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
Samuels Days it setled in their Kings For as for the Iewish Sanhedrim whose Power is so much extolled by the Iewish Writers who are all a late Date many years since the Destruction of Ierusalem and therefore no competent Witnesses of what was done so many Ages before it does not appear from any Testimony of Scripture that there was such a Court of Iudicature till after their Return from the Babylonish Captivity But yet God took care to secure the Peace and good Government of the Nation by appointing such a Power as should receive the last Appeals and whose sentence in all Controversies should be final uncontroulâ—ble as you may see in Deuteronomy Chap. 17. There were indeed inferiour Magistrates and Iudges appointed in their several Tribes and Cities which Moses did by the advice of Iethro his Father in Law and by the Approbation of God But as the Supream Power was still reserv'd in the hands of Moses while he liv'd so it is here secured to the High-Priest or Iudges after his Death for it is expresly appointed that if those inferiour Iudges could not determine the Controversie they should come unto the Priests the Levites that is the Priests of the Tribe of Levi who by the 12. v. appear only to be the High-Priest and to the Iudge that shall be in those days that is if it shall be at such a time when there is an extraordinary Judge raised by God for there were not always such Iudges in Israel as is evident to anyone who reads the Book of Iudges they should enquire of them and they shall shew the sentence of Iudgement and thou shalt do according to the sentence which they of that place which the Lord shall Chuse shall shew thee and thou shalt observe to do according to all they shall inform thee And what the Authority of the Chief-Priest or of the Iudge when there was one was in those days appears from v. 12. And the Man that will do presumptuously and wilâ— not hearken â—o the Priest that standeth to Minister there before the Lord thy God or unto the Iudge even that Man shall dye and thou shalt put away the evil from Israel This is as absolute an Authority as the most absolute Monarch in the World can challenge that disobedience to their Last and final Determination whatever the Cause be shall be punish'd with Death and what place can there be for Resistance in such a Constitution of Government as this It is said indeed v. 11. And according to the sentence of the Law which they shall teach thee and according to the Iudgment that they shall tell thee thou shalt do And hence some conclude that they were not bound to abide by their sentence nor were punishable if they did not but only in such Cases when they gave sentence according to the Law of God But these Men do not consider that the Matter in Controversie is supposed to be doubtful and such as could not be determin'd by the inferiour Courts and therefore is submitted to the Decision of the Supream Iudge and as he determin'd so they must do no Man under the Penalty of Death must presume to do otherwise which takes away all Liberty of Iudging from Private Persons tho' this Supream Judge might possibly mistake in his Judgment as all Humane Iudicatures are liable to mistakes but it seems God Almighty thought it necessary that there should be some final Iudgment from whence there should be no Appeal notwithstanding the Possibility of a mistake in it So likewise when God had appointed Ioshua to succeed Moses and had conferrd upon him all that Power that Moses had before and that he came to give his Orders to the two Tribes and an half before their Passage over Iordan you 'l find that they not only promis'd him perfect Obedience as they had before pay'd to Moses but farther also assure him That whosoever he be that doth rebel against thy Commandment and will not hearken unto thy words in all that thou Commandest him he shall be put to Death So that there was a Supream and Soveraign that is an unaccountable and irresistible Power in the Iewish Nation appointed by God himself for indeed it is not possible that the Publick Peace and Security of any Nation should be preserved without it F. You have Sir methinks taken a great deal of pains to prove that which I do not at all Deny but rather joyn with you to assâ—rt that Stubbornness and Disobedience to Gods Commands is a very great Sin and the Rebellion thereunto is likened to the Sin of Witchcraft as Samuel shews to no less a Man than King Saul himself when he had Rebelled against that is disobeyed God in not destroying the King of the Amalâ—kites and therefore it is no wonder that in a Government where God himself was the Head and had appointed Moses and Aaron as his Lieutenants or Substitutes under him the one in Civil and the other in Ecclesiastical matters that God should punish their Murmuring and Rebellion against them as done to himself not that I deny but that St. Iude does likewise denounce this Judgment of perishing in the gainsaying of Core against those wicked Hereticks the Gnosticks who thought themselves set free from all Civil subjection and therefore despised Dominions and spake evil of Dignities that is not the Men invested with them but Civil Magistracy it self which they look'd upon as inconsistent with their Christian Liberty But yet for all this and that I grant God denounced no less than the Sentence of Death against any Man that refused to Hearken to the Priest or unto the Iudge in those matters that should be brought before them by way of Appeal and also that whoever would not obey Ioshua but should Rebel against his Commandments should be put to Death yet can I not think that there was any Irresistible Power plac'd by God in the Persons of Moses Ioshua or the Iudges or that it was not possible for the Publick Peace or security of the Nation to be preserved without that But indeed all these Persons above nam'd being to be Obeyed as Gods Substitutes or Lieutenants as he was King of the Children of Israel so likewise their Commands or Dictates were only so far to be observ'd as they perform'd this Commission and if they had swerved from it I doubt not but they might not only have been disobeyed but also resisted by them And therefore pray tell me suppose this Rebellion of Core had happened because Moses making himself a distinct party amongst the mixt multitude of strangers that came up with them out of the Land of Egypt and others of his own Tribe or whom he could bring over to his Faction under colour of this Soveraign Power which God had given him had instead of leading and governing the People committed to his charge taken upon him to have rob'd them of all those Goods and Riches which
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
notwithstanding all you have alledg'd against it which yet is no more than what you said before that Duke Robert had an Hereditary Right and therefore he could not be put by which is to beg the Question for you cannot prove to me that he had this Right either by the Law of Nature the Law of England or the Law of Normandy not by the two former as I have already prov'd for your Conqueror himself being a Bastard had no better Title to the Dutchy of Normandy than his Father's last Will before he went to the Holy Land which was not good without the consents of the Nobility of that Dutchy as appears by the Historians of that time so that the greatest Objection you have to make against King Henry's being elected in a true Common-Council of all England is this that the time was so short between the Death of William Rufus and his Election that it was impossible for all the Parties that had Votes to be there present which is a very bold assertion for how can you or your Doctor tell that at the time when King William was kill'd he might not then have held a great Council at Winchester where he then Lay who might immediately upon his Death chuse his Brother Henry for their King for it is certain the Election was there the Day before his Coronation at London and therefore it is very rashly done to affirm that this Election was not in a Common-Council of the Kingdom when all the Historians and particularly W. Malmesbury tells us the manner of it and the Disputes there were about it viz. that Henry was elected King as soon as King William's Funerals were over Aliquantis tamen ante controversiis inter proceres agitatis c. and H. de Knyghton reciting the cause why Duke Robert was set aside viz. because he had been always contrary and unnatural to the Barons of England therefore quod plenario consensu consilio totius Communitatis Regni ipsum refutaverunt pro Rege omnino recusavâ—â—â—nt Henricum fratrem in Regem erexerunt which plainly shews that it was the opinion of all the Antient Writers out of whom Knyghton took this passage that this election was made by the free consent and in a full Council of all the whole Community of the Kingdom nor does the after claim of Duke Robert to the Crown at all alter the case for the reasons already given as also because the agreement that was made between them that he that surviv'd should succeed the other was never confirm'd or agreed to by the great Council of the Kingdom and therefore those Norman Lords that join'd with Duke Robert here in England are justly taxed by William of Malmesbury and the Saxon Chronicle with Infidelity and Rebellion and though I grant that Mat. Paris or rather Roger of Wendover whom he transcribes seems to condemn King Henry's taking the Crown as unjust and contrary to Right and that he therefore feared the Justice of God eò quod fratri suo primogenito cui jus Regni manifestè competebat temere usurpando injustè nimis abstulcrat yet this author writing about the middle of the Reign of King Henry III. who had succeeded his Father by a pretended right of Inheritance as well as Election it is no wonder if He who writ near a hundred years after this transaction should give his judgment in this matter according to the common opinion and prejudice of that age and must certainly speak by guess for how could he otherwise affirm unless he had been acquainted with that Kings thoughts as he doth in the same place that he felt conscientiam suam in obtentu Regni cauteriatam since no other Writer either of that time or after it does thus blame King Henry for taking the Crown But as for the account you give why Duke Robert never took upon him the Title of King if the Throne had not then been looked upon as vacant because of the agreement which he made with his Brothers by which he parted with his Right for a Pension during his Life is not at all satisfactory for in the first place neither of these agreements were made till above a year after his pretended Title did acrue to him by the Death of his Father and Brother and therefore he ought if he had look'd upon himself as true King to have immediately taken the Title upon him which he never did so likewise the agreement it self makes wholly against your notion of any hereditary succession to the Crown to be then setled since the main clause in both these agreements is that the survivor should be heir to him that died first unless he left Children of his own to succeed him which plainly shews that in the opinion of both those Princes and of the great men that swore on either side to see it observed they knew of no such setled Right of Succession in their Heirs which they themselves could not part with or else this Clause had been wholly in vain since both King William and King Henry's Children were to have succeeded to the Crown of England by vertue of both these agreements before the Sons of Duke Robert had his Son William who was only Earl of Flanders survived him But now if you please you may proceed with your other exceptions against the rest of the Instances I have here given you of the Vacancy of the Throne till such time as the Common Council of the Kingdom had agreed whom to place therein M. As to what you have said in defence of the Vacancy of the Throne after the death of King Henry I. carries less shew of Reason than what you urged in the former Cases since all Writers agree that this was a manifest Usurpation in Stephen who could pretend no sort of Title to the Crown himself as well as Perjury in the Bishops Lords and great Men of England who having sworn Fealty to King Henry's Daughter Maud in his life-time made Stephen Earl of Blois their King therefore William of Malmsbury and all the Writers of those Times do accuse Stephen of down-right Perjury and Usurpation and likewise relate that he was advanced to the Crown through the power of the Londoners and Citizens of Winchester but yet all these Endeavours had been in vain unless he had been assisted by his Brother Henry Bishop of that City and then the Popes Legate in England and favoured by the Arch-Bishop of Canterbury who Crowned him and yet for all this there was but a very small Faction of the Bishops and Lords who were for his Croonation for W. Malmsbury tells us Coronatus est ergo in Regem Angliae Stephanus tribus Episcopis praesentibus nullis Abbatibus paucissimis Optimatibus And many of the Nobility and great Men of England were so sensible of this that being headed by Robert Earl of Gloucester the Empresses base Brother they raised a War against Stephen which after her coming over hither was
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
succeeding immediately upon his said Fathers resignation there could be no Vacancy of the Throne to which I answer that I do not deny that after this King was once setled in the Throne but that he might think it most to his honour and the independency of his Title to relye wholly upon his Right of Succession as Eldest Son and Heir without taking any notice of the Parliaments Election of him tho' this be also convertly expressed in these words which are in this Writ and Proclamation viz. ` That consenting to his said Fathers pleasure he had taken the Government de consilio advisamento Praelator Com. Baron Magnat Communitat praedict which though you translate by Council and Advice of the Prelats Earls Barons and Commonalty yet I do suppose that by consilio is here meane not Council but Consent as I have already proved the word consilium often signifies in our antient Statutes for otherwise if this word must here signifie Council it would be a plain Tautology for Advice and Council are the same thing But to shew you also that there must needs have been a vacancy of the Throne either upon the Deposition or Resignation of Edward the 2 d. take it which way you will appears from matter of Fact for it is plain that when Prince Edward refus'd the Crown upon the Parliaments Electing him unless his Father would willingly resign it he did at their request resign his Title to it by certain Commissioners sent down to him to Kenelworth Castle to take it now that place being at least two days Journey from London it is certain there must be as many days vacancy of the Throne if not more before the said Commissioners could get to London and that Prince Edward had agreed to take the Crown upon his Fathers Resignation for till then the Throne was Vacant since till the Prince had declared his assent to take it he might have chosen whether he would have accepted of it or not as not being satisfied whether his Fathers resignation were voluntary and not by constraint Now if there were a Vacancy of the Throne in this case though but for two or three days it serves to prove the matter in question as well as if it had been for two years So likewise let the Reign of King Henry the IVth begin either from the Resignation or Deposition of King Richard the II d. take it which way you please there must have been a Vacancy of the Throne as appears by the Parliament Roll still extant For it is there plain that after the instruments of King Richards Resignation and Deposition were solemnly read that the Throne continued Void for some space Till such time as Henry Duke of Lancaster stood up and made his Claim to it in that form of words which stands to this day to be seen upon the Parliament Roll and that the Arch Bishop of Canterbury taking the Duke by the hand had led him to the Throne and placed him therein M. I cannot deny but as you have set forth the matter of fact there must have been a Vacancy of the Throne in these two cases but since the depositions of both these Kings were contrary to Law and their resignations extorted from them by constraint whilst they were in prison they are neither of them looked upon as valid or to be urged as presidents in future times But however the Throne might seem then to be Vacant in point of fact yet in Law it was otherwise for Edmund Earl of March ought to have immediately Succeeded upon the Death or Resignation of King Richard as being Lineally descended from Philippa only Daughter and Heir to Lionel Duke of Clarence Third Son of King Edward the IIId But to let you see that Henry Duke of Lancaster as much an Usurper as he was yet was so sensible that the Crown could not be then enjoyed by Election but by Right of Blood and that the Parliament also thought themselves in duty bound to submit to him to whom by Right of Blood the Crown did belong Will appear from this Dukes manner of laying claim thereunto Which since you have not particularly mention'd I will For no sooner was the Throne Vacant by the pretended voluntary resignation of King Richard but Duke Henry having fortified himself with the sign of the Cross stood up and made his demand of the Crown in his Mother-Tongue in this form of words as I have extracted them out of the Parliament Roll. In the Name of the Father Son and Holy Ghost I Henry of Lancaster challenge this Reawme of Inglonde and the Corone withall the Members and appurtenances also that I am Descendit by Right Line of the Blode comyng fro the gude Lord King Henry the Third And thorghe that Right that God of his Grace hath sent me with the help of my Kyn and of my Friends to recover it The which Reawme was in poynt to be undon for default of Governance and undoyng of the gude Laws And after which Challenge and Claim says the Record which I render out of Latine as well the Lords Spiritual as Temporal and all the States there present being all severally interrogated what they thought of the aforesaid Challenge and Claim the above named States with all the Commonalty without any difficulty or delay unanimously agreed that the aforesaid Duke should Reign over them Where you may see that this whole Parliament admit the Dukes Claim for good without proceeding to any formal Election of him And by vertue of this pretended Right and Claiming as Heir of Earl Edmund Sirnamed Croutch-back Brother to King Edward the Ist. whom he falsly pretended to have been the Eldest Son to King Henry the IIId and put by for his Deformity did not only himself but also his Son Henry the IVth and his Grandson Henry the VIth though Usurpers Succeed as right Heirs to the Crown till the 39th year of Henry the VIth when Richard Duke of York did in a full parliament lay Claim thereunto in right of his Mother being only Sister and Heir of Edmund Earl of March. And because the Judgment of the Parliament in this case is very remarkable pray read this part of it as it stands recorded in the Parliament Roll. Whereupon consideration of the Answer and Claim of the Duke of York it was concluded and agreed by all the Lords that his Title could not be defeated And therefore for eschewing the great inconveniences that may ensue a mean was found to save the Kings Honour and Estate and to appease the said Duke if he would Which was That the King viz. Henry the VIth should enjoy the Crown during Life the Duke to be declared the true Heir and to possess it after his Death c. And note that all this was done after a solemn hearing of all that could be said on both sides F. I confess the matter of fact concerning King Henry the VIth coming to the Crown is truly recited
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
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
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
addition of new arguments I hope you will not think me tedious if I am also necessitated to repeat the same things again and put you in mind of what I hayh already prov'd which when I have done I doubt not but this argument of yours will signifie very little Your first mistake therefore is that King Henry the VIIth being an Usurper had no power to alter the course of Hereditary Succession setled by the Statute of the first of Edward the IVth whereby he was declar'd lawful King in answer to which I must put you in mind that this was the first time that ever this Point was so setled before and that not till after a long War and that by subduing all those that held with the House of Lancaster he had made such a perfect Conquest of all that oppos'd him that there was no Lords or Commons in this Parliament but what were intirely of his Party yet we see that when Henry the VIth got the upper hand again and his party revers'd this Statute of Edward the IVth and declar'd the Crown to belong to Henry the VIth and his Heirs which Act was to revers'd again by the next Parliament in the eleventh of Edward the IVth when he again recover'd the Crown by another Battle against Henry the VIth so evident it is that whoever is once seated in the Throne and is recognized by Act of Parliament tho' of his own summoning all his Acts till they are repeal'd do hold good though he were declar'd an Usurper and himself attainted by Act of Parliament and therefore admitting that Henry the VIIth was an Usurper at the time when this Act we now discourse of was made yet would it not render this Act void as you suppose since it was never yet repeal'd by any subsequent Statute But indeed Henry the VIIth was no Usurper at the time when this Statute was made for you your self have already granted that he had a good Title in right of his Wife which he never renounc'd or disavow'd and therefore we may very well suppose that she though Queen de jure gave her tacit consent to this Act in the person of her Husband and if so I cannot see any reason why it should not stand good not only against her self and her own Children 〈◊〉 also against all others who should claim under her Title but if you say she could not do this in prejudice of her own right Heirs because the Crown had been already declar'd by Act of Parliament to be Hereditary and not to be acquir'd by Usurpation this is to beg the question and to suppose an Hereditary descent to have been the fundamental Law and constant practice of the Succession of the Crown before that time whereas I have already prov'd that till the Reign of Edward the First the Crown was partly Hereditary and partly Elective and ever since that time though it has been still claim'd as Hereditary yet has it been always believed to be the right of the Parliament to declare who was Lawful King and that whosoever was so declar'd and recogniz'd has been always looked upon in the eye of the Law as the only Rightful and Legal King to whom the Allegiance of the Subjects was due and whose Statutes are obligatory at this day This being so as it cannot be deny'd your Argument from the Act of recognition to King Iames the First may be easily answer'd though I should grant at present for discourse sake that their now Majesties King William and Queen Mary are only King and Queen de facto for if all the Statutes of these three Kings of the House of Lancaster and of Richard the Third nay even those Statutes by which themselves were declar'd to be lawful Kings and the Crown setled upon them and their issue have at all times held good till they were lawfully repeal'd I desire you would shew me any sufficient reason why the late Act of Recognition of their present Majesties Title and for the settlement of the Crown upon their right Heirs of the Protestant Religion should not have the like force and effect in respect of our Allegiance to them as it had been to all other Kings de facto who have hitherto sate upon the Throne though perhaps it may derogate from the intent of that Statute of Recognition of King Iames the First nor does it make any difference though we suppose that this Act was made by a King by descent and that we now discourse of only by a King and Queen de facto and a Parliament call'd or own'd by them since the Law allows no difference as to their Legislative Power between Acts made by a King de facto and one de jure And therefore though I grant that those conclusions you draw from this Statute are true that there is no inter-regnum or vacancy of the Throne And Secondly that the assent of the King is that which gives the life being and vigour to the Laws yet as for your first conclusion that there can be no vacancy of the Throne it is only to be understood that ordinarily and according to the common course of Succession there can be none and yet extraordinarily there may as you your self must grant since upon the death of Queen Elizabeth there might have happen'd a contest between King Iames and the then Earl of Hartford as Heir to Mary the French Queen second Sister to King Henry the VIIIth upon whose Heirs the Crown was setled by Henry the VIIIth's Will as I have already mention'd at our last Meeting and if it had been a doubt whether this Will had been rightly made or not could have been no otherwise decided but by War or else the solemn Judgement and recognition of Parliament of that Title they had judged to be best and he who had been so declared would certainly have been lawful King and all the Nation had been oblig'd to swear Alleglance to him Apply this to the present case admitting King Iames to have truly Abdicated the Throne and see whether it be not exactly the same supposing for once your Prince of Walts to have been indeed the Son of the late King and Queen and though it is true he is not yet declar'd an Impostor yet is he neither acknowledged as their right Heir for the Reasons I have already given But as for your next conclusion that it is the assent of the lawful King that gives force and vigour to a Law from whence you would infer that the late Act of Recognition and Settlement is void because not made by those who were lawful King and Queen at the time of the making this Act this is also to beg the question for though it is true the Act of Recognition to King Iames declares this Act could not be compleat without his Majesties Royal Assent yet it is not there said that no other King but he who claims by descent as King Iames did could pass an Act that should be good
