Bibliotheca politica:
OR AN
ENQUIRY
INTO THE
Antient Constitution
OF THE
ENGLISH GOVERNMENT,
With Respect to the just Extent of the Regal
Power, and the Rights and Liberties of the
Subject.
Wherein all the Chief Arguments both for and against
the LATE REVOLUTION, are Impartially
Represented and Consider'd.

In Fourteen DIALOGUES.
Collected out of the best Authors, Antient and Modern.
By James Tyrrell Esq
1694

HAVING out of Curiosity, for some Years before, I as well as since, the late wonderful and happy Revolution, carerolly perus'd, for the Satisfaction of 1 ihy own Conscience, all Treatises of any Value that have been pUblifh'd concerning the Origin and Rights of Civil Government; as well of Monarchy as other kinds of it, and also concerning the antient Government and fundamental Constitutions of this Kingdom: I found it necessary, in order to the better fetaining of what I had read, and making a more certain Judgment upon it, to write down the most considerable Arguments on both sides, as well of those who will have Monarchy to be Jure Divino, as of those who allow it only to Government in general; of those who maintain absolute Subjection, or Passive-Obedience as they call it, as well as of those who hold Resistance in some Cases to be necessary; of those that maintain our Monarchy to have been limited by the Constitution it self, and of those that suppose all our Rights and Liberties, nay, the very Being of Parliaments, to owe their Origin wholly to the gracious Concession and Favour of our former Kings.

Having made impartial Collections of this Nature, and shew'd them to some Persons of Judgment, they thought they might be of great Use for satisfying some Mens Doubts concerning lawful Obedience to their late Majesties King William and Queen Mary. These Gentlemen look'd upon it as the best and most ingenuous way of convincing the Scrupulous, to propose the Arguments fairly on both sides, without interposing my own Judgment; but leaving it to the intelligent and impartial Reader, to embrace that Side where he found the most rational and strongest Arguments.

This Task, tho troublesome enough, I was prevail'd with to undertake, not for the fake of Fame, but merely for the publick Good and Happiness of my Country.

Being also sensible that a Subject of this importance deferv'd a great deal of pains, and to be handled in a more artificial Method than the old dry Scholastick Way of Objection and Solution; I thought it would prove more pleasant as well as profitable to the Reader, espedally those of our young Nobility and Gentry, for whom I principally design'd this Undertaking, to digest what I had writ into Dialogues or Conversations, suppos'd to be held betwixt two intimate Friends, who, notwithstanding their different Principles in Politicks, had always maintain'd a strict and generous Correspondence. I was the more inclin'd to this Method, because I observ'd that writing of Controversies by way of Dialogue, according to true Rules, had obtain'd well among intelligent Readers; and because my Subjects are of a nice nature, and that my Collections contain strict Inquiries into the Principles laid down in the Writings of several Persons of great Reputation for Learning and Ingenuity.

I was sensible how invidious a Task it must prove to write on purpose against so many Great Men; and how troublesom and tedious it would be to my self, as well as to the Reader, to confute any Author Page by Page; which Method, I perceiv'd, had made Answers to Books very unacceptable to the World. And tho I grant that writing by way of Dialogue has likewise Objectionrand Difficulties, as being more diffusive, and taking up more time, where either the one or the other Disputant is apt to rove from the Subject; yet I make bold to affirm, that this may be in a great measure prevented by the Writer, if he keep close to the Question, and not start a fresh Hare till the old one is run down. So that a Man may make and answer Objections in as few Words this way, as by Polemical Discourses. And tho it be granted, that Matters of Form in Dialogues are more tedious, yet the Reader, as well as Traveller, will find, that the Pleasantness of the Road often makes amends for its being somewhat about.

Whether I have truly pursued the Rules of Dialogue, must be left to the Reader's Judgment; but I can justly affirm, that I have carefully avoided all bitter and reflecting Language on either side, having design'd these Discourses for common Places of Argument, and not Forms of Railing. I have also declin'd shewing my self a Party, or giving my own Opinion in any Question, and therefore have not made either of my Disputants the other's Convert; tho nothing is more easy in writing Dialogues as well as Romances, than to make the Knight Errant always beat the Giant.

In all my Discourses I have considered and contracted the best Arguments I could find in the most considerable antient and modern Authors, either in Latin or English, especially in those that have writ on either side since the late Revolution. As for those in our own Language, wherever I conceiv'd any Author to speak so well, or to argue so closely, that to put it in other Words would make it worse; I have always put the Arguments of both the Disputants in their own Words: and because I would not act the Plagiary, have truly quoted the Book and Page from whence I, took them. For other Authors, I hope none will take it ill, if I have sometimes made bold to contract their Arguments, without altering their Sense or Words further than by putting in or out an Expression to make the Stile run more smooth. I also desire them not to think that I write on purpose to confute them, since my Design is not to write against any Man's Opinions, as they are his, but only to examine them freely, in order to an impartial Discovery of the Truth. And since some of them have been perhaps too commonly and favourably received by our ordinary Gentry and Clergy, if any ingenious Person will take upon him farther



to assert or vindicate any Opinion here question'd by the one or the other Disputant, and will clearly and fairly shew me where any Argument might have been put more home, or any Objection more solidly answer'd; I shall, inltead of taking it amiss, give him my thanks for his pains, and do here promise to insert all, or at least the Substance of his Arguments under their proper Heads with all due Acknowledgments: only I desire him, whoever he be, to forbear all harsh Reflections and coarse Language •, otherwise he must pardon me if I only take notice of his Reasons, and neglect his Passions.

I hope no candid Reader will flight those Dialogues, which treat of Opinions that at present may seem to be of fashion, viz, the Divine Right of Monarchy, and Succession from the Patriarchal Power given by God to Adam; for every one remembers the time when our Pulpits and Presses would scarce suffer any other Doctrine to be preach'd or published on those Subjects. It fares with some Political Opinions as with Fashions, which are never so generally receiv'd and worn, as when they have been in vogue at Court. Those Divines and Lawyers, who were the Inventors or new Vampers .of them, commonly receivM the greatest Rewards and Preferments: so that as the CourtTaylors did with FalhionSj they invented such Doctrines and Opinions as were most burdensom and uneasy to all sorts of People, except a few Great ones, who were to be Gainers by them.

I desire it may be observ'd, that however odd or unreasonable these Doctrines may seem to most Men now, yet certainly they must formerly have seem'd to carry a great Appearance of Truth, since they were able to captivate the Reason or the major part of both Houses of Convocation in the beginning of King James the First's Reign, when by several of their Canons they declarM them to be the only sure Foundations of all Civil Authority, and of Obedience to it; as appears by the Treatise, call'd Bishop Overall Convocation-Book. And tho neither King nor Parliament thought fit to give those Canons the Stamp of Civil Authority, and make them Law, yet this did not hinder several of the Learned Clergy and Laity from embracing those Opinions; such as Sir Robert Filmer, and his Vindicator Mr. Bohun, and the Reverend and Learned Bishop Sanderson, with divers others of Note* whose Arguments I have made use of and considered in some of these Dialogues, but with as little Reflection as possible, since I know what is due to the Memory of such Great and Worthy Persons. This was the reason why I only made use of the initial Letters of their Names, or the Titles of their Books, in the Margin; which are explain'd by an Index at the beginning of this Work, as they were at the beginning of each Dialogue in the first Edition: what is not so mark'd, I desire the Reader to look upon the Words, hot the Sense, to be my own; for I don't pretend to be an Inventor of new Notions in Politicks, there being no Man more sensible than my self of that bid LatinSentence, Nihil dicJum quod non dictum frius.

Tho the Title of the first Dialogue mentions no more than the discussing of the Question, whether Monarchy be of Divine Right, yet the natural Power of Fathers, Masters of Families, and Freemen, are distinctly treated of, and closely enquired into, as being the first Elements or Principles of all Civil Powers, as those alone out of which at first they could be regularly made: And tho I have made one of the Disputants argue pretty stiffly against theDivine Right of Monarchy, and of Indefeasible Hereditary Succession to Crowns; yet I de



clare I am not what the World calls a Republican or Commonwealths-Man, nor do I hereby design or desire Alterations in the Government either of Church or State, since none can admire our excellent Constitution more than my self: much less do I prefer an Elective to. an Hereditary Succession to the Crown, for I justly esteem the latter to be the most excellent, if not the only means to prevent all Disputes and Civil Wars about Succession; and therefore is never to be departed from, unless when some Natural or Moral Disability in the Person, or other unavoidable Necessity, render it absolutely inconsistent with the publick Peace and Safety of the Kingdom.

Therefore as a Man may be truly devout without Superstition,which is a Corruption or Abuse of Religion; so I think a Subject may be truly Loyal and Obedient to his Prince, tho he has never heard  or does not believe any Divine Right of Monarchy deriv'd from Adam and Noah; or of Hereditary Succession, from God's Promise, That Cain should rule over Abel. Nor have I any Aversion to Absolute Monarchy as such, could I be assur'd that Princes would be always as wise and as good as they ought to be, for I own that several Nations have never been more happy than under such Monarchs, The Roman Empire, for instance, never arrived to a greater height of Riches and Power, if we may believe Historians, than under Nerva, Trajan, and the two Antonines: So that the Fault is not in Absolute Monarchy as such, but in the general Corruption of human Nature, which rarely produces Persons of such Wisdom, Goodness, and other Abilities, as are requisite for so great a Trust.

I confess Subjects may be happy and contested enough, if they please, under any Form of Government, yftitxfiine/.M^vetn^jaff of equal Capacity and Hbneftj^'a^haye. i%rftoJti&iM Cojiqern for rife commrki Good" of their P^ple ^ J,tnk wnere fcae^are w'anfo ing- it is not Wre Fotsiis and e.mpty Karros thaj; can's make th'cpj* lo: "Thereforfe I justly. avdmire jfhe 'tylfitpp^tf: tfaj f^ie'nt German and1Gothick Nations, who prefers a LimitedMonarchy ' to all otJbeff Forms of Government;( as an excellent Medium "between the Mis. chiefs of ArbitraryPowet, and those Inconveniencies that attend. Republicks, where either the common People or Nobility must govern

