to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
ordered and disposed of all publick Affairs conferr'd Offices and Bishopricks as if they were lawful Kings before your pretended Election or the ceremony of their Coronation and also had Ambassadors sent to them from Foreign Princes as appears from your own Quotation out of Hoveden Of those that were sent by the King of Scots to King Iohn before he was crowned though it is true he there stiles him no more than Duke of Normandy And this also may further appear by that passage I have cited out of the same Author that King Richard had Fealty Sworn to him as King of England by all the Freemen of England before he was Crown'd and you your self acknowledge the same Oath to be taken by the same persons to King Iohn before he came over to take the Crown And Lastly To make it yet plainer that there was no Vacancy or Inter-regnum in all these Successions you have mention'd consult what Chronologer you please or look into the most ancient Tables of the Succession of our Kings of England or into our old Printed Statutes or Law Books and you will still find the Reign of the Suceeding Prince to commence from the Death of his next Predecessor without any Vacancy or Inter-regnum between And these I think to be a great deal surer marks of their succeeding to their Royal Dignity by a pretence at least of a right of Inheritance from their Father or Brother rather thau this fancy of yours that you lay so much stress upon That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over they were not so indeed And I hope this may serve to satisfie this mighty Objection F. I must beg your pardon if I still declare my self not satisfied with your answers for though I grant that if this Argument of the Historians not stiling them Kings had stood single without any thing else to support it that your answers might have signified something But if you please better to consider it you will find that of these Princes taking in William your Conqueror claimed as your self must acknowledge not by any Hereditary right but by the Testament of the deceased Predecessor and if so where was your setled right of Succession by right of Blood Secondly It is likewise as plain that these four were never admitted or acted in England as lawful Kings till those Testaments were confirmed by the Election of the Great Council before whom they declar'd their Rights And till this was done how the Throne could be otherwise than Vacant I cannot for my Life conceive But as for two of them whom you call downright Usurpers viz. Henry the I and King Stephen it is certain they could have no colour of a Title till their Elections and if not till then and that neither your next Heir of the Crown nor yet they themselves took upon them the Title of Kings Was not this a Vacancy of the Throne in the mean time Suppose that time to have been but for the space of three or four days as it was after the death of King William Rufus In the next place pray consider that upon the death of every one of these Princes we do not find the Great Council of the Kingdom which still assembled to Elect the Successor was ever call'd in their names but met by their own Inherent Authority for how could they be summon'd by the King before he took that Title upon him which as your self are forced to acknowledge he never did till after his Coronation Lastly Pray remember farther that whoever was thus Elected and Confirm'd by the Great Council whether he was next Heir by Blood or not was always looked upon as Lawful King and has always passed for such in all our Chronicles and Laws and not those that claimed as the right Heirs by Blood and if this be not sufficient to prove that these Princes had no true and compleat right to the Crown till this Election was past I desire you would shew me my mistake These things premis'd I think it will be very easie to reply to every one of those answers you pretend to have made to my Query Therefore as to your First That they were really Kings before their Election or Coronation because they order'd and dispos'd of all publick affairs I do not deny but that some of them who Succeeded either as Heirs by Testament or by right of Blood might do many publick Acts by reason that they looked upon themselves as Heirs Apparent to the Kingdom and whom the Great Council I grant could not without high Injustice set aside and upon this account they might also receive Ambassadors from Foreign Princes in Affairs relating to Peace or War that they might know how to deal with them or what to expect from them after they were setled in the Throne yet that they sent not to them by the Title of Kings appears by that passage I cited out of Hoveden but I defie you to shew me any one instance that any of these Princes above mention'd ever took upon them to exercise any of those Prerogatives of Sovereign Power such as making War or Peace Enacting Laws Coining of Money before their Election and Coronation which though in some of them was done both at once yet in others it appears plainly to have been at different times and not upon the same day as it happen'd in the case of Henry I. whose Election was at Winchester upon Saturday and his Coronation was not till the next day as also that of Henry the 3 d. whose Election was upon St. Simon and Iude's Day but his Coronation not till the day after But as for your next reply which I grant to have been the strongest you have made that King Richard I. and King Iohn had both of them Homage and Fealty sworn to them as Kings by all the Freemen of England before they were Crowned this were a material argument if it were made out as I think it cannot for in the first place the bare swearing of Homage and Fealty to a Prince doth not make him immediately King though I grant it might give him in that Age a right to be looked upon as Heir Apparent to the Crown thus Henry the I. made all the Lords and Great Men of England to swear Homage and Fealty to Prince William his Son and so after his being drown'd to the Empress Maud his Daughter which was the true reason why she looked upon her self afterwards as Heiress to the Crown so likewise King Stephen a little before his Death at the great Council I have mention'd caus'd all the great men of the Kingdom to Swear Homage and Fealty to Henry Duke of Anjou as his immediate Successour so that you see this swearing of Fealty was in those days often perform'd â—efore the persons that received it were Kings indeed and so I believe it was done in both those instances you now give me for though I