it were granted him by God F. I promise to give you full satisfaction to this question by and by but in the mean time pray let me make it a little more plain to you that this Power of Life and Death which may be exercised by Masters of separate Families over their Wives and Children in some cases is not by any Power they receive from God as Husbands or Fathers but only as Heads or Masters of such Families may by proved by this instance suppose a Master of a Family independant on any other as in the Indies hath neither Wife nor Children yet sure he hath notwithstanding the same Power of Life and Death over his Servants or Slaves for such great offences as you have mentioned in case there be no superiour Power over him to take Cognizance of such Crimes And to make this yet plainer suppose a Married Man having a Wife and Children will live together with them in the Family of such a Master as I have now described yet not aâ— a Servant but as an Inmate or Boarder and whilst he so continues his Wife Kills one of her Children or one of his Sons Murders his Brother who hath right to punish this offence but the Master in whose Family he is an Inmate And this follows from your own supposed for if every separate Family in the state of Nature be a distinct independant Government then all those that enter themselves as Members of such a Family must be subject to the Master or Governour of it Nor do you reduce me into any absurdity by your reply to my argument That if the Power of Life and Death were Originally in Fathers by the Law of Nature it could never be restrain'd nor taken from them without their consent that then this will make as much against the like Power of Masters of Families since I must grant this is taken away by Civil Laws And why not the other To this I reply that you do not observe the strength of these words Without their consent For I suppose that no Power whatever can take this out of the hands of such Fathers or Masters of Families in the state of Nature without they assign it to the Supream Powers of the Common-wealth upon its first Institution whereas you make this Power to be obtainable by Force as by Conquest or Usurpation not only over those that are not at their own disposal as Children and Servants but over their Fathers and Masters too without their consents which is contrary to the Law of Nature and Reason M. I see you take it for granted that I will admit your Instance of the Power of Life and Death to be in the Masters of Families and not as Fathers in the State of Nature But as plain as you think it since you question the Power of Life and Death which I suppose to be inherent in all Fathers I know not why I may not with more Reason question your allowing the like Power to Masters of separate Families since there is no reason in my Opinion which you can bring for such a Power in your Masters of Families which I cannot with like reason urge may be also exercised by Fathers and Husbands over their Wives and Children in case they deserve it For if it be for the good and preservation of mankind that great and enormous Crimes such as Murder and Adultery should be punished and that with Death Who is more fit to inflict these punishments or who can be supposed to judge more impartially of them than the Father or Husband himself Since he cannot put his Son or Wife to Death however they may deserve it without very great reluctancy since he aâ— it were thereby lops off a Limb from his own Body And therefore I cannot see any Reason why such a Married man as you describe should by coming under another Man's Rooâ— only as an Inmate or Boarder and not as a Slave which I grant would alter the Case should lose that Power of Life and Death which I suppose he hath by the Laws of God and Nature over his Wife and Children unless he had actually given it up to the Master of that Family with whom he came to Board And therefore as I do not deny but that a Master of a separate Family hath power of Life and Death and also of making Peace and War with other such Masters of Families nay with Princes themselves if there be occasion as we read in Genesis Chap. 14. That Abraham made War with the four Kings who had taken Lot Prisoner So likewise when Judah pronounced Sentence of Death against Thamar his Daughter-in-Law for playing the Harlot Bring her forth says he and let her be burnt Gen. 38. I own this was not done by the Authority of a Father alone she not being his own Daughter and his Son being then dead but as the Master of a separate Family who hath I grant power of Life and Death as he is Lord over the persons of his Children aâ— Servants and consequently over their Wives also for if he hath power over his Son he hath certainly the like over all that belong to him as long as they continue members of his Family and that he hath not thought fit to manumit or set them free But now I desire to know by what right these Patriarchâ— could exercise all these markâ— of Soveraignty especially this great Power of Life and Death unless it were derived from God at first since no Man hath any power to dispose of his own Life at his pleasure and therefore sure hath naturally no power over that of another man's So that not only this Power of the Patriarchs but also that of all Monarchs to this day must be derived from this Divine Original F. Well then I find you 're forced to quit the power of a Father as such by Generation since it plainly appears that this power of Life and Death which you affirm a Husband or Father may exercise over their Wives or Children in the state of Nature is not quatenus as a Father but Lord and Master over them which in the first place I cannot allow to be true in relation to the Wife nor that the submission of the Wife's Will to the Husband must imply a power of Life and Death over her for if she is not his Slave as certainly she is not for then a Man might sell his Wife when he pleased I cannot see how she her self could convey by force of the contract any such Power over her Life tho I grant indeed if she happen to commit Murder upon one of her Children or other Person of the Family he may proceed against her as an Enemy but not as a Subject and if it be for Adultery it self I cannot see that the Husband can by the Law of Nature punish her with Death for since that Crime doth really dissolve the bond of Matrimony Divorce or putting her away and deserting the Child born in Adultery
thou hast the knack to wheadle or persuade him Would not this have been a mighty matter for God Almighty to have appeared to Cain about and an excellent Argument to comfort him and to appease his Wrath against his Brother So that it seems apparent by this Law given by God to Cain and Abel that this Regal and Paternal Authority was not to dye with him nor â—o be equally divided amongst all his Children at his Death or that from thenceforth no man should have a Right by Birth of commanding another for this command to Abel could not be supposed to take place in the Life of Adam for then Adam was Lord over all his Children and so none of them without his permission could rule over the rest and if it were otherwise by Adam's appointment then Adam was the Soveraign still and the Son or Grand-Son so exercising this Power was but his Deputy but after Adam's decease then it became a real Soveraignty in his Eldest Son as having none but God Superior to it F. I hope you will judge more charitably of me than to believe that the sense that I have put upon these words tho' different from yours is out of any love of Anarchy or confusion much less out of any design to pervert or wrest this place of Scripture and if I should be so severe as you are perhaps I might with more reason lay this charge at your Door for in the first place I am not satisfied with your Argument that these words could not be meant personally or concerning Abel only because the same words when spoken of Eve do likewise concern her Posterity and therefore when spoken concerning Abel they must likewise relate to all Younger Brothers in Hereditary Monarchies which consequence I may with very good reason deny for whatsoever subjection may be due by vertue of the like words from Eve and her Posterity to Adam and all other Husbands is to be supposed to have been enjoyned because all Women are descended from Eve and so were represented by her as their first Parent Thus St. Paul supposes all men to be in a state of Sin and Death as represented by Adam their Ancestor by whose disobedience all have sinned But no man will affirm that all the Elder Brothers or Monarchs in the World were represented by Cain and all younger Brothers by Abel no man at this day being as appears in Scripture descended from either of them and I cannot but take notice that the better to strengthen your Notion you again foist in out of the margin of our English Bible His desire shall be subject to thee whereas in the Hebrew it is no more than His or its desire shall be to thee And that the words Rule over are to be interpreted according to the subject and do not always mean a ruling by force or command appears by the same Hebrew words made use of in the first of Genesis concerning the two great Lights that God set in the Firmament to give Light upon the Earth to rule over the Day and over the Night which cannot signifie a ruling by force or command but only by a natural influence or preheminence of the Sun and Moon above the Stars or Planets And tho' you are pleased to ridicule this explanation of mine yet I think I may with as much reason treat yours with the like contempt for since your self grant that this Power of Cain over Abel was not to commence till after the Death of Adam and that this Murder of Abel was committed above a hundred years after Adams Creation appears by the time of the Birth of Seth who was born sometime after Abel's Death would not this thing have been a mighty comfort to Cain when he was in his dogged humor if God had bid him chear up for the time should come that if he behaved himself well about eight hundred years hence when his Father Adam should die he should then Lord it over his Brother and be revenged of him for the affront he had received in having his Sacrifice preferred before his own So that this interpretation of yours is so absurd that I do much rather agree with divers learned commentators as well Jews as Christians who make not only a quite different interpretation but also a different version of these words from the Hebrew Text and if you have the Learned Jesuit Menochius his Notes upon the Bible I pray let me see them Here pray observe what he says upon this place Seâ— sub te erit appetitus ejus in Hebraeo apud LXX est ad te conversio ejus sensus est Peccatum ejusque appetitus concupiscentia te sollicitabit ad consensum sed ita ut ad te converti a te conseusum petere impetrare debeat id noster interpres ad sensum clare vertit sub te erit appetitus ejus by all which he means no more than that sin should tempt or sollicit him to offend but that he should rule over it that is had a power so to do if he would use it as he ought So likewise Mr. Ainsworth upon this place as you may see in Pool's Criticks puts a liâ—e sense upon the following words referring the whole sentence to the sin in these words Peccatum ponitur pro poena Peccati juxta Hebraeos ita accipitur Gen. 19.15 Lev. 20. 9. 1 Rep. 7.9 sinsus est prope te punitio peccati ad te desiderum ejus i. e. cupit te poena peccati tui ut solet post peccatum admissum Sed tu si vis dominaberis illi i. e. potes declinare peccatum q. d. poena haec sicut canis est qui ad ostium cubat cupiens ingredi sed in potestate Domini est vel claudere ostium ne ingrediatur vel aperire ut intret Probatur hic sensus 1. Prius membrum de praemio lâ—quitur reportabis scil praemium ergo posterius loquitur de poena peccatum jam inerat ipsi punitio vero nondum sed ad fores erat So that according to these learned Comentators this place is to be thus turned out of Hebrew If thou dost not well sin lyeth at the door and to thee is its desire but thou mayst or shalt rule over it which seems to me to be a much more Genuin and Rational Interpretation than that of our English or Latin Bibles so that I think I may justly except against the Authority of so doubtful and obscure a place as sufficient to found your Monarchical Power of Elder Brothers in the State of Nature M. Well Sir since you are no better satisfied with this Testimony oâ—â— of Genesis for the Divine Right of Primogeniture I will no longer insist upon it tho' I am not yet convinced but that my Interpretation of this place is truer than yours since I have likewise great Authorities on my side both Antient and Modern besides our common versions to authorize it and
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
them that by shooting they would also call in the Neighbouring Town who might be too strong for all their Fellow Thieves Now if you will but take these honest People of the next Town for such Neighbouring Princes or States who may Joyn in the Assistance of such an Opprest People this Simile will fully answer your Argument of those Neighbouring Princes that may take Part with an Oppressing Tyrant And as for the Consequence of such Assistance on the one side or the other that it may happen to bring them into a worse Condition than they were before viz. a Subjection to Foreigners as I have put the Case it can be no cause to detâ—r the People from Resisting for if they were as I suppose reduc'd to a Condition of slavery before and had lost all their Liberties and Properties how can we Imagine them in a worse Case than they are already And it is all one to such a People whether their own or a strange Prince did Tyrannize over and oppress them Nay were I to take my Choice I had much rather be Tyrannized over and opprest by a Foreigner than from my own Natural Prince since the former conâ—ing in by force and without any precedent Promise or Compact I lye wholly at his Mercy who hath no Obligation upon him I had much rather if I were to be â— slave be so to a Stranger than to my own Father if I were assured that both the one and the other would use me with like severity And to answer your Instance of your Irish King I think that Nation hath been so far from losing any thing by their Subjection to the English Government that they have gained far greater Priviledges and Liberties both for their Persons and Estates than ever they enjoyed under their own Princes So that they are rather the better than the worse by the Change And as for your other Example of Prince Lewis it is uncertain whether the Condition of the English Nation would have been either better or worse under a French King but thus much I am sure of that had King Iohn Proceeded in that Tyrannical Course against his Barons and the rest of his Subjects they could scarce have been in a worse Condition under the French nay the Moors themselves haâ— King Iohn actually surrendered his Crown to the Sarracâ—n Emperour as the Historians of those times relate he offered to do Nor can I be of your Opinion that iâ— had been much better for the Barons and Nobility of this Kingdom never to have stirred or resisted the King at all since if they had not they had never obtained the GREAT CHARTER of our Liberties from him and if they had not as Vigorously defended it when they had once got it I doubt not but the People of England had been long before this time in the same Condition at to their Liberties and Properties as some of our Neighbouring Nations all which is sufficient I think to prove that Resistance in desperate and unavoidable Cases is not attended with those mischiefs and Inconveniencies you suppose M. I shall not say much more in answer to your lost discourse since it would be to little purpose but only take Notice that Similes are not Arguments and therefore your Comparison between Thieves and Honest Men doth not hold as to Princes and Subjects since sure there is a great deal of difference between those that are to be Obeyed as the Ordinance of God and those who are Obliged in Conscience to be subject to them and Thieves who act directly contrary to Gods Will and Honest Men who having no obligation to them may justly resist them So that if that be false the rest of the Comparison will signifie nothing And as for what you say concerning MAGNA CHARTA I think it is not much for its credit to have been extorted by Force and afterwards defended by Rebellion tho' I will not go about to Impeach the Validity of it since so many of our Succeeding Kings have so solemnly and voluntarily confirmed it only pray take notice that it is wholly derived from the Grace and Bounty of our Monarchs and therefore we are not to resist tho' it may happen to be sometimes and in some Particular Cases broken and infringed by the King for some great Occasions or Necessities of which we are not competâ—â—t Iudges But to come to the rest of those evil Consequences that may attend your Doctrine of Resistance I think the Benefits would be much greater to the People by strictly adhering to those Doctrines of Absolute Subjection and Non-resistance than by propagating yours of Rebellion For if the former were constantly taught and inculcated as most beneficial for them and if they were once really persuaded of the Truth of it and would both constantly profess and practise it it would make all Princes much more Gentle and mild to their Subjects than otherwise at some times they are For now they are still fearful that they will take the first opportunity they can to take up Arms against them And upon the least Grievance or Mis-Government to resist their Authority for then Princes not needing to keep any such constant Guards and standing Armies might afford to lay much easier Taxes and impositions upon them for the maintenance and support of the Government than now they do and in short would have much fewer Temptations to Tyranny and Oppression could they be once assured of their Subjects absolute Obedience and Subjection Whereas when they are under those constant fears and suspitions of Insurrections and Rebellions against them upon the least occasion it is no wonder if they are tempted sometimes to abuse this Power for their own Security And therefore we read in our Histories that William the Conquerour never thought himself secure from the English whom he had newly Conquered till such time as he had turned most of the Nobility and Gentry out of their Offices and Estates lest they should have any Power left either in his Life time or after his Death to turn him or his Posterity out of the Throne as they did the Heir of the Danish King Cnute who with his Danes had before Conquered England as King William did afterwards with his Normans So that upon the whole matter it seems to me much more to conduce to the main design of Civil Government viz. The Happiness and Peace of Mankind in General that Princes and other Supream Magistrates should be suffered I will not say authorized by God sometimes to abuse their Power to the general oppression and enslaving of the People without any Resistanâ—e on their side expecting their dâ—liverance WHOLY from him who can bring it about in his good time and by such means as shall seem most meet to him than that Subjects should take upon them to be both Iudges and Executioners too in their own Case and thereby introduce not only all the Mischiefs of Civil War and all those cruel Revenges which the Wrath
they had brought with them out of the Land of Egypt and had sold the People or their Children for slaves to the Neighbouring Nations to inrich himself and his Family do you believe that the Children of Israel had been Obliged to have Obeyed such a Leader and not have resisted him and his party if there had been occasion So likewise if Ioshua instead of Leading Gods People into the Holy Land had taken upon him notwithstanding Gods Commands to have carried them again into Egypt can you think they had been bound to Obey him and might not Lawfully have resisted him if he had gone about by the assistance of his Accomplices to force them to it For I doubt not but if these Substitutes had acted contrary to that Commission God had given them they were no longer to be look'd upon as Gods Vicegerents no more than the now Lieutenant of Ireland the Lord Tyrconnel ought to be Obeyed and not resisted if he should go about by Vertue of that Commission which the King hath conferred upon him and by the help of the Rebellious Irish in that Kingdom to murder all the Protestants and set up for himself So likewise all this strict Obedience and submission that was to be paid to the Sentence of the High-Priest or Iudge was only in Relation to God himself whose Sentence it was and who always Revealed his Will either to the Iudge by particular Inspiration or to the High-Priest by the Ephod or Urim and Thummim And therefore we read in Iudges that Deborah tho' a Woman yet being a Prophetess inspir'd by God judged Israel Now suppose that this Iudge or High-Priest neglecting like Balaam the Divine Inspiration and the Dictates of that Sacred Oracle had instead of a Righteous Iudgment given a Sentence in a Cause that had come before them whereby Idolatry or breach of some great Point of the Law of Moses had been established do you think that God ever intended that this Sentence should have been Obeyed under Pain of Death And therefore you may find in the 2d Book of Maccabees that when Iason and Menelaus had by Bribery obtained the High-Priesthood tho' it was then the Chief Authority under the Kings of Syria both in Ecclesiastical and Civil matters yet when they went about to undermine the Iewish Religion and seduce the People to Idolatry they are not at all look'd upon as High-Priests but are there called Ungodly Wretches doing nothing worthy of the High-Priesthood but having the fury of a Cruel Tyrant and of a Savage Beast and were so far from being at all Obeyed by the Iews that Iason Menelaus and Alcimus who were successively High-Priests in the room of Onias were as far as the People were able opposed by them till at last Iudas Maccabeus taking Arms against Alcimus the High-Priest restored by force the true Worship of God So that you see that the Obedience was not pay'd to the Person of the High-Priests only as such by vertue of this Precept in Deuteronomy but only as far as they observed the Law of Moses and gave sentence or Judgment in all matters according to it And therefore it is no good Argument of yours because the People were bound to obey their sentence in doubtful cases therefore they had an absolute irresistible Power to give what Iudgments they pleased and that the People were obliged to observe them under pain of Death and being Guilty of Rebellion For that had been to have given the High-Priests and Iudges a Power to have altered the true Worship of God when ever they pleased and to have introduced Idolatry in the Room of it So that I think none of these places will prove any more but that God and his Lieutenants were to be Obeyed and that it was Rebellion to resist them under the Iewish Government as long as they did not force the People to Idolatry which I do not at all deny M. Tho you labour to wave these examples and Precepts which I have now cited and will not take them for convincing yet let me tell you your exceptions against them only tend to prove that Idolatrous Kings might be resisted under the Iewish Law which is directly contrary to the Sacred History as I shall prove very clearly to you by these following Testimonies I shall make use of yet I think it is much more plain that when the Iews would have a King their Kings were to be invested with a Supream and irresistible Power for when they desired a King of Samuel they did not desire a meer nominal and titular King but a King to Iudg them and go in and out before them and fight their Battles that is a King who had the Supream and Soveraign Authority a King who should have all that Power of Government excepting the peculiar Acts of the Priestly Office which either their High-Priest or their Iudge had before And therefore when Samuel tells them what shall be the manner of their King tho what he says doth necessarily suppose the translation of the Soveraign and Irresistible Power to the Person of their King yet it doth not suppose that their King had any new Power given him more than what was â—â—â—â—cised formerly by the Priest and Iudges He doth not deter them frâ—â— chusing a King because a King should have greater Power and â—e more uncontroulable and Irresistible than their other Rulers were for Samuel himself had before as Soveraign and Irresistible a Power as any King being the Supream Iudge of Israel whose sentence no Man could disobey or contradict but he incurred the penalty of Death according to the Mosaâ—cal Law But the reason why he distuades them from chusing a King was because the external Pomp and Magnificence of Kings was like to be very Chargeable and oppressive to them He 〈◊〉 your Sons and 〈◊〉 them for himself for his Chariots and to be his House Men and some shall ran before his Chariots And he will appoint him Captains over Thousands and Captains over Fifties and will set them to ear his Ground and to reap his Harvest And thus in several Particulars he shews them what burdens and exactions they will bring upon themselves by setting up a King which they were then free from and if any Prince should be excessive in such â—â—â—actions yet they had no way to help themselves they must not resist nor rebel against him nor expect that whatever inconvenience they might find in Kingly Government God would relieve and deliver them from it when once they had chosen a King Ye shall cry out in that day because of your King that you have chosen you and the Lord will not hear you in that day That is God will not alter the Government for you again how much soever you may complain of it This I say is a plain Proof that their Kings were to be invested with that Soveraign Power which must not be resisted tho' they oppress their Subjects
