upon King Henry the VIth and the Prince his Son as you may read in the History of those times But I come now to answer the rest of your Arguments whereby you will prove this Statute of the 11th of Henry the VIIth to be vertually repeal'd and here by the way I must tell you Gentlemen of this Opinion that I cannot but admire your wondrous sagacity in discovering this Act to be repeal'd when my Lord Coke and all the rest of our Lawyers do still suppose it to be in force but indeed the reason you give for it is not urged like a Common Lawyer and therefore I think it will signifie little for though I grant that an Act of Parliament may be vertually repeal'd by a subsequent Act yet it is only in such Cases where they are absolutely contradictory and inconsistent with each other but if they are not so an Act of Parliament can never be said to be vertually repeal'd and therefore I shall now show you that notwithstanding the Statute of Henry the VIIIth and the Oaths of Supremacy and Allegiance you have now mention'd this Statute may very well continue in force and unrepeal'd First as to the Statute of Henry the Eighth whereby it was declar'd Treason for any one of his Children upon whom the Crown was setled to Usurp upon each other yet that part of the Statute which makes this Treason was repeal'd by the first of Edward the the Sixth and by the first of Queen Mary or admit it had not been so yet this Clause in the Statute of Henry the Eighth would haue been absolutely void in it self against any such Usurper when actually possessed of the Crown since it was held by all the Judges in the Case of Henry the Seventh who at the time of his coming into England stood attainted by Act of Parliament that this attainder need not be reversed since Possession of the Crown takes away all precedent defects But as to the Statutes of the first of Queen Elizabeth and the fourth of King Iames by which the Oaths of Allegiance and Supremacy were Enacted I conceive neither of these Oaths can amount to a vertual repeal of this Act for though I grant one end of these Oaths may be to secure the right of the King or Queens Heirs by lineal descent yet it will not therefore follow that a King de facto