why the Commons could not be represented in Parliament before the 49th of Hen. III. and 18th of Edw. I. M. I will proceed to do it and for this end shall reduce my Arguments to these three Heads the first is some Writs found out and produced by the Doctor whereby he proves that the Commons were not Summoned during the Reign of Hen. III. till the 49th secondly the general silence of all Statutes in Hâ—n III. Reign wherein is not one word mentioned of the Commons but rather to the contrary thirdly the critical Time viz. in the 49th of Hen. III. when the Commons were first called during Monsfords Rebellion fourthly their discontinuance from that time till the 18th of Edw. I. there being no mention made of them in all the rest of the Reign of Hen. III. nor yet of Ed. I. till the 18th in which the Doctor shews you a Writ not taken notice of before by which the Commons were Summoned a new to Parliament Lastly from the uncertainty of the manner of the Writs of Summons whether for one Knight or two Knights and sometimes no Citizens and Burgesses at all which sufficiently prove the Novelty of the Institution as also of some Parliamentary Forms relating to the Commons which shew that neither their number nor manner of Election was settled long after the Reign of Edw. I. To begin therefore with the first Head I know the Gentlemen of your opinion make a great Noise about the loss or rather defect of the Writs of Summons and Parliament Rolls of all the Kings till the 23d or 25th of Edw. I. So that we cannot be so well assured what was done in Parliaments of those times as we may be afterwards Yet there are still some Writs of Summons Extant upon the Close Rolls before and in those times by which the Bishops Earls and Barons were Summoned to Parliaments or great Councils And we have all the Close Rolls of King Iohn and Henry III. on the Dorseâ— of which anciently most of the Writs of Summons to the Commons in other King's Reigns are entred few on the Patent Rolls which we have likewise 'T is therefore very strange if the Commons were then represented by Knights Citizens and Burgesses and Summoned to Parliament as at this day that there cannot be found any Summons to them upon these Rolls as well as to the Lords But the Learned Doctor hath for our Satisfaction found out three Writs of Summons to the Lords one in King Iohn's Reign and two other of Hen III. The first is in the Close Roll 6th of King Iohn directed to the Bishop of Salisbury which is needless here to be repeated Verbatim only pray take notice of the material words of this Writ where after the Cause of the Summons particularly expres'd it concludes thus expedit habere vestrum Consilium aliorum Magnatum Terrae nostrae quos ad diem ilium Locum fecimus convocari The second is in the Close Roll of the 26th Hen. III directed to W. Arch-bishop of York wherein he is likewise Summoned ad tractandum Nobiscum una cum caeteris Magnatibus nostris quos similiter fecimus convocaâ—i de arduis Negotiis nostris statum nostrum totius Regni nostri specialiter tangentibus with this note underneath eodem modo Scribitur omnibus Episcopis Abbatibus Comitibus Baronibus The third is of the 38th of the same King directed to Boniface Arch-bishop of Canterbury whereby he is Summoned to be at Westminster within Fifteen days after Hillary next coming before the Queen and Richard Earl of Cornwail about the Affairs of Gascony and this very Council Mat. Paris Anno. Dom. 1254. calls a Parliament to which all the Magnates or great Men of England came together the Day of which Meeting he makes to have been the 6th of the Calends of February being St. Iulian's day and which fell one within Fifteen days after St. Hillary's Day which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons and who were the Constituent parts of this Parliament may be be farther made out by a Letter of the Queen and Earl Richard to the King then in Gascony which is recited by Mat. Paris in his Additaments in these words Domino Regi Angliae c. Regina Richardus Comes Cornubiae Salutem Recipimus literas Vestras ad Natale Domini proximae praeteritum quod in Crastino Sancti Hillarii Convocaremus Archiepiscopos Episcopos Abbates Priores Comites Regni Angliae ad ostendendum c. Whereby it appears who were then the Constituent parts of Members of our English Parliaments viz. the Archbishops Bishops c. Earls and Barons of the Kingdom So that there is no such Universal silence concerning the Constituent Parts of our Parliaments as you and those of your Party suppose from the loss of the Parliament Rolls of those times most of which though I confess are lost yet there are enough left to satisfie any reasonable Person that there were then no Commons in Parliament in the sense they are now taken F. You cannot give me a better demonstration of the loss of the Parliament Rolls and Writs of Summons than what you now offer for if we have all the Close Rolls of King Iohn and Henry III. on the Dorses of which you tell me the Writs of Summons use to be entered then certainly those to the Lords were there entered also and if so how comes it to pass that in above Eighty Years time in which there must be above Eighty Parliaments you can shew me but three Writs of Summons and those only to as many Bishops and to no Temporal Lords at all If so be these were Parliaments and not great Councils of the Bishops Lords and Tenants in Capite only as I rather believe they were for you rely too much upon you Doctors credit when you alledge that we have all the Close Rolls of King Iohn and Henry III which is a great mistake for I have had a Friend who has given me a note of what Close Rolls are still Extant in those Reigns and what are lost which you may here see To begin with King Iohn pray observe that all the Close Rolls of the first Five years of his Reigns are gone and so they are in the 9th 10th 11th 12th and 13th for certainly there were some in those as well as in the succeeding years In the next place till the 18th there is but one Roll left of each year but then there are three and after that but one or two in a year to the very end now pray tell me how we can be assured that there was not more then one Roll in every precedent year as well as in the 15th the like I may say for the Reign of Hen. III. which though I grant are more entire then those of King Iohn there being some left us of every year but the 23d yet they are but
during his confinement there sent a Lady I could name on a message to two reverend Prelates of our Church together with an Emrauld Ring from his Finger as a Testimony of the Truth of her Commission to this effect That his Majesty being sensible of the sad condition the Church of England as well as he himself was in and that there was no way so likely for him to get out of it as by granting his Subjects and particularly the Church of England such securities for the enjoyment of their just Rights and Liberties as they could in reason demand therefore he wholly left it to the discretion of those Bishops to make to the Peers and Bishops that were then to meet suddenly whatever proposals they should think reasonable on his behalf for the satisfaction of the Church and safety of the Nation and that he would be ready to grant and ratifie them whensoever he should be required F. This is indeed more than ever I heard before and can scarce believe but did the Lady go and deliver her message And pray what answer did those Bishop give to this fair proposal M. Yes the Lady did deliver her message and these Bishops answer'd both to the same effect that they had a real duty and affection for his Majesty and a great desire to serve him but that considering the great Power of the Prince of Orange and his present aversion to any agreement with his Majesty they very much feared that the Peers would not venture to give the Prince any such advice or to interpose with him on his Majesties behalf which in my opinion was very meanly and cowardly done of them who considering their duty to him as King and also those particular obligations they owed him as their Benefactor and who had been the greatest means of their being raised to those dignities in his Brothers Reign now I desire to know if this message had received its intended effect what greater demonstration his Majesty could have given to satisfie the World that he really intended to set all things right again had he been permitted to do it F. I will not farther question the Truth of this Relation though perhaps I might have sufficient reason for it since you say you had it from a person of good credit and who was privy to this transaction nor yet will I be so inquisitive as to know the names either of the Bishops or of the Lady since you make it a secret but yet notwithstanding I do still very much question whether the King did ever really design to do what he then offer'd and did not intend to put a sham upon their Lordships to serve his present occasion and to see if he could divide the Bishops and Peers of the Church of England from the Prince of Oranges Interest and so by making them offer such Proposals as the Prince should not think fit to agree to might make them declare against his proceedings which would have created great divisions and heart-burnings between those of the high Church of England party and the Prince and thereby have involved us again in fresh disturbances of which no doubt the King and the Popish Faction were like to receive the greatest advantage for you know the old saying divide impera But to let you see that I do not speak without just grounds for my opinion let us examine every circumstance of this matter first if the King had meant really is it likely that he would have trusted a business of that high moment to a Woman When he had then the Lords of Alesbury and Arron besides other Protestant Gentlemen then waiting on him and they were much fitter to be trusted than this Lady let her be whom she will Or can any one believe if the King had meant really that he would not have sent his Proposals in Writing since he very well knew from the Princes Declaration as well as the Bishops Petition and Addresses to him what the whole Nation and the Church of England in particular required at his hands But that he must send a loose and uncertain Message which it was in his power to disown whenever he pleased by saying the foolish Woman mistook his meaning and she also might be so much his Creature as to take the fault wholly upon her self whenever it should serve the Kings turn so to do and therefore I think it was very wisely and honestly done of those reverend Prelets to refuse medling in such a ticklish affair since it is plain by his not making any such proposals to the Prince of Orange himself or the Lords about him that he was not to be made privy to it but rather it should be carried on whether he would or no and without giving him any satisfaction in his particular concern as to the Prince of Wales and lastly I desire you farther to consider whether the King might not hereafter when ever he had power have made void whatever agreements or concessions he should have then granted either to the Church of England or to the Nation by pleading afterwards that they were obtained by decrees whilst he was not sui juris but under the Power of the Prince of Orange I have but one thing more to add which I before omitted which is to make some reply to what you said concerning the mischief that the Mob has done upon Houses Forests and Praks since his Majesty's first departure and therefore granting the matter of Fact that much mischief and spoil has been committed yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day as you are pleased to affirm for I believe you forget the Thirty Parish Churches and Towns which our Historian tell us your William the Conquerour and his Son Ruâ—us destroyed when they inlarged new Forrests and therein acted contrary to their Oaths like true despotick Tyrants you likewise forget the miserable spoil and waste which King Iohn and Henry the III. made upon the Houses Castles and Estates of the Barons and Gentry of England who opposed them in their unjust and illegal violations of Magna Charta besides other Tyrannical actions of the same kind committed by King Edward and Richard the II. too long here to relate but if these mischiefs were done you speak of who have we to thank for it but the King who stealing away on the sudden without leaving any orders for the Government of the Kingdom all persons in Commission either Civil or Military doubted whether their Commissions were noâ— at an end by the Kings deserting the Government as he did besides you very well know that the Common People were so enraged against the Popish Faction for so many insolent actions they had committed in King Iames's Reign and so many apparent breaches and contempts of all the Laws made against them that you cannot wonder if when they were rid of the fear of the Irish and of King Iames's Army they kept
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
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
ADVERTISEMENT THE Author hath thought fit for the Reasons he hath given you to alter the Method he laid down in his Preface to the First Dialogue and to propose the Subjects he treats of in this following Method Bibliotheca Politica OR AN ENQUIRY INTO The Ancient Constitution OF THE ENGLISH GOVERNMENT Both in respect to the just extent of Regal Power and the Rights and Liberties of the Subject Wherein all the Chief Arguments as well against as for the late Revolution are impartially Represented and considered in Thirteen Dialogues Collected out of the Best Authors as well Antient as Modern To which is added an Alphabetical INDEX to the whole Work LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where may be had the First Second Tâ—ird Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. THE QUESTIONS Debated in the Ensuing Dialogues WHETHER Monarchy be Iure Divino Dialogue the First Whether there can be made out from the Natural or revealed Law of God any Succession to Crowns by Divine Right Dialogue the Second Whether Resistances of the SVPREAM POWER by a whole Nation or People in cases of the last extremity can be justified by the Law of Nature or Rules of the Gospel Dialogue the Third Whether Absolute Non Resistances of the SVPREAM POWERS be enjoyned by the Doctrine of the Gospel and was the Ancient Practice of the Primitive Church and the constant Doctrine of our Regormed Church of England Dialogue the Fourth Whether the King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Dialogue the Fifth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Dialogue the Sixth Whether the Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Thâ— Second Parâ—â— Dialogue the Sevenâ—h A Continuation â—f tâ—e former Discourse concâ—rnâ—ng the Antiquity of the Commons in Parliament wherein the best Authorities for it are proposed and examined With an Entrance upon the Question of Non Resistance The Third Part Dialogue the Eighth Whether by the Ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those Commissioned by him are expresly forbid upon any pretence whatsoever And also whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Dialogue the Ninth I. Whether a King of England can ever fall from or forfeit his Royal Dignity for any breach of an Original Contract or wilful violation of the Fundamental Laws of the Kingdom II. Whether King William commonly stiled the Conquerour did by the Conquest acquire such an absolute unconditioned Right to the Crown of this Realm for Himself and his Heirs as can never be lawfully resisted or forfeited for any Male-Administration or Tyranny whatever Dialogue the Tenth I. In what Sense all Civil Power is derived from God and in what Sense may be also from the People II. Whether His Present Majesty King William when Prince of Orange had a just Cause of War against King Iames the II. III. Whether the Proceedings of His Present Majesty before he was King as also of the late Convention in respect of the said King Iames is justifiable by the Law of Nations and the Constitution of our Government Dialogue the Eleventh I. Whether the Vote of the late Convention wherein they declared the Throne to be vacant can be justified from the Ancient Constitution and Customs of this Kingdom II. Whether the said Convention declaring King William and Queen Mary to be Lawful and Rightful King and Queen of England may be justified by the said Constitution III. Whether the Act passed in the said Convention after it became a Parliament whereby Roman Catholick Princes are debarred from succeeding to the Crown was according to Law Dialogue the Twelfth I. Whether an Oath of Allegiance may be taken to a King or Queen de facto or for the time being II. What is the Obligation of such an Oath whether to an actual defence of their Title against all Persons whatsoever or else to a bare submission to their Power III. Whether the Bishops who refused to take the Oath of Allegiance to their present Majesties could be lawfully deprived of their Bishopricks Dialogue the Thirteenth ADVERTISEMENT THE Author writing these Dialogue purely for the discovery of Truth and for giving a full and impartial account of all the considerable Arguments and Authorities that have been urged on either side in the Controversies discussed in the foregoing Dialogues if therefore any Person who having perused them is dissatisfied with any of the Arguments Answers or Authorities there made use of and supposes he could confute them or else put better in their stead if such Persons do not think it worth while to write a Treatise on purpose on this Subject they may if they please send their Animadversions to the Publisher of these Dialogues who will undertake to communicate them to the Author who hereby also engages to Publish them fairly without any Alterations or Additions together with his Answers or Replys to them if the Subject will admit it the Persons concerned may follow the Method used in the foregoing Appendix of Additions but are desired to send in their Animadversions by the beginning of next Michaelmas Term when if sent they shall be Publish'd Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER MONARCHY BE IVRE DIVINO Collected out of the most Approved Authors both Antient and Modern Dialogue the First LONDON Printed for Richard Baldwin in Warwick-Lane near the Oxford-Arms 1694. The Epistle Dedicatory To all Impartial and unprejudiced Readers especially those of our Hopeful and Ingenious Nobility and Gentry HAving out of Curiosity for some years before the late wonderful happy Revolution as well aâ— since for the satisfaction of my own Conscience carefully perused all Treatises of any value that have been published of late years concerning the Original and Rights of Civil Government aâ— well of Monarchy aâ— the other kinds thereof as also of the Antient Government and Fundamental Constitutions of this Kingdom I have found it necessary in order to my better retaining of what I had read and making a more certain Iudgment thereupon to commit to writing the most considerable Arguments on both sides as well of those who have Monarchy to be Jure Devino as of those who only allow it to Government in general of those who hold an Absolute Subjection or Passive Obedience as their Phrase is as well as
Cowardice of his Souldiers F. Methinks Sir there is no such great cause of wonder much less of concern in all this For who can much admire that a Prince should be thus used who had not only provok'd a Powerful Enemy to invade him from Abroad but by industriously labouring to introduce Popery and Arbitrary Government at Home had lost the Hearts of almost all except his Popish Subjects insomuch that many of his own Souldiers were so terrified with the Thoughts of being discarded like the Protestant Army in Ireland to make room for Irish and French Papists that they had very little Courage to Fight when they saw Casheering was the best Reward they could expect if they proved Victorious And who can much pity a Prince who would rather loose the Affections of his People than displease a few Priests and Jesuites So that if he suffers he may thank himself it not being Religion but Superstition which brought this Misfortune upon him Since the King having got a Prince of Wales and as it is highly suspected joined himself in a strict League with France for the Extirpation of Hereticks it laid an absolute necessity upon the Prince of Orange to come over that by the Assistance of the States of Holland he might not only relieve us but vindicate his own and her Royal Highness his Princessâ—s Right to the Succession and secure his Countrey from a dangerous and powerful invasion which it was threatned with both by Sea and Land whenever the Kings of France and England should be at leisure to joyn their Forces to make War upon them which you know all Europe hath expected for above these two Years last past M. These things were somewhat if they could be proved but indeed to deal freely with you I look upon this League and the Story of the Suppositious Birth of the Prince of Wales as meer Calumnies cast out of Wicked and Crafty Men to render the King more odious to his People F. Nay Sir you don't hear me positively affirm either the one or the other since I grant they are not yet made out but whatsoever will consider all the Circumstances of the Birth of this Child cannot but be strongly inclined to believe it an Imposture notwithstanding all the Depositions that are taken to the contrary And as for the French League you may be sure if there be any such thing it is kept very private and yet I must tell you there are very high and violent Presumptions to believe it true or else why should the King of France in a late Memorial to the Pope complain that his Holiness by Opposing his Interest in Europe had hindered him in those great Designs he had for the Extirpation of Heresie by which he must surely intend England or Holland Protestantism being sufficiently expelled out of his own Countrey already And he could not do it in either of the other without the Consent and Assistance of his Brother the King of England Or to what purpose should the King of England joyn with France to ruin Holland and his own Son in Law into the Bargain but to make a War meerly for Religion since neither the Dutch nor the Prince their Stadt-holder gave him till now any just Provocation M. Well however these are but bare suspitions and presumptions at most and not proofs and therefore in a doubtful matter as this is if we ought to judge favourably of the Actions of others much more of Princes whose Councils and Actions tho' private yet are still exposed to the Censure and Calumnies of their Enemies and therefore I hope you will not blame me if I freely confess that I am deeply concerned to see an innocent and Misled King forced to seek his Bread in a Forreign Land and the more since many of the Nobility Gentry and Common People have contributed so much to it by taking up Arms against him and that so great a part of his own Army and Officers should contrary to their Allegiance and Trust reposed in them run over to the Enemy Nay that some of our Bishops and Clergy-men should contrary to the so often acknowledged Doctrines of Passiveâ— Obedience and Non-Resistance not only Countenance but be likewise active in such desperate undertakings and this in-direct opposition to the known Laws of God and this Kingdom which must needs make our Church a Scorn to our Enemies the Papists and a Shame and Reproach to all Protestant Churches abroad and render the people of England odious to all the Crowned Heads in Europe F. Well Sir I see you are very warm and I hope more than the cause deserves You may Judge as favourably of the King's Proceedings and as hardly of the Actions of the Nobility Gentry Clergy and People in this matter as you please But yet I think I can make it as clear as the Day that they have done nothing by joining in Arms with he Prince of Orange but what is justifiable by the Principles of Self preservation the Fundamental Constitutions of the Government and a just Zoal for their Religion and Civil Liberties as they stand secured by our Laws unless you would give the King a Power of making up Papists and Slaves whenever he pleased But as for your Doctrine of an Absolute Obedience without Reserve and the Divine Right of Monarchy and Succession you need not be much concerned whether the Papists laugh at you or no since there are very few of them if any who are such Fools themselves as to believe such futilous Opinions But indeed they have more reason to laugh at you whilst you maintain than when you quit them since as they have only rendered you a fit Object of their Scorn so they would have made you but a more casâ—â— Sacrifice to their Malice For what can Thieves desire more than that those they design to Rob should think it unlawful to resist them And what could the Papists have wisht for more than that our Hands being fotterred by this Doctrine of an indefinite Passive-Obedience our Lives Religion and Liberties should lye at their Mercy Which how long we should have enjoyed whenever they thought themselves â—â—rong enough to take them away the late cruel Persecutions and Extirpations of the Protestants in France Savey Hungary and other places have proved but too fatal Examples and therefore no wonder let your high-flown Church-men write or preach what they please if the Body of the Nobility Gentry and People of England could never be perswaded to swallow Doctrines so fatal to their Religion and destructive to their Civil Rights and Liberties both as Mon and Christians And as for the Antiquity of these Doctrines I think they are so far from being the Antient Tenets of the Church of England that they are neither to be found in its Chatechism Thirty Nine Articles or Book of Homilies taken in their true Sense and Meaning thô indeed there is something that may tend that way in some of the late Church-Canons about
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
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
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
absolute or Tyrannical soever the Power be under which they live that they are safe in God's hands and all the Powers of Men and Devils cannot touch them till God by a positive Decree appoints and orders their sufferings There could not be greater nor more absolute Tyrants than the Roman Emperours were at this time and yet they had no Power over the meanest Christian but by an express Commission from Heaven This is the special Priviledge of the Christian Church above the rest of Mankind that they are God's peculiar Care and Charge that he doth not permit any Sufferings or Persecutions to befall them but what he himself orders and appoints It is a great security to the World that there is no evil happens to men but what God permits and that he permits nothing but what he can over-rule to wise and good Ends but it is a greater happiness to have our Condition immediately allotted by God God may permit a great many evils to befall us in Anger and Displeasure but when he takes us into his immediate Protection and under his own Government whatever evils he appoints for us whoever are the Instruments of them they are certainly for our good And therefore there is no such danger in the Doctrine of Non-Resistance as some Men imagine how absolute soever this may be thought to render Princes sincere Christians can suffer nothing by it for they shall suffer nothing more nor less than what God appoints for them to suffer but as for the absurdity you think you have brought me to by granting that no man wants Authority to defend his own Life against him who hath no Authority to take it away that does not extend to Supreme Powers since though I grant they have no Authority to take away mens Lives contrary to Law yet does it not follow that we may resist and oppose them if they do this I absolutely deny because God hath expresly commanded us not to resist them and I see no inconsistency between these two Propositions that a Prince hath no Legal Authority to take away mens Lives against Law and yet that he must not be resisted when he does so for both the Laws of God and of our Countrey suppose these two to be very consistent F. To answer this long speech of yours the best way may be to shew you first how far I agree with you and wherein I must differ from you and I will also tell you what reasons I have for it In the first place I grant that though our Saviour was indeed the Messias and true King of the Iews yet was he not such a Messias as they expected nor was he to have a Temporal but Spiritual Dominion and therefore would not be such a king though the Iews would have made him so I likewise yield that Christ submitted to the most unjust Sentence and to the most ignominious and painful Death rather than he would resist the Higher Powers though he could easily have called for Legions of Angels to his rescue As also that he rebuked Peter when he drew his Sword in his defence and tells Pilate the reason why he was so easily apprehended and without any Resistance oâ— Opposition My Kingdom said he is not of this World if my Kingdom were of this World then would my Servants fight that I should not be delivered to the Jews but now is my Kingdom not from hence All which plainly shews that our Saviour's Subjection was no matter of force or constraint because he wanted Power to resist but it was matter of choice that which was most suitable to the Nature of his Kingdom which was not to be propagated by Carnal Weapons but by sufferings yet though it may not be propagated sure it may be defended by force In some Cases as if we were invaded by a Foreign Power who made War upon the Account of Religion and also in those Kingdoms or Common-wealths where Christianity or the true Profession of the Gospel is established by Law and makes a part not only of the Ecclesiastical but Civil Constitution of a Nation In these Cases if thoâ—e who pretend to the sole Legislative Power but have it not should go about to alter the National Religion by force and put Men to death contrary to the former Laws and Constitutions of that Kingdom I think such Illegal Powers may lawfully be resisted by the People they having as much right to the free Exercise and Enjoyment of their establish'd Religion as they have to their Liberties Properties or any other Civil Rights since by this Legal Establishment Religion becomes a part of the Civil Constitution of the Kingdom and so may be maintained by the same means as other Rights 2 dly I grant that in all other Cases our Saviour hath so far proposed his sufferings to us for our Imitation as we are engaged by our Baptismal Vow to suffer in the same Cause for which he himself suffered that is for the bearing witness That Iesus is the Christ or true Messias and Son of God And this the Apostle calls speaking of Christ himself the witnessing before Pontius Pilate a good Confession The like I also hold of all such Truths as are the necessary consequences of this great Doctrine 3 dly I farther grant that when our God calls any Person to suffer for the Testimony of his Truth by the Cruelty of those who are the Supreme Powers as the Apostles and Primitive Christians were by a particular Providence that then those Powers are not to be resisted but patiently submitted to by Christians at this day whenever it proves necessary for the same great ends for which Christ at first enjoyned it viz. for bearing witness to the Truth of the Gospel and for the further Propagation thereof by our constant Sufferings and Example according to that saying of the Primitive Fathers Sanguis Martyrum semen Ecclesiae yet is not this absolute Submission to the Supreme Powers in matters of Religion due by the Law of Nature or that delivered to Moses but if at all purely from the express Example of Christ so that all the difficulty lyes in discovering when we are thus called by our Saviour to suffer and bear witness to the Truth though with the loss of our Lives and all that is dear to us And therefore if I should grant that when ever we lye under the same Circumstances of giving this Testimony as the Primitive Christians then did and that it may serve as much for the same ends design'd by God thereby we are also under the same Obligations otherwise I think we are lawfully discharged from it As for Example suppose the King should instead of a Papist have turned Mahometan and to propagate or set up his own abominable Superstition here should have sent for from Turkey or Morocco a great Army of Turks or Moors and by them would force all the Christians in England to turn Mahometans by the same Methods of Dragooning Men and
bind their Consciences as firmly as any Civil Laws they are bound to observe them and exercise their Soveraign Power within those Limits which they set and prescribe For whether they have their Supream Power from Goâ— as we say or from the People as you alledge it it is all one as to this matter for they can have no Right neither from God nor the People to make Vnjust and Tyrannical Laws And this Political Limitation of their Power in the exercise of it doth no more destroy the Essence thereof than its flowing in Pipes or Channels destroys the Essence of a Spring since it is still the same whether it runs confined through Pipes or flows free and unconfined through the open field The Application is obvious But as for the precedent words in this place of Braâ—ton which seems to intimate that the King owâ— his Authority to the Law He there only means the King in Opposition or Contradiction to a Tyrant who makes his Will his Law according to that of Chancellor Forâ—escue Rex est ubi bene regit Tyrannus dum populum sibi orediâ—um violentâ opprimiâ— Dominatione quod hoc sanxit Lex humana quod Leges ligant Suum Latorem Where you may observe that this Author makes a King's governing well i. e. according to Law a mark of Distinction from a Tyrant who oppresses his Subjects by a violent Domineering over them And though he here supposes the King to be obliged by the Laws yet that this Obligation is only Moral appears by what immediately follows when he says the Laws do oblige their Legislator Now if the King be the Sole Legislator as He here seems to intimate He must also be the Sole Supream Power and if so cannot be accountable to or under the Coercion of any Superior Power for then he would not be Supream as you your self have granted long since F. Since you are not willing to enter upon that Ancient Power which you cannot deny but the Great Council formerly had of putting a Bridle upon the King and Restraining his Actions in Case he Invaded the Rights or Liberties of the People I shall not â—â—sist farther upon it now for the Reasons you have given only I must make bold to tell you thus much that if they have not a Power of defending their just Rights if forceably Invaded by the King it would be all one as if they had none at all Tho' I grant that what you have said concerning the Limitation of the Exercise of Soveraign Power that it doth not Derogate from the Absoluteness of the Power it self is very true in all such Limitations which proceed from the Intrinsick Nature and Perfection of the Being in which it Resides as in your Example of God's infinite Power being Limited by his other Attributes So likewise all Human Powers I own are limited by the Revealed Laws of God or those of Nature But as to positive Laws you your self assert that absolute Monarchs are only obliged by them as long as they please and consequently that they may alter them or Derogate from them as oft as they think good as the Roman Emperors could revoke any Priviledges or Immunities they had formerly granted to particular Persons Cities nay to Tributary Kings or Common-Wealths and all this very justly because as all such Grants were made only for the publick good of the Empire So they being the sole Judges thereof when ever they found such Confessions to prove prejudicial to it they might justly alter or revoke them Now if the Power of our Kings be as absolutely Soveraign as that of the Roman Emperors and only limited by their own free Grants or Condescensions to the People and not from any Power ab extra Such Grants or Condescensions though never so Solemnly past into Laws in the Parliament or Assembly of the States are still no more than positive Laws And then if the King is the Sole Soveraign Power unlimited by any thing ab extra how can He so tye up his own Hands as that he may not Break or Rescind all those Concessions he had made and those limitations which he had put upon himself if he think or declare it is for the better benefit of the Common-Wealth so to do I cannot Comprehend if He be by the Original Constitution the sole Lawmaker and Judge of what is for the publick Good Much less can I understand how he can oblige his Successors who must still be supposed as Absolute Monarchs as himself to observe them And therefore if all our Civil Rights and Liberties were no other than what you would have them the free Condescensions or Self-Limitations of Soveraign Power I desire you would shew me what security we can have for the Enjoyments of them longer than the King pleases For it seems plain to me that when ever He shall fancy the Liberties and Properties of the Subjects both which you suppose were derived from him to be injurious to or inconsistent with his Prerogative or Soveraign Power he may lawfully Disannul or revoke them and in what Case we then should be considering how things had like to have gone lately I leave any indifferent Man to Judge Nor Is your Interpretation of Bracton's words Lex facit Regem c. Any more than an absolute Wresting of them from their true meaning which is not as you would have it to Distinguish a King that governs by Law from a Tyrant that makes his Will his Law for every absolute Monarch that doth so is not a Tyrant provided he direct his Actions according to the Laws of God and Nature as you your self assert and a Prince may as well govern thus as the Great Turk Czar of Muscovy and all the Eastern Monarchs do at this Day who are not counted Tyrants in so doing But certainly you will say that He would make a very Scurvy English King who would observe no other Rule Nor do you less wrest Fortescue's words when you render them Rex est ubi bene regit Tyrannus c. Supposing the meaning of it to be that this Author makes a King's governing that is say you according to Law the only thing to Distinguish him from a Tyrant c. Whereas he says no such matter but only Rex est ubi bene regit which he may do without any Set Laws as well as with them as the first Kings you suppose did before they were limited by Laws But as for Fortescue's supposing the King to be the Sole Legislator that word Sole is of your own Addition for if he had said so he would have contradicted himself as I shall shew you presently It is true the King hath a great share in the Legislative yet hath he two other Bodies to joyn with him by a Concurrent or Cooperative Power in it And I think I have all the Ancient Lawyers of England on my side To begin therefore with Ranulph de Gâ—anville who was Chief Justicear in the Reign of Henry the
Mr. Lambard I Ina by or with Gods Gift King of the West-Saxons with the Advice or Council of Cenred my Father and Heddes my Bishop and Ercenwold my Bishop and with my Aldermen and Eldest Wites or Wisemen of my Kingdom do command c. Then in the first Chapter the King speaks in the first person plural We Bid or Command that all our People shall after hold fast or observe these Laws and Dooms From this Preface you may observe I. That Kings are the Gift of God and that Gods Gift signified the same with Dei Gratia they are not the Creature of the People 2. That Princes or the better Government of their People in the Setling of Laws in Church and State did then Consult Deliberate and Advise with their Bishops Noblemen and eminently Wise Men of their Kingdoms whom for their Wisdom they Honour'd with publick Imployments in their Dominions 3. That after such Consultation Deliberation and Advice to the Soveraign Establisheth and makes the Laws The next Instance I shall make use of is out of the same Author in the Laws of King Alfred where in the Conclusion of his Laws about Religion and Prefatory to the Secular Laws He saith I Alfred King have gathered these Sanctions together and caused them to be written and then Recites that those that he liked not with the Council of his Wits he had Rejected and those he liked he had or commanded to be holden And we may observe that the King here speaks in the Single Person that He himself Collected or Chose aad also Rejected what Laws he pleased The next material illustration where the Legislative Power then Resided may be found in the Laws of King Edward the Elder where after the Charge given to the Judges the first Law begins I will and so in others in the fourth it is thus expressed Edward the King with his Wits that were at Exeter strictly enquiâ—ing by what means it might be better provided for Peace and Tranquility c. In the 2d and 3d. Chap. it is We also Declare Pronounce or Sentence And in the 7th and I will In which Laws we have none mentioned with the King but his Wits and his Commanding Willing or Pronouncing in the Imperative Mood is observable The next Laws I find are those of King Athelstan which begin thus I Athelstan King with the Advice of Walfelm my High Bishop and other my Bishops Commanded or bid all my Rieves i. e. Praefects of what degrees soever to pay Tythes c. And this He commanded his Bishops his Aldermen and Praepositi who were the Judges in the Country Courts to do the same In these Laws We cwaedon is used which I suppose is something more than Somner understands by his â—uide a Saying Speech or Sentence and properly is we will But the absoluteness of the King appears most in the 26th Chap. wherein it is expressed Tâ—at if any of the Graeves i. e. Iudges do not perform these Commands or be more Remiss in the Execution of those he hath enjoyned He shall be punished for his Excess of Contumacy according to the Fines there set down King Edmund is the next of our Kings whose Laws are Transferr'd to us and the Proem tells us that King Edmund Assembled a Great Synod or Council to London on the Holy Easter-Tide and the Persons Summoned are Stiled Godskind and Worldskind i. e. Clergy and Laicks After the first six Chapters of Laws in the Proem to the 2d part of them the King Signifies to all Men Old and Young That he had asks Advice in the Assembly of his Wites both Ecclesiasticks and Laicks and in the Laws it is often said Thonne cwaedon These we pronounce or appoint and sometimes the single person is used and in other places us betweonan Heolâ—an it is holden betwixt us Here we find the Great Council Summoned by the King and the Constituent Parts of it to be the Clergy and Laiâ—y yet still we find the Legislative Power in the King alone So likewise in the Title to King Edgars Ecclesiastical Laws it is thus The Laws which King Edgar in a frequent Assembly or Council of the Servants of God hath ordained whereby you may see that the Enacting Part Relates wholy to himself The same King Edgar in his Charter to Glastonbury Abby concludes it thus â—aâ—e privilegij paginam Rex Edgarus XII Regni sui sacro scripto apud Londoâ—iam communi Concilio optimatum suorum confirmavit So that though it appears this was in the Presence of a Great Council Yet the Granting and Enacting part proceeded wholy from himself The Preface to the Laws of King Canutus by Sir Henry Spelman runs thus These are the Worldly Constitutions that I will with my Wites advice that Men hold all over England In most of the Chapters it is said We Teach We Bid or Command We forbid and in the Conclusion it is in the single Person of the King Now I command all and bid every Man in God's Name And the Preface to the Latin Version of them saith Haec sunt Instituta Cnude Regis Anglorum Dacorum Norwegarum vene rando Saplentum Concilio ejus ad Laudem Gloriam Dei suam Regalitatem c. Of this Canutus William of Malmsbury saith that He commanded to be observed for ever all the Laws of Ancient Kings especially those made by King Ethelred his Predecessor under the Penalty of the Kings Fine to the observing of which He saith in his time it was Sworn under the Name of King Edwards Laws not that He had appointed them but had observed them So that I think upon the whole matter nothing is more plain than that our English Saxons and Danish Kings did not only call Councils and preside in them but that the Legislative Power was lodged solely in themselves F. I perceive the Authority of our Ancient Lawyers is a little too hard for you to answer with your usual Distinctions and therefore you seemingly deny their Authority though in effect you grant it as I shall shew you by and by But as for your Quotation out of the Year-Book which you think sufficient to Counterballance all the Authorities I have brought I think I may much better question the Judgment of those that gave that Opinion since I can shew you that you your self cannot allow it in all points for Law For in the first place it is not there said that it was so judged by all the Lords and Judges who were appointed to hear the Cause there mentioned but only Fuit dit que le Roy c. By which it seems to have bin the private opinion only of some one or more of the Lords and Judges there present For it is not said fuit adjuge And if you will have it to have bin the Opinion of them all pray read what follows after Fuit dit quen temps le Roy Henry devant le Roy fuit implede comme Seroit
the Counsel and Consent as well of the Prelates as the Temporal Lords was accounted necessary in passing of all Acts of Grace and Favour to the People because that having many Royalties and large Immunities of their own a more near relation to the Person and a greater Interest in the honour of their Lord the King nothing should pass unto the prejudice and diminution of their own Estates or the disabling of the King to support his Sovereignty F. I confess you have given a plausible Account concerning the Government of William I. whom you call the Conqueror whereas if it be more exactly lookt into it will be found that he had no more Power of making Laws without the Consent of his Great Council than any of his Predecessors Neither had he any such Despotical Power as you imagin over the Lives and Fortunes of all his Subjects for whether we consider them as Normans French or Flemmings or whether as English it will be all one For if as Dr. B. supposes these latter were quite turned out of their Estates and that they were by him wholely given to the former then these French and Normans being Conquerors together with him would never have submitted to any other Government than what they enjoyed in their own Countries each of which was then governed by Kings or Dukes together with a Great Council or Assembly of the Estates and we find that when succeeding Kings would have oppressed and tyrannized over their Heirs and Descendants they together with the old English took up Arms and defended their Liberties and never laid them down until they had obtained their Iust Rights and Liberties contained in the Great Charters of King Iohn and Henry the 3d. And which as Math. Paris himself tells us in the Reign of King Iohn contained for the greatest part the Ancient Laws and Customs of the Kingdom And therefore by the Statute called Confirmatio Chartarum 25th Ed. 1st it is adjudged in full Parliament That the Great Charter and Charter of the Forest shall be taken as Common Law So that they were not any new Grants but rather Confirmations of their Ancient Rights and Liberties as my Lord Coke very well observes in his excellent Preface to his 2d Institutes where he tells us that Magna Charta is for the most part declaratory of the Principal Grounds of the Fundamental Laws of England and for the Residue is Additional to supply some Defects of the Common Law so that the Learned Chancellor Fortescue had very good Reason to affirm in his Treatise De â—audibus legum Angliae that it was then Governed in all King's times by the same Laws and Customs as it is now with whom likewise agrees one of his Learned Successors the late Earl of Clarendon in his Survey of the Leviâ—than when he tells us that those Laws and Customs which were before the Conquest are the same which this Nation or Kingdom have bin ever since governed by to this Day And as for the Laws of Edward the Confessor though it is true that William the Conqueror Re-granted and Confirmed them Yet was it no more than what he was obliged in conscience and honour to perform and observe since he was admitted to the Crown by the General Consent of the Clergy Nobility and People and at his Coronation as well as afterward swore to observe the Laws of King Edward And by the way tho these Laws are called the Laws of King Edward yet William of Malmsbury long since observed That they were called his Laws Non quâ—â—ulit sed quas observaverit that is he had only collected them into one body and ratified them with the Assent of his Great Council And that these Laws were more than once sworn to and confirmed by King William himself appears by the Story of Frederick Abbot of St. Albans who frighted him into a confirmation of them by Oath for fear of a general Insurrection of the People So that if he or his Son Rufus made any Breâ—ches upon their Liberties they were as it were ex post liminio restored to them by the Magna Charta's of Hen. I. K. Stephen K. Hen. II. K. Iohn and K. Hen. the III. And those oppressions contrary thereunto are branded by all Historians as Notorious Perjuries and Wrongs to the Subjects But that King William the First altered nothing material in the Fundamental Constitutions of the Government whatever he might do in some less material Customs or Laws which he brought with him out of his own Country appears plainly by this which you cannot deny that he often assembled his Great Council as his English Predecessors had done and that in them were dispatched all the Great Causes and Complaints of the Kingdom And for this I will give you the Testimony of two very ancient Historians The first is Râ—dolphus de Diceto who in Anno 1071 tells us That the Plaint of Wulstan Bishop of Worcester was heard and ended in Consilio celebrato in loco qui vocatur Pedreds coran Rege Doroberniae Archiepiscopo Primatibus totius Regni The next is Gervasius Dorobernensis who thus relates it Lanfranc Arch-bishop of Canterbury Eligentibâ—s eum Senioribus ejusdem Ecclesiae Episcopis at Priacipibus Clero Populo Angliae in Curia Regis in Assumptione Sandâ— Mariae Here the Episcopi Principes Bishops Princes the Cleri Populus the Clergy and People or Laity were the same Persons and only expressive of one another and all had Votes in this Election M. I pray give me leave to interrupt you a little I will not deny but that the Conquerour did often assemble Great Councils of his Bishops and Great Lords commonly called in Historians Principes or Primates yet I think I may boldly affirm that there were no Englishmen in those Councils or that they made any Laws for the Benefit of Englishmen who were kept under by those Normans who then enjoyed their Estates much less was there any such thing as Commons either by themselves or their Representatives in those Assemblies which then consisted wholly of the King 's Feudal Tenants in Capite and of no other as Dr. B. hath very plainly shewn us And when King William made Laws it is much to be doubted whether he made them so much as with the Consent of his Great Council or not for the Title to the French and Latin Copies of his Laws runs thus put into English These are the Laws and Customs which William the King granted to all his People of England after the Conquest or Subduing of the Land They are the same which Edward the King his Kinsman before him observed In this Preface we have only to note that the Laws are expressly said to be the King's Grant and the Supplemental Laws writ in the Red Book of the Exchequer are by way of Charter or Grant thus Wilhelmus Rex Anglorum c. Omnibus hominibus suis Francis Anglis salutem