themselves in Caves and Mountains and yet this was the only defensive War which David made with all his Men about him nay all that he would make and all that he could make according to his Professed Principles that it was not Lawful to stretch out his hand against the Lords Anointed And when these Men are pursued as David was by an enraged and Jealous Prince I will not charge them of Rebellion tho' they fly before him by thousands in a Company Yet there was sufficient Reason why David should entertain these Men who voluntarily resorted to him tho' he never intended to use them against Saul for some of them served for Spies to watch Sauls Motions that he might not be surprised by him but have timely notice to make his Escape And the very presence of such a number of Men about him without any Hostile Act preserved him from being seiz'd on by some Officious Persons who otherwise might have delivered him into Sauls hands And he being Anointed by Samuel to be King after Sauls Death this was the first step to his Kingdom to have such a Retinue of Valiant Men about him which made his Advancement to the Throne more easie and discouraged any Oppositions which might otherwise have been made against him as we see it proved in the event and have reason to believe that it was thus ordered by God for that very End It is certain that Gad the Prophet and Abiathar the Priest who was the only Man who escaped the Fury of Saul when he destroyed the Priests of the Lord were in Davidâ— Retinue and that David enterpriz'd nothing without first asking Counsel of God But he who had Anointed him to be King now draws Forces after him which after Saul's Death should facilitate his Advancement to the Kingdom F. I cannot think your Answer to this Objection satisfactory for first it is evident that when David was at the Cave of Adullam his Brethren and all his Fathers House as soon as they heard it went down thither to him and tho' it be not expresly said that he sent for any to come to his Assistance yet it is plain he refused none that came and to what purpose should he make use of so many as 400 or 600 Men unless it were to defend himself against those Men that Saul might send against him since half a score or twenty Persons had been enough to have served for Spies and if he had thought himself obliged only to run away three or four Servants had been enough in conscience to have Waired on him in any Neighbouring Country but that David thought it no Sin to defend himself from the Violence of those which Saul should send to Kill him is plain from what he says to Abiathar upon his flight unto him after the Death of his Father Abide thou with me fear not for he that seeketh my Life seeketh thy Life but with me thou shalt be in safeguard And if David had not meant by these Words to have defended Abiathar's as well as his own Life if assaulted and without a Possibility of escaping it had been very cold comfort for David to have only assur'd him that he should be in safe-guard with him till the first assault that should be made upon them but that then he should shift for himself for as for his own part he would rather permit his Throat to be cut by the Kings Officers or Souldiers than resist them And therefore tho' I own that it was not Lawful for him to stretch out his hand against the Lords Anointed Since I do not allow any Private Subject to Kill even Tyrants unless a in State of actual War or Battle wherein they are Aggressors nor then neither if it can possibly be avoided Yet do I not find it at all unlawful for David or any other private Man to defend his own Life against such Assassinates as his Prince may send against him So it may be done without a Civil War or endangering the Peace of the Common-Wealth And so much you your self tho' Coldly seem to yield when you say that the very Presence of such a number of Men about David without any Hostile Act preserved him from being seiz'd on by some Officious Persons who otherwise might have delivered him into Sauls Hands For I cannot think that David would have been at the trouble of keeping so many Men only for shew and a Terrour to those Officious Persons you mention without resisting of them if there had been occasion And tho' you tell me that his being Anointed by Samuel to be King after Sauls Death was the first step to the Kingdom to have such a Retinue of Valiant Men about him which made his Advancement to thoâ—punc Throne so much the â—aster and discouraged any Opposition which might have been made against him and that we see it proved so in the Event and therefore have Reason to believe that it was thus ordered by God to that very End I must take the Liberty so far to differ from you For first I desire to know by what Authority David could List 600 or 700 Men in Arms in Sauls Territories and whether according to your Doctrine they were not Rebels for joyning themselves with one who was declared a Traytor by the King And tho' you say it was thus ordered by God I grant indeed it was yet doth it not appear that it was done by any Divine Revelation to Nathan or Abiathar but only by the Ordinary Course of his Providence like other things in the World and therefore it is no fair way of Arguing for you to affirm that what ever David did in the matter of his own Defence contrary to your Principles he must needs do it by express order from God of which the Scripture is wholy silent much less doth it appear from the Story that these Men whom David kept with him were only to facilitate his attaining the Kingdom as you affirm since the Scripture mentions no such thing only that after Saul's Death he went up by Gods Command to Hehron with the Men that were with him and thither the Men of Iudah came and there they Anointed David King over the House of Judah but 't is no where mention'd that these Men were of any use to David for the Obtaining of the Crown since the Tribe of Iudah would have made him King tho' these Men had not been with him for what could 600 or 1000 Men do against so vast a Multitude as the whole Tribe of Iudah And therefore it is evident that these Forces were for no other End than his own defence And tho' you make very light of this State of War in which David was in relation to Saul yet pray tell me supposing that the Duke of Monmouth had really been as he Pretended the Legitimate Son of King Charles the II. but by some Particular Disgust of his Father or by the Intrigues of his Competitor the Duke of York had
been forc'd to fly into Scotland and 〈◊〉 to have defended himself with 1000 or 1500 of his Tenants and followers tho' without Fighting the Kings Forces that should have been seâ—â— against him but flying into the High-lands and had there maintain'd himself as David did by Free Quarters or Conâ—ribuâ—ion of the Inhabitants till his Father dyed would not this have been cryed out upon in all the Pulpits in England as a most Horrid Rebellion of a Son and a Subject against his King and Father tho' he had never done any Act of Hostility against his Forces but always 〈◊〉 from them And yet he being Heir Apparent to the Crown might have pleaded as well as David that he kept these Soldiers about him only to keep himself from being Murdered by those Officious Persons whom his Father or Uncle might send to apprehend him and to have such a Retinue of Valiant Men about him as might render his advancement to the Throne more easie when ever his Father should dye I shall not urge as a farther proof of the Lawfulness of Davids Resistance of Sauls Forces his Intention to have slay'd in Keilah and to have fortified it against Saul had not he been informed that the Men of that City would have saved themselves by delivering him up to Saul Since I confess it doth not certainly appear by the Text whether David would have stayed any longer there than till Saul had approach'd near to that place whether the Keilites would have delivered him up or not much less shall I urge that other example which some Men make use of of Davids going to the last Battle against Saul with Achish King of the Philistines For tho' it be plain he march'd with them as far as Apbek in the Tribe of Issachar yet I confess it is not certain whether he really intended to have assisted them or not in this War against his Country since he might either have gone over to Saul at the beginning of the Battle or else have stood neuter tho' neither of them would have been very Honourable or Consonant with Davids Character therefore I shall say nothing of this since the Lords of the Philistines for fear he should prove aâ— adversary to them in the Battle made him retire again into the Land of the Philistines tho' he seemed to be very much troubled to be so distrusted that he might not fight against the Enemies of that King who had so good an Opinion of him And therefore I pray will you proceed to those other Exâ—mples you have to produce out of the Old Testament M. Well since you are not fully satisfied with this Instance of David tho' I am glad you allow the Persons even of Tyrannical Princes to be Sacred therefore to proceed in the story Solomon who succeeded David in his Kingdom did all those things which God had expresly forbid the King to do He sent into Egypt for Horses He multiplied Wives and loved many strange Women together with the Daughter of Pharaoh VVomen of the Moabites Ammonites c. He Multiplied Silver and Gold For this God who is the only Iudge of Soveraign Princes was very angry with him and threatens to rend the Kingdom from him which was afterwards accomplish'd in the Days of Rehoboam but yet this did not give Authority to his Subjects to Rebel If to be under the Direction and Obligation of Laws makes a Limited Monarchy it is certain the Kingdom of Israel was so There were some things which the King was expresly forbid to do as you have already heard and the Law of Moses was to be the Rule of his Government the standing Law of his Kingdom And therefore he was Commanded when he came to the Throne to write a Copy of the Law with his own hand and to read in it all his Days that he might learn to fear the Lord his God and to keep all the Words of this Law and these Statutes to do them and yet being a Soveraign Prince if he broke these Laws God was his Iudge and Avenger but he was accountable to no earthly Tribunal nor do we find tho' there were so many wicked and Idolatrous Kings of Iudah who broke all the Laws of God given them by Moses that ever any of the Priests or Prophets stirred up the People to Rebel against them for it F. Neither of these Instances do reach the Case in hand For I grant that neither the Breach or non-observance of these Precepts enjoyned the Kings of Israel by God Nor yet their open Idolatry were a sufficient Cause for their taking up Arms or resisting their Kings in so doing since those were offences only against God and in which the People had nothing to do those being no part of that Tacit or implicit Compact of Protection and Preservation that goeth along with all Kingdoms and Supream Powers whatsoever And I have already excepted out of the Causes of Resistance or taking up Arms the Princes being of a different Religion from that of his Subject And tho' I must own that the Kings of Israel were under the direction or Obligation of the Law of Moses and so were limited Monarchs yet this limitation was not from the People but from God whose business it was to revenge the breach of it as often as they offended and if they broke those Laws God only was their Judge and Avenger as you your self very well observe who never failed severely to punish this breach of his Laws Nor yet were the People of the Iews always so nice and temperate as you make them For besides the example of Rehoboam which I have formerly made use of you will find in the 2d of Chronicles concerning Amaziah who when he turned away from following the Lord They viz. the People made a Conspiracy against him in Jerusalem and he fled to Lachish but they sent to Lachish after him and slew him there and made his Son Vzziah King in his stead nor do we read that any were punish'd for killing him as Amâ—ziab put to Death the Servants of his Father King Ioash for conspiring against him as it is related in the 10th Chap. of the 2d of Kings and you 'l find in the same Book that the City of Libna revolted which sure is the highest degree of Resistance from that wicked King Iehoram who had slain all his Brethren with the Sword and walked in the way of the Kings of Israel as did the house of Ahab and wrought that which was evil in the sight of the Lord c. And therefore it is said expresly in the Text that the City of Libna revolted from his hand because he had forsaken the God of his Fathers I bring not these Instances to Iustifie Rebellion but to let you see that it was sometimes practised amongst the Iews tho' you affirm to the contrary But much more lawful was the Resistance which Azariah and the 80 Priests that were with him
of the City whither I have caused you to be carried away Captives and pray to the Lord for it for in the Peace thereof you shall have Peace Which made it a necessary duty to be Subject to these Powers under whose government they lived And accordingly we find that Mordecai discovered the Treason of Bigthana and Teresh two of the Kings Chamberlains the Keepers of the Door who sought to lay hand on the King Ahasuerus And how numerous and Powerful the Iews were at this time and what great disturbance they could have given to the Empire appears evidently from the Book of Esther King Ahasuerus upon the suggestions of Haman had granted a Decree for the Destruction of the whole People of the Iews which was sent into all the Provinces Written and Seal'd with the Kings Ring This Decree could never be reversed again for that was contrary to the Laws of the Medes and Persians And therefore when Esther had found Favour with the King all that could be done for the Iews was to grant another Decree for them to defend themselves which accordingly was done and the effect of it was That the Jews at Shusan slew 300 Men and the Jews of the other Provinces slew 75000 and rested from their Enemies Without this Decree Mordecai did not think it Lawful to resist which yet was a Case of as great extremity and Barbarous Cruelty as could ever happen which made him put Esther upon so hazardous an Attempt as to venture into the Kings Presence without being called which was Death by their Law unless the King should graciously hold out the Golden Scepter to them yet when they had obtained this Decree they were able to defend themselves and to destroy their Enemies which is as famous an Example of Passive Obedience as can be met with in any History And pray see here what the Prophet Daniel acknowledges to Belteshazzar The most High God gave Nebucadnezzar thy Father a Kingdom and Majesty and Glory and Honour and for the Majesty that he gave him all People Nations and Languages trembled and feared before him Whom he would be slew and whom he would be kept alive and whom he would be set up and whom he would â—e pulled down And if these Heathen Kings received such a Power from God as the Prophet here affirms St. Paul has made the Application of it that he that resisteth resisteth the Ordinance of God And I think these Examples may serve out of the Old Testament and therefore I shall conclude with the saying of the Wise Man who was both a Prophet and a King Where the Word of a King is there is Power and who may say unto him What doest thou F. Tho' this last proof be the stongest you have yet brought yet I think it will not reach the Point in Question to prove that no Resistance whatsoever tho' for saving the Lives of a whole Nation can be Lawful I grant indeed that the Command of the Prophet Ieremiah of Praying for the Peace of the City whither they were carried away Captives was to be obeyed being obliged to do it not only by the Laws of Nature and in Regard of those Benefits of Protection and injoying the Free exercise of their Religion and Liberties without being made Slaves tho' they had been carryed Captives which was no more than removing them out of one Country and setling them in another according to the Custom of the Eastern Princes of those times when they would by removing of the best and greatest of the People out of a Conquered Countrey prevent their Rebelling against them as they had done before but that they enjoyed a Property in their Lands and Estates after their Captivity is certain by the Prophets commanding them to Build and Plant Vineyards in the Country of Babylon during the 70 years Captivity foretold by him from God So likewise I grant it to be a necessary Duty in Subjects tho' strangers to be Faithful and Obedient to those Princes and States under whose Governments they live and therefore Mordecai no doubt performed his Duty when he discovered the Treason of the Kings Chamberlains that thought to kill him But to come to your main Argument that it was unlawful for the whole Nation of the Iews to resist those who were impowered by the Decree of King Ahasuerâ—â— to Massacre and Destroy them I shall not dispute with you about the Matter of Fact as you have related it but only in this particular that whereas you suppose till the King had Issued out a second Decree wherein he granted the Iews which were in every City to gather themselves together and to stand for their Lives to destroy to slay and Cause to Perish all the Power of the People and Province that should assault them c. and to take the spoil of them for a Prey without which Decree you suppose Mordecai did not think it Lawful to resist tho' it was a Case of as great extremity as could ever happen and that therefore Esther was put upon so Hazardous an Attempt as to venture to Obtain this Decree tho' with the Peril of her Life but that when they had once obtained it they were then and not before enabled to defend themselves and destroy their Enemies In answer to which I must needs tell you that you do not fairly represent the latter part of this story for it no where appears in the Text tho' you are pleased to add it that Mordecai did not think it Lawful for the Iews to resist till this Decree was obtained for it is only there said That he sent Esther to the King and as soon as she came into his presence she fell down at his feet and besought him with Tears to put away the Mischief of Haman the Agagite Pray read the words And she said If it pleases the King and if I have found favour in his fight and the thing seems right before the King and I be pleasing in his Eyes let it be written to reverse the Letters devised by Haman the Son of Hammedatha the Agagite which he wrote to destroy the Jews which are in all the Kings Provinces By which you may see that Esthers Request was not for a Liberty to defend themselves as you suppose but only to try if she could get the King to reverse the first decree obtained by Haman to destroy them but because the Kings Decree when once Issued out was not to be reversed therefore He Issued this second Decree to give the Iews a Legal or Civil Power to gather themselves together and stand upon their defence against all that should assault them which was so far obeyed that the Rulers of the Provinces and other Officers of the King instead of destroying helped the Iews because says the Text the fear of Mordecai fell upon them So that tho' I own this Decree gave them a Legal Power to stand upon their defence and did likewise
a farther end than this to bless and reward a virtuous Nation or to punish a loose and degenerate Age and there cannot be a greater Blessing than a Wise and Virtuous Prince nor a greater Plague than a merciless Tyrant And therefore the Providence of God is as much concerned in setting a good or a bad Prince over any People as in rewarding or punishing them Upon this account God calls the King of Assyria the Rod of his Anger whom he raised up for the punishment of an hypocritical Nation Secondly I have already proved that by the Powers in this Text the Apostle means the Persons of Soveraign Princes and therefore according to his Doctrine those Princes who were then in Being that is the Roman Emperours were advanced by God the Powers that be that is the Princes and Emperours who now govern the World are ordained and appointed by God and that thus it is God himself tells us I have made the Earth and given it to whom it seemed meet unto me and now I have given all these Lands into the hands of Nebuchadnezzar King of Babylon my Servant This was also the Belief of the Primitive Christians under Heathen and persecuting Emperours Tertullian who wrote his Apology under Severuâ— asserts that Caesar was chosen by God and therefore that the Christians had a Peculiar Propriety in Caesar as being made Emperour by their God So likewise St. Augustine de Civitate Dei speaks to this purpose as I remember God giveth Happiness in the Kingdom of Heaven to the Godly alone But this Earthly Kingdom both to the Godly and Ungodly as it pleases him He that gave the Government to Marius gave it also to Caesar He who gave it to Augustus gave it also to Neroâ—â— He who gave it to the Vespasians Father and Son most beloved Emperours gave it also to the most cruel Domitian and not to recount the rest of them He who gave it to Constantine the Christian gave it also to the Apostate Iulian. These things without doubt the only True God governed as he pleased by Causes tho' hidden yet not unjust So likewise almost all the rest of the Fathers do own that Wicked and Tyrannical Princes are given as Punishments to the People for their Sins and so upon this account are to be endured and not resisted since it is God's Will to have it so But as for Usurpers I think I can give you a very satisfactory Answer for the most prosperous Rebel is not the higher Power while our natural Prince to whom we owe Obedience and Subjection is in being And therefore tho' such men may get the Power into their hands by God's Permission yet not by God's Ordinance and he who Resisteth them doth not Resist the Ordinance of God but the Usurpations of Men. Whereas in Hereditary Kingdoms the King never dies but the same Minute that the Natural Person of a King dies the Crown descends upon the next of Blood And therefore he who Rebelleth against the Father and murders him continues a Rebel in the Reign of the Son which commences with his Fathers Death It is otherwise indeed where none can pretend a greater Right to the Crown than the Usurper for there the Possession of Power seems to give a Right Thus many of the Roman Emperours came to the Crown by very ill means but when they were possest of it they were then the higher Powers For the Empire did not descend by Inheritance but sometimes by the Election of the Senate sometimes of the Army and sometimes by Force and Power which always draws a Consent and Submission after it And therefore the Apostle doth not direct the Christians to inquire by what Title the Emperours held their Crowns but commands them to submit to those who had the Power in their hands For the Possession of the Supream and Soveraign Power is Title enough when there is no better Title to oppose against it for then we must presume that God gives him the Irresistible Authority of a King to whom he gives an Irresistible Power which is the only means whereby Monarchies and Empires are transferred from one Nation to another There are two Examples in Scripture which manifestly confirm what I have now said The first is in the Kingdom of Israel after the Ten Tribes had divided from the Tribe of Iudah and the Family of David where God had not entailed the Kingdom upon any certain Family For after Ieroboam the first King it is plain by the Story in the Books of Kings and Chronicles that for some Successions there was nothing but Rebellion and the Murder of one King by another so that the Kingdom rarely descended from the Father to the Son and in the whole Succession of these Kings it only remained in the House of Ieâ—u for four Generations and then it returned to its former uncertainty as you may see in the 15 th Chap. of the 2 d. of Kings All which plainly shews that where there is no regular Succession to a Kingdom there Possession of Power makes a King who yet cannot afterwards be resisted and opposed without the Guilt of Treason And this was the Case of the Roman Empire at the Writing of this Epistle And therefore the Apostle might then very well say that the Powers that be are ordained of God and that whoever had the Supream Power in his hands was the Supream Power that might not be resisted But it was otherwise in the Kingdom of Iudah which God himself had entailed on David's Family as appears from the Examples of Ioash and Athaliah which we discoursed of at our last meeting but one which Examples plainly shew that no Usurpations can extinguish the Right and Title of a Natural or Hereditary Prince such Usurpers tho' they have the Possession of the Supream Power yet they have no Right to it and tho' God for wise Reasons may sometimes permit such Usurpations yet whilst his Providence secures the Persons of such deposed and banished Princes from Violence he secures their Title too But to prove more plainly that no Resistance is to be made against the Persons or Authorities of the Supream Powers let them be never so Cruel and Tyrannical as it is evident not only from what St. Paul hath here written but I shall crave leave to insist farther on that Text of St. Peter before cited in his 1 st Epistle 2 d. Chap. Submit your selves to every Ordinance of Man for the Lords sake whether it be to the King as Supream or unto Governours as unto them that are sent by him for the punishment of Evil Doers and for the Praise of them that do well where by Ordinance of Man whether we understand as some do every Human Law or with others more justly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 every human Creature as it is in the Original that is every man endued with Supream Power it comes all to the same sense and the King as the
and to render Obedience to Governours altho' they be wicked and wrong doers and in no Case to resist and stand against them Subjects are bound to obey them i. e. Governours as Gods Ministers altho' they be evil not only for fear but also for Conscience sake and here good People let us mark diligently that it is not Lawful for Inferiours and Subjects in any Case to resist and stand against the Superiour Powers for St. Paul's words are plain that whoso withstandeth shall get to themselves Damnation Our Saviour Christ and his Apostles received many and divers Injuries of the unfaithful and wicked men in Authority yet we never read that they or any of them caused any Sedition or Rebellion against Authority we read often that they patiently suffered all Troubles Vexations Slanders Pangs Pains and Death it self obediently without Tumult or Resistance Christ taught us plainly that even the wicked Rulers have their Power and Authority from God and therefore it is not Lawful for their Subjects to withstand them altho' they abuse their Power Let us believe undoubtedly good Christian People that we may not obey Kings if they command us any thing contrary to Gods Commandments in such a Case we ought to say as the Apostle We must rather obey God than Man but nevertheless in that Case we must not in any wise withstand violently or Rebâ—l against Rulers or make any Insurrection Sedition or Tumults either by force of Arms or otherwise against the Anointed of the Lord or any of his appointed Officers but we must in such a Case patiently suffer all Wrongs and Injuries referring the Judgment of our Cause only to God And see part the third of the same Homily Ye have heard before of this Sermon of good order and Obedience manifestly proved both by Scriptures and Examples That all Subjects are bound to obey their Magistrates and for no cause to resist or withstand or rebel or make any Sedition against them yea altho' they be wicked men I could find many more such places in our Homilies but I shall trouble you but with one other Passage out of the second Book of Homilies compiled in the Reign of Queen Elizabeth in which Book the Homily against Willful Rebellion is full to this Purpose In reading the Holy Scriptures we shall find in very many and almost infinite places as well of the Old Testament as of the New that Kings and Princes as well the Evil as the Good do Reign by Gods Ordinance and that Subjects are bound to obey them The farther and farther any Earthly Prince doth swerve from the Example of the Heavenly Government the greater Plague he is of Gods Wrath and Punishment by God's Justice unto the Country and People over whom God for their Sins hath placed such a Prince and Governour What shall Subjects do then What a perillous thing were it to commit to Subject 〈◊〉 Iudgment which Prince is wise and Godly and his Govern◠〈◊〉 good and which otherwise as tho' the Foot must judge of the â—ead a◠〈◊〉 very heinous and which must needs breed Rebâ—â—â—â—â—â— and is not â—â—â—â—llion the greatest of all miscâ—iefâ— A Rebel is worse than the 〈◊〉 Princepunc and Rebellion worse than the worst Government of the worst Prince that hitherto hath been If we will have an Evil Prince when God shall send one taken away and a good one in his Place let us take away our wickedness which provoketh God to place such a one over us Shall the Subjects both by their Wickedness provoke God for their deserved Punishment to give them an undiscreet and Evil Prince and also Râ—bel against him and withal against God who for the Punishment of their Sins did give them such a Prince And this Doctrine is more strictly inforced in the second part of that Homily from the Example of King David in his Carriage towards Saul from which it will appear that they did not suppose David to have used so much as defensive Arms against him as you may see by this Passage in it That when for his most painful true and faithful Service King Saul yet rewarded him not only with great unkindness but also sought his Destruction and Death by all means possible David was fain to save his Life not by Rebellion or any Resistance but by flight and hiding himself from the Kings sight From all which Passages out of the Homilies I think we may draw these plain Conclusions 1. That as well Evil as Good Governours are to be obeyed as God's Ordinance 2. That therefore they are not to be resisted for any cause tho' they abuse their Power never so Tyrannically 3. That the People are not to judge when the Prince thus abuses this Power so as thereby to make any disturbance 4. That not only Offensive but also Defensive Arms if made use of against him are utterly unlawful and also against God's express Command F. I grant these Homilies seem to be very strictly penned against all Resistance and ought to be like all discourses of this Nature Positive and General and perhaps if I were to preach a Sermon to the Common People on this Subject it should be much to the same Purpose and yet for all that I might not believe that it was absolutely unlawful for a whole Nation to defend themselves in Case of such extream Violence or Oppression as I have already supposed for when Preachers speak to Vulgar Auditors they are not bound like Casuists to tell them all the reserved Cases in which they may be dispensed with in their Duty lest they might use this Christian Liberty for a Clos't of Maliciousnâ—ss as the Apostle tells us Thus if a good Preacher makes a Sermon against Stealing or Murder he may very justly tell the People aâ— the Authors of these Homilies do that they ought not in any wise or for any Cause to commit Theft or Murder without telling them all those Cases of meer Necessity in which it may be Lawful to make use of the Goods of another and also to commit Homicide as when a Man is forced to take Victuals tho' without the owners consent for meer Preservation of Life or to kill a Thief or any other Man that assaults him to save his own Life So tho' the Authors of these Books of Homilies do say that we may not in any wise and for no Cause withstand Violently or Resist the Supream Powâ—rs but that we must suffer patiently all Wrongs and Injuries referring the Iudgment only to God yet since they have not particularly put the Case as I have now done viz. what is to be done in Case a whole Nation or People are about to be destroyed ruined or enslaved and made Heathens or Papists by the unjust nay illegal Violence of the Supream Powâ—rs we may rationally suppose that since they were good Men and never intended to urge these things further than what the Scripture and Fathers have already done that they never really intended that a
