his Heir and gave him and his Heirs the Realm of England Bromton Col. 1â—38 Comites etiam Barones mei Ligium Homagium Duci fecerunt salva mea fidelitate quamdiu vixero regnum tenuero simili lege quod si ego a praedictis recederem omnino a servitio meo cessarent quousque errata corrigerem Their Duty to him ceas'd 'till he mended his Fault and returned again to keep his Covenant Quousque Errata corrigat ad praedictam pactionem observandam redeat Col. 1â—39 Paulo infra There is no need of these words at length at the end of every Charter or Petition of Right in case it be broken which we find in the close of Hen. III's Charter In Archiv London Anno Regni 42. Liceat omnibus de Regno nostro contra nos insurgere ad gravamen nostrum opem operam dare ac si nobis in nullo tenerentur All the men in our Realm may lawfully rise up against us and annoy us with might and main as if they were under no Obligation to us Because in the Polish Coronation Oath which likewise is in words at length we have a plain Hint why they had better be omitted an supprest Quod si sacramentum meum violavero quod absit Incolae hujus Regni nullam nobis obedientiam praestare tenebuntur And in case I break my Oath which God forbid the Inhabitants of this Realm shall not be bound to yield me any Obedience Now this God forbid and the harsh Supposition of breaking an Oath at the very making of it is better omitted when it is for every bodies ease rather to suppose that it will be faithfully kept especially seeing that in case it be unhappily broken the very natural Force and Virtue of a Contract does of it self supply that Omission Neither is it practised in Articles of Agreement and Covenants under Hand and Seal betwixt Man and Man to make a special provision that upon breach of Covenants they shall sue one another either at Common Law or in Chancery because this implies that one of them shall prove a Knave and dishonest but when that comes to pass I am sure Westminster Hall cannot hold them In like manner the Barons after they had born with K. Iohn's Breach of Covenant very much too long swore at last at the High Altar at St. Edmondsbury M. Paris p. 253. That if he refused them their Liberties they would make War upon him so long as to withdraw themselves from their Fidelity to him till such time as he confirm'd their Laws and Liberties by his Charter And afterwards at the Demand of them they say that which is a very good Reason for their Resolve That he had promised them those Antient Laws and Liberties and was already bound to the observation of them by his own proper Oath So that the Pope was quite out when he says the Barons set at nought and broke their Oath of Fidelity to K. Iohn for they only helped him to keep his The next thing objected against the Barons is this That they who were Vassals presumed to raise Arms against their Lord and Knights against their King which they ought not to have done altho he had unjustly oppressed them And that they made themselves both Iudges and Executors in their own Cause All which is very easily answered For 1. It was always lawful for Vassals to make War upon their Lords if they had just Cause So our Kings did perpetually upon the Kings of France to whom they were Vassals all the while they held their Territories in that Kingdom And by the Law of England an inferiour Vassal might fight his Lord in a weighty Cause even in Duell The Pope seems here willing to depress the Barons with low Titles that he may the better set off the Presumption of their Proceedings but before I have ended I shall shew what Vassals the Barons were I should be loath to say that the Kings of England were not all along as good Men as their Lords of France or that the Barons of England were not good enough to assert their Rights against any body but this I do say that it was always lawful for Vassals to right themselves even while they were Vassals and without throwing up their Homage and Fealty For that was never done till they declared themselves irreconcileable Enemies and were upon terms of Defiance Thus the Kings of England always made War in defence of their Rights without throwing up their Homage and Fealty till that last bitter enraged War of Hen. 2. wherein he had that ill success as broke his Heart and forced him to a dishonourable Peace the Conclusion of which he outliv'd but three days Amongst other things he did homage to the King of France because in the beginning of this War he had rendred up his Homage to him M. Paris takes notice of it as an extraordinary thing and I do not remember it done before Quia in principio hujus guerrae homagium reddiderat Regi Franciae p. 151. The same was practised by H. 3. toward that Great Man Richard the Marshal he sent him a Defiance by the Bishop of St. David's into Wales Upon which the Marshal tells Friar Agnellus the King's Counsellor in that long Conference before mentioned Vnde homo suus non fui sed ab ipsius Homagio per ipsum absolutus This was reciprocal from the Lord to the Vassal or from the Vassal to the Lord as he found cause And therefore King Iohn's Vassals who are here represented as if they were food for Tyranny and bound by their places to be unjustly oppressed for so the Pope allows the case I say these Vassals if they had been so minded instead of being contented with a Charter at Running-Mead might soon have been quite off of K. Iohn by resigning their Homage to him This K. Edw. the Second's Vassals did in manner and form by the Mouth of William Trussel a Judg in these words Knyghton col 2549. Ego Willielmus Trussel vice omnium de terrâ Angliae totius Parliamenti procurator tibi Edwarde reddo Homagium prius tibi factum extunc diffido te privo omni potestate regiâ dignitate nequaquam tibi de caetero tanquam Regi pariturus I William Trussel in the name of all men of the Land of England and of the whole Parliament Procurator resign to thee Edward the Homage formerly made to thee and henceforward I defy thee and prive thee of all Royal Power and Dignity and shall never hereafter be tendant on thee as King This was the standing Law long before the time of K. Iohn's Barons for the Parliament in the 10 th of Rich. 2. send the King a solemn Message that * Knyghton col 2683. Habent enim ex Antiquo statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex ex maligno consilio quocunque