and all along the Authoritative parts are expressed by Statuimus volumus interdicimus probibemus praecipimus So that by these Expressions in his Laws the absolute soveraignty of the Conqueror in the point of Law-giving is manifest I shall content my self with a very few Authorities because the matter is so plain Ordoricus Vitalis saith thus Eamque i. e. England Gulielmus Rex suis Legibus commodò subegit And Eadmâ—r Contemporary with the Conquerour in his History thus Vsus atque leges quas patres sui ipse in Normannia solebâ—nt in Anglia scribere volens Cuncta divina simul humana ejus nutum expectabant From whence you may see that all matters as well Spiritual as Temporal depended upon his sole will And tho we have no particular account of what Laws his Son William Rufus made yet we may presume according to the Testimony of Historians that he was altogether as absolute in those Councils he called as his Father as may be seen in Eadmerus his account of his Transactions with Archbishop Anselm So that it is certain he governed by his own absolute Authority raising what money he pleased upon his Subjects 'T is true that in the Reign of his Successor Henry the First the People found some little relaxation by reason of the Charter he made them containing several mitigations of the severity of the Feudal Laws as also those of Forests yet even these are said to be made by his own single Grant and Authority tho I confess it was granted in a great Council So likewise in Florence of Worcester we find that in 28 th of Hen. I. That King confirmed the Acts of a Synod or Council of the Clergy of the Province of Canterbury and gave his Royal Assent to them As for King Stephen tho he was a Notorious Vsurper and Set up and Crown'd by a Faction of Bishops and some few Temporal Lords and that not long after his Coronation he in a Great Council at Oxford granted to all his Subjects another Charter of divers Priviledges and Freedoms from the former Exactions yet the words of the Charter are in his own name and by his own authority solely as appears by these words Observari praecipio constituo But Richard Prior of Hexham alias Hagulstad in his Chronicle closes his Charter thus Haec omnia concedo confirmo salva Regia justa Dignitate mea From which words it is plain that he never meant to part with any of the just and necessary Prerogatives of his Crown So likewise King Henry the Second in a Great or General Council held at London confirmed the Great Charter granted by King Henry the First his Grand-father but this Charter also runs wholly in the King 's own name without any mention of its being assented to either by the Bishops or Nobles And as for the Constitutions made at the Great Council of Clarendon tho that King made the Archbishops Bishops with all the Clergy as also the Earls Barons and Nobility all swear to observe them yet the Enacting part proceeded only from the King as appears by their very Title thus Assissae Henrici Regis factae apud Clarendon c. And Mat. Paris concludes these Constitutions with Decrevit enim Rex From whence it appears that it was the King alone that decreed and Constituted those Laws I shall not say much of the Great Councils in Richard the First 's time since he did not reign long enough to call many but in that held at Notingham we find that the King diseized Gerard de Canville and others and that the King appointed to be given him two Shillings on every Carucate of Land throughout England c. From whence I shall observe that the words Rex praecepit constiâ—uit c. as they are in this Historian shew that the King then had solely the Authoritative Power of passing all Consultations of these Councils into binding Laws even where money was to be levied on the Subjects and that seisure was to be made of their Estates But to come to the more troublesome and perplext Reign of King Iohn in which there were many Great Councils holden yet I shall instance but in some few of them mentioned in Mat. Paris as that of St. Albans held by Ieffery Fitzpeter and the Bishop of Winchester in this King's Absence where ex parte Regis it was firmly enjoyn'd under penalty of Life and Limb that the Laws of King Henry his Grandfather should be kept by all in his Kingdom From whence we may observe that the Laws had their force only from the King's Authority as appears by this expression ex parte Regis firmiâ—er est praeceptum And when afterwards at Runningmead he was compelled to sign the first Magna Charta I own it was done in a Great Council of Bishops Earls and Barons as well those who stood for him as against him Yet that it proceeded wholly from his own good will is plain from the Charta de Foresta of this King as appears by these words Ad emendationem Regui nostri spontanea bona voluntate nostra dedianus concessimus pro nobis haredibus nostris has libertates subscriptas From all which Charters of Liberties we may conclude that the Petitions of the People were drawn into the form of a Charter and passed under the King's Seal as his meer voluntary free Grants and Concessions without their Votes Suffrages and Authority And sometimes such Rights or Liberties have been bestowed and declared by our Kings by way of answer to the Petitions of the Lords and Commons and that this custom is not yet discontinued appears by the Answer of K. Charles the first to the Petition of Right when no other answer would please the Commons but the King 's expressed Assent to their Petition in these words Sole Droâ—â—t faict comme esâ— dâ—sire But to return to the Reign of Henry the Third F. I beseech you Sir give me leave now to answer what you have already alledged out of our Hiâ—â—oâ—iâ—ns for the Supreme and Absolute Power of our Kings before we proceed further to less obscure times And therefore I must tell you that you have in this long speech of yours made use of all the Artifice of an Advocate for a Party viz. in urging all that can any way make for you and slyly passing over whatsoever may make against you And to begin with your story of King William the First I shall not now dispute whether there were any Englishmen in those Great Councils or whether they consisted only of Tenants in Capite since I shall defer that Question till anon But as for the English you have put upon the French Title of the Laws of this King it is not fairly rendred for in the French it is Apres le Conquest dâ— la â—erre which doth not always signifie a subduing by force but by any other ways of acquisition different
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
voluntate Regis teâ—â—ere praesumptum est sed quod consilio Magistratuum suoâ—an Rege Authoritatem praesâ—aâ—â—e babâ—â—a super hoâ— deliberatâ—one So that you see in the time when this Author Writ the King could do no more by his Prerogative then the Law allowed him to do and though it is true it is his Will and Authority that gives Vigour to the Law yet this only as it is declared in Parliament and in those Acts which had before received the Consent of his Great Council here called the Kings Magistrates And therefore you have done what you can to confound the difference between the Kings Declaration or Writs Explaining and Enforcing the Common Laws of England or else Interpreting former Acts of Parliament already made which was a Prerogative often exercised by the King and his Council in Parliament which then consisted of all or most of the Iudges and Great Officers of the Kingdom of which I shall speak more at large by and by And I confess we are much in the Dark because our Ancient Parliament-Rolls are almost all lost and consequently the Statutes therein contained So that we have almost nothing left of them but such Copies or Remains as were preserved by Iudges and Lawyers in those and Succeeding times whilst they were still in Being And therefore I think I may at present boldly affirm that if that which you call the Statute of Ireland was not founded upon some former Statute not now in being it was no Act of Parliament at all but only the King 's Writ to the Chief Justiciar of Ireland Commanding and Enforcing the Common Law of England in the Case of Coparceners to be observed in Ireland The like I may say to the Explanation of the Statute of Gloucester which might be no more than the Interpretation of the King and his Iustices of the Sense of some Articles in that Statute and this for its Greater Authority Exemplified under the Great Seal and so sent to all the Courts at Westminster and often to the Sheriffs of all the Counties in England yet without altering that Statute in some Points as you would have it The like I may say of the Statute of Acon Burnel and therefore it is very rashly done to conclude that though we have not the Original Acts and Records of Parliament of that time that therefore such Statutes were made by the King alone in his Privy Council So that I must still continue of the same Opinion with the Great Selden in this Point who in his Marâ— Clausum tells us It is most certain that according to Ancient Custom no Answer is given either by the King or in the King's Name to any Parliamentary Bill before that Bill whether it be brought in first by the Lords or by the Commons hath past both Houses as is known to all that are versed in Parliamentary Affairs Which if it hath bin the Fundamental Law of this Kingdom it signifies very little in what Form the Law is express't whether in the King's Name only as giving the last Assent thereto or else as his Concession to the Lords and Common's Petition as long as you grant that their Assent was necessary For sure whosoever Petitions another to do a thing which he cannot impose upon him without his Request must give his consent to the Doing it unless you can prove that it could be done whether the Petitioner would or not And this by the way will serve to answer an Objection which though you insist much upon it is scarce worth it viz. The King's Answer to the Lords and Commons Petition of Right which was indeed no Grant or Concession of any New Rights or Priviledges from the King to the People But only a Declaration of several Ancient Rights and Liberties of the Subjects which had been very much broken and infringed of late and therefore the King's Answer was very proper soit Droict faict comme est desire The next mistake you fall into proceeds from your confounding the King 's extraordinary Council in Parliament with the King 's Special or Privy Council and in a manner making this a fourth Estate by whom as well as by the Lords and Commons Laws are often made whereas indeed neither the one nor the other is true For tho I grant that there is often made mention in our Ancient Statutes or Records of the Kings Council yet this is not to be understood of his Privy Council but of a Special Council with whom our King 's formerly sate during the time of Parliament and before whom and to whom we find by divers Records that both the Lords and Commons did often Petition as you your self do truly affirm But that this was not the King 's Privy Council but another quite different from it And to which it seems to me that Fleâ—a refers in his 2d Book Cap. 2. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis praesentibus Praelatis Comit. c. And this Council consisted of all the Great Officers of the Kingdom viz. The Lord Treasurer Chancellor and Keeper of the Privy Seal Master of the Wardrobe the Judges of the King's Bench Common Pleas Barons of the Exchequâ—r Justices Itinerant and Justices of Assizes with such of the Dignified Clergy as it pleased the King to call Which that they were altogether distinct from the King 's Privy Council appears plainly by this that the later never included all the Iudges nor did the Privy Council ever exercise any Iudicial Authority in Parliament as this Council did in those days but that this Council consisted of the Parties above mentioned see the Statute of Escheators made 29 Edw. I. and in the Placita Parliamentaria of that year the Statute runs thus Per Consilium Regis concordatum est coram Domino Rege ipso consentiente c. But in the Close Roll of this year it is clearly explained who were of this Council their Names being there particularly recited viz. all the Great Officers above-mentioned together with the Iudges of the King's Courts and Justices Itinerant c. Which is likewise explained by the Parliament Roll 9. Edw. 2. Rex voluit quod Dominus Cancellarius Thesaurarius Barones Soaccarii Iustiâ—iarii alii de Consilio Domini Regis Londin existente convenirent I could give you many more Examples of this kind but I shall give you but two more to prove that this Council in Parliament could not be the King 's Ordinary Privy Council The first is in Placit Parliament 2 Edw. 3. in a Cause betwixt Thomas Fitz-Peter and Alienora Wife of Iohn de Mowbray Coram Rege The Record is long but concludes thus to the Justices Et si difficultas aliqua subfuerit quare praemissa facere non possâ—tis tunâ— placitum illâ—â—d usque in Prox. Parliamentum nostrum udjornetis ut ibidem â—unc inde fieri valeat quod de Consilio nostro fuerit faciendum By which we may very
for as Iohannes Pomarius in his Saxon Chronicle sheweth us for which I refer you to Verstegan where this passage is made use of at large Verstegan p. 68. So that if this were the Government of the Saxons as low as the time of Charles the Great I durst leave it to any indifferent person to judge whether the first Saxon Kings in this Island were made so by their own Princes before they came over or were chosen by their Followers since no Historians mention the former tho all of them agree of the latter They commonly using this Phrase Regem fecerunt or elegerunt And that all the first Kings of the Heptarchy were Elective nothing is more plain since the Great Council of the Nobility and People did not only Elect them but often Depose them too when they grew intolerable through Tyranny or Misgovernment as may appear by the Example of Sigibert King of the West-Saxons and divers others I could Instance in who were Expelled this Kingdom as Brompton and other Ancient Chronicles tell us by the Vnanimous Consent and Deliberation of the Nobility and People Many like Instances I could give you in the other Kingdoms of the Heptarchy but that it would be too tedious Nor doth your Reason signifie any thing that it is not probable that the first Princes were made Kings upon Condition because of the Absolute Authority they had over the Lives and Fortunes of their Subjects since it is altogether false in matter of Fact none of the Saxon Kings being able alone to make Laws or impose Taxes upon their People without their Consents in their Great Councils much less to make War without it for then the War tho begun by the King alone must have signified little in an Age when there were no standing Armies nor Money in the Princes Power to pay them there being then but little Coyn of any sort and their Revenues being mostly paid in Victuals M. Pray Sir give me leave to interrupt you a little I own indeed that the particular Laws and Constitutions of each of the Kingdoms of the Heptarchy are not particularly known and perhaps some of their Kings might be Elective and consequently liable to be Deposed by their People whether by Right or Wrong I will not now Dispute but if we consider the State of things after these Seven Kingdoms became reduced into one you will find them much altered And as Egbert our first Saxon Monarch Reduced all those Kingdoms into one So it is to be supposed that having no Right to them but by Conquest and the Submission of their Kings when overcome in Battle both he and his Successors must needs have become far more Absolute than they were before and if they were Elective before that time did now certainly become Hereditary Monarchs The Crown Descending from Father to Son for divers Descents And so Consequently these Princes granted divers Priviledges and Liberties to the People of those Kingdoms they Conquered And that they were no other than the free Grants or Concessions of our former Kings upon Petition or Request of the People and accepted by the Clergy Nobility and People of the Kingdom in their Great Councils For this I need go no farther than the Coronation Oath taken by the Kings of England when the Archbishop of Canterbury asks the King Sir will you grant and keep and by your Oath confirm to the People of England the Laws and Customs granted to them by the Ancient Kings of England your Predecessors and namely the Laws and Customs and Liberties granted to the Clergy and People by the Glorious King Edward your Predecessor From whence we may observe that all the Bishops Earls Barons and People there present do own and confess that their most Ancient Laws Customs and Liberties were granted to them by Edward the Confessor and other Ancient Kings F. I doubt you will prove as much out in the account you give me of our King's Power after the Seven Kingdoms were reduced into one as you were before For though I grant that the Title of the West-Saxon Kings over all the rest proceeded from Conquest and the Submission of the Kings and People they Conquered yet were they not all actually reduced into one Kingdom or Monarchy till a good while after the Kings of Mercia and of the East-Angles continuing in Being till the Coming in of the Danes as you will find by our Saxon Annals And though t is true the West-Saxon Kings made those Kings Tributary to them Yet that they did not become more Absolute thereby appears from the Testimony of our Ancient Histories Since we find them Transacting all Affairs in their Wittena Gemots or Great Councils as well after their Conquest as they did before And therefore we find in an Old Register of St. Leonard Abby in York cited by Mr. Dodsworth in the Monastâ—â—on Anglic. put out by Mr. Dugdale this Memorable passage Memorandum quod Anno Domini 800. Egbertus Rex totlin Britanniae in Parliamento apud Wintoniam mutavlt nomen Regni de consensu Populi sui jussit illud de Caetero vocari Angliam And Will. of Malmsbury that Ancient and Exact Historian says expresly of this King Egbert Lib. 11. Has omnes Regnorum Varietates Egbertus animi Magnitudine composeuit ea uni quadrans Imperio ad uniforme Dominium servans unicuique proprias Leges vocavit Angliam It is therefore most evident that upon the Submission of those Kingdoms he Conquered he promised and agreed to govern them according to their Ancient Laws And hence we find the Mercian Laws called Merchen Lage to have continued in force long after that Kingdom was united to that of the West-Saxons Nor will your Inference from the Coronation Oath prove of any greater Moment For tho it be therein recited that divers of the Laws Liberties c. we now enjoy were granted by King Edw. the Confessor and other Kings Yet must it not be so understood as if the People of England had no Laws or Civil Rights before his time for that were to contradict plain matter of Fact and the Histories themselves I have already Cited But why they were called his Laws and his Customs Will. of Malmsbury hath very well observed when speaking of the good Laws made by Ancient Kings and especially by King Ethelred which were confirmed by King Câ—â—â—e he hath this remarkable passage In quarum custodiam etiam â—unc temporis Bonarum Sub nomine Regis Edwardi juratur non quod ille Statuerit sed quod observaverit The like I may say for the Laws of divers other Saxon Kings which tho they go under their Names Yet were made by the Assent of the Great Council of the Kingdom as by the Titles of the Laws themselves in Mr. Lamberts and Sir H. Spelman's Collection of them you may be satisfied if you please But for a Tast pray see the Laws of King Alfred which you Cited which tho said to be
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and â—states to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermâ—n yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâ—s who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â— are not Elected by any Grant or Charter from the Crown but by an immemoâ—ial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded 〈◊〉 from him since we find the Authority of those chief Men whom 〈◊〉 calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagâ—â— Viâ—osque Principes reddunt â—enteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâ—ided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomâ—nation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâ—ient Charters of our Saxon Kings after the Principes Duces and Comâ—â—â—s and that tho many of them might be the Kings Feudal Thanes or 〈◊〉 Grand Serjeanty or Knights Sâ—rvice in Chief as Mr. Sâ—lden tells us in his Titles of Honour yet that Author no where excludes the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court 〈◊〉 and Court-Baron Especially if you please farther to consider what a vast nâ—mber of Alâ—dariâ— or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sâ—rvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their 〈◊〉 to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâ—ssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was 〈◊〉 we need go no further than the Laws of King Athelâ—â—an where you will find Gâ—mility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâ—aus or Câ—eorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
believe that the Ancient and Potent Cities of London Tâ—â— Câ—nterbury Lincoln c. Should ever be excluded from having any hand in the Great Consultation of giving Money and making Laws and for the publick defence of the Kingdom in the Saxon times any more than they are now And therefore we find that in all the Kingdom of the German or Gothick original the chief Cities and Towns have still sent Deputies to the Diets or Assemblies of Estates as I said but now In the next place tho I do not positively assert that there were Knights of Shires before the Conquest yet am I not convinced that there were none For tho I confess the Treatise you mention appears to have been written since the coming in of the Normans yet might the Substance of it have been much older than the times of Edw III. and Rich. II. or else certainly King Hen. IV. or his Chancellor for him would never have been at the trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal which is thought to incroach so much on the Prerogative had he not been very well informed of the Antiquity as well as Authority thereof And therefore it might very well be written about the Time of Hen. III. from some Ancient Historians and Records not now extant tho the Copies we have of it may be of no longer standing than the time Mr Selden mentions But admitting that there were no Knights of Shires before the Conquest and tho the Thanes who I suppose made the greatest Figure in the Wittena Geâ—â—â—er were not Earls or chief Thanes that is of the Greater Nobility yet they were great Freeholders and tho Commoners yet Gentlemen and of the Lesser Nobility in the same sense as Gentlemen or Knights of Shires are now And the not elected by the Countries yet might be as well esteemed their Representatives as they are now of Freeholders under 40 s. per Annum Lease-holders and Copy-holders for years who have no Votes at the Election of Parliament men whereas these Thanes were then the chief if not the only Possessors of all the Freehold Estates in the Kingdom Nor is it any material Objection to say that these Thanes might at first owe those Estates to the Grant of the First Saxon Kings and might also after a sort hold their Estates of them as Heads of the Commonwealth by such Services as were setled by Publick Laws yet does it not therefore follow that they owed their very right of coming to the Great Council wholly to the Kings Favour For in the first place it is to be considered that tho the First Saxon Kings conquered this Island from the Brittains yet those that assisted them being only Voluntiers the chief Officers or Commanders of them might not only deserve but also capitulate for their Shares in the Land so conquered And these being given out by the King according to each mans quality condition or desert might constitute those who were called the King's Thanes as those who held likewise under them were the Middle Thanes or Vavassors Supposing till you can prove the contrary that these had Places in the Great Council as well as the other and you might as well argue that they could have no Places there but by the favour of their Lords Whereas I have already proved that an Estate of Five Hides in Land of whomsoever holden made a Thane or Nobleman of the Inferior Rank And we find by the same Laws of King Athelstan his Weregild or Price of his Head was valued but equal with that of a Mass Thanes or Priest viz. at 2000 Thrymsas So that a sufficient Estate in Land did not only make a man a Gentleman but also give him a place in the Great Council And there were besides all these several Alodoril who held their Lands discharged from all Services and could sell or dispose of them without the consent of the King or any other inferior Lord and are those mentioned in Domes-day Book qui potuit ire cum terra que â—â—but Nor is your Argument conclusive That because in those times as well as now all Lands were held either mediately or immediately of the King and were chargeable with those three general Services you mention for the publick safety and good of the Kingdom that therefore not only all mens civil properties but also their right of coming to the Great Councils must wholly depend upon the King's will Since I have already proved that the first Saxon Kings by their conquest of the Kingdom could not acquire the sole property of all the Lands thereof to themselves tho they might be made use of as publick Trustees to distribute them according to those mens qualities and deserts who had helped them in the Conquest So that when they were once possessed of such Estates they had immediately thereupon a right to a place in the Great Council the burthen of the Government lying chiefly on such as had Estates in Land And that many others besides the Kings Thanes or Great Lords had places in the Great Council of those times appears as well by the name of Mycel Synods â—â— Wittena-Gemots which are rendred by our Ancient Glossarists Numerosa or Popuâ—â—sa Conventio as also the Titles and Conclusions to divers of the Titles of those Great Councils in the Saxon Times where are often mentioned after the Comites Proceres Terrae aliorum fidelium infinita multitudo which must certainly take in many more than the Kings Thanes Judges or other of his Great Men who were then but a few in comparison of all the rest of the Freeholders of England M. I will not longer dispute the probability of what you say all the difficulty lies in the proof of the matter of Fact For in the first place I deny that any other of a less Degree than the King's Thanes of chief Tenents had any Places or Voices in the old English Councils Nor can you find as you your self are forced to confess in our Saxon Laws or Ancient Historians of those times any Representatives of the common people mentioned such as are now much less Citizens or Burgesses for any City or Burrough in England And therefore what you say concerning the Riches or Power of the Cities and Towns before the Conquest tho perhaps it might be true yet doth it not therefore follow that they must then send their Representatives to the Great Councils Nor is it any Argument to prove that they did because great Cities and Towns do or did lately send Deputies to the like Assemblies in other Countries since our Government might not only originally differ in that from theirs but that also the sending of those Deputies might be granted by some later Princes long since the time of the first beginning of those Kingdoms and I do believe will prove so if closely look'd into And in Denmark which you know was an Elective Kingdom the Cities and great Towns never sent any
Deputies to their Great Councils at all and since the Government of England as you your self grant did very much resemble that why might it not be so here too F. I think your Reply hath no more weight in it than what you have already urged For in the first place it lies upon your side to prove that none but the King 's or chief Thanes had any Places in the Great Councils of those times and wheâ—â— you can prove that you may do something But what I have now brought to prove the great Antiquity of our Cities and Burroughs in England is not so little to the purpose as you would make it since it confirms that Right of Prescription which all ancient Cities and Burroughs is England do claim of senâ—ing Members to Parliament and therefore pray 〈◊〉 what Mr. Lambard a Person whom all the Learned own extremely knowing in the English Saxon Government tells us on this Subject in his Archeion in these Words That whereas in the beginning of the Law viz. those made by the Saxon Kings he there mentions all the Acts are said to pass from the King and â—is Wisemen both of the Clergy and Laity in the Body of the Laws each Statute being thus And it is the advice of our Lord and his Wisemen So as it appears that it was then a received Form of Speech to signifie both the Spirituality and Laity that is to say the Greater Nobility and the Less or Commons by this one Word Witena i. e. Wisemen Now as these written Authorities do undoubtedly confirm our Assertion of the continuance of this manner of Parliament so is there also unwritten Law or Prescription 〈◊〉 doth no less infallibly uphold the same For it is well known that in every Quarter of the Realm a great many Burroughs do yet send Burgesses to the Parliament which are nevertheless so ancient and so long since decayed and gone to nought that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesâ— than they have obtained this Priviledge by the Grant of any King succeeding the same So that the Interest which they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning Which thing is also confirmed by a contrary usage in the self same thing for it is likewise known that they of ancient demesne do prescribe in not sending to the Parliament for which reason also they are neither contributers to the VVages of the Knights of Shires neither are they bound by sundry Acts of Parliament tho the same be generally penned and do make no exceptions of them But there is no ancient Demesne saving that only which is described in the Book of Dooms-day under the Title of Terra Regis which of necessity must be such as either was in the hands of the Conqueror himself who made the Book or of Edward the Confessor that was before him And so again if they of ancient Demesnes have ever since the Conquest prescribed not to elect Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other Places did send their Burgesses From whence we may conclude that the Learned Author did not only believe that the Lords but that also the Inferior Nobility and Representatives of Cities and Towns were included under the Word VVites and also that these Placeâ— claimed that Priviledge by Prescription and not by Grant of any King since the Conquest or before M. I shall not deny but Mr. Lambard was a Learned Antiquary yet there are others more in number and perhaps of greater Learning who do suppose that no Cities or Burroughs sent Burgesses to Parliament but since the Conquest the I confess the time is not exactly agreed on but whenever they began to appeaâ—â— there it is certain they could have no right of coming but from the King's Summons or Grants since none but such Cities or Towns that held of thâ— King in Capite had anciently any place in those Assemblies noâ— of them neither any other but those whom the King pleased to call And from thence proceeds that great Variety we find in the List of those Towns which send Members to Parliament But I shall omit speaking any thing farther of this at present But as for those middle inferior Thanes or Vavassours as they were afterwards called whom you suppose to have made so great a Figure in the Saxon Great Councils I do not believe that they had any Votes there and I hope I shall be able to prove to you by and by that none but the King's Tenants in Capite appeared in those Meetings from the time of William the Conqueror to the 49 Hen. III. Now if it be true as you suppose King William made no alterations in the constituent parts of the Great Council of the Kingdom after his conquest of it it will likewise follow that the same sort of persons viz. Tenants by Knights Service were the only Members of it before the conquest too But if you have any express Authorities out of our Ancient Saxon Laws or Histories to prove that the Commons appeared at the Wittena Gemotes in the Saxon times pray let us see them F. I shall perform your Command immediately but in the first place give me leave to tell you that what you have said concerning Cities and Towns not sending Burgesses to Parliament till after the Conquest is a great mistake built upon a false and precarious Hypothesis that they all held in Capite of the King the contrary of which I shall make out when I come to treat of that Question So likewise is it as precarious that none but the King's Tenants in Capite had any Votes in our Great Councils in the times immediately succeeding your Conquest till the 49th of Hen III. and that therefore it must have been so before the Conquest For as I own that King VVilliam made no material alteration in the Government of the Kingdom after his entrance so I likewise affirm that as well after as before that time if not Knights of Shires yet all Thanes the or Barons i. e. great Freeholders of England had Places in that Assembly before 49th of Hen. III. But to proceed to the Authorities you desire I shall begin with the first and most ancient General Council we have left us in the Saxon times viz. that which was held at Canterbury A. D. 605. by King Ethelbert not long after the settlement of Christianity in this Island which is recorded by Sir H. Spelman in his Brittish Councils in these Words An. Incarnationis Dominicae 685. Aethelbertus Rex in fide Roboratus Catholica una cum Beria Regina silioque ipso Eadbaldo ac reverendissimo praesule Augustino caeterisque optimatibus Terrâ— Solenitatem Natalis Domini Celebrant Cantuariae Convocato igitâ—r ibidem Communi Consilio tam Cleri quam Populi Whence you may observe that
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
refer but to this very Letter which was assented as well per procuratores Communitatis Regni as by your Barons here called Nobiles Regni And this Application thereof is given by Mr Pryn himself when he makes use of these Records But to let you see farther that the Lords and Commons for all this Author Opinion to the contrary might joyn in a Letter ro the Pope I shall shew you by that which was writ in the Name of the whole Parliament to the Pope in the 17 th of Edw. III. about the Provisions of Benefices which then grew so exorbitant that Walsingham tells us in his History Quod Rex tota Nobilitas Regni pati noluit c. which Phrase the Letter it self will best explain The beginning and conclusion of which I shall give you in English as you may find it in Mr. Fox's Book of Martyrs To the Most Holy Father in God Lord Clement by the Grace of God of the Holy Church of Rome and of the Universal Church Chief and High-Bishop His humble and devout Children the Princes Dukes Earls Barons Knights Citizens and Burgesses and all the Communalty of the Realm of England assembled at a Parliament holden at Westminster the 15 th Day of May last past c. In witness whereof we have hereunto set Our 〈◊〉 Given in the full Parliament at Westminst on the 18th Day of May Anno Drâ— 1343. And it still appears by the Parliament Roll of this Year viz. 17th Edw. III. n. 59. that the Commons petitioned the King that the Lords might stay at the Parliament till they had perfected and seal'd this Letter And that there was such a Letter then written by the Parliament appears by the King's Letter to the Pope about the same Matter still among the Tower Records In which he imitated his Grandfather Edw. I. and Great Grandfather Hen. III. who also seâ— Letters to the Pope on such like occasions but in those to excuse the Arch-Bishop of Canterbury from being the Author of those Complain he had this Passage that since it was the Judgment tam Procerum Nobilium quaâ— Communitatis Regni in ultimo Parliamento contra Provisorum Exercitum To conclude I think nothing is plainer than that under the Universitas Regâ—â— in the first Letter to the Pope 29th Hen. III. and under the Communitas Regni mentioned in the Letter of the 29th Edw. I. were meant the same Estates or Orders of Men as were more particularly recited in this present Letter viz. The 〈◊〉 Lords and Commons in Parliament assembled M. I must freely tell you I am not yet satisfied with the Sense you now put â—pon these Words Universitas and Communitas Regni before the Commons were summoned to Parliament for you your self must grant that as the word Universitas Regni takes in the whole Representative Body of the Kingdom so likewise the word Communitas signifies no more than the same whole Body or Community thereof Therefore if I prove to you that in those times this Universâ—â—y or Community consisted only of the Earls Barons and Tenants in capite that word Communitas Regni ought never to be interpreted by the English word Commoâ—â—lty or Commons of England till after the time that I allow the Commons were admitted to make a constituent part of the Great Council or Parliament nor always then neither And Mr. P. in his Book which we have so often cited hath done very unfairly to make the Universitas and Communitas Regni to comprehend the Commons of England before they everappeared in Parliament at all and so hath he likewise abused the Word Populus as I have already observed to signifie the Commons when indeed there is no more thereby meant than the whole Assembly of the Laity which at that time consisted of no more than the Earls Barons or other Tenants in Capite And tho I grant that by Communitas Praelatorum or Baronum are often understood the Body of the Prelates or greater Barons only called by way of Eminency Proceres Magnates yet most frequently these with all the other Tenants in capite did make the whole Body of the King 's immediate Tenants in Military Service and were altogether called the Baronage of England the Community of the Land or Community of the Kingdom and for this I think I shall give you undeniable proofs by and by F. I am very well aware that the Word Populus often signifies the whole Body of the Laity yet not excluding the Commons as I have already sufficiently proved For then the word must signifie quite contrary to its genuine Signification instead of People the Greater Nobility only yet that when it is put after as distinct from Magnates it must mean the Commons as now understood I shall shew you by and by But that this word Populus does not always signifie the whole Body of the Nobility only but takes in oftentimes the Commons too pray see Matt. VVest who tells us King Edw. I. in the 34th year of his Reign making his Son a Knight Pro hac melitia silii Regis concessus est Regi zomus Denarius a Populo Clero Mercatores vero vicesâ—mum concesserunt Upon which your Dr. in his Glossary very well remarks that it is evident upon Record who were the Populus meant by the Historian viz. the Comites Barones alii Magnates nec non Milites Comitatuum So that unless the Knights of Shires were Lords it is plain Populus takes in the Commonâ— too But Universitas Regni and Communitas Regni called in French le Communâ— Dangletterre is often taken for the whole Community or Body of the whole Parliament and this Sir Edward Coke owns expresly in his 2d Instit. upon these Words In Articulis supâ—â— Chartas Thus here Le Commune is taken for People so astout le Commune is here taken for all the People and this is proved by the Sense of the Words For Magna Charta was not granted to the Commons of the Realm but generally to all the Subjects of the Realm viz. to those of thâ— Clergy and to those of the Nobility and to the Commons also And this is a Rational as well as Grammatical Interpretation For as the Word Universitas is derived from the Adjective Universus which signifies the VVhole 〈◊〉 Universal So the Word Communitas is derived from the Adjective 〈◊〉 Common or General So that these two Words when used simply in a Political 〈◊〉 Legal Sense ought to take in the whole Body of the Kingdom or all sorts and conditions of Freemen appearing themselves or their Lawful Proxies or Representatives in Parliament But I have already sufficiently proved that under those General words used in our Historians and Records viz. Principes Proceres Nobiles Magnates Barones alii de Regno were then comprehended either all the considerable Freeholders oâ— Lords of Manners or else the Knights of Shires Citizens and Burgesses So
to the Judgment of every indifferent person These then were the men the only Legal men that named and chose Juries and served on Juries themselves both in the Countrey and Hundred Courts and dispatched all Countrey Business under the Great Officers as will appear by the next Law with a little Explication Ut Iura Regia illaesa servare pro viribus câ—entur subditi Statuimus etiam firmiter praecipimus ut omnes Liberi Homines totius Regni praedicti sint Fratres conjurati ad Monarchiam nostram ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servaâ—um Pacem Dignitatem Coronae nostrae integram observandam ad Iudicium Recâ—um Iustitiam constanter omnibus modis pro posse suo sine dolo sine dilatione faâ—endam Now the Judgment they were to give and the Justice they were to do by this Law besides that in their own Courts and Jurisdictions was principally as they were Jurors or Recognitors upon Assizes c. tho some of the greatest of their Milites were often Sheriffs Hundredaries and other Under Iudges and Ministerial Officers of Justice in their several Counties as may be seen in Glanâ—ille every where but especially Lib. 2. c. 10 11. lib. 9. c. 7. c. 17. lib. 13. throughout This of being Suitors to the County and Hundred Courts c. being a Service incident to their Tenures and before them many times anciently in the County and Hundred Courts and not privately in a Chamber were Executed Deeds Grants and Donations of Lands contained in very small pieces of Pâ—rchment witnessed by Thomas of such a Town Iohn of another Richard of a third c. which were Knights and Liberi Tenentes in Military Service in those Towns of considerable Estates and not the lower sort of people And this Execution of Sales and Assurances in open Courts was as publick and notorious and as secure as if at that time there had been a publick Register for them F. Before I answer your Conclusion from King VVilliam's Laws I must tell you I am not at all satisfied neither with the Account you give how the Commonâ— of England could come in to be a part of the Parliament without any noise or notice taken of it either by our Acts of Parliament or Historians since it is not only improbable but also quite contrary to Matter of Fact and History it self as I shall I hope make good when we come to treat of that Subject Nor is your Argument of any weight since it doth not follow that because VVilliam the Conqueror so subjected the Lands of Bishops and Abbots to Tenure by Knights Service that therefore this was done by his sole Power without any Law for it made by the Common Council of the whole Kingdom Since I observe in the first Law of King VVilliam which you have now cited that the very Services which you say were reserved upon the Lands he had bestowed are said to be so appointed or setled by the Common Council of the whole Kingdom and therefore certainly the Services of the Bishops and Abbots must be so likewise And therefore I must confess my self to be of Mr. Selden's Opinion in this Matter who presumes there was a Law for it tho now lost and cannot believe that this King how powerful soever should attempt to introduce so great a yoak upon all the Bishops and so many of the Abbots and Pâ—â—ors of England without their consents expresly given to a Law and made in the Great Council concerning it tho that Law as many others of this King is not now to be found But to come to the main Design of your present Discourse which is to shew that none but Tenants by Military Service in capite were in the first times after the Conquest properly the only true Freemen or Freeholders of the whole Kingdom I shall shew you that first the Notion is quite new and never heard of till the Dr. from whom you have borrowed it first broach'd it neither Mr. Lambard Mr. Somneâ— nor Sir Henry Spelman nor any of our English Antiquaries or Lawyers ever discovered any such thing before your Dr. arose to disperse these Clouds every man of the Kingdom who was no Villain being look'd upon as a Freeman and every Owner of Lands of Inheritance though of never so small a proportion reckoned a Freeholder and his Estate called his Franc Tenement or Freehold as well in our Ancient as Modern Laws and that Freehold was not restrained only to Military Service within a hundred years after the Conquest appears by King Iohn's Magna Charta In which it is expresly recited that Nullus distriâ—â—tur ad faciendum majus servitium de Feodo Militis nec de alio Libero Tenemento quâ—â— inde debetur and that Socage Tenants tho by Villain Services were as much Freemen as your Tenants in capite see Spelman's Glossary Tit. Socman where he says thus Socmannus in natura brevinan brevi de Recto propriè talis est qui Liâ—e est tenet de Rege seu de alio Domino in antiquo dominico terras suas seu Tenementâ— in Villenagio Libro Sancti Albani Tit. Honcton Chap I. Rege Angliae manerium de Hâ—â—cton tenuerunt in dominico omnes Tenentes Liberi scil custumarii per sokam defendebant tenementa sua c. ex quo patet sokmans liberos 〈◊〉 significare But since you seem to make a distinction between Freemen and Freeholders properly or improperly so called since King VVilliam's Laws you have now cited do not warrant any such Distinction I must beg your excuse if I am not of your Opinion for the First Law you have quoted warrants no such thing it only says That all Freemen in general shall take an Oath of Fealty to the King to maintain him his Lands and Honours against 〈◊〉 Enemies and Strangers Now it is apparent that this Law extended to all Freemen who were by the Ancient Saxon Laws recited in the Addition to the Laws of King Edward to take the very same Oath in the Folkmote as they were after your Conquest to do according to this Law either in the County Courts or Sheriffs Tourne Nor will the next Law do the business any more than this for the Words are That all Freemen of our said Kingdom may have and hold their Lands and Possessions free from all â—njust Taillage Exactions c. Which Word Possessions extends not only to Lands of Inheritance much less to Lands held by Knights Service but also to Estates for Life and all other Chattels or Possessions as well real as personal Nor doth the Words Servitium Liberum extend only to those Services which were reserved upon Lands held by Knights Service in capite but also to those Common Services called Trinoda necessitas which I have formerly mentioned â—iz The building and repairing of Castles and Bridges and Expedition against Foreign Enemies
accepit c. Now pray tell me what Common Council was this Of the Bishops and chief Men of the Kingdom that Anselm referred himself to Was it not ex more by Custom You cannot find in Eadmer any Summons to it neither Rex asâ—ivit nor praecepâ—o Regis convenerunt nor Rex sanctione suâ adunavit In short not to multiply Examples look where you will in Eadmerus or any other of the ancient Historians you have cited and you will still find that the Persons who met ex more and without any Summons were the same who Assembled by the Kings Summons at other times that is the Principes and Episcoâ—i Regni or Terrae or called more generally Priâ—ates utriusque ordinis or the Barones or Majores Regni who did at these great â—easts pro more go to Court and hold a solemn Curia or great Council there And that these made up the Vniversity or whole Body of the Kingdom pray see what Matt. Paris says In die Pentecostes Dominus Rex Anglorum Loâ—dini Festum tenens Magnum serenissimum â—unc compositâ per Regni Vniversitatem Eleganti Epistolâ c. This was about the Pope's Exactions as hath been before delivered And Hen. III. in his Letter to the Pope calls the same Persons Magnates Angliae which in his Letter to the Cardinals about the same matter he calls Magnates Nostri as you may see in the former Citations of them F. But pray give me leave to ask you this question might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts since it was so much for the conveniency of the Bishops great Lords and Tenants in Capite who I grant were then all Members of the Great Council to meet all the rest of the Kingdom or Representatives of the Commons at the same time Though the Writers you have quoted may not mention their being Summoned at all And as for the Writs of Summons those of much later Parliaments being lost how can it be expected we should now prove their being Summoned so many Year before M. I confess it might be so that upon extraordinary business and when the occasion was great and the King desired a great and full appearance they might also receive an express Summons at those times But then I must desire you to shew us any mention of a Summons to any of these Common Councils which when called at other times are most constantly mentioned in this Author And I desire to know of you what you will say to those words pro more convenit which is spoken of the most general Councils when the Community of the Kingdom met at the King's Court You cannot deny but that the Tenants in Capite were the Kings Barones Milites Magnates c. Upon this we will joyn issue And I affirm without bringing Proofs which are infinite in this Case that all the Bishops Earls and Barons of England did hold their Lands Earldoms and Baronies of the Crown or which is all one of the King as of his Person and that was in Capite William the Conqueror as I said before divided most of the Lands in England amongst his great followers to hold of him he made Earls and Barons such as he pleased They and their Descendants held upon the same Terms with the first grantors which was to find so many Horse and Arms and do such and such Services both Titles and Lands were Forfeitable for Treason or Felony to the King did Homage for them and every Bishop Earl and Baron of England was in those circumstances and held of the King after this manner Other Lands were given to other Persons for meaner Services as to his Woodwards Foresters Hunts-men Faulconers Cooks Chamberlains Gouldsinlibs Bayliffs of Mannours in his own hands and many other Officers which in Doomsday-Book are called Terrae Thanorum Regis and sometimes servientium Regis And I doubt not whatever the Notion of Petyt Sergeanty now is but that originally this holding of Lands was the true Tenure not but presenting the Lord with a Bow an Arrow a pair of Spurs every Year c. might also be called Petyt Serjeanty though not so properly as the other F. Not to multiply words to no purpose I think your Reply is far from being Satisfactory for in the first place it is very unreasonable to demand that we should now shew the express Summons to these common Councils which were not held de more since you know that all antient Records of that kind are destroyed and lost for if we could produce them at this day the difference between us and those of your Opinion would quickly be at an end as appears by those great Councils which are said expresly by the Historians I have cited to have been summoned and yet no such Writs of Summons are to be found nor is it any good Argument that because our ancient Historians mention no distinct Summons to the great Councils when met at the usual times of the meeting of the Tenants in Capite that therefore there were none such since we find they often pass by much more material Matters than this And though I grant that the Tenants in Capite were then part of the great Council of the Barones Milites Magnates Regni yet does it not follow for all this that none but the Kings Barons and Tenants in Capite were Members of this great Council since there might be in those times other Barons or great Freeholders who though they held their Lands of the Tenants in Capite yet might be there as Knights of Shires or else appear in Person at those Assemblies as well as the other and besides there were others who though they did not hold of the King in Capite but of some great Honor or Castle or else of some Abbot or Prior yet were Men of very great Estates and very numerous all which must otherwise have had their Estates tax'd and Laws made for them without nay against the consent of themselves or any to represent them Nor is your Assertion at all true That William the Conqueror divided most of the Lands in England to be held of him in Capite For besides those Servants and Officers you last mentioned above two third parts of the Lands of the Abbies and Priories in England were not held as also much other Lands in Kent and other Countries per Baroniam or Knights Service but in libera Elecmosina only or Socage as I have already prov'd and consequently neither they nor their Tenants could according to your Hypothesis have any Representatives in Parliament And farther you your self grant that those Lands you mention which were given out by your Conqueror to his Woodwards Foresters c. did not capacitate them to appear in Parliament since their Tenure was only by Petyt Serjeanty and not by Knights Service Nor could they become the King's Tenants in ancient Demesne because such Tenants