never Governed by Absolute Monarchs but by Kings or Princes limited by the Laws and Common-Councils of their own Nations as were all those that descended from this Gothick Original In the first place therefore see what Tacitus says in his Book de Moribus Germanorum who sufficiently proves that it was a Fundamental Constitution of all the German Nations to order all public Affairs in General Councils or Assemblies of the whole People Wherefore the same Author there tells us De Minoribus rebus Principes consultant de Majoribus omnes it a tamen ut eaqubque quorum penes Plebem Arbitrium est apud Principes praetractentur As also that in this Council they Tryed Great Offenders for Caplâ—aâ— Crimes Licet apud Consilium accusare quoque discrimen capitis intendere Nor was the Power and Right of their Kings Absolute or Arbitrary but limited and Elective as appears by these Passages in the same Author Reges ex Nobilitate Duces ex virtute sumunt Nec Regibus infinita aut libera Potestas c. And speaking of the manner of their holding these publick Councils after silence commanded by the Priests Mox Rex saith he vel Princeps prout aetat cuique prout Nobilitas prout decus Bellorum prout facundia est audiuntur authoritate suaedendi magis quà m jubendi potestate Si displicuit Sententia fremitu aspernantur Sin placuit frameas concutiunt Honoratissimum assensus genus est armis laudari So that you may here see their Kings had no Negative Votes in their Councils whatever they might have afterwards among the English Saxons and that they did not so much as preside in them but the Priests you may see in the same place Silentium per Sacerdotes quibus tum coercendi jus est Imperatum And therefore it is altogether unlikely that they should have had that Absolute Power you fancy over the Lives and Fortunes of the People Since you plainly see that they could neither make Peace nor War Accuse or Condemn any Man nor raise Taxes without the Approbation or Consent of those Councils Now since all the English Saxon Nations were from Germany I leave it to the Judgment of your self or any indifferent Person to consider whether a People so free as this who come over hither not as Subjects but only as Volunteers under so many Captains or Generals who went out meerly to seek new Habitations should be so fond of a Government they never knew at home as to give these Captains whom they made their Kings an Absolute Despotick Power over their Lives and Estates which they never could endure in their own Country but that they were not then Kings I thus prove First of all no Ancient Writer that I know of ever mentioned any such thing but rather the Contrary for who will believe that before it could be known what the Success would be they should make meer Soldiers of Fortune or Leaders of some Bands of Adventurers Kings before the Country they were to Govern was Conquered or that they knew whether ever they should Arrive there or not And as for the two first of these Princes that came over viz. Heugist and Horsa our Histories make them Brothers in joynt Command over those Saxons who were sent hither as Auxiliaries to the Britains against the Picts nor is Hengist ever called King or the time of his Reign reckoned till near Eight years after his coming over hither viz. after the Death of Vortimer and the driving of Vortiger into Wales And therefore I can give no account how these Princes should become Kings but by the Consent or Election of their Souldiers or Followers for as for themselves to Create themselves Kings without the Consent of their Army or People is altogether improbable and absurd and not at all to be relyed on upon your bare word for other Authority you yet give me none But for the main part of your Assertion that the first Saxon Kings were Absolute Monarchs because all the Land was Conquered for them and to their use and that all Land was held of them is altogether as precarious our Histories being herein wholy Silent But though we do not certainly know which way they divided their Conquest to their Followers since Authors mention nothing of it Yet this I think I may positively Assert that whatever was done in this Kind by the first Saxon Kings was not as Absolute Proprietors of the whole Country but as publick Trustees for those over whom they were sent for since as I have already observed these People were utterly Strangers to a Despotick Government at home it is altogether unlikely that their Followers would confer upon them an Absolute and Vnlimited Power abroad which they were never used to before And therefore they could not be Kings by Right of Conquest over the Estates or Persons of those who were fellow Conquerors with them and set them up for what they were nor yet over the Britains Since they were either totally driven out into Wales or Cornwall or else those few that were left being reduced to a State of Servitude were by Degrees Incorporated with the Saxons And though for want of Ancient Histories as well as Letters among so Rude and Barbarous a People as these were at first we have no Records upon what express Conditions these Captains were by them Elected to be their Kings Yet thus much we may find out by those few Remains we have left us in Bede and other Ancient Historians that they had all of them the same Kind of Government and Laws with very little difference from each other Since we find in all the Several Kingdoms of the Heptarchy there were the same kind of Wittena Gemots or Great Councils by whom they were Elected and without whose Advice and Consent their Kings could do nothing of Moment either in Peace or War as any one that will but read those Laws that are left us Collected by Mr. Lambard and Sir H. Spellman in his Saxon Councils may easily observe M. I own indeed that our Saxon Ancestors when they had Conquored this Kingdom brought in their Saxon Laws along with them but it doth not from thence follow that they brought their Popular Government in with them too And those Assemblies Tacitus mentions might be Councils of the German People in General no not of the Saxons which Name is not to be found in all that Author But what if it be granted that those People which were afterwards called Saxons were governed by such Councils was not this Government a Democracy And the People so far from not having their Votes and Shares in these Councils as they only had Voices in them And if any had any more Power here than others they were the Priests who were a sort of Chair-men in them commanding Silence and who had a Coercive Power as Tacitus says In these Governments no Man can doubt of the Suffrages of the People but
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâ—ers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ— joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câ—mmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiâ—â—ing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
be likewise a sufficient reason given why this great change might have been made in the constituent parts of our great Councils and yet no change of Phrases or Expressions might be made in our Records and Statutes nor any notice taken of it by our Historians which is because the first Knights of Shires being chosen out of and by the Tenants in Capite only the change was imperceivable at first there being still Men of the same order appearing in Parliament for the whole Body of those Tenants the difference being only in the Number viz. Two for a whole County whereas before all the chief Tenants in Capite came in Person and I am the more inclined to be of this opinion because in this Writ of Expences of the 49th of Henry III. which you have now cited there is no such Clause as is in the following Writs of like Nature prout in casu consimili fieri conâ—uevit which shews it to have been a new thing for the Knights of Shires to have their Expences allowed them that being the first time of their Meeting in Parliament F. I confess what you say is very plausible were there any Colour of a proof brought by you for it but I shall shew you further that your distinction between the Communitas Regni and the Communitas Comitatus signifies nothing unless you can prove that this Communitas Regni was not the Representative of the Communitates Comitatuum mentioned in this Writ and did not consist of Persons of the same degree or order for the Writ of Summons of 49th Hen. III. says no more then that these Knights should be de legalioribus peritioribus militibus comitatus without limiting them to Tenants in Capite But as for your Reason why these great alterations might be made in our great Councils or Parliaments without any notice taken of it it is altogether false and precarious for you have not yet nor can I believe give me any sufficient Authority beside the Drs. bare assertion that ever none but Tenants in Capite were capable of being Elected Knights of Shires or that none but such Tenants by Military Service were the Electors And I think I have sufficiently confuted the Vanity of that Assertion at our last Meeting when I shewed you the false interpretations you gave of those Statutes of 7th of Hen. IV. and 10th of Hen. VI. whereby you would have proved that there was some alteration thereby made as to the Electors of the Knights of Shires at the County Court Whereas indeed before those Statutes all Persons of whatsoever Tenure and of howsoever small an Estate of Free-hold who owed Suit and Service to the County Court were capable of being Electors and consequently of chusing whom they pleased as well Tenants in Capite as others to be Knights of the Shire and that those who were not such Tenants were frequently chosen in the Reigns of Edward the Third and Richard the Second I could bring sufficient proofs were it worth while to insist upon a thing so certain But I shall go on to prove that the same words viz. Communitas le Commune or la Communalie were used in many of our Statutes and Records to signifie the Commons I come therefore to the Reign of Edward the First and I pray in the first place remember what I took notice of at our last meeting concerning the Statute of Westminster the first made in the third year of this King beginning thus in French per L'assentement des Archesques Evesques Abbes Priors Counts Barons tout la Communalty de la Terre Illonques Summones Now every one knows that Communalty is but French for the Latin Communitas as appears by the first Writs we have left us except that of the 49 th of Henry the Third now mentioned de expensis Militum being of the 28 th of this King directed to the Sheriff of Somersetshire to levy the expences of the Knights for that County who had served in the last Parliament le Communitate Comitatus praedicti i. e. of the Commons of the said County in general the same Clause is also in the Writs which were then issued for the expences of the Citizens and Burgesses who served in this Parliament which were also to be levyed de Communitate civitatis vel Burgi which sure must mean the Commonalty or Commons of all those Cities and Burroughs there mentioned for the Record is Eodem modo scribitur Majoribus Ballivis pro Burgensibus Subscriptis And which is also more remarkable these Writs contain this Clause that the said Knights and Burgesses should have their expences allowed pro veniendo manendo redeundo a Parliamento praedicto prout alias in casu consimili sieri consuevit which words relating to a former Custom not then newly began as this word consuevit in a legal sense still imports must needs relate to some time much more ancient than the 49 th of Henry the Third or the 18 th of this King the former of which was but 26 years and the latter but 10 years before this 28 th of Edw. the First in which time there were not above thirty Parliaments called if so many And further that the Word Commonalty signified the Body of the Commons and not Tenants in Capite in the Reign of this King appears by the Statute or Ordinance the year is uncertain intituled Consuetudines Canâ—iae which you may see in French in Tottles Collection the Title of them is thus Ceux sonâ— les usages les queax la Communalty de Kent Clayment avoir en Tenements de Gavel-Kind Now every body who knows any thing of Geval-Kind know also it was generally a Socage Tenure there being but little of it held by Knights Service and consequently the owners of such Lands who were then the greatest part of that County are here called la Communalty de Kent So likewise in the Reign of Edward the Second the same words are used in the same sense as in the Statute of Pardon for the death of Pierce Gaveston made in the Seventh of this King which is granted per nous i. e. the King himself per Archievesques Evâ—sques Abbes Priors Counts Barons la Commonalâ—â— de nostre Rolaume illonques assembles So also in the Latin Records as appears by an Act of Pardon granted in Parliament in the 12 th year of this King Consentientibus Praelatis Prâ—ceribus Communitate Regni So likewise the Statute of York of the same year writ in French is recited to have been made per Assâ—nt des Preâ—us Counts Barons la Commune du Royalme illonques assemblez Where you see that the Latin word Communitas and the French le Commune signifie the same Order of men In the Reign of Edward the Third I can give you these remarkable examples of the same words in the Parliament Roll in the first of this King Andrew de Haâ—iford a Principal
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
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
any Legal Power all which could never have happened had not that War been not only begun but continued to the very last by a Standing Army which could give what Laws they pleased even to those that pretended to command them So that why the Abuse of this Right once in a Thousand years should be made any just Argument against the ever using it at all I can see no reason in the World for it As to the rest of your Discourse against making any War about Religion that is also as fallacious for tho' I grant that true Religion is not to be propagated yet I think it may lawfully be defended by the Sword especially where it is the received Establish'd Religion of a Nation or else the defence of Religion against Infidels would be no Argument at all to fight against a Turkish or Popish Prince that unjustly invaded us For tho' it is true that Religion cannot be taken away from any Man without his consent yet a Man may be taken from his Religion and when the Professors are destroyed either by Martyrdom or violent Persecution as bad or worse than death what will become of the Church and Religion Establisht by Law when all the Persons that constitute that Church are driven away destroyed or made to renounce it And for this we need go no farther than over the Water to our next Neighbour It is likewise as fallacious what 〈◊〉 urge of the great Corruption of Manners by Civil Wars which if it be any Argument at all is so against all Standing Armies whatever whether raised by lawful or unlawful Powers And I think there was much more debauchery in the King 's late Camp at Hounslow-heath as also in all places where they quartered than was lately at York or Nottingham among those that took up Arms in defence of their Religion or Civil Liberties unjustly invaded by the King and his Ministers nor does it always happen that Armies raised for defence of Religion and Civil Liberty must prove debaucht since we may remember that the Parliament Army to its praise be it spoken was infinitely more sober and outwardly religious than the King 's but if you will say that this proceeded from their Principles as well as good Discipline I know no reason why Men who fight in defence of their Religion and Civil Liberties may not upon Church of England Principles as to Church-Government and Common-Prayer and also by a strict Discipline be as little debaucht as any Standing Armies the most lawful Monarch can maintain who if they lye idle as ours have done all this King's Reign till now of late are more likely to fall into all the wickedness that attend a loose Discipline and want of Imployment and consequently may also corrupt the Places where they Quarter by their ill example M. I shall not longer argue this point since I see it is to no purpose But you have not yet told me what these fundamental Rights and Liberties are that you suppose the People may take up Arms to defend nor yet what number of the Nation may thus judge for themselves and take up Arms when they please for it may so happen that the whole Nation may be divided as to their opinions concerning these things And the South part of England for example may think their Religion and Liberties in great danger and that it is very necessary to take up Arms for it when the North parts are not under those apprehensions but lye still as was lately seen in the riseings for the Prince of Orange F. As to the first of these queries I think I can easily give you satisfaction and such as you can have nothing material to reply to And as for the other though I do not say I can give you such an answer as will bear no exception or reply yet I doubt not but it will be that which may very well be defended and may serve to satisfie any indifferent and unprejudiced person And which if not allowed will draw much worse consequences along with it And therefore as for the just Rights and Liberties we contend for they are only such as are contained in Magna Charta and the Petition of Right and are no more than the immemorial Rights and Liberties of this Kingdom and that first In respect of the safety of mens lives and the liberties of their persons aly The security of their Estates and Civil Properties And 3ly The enjoyment of their Religion as it is established by the common consent of the whole Nation All which I will reduce to these plain Propositions 1. That no Freeman of England ought to be imprisoned or arrested contrary to Law without specifying the cause of his commitment in the warrant or mittimus whereby he is sent to prison And he ought not to be sent out of the body of the Country or Jurisdiction where the crime was supposed to be committed unless he be removed by due course of Law neither ought he by the Law of England to be detained in Prison without Trial only for a punishment but ought to be Tried the next Assizes or Goal-delivery or within some reasonable time to be allowed of by the Court. And this was Common-Law many Ages before the Act of Habeas Corpus made in the 31st of King Charles the Second which does but ascertain that Law concerning bailing men for all manner of Crimes in case no Prosecution come in against them much less can the King or any Court below the whole Parliament banish any man the Kingdom in any case unless by some known Law already made whereby he is bound to abjure it upon a lawful Trial by his Peers and conviction by his own Confession 2. Nor can the King nor any Courts of Justice condemn a man to loss of Life or Members without due Trial by his Peers and Legal Judgment given thereupon And for proof of this I need go no farther than Magna Charta and the Petition of Right which are both but declaratory of the Common-Law of England◠see therefore Magna Charta cap. 29. Whereby it is declared and enacted that no freeman may be taken and imprisoned or be disseised of his freehold or Liberties or his free customs or be Outlawed or exiled or in any manner destroyed but by the lawful Judgment of his Peers or by the Law of the land which is also farther confirmed and explained by these Statutes viz. the 37 38 42. of Edward III. and 17. of Richard the II. all which are summed up and more particularly declared against contrary to the fundamental Laws of the land in the Petition of Right exhibited to King Charles the I. in Parliament in the thirtieth of his Reign wherein the late imprisonment of the Kings Subjects without any cause shewed and the denial of Habeas Corpus are expresly resented as also putting Souldiers and Mariners to death by Martial Law in time of peace And the King's answer to this Petition is remarkable
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
of the People rather than in the Parliament or great Council of the Nation for as to your assertion that the whole People are more fallible and consequently more dangerous Judges in such a Case than the great Council I deny it since all the matters of fact must be so evident and notorious to the senses and feeling of the greater part of the People that there can be no doubt or denial of it by any reasonable and indifferent Judges and the greatest part of the People are willing to live in Peace without making any disturbance or alteration in the Government if it may be avoided whereas in any great Assembly or Council there are many and those of the most eloquent and leading Men who commonly carry the rest which way they please who are governed by faction ambition or self-interest and upon all or some of these c. may be desirous to raise Civil Wars or to declare the King to have done things that require resistance or to have forfeited his Crown when indeed he has not and for this the very Long Parliament you mention is an evident example since you cannot but grant that if the differences between the King and that Parliament had been left to the Judgment of the whole People there had never been any Civil War at all nor had the King ever been beheaded since it is notoriously known that before the Parliament stirr'd up the People to War by seizing of the Militia they were not at all inclined to it It being a restless and factious ambitious party of men on both sides who brought on the last Civil War Not but that I defer much to the Judgment of a free and unbyast Parliament who may confirm and declare what the diffusive body of the People have already justly done to be right and lawful which may be as great a satisfaction to private Mens Consciences in Civil Disputes as a general Council is in Spiritual Controversies about matters of Religion wherein tho' such a Council cannot make new Articles of Faith yet we Protestants hold that it may declare what were anciently believed but if the People have a right of Judging during the intervals of Parliament when the King has notoriously broke the Fundamental Constitution and so may make resistance accordingly as I have already proved they have since otherwise the King may absolutely refuse ever to call any Parliament at all or at least may not let them sit till all grievances are redressed so that I cannot see why they may not also Judge when the King has so wholly broke his Original Contract and so obstinately persisted in it as to create a forfeiture of his Crown since the one is not harder to judge of than the other nor is your parallel between our opinion and that of the Jesuites at all true unless you could also prove that I had put the same authority in the People to depose their Kings by a right conferred on them by God as the Jesuites do in the Pope by such a pretended Power as Superiour to that of all the Monarchs in the World but there is nothing like it in my hypothesis Since I do neither allow the People to Judge or Depose the King much less to put him to Death tho' a Tyrant but only to Judge and declare when he has made such notorious breaches on the fundamental Constitution as do necessarily imply a forfeiture or rather an implicite Abdication of his Royal Power and whereby he deposes himself But to come to the second Point to prove that our Kings were never absolute Monarchs or had the sole and absolute authority over the People of this Kingdom and if so that there was somewhat still reserved by the People at the first institution of the Government and which the King by the original contract when he or his Ancestors took the Crown must be still supposed as bound to maintain now that there must have been such a thing as an Original Contract however light you are pleas'd to make of it I thus make out you may remember that at our fifth meeting I proved that at the first institution of Kingly Government in this Nation it was not by right of Inheritance but Election 2. That this Election was made either by the whole body of the People in Person or by their lawful Representatives in the great Councils or Mycel Synods of the English Saxons 3. That this great Council did then reserve to themselves these material parts of Government First A right of Meeting or Assembling at stated times of the year and that without any previous summons from the King 2. A right of proposing or at least oâ— assending to all Laws that should be made in all future times 3. A right of granting general Aids or Taxes for the People and that without their consent no Taxes could be imposed 4. And as subsequent to all these a right of agreeing to all Wars and Treaties of Peace â—o be made with Foreign Nations but the first and last of these tho' I could prove to have been constantly observed during the Saxon Government and long after yet since the People have parted with their right to their Kings in these matters I shall not now insist upon them only that this People have still a right to Parliaments once in three years at least and oftner if necessity require These then being the Original Constitutions of the Kingdom the King must have either entred into a compact with the People for the maintenance and observation of these fundamental rights or else it must have been left to his discretion whether he would suffer the People to enjoy them or not if the latter had been true then I grant they had made him an Absolute Monarch and had left it wholly at his discretion whether they should enjoy these fundamental Rights and Priviledges or not but it appears plainly to the contrary that they did not for I shall prove if need be that the Succession to the Crown was at first Elective and not Hereditary now in all Elective Kingdoms of the Gothick Model it is very well known that their Kings were so far from being absolute that the Assembly of Estates or great Councils of those Kingdoms reserved to themselves a power of Deposing their Kings for Tyranny and Mis government as I have already proved was frequently done not only in England but in all the neighbouring Kingdoms without any imputation of Rebellion and I have also given you a quotation out of the ancient mirrour of Justices which tells us that upon the Election of the first King of this whole Island The Princes that chose him then caused him to swear that he would maintain the Holy Christian Faith with all his power should Rule his People justly without regard to any person and should be obedient to suffer Right or Justice as well as others his Subjects And now that upon a failure to perform these things a forfeiture of the