other Now this was done some time before he Married with the Princess Elizabeth for as soon as this Act was made the Commons requested the King to marry Elizabeth the Daughter of King Edward the fourth that by God's Grace there might be Issue of the stock of their Kings as their own words were and that this was rather to preserve the Blood Royal than to give any new confirmation to his Title appears from hence that there was never any other Act after the Marriage to declare the right of the Crown to be in the King and Queen or so much as to entail it on the issue of their Bodies so that it is plain he enjoy'd it not in his Wives but in his own right since he held it after her death by vertue of this Statute which plainly shows that in the judgement of that Parliament the House of Lancaster was lookt upon to have the better Title And though it is true that the King procured the Pope's Bull now in the Cotton Library to strengthen his Title threatning all those with Excommunication that should offer to rebell against him yet even that Bull tho' his right by Inheritance and Conquest be first mentioned concludes with his Title by the Election of the Prelates Nobility and People of England and the Decree or Statute of the three Estates in their Convention call'd the Parliament as this Bull it self expresses it M. I must confess you have told me more of these matters than ever I heard of before for I always thought that there had been no Act of Settlement upon King Henry the VII th until after his Marriage with the Princess Elizabeth for till then I look upon him as an Usurper upon her right as he was also after her death upon his Sons successively so that if you will have my Opinion I conceive that this Statute being made before he had a lawfull right to the Crown is wholly void as is also that of the repeal of the attainder of King Henry the VI ths for the same reason But let his Title be what it will it is ceâ—â—ain his Son King Henry the VIII th Succeeded to the Crown as Heir rather to his Mother than his Father and so was in by remitter but as for King Edward the VI th he was undoubted Heir by right of blood as being the only Heir Male to his Father and though it is true that King Henry made divers Statutes whereby he alter'd the Succession of the Crown as to his two Daughters Mary and Elizabeth sometimes declaring them both illegitimate and then again giving them a right to Succeed by Act of Parliament yet these Acts of Succession were obtained purely by the King's Sollicitation and Command and tho' at last he got himself impower'd to make a Will whereby he might settle and entail the Crown on whom he pleas'd yet all these Acts of Parliament as also this will signifie just nothing after his death for tho' his said Daughters Queen Mary and Elizabeth did one after another succeed his Son King Edward the VI th yet was it not by vertue of any of these Acts of Parliament or by the aforesaid Will but by pure right of inheritance or colour of it at least and therefore in the first of Queen Mary there is an Act declaring the Queens Highness to have been born in most just and faithful Matrimony and also repealing all Acts of Parliament and Sentence of Divorce made or had to contrary Now certainly the intention of this Act was to declare her Succession to be Inheritance by right of blood so likewise in the first of Elizabeth the Lords Spiritual and Temporal and Commons do declare and confess that Queen Elizabeth is in very deed and of meer right by the Laws of God and by the Laws and Statutes of this Realm their most rightfull and lawfull Sovereign Queen and that she was rightly lineally and lawfully descended and come of the Blood-Royal of this Realm of England all which whether it were true or not in her yet the lineal and lawful descent of Queen Elizabeth was the ground upon which she was declar'd to be their Rightfull and Lawfull Queen And though I grant that King Henry the VIIIth had by his Last Will and Testament post poned all the Issue of his Sister Margaret Queen of Scots and preferred the Children of his younger Sister the Queen Dowager of France which she had by Charles Duke of Suffolke before them Yet was this Will afterward cancelled and torn off from the Rolls in Chancery where it was Recorded and that by order of Queen Mary as is supposed So that Iames the VIth King of Scotland was by Right of Blood Declared and Proclaimed King of England immediately upon the Death of Queen Elizabeth as right Heir of the Crown And in the first Parliament after his Coronation his Title is by them particularly recognized in the words which I desire you to read with me Where after setting forth his Pedigree as lineally descended from the Lady Margaret eldest Daughter of King Henry the VII th and Queen Elizabeth his Wiâ—e Daughter of King Edward the IV th they farther acknowledge King Iames their Lawful and rightful Leige Lord and Sovereign and farther say as being bound thereunto both by the Laws of God and Man that they do recognize and acknowledge that immediately upon the dissolution and decease of Elizabeth late Queen of England the Imperial Crown of the Realm of England and all Kingdoms Dominions belonging to the same did by inherent Birth-right and lawfull and undoubted Succession descend and come to his Most Excellent Majesty being lineally lawfully and justly next and sole Heir of the Blood Royal of this Realm and thereunto they do most humbly and faithfully submit and oblige themselves their Heirs and Posterities for ever until the last drop of their bloods be spent I have been the more particular in the recital of this Act because it stands not only as a perpetual Declaration of the sense of the Representatives of the whole Nation for an hereditary Succession of the Crown without any vacancie or election but also because it contains their solemn engagement for themselves and their posterities for ever to King Iames and his issue and consequently to his right Heirs for ever so that nothing can be more directly contrary than this Act to the late proceedings of the Convention first in declaring the Throne vacant and then placing the Prince and Princess of Orange therein F. I will not deny but that King Henry the VIII th and Edward the VI th both succeeded by right of inheritance but whether the former claim'd it as Heir to his Mother or his Father is much to be doubted since being Heir to both of them he never declar'd by what Title he held the Crown But as for his two Daughters Queen Mary and Queen Elizabeth it is certain their best Titles were from these Acts of