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
need of inserting any Clause to this Charter of reserving or conferring any Power to this Common Council of granting Taxes and giving their Assent to Laws because they were things which at that time they had no reason to complain of since we do not read that King Iohn as Arbitrary as he was ever took upon him to make any new Laws without their consents and besides it was implicitly reserved to them by the last Clause of this Charter viz. Saving to the Archâ—bishops Bishops c. Earls Barons Knights and all others c. the Liberties and Free Customs which they had before So that there was no need of any other Clause than this because it had been not only the Custom but the Law of the Kingdom for the King to lay Taxes and Assess Escuage upon the Nation without the Consent or Assistance of this great Council which grew now so great a grievance that they would not be contented untill the King by this Charter had renounced it F. I shall not now trouble my self or you to confute this mistake of yours That the Kings of England could legally raise Taxes upon all their Subjects without consent of their great Council or that they ever exercised such a Prerogative unless it were in the violent Reigns of the Two Williams and then if it was ever done it was only upon their English and not their Norman Subjects the latter being exempt from it by the very Magna Charta of King William I. by your own confession Nor would they I believe have born it at his hands but I shall speak more particularly of this another time Only pray give me leave to ask you this one Question If this Charter of King Iohn had been intended as a constant standing Rule or Form not only for this but all succeeding Common Councils or Parliaments what could be the reason that this Clause you so much insist upon of Summoning all the Tenants in Capite should be omitted in the great Charter of Hen. III. granted In the 2d Year of his Reign and but Three Years after the 17. of King Iohn when these Charters were first granted as also when it was again confirmed in the 9th of Hen. III. For can any one of sense imagine that so material a Clause as this and so express for the Rights and Priviledges of the whole Body of Tenants in Capite as the sole Representatives of the whole Nation could have been omitted had they alone in those times constituted the common great Council of the whole Kingdom How comes it to pâ—sâ— that in all the Records of Hen. III. Reign wherein this Charter is mentioned It is always recited Magna Charta Nostra viz. his own Charter without taking notice of his Fathers I should be glad to receive a satisfactory answer to this Question from your self or any other intelligent Person M. I hope I may give you a satisfactory answer to this Scruple which I think may be thus satisfied I conceive that the first great Charter we have which is commoly attributed to Henry III. and stiled his Charter in our Statute-Books was properly the Charters of Edw. I. or perhaps rather his Explication or Enlargement of those Charters of King Iohn and Henry III. For we find not the great Charter either of that or King Iohn's in any of the Rolls until the 25th of Edw. I. and he had a greater Summ of Money for confirming this Charter than Henry III. had Now in this Charter then confirmed there is no Provision made for any Summons to great Councils or Parliaments and the reason may well be because the constitution of great Councils or Parliaments was lately changed from what it was in the beginning of King Iohn's time and till the 49. of Henry III. nor perhaps was it so fixed and peremptorily resolved on at this time what it should exactly be for the future as to have it made an Article of the Charter and to this conjecture the frequent variations of Summons to Parliaments in those times do give a probable confirmation F. I am not at all satisfied with this supposition of yours For I doubt not but to prove that it is altogether vain and grounded upon no good Authorities either from History or Records but I shall shew you before I have done that the Magna Charta which we have still upon Record by Inspeximus of Edw. I is the very same word for word in all the material parts of it with that of Hen. III. both of the 2d and 9th Year of his Reign and that there was no alteration at all made as to the manner of it a Summoning or chusing Members of Parliaments from the beginning of this Kings Reign to the very end of it Nor yet in the time of Edw. I. as you suppose M. I should not be displeased to see that proved though I think I am able to shew you the contrary But before we proceed to that I must needs tell you I am not yet satisfied that there ever were anciently two Councils one of the Tenants in Capite and the other of the whole Kingdom for methinks not only your self but Mr. Petyt and Mr. Atwood his second have fallen very short of their proofs they have brought in this point and there is nothing in the Drs. whole answer to them in which in my opinion he hath obtained a clearer Victory therefore pray give me some better proofs of this distinction if you have any F. I did not imagin I should have needed to have spoken any further upon that head yet since you now require it I shall obey your commands Since therefore you tell me that the times before your Conquest are obscure and the Authorities uncertain I will give you a short History of these Councils beginning with King William I and so going down as low as Henry III. So fâ—r then we are agreed that the Council of Tenants in Capite met ex more at the great Feasts of the Year and that they also granted the King Aids or Subsidies to be Levyed upon themselves alone as I grant appears by the Writ of 19th of Henry III. which you have but now cited directed to the Sheriff of Sussex But that this Council which was thus held ex more was also often Summoned to meet at other times when the Kings occasions required it it also as certain as appears by this Writ of the 26. of the same King which I shall read to you Rex Vice-comiti Northampton c. Praecipimus tibi sicut alias praecipimus quod Summoniri facier Archiepiscopos Episcopos Comites Barones Abbates Priores Milites liberos homines qui de nobis Tenent in Capite eodem modo scribitur omnibus Vice-comitibus Angliae Which Writ extending only to those who held in Capite could never be a Summons to the Common Council of the whole Kingdom for then this restriction had bin needless qui de nobis Tenent in Capite and it would have
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâ—us Baronibus Militibus omnibus â—liis Fidelibus suis in Comitat. Câ—striae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ— accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
whole Nation as to intreat the King to admit their under-Tenants to partake of so large a share in both is so extravagant a Fancy that if it had not suited with the Doctor 's present Hypothesis he would never have asserted it in cold blood since himself affirmâ— that upon the making of King Iohn's Charter that the Earls Barons and Tenants in Capâ—â—e were the only Parties to it and that all the rest of their Tenants who were there present were only their Retinue and Tenants in Military Service which were with them at Runnemede and were hardly to be reckoned among the Freemen of the Kingdom all the rest being only Followers who helped to augment the noise and were not Law-makers for 't is not probable says the Doctor very well that those men that had the force of the Nation would permit men of small Reputation to share with them in Law-making those that had the power of this or any other Nation de Facâ—o always did give Laws and Tax the People But it seems these Great Lords and Tenants in Capite are either very stiff to maintain or else easie to give up their priviledges just as it best suits with the Doctors present occasion but the Doctor may contradict himself as much as he pleases since it is not his fault but his Hypothesis that hath lead him into it M. I confess it does seem somewhat hard at present to conceive it but we know not what reasons the Lords and Tenants in Capite might have had to desire the Concurrence of these Knights of Shires at this Juncture of time but that their coming to Parliament looks like a new Institution may farther appear from hence that the King for a good while after the introducing Knights of Shires to serve in Parliament was wont to use the liberty of Nominating the same Members of Parliament who were formerly chosen appears by a very remarkable Writ the Doctor there likewise gives us of the 28 th of the same King directed to the Sheriff of Cumberland whereby he is commanded to cause to appear at the Parliament at Lincoln on the Octive of St. Hilary the very same Knights Citizens and Burgesses who had before appeared at the last Parliament unless any of them were sick or dead From which we may collect that our Kings in those days often made use of their Prerogative of Summoning such Members to Parliament as were not then actually chosen to serve in that Parliament and for a farther confirmation of this there is still extant upon Record in the same Roll the Returns of several of the Sheriffs upon the same Writs Whereby it appears that the same Members were returned to appear in this Parliament who had before served at the precedent unless in the Case of some that were sick or dead And that our Kings had not yet a long time after lost their Prerogative of Nominating how many Knights Citizens and Burgesses they would have chosen and returned to appear in Parliament may appear by a Writ of the 45. Edw. 3. whereby one Knight for a County and one Citizen and Burgess and those too named by the King to the Sheriff were to be Summoned to appear at Winchester to do those things that are appointed in the same Writ which were likewise directed to all the Sheriffs in England and that this was a Parliament appears from hence that the Knights Citizens and Burgesses had Writs for their Expences at this Meeting at Winchester And tho in these Writs it is only expressed by these words Magnum Consilium Nosâ—rum yet from this Writ of â—ummons it is evident it did the Business of a Parliament and so no great matter for the Name F. If thâ—se be all the Arguments you have to produce against the Ancient Right of the Commons being part of the Parliament before the 18 Edw. 1. I doubt they will not be sufficient to do the business For as to this Record of the â—8 of Edw. 1. whereby the King is supposed to have had a power to cause those Knights of Shires to be returned who were Elected to serve in the Parliament before going without any new Eleâ—tion this is altogether Preâ—arâ—ouâ— for if you will but read the Writ it self and the reason of the King 's thus acting it will plainly prove the contrary For the King reâ—iteâ— in that Writ That having resolved that the Charter of Forests should be observed and that his Subjects had made a perambulation thereupon yet that he would conclude nothing in that matter without the Counsel of the Prelates Earls Barons and other Great Men and therefore desiring to hasten that business as far as he could without any delay He thereby orders him to cause to come before him to the Parliament at Lincoln the same Knights Citizeâ—n and Burgesses as were before Elected Now the King might have very good reason for it why he would rather treat with them than with any other because they had been privy to all the precedent transactions concerning this business of Forests and therfore were most likely to come to the speediest conclusion with the King in that affair as being better instructed in it than it was possible for any new Members to be who had not before been privy to the whole Affair Yet that the King never intended hereby to impose Representatives upon his People without their free Consent appears by this Clause at the end of the said Writ 〈◊〉 quâ—d Milites Câ—ves Burgenses praedicti dictis die loco nâ—â—dis omnibus interâ—ut eum plena potestate audâ—endi faciendi ea quae ibidem in praemissâ—â— ordinaeri conâ—ingent pro cummuni commodo dicti Regni Now how these Knights Citizens and Burgesses could appear in Parliament with full power of acting therein without the new Election or Confirmation at least of those whom they represented I should be very glad â—f the Doctor or your self could inform me But to come to your next Record of the 45 Edw. 3. whereby you would prove that the King in those days had a Power of appointing not only how many Citizens and Burgesses should appear in Parliament for each County but also could name the Persons that should appear therein I wonder how the Doctor could so impose upon your or his own understanding since nothing is more apparent than that this Council at Winchester to which they were Summoned was no Parliament at all but a Great Council as appears by the very words of the Writ it self which recites That whereas a Parliament lately at Westminster had given the King a Suâ—sidy of 24 sh. and 3 d. upon every Parish in England that the King being willing to be better inform'd after what manner the Levy of this Tax might be soonest performed and because it would be burthensom for all the Great Men Knights Citizens and Burgesses who came to the said Parliament to meet together again for this matter therefore he Ordained for
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
are the Bishops the Nobility and Civitatum delegati the Deputies or Commissioners of Towns and Cities For Sweden it comes near the Government and forms of Danemark and hath the same Estates and degrees of People as amongst the Danes that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici the Bishops and inferiour Clergy Civitates Vniversitates the Cities and Towns Corporate for so I think he means by Vniversitates as Tâ—uanus mustereth them To which we may also add tho here omitted by this Author the Delegates of the Rusticks or Husbandmen who make a fourth Estate in the Assembly of Estates of this Kingdom And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the Alteration of Religion to this very day the Bishops in their own Persons and a certain number of the Clergy out of every Sochen a Division like our Rural Deanries in the name of the rest having a necessary Vote in all their Parliaments And this Swedish great Council is the more remarkable because it comes very near our Constitution in England in which I proved the Inferior Clergy and the Commons not excepting the meanest Freeholders anciently had their Representatives So that it had been the strangest thing that could have been observed in all the Political Constitutioâ—s on this side of Europe if that of England tho descended from the same Gothick Original and founded according to the same model should have had no Representatives for the Commons or Plebians in their great Councils or Parliaments The Dr. here concludes with Scotland and England the former of which since you agree to have had from all times Citizens and Burgesses in their great Councils or Parliaments I need not repeat what is there since it is no more than what you your self have granted and as for England he owns as appears by the Passages I have already cited out of this Chapter that the Clergy Nobility and People were called to a Parliament held under Henry the ad at Clerkâ—nwell M I will not deny but there were Representatives of the Cities and great Towns in the great Councils or Assembly of Estates of all those Kingdoms you have now mention'd out of Dr. Heylins Treatise yet whether they were there from the very first Institution of those Governments is much to be doubted But since I have not now leasure to inquire into the Original of all these Kingdoms nor at what time each State began to come to these great Councils give me leave in the mean time to remark that all these Kingdoms except Sweden came nearer to that Constitution which we suppose to have been anciently in England and Scotland and also other Kingdoms where feudatory Tenures were observed and consequently none but the Chief Lords or Barons by Knights Service and that held of the King so that all those Foreign Councils or Dyeâ—s c. at first were all the same as consisting of Emperours or Kings with their Earls and Barons Bishops and great Officers as is evident from all the old German and French Authors and since Cities sent Deputies in Germany and Italy they were only from Imperial Cities the like I believe would be found in France and those other Kingdoms you have now mentioned but you cannot shew me unless in Sweden any Representatives elected by the Common People or Rusticks distinct from the Nobility and Gentry like our Knights of Shires in England So that I still doubt whether all the Representatives of the great Lords and other Nobility that appeared in the Councils of these Kingdoms were not all Tenants in Capite and no other F. That this is a meer surmise of yours I think I can easily prove for in the first place as for the Bishops Abbots and Clergy who still made the first Estates in all these Kingdoms nothing is more certain than that they never any of them held of the King by Knights Service and therefore could not 〈◊〉 in their great Councils by that Tenure that Institution being for ought as I know peculiar to England and introduced by your Conqueror as you your self acknowledge and as for the Temporal Nobility you will find that in France not onely those Noblemen that held of the King by Military Service but those who held in libero Alodio without any such Service at all had places either by themselves or their Deputies in the Assembly of the Estates so likewise for the Cities and Towns that sent Deputies to it I believe you will not find that any of them held of the King in Capite and to come to Germany you are likewise as much mistaken in fancying that all the Imperial Cities were Subject immediately to the Emperor before they became so for Hamburgh and Lubec were Subject to their own Princes the former to the Duke of Holstein and Sleswic and the latter to Earls of its own till at last they either purchased their Liberties they enioy from their Princes or else cast them off and were after received into the Body of the Diet by the Bulls or Charters of several Emperors and so likewise Brunswick was always a fâ—â—e City till it was united to the Empire by its own Consent I could shew you the like of several other Cities now called Imperial who held anciently not of the Emperour but either of their own Earls or Bishops tho I grant it was the Charters of the Emperor with the Consent of the Dyet that gave them a place in those Assemblies and tho it is true that in all the rest of these Kingdoms the meer Rusticks or Paisants have no Representatives in their great Councils yet this makes no Alteration in the Case if you please to consider it for the Nobility and Gentry are the only true and proper owners of the Lands of those Kingdoms all the Rusticks or Paisants being meer Vassals and in France almost Slaves to their Nobility and Gentry who as I have already said had all alike Votes in their Assembly of Estates as well those who held of the King in Chief by Knights Service as those that did not whereas it was always far otherwise in England where the meanest Freeholder was always as free as to his Person and Estate as the greatest Lord of whom he held and hence it is that we have had from all Times those of the degree of Yeomen so peculiar to England as Fortiscut in his Treatise de Laudibus Legum Angliae takes notice who if they lived on their own Lands had no more dependance on the Noblemen and Gentlemen than they have now and therefore it was but Reason that these should have their Representatives in Parliament as well as the Inhabitants of the Cities and Burroughs who had most of them a far less share in the Riches and real Estates of the Kingdom Secondly Pray take notice that in the rest of the Kingdoms of Europe except
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
the Kingdom of the West Saxons I have now instanced in but in almost all the other Kingdoms of the Heptarchy in which there are to be found many more Instances of the Deposition of their Kings thaâ— what were in the West Saxon Kingdom this waâ— then very just and necessary since these Kingdoms were all Elective and none of them Hereditary and that the general Meeting of the great Council of the Nation was always at set and constant Times and did not depend upon the Will and Pleasure of the King either to call or dissolve them as I have already proved and that this Power was no unusual thing I appeal to all the Antient Kingdoms of Europe founded after the same Model as ours and which I mentioned at our last Meeting so that nothing is more frequent in their Histories and Annals than the Deposing of their Kings for the above-mentioned Crimes of Tyranny or Misgovernments But that some of these Gothick Kingdoms as Denmark and Sweden whilst they continued Elective have exercised this Power even till of late is so notorious in matter of fact that it needs no proof since the Kings of those Kingdoms held their Crowns at this day by that Title and on those Conditions which the Nobility and People gave them after the Deposition of their Predecessors But tho this were so anciently also in England it does not therefore follow that it must be so now for since the Crown of this Kingdom became Hereditary and that the Calling and Dissolving of great Councils or Parliaments came to depend wholly upon the King's Will I must allow that the Case is quite altered and that the Two Houses of Parliament have now no power to depose the King for any Tyranny or Misgovernment whatsoever The first Parliament of King Charles the Second in the Act for attainting the Regicides have actually disclaimed all Coercive Power over the King and yet for all that the Nobility and People of England may still have a good and sufficient Right left them of defending their Lives Religion and Liberties against the King or those commissioned by him in case of a general and universal Breach and Invasion of the Fundamental Laws of the Kingdom or Original Contract if you will call it so and not to lay down those Defensive Arms till their said just Rights and Liberties are again restored and sufficiently secured to them So that tho' I will not bring the Custom of the English Saxons as a precedent for the Parliament's Deposing of the King yet I think I may make use of it thus far that this Nation has ever exercised this necessary Right of defending their Liberties and Properties when invaded by the King or his Ministers either by colour of Law or open Force And that this hath been the constant practice from almost the Time of the Conquest down to later Ages I think I can make out from sufficient Authorities both from Histories and Records M. Tho' your Doctrine is not so bad as I expected yet it is still bad enough and I never knew this Right of Resistance carried home but that it always ended in Deposing and Murdering of the King at the last as we have seen in our own Times But let the constant practice have been as it will I am sure such Resistance hath been always condemned by our Ancient Common Law as well as Modern Statutes as I shall prove farther to you by and by and therefore pray give me leave to tell you that the never so constant practice of an unlawful thing can no more justifie the doing of it than that constant usage time out of mind for Thieves to Rob between London and St. Albans not that I fore-judge you or refuse to hear any Instances and Authorities from Histories or Records to make good your Assertion F. I thank you for your patience what therefore if I prove that such Resistance has been not only actually exercised by the Clergy Nobility and People in former Ages but that it hath been also allowed by our Kings and approved of by great Councils or Parliaments in those Times for lawful and the Actors in it wholly indemnified and saved harmless nay a power given them and that by the King himself to resist him and defend themselves in case he broke his Charters and Agreements made to and with his Nobility and People or else with some Forein Prince may appear from this remarkable Instance of King Henry II at the end of whose Reign Hoveden in his Annals gives us the Conditions of the Peace made in the last Year of this King between him and Philip King of France with the Consent of their Bishops Earls and Barons where among other Articles you will find this for one particularly relating to the Barons of England who were also to swear to the Peace in these Terms Et omnes Barones Angliae jurabunt quod si Rex Angliae noluerit has Conditiones tenere quod ipsi tenebunt cum Rege Franciae Comite Richardo cos adjâ—vabunt pro posse contra Regeâ— Angliae c. Whence we may without doubt conclude that the Resistance of Subjects in some cases against their Kings was then allowed of even by the King himself and thought not inconsistent with the Allegiance they bore him tho' it might suspend it for a time M. I confess this Instance would be of some weight were it not for the Critical Time when this Peace was made viz. when Richard Earl of 〈◊〉 the King 's Eldest Son had Rebelled against his Father and taken part with the King of France and had drawn over a great many of the Norman and Pictavian and English Barons to his Party which when King Henry perceived this very Author you have quoted here tells you Quod Rex Angliae in arcto positus Pacem fecit cum Rege Philippo that is was constrained to make Peace with him so that King Henry being in this streight the King of France and Earl Richard with the Barons of his Party forced King Henry to sign what Conditions they pleased for there it no such Clause so much as mentioned for the French Barons But make the most of it it is but a Temporary Relaxation of Allegiance from King Henry to his Barons and the King might surely thus release them if he pleased But it is plain they could not have acted thus without this Condition had been expresly inferred F. Well supposing King Henry to have been never so much constrained to the making of these Conditions and that it was his own Act that rendred it lawful it still proves as much as I urge it for viz. that neither the Kings of France or England then thought this Resistance absolutely unlawful for then the King 's own Act could never have dispensed with it But to shew you farther that the People of this Nation have ever maintained this Right of Resistance even with the allowance of our Kings themselves and for the doing
you quote it yet I much doubt whether it was of any validity being no doubt drawn up by the Barons then in Arms and which the King durst not at that time refuse and so he was indeed under a kind of duresâ— when he did it And besides pray mark the conclusion of this Clause this Resistance was to be Salva Persona nostra Reginae nostrae Liberorum nostrorum cum fuerit emendatum intendent nos sicut prius fecerunt Now how this Security here reserved for the King's Person could consist with that open War the Barons made afterwards against his very Person and casting off all their Allegiance to their Natural Prince and calling in Prince Lewis Son to the King of France I cannot understand F. I think all this may very easily be solved For in the first place K. Iohn was no more compelled to agree to this Clause than he was to the Charters themselves and if those were lawful and reasonable so was this Resistance too since there was no other way or means lest to preserve them in case the King should go from his own Acts and break through all he had done so that if the ends were lawful the means to preserve it must be so too or else those Charters would have signified nothing any longer than the King pleased As for the other part of the Objection that this Resistance was still to be saving the Person of the King and Queen c. and that this did not consist with the Barons after making War against his Person and casting off all Allegiance to him It was not their faults but the King 's if they could not perform this Agreement since the King by making War upon the Clergy Nobility and People by his open and notorious breach and recalling of these Charters calling in Strangers to his assistance and declaring he would no longer govern according to Law had made it absolutely unpracticable to preserve their Allegiance to him any longer so that they never cast off their duty as Subjects till he had cast off his duty as a King and then what was there else left to be done but to provide for their own safety by calling in a Forein Prince to their Assistance as soon as they could since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over and though many of them with their Captain Hugh de Boves had been cast away and drowned in a Tempest at Sea yet more were daily expected So that if Tyrants should suffer nothing for the breach of their own Charters and Oaths they would be in a better condition by their violation than the observing of them â—or by the making them they for the present quiet the Minds of their discontented Subjects and when they please may break them all again when they have got power if no body must presume to resist them or not think them as much Kings when they destroy and oppress their People as when they protect and preserve them by governing according to the Laws of the Kingdom But pray what have you to say against that general Resistance that was made by almost all the Bishops Barons and great Men of England against his Son Henry the Third about the frequent and notorious violations of the great Charters which his Father and himself had so often sworn to and confirmed and for which he had received such great Benevolences and Subsidies from the Nation M. Before I answer this Question pray take notice that I am not at all satisfied with your Arguments that when ever Subjects shall think themselves injured and oppressed by their Soveraigns that then they may cast off their Allegiance to them if they cannot have the Remedy they desire since this were to make them both Judges and Parties too in their own Cause which is altogether unjust and unreasonable between private Men much more between Kings and Subjects But passing by this at present I shall tell you my Opinion of this Resistance of Simon Montfort and the Earls and Barons his Adherents that it was down-right Rebellion and tended only to dethrone the King and make him a meer Cypher and to devolve the whole Government upon themselves as appears by the Oxford Provisions recited by so many Authors of that Age and which were afterwards condemned and consequently those violent means by which they were obtained by Lewis the Ninth King of France who in an Assembly of his Estates upon a solemn hearing of the whole difference between King Henry the Third and his Barons declared these Oxford Provisions null and void So far was this good and pious King from countenancing any Rebellion or Resistance as you term it of Subjects against their lawful Soveraign F. For all this I cannot find that the King of France did then at all condemn this defence the Earls and Barons had before made of the Liberties granted them by the great Charters for tho' he restored the King to his former Power by avoiding the Oxford Provisions yet at the same time when this was done as the Continuator of Mat. Paris tells us he expresly excepted the Ancient Charters of King Iohn Vniversâ—li seil Angliae concessae and from which per illam sententiam in nullo intendibat penâ—tus derogare and if he did not in the least intend to derogate from them he could not with any Justice condemn the only means the Barons had to maintain them after so many Trials and fresh Promises and Oaths of this fickle inconstant King all broken and laid aside so that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters as an Argument why they should not be any longer bound by them nor the Barons obliged to defend them as this Sentence of the King of France to render the Resistance the Barons had made in defence of the great Charters to be unlawful And that King Henry himself did afterwards allow this Resistance for good and lawful Pray see the Agreement which was not long after made in full Parliament in the 49th between the King the Prince and all the Prelates Earls and Barons of England whereby he obliged himself to observe all the Articles and Ordinances which had been before agreed upon at London in the 48th Year of his Reign And then follows this Clause in the Record which the Doctor himself has printed in his Appendix at the end of the first Volume of his Introduction to English History which I shall here translate out of French because it is very old and obscure it is thus And if our Lord the King or Monsieur Edward viz. the Prince shall go against the Peace and Ordinance aforesaid or shall grieve the Earls of Leicester or Gloucester or any of their Party by reason of any of the things aforesaid that then the great Men and Commons of the Land
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
the Doctrine of the Church of England but the known Laws of the Land F. I do not deny but the persons of the Kings and Queens of this Realm are and ought to be sacred and inviolable and yet no man will therefore say that they are irresistible too in all cases whatsoever as if the King for example should attempt to ravish Women or rob or murder men upon the High-way or in the Streets as the Ancient Historians relate of Nero and Commodus the Emperours and as is reported of the last King of Portugal and which was one of the reasons of the Estates of the Kingdom removing him from the Government And as our Henry the Fifth is related by our Historians to have robbed Men upon the High-way before he was King so if he had gone about to continue the same frollick after he came to the Crown I do believe his Person and all those that Robbed by his Commission had not been irresistible nor would it have been Treason within the Statute of the 25th of Edward the Third tho' he was then actually King any more than it would have been Treason had the like happened when he was Prince tho' he was expresly within that Statute and yet this would not have contradicted the Parliament◠Declaration in the 12th of Car. the 2d That neither the Parliament nor the People having Coercive Power over the persons of the Kings of this Realm since by Coercive Power must be here understood his being subject to the penalties of the Law or being called to an account by any ordinary Jurisdiction but there is a vast difference between that and Resistance for Self defence since I may use this against the violence of my Father in the State of Nature as I have already proved tho' I cannot justifie the punishment of my Father or calling him to an account as his Superiour therefore it is only in the King 's Politick Capacity that he can be said to do no wrong since you see he may personally commit the greatest Crimes imaginable tho' his person is unaccountable for want of a Superiour Power to call him to an account yet is it not so with those who act by his Illegal Commissions or Commands since having delegated the Executive part of his Regal Power to his subordinate Ministers and Officers 't is they that are accountable and punishable too by the Law of the Land in case they any way transgress or violate it by his illegal Commissions or Commands as I shall prove more at large by and by And as no War properly so called can be made against a single person but against a Man as he is aided or assisted by many others So this War against the King can only be interpreted of such Wars or Rebellion as are made against him in his politick capacity as he is King and Supream Governour of the Realm and the Commander of all the Militia thereof to Legal intents and for the defence thereof against Forein or Domestick Enemies nor was there any great fear according to the Ancient Legal Constitution of this Kingdom that this could often fall out or indeed he put in practice by the Kings of this Realm if we consider the Ancient Form of ordering the Forces or Militia of this Kingdom For in the first place I desire you to observe that by the Common Law of England before these Acts of the Militia the King himself could not but in case of Invasion or Insurrection Levy or keep on foot any standing Forces in England unless for Forein Succours which was usually by Contract with some great Lord or other Person or by Tenure against the Scotch and Welch and as for the Militia it was never reduced into Troops Companies or Regiments till the Spanish Invasion as will appear by all Acts of Parliament in the Statutes at large where Acts for the Assize of Arms were made only for Men to provide and have in readiness such Horses and Arms to shew them before the King's Commissioners when they should be required to take view of them a Regimented Militia being of no elder date than Queen Elizabeth King Iames the First did by Act of Parliament in the first year of his Reign repeal all former Acts for Assize of Arms and never established any thing in 〈◊〉 thereof So it stood till King Charles the Seconds time that these new Acts for the Militia wer made And to confirm this point beyond all dispute in all the quarrels between the King and the Barons and York and Lancaster the Parliament still refused to meet unless the Forces were disbanded that were raised upon those occasions Nor had any King standing Forces or Guards till King Henry the Seventh◠Time when that of the Yeomen was settled by a special Act of Parliament and what is most remarkable the Commons in the Long Parliament of Charles the Second did by their Votes entered upon their Journals declare and assert that by Law no Armed Force could be kept up in time of Peace except the Militia and as for Foreign Succours they were obliged to be carried immediately to the Port of their discharge and were not to exceed one Month at furthest from the time of their first Muster as for Castles and Forts within the Realm they were all supplied and defended by Tenures but for the Militia of old time it was in the Sheriffs of the Counties to make use thereof for the Execution of the Laws and defence of the Kingdom except in the cases aforesaid and it was Treason for any Subject to Levy Souldiers except by the King's Commission and in the cases aforesaid or so much as to Ride or go Arm'd as may appear by the Statute of Northampton in the 2d of Edward the Third much less was it lawful for them to take up Arms unless in their own defence against Illegal Violence and in such manner as the Law directs and it was one of the Articles that was adjudged to be Treason in Parliament against Mortimer that he Rid Armed to Parliaments and threatned the Prelates and Peers that did any thing against his will and caused the King to make War on his Nobles who advised the King to Levy War upon his Subjects See Coke's 4th Institutes Title Council-board where the 4th Article against the Spencers is that they falsly and maliciously had counselled the King to raise Horse and Arms in destruction of the good People against the Form of Magna Charta and so by their Evil Counsel would have moved War within the Realm to the destruction of Holy Church and of the People for their proper quarrel so that taking Arms by the King against his Subjects and the Subjects against the King was both alike against Law 2ly That taking Arms against the King in construction of Law is Levying War but this by no means extends to defensive Arms in maintenance of the Law which is allowed and enjoyned and that nothing else was here mean is plain
Question pray therefore satisfie me if you can those great Objections I have made First how this Resistance can consist with with that sacredness and inviolableness which you your self suppose to be due to the Kings person for either this Resistance in case of an invasion of our Civil Rights must be made even when the King's Person is actually present to back those Illegal Commissions or it must be forborn out of that due Reverence and Care of his Royal Person which the Law enjoyns If the former the King's Person is in danger to be destroyed whenever a factions Party is strong enough to rise in Arms and oppose the King's Commissions upon pretence of their being against Law But if on the other side this Resistance is not allowable when the King's Person is present then all such Resistance will signifie nothing since as soon as ever the King in Person shall appear in the Field to back his Commissions all your Defensive Arms as you call them must be immediately laid down unless they mean to destroy the Sacred Person of the King So that take it either way all Resistance is either Illegal or else unpracticable Secondly I can as little understand as I told you before how the Two Houses of Parliament should renounce all taking up Arms as well offensive as defensive against the King for themselves and yet should leave a Power in the diffusive Body of the Nation nay in any part thereof strong enough to make a Rebellion which they thought unlawful to exercise themselves Lastly By what Legal Authority the People or any part of it can justifie the taking up even defensive Arms since you your self acknowledge that no Arms can be taken up regularly but by the King's Authority and you have also disclaimed all taking up of Arms by his Authority against his Person or against those Commissioned by vertue of such Authority tho' I confess you except the Cases of Self-defence and in maintenance of the Law yet I cannot find those Exceptions allowed of in any of our Law-Books either ancient or modern F. I hope to give you such Satisfaction to every one of these Objections you have made as may serve any indifferent person therefore as to the first concerning the Sacredness of the King's person which I allow of as well as you we must in the first place distinguish between such Commissions as the King â—ssures by colour of Law when the Judges for example had given their Opinions in the Case of Ship-money for they being the sole Interpreters of the Law in the Intervals of Parliament I do acknowledge that their Determinations are not to be opposed by force but legally reversed when the next Parliament meeâ— and they are then to answer in Parliament for their false Interpretations and Opinions as Tresillian and his Companions did in the 11th of Richard II. and as the Ten Judges did upon the two Houses Declaration against Ship-Money and their Impeachment thereupon Thus tho' Mr. Hammpden refused to pay Ship-Money when demanded of him and rather chose to lye in Prison than pay it yet it had been downright Rebellion in case any resistance had been made by him against the levying of it But had this Tax been laid by the King 's sole Power without such colour of Law I doubt not but resistance might have been made even against those that were Commissioned by Him to levy it and if any one Town or Hundred were not strong enough to seize such Officers as presumed thus to levy it against Law the Sheriffs of every County in England might have raised the Posse Comitatus and seized all such Offenders and carried them to Jayl since the King's Commissions never did nor can indemnifie the persons so Commissioned in case the thing they were about to execute was contrary to Law and for this I need go no farther than the Old Mirror of Iustices which is owned for good Law at this day which speaking of Robbery and the several Kinds thereof has this passage which I shall here render out of the old Law French Into this Offence viz. Robbery all those fall that take other Mens Goods by Commandment of the King or any great Lord without the Owners consent Where you see there is no difference at all made between those that took away other Mens Goods by the Command of the King or any other but it was Robbery in all of them alike and consequently the Actors might be alike seized and punished as Robbers The same is also allowed by the Statute of the 20th of Henry the 6th whereby the King's Purveyors are forbid to take any thing to the value of 40 s. or under without ready Payment in hand of any person 〈◊〉 that it then should be lawful for every one of the King's Liege-People to retain their Goods and Chattels and to resist such Purveyors and Buyers So likewise the last Clause in this Oath viz. In pursuance of such Military Commissions seems to restrain it to such Commissions as were granted by the King's Authority that is according to Law and no other So that you see by the old Law of England the King's Commission did not render any man irresistible unless he executed it according to Law since the Constable of each Town might raise the Inhabitants thereof to seize such Wrong-doers and if they were not strong enough the High-Constable of the Hundred might raise the whole Hundred and in case they were not sufficient the High Constable might crave Aid of the Sheriff and assemble all the several Hundreds of the County till these Malefactors were seized So that as long as there were no standing Forces kept up in the Nation as I have shown you there was not till the Reign of King Charles the Second there could never be my Clashing between the King 's Civil and Military Commissions and this is one great Reason why no King of England since the Act de Tallagio non Concedendâ— was so hardy as to issue any Commissions to levy Money without colour of Law because they knew they were void in themselves and consequently would be resisted by the whole Nation So that this would not have been taking up Arms by the King's Authority against those Commissioned by him but only in order to bring those to Justice who had not any Commissions at all to do what they did the Law taking no Cognizance at all of the King 's Personal Commissions when absolutely against Law Nor if the King had joyned his own Presence to such illegal Commissions would it have mended the matter or rendered these Robbers of other mâ—â—â— Goods any more irresistible than they were before since the King can give no mâ—n Authority to do that which he has not Power to do himself and therefore face his single Person may be resisted in case he go about to Ravish Rob or Murder People then sure his joyning himself with such Men tho' never so numerous can never make
