Truth We need only to lay open the nature and antient Power of the States General with the manner of their Behaviour towards those Kings who abused the Power committed to them to make it evident that the French Monarchy is limited in its Constitution Under the first and second Race of the Kings of France there was no mention of any Assembly of the States General but only of the Franks that is to say the Nobles and Prelats who were used to meet together on the first of May in the open Field where they deliberated with the King concerning matters of Peace and War and took Resolutions of what was to be done all the Year after After the breaking up of this Assembly the Court of the Royal Palace otherwise called the Court of France composed of the Prelats and Great Barons that is to say the immediate Vassals of the Crown met together five or six times a Year to take care of the Execution of what had been resolv'd upon in the General Assembly to deliberate about publick Affairs that offer'd themselves and to determine as Judges the most important matters of private Persons Under the declination of the 2d Race the Governours of Cities and Provinces having made themselves Hereditary Lords of the places of their respective Governments under the Title of Counties and Dutchies cut themselves large Portions out of the Soveraign's Lands by which means the Court of France was no more frequented by the Lords except only when they were obliged to do Hommage and take the Oath of Fidelity or when an Enemy invaded France for then they presented themselves before the King to advise about the present necessity This Disorder continued until the Reign of Philip Augustus who having conquer'd Normandy and the Counties of Tourain Anjou Maine from John without Land King of England and the Country of Vermandois from the Earl of Flanders restored in some manner the Royal Authority and forced the Barons to frequent his Court and to be present at the Assemblies he called for the Affairs and Necessities of State. Nevertheless those Assemblies consisted only of the Prelats and Barons and this till the Reign of King John some Authors say of St. Lewis who being taken at the Battle of Poictiers and carried to England they were forc'd to raise a great Sum of Money for his Ransom and to this End they appli'd themselves to the Merchants and other Inhabitants of Cities who were then the richest Men of the Kingdom who agreed to pay the King's Ransom upon condition that they might be received into the Charges and Offices as well of Peace as of War and be allowed to have a Place and deliberative Voice in the States-General which was accordingly granted to them The Power and Prerogative of the States-General was such that the Kings of France could not make any new Levies of Mony without them Which continued so till the Reign of Charles VII as is acknowledged by Philip de Commines Lib. 6 c. 7. Neither could they make any new Ordinances nor repeal or suppress the old without the consent of the said States as is owned by Davila lib. 2 de li Guerri Civili Under the First and second Race of the French Kings the Ordinances were likewise made in the Assembly of the Prelats and Barons which constituted the Soveraign Court of France 't was there the Treaties of Peace were made between the Kings of France and Foreign Princes and Nations the Portions of the Children of France were there regulated there they treated of their Marriages and generally of all that concern'd the Affairs of State of the King's Houshold and the Children of France The Ordinances that were made in the said Assemblies in the Name of the Kings of France were conceived in these Terms Nos de consilio consensu Procerum nostrorum statuimus c. We with the Advice and Consent of our Lords do ordain And from hence is derived the Custome observed at this Day of verifying the Royal Edicts in the Parliament of Paris which in some sort represents the Assembly of the Prelats and Barons who composed as we have said the Soveraign Court of France In the Treasury of the French Kings at Chartres are found several Treaties between King Philip Augustus and Richard and John without Land Kings of England at the bottom of which are the Seals of the Prelats and Barons by whose Consent and Approbation the said Treaties had been made And Pope Innocent VI having sent to entreat St. Lewis that he would be pleas'd to permit him to retire into France to secure himself from the attempts of Frederick II. the said King answered the Popes Nuncio that he would communicate the Matter to his Parliament without whose Consent the Kings of France could do nothing of Importance This is related by Matthew Paris in the Life of Henry the III. King of England ad Annum 1244. We find also the manner how the States determined all Affairs respecting the Crown and Succession as for Example the Process which was between Philip de Valois and King Edward In this Assembly of the States saith the Chancellor de l' Hospital was Tried and Debated the most Noble Cause that ever was viz. To whom the Crown of France did belong after the Death of Charles the Fair to Philip of Valois his Cousin or to Edward King of England King Philip not presiding in that Assembly because he was not yet King and besides was a Party It appears clearly from the Power of the States General That the Power of the King of France is bounded by Law indeed this is a Truth whereof we cannot make the least doubt forasmuch as we find it acknowledged by Lewis XI the most unbridled Monarch that ever was See what he writes in the Rosary of War composed by him a little before his Death for the use of Charles VIII his Son. When Kings or Princes saith he have no respect to the Law they take from the People what they ought to leave them possest of and do not give them what they ought to have and in so doing they make their People Slaves and thereby lose the name of a King. For no body can be called a King but he that rules and has Dominion over Free-men This thing was so notorious even to Strangers themselves that Machiavel maintained that the Stability of the Monarchy of France was owing to this because the Kings there were obliged to a great number of Laws which proved the Security and Safe-guard of all their Subjects Lib. 1 di Discorsi c. 16. Messire Claudius de Seissel in his Treatise of the French Monarchy part 2. chap. 12. dedicated to Francis I. maintains upon this account That the Monarchy of France does partake of Aristocrasy which makes it both more perfect and durable Yea he asserts that it was also in part Democratical and expresly maintains that an absolute Monarchy is no other than true Tyranny when it is made use of
nor unknown and upon occasion of which the States of the Empire have had an opportunity to declare make out their Rights and Pretensions One of the first Examples we find respecting this Matter is the Deposition of Lewis the Good in the Year 833. The Acts whereof we may see in Baronius Goldast du Chesne and le Comte Whereupon we may make these Reflections 1. That the Thing was done with the Consent of the Bishops and of all the Nobility 2. That the Estates above all accuse him for having broke his Coronation-Oath 3. That though this Lewis was afterwards restored to the Throne of the Empire yet those that restored him never contested the Power the State had to reject a Prince who overturn'd the Rules of Government but supposed only that he had not been duly convinced of the Crimes laid to his charge We have another Example in the Deposition of Henry IV. The Archbishops Bishops Dukes and Earls declare that they had not sworn to him till after he had engaged himself by his Oath to them to observe the Laws and the Capitulations of the Empire so that having now violated them they were set free from the Oath they had sworn to him and that they considered him as an Enemy against whom they would wage war to their last breath Lambert Schafnaburg One of the last Instances we find in the deposing of the Emperor Wenceslaus who was deposed by the Electors of the Empire in the Year 1400 after that he had been twice taken Prisoner and had been exhorted by the State to amend and take up from his irregular Actings Aventin lib. 7. Annalium Cuspinian in Vita Venceslai We may see the most part of these Articles and many more solidly confirmed in the Book of Carpsovius de Lege Regia Imperatorum Germaniae and in the Imperial Capitulations and other Laws which he has caused to be printed at the End of his Treatise CHAP. XIII That the Power of the Kings of Poland is Limited WE find the same Limitation in other States whether they be Successive or Elective I shall content my self to alledge only one Example concerning the Kingdoms that at present are Elective and that shall be of the Kingdom of Poland Poland from the Relation of Cromer gives us an illustrious Example of the Wisdom of Northern People in bounding the Power of their Princes After that the Family of Lech the first Founder of that Kingdom was extinct that State changed the Royal Government into that of XII Waywods otherwise called Palatines These Palatines abusing their Authority they re-established the Regal Government in favor of Cracus whose second Son was expell'd by the Polanders for killing his Elder Brother They afterwards chose the Daughter of Cracus for their Queen who 't is said having drowned her self to avoid Marriage the Polanders again established 12 Palatines as they had done before but afterwards suppressed them again because they found them insufficient to defend the Countrey and chose Premiel for their King. This is Lesko the 1 who lived about the year 750. It was not till the Year 965 that Miesco turn'd Christian and took upon him the Title of King of Poland which Title was confirmed by the Emperor Otho III to Bosletas his Successor His Successors having reigned until Lesko Surnamed the Black who was forced by Flight to quit the Kingdom because he was not able to resist the Tartars and died without Issue the Poles wearied with intestine Wars excited by the Ambition of their great Lords chose Premiel to be their King who being kill'd without leaving any Children behind him they made choice of Ladislaus who was afterwards desposed for Male-Administration by the States General Wenceslaus King of Bohemia who had been chosen in his stead dying in the Year 1305 Ladislaus was recall'd to the Government to whom Casimir his Son succeeded who in the Year 1370 designed for his Successor with consent of the States Lewis the Son of Charles King of Hungary by his Sister The Poles after the Death of Lewis chose Edwiga his Daughter upon condition that she should marry the Person whom the States should recommend to her for a Husband the Person recommended by them was Jagello Duke of Lithuania who had the name of Ladislaus given him by the Archbishop of Gnesna who anointed and Crowned after he had first baptized him He outliv'd Edwiga who died without Children and had for Successors the children of his fourth Wife who reached until Sigismund Augustus after whose Death the States chose in the Year 1573 Henry Duke of Anjou who after he had reigned four Months in Poland abandon'd the Kingdom to take possession of the Crown of France and was deprived of that of Poland by the States as may be seen from the Acts recorded by Historians This Vacancy occasion'd a Division in the States one part of them having chosen the Emperor Maximilian the Second and the other part Anne the Sister of Sigismund Augustus to whom they gave Stephen Battori Prince of Transylvania for her husband who Married the said Anne and was Crowned at Cracovia in 1576. After the Death of Stephen the States chose Sigismund Son of John III King of Sweden and of Katharine Daughter of Sigismund I. of that name King of Poland It is evident from this Abridgment 1st That the Poles always pretended to be the Masters that had right to give the Form to their State which seemed to them most comporting with the Good and Welfare of it 2ly That they took it for granted that they had Power to reject those Princes or Palatines whose Behaviour was contrary to the Publick Good for which they had raised them 3ly That they ever had an Eye to Succession so far as to bestow the Crown sometimes upon Daughters yet not thinking themselves bound to it but only so far as the good of the State did permit 4ly That they had regard to the appointing of a Successor when the States had first consented to it 5ly That the Flight or Desertion of their Kings has appear'd to them a sufficient Ground to proceed to a new Election in their stead and to reject them This is evident from the History of Lesko surnamed the Black and of Henry the III of France 6ly That the anointing and Crowning of their Kings was of no avail to dispense with their Oath in which they publickly declare That if they do not observe the Laws of the State the People are dispensed from their Oaths of Fealty they have sworn to them CHAP. XIV That the Monarchy of France is not an Absolute Empire but a Limited Royalty 'T IS not of to day only that some have imagined the Monarchy of France to be an unlimited Power and an Absolute Empire Bodinus was of that opinion before them but they that follow his sentiment understand nothing of that Constitution or if they do have a greater desire to flatter the unjust Pretensions of that Court than to maintain the