also for their own advantage and in hopes of having a share in what Goods of Estates they may leave behind them when they dye But if when they come to years of discretion they can better their condition by marrying and leaving their Fathers Family their Parents are bound in conscience to let tehm go since it is their duty to better the condition of their Children and not to make it worse Always provided that such Children either take care of their Parents themselves or else hire others to do it for them in case they want their assistance by reason of their old age Poverty or Sickness but if children may not quit their Fathers Families thô they are never so hardly or severly dealt with the consequence will be that Fathers may keep their children as Slaves as long as they live thô it were a hundred years or else may sell them to others to be used worse if possible the absurdity of which assertions and how contrary to the common good of Mankind I might leave to any indifferent Person to judge of Therefore I think I may very well according to the learned Grotius divide the lives of children into three Periods of ages The first is the Period of Infancy or imperfect Judgment before the child comes to be able to exercise his reason The Second is the Period of perfect Judgment or discretior yet whilst the child continues still part of his Fathers Family The third is after he has left his Fathers and entered into another Family or sets up a Family himself In the First Period all the actions of children are under the absolute Government of their Parents For since they have not the use of reason nor are able to judge what is good or bad for themselves they could not grow up nor bâ— preserv'd unless their Parents judged for them what means best conduced to this end yet this power is still to be directed to the principal end viz. The good and preservation of the Child In the second Period when they are of Mature Judgment yet continue part of their Fathers Family they are still under their Fathers Command and ought to be obedient to it in all actions which tend to the good of their Fathers Family and concerns And in both these Ages I allow the Father has a Right to make his Children work as well â—â— enable them to get their own living as also to recompence himself for the pains and care he has taken and the charge he may have been at in their Education and also to correct them in case they refuse to work or obey his Commands But in other actions the Children have a Power of acting freely yet still with a respect of gratifying and pleasing their Parents to whom they are obliged for their being and Education Since without their care they could not have attain'd to that age But this duty being not by force of any absolute subjection but only of Piety Gratitude and Observance it does not make void any act thô done contrary to their duty The third and last Period is when the Son being of years of discretion either by marriage or otherwise is seperated from his Fathers Family In which Case he is in all actions free and at his own disposal thô still with respect to those duties of Piety and Observance which such a Son must always owe his Father the cause thereof being perpetual M. I must beg your pardon if I cannot come over to your opinion notwithstanding all you have said in this long discourse since I cannot conceive how in any Case Children can naturally have a power or moral faculty of doing what they will without their Parents leave since they are always bound to study to please them and thô by the Laws of some Nations Children when they attain to years of discretion have a power and Liberty in many actions yet this Liberty is granted them by positive and humane Laws only which are made by the Supream Fatherly Power of Princes who can regulate limite or assume the Authority of inferiour Fathers for the publick benefit of the Common-wealth So that naturally the Power of Parents over their Children never ceases by any seperations thô by the permission of the transcendant Fatherly power of the Supream Prince Children may be dispens'd with or priviledged in some cases from obedience to subordinate Parents F. And I must beg your pardon Sir if I cannot alter my opinion in this matter for all that you have now said since you can give me no better Reasons than what you did at first and thô you say you cannot conceive how Children can ever in any case have a power or moral faculty of doing what they will without their Parents leave yet they may have such power in many cases whether you can conceive it or no. For thô I do grant that Children are always bound to study to please their parents yet doth not this duty of gratitude or complacency include a full and perfect Dominion of Fathers in the state of Nature over the persons of their Children and an absolute power over them in all cases whatsoever so that the Children can have no right to consult their own good or preservation however it may be endangered by their Fathers passion or ill nature since a Wife is always obliged to this duty of complacency to her Husband yet is not this so absolute but that in a State of Nature she may quit his Family in those Cases I have already mentioned and against which you had nothing to object and I deny your position that Children when they attain to years of discretion derive that power and liberty they use it many actions from positive Humane Laws only or that the power which Parents naturally have over their Children can never cease by any seperation but only by the permission of the Father For as for Bodin and divers others that have written on this Subject they do no more than follw others who have asserted this absolute power of Fathers upon no better grounds than the Civil or Roman Municipal-Laws without ever troubling themselves to look into the true Original of Paternal Authority or Filial Subjection according to the Laws of Reason or Nature And most Treatises of this Subject being commonly writ by Fathers no wonder if they have been very exact in setting forth their own power over their Children but have said little or nothing of the Rights of Children in the State of Nature and therefore I shall farther let you see that this duty of Children even of pleasing or obeying their Parents can only extend to such things as they may reasonably or Lawfully command For suppose that Adam had commanded some of his Sons or Daughters never to Marry you cannot deny but this command had been void that being the only means then appointed to propagate Mankind for when there then lay a higher obligation upon them to encrease and multiply than there is