downright Treason to resist them And if this be so the last difficulty will be easily answered viz. By what Authority or Commission the People may make this general resistance To this I say That in the first place all Commissions granted to persons uncapable by Law to take them or for illegal purposes are to be supposed to be issued contrary to the Kings will and knowledge and therefore are to be look'd upon as void in Law and consequently the Persons not to be commissioned at all and so may be resisted by the Kings legal Officers all over England as I have already proved but if once the King should Countenance and Abett such Robbers by his own personal presence this resistance may then be made and justified by the whole nation not by the King's Authority against his Person but by another higher and precedent right viz. The Right of Self-defence and the Common-safety of the whole Nation which the People must have reserved to themselves at the first Institution of the Government or else all Monarchies would be alike and there would be no difference at all between absolute and limited Kingdoms M. I shall not trouble my self about other Kingdoms but this much I firmly believe that our Kings are absolute Monarchs notwithstanding they have limited themselves by Law to the manner of their administration of these grand essentials of Government the making of Laws and raising of money so that since the supremacy of the Government is still in themselves as Gods Vicegerents here on Earth and not as the Peoples Deputies I cannot but still understand this Oath in the strict litteral sence in which I am confident this Parliament meant it and therefore since they have expresly declared the Law to be so I will not be wiser than the Law especially since it is most agreeable to the Scriptures and the known doctrine of the Church of England that the Kings Person is not only unaccountable but irresistable too upon any pretence whatsoever and I think I am able to shew you that it is much better for this Nation or any other of a like constitution to suffer the worst that may happen from the ill Government nay Tyranny of our Kings than to involve themselves in blood and confusion by Rebellion and Civil Wars as often as the People shall judge though never so falsly that their fundamental Rights and Priviledges are forceably invaded by the King F. I think I have very expresly proved at our 5th meeting and that from undoubted Testimonies from our ancient Histories and Writers of the Laws of England as also from the whole constant Tenour of the Statute Law of this Nation that the Kings of England are not limited by their own concessions in the manner of the Administration of their Soveraign Power but from the first constitution of the Government and if the King be not the sole supreme Legislative power I care not what some Divines have writ to the contrary and since it is a Law question the supreme Authority alone ought to decide it And therefore it is no matter in this case what the Scriptures say nor yet the Church of England the former hath not and the latter cannot determine what is the Legal constitution of the Government in this Nation and where the supreme power resides and therefore suppose it to have been the intent of this Parliament never so much to bar all resistance of the Kings Person in any case whatsoever yet I am sure it was not in their power to do things absolutely inconsistent and contradictory in themselves as they must have done had they made the Persons of all Officers however commissioned by the King absolutely irresistible and much more if they had induced the Kings Presence with an absolute power for them to commit the most violent and illegal action and yet have supposed they had thereby altered nothing in the constitution of the Government though they had rendred it instead of a Limitted an Absolute Despotick Monarchy which as I am not yet convinced it was in their will so neither was it in their powers to grant if they would And therefore as I do not desire to be wiser than the Law so I cannot allow this to be any Law at all in the sense you would put upon it so that make the most of it this was but the unwary declaration of a Parliament of very young Men not long after the King 's coming in who thorough the great Abhorrence they had of the late Civil War raised by the Parliament under colour of the King's Authority were drawn in before they were aware to be a little too free in their Expressions not considering the consequences that might follow But when this sond Fit was over and that a standing Army had been raised in England under pretence of the Dutch War and that the King had by his Declaration of Indulgence made some approaches to an Arbitrary Power and in order thereunto would in that very Parliament in 1675. have imposed this very Oath or Test not only upon those who were to take it before but upon all Peers and Parliament Men before ever they sate in the Two Houses as also upon all Officers in Church and State to the very Justices of Peace so that the Disguise being now seen thorough it made divers of the Peers even those of greatest Loyalty and Wisdom stiffly to oppose the laying this Test upon all the Clergy Nobility and Gentry of the whole Nation as it was then the design of the Bishops and Court-Party to have done Which vigorous Opposition tho' in the smaller number yet met with such good success that the Bishops and Lords of the contrary Opinion could not then carry it and the Eyes of the whole Nation were afterwards so much opened that the King durst never offer this Test any more to either of the Two Houses So that if you will but consider this matter of Fact how this Test was first obtain'd and how afterwards when it was thought to be intended to set up Arbitrary Power was also as vigorously opposed by them and their being sensible that the Parliament had gone too far already in doing what they had done I think none can take this Oath in your sense except those Clergymen who will allow none to be of their Church but those who are for this Passive Obedience according to their prejudicate Notions of Loyalty or else some few mercenary Lawyers who in hopes of Preferment which they can never otherwise obtain would interpret this Oath in such a sense as should make us all Papists and Slaves too whenever the King has a mind to it Now which of these extreams are worst that the people should judge for themselves tho' perhaps erroneously when the King or those acting by his illegal Commissions shall violently assault them in their Religion Lives Liberties and Estates that thereupon they make Resistance with one consent when they find themselves brought to this
and Lord Lieutenants and if they had refused to answer positively to those questions proposed to them I know no other penalty they had been liable to more than being put out of Commission which sure is no punishment but rather an ease and tho' I do not defend those evil Ministers that put the King upon this Method of distrusting and disobliging his best Protestant Subjects I mean those of the Church of England by putting them out and putting in either Papists or Fanaticks in their steads yet all that own themselves of that Communion ought to have been of more loyal Principles than to have taken up Arms as some of them have done upon pretence of standing by the Prince of Oranges Declaration against these abuses F. I see though you cannot directly justifie the examining of the Lords Lieutenants and Deputy Lieutenants and Justices of the Peace about taking away the Penal Laws and Test and turning those out of Commission that refus'd yet you strive to mitigate it as far as you can by making it part of the Kings Prerogative to put in and out what Judges Justices and other Officers he pleases well granting this to be so yet sure you cannot deny but that the clositing of Judges and all other Officers you have now mention'd and putting those out of Commission that refus'd to comply with the Kings Will and that for no other reason was sure a strange abuse of that Prerogative and the excuse you make that the persons examin'd had a liberty to refuse whether they would give any positive answer or not is yet more trivial since it is very well known that as well those who gave doubtful answers or refused to make any answer at all were as much turned out as they who positively denied to comply with the Kings demands so that no answer was looked upon as satisfactory but such as seemed to give up all freedom of Elections and Votes in Parliament none being to be chosen by the Kings directions but such as would engage before hand to repeal the Test and Penal Laws and I think you will not deny but that the King by thus examining all these Magistrates and Officers you now mention and by turning those out that refused to comply did all he could to hinder the free Election of Members to serve in Parliament and the freedom of giving their Votes when they came thither and the King might as well another time have declar'd that he would have no Members chosen but such as would agree to take away the Statute de Tallagio non concidendo or any branch of Magna Chartâ— which he should think fit to have repeal'd and as this strikes at the very fundamental constitution of the Government viz the free Election of Parliament men so it was inserted among the Articles against Richard the II. that he had caus'd the Sheriffs to return whom he pleas'd for Knights of Shires as I have already shewed you But what say you to the Kings late calling in almost all the Charters of Cities Towns and Corporations in England and putting in Popish or Fanatick Officers and Magistrates into the rooms of those that were turn'd out only to influence Elections and to procure what persons he desired to be return'd for Parliament men is not this a grand breach of the fundamental constitution of the Kingdom thus to take away the legal Rights and Priviledges of these Corporations for no other cause than to procure the King such Parliament men as he had a mind to M. I beg your pardon I forgot to mention this sooner and though I will not take upon me absolutely to defend the Legality of it much less the design for which it was done since I grant that it was in order to destroy or at least to humble the Church of England yet since iâ— was done by colour of Law and Judgment of the Court of Kings Bench and no more than what has been formerly done in the Reign of King Charles I cannot see how the Noblemen and Gentlemen lately in Arms could defend their rising upon that ground unless they would also at the same time justifie the lawfulness of the Plot and Rebellion intended in the same Reign and in which so many of the Whig Nobility and Gentry were deeply engaged F. To answer what you have said in vindication of this great violation of one of the fundamental Rights and Liberties of the Kingdom I must in the first place tell you that as I shall not now examine into the matter of Law whether a Corporation can forfeit it's Charter for misdemeanours or not much less shall I concern my self whether it were done by or without colour of Law or the Judgment of the Court of Kings Bench since it is notoriously known that none of the Judges were permitted to sit there nor any new ones put in but such as would blindly agree to all the Court would have done and therefore I value nor any thing they did nor think it one â—ot the more legal for their Judgments nor is it any excuse that the same thing was done in King Charles Reign and therefore might as well be done now without any rising against it for though I must tell you I look upon the taking away of the Charters from the City of London and the other Cities and Corporations of the Kingdom one of the most arbitrary and illegal acts of that Kings Reign yet there were several reasons which made it unlawful for the Nation to rise then yet it might not be so now as in the first place because most of those Charters were either willingly surrender'd by the members of those Corporations or else were declared forfeited by due trial and Judgment of Law whereas it was much otherwise in this Kings Time when notwithstanding that all the Cities and Towns Corporate in England had but a few years before taken out new Charters to their great trouble and expence they were now summon'd anew to surrender these again for no other reason but because it was the Kings pleasure it should be so for who can imagine that all the Corporations of England could have forfeited their Charters in so short a time as three or four years and they were plainly told that the King must and would have them and that it was to no purpose to stand out and therefore it was no wonder if all the Cities and Corporations of England were forced to submit patiently to this violation since they found by experience the Judges were ready to give Judgment against them right or wrong And besides this I have already laid it down as a Maxime that no resistance whatever is to be made till matters become desperate and all other means are become absolutely ineffectual which I think they were not as long as King Charles lived who besides the inconstancy of his humour which seldome persisted long either in well or evil doing especially if the ill consequences of it were well laid
of the same Author that there is no Remedy lest against the King in case he does wrong or oppresses any man but only petition and after that the only Remedy is expectet Deum ultorem in case he refuse to do right this is to be only understood of Remedy in ordinary Courts of Justice and by ordinary means for otherwise this Author would contradict himself whereas he tells us expresly as I have already noted out of Bracton and Fleta in Populo Regendo Rex habet Superiores Legem per quam factus est Rex Curiam suam viz. comites Barones that is the highest Court of Parliament called by way of eminency the Earls and Barons who he here says debent ei sâ—â—â—num imponere in case he transgress the Law and therefore if he go on still wilfully to violate all the Fundamental Laws of the Kingdom by the same Power by which they may put this Bridle upon him by the same Power may they also declare in case of manifest and down-right Tyranny that he has forfeited his Crown and tho' they cannot depose him as his Superiours yet they may declare that he hath by violating the Original Contract between him and his People ceased to be King and that both themselves and all his Subjects are discharged of all Allegiance to him And agreeable to this Opinion the Old Mirrour of Justices tells us in the place I have formerly cited at our third Meeting that tho' the King have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Judge for him i. e. none of his Justices can be both Judge and Party therefore it is agreeable to Right that the King should have Peers or Companions to hear and determine in Parliament all Writs and Complaints concerning the wrongs of the King Queen and their Children of which wrongs they could not otherwise have common Right Now can any one imagine that any private person might have Right against the King or his Queen and Children and that there should be no Remedy left for the general Oppression and Violation of the Laws and Rights of the whole Nation in general and that whether the King would or not for if it had lain in his power to have hindred it by dissolving the Parliament this Law had been wholly in vain so that this will serve to answer your other Quotation out of Bracton concerning the King's Charters or Grants for so I suppose factis is to be rendred in this place that no private persons no not the Kings Justices could in those days take upon them to dispute about or interpret their meaning but it was to be left to the King himself but how not to his private Interpretation in his Chamber or Privy Council but to his Interpretation in his Great Council in Parliament which as I proved in our fifth Meeting consisted of all the great Officers of the Crown together with the Judges who the King being present were in the nature of Counsellors or Assessors to him and there all matters not determinable in ordinary Courts were heard and determined and of this nature were the King's Charters tho' now that Power since the dissolution of that great Court is fallen partly to the Chancery and partly to the King's Bench who do both of them at this day judge of the King's Grants whether they are according to Law or not and can declare them to be void if they are not M. This is right Rumâ— Parliament Doctrine or rather worse if worse can be for whereas Bradshaw and those Mock-Judges appointed by that pretended Iuncto plainly asserted an Inherent Right in the People of England and the Parliament as their Representatives to call the King to an account and to judge and condemn him as his Superiours you to evade that Doctrine as being expresly condemned both by the first and second Parliaments of K. Charles the Second in the Statutes I have already cited do fall into a much more dangerous Errour for whereas those men supposed it was only in the Parliament and in themselves as their Commoners to judge and depose the King and to put him to death for Tyranny you take this Power out of their hands and place it in every private person which you call the diffusive Body of the People which are not only more fallible but more dangerous Judges as being more apt to errours and mistakes but if you would have better consider'd the words and meaning of that Act I have formerly cited of K. Charles the Second for attainting the Regicides you would there find these words in the Preamble to that Act expresly against you Whereby it is by both Houses of Parliament declared That by the undoubted and Fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament nor the People collectively or representatively nor any other persons whatsoever ever had have hath or ought to have any Coercive Power over the Persons of the Kings of this Realm Where you see by this Act that all Power of Judging or Deposing the King is expresly renounced not only for the Two Houses of Parliament but for the whole People whether collectively or representatively or for any other persons whatsoever But as for what you say that the King in case of a wilful and constant Violation of the Fundamental Laws of the Kingdom is not then deposed by the People but deposes himself and thereby renounces the Government over them this is but a meer fallacy and an evasion which you and those of your Party have now found out to make the King to have forfeited his Crown without any Judgment of the Parliament or People for who can believe a King will ever depose himself or do any Act besides an evident destruction of the People or a making over his Royal Power or else an express resignation of the Crown whereby he can ever be construed to have parted with it and therefore your Notion is no better than the equivocation of the Jesuits who if they are asked whether it be lawful or not for Subjects to murder their Kings will tell you by no means but it is still with this mental reservation that Princes Excommunicated and Deposed by the Pope do thereby cease to be Kings and therefore their Subjects being thereby discharged of all their Allegiance to them they may not only be resisted but murdered by them as Tyrants and Usurpers Put the People here instead of the Pope and see if the Parallel does not hold exactly But as to your argument from a necessity of resistance to a necessity of laying the King aside because he has forfeited all Rights to the Crown upon his persisting in the violation of the Fundamental Laws and refusing to make the People satisfaction and this upon the account of I know not what original contract for as to the Coronation Oath I see you
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
soon be encouraged to Invade the Kingdom nor will the People be at all concerned to assist such a King against them since they can be in no worse a condition under a stranger than under him But as for the ancient Superiority of the Law and Court of Barons there mentioned to be over the King that still seems to me to be only a Moral and not a Co-ercive Power since the law alone is but a dead letter and can force no man of it self without the power of Men to support it and there can be no Interpreters of this Law but the King and his Judges out of Parliament and the Parliament sitting that alone that is not the House of Peers or Commons alone or both together but the King Lords and Commons that can interpret Laws but let the power of this Court of Barons have been anciently what it will it seems to relate only to the Peers or Tenants in Capite and not to the Commons at all since none ever heard them called the Kings Companions but suppose it so it is now gone and as for any co-ercive power in the two Houses over the King I have already shewed you that the two first Parliaments of King Charles the second have expresly renounced it from themselves and the whole Nation and therefore I must still stick to my first conclusion that the King is not to be resisted upon any Terms whatsoever neither can forfeit his Royal Dignity by certain general antiquated Laws or by the forced interpretations of some doubtful obscure passages in our ancient Lawyers But I shall now proceed to prove F. I pray give me leave to reply to what you have now said before you go to any new Head First In answer to what you have now objected against the Genuineness of this Law of Edward the Confessors it is certain that it is found in these very words with very little alteration in all the Copies of King Edwards Laws only in Hoveden instead of Rex quia Vicarius summi Regis it is Rex atque Vicarius ejus which is no great difference and may relate to the Kings Lieutenant in his absence beyond the Seas as there was often occasion for our Kings after their Accession to the Crown of England and therefore tho' I grant some Clergy-men they having then all the learning of the Nation among them might draw up this Law into the form it was made and so render it as advantagious for the Church as they could yet that this Clause was not the addition of any ignorant Monk as you suppose will appear from this that it is Recorded by Hoveden who lived and wrote about a hundred years after it was thus confirmed and we cannot suppose all the copies of these Laws to be lost and one single copy to be left and corrupted in so short a Time and tho' it is true this Law is not found among those set forth in the last Edition of Iugulph yet does it not therefore follow that there was no such Law ever made or confirmed by King William since those Laws in Ingulph seem to be more like an Epitome of the criminal and feudal Laws confirmed or added by that King than an exact body of all the Laws of the Confessor those having been writ in Latine and confirmed by K. William in the fourth year of his Reign whereas this Copy was published in French for the use of the Kings Norman and French Subjects and that long after K. Williams coming to the Crown for Ingulph tells us That after Domesday book was made he brought those Laws down from London in the French Tongue in which they were put forth lest he or any of his Monks should through Ignorance happen to offend his Royal Majesty by an unwary breach of them But as for the faults in the Chronology in the Story of Charles and Pipin in all the best Copies of these Laws this Letter is said to be written by them to the Pope and not to K. William at all and then it will be at most but a miss-nomer or errour of the Transcriber putting in Pope Iohn for Zachary but if you will have my opinion of this matter I do freely grant that this passage in the Law concerning Princes writing to the Pope about the deposition of K. Childerick might be an Addition of those Monks who first Transcribed those Laws and made short glosses upon them and yet the law it self might be genuine notwithstanding and if the Law it self be so it must be understood in a larger sense than what you would put upon it for sure by defending of his Kingdom must be meant not only the bare defending it against foreign Enemies but also against the wrongs and oppressions of his own Ministers and Officers which if he suffer by a wilful negligence or on seâ— purposes he will as much offend against this Law as if he had done it himself and so will lye under the same penalty Much less will these passages concerning defending the Clergy and reverencing the Church render this Law either void or impracticable for suppose you take Populus Dei in the strictest sense to signifie the same with Servu Dei which I grant always to signifie the Clergy in our ancient Saxon Laws and Charters yet all this does not make this Law void and impracticable since sure maintaining the Worship of God is one part of the duty of a Christian King nor can this be well performed without some Men set up for that purpose and that these Men cannot attend their Sacred Function without being maintained in their just Rights and Liberties neither is it any consequence that these Clergy must always consist of the very same Orders of Men as when this Law was made so that suppose the Monks were then held as a necessary part of this Clergy it will not follow that it was not lawful for the State to alter or take them away for then no Religious Order that was then in being could have been suppressed afterwards which no Papist will say so that the meaning of this clause in the Oath is no more than that the King should from time to time defend all those Clergy such which the Nation that is the Legislative Power should think useful and necessary for Gods service without being tyed to any certain Orders or Degrees of Men provided those that are particularly ordained by Christ and his Apostles for the service of his Church be inviolably maintained and preserved so likewise for the Church it self granting which may also be questioned that at the time when this Law was made or confirmed Popery was come to its height and so was the established Religion of the Nation and consequently that by the Church here mentioned was then to be understood the Romish Church or Religion as we now call it yet does it not follow that the King by this Law is to forfeit his Crown if he ever alter for the Law only says in
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or
to private Churches and if his Nobles or Followers had unjustly dissieâ—ed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to â—are their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâ—ton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâ—ietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
But it is very strange to me that none of them deposed any thing concerning their seeing any Milk come from Her Majesties Breasts after she was Delivered And perhaps there was good reason for it for I have had it from good hands that she had none afterwards whatever she had before the reason of which deserves to be enquired into since it is very rare But as for the Mid-Wife her deposition is equivocal That she took a Child from the Body of the Queen She is also a Papist and consequently a suspected witness in this cause Whereas all this might have been prevented had the Queen were she really with Child been perswaded to be Delivered not within the Bed but upon a Pallate where all the persons whose business and concern it was to be present might have seen the Child actually born nor needed there to have any men been by though I have heard that the late Queen of France was Delivered of the present King the Dake of Orleans not being only present in the Room but an Eye-witness of the Birth And so sure if somewhat of this nature had been done it might have saved a great deal of dispute and bloodshed which has already or may hereafter happen about it And therefore I do not at all wonder that the Prince of Orange should not take this partial Evidence that has been given for sufficient satisfaction so that whether this Birth of the Queens was real or not I shall not now farther dispute It is sufficient that if His Highness and His Princess had just and reasonable suspitions of an Imposture whilst they remain under them they had also a just cause of procuring a Free Parliament to examine this great affair and also to obtain it by force since it was to be got no other way M. I need not further dispute this business of the Prince of Wales with you since I durst appeal to your own Conscience whether you are not satisfied notwithstanding these supposed indiscretions in the management of the Queens Delivery that he is really Son to the Queen and I think it would puzzle you or I to prove the Legitimacy of our own Children by better evidence than this has been and I think all those of your party may very well despair of producing any thing against it since the Prince of Orange himself has thought it best to let it alone as knowing very well there was nothing material could be brought in evidence against him But I shall defer speaking further to this Head till I come to consider of the Conventions setling the Crown upon the Prince and Princess of Orange But before I come to this I have many things further to observe upon the Princes harsh and unjust proceedings with his Majesty and refusing all terms of Accommodation with him upon his last return to London In the first place therefore I must appeal to your self whether It were done like a Nephew and a Son-in-Law after the King was voluntarily returned to White Hall at the perswasion of those Lords who went down to attend him at Feversham when he had had scarce time to rest him after his journey and the many hardships he had indured since his being seized in that Port and when he had but newly sent my Lord Feversham with a kind Message and Complement to the Prince inviting him to St. Iames's together with some overtures of Reconciliation as I am informed the Prince should make no better a return to all this kindness than to clap up the Messenger contrary to the Law of Nations as his Majesty observes in his Late Paper I now mentioned And should without any notice given to the King of it order his men to march and displacing his Majesties Guards to seize upon all the Posts about White-Hall whereby his Majesties Person became wholly in his Power And not content with this he likewise dispatcht three Lords whose names I need not mention to carry the King a very Rude and Undutiful Message desiring him no less than to depart the next Morning from his Pallace to a private House in the Countrey altogether unfit for the reception of his Majesty and those Guards and attendance that were necessary for his security Nor would these Lords stay till the Morning but disturbing his rest delivered their Message at Twelve a Clock at Night nor did they give him any longer time than till the next Morning to prepare himself to be gone and then the King was carried away to Rochester under the conduct not of his own but of the Princes Dutch Guards in whose custody his Majesty continued for those few days he thought fit to stay there till his departure from thence in order to his passage into France by which means the Prince hath render'd the breach irreconcileable between his Majesty and himself for whereas if he had come to St. Iames's in pursuance of the Kings Invitation and had renewed the Treaty which was unhappily broke off by the Kings first going away there might have been in great probability a happy and lasting reconciliation made between them upon such terms as might have been a sufficient security for the Church of England as also for the Rights and Liberties of the Subject which you so earnestly contend for whereas by the Conventions declaring the Throne vacant and placing the Prince and Princess of Orange therein they have entail'd a lasting War not only upon us but our Posterity as long as his Majesty lives and the Prince of Wales and his Issue if he live to have any are in Being F. I confess you have made a very Tragical relation of this affair and any one that did not understand the grounds of it would believe that King Iames being quietly setled in his Throne and the Prince of Orange refusing all terms of reconciliation had seiz'd upon his Pallace and carried him away Captive into a Prison whereas indeed there was nothing transacted in all this affair which may not be justified by the strictest Rules of Honour and the Law of Nations for the doing of which it is necessary to look back and consider the state of affairs immediately after the Kings leaving Salisbury and coming to White-hall where one of the first things he did after he was arrived was to issue out a Proclamation for the calling a new Parliament which was so received with great satisfaction by the whole Nation and immediately upon this the King sent the Lords Hallifax Nottingham and Godolphin to treat with his Highness upon those Proposals of Peace which he then sent by them and to which the Prince return'd his answer the heads of which are very reasonable without demanding any other security for himself and his Army than the putting of the Tower and Forts about London into the Custody of that City now pray observe the issue of all those fair hopes before ever the terms propos'd by the Prince could be brought to Town the King following the ill advice of the
Popish Faction instead of suffering the Elections for Parliament-Men to proceed as he had promised and as was hoped for by us all on a sudden he order'd the rest of the Writs for Elections that were not sent down to be burnt and a Caveat to be entred against the making use of those that were sent already into the Country and at the same time he sent Order to the Earl of Feversham to disband the Army and dismiss all the Souldiers with their Arms. But I had forgot to put you in mind that just before this the King had sent away the Queen with the Prince into France and that she carried the Great Seal of England along with her whereby it was plain the King intended to put it wholly out of his power to Issue out any Writs or Pass any publick Act wherein the Great Seal should be used and that this Seal was carried away appears by its being not long since drawn up out of the Thames by a Fisherman's Net near Lambeth Bridge where it 's supposed to have been thrown in by the Queen or some of Her Attendance in Her passage over the Water and farther that the King was resolved wholly to quit the Government of this Kingdom at least for the present appears by his so speedy following of the Queen within three days after stealing from his Pallace by Night in a Boat to Gravesend and from thence in a small Vessel to Feversham where how he was seis'd by the Mob of that Town and afterwards return'd to London as you have set forth I need take no further notice Now this being a true and fair Narrative of the whole Matter I shall only offer two or three questions to your consideration and desire you would give me a fair and satisfactory answer to them First pray tell me whether it was not the Kings fault that it was rendered impossible for Parliament-Men to be elected by burning of the Writs and sending away the Great Seal Secondly whether the King by first stealing away did not plainly confess himself conquer'd by the Prince and did thereby Abdicate the Government also by his obstinate refusal to redress the Grievances of the Nation hath forfeited his Crown and all Allegiance from his Subjects and was not after this to be own'd as King of England either by the Prince of Orange or any body else and therefore whatever treatment he after this received from the Prince it was not to be looked upon as done to a Lawful King but a Conquered Prince and his Highness might not only justly refuse to treat with him any more as a Crowned Head but might also have justified not only the taking him Prisoner but sending him into Holland if he had pleas'd but instead of this the Prince only desir'd his removal out of Town from that conflux of Papists that flocked to him and by securing his Person to put it out of their power to play an after-Game and rally the late disbanded Army of whom there was at least twenty thousand of the Scotch Irish and English who would have stood by the King till the last and therefore the English as well as the Dutch Counsel about the Prince did not think it safe for him to come to Town as long as the King had his Guards about him at White-hall since they might have been increased to an Army whenever he pleased And though I grant good breeding and manners especially to Kings as also respect from a Son-in-law to a Father are duties incumbent upon Princes as well as private Men yet when these lesser things stand in competition with their own welfare and safety as also of the whole Nation for which the Prince was now engaged if he might for these ends justly require the removing and securing the Kings Person it was no great matter what time of night he had notice to remove though this was not done neither with any design to affront or surprise him but happen'd indeed through pure accident for when it was resolved that the Princes Guards should March to London and secure White-hall it was also resolved that the King should have notice to remove and since it was not thought fit to let him know it till the Posts were all secur'd the ways being very deep and dirty between Windsor and London the Dutch Guards commanded by Count Solms could not reach the Town till past ten at night and after that it was near twelve before the English Guards about White-hall could be drawn off without fighting and till that was done it was not thought at all proper or safe to deliver to the King the Princes message for his departure so that indeed it was not of any design that either the Prince and his Counsel who ordered it or of these Lords who very well understand good breeding thus to deliver their message to him at that time of Night But tho he was in Bed yet that he was not a sleep is very probable since he had not been above half an hour in Bed and it is not very likely he should be a sleep when he very well knew before of the arrival of the Princes Troops about White-hall and therefore could not be without too much concern about it presently to compose himself to sleep But as for his removal from London it is plain that his Highness was so far from owning or receiving the King in the same capacity he was in before his departure that as soon as ever he heard he was at the Earl of Winchelsea's and about to return to London he sent away Monsieur Zulestein with a Letter to let him know that he desired him not as yet to come to London but to stay at Rochester till he himself should come to Town but Monsieur Zulestein missing of the King by the way he came to White-hall yet could not but know that his being there was not with the Princes consent since the same Gentleman followed him thither and there delivered him the Princes Letters so that this second Message by these Lords could be no new thing or surprise to him yet that his Highness never intended or acted the least violence towards the Kings Person may appear by this that he left it to the Kings choice what place he would go to as also what Guards or other Attendance he would take with him and the King refused to take his English Guards with him though they were offer'd him and indeed these Dutch Guards that attended him might in his Majesties judgment be very well trusted they being as well as their Officers for the most part Papists but that the Prince did not intend either to detain his Majesties Person as a Prisoner may appear in this that whilst he remain'd at Rochester none that would were debarr'd from access to him and that the Officers and Souldiers of the Guards were order'd to be under his command and every Night to take the Word from him and had it not been for the Kings
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
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
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
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
the power of the two Houses of Parliament I am very well satisfied that such a Declaration must be void in it self since I have sufficiently proved that there was no such Law of Succession ever setled by any general Custom or Common Law since it hath been near as often broken as observed and as for any positive or Statute-Law enacting any hereditary right of Succession you do not so much as pretend to show it so that I think I have sufficiently proved the three Propositions I laid down viz. That ever since the time of Edward the First though the Crown has been claim'd by right of blood yet has it not been very often enjoy'd by Princes who had no just pretence to that Title Secondly that the two Houses of Parliament have often notwithstanding that claim placed or at least fixed the Crown upon the heads of those Princes who they very well knew could have no hereditary right to it Thirdly That such Princes have been always taken for lawful Kings all their Laws standing good at this day without any Confirmation by their Successours M. I did not think that you who were so great an admirer of the two Houses of Parliament should now be so much against their power in joyning with the King to declare what the true right of Succession to the Crown is and hath ever been from time beyond memory But I see Acts or Declarations of Parliament signifie nothing with you if they are against your Hypothesis or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth and King Iames the Ist. Whereby they are declared both by the Law of God and Man undoubted Heirs of the Crown And the last Act I cited viz. That of King Iames the Ist. doth sufficiently confute your Notion of a Vacancy of the Throne Where it is expresly declared That immediately upon the decease of Queen Elizabeth the Crown of England with all the Dominions belonging to the same did by Inherent Birth-right and Lawful and Undoubted Succession descend and come to his Majesty King Iames. So that if there then were no Vacancy of the Throne I cannot see how there could be any such thing now the next Heir to the Crown be He who they will being certainly not so far removed from King Iames the Ist. as himself was from King Henry the VIIth under whom he claimed F. I must still confess my self to have a great veneration for the solemn Declarations of King and Parliament made by any Statute yet not so as to Idolize them or to look upon all their Declarations as infallible I grant indeed that whosoever is by them Declared and Recognized for King or Queen of England is to be acknowledged and obeyed as such by all the Subjects of this Kingdom without farther questioning his Title But if not content with this they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right by the Laws of God and Nature When I plainly find from the Holy Scriptures as well as the History of matter of Fact and the knowledge of our Laws that they have no other Tiâ—le than what the Laws of the Land have conferred upon them and therefore you your self cannot deny but that it was gross flattery in the two Houses of Parliament to declare that Richard the IIId for-example had a true and undoubted Right to the Crown by the Laws of God and Nature and also by the Laws and Customs of this Realm when you know he was a notorious Usurper upon the Rights of his Brother King Edward's Children now how can I be assur'd that the like Declaration made to Kâ—ng Iames the I. was not lâ—kewise a piece of Courtship of the Representative of the Kingdom to this King then newly setled in his Throne since we find the People of this Nation when they are in a kind fit never think they can say or do too much for their Princes and therefore I must freely tell you that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm when we can find from History that it has never been so held for above four hundred years at least and therefore not beyond the memory of Man as you suppose since that must be before the Reign of Richard the First as I have already proved to you at our Eighth Meeting But to answer your Objection against the vacancy of the Throne I do freely grant that aâ— often â—s the Crown descends by lineal Succession there can be no vacancy of the Throne as it did in the Case of King Iames the First yet doth it not therefore follow that there can never be any such Vacancy in any Case whatsoever since certainly it may so happen that all the Heirs Male of the Blood-Royal may fail as it happen'd in the Case of Scotland when Iohn Balioll and Robert Bruce contended for the Crown which not being to be decided by the Estates of the Kingdom they were forced to referr it to our King Edward the First and as also happen'd in France when Philip of Valois and our Edward the III d both claim'd the Crown which was decided by a great Assembly of the Estates of France in the favour of the former who claim'd as Heir of the Male Line against King Edward who was descended by a Woman and if King Iames's Abdication or Forfeiture call it which you will is good pray give me a sufficient Reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland this being as much or more a limited Kingdom thau either of the other ever were M. I do not deny that but pray shew me any sufficient Reason why the Convention should now Vote a Vacancy of the Throne since there was certainly an Heir Apparent not long since in England and I hope is now safe in France who ought to fill it or at least there should have been some sufficient cause alledged against him to prove that he was not true Son either of the King or Queen and till this was done they could not with any Right or good Conscience place any other Relation of his in the Throne since every Person ought to be esteem'd the Son of that Father and Mother that publickly own him for such for it is a Maxim in our as well as your Law Filiatio non potest probari F. How this could be performed without first declaring the Throne vacant I cannot apprehend for you your self must grant that there have been great doubts and suspitions of the Realty of this Prince of Wales and therefore that being one great reason of the Prince of Orange's coming over The truth of this Child whether he was really born of the of the body of the Q. is first to be examin'd and determin'd before he can be declar'd K. of England in the
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
Land though in words you deny it for every hereditary right is either a continued Usurpation by force which can give no right at all or a right by Law which is by the consent of the People to entail the Crown on such a Family which certainly is to make a King by Law that is by the consent of the People But if you will suppose that it was the Authority of the first King alone who thus intail'd the Crown upon himself and his right Heirs I desire you would shew me how the Crown could be so intail'd without the consent of the People so as that his Successor may not alter it and give it by his last Will or Testament to which of his Sons or Daughters he pleases since Sir Robert Filmer himself acknowledges that a testamentary heir to a Crown in an absolute Monarchy is as much by Divine right as if he had come in by Succession as appears by the instances he gives in Seth who could have no right to succeed his Father Adam in the Government of Mankind while Cain his Elder Brother was alive by the Will of Adam his Father the like I may say of Solomon who by his Fathers Crowning him King in his life time and thereby making him his Successor gave him a right to Rule over Adonâ—jah his Elder Brother so that I may very well ask you if the present Law of the Land did not proceed from the free consent of the People testified by long Custom or express Declaration of the People by their Representatives in Parliament I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases as that it should be Lawful for the English Saxon Kings to exercise this Prerogative as Dr. Brady supposes they did before the Conquest without the consent of the Great Council of the Nation So that I think I may much better ask you what that Law was and who made it which you suppose to make Kings prior to and independent from the consent of the People since if there be any such Law it is either as yet unknown to Mankind or else all those who are once possess'd of Kingdoms have an equal Title to them by Divine Right But indeed it is only some Divines who were more scrupulous than knowing in Politicks who first started this question whereas indeed there is no such great Mystery in it for that Law by which the first King of England for Example was Elected was not in being before the King was made nor yet was the King in being before that but when the first King was made so by the consent and election of the People the King and the Law that made him so began both together that is the People by chusing of him to Govern upon certain Conditions and he by accepting the Crown upon those Conditions was that Law by which he then took the Crown and by which it has been held ever since that time So that if the Crown ought to be enjoy'd according to a legal right and that there must be some Judges appointed of this right when ever any Disputes may happen about it either every pretender to the Crown must judge for himself and then he will be both Judge and Party in his own Cause or else it must be left to the conscience of every individual Subject in England to side part with what Party he pleases that may thus pretend to it and so there may be a dozen Competitors for the Crown at once and all with equal right as for ought that any body knows or lastly this right must be left to the determination of some Civil Judges to judge whose Right it is and who can these Judges be who shall thus judge what are the antient Laws of Succession and Rules of Allegiance but the Great Council of the Nation therefore if they have already declar'd and recogniz'd King William and Queen Mary to be lawful King and Queen of this Realm I think every Subject of the same may very well justifie their Swearing Allegiance to them not only by vertue of this Statute of the 11th of Henry the VIIth which requires Allegiance to be paid to the King in being but also from the equity and reasonableness of the thing it self to hinder the Nation from falling together by the ears and to entail Civil Wars from Generation to Generation if the Subjects were oblig'd by their former Oath of Allegiance to the King de jure to endeavour to restore him by force of Arms and therefore the Preamble to this Statute very well and truly sets forth that it is not reasonable but against all Law Reason and good Conscience that the Subjects going with their Sovereign Lord to the Wars any thing should lose or forfeit for doing this their true duty and service of Allegiance to the King for the time being M. But pray tell me is not this very strange and unjust and that by your own showing that a Prince should have a legal Right and Title to the Crown without a right to exercise the Authority belonging thereunto for they must now pay Allegiance to the King in being let him be never so great an Usurper so that indeed the preamble to this Act is expresly false since I think it is very unreasonable nay against all Law Reason and good Conscience to Swear Allegiance to an Usurper since by that means not only all good Subjects would be put out of a capacity of endeavouring to restore the King de jure to his Throne though never so unjustly depos'd or driven out as in duty they ought but also those who were instrumental in this Rebellion and in depriving the Lawful Prince of his just Rights may not themselves endeavour to restore him which would put them out of all possibility of making amends for the wrong they have done him and of making restitution by again restoring him to his Throne F. If this be all the difficulty that is left upon your mind I doubt not but to prove to you not only from the Law of the Land that Allegiance may be lawfully Sworn in this Case but also that it is for the common happiness and peace of the Nation which is the main end of all Government that it should be so and therefore I shall first freely grant that though it is Rebellion unjustly to deprive a King and his right Heirs of the Crown and that those who had a hand in it are bound in conscience to endeavour to restore him or them to their just rights again yet this must be done by no other methods but what are consistent with the publick peace and safety of the Common wealth for if a King de facto has once got possession of the Throne and has been Crown'd and Recogniz'd by Parliament from what has been already proved I think it is very plain that they ought to obey him not only from the