Winchester to restore the good Laws of K. Edward and cause them to be observed by all the Realm And now says he there is likewise found a certain Charter of H. 1 King of England by which if you please you may be able to restore your long lost Liberties to their former state and condition and producing the Charter he caused it to be read all over in their hearing Which the Lords having heard and understood were overjoy'd and swore in the presence of the Archbishop That when they saw it convenient for these Liberties if need were they would spend their Lives The Archbishop for his part promised them his most faithful aid and assistance to the utmost of his power and after this Association was thus entred into the Parliament broke up There had past but 113 years since the Grant of H. 1. Charter and though there were then made as many Charters as there were Shires directed to the Sheriff of every County to proclaim them for this is directed to Hugh de Bocland Sheriff of Herefordshire and by the King 's express Order were to be laid up in the Abbys of the several Counties for a Monument yet because the thing was beyond the memory of Man and that Age not very conversant with Book-learning or Records it seems not to be known to them and the Archbishop says Inventa est quoque nunc Charta quaedam H. 1. But when the Lords had once seen it they were so fond of it that they got it away from the Archbishop and the next year about Michaelmas when the King was returning out of France the Earls and Barons met at St. Edmondsbury it might be thought for Devotion but it was to consult about their Liberties and there the Charter of H. 1. which contained their Laws and Liberties was again produced and treated of amongst them After which they all went to the High Altar and there swore in order beginning at the Greatest That if the King should refuse to confirm by his Charter the said Laws and Liberties being the Rights of the Kingdom they would make War upon him till he did And likewise at last by common consent they came to this Resolution That they would all go together to the King after Christmas and desire him to confirm the said Liberties And in the mean time that they would make such provision of Horses and Arms that in case the King should start from his late Oath wherein he promised it which they had too much reason to believe because of his doubleness they might then compel him to performance by seizing his Castles Accordingly after Christmas they came to the King in a gay military Habit and desired the Confirmation of their antient Liberties as they were contained in writing in the Charter H. 1. and the Laws of K. Edward They affirmed likewise that by his Oath at Winchester he had promised those Laws and Liberties and that he was already bound to keep them by his own Oath The King seeing the Constancy and Resolution of the Barons in their Demand did not think fit to deny them but desired respite and time to consider of it being a weighty business till after Easter and after several Proposals on both sides the King very unwillingly set a day and the Archbishop Bishop of Ely and Lord Marshal were his Sureties that then they should all of them have satisfaction given them in reason Upon this the Lords went home But the King in the mean time by way of precaution caused all the whole Realm to swear fealty to him alone against all Men and to renew their Homages And as a farther Security and Protection more than out of Devotion at Candlemas following he took upon him the Cross. In Easter-week the forementioned Lords met at Stanford who now had drawn together in favour of them almost all the Nobility and principal Gentry of England So that they amounted to a numerous Army and the sooner because K. Iohn had rendered himself universally hated In this Retinue were 2000 Knights besides all others of lower rank Horse and Foot diversly armed The King was then at Oxford expecting the coming of the Parliament On the Monday following these associated Barons came to Brackley which when the King understood he sent to them the Arch-Bishop the Lord Marshal E. of Pembroke and several other sage Persons to know what were the Laws and Liberties they required which they presently delivered in a Schedule to those that came from the King affirming that if he would not forthwith confirm them under his Seal they would compel him by seizing his Castles Lands and Possessions till he gave them competent satisfaction in the Premises Then the Arch-Bishop with the rest of his Company carrying this Schedule to the King rehearsed all the Chapters or Heads of it before him memoritè But when the King understood the Purport of it he laugh'd and said with the utmost Indignation and Scorn And why do not the Barons together with these unjust Demands demand my Kingdom The things they ask said he are idle and superstitious and not supported by any tittle or pretence of Reason And at length in a great rage he affirm'd with an Oath That he would never grant them such Liberties whereby he himself should be made a Servant When therefore the Arch-Bishop and Earl of Pembroke could in no wise gain the King's Consent to these Liberties by his command they returned to the Barons and there reported just what the King had said in order Whereupon the Barons presently chose them a General and flew to their Arms and marcht directly to Northampton to seize that Castle But having spent 15 days in that fruitless Attempt having no Petards nor other warlike Instruments to carry on a Siege somewhat abashed with this Disappointment they marcht to Bedford where they were kindly received and by Messengers sent to them from the principal Citizens were invited to London When they were come thither they sent Letters to all the Earls Barons and Knights that as yet seemed to adhere to the King tho it were but feignedly That as they tender'd their Estates they should leave a perjur'd King and come and join them and effectually engage with them for the Liberties and Peace of the Realm otherwise they threatned to treat them as publick Enemies Upon which most of the Lords who had not as yet sworn to the said Liberties wholly leaving the King came to London and there associated with the Barons King Iohn seeing himself thus generally forsaken so that he had hardly seven Knights remaining with him and fearing lest the Barons should insult his Camp which they might easily have done without opposition he betook himself to fraud and dissembling pretending Peace when he had immortal War in his Heart resolving hereafter to oppress the Barons singly whom he could not all at once He therefore sends to them the E. of Pembroke and other Persons of Credit with this Message That for the Benefit