now they might then certainly have chosen Wives for themselves when they were of years of dicretion and capable of Marriage And farther to shew you that Children may in some Cases seperate themselves from their Fathers Family and Subjection without their Fathers consent is apparent as to the Daughters who if they were at first obliged by this precept to Marry might likewise do it whether he would or not and were to be obedient to their Husbands when they were Married the obedience which they before owed to their Father being now transferred to their Husband or also they must serve two Masters which is against our Saviours Rule by which it appears that the subjection of Daughters in the State of Nature is not perpetual And to prove that Sons have a like Right to separate from their Fathers Family let us suppose that Adam had been so cruel and unnatural as some Fathers are that being only sensible of the profit he received from his Sons labours he would never have permitted them to leave his Family nor to enjoy any thing of their own but would have kept them like Slaves as long as they lived if you affirm that he might have done so if he had pleased and that the Sons had no Lawful means to help themselves since he only was Judge whether ever he thought fit to set them free or not You your self have already granted the contrary when you affirmed that a Father had no Right to sell his Child as a Slave and then sure he can have as little Right to use him so himself But as for what you say against that natural equality of Children to their Parents considered as Men you might easily have understood it if your thoughts were not so wholly taken up with this transcendant imaginary Empire of Fathers in the State of Nature as if they were some what more than Men. For pray tell me are they not equal who have the same Right from God to the same things For if Fathers have a Right to live and be preserved so likewise have the Children and if they have a Right to the end they have likewise the same to the means necessary thereunto such as are food rayment freedom from Slavery c. And if they are thus equal they must likewise when they attain to years of discretion be endued with a Power of judging for themselves concerning what things are necessary to their happiness and perservation and what tends to their misery or destruction and consequently may very well judge whether their Fathers treat them kindly or cruelly for if the Father in the State of Nature in the sole Judge of the means that conduce to his Sons happiness and preservation without his consent he may determine that Poverty Slavery and Torment shall be fit means and conducing to this end which is against sense and reason and tho I grant that Sons may sometime be mistaken in the true means that may lead to these great ends of life yet doth not this take away their Right of judging for themselves any more than it doth the same Right from their Fathers who as Men are also lyable to the like mistakes Neither did any Slave or Subject ever give up his will so totally to his Master or Monarch as absolutely to renounce all Right to happiness and self preservation or to the means that may conduce thereunto But I think we have sufficiently debated this great point of the Natural Power of Fathers over their Children and therefore Let us in the next place consider whether Children may not upon these Principles in some Cases make use also of self defence even against their Fathers if they cannot otherwise avoid certain ruine and destruction therefore I will first ask you what you think of this Case A Son in the State of Nature being separated from his Father's Family and having Children and House of his own what shall he doe in Case his Father by the evil suggestions of a Step-mother or other wicked Persons be so far incensed against his Son as to send Men to burn his House plunder him of his Goods and destroy his Plantation M. If the Son be absolutely set free from his Fathers Family and Power with his consent I do not deny but that such a Son may resist those Persons his Father sends to ruine him and his Family and may repel their violence by force but I do not allow the Son the same power to resist the Person of the Father if he should come himself thus to destroy him F. Why so Do you think a Father by being so hath any greater Right to destroy his Son and ruine his Family then a Stranger M. No but because the Person of a Father ought always to be esteemed by the Son as Sacred as his Natural Prince and if he should have a Right to resist his Father by force he might happen to kill him in the scuffle which would be a sin against Nature F. Well suppose the worst would this be more a sin against Nature than to suffer himself Wife and Innocent Children to be turned out of all they have and left to perish by hunger and cold St. Paul says That he that doth not provide for his Family is worse than an Infidel and I think so would the Son be if for fear of hurting his Fathers Person he should permit all his Family to be exposed to certain beggery and ruine M. This precept of St. Paul obliges only when a Man may provide for his Family by Lawful means but not when it cannot be procured but by doing what is unlawful as I take this resistance of the Person of the Father to be F. I grant indeed that a Father acting as such is not to be resisted even when he corrects his Son but I suppose you will not say that in the Case I put he acts as a Father but an Enemy when he goeth about without any just occasion to kill or ruine him unless you can suppose that the will to preserve and destroy can consist together in the same Subject neither can you affirm that the Father hath any right to deal thus wickedly and violently towards his Son and his innocent Family By what Law then must the Son be obliged to Sacrifice his own life and that of Wife and Children and all that he hath to this imaginary Duty M. There seems to me two good reasons for it The first is that gratitude which the Son must always owe his Father for his Being and Educaâ—ion and therefore if he give up his Wife Children and all that he hath to his Will it would scarce be a sufficient requital for all the Benefits he hath received from him The second is because no circumstances whatsoever can take off or obliterate this Relation and thô 't is true your Father whilst acting thus doth not deal with you as a Father but an Enemy yet he is still your Father and you are and will be always his