I likewise Hope, that tho I make One of my Disputants shew the. Absurdity arid fatal Consequences of SirRobert Filmer's Principles, yet the Reader will not from thence infer, that I pass an absolute Judgment against them; much less have I done this out of any prejudice ro Sir Robert, with whom tho I was never, acquainted j I honour his. Memory, because his Writings shew him to have been a Person of genteel Learning, and very ingenious: B\lt whether his Principles be .destructive to the Fundamental Constitution (of this Government, I submit to the Reader's impartial Judgmerit; who" I hope will, without Attachment to Party or. Faction,., determine according to the Merits of the Cause, and observe the Apostle's Rule, to try a/2 things, and hold fastthat which is good. I beg the Reader likewise to believe, that tho under the Name of a Freeman I have argued against an Opinion . now and lately much iji Vogue,> tviL. 'Tbai .ad absolute hrejistibility is an inseparablePrerogative"of alt. Sovereign Pomns, be they Monarchies or Commonwealths; yet no, Man more abhors all' unnecessary^ Resistance or Rebellion against Supreme Magistrates, and; is, more-for an Absolute Submission by all particular Persons, whether, publick or private, in Base of the highest Injuries and Opprcsliohs

done done to themselves akine, and where die eomuion Good of the Community is not. immediately concern'd: And this I own to be their Duty* not only out of a generous Regard to the Peace and Tranquillity of the Commonwealths whereof they are Members, (and .whish, ought not to be disturb'd,■. to revenge or redress a few private Injuries) but also frelri the expressl Command of God in the. Holy Scrips ture., which'; expeesty forbids not only all Revenge, but even Selfge&ncei whilst the Supreme Pow«rs.aft legally, tho perhaps contrary £0>,:|jbe, st.rift.Rmks of(Justice and Equity in such particular Cafes. Yet Tor all this, I doubt whether those Precepts do extend to all Resistance wbattff er, via. ofi any whole Nation or great- Body of Men, W^oÆi Preseiivation or Freedomi from intolerable Slavery and Oppreffiqnytnay reodisu; it necessary for the Goodi of the Commonwealth, ajftt&.js no: other way. tor be procur'd but.by a vigorous Resistance, Pf. ejife joining, with: some powerful Neighbours, who shall intefpose fo$.;f£)$k Deliverance So that if such a Resistance be ever lawful, ifi/cafa ba up(Mlmi'les9 momentous an account, than that of a General immfim either- jof the Lives, Liberties, Religion, or Properties of a wliote«.Qr- ittajoc part of a. Nation; as they are established'by the Law ojfiNatww, lourjthe Fundamental Constitution of those particular Govfir*mestts; where :fucb iihsupportable Tyranny and Oppressions are tben;i«xerfcJ&d«i I Andlifiitliisbe not lawful in such extraordinary Cafes', ifeityf^iljiifeWi'fisJif God had! prefers' the unjust Potter or -Force, and tty^Wtf&GrvidtMritot.the Governors,before the Go&A xn& HtppitUss  ttyt'Gwitktsntd?< 1vhich:.iiLcontrary'tothe mmn End ^of-ailCivilGpiY,errtmentv^'«^;theiatoBpnGorodr.and Happiness-of Mankind, even

A B«ft: whether ssildi/Resistanceito. not in [these Ca&si SkHvfu!,- nat MeMrtif<^\the Safeg^d: and!jM £fai fiipi»ijilkaYO it'jtxa'tbœ Jiy^mentx)gtiie.'in««fl>-^^i'n- ••'


ground, if it appears in its true natural Dress against its Opposite, Error. But if a great deal of what has been said, by Persons too vio* lent on either side, appear to be mere precarious Opinions, whose best Authority is from the great Names of those that have broach'd' them j I hope no indifferent Person will take it ill, if I endeavour to discover those Mistakes, since all Men are liable to Errors: and as none can be more sensible of this than my self, so when either o£ those Learned Persons, or any other, shall convince me of weak or false Reasonings, I promise to retract them with the first Opportunity.

As to my Discourses upon the Supreme Legiflative Power, and the Fundamental Constitution of our Government, together with the Antiquity of Great Councils or Parliaments; and whether they always consisted of Bishops, Barons or Temporal Lords, and Commons; is a Question to be decided only from the Histories and Laws of the Nation. And I dare assure the Reader, that I have advane'd nothing upon it on either side, but what I have produe'd good Authorities for, either from the Histories and Governments of our own or neighbouring Nations, or from the Collections of our English Saxon Laws, and antient as well as modern Writers upon our Laws; and lastly, from our Statutes since the reputed Conquest, without omitting any Authority that I judged material to be urged on either part.

As for those Parliamentary Records here quoted, they are either such as have been already printed from the Rolls in the Tower, or other Offices at Westminster, and so are allow'd for authentick, or else are such as have not yet been made publick; for the Truth of which, the Reader may search the Records themselves, if he have anv Distrust that I have not quoted them fairly. And I can farther assure the Reader, from better Judgments than my own, that he will find more here than ever was yet publisli'd at once, or perhaps at all, upon those important Subjects.

As to the sixth Dialogue, I must own the Subject of it to be one of the hardest and most important, tho perhaps in the Judgment of / some, the dryest and most unpleasant part of my Task, w*. to adjust

who were antiently the constituent Parts or Orders of Men that made up our Legiflative Assemblies. That the Bishops, Abbots, Priors, Earls, and chief Thanes or Barons, were principal Members, is granted by all Parties; but whether there were from the very Original of these Great Councils, or till long after the coming in or the Nor>mans, any Representatives for the. Commons, as we now call them,

in distinction from the Lords Spiritual and Temporal, is made a question. The first who raised the Doubt, for ought I can find, was Poly dor e Virgil, an Italian, who wrote the History of England in the sixteenth Century, and it hath been continued by some Antiquaries since that time: tho the first who undertook to prove the contrary, was the Author of a Treatise publisli'd by James Howtl in the Cottoni Pofihama, under the Name of Sir RobertCotton, about 1654. And after him, this Notion of the Bishops, Lords, and other Tenants in capite, being the sole Representative for the whole Nation in those Councils, was next printed in the second part of Sir Henry Spelman'sGlossary, Tit. Parliamentum; where King jf<?£*'s Charter is brought as the mam • Argument to prove that Assertion. The next who appeared in Print

on this Subject was Sir William Dugdale in his Origints Juridiciales j who, tho he transcribed the same Notion and Arguments from Spelman's



Glossary ; yet he.allows our Commons to have been always some way represented in Parliament, tho not by Members of their own chusing : notwithstanding: which, he agrees with the Author of the Passage in the Glossary, that the Commons first began by Rebellion in the 49th of Henry III. "•.

• Which Opinions being look'd upon not only as novel and erroneous, but dangerous to the fundamental Rights and Liberties of the People of this Nation, they were oppos'd by William Petit Esq; in his Treak tile, intitled, The Right?of. the Commons of England asserted, &c. He was seconded by the AuEhor of the Treatise, call'd, "JaniAnglorum sides mva.- Soon after both those Books were animadverted upon by Dr# Br*djy. in two Editions of .his Anfwersto them; but the Rights of the Commons were again vindicated by the Author of Jani Anglorum, kc.in another Treatise, intitled, Jus Anglorum ah antiquo, which has not yet been answer'd.

I have been the more particular in my Account of those Authors, because this Controversy being largely debated in them, T thought it proper, for saving the trouble of reading so many Books, to reduce all the material Arguments and Authorities madd use of by both Parties, in this weighty Controversy', into this and the two following Dialogues; and have, as near as I could, confin'd my self to the words * of those Authors, as will appear by the Quotations in the Margin.

I must own, that having had a long and familiar Acquaintance with Mr. Petity he furnish'd me with divers Authorities both in Manuscript and Print, not hitherto taken notice of by any Writer on this Subject. And had Dr.Brady, or any of his Friends, thought fit to communicate their Objections against any thing I have writ, I should have fairly publish'd them, with such Answers as the Cafe might have requir'd.

I hope the Reader wjill pardon me, if I seem too prolix in the Interpretation of divers Words and Phrases, us'd. by Dr. Brady and his Opponents in a quite different Sense frpm pur antie'nt Historians, Records, and Statutes ;1for if the various Use and equivocal Meanings of those Expressions be truly, stated and laid open, according to the several Ages in which those'Authors liv'd, or luch Laws were made, I reckon this great Dispute, will soon be atan end.

I think it needless to insist upon ,th^ Nature of the other Dialogues. The Design of them is" obtfious, from the summary Account of the Subject prefix'd to them ; so that all I stiall add, is, that in each of them, as well as the former, there are many incident Questions handled of Law, History, and Divinity, that relate naturally to the Subject. The Reader will easily find this, by consulting the large Alphabetical Index annex'd to this Edition, which makes it a compleat Common-place Book for understanding our Constitution: a thing hitherto very much wanted, and not to be met with, but by consulting multitudes of Books, at no small Expence both of Mony 0 and Time. »

r Ar can assure the Reader, that all the Authorities here made use of from Historians and Records, are truly cited, without leaving out or concealing any thing that I thought made for or against either Opinion. And as for the Records, they are either such as having been sufficiently try'd, have pass'd for authentick betwixt Dr. Brady and his Antagonists, or else such as I my self have seen and examin'd, and consider'd the Purport of them, carefully. If any suspect the contrary,


I have given them a fair Opportunity, by my Quotations, to examine the Truth of it themselves; so that by weighing and comparing Historian with Historian, and Record with Record, and sometimes both together, as the Subject-Matter requires, they may be able tQ make a right and impartial Judgment of the whole.

I hope that the Arguments, in all the following Discourses, will prove ib plain and convincing to careful and unprejudic'd Readers, that they may as easily discover the Truth, as an honest and unbiass'd Jury-Man can, at a Trial, judge on which side the Right and Justice of the Cause inclines, upon the bare hearing of Evidence on both fides, even before the Court hath summ'd it up. But on which side soever the Reader brings in his Verdict, I heartily wish that God may direct his Mind, and guide his Judgment to find out and embrace the Truth; which as it was the only end of my writing at first, is now the end of republifhing these Dialogues: which, since the principal Subject of them has again so lately been controverted, not only by the Pen, but by the Sword, 'tis hop'd may be of use to settle the Minds of People, who to their Cost have been so frequently misled, because they did not understand our Constitution.

An Alphabet! c1 A t1 G A T A Logue of the LETTERS, by which the Names and Books of Authors are denoted in the Margin of the following Dialogues*

B. A. A. T"\R- Brady's Answer to Mr. Cook's Argumenturn Anti-Norman* \_J nicum.

B- A. J. Dr. Brady's Animadversions on J<tni Anglorum fades nova.

B. A P. Dr. Brad/s Answer, Edit, in Folio, to Mr. Petit's antient Rights

of the Commons of England. B. C P. Bohun's Conclusion to Sir Robert Filmer's Patriarcbd. B O. F. Bohun'sDefence of Sir Robert Fiimer.

B. G. Dr. Brady's Glossary at the end of his Answer to Petit's antient

Rights of the Commons.
B. P. H. Dr. Brady's
Preface to
his History,
B. P. P. Bohun's
Preface to
Patriarcha.

B-
S. P. P. Bishop Sanderson's
Preface to
the Potter of the Prince.
D.O. G. Filmer's
Dire ft ions for Obedience to Governors.
F. A. M. M. Sir Robert
Filmer's
Anarchy of Mix'd or Limited Monarchy.
F. D. O. Sir Robert
Filmer's
Directions
to Obedience.
F. F. G. J. Fiimer1 s Freeholders Grand Inquest.
F. O. G. Sir Robert
filmer's
Observations
on Forms of Government.
F. O. G. Sir Robert
Fiimer s Observations on Grotius
De Jure Belli 8c
Pacis.

F. P. Sir Robert Filmer's Patriarcha,

F. P. O. Sir Robert Filmer's Preface to Observations on Aristotle.

F. P. O. Sir Robert Filmer's Preface to his Political Observations,

G. J. B. Grotius de Jure Belli & Pacis.

H.
D. L. Harmony of Divine Law.
H. J. Dr. Hickes's
Jovian.

H. P. O. History of Pafftve-Obedience.

H.S.B. R. Heylinh Stumbling-Block of Rebellion, Folia

H. T. M. Hunton's Treatise of Monarchy.

J. A. A. Jus Anglorum ab Antiquo.

T. E.MG. Dr. Johnston's Excellency of Monarchical Government.

jP Estranges Obfervators. P. J. N. Pujfendorf de Jure Nature dr Gentium. P. N. M. Patriarcha non Monarcha.

P. P. R. Q Petit's Preface to the Rights of the Commons of England asserted. P. R, Plato Redivivm.

P.R;C.

P.
R. C. Pern's Antient
Rights of the Commons o/England
asserted.
R. H. C. Rujbworth's
Historical
CoUeclions.

S.C.R. Dr. Sherlock's
Cafe of Resistance.

S. P. P. Bilhop Sanderson's Preface to Archbishop Vjber's Power of the * Prince.

T.T.
G. Two Treatises of Government.
V. J. R. VindicU
Jurit Regii.