against Religion Justice and the Government That a Prince who passeth these Bounds must be held and esteemed for a wicked Tyrant cruel and intolerable who by this means pulls down the Hatred of God and his Subjects upon himself Du Haillan Historiographer of the Kings Henry III and Henry IV. follows the same notion of Claudius de Seissel in his third Book of the state of the Affairs of France dedicated to Henry III. maintaining that the Government of France is composed of Aristocrasy and Democrasy p. 168. And indeed who can judg otherwise when he attentively considers these six things which are a part of the publick Constitution of the Kingdom of France 1st That though the Crown for a long time since has followed the form of Succession yet the form of Election is still observed at the Coronation Hunc vultis hunc jubetis esse Regem This is he whom you will and require to be your King these Words are spoken to the People before the Coronation We find the Peoples Election is mentioned and the King called elect in the form of Coronation published by Hugo Menard a Benedictin 2ly The King is there engaged by his Oath to rule according to the Laws of the Kingdom as may be seen in the Ceremonial of France 3ly He can make no Laws but in the Parliaments or States General whereof we have an Instance in the States of Orleans in the Year 1560. and is the same with what D'avila has obin his 2d Book of the Civil Wars 4ly He can make neither Peace nor War but by the Advice of the States General This is acknowledg'd by Lewis XI as we find in Philip de Commines 2 Book ch 14. 5ly He can raise no Mony but by Concession from the States General We find this point thus decided by the States of 1338 with the consent of King Philip That no Taxes could be imposed or levied on the People of France without urgent and evident Necessity did require it and then only by the grant of the States Gila Fol. 157. Philip de Commines lib. 5. c. 18. saith with respect to this point Is there any King or Lord on the Earth who has Power besides his Demesne to impose so much as a Penny upon his Subjects without the Grant and Consent of those who are to pay it except it be by Tyranny and Violence 6ly The Kings of France are liable to be deposed by the States General in case they abuse the Authority they are entrusted with This last Article viz. of the Proceedings of the French against those of their Kings who abused their Authority does evidently demonstate That the Monarchy of France is altogether limited according to the Platform Caesar gives us of the Government of the ancient Germans or Francs who are descended from them There is a passage which is ordinarily abused to prove that unjust Kings and Tyrants cannot be deposed wherein Gregory of Tours thus expresseth himself to Chilperic Lib. 5. c. 19. If any one of us who are Lords transgresseth the Bounds of Justice you have the Power to punish him but if you your self do not keep within them who is it can correct you We indeed speak to you and you hearken to us if you please and if you will not who is it shall condemn you except he who has said that he is Righteousness it self I don't believe there was ever any Author that undertook to defend the Doctrine of Non-resistance and Passive Obedience who has not made use of this Proof but give me leave to say that they have quoted this passage with as much Judgment as they alledged the 75th Canon of the 4th Council of Toledo for 1st Observe that this is the Discourse of Gregory of Tours who was accused by Chilperic for opposing himself to the Justice that Prince demanded of a Council against Pretextat Bishop of Roven whom he accused of high Treason and forasmuch as the Bishops were perswaded of his Innocence whom they saw attackt by false Witnesses this Gregory had the Courage to maintain that it was their Duty to make their Remonstrances to the King concerning this matter The King took their Design of remonstrancing him for an opposition to the Justice he had demanded whereupon Gregory of Tours made the Discourse just now mentioned So that it plainly appears that this Discourse only respects the order of Bishops who under that Relation have no other way to redress themselves with regard to Kings but only by Remonstrances but does not at all speak of the Body of the State who are invested with other Rights in Reference to a King who undertakes to pervert Justice But to make it appear that Frenchmen at that time did not believe that Kings had the Priviledg that they could not be deposed by the States Though they abused their Authority we need only to consult the History of the deposing of Childeric Father of Clovis which is set down by Gregory of Tours Lib. 2. ch 11. and approved of by him We find that they had preserved this their Right by the Deposition of another Childeric in the 8th Century and whereupon it is obvious and natural to make these Reflections 1. That the Francs had the Power of choosing and deposing their Kings 2. That the Oath they swore to their Kings was conditional and supposed their acquitting themselves of the charge and trust reposed in them and which they were obliged by Oath to make good 3. That it is false that King Childeric was deposed by the Authority of Pope Zachary as the Papists have maintained forasmuch as that proceeding was an Act of the States General who made use of their Right on this occasion This is so true that Pope Zachary himself laid it down as a Maxim in his Letter to the Francs that this was a right inherent in the People Nam si Princeps Populo cujus beneficio Regnum possidet obnoxius est si Plebs Regem constituit destituere potest For if a King saith he be obnoxious to his People by whose graunt he possesseth his Kingdom if the People constitute a King they may also depose him If we come to the Race of Charles the Great we find Lewis the Good deposed by the States assembled at Thionville The whole Proceeding whereof may be seen in Baronius du Chesne Le Cointe where we may observe 1. That it was done with consent of the Bishops 2. We see there an Indictment on divers Articles which contains as many Crimes against the State. 3. When this Deposition was recalled afterwards they did annul the Acts of the former Assembly not as if they had acted without Power but because they had proceeded on false Accusations and insufficient Grounds We find also the same Proceeding with respect of Charles the Gross and Charles the Simple Indeed it was then so notorious that the Power of the Kings of France though they took to themselves the Title of Emperors was limited the Estates being
Aristocrasy and Democrasy That the Kings can do nothing without the States General which are the very same things with our Parliaments That the Judges are the Peoples Officers That the words so much abused Such is our Pleasure signify only This is the Decree of our Courts of Judicature That they have no Right to levy any Impositions without the Consent of the States and many other Articles of that Nature CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States I Have insisted the longer to shew how the Royalty was limited in France because the most part of our Modern Writers seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom as supposing that it would have been a most glorious and advantageous Thing for our late Kings to transform them into so many Lewis's XIV that is to say to change us into Slaves and our Princes into Tyrants I shall say nothing of the Royalty in Scotland nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter to justify the Proceedings of the Convention of that Kingdom that it would be of no use to repeat it here And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely as the Subject seems to deserve however what I shall say will be sufficient to make it appear that Royalty has been always on the same foot in that Kingdom as it is still in the other Western Kingdoms If we consider the most remote times that History gives us any account of we shall find that the Saxons as to the Power of their Kings followed the Example of the Ancient Germans whose Authority if we may believe Caesar and Tacitus was altogether limited and restrain'd We find in the Mirror of Justices cap. 1 2. that the first Saxons created their Kings that they made them take an Oath and that they put them in mind that they were liable to be judged as well as their meanest Subjects After that the Right of Succession was received in England yet it never deprived the English People of the Right of choosing their Kings This is evident from the Form of the Coronation published by Hugh Menard at the end of the Book of Sacraments of St. Gregory p. 278. which Form was as follows After they had made the King promise to preserve the Laws and the Rights of the Church we read these words Deinde alloquantur duo Episcopi populum in Ecclesia inquirentes eorum voluntatem si concordes fuerint agant gratias Deo Omnipotenti decantantes Te Deum laudamus Then let two Bishops speak to the People in the Church and demand their Will and Pleasure and in case they do agree let them give thanks to Almighty God singing We praise thee O Lord. And pag. 269 270 We pray thee most humbly to multiply the gifts of thy Blessings upon this thy Servant whom we chuse to be our King viz. of all Albion and of the Franks That the Kings of England are as well bound by their Oath as their Subjects appears by the confession of Henry III upon occasion of one of his Councellors of State pretending that he was not obliged to preserve the Liberties of the Nation as being extorted from him expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus omnes adstricti sumus ut quod juravimus observemus pag. 219. All these Liberties we have sworn to and we are all bound to observe and make good what we have sworn English Men were always so well perswaded of this Truth that in their deposing of Richard II they thought they had done enough to prove That the King had forsworn himself by the Oath he had taken having broken several of the Articles he had promised to his Subjects by Oath to observe as we may see in the Acts of his Deposal recorded in the Chronicle of Knighton James the First was convinced of this when he told the Parliament of 1609. the 21st of March That the King is bound by a double Oath tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath so as every just King is bound to preserve that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law. For what concerns the Laws we find that the Kings alone had not the Authority of making them King Edwin published his Laws Habito cum Sapientibus Senioribus Consilio with Advice of the Wise Men and Elders Ina King of the West Saxons did the like The Laws of Alfrede were made after the same manner Ex consilio prudentissimorum atque iis omnibus placuit edici eorum omnium Observationes As for the Government of the State we find that the Parliaments met and that their Meetings were fix'd once a Year by Alfred which was renewed by Edward II by two Laws Moreover the King was obliged to assist at them in case he was not sick and nothing but his Sickness could dispense with his Attendance That English-men never believed that the King of England could violate the Laws and overturn the State at his Pleasure without making himself thereby liable to punishment clearly appears from the Laws of St. Edward and by the manner of holding Parliaments confirmed by William the Conqueror and printed by the care of Dom. Luc. D'achery in the 12 To me of his Spicilege Sure it is that we clearly find these three things 1st That by the Agreement and Consent of King John upon the Complaints made against him by the whole State there were chosen 25 Barons with Power to represent to the King his unjust Oppression of the Nation and to oblige him by force of Arms to redress them which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery in the old Norman Tongue Spicil Tom. XII p. 583 584 585. as it is to be read in Matthew Paris ad An. 1215. Secondly We find that the opinion of the English Nation of old was That they could not only resist their Prince which abused his Authority but wholly deprive him of it by driving him and his wicked Councellors out of the Kingdom as we see in Matth. Paris in the Year 1233 where he relates that Henry III having call'd a Parliament upon the Complaints that came in from all Parts against his Ministers and the Strangers whose Service he made use of in the management of the Affairs of the Kingdom the Members of the said Parliament perceiving that they could not with safety meet together refused to come up