of Peace and for the Advancement and Honour of his Realm he would willingly grant them the Laws and Liberties which they desired leaving to the Barons to appoint a convenient Time and Place for the Performance They very gladly set the King a day to meet the 15 th of Iune at Running-mead betwixt Stanes and Windsor an antient place for the meeting of Parliaments The King and the Lords accordingly met and their Parties sitting asunder and keeping to their own side treated of the Peace and the Liberties a good while There were present as it were of the King's Party the Arch-bishop and about 30 principal Persons more whom Matthew Paris names but says he they that were on the Barons side were past reckoning seeing the whole Nobility of England gathered together in a Body seem'd not to fall under number At length after they had treated in several sorts the King seeing the Barons were too powerful for him made no difficulty to grant them the Laws and Liberties under-written and to confirm them in his Charter in this manner P. 255. Here follows Magna Charta in Mat. Paris And because there was not room for the Liberties and free Customs of the Forest in the same Parchment they were contained in another Charter de Foresta And then follows the security for them both After this the King sent his Letters Patents to all the Sheriffs in England to cause all persons of what condition soever to swear That they would observe these foresaid Laws and Liberties and to the utmost of their power distress the King by seizing his Castles and otherwise streighten him to the execution and performance of all things contained in the Charter At last the Parliament being ended the Barons returned to London with their Charters Thus have I given you a short view of the noble Conduct of the Barons in their manner of obtaining the Confirmation of their Charter from K. Iohn The restitution of Magna Charta you may call it for the Birth of it you see it was not What I have recited is undoubted History and Record and clear matter of Fact And I have confined my self only to these three last years in which the Barons were in pursuit of this business and took the quickest Steps towards it and above all were put into a right Method by the advice of Stephen Langton the Archbishop to claim their Estate with the Writings of it in their hand For above a dozen years before in the 3 d of this King's Reign upon a Summons of his to the Earls and Barons to attend him with Horse and Arms into Normandy they held a Conference together at Leicester and by general consent they send him word Dan. p. 129. That unless he would render them their Rights and Liberties they would not attend him out of the Kingdom But that impotent demand of their Liberties by the by did them no good but exposed them to still more and more intolerable Oppressions They should have gone to him according to their Summons they should not have sent Not to mention that his Faith was plighted by the Arch-bishop Hubert William Lord Marshal E. of Pembroke Geoffrey Fitz-Peter Chief Justiciar of England whom he sent as his Commissioners to proclaim and keep the Peace immediatly after the death of his Brother Richard That the Earl John would restore all men their Rights Paris p. 196. This was done at an Assembly of the Peers at Northampton before his coming out of Normandy to be crowned Sub tali igitur conventione Comites Barones Comiti Iohanni Fidelitatem contra omnes homines juraverunt Upon these Terms and no otherwise the Earls and Barons swore Fealty to him Which made K. Iohn so much rejoice at Geoffrey Fitz-Peter's Death and swear That then and not before he was King and Lord of England P. 243. Pactis contraire For from thenceforward says Paris he was more at liberty to contravene his Oaths and Covenants which with this Geoffrey he had made sore against his will and loose himself from the Bonds of the Peace he had enter'd into Now these Pacts and Covenants are clearly that before his Coronation which I have just now recited and at this Parliament at St. Albans Anno 1213. not a year before this great Man's Death Where the King's Peace was publickly declared to all his People and it was strictly commanded in the King's behalf That the Laws of his Great Grandfather H. 1. should be kept by the whole Realm and all unjust Laws abolished In both these Affairs he transacted for the King having in this last together with the Bp. of Winchester the Government of the Kingdom committed to him the King being then absent in his way to France Well but now the Barons at last have their long lost Rights restored and confirmed to the universal Joy of the Nation which is soon overcast For K. Iohn immediatly resolves to undo all that he had done being prompted thereto not only by his own arbitrary tyrannical Disposition but also by his foreign Mercenaries whom he had long made his Favourites and Confidents while he look'd upon his own natural Subjects as Abjects The Flanders Ruyters or Cavaliers who now by Magna Charta were expresly and by name order'd to be expelled the Kingdom as a Nuysance to the Realm these being grown his saucy Familiars so followed him with Derision and Reproaches for unkinging himself by these Concessions and making himself a Cypher and our Soveraign Lord of no Dominions a Slave to his Subjects and the like that they made him stark Bedlam And being given over to Rage and Revenge he privatly retires to the Isle of Wight where as Paris says he provides himself of St. Peter's two Swords He sends to the Pope whom he bribes with a large Sum of Money besides his former Surrender of the Kingdom to cancel and annul M. Charta and to confound it with his Apostolical Authority and withal to excommunicate the Barons for it And at the same time he sends the Bp. of Worcester Ld. Chancellor of England the Bp. of Norwich and several other Persons to all neighbouring Countries to gather together all the Foreign Forces they could by promises of Lands and Possessions and if need were to make them Grants under the Great Seal and to bring them all to Dover by Michaelmas That 3 Months he spent Incognito in and about the Isle of Wight coasting and skulking about and sometimes exercising Piracy out at Sea so that it was not then known where he was nor what was become of him but thus he whiled away the time contemplating his Treason and waiting for the incomprehensible Enemy-Friends he had sent for Hostiles amicos amicabiles hostes p. 265. I know not whether this Desertion and not providing for the Government in his Absence and sending the Great Seal of England upon such an Errand out of the Realm may not with some men amount to a modern Abdication But