pleased to imagine Since therefore the Business must be wholly done by force I shall in the next place consider all those Suppositions you have laid down as well in respect of the French as Irish who are the only Hands that I see likely at present to do this Work First as to what you say that the King would be too wise then to bring over along with him so great numbers of the French and Irish Nations as shall be able to make an entire Conquest of this Kingdom least thereby both he and his Crown may lie wholly at their Mercy when the Business is done you have hereby granted as much as I desire For if their Majesties are never like to be without an Army in England of at least Fifteen or Twenty Thousand Men as long as this War lasts and that the Militia of this Nation which are almost totally against King Iames's Interest and do amount altogether to above a Hundred Thousand Men I think you your self will grant that King Iames cannot attempt coming over hither with an Army of less then 30 or 4000 Veteran Soldiers of the French and Irish Nations though you should reckon the Papists and others who should come into his Assistance at 20000 more who if they should be altogether able to beat not only King William's standing Army but the Militia of the Kingdom to Boot I desire to know what shall hinder them from making as perfect a Conquest of this Nation as ever Cromwell's Army did either of England or Scotland And consequently of seting up what Religion or Government they please in this Kingdom which that it will not be that which is now exercis'd either in Church or State I think any unprejudiced Man will easily grant me But your next Suppositions are altogether as Precarious that it is not either the Design or Interest of the French King to make an entire Conquest of this Kingdom for himself nor yet to make King Iames an absolute Monarch here one of these I must needs believe will happen for though perhaps that King may at present stand so much upon his Glory as not Seize the Kingdom of a Kinsman and an Allie wholly to his own use and benefit yet it is most likely that he will retain French Garrisons in all or most of the strong places of England not only for the security of the Charges he will have been at to place King Iames in the Throne but also as a tye upon us that we shall never endeavour to drive him out again let him use us as he pleases so that tho' I grant he may not make an absolute Conquest of us now yet it may be in his or his Sons power to do it hereafter if ever King Iames his Son shall go about to shake of that Yoke when once the present Obligation is forgot or the near Relation between the two Kings shall be farther remov'd nor is what you say less Precarious that it will not be for King Lewis's Interest to destroy our Liberties and make King Iames an absolute Monarch because the Kingdom will be then weaker and more divided-then it is now by those Jealousies and Disputes we shall then maintain with the King about our Civil Rights which is indeed so far true if he Governs when he returns in the same Arbitrary manner as he did before but if he Govern according to Law which no wise Man can expect there needs be no more Divisions among us then was for a great while after King Charles the Seconds coming in but that the French King should fear if he once made the King of England an absolute Monarch and put the whole power of the Purses as well as Swords of his Subjects in his Hands he might then become so formidable as to be an equal Match to France it self and to be able to demand either the whole Kingdom or any part of it is yet more pleasant since France is now in comparison with England not only in respect of Men but also the Revenues belonging to the King as Ten to One and I think I may very well maintain that if England should once come to be Govern'd as France is it would be so far from growing Richer or more Powerful thereby that from the Intestine Grieviances and Discontents that such a violent course of Government would cause in the minds of the People of all Sorts and Conditions by those excessive Taxes and Oppressions that would follow from such an Arbitrary Government the Kingdom would quickly diminish and decay as well in People as Trade and Riches and so consequently in power too which is but the product of both these notwithstanding whatsoever the fair appearance of an outwardly Magnificent Court and a great standing Army may produce in the minds of those that do not truly consider or understand the true Grandure and Safety of the Prince and Happiness of the People But granting all this to be as you suppose pray tell me what shall become of our Religion and Civil Liberties not only 〈◊〉 respect of the French King but of King Iames himself 〈…〉 believe that either of them will cease to be instigated by the Jesuits their Confessors to destroy the Northern Heresie as they term our Religion as well in England as it has been in France No the poor Vaudois in Savoy have been too recent an Example that the King of France would carry the Persecution to the same degree here as he did there and that King Iames being wholly in his Power will not be able to withstand his Commands besides the constant Solicitation of his Confessors of the 〈◊〉 Order and Principles of those of the French King to which Holy Fathers the Protestant Religion in France and Savoy do chiefly owe its Destruction To Conclude let us suppose that King Iames shall now prevail in this War by the help of the Irish Army now rais'd by the Earle of Tirconnel can we â—â—pect better Quarter if the King prevails by their Arms and Assistance then if they were intirely French For having once Conquer'd this Nation it will not be in the King's Power to Govern them so easily as you expect but being inveâ—â—â—te Enemies to the English they will not only possess what Estates they please of the English Nobility and Gentry in Ireland but in England too which will be declar'd forfeited by their Owners opposing of King Iames and then I will leave it to your self to Judge in what a Condition we shall be in both as to our Religion and Civil Liberties when the King shall come to be manag'd by Men who are declar'd Enemies to both neither will it be in the power of those few moderate men either of the Popish or Protestanâ— Religion who take King Iame's part to hinder it since the other Party will by means of the Priests and Jesuites and the interest of France run down all sober Councils and they will be but looked upon but as Trimmers at best that oppose
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ— W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â— p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â—3 Convention W. its voting King James to have abdicaâ—ed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ— anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiâ—nions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
Arms against their Kings offensive or defensive upon any Pretence whatsoever is at least to resist the Powers which are ordained of God And tho' they do not invade but only resist St. Paul tells them plainly they shall receive to themselves Damnation From which you may plainly see that this Convocation which consisted of as great Men as I think had been for divers Ages do clearly maintain Monarchy to be of Divine Right and Resistance to be in no Case lawful F. I should grant the Canons of this Convocation to be a good Proof of the Iudgment of the Church of England were it not for two very good Reasons I have against them The one I will tell you presently and the other I will keep a while to my self In the first place therefore I suppose you cannot but very well know that this Convocation sate and passed these Canons which likewise received the King's Confirmation after the Parliament that was summoned together with this Convocation was dissolved And I suppose you know that by the Law of England the Convocation having from all times been looked upon as an Appendix to the Parliament was till then always dissolved with it For which Reason all Acts and Proceedings of this Convocation were condemned and declared null and void by the Long Parliament that began to fit the latter End of the same Year And which is more was likewise condemned by the first Parliament after the Restauration of King Charles the second And therefore I think I have very little Reason to own thâ—se Canons as Conclusive M. In the first place I might reply to what you have now said that that very Parliament which first condemned these Canons afterwards ruined the Monarchy it self In the next place that in old time the General or Provincial Synods were not Dependant upon the Assembly of the States at the same time And I likewise farther Answer that these Canons were made and confirmed in a full Convocation of both Provinces of Canterbury and York and the making of Canons being a work properly Ecclesiastical these Canons were made by the Representatives of the whole Clergy of this Kingdom 2. The Canons were confirmed by the King which was all that was of old required in such Cases and tho' the Convocation sate after the Dissolution of the Parliament yet this is not without President even in the Happy Days of Queen Elizabeth not to look back unto Henry the eighth or the Primitive times And as for your Objection that these Canons were reprobated since the Restitution of Charles the II. I say that I quote them not as Law but as the known Sense of the Church of England at that time F. Your first Answer in behalf of these Canons is altogether Invidious For it was not this Parliament that ruâ—ned the Monarchy but only the Rump or Fag end of it after it had suffered divers Violences and Exclusions of Members by the Army and that the House of Lords being by this Iunto voted useless and dangerous were shut out of doors nor is your second Answer any more true for antiently in the Saxons time the Wittena Gemot or Great Counsel and the General Synod made one and the same Assembly consisting both of Clergy-men and Lay men and then all matters of Ecclesiastical Discipline were enacted and confirmed by the King as also the Spiritual as well as Temporal States Nor can you shew me an Example of any General or Provincial Synod which met independently and without the States of the Realm until after the Reign of Henry the first when the Popes took upon them to encroach upon the Royal Authority as also upon our Civil Rights and by his Legaâ—s to call Synods and make Ecclesiastical Constitutions in which neither the King nor the States of the Kingdom had any thing to do And tho' I grant that upon the Reformation the King was restor'd to those Rights as Supream Governour of the Church which the Pope had before usurped yet is not this Act of the Supremacy to be so understood as to give the King all that Power which the Pope unjustly took upon him to execute before for that had been to make their Case no better than 〈◊〉 was before and therefore this Act of the Supremacy being only an Act of Restoration of the King to his Pristine Rights of which that of Calling Synods and Convocations was one of the Principal the King could not call nor continue those Assemblies in any other form or after any other manner than they were held before the Popes Usurpation in taking upon him to call such Independant Synods and notwithstanding what you tell me I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod as this was in all the Reigns of Henry the eighth and Queen Elizabeth But as for your last reply that you quote not these Canons for a Law that obliges the Church but as the Sense of the Church of England at that time if they do not now oblige the Church neither in Point of Belief nor Practice as you may seem to grant it signifieth no more to me what was the Sense of the greatest part of the Members of that Convocation in this matter nor doth it any more shew me what is the true Doctrine of the Church of England than if I should tell you that because in the Reign of Queen Elizabeth the Major part of the Bishops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination that therefore Calvinism was then the Doctrine of the Church of England but is not so now And therefore we ought not to take that for a Doctrine of any National Church unless the Synod or Assembly that declares such Doctrine be solemnly and Lawfully assembled according to the Laws and Customs of that Nation or Country wherein they are so declared M. Since you so much contest the Authority of these Canons I shall no longer insist upon them but I shall here shew you out of the Books of Homilies to which all the Clergy in England are bound to subscribe by Act of Parliament as well as to the Articles and Canons as containing wholesome Doctrine and nothing contrary to the Word of God so that these Homilies do indeed thereby become a part of the known Laws of the Land that in these very Homilies there are divers passages so very full and Plain against all Resistance of the Sovereign Powers for any Cause whatsoever that if you are a true Church of England Man as I hope you are you can have no just Reason to deny their Authority The Homily or Exhortation to Obedience was made An. 1547. in the Reign of King Edward the sixth in the second part of which Sermon of Obedience we are told in these Words which I desire you to read along with me That it is the Calling of God's People to be patient and on the suffering side
well gather that this was none of the King 's Ordinary or Privy Council or else to what purpose was this Cause adjourned to the meeting of the next Parliament Since if it had been to be determined by the Privy Council it might have been done forthwith I shall give you but one Instance more out of the Close Roll of the 41 of this King wherein a Cause between Elizabeth Wife of Nicholas D'Audley and Iames D'Audley in a Controversie between them touching certain Lands contained in in the Covenants of her Marriage is said to have been adjudged Devant Son Conseil c'est a scavoir Chanceller Thresorier Iustices Aâ—ires Sages assemblez en la Chambre des Etoiles i. e. Before his Council viz. the Chancellor Treasurer Justices and other wise men assembled in the Star-Chamber So that when any thing in our old Statutes is said to be Ordained by the King and his Council it is always to be understood not as if this Council were a fourth Estate whose Assâ—nt or Advice was as necessary to the making of Laws as that of the Lordi Spiritual Temporal and Commons for then they would have had the same Power still but only according to the Custom of those times when most Acts of Parliament were drawn by them and that the King past none without their advice it was then said to be done by the King and his Council viz. in Parliament and I conceive the Power of this Council continued till the beginning of the Reign of Henry the Seventh when this Court being by Act of Parliament annexed to that of the Star-Chamber where also this Council of the King used to meet before as appears by the Case I have last cited and having afterwards only to do with Criminal Causes and that as well out of as in Parliament and that King Hen. 7 th not caring to exercise his Iudicial Power in private Causes as his Predecessors had done or to make use of their advice either in the drawing or passing of Bills which now began to be drawn by Committees in either house wherein those Bills were preferred this Council came by degrees to grow quite out of use as it is at this day I hope you will pardon this long digression which I have been drawn into to rectifie a Common mistake of the Gentlemen of your opinion who when they find any thing in our ancient Statutes or Records wherein the King's Council is mentioned presently entertain strange fancies of the Antiquity and Authority of the Privy Council M. I am so far from thinking this Discourse you have now made to be at all tedious that I give you many thanks for it since it gives me a light into many things which I confess I did not know before and I shall better consider the Authorities you have now given me and if I find they will hold shall come over to your opinion in that point tho I am not as yet satisfied as to the Legistative Power of the two Houses and therefore pray proceed to answer the rest of the Presidents I have brought on that Subject F. I shall readily comply with your Commands and therefore to come to those Statutes of the 15 th and 20 th of Edw. 3. which you suppose to have been repealed by that King without the Consent of the Lords and Commonâ— I grant indeed that the Statutes you mention were intended to be repealâ—d by the King without Assent of Parliament Yet was this not done by himself and his Council alone as you suppose but by a Council of Earls Barons and Commons which the Kings of England in those days were wont to call upon emergent occasions and for the doing of that which they thought Parliaments could not so speedily perform as in this pretended repeal of the Statute you mention And tho I grant this was a great brâ—â—ch upon the fundamental Constitutions of the Kingdom yet that it was done in such a Great Council as I have now mentioned I refer you to this pretended Statute its self and to your recital of it And that the King often called such Great Councils appears by an agreement of Exchange made for the Castle of Berwick between King Hen. IV. in the fifth year of his Reign and the Earl of Northumberland where the King promiseth to deliver to the Earl Lands and Tenements to the value of the Castle by these words which I shall render out of French from the Original which remains in the Tower By the advice and â—ssent of the Estates of the Realm and of his Parliament so that the Parliamâ—nt happen before the Feast of St. Lucie otherwise by the Assent of his Great Council and other Estates of his said Realm which the King will cause to be assembled before the said Feast in case the Parliament do not happen c. And yet notwithstanding this high strain of Prerogative King Edw. III. himself was not satisfied with this repeal of those Statutes you have mentioned but in the next Parliament held in his 17 th year he procured a formal and Legal repeal of them as by the Parliament Rolls of that year remaining in the Tower doth plainly appear And which I could give you at large did I not fear to be too tedâ—ous But I think it fit to let you know this because most ordinary Readers seeing no more appear in Print in our Statute Books are apt to imagin that the Kings of England in those days did often take upon them without Authority of Parliament to make and repeal Laws But as for your next Instance of the Statute of Edw. III. it is much weaker since tho I confess that in the Preface to these Acts there is only mention of the Great Men or Grantz as it is in our old French and other wise Men of our Council yet I shall prove at another time that under this word Grantz were meant the Lords in Parliament as by the wise men of our Council are understood the Commons And therefore it seems most reasonable to interpret the sense of many ancient Statutes wherein the King alone is said to make and ordain Laws by those later or more modern ones wherein the King by the Consent of the Lords and Commons or by Authority of Parliament is said to have Ordained them Since the true Stile and Meaning of ancient Laws which were penned with the greatest brevity ought to be still Interpreted by the Modern ones and not the Modern ones by the Ancient So that I am of the Learned Mr. Lambardâ— opinion who in his Arcbâ—ion or Discourse upon the High Courts of Justice in England expressly tells us That whether the Laws are said to be made by the King and his Wise Men or by the King and his Council or his Common Council or by the King his Earls Barons and other Wise Men or after such other like Phrases whereof you meet with many in the Volumes of Parliaments It comes all to this one
his Inferiors because an Inferior Power can never limit a Superiour And since all our Laws as well as the Oath of Allegiance and Supremacy we take to the King do own him to be the Sole Supream Governour of this Realm I cannot understand how this Limitation can consist with the King's Supremacy for if he be thus limited and restrained how is he Supream and if Restrained by some Law is not the Power of that Law and of them that made that Law above his own Supream Power And if by the Direction of such Law only he must Govern where is his Supream Power So that when the Law must Rule and Govern the Monarch as a Superior and not the Monarch the Law he hath at best but a Gubernative and Exâ—cutive Power Lastly if this Power of the Prince were Limited at the Original Constitution there must be a Power appointed in some Council or Senate call it a Parliament or Assembly of the States or by what Name you please whose business it must be to see them exactly kept and performed Now these Men must either have a Power barely of Advising the Monarch and perswading him to observe these Fundamental Limitations or else they must also have a Power of Forcing or Compelling him if he will not hearken to their Advice and Remonstrances if they have no more than the former Power that you say signifies nothing since the King may refute to hearken to them if he pleases and may do what he will notwithstanding but if they have also a Coercive Power over him and may Resist or punish him for his Transgressions he will then cease to be a Monarch Since he cannot be so who is accountable to any Power either Equal or Superior to himself And this our late Parliaments have bin well aware of when they Renounced all Coercive Power over the Person of the King and any Right of making War either Offensive or Defensive against him So that besides the History of matter of Fact which I can further give you to prove our Kings to have bin at first Absolute Monarchs I think the very Hypothesis of a mixt or limited Monarchy labours under such insuperable Difficulties and Absurdities that I cannot conceive how those Limitations by which we find the King's Prerogative now Restrained could ever proceed from any Higher Cause than the free Grants and Concessions of the Kings Predecessors confirmed by his own Coronation-Oath Which though I acknowledge he is bound to observe and that if he breaks it he commits a great Sin against God Yet it is only He that must punish him for so doing since the Oath is not made to the People but to God alone F. Notwithstanding what you have now said I hope I am able to shew you that all your Arguments against a Mixt or Limited Monarchy are more subtile than true For as to your first Argument from the word Monarch I grant indeed that strictly speaking the Word Monarch and Monarchy signifie a single Ruler and the Government of one alone Yet in Common Acceptation or according to the Laws and Constitutions of several other Kingdoms besides England as in the Empire in Denmark and Sweden the Emperor and those Kings have bin called Monarchs and those Kingdoms Monarchies though by the Original Constitution of those Governments those Princes have not bin invested with a pure Imperial Authority such as that of the Roman Emperors of Old Yet since they had the Executive and Gubernative part of the Government committed to them and that they were lookt upon as the Heads of those Kingdoms and that the Government did therein partake more of Monarchy than of any other Form those Princes have bin always reputed and that justly Monarchs notwithstanding there was a very great mixture of Aristocracy in the Empire and in Denmark and both of Aristocracy and Democracy in Sweden The like may be said of England France and those Kingdoms in Spain that were instituted by the Goths and Vandals the Francs and Saxons after the Ancient Gothic Model of Government And though I grant this sort of mixt Monarchy is not to be Reduced to any of the three distinct Kinds of Government layd down by Aristotle yet are they not for all that to be Condemned but rather the more approved of since by this mixture they were capable of diverse Benefits and free from several Mischiefs which are incident to any of those Forms of Monarchy Aristocracy or Democracy when exercised purely and without any such mixture And that this as to England it self is no Invention of the Common-Wealth-Men as you call them you may read King Charles the 1st's Answer to the 19 Propositions sent him by the Parliament for the words are Remarkable This Kingdom says he is mixt of Monarchical Aristocratical and Democratical Government and that so wisely that we have all the Conveniences and none of the Inconveniences of any of those Forms taken single Nor doth this at all Derogate from the Nature of the Monarchy nor make any Division between the necessary Functions of Soveraign Power For I have already granted that the executive or gubernative part is wholy in him as also the Power of making War and Peace and as for the Legislative as long as the King hath a Negative Vote in all Laws that pass and that they cannot be made without his Royal Sanction the Legislative Power is not divided as I have already proved But as for your other Argument against a Prince's being limited by the Original Constitution of Government tho as I yield it is more Subtile so it is also more Sophistical and fallacious than the former For your Dilemma by which you would prove the Absurdity of that Nation will not do because a Prince at the Institution of the Government may be limited by those who are neither Superior nor Inferior to himself but only equal in the State of Nature as I suppose the People to be with a King before he was made so by them And that Equals may thus limit each other you your self will not I suppose deny in the Case of Princes who are Equals in the State of Nature As Queen Mary for Example made such conditions with King Philip of Spain before she Marryed him that if he offered to meddle with the Government of this Kingdom without her Consent it would be Lawful for her to part herself from him and to send him home into his own Kingdom and might she not with a Safe Conscience have done so upon the Breach of the Conditions on his side Apply this to the People in the State of Nature and the person they are about to make King before the Politick Marriage of a Coronation or Admission to the Crown and see if they do not exactly agree or whether the People can be blam'd if they repudiate their Politick Husband for Invading that part of the Government which they had reserved to themselves Nor doth this argue any more Superiority in the People
made by him as indeed it is true he compiled them out of divers other Laws formerly in force in the other Kingdoms of the Heptarchy Yet that they were also shewn and assented to by the Wittenae Gemots pray see the Conclusion of these Laws in Sir H. Spelman The words are Remarkable Ego Aelfredus West Saxonum Rex ostendi haec omnibus Sapientibus meis dixerunt places ea custodiri So that the calling them the Laws of King Alfred or King Edward doth no more prove that they alone made them then our now Citing such or such a Statute of K. Henry 8th or King Charles the 1st do therefore suppose that those Kings made Laws by their own Sole Authority such Phrases among Ancient Historians as well as our selves at this Day being used only for Brevity sake and signifie no more then their Confirmation of them M. I shall not deny but that our Ancient English Kings did for the most part make no Laws without the Consent of their Great Council Yet I think I can give you an unanswerable Argument to prove that the very Being and Constitution of Parliaments or Great Councils did in the beginning wholy proceed from the Grace and Favour of some of our Ancient Kings thâ— to which of them to ascribe it is not easie to Determine But if we may believe your own Author the Mirrour he tells us almost at the very beginning That King Alfred for the Good State of the Realm caused to Assemble the Counts or Peers and then ordained for a perpetual Custom that twice in the Year or oftner for Business in time of Peace they should Assemble at London to treat of the Government of the People of God and how folks should keep themselves from offences and live in quiet and should receive Right by certain vsages and Iudgments And According to this Establishment were made divers Ordinances by divers Kings until the present King viz. Edw. 1st But to come to the proof of what I affirm it is certain that in those first times the Saxon Kings conferred all the Bishopricks and principal Abbeys in England per Annulum Baculum as Ingulf and Malmsbury expresly tell us And as for the Earls or Aldermen of Counties as also the Great Thanes Judges or Noblemen of the Kingdom they were only Offices held for life in those times which the King might Discharge them of at his Pleasure And hence we find the Titles of Aldermanus Regis and Thanus Regis so frequently to occur in our Ancient Histories and Charters These comprehended under the general Name of Wites were the only Constituent parts of the Great Council in those times for as concerning those we now call the Commons of England we do not so much as find the least mention of them or any Representatives for them till the latter end of the Reign of King Hen. 3d. or the middle of Edw. 1sts Reign as I think Dr. Brady hath Learnedly and fully proved in his last Edition of his Answer to Mr. Petyt's Treatise of the Rights of the Commons of England Asserted Now if it plainly appears that every part or Member of the Parliament did Anciently receive their very Being from the meer Grace and Concession of our Ancient Monarchs can you or any Reasonable Man assert with any Colour of Truth that our Great Councils or Parliaments could be a part of the Fundamental Constitution and as Ancient as the Government it self And if Parliaments did thus receive all that Authority they now Exercise from the Kings Bounty can any Man doubt whether all the Rights and Priviledges we now enjoy are to be Ascribed to any other Original For if the very Keepers as you will have it of these Liberties did all proceed from the King then certainly the things to be Kept must do so too and when you can answer this Argument I have now brought I think I may safely promise you to be your Proselite and to come over to your Opinion M. I confess this is the most plausible Argument you have hitherto urged and if I can't answer it I do likewise promise you to become your Convert But tho granting that Parliaments might have received their Being from the Favours of our Kings I might deny your Consequence that therefore it will follow that all the Rights and Liberties of the Subjects of England must do so too since they might very well have reserved to themselves both Hereditary Properties as also a Right to their Lives Liberties and Estates which the King should not take from them without just Cause and Legal Tryal which when they found invaded by succeeding Princes they might then and not till then find constant Great Councils and Parliaments to be necessary for that End and as the firmest Bullwark against the Tyranny of Succeeding Princes But the Author of the Mirrour in the Section before the place from whence you took your last Quotation expresly tells us that upon the first Election of a King to Reign over the rest of the Saxon Princes they first of all madâ— him to Sweâ—r that He would maintain the Holy Christian Faith with all his Power and would govern his People according to Right without regard to any Person and should be liable to suffer Right i. e. Iudgment as well as others of his People And tho I do not give any Credit to all the Story he there relates of 40 Soveraign Princes in this Island at once Yet the Substance of it may be true that this Election was made of King Egbert by the 40 Earls or Counts of Provinces which were afterward by King Alfred called Shires But that this Author ascribes the Beginning of Great Councils to the first Institution of the Government pray see what he there fâ—rther says And tho the King can have no Peer in the Land nevertheless if by his own wrong he offends against any of his People none of those that Iudge for him can be both Iudge and Party It is therefore agreeable to Right that the King should have Companions to Hear and Determine in Parliament all Writs and Complaints concerning the Wrongs of the King Queen and their Children of which Wrongs they could not otherwise have Common Right These Companions are therefore called Counts after the Latin Câ—mitâ—e Whereby you may see that this Author and Bracton who were Contempâ—â—aries were of the same Opinion in this important Point And I cannot imagine how any Prince who had Power sufficient in his hands to do what he pleased as you suppose our English Saxon Monarchs to have had at the first would ever if they could have helpt it have instituted a Court one of whose chief Businessâ—s it was to examine and redress the Wrongs and Oppressions of themselves their Wives and Children But besides all this what you say might be somewhat likely that our Parliaments or Great Councils did owe their Original only to the Kings good Will and Pleasure did we not find the like
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
with the Advice and Assistance of their VVites or Wise-men simply without mentioning any particular Orders of men whatsoever And when any Rank or Degrees of men are particularly mentioned they are only the same before rehearsed both Ecclesiasticks and Laicks 2. I note that it cannot be denied but that in every one of these Wittena Gâ—motes Micel Synods Micel Gemotes or Great Councils where the Laws are said to be made only by the King with the advice of his Wites or Sapientes without particularizing any degrees of Persons the Bishops and Abbots for the Spiritual Nobility and the Eorls or Aldermen and Thanes for the Temporal were present at the making of them as also the Judges if there were any of the higher Class other than Bishops Aldermen and Gereves or Praepositi 3. I note that it follows from thence that these all jointly were the Sapientes where there are only Wites or Sapientes in general named without reciting any particular Orders or Degrees of Men. Now if you can shew me from as good Authorities as I have here produced that any of the Commons sate in these Great Councils at least to represent the Body of the Commons among the Saxons I will grant that during the Saxon Government the Freemen or Commons of England as now called and distinguished from the Great Lords were an essential constituent part of the Common Councils of those times F. To return you as short an Answer as I can to those Authorities you now cite I must in the first place premise That tho I grant all Nobility among the ancient Germans Saxons and Franks who were but so many Stirps or Branches of the Gothic Nation were at first wholly Military yet it is a very great mistake and savours of the Prejudices of the Age and Country we live in to imagine that anciently there were the same Distinctions between Peers or Noblemen and Gentlemen whom we now call Commoners as there are now For if we go but over into France or Germany we shall find no difference there between the greater and the less Nobility and a Gentleman is as noble as a Dâ—ke or a Marquiss And if we pass farther into Denmark and Norway from whence most of the Danish Laws are supposed to come it is certain that but few years ago there were no such Titles among them as Earls or Barons every Lord of a Town or District being that which they call an Adelman or Nobleman And so I suppose it anciently was among the English Saxons The Word Athel or Adel comprehending to speak in our present Dialect all Degrees as well Noblemen as Gentlemen And for this I can give you the Authority of an Ancient Author viz. Paulus Warnefridus de gestis Longobardorum who speaking of these Adelmen or Adelings tell us Sic and eos quidam Nobiles prosapia vocabantur So likewise Sir H. Spelman in his Glossary Tit. Adelingi Tit. p. 9 10. writes thus Anglorum legibus dici pro nobilibus in genere quod nec dum apud Germanos antiquatum est qui omnes nobiles Aedelmen vocant a Saxonico Aedel pro nobili And Mr. Selden in his Titles of Honour makes the Word Aethelum to signifie all one either Gentlemen or Noblemen Besides Adam of Bremen and Nitardus likewise both Ancient Historians divide the Saxon Nation into three different Degrees or Orders viz into Athelings i. e. Nobles Frilings i. e. Freemen and Lazzos i. e. Villains Bours or Bondmen Besides which Noblemen or Gentlemen there was likewise another sort of men who tho of an inferior Rank yet as Freemen and having a considerable share of the Riches and Strength of the Nation in their hands had likewise a Place in the Great Councils as well as the former And these were the Aldermen or other Magistrates of Cities and Burroughs and in this they resembled the German Diets whose constituent Members were according to Gonterus an Ancient German Poet Praelati Proceres missisque potentibus Urbes But since this is a Dispute about the Signification of Words in what sense they were used in that Age we are now treating of it will not be inconvenient to examine from the most Learned Glossarists the Ancient Signification of those Words which are in dispute between us And therefore since we are agreed about the meaning of all other Words except these viz. Aldermen Thanes Wites Magnates Optimates and Principes Preceres or Primates let us examine each of their Ancient Significations To begin then with the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man Alderman which Word was of a very general Signification For Sir Hen. Spelman in his Glossary Tit. Alderman tells us that there was Aldermannus Regis Comitatus Civitatis Burgi c. de quorum potestate non facile est definire Mr. Lambard renders the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man in Latin Senator i. e. one that had place in the Great Council and so doth Mr. Somner in his Saxon Dictionary from whence you may learn that this Word is of a large signification and might comprehend such as in latter times were called Commons to distinguish them from the Lords or higher Nobility and could not exclude them Verstegan renders this Word thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So written in our ancient Language is properly an Elder or Senior yet an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man which we call now an Alderman was such in effect among our Ancestors as was the Tribunus Plebis with the Romans that is one that had chief Iurisdiction among the Commons as being a Maintainer of their Liberties And if so such persons must certainly have had a place in the Great Council as Commoners and therefore must from the reason of the thing signifie something more in those times than an Earl or great Officer of the King only So likewise that the Word Thane comprehended more than the Kings Great Feudal or Military Tenents may appear by these Interpretations of it which our Antiquaries have given us The Industrious Mr. Somner in his Glossary at the end of the X. Scriptores as also Mr. Selden in his Titles of Honour do both agree in the difference I now make between the Greater and the Less Thanes the former being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Thani Regii the other called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mediocres vel Inferiores Thani Middle or Less Thanes who were Maneriorum Domini Nobiles miâ—â—â—es Vavasores nonnunquam liberi tenentes with whom Sir H. Spelman in his Glossary agrees Thanorum duo erant genera Majores quos Thainâ—s Regis appellabant nos Barones Regis Thaini Simpliciter seu Thaini Minores quâ— iidem erant qui Barones Minores hoc est Maneriorum Domini Nobiles minores nonnunquam Liberi Tenentes nuncupantur So likewise Mr. Lambard in his Glossary thus Thani autem appellatione viri interdum Nobiles interdum liberae conditionis homines interdum Magistratus
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâ—ians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members 〈◊〉 I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbâ—â—s de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entâ—n Sanctus 〈◊〉 praedicavit docuâ—t haec concessa sunt a Rege Baronibus Populo So that it Populus â—ere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâ—â—â— understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ— Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona â—â—am Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
and Matt. of Westminster calls some of them Milites yet this makes nothing against our Opinion for as I proved before the Great Milites were often stiled Barons and the Barons Milites Nor was this Earl and the four Barons here mentioned chosen or sent by the Baronage of the Kingdom assembled in Parliament to represent them at the Council of Lyons but were only pitch'd upon by a Body of Military men or Barons at a Tornament intended to have been held at Dunstable which was forbidden by the King and these took upon them to warn Mr. Martin the Pope's Clerk out of the Kingdom as appears by the Account Matt. Paris gives us of this Business in the Paragraph immediately following So that the History of the thing makes it plain who were the Universitas Regni to wit the Barons or the Universitas Armatorum who were met to hold the Tournament and these the King there called his Barons And after this in the 30th of Hen. III. when the Pope did not give satisfaction to their Grievances the King called as this Author tells us 〈◊〉 Parliamentum generalissimum totius Regni Anglicani totalem Nobilitatem Londini viz. Prelatorum tam Abbatum Priorum quam Epiâ—coporum Comitum quoque Baronium ut de Statu regni jam 〈◊〉 efficatiter prout exegit urgens necessitas contrectarent In this very Parliament the King conferr'd with the Bishops by themselves and the Earls and Barons by themselves about this Business of the Pope's not keeping his Promise And certainly if there had been then any Commons in this Parliament he would have also conferred with them about the same matter The result of all these Conferences was that yet for the Reverence due to the Apostolick See they should again supplicate the Pope by Letters to remove their intolerable Grievances and insupportable Yoak And this they do in separate Conferences The Bishops write by themselves the Abbots and Priors by themselves and the Earls Barons c. by themselves to the Pope and if there had been any Commons as at this day they most certainly would likewise have wrote to the Pope as well as the other Constituent Parts of this Parliament did F. I hope I shall be able to answer what you have now said In the first place tho I should grant that these Commissioners sent by the Baronage of England were all of them Barons and no Commoners among them doth it therefore follow that the persons that sent them must have been all Lords too For if those Commissioners were all Peers who represented your Barones minores or Tenants in capite who as you your self have granted were no Lords at all and why might not those Lords as well represent all the Commons of England as they did these Lesser Tenants in capite So that it seems plain to me that these Words Universitas Baronagii Angliae must needs then comprehend somewhat more than your Barons and Tenents in capite only since the Words Barones Milites alone and sufficiently expressed all the Constituent Members of your Parliament without adding Universitas Baronagii which would have been a Tautology but that it was very usual for the great Lords in those days to write Letters in their own Names as also for all the Commons of England I shall shew you by and by when I shall make use of two other Instances of a like nature in the Reigns of Edw. I. and Edw. III. And therefore it is no good Argument to prove that the Commons had no hand in this Message or Letters because they did not write by themselves much less is it so because it is not expresly mentioned by Matt. Paris that the King consulted the Commons as well as the Bishops Earls and Barons that therefore they were not there Since this Author writing very concisely comprehends all the Lay Estates under the Words Comites Barones or else Magnates alone So likewise Matt of Westminster when he mentions divers Parliaments in the Reign of Edw. I and Edw. II expresses them under the same Title And tho' this Author often mentions the Earls and Barons to have done this or that yet it is no Argument to conclude that the Commons were not then there And for this pray take these Examples our of Matt. VVestminster when Anno Dom. 1300. the 28th of Edw. I. he tells us the King held his Parliament at Lincoln where the Comites Barones demanded a Confirmation of the Great Charters and they further askt that the Deforestations made by the King should be confirmed and then he tells us that thereupon the Charters of Liberties and Forests were again renewed and being past under the Great Seal were proclaimed before all the People in every Country Where you see that the Complains were made by the Earls and Barons yet it is certain that the Confirmation of these Charters must have proceeded from all the Estates for the Bishops and Abbots and Priors are there no more mentioned than the Commons who were then as Barones Majores Constituent Members of this Parliament So also Henry De Knighton Anno Dom. 1301. the 30th Edw. I. tells us of a Parliament this King held at Stamford where met the Earls and Barons and with great courage persisted until they had got the Charter of Forests fully granted and confirmed to them Where note that tho by way of excellency the Earls and Barons who then bore the greatest sway are here only mentioned yet it is certain that the Commons were also summoned to this Parliament Now if these Later Historians pass by the Commons tho then Constituent Members of Parliament without any one express Mention why might not Matt. Paris do so too But that he did do so appears very plainly from the Letters of the Parliament held in 30th Hen. II. to the Pope and Cardinals being still at the council of Lyons to remove the intolerable Grievances above mentioned That to the Pope is tecited at large by Matt. Paris tho that to the Cardinals is omitted by him but in an Ancient Manuscript of the time extant in Sir Iohn Cottons's Library of both Letters are said to have been sent to the Cardinals at Lyons a Baronibus Militibus universitatibâ—â— Bâ—â—â—nagii Anglia Now who these were the subsequent Letter to the Pope in Matt. Poris will inform us which begins thus Sanctissimo c. 〈◊〉 filii Sui Richardus Comes Cornubia c. together with divers other Earls there named but the Barons and Commons are not particularly recited but are comprehended under these General Words Barones Proceres Magnates ac Nobiles Portuum marishabitatores necnon Clerus Populus universus salutem And pray note that Matt. Paris had before called this a Parliament Convenientibus igitur ad Parliamentum totius Regni Magnatibus Which Words take in the Knights of Shires as the Nobiles Portuum Maris habitatores doth the Barons of the Cinqâ—â— Ports
answer it I confess it appears very specious at first sight but what if I shew you that this Letter was written by the Lords only from Lincoln after the Commons had been dismissed from thence by proâ—ogation or Adjournment For tho it is commonly story'd but erroneously that this whole Parliament or at least the Temporal Lords and the Commons wrote to the Pope concerning the Jurisdiction and Superiority of the Kings of England over the Kingdom of Scotland Yet it cannot be so for this Parliament met on the Octaves of Hillary or the 20th of Ianuary and sate but eight days the Writs for the Commons Expences bear date Ianuary the 30th of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated Feb. 12 th next following at Lincoln after the Commons had been discharged 14 Days So that you see the Barons still continued to stile themselves the Community of England and both Spiritual and Temporal Barons and other of the King's Council did stay and dispatch much Business after all others were dismissed according to the Tenor of the there recited Proclamation and may be fully proved from the Proceedings of that Paâ—liament as they are to be found in Ryley's Plâ—cita Parliamentaria So that nothing seems plainer to me than that the whole Community of England for whom the Barons there named set their Seals to that Letter you mentioned were the Community of the Barons only F. I confess Mr. Pryn in his Animadversions upon my Lord Coke's 4th Institutes was the first who started this Objection That the Commons could not be present as parties to this Letter Yet he still supposes that the Lords who stayed behind and made a kind of a Great Council at Lincoln signed it not only for themselves but for the Commons also tho not actually there and is not so extravagant as your Dr. to suppose that by the Words in this Letter Tam pro Nobis quam pro tota Communitate c. are to be understood the Community of Barons only for that would have been a Tauâ—ology indeed For so the last Word Communitas c. would have signified no more than that they subscribed for themselves and themselves and that the Word Cummaâ—â—tas Regni which I can prove to you by many Examples did then signifie the Commons of England must here mean more than your Community of the Earls and Barons For pray take notice that the Tenants in capite had now by your own concession left off to appear in Parliament in a Body as being now represented by the Knights of Shires c. So that Sir Edward Coke very well observes in his Fourth Institute that this Letter was sealed by above 104 Earls and Barons by the assent of the whole Commonalty in Parliament and Mr. Pryn is so far convinced of this in his exact History of Papal Usurpations that he â—tiles this Letter The Memorable Epistle of the Earls Barons Great Men and Commons of England c. But to shew you farther that there was no change neither of the constituent parts of our Ancient Parliaments nor of the Terms by which they are expressed our Ancient Records appears by a Plea among Mr. Ryley's printed Pleas of Parliament in 35th of Edw. I. where it is recited that in a Parliament at Carlisle Will. de Testa the Pope's Clerk was impeach'd per Comites Barones alios Magnates Communitatem totius Regni concerning divers new and intolerable Grievances laid upon them by the Pope Where you see there is no change of this Word Communitas after the Commons were as you suppose certainly present in this Parliament and why the same Word should not signifie the same thing in the beginning of this King's Reign as well as now you had need give me very good Authority to prove the contrary against such clear evidence as this But this Record goes on and farther recites that these Letters were sent to the Pope Ex parte Communitatis praedictae and in which Clerus Populus dicti Regni set forth the said grievances to the full Now as the Word Clerus here expresses all sorts of degrees of Clergy as well Superior as Inferior represented in Parliament and Convocation so much Populus here signifie the Laity of both Orders as well the Commons as Lords since the Commons were certainly present at this Parliament and why the Word Populus should not signifie the same thing long before I can see no Reason for it but the Dr.'s bear Assertion And as for what you say that the Commons could be no parties to this Letter because it appears by the Writs of Expences that they were discharged before this Letter was written admitting it were so it makes nothing against my Assertion For why could not the Commons agree upon the Substance of the Letter and leave the Lords to draw it up and subscribe it for them after they were gone home And that it was so appears by the Letter if self which recites That the King had caused the Pope's Letter In medio or pleno Parliamento exhiberi ac scriose nobis fecit exponi unde habito tractatu deliberationâ— Diligenti super câ—â—tentis in literis vestris memoratis communis concors unanimus omnium singulâ—râ—m consensus suit c. Now every one knows that understands any thing of Parliamentary Affairs that when any thing is said in an Act of Parliament or other Record to have been agreed upon in full Parliament that is always understood to have been done all the Estates being there present Nor can I see any reason why this Letter should not be called the Letter of the Commons as well as of the Lords since the very Statutes of that Age were often said to have been assented to by the Commons tho it is clear they were not drawn up into form till after the Parliament was dismissed But that the Commons were certainly parties to this Letter appears by a Record of the beginning of Edw. III. time printed by Mr. Pryn keeper of the Records of the Tower and which he tells us he found among the Rolls in the White-Town which Record contains the Heads of a Defence compiled by the King's Council in order to a stronger Defence against the Pope's taking cognizance in the Court of Rome concerning the King of England's Superiority over Scotland in the conclusion of the 2d of which Records there is a remarkable Article relating to this very Letter now before us in these Words Item ad finem quod Nobiles Regni Angliae Procuratores Crâ—munitatis subditorum Regni praedicti admittantur per ipsum Domiâ—â—â— Regem ad hujusmodi defensiones propenend prout corum Antecessores ab Avo Dicti Domâ—â—â— Regis nostri â—rant admissi Now to what Transaction of this kind in the Reign of Edw. I. this King's Grandfather can this passage
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