Denunciantes Regi per nuncios solennes quatenus omni dilatione remota ejiceret by solemn Messengers requiring the King that without any delay he should turn out those Strangers 3ly They judged that if the Sword of St. Edward called Curtana signified that the King reserved to himself the Right of exercising Justice against Delinquents yet he was liable to the same Penalties with private Persons whenever he transgress'd the Laws of the State whereof he was the Keeper and Defender as the same Matth. Paris explains it in the Life of Henry III. much after the same manner as Aurelius Victor reports in the Life of Trajan That that Emperor understood the Ceremony of delivering the Sword to the Prefect of the Pretorium Surely if we consider our History we shall find 1. That the Kings alone never had the Power of making Laws 2. That they had no Power to lay Taxes on the People 3. That they had not always the Power of making Magistrates 4. That they had not the Right of waging War without the Advice of Parliament as is observed by Philip de Commines Lib. 4. cap. 1. 5. That as they were chosen by the People they had also Power to depose them Nennius the most ancient English Historian after Gildas tells us That Vortigerne was deposed by St. Germain and the Council of the Britains because he had married his own Daughter who placed his Son Vortimer upon the Throne Edward II. Richard II. 6. That the States have cut off the Succession may be seen by Henry VII Indeed we find that our Ancient Lawyers our Ministers of State and our Kings who of all Men ought well to understand the Form and Constitution of our Kingdom were so far from believing that the Royalty in England was an Absolute and Unlimited Government that they have expresly declared that it is a Government bounded by Fundamental and Essential Laws and composed of a mixture of Monarchy Aristocracy and Democracy See how Bracton expresseth himself to this purpose Lib. 2. c. 16. Fleta l. 1. c. 17. In populo regendo Rex habet Superiores Legem per quam factus est Rex Curiam suam viz. Comites Barones Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum ideo si Rex fuerit sine fraeno id est sine Lege debent ei fraenum ponere In Ruling the People the King has above him the Law by which he is made King and his High Court viz. the Earls and Barons Earls are so called as being the King's Companions and he who has a Companion has a Master and therefore if the King be without Bridle that is without Law they must bridle him Chancellor Fortescue saith That the King cannot alter the Laws of his Kingdom for he governs his People not only by a Regal but a Political Power when it is said the Prince's Will has the Force of a Law this saith he is to be understood of a Regal or Absolute Power from which a political Power much differs for such can neither change the Law nor charge the People with new Impositions against their Wills. This is a thing so notorious that Philip de Commines has taken notice of it in his Memoires Lib. 4. cap. 1. and elsewhere as also Polydore lib. 11. Neither have those only who have expresly treated of the Government of England as Secretary Smith consider'd our Monarchy as a Government mix'd and bounded but Charles I himself spake of it in these terms There being three kinds of Government absolute Monarchy Aristocracy and Democracy and all having particular Conveniences and Inconveniences the experience and Wisdom of our Ancestors hath so moulded this out of a mixture of those as to give this Kingdom the Conveniences of all three without the Inconveniences of any one as long as the ballance hangs even between the three Estates and they run jointly in their proper Channels The ill of absolute Monarchy is Tyranny of Aristocracy Faction and Division of Democracy Tumults Violence and Licentiousness The Good of Monarchy is uniting a Nation under one Head the good of Aristocracy is the conjunction of Counsel in the ablest Persons for the Publick Good the good of Democracy is Liberty and the Courage and Industry which Liberty begets The Lords being trusted with Judicatory power are an Excellent Skreen and Bank between the Prince and the People by just Judgment to preserve the Law wherefore the Power of punishing is already in your hands according to Law. Let any one judg after all this whether our Ancestors ever entertain'd any of those pernicious Maxims maintain'd by some of our Modern Divines Maxims that have been the fruitful Mother of Tyrants viz. That Princes can dispose of the Goods Body and Lives of their Subjects at their pleasure That they are not subject to Laws or to give any Accompt That their Succession to the Throne is by Nature and Generation and not at all by the Authority or Approbation of the States That neither their Merits or Demerits can be brought into consideration to alter any thing about the Right of their Succession which is unalterable That without precipitating our selves into eternal Condemnation we may not oppose their Designs though directly and openly level'd at the Ruin of the State and the Change of Religion In a word that they may commit all manner of Injustice and Violence they please and that safely and securely because none but God alone can punish them CHAP. XVI An Answer to some Difficulties moved against this Truth AFter having set this Matter in so clear and evident a Light it is not without some Shame and Reluctancy that I make a stop to answer some insignificant Difficulties which those who defend the unlimited Power of the Kings of England oppose to the proofs I have alledged However such as they are I am willing to consider them that I may rid the Makers of them from the least pretext of continuing any longer in so gross and dangerous an Error They alledge in the first place the Title of Imperial given to the Crown of England which in their Judgments seems to equalize our Kings with the Roman Emperors and to attribute an absolute Empire or Dominion to them concerning which I have already shewed that tho this Title were well grounded yet the consequence they draw from thence would be null whether we consider the antient Roman Empire or whether we consider the Empire as it is now in Germany I add here for a further clearing of this Matter that the same thing happened to the Kings of the West with regard to the Emperor of the West as befell the other Kings who rose after the Destruction of the Roman Empire and to the Emperor of Germany with respect to the Emperors of the East The Emperors of the East as appears from the Embassy of Luitprand at Constantinople could not endure that other Princes should take upon them the Title of 〈◊〉 〈◊〉 〈◊〉
promulgamus ut si quis ex eis contra reverentiam legum superba dominatione fastu regio in flagitiis facinore sive cupiditate crudelissimam potestatem in populis exercuerit anathematis sententia à Christo domino condemnetur habeat a Deo separationem atque judicium propter quod praesumpserit prava agere in perniciem regnum ††deducere convertere De se Suintilane vero qui scelera propria metuens seipsum regno privavit potestatis fascibus exuit id cum gentis consultu decrevimus ut neque eundem vel uxorem ejus propter mala quae commiserunt neque filios eorum unitati nostrae unquam consociemus nec eos ad honores à quibus ob iniquitatem dejecti sunt aliquando ‖ ‖ provehamus promoveamus quique etiam sicut à fastigio regni habentur extranei ita à possessione rerum quas de miserorum sumptibus ††auxerant hauser ant maneant alieni praeter id quod pietate piissimi principis nostri fuerint consecuti Non aliter * * Geilanem Gelanem memorati ††Suintilanae Suintilani sanguine scelere fratrem qui neque in germanitatis * * fide foedere stabilis extitit nec fidem gloriosissimo nostro domino pollicito conservavit hunc igitur cum conjuge sua sicut ††antefactum est antefatos à societate gentis atque consortio nostro placuit separari nec in amissis facultatibus in quibus per iniquitatem creverant reduces fieri * * praeter in id praeter id quod consecuti fuerint pietate clementissimi principis nostri cujus gratia bonos donorum praemiis ditat malos à beneficentia sua ††congruè non separat non separat Gloria autem honor omnipotenti Deo nostro in cujus nomine congregati sumus Post haec salus pax diuturnitas piissimo amatori Christi domino Sisenando regi cujus devotio nos ad hoc decretum salutiferum convocavit Corroboret Christi gloria regnum illius * * gentesque gentisque Gothorum in fide Catholica annis meritis protegat illum usque ad ultimam senectutem summa Dei gratia post praesentis regni gloriam ad aeternum regnum transeat ††ut sine fine regnet qui * * in saeculo intra Saeculum feliciter imperat ipso praestante qui est Rex regum Dominus dominantium cum Patre Spiritu Sancto in Saecula Saeculorum Amen Definitis itaque iis quae superius comprehensa sunt annuente religiosissimo principe placuit deinde nulla re impediente à quolibet nostrum ea quae constituta sunt temerari sed cuncta salubri consilio ††conservari conservare quae quia profectibus Ecclesiae animae nostrae conveniunt etiam propriâ subscriptione ut permaneant roboramus * * subscripserunt omnes AN ADVERTISEMENT Concerning the ARTICLES OF MAGNA CHARTA of King JOHN As also concerning The MAGNA CHARTA now printed in this APPENDIX THESE Articles or Capitula were found in the Study of Bishop Warner late Bishop of Rochester They were communicated by a Gentleman of that Family to Mr. Geddis and by him to the present Bishop of Salisbury There can be no reasonable scruple raised against the Authentickness or Truth of the Writing For first 1. It is in a Hand very ancient They that are competent judges of such Antiquities say It well pretendeth to the Time of which it treateth 2. It hath yet appendant the Seal of King John without any suspicion of being lately affixed 3. In the famous Library of Sir John Cotton there are now to be seen many private Charters of King John which exactly agree with this both in respect of the Writing and also of the Seal 4. In the Books of the Archbishoprick of Canterbury amongst many things there entred of the time of King John these Articles are Recorded and were thence transcribed many Years before the Original of them came into the Hand of the Bishop of Salisbury 5. This Instrument is the same which Matth. Paris mentioneth Page 254. by the name of SCHEDVLA Archiepiscopus Schedulam illam c. The Arch-Bishop with others bringing that Schedule to the King recited before the King all the Capitula c. Which tho' the King then rejected yet shortly after upon better Advice He granted as may be gathered from the next Page of Matth. Paris These Arguments may satisfie those who since the late mentioning of these Articles in the Pastoral Letter of the Bishop of Salisbury have had the Civility to doubt of the Truth of the whole matter 1. As to the substance of these Articles It is to be observed that they contain some part of the Rights of the Barons due to them by the Unwritten or Common Law of the Land which Rights for more certainty were in several Reigns drawn into Writing And for more obligatoriness into Charters after the entrance of the Normans In the time of the Confessor they were contained in the Laws of that King. William the Conqueror confirmed to the old and new Barons of his Investiture according to Custom of England the Laws of the Confessor as appeareth by the Record in Ingulf and other Testimonies 2. These Articles or the Laws of the Confessor were recognized and by Oath re-confirm'd by William Rufus no doubt at His Coronation or not long after The old English Chronicle writeth thus William Rufus by his Letters Summon'd the Bishops Earls and Barons to St. Pauls and there he Sware and made to them Surety by Writing to sustain and maintain the Right 3. King Henry I. ratified these Rights In his Charter we find in general Lagam Edwardi Regis vobis reddo cum its emendationibus quibus Pater meus eam emendavit c. I restore to you the Law of King Edward as it was mended or enlarged by my Father with the Advice of his Barons 4. It is evident that King John to omit others both by His Coronation Oath and at other times confirmed these Articles or Explanations of the Old Law. Matth. Paris pag. 239. The King John strictly commanded that the Laws of His Grandfather King Henry should be observed by the whole Kingdom But what this Law of King Edward or Emendations contained the same Matth. Paris setteth down in short pag. 252. The Charter of King Henry the First contained certain Liberties and Laws of King Edward granted to the Church of England and the great Men as also some Liberties superadded by King Hen. I. And pag. 254. Capitula quoque legum libertatum c. The Heads or Articles of the Laws and Liberties which the Great Men desired to be confirmed are already entred partly above in the Charter