make so light of this Testamentary Doâ—â—tion of Edward the Confessor which the greatest part of the Writers nearest that time do suppose to have been really made on the behalf of Duke William and that notwithstanding this bequest Harold unjustly and contrary to his own Oath did by force set the Crown upon his own Head without any precedent Election of the Clergy Nobility and People as was required at that time since it was impossible for them to meet in so short a time for King Edward dying on the Eve of Epiphany was buried on Twelfth day and on the same day Harold took upon himself the Crown by the consent of some of the Bishops and Nobility of his Faction then at London so that he was certainly no better than an Usurper and therefore by the Conquest of Harold and his party your Conqueror could acquire no right upon the free People of England since they never gave their consents to place Harold on the Throne and consequently K. William could have no just cause of making a conquest upon the whole Nation since neither did he ever in all his Reign as I can find call a common Council of the Kingdom to recognize or confirm his Title and tho' it is true Harold proving a Valiant and Popular Prince got the good will of the common People by divers Acts of Grace which he had lost by his violent taking the Crown while Edgar Atheling the only remaining Male Heir of the Saxon Race was in being and found very many who were willing to fight for him not only against the King of Norway who had a little before Invaded the Kingdom but also against Duke William yet all those in his Army could amount to nothing near the whole Kingdom who never contributed to the War by any publick Vote or Tax and therefore did not countenance it by giving Money or raising of Men as you suppose so that D. William could not pretend a right of making War against any body but only Harold and his Accomplices but as for the Testamentary Donation of Edward the Confessor tho' you make so light of it yet Ingulph says expresly that Edward the Confessor some time before his Death sent Robert Archbishop of Canterbury as his Ambassador to D. William to let him know That he had designed him his Successor not only by Right of Kindred but by the merit of his Vertue and that after this Harold coming into Normandy promised upon Oath to assist him in it and Will. Malmesbury says also that Edward the Father of Edgar Atheling dying almost as soon as he came into England K. Edward his Cozen being dead gave the Succession of this Kingdom to William Duke of Normandy with whom also agree Florence of Worcester and William of Poiâ—tou and all the rest of the Historians of that Age as well English as Normans nor do I know any of them except Simeon of Durham and Roger Hoveden who make Harold to have been appointed Successor by K. Edward or to have been so much as solemnly Crowned by the Archbishop of York But I confess your main objection is still to be answered viz. what precedent Right Duke Wâ—lliam could have to the Crown of England by this Testament of King Edward since it was then either an Elective or else an Hereditary Kingdom and so this Donation could confer no right on this Duke in Prejudice of the Peoples right to Elect or else of the next Heir to succeed In answer to which I must tell you that which perhaps you may have never considered that the Crown was then neither properly Elective nor Successive but a mixture of both M. That seems a kind of a Paradox and what I never heard before pray explain your self for I do not understand how it could be F. Why then I will tell you the Crown of England in those times was very like what the Crowns of Denmark and Sweden were not long since and as the Empire is at this day in which tho' the Estates or Diet might chuse whom they pleased for King or Emperor yet they still kept to the same Family or Line as long as there were any Males left of iâ— fit to succeed which custom often gave the King in Being a power which by degrees came to be looked upon as a kind of Right either upon his Death Bed or else at any time before to nominate one of his Sons or near Kinsmen to be his Successors by his last Will or Testament especially if he had no Sons of his own as happen'd in the case of King Edward the Confessor now this nomination tho' it did not alone confer a right to the Crown yet it made the person so named the fairest candidate for it and was such a recommendation to the Estateâ— or great Council of the Kingdom as they never passed by or denied as I can ever find by the best inquiry I have made and for proof of this I shall appeal to the Testament of K. Alfred as you will find it Printed from an Ancient Manuscript in the second Appendix to his Life in Latine publisht at Oxford Which begins thus Ego Alfredus Divino munere labore ac Studio Athelredi Archiepiscopi nec non totius Westsaxoniae Nobilitatis consensu pariter assensu occidentalium Saxonum Rex quos in Testimonium meae ultimae voluntatis complementi ut sint advocati in disponendis pro salute animae meae regali electione confirmo tam de haereditate quam Deus at Principes cum senioribus Populi misericorditer ac benigne dederunt quam de haereditate quam Pater meus Aethelwulfus Rex nobis tribus fratribus delegavit viz. Aethelbaldo Aethelredo mihi ita quod qui nostrum diutius foret superstes ille totius Regni dominio congauderet c. From whence you may collect first that tho' this King in the very beginning of his Testament ascribes his obtaining the Crown not to any Hereditary Right but the consent and assent of the Nobility of West-Saxony yet he also here mentions the entail of the Crown by his Fathers Will upon his two Elder Brothers and himself successively before any of his Elder Brother's Sons who were living at the time of the making of this Testament of K. Alfred's as appears by the Will it self in which they are expresly mentioned now how could this be that he was King as well by the consent or election of the West-Saxon Nobility as by his Father's Will unless both these had been required to make him so Also Will. of Malmesbury tells us of K. Athelstan the Grandson of K. Alfred that Iussu Patris in Testamento Aethelstanus in Regem est acclamatus but in the beginning of this chapter he also tells us that Aethelstanus electus apud Regiam aulam quae vocatur Kingston Coronatus est quamvis quidem Alfredus cum factiosis suis obviare tentasset upon that pretence that Athelstan was a Bastard so that you may
he brought over with him had as you suppose the greatest share of all the Lands in England they would have been too powerful a body of Men to be thus made Slaves at his pleasure but indeed his own Laws shew the contrary for in that very Law it appears otherwise Whereby all the Freemen of the Kingdom were to hold their Lands and Possessions free from all unjust Exactions and Taillage and that nothing should be exacted of them but their free service which they were bound to do according as it is appointed them by the K. and it is granted them by an Hereditary Right for ever by the Common Council of the whole Kingdom whereby you may see that they had their Lands and Liberties granted them for an Hereditary Right not only by the K. but by the Common Council of the Kingdom and that the K. could not alter K. Edward's Laws without their consent the Charter of K. Henry I. says expresly Legem Regis Edwardi vobis reddo cum illis emendationibus quibus Pater eam emendavit Concilio Baronum suorum Therefore as for that Authority you have brought out of H. Huntington that upon this Kings return from Normandy he imposed a heavy Taxe upon the English this is either to be understood of such a Tax as they gave him voluntarily tho' perhaps they durst not do otherwise as the States of Provence and Languâ—doc are fain to do to the K. of France at this day when he requires it and yet he does not claim those Countries by right of Conquest or if K. William imposed this Tribute without their consents it was not only contrary to the Law just now mentioned but also to his own Coronation Oath whereby he swore to prohibit all unjust Rapines and that he should behave himself equitably towards his Subjects with which certainly his taking away their Money without their consents would by no means consist but to answer that part of the Coronation Oath which you think makes most for you that whereby he swore only to make Right Laws which must have supposed the Power to have been in himself because the Parliament might have hindered him from doing otherwise this is but a cavil for it is already proved that he was to make Laws and raise Taxes by the Common Council of the Kingdom and therefore these words may very well bear another sense and do only give the K. a Negative voice of passing such Laws as the great Council should offer to him or else such as he might propose to them for their consent and I suppose you will not deny but that it is very possible that either the K. or the Parliament may propose such Laws as may not seem equitable or Just and then certainly both the one and the other have a negative vote and ought not to give their consents to them But to answer your last instance whereby you would prove that this King as a Conqueror imposed what Taxes and Services he pleased not only upon the Laity but the Clergy too by making the Bishopricks and greater Abbies liable to Knights Service which you suppose to have been done by his own sole Authority without any consent of the Common Council of the Kingdom this is only gratis Dictâ—m and is indeed altogether improbable for if the K had done this by his sole Power he would have imposed this Service upon all the Abbies in England whose Lands might have been as well reduced to Knights Fees as those that were put under that service and so might have been forced to find as many Souldiers as they had Fees as well as the Bishopricks and greater Abbies but indeed the Clergy were too powerful a body to be thus Arbitrarily imposed upon and they would soon have complained to the Pope against the K. for this new servitude he had imposed upon them and therefore I think we may with much more safety conclude with Mr. Selden in his Titles of honour that this imposition of Knights Service upon the Bishopricks and Abbies was done by the Common Council of the Kingdom It being too great a matter to be done without it for it appears by Eadmerus that the K. held a Council this very year tho' the Laws and Proceedings of it are all lost and this is the more likely to be so because this imposition was not laid upon all the Abbies in England but only upon the Bishopricks and such Abbies as were of Royal Foundation and held immediately of the King before your Conquest and were only such as enjoyed whole Baronies as Mat. Paris there tells us I shall now come to your last head whereby you would prove that your Conqueror by his sole power altered the Course of Tryals and introduced the custom of Duel or single Combat in Civil as well as Criminal Causes the chief argument you have for this is that there is no mention made of this tryal by Duel in our English Saxon Laws before the Conquest which is but a negative argument at the best and you can shew me no Ancient Author that says expresly that K. William introduced it and tho' I grant it is first mentioned in his Laws yet does it not therefore prove that it was not here before since it was certainly in use among the Francs and Longobards who were German Nations as well as the Saxons but admit it were first introduced by the Conqueror this was no badge of Conquest for the Normans as well as the English were subject to this Tryal which was in use in France and Normandy long before this King 's coming in so that admit he first establisht it here it might not have been done by his sole Power but by some Law made in the great Council of the Kingdom tho' it be now lost as we have very few of the Laws that were made by this K. now left us besides those which are called the Laws of K. Edward with this Kings alteration of them all which was certainly done in the Common Council the like I may say concerning the alteration of Punishment for Deer stealing and other crimes which were either Punishable by Pecuniary Mulcâ—s or else by death before the coming in of the Normans since those alterations might be also made by the consent of the great Council but that the same Forest Laws were in use before the Conquest as after you may see in the Forest Laws of King Knute as you will find in Sir H. Spelman's Glossary Title Foresta only the Punishments are there Pecuniary or else loss of liberty which after your Conquest was changed into the loss of Eyes and Members But as for other lesser matters as his disarming the English and forbidding Night Meetings if these things were done as I do not find any express Law for them for there is no such thing mentioned in the Law de nocturnis Custodiis they were either practised by this K. for his own security after the English had by their frequent
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
quantity of Pamphlets that have been written upon these Subjects as also that such as have perused them may find together in this and the following Discourse all that hath been urged on the one side or other upon these important Subjects And since the great number of Treatises of this kind have rather served to confound than instruct ordinary Readers I resolved to make use of the words of very few of them only to take the chiefest and strongest Arguments on either side and fairly to represent them at once to the Readers View who I hope hath the discretion to judge which are best since I declare I write for no Party but purely for Truth and therefore I have now and shall still endeavour to avoid all Personal Reflections in this as well as the ensuing Dialogue not only on Their Present Majesties but also on King James since I remember he was a Crowned Head and is still the Father of our Illustrious Queen let his failings have been what they will But I hope the Reader will not be scandalized if I have so far followed the opinions of the ablest Divines as well as Lawyers of this and other Nations in making one of the Parties in this Dialogue assert the consent of the People us the only just and natural means of conferring a just right to Civil Power since the learned Mr. Hooker in his first book of Ecclesiastical Policy lays it down as a Principle that in every Politick Societyâ—â—â—t is impossible that any should have compleat lawful Powâ—â— buâ—â—y the consent of men or the immediate appointment of God and Chancellor Fortescue in his Discourse de Laudibus Legum Angliae 12 and 13. Chapters supposes all Kingly â—ower as well what is Absolute as that which is Politick or limited by Laws to have proceeded at first from the Peoples consent not that the Power it self is otherwise than from God only he has made use of the People as an Instrument whereby to convey it and I hope none of those who are still for King James's Interest will be offended at this Doctrine since those that have writ with the greatest Iudgment for his absolute indefeasible Title to the Crown have placed it in his Legal Right to it by the Laws of the Land which all must own could not have been made without the Peoples Consent I have but one thing more to desire of you which is your Patience and Attention if some of the Speeches in this Dialogue are longer than ordinary since they are upon subjects that would not well bear interruption and to tell you farther the Press staying for the Sheets I had not time to make them shorter THE Eleventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. DEar Sir you are welcome to Town you have been absent a long time and indeed I wonder how you could stay away so long when such greaâ— things as the King to have Abdicated and placing his Son and Daughter in the Throne have been transacted M. I thank you kindly Sir but yet I must tell you that I have been so little satisfied with what your Convention has done in these matters that the very hearing of it hath been a great affliction to me and it would have certainly been a much greater had I been upon the place and seen such horrid things as the Deposition of a King the disinheriting of his right Heir and the setting up the Prince and Princess of Orange who certainly could have no right to the Crown as long 〈◊〉 the King lives nor yet after his death as long as the Prince of Wales is in being F. I confess these are very high Charges if they would hold but if you please to consider the Hypothesis I proposed at our last Meeting That the King had by breach of the Original Contract made between his Ancestors and Predecessors and the People of this Nation to observe the Fundamental Laws and Constitutions of the Kingdom forfeited his Right to the Crown All that hath been done in this great Affair I suppose may be very well maintain'd and justified from the necessity of the thing and of maintaining the Fundamental Constitution of the Government and therefore pray give me leave to put you in mind how far I have proceeded in the pâ—ooâ— of this Assertion First I have made out that the King of this Realâ— is not the sole Supreme Power thereof neither ever was so from the very Institution of Kingly Government in this Island Secondly I have also prov'd that the King not having the sole Power must hold that share thereof which he enjoys upon this imply'd or tacit condition that if he usurp what do's not belong to him and the People do assert their Right by opposing his Unjust Violence and Usurpations and that he still obstinately persists in this Violation he certainly thereby loses and forfeits not only that part of the Power which he so unjustly usurped but also his own too and for this I gave you the Authority of the Learned Grotius at our last Meeting Thirdly I have also answered your main Argument of King William the Conquerors obtaining by the Sword and Conquest of King Harold an Absolute Right and uncondition'd Power foâ— himself and his Successorâ— descended from him over the People of this Kingdom for I think I have sufficiently made out that King William had no other Right to the Crown of England than by the Testament of King Edward the Confessor and the Eâ—ection and Recognition of the People and this I have prov'd from the unexceptionable Authorities of the best Historians of that Time so that if he afterwards acted otherwise and contrary to his Coronation Oath it was not as a Lawful King but as a Tyrant and an Usurper on the Rights and Liberties of the People and could not by his own Unjust Act acquire any Lawful Power so to Govern this Kingdom and therefore whatever Title King William or his Successors can pretend to it must be by vertue of the Election of the first King of the Saxon Line from whom all the Kings of England since Henry Y. are descended and consequently aâ—e oblig'd to hold the Crown under the same Conditions on which it was first conferr'd And tho' I grant that ever since the Reign of Edward I. the Crown has been no longer claim'd by Election but by Succession of him that really was or else was presum'd to be the Right Heir yet this different way of acâ—uiring the Crown do's not at all alter the condition or manner of holding it sâ—â—e ouâ— Kings have always after that time as before been tyed to the same or rather â—â—â—cter Terâ—â— in their Coronation Oaths to observe and keep the Laws and Customs of this Realm and also that the Power of the Great Council of the Kingdom or Parliament making Laws raising Taxes and redressing of Grievances arising 〈◊〉 the Unjust Exercise and Illegal Encroachments of the Kings Prerogative hath been exerted
ever since the Crown became Elective as much as ever it was before Lastly I think I have sufficiently made out that King Iames hath violated the Fundamental Constitution of the Kingdom in those several Instances I have already given and am also ready farther to make it out if you require it so that this being the case I can see no reason to the contrary why the Crown or Legal Authority should not become forfeited to the People who at first conferr'd this Power on the first King of the West Saxons M. I must confess you have done your indeavour to prove those Assertions you have now laid down but I am not yet satisfied that you truly have done it But however not to run into unneccessary disputes and repetition of what has been already argued and which I see you are too obstinate to recede from I shall now only oppose what you last asserted concerning the Crown 's being forfeited to the People upon the King 's pretended Breach of the Original Contract for besides the absurdity of making the Crown forfeitable to the People who are and ever were Subjects and not Princes or Governours whereas all forfeitures still supposed a Right in the persons who are to take it as superior to the party forfeiting there is also a greater error and mistake in your supposing all Civil and Legal Power to be deriv'd from the People and by them conferr'd upon their Kings or Governours whereas the Scriptures plainly affirm and all Divines so interpret them that all Civil Power and Authority is wholly from God and not from the people who even in Elective Kingdoms though they may name and design the Person whom they will have to be their King yet is the Power wholly from God who alone hath right to Govern Mankind and therefore as the people do not confer the Power so neither can it be forfeitable to them from whom it was never derived and so much I told you at the Conclusion of our last Meeting though I had not then time fully to urge this Argument as now I have and this will press the more upon you because you your self have already granted at several Meetings that all Civil and Regal power is deriv'd from God and not from the people and therefore your notion of a Prince or Monarchs forfeiting to them is wholly false and precarious F. If this be all that you have to object against our Assertion of the King 's forfeiting his Royal Authority to the people I think I can easily answer those Objections for as to the first absurdity which you lay to our charge how an Authority can be forfeited by a King or Superior to his Subjects or Vassals the absurdity lies on your side for I do not suppose this forfeiture to be made to the people as Subjects but to them consider'd as a Community of Masters of Families and Freemen who as the Descendants and Representatives of those who made the first King upon a certain Contract or Condition upon the non-performance of this Original Contract do thereupon cease to be Subjects as a Servant ceases to be so and becomes again sui furis upon his Masters non-performance of the bargain made between them and so this Authority thus forfeited returns to the Community of Masters of Families and Freemen who once conferr'd it upon the first King nor needs this forfeiture any more suppose a Superiority in the persons who are to take it over the Prince that commits it than when by the Law of England Tenant for Life aliens in Fee He in reversion may immediately enter upon the Estate as forfeited to him though the person that held it was perhaps his own Father M. But is not this then to recede from your former concession whereby you grant that Civil Authority is deriv'd from God and not from the people at all whereas you now suppose them the only Original or Fountain of Civil Authority and from them to be deriv'd to all Princes and Monarchs F. This difficulty wholly proceeds from your not rightly understanding the manner of God's conferring Civil Power or Authority upon those that exercise it For the better clearing of which difficulty pray let me ask you two or three Questions First pray tell me whether you are still of the Opâ—â—ion that Monarchy is so much of Divine Institution as that no Government but that may be lawfully Instituted by Men M. I will not now affirm that Monarchy is of Divine Right but this much I may safely over by what we can find in Scripture that God instituted no sort of Government but that and he did not make Saul or David to be only like those Equivocal Kings who might be deposable at the will of the Estates but conferr'd part of his own Divine Power upon them without any conditions or limitations whatsoever but as for those Governments call'd Common-wealths though without doubt they are not of Divine Institution yet certainly the power of Life and Death which they exercise is wholly from God since as I have already said a Man not having power over his own life cannot confer that upon another which he had not in himself F. Well I am glad we are so far agreed that Common-wealths are endued with real Authority or Majesty as well as Monarchs and that from no less Author than from God himself so that whatever you have said concerning God's Institution of no other Government than Monarchy is either not true or not to the matter in hand for in the first place I have already prov'd at our thiâ—d Meeting that the first Government God Instituted among the Jews was an Aristocraâ—y under Moses Ioshua and the Judges reserving the Kingly Power over them to himself And though it is likewise true that God divested himself of great part of this Kingly Power when he anointed Saul King yet God's Institution of Monarchy among the Jews do's not render it unlawful for other Nations to institute such other sorts of Government as may best suit with the Geâ—ius of the people and the publick good and safety of the whole Community But as for your Argument whereby you would prove the necessity of all Civil Powers being deriv'd from God because otherwise they could not be endu'd with the power of life and death over their Subjects I have sufficiently taken off that difficulty at our second Meeting and shewn you that a Man in the state of Nature has not only power over another Man's life but also over his own not only to hazard it but also to lay down or lose it for some greater publick benefit to Mankind which is also acknowledged by the Apostle Paul himself For a good man some would even dare to die But further to shew you the absurdity of this Principle let me put you this case suppose that a Kingdom or Common-wealth were so instituted at the first that no Subject or Freeman should suffer death for any Crime how great soever which that