not only Kingly Power in General but also the succession to it by the Eldest Son or his next Brother is of Divine Right or Institution or else all that you urged concerning the Natural right of Dominion of Cain over Abel was to no purpose But now you insist that succession by a Testament or Will of the Father is also as much by the Law of Nature as the other in which I think you are very much mistaken since the right of bequeathing Kingdoms or any thing else by Testament is neither prescribed by the Revealed Will of God nor the Laws of Nature since all setled Property in Lands or Goods before the institution of a Civil Government proceeding only from occupancy or possession must cease in the State of Nature with the life of the occupant or possessor Therefore in that state a Testament cannot take place by the Testators Death since as soon as he Dyeth his right in the thing bequeathed is quite lost and extinguished so that the Dead not having an interest in any thing the Legatee cannot sustain the person of the Testator whose Right ceases before that of the Legate can take place And therefore the Testament or Disposition of such things may then without any Crime be neglected or altered by the Survivors unless all those who pretend an interest in it do agree to it or swear to see it fulfilled during the Testators Life time And for this cause we find Abraham binding his Servant that ruled over his House with an Oath not to take a Wife for his Son of the Daughters of the Land And Iacob taking an Oath of Ioseph not to bury him in Egypt because they doubted whether they could oblige their Sons or Servants to do it by their Testaments So that it appears evident to me that the Power of making Testaments and bequeathing Lands or Goods is but a consequence of that Propriety in Lands Goods or Dominions which arises from compact or common consent in a Kingdom or Common-wealth after it is instituted as I think I am able to prove whenever you please to discourse with me farther about it But as for the Right of bequeathing Crowns or Kingdoms by Testament as I will not deny but that some Kingdoms may have been bequeathable by their Original Constitution and others become so by Custom yet I cannot grant that this Right belonged to the Prince or Monarch by the Laws of God or Nature but proceeded pâ—rely from the received Law or continued Custom of that Kingdom so that you must either confess that there is no such thing as a Divine Right of Succession or else it is such a one as signifies as much as nothing since humane Laws or Constitutions can alter it or take it away So that after all this Pother about this Divine Right it is not so good as an old Estate Tayle which formerly no fine could bar And I must farther tell you that I cannot assent to your opinion that succession by a Will or a Testament is so certain as that by Inheritance since all such Testaments must depend upon the Credit of the Witnesses whose Credit may often be questioned by the Subjects and who may very well for their own ends make a Younger Son to have the whole or at least a share in the Kingdom to whom his Father never intended any and which was likewise more easie to be done before such time as Written Wills or Testaments solemnly published according to forms of Law came in use But because you suppose that the Natural Laws of Succession to Kingdoms are so plain and certain that I may a little convince you of your mistake in this matter I shall for the present suppose that the Succession of an Elder Son or Brother is sufficiently easie to be known Yet I doubt it will not prove so in many other Instances And therefore to let you see I do not make this Scruple without cause suppose Abel for example to have left a Son or a Daughter behind him when his Brother murdered him pray tell me who was to succeed after the Death of Adam this Son or Daughter of Abel or Seth their Uncle M. We do not read of any Children that Abel had and therefore I cannot tell what to say to it F. Well but since it is probable he might have had Children pray tell me supposing he had whether this Child were it Son or Daughter or Seth the Uncle was to succeed M. Since you will needs have me speak my opinion in a thing so uncertain I think this Child were it Son or Daughter ought to have succeeded before the Uncle F. Pray Sir tell me by what Law or Rule you thus Judge Whether by the Law of God or Nature M. I must confess God hath prescribed nothing expresly concerning it more than what he says Numb 27. that if a man dies leaving no Sons ye shall cause his Inheritance to pass unto his Daughter with diverse other Rules of Succession to Inheritances there specified and besides it is more suitable to the Laws of Nature that the Children of the Elder Brother should inherit before their Uncle there being no reason that they should be punished for their Misfortune in having their Father Dye before he could succeed to the Government F. I doubt the place of Scripture you have cited doth not reach this Case of Kingdoms for first this being a Municipal Law of the Iews could only concern that Common-Wealth and secondly it only relates to Private Inheritances and that this is so may be proved from the next verse where it is said that a Mans Brethren shall be his Heirs that is all of them were to be Heirs alike only the Eldest was to have a double portion And if this Law concerning Daughters were to reach the Succession of Kingdoms at this day the Laws of France and other Countries where Women are barred from succeeding to the Crown would be against the Laws of God and Nature And the like may also be said concerning the Succession of the Nephews before their Uncles or of Uncles rather than the Nephews whose Fathers never injoyed the Crown diverse Nations having different Customs and that with a like appearance of reason concerning it For on the one hand if the Son of Abel might have pleaded that he was the first born of the Eldest Son of Adam and so ought to represent his Father Seth the Uncle might likewise with as good reason urge that he was more nearly related in Bloud to Adam as being his Son than the Son of Abel who was but his Grandson and besides being older than he was endued with more Wisdom and Experience and consequently was â—itter to Govern But if Abel left only one Daughter or more I doubt not but the question would have been harder to be decided since if Women are not permitted to Govern in Private Families they will not especially amongst Warlike Nations be admitted to Govern Kingdoms especially since