shall be present or before Stephen Archbishop of Canterbury if he can be there and those that he shall call to him and if he cannot be present Matters shall proceed notwithstanding without him so always that if one or more of the said Five and twenty Barons be concern'd in any such Complaint they shall not give Judgement thereupon but others chosen and sworn shall be put in their room to act in their stead by the residue of the said Five and twenty Barons If we have disseiz'd or esloin'd any Welshmen of Land Franchises or of other things without lawful judgment of their Peers in England or in Wales they shall forthwith be restored unto them and if Suits arise thereupon right shall be done them in the Marches by the Judgment of their Peers of English Tenements according to the Law of England and of Tenements in Wales according to the Law of Wales and Tenements in the Marches according to the Law of the Marches And in like manner shall the Welsh do to us and our Subjects As for all such things whereof any Welshmen have been disseiz'd or esloyn'd without Lawful Judgment of their Peers by King Henry our Father or by King Richard our Brother which we have in our hands or which any others have to whom we are bound to warrant the same we will have respit till the common Term be expir'd of all that crost themselves for the Holy Land those things excepted whereupon Suits were Commenced or Enquests taken by our Order before we took upon us the Cross and when we shall return from our Pilgrimage or if peradventure we forbear going we will presently cause full Right to be done therein according to the Laws of Wales and before the said Parties We will forthwith restore the Son of Lewellyn and all the Hostages of Wales and the Deeds that have been delivered to us for security of the Peace We will deal with Alexander King of Scotland as to the restoring him his Suitors and his Hostages his Franchises and Rights as we do with our other Barons of England unless it ought to be otherwise by vertue of the Charters which we have of his Father William late King of Scotland and this to be by the Judgment of his Peers in our Court. All these Customs and Franchises aforesaid which we have granted to be kept in our Kingdom so far forth as we are concerned towards our Men all Persons of the Kingdom Clerks and Lay must observe for their Parts towards their Men. And whereas we have granted all these things for God's sake and for the amendment of our Government and for the better compremising the discord arisen betwixt us and our Barons We willing that the same be firmly held and established for ever do make and grant to our Barons the scurity underwritten to wit That the Barons shall chuse Five and twenty Barons of the Realm whom they List who shall to their utmost Power keep and hold and cause to be kept the Peace and the Liberties which we have Granted and Confirmed by this our present Charter insomuch that if we or our Justice or our Bayliff or any of our Ministers act contrary to the same in any thing against any Persons or offend against any Article of this Peace and Security and such our Miscarriage be shown to four Barons of the said Five and twenty those four Barons shall come to us or to our Justice if we be out of the Realm and show us our Miscarriage and require us to amend the same without delay and if we do not amend it or if we be out of the Realm our Justice do not amend it within Forty days after the same is shown to us or to our Justice if we be out of the Realm then the said Four Barons shall report the same to the residue of the said Five and twenty Barons and then those Five and twenty Barons with the Commonalty of all England may distress us by all the ways they can to wit by seizing on our Castles Lands and Possessions and by what other means they can till it be amended as they shall adjudge saving our own Person the Person of our Queen and the Persons of our children and when it is amended they shall be subject to us as before And whoever of the Realm will may swear that for the Performance of these things he will obey the Commands of the said Five and twenty Barons and that together with them he will distress us to his Power And we give Publick and free leave to swear to all that will swear and will never hinder any one And for all Persons of the Realm that of their own accord will swear to the said Five and twenty Barons to distress us we will issue our Precept Commanding them to swear as aforesaid And if any of the said Five and twenty Barons die or go out of the Realm or be any way hindred from acting as aforesaid the residue of the said Five and twenty Barons shall chuse another in his room according to their discretion who shall swear as the others do And as to all things which the said Five and twenty Barons are to do if peradventure they be not all present or cannot agree or in case any of those that are Summon'd cannot or will not come whatever shall be determined by the greater number of them that are present shall be good and valid as if all had been present And the said five and twenty Barons shall swear that they will faithfully observe all the matters aforesaid and cause them to be observed to their power And we will not obtain of any one for our selves or for any other any thing whereby any of these Concessions or of these Liberties may be revoked or annihilated and if any such thing be obtained it shall be null and void nor shall ever be made use of by our selves or any other And all ill will disdain and rancour which has been betwixt Us and our Subjects of the Clergy and Laity since the said discord began we do fully release and pardon to them all And moreover all Trespasses that have been committed by occasion of the said discord since Easter in the sixteenth year of our Reign to the restoring of the Peace we have fully released to all Clerks and Lay-men and so far as in us lies we have fully pardoned them And further we have caused Letters Patents to be made to them in testimony hereof witnessed by Stephen Archbishop of Canterbury Henry Archbishop of Dublin and by the aforesaid Bishops and by Mr. Pandulphus upon this Security and these Concessions Whereby we will and strictly Command that the Church of England be free and enjoy all the said Liberties and Rights and Grants well and in Peace freely and quietly fully and entirely to them and their Heirs in all things in all places and for ever as aforesaid And we and our Barons have sworn that all things above written shall be kept on our parts in good Faith without ill design The Witnesses are the Persons above-named and many others This Charter was given at the Meadow called Running-Mead betwixt Windsor and Stanes the 15th day of June in the Seventeenth Year of our Reign JOHN by the Grace of God King of England to the Sheriff of Hampshire and to the Twelve that are chosen in that County to enquire of and put away the evil customs of Sheriffs and of their Ministers of Forests and Foresters of Warrens and Warrenners of Rivers and of guarding them Greeting We command you that without delay you seize into our Hand the Lands and Tenements and the Goods of all those of the County of Southampton that will not swear to the said Five and twenty Barons according to the form exprest in our Charter of Liberties or to such as they shall have thereunto appointed and if they will not swear presently at the end of Fifteen days after their Lands and Tenements and Chattels are seized into our Hands that ye sell all their Goods and keep safely the Money that ye shall receive for the same to be employed for the Relief of the Holy Land of Jerusalem and that yeâ— keep their Lands and Tenements in our Hands till they have sworn or that Stephen Archbishop of Canterbury and the Barons of our Kingdom have given Judgment thereupon In witness whereof we direct unto you these our Letters Patents Witness our Self At Odibaam the Seven and twentieth Day of June in the Seventeenth Year of our Reign FINIS Books lately Printed for Richard Chiswell THE Case of Allegiance in our present Circumstances considered in a Letter from a Minister in the City to a Minister in the Country 4o. A Breviate of the State of Scotland in its Government Supreme Courts Officers of State Inferiour Officers Offices and Inferiour Courts Districts Jurisdictions Burroughs Royal and Free Corporations Fol. Some Considerations touching Succession and Allegiance 4o. Reflections upon the late Great Revolution Written by a Lay-hand in the Country for the satisfaction of some Neighbours The History of the Desertion or an Account of all the Publick Affairs in England from the beginning of September 1688. to the Twelfth of February following With an Answer to a Piece called The Desertion discussed in a Letter to a Country Gentleman By a Person of Quality K. William and K. Lewis wherein is set forth the inevitable necessity these Nations lie under of submitting wholly to one or other of these Kings And that the matter in Controversie is not now between K. William and K. James but between K. William and K. Lewis of France for the Government of these Nations An Examination of the Scruples of those who refuse to take the Oath of Allegiance by a Divine of the Church of England A Dialogue betwixt two Friends a Jacobite and a Williamite occasioned by the late Revolution of Affairs and the Oath of Allegiance The Case of Oaths stated 4o. A Letter from a French Lawyer to an English Gentleman upon the Present Revolution 4o. The Advantages of the Present Settlement and the great danger of a Relapse The Interest of England in the Preservation of Ireland
otherwise than by Patience when they are convinced in Conscience of the Injustice of the Laws and Commands enjoyned 'T is an easie matter to overthrow the First of these Suppositions First I would fain know who has given these Gentlemen the Power of determining as they do what is Essential to Sovereignty Do they derive these their Notions from Revelation or from Reason which is common to all Men If they say they derive the definition they give us of Sovereignty from Revelation they will do well to point us to the places of Scripture where this Notion is set down If they draw it from Reason then I cannot but wonder that so many Statesmen and Writers of Civil Matters have fail'd of stumbling on the same Notion and it seems to me an inextricable thing that so many Nations should agree to reject what they approve and to approve what they reject To say here That they draw this definition from the Idea of Sovereignty which loseth its nature when divested of these Characters shews they are willing either to abuse themselves or others by a pitiful Equivocation The word Sovereign imports a relation to Inferiors and as the relation has a certain foundation so it is likewise evident that it hath its bounds set proportionable to its foundation Where there is no Authority neither is there any foundation for Obedience Now there is no Authority but in proportion to the Laws which establish the Authority wherefore it incontestably follows There can be no Authority where the Law is so far from allowing any that it opposes it It will never cease to be true That the Authority is Sovereign though it be not so in all respects The Consuls of Rome were Sovereign Magistrates though the People had Power to oppose themselves against their Authority when they abused the Power they were intrusted with for the good of the Commonwealth In France they give their Parliaments the Name of Sovereign Courts though their Sentence be not always irrevocable The Second Supposition is only founded upon this Notion That Conquerors having invaded the Liberty and Privileges of the People were afterwards so kind to restore some part thereof to them again by their Concessions but that these Acts of Grace do not at all divest them of the Right of Acting whenever it shall please them as if their Power was altogether Unlimited and Arbitrary This Notion is much the same with that of the Partisans of the Court of Rome who maintain That the Liberties of the Gallican Church are only Acts of Grace and Favour granted to that Church whereas the French pretend That they are common Rights and Franchises which their Ancestors have constantly maintained according to what P. Pithou declares concerning them But indeed to speak truly this Supposition cannot be admitted with respect to conquered States at least for the most part Ordinarily a Conquest is made upon the Power that governs the State so that the State only changes its Master the fundamental Laws of the Land receiving no Alteration from this Change. Of this we have an Instance in England when King William conquered it who at his Coronation sware to keep the Laws of St. Edward and his Successors were fain to swear the same Now one of these Laws c. 15. T. 1. Spelm. p. 622. imports That a Prince that abuseth the Power he is intrusted with does lose the Title of King From whence it follows That his Subjects need not own or obey him and that consequently it is lawful to resist him To maintain That a King whose Power is limited by the fundamental Laws of a State and which he is invested with upon that condition when at his Coronation he swears to the People is indeed obliged to keep the said Oath for fear of God but that he is not at all engaged by this his Oath to the People is rather a piece of Raillery than Reasoning What Does not the Oath the People swear to the King oblige them in Allegiance to him and how can we then suppose that the reciprocal Oath of the King should not as well oblige him to his People Surely if we well weigh the case 't is impossible but we must discern a palpable falsity in this Opinion of Passive Obedience in the way these Gentlemen propose it First They grant a Right unto Sovereignty which is diametrically opposite to the end of Sovereignty according to the Divine Destination For the good of the Society and its Subsistence was God's End in insticuting of the Sovereign Power whereas by their Hypothesis the Sovereignty may become an instrument of the utter ruin of the Society whensoever it shall please the Sovereign his Subjects in the mean time having no means to attain the said End or being in any condition to hinder their being deprived of it Secondly They suppose That God in allowing a lawful Right to Sovereigns has subjected the People to a necessity of groaning under an Illegal Right and which God has never bestowed upon them and for the Usurpation of which he will condemn those who do arrogate the same to themselves which is much to the same purpose as if I should say That because God has established Judges he has thereby obliged the People to suffer Robbery when the Judges shall think fit to turn Robbers Thirdly They make the condition of a Civil Society more unhappy than was the condition of Families in the state of Nature before Societies were formed For the liberty of defending one's self is permitted to every one by Nature but after the Society is once formed it would follow That the whole Society would be obliged by a Principle of Conscience to suffer their Throats to be cut by a Prince of the humour of a Nero or a Caligula Fourthly They turn to meer Chymera's and Visions whatsoever the wisdom of Men have been able to find out to make States happy by securing them against Tyranny I speak of Laws and Oaths the Laws are the bands and cement of the Society and the foundation as well as the measure of the Obedience we owe to Princes The Oaths are the Seal of the Contract by which the Subjects are obliged to obey them upon condition that they govern according to Law. But all this is to no purpose and is of no use to the People as soon as the Tyrant thinks fit to overturn the Laws and to mâ—ke a Scoff at his Oaths Forasmuch as the Third Supposition viz. That the Scripture maintains Non-resistance with regard to Sovereigns whether they act according to or against Law is of greater importance it will be convenient to examine the same more heedfully and the rather because Men of Abilities and Learning have endeavoured strongly to assert it and to make it pass current with others and that with all their might CHAP. VII That the Scripture doth not assert the point of Non-resistance FOrasmuch as the Doctrine of Non-resistance directly thwarts a natural Principle to wit that of our