I do not suppose as a thing impossible it was for divers Ages exercised in the Roman Common-wealth wherein no Civil Magistrate could lay any greater punishment upon a Roman Citizen than banishment or deportation And if that Copy we have of the Laws of King William the first be authentick it is by the 67th Law in his Charter ordain'd That no English or French Subject should suffer death for any Crime whatsoever but only be punisht either by pecuniary Fines Imprisonment or else by loss of Ryes Hands Feet or Members which Law though I do not say was ever observ'd yet it shews it was then supposed to be both possible and lawful Now if this could be so there would be no necessity of supposing the Authority of the Common-wealth of Rome or of King William I. to have been deriv'd from God since they had renounced and refused the great Character thereof viz. the inflicting capital punishments but if for all that they still conâ—inued to be Lawful Civil Governments then it is evident that this power of life and death is not that which alone constitutes a Civil Power and makes it owe its Original to God But to return to what your notion concerning this power of life and death hath made me digress from pray let me â—sk you another Question After the Expulsion of King Tarquin and before the Common-wealth of Rome was form'd where was the Supream Authority lodged M. Why in the same Body it was afterwards the people of Rome comprehended under the Patritions and Plebtians that is the Nobility and Commons who yet retained the power of life and death over those of their own Children and Slaves though they communicated a great part of their power to the Senate and Consuls F. Very well Was this Authority they so conferr'd on the Senate and Consuls the same which they themselves could have exercised or was it any new Authority immediately deriv'd from God and created for that purpose M. I do not think it was any new created Authority but only a part of their former power which they so made over to the Senate and Consuls since they reserv'd one great part of it viz. the Legislative Power wholly in themselves but however this power which the Fathers of Families and Freemen among the Romans had over the lives of their Children and Slaves as also over others who were declar'd publick Enemies was deriv'd wholly from God yet there arose likewise a new power which these Fathers of Families were not invested with before viz. that of making Laws as also of War and Peace all which powers were deriv'd from God for the common good and defence of the whole People or Community F. Herein I also agree with you but then mark what follows it then plainly appears that the natural Subject of Civil Authority was the Fathers of Families and Freemen of Rome and that what share thereof was committed to the Senate and Consuls it was wholly personal and as their Representatives this being so pray answer me another Question when the Senate and People of Rome did afterwards confer their whole power upon the Roman Emperors by that Law mention'd in your Institutions Lex Regi was there then created or produc'd any new Authority from God to the first Emperor or was it the same Authority or Majesty which the Senate and People were endued with before for either it must be the same or else God must create a new parcel of this Royal Majesty or Authority wherewith to endue this first Emperor which if you suppose I can shew you a great many difficulties and absurdities that will follow from this Opinion for then I might ask you whether this Royal Majesty be like the Stoicks Anima mundi whose parts are distributed among all the Kings in the World or whether each King has his particular Majesty to himself or whether the King dying his Majesty also dies with him or whether it exist without him as the Soul do's when separated from the Body and by a certain kind of Metempsychosis is transferr'd to the new Monarch M. I shall not flick at present to affirm that this Authority or Majesty of the Roman Emperors was originally deriv'd from God though not immediately but by the mediation of the people of Rome as his Instruments especially ordain'd for the derivation of this Imperial power F. Well then I see you and I are at last agreed for I suppose all Civil power to be so deriv'd from God to the people and by them as an Instrumental Cause convey'd to the person whom they agree to make their King But if this were so in the Roman Common-wealth why are not all the rest of the Nations of the World indued with the like priviledge so that no man may justly make himself King over them without their Election or Recognition at least M. Perhaps in those Nations where the people have from the first Institution of the Government retain'd the whole Civil power in themselves or else by the Extinction of the Royal Family they became possest of it this power â—â—y afterwards by them be transferr'd or made over to one single person or more but this can by no means hold in divers other cases where God immediately bestows a Civil Power or Authority without the consent of the people as it is in the case of Kingdoms acquired by a Conquest in a Just War for as to Unjust Wars or Conquests I freely own they confer no Right at all but since you will not I suppose deny that such a Rightful Conquest confers an Absolute power on the Conqueror over the Lives and Estates of the Conquered as also an Obligation in them to submit to and obey the Conqueror hence must arise a new Civil power without any consent of the people intervening which Authority since no man can confer it upon himself must necessarily be immediately conferr'd by God since as I said before the people are only passive and have no hand at all in the conveying of it and this is the more remarkable because I suppose you will not deny but that where one Kingdom or Empire has owed its beginning to the Election or Consent of the people I could name ten that have begun from Conquest So that it is evident the people are very rarely the Efficient Causes of Civil power F. Though this Question concerning Conquest do's not immediately concern our Kings who as I have already proved do not owe their Regal Authority to Conquest but to the consent of the People Yet since the Title to a great part of our Kings Dominions begun at first from Conquest I shall now say something of it First then you grant that only Conquest in a just War can confer a Right to the Peoples obedience And therefore since the greatest part of the Governments have commenced from unjust Conquests it will therefore follow that the Right of such Princes to those Kingdoms Territories so unjustly acquired could not owe
wanting to the making such a Master of a Family a lawful and absolute Prince provided he was endued with such power as to be able to protect them yet all this while without supposing any new Divine Authority to be infused by God upon his accession to this Dignity M. I confess you have given me a more exact account concerning your sense of this matter than ever I had before and therefore I shall not further dispute this point with you only let me tell you that upon this Hypothesis of yours is founded that desperate Opinion concerning the real Authority or Majesty of the People which the Common-Wealths men suppose still to reside in the diffusive body thereof after the Government is Instituted And by vertue of which they suppose there still remains a power in them to call their Kings or Governours to an Account and punishing them for Tyranny or any other supposed Faults against the fundamental constitution of the Government or the Original Contract as those of your party are pleased to term it F. Well then to let you see I am none of those Common-Wealths men who maintain any such desperate Doctrine Here I do freely own that where the People have parted with their whole Power either to a Monarch or else to a Supream Council or Senate from thenceforth they have nothing at all to do to call such Governours to an Account or to punish them for the highest Tyranny or Oppression they can commit The utmost I have allowed as lawful to be done in this case in all the Conversations we have had is no more than this That the People in case they see themselves like to be destroy'd and ruin'd both in their Persoâ—â— Consciences and Estates may even under the most Absolute Governments stand upon their own defence and prevent their being thus totally ruined and may also cast off all Allegiance to such Powers in case they refuse to treat them with greater justice and moderation for the futureâ— But as for such limitted or mixt Governments as ours are where the People have still retain'd a share in the Legislature and also in the raising of publick Taxes yet since the King is by Law exempted from punishment or rendring any account of his Actions either to the People or their Representatives the utmost that I contend for is that since the King receives only a Limited Power of ruling according to such and such Laws and will Usurp that share of the Government that do's not belong to him In such cases if he refuse to amend then they may resist his Officers and Ministers nay himself in Person in the executions of such Violent and Illegal Actions And if he still prsist and rceâ—use to amend that then at last they may proceed to Declare that he hath forfeited his Crown or Regal Right of Ruling over them And then in such Case I hold that it again devolves to the People from whom it first proceeded and that this is no new Doctrine I have the Authority of Fortescut on my side who in his Treatise De Laudibusâ— Legum Angliae Where after having shewn that all Political or Limited Governments proceeded at first from the consent of the People proceeds thus Addressing himself to Prince Henry Son of King Henry the VI. For whom he composed this work Habâ—s ex hâ—c 〈◊〉 Princâ—â—s institutionis Politici Regni formam ex qâ—â— metiri poteris potestatem quam Rex eju◠〈◊〉 legis ipsius aut subditos valeat exercire Ad Tutelam â—amous legis ac subdit orum â—â—rum Corporum â—onorum Rex hujuâ—modi erectus est ad hanc Potestatem a Populo affluxam ipsi habet quo eiâ—noâ— licâ—t potestate aliâ suâ— Populâ— Dâ—minarâ— From whence we may observe that he calls the Government of this Kingdom not Regnum Simply but Regnum Politicum that is a Politick or Limited Kingdom in opposition to Regnum Absolutum made up of divers parts This he calls a â—ower flowing or proceeding from the People and if it thus proceeds from the People it must certainly return to them again upon the failure of the conditions to be performed on his part Noâ— do's this suppose any real Majesty or Authority in them who take this forfeiture any more than is â—o's suppose it in the People according to your own Hypothesis when the Civill Authority do's again devolve to them upon the Death of a King without Lawful Heirs M. I do now very well understand your Hypothesis but I think Princes are not thereby in a better condition by being thus unaccountable to and unpunishable by the people But that they are father in a much worse since you say they may resist nay kill them when they are once entered into a state of War against them For whereas where Princes are accountable to their People or Senate they may then be admitted to be heard to make their defence in case of any Oppression or Misgovernment laid to their charge As the King of Poland may at this day to the great Assembly of Estates or Dyeâ— of the Nation Whereas in the case of the King as you have put it though he is not accountable to the Parliament yet he is still lyable to that which is more dangerous viz. To be Judged Censured and Declared forfeit by every â—onsiderable fellow of the Rabble on pretence of violating this Original Contract and having broken the fundamental constitution of the Government and so shall be condemned unheard and perhaps without any just cause So that I think a man had as good be a Bâ—â—ward as a King upon such Term. F. The men of your Principles I see are not to be pleased unless Princes may do whatever they have a mind to without controul or any mans judging or opposing the Illegality of their Actions For if a Parliament takes upon its self to judge of the Kings Actions this is calling their Princes to an Account and a thing against the Laws of the Land as also that of Nations If the whole Body of the People take upon them to judge when he has violated the fundamental Laws of the Kingdom and broken the Original Contract and thereupon resist him This is making the King liable to be Judged and Censured by every mean fellow of the Rabble But to let you see that both Judging and Disobeying the Kings commands if contrary to Law is not a thing of such dangerous consequence as you would make it appears by the late Petition of the Seven Bishops wherein they take upon them to Judge that the Kings 〈◊〉 Declaration of Liberty of Conscience being against several Acts of Parliament they cannot with a safe Conscience Publish it or agree to the Reâ—ding of â—t in the Churches Now I desire to know whether this be 〈◊〉 a making the Kings Actions liable to be Judged and Censured by every one of the Rabble since these Bishops acted thus neither as Privy Councellors noâ— as Peers in Parliamentâ— for by the
without Children should be Heir to the Deceased And so far were they from thinking this Agreement stood in need of Ratification of a great Council that there was but twelve of the Principal Men on each side sworn to see it duly observed But if we come to consider the next putting by of Duke Robert from his Right to the Crown you will find it to have been done with a far less colour of Right than the former for he being then absent in the Holy Land at the time of Rufus's death Henry his Younger Brother laid hold of the opportunity and assembling divers of the great Men of the Kingdom he promised them to make a full Restitution of all their Antient Laws and Liberties and confirm them by his Charter and abrogate such severe ones as his Father had made thereupon they did unanimously consent to Crown him King Now I cannot see how this managed with so much Artifice corruption can properly be call'd an Election since that ought to be a deliberate sedate Action and at which all the persons concern'd ought to be present but this could not possibly be for King William was kill'd on the second of August and buried the next day and the day after that being Sunday this pretended Election was made and the Saxon Chronicle tells us That those great Men who were near at hand chose his Brother Henry King So that this looks more like the Combination of a Faction of Bishops Lords and great Men than the free Election of a King since it was impossible for all that were or ought to be present from all parts of the Kingdom to have notice to assemble and dispatch that great Business in two days time But to let you see that Duke Robert did not fit down contented with this Usurpation upon his Right for as soon as ever he came from the Holy Land he straight made War upon his Brother and many great Men of the Normans took his part and this War was eagerly carried on for some time and Duke Robert Landing in England with an Army K. Henry marcht against him with all his Forces but as the Saxon Chronicle also tells us some principal Men going between them brought them to an Agreement upon conditions that K. Henry should pay Duke Robert 3000 Marks Pension yearly and that he of the Brothers who surviv'd the other should be Heir of all England and Normandy unless the party deceas'd should have Children of his own so that though I grant King Henry recites in his Charter in Matthew Paris that he was Crowned King by the Common Council of the Barons of England yet his saying so could not give him a Right and he must say this or nothing for no other pretence or Title he could have and there never was any other Usurper in his circumstances but must say that or some such thing to make out a Title and therefore to answer your Question why Duke Robert took not upon himself the Title of King neither upon the death of his Father nor after that of his Elder Brother I think this may serve for an Answer that he parting with his Right to both his Brothers successively he then lookt upon it as needless to take the Title of King upon him as not looking upon himself then to be so F. I confess you have from your Dr. together with some assistance of your own made a very cunning gloss upon these two great Instances of Vacancy and Election to evade if it were possible that Right which the Common Council of the Kingdom then challeng'd to themselves and therefore I shall make bold strictly to examine what you have now said In the first place as to the Title of King William Rufus though I grant it was founded upon his Fathers Testament yet you see that this was not good alone without the consent and approbation of the Common Council of the Kingdom I think I have sufficiently prov'd at our last Meeting but one when we discourst of the Force of the like Testament made by King Edward the Confessor to King William the First which according to the English Saxon Law that â—as still observed was never valid until confirm'd by the consent of the Wittena Gemot or Great Council and he that had both these whether next Heir by Blood or not was always esteem'd as lawful King as I have also proved from the Testament of King Alfred and though you will take no notice of it yet was this Testament of King William I. then produced and read in the Common-Council of the Bishops Earls and Barons of the Kingdom as appears by all the Antient Historians who treat of this matter I shall only give you a taste of them Matthew Paris expresly relates the circumstances of it in these words Optimates frequenteâ— â—d Westmonasterium in concilium convenere ubi loci post long am consultationem Gulielmum Rusum Regem fecere and Abbot Brompton tells us that it was done in a full Council Convocatis Terrae magnatibus so that here was nothing wanting to a full Election or Confirmation at least of King William's Title and till this was done it is plain the Throne was Vacant But as for the claim that Duke Robert made to the Crown though I do not deny but he might think himself to have a just Title to it by a received custom among divers Nations by which the eldest Son is looked upon to have a right before the younger yet that this is no Law of Nature or Reason and consequently not Divine I think I have sufficiently prov'd at our second meeting But that this right of Succession of the eldest Son to be no fundamental Law of this Kingdom I think I can sufficiently prove from our English Saxon Histories as well as Laws and as for what you say concerning those Norman Lords and Bishops who joyn'd with Duke Robert after his Brother was Crown'd King it is call'd no better than Treason by all the Writers of those times for Florence of Worcester and Sim of Durham both tell us that the King thereupon call'd together the English and open'd unto them the Treason of the Normans and the Saxon Chronicleâ— who seem'd to have lived about that time compares the Treason of Bishop Odo to that of Iudas Iscariot against our Lord and though I grant King William might make such an agreement with his Brother Duke Robert as you mention yet as for the 3000 Marks Pension which you say he was to pay him I very much doubt it since no Historian but Matthew of Westminster who lived between two and three hundred years after makes mention of it and therefore I think it is to be referr'd to the following agreement betwixt this Duke and his Brother King Henry which the Saxon Chronicle expresly mentions Having now examin'd and clear'd the Title of King William Rufus I come next to justifie that of King Henry I. to the Crown
carried on with great vigour and though I grant that after divers changes of fortune the Empress was at last forced to quit the Kingdom yet her Son Duke Henry did not fail to continue his claim to the Crown in right of his Mother and coming over into England renewed the War against King Stephen which was at last compos'd by an agreement between them which as Matthew Paris and Mat. Westminster relate it was thus That King Stephen acknowledged in an Assembly of Bishops and other great men of the Kingdom that Duke Henry had an Hereditary right to the Crown and the Duke thereupon as kindly granted that King Stephen should peaceably possess it during his Life so that it is certain till this agreement even by his own acknowledgment he had no right to it and though I grant that the Empress Maud for some reasons we are not able to give a true account of never took upon her the Title of Queen yet it is very certain that she acted as such during all the time she was in England receiving Homage and Fealty from those Lords and others who came over to her side and also granting Charters and conferring Honours by the Title of Anglorum Domina which shews she look'd upon her self to be the Supream Governess of the Kingdom though not under the Title of Queen so that I think you can find nothing in this transaction that can support your Notion of Vacancy F. Pray give me leave to answer what you have now said before you proceed farther first I cannot excuse neither King Stephen for taking the Crown nor the Bishops and Great men that set it on his Head from perjury and injustice since the Emperess Maud had been before in a Common-Council of the whole Kingdom declared the Lawful Successor and that Fealty had been sworn to her as such All that I insist upon in this affair is this that Quod furi non debâ—t factum valet And though this ought not to have been done yet when once done did stand good and therefore if whilst the Throne was vacant King Stephen by the Election and Consent of the Bishops and Great Men of England was placed therein he was there looked upon as true and legal King as long as he lived And this was the reason why the Emperess never took upon her the Title of Queen of England no not when she had taken King Stephen prisoner and one would have thought might have justly done it as a Conqueress But yet she forbore it because that Title was not then to be taken without the consent of the Great Council of the Kingdom which I cannot find she ever held her party being not great enough to make one And though I cannot deny but that she might in some particulars exercise some prerogatives of Royal Power yet this was only upon a pretence of her being Elected and Stiled by this Title of Lady of the English in a Synod of the Clergy at Winchester by the procurement of Henry the then Bishop of that See and the Popes Legat who was now turned against his brother King Stephen For she was never generally received nor own'd as Queen nor did she ever exercise those great prerogatives of Sovereign Power viz. Calling of Great Councils making of Laws raising of Taxes or Coining Mony But whereas you represent King Stephen to have been Elected but by a very small party of the Bishops and Noblemen of England yet it is very much to be doubted whether William of Malmesbury who Dedicated his History to Robert Earl of Gloucester King Stephens greatest Enemy being no friend to his Title is to be altogether credited in this matter For Henry of Huntington who lived not long after tells us expresly that Omnes qui Sacramentum juraverant tam Praesules quam Consules Principes assensum Stephano praebutrunt hominium fecerunt And it is also as certain that the Earls of Gloucester and Chester the two greatest men of England did then likewise swear Allegiance to him and own his Title though they afterwards revolted from him again Yet could they do nothing considerable against him till his own Brother the Bishop of Winchester revolted also from him upon pretence that the King had violated the Rights of the Church And though it is true that after the Empresses departure out of England Duke Henry her Son came over and prosecuted the War against King Stephen yet could it not be in his own but his Mothers Right who was then alive Nor could the agreement you mention be made between the King and the Duke as having then a right to the Crown in his own Person since we read of no concession the Empress his Mother had made to him of it And therefore whatever Title Henry could claim thereunto Upon the death of King Stephen it was wholly due to this Kings adopting him for his Son and declaring him his Successor upon condition that he himself should enjoy the Crown during his life which agreement was solemnly confirmed and ratified and that by Oath in a full Assembly of all the Bishops Lords and great men of the Kingdom For Ordericus Vitalis in his Annals p. 989. Is very express in the manner of this great Transaction in these words Sic tamen in praesentiarum ipse Rex Caeteri Potentes Sacramento â—irmarent quod Dux post mortem Regis si tempore eum superviveret pacifice aâ—â—que contâ—adâ—ctione Regnum haberet therefore as long as the Empress Maud lived who died after her Son King Henry's coming to the Crown ' â—is plain he could have no Hereditary Right to it notwithstanding what Matthew Paris and Matthew Westminster who lived long after these Transactions have said to the contrary and therein are to be looked upon as Authors that speak their own sense rather than that of the Writers of those times M. I confess what you have urged in this matter concerning Duke Henry's being admitted as Heir of the Kingdom during the Life of his Mother the Empress Maud seems to the purpose and there could be nothing said against it but that this was done by the Concession of the Empress her self who surrender'd all her pretentions to her Son tho' we have no particular account of it or else which is more likely in my opinion that the Government of Women being then unknown in England and Normandy and consequently odious to the English and Norman Nobility and for which reason chiefly they had before set this Empress aside they thought they did in effect perform their Oath to her when they acknowledged her Title in her Son Duke Henry who is said by the Historians of those times to have succeeded Stephen Iure Haereditario which could not at all agree with your notion of his receiving his Title from the Consent or Election of the great Council But I shall pass over this and come to your next instance of the Vacancy of the Throne which you pretend