and maintaining the Rights of the Kingdom contained in that Charter and were in affirmance of it Whereby they that have been told the Barons Wars were a Rebellion may know better and every honest Man will find their Cause to be so just that if he had lived in those days he must have joined in it for so we did lately in the Fellow to it at our present Revolution It is well indeed for us that our Ancestors lived before us and with the Expence of their Blood recovered the English Rights for us and saved them out of the Fire otherwise we had been sealed up in Bondage and should have had neither any English Rights to defend nor their noble Example to justify such a Defence but should have been in as profound an Ignorance that ever there were any such Rights as the Barons themselves were of H. I's Charter For in all the steps the Barons took we followed them Did they take Arms for the security of their Liberties so did we Did they withdraw their Allegiance from an arbitrary and perjur'd King so did we Did they set another over his head and proceed to the Creation of a new King so did we And if we had miscarried in our Affair we had not been called Rebels but treated as such and the Bishop of London and all our Worthies had made but a Blue business of it without putting on the Prince of Orange's Livery And therefore it is great ingratitude in those that receive any Benefit or Protection by this happy Revolution to blemish the Cause of the Barons for it is the same they live by and as for those that had a hand in it to call the Barons Cause a Rebellion is utterly unaccountable and like Men that are not of their own side Leaving therefore the proper Work of reproaching and reviling both these as damnable Rebellions to the People at S. Germains and the harder work of proving them so I shall undertake the delightful Task of doing service to this present Rightful Government and at the same time of doing right to the Memory of our antient Deliverers to whom we owe all that distinguishes the Kingdom of England from that of Ceylon It had been wholly needless to have written one word upon this Subject if this Affair had ever been set in a true light as it lies in Antiquity or if our modern Historians had not given a false turn to so much of the matter of fact as they have related and ruin'd the Text by the Comment Mr. Daniel has done this very remarkably for after he has given us enough of this History to justify the Barons Proceedings and they had gained the Establishment of M. Charta Dan. p. 144. he begins his Remarks upon it in these words And in this manner though it were to be wished it had not been in this manner were recovered the Rights of the Kingdom Now tho if it had not been done in this manner it had not been done at all and tho he allows it to be the Recovery of their own the Rights of the Kingdom which one would think a very just and necessary work yet this shrug of a Wish leaves an Impression upon his Reader as if the way wherein they recovered them were unwarrantable On the other side King Iohn would not allow them to be the Rights of the Kingdom at no hand M. P. p. 254. but vain superstitious unreasoble Demands the Barons might as well ask him his Kingdom and he swore he would never grant them such Liberties as should make himself to be a Slave So that I have two things to shew 1 st That they were verily and indeed the Kingdom 's Rights and 2 ly That they were very fairly recovered and that the Barons were in the right both as to Matter and Substance and no way reprovable for Manner and Form The Charter of H. 1. was what the Barons went by and so must we where towards the latter end we find these words P. 56. Lagam Regis Edwardi vobis reddo cum illis emendationibus quibus Pater meus eam emendavit consilio Baronum suorum I Restore you the Law of King Edward with those Amendments my Father made to it by the advice of his Parliament Here was no new Grant he barely made Restitution and gave them back their own And so we find it in his Father's time Ingulphus p. 88. Ces sount les Leis les Custumes que le Reis Will. grentat a tut le puple de Engleterre apres le Conquest de la terre Ice les mesmes que le Reis Edward sun cosin tint devant lui He grants them the self-same Laws and Customs which his Cousin Edward held before him Or as Ordericus Vitalis a Norman has it p. 507. Anglis concessit sub Legibus perseverare patriis He granted to the English that they might persevere in the Laws of their Fathers So that in effect he granted English-men to be English-men to enjoy the Laws they were born to and in which they were bred their Fathers Laws and their Mother Tongue A Country-man would call this a Pig of their own Sow And yet this Grant by way of Charter and under Seal whereby he gave them their own and quitted all claim to it himself was lookt upon as the utmost Confirmation and Corroboration and the last degree of Settlement amongst the Normans And therefore tho K. William was too strong for his own Charter and shamefully broke it yet they covenanted with his Son Hen. 1. before they chose him King that as soon as he was crowned he should give them another which accordingly he did In the same manner they dealt with K. Stephen And this made them covenant after the same manner with K. Iohn before they admitted him to the Crown and so much insisted afterwards upon having his Charter and having their Liberties secured and fortified with his Seal Sigillo suo munitas as they termed it For in those days what was not under Seal was not thought good in Law and not long before in H. 2's time the Bishop of Lincoln in a Trial before the King was for setting aside all the Saxon Kings Charters granted to the Abby of St. Albans for want of a Seal till the King seeing a Charter of H. 1. which confirm'd them all Why here says he In vitis Abb. p. 79. is my Grandfather's Seal this Seal is the Seal of all the Original Charters as much as if it were affixed to every one of them Which wise decision of a young King was thought like Solomon's Judgment in finding out the true Mother For the St. Albans-men had no way of answering their Adversaries Objection That all Privileges that wanted Seals are void because they could not absolutely say there were no Seals in the Saxon times there being a Charter of Edward the Confessor granted to Westminster Abby with a Seal to it But they might easily have bethought themselves that