to the Society Now that Samuel had not any the least Design to appropriate an unbounded Power to the Kings of Israel 1 Sam. 8. by these Words hoc est jus Regis appears 1st Because the word Mispath ordinarily signifies consuetudo agendi ratio a custom manner or way of acting in case we do not explain this word in the same sense it carries in the 2d chap. of the same Book ver 13. we shall make this passage to contradict Deut. 17. which cannot be otherwise avoided This is acknowledged by Learned Men who therein agree with Schickardus de jure Hebraeorum Cap. 2. Thess 7. p. 65. 2ly The Fathers are of the same opinion see what Beda saith in his Exposition upon Samuel Lib. 2. Hoc erit jus Regis qui imperaturus est vobis Non qualis esse debeat moderatus justus Imperator exposuit cujus in plerisque Scripturae sacrae locis maxime in Deuteronomio perfectio docetur sed potius Rector improbus qui austeritate subjectos sit oppressurus intimat ut per hoc populum a pertinaci ejus petitione revocet This will be the Behaviour of the King that shall rule over you He doth not sâ—t forth the Qualifications of a moderate and just Ruler who is fully represented to us in many places of Scripture but especially in Deuteronomy but rather those of a wicked Governour who by his Cruelty should oppress his Subjects that thereby he might deter them â—â—om their obstinate demanding of him 3. The Divines that did not understand Hebrew yet by good sense and Reason were led to the true meaning of this word Gerson lays it down as a certain Truth that this word does not express a lawful Right but an unjust Power Dictio haec Jus non significat semper Jurisdictionem sive Justitiam sed significat interdum Potestatem quae non est justa c. sicut haec dictio Rex quandoque sumitur pro Tyranno Benedictio pro maledictione Lex injustitiae pro injustitiae execratione Deus pro Diabolo This word Jus doth not always signifie Right or Justice but sometimes an unjust Power c. even as also the word King is sometimes taken for a Tyrant and Blessing for Cursing and the law of unrighteousness for the execrable unrighteousness and God for the Devil Opusc contr Adulator Princip in Consid 8. The same also was the Judgment of Claudius Espenseus a famous Divine of the Romish Church who told Henry II of France Your Majesty ought to abhor that Right nothing less than Regal and nothing more than Tyrannical which God by the mouth of Samuel did not allow the King but wherewith he threatned the People saying Hoc erit Jus Regis this will be the Right of a King. Treatise of the Institution of a Prince Ch. 8. 4. It appears evidently that Samuel represents to us the picture of a Tyrant in opposition to the description of a King God had set down in the 17 chap. of Deuteronomy 5. The Jews of old have always owned as much as appears from Josephus Lib. 4. cap. 8. 6. It appears that those who conceive the matter otherwise suppose a greater Power and Authority in Princes than they ascribe to God himself who never commands any Thing but what is reasonable and just as St. Paul judged who calls all the Duty we owe to God a Reasonable Service Rom. 12. 7. If any one will take the pains to read the Characters Solomon has given of a King in divers places of the Proverbs he shall find that nothing can be more opposite to this Idea of an unbounded Power which some would gather from these words of Samuel 8. The Kings of Israel never enjoyed any such Power or ever pretended to it the History of Naboth whose Vineyard King Ahab greatly desired is a proof hereof beyond all exception 1. Kings ch 21. Jezebel would never have been put to the trouble to employ false Witnesses to destroy Naboth as a Blasphemer if she had had in Israel some of those Divines Flatterers of the Grandeur of Princes who abuse the Holy Scripture to authorize all the injustice and oppression they are guilty of I am sure it is impossible to read without astonishment the extravagance of some Divines who conceive that the words of Samuel contain an Explication of the Rights of Royalty and that Samuel wrote them in a Book as being the publick and incontestable Rights of Monarchy Withal let us make this Reflection which is very natural The Jews here complain of the injustice and violence of Samuel's Sons who made a mock of the Laws whereupon 't is supposed that they to remedy this mischief require of Samuel to set a King over them that might govern them according to his own Fancy and treat them like Slaves Is there any thing of sense in the Supposition We suppose that the King has already a Rule prescrib'd him in the 17 of Deuteronomy and at the same Time we maintain that Samuel a Prophet has in a publick Record set down the Description of a Tyrant to whom God gives Right to violate all the Rules he had prescribed in his Law. Sure it is that neither the Antient nor Modern Jews did ever conceive any such thing If we read Josephus where he sets down an abridgment of the 17 of Deuteronomy we shall find that he expresly asserts that it was not only the Right but also the Duty of the People to oppose themselves against their Designs in case they violate the Rules of the Royalty God had prescribed them Let us consider the carriage of the Maccabees against Antiochus and we shall find that they did not believe it unlawful to resist Tyrants and to oppose themselves to their destructive Government Let any one read the 14 of the first Book of the Maccabees and he will see whether the Rights of the King which at that Time were engraven on Brass had any resemblance with what we find in the 8th chap. of Samuel This is a sure way to judge whether the Jews ever pretended that God by these words of Samuel had granted to Kings an unlimited Power They to this day acknowledg that the Scripture does not only prescribe Moral Laws which their Kings could not violate but also positive Laws to which they were obnoxious and which they could not transgress without submitting themselves to the same punishments with the rest of their Subjects This is the common opinion of the Jews as we may see in Maimonides de Regibus Cap. 3. Sect. 4. and in the treatise of the Sanhedrim cap. 19. num 166 167 168. which Doctrine he borrowed from the Talmud cap. Cohen Gadol and from Siphri upon the Parasche Schophetim 2ly They hold that if the King did change the form of Government into Tyranny the People had Right to reject him The History of Rehoboam rejected by the ten Tribes is a proof hereof beyond exception 3ly They hold that the People suppos'd
the same Limitations of the Regal Power in Denmark as Pontanus observes in his 8th Book and it was for endeavouring to break through these Bounds that Christiern the II. was deposed as may be seen in Petersen in Chron. Holsat Where he hath set down the Acts and Reasons of the State of Denmark about that Proceeding That the Power of the Kings of Hungary was a Power limited by the Fundamental Laws of the State is a Matter so notorious that Chalcondilas has made it his Observation in the second Book of his History where he compares the Royalty of Hungary in that respect to the Kingly Power in England And which may be farther made out by the Fundamental Laws of Hungary set down by Bonfinius Decad. 4. lib. 9. Where we also find the Oath taken by those Kings at their Coronation being the most expresly conditional that can be imagined Chalcondile saith the same Thing of the Kingdoms of Arragon and Navarre Lib. 5. where he observes that the Kings did not create the Magistrates that they could not make any Garrison without the Consent of the People and that they could not require any thing of them contrary to their Customs that is to say contrary to their Laws Accordingly we find that the Kings of Spain have no Power to lay any new Impositions upon their Subjects without their consent They are obliged to swear they will observe the Laws And in Arragon the People declare to the King at his Coronation that if they do not perform their Oath and Promise their Subjects are thereby set free from their Oath of Allegiance We find the same Thing in the History of the Kingdom of Portugal but especially in that part of it which gives an Account of the Reign of Alphonsus III. The Fundamental Laws of which Kingdom we find in the 17th Title of the Ordinances of Portugal Lib. 2. § 2 3. seq So true is it that all those Kingdoms never in the least supposed that their King had an Absolute Power over them And it is as certain that almost all those States have always maintained That the Power of their Soveraigns was so limited 1. That they could make no Laws without the States General of the Kingdom 2. That they could not levy any Mony on their Subjects without their Consents 3. That they could not break the Laws according to their Will and Pleasure 4. That in case of their violating the Fundamental Laws of the State they were liable to be deprived of a Power which they abused 5. That the States were free to chuse such a Form of Government and such a Person for to govern them as they thought most expedient for them This is that which I intend to prove more particularly by Examples taken from the Empire and the Kingdoms of Poland France Scotland and England to which I shall add some Remarks upon those Titles which deceive some who consider Things of this Nature with too little attention CHAP. XII That the Power of the Emperors of the West is a Limited Power THis is a Matter that may be easily gathered from these following Instances 1. Because Charles the Great who was the first that took upon him the Title of Roman Emperor reigned according to the Customs of the Princes of Germany of whose Opinion concerning an Absolute and Despotical Government Tacitus has given us some Account who represents them as having the greatest abhorrence for it 2. Because Lewis the Good did himself acknowledg that the Soveraign Power was shared between him and the chief Members of the Empire Capitular Lib. 2. Tit. 3. Sed quanquam summa hujus ministerii in nostra persona consistere videatur tamen Divinâ Authoritate humanâ ordinatione ita per partes divisum esse cognoscitur ut unusquisque vestrûm in suo loco ordine partem nostri Ministerii habere cognoscatur But though the whole of this Ministry seem to consist in our Person yet it is known to be so shared and divided as well by Divine Authority as Humane Ordination that every one of you in his respective Place and Order is known to partake of this Ministry Thus was he pleased to express himself in the Assembly of the States General whose Authority he owned to be as much of Divine Right as his own which made Charles du Moulin the most famous of all French Lawyers say Ergo solum Caput non omnia potest imo persona Principis non est Caput nisi Organicum sed verum Caput est Principatus ipse cum membris integrantibus eum Wherefore the Head alone cannot do all yea the Person of the Prince is only the Organical Head but the true Head is the Principality it self with its integral constituting Members Which are his express words in his Commentaries upon the Stile of Parliament dedicated to the first President of Paris and printed with Priviledg 3. Because though the Western Empire did seem to be so Hereditary that the Emperors had divided it amongst their Children yet in process of time it became Elective which began to take place in the Eleventh Century in the Person of Rudolphus 4. In that they always excluded Females from the Succession to the Empire though they had respect in their choice to the Imperial Blood. With respect to the Rights of Soveraignty we find that tho the Empire be a Monarchical Government yet we see it is mixed with Aristocracy for the Emperor cannot enjoy it but with the Consent of the States of the Empire without making himself liable to be contradicted and deposed also He has not the Right of making Laws without the Consent and Authority of the States of the Empire He has no right to declare War without the foregoing consent of the States He has no right of levying any Imposition on the States without the Consent of the Diets Whenever he begins to usurp the Rights that do not belong unto him and to infringe the Rules of Government he has sworn to observe the States have a Right to oppose his Enterprizes to repel Force with Force and finally to deprive him of the Empire in case he continue in the Design of changing the Form of Government For though there be no Laws which bound and regulate the Article of the Deposing of Emperors when they abuse their Power for the overturning of the State or for invading the Rights of the Princes of the Empire and Imperial Cities yet the Germans have always held and still do hold it for a certain Truth that it is a Right inherent in the Empire to deprive an Emperor of the Imperial Power and Dignity and to confer the same on another This is the common Opinion of the German Lawyers represented to us by Lampadius Arnizaeus Diderick Conringe and many others And indeed we may say that there is nothing more certain if we consider the Examples of Emperors that have been deposed since these 7 or 800 Years Examples that are neither rare