U.S.A.S.
Mr. Dudley Diggs's Unlawfulness of Subjects taking up Arms
i against their Sovereign, Edit.
i6tf*


THE

C O N T E NTS

« ■ r

Of the Ensuing

DIALOGUES

DIALOGUE t;
H E THE R Monarchy be Jure
Divino. . pagt £

DIAL. n.

Whether there can be made out frdm the Natural, or ReveaPd
Law of God, any Succession to Crowns by Divine Right. $0

D t A L. ITT.

Whether Resistance of the Supreme Power, by a whole Nation, or People, in Casts of the last Extremity, can bejustiffdby the Law of Nature, dr Rules of the Gospel.

D I A L. IV.

 \ • .j ■ t

Whether absolute Non-Resistance of the Supreme Powers be enjoined by the Doftrine of the Gospel, and, was theantient Practice of the Primitive Church, and the constant Docirine of our Reformed Church of England.

153

DIAL. V;

Whether the Kjng be the sole Supreme Legislative Power of the KJhgdom  And whether our Great Councils, orParliaments, be a fundamental Part of the Govtrnment, or else proceeded from the Favour and Concessions offormer Kjngs. 214 DIAL. VI, VII.

Whether the Commons of England, represented by Kflights, Citizens, and 
Burgesses in Parliaments were one of the Three Estates in Parliament, 
before the t^th of Henry III. or \%th of Edward L 26% 

DIAL. vin. 

A Continuation of the former Discourse, concerning the Antiquity of the 
Commons in Parliament; wherein the best Authorities for it are proposed 
and examined: With an Entrance upon the Question of Non-Resistance. 

391 

DIAL. IX. 

- r • 

Whether by the ant lent Laws and Constitutions of this Kingdom, as well as 

bj the Statutes of the iph and 14th of Kjng Charles H. ail Resistance of 

the Kjng, or of those commissioned by him, are expresty forbid upon any 

Pretence whatsoever. 

And also, whether all those who assisted his Majesty Kjng William, 

either before or after his coming over, are guilty of the Breach of this 

Law. 442 

D I A L. X. 

I. Whether A Kjng of England can ever faB. from, or forfeit his Royal 

Dignity for any Breach of an Original Contract, or wilful Violation of the 

Fundamental Laws of the Kjngdom. 

tL Whether Kjng William, the Norman, did by his Conquest acquire such 

an absolute unconditional Right to the Crown of this Realm for himself and 

bis Heirs, as could never be lawfully resisted or forfeited for any Male-Ad- 

ministration or Tyranny whatever*'. 498 

DIAL. XL 

 

j. in what fense all Civil Power is derived from God, and in what fense it may 

be also from the People. 

JL Whether his Majesty Kjng William, when Prince of Orange, had 4 
just Cause of War against Kjng James H. 

IU. Whether the Proceedings of his Majesty, before he was Kjng-, as 
also of the late Convention, in refpelf of the said Kjng James, is justi- 
fiable by the Law of Nations, and the Constitution of our Government. 

555 

DIAL, XII. 

I. Whether the Vote of the late Convention, wherein they declared the Throne 

to be vacant, can be justiffd from the antient Constitution and Customs of 

this Kjngdom. 

II. Whether the said Convention, declaring Kjng WiHiam and Queen Mary 

to be Lawful and Rightful Kjng and Queen of England, may be justi- 

fied by the said Constitution. 

III. Whether the Aft passed in the said Convention, after it became a Par- 

liament, whereby Roman Catholick Princes are debarred from succeeding 

to the Crown, was according to Law. 603 

DIAL.


DIAL. XIII. 

I. Whether an Oath of Allegiance may be taken to a Kjng or Queen de Facto, 
or for the time being. 

II. What is the Obligation of such an Oath; whether to an aclual Defence of 

their Title against all Persons whatsoever, or else to a bare Submission to 

their Power. 

III. Whether the Bishops, who refused to take the Oath of Allegiance to 

their Majesties, could be lawfully deprived of their Bishopricks. 651 

DIAL. XIV. 

Shewing, that the Arraigning and Murder of Kjng Charles I. can by no 

means be justified by the Proceedings of the Convention-Parliament against 

Kjng James II. upon his Abdication; the Grounds and Manner thereof 

being wholly different: Proved by an exact Relation of the Beginning, 

Progress, and ljsueof the late Civil War. 698 

l.T! 1. * 1 3.


Bibliotheca politica:
OR AN
ENQUIRY
INTO THE
Antient Constitution
OF THE
ENGLISH GOVERNMENT,

DIALOGUE I.

Whether Monarchy be Jure Divino..

'•.T;!l# E T W E E N .-.

Mr. Freeman, a Gentleman; and Mr. Meanwell, , J ;„ ..r .a Civil Lawyer:

Supposed to be immediately upon the late King J A M E S's first Departure.

[graphic]

i&i9» OOD morrow, Sir: What! at your Study thus early this ^ eSS0SXSSXSSJ!8». Morning.

is no wonder, if you were acquainted with ; |> my Hours: But pray, Sir, may I not likewise ask you what ||9* extraordinary Occasion brings you out of your Lodgings so much sooner than your ordinary Time?

F. Why, Sir, I ll tell you. Being awake very early this • Acj Morning, and not able to sleep for thinking on the great Change that might happen, let either the King or Prince get the better ; and hearing some odd Rnmours last Night of the King's Intentions to go away : I was resolved to get up, and go to the Coffee-house, to hear what News where I had- scarce sac down, before a Gentleman comes in from Whitehall, and brings Bs -a certain Account, that the King withdrew himself this Morning between three and four of <he Clock, no Body knows whither, (tho' most believe he is gone after the Queen into France) which I thought would be so surprizing (I will not say welcome) to you, that being so near your Lodgings, I thought it would *. i B be be worth while to step up, and tell you of it, and take your Thoughts of this great (and I hope happy) Change, which fa great a Revolutionas likely to produce in this Nation.

M- I thank you, Sir, for your Kindness, tho' it is not half an Hour ago, that one I employ in some Business relating to a Client of mine, came hither, and gave me the fame account, tho' it was no great Surprize to me; for ever since Sunday, that the King sent the Queen and Prince away, I believ'd that he gave the Game

for lost. N , % - v v. ..

F. I must confess I was' of another* Mindj andthapght, that when he.ha"d secured the Quceh arid Child, he would have had onefJJrush with the Princebfcfcbre he could have got to London; and if he had had the worst of it, he could have out gone away at last. But to leap away on this manner, and to lose three Kingdoms without ever striking one stroll »is -hbtpl confess, suitable to that high Character his Admirers have always had of his Courage and Conduct. 'M> Alits! gootfTCTng : What woTfldVCu havetWl^do? Or Whom courkkbe rely orip/when some^of his nfir Relatjionsf'and difbrs cf those he hadr)w#d

almost 'from notJfihgfc-had dWerted hrm~?" How (Souks he thejptruit an AœijJrbs Mercenaries, who being most of them but the Dregs of the People, would, it is likely, rather have delivered him up tcrthecPrince5.-than have ventured their Lives for him.

jp. What you have said concerning -his.Majesty's Relations and Confidents^deserting him, makerather against thai^for the King's Cause'i since it cann^bpsupposed they would have left a Prince to whom they were so much obliged;- Co join themselves with his Enemy, from whom they.had no reason to expect greater Advantages than they had already ; unless they had been satisfied in their Consciences, that the Protestant Religion eftablish'd in these Nations, and also our Civil Rights and Liberties, were in imminent danger of being utterly lost and destroyed. Awd^tho' I grant that some of the King ^Officers arid Soldiers went over to the Prince; yet, considering how few they werethafe-did so, not being (as I am credibly informed) above seven or eight hundred Men at the most, and what great Numbers ofMeir he lull left wiili him; he-arighty-Tnctfamfa; haveturned out those Officers he suspected, and put others in their rooms, who would have engaged to live and die fvflt'h htfij; and if thi* would* not have done, he might have sent those RegimeWs h'e most suspected back to~h>ndon : And then reckoning the Scotch and Irish Forces that came lately over, besides the Papists he had in his Army, and those, who, having rhof e Courage than Conference, could never expect to fight for a Prince, who we-uld pay them better: I am confident (if this had been done) he might, after the going over of those few Troops, have made up as good* if not a better Arrriy than the Prince's; and so need not have scampered last Week from Salisbury in that haste he did, whilst the Enemy was near fifty Miles off. But asitis, lam very well satisfied withnaflthat hath happen'd in this great Revolution, and convinced of the Truth of that old Saying, Quos perdere vult Jupiter,dement at prim.

M. So far I go along with you, that God doth often make use of the Wickedness and Treachery of Men, to bring his great Designs about; but whether Gcd hath ordained this great Revolution, as you call it, for a Deliverance or Punishmentto this Nation, I am yet in doubt: For if you please to consider how much those tWo Causes have contributed to this turn of Affairs, I suppose, if yon argue according to my Principles, we must own, that tho' this Change hath happen'd by God's permissive Providence (as all things else, tho' never so ill) yet whether he doth approve of all that hath been done to procure it, I much doubt; since if divers of our Nobility, with some of our Clergy, had not quitted their Doctrines of Passive Obedience and Noh-Resistance, so long owned by the Church of England, this Revolution could not have happen'd at all, or at least not so suddenly, as if did : So that -indeed I must confess, I am not only grieved at his Majesty's hard Fortune, but also stand amazed, and cannot but reflect with wonder on the strange Vicissitude of worldly Affairs, to fee a Great King, who but last Week commanded a powerful Army of more than forty thousand Men, forced out of his Throne, and made to fly his Kingdom, by a Prince that did not bring half that Number into the Field. And who can sufficiently bewail the King's Misfortunes, who hath been at once betrayed by the ill Advice of his Counsellors, the Treachery of his Friends, and the Cowardice of his Soldiers?

F. Methinks, Sir, there is no such great Cause of Wonder, much less of Concern in all this: For who can much admire that a Prince should be thus used,who had not only provok'd a powerful Enemy to invade him from abroad, but (by industriously labouring to introduce Popery and Arbitrary Government at Home) had lost the Hearts of almost all, except his Popish Subjects; insomuch that many of his own Soldiers were so terrified with the Thoughts of being discarded (like the Protestant Army in Ireland) to make room for Irish and French Papists, that they had very little Courage to fight, when they saw Cashiering was the best Reward they, could expect, if they proved victorious. And who can much pity a Prince, who would rather lose the Affections of his People, than displease a few Priests and Jesuits: So that if he suffers, he may thank himself; it not being Religion, but Superstition which brought this Misfortune upon him. Since the, King having got a Prince of IVales, and (as it is highly suspected) joined himself in a strict League with France for the Extirpation of Hereticks, it laid an absolute Necessity upon the Prince of Orange to come over, that, by the Assistance of the States of Holland, he might not only relieve us, but vindicate his own, and her Royal Highness his Princess's Rfght to the Succession, and secure his Country from a dangerous and powerful Invasion, which it was threatned with both by Sea and Land, whenever the Kings of France and England should be at leisure to join their Forces, to make War upon them; which you know all Europe hath expected for above these two Years last past.

M. These things were somewhat, if they could be proved; but indeed, to deal freely with you, I look upon this League, and the Story of the supposititious Birth of the Prince of IVales, as meer Calumnies cast out by wicked and crafty Men to render the King more odious to his People.