was a man and better acquainted with England and having the Interest of the Arch-bishop of Canterbury and most of the great men were of his party and yet for all that Hoveden who was alive at this time speaks not a word of his being Elected but only that upon his coming into England he was received by the Nobility and Crown'd by Hubert Arch-bishop of Canterbury so that there is not one word there of any Election by but only a submission from the Lords Spiritual and Temporal to King Iohn and a recognition that he was their King nor indeed could he need it if it be true what the same Author tells us That when King Richard despar'd of Life he devised to Iohn his Brother the Kingdom of England and all his other Lands and caus'd all those that were present to do him Fealty and this is related by Hoveden in all probability an Eye Witness of these transactions So that the first Author we find to mention any thing of the particulars of this pretended Election is Mâ—tthew Paris who has given us the Speech which the Arch-bishop made at this supposed Election and also reciting the Arch-bishops Bishops Earls and Barons and all others who ought to be at his Coronation the Arch-bishop standing in the middle of them said thus Hear all of you your Discretion shall know that no man hath right to succeed in this Kingdom unless after seeking God he be unanimously chosen by the University of the Kingdom that is those that are here said to meet at London the rest of the Speech needs no repeating only he lays it down for Law which I think was never heard of before That if any of the Progeny of the dead King did excel others they ought more readily to consent to the Election of him and so upon this Speech made in behalf of Earl Iohn and full of a great deal of fulsom slattery he was declar'd King But to let you see what a sort of Man this Arch bishop Hubert was here see what the same Author tells us in the same place that being asked afterward why he said these things answer'd That he guested and was thought ascertained by certain Prophecies that Iohn would bring the Kingdom and Crown into great Confusion and therefore lest he he might have too much liberty in doing he affirmed he ought to come in by Election and not by Hereditary Succession Now though this Learned Doctrine of the Arch bishop asserts a right of Election in the Convention of Bishops Earls Barons c. yet by his own answer when he was asked why he said these things it clearly discovers it to be only a design and artifice in the Archbishop to cause them to set up and make Iohn King and in which also he denies any such right of Election but since Hoveden nor any other of our antient historians make mention of this Election but only of his Coronation and the Bishops Earls and Barons assisting at it not giving their consents to it it may very well be that that story of an Election and this Speech of Arch bishop Hubert might be only an invention of Matthew Paris or rather of Roger of Wendover from whom he took most of his History but that this doctrine of the Arch-bishop concerning the Election of our Kings if meant according to the modern understanding of it was then new Gervase a Monk of Canterbury in the year 1122. who also speaking of the Coronation of Henry the First says it was manifest and known almost to all men that the King 's of England were only obliged and bound to God for the possession of the Kingdom and to the Church of Canterbury for their Coronation manifestum est autem omnibus fire notum Reges Angliae soli Deo obligari teneri ex ipsius regni adeptione Ecclesiae Cantuariensi ex Coronatione But that King Iohn was looked upon as an Usurper is very certain since besides some of the honest English Nobility that took Duke Arthurs part the King of France did also make War upon King Iohn upon his Nephews account because he looked upon him as true Heir to the Crown and therefore when K. Iohn had privately made away his said Nephew in prison the K. of France summon'd him as Duke of Normandy and Peer of France to answer for the Murther in an Assembly of the Peers of France at Paris where for his refusing to appear he was condemn'd to death and his Dukedom of Normandy declar'd forâ—eited to the King of France F. I confess you have said as much as can be to prove that King Iohn had no Hereditary Right to the Crown nor was so solemnly Elected to it as Matthew Paris relates but yet for all this I think I may very justly oppose all that you have now said upon this Head for in the first place it was then very much disputed as it hath been also since that time if an Elder Brother died and left a Son a Mâ—nor whether his Younger Brother or the Son should succeed for though the People of Anjou and those of Guienne own'd Duke Arthur for their Prince yet the States of Normandy were of another mind and as well by vertue of King Richard's Testament he was immediately after his Death invested with that Dukedom nor was he then at all opposed in it by the King of France though Supreaâ— Lord of the Fee and as for England besides his Brothers Testament whereby he left him Heir of all his Territories it was also then generally held in England as most consonant to the Antient English Saxon Law of Succession that the Uncle should succeed to the Crown before the Nephew therefore it is no wonder if Duke Arthur found so small a party here not any Bishop Earl or Baron as I read of owning his Title and as for the King of France it is also as certain that he did at first own King Iohn for lawful King of England and Duke of Normandy and entred into a Treaty of Peace and made a League with him as such though it is true that afterwards when he had a mind to pick a quarrel with that King he then set up Duke Arthur's Title And though this Duke was made away in the beginning of King Iohn's Reign yet did not the King or Peers of France ever take any notice of it till about twelve or thirteen years after when he had now unjustly Conquered all Normandy and almost all that Kings other Territories in France and then wanting a Title to keep them he began this Prosecution you mention against him and upon his non appearance he was condemned unheard but that the King of France himself and all the great men of that Kingdom did look upon him to have been lawful King of England appears by that Speech which Matthew Paris relates to have been made after King Iohn's Deposition by the Barons of England by a Knight whom Prince Lewis
of France had made his Procurator to treat with the Popes Legat about his coming over hither where when he had recited that King Iohn had been condemn'd by his Peers for the Death of his Nephew Arthur and that he had been also for his great cruelties and other wickedness Deposed by the Barons of England and farther reciting that the said King without the assent of his Nobility had resign'd his Kingdom to the Pope to hold it of him at an Annual Tribute of a thousand marks the rest I will give you in Latine because you your self shall translate it etsi Coronam Angliae sine Baronibus alicui dare non potuit potuit tamen dimittere tam quam statim cum resignaverit Rex esse desiit Regnum sine Rege vacavit vacans itaque Regnum sine Baronibus ordinari non debuit c. so that you may see that by the order of Prince Lewis and the allowance of the King of France himself every one of our opinions are maintain'd for good first That King Iohn was before the resignation of his Crown to the Pope true and lawful King Secondly That by that resignation to the Pope he did dismiss or abdicate his Right to it for so I suppose the word demittere Regnum is here to be render'd Thirdly That upon this dismission of the Crown the Throne became Vacant Fourthly That upon this Vacancy the Kingdom could not be conferr'd without the consent of the Barons that is the great Council of the Kingdom But let King Iohn's Right to the Crown have been what it would it is certain that he could not take it upon him until such time as this Great Council had both heard and allow'd his Title and that this was in the nature of an Election notwithstanding his Brothers Will appears by that account which Roger Wendover and Matthew Paris have given us of it which though Hoveden and other Writers have omitted yet doth it not therefore follow that this was all the pure invention of Roger of Wendover or Matthew Pariâ— since the former he living near that time might write from the relation of â—oâ—e that were then present and as for the latter I look upon him though a Monk as a man of too great integrity to invent any thing of his own Head and though I confess the account that Arch-bishop Hubert gives why he put King Iohn's Title rather upon Election than Succession looks very suspicious since the Arch-bishop must thereby have made himself a Knave and a Hypocrite and seems also to contradict what Matthew Paris had before said viz. That all those that heard his Speech dares not so much as doubt of these things knowing that the Arch-bishop had not thâ—s judged of this matter without cause and therefore I grant that this part of the relation concerning the Arch-bishops vindicating of himself for thus giving his Judgment might be a Story commonly taken up and being told to this Authour was by him inserted in his History at a time when I grant the Crown of England began to be thought successive by reason that King Henry the III. had succeeded as the eldest Son of his Father though he was noâ— for all that admitted without Election as I shall prove by and by but that King Iohn was made King by Election though he claim'd it from his Brother by successiâ—n likewise appears from his own Charter still to be seen at this day in the Arch-bishops Archives at Lambeth wherein he recites that he came to the Crown Iure hereditario mediante tam Cleri quam populi unanimi consensu favore where you see plainly that he derives his Title from the consent and favour of the Clergy and People as well as his own Hereditary Right M. Notwithstanding what you have now said I cannot agree with you that by these words you have now cited from this Charter is to be understood any formal Election of the Clergy and People but that this unanimous consent mention'd in it was rather their acknowledgment of his Title and submission to him than any thing else for according to Hoveden's relation of his coming to the Crown which I think the most exact extant the whole Nation submitted and swore Fealty to him against all men before he came over into England But as for his Son Henry the III. it is much more plain that he succeeded by Succession and not by Election as being the Eldest Son of the Late King his Father as appears by the relation of his Coronation in Matthew Westminster who tells us thus Henricus Iohannis primogenitus in Regem inunctus solemniter Coronatus est and tho from the Speech which was made to the Clergy and Nobility that was then at Gloucester by the Earl Mareshall 't is pretended that Henry was Elected yet I dare say if any one do but impartially consider the tenour of it he will find that the design of it was rather to persuade all those then present to return to their duty and acknowledge Him for their King whom God and Nature had designed for that great charge for the Earl begins his discourse to 'em thus as it is in Knighton Ecce Rex Vester which certainly could not then be true if an Election was necessary to make him such but amongst the rest of his Arguments he urges this Hunc igitur libeat regem dicere cui ipsum Regnum debetur you ought to chuse him to whom the Kingdom is due which surely it can be to none if it be not Hereditary and what puts all out of doubt that the Kingdom was not then and if not then I am sure never since Elective is the answer of Hubert de Burgh to Lewis when he summon'd him to deliver up Dover Castle to him since his Master for whose use and service he held it was dead but see his answer If my old Master say's he he dead he has left behind him Sons and Daughters to succeed him A thing he never would have asserted had he not thought there had been a Divine Right somewhere else than in the People F. Before I speak any thing to King Henry the III ds Election give me leave to reply to what you have said against the express words of King Iohns Charter for if Favor and Consensus does not signifie somewhat more than a bare acknowledgement and submission I understand neither English nor Latine Nor is this any answer to the express testimony of Roger of Wendover and Mat. Paris to the contrary And as for Roger Hoveden he does not say he was not Elected but only omits the manner of it as divers other Historians do So that at the best this is but a negative Argument And yet that Hoveden himself did not look upon him as King even after the whole Nation had sworn Fealty to him before his Coronation may appear from this passage a little before his coming over Wâ—â—ielmus Rex Scotorum misit
grant that Hoveden as you cite him relates that Homage to be made and Fealty sworn to Richard the I. by the Title of King yet is it very much to be doubted whether this was not only by a Prolepsis or perhaps a slip of the Pen in this Author since he writ this History long aâ—ter King Richard's Death and therefore without we had the very words of this Oath there is no certain conclusion to be drawn from thence and I think we may as well credit the Chronicle of Abbot Brompton who likewise lived about the same time and recites all this affair almost in the same words with those in Hoveden but there the Oath does not run exactly in the same words as in this Author but thus quod unusquesque liberorum hominum totius regni Iuraret quod sidem portaret Domino Richardo Domino Angliae filio Domini Regis Henrici c. ficut legio Domino suo contra omnes mortales where you see the Oath is not made to King Richard as King but only as Lord of England and that there is a great deal of difference between those two Titles not only in name but in Substance I have already prov'd when I spoke of the Empress Maud's stiling her self Domina and not Regina Anglorum tho' she had Homage rendred and Fealty sworn to her not only in her Fathers Life time but also after her coming over again into England in the Reign of King Stephen by all that own'd her Title and that Hoveden himself meant no more than this appears by that passage I have already taken notice of viz. that Hubert Arch-bishop of Canterbury and William the Earl Marshal being sent over to keep the Peace made all the men of the Kingdom as well of Cities as Burroughs with the Earls Barons and Free-holders Iurare fidelitatem pacem Iohanni Normanorum duci filio Henrici regis filii Matildis Imperatricis contra omnes homines where you see the Oath is taken to him only as Duke of Normandy and not as King at all and therefore you are mistaken to say that Hoveden mentions the like Oath to be taken to Duke Iohn as it was before to King Richard But I come now to answer your last argument whereby you would prove that there was no Vacancy or inter-regnum in this Age which is because that our Chronicles and Tables of Successions do still begin the Reigns of each King from the day of the Decease of his Predecessors without any Vacancy or Inter-regnum between them to which I reply That none of our antient Chronicles or Historians reckon thus as I know of but rather acknowledge a Vacancy of the Throne to have been between each Succession and as for the Tables of the Succession of our Kings when you can shew me one more antient than the time from which I grant the Crown of England began to be looked upon as a Successive and not an Elective Kingdom I shall be of your opinion but admit it were so since the Succession to the Crown has been for the most part mixt partly Elective and partly Hereditary our Kings might to maintain the honour of their Title still reckon their coming to the Crown immediately from the death of the last Predecessor tho' there has been oftentimes some days and weeks between the one and the other as I have now proved and shall prove farther by and by which being but small fractions of time are not taken notice of in the whole account which may be notwithstanding very agreeable to Law for both my Lords Dyer and Anderson in their Reports do agree That the King who is Heir or Successor may Write and begin his Reign the same day that his Progenitor or Predecessor dies M. It will be to no purpose to dispute this point with you any longer since I must confess that there were so many Usurpations in the Succession of most of those first Kings after the Conquest that it is a difficult matter to prove any setled rule of Succession to have been then observed in England and therefore I only desire you to take notice that though it is true King Henry the 3 d was an Usurper for the first Twenty five years of his Reign yet for all the rest of it which was near Thirty more he was a true and lawful Prince for Elianor his Cousin being dead in Prison without issue and there being no more of that Line left her Right wholly devolved upon King Henry and he and his Children are to be from henceforth reckon'd to have a true Hereditary Right to the Crown without any Competitors And that this was so will plainly appear from the Testament of King Henry the 3 d. a Copy of which I have by me where tho' he Bequeaths a great many of his Jewels to the Queen and a great deal of Money to charitable uses yet for this Kingdom and other Territories in France and Ireland he makes no Bequest of them at all either to Prince Edward his Eldest or to Edmund his youngest Son tho' his Father King Iohn had bequeathed the Kingdom to him by his Will as you have already shewed and what could be the reason of this But that there being now no Title left to contest with his Son there was no need of it and therefore tho' Prince Edward was absent in the Holy Land when his Father Died yet a great Council being call'd in his Name at London he was there only recognized and acknowledged to be their natural Leige Lord and Lawful Successor to his Fathers Throne pray read the words as they are in Walsingham's Life of this King Edwardum absentem Dominum suum Leigium recognoverunt paternique successorem honoris ordinaverunt we meet not here with any thing like Election which no doubt we should not fail to do if there had been any such thing practised So likewise upon this King's death his Son King Edward the 2 d. by the like Right succeeded as Heir to his Father and tho' this Prince by suffering himself to be too much guided by his Minions fell at length into such Arbitrary and Irregular courses as procured him the hatred and ill will of his Subjects to that Degree that by the Disloyal and Ambitious practices of his Lascivious Queen he being made Prisoner a Parliament was call'd in his name who took upon them to Depose him for his misgovernment contrary to all Law and Right and though his Son Prince Edward had hitherto join'd with his Mother against his Father yet is he herein so far to be commended that tho' the Crown was offered him by Election of the Great Council yet the same Author tells us he swore that without his Father's consent he would never accept it whereupon divers Messengers or Delegates being dispatched from the Parliament to the King then Prisoner at Kenel-worth Castle who told him what had been done and concluded of at London required him to resign his Crown and
permit his Son to Reign in his stead which though with some reluctance he at last agreed to and thereupon Prince Edward took the Crown not by Election as you set forth but by the cession and resignation of his said Father as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown which Writ or Letter is still to be seen among the Roll's in the Tower and is also published in Walsingham as a Proclamation which because it will give very great light in this matter I pray now read it at length Rex vicecom Ebor. Salutem quia Dominus Edwardus nuper Rex Angliae pater noster de communi confilio assensu praelatorum Com. Baron Alior Magnat necnon Communitat totius Regni praedict spontanea voluntate se amovit a Regimine dicti Regni volens concedens quod nos tanquam ipsius primogenitus haeres Regni gubernationem regimen assumamus nosque ipsius patris nostri bene placito in hac parte de consitio avisamento Praelator Com. Baron Magnat Communitat predict onnuenâ—es pubernacula suscepimus dicti Regni fidelitates Homagia ipsorum Praelitor Magnat recepimuâ— ut est moris teste Rege apud Westmonast 29. Ian. So that you here see this King takes no notice of the deposition of his Father or the Election of himself but only that by the Common Council and Assent of the Prelates Earls Barons c. The King his Father had by his own free Will removed himself from the Government of the Kingdom and that therefore he had by the good Will of his said Father and by Council and Advice of the said Prelates Earls c. taken the Government of the said Kingdom upon him But King Edward the 3 d. being dead his Grandson Richard the 2 d succeeded him having been before recognized by Act of Parliament as Heir Apparent to the Crown in his Grandfather's Life Time immediately upon the Death of his Father Edward the black Prince so that he succeeded to the Crown though an Infant and having great and powerful Uncles then alive and though by his ruling too Arbitrarily and being too much govern'd by Flatterers be became hated of his Subjects and thereupon gave occasion to Henry Duke of Lancaster whom he had before banished to come over and take the Kingdom from him without striking a stroak and having taken the King Prisoner call'd a Parliament in his name who took upon them most unjustly to Depose King Richard tho' 't is true he also made a solemn resignation of it by his own seeming consent but it is certain it was forced from him for fear of worse usage if he refused it F. Pray give me leave to answer what you have now said before you proceed farther in this History of the Succession In the first place I shall not deny but that from the Reign of King Edward I. the Crown has been always claim'd tho' not constantly enjoy'd by right of Blood yet that the custom was otherwise before I think the Instances I have given from the time of your Conquest are more than sufficient it is likewise as certain that this Succession by right of Blood was never setled by any positive Law and therefore must be purely derived from that Tacit consent of the People called Custom Secondly That the two Houses of Parliament have often notwithstanding this claim placed or fixed the Crown upon the Heads of those Princes whom they very well knew could have no Hereditary Right to it Thirdly That such Princes have been always obeyed and taken for lawful Kings all their Laws standing good as this day without any confirmation by their Successors tho' they pretended to a better Title Now if I prove every one of these three propositions I think the case will be very plain that though the Crown has been claim'd and often enjoy'd by right of blood yet hath it been held near as often otherwise since that time so that the Succession to it hath been still declar'd under the direction and limitation of the Present King and Parliament This being premis'd I shall proceed in the next place to answer what you have said concerning King Edward the first 's being only Recogniz'd and not Elected King by the Parliament it is plain from this History that the Great Council still maintain'd their anâ—ient right of assembling upon the death of the King and of Judging who should be his Successor and that without any summons from him which will serve to justifie as do all the other instances aforegoing that the late Convention meeting and setling the Crown without any Writs or Authority derived from King Iames was no new thing but that they have therein done no more than what hath been antiently practised in like cases and tho' 't is true the words in Walsingham is recognoverunt yet there is also other words which seem to intimate that it was then in the power of the Great Council whom to declare for lawful Successor the words are Paternique Successorem honoris ordinaverunt that is they ordain'd or decreed him Successor of his Fathers Dignity which sure is somewhat more than a bare Declaration of an undoubted precedent Right and what power the Great Council was then looked upon to have in the ordering of this Kingdom appears by that Writ of Dedimus for all mens taking the Oaths of Allegiance in the Country which is still to be seen in the close Rolls and begins thus Quia defuncto jam celebris memoriae Domino Henrico patre nostro ad nos Regni Gubernaculum successione Haereditaria Procerum Regni voluntate fidelitate nobis praestita sit devolutum c. where besides the Hereditary Succession the good Will and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him and that this course was also observed upon the accession of his Son Edward the 2 d. to the Crown seems likewise as evident from the same Author who tells us in the beginning of the Life of this Prince that he succeeded his Father King Edward non tam jure Hereditario quam unanimi consensu Procerum Magnatum which observation had been altogether needless had an unalterable Hereditary Right to the Crown been the setled But as to what you say of King Edward the 3 ds Right whilst his Father was Living to have been wholly due to his resignation tho' the place I cited out of Walsingham be express in this point yet against this you urge a Writ or Declaration as also a Proclamation of this Kings wherein he thus sets forth his Title viz. That by the Voluntary resignation of King Edward his Father and by the Council and Advice of the Prelats Earls and Barons c. he had taken upon him the Government of the Kingdom and consequently that
Rebellion for the Duke of Lancaster to take up Arms against King Richard the 2 d and to Depose him I cannot see why according to your own Principles it should not be the same crime in the Duke of York to take up Arms against King Henry the 6 th to whom he had more than once sworn Faith and Allegiance and having taken him Prisoner to call a Parliament whereby himself was declared Protector of the Kingdom and the Son of King Henry disinherited after a quiet possession in three descents during the space of above sixty years which if it will not give a thorough settlement after two Acts of Parliament to confirm it I know not what can M. I confess you have given me a more exact account of this transaction than ever I had yet and I should very much incline to be of your opinion were it not that I am satisfied that our Kings have a Right to the Crown by Gods Law as well as mans as also by the Law of Nature and that more than one Parliament have been of my opinion in this matter I shall shew you from several Statutes and Declarations of Parliament which though not Printed are yet to be seen at this day upon the Parliament Rolls for after that Henry the 6 th or rather his queen for him had broken the aforesaid solemn agreement made between this King and Duke in Parliament whereby it was accorded that if King Henry made War again upon the Duke of York he should then forfeit his present Right to the Kingdom during his Life whereupon Queen Margaret and her Son Prince Edward who would not submit to this agreement renewed the War and fighting another Battle at Wakefield the said Duke was slain but though he did not live to enjoy his right yet his Son Edward Earl of March again recovered it and having in the second Battle of St. Albans taken K. Henry Prisoner triumphantly Marching to London he there declar'd himself King and having immediately call'd a Parliament it was therein declar'd that all the proceedings against K. Richard the ad are repeal'd and the taking him Prisoner by Henry Earl of Darby was declared against his Faith and Allegiance and that with violence he had usurped upon the Royal Power and Dignity c. and that he had by cruel Tyranny Murther'd and Destroy'd the said King Richard his Liege and Soveraign Lord against Gods Law and his own Oath of Allegiance And then they proceed further to declare in these words That the Commons being of this present Parliament having sufficient and evident knowledge of the said unrightwise Usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Sovereign Lord viz. King Edward the 4 th thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their True Rightwise and Natural Leige and Sovereign Lord and that he was in Right from the death of the said noble and famous Prince his Father very just King of the said Realm of England and will for ever take accept and repute the said King Edward the â—ourth their Sovereign and Liege Lord and him and his Heirs to be Kings of England and none other according to the said Right and Title And that the same Henry unrightwisely against Law Conscience and the Customs of the said Realm of England Usurped upon the said Crown and that he and also Henry late call'd K. Henry the 5 th his Son and Henry Late called Henry the 6 th his Son occupy'd the Realm of England and Lordship of Ireland and exercised the Governance thereof by Unrightwise Intrusion Usurpation and no otherwise that the â—motion of Henry late called King Henry the 6 th from the Exercise Occupation Usurpation Intrusion Reign and Governance of the said Realm and Lordship done by our Sovereign Lord King Edward the 4 th was and is rightwise Lawful according to the Laws and Customs of the said Realm and so ought to be taken holden reputed and â—ccupied I have been the larger on this point because it is a full and free Declaration of the whole Parliament nor only against all past as well as future Parliaments having any thing to do in the disposal of the Crown but is also as express a Declaration as words can make against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me if I have been a little too tedious in reciting these Records F. I cannot blame you for being very exact in this point because the whole strength of your Cause depends upon it but yet I doubt not but to shew you that this Parliament was as much awed by King Edward's Power being now Conqueror as ever those Parliaments were that Depos'd Edward and Richard the 2 d for you your self have sufficiently set forth the manner of it that it was not till after a great Victory obtain'd against King Henry the 6 th and I never found in all my reading that a Victorious Prince ever wanted power enough to get a Parliament call'd to settle himself in the Throne and declare his Competitor an Usurper as I shall shew you more fully by and by but that this Act of Parliament which thus posiâ—ively declares Edward the 4 th to be their Sovereign Lord by God's Law Man's Law and the Law of Nature I think can no ways consist either with Scripture Reason or Matter of Fact for in first place I think I have sufficiently proved that there is no Divine Right of Succession for the Heirs of Crowns any more than of other Inheritances either by the Law of God or that of Nature and as for Man's Law I think I have here also proved that the Succession to the Crown by right of Blood alone was never establisht by any positive Law nor yet setled by any constant or interrupted Custom when this Declaration was made for the Crown had then never descended from Father to Son for above two Descents without a deposition or possessed by those who claim'd by Right of Blood without any other Title for as for the three Kings of the House of Lancaster I have already proved and your self must also own it that they could have no Title to the Crown but from the Acts of Entail of the 7 th and 8 th of Henry the 4 th above mention'd so that according to Man's Law that is Custom and also the Statute Law of this Kingdom the House of Lancaster had all that time the better Title But to shew you what uncertain things Parliaments are when King Edward the 4 th had Reign'd ten years he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him and in his absence he replaced King Henry the 6 th upon the Throne who had been all this while kept