the sole Will of the first Princes in which the People had no hand for in the most Antient Monarchies there was a time when the People of all Countreys were Governed by the Sole Wills of their Princes which by degrees came to be so well known in several instances that inferior Magistrates needed not resort to them in those cases and the People being for a considerable time accustomed to such Usages they grew easie and Familiar to them and so were retained tho the Memory of those Princes who first introduced them was lost and after Kings finding it better to continue what was so received than to run the hazard and trouble of changing them were for their own ease and the good of their Subjects contented they should be still from Age to Age so continued Which custom may hold as well in Laws about Succession as other things And therefore we find that even in those Monarchies where the People have nothing to do in making Laws Women are excluded which could proceed at first from nothing else but the declared Will or Law of the first Monarchs So likewise the Original of the Salique Law is wholly ascribed to Pharamond the first French King and Mariana whom you lately cited tells us that Alphonso King of Arragon made a Law that where Heirs Male were wanting the Sons of a Daughter should be preferred before the Aunt which Law is wholly attributed to the King for he adds presently after Sic saepe ad Regum arbitrium jura regnandi commutantur F. Granting all this true that you have said you cannot but confess that the Laws of God and Nature have established nothing in this matter or else it could not be in the Power of Kings to make or alter Laws concerning the succession as your last Quotation intimates they may yet even in the most absolute Monarchies the Laws about the Succession of the Crown must wholly depend upon the Consent of the People who are to see them observed or else every Monarch might alter these Laws of Succession at his pleasure and the Great Turk or King of France now the Assembly of Estates is lost might leave the Crown to a Daughter if either of them pleased and disinherit the next Heir Male. But as for the Original of this â—alique Law in France you 'l find your self much mistaken if you suppose that that Law was made by the Sole Authority of Pharamond for the Antient French Histories tell us that the Body of Salique Laws which are now extant were made by the Common Consent of the whole Nation of the Francs who committed the drawing of them up to three Judges or Commissioners and which Laws Pharamond did only confirm and any one that will but consult those Histories may see that Kings were so far from having the Sole Legislative Power in their own hand that they were frequently Elected by the Estates nor is it truer that you suppose from Mariana that the Kings of Arragon had Power alone to make Laws it appears quite contrary from the Constitutions of that Kingdom where the King could do nothing of this kind without the Consent of the Estates and was not admitted to the Crown without taking an Oath to the Chief Justice in the name of the People that he would observe the Laws and Constitutions of the Kingdom otherwise that they would not be obliged to obey him But at once to let you see that about the Succession of the Sons or Descendants by Daughters the Cases are much more nice and intricate and that when such Cases happen in limited Monarchies where there is an Assembly of Estates they are the Sole Iudges of such differences may appear by two famous examples in modern History The first is in Scotland about four hundred years ago when after the Death of King Alexander III who died without Issue when two or three several competitors claim'd a Right to the Crown as descended from several Daughters of David Earl of Huntington great Uncle to the last King the Chief of which being Iohn Bayliol and Robert Bâ—uâ—â— the Estates of the Kingdom not being able to decide it they agreed to refer it to Edward I. King of England who adjudged the Crown to Bayliol yet did not this put an end to this great controversie for not long after Bayliol being deposed Bruce revived his Title and the States of Scotland declared him King whose Posterity enjoy it at this day A like Case happened in the last Age in Portugal after the Death of Henry surnamed the Cardinal without Issue when no less than four Eminent Competitors put in their Claim some claiming from the Daughters of Don Durate youngest Brother to the last King Henry But the King of Spain and other Princes as Sons to the Sisters of the said King Henry dying without Issue left ten Governours over the Kingdom to decide together with the Estates the Differences about the Succession who quarrelling among themselves as also with the Estates before it was decided Philip the second King of Spain raised an Army and soon conquered Portugal And yet we have seen in his Grand son's time that the Estates of Portugal declared this Title void and the Crown was settled in the Posterity of the Duke of Braganza who still enjoy it And how much even Kings themselves have attributed to the Authority of the Estates in this matter appears by the League made between Philip the Long King of France and David King of Scots wherein this condition was exprest That if there should happen any Difference about the Succession in either of these Realms he of the two Kings which remained alive should not suffer any to place himself on the Throne but him who should have the Judgment of the Estates on his side and then he should with all his Power oppose him who would after this contest the Crown To conclude I cannot see any means how if such Differences as these had arisen in the first Generation after Adam I say how they could ever have been decided without a Civil War or else leaving the Judgment thereof to the Heads or Fathers of Families that were then in being Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day I leave it to your self to judge M. I shall not trouble my self to determine how far Princes may tye up their own hands in this matter of the Succession and leave it to the States of the Kingdom to limit or determine of it but from the beginning it was not so and therefore give me leave to trace this Paternal Government a little farther For tho' I grant that when Iacob and his twelve Sons went into Egypt together with their Families they exercised a Supreme Patriarchal Jurisdiction which was intermitted because they were in Subjection to a stronger Prince Yet after the return of these Israelites out of Bondage God from a special