F. Nay, Sir, yon don't hear me positively affirm either the one or the other, since I grant they are not yet made out; but whosoever will consider all the Circumstances of the Birth of this Child, cannot but be strongly inclined to believe it an Impostor, notwithstanding all the Depositions that are taken to the contrary. And as for the FrenchLeague, you may be sure, if there be any such thing, it is kept very private; and yet I must tell you there are very high and violent Presumptions to believe it true; or else why should the King of France, in a late Memorial to the Pope, complain that his Holiness, by opposing his Interest in Europe, had kindred him in those great Designs hehad for the Extirpation of Herefie I by which he must surely intend England or Holland; Protestantism being sufficiently expelled out of his own Country already. And he could not do it in either of the other without the Consent and Assistance of his Brother the King of England. Or to what purpose should the King of England join with France to ruin Holland, and his own Son-in-Law into the Bargain, but to make a War meerly for Religion;since neither the Dutch, nor the Prince their Stadt-holder, gave him, 'till now, any just Provocation?

M. Well, however, these are but bare Suspicions and Presumptions, at most, and not Proofs; and therefore in a doubtful Matter, as this is, if we ought to judge favourably of the Actions of others, much more of Princes, whose Councils and Actions, though private, yet are still exposed to the Censure and Calumnies of their Enemies ,• and therefore, I hope, you will not blame me, if I freely confess, that I am deeply concerned to see an innocent and misled King forced to seek his Bread in a foreign Land; and the more, since many of the Nobility, Gentry, and common People, have contributed so much to it, by taking up Arms against him; and that so great a part of his own Army, and Officers, should, contrary to their Allegiance and Trust reposed in them, run over to the Enemy. Nay, that some of our Bishops and Clergy-men should, contrary to the so often acknowledged Doctrines of Passive-Obedience, and Non-Resistance, not only countenance, but be likewise active in such desperate Undertakings, and this in direct opposition to the known Laws of God, and this Kingdom; which must needs make our Church a Scorn to our Enemies the Papists, and a Shame and Reproach to all Protestant Churches abroad,' and render the People of England, odious to all the Crowned Heads in Europe.

F. Well, Sir, I see you are very warm, and I hope more than the Cause deserves. You may judge as favourably of the King's Proceedings, and as hardly of the Actions of the Nobility, Gentry, Clergy and People in this Matter as you please. But yet I think I can make it as clear as the Day, that they have done



nothing by joining in Arms with the Prince of Oratige, but what is juflifiable by the Principles of Self-preservation, the Fundamental Constitutions of the Government, and a just Zeal for their Religion and Civil Liberties, as they stand secured by our Laws; unless you would give the King a Power of making us Papists, and Slaves, whenever he pleased. But as for your Doctrine of an absolute Obedience -without Reserve, and the Divine Right of Monarchy and Succession, you need not be much concerned whether the Papists laugh at you or no, since there are very few of them (if any) who arc such Fools themselves as to believe such futilous Opinions. But indeed they have more, reason to laugh at you whilst you maintain, than when you quit them; since as they have only rendered you a fit Object of their Scorn, so they would have made you but a more easie Sacrifice to their Malice. For what can Thieves desire more, than that those they design to rob, should think it unlawful to resist them? And what could the Papists have wislVd for more, than that our Hands being fetter'd by this Doctrine of an indefinite Passive-Obedience, our Lives, Religion and Liberties should lie at their Mercy? Which how long we should have enjoyed, whenever they thought themselves strong enough to take thctn away, the late cruel Persecutions, and Extirpations of the Protestants in Eance, Savoy, Hungary, and other Places, have'proved but tco fatal Examples; and therefore no wonder (let your high-flown Church-men write or preach what they please) if the Body of the Nobility, Gentry and People of England could never be persuaded to swallow Doctrines so fatal to their Religion, and destructive to their Civil Rights and Liberties both as Men and Christians.

And as for the Antiquity of these Doctrines, I think they are so far from being the ancient - Tenets of the Church of England, that they are neither to be found in its Catechism, Thirty nine Articles, or Book of Homilies, taken in their true Sense and Meaning ; though indeed there is something that may tend that way in some of the late Church Canons about fifty Years ago; but I do not look upon them as the ancient established Doctrine of our Church, because these Canons are not confirmed, but condemned by two Acts of Parliaments, and consequently never legally established as they ought to be by the publick Sanction of the King and Nation. Our old QueenElizabeth's Divines, such as Bisliop BilVde Bilson son arui Mr. Hooker, being wholly ignorant of these Doctrines, nay, teaching in Sub^Hi'oT feveral Places °f tne" Writings the quite contrary. Nor was this Doctrine Edit", \ ll~6. °£ absolute Subjection, and Non-Refistance ever generally maintain'd, until about />. 179, 280. the middle of KingJames's Reign, when some Court Bishops and Divines began Hooker'* Ec- to make new Discoveries in Politicks as well as Divinity; and did by their • clesias. Policy, Preaching and Writings affirm, that the King had anabsolute Power over Men's L. i. p. 11. Estates, so that it was unlawful in any cafe to disobey or resist his personal Commands, if they were not directly contrary to the Law of God; as may appear by Dr. Harsnet, then Bishop ofChichefter, his Sermon upon this Text, Give unto Caesar the things that are Gesar'j; wherein he maintained, 'Thatall the Subjects Goods and Money were Caesar's, that is, the King's, and therefore were not to be denied him if he demanded them for the publick use; which Sermon (though ordered by the Lords and Commons to be burnt by the Hangman) yet was so grateful to the Court, that he was so far from being out of Favour for it, that he was, not long after, translated to Norwich, and from thence to the Archbifhop1 .rick of York. So likewise about the beginning of King Charles I. Dr. Manwar

* , ring preached before him; the Substance of whose Sermon was somewhat higher

P. H. C. p. than the former, (viz..) That the King was not bound by the Laws of the Land, not to tos- imposeTaxes or Subsidies without the Consent of Parliament, and that when they were so

imposed, the SubjeEls were obliged in Conscience, and upon pain of Damnation, to pay them; which if theyrefused to do, they were guilty of Disloyalty and Rebellion. For which Sermon he was impeach'd by the Commons in Parliament 4 Car. I. and thereupon sentenced by the House of Lords, to be disabled to hold or receive any Ecclesiastical Living, or Secular Office whatever, and also to be imprisoned and fined a Thousand Pounds. Notwithstanding all which, we find him presently Hid. 635. after the Parliament was dissolved, not only at liberty, but also presented by the King to a rich Benefice in Essex, and not long after made Bishop of St. David's.So likewise one Dr. Sibthorp about the same time preached an Assize-Sermon at Northamptun, on Rom. 13.7. wherein he maintained much the like Doctrines, as, That it was the King akne that made the Laws, and thatnothing could excuse from an

1 aEiive

afiive Obedience to his Commands, but -what is against the Laiu of God and Nature : V"1* Archbp. And thatKings had Power to lay Pole-Money upon their SubjeEls Heads. But this much I have read, that this Sermon was licensed by Dr. Laud> then Bishop of & » St. David's, because Archbishop Abbot had refused to do it as contrary to Law, ■ for which he was very .much frowned upon at Court; and it is supposed to have been one of the main Causes of his Suspension from his Arch-Episcopal Jurisdiction, which not long after happened. But as for thisSibthorp, though he lived long after, (even 'till the King's Return) yet being (as Archbishop Abbot describes him) a Man of but small Parts or Learning, I cannot learn that he was ever preferr'd higher than the Parsonage ofBrackley, and another in Northamptonjhiret whose Name 1 have forgot.

But I find a new Doctrine broach'd by some modern Bishops and Divines about the middle of the Reign of KingJames the First, That Monarchy was of Divine Right, or Institution at least ; so that any other Government was scarce warrantable or lawful: And of this new Sect we must more especially take notice of Sir R. F. who hath written, several Treatises to prove this Doctrine, and which is worse, 'That all Monarchs being absolute by DivineInstitution, they cannot be E r* 3' limited or obliged either by Oaths, Laws or Contrails with their People, fartherthan they themselves Jhall think ft, or consistent with their supposed Prerogatives; of which they only are to be thesole Judges. So that whoever will but consider from the Reign of our four last Kings, what strong Inclinations they had to render themselves absolute, and that few Divines, or Common, or Civil Lawyers were preferr'd inL,'^^' their Reigns to any considerable Place, either in Church or State, who did not -sales King, maintain these new Opinions both on the Bench and in the Pulpit: "sou need Parliament, not wonder when the Stream of Court Preferment ran so strong that way, if so Prerogative. many were carried away with it; since it was but to expose themselves to certain Misery, if not to utter Ruin, to oppose it. All who offered by speaking or writing to maintain the contrary, being branded with the odious Names of Puritans, Commonwealths-men, Whigs, &c. some of whom you may remember were not long since imprisoned, fined, nay, whip'd for so doing. So that it was no wonder if there were but very few to be found who durst with so great hazard speak what they thought nor could any thing, but the imminent Danger upon our Laws,; Religion and Properties, proceeding from the King's illegal Practices, have opened the Eyes of a great many Noblemen, Gentlemen and Clergy, who, contrary to the Opinions so much lately in vogue, did generoufly venture both their Lives and Estates, to join their Arms with the Prince of Orange against the King's unjust and violent Proceedings. . *

M. I do not doubt, notwithstanding all you have said, to prove before I have done, these Doctrines of Non-Resistance, and of the Divine Institution of Monarchy, to be most consonant to the Word of God, and to the Doctrine of the Primitive Church, and also to that of our Reformed Church of England. Nor were those Divines you mention in King James the First's Time, the Authors or . Inventers of these Doctrines which were publickly received, and decreed by both Houses of that Convocation which began the first Year of King James, and * continued 'till the Yearidio, as appears by divers Manuscript Copies of the Acts or Decrees of this Convocation, the Original of which was lately in the Library founded by Dr. Cousins, late Bishop os Durham, besides a very *fair Copy, * Tfc" is since now to be seen in the AVchbifhop's Library at Lambeth : Which if you please t0^'^"^fperuse, you may be quickly satisfied, that the Church of England (long before Cfrstfever Sir R. F. writ those Treatises you mention) held that Civil Power was &s cenvogiven by God to Adam and Noah, and their Descendants ,• as also that absolute cation-Book. Subjection and Obedience was due to all Sovereign Powers, without any Resistance; as claiming under those Original Charters: These Doctrines being there fully and plainly laid down and asserted, as the Doctrines of our Church. So that you deal very unjustly with the Memory of those Divines, as also of Sir R. F. to make them the first Broachers of it; whereas you may find that it was the Opinion of the whole Convocation, for many Years before ever those Divines, or that Gentleman began to preach, or write upon this Subject. Nor were these the only Men who maintained these Principles ,• but Archbishop TJJher, and Bishop Sanderson (whom I suppose you will not reckon among your flattering Court Bishops) have as learnedly and fully asserted those Doctrines, you so much condemn, as any of that Party you find fault with, and have very well

proved

proved all Resistance of the Supreme Powers to be unlawful, not only in absolute but limited Monarchies. Of the Truth of which you may sufficiently satisfy yourself, if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bisliops, (viz.) The Lord Primate U/her s Power of the Prince, and Obedience of the Subject, and the Bishop of Lincoln's Preface before it; as also the said Bishop's Treatise deJuramemo, written whilst he was Doctor of the Chair in Oxford.