that King last mentioned per Commune Consilium 〈◊〉 Regni yet there is likewise no mention made of any Knights and Citizens 〈◊〉 Burgesses F. Before I answer this main Argument of yours which I freely grant carrieth the greatest shew of probability of any you have yet brought give me â—â—â—ve to take notice that I think you are very much out in your first Conclusion that before this Charter the King exercised a Royal Prerogative of Imposing Taxes without the Assent of Parliament for if you mean that this Exaction was exercised de facto and from thence you would make it a Prerogative of the Crown I grant this was true not only before but after this Charter before the Statute de Tallagio non concedendo was made but if you mean de Iure I affirm that our Kings were as much tyed up by the 55th Law of William the First which you have already Cited from Levying any unjust Taxes or Exactions 〈◊〉 Communi Consilio totius Regni as they could be afterwards by any other subsequent Law that could be made But I shall proceed to answer the Authority you have now brought from this Clause in King Iohn's Charter to prove That none but Tenants in capite had any place in our Great Councils or Parliaments But though I confess the Charters of Henry III. and Confirmation of Edward I. are the same with this in the most material parts yet there are several Clauses of which this Clause in question is one which are in King Iohn's Charter and yet are totally omitted out of both those of Henry III. as I shall shew you hereafter So that let â—â—e sense of this place be what it will I defie you to shew me any Great Council of the Kingdom that was ever summoned according to this Imaginary Model of yours and that I do not speak without Book that Parliament or Council of 9. Henry the Third when but 11 years after King Iohn's Charter was Conâ—â—â—med Mâ—t. Paris as I have already observed tells us it consisted of Cleâ—â— Populus cum Magnatibus Regionis But give me leave to read this Clause according as your Dr. himself hath Printed and Transcribed it and as your self have now read it and I doubt not but it will appear plain enough that the Clause you insist on in this Charâ—â—r doth not at all concern the Great Council of the Kingdom and for the proof of this I desire you only to observe that by the 15th and 16th Clauses of this Charter you have now read both the City of London and all other Cities Barâ—â—ghs and Towns had a Right to have a Great Council of the Kingdom for the â—â—â—essment of Aids otherwise than in the Three Cases there expected And â—ay take the Dr's Paraphrase to this Clause along with you in his Appendix to his compleat History of England viz. That they viz. the Citizens Burgesses and Cinque Ports shall send their Representatives or Commissioners to the Common Council of the Kingdom for the Assessment of Aids So that according to his Concession there must have been Citizens and Burgesses in the Great Council in the Reign of King Iohn and if so I desire you to tell me whether those Gentlemen were Commoners or not But I will not insist too much upon his Concessions for I think it is very plain from the Words themselves which point out a distinction between the Common Council of the Kingdom mentioned in the first Clause which was to meet to grant or assess Aids or Subsidies and that other tho not Common Council or Assembly consisting of all the Tenants in capite which by the 17 th and 18 th Clauses of that Charter are to meet to assess Escuage and to do such other Business as was express'd in their Summons So that nothing seems plainer to me than that this Assembly mentioned in this Charter for assessing Escuage was a distinct Council from the Great Council of the Kingdom which was appointed for the granting of other Taxes called Auxilia and for the making of Laws M. I confess this Gloss of yours seems at first sight very plausible and agreeable enough to the way of Reading and Pointing with which the Dr. himself published this Charter but for all that I much doubt whether you are in the right or not therefore pray give me leave to put off this Debate till our nâ—â—t Meeting since it now grows late and in the mean while I will take time to consider the Arguments and Authorities you have now made use of F. Pray take your own time but do not defer it above a day or two for I have a great mind to have this Question dispatch'd off our hands I am your Servant M. Good night Sir FINIS Books Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane A Brief Disquisition of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutation of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation The Gentleman's Iournal Or the Monthly Miscellany By way of Letter to a Gentleman in the Country Consisting of News History Philosophy Poetry Musick Translations c. Compleat for the Year 1692. Printed for Rich. Parker and are to be sold by Richard Baldwin near the Oxford-Arms in Warwick Lane Where are to be had the Single Iournals for each Month or Compleat Setts bound The Tragedies of the Last Age consider'd and examin'd by the Practice of the Ancients and by the Common sense of all Ages in a Letter to Fleetwood Shepherd Edq A Short View of Tragedy its Original Excellency and Corruption With some Reflections on Shakespear and other Practitioners for the Stage Both by Mr. Rymer Servant to their Majesties Bibliotheca Politica OR A DISCOURSE By Way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were One of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. The Second Part. Collected out of the most Approved Authors both Antient and Modern Dialogue the Seventh LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth and Sixth Dialogues 1693. Authors made use of and how denoted 1. Mr. Petut's Ancient Right of the Commons of England Asserted P. R. C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Animadversions upon Mr. Atwood's Treatise Intituled Iani Anglorum faces nova B. A. I. 5. Mr. Atwood his Confutatin of the said Doctor Intituled Ius Anglorum ab Antiquo I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE Seventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. YOU are
of Honour fol. 586 587. it was made by the King and his Barons and the Freemen of the Kingdom which Assembly Matt. Paris expresses more succinctly by these words tota Nobilitus Angliae in unum collecta quasi sub numero non cadebit so that nothing can be plainer than that many other besides your Tenants in Capite appeared at this great Council M. In the first place before I answer the main of your Argument give me leave to tell you That I cannot allow this Assembly at Runne Mead to have been truly a great Council of the Nation but rather a Rebellious Armed Rout met together without the King's Writs of Summons and indeed whether he would or not and I suppose you will not assert that any Representatives had Votes therein nor can you shew me that any Knights Citizens or Burgesses were summoned to it F. I grant indeed that that Assembly was not properly a Parliament I mean such as we have at this day as not being called by the King's Writs yet since almost all the Bishops Earls Barons Tenants in Capite and all the rest of the Kingdom were then in Arms it may very well be reckon'd a Common Council or Solemn Convention of all the Freemen of the whole Nation and that after the most antient manner since all or the greatest part of the Freeholders of the Kingdom were there present in Parliament and that this Council is look'd upon as a Parliament in the Eye of the Law appears by a Writ to the Sheriff of Northampton-shire which is found in the close Rolls in the 28th of Hen. 3. to this Effect That he should not permit any one in his Bailiwick to use any Liberties belonging to the Crown unless they had formerly been used ad Tempus Parliamenti de Runne Mead quod fuit inter Dominum Johannem Regem Patrem nostrum Barones suos Angliae M. I see that you are forced to confess that this Assembly was no Parliament in the sense we now take that word nor indeed could be any more than a Rebellious Rout there met whether the King would or no and therefore the word Parliament is not to be understood in this Record in the sense we now take it since that word came not in use here instead of Magnum Concilium Commune Concilium Colloquium a Conferrence until about the middle of Henry III. Reige and doth no more point out the constituent Members of it than that word did at that time And so the meaning of the word Parliamentum is to be taken in this Record F. I think I have very good reason notwithstanding what you have now said to affirm that this was a great Council or Parliament accoding to the Mode of those times And tho I grant it was not called by the King's Writs since it is certain he avoided calling any because he utterly refused to grant this Charter at all yet that is not material since they being a general and full Assembly or Convention of all the Estates of the whole Nation had a just right to meet and vindicate their Liberties then out-ragiously opprest and trodden under foot by the King and the King himself owned them as a lawful Assembly by sending to them and appointing them to meet in Runne Mead between Staines and Windsor on the 15 th of Iune which our Historians tell us they joyfully obeyed so that he himself admitted them to be a lawful Assembly of Estates and consequently for his Parliament as appears by the agreement now cited M. I shall not much trouble my self whither this was properly the great Council or not But however I cannot see how Mr. Selden could make out that this Charter was made by or to all the Freemen of England for it seems to me that there was not the least ground for it For if under the words Liberi Homines all the Freemen or Free-Tenants of what condition soever were comprehended yet her is nothing in this Record that any way proves that they had any hand in making this Charter but the Liberi Homines here were only those whom the King calls Liberi Homines Nostri in his Charter and immediately grants them several Relaxations of their rigid Feudal Tenures by which 't is apparent these Liberi Homines were the Tenants in Capite and yet neither was the Charter made by them as is before intimated Tho I confess these were the Freemen which made such a Cry for their Liberties most of which were but an Abatement of the Rigour and a Relaxation of the Feudal Tenures as appears by the Charter it self the rest were only Followers and helped to augment the Noise they were no Law-makers as you imagine for 't is not probable that those Men that had the force of the Nation in their hands would permit Men of so small Reputation to share with them in Law-making Those that had the Power of this and other Nations de Facto always did give Laws and Tax the People F. Supposing this as I have already proved it to be a Lawful Common Council or Parliament of the whole Kingdom I think I may still affirm that this Charter was made not only by the King but by the Bishops Earls Barons and all the Freemen of the Kingdom who certainly gave their Assent to it by drawing it up into Form and by accepting it from the King when past under his Seal as truely as the Magna Charta's of King Hen. III. and Edw. I. are called Statutes for the same reason as I have already proved to you or as much as the Petition of Right granted by King Charles I. was a Statute tho past under no other Form Nor were the Liberi Homines totius Regni to whom King Iohn granted this Charter no other than the Tenants in Capite as you suppose since in the time of Henry II. this Kings Father the word Liberi Homo was taken in a much larger sense as appears by the Assize of Arms ordained by this King as it is recited in Hoveden's History where after it is appointed what Corcelets Helmets and other Arms every Tenant in Capite should find it immediately follows thus Quicuncque liber Laicus habuerit in Catallo vel in redditu ad Valentiam 16. Marcarum habeat Loricam Cassidem Clypeum Lanceam Quicunque Liber Laicus habuerit in Catello ad Valentiam 10. Marcarum habeas Habergellum Capelet Ferri Lanceam omnes Burgenses tota Communia liberorum hominum habeant Wambais Capelet fervi Lanceam Where you may observe that every Freeman who was worth in Rent or Goods to the value of 16 Marks was to find as much Arms for the Defence of the Kingdom as he that possessed a whole Knights Fee and the meanest Townsman and the whole Commonalty of Freemen for so I translate the Words 〈◊〉 Libeâ—orum hominum were to find a Caplet or Head piece of Iron besides
of Coventry where by Proceres Populus are to be understood the same orders of Men as by Magnates Populus in Mat. Paris so that it was with the smaller Tenants in Capite and the inferior Clergy with whom the King had this larger or more diffusive Treaty as this Author words it F. I confess you have now put a very fair gloss upon these Places I have now made use of but 't is an hundred pitties that such a fine Hypothesis should have no better proofs than your bare Surmises to support it for that is all the Authority that I can see you bring for your sense of this word Populus for the smaller Tenants in Capite and not for the rest of the People but I see no good Authority as yet brought by you to prove it except that clause in King John's Charter which if as I have lately shewed you it will beat a quite different Interpretation all that you have said upon that head will signifie nothing therefore as for the main Argument you raise from the words infinita multitudo nobiâ—ium in Mat. Paris that they could not be the Knights of Shires together with the Citizens and Burgesses because they could not be such an infinite Multitude as this Author here mentions to have me at London as also because of the shortness of the time of the Summons If these are material Objections against our Opinion so it will be likewise against yours for how could this be a great Council according to King John's Charter which expresly provides for Forty days Summons for the Tenants in Capite to come to this Assembly and if so be this usage was broken at this time upon some urgent occasion in respect of them it might be so also as to all the rest of the Kingdom for the Knights of Shires might be chosen at the next Country-court and their Names returned immediately before or together with their meeting at London and as to the Citizens and Burgesses it was yet more easie for them to be chosen and returned in three Weeks time since every body knows the Cities might have called Common Councils and the Towns and Burroughs by the notice of their proper Officers to whom the Writs were delivered might have assembled at their common Halls or Town-houses immediately upon the receipt of the Writs and these together with the Knights Citizens and Burgesses joyn with the great Lords and Tenants in Capite made up the infinita Nobilium multitudo mentioned by Mat. Paria But your main Objection I confess is behind how these Representatives of the Commons here called infinita Nobilium multitudo could be the Knights Citizens and Burgesses whose number could not be at that time above 500 Persons As for this pray consider if the difficulty will not bear as hard upon you for if your Tenants in Capite made such a vaft multitude all those difficulties will arise that you press me with upon my Hypothesis of the meeting of all the chief Free-holders or Lords of Manors in England in Parliament before Knights of Shires were introduced in the room of them viz. How it was possible for so great a multitude to debate vote or do any business and what Room or Church was able to hold so many and the like so that granting all your smaller Tenants in Capite who had but one Knights Fee apiece to have met there these might have made a body of 5 or 5000 Men which how they could have been managed any better then 20000 or 30000 which would have more then taken in all their Feudatary Tenants too I desire you would resolve me if you can so that at last upon your own Hypothesis this Populus consisting of the Tenants in Capite were as much Commoners as the Knights oâ— Shires at this day for as for the word Nobilium I have already proved and you must needs here grant it that it takes in the inferior Nobility or Gentry under the degree of Lords as well as the Superior and if so why not all the considerable measu Tenants of those Tenants so that you have hitherto brought no proof but your bare Assertion that under this infinita multitudo Nobilium Populus must be understood only the great Lords and Tenants in Capite since either this Author speaks Hyperbolically or else all the chief Gentry of England of whatsoever Tenure might have appear'd at this great and extraordinary Assembly So that you are under this Dilemma either this Curia which you confess met ex more was the great Council of the Kingdom or it was not if it was not then there was some other greater Council besides that but if it was then it will plainly follow though you do all you can to mince the matter that this great Council of the Kingdom or Parliament met of course by ancient custom three times in the year without any Summons at all from the King which if I should have affirmed you would have called it a Common-wealth Notion since nothing can be a greater proof that this Assembly of the whole Nation in Parliament did not upon your Hypothesis immediately depend on the Kings Writs of Summons for their Assembling and Acting when met M. Well since you can bring no direct proof that these were any other besides the Tenants in Capite who met at this great Council I have still more reason to suppose them to have been so then you can do for the conorary Opinion therefore pray give me if you can some clearer and later proofs for this difference between the two Councils F. I shall comply with your desires and in order to it shall conclude with two or three of those very Authorities the Doctor has given us in his Answer to Mr. P. where he gives us this passage out of Mat. Paris in the 2â—â—th of Hen. 3. which plainly proves the Tenants in Capite not to have been the common University or sole Rep. esentative of the whole Kingdom â— pray read it Eâ—â—â— in Anno convenerunt regis summonitione convocati Londinum Magnates totius Regni Arciâ—pisâ—ori Episcopi Abbates Priores Comites Barones in quo Concilio portis Rex oâ—e proprio in presentia magnatum i. e. of all the parties above mentioned in Refectorio Westmonasteriensi Axilium sieri pecuniare cui fuit responsum quâ—d super â—oc tractarent â—recedentesque Magnates de Râ—fectorio convenerunt Archiepiscopi â—â— Episcopi Abbates Priores seorsim per se superque hoc diligenter tractaturi â—andâ—m requisiti fuerunt ex parte eorum Comites Barones si vellent illis unanimiter conâ—entire in responsione previsione super hiâ— facienda qui responderunt scâ—licet Comites Barones quod sine communi universitate nihil facerent ture de communi dissâ—nsu electi fuerunt ex parie cleri Electus Cant. c. Now I think here is as manifest a distinction as need to be between the Lords and Commons as Members
of the great Council and the common University of the whole Kingdom for it is obvious that when all the Lay Lords Earls and Barons to whom you may also add your Tenants in Capite if you please being met together were asked by the Bishops Abbots and Priors then present whether they would agree with them or not the Eaâ—ls and Barons answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal and Tenants in Capite since it is plain they were now all here and referred themselves to another distinct order of Men different from themselves who were not there present as also from the Bishops Abbots and Priors who demanded there Consents to what they had agreed upon Now if the Temporal Lords and Tenants in Capite had concurred here had been the consent of the Common Vniversity of Lords and Tenants in Capite but besides the consent of all these there was notwistanding it seems required the Consent of another body of Men called here the Communis Vniversitas by which must be meant the Commons or no body since otherwise they might have all agreed together without any more ado M. I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side but I doubt not if it be better considered it will do you little Service for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite who not â—itting with the Lords at that time they would do nothing without their Consents till it was proposes to them but that they did afterwards all agree pray read the rest of this Narration and it will make it clear enough that this Common Vniversity of Tenants in Capite did also agree with the Lords Bishops and Abbots the words immediately following in Mat. Paris are these Tunc de communi assensu electi fuerunt ex parte cleri Blectus Cantuariensis Wintoniensis Lincolniensis Wigoriensis Episcopi ex parte Laicorum Richardus Comes Frater Domini Regâ—â— Comes Bigod Comes Legr S. de Monteforti Comes Maresâ—ballus ex parte vero Baronum Richardus de Montfiâ—hes Iohannes de Baliol de Sancto Edmundo Rameseit Abbates ut quod isli duodecim providerâ—nt in communi recitaretur nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium communis assensus interveniret from which last passage it appears plain to me that in this Parliament the several Orders of men that were the constituent parts of it were only the Bishops Abbots Priors Earls and Barons and that all these put together were termed the Common Vniversity which is more comprehensive then University simply taken now if the Commons as at this day represented had been there we must have had some mention of them one way or other as well as of the Committees of the other Orders which made up the general Committee of Twelve so that it is plain beyond doubt that the Commons were not part of the Common Vniversity F. Then pray tell me who they were for the Historian tells that when all these Bishops Abbots Priors had now met together with the Earls and Barons yet these last â—ell them that without the Common University they could do nothing which had been nonsense if as your Doctor supposes the whole University or Community of the Kingdom had been all present M. I must confess this is a material Objection but what if to help him out I should tell you that by the Common University here mentioned is to be understood the body of the inferior Tenants in Capite under the degree of Barons and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal therefore the Lords might very well answer that till they had consulted the Common Universty or Body of Tenants in Capite they could do nothâ—ng and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons yet doth it not follow that they made a distinct Estate by themselves different from that of the Lords or greater Tenants in Capite for then the Arch-bishops Bishops Abbots c. who are here expresly said to have consulted by themselves must have done so likewise therefore though our Author is not so particular as he might have been yet certainly this Common University were thereupon consulted and gave their Assents to the choice of this Committee of Twelve who were to draw up their answer to the King for the words are tunc ex communi assensu electi fuerunt which seem to refer to the Common University or Body of Tenants in Capite or else the Lords Excuse as well as the Election of these Persons by the Bishops Earls c. had been very insignificant F. This seems to me to be a precarious assertion and without any due proof for tho the words are Tunc ex Communi Assensu yet I very much doubt whether these words do refer to the Common Vniversity of the whole Kingdom or not for your self confess that Mat. Paris is short in this point and that it was not so seems most likely to me by this material circumstance that not one Person of the Twelve but was either a Bishop Earl or great Baron For that Richard de Monâ—sichet and Iohn de Baliot were so Sir William Dugdale hath proved in his Baronage of England Whereas if the University or Body of the Tenants in Capite had joyned in this Election it is not likely but they would have chosen some of their own Body to represent them in this Committee who were not Earls or Barons Since your self must confess that they then were a great Body of Men who were not Lords nor did at this time Sit or Act Joyntly with the Lords or greater Barons in this Assembly and likewise it farther seems highly probable that this Common Vniversity of Tenants in Capite take it in your sense did not give any Resolution in this matter since we do not find any Mony given in answer to the King's Request but only Complaints of and orders about Redressing of Grievances which was in those days often done in a great Council of the Bishops Lords and Tenants in Capite But I shall shew you now by some other Records which the Dr. himself hath made use of that there often was a distinct Assembly or Council of the Lords and Tenants in Capite different from that of the Commons or Commonalty of the whole Kingdom The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus Rex omnibus c. cum negotiis nostris arduis nos Râ—gnum nostrum contingentibus Proceres Fideles Regni nostri ad nos London in Quindena Paschae proximae praeterita faceremus convocari
Communitate Regni cannot mean as you would have them viz. That the Lords and Tenants in Capite had granted it for themselves and the Community of their Tenants by Military Service only who say you represented the whole Community of the Kingdom for then as I have already observed this needed not to have been granted in Parliament at all but at this rate no Tenants of those Abbeys and Monasteries which were a great many who did not hold in Capite would have payed any thing to this Tax nor yet the Kings Tenants who did not hold in Capite but of some Castle or Honour Nor lastly any Tenants in Socage who were very numerous in Kent as well as in other Counties as Mr. Taylour proves in his History of Gavâ—l-Kâ—nd so that if your Tenants in Capite and other under Tenants by Military Service had been then the Community of the whole Kingdom This Community had not consisted of above one half or at most a third part of the Kingdom But in my sense of this word Communitas here will be no difficulty at all for these Magnates mentioned in this Record being taken as I have proveâ— they often are for Knights of Shires then these words are thus to be understood viz. that all the Parties mentioned in this Record gave for themselves and the whole Community of the Kingdom consisting of all the Free holders of England who all contributed to the Marriage of the Kings Daughter according to their respective Estates and tho the sense of this word had been otherwise in this place yet it would not have contradicted my sense of the word Communitas which I do not aver always to signifie the Commons but when it comes immediately after the words Comites Barones as it does not in this Record you have now cited M. But pray tell me how this could be since the Record says expresly that this Aid was to be Raised by 40 s. upon every Knights Fee which could only extend to Tenants by Knights Service nor could this word Communitas here signifie the Commons as now understood since the Citizens and Burgesses are not at all mentioned who you know do at this day make up the greatest part of the Representatives of the Commons of England F. This proceeds from your not knowing or else not consiâ—ering the ancient manner of reckoning Estates and consequently of Taxing by Knights Fees not only Lands held by Military but Socage Tenure also as appears by those Writs of the 24th and 26th of Hen. III. as they are still upon the close Rolls being both almost the same word for word which I gave you at our last Meeting yet since you may have forgot them pray read them again Rex Vice-Comiti Northampton saluâ—em praecipimus tibi quod per totam ballivam etiam in singulis bonis villis similiter in pleno Comitatu tuo clamari faâ—ies quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento suo tam Militari quam Socagio possint sistentari Milites non sunt siâ—ut Tenementa sus diligunt citra festum omnium Sanctorum Anno. Regni Nostr XXV Arma capiant se Milites â—iâ—ri faciant Where you may Note that all Men who held the value of a Knights Fee either by Military or Socage Tenure were liable to be made Knights provided they could maintain themselves of their Estates which could never have been had not the Custom of Reckoning and Taxing Estates of all sorts as well by Knights Service as otherwise according to the value of so many Knights Fees that is at 20â— per An. been then commonly used But as for your next Objection that the Citizens and Burgesses are not mentioned in this Record and so could not be comprehended under the words Communitas Regni this proves no more then that which will easily be granted you that this word Communitas used in your Record is there to be understood restrictively and according to the subject matter viz. the Community of Free-holders or Land-holders of the whose Kingdom only since this Tax being wholly upon Lands the Commons of Cities and Burroughs then called Communitates Civitatum Buâ—gorum whose Estates lay in Money or Goods could not be Taxed by Knights Fees nor do I doubt but that if we had the Records of that Parliament of the 18th of Edw. I. now left us which are lost it would appear that they also contributed to this Tax according to their Estates as they did in the 34th Year of this King to make the King 's Eldest Son a Knight As for your Record of the 20th of Edw. III. it is but the same in effect with this of the 30th of Edw. I. and the same answer will serve for both only I cannot but observe that whereas you have often asserted that this word Communitas did only signifie the Community of Tenants in Capite now you fall a Peg lower and it must at last take in the whole Community of Tenants by Knights Service whether in Capite or not M. Well then you gâ—ant that this word Communitas does not always signifie all the Commons of England as you supposed but farther that it must mean the Community of the Tenants in Military Service only Pâ—ay see this very Record of the 34th of Edw. I. which Mr. P. has given us at large in his Appendix which being long I shaâ—l tâ—ouble you with no more then what makes to our present purpose viz. that the King inâ—ending to make his Son Prince Edward a Kâ—ight Summoned the Arch-bishops Bishops Abbots Priors Earls Barons and other great Men of the whole Kingdom to appoint what Aid they would grant the King towards it and then it follows thus that the Prelates Earls Barons and others as also the Knights of Shires being mer treating together with deliberation upon this Matter consiâ—ering that an Aid was due to make his Son a Knight besides the burthen that lay upon they King by reason of the Scotch War at lengh they unanimously Domino Regni concâ—ssâ—runt pâ—o sâ— â—â—tâ Communitate Râ—gni â—ricesimam partem omnium Bunâ—â—um suorum â—â—mporalium mobilium for making his Son a Knight and toward his Expences of his War in Scotland Aâ—d then the Cives â—u genses Civit â—â—um ac Burgorum â—c caeteri de Dominiâ—s Râ—gis Congregati treating about the Premises and considering the burthens lying upon the King not mentioning any Aid for making his â—on Knight as not holding of the King by Knights-Fee oâ— Serâ—ice and therâ—fore none of the Community of the Kingdom nor liâ—ble to it Dâ—mino Râ—gâ— un inâ—mitâ—â— ob cauâ—as supra dictas concâ—sserunt Vic. simâ—m pariem bono 〈…〉 mobilium Here the Pâ—elates Earls Barons and great Men with the Knights of Shires consulted together and gave for themselves and the Community of the Kingdom a Thirtieth part of their
Praelatorum Comitum Baronum aliorum proborum hominum de Terra pâ—tentium quod Rex concedere veli quod ipsi pâ—ssunt taâ—â—iâ—re antiqua dominica unde sunt in Tenantia â—icut Râ—x Dominica sua taliavit itâ— responâ—um est fiat ut petitur From all which you may plain see that the Kings of England had anciently a Prerogative of laying Taxes not only upon their own Tenants and their Mesne Tenants who held under them but upon the whole Kingdom too and it their Successors have acted otherwise it has proceeded from their meet grace and favour who have tyed up their owne hands from exercising this Prerogative F. I confess you have muster'd up a great many Authorities but for what end I know not unless it be to prove that some former Kings stretcht their Prerogative to act directly against Law and their own Charters to the contrary and to justifie them in it when they have doâ—e as if all things were done according to their Lawful Prerogative because they did it if this be Law or Reason either much good may do you with it for at this rate the King notwithstanding all Laws made and sworn by him to the contrary may take what he pleases out of our Estates without our consents because his Predecessors broke the Laws and their Coronation Oath into the Bargain but you might have remembred that a de fâ—cto ad jus non datur consequentia but I doubt the Precedents you have now brought will not come up to the proof of the assertion you have laid down for it is plain as well from King Iohn's Charter as by that passage in Bracton I but now cited whereby it appears that extraordinary Taxes such as Hidage Corage and Carvage alia under which I suppose was included your Scutage-Tax also could not be imposed without the consent of the Common Council of the whole Kingdom when the King met his People in Parliament if then this were Law whatever K. Iohn oâ— Henry the Third or any other King acted contrary to this Rule was illegal and produced among other mischiefs the general revolt of all the Baronage i. e. as well the Inferior as Superior Nobility of the whole Kingdom till such time as our Kings finding they could do no good by force were fain at last to content themselves with the Legal Prerogatives of the Crown and by new Laws and fresh Declarations of the ancient Law to declare it unlawful for them to impose any Taxes upon their Subjects without their consents in Parliament But let me tell you that by thus setting up the Kings Illegal Prerogative of taxing the Mesne Tenants of their Tenants in Capite you quit the question for I asked you by what right the Tenants in Capite whom you suppose could grant by this great Charter a Fifteenth of the Moveables of the whole Kingdom as well of those who did not hold of them by Military Service as of those that did nay of those who never held of them at all and you then fly presently to I know not what unknown Royal Prerogative of Taxing the Mesne Tenants of the Tenants in Capite at pleasure which was either according to Law or it was not if the former I have already proved he could not do it by Law at all but if against Law there was the like reason why he should have had the like Prerogative over his Tenants in Capite too even over the very Bishops Abbots and Temporal Lords and then I desire to know whether the great Council of the Kingdom had not been long since destroyed and given up But to examine your Authorities it is true Hoveden says of Richard the First that accepit de unaquaque Hida Terrae V. solidos yet does it not therefore follow that he took this Tax without consent of his great Council it was the ordinary Phrase of Writers in those times to say Rex accepit i. e. received such a Tax when indeed he took nothing but what was given him by his Parliament And therefore tho we find this Tax not mentioned in any other Writer but only Hoveden and so cannot give you an express proof that this Tax was granted in a great Council yet it is most likely nay certain it was for the word accepit does not in its own nature import any violent or illegal exaction and therefore considering the nature of the thing it is greater reason to suppose that this aid was granted by consent since this same Author tells us in the relation of this affair that this Money was received by the hands of two lawful Knights of each Hundred and that they did answer this Money to the Exchequer Coram Episcopis Abbatibus Baronibus ad hoc assignatis who would never have undertaken it had not this Tax been granted by the Common Council of the Kingdom but that this King could not tax the whole Kingdom at his pleasure may appear by a relation out of this very Author in the very same year but a little before viz. that when the King demanded by Hubert Archbishop of Canterbury that Homines Angliae the men of England should find him 300 Milites i. e. Knights to stay one whole year in his Service or else would give him so much money as that he might therewith maintain those 300 Knights in constant pay viz. to every Knight three Shillings of English Money wages a day and that to grant this all the rest were willing as not daring to resist the King's will only Hugh Bishop of Lincoln as a true servant of God abstaining from all evil answered That he would by no means agree to the Kings desire because it would redound to the detriment of his Church c. and so it seems the business fell and came to nothing Now it is plain that this Request must have been made in the great Council of the Kingdom or at least in that of the Tenants in Capite and if he could not charge his Subjects with the keeping but of 300 Horsemen for one year without their assents can any body believe that he should presently after extort a much greater Sum viz. five Shillings out of every Plow-land in England But as for all your Precedants for King Iohn's reign he was such a Notorious Tyrant and breaker of his Coronacion Oath and common Faith both to God and man that I hoped that neither your self nor any good English man would have fetcht Precedents for Prerogative from so prosâ—igate a Reign as his and in which I grant there were more than once illegal Exactions of this nature which yet are branded by those very Historians that relate them for great oppressions and unjust exactions as particularly in this first instance of out of Mat. Paris of K. Iohn's taking away by force the Seventh of the Moveable Goods of the whole Kingdom which is by this Author called by no better than Rapinam Rapine or Robbery The same I may say
him and Tax him as he pleased then by the same Rule the King as Supream Lord over all his Tenants in Capite should have had the like Power over them of making what Laws for them and imposing what Taxes he pleased upon them without their consents and so there would have been no need of Common Councils or Parliaments at all since upon your Hypothesis the Tenants in Capite were the only Persons that had any right to appear there But if neither the Wardship Marriage nor Relief of the Heir could give the King such a Power over his Tenants in Capite much less could they attain the like right over all their Mesne Tenants by Knights Service for that would have given them a greater Power over their Tenants then the King himself had over them therefore if those great Tyes of Wardship Marriage and Relief of the Heir could neither give the King nor yet any Tenant in Capite power over the Estate or Liberty of his Tenants by Knights Service much less over their Tenants by Socage Tenure who were not under this subjection and farther if a right of Forfeiture alone in some Cases could have given the Lords a Power of making Laws and granting Taxes for his Tenants in Socage then they should have kept that right by this Rule since all Lords had a right of Forfeiture even upon their Tenants in Socage in some Cases before the Statute of taking away Knights Service and the Court of Wards and Liveries in the second year of King Charles the Second as I could prove were it worth while As to Scotland I shall not deny the matter of fact to be as you say that it hath at this day no other Representatives in their Parliament but the Tenants in Capite yet whether it was so or not anciently I very much doubt since I find the very same words and Phrases made use of in the Titles of their old Statutes as also in their Records to express the Constituent parts of the great Council of that Kingdom as were used in England to express those of England at the same time For proof of which pray see the old Charters of King Malcolme III. and David I. as you may find them at the end of the 2d Vol. in Mr. Dugdales Monâ—st Angliâ— and you will see the former to have bin made by the Assent of the Comites Barones Regni Clero adquie cent que Populo c. and as I shall also shew you from Sir Iohn Skenes Collection of Scotish Laws to begin with the most ancient there Extant viz. an Assize or Statute made in the time of King William Sir named the Lyon who began his Reign Anno. Dom. 1105. in the Fifth of our Hen. I. to the observance whereof it is there expressed that the Epiâ—copi Abbates Comites Barones Thani tota Communitas Regni tenere firmiter juraverunt so likewise King Alexander II. who began to Reign Anno. 1214. which was the Sixteenth year of our King Iohn and he made his Laws de confilio assensu venerabilium Patrum Episcoporum Abbâ—tum Baronum ac proborum hominum suorum Scotiae and who these were may also farther appear by the begining of certain Statutes made by the said King Alexander in the same Year which begin thus Statuit Rex per consilium assensum totius communitatis suae c. I shall next produce the Title of a Parliament holden the 13th of Rob. I. who began his Reign Anno. Dom. 1306. the 3d. of our Edward I. In Dei nomine Amen Roberâ—us Dei Gratia Rex Scotorum Anno Regni suo Decimo tertio die Dominica proxima c. habito solenni tractatiâ— cum Episcopis Abbatibus Prioribus Comitibus Baronibus aliis Magnatibus de Communitate totius Regni ibidem congregatis and which Title concludes thus de Communi consilio exprâ—sso conâ—ensu omnium Prelatorum libere Tenentium predictorum ac totius Communitatis predicte ordinavit condidit c. Statuta infra Scripta c. So likewise in an ancient Manuscript called Scoto-Chronicon formerly in the Possession of the Right Learned and Honourable Arthur Earle of Anglesey and now in the Herald Office you will find the Entail of the Crown of Scotland to have been made by this King Robert Anno. Dom. 1315. in a general Council or Assembly of the whole Kingdom of Scotland as well Clergy as Laity which as this Author tells us who lived within Sixty Years after was held Dominica proxima ante festum Apostolorum Congregati apud Aere in Ecclesia Parochiali ejusdem Laici Episcopi Abbates Priores Archidiaconi nec non Diaceni caeteri Ecclesiarum Praelati Comites Barones Milites caeteri de Communitate Regni Scotiae tam Cleri quam Laici c. from which it is apparent There was a great Council of the whole Kingdom as in England more comprehensive then that of Tenants in Capite alone And that our English Records also agree with these Scotch Statutes you may see by 2 Records which Mr. Pryn has given us in his History of Papal Vsurpations out of the Rolls of the 17th of Edw. I. it is a Letter to Eric King of Norway concerning the Marriage of his Son Edward with his Grand-daughter then Heiress of Scotland and Norway reciting that the Custodes Scil. Regni Scotlae Magnates Praelati ac tota Communitas predicti Regni Scotiae unanimi expresso consensu had agreed to the said Marriage So likewise in another Letter of this King Edwards about the same Marriage he declares that he had by his Procurators therein named treated and agreed with the Custodibus Episcopis Abbatibus Comitibus Baronibus tota Communitate ejusdem Regni and it presently follows ac praedicti nobiles tota Communitas Regni Scotiae praedicti Now whom can this word Communitas signifie put here distinct from the Earls Barons and Nobles but the Commons of that Kingdom So likewise in the 14th year of King Robert I. there was a Letter sent from the Parliament of Scotland to the Pope complaining against the violence of the King of England which is to be seen in Manuscript and is also Printed by Dr. Burnet in his History of the Reformation and by which it plainly appears that the Comites Barones Libere Tenentes tota Communitas Scotiae agreed to this Letter And that the Cities and Burrough Towns were at that time part of this Communitas appears by the League made betwen this King Robert and the King of France in the 28th year of our Edw. I. which is to be seen in a Roll of this year still Extant in the Tower which League was ratified and confirmed in their Parliament by King Iohn de Bayliol ac Praelatos nobiles Vniversitates Communitates civitatum villarum praedicti Regni Scotiae and I suppose you will not deny that in Scotland the Cities
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ— for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ— Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
without all the rest of their Peers divers of whom it seems the King had for some reasons then omitted to Summon But as for your instance of the Barons Peers or alios Magnates which were somtimes Summoned and sametimes omitted in the Reigns of our three Edwards You do well to put in that it was after the times that the Commons were a third Estate for indeed it was only after that the Tenants in Capite had left off making a distinct Council by themselve which I suppose was about the end of Henry III. Reign and then it is true the King called several of these Tenants in Capite as also others that were not so by Writ to the House of Lords as Pares Baronum i. e. not as real Barons but Barons-Peers since a baâ—e Summons by Writ did not as yet nor long after vest a Peerage in their Heirs so that upon the whole matter I see no reason from any thing you have urged from the example of Scotland to make me change my opinion that the Tenants in Capite were anciently the sole Representatives either of this or that whole Nation in Parliament for pray take Notice that I do not find the Tenants in Capite so much as mentioned in the ancient Statutes of that Kingdom or Charters of their Kings as the Common Council or Parliament of Scotland before the Reign of King Robert III. which was but late in Comparison of the antiquity of those Councils in that Kingdom M. I could say more as to the Antiquity of the Tenants in Capite their coming to Parliament as the sole Reprensentatives of the Nation before the time you mention but it grows late and therefore I shall wave it at present and so shall only proceed to remark that great part of the Errour of the Gentlemen of your Opinion proceeds from this false ground that you suppose that the Parliaments both of England and Scotland were a perfect Representative Body of all the Free-houlders and Freemen of those Kingdoms which is a meer Chymera for in the first place if we will consider it never was nor indeed is so at this day since you your self must acknowledge that all Copy-holders and Lease-holders under Forty Shilling a Year all Freemen in Towns Corporate where the Elections lies wholly in the Major and Aldermen or Common Council and lastly all that will not pay Scot and Lot in divers Burrough Towns are utterly excluded from giving their Votes in the choice of Parliament Men and consequently from having any Representatives in Parliament though sure as much Freemen as the rest of the Kingdom and this either by general Statutes or else by the particular Charters and Customs of those Cities Towns and Burroughs all which are lookt upon as good and lawful Representatives of those Cities and Burroughs so that I am clearly of the Doctor 's Opinion that the Tenants in Capite as well those who were Barons as those that were not only represented themselves and not the Commons as being as you truly observe never chosen by the People and as no Man can believe that a great Lord or Bishop could Represent his Mesne Tenants so neither could the smaller Tenants in Capite who were no Barons be properly said to represent theirs and yet these might according to the Custom of Feudal Tenures and the Power they then had over their Tenants Estates very well make Laws for them and Tax them at their pleasures because the main interest and strength of the Kingdom lay almost wholly in them and these as the Doctor very well observes having the Power of this or any other Nation de facto always did make Laws for and Tax the rest of the People But to say somewhat to the Authorities you have brought from the County Palatines of Chester and Durham I know not what old Priviledges they might pretend to of not being forced to give Voluntary Aids or Subsidies of their Moveable Goods without their consents yet this much I think may be made out that as for all Land Taxes and the general Laws and Statutes of the Kingdom they were as much bound by the one and as much liable to pay to the other as the rest of the Subjects of England or else how came they afterwards to be bound by our general Statutes at all as certainly they were from all times since the Conquest though Chester had no Representatives in Parliament till the Reign of Henry VIII and Durham had none till our times F. You Gentlemen who hold this general notion of Tenants in Capite are so intoxicated with it that you do not care what absurdities or contradictions you fall into provided you may maintain your dear opinion as I shall shew you by and by But first let me tell you your Reply to what I have now said is very fallacious and in some points mistaken as to the matter of Fact For in the first place I doubt not but our Common Councils or Parliament were in their first institution the main Body or Representative of all the Freemen of the Nation and though it may by long continuance of time to deviate from that Institution yet that it is to be attributed either to some prevailing Custom or else positive Law to the contrâ—ry for it is certain that in the Saxon times all the Free holders of England had a right of coming to Parliament in Person and hence it is that Liber Tenens Liber Homo Ingenuus were Synonimous and of the same signification as I have proved from Sir Henry Spelman's Comment in his Glossary upon those words and hence it is that the Members of those Councils were so numerous as they were in those times and long after till they became so vast and unmanageable that they were fain by degrees to pitch upon this method of sending Knights of Shires to represent them which is certainly a very ancient Institution since the Tenants in Ancient Demean claimed to be exempted from the Expences of Knights of the Shires by Pâ—escâ—iption as I shall shew you more particularly by and by and likewise since all Riches consisted in those days in Land or else in Stock or Trade therefore the Cities and Burroughs and Towns by reason of their Riches had always a share in the Legislative Power as well as in giving of Taxes and since all such Citizens and Burgesses not being able to come in Person as the Free-holders could were represented either by their chief Magistrates called their Aldermen or else by Burgesses of their own chusing as at this day so that all Freedom or Ingenuity being in this as in all other Common-wealths reckon per censum by the Estates of the owners our Common Councils were and that truly the Representatives not only of the Estates but Persons of all the Freemen of the Nation for I am so far of the Doctor 's Opinion that the Cheorl Folk as they were then termed were little better than the Scotch Vassals or