invested with part of the Soveraign Authority that Lewis the Good solemnly avows the same Lib. 2. Capitul c. 2 c. 12. We find also that the Clergy of France was so far convinced that the States of the Kingdom had right to dispose of the Crown for the good of the State that when Charles the Bald was chosen by the Kingdom of Lorrain in Prejudice of the Children of the King his Brother and that Pope Adrian II. wrote to them thereupon by Hincmar Archbishop of Rheims threatning to excommunicate them they sent back this Answer to him by the said Hincmar Petite Dominum Apostolicum ut quia Rex Episcopus simul esse non potest sui Antecessores Ecclesiasticum ordinem quod suum est non Rempublicam quod Regum est disposuerunt non praecipiat nobis habere Regem qui nos in sic longinquis partibus adjuvare non posset contra subitaneos frequentes Paganorum impetus nos Francos non jubeat servire cui nolumus servire quia istud jugum sui Antecessores nostris Antecessoribus non imposuerunt nos illud portare non possumus qui scriptum esse in sanctis libris audimus ut pro libertate haereditate nostra usque ad mortem certare debeamus Desire the Apostolical Lord that forasmuch as he cannot be King and Bishop both together and that his Ancestors have concerned themselves with the Ecclesiastical Order which is their particular Province and not with the Common-wealth which is the Office of Kings not to command us to take such a one for our King who at so great a distance is not able to help us against the sudden and frequent Assaults of Heathens and to require us Francs to serve him whom we will not serve because his Ancestors never offer'd to impose this Yoke upon our Ancestors neither can we bear it who find it written in the Holy Books That we ought to fight for our Liberties and our Inheritance even unto Death We see also that he who was the Head of the Third Race viz. Hugh Capet was chosen King of France notwithstanding the apparent Rights of Charles of Lorrain who was the next Heir of Lewis V. by reason that the said Charles seemed too much linked to the Interests of the Germans who at that time were Enemies to France Guil. de Nangis ad An. 987. and others in du Chesne Who does not know the History of Henry III. who having been deposed in Poland for deserting that Kingdom was afterwards deposed in France by advice of the Sorbonn and of the greatest part of the States We may easily judg from these two Characters that Frenchmen never were infected with the Doctrine of Non-resistance The one is because they look'd upon this Doctrine as an Error See what Gerson the famous Chancellor of the University of Paris saith of it Error est dicere terrenum Principem in nullo suis subditis dominio durante obligari quia secundum jus Divinum Naturalem aequitatem verum Dominii finem quemadmodum subditi debent fidem subsidium servitium Domino sic etiam Dominus subditis suis fidem debet protectionem Et si eos manifeste cum obstinatione in injuria de facto prosequatur Princeps tunc Regula haec Naturalis vim vi repellere licet locum habet Opusc adversus Adulat consid 7. It is an Error saith he to assert that an Earthly Prince as long as his Dominion lasts does not stand engaged to his Subjects in any thing because according to the Divine Law Natural Equity and the true End of Dominion as the Subjects owe to their Prince Faithfulness Subsidy and Service so their Prince owes them Faithfulness and Protection and in case he doth publickly and with obstinacy imperiously oppress them then that natural Rule takes place That it is lawful to repel Force by Force The second is that they have always with horror rejected the Abuse that has been made of the Expression in 1 Sam. 8. Hoc est Jus Regis for to maintain the Tyranny of Princes If we will believe the Laws amongst you Princes saith Claudius d' Epense to King Henry II. you are Lord of our Body and Goods or to speak more like Christians we and ours are at your command Your Majesty ought to abhor that Right nothing less than Royal and nothing more than Tyrannical which God by the Mouth of Samuel did not allow to Kings but only threatned the People with telling them This shall be the Right of the King c. And then adds Go to now ye Dogs and Flatterers of the Court go to and alledg hence-forward this Right not Regal but Barbarous but Turkish but Scythian or if any worse Epithet can be invented I acknowledg that the Face of Affairs is very much changed since these hundred Years The States General have not been assembled almost these Seventy Years The Parliaments themselves which were established by the Kings and the States General to preserve the Rights of the States have been forced by the present King to verify without any Debate all manner of Edicts for the Imposition of Mony. But yet after all this Change is of so late standing that there is little appearance it should be look'd upon as a sufficient Prescription against the Interest of the State. Those French-men who have any knowledg of the Laws of the State and its Constitution set down the Epocha or Date of this Change of the Ancient Maxims of the Kingdom to wit the time which followed the Cessation of the Holding of the Estates General or the Minority of Lewis XIII and the Reign of Lewis XIV Let no Body imagine that the Ancient Idea of the Government of France is quite effaced out of the Spirit of the Nation I own that Lewis XIV by a Reign both very long and very violent has made the French lose a great deal of their Courage The Clergy of that Kingdom have above all endeavoured to support his Tyranny by Maxims advanc'd and contriv'd by them for the ruin of the Protestants with as little regard for their Country as they have shewed Conscience in their base Panegyricks pronounced to his Honour But however there are still in being a great number of honest Men who adhere to those Ancient Maxims I can at this present produce one of these from amongst the Clergy the Learned and illustrious M. Joly Canon of the Church of Paris who in the Year 1663 publish'd a Book with this title Important Maxims for the Education of a King. This Man alone may suffice to prove my assertion for he very vigorously confirms these Maxims by the Testimony of Kings themselves Chancellors Ministers of State Lawyers and Historians of France that they were always of Opinion in that Kingdom That the King holds his Authority from the People That the Power of Kings is Limited That the French Monarchy is a Monarchy allay'd and temper'd with
〈◊〉 〈◊〉 Kings or Emperors believing that the Name of Kings left them in some dependence upon the Empire of the East this obliged the Emperors of the West to take upon them the Title of Emperor to intimate their independency upon the Princes of the East Which Title the Emperors of the West having afterwards made use of as a pretence to raise themselves above the rest of the Princes of Europe the Western Kings did the same which the Emperors of the West had done before to assert their Independency For not only the Kings of England but some other Western Kings have taken upon them the Title of Emperors Alphonsus VI King of Spain took upon him this Title by a Concession from Pope Vrban II because he had suppressed the Mosorabick-Office Alphonsus VII and VIII assum'd the same Titles and Alphonsus VIII was Crowned in that quality by Raymond Arch-Bishop of Toledo in the Church of Lions with the consent of Pope Innocent II as is reported by Garibay lib. 8. hist cap. 4. We find that Peter de Clugny writes to this Alphonsus as Emperor of Spain Epist 8. And long time before these Princes it is certain that the Kings of the Goths since Richaredus had taken to themselves the Title of Flavians in imitation of the Roman Emperors as may be seen in the Councils of Toledo Yet Philip II having demanded this Title in 1564 of Pope Pius IV it was refused him The Kings of Lombardy had assum'd the Title of Flavians even since Autlaric according to the Account given us by Paul Diacon lib. 3. cap. 8 which they did to shew that they were Emperors in their own Lands and Territories and that they acknowledged no Soveraign or Superior And it seems that in Process of Time some Western Kings affected that Title for the same reason and were the rather perswaded so to do because some Canonists and Lawyers have impudently maintained That the Kings of Spain France and England were Subjects of the Emperors of the West Glossa in cap. Venerabil de Elect. in verbo transtulit in caput Venerabil qui filii sint legitimi Bartolus in caput hostes ff de captivis Alciat lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace juramento fervando in usibus Feudorum Tho he contradict himself by asserting elsewhere That the King of France is not subject to the Emperor And thus much for the first Illusion some make use of to perswade us that the Kings of England possess the same Rights as the Emperors A second which seems to have some more Ground is this They say that as the Emperors that were after Vespasian had the Right to divide the Empire and to settle it by their Wills on their Heirs the Kings of England having done the like it appears thereby they were in Possession of the same Right the Emperors had to this purpose they alledge the last Will of William the Conqueror in favor of his Son William Rufus But nothing can be more vain than this Objection 1. We cannot deny but that the Election of Kings took Place during the Reign of the Saxons not that they did it with that Freeness as to prefer the Uncle before his Nephew that was under Age ' tho the Kings Son and the youngest Brother before the Eldest 2ly It is true that William the Conqueror did act in an extraordinary manner in disposing of his Kingdom in Favor of William Rufus in the same way as one disposeth of a Conquest and this in prejudice to Robert his Eldest Son as was also done by William Rufus But these two Princes dying without Heirs Henry who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings and who in Consideration of that Marriage renounced the Rights he might pretend to England as heir Presumptive of the Saxon Kings having obtain'd the Government by the Right of his Wife the Laws recovered their Strength and Things returned to their antient Channel as they were in the time of the Saxons So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates as a private Person can alienate his Inheritance This was evident in the case of King John who was opposed by the whole State for pretending to subject the Crown of England to Pope Innocent III. And indeed if we consider the Thing in it self and according to the unanimous Opinion of all Lawyers these last Wills can really be of no Force without the consent of the States to authorize them as we find that the same did intervene in both the fore-mentioned Cases The reason whereof is invincible forasmuch as all States do not consider their Kings as Proprietors of their Kingdoms but only as publick Ministers who are intrusted with a Jurisdiction and Administration for the Good of the publick And this is the Title by which even Conquerors themselves are at last obliged to hold their Authority They tell us in the 3d place that the Kings of England entitling themselves Kings by the Grace of God it appears that their Power being come from God cannot be limited by their Subjects over whom God has set them A wonderful way of arguing and never known till these our Times at least it is evident that he who has defended Nicholas de Lyra against Burgensis hath made a very different use of these words Dei Gratia by the Grace of God wherewith the Kings of the North prefac◠their Titles from what some now a days make of it For he maintains that it is the Character of a limited and temper'd Government see how he expresseth himself upon the 8. ch of the 1 Book of Kings Titulus Imperatoris modo regendi vitiato that is to say illimitato as he expresses himself before contradicit nam titulus ejus est N. Dei gratia Romanorum Rex semper Augustus hoc est Reipublicae non privatae accommodus Ita aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit The very Title of the Emperor saith he is a Contradiction to an Arbitrary and Unlimited kind of Government for his Title is N. by the Grace of God King of the Romans always Augustus that is enlarger of the Empire which implies that his Government is accommodate to the Common good and not his Private Interest So likewise we find that the Protestations of other Kings are under Dei Gratia the Grace of God which doth not admit of Arbitrary Government There remain but two difficulties more the first is this Several Members of the Church of England having perswaded the People that a necessity was laid upon them to suffer all from the Hands of their Kings The Kings of England have accordingly usurped those Rights and were actually in possession of them when the same began to oppose themselves to King James this is that they call a right of Prescription They consider the