F. I must beg your pardon, Sir, if I have never yet seen or heard of that Convocation Book you mention, much less of the Opinions therein contained; since there is no mention made of their Proceedings, in any History or Record of those Times either Ecclesiastical or Civil, as I know of But this much I am certain of; that these Determinations or Decrees you mention, (call them which you please) never received the Royal Assent", much less the Confirmation of the King and Parliament, one of which (if not both) is certainly requisite to make any Opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church ofEngland, otherwise the Canons made in 1640 would oblige us in Conscience, tho' they stand at this daycondemned by Act Of Parliament: So that however, even according to your own Principles, you cannot urge this Book as the • Authoritative Doctrine of the Church of England, unless their Determinations had received the Royal Assent; which you yourself do not affirm they had} for you very well know that, as in Civil Laws, no Bill is any more than waste Parchment if once the King had refused to give his Royal Assent to it, so likewise in Spiritual or Ecclesiastical Matters, I think no Decrees or Determinations of Convocations are to be received, as binding either in points of Faith or Manners by us Lay-men, till they have received the Confirmation of the King, and the two Houses of Parliament: Or otherwise the Consequence would be, that if the King, who hath the Nomination of all the Bishopricks and Deaneries, as also of most of the great Prebendaries in England, of which the Convocation chiefly consists, should nominate such Men into those Places, which would agree with him to alter the present establifh'd Reformed Religion and Government* and to bring in Popery or Arbitrary Power, the whole Kingdom would be obliged in Conscience to embrace it, or at least to submit without any contradiction to those Canons the King and Convocation should thus agree to make; which of how fatal a Consequence it might prove to the Reformed Religion iti this Kingdom, this King's Choice of Bisliops and Deans, such as he thought most fit for his turn, would have taught us when it had been too late.

M. You very much mistake me, Sir, if you believe that I urge the Authority of this Book to you, as containing any Ecclesiastical Canons, which I grant must have the Royal Assent ,• but whether that of the two Houses of Parliament, I very much question; since the King without the Parliament is Head of the Church, and divers Canons made under Queen Elizabeth, and King James, are good in Law at this day, tho' they were never confirmed by Parliament. But I only urge the Authority of this Book to you, to let you fee that these Doctrines are more Ancient than the time you prescribe; and also that the major part of the Bisliops, and Clergy of the Church of England, held these Doctrines which you so much condemn, long before those Court Bishops or Divines you mention, medled with this Controversy; and I suppose we may as well quote such a Corfvocation Book, as a Testimony of their Sense upon these Subjects, as we do the French, Helvetian, or any other Protestant Churches Confessions of Faith, drawn up and passed in Synod of their Divines, tho' without any Confirmation of the Civil Power.

F. If you urge this Convocation Book only as a Testimony, and not Authority, I shall not contend any farther about it: But then let me* tell you, that if the Canons or Decrees of a Convocation, tho' never so much confirmed by King and Parliament, do no farther oblige in Conscience, than as they are agreeable to the Doctrine of the Holy Scriptures; sure their Determinations without any such Authority,, can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reverence fer the Judgments of so many Learned Men; yet granting those Doctrines you mention to be contained in this Book, I think notwithstanding, that we may justly examine them according to the Rules of Reason, and express Testimonies of Scripture, by either ot which, when I fee you can convince me of the falshood of mv Tenets, I

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ihall count myself happy to be better informed. But as for those Treatises of Bishop Ujfje;; and BisliopSanderson, which you now mention'd, I must needs confess they are learnedly and elaborately written: And tho' I am against Rebellion as .much as any Man, and do believe that Subjects xa&y too often be guilty of it; yet am I not ,there/ore convinced, T'bdt' it is absolutely unlawful in all cdfis what* soevereven in the mostAbsolute and Arbitrary sort of'Civil Government, for tlii People, when violently and' intolerably opprest, to takeup Arms and resist such Unjust violence, or to join with any Foreign Prince, 'who will be  generous as to takeupon him their Deliverance. So that though I freely acknowledge that those good Bifliops you mention were very .Pious and learned Merjj, and that I bear great Reverence to their Memories ;.yet doth it not. therefore follow, that I must own them to be infallible, or as great Politicians as they were Learned Divines; or that they understood the Laws of England, as well as they did pe Fathers. And perhaps there may, be a great deal more" said on theirCBehal fs than Can be for divers others, who haye since written andpreach'd so mucFfupon those 'Subjects; for if you please to consider the Times of their writing those Treatises^ you will find them written ah$u$ the beginning or middle of the late Civil Wars, which they suppos'd to be bfgqn and carried on contrary to afy.Law and Justice, under the pretended AuthoKi&r ps the. two Houses' of Parh^pjent against King Charles the First; and trjqrefore it is. ,np, wonder "if they; thought themselves pbligep! to write very high for the Perogatij'es and Rights of Princes; and;the'absolute Obedience of Subjects, when they, law even the King s just and lawful Perogatives in danger to betaken from fawn by force. And altho* they may perhaps stretch several of these Points too far, yet this may be very excusable; since it is a hard matter to write sp exactly against any Error, as not to fall in to the contrary extream, which ne-' verthelefs may sometimes prove useful enough: As those who'would set a stick freight, must bend it to the. other side. :. And so these Doctrines which might then- be seasonable, whilst the People carried on their Animosities against the King, farther than in Justice they ougjh.t? have hot now the fame reason and cogency, when this King 'hath so manifestly endeavoured to pull up the very Foundations both of our Religion and Government. .So that J am persuaded, could those good Bifliops ha^ve lived by the course of Nature to pur Times, and have seen the ill; and fatal use hath been made of those Doctrines by those in Power, they would either absolutely h^ve renounced them, or at least have been very cautious how they publifli'd such doubtful Opinions to the World.

M. I must beg your pardon, Sir, if I am not of your Opinion, for I look upon the absolute subjection of the- Subjects to the higher Or supreme Powers, to be a thing of such constant and eternal Obligation, that no change of Times or Circumstances can ever dispense with us in, or discharge us from it; and I am so far firora believing that those good Bifliops would ever'haye recanted their Opinions in this particular, that had they lived until this time/1 think they could not (without the Imputation of Time-servers) have'forboTn publickly to declare and maintain them: For sure we must not deny or lay aside true Principles, because of some inconveniencies pr hardships that may. thereby happen to our Religion, Persons, or Civil Liberties, since that were the ready way to givC a Licence to the rankest Rebellion, and the highest disobedience to the Supreme Powers; sot so the Primitive Christians might have claimed a right to rebel against the Heathen Emperors, pretending they were not bound to submit themselves unto them, because they persecuted Gods Church, and put the Christians to death for ho other reason than that they were such. Whereas, we may plainly fee St. Peter and St. Pflul teach us another Lesson, and command absolute subjection without reserve to the higher Powers, which were then the tyrannical persecuting Emperors; and that the Primitive Christians who immediately followed the Apostles, understood them in this sense; and altho'they had sufficient'strength, yet thought it unlawful to resist those Heathen Emperors under which they lived. I refer you' to that vast treasure of Quotations put of the Fathers and Ancient Church Historians, collected with such Learning and Industry by the Lord Primate Usher in the second Treatise. .

F. It is not my intention, Sir, at present, to fall into a severe examination of so many Texts of Scripture, and Quotations of Fathers, and other Authors, as are made use of by those Learned Alen you lately mentioned, which requiremore consideration than our ihort time wi)l now afford; therefore the best Method I can propose to you, for the true stating and understanding this noble Controversy, ■wcvc.first to look into the Natural state os Mankind after' the fall of Adam; and enquire, First, If God has appointed any_kirid of Government by JDivineInstitution before another. Secondly, If he has not; how far Civil Power may be look'd upon as from God, and in what fense as derived from the People. 'Thirdly, Whe^tber Resistance by the Subjects in some Cafe's be. incompatible and absolutely de- . structive to all Civil Government whatsoever.'". Fourthly^ Whether such Resistance be absolutely contrary to the Doctrine of Christ contains ih the Scriptures, and that > of the Primitive Church pursuant thereunto. . Fifthly, Mtyhethet such Resistance becontrary to the Constitution of this Government, and the express Laws of the Land. Sixthly, Whether what has been done by the Prince :o£ Orange,"and those' of th£-' Nobility, Gentry, &c. in pursuance of these Principle?, has been'done accord-1;: ing to the Law of Nature; the Scriptures, and Ancient Constitutions qjf><ra?'J Kingdom; which material Points if we Can once fettle, and discover where1 the Truth lies, it will prove the clearest Comment and best Interpretation of all thbse places of Scripture, and Quotations of'Fathers, and other Authors which are cited by Divines or other .Writers, for "the Doctrines Of the Divine Institiitioh cA. Monarchy, and the absolute' Subjection of Subjects Without any Resistance: ;ftit: when we have once difeover'd what the j&jffi of Nature or right Reason dictirc^f; I think we may rest satissy'd that that y iHetriic Sense of the Scripture: God not having given us any Precept or ^rrtfmand, in Moral, or Practical things, that can be contrary to the XaV,bf Nature cr Reason; or incompatible'with' the happiness and welfare of Mankind in this Life; as the reveal'd Will of God does chiefly regard tjhat whjch is to come1/" '.Rfn' 1 . T^x «-,'• *Jo*i


M I do very well approve of your Proposal; and therefore pray give me first your Opinion on those Heads, that I may fee how far I may agree with yon, and wherein I must differ from you; for I do aflure you my Indention is notco argue with you meerly for disputes siike, but that we mayebrrect the ErrifcHi' of each others Understanding, and discover^ if it be possible, \vnere-the Truth lies: Therefbre pray, Sir, begin first with the Natural states of Mankind ;init remember 1 to do it like a. Christian, and one that believes that we are all derived from one first Parent, and. that we did not at first spring up out of the Earth like Mushrooms, or as the Men. whom Ow'^ feigns to have been produe'd of the Dragons Teeth Cadmm is feign'd to have sown, who, as soon,as they sprung out of the Earth, immediately fell a fighting and killing each othen

F. I thank you, Sir, for your honest and kind Advice; and shall therefore in the first place supposes that the.Necessity as well as Being of all Civil Government proceeded from the Fall oi .Adam^since if that had riot been, we had still liv'd, as the Poets fancy Men did under the Golden Age; without any need of Kings or Commonwealths to make Laws against Oppression, Theft, Adultery, Murder, and those other Injuries which Men are now too apt in this lapsed corrupt State to commit against each Other; much less would there have been any need of Judges or Executioners, either to sentence or punish Offenders; for if- Man had continued as free from' Sin as he was in Paradise, there could have been no need of a Supreme Coercive'Power, since every Man would have performed hisDuty towards God and his Neighbour without any punishment or constraint. So that all the Authority that can be supposed could have been then necessary for the good and happiness of Mankind, would have been no more than Directive, as that of the Husband over his Wife; or Imperative, as that of Parents over their Children; the former of which would not have been an Absolute Coercive Power neither, but rather such a Power as his Understanding then had over the inferiour Faculties of bis Soul, join'd with .a voluntary Submissionof her Will to his; the Coercive Power of the Husband, and his more extensive Rule over her, being conferr'd by God on Adam, and in him on all his Posterity after the Fall, for the regulating and restraining the unreasonable Desires and Passions of the Woman, which then began to exert and shew themselves in her: And as for paternal Authority, that would have been so far from being Coercive, that Children having no Inclination to disorder, either in their Wills, Appetites or Passions, there would have been so little need of Punishments, that they would not have required so much as Reproof or Correction; God having first planted the Laws of Nature or Reason in every Man's Breast free from rebellious Motions Against it; so that Children then could have had no more to do, than to ray their Parents all that Gratitude, Duty and



Obedience which was due to them as the subordinate Causes of their Being, which could only consist in performing those indifferent, things, which they then would have had occasion to command themsince Mankind being immortal, and the Earth bringing forth of. it self all Necessaries for Human Life, there could have been no occasion of attending and relieving their Parents, when sick, old, or decrepid, and unable to keep themselves; and so likewise upon the same grounds all other Men would have been equal by Nature, in respect of any Civil Difference; for when there was no necessity of Men's Service, there would have been no Distinction between Master and Servant. ,