French Peasants at this day and so were not Reckoned among the Freemen all Freedom consisting then in so much Freehold Lands held in a Man 's own right or being Freemen of some City or Burrough Town and this gives us a reason why Copy-holders and Tenants for years have no Vote in Parliament at this day since it is certain and all our Law Books allow it that at the first all Copy-hold Estates were held by Villenage and the owners of them at first the Villani or Tillers of the Demefnes of the Lord of that Town there being at first no Free-hold less then that of a whole Township since a Mannour and therefore all Copy-holders and Tenants for years or at Will though Freemen are not admitted to have Votes at this day because as I said before Freedom anciently consisted in the Inheritance or Free-hold Estate of Land or in Riches in Trade or Traffick Leases for Life and Years being not known or at least not commonly in Use in those days and hence it is that when Estates of Free-hold came to be divided into small Parcels all Free-holders till the Statutes of Henry IV. and VI. which we have before cited were as much capable of giving their Votes at the Election of Knights of Shires as the best and greatest Tenant in Capite in England till it was reduced by those Statutes to 40 s. Freehold per Annum these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Freemen and it was these Freeholders alone who owed Suit and Service to the County Court and were amerced if they did not appear This being premised and sufficiently understood will give us a very good account why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires and yet the Parliament may still continue the Representative of all the Freemen of the Nation as the People of Rome and the Territories about it were of all the Romans though there were a great many Liberti and in Inqui lini who sure were Freemen and not Slaves and yet had no Votes in theirs Comitiis Centuriatis or general Assemblies of all the Roman Citizens But that the Liberi homines Libere Tenentes de Regno must take in more than your Tenants in Capite the Doctor himself is at last forced to confess in his Glossary notwithstanding his maintaining the contrary in the body of his Book viz. that the Liberi Homines Libere Tenentes mentioned in Iohn's Magna Charta were not only the Tenants in Capite but their Retinue and Tenants in Military Service also and whom he there supposes to have been then the only men of Honour Faith and Reputation in the Kingdom and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite though this is but Argumentum ad Hominem for the truth is that the Mesne Tenants by Military Service were not the only men of Faith and Honour in those times since it is certain the Kings Tenants in Peâ—yt Serjeantry and of some Honour or Castle or else his Tenants in Socage besides those who held of other Mesne Lords and the Tenants of those Abbots and Priors who did not hold in Capite and yet were very numerous were men of as much Faith and Honour as those that did since many of them possest as good if not better Estates than the Tenants in Capite themselves so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands for if you mean Legal force I have already proved that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants or to make Laws for them without their consents who were altogether as free as themselves Servitiis suis debitis solum-modo exceptis as Bracton tells us much less for so great a Body of Men as I now mentioned who never held of them at all and consequently could not upon your own Hypothesis be ever represented by them but if you mean a Physical strength or force though this can give no Natural much less Legal right for one Man to Lord it over another yet even this was much farther from truth since the Mesne Tenants of all sorts as well by Military Service as in Socage together with those above mentioned who never held of the Tenants in Capite at all made six times a greater Body of Men both for numbers as well as Estates then all the Tenants in Capite taken together But to conclude neither is your remark upon my Authorities from Gheller and Durham at all to the purpose for I have sufficiently proved that those County Palatines were not at first concluded within the general Laws and Taxes of the Kingdom since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester sufficiently declares and certainly Durham had the like Priviledges since I never heard that the Men in that County were more Slaves to their Bishop then the Cheshire Men to their Earl and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the ancient Liberties of these two Counties Palatines and if the King and Parliament made Laws for and Levyed Taxes upon them though they had no Representatives therein this proceeded partly from their being over-powered by the rest of the Nation and partly by the ease they found in being excused from the Expences of Knights of Shires and Burgesses which all the rest of the Kingdom was at that time liable to and which came to a great deal of Money Four shillings per diem being in those days more then Forty Shillings now and yet you see at last they were aware of their Errour and at their request got the Priviledge of having Representatives in Parliament of their own choosing as well as the rest of the Kingdom and if this had not been a certain right of English Subjects how came the Welsh Counties which were anciently no part of the Kingdom of England to have been admitted to choose one Knight for each County and Burgesses for each Burrough Town as well in North Wales as South Wales though both these were Conquered Countries at the first and incorporated to England by particular Statutes and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion that no Laws are made nor Taxes imposed in England sine consensu communi â—uius Regni or as the latter truly adds in Parliamento and certainly this word common Assent must take in all their Assents who had Estates either in Land or other Riches at that time when this Law was Established But leaving this dispute about Scotland and the County Palatines pray make an end for it grows late and give me the rest of your Reasons
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
that that Dr. has with so much artifice put upon them still using them like Charms to bewitch and impose upon his unwary Readers especially since a right Notion of these words is absolutely necessary for the right understanding the true sense and meaning of our Ancient English Historian 〈…〉 after all this pother the Dr. makes about the signification of those words Populus Plebs Vulgus as synonimous as he grants them to be they must all signifie the whole Body of the People as well the Commons as the Lords represented in Parliament by his own confession or else I leave it to your self to consider who of the two is guilty of levelling Notions your Dr. or Mr. P. since one does but allert with the general consent of Ancient and Modern Writers that the words Barones and Baronagium Angliae did anciently take in more than the Lords and Tenants in Capite And the Dr. straight calls him a man of Levelling Principles and that jambles the Commons together with the Lords whereas your Dr. can when he pleases make the words Plebs and Vulgus to to signifie the great Lords and Tenants in Capite contrary to the subject matter on which he discourses and to their Genuine signification either in Ancient or Modern Latine M. I must consess you have now told me more than I ever yet heard or read of or indeed thought could have been urged for the Inferior Clergies having been once a part of the Civil as well as Ecclesiastical Council of the Kingdom and I will consider farther of it But in the mean time let me tell you you have not been yet so clear in your Explanation of the other opposite word Populus for admitting I should grant you that there were in some sort Commons in Parliament as represented by the lesser Tenants in Capite who were not Lords yet does it not therefore follow that there must have been another rank or order of Persons beneath or different from them since as I said it is but how 't is only the Custom and Law of each Countrey that can determine what is the Community or Representative Body of the People so that there is no such certain Analogy between the Clerus when taken for the Inferior Clergy and the Populus when taken for the lesser Nobility or Tenants in Capite Since in Scotland tho' their great Council or Parliament might consist of the Abbots and Inferior Clergy as with us who did not hold in Capite yet you cannot deny but that the Temporal Estate or Layety at least of late Ages wholly consisted of the Earls Barons Lairds or smaller Barons together with the Burgesses of Royal Boroughts all which held in Capite and for ought as I can see from any clear Proofs you have brought to the contrary did so from Times beyond all memory and so it might have been in England too for ought as I know for tho' you have taken a great deal of pains to Answer the Dr's and my Arguments against the Tenants in Capite being the Representatives of the whole Kingdom in Parliament before the 49th of Henry the Third and 18th of Edward the First and also to prove that the words made use of in our ancient Historians Records and Acts of Parliament are of a more comprehensive signification than to be confined to them alone But you have not as yet proved that these Gentlemen who you suppose to have had Places in our great Councils besides the Tenants in Capite were Knights Citizens and Burgesses or whether all the Lords of Mannours or great Freeholders in England appeared there in person for themselves and their under Tenants therefore I pray be a little more clear in this point and shew me some Authorities that the Knights of Shires Citizens and Burgesses have been always constituent Members of Parliament ever since the Conquest for methinks you waver in this Matter and sometimes you seem to assert the former and sometimes the latter F. I confess it is not my humour to be positive in any thing that is in the least doubtful or obscure and therefore as I will not maintain that Knights of Shires always a constituent part of Parliament before your Conquest or presently were after tho' it is positively asserted by the Author of the Modus tenendi Parliamentum since the Antiquity of that Piece is justly questioned by Mr. Selden and other Modern Antiquaries so on the other side I shall not assert that they were not there at all but this much I think I am able to prove that they were Summoned to Parliament long before the 49th of Henry the Third or 18th of Edward the First But as for the Cities and Boroughs that they had their Representatives in Parliament at or presently after your Conquest I think I can prove from as undeniable Testimonies as can be expected Since all the most ancient Rolls and Records of great Councils and Parliaments are long since lost and destroyed Yet to shew you that we have some very ancient Authors that seem to mention not only the Citizens and Burgesses but Knights of Shires to have been summoned before the times you insist upon and if it prove so whether they were there from the very Time of the Conquest is not material since if I confute your and your Dr's Opinion of the 49th of Henry the Third and 18th of Edward the First I carry the Cause and you may then invent if you can some other Epocha whereon to fix their first appearing at our great Councils I shall therefore give you another Quotation out of the same old Monk Sulcardus which immediately follows the conclusion of the Charter of K. William the First to the Abby of Westminster but now cited and it has been made use of not only by Mr. P. in his Ancient Rights of the Commons c. but by Sir William Dugdale himself in his Origines Iuridiciales as also by the Author of Argumentum Aâ—tinormaunicum to prove the Commons to have been summoned to a great Council in the 9th Year of K. William the First Anno Dom. 1075. the words as cited in Sir William Dugdale are these That after the King had Subscribed his Name to this Charter with the Sign of the Cross adding many of the Bishops Abbots and Temporal Nobility instead of Cum multis aliis hath these words Multis praeterea illustrissimis virorum personis Regni Principibus diversi Ordinis omissis qui huic Confirmationi piisimo affectu testes â—autores fuerunt Hii autem illo tempore à Regia potestate diversis Provinciis urbibus ad universalem Synodum pro causis cujuslibet Christiane Ecclesâ—e audiendis tractandis ad praescriptum celeberriumum Coenobium quod Westmonasterium dicitur Convoceti Now I shall only observe from this Author that Mr. Selden in his Titles of Honour and Sir Henry Spelman in his Glossary do render Provincia for a County or Shire M. I pray give me leave
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
against those that are Commissioned by him in pursuance of such Military Commissions and it is also to be noted that all Mayors of Cities or other Corporations were obliged by a former Statute of the 13th of this King to take the same Oath From both which Statutes and Declaration we may draw these Conclusions First That the Militia i. e. the Command of all Military Forces and War-like Affairs are declared to be wholly in the King Secondly That either or both Houses of Parliament cannot make any War offensive or defensive against him c. Pray mark that Thirdly That the contrary practice hath tended almost to the destruction of this Kingdom and that many evil and Rebellious Principles whereof this without doubt is intended for the chief have been instilled into the minds of the People c. And lastly That in pursuance thereof all persons above-mentioned were not only obliged to renounce taking up Arms against the King upon any pretence whatsoever but also against any that shall be authoriz'd by the King 's Military Commissions without any Exceptions And it is farther Enacted That all Clergy-men should be obliged to take this Oath as well as the Laity and it is likewise there ordained That all Clergy-men who were to enjoy any Livings or Preferments in the Church were likewise for the space of Twenty Years next ensuing obliged to subscribe this Declaration so that it is no wonder if the Loyal Clergy of the Church of England think themselves not only tied by the Express Rules of Scripture but also by the Laws of the Land strictly to observe this great Law of Passive Obedience and Non-Resistance Now pray see here the Doctrine of Non-Resistance in its full amplitude yea this very Doctrine declared to be the Law of this Kingdom and that by two express Acts of Parliament And can you think the Two Houses were not in earnest when they made this Declaration surely had they not been so they had been very ridiculous to jest with all our Laws and Liberties had they not been I say verily perswaded of the truth of this Doctrine by Law as well as by Scripture So that I hope you must now be forced to confess that even our own Representatives have solemnly renounc'd for themselves and the whole Nation all right of Resistance so much as defensive against those Commissioned by the King upon any pretence or occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings or those Commissioned by them no not if they never so much abuse their power but the old Primitive Artillery of Preces and Lachryma F. As for what you have more than once said that this Doctrine of Resistance if carried home always ends in the Deposition and Murder of the King tho' it hath I grant sometimes happened yet that has not been always so but most often to the contrary as appears in those Resistances that were made in the Reigns of King Richard the First Henry the Third Edward the First and divers times in Edward and Richard the Second's Reign before things were driven to that extremity as they afterwards were and as I will not justifie the Deposition of those Princes tho' done by Parliament yet will I not absolutely condemn them since no Act of Parliament hath as I know ever done it And tho' it is true all the proceedings in Parliament against Edward the Second are taken off the Rolls yet was it not done by Order of Parliament but by Richard the 2d alone when he by his exorbitant courses feared to be served after the same manner but that there was in those times some Ancient Law extant which was also destroyed by that King appears by that remarkable Declaration of the Lords and Commons in Parliament sent by way of Message to the King then wilfully absenting himself from the Parliament by the Duke of Gloucester his Uncle and the Bishop of Ely who sure were too great to tell so notorious a Lye The Speech you will find at large in Knyghton beginning thus Domine Râ—x And after many Petitions and good Advices at last thus concludes which I shall give you in Latine Sed unum aeliud de animo nostro superest nobis ex parte Populi vestri vobis intimare habint enim ex antiquo Statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex maligno Consilio quocunque vel inepta conâ—â—macia aut contemptu seu protervae voluntate singulari aut quovis modo irregulari se alienaverit à Populo suo nec voluerit per jura Regni Statuta laudabiles Ordinationes cum salubri Consilio Dominorum Procerum Regni gubernari regulari sed captiosâ— in suis inâ—anis Confiliis propriam voluntatem suam singularem proterve exercere tunc licituâ— est iis cum comâ—uni assensu Populi Regni ipsum Regem de Regali solio abrogare propinquiorem aliquem de stirpe Regis loco ejus in Regni solio sublimare From whence you may observe that the Lords here relate to an Ancient Statute or Law then in being tho' the execution of it on the person of his great Grand-father Edward the Second was but of times not long passed and that King Richard might as well destroy the Record of that Law being not then commonly known or in private mens hands as well as he did divers other Records as appears in the 24th Article against this King wherein it is set forth That the said King had caused the Rolls of the Records touching the State and Government of this Kingdom to be defaced and razed to the great prejudice of his People and the disinherison of the said Realm c. So that nothing is more certain than that the Two Houses of Parliament at that time did look upon it as their undoubted right to Depose the King in case he violated the Fundamental Laws and Constitutions of the Kingdom tho' how this could consist with that Power which the King then exercised of calling and dissolving Parliaments at his pleasure I do not understand since it can never be supposed that a King if in full power would permit a Parliament called in his name to sit to Depose himself for Evil Government As for the Resistance made by the Two Houses against King Charles the First I shall not undertake to justifie for the Reasons already given as also because it it was not a War undertaken by the general consent of the whole Kingdom but carried on chiefly by the Puritan or Presbyterian Party For tho' the City of London and many other great Towns were for the Parliament yet it is also certain that the major part of the Nobility and Gentry of England fought for the King and were so considerable a number as to make an Anti-Parliament at Oxford so that this War could never have happened had not the King parted with the power of
The King willeth that Right be done according to the Statuteâ— and Customs of the Realm c. Which not satisfying as too doubtful and general the King at last gave this full and clear answer in legal â—orm Soit Droit fait commâ— il est desirè The Second point in relation to our Civil Properties is this That no Tax Taillage or Aid shall be laid or levy'd by the King without the consent of the Arch-Bishops Bishops Earls Barons Knights Burgesses and whole Commonalty of the Realm in Parliament this was first of all granted by the 56th Law of William the First which I have already cited as also more particularly forbid by the Statute de Tallagio non concedendo in the 34th of Edward the First which was but a revival or explanation of the former Law of William the First and also by the 25th of Edward the Third whereby it is Enacted That no person should be compelled to make any Loans to the King against his will because they are against Reason and the Franchise of the Land and it is also provided that none should be charged by any Charge or Imposition called a Benevolence nor by such like Charge which is also more fully set forth in the said Petition of Right to have been lately executed by certain Commissioners as also that divers other Charges have been layed and levyed by Lords-Lieutenants Deputy-Lieutenants c. contrary to the Laws and free Customs of the Realm The Third Point declared against in this Petition of Right is against Quartering of Soldiers tho' they pay for their Quartors contrary to the Will of the Owners and Inhabitants much more when they did take free Quarter in time of Peace as hath been too much practised of late So that by the Common Law of England not only Private-houses but Inns and Ale-houses are not compellable to Quarter Soldiers unless they will so much was this Nation anciently a Stranger to standing Armies and Quartering of Soldiers in time of Peace that there was no Provision made for it either at Common-Law or by any Statute that I know of 4thly That no new Law can be made without an express Act of Parliament or the joynt-consent of the King Lords and Commons and therefore that Parliaments ought to be duely summon'd and held for the good and safety of the Kingdom by Common as well as Statute Law once every year and according to more modern Statutes once in three years at least or whenever there is a just and necessary occasion for it And for proof of this I need go no farther than the old English Saxon Law which ordains that the great Council or Mycel Synod should be held twice in the year as the ancient Mirrour of Justices recites and the constant Custome long after the Conquest in which there never passed a year without a general Council of the whole Kingdom and when this came by degrees to be discontinued then were those Statutes of Edward the Third and Richard the Second made whereby it was enacted that a Parliament should be held every year and oftner if there were occasion 5thly Since the Legislative Power of Parliaments is the very Soul and Essence of the Government the Election of Knights Citizens and Burgesses to sit and serve in Parliament ought to be free and all the Members of Parliament who have places there either by Patents or Writs of Summons as the Lords or else by Election or Writs as the Bishops ought to be present and there to have freedom of Speech and Votes without any Guards to over-awe or terrifie them and none to be forced threatned bribed or tamper'd with to give their Votes contrary to their Consciences either by the King or any of his Ministers This is ordain'd by the Stat. of Westm. 1 Chap. 5. whereby it is expresly provided that all Elections ought to be free which Sir Edward Cook in his Notes upon this Statute extends to Elections of Knights of Shires as well as other Elections since I have sufficiently proved that the Commons elected Members to Parliament when this Statute was made and that this was the ancient Law of England you may see in the Rolls of Parliament 1 Hen. 4. wherein it is alledged as by the Parliament as one of the Articles against Richard the Second in these words Item licet de stato consuttudine Regni sui in Convocatione enjuslibet Parliamenti Populus suus in singulis Comitatibus Regni debeat esse liber ad eligendum deputandum Milites pro hujusmodi Comitatibus ad inter â—ssendum Parliamentis ad exponendum corum gravamina ad prosequendum pro remediis superinde prout videntur expedire Tamen praefatus Rex ut in Parliamentis suis liberius consequi valeat suae temerariae voluntatis effectum direxit mandata sua frequentius Vicecomitibus ejus ut certas Personas per ipsum Regem nominatas ut milites Câ—mitatuum venirâ— saciant ad Parliamenta sua quos quidem Milites eidem Regi faventes inducâ—re poterat prout frequentius fecit quandoque pro minas varias terrores quandoque per munera ad consentiendum illis quâ—a Regno praedicto prâ—ejudicialia fuerant Populo quam plurimum onerosa c. So that you here may see that it was then judged by the whole Parliament to be a brench of one of the Fundamental Liberties of the Nation for the King to make false returns to be made of Parliament-Men as also to corrupt or over-awe their Votes either by Promises or Threatâ—ings But to conclude that we have such things as Fundamental Laws and Priviledges I shall go no farther than King Iames I. his Speech confirmed by an Act of Parliament of the First year of his Reign wherein it is recited That the King hath vouchsafed to express many ways how far it is and ever shall be from his royal and sincere care and affection to the Subjects of England to alter or innovate the Fundamental Laws Priviledges and good Customs of this Kingdom whereby not only his royal Authority but the Peoples Security of Lands Livings and Priviledges both in general and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present Confusion will fall upon the whole State and â—rame of this Realm So that if this Judgment of the King and both Houses of Parliament was true sure we may justly suppose that things of such vast concernment deserve our contending for by all means possible and lawful to preserve them for what the Nobles of the Land upon occasion once said with one Voice in full Parliament every Free-born Subject of England may as well say at this day Nolumus Leges Angliae mutari which is a Maxim that ought to be imprinted upon the Hearts of all true Englishmen who as my Lord Bacon very well observes take themselves to have as good Title to their Laws as to the
of this necessity as certainly he is in the intervals of Parliament it can never be supposed that the first Prince or his Successors that first parted with these Priviledges to the People ever intended to be so straitly tied to them as that in no case whatever tho' never so pressing they should not depart from them much less that he should forfeit his Crown if he should wholly break them nay should persist so to do and resolve to turn this limited into an absolute despotick Monarchy since the observation of these Laws being but concessions of his own or his Predecessors can never be looked upon as conditions of his holding the Crown nor of the Subjects Allegiance to it there being as you your self confess no such clause exprest in either part neither in the Kings Coronation Oath nor yet in their Allegiance to him as you your self cannot but acknowledge and tho' it is true the King swears at his Coronation to keep and maintain the Laws yet Grotius tells us Lib. 1. cap. 3. that an Empire does not cease to be Absolute altho' he who is to rule promise some things to God or to his Subjects even such which may appertain to the manner of the Empire and that not only concerning the observation of the natural or divine Law but of certain Rules to which without a promise he were not obliged So that in all Promises of this kind the manner of the obligation is not reciprocal or of the same sort on both sides as for example it is only moral in respect of the King and it is lefâ— wholly to God to judge between the King and his Subjects and to punish him when he breaks his part but to the King as God's Lieutenant on Earth it belongs not only to judge of his Subjects breach of their Oath and Contract but also to punish them for so doing and compel them to the performance of it and of this Judgment are all the Modern Civilians as for Bodin I have given you his opinion in the chapter I last cited concerning this matter and he as well as Grotius is clearly of opinion that Absolute Monarchs such as he reckons the King of England to be are not to be called in question or destroyed let their breach of Laws and Tyranny be never so notorious much less can they forfeit their Royal Dignity for such male-administration and tho' Grotius is of opinion that in cases of great and evident danger of Life Subjects may have a right of resistance against absolute Princes and those commissioned by them what is this to the case in hand viz. a resistance against an Absolute Monarch for violation of those Priviledges and Liberties that were granted by himself or his Ancestors and without which Subjects may very well live and subsist as we see they do under the most Absolute Despotick Monarchies where they enjoy no such thing tho' perhaps they do not live so well and freely as we do nay Pufendorf the Author you so much make use of in his seventh Book will not allow Subjects to take up Arms or resist Absolute Princes nor for too great cruelty in punishment nor for imposing too immoderate Taxes since the presumption of Justice and necessity for the doing of these things is always on the Princes side nay if his Promises are not kept or priviledges formerly granted are taken away if the Prince be Absolute and will pretend any fault necessity or remarkable benefit thereby to the common-wealth he shall be deemed to have acted by a right of which the faculty of judging is wholly wanting to the Subjects since all Priviledges have this exception unless the welfare or necessity of the Common weal forbid them to be observed F. Since your last Discourse consists of two parts matter of Fact and matter of right deducible from that fact I shall speak to each of them in order first as to the matter of Fact it is a great mistake in you and Dr. Brady to maintain that K. William I. was really a Conqueror and by his Sword without any other Title obtain'd such an entire Victory over K. Harold and the whole English Nation as gave him an Hereditary Right for himself and his Heirs to the Absolute Allegiance of the whole English Nation without any reserve or conditions whatever so that all our Ancient Liberties and Priviledges being thereby lost and forfeited this Nation can claim nothing of that kind but from the grants and concessions of that King or his Successors every one of which Propositions contain so many notorious mistakes in matter of Fact for in the first place King William never claim'd the Crown by Conquest but by the adoption and Testament of King Edward the Confessor and I desie you to shew me any Ancient Law or Charter either of his own or any of his immediate descendants wherein he is stiled Conqueror 't is true in his Charter to the Abby of Westminster he says in one that by the Edge of the Sword he obtain'd the Kingdom by the Conquest of Harold and his accomplices yet does not found his Right in that Victory alone but on the donation of King Edward his Cozen the words are remarkable in ore gladii adeptus sum Regnum Anglorum devicto Haraldo Rege cum suis complicibus qui mihi Regnum divinâ providentiâ destinatum beneficio concessionis Domini Cognati mei gloriosi Regis Edwardi concessum conati sunt auferre And this donation he calls an Hereditary Right in divers other Charters as particularly in one also recorded by inspeximinus beginning thus In nomine Patris Filii spiritus sancti Amâ—n Ego Willielâ—us Rex Anglorum haereditatio Iure factus So likewise his Son K. Henry I. in his Charter to the Abbot of Ely creating him a Bishop calls himself the Son of William the Great not the Conqueror Qui Edwardo Regi Haereditario jure successit in Regnum And in vertue of this Donation he was after his Victory against Harold by publick and full consent of the whole Nation or People of England as also of the Normans he brought with him Elected and Crowned King and at his Coronation took the same Oath at the High-Altar at Westminster which his Predecessors the Saxon Kings had taken before him with this one Clause farther which was very necessary to be done at that time viz. quod aquo Iure Anglos Francos tractaâ—t so that let his Title by Conquest have been what it would it was either by a just right of War to recover his due or by none at all if the former he could only succeed to such Rights as K. Edward the Confessor before exercised and enjoyed since he came hither only to take the Crown that was so bequeathed to him and to hold it under that Title but if he had no Title at all but his Sword he then could obtain no just right to the Crown of England either for himself or
his Successors but if they will only insist upon their Title by the Sword without any preceeding or subsequent right they may be as lawfully turned out again by the Sword since it is own'd by all Writers on this Subject that a Conqueror in an unjust War can obtain no right over a free People So much for the matter of Fact I come in the next place to point of Right in Law I grant indeed that a simple Oath or Pact between an Absolute Monarch and his Subjects to do or perform such or such a thing or to let them enjoy such and such Priviledges does not immediately give the People a Power to compel such a Monarch and his Successors by Force of Arms to the strict observance of them in case of a violation on his part but our case is very different from this for here a Foreign Prince recovers a former Right to the Kingdom and that by Force and is invested with the Crown in Vertue of that Right by which he claimed it and is also sworn to maintain the Ancient Government and Laws according to which the whole Legislative Power was not in the King alone but jointly in the King and the great Council of the Nation without whose grant or consent he ought not to have laid any Taxe upon the Nation as I shall prove if there be occasion Now all our Ancient Rights being granted and acknowledged by him and a constant common Council of the Kingdom appointed to meet to see them observed as it did many times in this King's Reign as also in those of his Successors they were not bare Priviledges conferred of favour and which might be observed or broken at the Will of the Prince that granted them but a Form or Rule of Government by Laws to be made and agreed upon in a standing Council appointed not only to make them but also to see them observed as appears by that passage so often cited wherein the King is expresly said to have a Superiour viz. the Law and the Court of Barons who were to put a Bridle upon the King in case of his governing without Law and this farther appears by the great Charters of Henry I. K. Stephen and K. Iohn c. In the first of which it is declar'd that the Nation having been oppressed by unjust i. e. illegal exactions he therefore forbids all Common Money or Taxes not taken through all Cities or Counties in the time of K. Edward and also confirms the Laws of his Father whereby his Barons and Tenants in Capite should be free from all Taillage or Taxes and he also thereby restored to them the Laws of K. Edward with those emendations which his Father had made by the Common Council of his Barons Now the great Charter of K. Iohn was but an Addition or rather Explanation of this Charter of K. Henry I. which was at first demanded by the Barons to be again confirmed by this King at the instigation of Stephen Langton Archbishop of Canterbury as Mat. Paris shews us at large Now since neither K. William the I. nor his Successors ever changed the fundamental constitution of the Government as to the Legislative part of it as hath been already proved and that those breaches that had been made upon it by taking Taillage or Taxes without the consent of the great Council are all hereby expresly forbid these are certainly more than such meer Priviledges which the King himself is the only keeper of and can dispense with at his Pleasure but are indeed such Fundamentals as concern the very cosâ—iâ—uent form or Rule of Government which as I have also proved was mixt not limited in that very institution and tho' the learned Pufendoâ—f agreeâ— with you in the case of compacts between an Absolute Monarch and his Subjects yet as to the point in hand he is wholly of my mind as you may see by this passage in his Academick Dissertations in his Discourse de Interreguis where arguing against Mr. Hobs who will not allow of any compacts between an Absolute Prince and his Subjects he has this passage which I shall here read to you in English That tho' in Pacts in which submission is wanting certain and defined performances may be set forth to be observed on either side from an intrinsick impulse of Conscience when either of these refuse to perform them nothing but War or the compulsion of a Superior Lord common to both of them remains yet in pacts by which one Party is made subject to the other it belongs to the latter to define what ought to be performed by him as also a power over the other compelling him to the performance whether he will or not which power does not belong reciprocally to the other party against the former hence the party commanding cannot be questioned for a breach of compact unless he either wilfully abdicaâ—e all care of the common wealth or put on an hostile mind towards his Subjects or manifestly or deceitfully in latin dolo malo depart from the rule of governing on whose observance as upon a condition the subjects Allegiance depends which is easily to be avoided by any Ruler if he will consider that not the highest of Mortals are free from the Laws of humane chance so that let the power of your Conqueror have bene never so great or Absolute it is plain he not only renounced it himself but several of his Successors have done the same for themselves and their heirs therefore make the most of it they must still claim by â—ertuâ— of the contract to maintain the constitution as they found it or else resolve all their right into meer force and then vim vi pellere licitum est M. It is no wonder that you and I differ in our conclusions since we also differ so much in the premises and in the very matter of fact concerning King William the Conquerors coming to the Crown you saying he came to it partly by the Sword but founded on a donation of Edward the Confessor and partly by the consent and election of the People of England yet you your self cannot deny but force or conquest had a great share in the business and indeed was all the right he had for as for that donation of K. Edward it is either forged or else K. William could claim nothing by it since England was then either an Hereditary Kingdom or elective and take it which way you will this donation of the Confessors cou'd signifie nothing either to the prejudice of the People that were to Elect or the next Heirs who were to succeed after K. Edward's decease neither could he claim as Heir to him by blood for the relation between him and K. Edward was by his Mother Emma Sister to Richard the second Duke of Normandy this William's Uncle so that the Conqueror was no way descended from the Blood Royal of England Therefore his true quarrel with Harold Let his pretence be what it will was
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
their good behaviour could be the Probi legales homines who served upon Juries to conclude if I have already proved as I think I have sufficiently that K. William took away the greatest part of the Lands of England and gave them to Normans and Frenchmen who were the only true Free-men or Free-holders of the Kingdom and as such owed Suit and Service to the Hundred and County Court in which as you your self set forth all the considerable Actions as well Real as Personal were then commenced and tryed it will also follow that the Suitors who were the Judges in those Courts being for the greatest part at least Frenchmen all the Trials and Proceedings therein must have been in French and not in English which is contrary to what you have undertaken to prove F. If this be all you have to object against what I have now said that all Pleadings in the Inferiour Courts in the Country must in the time of your Conqueror have been in French and not in English I hope I shall give you very good satisfaction to the contrary and therefore I shall prove to you that the very same persons who were the Suitors or Judges in the Hundred Court were also Suitors in that of the County tho' they were of never so small Estates of Free-hold and those that were thus Judges in the Hundred Court were also the same persons of which the lowest Court Viz that of the Headborough or Tythingman did consist appears by the very definition of a Hundred as you may see it in Sir H. Spelman's Glossary Est autem Hundredus portio Comitatus quâ Olim degebant Centum pacis regiae fideiussores uti Decuria quâ decem complexus est igitur Hundredus decem Decurias ut centenarius numerus decies denarium now that the County Court consisted of the same sort of persons of that of the hundred is also as certain since all England was then and is now divided into Counties Hundreds and Tythings so that as the Hundred Court consisted of a hundred Persons who had all given Pledges to the King so did the County Court consist of all the Free-holders or Free-men of the several Hundreds of the County who all owed Suit and Service to the County Court and as such were returnable upon Juries in all Trials in that Court tho' they had never so small Estates of Free-hold for there were no Laws that limited the estates of Free-holders returnable upon Juries on Assizes or Trials to the yearly value of Forty Shillings until the Statute of West II. But that these Suitors to the Hundred Court must have been for the most English in all your Conquerors Reign your Dr. has given us a sufficient testimony in his answer to Mr. A's Ianus Anglorum p. 35. where he tells us the Jurors were antiently called Tests and often in Doomesday-book it is thus sound Testatur Hundredus Teste Hundredâ the Hundred Witnesseth that such Lands is such a Man's or by the Witness of the hundred such Land is a such Man's See the claims in Yorkshire Lincolnshire and Suffolk at the end of the Book Now the use that I shall make of these words of the Drs. is this that in many of these claims the Issue is that such a one held the Land die quo Rex Edwardus suit vivus mortuus now I desire you to tell me if the free-holders of the Hundred were all Strangers and Normans at this time as your Dr. supposes they all were that served on Jurles in the Hundred and County Court how these men could testifie who held the Land at the time of K. Edward's Death and by what Services and I desire you to be pleased to read and consider the Trial mentioned in Doomesday-book between Will. de Chornet and Picot the Sheriff where the proof was by the best and most antient Men of the whole County and Hundred that this Land in question belonged to Chornet per haereditatem sui Antecessoris So that then the best and antientest Free-holders of the County of Berks were the same who were so in the time of K. Edward or else how could they Witness this Land to have been held by Chornets Ancestor But because you have two or three small objections against this truth I shall endeavour to remove them The first is that those who try'd one anothers Causes in the County Court are in the Law of K. Henry I. which you now cited called Barones Comitatus qui liberas Terras habent Therefore you imagine that these Barones Comitatus must needs have been all Tenants in Capite or by Knights Service at least who by vertue of that Tenure owed Suit and Service to the County Court which is a great mistake since every Free-holder of whatsoever Tenure who was resident within the County owed Suit and Service to that Court and it is only by vertue of the twentieth of Henry the sixth which as I have already shewed you limited that Service only to Free holders of Forty Shillings per annum or above now that every Free holder tho' of never so small Estate was anciently a Baron of the County is also as certain in the ancient and larger acceptation of the word Baron which did not originally signifie only a Tenant in Capite or by Knight Service but any other Free-holder who could be returned upon a Jury concerning Free-hold in the County Court now that every Lord of a Mannor and Free-holder was anciently called a Thane before the Conquest appears by this Law of K. Knutes habet omnis dominus familiam suam in plegio suo si accusetur in aliquo respondeat in Hundredo ubi compellabitur sicut recta Lex sit Quod fi accusetur fugiat reddat Dominus ejus Regi Weraem i e. precium nativitatis hominis illius si Dominus accusetur quod ejas consilio sugerit adlegiet se cum quinque Thanis id est Nobilibus idem sit sextus si purgatio frangat ti reddat ei scil Regi Weram suam qui fugerit extra legem habeatur I shall nor trouble my self to translate this Law since the Latin is plain enough only take notice that by this word adlegiet he shall wage Law or make Oath together with five Thanes that is Noblemen or Gentlemen idem sit sextus whereof he himself should be the sixth where you may see that every Free-holder being Master of a Family is here called a Thane who was to give pledge or security that all his Family should answer the Law in the Hundred Court for any offence they should commit and these Thanes were such as Mr. Lambert expresses by Ascitus sibi ingenuis quinque for what he calls ingenuus Brompton calls liber homo that is every Free-holder so that you see Thane ingenuus and liber homo signifie all the same thing that is the lower sort of Thane or Free-holders who owed Suit
English and if it were so in this cause it will follow for the same reason in all other Counties all over England Lastly That these Gentlemen were well skilled in the Antient Laws and Customs of England which had been in vain if they had been altered as you suppose M. I will not deny but that in the beginning of the Conquerors Reign many Englishmen might have Estates left them which might not be taken away till some years after and Mr. Selden in his Titles of honour places this Tryal between Earl Odo and Arch-bishop Lanfranc about the first year of K. William and I suppose that it happened before the fifth year of his Reign when Matthew Paris tells us that the Earls Eadwin Morcar and Siward together with Egelwin Bishop of Durham as also many thousands of Clerks and Laicks not being able to bear the severity of K. William fled into Woody and Desart places and from thence got into the Isle of Ely where they fortified themselves and whither K. William followed them and taking the Island made them submit to mercy and then this Author tells us that the K. put the Bishop of Durham in Prison and as for the rest some of them he killed some he put to ransom and others he commited to perpetual imprisonment so that I reckon from this time the King took away most of the Englishmens Estates as not trusting them any more F. If this had all happened as you have put it yet would it not prove what you have maintained for if those Englishmem who had not been engaged with Harold or else had been pardoned for it still held their Estates and as you say they forfeited them afterwards for Rebellion then it is certain K. William did not proceed against the English as a Conqueror since if he had he would have taken away their Estates Iure belli which since as you your self confess he did not whatever Estates he took away afterwards was either for Treason committed by the English or else wrongfully if the former he did it as a lawful King if wrongfully then as a Tyrant and as such could obtain no just right against the English Nation by his unjust proceedings But indeed after all you are quite out in your account concerning this matter for as to the great Tryal you now mentioned it could not be in the first or second year of King William's Reign nor could happen sooner than the sixth or seventh of his Reign for Arch-bishop Stigand was not deposed till the year 1070. which was the Fourth year of K. William and in the next year being 1071. the Annals of Mailros as also the Chronicle of Thomas Wiks place Archbishop Lanfranc's Coâ—secration and fetching of his Pall from Rome so that it could not be until the year after this Rebellion at the soonest when Lanfranc was setled in his Bishoprick that this suit was commenced by him against Earl Odo and therefore a great many of the English Nobility and Gentry had still Estates let them after this Rebellion And that they continued to have so some years after this time appears by those Writs of K. William which Mr. Atwood hath given us in his Ianus Aâ—glorum c. concerning the restitution of the Lands belonging to the Church of Ely which are also transcribed and allowed by your Dr. in his answer to it and I desire you particularly to consider that writ of K. William's directed to Arch-bishop Lanfranc Roger E. of Morton and Ieoffery Bishop of Constance commanding them to cause to be assembled all those shires who were present at the Plea had concerning the Lands of the Church of Ely before the Queen went last into Normandy the rest being most material to the cause in hand I shall give you in Latin Cum quibus â—tiam sinc de Baronibus mâ—is qui competenter adesse potâ—â—unt praedicto placito intersuerunt qui terâ—â—s ejusdem Ecclesiae tenent Quibus in â—num congragatis eligantur plures de illis Angliâ— quisciunt quo modo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit quod inde dixerint ibidem jurando testentur From whence we may also gather that this Tryal concerning the Lands which is here ordered was to be in like maâ—ner and by a Jury of the same sort of Englishmen who tryed the cause between Earl Odâ— and Arch bishop Lanfranc that is they were English Gentlemen of sufficient Estates or Tenants in Capite if you please Now. let us look into the time when this happened since the Writ doth not tell us when it was only that it refers to a Plea held concerning the Church of ELy before the Queens last going into Normandy so that this tryal here mentioned could not happen till after the fourteenth year of K. William's Reign which I prove thus this Queen did not come over into England till the year 1068. when the King returned with his Queen out of Normandy after his Coronation at which she was not present after which K. William went not into Normandy till the seventh year of his Reign when he went over and took Mans and then whether he carried the Queen with him is uncertain but the Annals of Waverly tells us he went over again the next year and then he might carry the Queen with him which might be the first time she returned into Normandy but it appears by the same Annals that the King went over the year after and staying but a little while returned into Normandy to fight against his Rebellious Son Prince Robert where staying not long he returned as soon as he had driven his Son out of Normandy nor do we find he went over again till the 14 year of his Reign being the year 1080. and then I suppose since he stayed there for some time he carried the Queen with him and to this last going over I suppose this Writ we have cited refers for tho' the Queen went over again after this yet she returned no more because she died in Normandy in the year 1083. as Iogulph who was then alive relates the use I make of these particulars is this that long after the time you suppose the English to have lost all their Estates we here find a great Jury of Englishmen summoned out of several shires in England to try this great Cause concerning the Lands which the Church of Ely had been unjustly Disseised of so that here you see after the fourteenth year of this King the English still continued to keep their Estates and to serve upon Juries and consequently the Pleadings before them as well as their Verdict must have been in English M. I shall not insist upon this point any farther yet this much you cannot deny but that all the Pleadings and Proceedings at Wâ—stminster as also the old Law books were all in French as appears by the Mirror of Justices Britton not to mention those of latter days as Littleton's Tenures and others and so were
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