but I can shew you not only the unreasonableness but also the unpracticableness of this supposition First its unreasonableness since you are very much mistaken to alledge that the whole Nation by that Act of recognition to King Iames obliged themselves and their Posterities to him and his right Heirs 'T is true they there tell him That they made that Recognition as the first fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever and also when they have acknowledged him to be justly and lawfully next and sole Heir of the Blood Royal of this Realm and that they thereunto submit and oblige themselves their Heirs and Posterities for ever c. there is no more meant or expressed in all this than that the whole Nation did by their Representatives in Parliament oblige themselves and their Children to King Iames and his Posterity for ever and I think that this part of the Recognition is sufficiently perform'd by placing two of his Great Grand-children in the Throne for as to the words rightful or lawful Heirs they are not to be found in all this Statute But as for your Notion of a Regency it is plain it could have signified nothing either for our present security or future settlement not to the former since this Regent be he whom he would must have Governed in the Right of some body or other since I never read of a Regency in England during a Vacancy of the Throne therfore I will at present admit that the Vote for King Iames's Abdication had never been made only that the Prince of Orange had been declar'd Regent of the Kingdom till such time as King Iames would have given the Nation sufficient satisfaction of his reforming all past miscarriages and that his future Government should be according to Law Now I would very fain know how it can be justified according to your Notion of the King 's absolute irresistible power to place a Regent over the Kingdom to Govern in his stead whether he will or not when it is certain he is neither a Minor an Ideot nor a Lunatick so that then he must have return'd again to the Government whenever he had pleas'd or else the Convention must have been Judges whether the security or satisfaction he offered was sufficiently satisfactory or not for if he himself was to be sole Judge in this case I suppose you will grant this Regency would quickly have been at an end but on the other â—ide if this Right of Judging had been left in the Convention whether the King's proposals were satisfactory or not they might also have voted them not to be so and till this was done they might very well have justified there keeping him out of the Kingdom by force now how that could have consisted with your doctrine of the Kings Irresistible Power I desire you would satisfie me if you can so that by this Regency the King must either have been deprived of his whole Power or he must not if the former that would have been as good as Deposing him from being King and had left him no more than the bare Title and whether this had not been a great deal worse as more Hypocritical than the Conventions declaring him to have Abdicated the Government I leave it to any indifferent person to Judge But if you will suppose that this Regent must have Govern'd in the name of your Prince of Wales as being declared King that would have been to have granted his Title to be good without hearing of it and had been indeed to have given up the main point in dispute M. I see you would fain find out any shifts for this pretended Vacancy and placing those in the Throne to whom it doth not belong yet though I grant that the word Right Heirs are not expresly recited in this Act of Recognition to King Iames I. yet for all that it is implyed for the Oath of Allegiance is Enacted by I. Eliz. to be taken to the Queen her Heirs and lawful Successors and by the Oath of Supremacy Enacted in the IVth of King Iames we are likewise obliged to swear that we will bear true Allegiance to his Majesty his Heirs and Successors now who these Heirs are this very Act of Recognition doth sufficiently declare viz. The next Heir by Descent of Blood for as King Iames is hereby acknowledged to be Heir by Inherent Birth-right so when they oblige themselves and their Posterity's to King Iames and his Progeny it is to be understood by parity of reason that they oblige themselves and the Nation for all future Generations to Him and his Issue in that sense as that their Allegiance should be only due to him or her who should be Lawful Heir to their Father Brother or Uncle according to those rules of Succession that had been commonly received for above four hundred years last past that is to say the Eldest Son Brother or Daughter being still to be prefer'd before the Younger and Sons before Daughters and the same rule must also hold for their descendents since upon this ground it was that the Title of the House of York was prefer'd by Parliament before that of Lancaster and the Title of the King of Scots who was descended from the Eldest Sister before that of the House of Suffolk who came from the Younger and this being never alter'd by any subsequent Statute or if it had I think it would not have been good the Convention ought either to have declar'd the Prince of Wales King immediately or at least to have continued the Throne Vacant let the difficulties or inconveniences that you suppose might have followed to be never so great and therefore it was their duty to have fought out King Iames and the Prince where-ever they had been and to have desired him to have sent over the Prince together with the Witnesses that went away with him and till this had been absolutely refus'd or else that upon a fair hearing this Prince had been proved an Impostor I say till one of these had been done the Throne ought still to have continued Vacant if it were so at all nor till this had been clear'd could they have justified the placing any body else upon the Throne though never so nearly related to the King whom I will suppose for discourse sake to have really Abdicated the Kingdom F. I will not deny that the legal and common course of Succession ought to be inviolately observed according to the Rules you have now laid down when ever it may consist with the publick good and safety of the Kingdom and yet for all that I cannot believe that the King himself much less any other that only pretends as next Heir to him can have such an absolute Right to the Kingdom as that no considerations whatsoever can make them lose or forfeit their Right thereunto therefore I look upon the Government of a Kingdom not to be like that interest which a private