But after the Fall the State of Mankind was. altered, and Self-love, and the Desire of Self-preservation, grew so strong and exorbitant above all natural Equity^ that the inordinate Passions of Men blinding their Reasons, they began to think they had a Right not only to the Necessaries of Life, but to whatever their unruly Appetites desired, or that they thought they could make themselves Masters of. To remedy which Inconveniencies, I suppose, the Fathers and Masters of Families, and other Freemen (in whom alone then resided that little Government that then was in the World) were forced, after some time, to agree upon one or more Men, into whose hands they might resign all their particular Powers, and to make Laws for the due governing and restraining those disorderly Appetites and Passions, and also endowing them with a sufficient Authority to put them in execution. But which of the Governments now extant, or that have been formerly, were prior in Nature, I think cannot well be known ,• whether it was a Monarchy, or au Aristocracy, consisting of all the Heads or Fathers of Families, or Freemen, is not material, since the S?S. are silent in it: But it being sufficient to suppose, that it was at first begun by the Persuasion or Mediation of some one or more wise and virtuous Persons, and was consented to by. the; whole Number, consisting of? many Families, who were sensible of those great inconveniencies and Mischiefs they lay under for want of Civil Government. But be it which way it will, 'tis most certain that it was principally intended by God for the Good and Preservation of the Governed, and not for theGreatness or Advantage of the Person or Persons appointed to govern; since God designed all Civil Government for the restraining of Man's inordinate Passions and Lusts after the Fall, and procuring, by sufficient Rewards and Punishments, that Peace and Happiness, which could now no longer be obtained by Men's natural Inclinations to that which was equitable and honest. And besides, it is absolutely impossible to suppose, that any great Number of People, not pressed by the Invasion of a powerful Enemy from abroad (which could not be supposed in this early Age of the World) would ever be brought to consent to put themselves under the absolute Power of others, but for their own greater Good and Preservation, or to' part with their natural Liberty, without advantaging themselves at all by the Change, . » • , >

M. I will not'take upon me to assert after what manner Mankind would have been governed, in case our first Parents had continued in their primitive State of lnnbcency. But this much I think I may boldly affirm in opposition to what you have already said, that Civil Government, after the Fall, was not alike in all the Fathers and Masters of Families; but that Adam alone was by God endued with' . . it, as the great Father and Monarch of Mankind: So that not only Civil Power, R.f. A. MM. ingenere, but in specie, (viz.) Monarchical, was immediately after the Creations. *54i *Jf« conferred by God upon him. And Adamwns Monarch of the whole World, even before he had any Subjects. .

F. Sir, not to interrupt you, it seems somewhat hard to conceive how Adam could be a Father before he had Children, or a Monarch before he had Subjects.

As. If you please to consider it, you will find no Absurdity at all in this Assertion. For though I confess there couid be no actual Government without Sub- ibid, jects, nor Fatherhood without Sons'; yet by the Right of Nature it was due to Adam to be Governour of the World, when as yet he had neither Sons nor Subjects: So tho* not in Act, yet at least in Habit, or in Potentia (as they fay in the Schools) Adam was a King, and a Father, from his Creation, and even, in the State of Innocency, he had been Governour over his Wife and Children. For the Integrity or Excellency of the Subject doth not take away the Order or Eminency of the Governour: For Eve was subject to Adam before he sinned; and the Angels, who are ofa most pure Nature, and cannot sin, are yet Subjectsto God, and perform all his Commands, Which will serve to confute what you fay in dero

C gation

nation of Civil Government, or Power, that it was introduc'd by Sin, or the Fall of Man. Government, I grant, as to coactive Power, was not till after Sin, because Coaction supposcth some Disorder, which was not in the State of Innocency; but as for directive Government, the State-of Humane Nature requires it; since Civil Society cannot be imagined without a Power of Government. For altho' as long as Men continued in the State of Innocency, they might not need the Direction of Adam in those things that were necessarily and morally to be done; yet things indifferent, that depended mecrly on their Free-will, might well be directed by Adams sole Command.

F. Pray, Sir, give me leave to settle this Point between us, before you proceed farther; and I doubt not, when you better consider what I fay, you will not think we have any just Occasion to differ. So far then you and I are agreed, that even before the Fall Adam was superior over his Wife and Children, and that they owed him not only Gratitude and Respect as a Parent, but also Obedience in all indifferent things: Yet I deny that this Power or Superiority of Adam over his Wife and Children was at all a Defpotical or Civil Power, but meeriy Oeconomical, for the Good and Convenience of Adam, and the well ordering and Preservation of his Family; which you will easily grant, if you please to confides what are the essential Differences of Civil Government from Oeconortiical. Now-the essential Properties of Civil Government consist in preserving and defending''the Subjects, both in War and Peace, from foreign Enemies, and intestine'Injuries, and Invasions of Men's Persons or Properties, and in revenging and-pumfhiiig'srtr' such Transgressions by Death, or other Punishments, and consequently in makingLaws concerning Property, and for restraining all Robberies, Murders,' and'the like. Now, in the State of Innocency, there could be no need'of any of these essential Functions of Civil Power: for yourself must grant, shall Man was then not apt to sin, and also immortal; so that all Laws about Peace or War, Punishments of Offences, publick Judgments concerning Meum and Twim, and all Injuries, were absolutely needless, and had never been in Nature, if Adam had not finned; and then how you can call this Authority, or Superiority (which I grant Adam had over his Wise and Children) Civil Power, I can by no means understand.

But I do utterly deny, that even after the Fall Adam was a Monarch, or Sole and Absolute Lord over the whole Earth, and all Creatures therein»contained ,• and desire you to give me such plain Proofs of it, either from Reason or Scripture, that I need no more doubt of it, than your self.

M. -I shall, first of all, give you an Arg.iment drawn from the Reason of the things; and in the next place, the Authority of Scripture, for my Opinion -"And first, I think it'is evident, that every Man that is born is so far from being free, that by his very Birth he becomes a Subject of him that begets, him; and even Grottm himself acknowledges, that Generatione Jm acquirittir in Liberos. And indeed the Act of Begetting being that which makes a Man a Father, his Right of a Father over his Children can naturally arise from nothing else. And the fame Author in another place hath these Words upon the Fourth Commandment: Parentum nomine, qui naturales funtMagistrates, etiam alios Rector es par eft intelligi, quorum autlmitas Societatem htmianam continet.- And if Patents be natural Magistrates, Children must needs be born natural Subjects. So that not only Adam, but the succeeding Patriarchs had, by Right of Fatherhood, Regal Authority over their Children, as may appear by divers Testimonies out of Scripture; and therefore it is very reasonable, that all Fathers should have a Power over the Lives of their Children, since it is to them that they owe their Life, Being and Education: And I think that even the Power, which God himself exerciscth over Mankind!, is by Right of Fatherhood.

F. Before you come to Sctipture, give me leave, in the first place, to'examine your first Argument, which you deduced from the Law of Nature, or Reason: For I doubt, if you please better to consider of it, you will find, that so light and transitory an Action, as that of Generation, cannot give any Man an absolute Property and Dominion ovet the Person and Life of those whom he begets ; since few Men do principally intend the giving of a Being toanother, Jo much as they do their own Pleasure, in that Action. Nor do we owe our Lives, properly speaking, 'ro our Parents, but to God, who is the true and original Cause of 'oiir Being ;' tho' it is true he makes use of our Parents as physical, tho* not as moral Means' ©^'Instruments ments for that end; since it doth not lie in their power to hinder the generating of Children, if they perform the Acts necessary thereunto. So that both the Antecedent and the Consequent are altogether false, viz,. That Parents give their Children Life and Being, and that therefore they have an absolute Power over their Lives and Persons: Which, if it were true, would give the Mother an equal Title to the Lives of the Children, as the Father j seeing they owe their Lives as much to the one as the other: Which Power in the Mother I am sure you will not admit of. But as for what you fay concerning the Power of Fathers, arising from Education; tho', I confess, that is a much better Title than the other; yet doth it not follow, that, because by reason of my Parents Care of me, before I was able to help my self, I owe my Preservation and Well-being to them, that therefore they are to be perpetual and absolute Lords over my Person and Life; since, by thus breeding me up, they only performed that Duty and Trust, which God had laid upon them, for the Good and Preservation of Mankind, and which they could not, without committing a Sin, either refuse or decline; and therefore their Authority or Power over my Person, being only for my Well-being, can extend no farther than whilst I am not of Years of Discretion to understand the true Means of my own Good and Preservation: And tho'I grant, that I am bound in Gratitude to return this Care and Kindness by all Acts of Duty and Piety towards them, as long as I live,• yet doth it not therefore follow, that they are Masters of my Life, and of all that I have j since this were to take away more than they themselves ever gave. And tho' I Ihould grant you, that even the Power, which God himself exerciseth over Mankind, is by Right of Fatherhood or Creation; yet this Fatherhood is such, as utterly excludes all Pretence of Title 2". T. G. c. 5. in earthly Parents : For he is our King, because he is indeed the Maker of us all, p- 69which no natural Parents can pretend to be of their Children. But if you please more closely to consider your own Argument, you will find that it will quite destroy your Hypothesis. For if all Fathers have an absolute Power over theic Children by Generation, then Adam could only have Power over his own Children which he begat, and none at all over his Grand-children; since their Fathers, by this Argument of Generation, ought to have had the fame Power over their Children, which Adam had over them, for the fame Reason. So that this Monarchical Power of Adam<, as a Father, could extend no farther than one Generation at the most. 'I ''. .

M. I (hall not further urge this Argument of Generation, since I see you are not satisfied with it; but this much I think I can clearly prove from Scripture, thxtAdam was Lord over the Persons and Lives of his Wife and Children, by virtue of that Command which God gave Eve, Gen 3.16. Unto the Woman he said, I will greatlymultiply thy Sorrow and thy Conception: In sorrow thou Jhalt bring firth Children, and thy Desire stall be to thyHusband, and he shall rule over thee. From which Words it appears, that Adam had not only an absolute Power granted him by God over his Wife, but all the Posterity that should be born of her. For, in the first place, it here seems that Eve was to yield an absolute Subjection to her Husband, who was to rule over her" as her Lord, from these Words, and thy Desire stall be [subject] to thy Husband, (as it is better express'd in the Margin) and he stallrule over thee. And if his Wise was thus to be subject to him, then likewise by a Pa- g.p.p. f. ?I, rity of Reason ill her Children were to be so too j it being a Maxim in the Law of Nature, as well as in the Civil Law, that Partussequitur ventrem: So that if Eve was to bfc absolutely subject to Adam, the Issue by her must be so too; as in the case of a Master os a She-stave, not only the Person of the Woman, but all that are bfejjorten of her, either by her Master or any other Man, are likewise his Servants; otherwise' the Children would be in a better condition than their Mother; for Adam having;no Superior but God, both his Wife and Children must have been alike subject to him. There is likewise another Rule in the Civil Law, st. j. 32. which is a Voice of Nature too, Quicquid ex me &uxore mea nascitur, in po'testate mea est.: And tho' this is true in some sense in all Fathers whatsoever; yet it was so in a* more superlative degree, Where the "Father had no Superior over him but God, as Adam had not. And farther, it seems apparent to me, from the very II. f.20,21. Method that God us'd in creating Mankind, thatAdam's Wise and Children lhould be subject to him: For if Adam and Eve had been created at once, it, could not have been known which of these two had the best Right, to command, and which was to obey. For Adam'sStrength, or Wit alone, would not have

C 2 given

given him any Authority over her; and it might be that Eve was as strong and as wife as he, or at least she might have thought her self so; and if these two had differ'd and fought, nought but the Event could have declared which of them should have been Master.