of Henry I. and partly were gathered out of the Old Laws of King Edward The Historian speaketh of these very Articles here Printed 5. 'T is observable That in these Articles there is no care taken for the Liberties of the Church The reason of which I conceive to be this The Church-men mostly then held with the King. And the Hand of the King was most heavy upon the Laity who framed these Articles without the Clergy 6. These Articles provide nothing concerning the Summons and holding of the Common Council of the Realm The reason whereof probably was this The Barons of that time had introduced a Practice of themselves to appoint the Time and Place of the Meeting of the Common Council of the Nation At the granting of these very Articles King John sent to the Barons Vt diem locum providerent congruum ad haec omnia prosequenda That they the Barons would appoint Time and Place for the concluding that matter In the time of Henry III. in whose Charter the Article de communi concilio habendo was omitted and in whose time the Barons begun again to War we find that the Lords came unto the King and said He must ordain and see for the Welfare of the Realm and then set the King a Day to meet at Oxenford and there to hold a Parliament So the English Chronicle However this grand Affair as also that of the Church were provided for in the Magna Charta of King John. Whereby it further appears That these Articles were but the Rudiments of that Charter after further enlarged upon further deliberation I COME now in the second place to say a few things concerning the Perfect and Compleat Magna Charta of King John here printed in French. 1. It was the Custom of old Times to make three several Copies of Publick Acts and Charters Of the Magna Charta we have one in Latin in Matthew Paris This in French or old Norman Language was kept in the Records of France and thence Published some years past by Luke Dachery in his Spicilegium That in English was sent into all Counties but as yet no Copy in this Language appeareth Thus also the Laws of Canute and the Provisions of Oxford to mention no more made in the time of Hen. III. were Publisht in three Languages 2. The very same Charter Publisht in Latin by Matthew Paris is also extant in the History of Rad. Niger almost word for word and also in two several Manuscripts in the Cottonian Library where also about twenty years past the very Original was to be seen 3. The Magna Charta of King John is not extant in any Record in the Tower or elsewhere as several affirm nor the Magna Charta of H. III. but only by Inspeximus in the time of Edw. I. A thing much to be wondered at Rudburne writeth of the Charters of Hen. I. Sublatae sunt omnes variis fallaciis exceptis tribus All but three were embezel'd 4. The Magna Charta of King John and that of Hen. III. are said to be the very same where as they do exceedingly differ as Mr. Selden in his Epinomis hath partly observed and may further appear to any that will compare them Matthew Paris pag. 323. The Tenor of these Charters is fully set down above where our History treateth of King John So as the Charters of King John and Hen. III. are not found to differ in any thing These words are not the words of Matthew Paris but of Roger VVendover whom Matthew Paris often transcribeth very hastily in whose History the Charter entred as King John's is exactly the same with that Charter of Henry the Third 5. As to that remarkable Article Et ad habendum commune concilium Regni And to the holding the Commune Council of the Realm c. I shall briefly say 1. That it hath been left out of all the Charters after King John's time but is found in several Copys very Authentick and particularly in the French Copy now here printed 2. That this Article doth not as some have written give the Original to our Parliaments for such Parliaments or communia concilia were held before this time King Richard the First after his return from the Holy VVar summon'd a Common Council or Parliament at London of the Clergy and Laity where he demanded Council about his making War upon the King of France Earl Roger answered for the whole Parliament The Earls Barons and Knights will aid you O King with their Swords the Archbishops Bishops Citizens Burgesses and Ecclesiastick Persons will aid you with Money Abbates Priors and such others will aid you with their Prayers So the English Chron. And to omit others an Instance of such a Parliament is found in the Annales of Burton pag. 263. compared with page 265. King John call'd to Northampton all the Earls and Barons of England it followeth Pandulfus spake at the same time to the Earls Barons and Knights O that you c. The Clergy indeed are not here mentioned but were certainly present because the occasion of that Council was to restore Peace to the Church and Kingdom as Matthew Paris or as the Annalist of Waverly wordeth it betwixt the King and the Archbishop 3. I conceive the chief end of adding this Article was to prevent the taking of Aids commonly called Talliage or Escuage by surprize or by the consent only of a few which King John had lately done For the summoning of the Commune concilium here is plainly limited to the Sessing of Aids and Escuage But the Mirror giveth another account of the meeting of Parliaments worthy of Consideration page 225. where the Author refers us to higher times There is yet one Article more in this Charter of King John which deserveth our regards the rather because it being lately alledged in the Pastoral Letter hath much scandalized some with its suprising Novelty The words are Barones cum communia totius terrae gravabunt nos The Barons with the Community of the Land shall aggrieve or distress us c. But why should this sound uncouth to any who have with Reflection perused the Histories of this or the Neighbouring Kingdoms wherein the same Practice is frequently found Andrew King of Hungary allowed the same Liberty to his People as may be seen at large in the Decrees of the Kings of Hungary in the end of Bonfinius Like Examples occur in the French Annales and in the Annales of Waverly in the time of Hen. the Third pag. 217. If any will yet suspect that Matthew Paris in this Point hath not writ fairly or that the Articles produced by the Bishop of Salisbury are not to be relied on and some such dissatisfied People there are then let them if they can be believed desirous of satisfaction repair to the Red Book of Exchequer where fol. 234. they may find the very same VVords and Liberty granted as before Which Record cannot well be suspected of being corrupted because it
paying Relief or making fine The Guardian of an Heirs Land shall take the reasonable Issues Customs and Services without destruction or waste of his Men or Goods And if such Guardian make destruction and waste he shall lose the Wardship and the Guardian shall keep in repair the Houses Parks Ponds Pools Mills and other Appurtenances to the Estate out of the Profits of the Land. And shall take care that the Heirs be married without disparagement and by the Advice of their near Kindred That a Widow shall give nothing for her Dower or Marriage after the death of her Husband but shall be suffered to dwell in her Husband's House Ninety days after his death within which time her Dower shall be assigned her and she shall immediately have her Marriage and her Inheritance The King nor his Bayliff shall not seize any Land for debt if the Debtors Goods be sufficient nor shall the Debtors Sureties be distrain'd upon when the Debtor himself is able to pay the Debt But if the Debtor fail of payment the Sureties if they will may have the Debtors Lands till the Debt be fully satisfied unless the Principal Debtor can shew that he is quit against his Sureties The King shall not allow any Baron to take Aide of his free Tenants but for the Redemption of his Person for the making his Eldest Son a Knight and towards the Marriage of his Eldest Daughter once and hereunto he shall have but a Reasonable Aid That none shall do more Service for a Knights Fee than is due for the same That Common Pleas shall not follow the King's Court but shall be holden in some certain Place And that Recognitions be taken in their proper Counties and after this manner viz. That the King shall send two Justices four times a year who together with four Knights of the same Shire chosen by the Shire shall take Assizes of Novel disseisin Mordancester and Darrein presentment nor shall any be summoned hereunto but the Jurors and the two Parties That a Freeman shall be amerced for a small fault after the manner of the fault and for a great fault according to the Greatness of the fault saving his Contenement A Villain also shall be amerced saving his Wainage and in like manner a Merchant saving his Merchandise by the Oath of good Men of the Vicinage That a Clerk shall be amerced according to his Lay-see in manner aforesaid and not according to his Ecclesiastical Benefice That no Town be amerced for not making Bridges nor Banks but where they have been of old time and of Right ought to be That the measure of Wine of Corn and the breadth of Cloth and the like be rectified and so of Weights That Assizes of Novel Disseizin and Mordancester be abbreviated and so of other Assizes That no Sheriff shall entermeddle with Pleas of the Crown without the Coroners and that Counties and Hundreds shall be at the ancient Farms without any Encrease except the King 's own Demesn Mannors If any Tenant of the King die the Sheriff or other the Kings Bayliff may seize and enroll his Goods and Chattels by the view of lawful Men but yet so as that nothing thereof be taken away till it be fully known whether he owe any clear debt to the King and then the Kings Debt shall be paid and the Residue shall remain to the Executors to perform the Testament of the Dead And if nothing be owing to the King all the Goods shall go to the use of the dead If any Free-man dye Intestate his Goods shall be distributed by his nearest Kindred and Friends and by the view of the Church Widows shall not be distrain'd to marry if they are minded to live unmarried provided they find Sureties that they will not marry without the King's Assent if they hold of the King or without the Consent of their Lords of whom they hold No Constable or other Bayliff shall take any Man's Corn or other Chattels but he shall forthwith pay for the same unless he may have respit by consent of the Seller That no Constable shall distrain any Knight to give Money for the keeping of his Castle if he himself will do it in his own proper Person or by another sufficient man if he may not do it himself for a reasonable Cause And if the King lead him in his Army he shall be discharged of Castleward for the time No Sheriff or Bayliff of the King nor any other person shall take the Horses or Carts of any Free-man to make carriage without his leave The King nor his Bayliffs shall not take any Man's Wood for Castles or other Occasions but by License of him whose the Wood is That the King do not hold the Lands of them that be convicted of Felony longer then a year and a day after which they shall be delivered to the Lord of the Fee. That all Wears from henceforth be utterly put down in Thames and Medway and throughout all England That the Writ called Precipe be not from henceforth granted to any person of any Freehold whereby a Freeman may lose his Court. If any be disseiz'd or delay'd by the King without Judgment of Lands Liberties or other his Right he shall forthwith have restitution and if any Dispute arise upon it it shall be determin'd by the Judgment of the Five and twenty Barons And such as have been disseiz'd by the King's Father or his Brother shall have Right immediately by the Judgment of their Peers in the King's Court. And if the King must have the Term of others that had taken upon them the Cross for the Holy Land the Archbishop and Bishops shall give Judgment therein at a certain day to be prefixt without Appeal That nothing be given for a Writ of Inquisition of Life or Member but that it be freely granted without price and be not denyed If any hold of the King by Fee-farm by Socage or Burgage and of any other by Knight's Service the King shall not have the Custody of the Heir nor of his Lands that are holden of the Fee of another by reason of such Burgage Socage or Fee-farm Nor ought the King to have the Custody of such Burgage Socage or Fee-farm and no Freeman shall lose his Degree of Knighthood by reason of petty Serjeanties as when a Man holds Lands rendring therefore a Knife an Arrow or the like No Bayliff shall put any man to his Law upon his own bare saying without faithful Witnesses That the Body of a Free-man be not taken nor imprisoned nor that he be disseiz'd nor Out-law'd nor Exil'd nor any way destroyed Nor that the King pass upon him or imprison him by force but only by the Judgment of his Peers or by the Law of the Land. That Right be not sold nor delay'd nor denyed That Merchants have liberty to go and come safely to buy and sell without any manner of Evil Tolls by the Old and Lawful Customs That no Escuage or Aid be