vel ineptâ contumacia aut contemptu seu proterva voluntate singulari se alienaverit a populo suo nec voluerit per Jura Regni Statuta laudabiles Ordinationes gubernari regulari ex tunc licitum est eis ipsum Regem de regali solio abrogare c. by an antient Statute they had power to depose a King that would not behave himself as he ought nor be ruled by the Laws of the Realm And they instance in this deposing of Edw. 2. but withal as a late and modern thing in respect of the Antiquity of that Statute Such an irrefragable Testimony and Declaration of a Parliament so long since concerning what was ordained in the eldest Ages long before plainly shews the English Constitution and is a full Confutation of the late K. Iames's Memorial at Reswick And this Power seems to be well known to K. Iohn's Barons who when there is occasion talk familiarly of Creating a new King and afterwards were forc'd to do it tho now they only sought their Charter and did not attempt to take from him his Kingdom which the Pope indeed says but it was not true So far have I cleared them from Presumption as Vassals now as Knights It is true their Tenure was to assist the King against the Enemies of the Realm but how if he turn'd so himself Unjust Oppression which is the Pope's own Supposition is no friendly part Must they then aid him against the Realm and be the Instruments of his unjust Oppression upon themselves Their Duty and Service was to the Realm in chief to him it was subaltern And therefore knowing their Duty better than the Pope did they all left K. Iohn all but seven before he could consent to the Parliament at Running-Mead For it is plain the Pope would have had them Passive-Obedience Knights and a Contradiction to their very Order whereby for certain they had forfeited their Spurs Yea but the Barons were Iudges and Executors in their own Cause And who can help it if they were made so in the first Institution and from the very Foundation of this Government As soon as the Saxons had chosen from among themselves one King this the Mirror says expresly was the Jurisdiction of the King's Companions For tho the King had no Peer yet if he wronged any of his People it was not fit that he that was Party should be likewise Judg nor for the same reason any of his Commissioners and therefore these Companions were by their place to right the Subject in Parliament Mirror p. 9. Et tout soit que le Roye ne devoit aver nul Peere en la terre pur ceo nequidant que le Roy de son tort s il pecha vers ascun d son people ne nul de ses Commissaires poit eÌ„ Iudge Partee couvient per droit que le Roy ust Compaignions pur oyer terminer aux Parliaments trestouts les breves plaints de torts de le Roy de la Roigne de lour Infans de eux especialment de que torts len ne poit aver autrement common droit The same is more largely set down by the Lord Chief Justice Bracton and therefore I will transcribe it in his own words Lib. 2. cap. 16. f. 34. Rex autem habet superiorem Deum s. Item Legem per quam factus est Rex Item Curiam suam videlicet Comites Barones quia Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum ideo si Rex fuerit sine fraeno i. sine Lege debent ei fraenum ponere nisi ipsimet fuerint cum Rege sine fraeno tunc clamabunt subditi dicent Domine Iesu Christe in chamo fraeno maxillas eorum constringe ad quos Dominus vocabo sâ—per eos gentem robustam longinquam ignotam cujus linguam ignorabunt quae destruet eos evellet radices eorum de terrâ a talibus judicabuntur quia subditos noluerunt justè judicare in fine ligatis manibus pedibus eorum mittet eos in caminum ignis tenebras exteriores ubi erit fletus stridor dentium He says the King has these above him God also the Law which makes him a King also his Parliament namely the Earls and Barons who ought to bridle a lawless King c. In this large Passage you plainly see that what the Barons did was so far from being the absurd and presumptuous Usurpation of making themselves Judges and Executors in their own Cause that it was their bounden Duty It was not only lawful for them to restrain and bridle a lawless King but it was incumbent upon them under the greatest Penalties and neither lawful nor safe for them to let it alone So that here the Barons were hard besett the Pope delivers them up to Satan for what they did and they had exposed themselves to the Vengeance of God and going to Hell if they had not done it But they chose to do their Duty to God and their distressed Country and to venture the causeless Curse from Rome I might multiply Quotations out of Fleta and others to the same purpose but what I have set down is sufficient and therefore I shall rather take this occasion to admire the Wisdom of the English Constitution which seems to be built for perpetuity For how can a Government fail which has such lasting Principles within it and a several respective Remedy lodged in the very bowels of it The King has a known Power of causing all his Subjects to keep the Law that is an effectual Remedy against Lawlesness and Anarchy and the Parliament has a Power if need be to hold the King to the observation of the Laws and that is a preservative against Tyranny This is the Palladium of our Government which cannot be stoln as theirs was from Troy for the Keepers of it are too many to be kill'd because every English man has an interest in it for which reason neither can it be bought and sold so as to make a Title and a man of a moderate Understanding may easily undertake that it shall never be preacht away from us And hereby England is rendred the noblest Commonwealth and Kingdom in the World I name Common-wealth first because K. Iames the first in one of his Speeches to the Parliament says he is the Great Servant of the Common-wealth From hence I infer that this was a Commonwealth before he was the Great Servant of it Great and little is not the dispute for it is for the Honour and Interest of so glorious a State to have a Prince as Great as they can make him As to compare great things with small it is for the honour of the City to have a magnificent Lord Mayor And K. Iames told us no news in naming his Office for this is the Country as Fortescue's whole Book shews us where the King is appointed for the