So when they had Children born between them, the Children cpuld have told as little which of the Parents they should have obey'd, in cafe they had difser'd in their Commands : So that it had been impossible this way that any Government

Ib. f. 22.' could have been in the World. But when God created only one Man, and out 24- of him one Woman was made, sure he had some great Design in this; for no

i Tim. 2.12, other Creature was thus made at twice, but Man. Now St. Paul shews a Reason sot God's acting thus, when he fays, the Woman should Hot teach, nor usurp Authority over the Man, &c. And mark the Reason : ForAdam was created, and then Eve. So that, in the Apostle's Judgment, this was one main Cause why Adam should be superior to his Wise, and all other Husbands to their Wives. And 2 5- in the Corinthians, from the History of the Creation, the fame Apostle deduces twQ other Reasons for the Superiority of the Man over the Woman : For(fays he) the Man

i Cor. ii. Stisnot of'theWoman, but the Woman of the Man ; (that is, Eve was formed out of Adam)

9- neither was the Man created for the Woman, but the Woman for the Man. So that you

fee here is Adam stated in a degree of Superiority over his Wife before the Fall; and immediately after it, God again renew'd Adam's Title, when he told Eve (as

?. z6. I have but now mention'd) thy Desire shall le fubjetl to thy Husband, and he Jhall rule over thee. Now I so far agree with what you at first laid down, that if the Fall had not disorder'd her Faculties, and render'd her apt and prone to disobey her Husband, this Command need not have been given her,; but she would have known her Duty from the Order and End of the Creation, without this explicite positive Command.

- F. You have, Sir, taken a great deal of pains to prove that which I do not at all deny, that as well before as after the Fall, Adam, (and consequently all other Husbands and Fathers) ought to be superior to their Wives and Children, and likewise govern and command them in all things relating to their own Good, and that of the Family, as long as they continue Members of it; nay, that Children, after they are separated from their Fathers Family, still owe their Parents all the Gratitude, Duty, and Respect imaginable: But yet I deny that this Power, which Adam had over Eve, and his Issue by her, and all other Husbands have over their Wives and Children, is a regal despotical Power, or any more than conjugal in respect of his Wise, and paternal in respect of the Children; nor is that filial Reverence and Obedience, which Children yield their Fathers, the fame with that Respect and Duty, which a Wise owes her Husband, or the fame with that servile Subjection, which Slaves owe their Lord and Master j neither is the Duty of a Wife of the fame kind with that which Sons pay their Fathers, or Slaves their. Lords; nor did Sarah, when she called Abraham Lord (who was then Master of a separate Family, and so subject to none) ever suppose that her Husband had the fame Authority over her, as he had over Hagar her Bondwoman, to fell her, or turn her out of dopts at his pleasure. But to make it more apparent to you, that this Power granted to Adam over Eve, was not regal nor despotical, but only conjugal, and for the well ordering of the Family, where some one must command in chier, and the rest obey, to avoid Confusion, will appear, first, if you consider that this Subjection of Eve to Adam was npt enjoind till after the Fall, and is part of God's Judgments denounced against her, for tempting her Husband to eat the forbidden Fruit, and certainly included somewhat more than that Superiority which he had over her by his Creation,, or else God should not have made it any part of the Judgment denoune'd upon her. If this Submission she ow'd to her Husband before the Fall, had been of the fame nature with that Subjection she was to be under after it; which yet I take to be neither servile nor absolute, but only a conjugal Obedience or Submission of her Will to his, in all things relating, to the Government of the Family, and the Carriage of her self; tho' I do not deny but the Husband may sometimes restrain her by force, in case she carries, her self unchastly, or indiscreetly, to the loss of her Reputation, and Prejudice.'of his. Interest, when she will not be directed, or advis'd by his Persuasion, ot' Commands, which before the Fall, when she was in a State of Innocency, there was no need of; since (as your self grant) before the Fall she knew what was her Duty, and performed it without any force or constraint, &c. And therefore that

Text, I

Text,
which you have now quoted out of Genesis, 'thy Desi e stall be [subject]
&
thy Husband, and he stall rule over thee, is not
fairly cited : For, as for-the marginal
Addition, viz..
[fubjeB ]
to thy Husband, it is not warranted froia'. the Hebrew
Original, or Version of the LXX; the Hebrew having
no more than (thy
Desire
stall be to thy Husband) which
the LXX renders «V«fppf^, i.e. the
Conversion or In-*
clination of the Desire, by which some Interpreters understand no more than the.
carnal Appetite. So likewise from the Words [rule, over thee] they
likewise ©b-
serve, that Moses
makes use of the same Hebrew Word,
when he makes mention of
the Sun and Moon ruling the Day and Night, tho5 they do not do it by any Vion
lence, or corporeal Force : So likewise, by this ruling of the Husband, is not to
be understood any absolute, despotick Power* whereby he hath a Right to: dispose
of the Person and Actions of his Wife in all things at his pleasure; but that she
may in many cafes refuse, nay controul his Commands, and resist his Actions, in x
cafe they prove unlawful, or destructive to her self and Children. ...

But that this Argument of St. Paul, of the Husband's Superiority over his Wise, was not granted to Adam alone, but equally extends to all Husbands whatsoever, appears from the very Text it self; or otherwise St. Paul had argu'd' very impertinently of the Duty of aU Wives: And if so, it will follow that every one of Adam's Sons, as soon as he took a Wise, had the like Authority over her, as < Adam had over their Mother: And if over their Wives, then, by your Maxims (of Partfii sequitur ventrem, & quicqwd ex toe & uxore nteanascitur, inpotefiate.mea est) all the Sons of Adam must have had the fame Power over their Children, as their Father had over them. So that the fame Consequence will still follow from these Places of Scripture, and also from your Civil Law Maxims, thatxirhcr Adam had no Civil or Despotick Power over his Wise and Children; or else, if he had, that every one of his Sons, when married and separated from his Father's Family, had the fame, and consequently there were as many Princes as distinct Masters of Families; and then what would become ofAdamsMonarchy,I give you leave to judge*

M I must beg your Pardon, if I am not satisfied with your Answer to my last Argument: For | am still of opinion, notwithstanding what you have said, that £« was to yield an absolute Subjection to her Husband, from that Place already cited, "That her (viz. Eve's) Desire (i.e. Will) shouldbe fitbjeEi to her Huf* band, &c. To which you answer, that this Subjection of Eve to Adam was not the fame which Sons owe their Fathers, or Slaves to their Lords; and that Eve owed Adam not a filial, or servile, but a conjugal Subjection. For I would fain know the difference, in the State of Nature, betweeb one and the other: Fot B.P.P. (.-2h if you please to compare that Place of Genesis, I but now quoted, with that other a8, where God gives Cain Power over Abel, his younger Brother; you will find, them the fame in Words, as also in Sense. For in this God likewise tells Cain, Thiai untothee stall his. Desire be fu&jeSl^ and thou stah rule over , him. And sure God could Gw, 4. 7. not intend by these Words, that Abel should yield a conjugal, but a filial Sub-* jectiojr to his elder Brother; and these Words axe not capable of two Senses, but must be understood;alike in both Places (i. e.) That the,Desire (which is a fe qulty of the Soul, and that the most active too) wasto be subject,.-and theBody> and aUthe Powers of it, were to be over-ruled by him; which is as full and absolute a Subjection as can be exprefs'd in Words. And whereas you fay, that these Words Wese not spoken till after the Fall, andthence seem to infer, that Eve did not ow&.Adam so much as a conjugal Subjection before that; St. Paul hath given you a* Answer to that already, which it is . needless to. ^repeat; and therefore, upon the whole matter, I think your Distinction of a conjugal Subjection different from a filial or. fertile 08$ will signify nothing, -u .

JSI doubt not» Sir* bus I shall be able to make.good this Distinction of a servile and a filial-Obedience; and in order to it, shall reply tc* the Consequences you have made, for Eve's absolute Subjection to Adam, from the like Expression useel by God to C*w concerning his ruling over his Brother Abel, as is us'd here to Ewe concerning her Subjection to hex Husband; and that because the Subjection of <dhl was absolute, that therefbre her Subjection must be so too- I must erave your Pardon is I deny you Assumption; for I think Lam able to prove, that neither Ate/f nor any other younger Brother, was, or is obliged, by virtue of this Text, to yield an absolute Obedience to his elder Brother, in the State of Nature, or that he is therefore his Lord and Master- Nor can I see any Absurdity, bat that the fame Words might be spoken to sevetal Persons, yet in different



Senses, which, according to the Nature of the Persons tc whom they were spoken,' might have different Effects. As here these Words, when spoken to Eve, enjoin a conjugal Submission of Eve's Will to Adam as her Husband;but wlien spoken to Abel, they may signisie a fraternal Submission of Abel's Will to Cains, as the elder, and perhaps the wiser of the two, but without giving any absolute or despotick Power over either.

M. I cannot be yet satisfied with your Reply; for merhinks this is but to trifle with God's Word, when he toldCain, thy Brother's desire ft all be subject to thee, that is, (Jay you) Thou shalt rule wer him only as far as Ikthinks fit } er if thou hast the knack to wheedle or persuade him. Was not this a mighty Matter for God Almighty to appear to Cain about ? An excellent ar.d rational way to appease his Wrath towards his Brother ? Whereas God here plainly enjoineth a Subjec-' tion from Abel to his elder Brother; and if so, by vertue of the fame Words, a like Subjection ofEvetoAdam; and then it will likewise follow, that as the Streams are of the fame Nature with the Fountain, the Subjection of all her Posterity will likewise be included in hers, which I have sufficiently proved already, had you not mistaken the true Sense of those two Maxims I laid down. For first, if Partm sequiturventrem, and the Mother be a Subject, as Eve was, all her Posterity must be so to all Generations. And if Quicquidex me & uxore mea nascitur, in fotejiate mea est, be true, then Adam's Grand-children, and great Grand-children, deriving themselves from him and Eve, must be likewise under Adam's Power. Nor can I see how his Sons, or Gran^-children, by setting up separate Families, could ever discharge themselves from this absolute Subjectioh toAdam, since they could never have quitted his Family without his Consent; and when they did quit it, unless he pleased to manumit them, they, their Wives and Children were still as much subject as they were before. Since I do not fee, if they were once'Subjects to him, how any thing but his express Will and Consent could ever discharge them from it. Nor was that Authority ^which every one of these Sons of Adam might exercise over their Wives and Children, though they were not freed from the Power of their Father) any more inconsistent with that Subjection and Obedience they owed him, as their Prince, than in an absolute Monarchy, the Power of Fathers and Husbands over their Wives and Children, as to the things relating to the well-ordering and governing their Families, is inconsistent with that supreme predominant Power which the Monarch hath over the Father himself, and all his Family; or than the Power of a Master of a Family, in the Isle of Barbadoes, over his Slaves that are married, and have Children, is inconsistent ; with that Marital and Paternal Power which such a Slave may exercise over his Wise and Children within his own Family, tho' still subordinate to the WiiJ of the Master, who may forbid any such Slaves, or their Children to marry, but where he hath a mind they should; and may likewise hinder them from correcting or putting to Death their Wives and Children without his Consent. Though such Subjects in an absolute Monarchy, or Slaves in a Plantation, 'cannot have, or enjoy any Property in Lands or Goods but at the Monarch's, or Master's Will. And so likewise at first none of these Sons of Adam, though they set up distinctFamilies from their Fathers, could enjoy, or enclose any part of-the Earth withr out his Grant or Assignment, to whom the whole was given by God before.*©;*. * It seems likewise to be a great Mistake, when you at first ^affirmed, that-tall; Civil Government was ordained by God, for the Benefit and Advantage of the-Sttl^jeEls, rather than the Governours. Whereas from the first and nSost NatuMj1 Government it appears, that Children, who were the; Subjects, wefe ordained:as much for the benefit and help of their Parents, who were the first- Monarchsj ^as J F. A. MM their Parents for them. From all which we may-draw these Conchiliofk: h Firstj That from Gen. 3. v. 6. already cited, we have the Original Charters

Government, and the Fountain of all Civil Power derived from Adam as thet Father of all Mankind. So that not only the Constitution of'Power jn general,' but the special Limitation of it to one kind, (viz..) Monarchy, and the Determination of it to the individual Person of Adam, are all Ordinances of God. Neither had Eve, or her Children, any Right to limit Adam's Power, or join thenv-C selves with him in the Government. Now if this Supreme Power was settled, and founded by God himself in Fatherhood, how is it possible for the People tohave any Right to alter, or dispose of it otherwise ? it being God's Ordinancethat this Supremacy should be unlimited in Adam, and as large as any Acts of

his his Will. So that he was not only a Father, but a King, and absolute Lord F. P. 0. A, over his Family; a Son, a Subject, and. a Servant, or Slave, beingone and the fame thing at first; the Father having Power to dispose of or sell his Children or Servants at his pleasure: And tho'perhaps he might deal too severely or cruelly in so doing, yet there was none above him, except God, in the State of Nature, who could call him to an account, much less resist or punisli him for so doing.