in Prison and the first Act this King did after his Restoration was to call a Parliament which revoked all the former Statutes and Declarations of the 39 th of Henry the 6 th and 1 st of Edward the 4 th and then entail'd the Crown anew upon the issue of King Henry the remainder to the Duke of Clarence who then took part with King Henry against his own Brother 'T is true indeed that King Edward the 4 th returning again not long after into England and regaining the Crown from King Henry the 6 th the said King was not only murther'd together with his Son Prince Henry but in the next Parliament was also attainted of Treason with all others of his Party and yet lot let you see that this very Act is now null and void against King Henry the 6 th and his Son Prince Edward see an Act of Parliament of the first of Henry the 7 th not Printed which because it is not commonly known I will read it almost verbatim The King our Sovereign remembring how against all rightwiseness honour nature and duty an inordinate seditious and slaunderous Act was made against the most famous Prince of blessed memory King Henry the sixth his Uncle at the Parliament holden at Westminstey the fourth day of November the first year of the Reign of Edward the 4 th Late King of England whereby his said Uncle contrary to the due Allegiance and all due order was attainted of High Treason wherefore our same Sovereign Lord by the Advice and Assent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by Authorities of the same ordaineth enacteth and establisheth that the same Act and all Acts of Attainder Forfailure or Disablement made or had in the said Parliament or else in any other Parliament of the said Late King Edward against the said most blessed Prince King Henry or against the right famous Princess Margaret Late Queen of England his Wife or the right Victorious Prince Edward Late Prince of Wales Son of the same blessed Prince K. Henry and Margaret c. are void annulled and repealed and of no force nor effect so that by vertue of this Act the Title of the House of Lancaster was again declared to be good But to conclude I cannot but take notice of one mistake you have fallen into by saying that all proceedings against King Richard the 2 d. are repeal'd by that Parliament of the first of Edward the 4 th which is not so for though I grant that the dealings of Henry Earl of Darby as he is there call'd in imprisoning the said King and Usurping the Royal Power is there expresly condemned and his Murthering of him said to be against Gods Law and his own Oath of Allegiance as certainly it was yet the Deposition of the said King Richard by Parliament is no ways repeal'd by this Act for then all the Records thereof would have been quite Cancell'd and taken off the Rolls whereas they still remain to be seen at this day and you see by this Act I now recited That the attainder of King Henry the 6 th is declar'd contrary to due Allegiance and all due order and all forfeitures and disablements of the said King and Prince are quite annull'd and made void M. I must confess you have so stagger'd me with this Act that I know not what to say to it but that it was made in the first Parliament of King Henry the 7 th and before he had married the Princess Elizabeth and consequently had no good Title to the Crown himself therefore till then I look upon him as an Usurper but I shall now proceed to shâ—w you that that very King nay even Richard the 3 d. himself chiefly relied not upon any Parliamentary Election but upon their own pretended Titles of being right Heirs by Blood for after the death of Edward the 4 th his Son Edward the 5 th was proclaim'd King and might have quietly enjoy'd it if his ambitious Uncle Richard Duke of Gloucester had not plotted to defeat him of it and knowing very well that he had no way to bring it about but by inciting a corrupt party of the Bishops and Lords together with the Lord Mayor of London and some of his Party in the City to set forth by way of Petition to the Duke then Protector of the King and Realm That all the Children of K. Edward the 4 th were Bastards supposing that King to have been Contracted with a certain Woman called Eleanor Boteler before he Married Queen Elizabeth moreover that the Blood of his Elder Brother George Duke of Clarence deceased was attainted so that none of the Lineal Blood of Richard Duke of York could be found uncorrupted but in himself and there was at the conclusion of that Roll an Address to him from the Lords and Commons of the Kingdom that he would take the Government upon himself this fine artifice assisted on one side with his feigned excuses which induced the less thinking sort of People to believe he desir'd not the Royalty and prompted on the other side with the fear of his power procured his accession to the Throne so that at last he and his Wife Anne were solemnly Crowned King and Queen at Westminster and by these steps did that inhumane Prince who had no Title to the Crown either by descent or by merit ascend the English Throne see you that not by Election but by pretence of blood and by bastardising and attainting his Nephews he set himself up for the only true Heir of the Crown and therefore in the Parliament he call'd immediately after his Coronation when they had declar'd almost the very same things as were before in the said Petition they proceed further To declare that the Right Title and Estate which King Richard the III d had to and in the Crown and Royal Dignity of the Realm of England with all things thereunto within the said Realm and without it annexed and appertaining was just and lawfull as grounded upon the Laws of God and Nature and also upon the antient Laws and laudable Customs of this said Realm as also taken and reputed by all such Persons as were learned in the above-said Laws and Customs and proceeds farther thus therefore at the request and by the assent of the three Estates of this Realm that is to say the Lords Spiritual and Temporal and Commons of this Land Assembled in this present Parliament and by the Authority of the same it is pronounced decreed and declared that our said Soveraign Lord the King was and is the very undoubted King of this Realm of England with all things thereunto belonging within the said Realm and without it united annexed and appertaining as well by right of Consanguinity and Inheritance as by lawfull Election Consecration and Coronation So that you see tho' they put in his Election as also his Coronation as means of obtaining the
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
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
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
Kingdom do hold good though made under Usurpers and that for this Reason because such Acts being for the publick benefit it is to be suppos'd that the King de jure did give his tacit consent to them for as it is well observed in the Case you have now cited that it behoves the Realm should have a King that is some Civil Government and that the Laws should be kept and maintain'd but then those Laws can extend only to such things as are for the publick good and do not tend to the disinheriting of the King de jure or barring him or his Heirs of their Right as did that Act of the 7th of Henry the IVth whereby the Crown was intail'd upon himself and his Sons which was declar'd to be void by the 39th of Henry the VIth so likewise this Act is void for the same reason since it would give a Right to the Subjects to defend the King for the time being though an Usurper against the true and lawful King who would be thereby not only defeated of his Right himself but also his right Heirs would be so too which would be directly contrary to the intent of the said Statutes of the 39th of Hen. VI and 1 st of Edw. IVth but now mention'd but also to the Act of Recognition of King Iames the Firsts Title And therefore I must still maintain that my Lord Coke is mistaken in supposing a King de facto to be within the intent of the Statute of the 25th of Edw. the IIId for sure it would seem a very odd question for any one to ask touching the Laws that are made in any setled Monarchy for the defence of the Kings Person Crown and Dignity who is meant by the King in those Laws whether the Lawful and Rightful King of that Realm or any one that gets into the possession of the Throne though he be not a Rightful King but an Usurper So likewise as to that Clause in this Statute which makes it Treason to Conspire the Death of the Kings Eldest Son and Heir it could be never intended for the Son of a King de facto since that would be to own him for right Heir of the Crown for ever and thereby intail it upon his Family to the prejudice of the Right Heir of the King de jure and therefore though I grant some of the Judges and Lawyers held the Law to be so as you have cited it in Bagot's Case and that a King de facto may enjoy those Prerogatives in some respects yet cannot this be extended to the prejudice of the King de jure and his Right Heirs and though I also grant that divers Acts of Parliament made by Kings de facto have for the most part held good without being confirm'd by any subsequent Statute of the King de jure yet have they been also repeal'd sometimes meerly because made whilst the King de jure was alive as I shall prove more at large by and by F. I shall also take the boldness to reply to these answers of yours before I proceed to answer the rest of your Arguments in the first place let me tell you that this notion of a tacit consent in the King de jure suppos'd to be given to all Statutes made for the publick good is to serve upon all occasions when those of your Party cannot tell how otherwise to answer the Arguments that are brought against them and you may as well tell me that they do also give their tacit consents to all other Acts that Usurpers may do and I may as well suppose that Queen Elizabeth the Wife of Henry the VIIth the Lawful Heiress of the Crown did in the person of her Husband give her tacit consent that this Act of the 11th of Henry the VIIth should hold good for ever since it is so much for the publick good and peace of the Nation that the Statute declares it to be against Law Reason and good Conscience that Subjects should suffer for fighting for the King for the time being but I very much wonder if this suppos'd tacit consent were given to all Acts of Parliament by the Kings de jure why upon their return to the Government he did not also express this consent by confirming all those Acts which were made by his Predecessors the Kings de facto or else declare them void but since they neither did the one nor the other it is plain it was because even they themselves looked upon it as altogether needless Nor is your reason at all satisfactory why a King de facto cannot be intended by the Statute of the 25th of Edward the IIId because that maketh it Treason to Conspire the death of the King 's Eldest Son and Heir which say you can only be meant of the Eldest Son of a King de â—urâ— which is to beg the question for though it is true this Clause in the Act was intended for the preservation of the King 's Eldest Son yet it doth no where determine that this must be the Eldest Son of a King de jure for though I own this Clause was made to preserve the Crown in the Right Line from Father to Son yet does it make no difference between the Son and Heir of a King de facto and one de jure nor have you yet answer'd the Authorities I have brought from the Acts of attainder of those Lords who Conspired against the three Kings of the House of Lancaster which stand unreversed unto this day and which also confirm the Opinion given in Bagot's Case where it is said expresly that a Man may be arraigned for Treason committed against the King de facto by the King de jure and therefore I think my Lord Coke may very well be justified in his Opinion notwithstanding the question you put whether the Statute could mean him who is lawful and rightful King or any other who gets into the possession of the Throne Now this seems to me no such odd question for when the Law only mentions the King and the Law-Makers certainly knew that Kings without an hereditary right had often ascended the Throne if they had intended to except all such Usurpers they should have expresly said so But indeed that distinction of a King de facto and a King de jure was not known 'till many years after being first heard of in the Reign of Edward the IVth for a King de facto as the late Chief Justice rightly asserts is Seignior Le Roy within that Statute and there is no other King but he whilst he continues so For King signifies that person who has the Supream Government in the Nation and a King de jure is he who should have the Government but has it not that is who of right should be King but is not and the Statute of Treason tells us what is Treason against him who is King not against him who should be but is not King and reason good it
must confess I am somewhat staggered with those Reasons and Arguments you have now given me against those Principles which as I have always and must still esteem as sacred till I am convinced I am in an Errour and perhaps if I were to consult my own 〈◊〉 Reason and natural Inclinations I should come over to your opinion But since it hath pleased God to lay much higher restraints and stricter Rules of Obedience and Subjection on us by his Revealed Will in the Scripture beyond what can be discovered by the Light of Nature and that under the highest Penalty viz. Damnation I can see no reason why God Almighty may not grant Eternal Life upon what Conditions he pleases tho' never so hard and uneasie for Flesh and Blood to perform So that if our Saviour Iesus Christ hath commanded us to take up his Cross and follow him that is to suffer all sorts of Injuries and Afflictions nay Death it self as he himself did rather than to Resist the Supream Powers under which He lived I cannot see any Reason why he should not Propose his own Example for our Imitation And as he hath enjoined and expects from us greater Degrees of Chastity Charity and Humility than ever he did from the Iews or Pagans so I see no reason why he may not likewise exact from us a greater and more perfect Obedience and Submission without any Resistance to all Soveraign Princes and States than ever he did either by the Law of Moses or that of Nature not but that there are sufficient Proofs in the Old Testament for the absolute Power of Princes against all Rebellion or Resistance in Subjects Tho' I confess this Doctrine is more plainly proved by the Example of our Saviour and the Precepts of his Apostles in the New Testament as also from the Example of the Primitive Christians in Obedience thereunto F. I perceive you begin to distrust your Arguments drawn from Natural Reason and the Laws of Nature and when you are pressed with the absurdity of this Doctrine of yours you fly from Gods Natural to his Revealed Will and take refuge under the Covert of the Holy Scripture to impose an Opinion contrary to the Common sense and Natural Notions of Mankind not corrupted with the Prejudices of Education and therefore give me leave at present to tell you that I think I shall be able to prove that the Passive Obedience as you call it of the Primitive Christians and their sufferings for the Name of Christs will not at all contradict that Natural Right which I suppose all Freemen to have as well under Civil Government as in the State of Nature for the defence of their Lives Liberties and Properties unless where the Common good and Peace of the whole or Major part of the People require the contrary And therefore the same Reasons which oblige particular private Persons to be quiet and not to disturb the publick Peace of the whole Society for their own private Safety and Advantage when the whole Body of the People or the Major part of them is thus violently assaulted in their Lives Liberties and Estates the same considerations of the Publick good of their Country whereof every Man is a Member doth then as strongly persuade I may say enjoyn them to take up Arms and defend themselves for the Preservation of the whole People or Community whose Natural and Civil Rights being now attack't can no otherwise be restored to the same State they were in before but by that last Remedy that can be used in this Case viz. Kim vi â—topellere M. I confess that of all Commonwealth-hypotheses yours is most reasonable being coherent with it self and also most likely to be swallowed by the People because it flatters our corrupt Natures to which this Christian Doctrine of Passive Obedience is so directly opposite as also because it gives them a full Liberty I mean not only the Representative Body but the Major part of them to reassume that Power which you pretend they never parted with and so consequently all necessity of suffering except when they please to think they have justly deserved it is taken away and the Sufferings of the Primitive Christians will be rendered only a tame Madness and that St. Paul was very much overseen to enjoin this Subjection to the Romans under the Government of one of the most cruel Tyrants that ever sway'd that Scepter but we have not so learned Christs And therefore I am firmly persuaded that we ought to be strictly obedient without any Resistance to those Civil Governours that God hath been pleased to set over us let them abuse their Power never so Tyrannically F. I am beholden to you for your plain dealing with me in this matter and pleased to find that you have an Inclination to my Principles were it not for some Texts of Scripture and Citations out of the Fathers and Church History which give you a Prejudice against them which I hope when they come to be closely examined will signifie no more than the former But for the dispatching this Important Controversie I pray give me leave to propose this easie method first that you would be pleased to lay down your Authorities out of Scripture in order as they lie And afterwards to shew me that the Ancient Fathers and Primitive Church always understood those Texts in the same Sense that you do viz. that No Resistance of the Supream Powers is Lawful to be exercised in any Case whatsoever M. I approve of your Proposal and therefore I will first begin with those proofs which are expresly against all Rebellion or Resistance in the Old Testament The first Governour that God set over the Children of Israel when he brought them out of the Land of Egypt was Moses and I think I need not prove how sacred and irresistible his Authority was This is sufficiently evident in the Rebellion of Korah Dathan and Abiram against Moses and Aaron when God caused the Earth to open her Mouth and swallow them up And lest this should be thought an extraordinary Case Moses and Aaron being extraordinary Persons immediately appointed by God and governed by his Immediate direction the Apostle St. Iude alledges this example against those in his days who were Turbulent and Factious who despised Dominions and spake evil of Dignities that they should Perish in the gainsaying of Core which he could not have done had not this Example extended to all ordinary as well as extraordinary Cases had it not been a lasting Testimony of Gods displeasure against all those who oppose themselves against Soveraign Powers But Moses was not always to rule over them and therefore God expresly provides for a succession of Soveraign Powers to which they must all submit The ordinary Soveraign Power of the Iewish Nation after Moses's Death was devolv'd either on the High-Priest or those extraordinary Persons whom God was pleas'd to raise up such as Ioshua and the several Iuâ—ges till in
Paul Successor to Frederick Hic primus Abbas hujus Ecclesiâ—â—suti postquam Anglia Normannis penitus fuit sâ—bjugata F. I will not deny the matter of Fact in great part to be as you say but whether the English were to blame to make these Insuâ—rections or whether they were provoked to it by the Kings unreasonable severities I have not now time to dispute if it were their fault he had no doubt very good cause to do as he did and to punish such as were guilty But it was altogether unjust and tyrannical to punish the innocent with the guilty Nor could he have any right to do it as a Conqueror since by taking his Coronation Oath to deal mercifully with his Subjects and to treat both English and French with equal right he had renounced that Title and that he looked upon himself as a Tyrant if he had Governed without being Crowned or taking the same Oath as his Predecessors I shall prove to you from Abbot Broâ—ton's Chronicle the Author of which lived in the time of K Richard I. who has Col 962. these words Cumque Willelmus Dux Normannorum Conquestor Angliae Tyranni nomen exhorresceâ—et nomen Legitimi Principis induere vellet a Stigando Cant. Archiepiscopo in Regâ—ia petiit consecrari c. as But your reply that he did not shew himself a perfect Conquerour till he wâ—n throughly setled is very pleasant as if being solemnly Crowned and taking a Oath to govern Justly and according to Law and after four years quiet possession and a voluntary confirmation of the Laws of his Predecessors were not sufficient signs of his peaceable settlement upon the Throne unless you will have a King to be never setled until he has by the force of a standing Army got sufficient power to do all he designs that is to take away his Subjects Liberties and Estates at his pleasure contrary to his own Oath and the Laws he has made If those be signs of a thorough settlement pray consider whether the King that is gone away was ever thoroughly setled at this Rate tho' I confess he was in a very fair way to give us such a thorough settlement But since you date this thorough settlement from that great transaction of Abbot Frederick I am not afraid to appeal to Mat. Paris from whom you have borrowed this relation where he tells us thus That after Lanfranc was made Archbishop the K. being now strengthened with both Swords began more severely and manifestly to oppress the English who seeing it nearly concerned their very lives calling a great many together they made Edgar Atheling their Leader in whom the English placed all their hopes but among all the English Frederick Abbot of St. Albans was the chief promoter thereof being a generous Man and to be seared for his Riches and Power Therefore the K. began to be vehemently afraid left he should lose the whole Kingdom which he had gained by so much effusion of Blood and also hazard of his life and therefore being luckily taught by the Archbishops Prudence he began to act more mildly with the chief men of the Kingdom humbly proposing Tearms of Peace and with a pleasant countenance inviting them to a Treaty tho' deceitful as the end at last declared therefore the said English met him at Berkhamstead thinking no harm under the leading of Abbot Frederick where after many disputes Archbishop Lanfranc being present the K. swore upon all the Relicks of the Church of St. Albans as also upon the Holy Evangelists Inviolably to observe the good ancient approved Laws of the Kingdom which the Picus Kings of England his Predecessors and chiefly K. Edward had Established and so being pacified they all returned home very well satisfied So that you see this was the third time whereby he renounced all right of Conquest if ever he had any by swearing expresly to observed all the ancient Laws of the Kingdom since they found his Coronation Oath would not bind him besides his so solemn confirmation of K. Edwards Laws in the great Council of the Kingdom not long before M. But pray read a little farther and see how he resented this force now put upon him and whether at all he intended to keep what he had sworn or to divest himself of his Right of Conquest and therefore give me now leave to read the rest out of this Author But the K. cunningly hiding his designs within a few days after studied how to overcome and supplant those dispersed and asunder whom he could not when joined and consederate together which he performed by killing disinheriting and banishing many of them and violating the above mentioned Laws and the English being thus spoiled at pleasure and impoverisht without any legal Judgment he therewith enriched his Normans to the great provocation of his natural English subjects who had of their own accord thus exalted him So that you see he never intended to keep his Oath that was thus forced upon him for Conquerors do not love to be made Slaves to their words whether they will or no and therefore I may give you an answer both as to his Coronation Oath as also to this now mentioned from an old English Proverb that there was never any Oath but was either broken or kept more Conquerors than one have used fair pretences and made smooth promises and dealt cunningly with the People to carry on their designs and have at first taken plausible Oaths and broken them afterwards nay took them when they intended not to keep them and knew thâ—y could not and for Oath breaking Harold in his answer to Duke William when he demanded the Kingdom of him had given him a fair example that Stuâ—tum Sacramentum est frangendum many specious Oaths Vows and Covenants were contrived and taken by crafty and designing men in the late times and imposed upon the People contrary to the Oath of Allegiance they had before taken for no other ends than to cheat them into Rebellion and to make them Authors of their own slavery which was discovered too late when they were under the power of an Army and could not help themselves as I could prove at large would the time 〈◊〉 F. Before I give you a positive answer to what you have said tho' I do believe a great deal of the matter of Fact to be true as Mat. Paris hath related it either from Tradition or else from the Legier book of his own Abby yet I very much doubt whether out of hatred to this Kings severe proceedings they did not represent K. William's cruelty and severity much greater than it was for tho' I grant after this time he turned a great many more of the English Nobility and Gentry out of their Estates and put divers of them to death yet whether he did this without any colour of Law or Legal Process is very much to be doubted since we find many forfeitures mentioned in Doomesday book which had been needless