Land though in words you deny it for every hereditary right is either a continued Usurpation by force which can give no right at all or a right by Law which is by the consent of the People to entail the Crown on such a Family which certainly is to make a King by Law that is by the consent of the People But if you will suppose that it was the Authority of the first King alone who thus intail'd the Crown upon himself and his right Heirs I desire you would shew me how the Crown could be so intail'd without the consent of the People so as that his Successor may not alter it and give it by his last Will or Testament to which of his Sons or Daughters he pleases since Sir Robert Filmer himself acknowledges that a testamentary heir to a Crown in an absolute Monarchy is as much by Divine right as if he had come in by Succession as appears by the instances he gives in Seth who could have no right to succeed his Father Adam in the Government of Mankind while Cain his Elder Brother was alive by the Will of Adam his Father the like I may say of Solomon who by his Fathers Crowning him King in his life time and thereby making him his Successor gave him a right to Rule over Adonâ—jah his Elder Brother so that I may very well ask you if the present Law of the Land did not proceed from the free consent of the People testified by long Custom or express Declaration of the People by their Representatives in Parliament I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases as that it should be Lawful for the English Saxon Kings to exercise this Prerogative as Dr. Brady supposes they did before the Conquest without the consent of the Great Council of the Nation So that I think I may much better ask you what that Law was and who made it which you suppose to make Kings prior to and independent from the consent of the People since if there be any such Law it is either as yet unknown to Mankind or else all those who are once possess'd of Kingdoms have an equal Title to them by Divine Right But indeed it is only some Divines who were more scrupulous than knowing in Politicks who first started this question whereas indeed there is no such great Mystery in it for that Law by which the first King of England for Example was Elected was not in being before the King was made nor yet was the King in being before that but when the first King was made so by the consent and election of the People the King and the Law that made him so began both together that is the People by chusing of him to Govern upon certain Conditions and he by accepting the Crown upon those Conditions was that Law by which he then took the Crown and by which it has been held ever since that time So that if the Crown ought to be enjoy'd according to a legal right and that there must be some Judges appointed of this right when ever any Disputes may happen about it either every pretender to the Crown must judge for himself and then he will be both Judge and Party in his own Cause or else it must be left to the conscience of every individual Subject in England to side part with what Party he pleases that may thus pretend to it and so there may be a dozen Competitors for the Crown at once and all with equal right as for ought that any body knows or lastly this right must be left to the determination of some Civil Judges to judge whose Right it is and who can these Judges be who shall thus judge what are the antient Laws of Succession and Rules of Allegiance but the Great Council of the Nation therefore if they have already declar'd and recogniz'd King William and Queen Mary to be lawful King and Queen of this Realm I think every Subject of the same may very well justifie their Swearing Allegiance to them not only by vertue of this Statute of the 11th of Henry the VIIth which requires Allegiance to be paid to the King in being but also from the equity and reasonableness of the thing it self to hinder the Nation from falling together by the ears and to entail Civil Wars from Generation to Generation if the Subjects were oblig'd by their former Oath of Allegiance to the King de jure to endeavour to restore him by force of Arms and therefore the Preamble to this Statute very well and truly sets forth that it is not reasonable but against all Law Reason and good Conscience that the Subjects going with their Sovereign Lord to the Wars any thing should lose or forfeit for doing this their true duty and service of Allegiance to the King for the time being M. But pray tell me is not this very strange and unjust and that by your own showing that a Prince should have a legal Right and Title to the Crown without a right to exercise the Authority belonging thereunto for they must now pay Allegiance to the King in being let him be never so great an Usurper so that indeed the preamble to this Act is expresly false since I think it is very unreasonable nay against all Law Reason and good Conscience to Swear Allegiance to an Usurper since by that means not only all good Subjects would be put out of a capacity of endeavouring to restore the King de jure to his Throne though never so unjustly depos'd or driven out as in duty they ought but also those who were instrumental in this Rebellion and in depriving the Lawful Prince of his just Rights may not themselves endeavour to restore him which would put them out of all possibility of making amends for the wrong they have done him and of making restitution by again restoring him to his Throne F. If this be all the difficulty that is left upon your mind I doubt not but to prove to you not only from the Law of the Land that Allegiance may be lawfully Sworn in this Case but also that it is for the common happiness and peace of the Nation which is the main end of all Government that it should be so and therefore I shall first freely grant that though it is Rebellion unjustly to deprive a King and his right Heirs of the Crown and that those who had a hand in it are bound in conscience to endeavour to restore him or them to their just rights again yet this must be done by no other methods but what are consistent with the publick peace and safety of the Common wealth for if a King de facto has once got possession of the Throne and has been Crown'd and Recogniz'd by Parliament from what has been already proved I think it is very plain that they ought to obey him not only from the
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
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