Realm and not the Realm for the King And I can shew a hundred places in Antiquity where the Body of this Nation is called a Republick as for instance where Bracton says Laws are made communi reipublicae sponsione tho I confess in relation to a King it oftner goes by the prouder name of Realm But this Constitution of State and Regal Government which is the Constitution of England cannot be so well understood by any other one Book as by my Lord Chancellour Fortescue's which was a Book writ for the Nonce and to instruct the Prince into what sort of Government he was like to succeed As directly opposite to this Government he has painted the French Government Fortescue p. 79. made up of Men at Arms and Edicts The Prince in the conclusion of it P. 130. does not doubt but this Discourse of the Chancellor's will be profitable to the Kings of England which hereafter shall be and I am satisfied that no wise King after he has read that little Book would change Governments with the Grand Seignior And as the Prince has recommended the usefulness of this Discourse to all future Kings so I heartily recommend it to the careful perusal of all Englishmen who having seen a Succession of bad Reigns think there is somewhat in the Mill and that the English Form of Government is amiss whereas the Fault lies only in the Male administration or if there should happen to be any flaw or defect in any of the occasional Laws it may easily and ought to be rectified every Parliament that sits down as the Book says P. 129. I never heard of any that disliked the English Government but some of the Princes Progenitours Kings of England who thinking themselves shackled and manacled by the English Laws endeavoured to throw off this State Yoke P. 78. Moliti sunt hoc jugum politicum abjicere that they might rule or rather rage over their Subjects in Regal wise only not considering that to govern the People by the Laws of the State is not a Yoke but Liberty and the greatest Security not only to the Subject but to the King himself and in great measure ridds him of Care But the same Author p. 88. tells us the Success of his Attempt Qui sic politicum regimen abjicere satagerunt these Progenitours of the Prince who thus endeavoured with might and main to be rid of this State Government not only could not compass that larger Power which they grasp'd at but risqu'd both themselves and their Kingdom As we our selves have likewise seen in the late K. Iames. Or on the other side perhaps it is disliked by some who have seen no other effects of it but what have proceeded from the Scotch King-Craft which is worse than no Government at all and have imputed those Corruptions and Disorders to the English Frame of Government or at least think that it has no Remedy provided against them and so have fallen into the waking Dreams of Oceana's and I know not what for want of understanding the True of the English Government But I can assure these Persons that upon further search they will find it quite otherwise and that the English Frame of Government cannot be mended and the old Land-marks better plac'd than we could have laid them with our own hands and withal that all new Projects come a Thousand Years too late For England has been so long conformed to its own Laws and its Laws to it that we are all of a piece and both in point of Gratitude to our Ancestors who have spent their Lives to transmit them to us and out of love to Posterity to convey them a thing more valuable than their Lives we cannot think much at any time to venture our own I am clearly of Sir Rob. Phillips's mind in the Parliament 4 to Caroli Nothing so endangers us with his Majesty as that Opinion that we are Antimonarchically affected whereas such is and ever hath been our Loyalty if we were to chuse a Government we should Chuse this Monarchy of England above all Governments in the World Which we lately have Actually done when no body could Claim it for they could only Claim under a Forfeited Title and at a time when too much occasion had been given to the whole Nation to be out of conceit with Kings As for the remaining part of the Pope's Trash it is not worth answering That the Barons reduced K. John to those streights that what they dared to ask he dared not to deny For they asked him nothing but their Own which he ought not to have denied them nor have put them to the trouble of coming so hardly by it Nor was the Granting of Magna Charta a foul and dishonourable Composition but Just and Honourable and therefore Honourable because it was Just. As for the Compulsion there was in it a man that must be made to be honest cannot complain of that himself nor any body for him In this whole Affair the Pope's Apostolical Authority went farther than his Arguments It is the lasting Honour of Magna Charta and the Barons that they were run down by a Pope and a General Council which were the first that established Transubstantiation Lateran sub Innocent 3. and the deposing of Kings for Heresy either their own or even that of their Subjects if they suffered them in their Dominions in which case the Pope was to absolve their Subjects from their Allegiance to set up a Crusado against them and to dispose of their Kingdoms to Catholick Free-booters This was a powerful transforming Metamorphosing Council but they that could turn a bit of Bread into a God might more easily turn better Christians than themselves into Saracens I take the Decrees of that General Council to be a standing Declaration of War yea a Holy War against all Protestant Princes and States to the end of the World whereby all Papists are the publick and declared Enemies of that part of Mankind whom they have been pleased to call Hereticks for it is the established Doctrine of their Church Having disprov'd Laud's first Charge against M. Charta That it had an obscure Birth as if it had been base born illegitimate or upstart I proceed to the second That it was foster'd by an Ill Nurse In answer to which it would be sufficient to say that it was fostered by a Succession of Kings and above thirty Parliaments and if that be an ill Nurse let all the World find a better But I shall be somewhat more particular and shew what great care was taken of it in After Ages In Edw. 1. time after it had been continued three times ordered to be twice a year read in Churches was sealed with the Bishops and Barons Seals as well as the King 's own and sworn to by the Barons and others * Knyghton Col. 2523. Et ad ejus observationem consilium sinum auxilium fidele praestabunt in perpetuum