since according to your doctrine the bare endeavouring it would be nothing and after he had once brought it to pass it would be then too late to retrieve it But that the King did really endeavour thus to subvert the fundamental constitution appears not only by his closeting and threatning Members to turn them out of their places if they would not submit to his Will in taking off the Penal Laws about Religion whereby all freedom of Voting would have been quite taken away But when the King saw this would not do he then fell a new modelling of Corporations and by bringing Quo Warranto's against their Charters to get it into his own power to nominate or approve of all Mayors Aldermen and Common Council men who in those Corporations having the sole Elections of Parliament men he would thereby have had the naming of them also in his power your next exception is against their declaring him to have broke the Original Contract between the King and the People for that you are not yet persuaded there was any such thing because we cannot shew it you in any Common Law or Statute Book written in express words as for the Statute Law I grant that there is no such express Contract to be found in any Statute yet doth it not therefore follow that there is no such Contract by the Antient Common Law of the Kingdom Now that our Fundamental Laws are not all to be found in writing is no wonder since it is a maxime of our Common Law that it was not a Law because it was Written but it was Written because it was a Law for it was a Law when it was only in the Breast and Heads of the King and People of this Nation without any writing at all and you your self must grant that if the Hereditary Succession to the Crown be a Fundamental Constitution it is notwithstanding no where to be found in Writings as I know of but the contrary asserted by divers Acts of Parliament but that there is such a thing as an Original Contract I shall prove from such a necessary consequence as I think cannot be denied for as that Statute of King Iames. I. sets forth which I have now cited and your self have already acknowledged there are such things as Fundamental Laws that is Laws that are as antient as the constitution of the Government there must have been also an implicit Fundamental Covenant or Contract on the Kings part that he would maintain them without any violation and this is that we mean by an Original Contract and if it were not so it had been the most foolish and unreasonable thing in the World to require every King to swear before he was Crown'd that he would maintain the Rights of the Church and the Antient Laws and Customs of the Kingdom and that this was Antiently looked upon as a renewal of this Original Contract appears by all our antient Historians who till the Reign of King Ed. I. never give the next Heir the Title of King but of Duke of Normandy till he was actually Crown'd and had taken his Coronation Oath and for this I desire you would consult all our antient Histoâ—ians since your Conquest beginning with Inguâ—â— and Eadmerus ending with Thom. Walsingham But as for your exception against his violating of the Fundamental Laws is yet more trivial for you cannot deny that there are such things and if so surely a King may violate them if he pleases and therefore your excuse for the Kings breach of them because they are not to be found together in any one place but are to be pick'd up here and there from Magna Charta and other Statutes makes nothing against the validity or the possibility of his knowing them for as before they were reduced to Writing by those Statutes which only declare and confirm the Antient Common Laws and Liberties of England they existed as I said but now in the Heads and Hearts of the King and People so when divers Kings of England by their Tyrannical and Illegal practices had made divers violations of these Fundamental Rights and Priviledges there then grew a necessity of new granting and confirming those Liberties and consequently of reducing them into Writing which there was not before and that is the true reason why Magna Charta and other Statutes made in the time of Henry the III. Ed. the I. and divers others of their Successors were made either for their explanation or ratification according as occasion requir'd and as several Princes had more or less violated these fundamental Laws of the Government for before they had so done there was no need of the Parliaments making or declaring any law about it But if the King would have but read and considered the Articles exhibited in Parliament against Edward and Richard the II. he might easily have seen the Laws altogether that will make a Prince to be declared by his Subjects to have forfeited his Crown But that King Iames had before his desertion endeavour'd to extirpate the Protestant Religion the Laws and Liberties of the Nation appears by those several Articles the Convention has given us in their late Declaration which they presented to King William upon their declaring him and his Princess K. and Queen of England to which I shall refer you since it is commonly to be had you know it consists in the recital of divers things the violation of which has been always counted in all Kings Reigns a breach of the Original Contract I come now to the last Clause save one you except against viz. That having withdrawn himself out of the Kingdom hath Abdicated the Government Now your main argument against it is that the Kings desertion of the Government being only for fear of his life or of being depos'd from his Royal Dignity could not by his going away be said to Abdicate or renounce the Crown since he went away with an intention to return and repossess it as soon as with safety he might to which before I make any answer I must freely own that were this the case as you have put it I think there would be no great dispute in it since I grant that a King who is thus forc'd to fly for fear of his life ought not to have any such injustice put upon him but if you please better to consider it the case was quite otherwise for I have already proved that when King Iames I. went away he had then an Army about him was free and in his own Pallace and was at that time in actual Treaty with the Prince nor had London nor any considerable strong place in England then surrender'd it self to the Prince so that if there was any necessity for his departure but what he had brought upon himself by his refusing to call a Parliament burning the Writs and sending away the Queen and Child together with the main instrument of Government the Great Seal of England this must certainly be looked upon
offending from his Office or Dignity whether he will or not so that if the Convention have adjudged the King to have Abdicated they must suppose it to have been by his own consent or not at all but if they suppos'd him to have forfeited why did they not down right declare so as well as the Scotch Convention had done and then I could have â—old better what to have said to them and have proved that only Subjects and not Kings are liable to forfeituâ—e F. I will not deny but that the word Forfeited had been more proper than Abdicated in this Vote of the Convention but yet I think I have sufficiently proved that there is no great difference between a mans Abdicating an Estate by a wilful disposing of it otherwise than the Law requires and â— forfeiture of it as I shewed you that Tenant for life aliening in Fee doth not only forfeit his Estate to him in reversion but is also an Abdication of it though perhaps he had reserved to himself a lease of the Estate for years and this is call'd a Forfeiture of the Estate though he committed no other crime than the wrong done to him in reversion and therefore as I said before this Forfeiture doth not always suppose any crime for which the party may be punished otherwise than by the loss of the Estate nor yet doth it suppose any Superiour Power in the party that takes it But your exception against my authority from Tully or Mark Anthony's imply'd Abdication of the Consulship without any express renunciation of it is very â—rivolous for you your self own that Anthony did not expresly but only effectually renounce the Consulship when he offered Caesar the Crown and if he did not do it expressly then it seems Anthony could renounce the Consulship without ever intending it by doing an act that in effect abrogated his own power and why King Iames might not do so too with his Crown I desire you would shew me any sufficient 〈◊〉 But that the Convention did also look upon this Abdicatiâ—â— of King Iames as a Forfeiture appears plainly by their declaring the Throne Vacantâ— without troubling themselves to find out who was the next Heir to be placed therein But to conclude there might be a very good reason why the Convention did not think fit to make use of the word Forfeiture as the Parliament of Scotland have done in the like case for some of the most wary and prudent Members of the House of Commonâ— considering that this word Forfeiture might prove of very hard digestion to a great part of the House and also might give great offence to divers of the Bishops and Lords in the House of Peers they found out this word Abdicated is an expediâ—â—â— to solve that difficulty aâ—d which might not only express the Kings wilful desertion of the Government by his first departure but also his renunciaton of it upon those legal conditions he was to hold it 〈…〉 I have already observed the word Abdicated in their Vote refer not only to his having withdrawn himself out of the Kingdom but to all the rest of the clauses foregoing or else they would signifie nothing in that place both the Abdication and the Vacancy of the Throne being grounded upon all of them alike I should now proceed to your last exception against this Vote of the Conventions viz That the Throne is thereby Vacant But I see it is now very late and therefore it is best to defer the farther discussing of that matter till â—â—other opportunity which I desire I may have as soon as you please M. Yea and then we will also confides that part of the Conventions Declaration whereby they resolve that the Prince and Princess of Orange be declar'd K. and Queen of England c. which if you can prove to me to be according to the Laws of England I will then acknowledge them to be lawful King and Queen of England but till I am convinced of it I must beg their pardons F. Well I could wait on you again two or three days hence and then I hope I shall make out those points as well or better than any I have done hitherto and in the mean time I am your humble Servant M. I pray do it better if you can or else you will not very much edify me but however I wish you good night FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE On these following Questions I. Whether the Vote of the late Convention wherein they declared the Throne to be vacant can be justified from the Ancient Constitution and Customs of this Kingdom II. Whether the said Convention declaring King William and Queen Mary to be Lawful and Rightful King and Queen of England may be justified by the said Constitution III. Whether the Act passed in the said Convention after it became a Parliament whereby Roman Catholick Princes are debarred from succeeding to the Crown was according to Law Collected out of the Best Authors as well Antient as Modern Dialogue the Twelfth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth and Eleventh Dialogues 1694. Authors most commonly used in this Discourse and how denoted in the Margin The Succession of the Crown discussed S. D. Dr. Brady's Exact History of the Succession to the Crown B. H. S. An Enquiry into the Nature and Obligation of Legal Rights E.L.R. The PREFACE to the READER THE ensuing Discourse being upon so Weighty a Subject as their present Majesties Title to the Crown it is requisite that I give you some Account of the Method I have pursued and what Authors I have made use of for the proving of it As to the former since the Main Questions in this great Affair are Whether the Convention can be Iustified in declaring the Throne Vacant and then placing their present Majesties thereon as the next Heirs it was necessary to shew from an exact History of the Succession of the Crown of England that the late Parliament whilst it was a Convention have done no more in this great Affair than what former Parliaments or Great Councils have done ever since the time of King William I. on the like Occasions when they have not only declared the Throne Vacant but have also judged which of the Royal Family were fittest to fill it and the Persons so placed therein have been still taken for Lawful Kings and as such have had true Allegiance paid them by all the Subjects during the time they continued possest of the Royal Power and Dignity As for the Authors cited in this Disquisition I have made use of the Antientest and those who lived nearest the times in which the Matters we treat of were transacted and therefore I have studiously forborn quoting any Authors in Latin or English who lived in more Modern Times unless when there are no other to be had that treat of
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
as we read Chancellor Fortescue did Prince Henry Son to Henry the VIth and I hope he will come over again to practise them in his own Country before he comes to be infected with the Arbitrary Principles of the French Government but as for those of not keeping Faith with Hereticks and a propagating his Religion by Persecution I doubt not but the King his Father will take care not to commit his Education to any of those who are infected with such Principles and I am the more inclin'd to believe it because it is very well known that his Majesty's tenderness and moderation in matters of Religion and not persecuting any body for the belief or bare profession of it as it was the greatest cause of his late Declaration of Indulgence so it was the main original of all his late Misfortunes nor can I see any reason why a King by being a Roman Catholick must necessarily be a Tyrant and a Persecutor since you cannot deny but that we have had many good and just Kings of that Religion and it is from those Princes that professed it that we derive our Magna Charta and most of the priviledges we now enjoy F. Though I would not be thought to affirm that the Romish Religion is every way worse than the Mahometan yet this much I may safely affirm that there is no Doctrine in all that Superstition so absurd and contrary to Sence and Reason as that of Transubstantiation held by the Church of Rome in which the far greatest part are certainly Idolators which can never be objectâ—d against the Turks and therefore though I will not deny but that a Man may be saved in the Communion of the Romish Church yet it is not for being a Papist but only as far as he practises Christ's Precepts and trusts in his Merits that he can ever obtain that favour from God But as for those evil Principles both in Religion and Civil Government which you cannot deny but are now commonly believed and practiced in France and which you hope King Iames will take care that the Prince his Son shall be bred to avoid I wish it may prove as you say but if you will consider the Men that are like to be his Tutors and Instructors in matters of Religion viz. his Fathers and Mothers Confessors the Jesuits and for Civil Government those Popish Lords and Gentlemen of notorious Arbitrary Principles and Practises who are gone over to King Iames you will have small reason to believe that there is ever a Fortescus now to be found among the English-men in France or who is likely to instill into him those true English Principles you mention And though I do not affirm that every Popish Prince must needs be a Persecutor yet since that wholly depends upon those Priests that have the management of their Consciences shew me a Prince in Europe who has a Jesuit for his Confessor and tell me if he hath not deserved that Character But though I am so much of your Opinion that King Iames ownes the greatest part of his Misfortunes to his Declaration for Liberty of Conscience yet was it not so much to the thing it self as to his Arbitrary manner of doing it by assuming a Dispensing Power contrary to Law and you may be very well assured by the little opposition which the late Acts met with for taking off the Penalties against Conventicles and not coming to Church in respect of all Dissenters except the Papists that King Iames might have as easily obtain'd a like Act to pass in respect of those also as to the free profession of their Religion and having Mass in their Houses which is more than the Papists will allow the Protestants in any Country in Europe And therefore I must beg your pardon if I still find great reason to doubt whether K. Iames his tenderness towards those that differ'd from him in matters of Religion and the Indulgence he gave them were purely out of consideration of tender Consciences and not rather thereby to destroy the Church of England Established by Law since the Dispute began between King Iames and his Parliament was not about Liberty of Conscience but those Offices and Commands which the King was resolved to bestow upon the Papists whether the Parliament would or not And certainly there is a great deal of difference between a Liberty for a Man to enjoy the free profession of his own Religion and the power and benefit of having all the chief Imployments of Honour and Profit in the Common-wealth But that the Indulgence of Popish Princes towards those that dissent from them in matters of Religion may not always proceed from pure Tenderness and Compassion appears from a Manuscript Treatise of F. Parsons that great Jesuit in Queen Elizabeth's time which I have been told was found in King Iames's Closet after his departure This if you can see it will shew you that the subtil Jesuite doth there direct his Popish Successor in order to the more quiet introducing the Romish-Catholick Religion to grant a general Toleration of all Religions out of a like design Thus did Iulian the Apostare long ago tolerate all the Sects and Heresies in the Christian Religion because he thereby hoped utterly to confound and destroy it But as to what you alledge concerning Magna Charta's being granted by Popish Princes and that there has been many good Kings of that persuasion As I will not deny either the one or the other so I desire you to remember with what struglling and great difficulties this Charter was at first obtain'd and afterwards preserved though it was no more than a Declaration of most of those Antient Rights and Liberties which the Nation had always enjoy'd And you may also remember that they were Popish Princes who more than once obtain'd the Pope's Dispensation to be discharged from those solemn Oaths they had taken to observe those Charters and though there hath been divers good Princes before the Reformation yet even the very best of them made the severest Laws against Protestants and were the most cruel in their Persecutions witness King Henry the IVth Henry the Vth and Queen Mary And indeed it is dangerous to rely upon the Faith of a Prince who looks upon it as a piece of Merit to destroy all Religions but his own and when he finds it cannot be done by Law will not stick to use any Arbitrary means to bring it about To conclude pray consider whether the strict observing or violation of Magna Charta and his Coronation Oath hath been the cause of King Iames's Abdication Pardon this long Discourse which your Vindication of the Opinion and Practises of Popish Princes hath drawn from me M. Pray Sir let us quit these invidious Subjects which can do no good since Princes must be own'd and submitted to let their Principles and Practice be never so Tyrannical and let us return again to the matter in hand I will therefore at present suppose
before his Marriage with that Princess and whilest he was and Usurper upon her Right so that certainly it is no argument that since Parliaments have acted illegally therefore your Convention may do so too for it is a known Maxime in our Civil Law a facto ad Ius non valet consequentia therefore whatever they have done toward creating a good Title to King William in respect of the Queen his Wife and his Issue by her yet this doth no way excuse the wrong done to the Princess of Denmark and her Issue in case they survive your King F. 'T is very wonderful to me to see how ingenious some Men are in finding faults with the present settlement of things though never so much for the best if not done exactly according to suit with their Humour or Hypothesis when indeed there can no fault be justly found with it for you agree that if the Queen hath a Right King William hath so also during his Life and whether the Princess of Denmark and her issue may survive the King is yet uncertain but if either she or they should happen to survive his Majesty yet since she hath made no claim or protestation in the Convention against the Kings holding the Crown after the Decease of the Queen I cannot see why this should not pass for a tacit Resignation oâ—â—er Right as well as in the case of the Princess Elizabeth you but now mentioned But admit his present Majesty according to the late received rules of Succession hath not a Title by Descent yet according to those principles I have already laid down he certainly has not only a Right to the Crown from that inherent power which I suppose doth still remain in the Eslates of the Kingdom as Representatives of the whole Nation to bestow the Crown on every Abdication or Forfeiture thereof on such Prince of the Blood Royal as they shall think best to deserve it and upon this account I conceive there is none of the Blood that can stand in competition with his Present Majesty for Prudence Valour Moderation and all other Royal Vertues and therefore it is not at all to be wonder'd at if the Convention hath in this case exercised that Original Power which the People reserved to it self at the first institution of Kingly Government in this Island especially if we consider his present Majesty not only as a Conquerour over King Iames but as our Deliverer from his Oppression and that Arbitrary Government that we were so lately under and which was like to be much worse had his reign continued a little longer Therefore I cannot but here take occasion to vindicate his Present Majesty from those exceptions you have made against his Country and Civil as well as Religious Principles First As to his Country 't is true he is a Foreigner yet that can he no exception against his admission to the Throne since it was none against his great Grand-father King Iames and I doubt not but his Majesty may understand as much of the English Constitution and Government as his said Grand father did when he first came to the Crown But as for his principles in Religion I cannot see any reason to suspect him more inclinable to the Church Government of Holland then that of England since he was bred up under a Mother who was always firm to the Religion and Discipline of our Church and ever since he was Married to the Princess he hath always shew'd a very great respect to its Liturgy and Ceremonies by his so constant frequenting his Princesses Chappel so that besides his Majesties Interest to maintain Episcopacy as most agreeable to the Monarchy and Antient Constitution of this Kingdom it is likewise if he were able not in his power to destroy the Church of England since the main body of the Clergy Nobility and Gentry of this Nation is to zealous for its preservation that if he had any such inclinations it would not be easie for him to effect it and he is too wise a Prince to let others persuade him so visibly against his own interest and having so late an example before his Eyes that it was King Iames's ruine to attempt it As for what you say of Scotland 't is true Presbitery is for the present set up there but it is uncharitable to impute this to the Kings inclinations for it is notorious that of them which call themselves Episcopal in that Kingdom a very great number did either out of prejudice to the Princes Cause or in contempt of his Power refuse to be chosen Members of the Convention or else after they were chosen did so far adhere to King Iames's interest as to desert it as did my Lord Dundee and many others and by that means gave the Presbyterian Party an advantage to carry all things as they pleas'd and this Party finding the King not well settled here and the Irish in Ireland in Arms against him took hold of that opportunity to put the abolishing of Episcopacy into the very instrument of Government and to press it upon him at a time when an unavoidable necessity and the obstinacy of too many of the Episcopal Party forced him to consent to it wherefore this no way shews his Majesties inclinations to set up Presbytery even in Scotland much less doth it prove he would set it up here where the Circumstances are quite different for here the main body of the People hate that Government and will be so far from desiring it that they will never endure it so that as to this your fears of King William are as vain as your hopes of King Iames. I shall conclude with a few words in answer to your reply against those examples wherein I have shewn you that the Crown hath always been under such a disposition as the two Mouses of Parliament should appoint to which you have nothing else to object but that their admission of Henry the IV th to the Crown was condemned as unlawful by two Acts of Parliament which I have already answer'd by showing you that those Acts were obtain'd by Richard Duke of York and Edward the IV th his Son by actual Rebellion and by as great a force upon King Henry the VI th as ever was used against King Richard the II d by Henry the IV th and as for the Statute of the first of Henry the VII th you have found out a very easie way of answering it by affirming that it was done whilst he was an Usurper and before his Marriage or that he had any right to be King But by this way of arguing no Act he ever passed would be good since It is certain he did never take upon him to Govern in right of his Queen as all those that have writ his Life do acknowledge and therefore if the Parliament would then settle the Crown upon him and his right Heirs without any respect to his Queen or her Issue or Sisters in case she should die
the Nation from his Oppression though the Prince was pleas'd to accept it upon those terms expressed in the late Declaration of the Convention and upon his free promise to preserve preserve our Religion Laws and Liberties which he has since also confirm'd by his Coronation Oath But as to what you say that the Prince made the Kings Army desert him and wrought the People into hatred of his Person by lying Stories and mean Arts is altogether untrue since I know of no Reports he made of the King or his Government but what are in his first Declaration and that is certainly true in every part of it and as has been justified by the express Declaration of the Convention in every particular except that concerning the Prince of Wales which I confess is left still undecided because as I have already proved it is impossible to give any certain judgement in it unless the Witnesses as well as the Infant himself could be brought over hither nor doth the Prince in his said Declaration say any more concerning that business than that there are violent suspicions that the pretended Prince of Wales was not Born of the Queen but for the report of the Secret League with France for the extirpation of the Protestant Religion as there is no such thing in his Highnesses Declaration so the spreading of it cannot be laid to his charge since he never gave it out as I know of yet there are certainly great presumptions and too much cause of suspicion that it may be so as I proved at our last Meeting But though you will not allow the Prince the Title of our Deliverer yet I am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion that King Iames's violations both upon our Religion and Laws were so great that nothing could preserve the Kingdom from a total Subversion in its Establisht Religion and Civil Constitution but his Highnesses coming over and most of the Bishops were of that Opinion who now the Government is setled refused to take the Oath of Allegiance to their present Majesties But to answer what you say that the manner of Henry the IV ths and Henry the VII ths coming to the Crown doth not at all agree with this Case of King William because they claimed by right of blood which you say King William cannot do that is not so in respect of the Queen who has certainly a right to succeed her Father by right of blood in case the Prince off Wales be not the true Son of the Queen and untill he can be proved so we must at present look upon him as if he were not so at all so that the Convention hath done no more in setling the Crown upon the King during his Life than what the Great Council of the Kingdom have frequently done before upon other vacancies of the Throne as I have proved from the Examples of William Rufus and Henry the First King Stephen King Iohn and Henry the Third And it is very hard to suppose the whole Nation to have been guilty of Perjury and Treason upâ—n their Swearing to and Fighting for those Princes after they were so Solemnlâ— Elected Crowned and Invested with the Royal Power But as for Edward III. his first and best Title was from the election of the Great Council of the Kingdom who I doubt not but if they had found him unworthy of the Royal Dignity by reason of folly or madness or Tyrannical Principles would have set him aside and have made his youngâ—â— Brother King a Protector to govern in the King's Name with Royal Power having never been known in England till the Reign of Henry the VI th but as for Henry the IV th notwithstanding his claim by right of Blood I have already proved that the Paâ—liament by their placing him in the Throne did not at all allow it nor is any such Right recited in the Act of the 7 th of Henry the IV th which by the Crown is entail'd upon that King and his four successive Sons And though it is true Henry the Seventh also claim'd the Crown by right of Inheritance in his Speech in Parliament yet they were so far from allowing it that they do not so much as mention it in that Act of Setlement which as I have recited they made of it upon that and the Heirs of his Body And therefore I think I may still maintain that the Convention hath done nothing in the present Setlement of the Crown but what hath been formerly done upon every vacancy of the Throne either by deposition or resignation of the King or Abdication or Forfeiture of the Crown as in the case of King Iames in which the Convention have done no more than exercised that Power which has always been suppos'd to reside in the great Council of the Kingdom of setling the Crown upon such a Prince of the Blood-Royal as they shall think best to deserve it Thus much I have said to preserve the Antient Right of the Great Council of the Nation But to put all this out of dispute I have been credibly inform'd that the Princess of Denmark her self did by some of her Servants in both Houses as well of the Lords as Commons declare upon a great Debate that arose about securing her Highnesses Right to the Crown immediately after her Sister the Queen that her Highness had desired them to assure the Convention that she was willing to acquiesce in whatever they should determine concerning the Succession of the Crown since it might tend to the present setlement and safety of the Nation which I think is a better Cession of her Right to his present Majesty than any you can prove that the Empress Mawd made to her Son Henry the Second or than the Countess of Richmond ever made to her Son Henry the Seventh M. You have often talked of this forfeiture and extravagant Power of your Convention by whom you suppose they are not obliged to place the Crown upon the head of the next Heir by Blood which I shall prove to be a vain Notion for if there be an absolute forfeiture of the Crown the Government would have been absolutely Dissolved for since there is no Legal Government without a King if the Throne were really vacant and that the People might place whom they pleas'd in it yet the Convention can have no Power to do it as their Representatives since upon your suppos'd dissolution of the Original Contract between the King and the People there was an end of all Conventions and Parliaments too And therefore if a King could have been chosen at all it ought to have been by the Votes of the whole body of the Clergy Nobility and Commons in their own single Persons and not by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders are upon this suppos'd Dissolution of the Government altogether void and
to their present Majesties could be lawfully deprived of their Bishopricks Collected out of the Best Authors as well Antient as Modern The Thirteenth and last Dialogue LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Twelvth and Thirteenth Dialogues 1694. Authors most commonly used in this Discourse and how denoted in the Margin A Discourse concerning the signification of the word Allegiance as it is made use of in this New Oath of Allegiance D. A. Animadversions on the Modern Explanation of the Statute of the 11th of Henry the Seventh Chap. 1. A. 11th H. 7th An Enquiry into the Nature of Legal Rights c. E. L. R. The Case of Allegiance c. C. A. An Essay concerning Obedience to the present Powers Having not the Treatise called the Title of a King in Possession by me at the Writing of this Discourse I could not quote it yet all the chief Arguments in it being either the same that are made use of by the Authors of the two first Treatises above mentioned are answered in this Discourse either by my self or the Reverend Author of the Case of Allegiance ADVERTISEMENT BY the first Day of March next will be published a General Title-Page with a large Alphabetical Index to the whole Work THE PREFACE TO THE READER HAving in the two last Discourses considered the Lawfulness and justice of King Jame's Abdication as as also of the late Conventions place King William and Queen Mary in the Throne it might have seem'd needless to add any thing farther on this Subject had it not been for the satisfaction of so many of the Clergy as well as Laity who not being satisfied with the rightfulness of their Majesties Title nor with the Declaration of the said Convention whereby they are Recognized to be of Right and by the Laws of this Realm King and Queen of England c. have taken an Oath of Allegiance to them only as King and Queen de facto or for the time being For the justification of which it was necessary to consider all that can reasonably be said upon this Question according to those several Heads set down in the Title Page of this Discourse for the performance of which I shall only tell you that it is a Collection out of the best Treatises that have been written on this Subject and from the best Reasons that I could gather by discoursing with divers Learned Men who have refused this Oath who if they have done it out of Conscience as we ought charitably to believe they have are infinitely to be preferred in the Opinions of all honest men before divers others who I doubt have taken the Oath with dissastisfied Consciences for meer gain or the consideration of worldly advantages and with a design to return to their former Allegiance to King James as soon as with safety they may and who though they have taken this Oath themselves yet do more highly applaud and favour the refusers than those that have taken it with truly satisfied Consciences and intend to keep it when they have done But though I confess I have here urged all the cogent Reasons I could Collect either from the Law of the Land or that of Nature for the taking this Oath to their present Majesties I must also acknowledge that though I have taken some answers out of a Learned Drs. Case of Allegiance yet I must confess I absolutely waved entering into the defence of that Hypothesis upon which that Treatise is built since it would not only be tedious but unnecessary tedious because it would be too long for such a short Discourse as this to repeat all the Arguments he has made use of together with all the answers that have been made to it in so many Treatises that have been written against it unnecessary not only because I take a different Method from his and have ran into all those dark Labyrinths of Law and History which he sedulously avoids but also because his Hypothesis of making Allegiance due to the meer possession of Power as to the Ordinance of God let the Possessor come by it which way he will and that without any Election or Recognition of the People is that which satisfies no party of Men concerned in the present Dispute not the Jacobite for he cries out that it is but the same Argument new vamp'd which John Goodwyn and Ascham set up for Obedience to Oliver and the Rump and that upon this ground the Great Turk should he once Conquer England would have as much right to our Alegiance as King James himself whilst those who have acted out of a Principle on the behalf of their present Majesties say that by his thus setting them up with an absolute irresistible Power we do but change hands and it is no thanks to his Hypothesis if we fall not into the same Arbitrary Government which by King James's Abdication we have so wonderfully escaped I have therefore confined my self in this Discourse only to such Arguments as can be deduced from Reason History or the Law of the Land since I must freely confess that the Arguments that Reverend Author has made us of from Scripture for the support of his Opinion seem to me a much darker Labyrinth than what he endeavours to shun But as to point of time I have resolved to look no farther than the first six Weeks of their Majesties Reign to avoid either the arraigning or defending any thing that has happen'd since that time And tho' I have taken no notice of this present Parliaments Recognition of their Majesties Title as being done after the time to which I limit this Discourse though what was done by the former Parliament may be sufficiently defended upon the grounds I have laid down in this and the former Discourse yet do I not deny but that the solemn Recognition of a free Parliament summon'd in their Majesties Name has taken away those Obejections which were made against the Conventions declaring them to be rightful King and Queen and then Voting themselves a Parliament when they were not Summoned by Writs issued in the Name of the King or Queen according to the usual form Only I must confess I have made bold in one Point to look beyond the time prefixt and that is in relation to the late Schism began by some of our Clergy and carried on by some of the Laity who refused the present Oaths but since I have made use of some Reasons against it which have not as I know of been yet hit upon by any former Writers on this Subject I wish they may prove for their satisfaction but if not since I write only to discover truth I desire that any of the present new Dissenters will shew me my mistakes and I shall take it kindly not only for my own sake but that of others who may otherwise be misled by my Arguments I have only
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
an Act of Parliament which is made indefinitely without fixing it to any time or person the words in the Act are the King for the time being which must certainly extend to any other King as well as Henry the VIIth for I suppose that an Act of Parliament and a Deed agreed in this that an unnecessary Clause can by no means render the whole void But as for what you say in relation to this Acts being a security for the Title of the Queen and her Children whom you suppose to be the right Heirs of the Crown this rather serves to strengthen the Act than otherwise for if this King had a good Title in her right then it may be also very well suppos'd that she gave her assent to this Act in the person of her Husband and that not for the benefit but to the prejudice of her own Issue since if after her death which happen'd some years before his her Son Henry Prince of Wales had set up his present Title to the Crown in the right of his Mother and so would have dethron'd his Father as an Usurper I suppose no reasonable Man will deny but that this Act would have indemnified all those who had taken up Arms in defence of King Henry the VIIth against his Son though in your sence King de jure and if it would justifie the Subjects then I cannot see why it may not do the same thing now in their swearing Allegiance nay fighting for the King in possession against him whom we will for the present suppose to be King de jure M. Well however I think I can prove that this Act was no more than temporary from the judgement of the Judges in the Case of Iohn Duke of Northumberland who when he was Tryed for Treason for leading an Army against Queen Mary to settle the Lady Iane Gray in the Throne desired to be informed by the Judges whether a man acting by the Authority of the Great Seal and the Order of the Privy Council or Princes Council as Stow and Heylin word it could become thereby guilty of Treason to which all the Judges answer'd that the Great Seal of one that was not lawful Queen could give no Authority or Indemnity to those that acted by such a Warrant upon which the Duke submitted though without question he did not want Lawyers to inforce his Plea with this Statute likewise if his cause would have born it from whence I infer against Sir Edward Coke that Treason lies against a King de jure tho' out of possession for it 's plain by all our Historians that Queen Mary was so far from being possessed of the Crown when the Duke of Northumberland acted against her that the Lady Iane was not only Proclaimed Queen in London and most of all the Cities and Great Towns in England but the Tower of London with all the Forts and Naval Forces were under her Command and she had also Allegiance sworn to her by the Privy-Council and by the Lord Mayor and Aldermen and she had also the Seals in her power by which all Patents and Commissions were granted and issued in her Name and if all this be not sufficient to constitute her Queen de facto according to this Statute of Henry the VIIth I know not what was F. Yet I can tell you what was yet wanting which because she had not she was certainly neither Queen de jure nor de facto and that was a solemn Coronation and Recognition of her Right by Parliament which legal investiture since she never had she was not the Queen for the time being and consequently not intended within this Statute of the 11th of Henry the VIIth for though it is true she was appointed Successour of the Crown-by the Letters Patents of King Edward the VIth yet since she could not claim by right of blood there being so many before her all the Kingdom looked upon it as an Usurpation and an artifice of the Duke of Northumberland whose Son she had Married to get the Government of the Kingdom into his sole power so that it was no wonder if the greater part of the People were so averse to her Title and that those of the Nobility who took her part so quickly revolted from her when once the fear they were in of the Duke of Northumberland's power was removed for had this Bequest of the Crown to the Lady Iane held good this Kingdom instead of being Hereditary would have become wholly Testamentary and disposable by the last Will or Letters Patents of the King or Queen for the time being without the consent of the Great Council of the Nation which is contrary not only to the then receiv'd Laws of Succession but also to the antient constitution of the Kingdom as well before as after the Conquest But notwithstanding all this I doubt not but that if the Lady Iane had so far prevail'd against Queen Mary as to have been able to call a Parliament and to have had her Title own'd and recogniz'd therein as it was in the Case of Richard the Third and Henry the Seventh but that she would have been true and lawful Queen according to the intent of the Statute we are now discoursing of and then the Duke of Northumberland must likewise if he had fair play have been indemnified for taking up Arms in her defence against Queen Mary since Queen Iane would have been then within the letter of this Statute as much as King Henry the Seventh himself M. You must pardon me if I cannot be of your opinion in this matter since if the bare Coronation and recognition by Parliament could confer a legal right to the Crown upon one who had no hereditary right to it before the consequence of it would be that the Crown would be so far from being Elective as you suppose it to have antiently been that it would be in the power of every bold Usurper or Rebell who had but the confidence to call himself King to gain a legal Title to be so according to your Principles and then if Oliver Cromwell could have found a Party strong enough in the Army to have declar'd him King and had call'd a Parliament in his own name who had recogniz'd him for their Lawful Sovereign he would then have had as much right to our Allegiance as King Charles the IId which certainly was not only contrary to the settlement of the Crown upon Henry the VIIth and the Heirs of his body but also to that solemn recognition of King Iames the Firsts Title as lineally descended as right Heir to the said King Henry which I insisted on at our last Meeting And therefore if you will have my sence of this Act it is either expir'd for the reasons I have already given or else was void ab initio since it is not only contrary to the setled course of Succession of the Crown according to the Laws of lineal descent for divers hundred years last past but
this Letter I now mentioned was writ to the Pope which transaction I shall give you almost verbatim out of Mat. of Westminster and Henry de Keyghton in Anno 1297. being the 26th of Edward the First when the King having extorted a great sum of Money from the Clergy and People contrary to Law and being then going into Flanders he called a Parliament at Westminster where most of the Earls and Barons refused to appear until such time as their Petitions for the ease of their Countrey were heard and that the King would again confirm Magna Charta Yet nevertheless the King upon his confession of his Male Administration which he made before all the People with Tears in his Eyes and promise of amendment then obtained of the Commons an Aid of the Eighth Penny of their Goods But as soon as the King was gone over the Constable and Earl Mareschal with other Earls and Barons went to the Exchequer and there forbad the Judges to levy the said Tax upon the People by the Sheriffs because it was done without their knowledge without whose consent no Tax ought to be exacted or imposed so that the said Earls and Barons being thus gathered together and the greater part of the People joyning with them at last Prince Edw. then Lieutenant of the Kingdom was forced to call a Parliament to which the Earls and Barons came attended with great multitudes both of Horse and Foot but would not enter the City of London till the Prince had in his Fathers name confirmed the great Charters and had passed the Statute de Tallagio non concedendo both which were afterwards again confirmed by the King his Father some time after his Return And this will serve to explain the last Article in this Statute which comprehends the King's Pardon or Remission to Humphrey Earl of Herâ—ford and Essâ—x then Constable and Roger Bigot Earl of Norfolk Mareschal of England the two principal Leaders in the late Resistance with all other Earls Barons Knights and Esquires of their Party all Leagues and Confederacies as also all Rancour and Ill-will with all other Transgressions against them And pray see Sir Edward Coke's Comment on these words you compare our English Histories with this Act of Parliament the Old saying shall be verified That Records of Parliamentâ— the truest Histories The King had conceived a deep displeasure against the Constable Mareschal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and Free Customs c. I suppose he refers to the Resistance but now mentioned whereupon he did not only restore the same to them as aforesaid but granted special Pardon to those against whom he had conceived so heavy a displeasure c. and such a one as you will scarce read the like and after a short gloss upon the words Rancour and Ill-will he thus comments on these words etiam transgressiones si qâ—as fecâ—inâ— here the words si quaâ— sicâ—iâ—t were added lest by acceptance of a pardon they should confess they had transgressed So careful were the Lords and Commons to preserve their Ancient Laws Liberties and Customs of their Countrey so that it is plain that Sir Edward Coke then thought the Lords and Commons had not transgressed in thus standing up tho' with force of Arms for their just Rights and Liberties and which sufficiently proves that this Author did not conceive such a Resistance to be making War against the King and so Treason at that time at Common Law and consequently not to be afterwards Treason by the Statute of 25th of Edward the Third as you would have it since that Statute dâ—es not make any other Overt-acts to be Treason but what had been so by Common Law before this Statute was made But in the Reign of this King's Son Edward the Second there were much more pregnant and fatal proofs of the exercise of this Right of Resistance by the Earls Barons and People of England against Peirce Gaveston whom having been before for his Mis-government of the King banisht the Realm by Act of Parliament and coming over with the King's License but without any reverse of the said Act Thomas Earl of Lancaster the King's Uncle with the rest of the Earls Barons and Commons of the Land took up Arms against him And tho' he raised some Forces by the King's Commission yet they fought with him and took him Prisoner and beheaded him near Warwick Some years after which the said Thomas Earl of Lancaster with Humphrey de Bohun Earl of Hereford together with divers other Earls and Barons took Arms and spoiling the Lands of the two Spencers Father and Son came up to London where the King had called a Parliament in which the King was forced to banish the said Spencers out of the Kingdom tho' they quickly returned again against whom when the said Earls above mentioned and divers other Barons and Knights again took Arms but being fail'd by some of their Consederates were over-power'd by the King's Party and the Earl being taken Prisoner was attainted and beheaded at Portfract yet was the this Judgment against the Earl and those of his Party afterwards reversed in Parliament in 1 mo Edward the Third and their Heirs restored in blood as also to the Lands of their Fathers as besides the Act it still to be seen upon the Rolls appears more plainly by a Writ of this King 's reciting that whereas at a Parliament at Westminster among other things it was agreed by the King the Prelates Earls Barons and Commons of the Kingdom that all those who were in the Quarrel with Thomas E. of Lancaster against the Spencers should have their Lands and Goods restored because the said Quarrel was found and adjudged by the King and the whole Parliament to be good and just and that the Judgments given against them were null and void and therefore commands restitution of the Lands and Tenements now in the Crown to the Executors of the said Earl and the like Writs are found for the other Lords and Gentlemen that had been of his Party And further that not only this Resistance made by this Earl and the rest of his followers but also that which this King himself made together with Queen Isabel his Mother against the Mis-government of the King his Father through the evil Counsel of the two Spencers appears by the Act of Indemnity passed in the first Year of this King in the preamble of which there is recited a short History of the wicked Government and Banishment of the Spencers Father and Son and also how Thomas late Earl of Lancaster was by their procurement pursued taken executed disinherited and how the said Spencers and Robert Baldock and Edmund Earl of Arundel by the Royal Power they had usurped had caused the King that now is and the Queen his Mother to be utterly forsaken of the King