laid upon the Kingdom but by the Common-Council of the Kingdom unless it be to redeem the King's Person or to make his eldest Son a Knight or to marry his eldest Daughter once and for these a reasonable Aid shall be given That it be in like manner with respect to Tallages and Aids from the City of London and other Cities that have Priviledges therein And that the City of London may fully enjoy her ancient Liberties and free Customs as well by Water as by Land. That it shall be lawful for any Man to go out of the Kingdom and to return saving his Allegiance to the King unless it be in time of War for a short time for the common profit of the Realm If any borrow Money of a Jew be it more or less and die before the Debt be paid no Interest shall be paid for the same so long as the Heir is under age of whomsoever he hold And if the Debt become due to the King the King shall take no more than what is contain'd in the Charter If any Man die and owe Money to the Jews his Wife shall have her Dower and if he left Children Necessaries shall be provided them according to the quantity of the Freehold and the residue shall go to pay off the Debt saving the Services due to the Lords The like shall be observed in case of other Debts and when the Heir comes of age his Guardian shall restore him his Land as well stockt as he could reasonably afford out of the Profits of the Land coming in by the Plough and the Cart. If any Man hold of any Escheat as of the Honour of Wallingford and Nottingham Bonon and Lancaster or of other Escheats which are in the King's Hand and are Baronies and die his Heir shall pay no other Relief nor perform any other Service then he should have paid and perform'd to the Baron and that the King shall hold such Escheats as the Barons held them That Fines made for Dowers Marriages Inheritances and Amercements wrongfully and contrary to the Law of the Land be freely remitted or ordered by the Judgment of the Five and twenty Barons or of the major part of them together with the Archbishop and such as he shall call to him Provided that if one or more of the Five and twenty have themselves any like complaint that then he or they shall be removed and others put in their rooms by the residue of the Five and twenty That the Hostages and Deeds be restored which were deliver'd to the King for his Security That they that live out of the Forest be not obliged to come before the Justices of the Forest by common Summons unless they be Parties or Pledges And that the Evil Customs of the Forests and Foresters Warrens and Sheriffs and Ponds be redress'd by twelve Knights of each County who shall be chosen by the Good Men of the County That the King remove wholly from their Bayliff-wick the Kindred and whole Dependance of Gerard de Aties that hereafter they have no Bayliffwick to wit Engeland Andr ' Peter ' Gigo de Cances Gigo de Cygon Matthew de Martino and his Brethren and Gelfrid his Nephew and Phillip de Mark. And that the King put away the Foreign Soldiers Stipendaries Slingers and Troopers and their Servants who came with Horses and Arms to the Nusance of the Realm That the King make Justitiars Constables Sheriffs and Bayliffs of Men that know the Law of the Land and will cause it to be well observed That Barons who have founded Abbies for which they have Charters of Kings or ancient Tenure shall have the Custody of them when they are vacant If the King have disseiz'd the Welsh men or esloyn'd them from Lands or Liberties or of other things in England or in Wales let them presently be restored to them without Plea and if they have been disseiz'd or esloin'd from their English Tenements by the King's Father or his Brother without Judgment of their Peers the King shall without delay do them Justice as he does Justice to Englishmen of their English Tenements according to the Law of England and of Welsh Tenements according to the Law of Wales and of Tenements in the Marches according to the Law of the Marches In like manner the Welshman shall do to the King and his Subjects That the King restore Lewelin's Son and all the Welsh Hostages and the Deeds that were delivered to him for security of the Peace That the King do Right to the King of Scotland concerning restoring of Hostages and his Liberties and Right according to the Form of the Agreement with his Barons of England unless it ought to be otherwise by vertue of some Deeds which the King has by the Judgment of the Archbishop and others whom he shall think fit to call to him That all Forests that have been afforested by the King in his own time be disafforested and so of Banks which by the King himself have been put in defence All these Customs and Liberties which the King has granted to the Kingdom to hold and keep for his own part towards his Men all Clerks and Lay-men of the Kingdom shall observe and keep for their parts towards their Men. This is the Form of the security for keeping Peace and the Liberties betwixt the King and the Kingdom The Barons shall chuse Five and twenty Barons of the Realm whom they will themselves upon whom it shall be encumbent that with all their might they observe and keep and cause to be observ'd and kept the Peace and Liberties which the King has granted to them and confirm'd by his Charter to wit That if the King or his Justices or Bayliffs or any of his Ministers offend any Person contrary to any of the said Articles or transgress any Article of this Peace and Security And that such offence be made known to four of the said Five and Twenty Barons those four Barons shall go to the King or to his Justitiar if the King be out of the Realm declaring to him that such an abuse is committed and shall desire him to cause it speedily to be redressed And if the King or if he be out of the Realm his Justitiar do not redress it those four Barons shall within a reasonable time to be limited in the Charter refer the matter to the residue of the Five and twenty Barons And those Five and twenty with the Commonalty of all the Land shall distress the King all the ways they can to wit by seizing his Castles his Lands and Possessions and by what other means they can till it be redrest according to their good likeing saving the Person of our Lord the King and of the Queen and of their Children And when it is redrest they shall be subject to the King as before And whoever will may swear to put these things in Execution viz. To obey the Commands of the said Five and twenty Barons and to distress the King
to none out of any Tenement whereby a Free-man may lose his Court. One Measure of Wine shall be used throughout our Kingdom and one Measure of Ale and one Measure of Corn to wit the London Quart. And there shall be one breadth of dyed Cloth Russets and Haubergets to wit two Ells within the Lists And concerning Weights it shall be in like manner as of Measures Nothing shall be given or taken henceforth for a Writ of Enquisition of Life or Member but it shall be granted freely and shall not be denyed If any hold of us by Fee-farm or by Socage and hold likewise Land of others by Knight-Service we will not have the Custody of the Heir nor of the Land which is of the Fee of another by reason of such Fee-farm Socage or Burgage unless such Fee-farm owe Knight-Service We will not have the Wardship of the Heir nor of the Land of any Person which he holds of another by Knight-Service by reason of any Petit Serjeanty by which he holds of us as by the Service of giving us Arrows Knives or such like No Bayliff for the time to come shall put any Man to his Law upon his bare word without good Witnesses produced No free man shall be taken nor imprisoned nor disseised nor outlawed nor exil'd nor destroy'd in any manner nor we will not pass upon him nor condemn him but by the Lawful Judgment of his Peers or by the Law of the Land. We will sell to none we will deny nor delay to none Right and Justice All Merchants may with safety and security go out of England and come into England and stay and pass through England by Land and Water to buy and sell without any Evil Tolls paying the Ancient and Rightful Duties except in time of War and then they that are of the Country with whom we are at War and are found here at the begining of the War shall be attach't but without injury to their Bodies or Goods till it be known to us or to our Chief-Justice how our Merchants are entreated which are found in our Enemies Country and if ours be safe there they shall be safe in our Land. It shall be Lawful for all men in time to come to go out of our Kingdom and to return safely and securely by Land and by Water saving their Faith due to us except it be in time of War for some short time for the profit of the Realm But out of this Article are excepted Persons in Prison Persons out-law'd according to the Law of the Land and Persons of the Country with whom we are at War concerning Merchants what is abovesaid shall hold as to them If any hold of any Escheat as of the Honour of Wallingford Nottingham Boloin Lancaster or of other Escheats which are in our hand and are Baronies and dye his Heirs shall owe us no other relief nor do us any other Service then was due to the Baron of such Barony when it was in his hand and we will hold the same in like manner as the Baron held it Men that dwell out of the Forest shall not appear before our Justices of the Forest by common Summons unless they be in suit themselves or Bail for others who are attach't for the Forest We will not make Sheriffs Justices nor Bayliffs but of such as know the Law of the Land and will keep it All that have founded Abbies whereof they have Charters from Kings of England or ancient Tenure shall have the custody thereof whilst they are vacant as they ought to have All the Forests that have been Afforested in our time shall instantly be Disafforested in like manner be it of Rivers that in our time and by us have been put in defence All evil Customs of Forests and Warens and of Foresters and Warenners of Sheriffs and their Ministers of Rivers and of Guarding them shall forthwith be enquired of in every County by twelve Knights sworn of the same County who must be chosen by good Men of the same County And within forty days after they have made such Inquisition the said evil Customs shall be utterly abolished by those same Knights so as never to be revived provided they be first made known to us or to our Chief Justice if we be out of the Realm We will forthwith restore all the Hostages and all the Deeds which have been delivered to us by the English for surety of the Peace or of faithful Service We will wholly put out of Bayliffwicks the Kindred of Gerard de Aties so that from henceforth they shall not have a Bayliffwick in England and Engeland de Cygoigni Peron Guyon Andrew de Chanceas Gyon de Cygoigni Geffry de Martigni and his Brothers Philip Mark and his Brothers Geffray his Nephew and all their Train And presently after the Peace shall be reform'd we will put out of the Realm all Knights Foreigners Slingers Serjeants and Soldiers who came with Horse or Arms to the nusance of the Realm If any be disseiz'd or esloyn'd by us without Lawful Judgement of his Peers of Lands Chattels Franchises or of any Right we will forthwith restore the same and if any difference arise upon it it shall be determined by the Judgement of the Five and twenty Barons of whom mention is made hereafter in the security for the Peace As to all things whereof any have been disseiz'd or esloyn'd without Lawful Judgement of their Peers by King Henry our Father or by King Richard our Brother which we have in our hands or which any other has to whom we are bound to warrant the same we will have respit to the common Term of them that are crost for the Holy Land except such things for which Suits were commenced or Enquest taken by our Order before we took upon us the Cross And if we return from the Pilgrimage or perhaps forbear going we will do full Right therein The same Respit we will have and the same Right we will do in manner aforesaid as to the Disafforesting of Forests or letting them remain Forests which the Kings Henry our Father or Richard our Brother have Afforested and and as to Custodies of Lands which are of the Fee of other Persons which we have held till now by reason of other Men's Fees who held of us by Knight-Service and of Abbies that are founded in other Men's Fees in which the Lords of the Fees claim a Right And when we shall be returned from our Pilgrimage or if we forbear going we will immediately do full Right to all that shall complain None shall be taken nor imprisoned upon the Appeal of a Woman for the death of any other than her Husband All the Fines and all the Amercements that are imposed for our use wrongfully and contrary to the Law of the Land shall be Pardoned or else they shall be determined by the Judgment of the Five and twenty Barons of whom hereafter or by the Judgement of the greater number of them that