THE SECOND PART OF THE CONFUTATION OF THE Ballancing Letter CONTAINING AN Occasional Discourse In Vindication of Magna Charta LONDON Printed for A. Baldwin in Warwick-Lane M. DCC The PREFACE I Have seen several Objections published against the Former Part wherein if that Author could have shewn me any one Fault I would have thank'd him and mended it but I do not write Books for such as after a long search to find a Knot in a Bullrush make one That I may not give him nor any body else any Offence by my false Inferences cloudy Reasonings Mistakes or Misapplications whatsoever I shall barely set down two or three Quotations which are able to speak dispute argue and answer for Themselves The first is to shew that for a King of England to have standing Forces or Men at Arms is contrary to the English Constitution or else Mr. Bacon who has given us an excellent Book of it collected out of Mr. Selden's Manuscript Notes has strangely mistaken it For his own words upon Henry the Seventh's instituting a Guard of 50 Archers are these Bacon of the Laws and Government of England Part 2. p. 114. That Guard of his Person he only pretended as a Ceremony of State brought from the French Court and yet it is strange that it went so well down with a free People For that Prince that will keep Guards about his Person in the midst of his own People may as well double them into the pitch of an Army whensoever he pleases to be fearful and so turn the Royal Power of Law into Force of Arms. But it was the French Fashion and the King 's good hope to have all taken in the best sense This is so well known that the very Author himself of the Ballancing Letter has these words Page 3. lin 15. Any Man who would pretend to give a Iealousy of the Nation to the King and suggest that he could not be safe among them without he were environ'd with Guards and Troops as it was in the late Reigns ought to be abhorred by every true English man by every Man who loves Liberty and his Country My other Quotations are about an incidental Point which fell into my former Discourse concerning the Admission of Foreigners into England This according to the sense of all Antiquity is giving them our Country The words in K. John's Charter at Runningmead concerning them are these M. P. p. 261. Et nos amovebimus omnes alienigenas à terra Parentes omnes Girardi de Athies Engelardum scilicet Andream Petrum Gyonem de Chanceles Gyonem de Cigvini uxorem praedicti Girardi cum omnibus liberis suis Gaufridum de Martenni fratres ejus Philippum Marc fratres ejus G. nepotem ejus Falconem Flandrenses omnes ruptarios qui sunt ad nocumentum Regni Here K. John is to amo ve Aliens out of the Land both all and some as a Nusance to the Realm And to conclude my last Quotation is one of the Statutes made at Oxford 42 H. 3. founded upon K. John's Charter Knyghton Col. 2445. l. 50. and in pursuance of it Statuerunt etiam Quod omnes alienigenae cujuscunque conditionis existerent seu nationis confestim repatriarent sub poena membrorum vitae That all Aliens of whatsoever Condition they were or Nation should forthwith repair home under the penalty of Life and Limb. The Act is General but no body can say that it is an Act for a General Naturalization A VINDICATION OF Magna Charta IN order to this I shall first shew That Magna Charta is much elder than King Iohn's time and consequently that its Birth cannot be blemished with any thing that was done in his time tho his Confirmation of it had been really extorted by Rebellion Secondly That the Confirmations which were had and procured to it in King Iohn's and H. 3. time were far from being gained by Rebellion First of all The Contents of Magna Charta is the undoubted Inheritance of England being their Antient and Approved Laws so antient that they seem to be of the same standing with the Nation and so well approved De Laud. Leg. Aug. that Fortescue applauding our Laws triumphs in this That they passed thro all the British Roman Danish Saxon and Norman times with little or no alteration in the main Now says he if they had not been liked by these People they would have been altered Accordingly in this last Norman Revolution King William the First falsely and flatteringly called the Conqueror swore to the inviolable Observation of them under this Title of the Good Antient and Approved Laws of the Realm and particularly and by name K. Edward's Laws So antient is the Matter and Substance of Magna Charta Secondly Nor was the manner and form of granting these Laws by Charter or under Hand and Seal with the Confirmation of an Oath over and above the Coronation Oath any new Invention or Innovation at all for as William 1. began it so I am sure that H. 1. and K. Stephen and H. 2. did the same before And therefore if the obscure Birth of M. Charta was in K. Iohn's time it was then born with a grey Beard for it was in being in his Great Grandfather's Reign For thirdly That very Charter of his Great Grandfather H. 1. was the Ground and Reason of the Parliament's insisting upon having the like Confirmation of their Liberties by K. Iohn and was the Copy by which they went A. D. 1213. Reg. 15. For tho K. Iohn at his Absolution at Winchester from the Pope's Sentence and Excommunication had solemnly sworn to restore the good Laws of his Predecessors and particularly those of K. Edward and tho presently after at a Parliament at St. Albans the Laws of K. H. 1. were ordained to be observed throughout all England and all bad Laws to be abolished yet contrary to both these late Engagements he was marching an Army in all haste to fall upon several of his Barons who had lately failed in following him in an intended Expedition into France But the Archbishop stopt him in this Career by following him to Northampton and there telling him that it would be a breach of his Oath at his late Absolution to make war upon his Subjects without Judgment in Parliament The King huft him and told him That this was Lay business and that he would not delay the Business of the Kingdom for him and by break of day next morning marches hastily towards Nottingham The Archbishop still follows him assuring him that he would excommunicate all his followers if they proceeded any further in this hostile way and never left him till he had set a day for a Parliament that the Barons might there answer it This Parliament was held at London at St. Paul's Church where before it ended the Archbishop took some of the Lords apart and put them in mind how he made the King swear at
he was more than half a Norman Now these things being the undoubted Rights of the Kingdom their antient Laws and Liberties and Birthright we have the less reason to be sollicitous in what manner they shall at any time recover them let them look to that who violently or fraudulently keep them from them For it would be a ridiculous thing in our Law for a man to have an Estate in Land and he could not come at it The Law will give him a Way If the Law gives the King Royal Mines it gives him a Power to dig in any man's Land where they are that he may come at his own And so if a Nation have Right all that is necessary for the keeping and enjoying them is by Law included in those Rights themselves as pursuant to them But because this is a great Point and I would willingly leave it a clear one I shall shew that the Barons proceeded legally in their whole Affair and according to the known Principles of the English Government and that all the Pope's infallible Bribe-Arguments against them which have been since plentifully transcrib'd are nothing worth I might indeed content my self with the short blunt Arguments of Mr. Selden who was known to have the Learning of twenty men and Honesty in proportion 1. That the Custom and Usage of England is the Law of England as the Usage of Parliament is the Law of Parliament Now the Ancestors of K. Iohn's Barons recovered their Rights in the same way This was done in William the First 's time in the 4 th year of his Reign when * M. Paris in vit Frederici Abb. p. 48. Videntes igitur Angli rem agi pro capitibus plures convocando exercitum numerosum ac fortissimum conflaverunt they raised a great Army and it was time seeing that all they had lay at stake under a cruel and insolent Prince Whereupon †Coepit igitur Rex vehementèr sibi timere ne totum Regnum quod tanti sanguinis effusione adquisierat turpiter amitteret etiam trucidatus K. William being in a bodily fear of basely losing the whole Kingdom which he had gained with the effusion of so much Blood and of being cut off himself called a Parliament to Barkhamsted where he swore over again to observe inviolably the good antient approved Laws of the Realm and especially the Laws of K. Edward How inviolably he afterwards kept that Oath and how he ‖ Leges violans memoratas Fuos Normannos in suorum hominum Anglorum naturalium qui ipsum sponte sublimaverunt provocationem locupletavit enriched his Normans with the Spoils of his own natural men the English who of their own accord preferr'd him to the Crown I had rather the Reader himself should find out by his own perusal of that instructive piece of History 2. The English Government is upon Covenant and Contract Now it is needless in Leagues and Covenants to say what shall be done in case the Articles are broken If Satisfaction be denied the injured Party must get it as he can Taking of Castles Ships and Towns are not provided for and made lawful by any special Article but those things are always implied and always done Yet seeing Pope Innocent III. in his Bull for disannulling M. Charta for ever and in his Excommunication of the Barons has afforded us his Reasons for so doing we can do no less than consider them The weight of his Charge against them is this That instead of endeavouring to gain what they wanted by fair means they broke their Oath of Fidelity That they who were Vassals presumed to raise Arms against their Lord M. Paris p. 266. and Knights against their King which they ought not to have done put case he had unjustly oppressed them and that they made themselves both Iudges and Executors in their own Cause That they reduced him to those streights that whatsoever they durst ask he durst not deny whereby he was compelled by Force and that Fear which is incident to the stoutest Man to make a dishonourable and dirty Agreement with them which was likewise unlawful and unjust to the great derogation and diminution of his own Right and Honour Now because says the Pope it is spoken to me by the Lord in the Prophet I have set thee up over Nations and Kingdoms to pluck up and destroy to build and to plant he proceeds to damn as well the Charter as the Obligations and Cautions in behalf of it forbidding the King under the penalty of an Anathema to keep it or the Barons to require it to be kept The Barons might well say that the Pope went upon false Suggestions for he is out in every thing For 1 st There was no winning of K. Iohn by seeking to him He would not have granted them their Liberties if they had kissed his Toe The Barons had really born with him longer than they ought for having stipulated to have their Rights restored to them before they admitted him to the Crown it was too long to stay above 15 years for them and to suffer so much mischief to be done in the mean time through their Neglect In the 3 d year of his Reign they met indeed at Leicester and used a sort of Negative means to come at their Rights for they sent him word That unless he would restore them their Rights they would not attend him into France But upon this as Hoveden says the King using ill Counsel required their Castles and beginning with William Albinet demands his Castle of Beavoir William delivers his Son in pledg but kept his Castle And so upon several occasions they were forced to deliver up for Hostages their Sons Nephews and nearest of kin And thus he tyrannized over them till the Archbishop put them into a right Method And when at last they had agreed to demand their Rights and had demanded them they staid for an Answer from Christmass to Easter for so long he demurred upon what he was bound to have done above 15 years before and then gave them a flat Denial So that all the world saving his Holiness must say that the Barons were not Rash upon him Nor 2 dly That the Barons had no regard to their Oath of Fidelity Juramento fidelitatis omnino contempto For their Oath of Fidelity was upon this Condition that E. John should restore all men their Rights and upon the Faith which his Commissioners solemnly made to them that thus it should be they swore Fidelity to him at Northampton So that K. Iohn had no right at all to this early Oath of Fidelity because he himself would not keep Covenant P. 196. nor fulfil the Terms and Conditions upon which it was made The * Et fecerunt illis fidem quod Comes Johannes Jura sua redderet universis sub tali igitur Conventione Comites Barones Comiti memorato fidelitatem contra omnes homines juraverunt Bargain was