F, 'You have, Sir, made a very long Speech upon the Monarchical Power of Adam, which you have made of so large an extent, that this imaginary Kingship must swallow up all the other more dear and tender Relations both of a Husband, and of'a Father- So that were I not satisfied you were a very good natured Man, arid spoke more the Sense of others than from your own natural Inclinations, I should be apt to believes that if you had sufficient Power, you would prove as great a Tyranrover'your Wise, Children, and all that should be under your Command/as,' such Arbitrary Tenets would give you leave : But since, I hope, your Error lies rather in your Understanding, than in your Nature; I shall make bold to Ihew you the Mistakes you have committed in those Principles you here lay do\tfn. I might first begin with the Place of Scripture you farther insist upon, for Evesabsolute Subjection to Adam from the like Expression used by God to Cain concerning his ruling over his BrotherAbel, as is us'd here to Eve : And though you are pleased to think my Exposition of this Place so ridiculous, yet I dOiibrnot bur to be able to'prove, when I come to speak of this pretended Divine Authority of elder Brothers ovet the younger, that this Place cannot be:idnderstood in any such Sense, according to the best Interpretation that both the Reason of the Subjects and the Sense the best Commentators put upon it can* allow: But I shall defer this 'till we corrie,' to discourse concerning the Successors ot Adam in this Monarchical Power yoti suppose.. And therefore I shall only at present pursue that absolute Power, which you suppose Adam to have had, not only overEve, but all her Descendants. For indeed your Argument of Eve's, and consequently all her Children's absolute Subjection to Adam, depends upon a very false Supposition.''Since if the Subjection of Eve to Adam, and of all Wives to their Husbands is* not servile1 Or absolute, neither can that of the Children be so; since, according to your 'own Simile, if the Streams are of the fame Nature of the Fountain; they can never rise higher than it: And tho't grant, Adam might in some cases have put his Wife or Children toJ Death, for'any enormous Crime against the,Law of Nature; yet I allow him that Power, not as a Husband or Father,1 but bhiy as a Lord or Master of a separate Family, who having no Superior in the State of Nature, I'grant, is endued by, God with this Prerogative, for the Good of his Family,and Preservation of Mankind,lest such horrid Crimes, so much to its prejudice, should pass unpunished. But that the Husband, or Father, doth not act thus in either of these two Capacities, I can easily prove.

First, Because the Scripture tells us the Husband and Wise are one Flesh, Gen. z. 24. and that no Man ever yet hated his own Flesh; so that it is impossible for, a EPbes' f> 29~ Husband to put his Wise to Death, ''till by the Greatness of her Crimes she be- 30, Cctthesno longer worthy of that tendcf Affection he ought to bear her. Then asto trie Father, he, as a Fathep, ought not'to desire to put his Son to Death, whose "Being he hath been the ciulsc of, and Who is principally made put of his,own Substance, and on whom he hath bestowed Nourishment-and Education for so many Years, until he finds that instead of a Son he proves ah Enemy to his Family; or hath so laid wait' against his Life, that as long as he lives he can- • not be fase; or else commits some of those heinous Crimes, which, by the Laws of God and Nature, do justly deserve'no less Punishment than Death; in {hovt, when he ceases any longer to deserve the Name of a Son.

Yet this Authority holds no longer than whilst the Son remains part of his Father's Family, and so subject to his Power: And this I take to be the reason why we do not read, that Adam took any notice of Cains murdering his Brother, because he was before freed from his Power, by setting up another Family, which certainly had beenAdams Duty to have done, had he been then under his Jurisdiction j Murder being as great a Crime before the Flood as after, though the Punishment of it by Death were' not positively enjoin'd by God 'till thep. Gen ^ ^ But I shall prove this point mOre particularly by and by,.as also that Adams Children might enjoy, or enclose some part of the Earth without any Grant or

Assent

Alsent from Adam, to whom you suppose (though without any Proof as yet) that the whole Earth was given by God.

To conclude, I doubt you mistook me when you fay, I at first affirmed, that all Civil Government was ordained by God, for the Benefit of Advantage of the Subjects, rather than that of the Governours ; and therefore you undertake to shew me, that in the first and most natural Government, viz,, that of a Family, Children, who areSubjects in the State of Nature, are ordained as much for the Benefit and Help of their Parents, who are theirPrinces or Masters, as their Parents for them; in which Assertion you fall into more than one Mistake; for I do not assert, that in Civil Government the Benefit or Advantage of the Subject is only to be considered : For I shall easily grant, that Princes may very well challenge a very great share in the Honour and other Advantages that may be reaped by their Government; and yet for all that, when the Happiness and Preservation of the 'Subjects is incompatible with that of the Prince, the former is to be preferred; * Tie oWg. and Bishop Sanderson is of this Opinion, when he tells us in his Lectures * t>e cotisc. Pm/. yuramento, "That the end of Civil Government, andthe Obedience that is due to it, is the 5- £• 19- Safety and Tranquility of Humane Society; and therefore the end is certainly to be preferred before the means, when they cannot both consist together. But this is no Argument for the preferring the Benefit or Advantages of Parents before that of their Children, since Paternal is not Civil Government: Nor are Fathers absolute Princes or Masters over their Children, as you suppose j and yet I think I may safely affirm, that even in this Paternal Government, though it be granted that Children are ordained for the Benefit, or Help of their Parents; yet when their Happiness and Preservation is inconsistent with that of their Children, it may be a great doubt which is to be preferr'd, since God s chief Intention in Parents was for the Preservation and Propagation of Mankind; and therefore I cannot see how it could ever be any part of the Paternal Power, for a Father to make his Child a Slave, or to sell him to others at his pleasure, as you suppose;this being no part or end of the Design or Duty to a Father.

And whereas you lay to my charge my mistaking the true Sense of those Civil Law Maxims you have quoted ,• I think I can easily prove, that the Mistake lies on your side, and that you have misapplied them, to make them serve your purpose : for as to your first Maxim, Partm fequitur Ventrem, from which you infer, that the Child ought to be of the fame condition with the Mother, this Rule in your Civil Law relates only to Bastards, and not Legitimate Children, who fol^ low the condition of the Father according to your Digest: Qui ex uxore meanaf6l!i$. '' t'turi fi^m mar'ti st habendw,; so likewise in your Code, Cum kgitima mtptiœ fatl* Cod. Tit. 19 sunt>patrem libtri fequuntur, vulgo quafitm matrem fequitur. Nor is your second L. 14. Maxim more true; for though I grant, according to your Roman Law, the Father Dig. Tit. 5. might have absolute Power over his Wise and Children; yet I cannot see how this L. wotd,nafcitur, can be extended beyond those that are born of a Man and his Wise,

and therefore can never concern Grand-children much less any more remote Descendants; and this very Law, that a Son or Daughter might be killed by a Father, seem'd so cruel and odious, even to the ancient Romansthemselves, that neither the Law of the twelve Tables, nor the Julian Law of Adulteries, which were provided against Fathers, Sons, and Daughters, ever extended it to the Grand-father, Grand-son, or Grand-daughter by Interpretation; or Argument a cafu confimili. Nor do these Words, in Potestate mea est, prove more than that all Children are born under the Power of their Parents, though whether they shall always continue so long as they live, is not to be proved from this Maxim ; nor if it were, doth that make it a Law of Nature. For I must needs observe this of divers of you Civilians, that whatever Maxim you find in your Civil Law Books, that will make for your Notions, you presently adopt them for Laws of Nature, without ever enquiring by the strict Rules of Reason, and the Good os Mankind, (by which alone any Law of Nature is to be tried) whether they are so Or no.

I shall not trouble my self to confute those false Conclusions you have brought from those weak Premisses; for if I have destroyed your Foundation, I think your Superstructure cannot stand; and therefore you must pardon me, if I cannot find this Original Charter of Government, and of all Civil Power, to be derived from Adam by any Argument that yet you have brought either from

Scripture, Scripture, or Reason ,• only give me leave to observe thus much upon what you have said, 'That if notofily the Constitution of Civil Power in general, but the special Limitation of it to one kind, (viz,.) Monarchy, be the Ordinance of God, I cannot see how any other Government but that can be lawfully set up, or obeyed by Men, since no Government can challenge this Priviledge against Divine Institution.

M. Since this Hypothesis doth not please you, I shall be glad if you can shew • me any better Original, either ofAdams Paternal Power, or of Civil Government, than this that God gave Adam over Eve, who indeed was, as at the first B.KPi$ 3*. Subject, so the Representative of all that followed,- and it reaches not only tp all her Daughters in relation to their Husbands, but to all of them in relation to their Fathers, and to her Sons too, in relation to both their Father, and their eldest Brother after his Decease, if no Body superior to both of them, and him interposed, and diverted, or rather over-ruled it.

For (1.) If a Priority of Being gave Adam a Power over his Wife, it gave him much more so over his Children.

(2.) If God's taking Eve out of Adam, the forming her of one of his Ribs without his Concurrence, did yet make her his Inferior, his Children were much more so, which were derived from him, and by his Act.

(3.) If she were formed for him, not he for her; and that was another reason ; this extended to his Children too, who were begotten for the Comfort and Assistance of both him and her.

(4.) When God put Eve under the Subjection of her Husband after the Fall, her Children must needs be so too, if they were not excepted, but we read of no Exception.

(5.) Is it not an eternal Law of Nature, that all Children should be subject to their Parents? And did not this Law spread itself over the Face of all the Earth, as Mankind increased?

And whereas you would limit this Power of Parents over their Children, both Z&.'A in its Extent and Duration, this is purely owing to the Civil Laws of Nations* and not to the Laws of Nature, and is different in different Places; some having restrained the Power of Parents more, and some less. But God gave the Parents a Power of Life and Death over their own Children, amongst his own People the Jews, and that not limited in Duration neither, for the Father's Power over his Son was not determin'd but by his Death, though they could not execute that Power, but in the presence of a Magistrate. And I am also sure that in all the Histories and Relations I have met with, amongst civiliz'd Nations (where it is not otherwise order'd by the Civil Laws of the Country) all Husbands and Fathers have Power of Life and Death over their Wives, 1 and Children; and so it is at this Day amongst many Eastern Nations, and was antiently amongst the Romans, Gauls, and Persians, &c. Which Power I take not to have been given, or conferred on them, but rather left to them by the Civil Laws of their Country in the fame State, as it was establisli'd by the Law of Nature, or rather Nations. Now if such Husbands and Fathers antiently had, and still have a Power of Life and Death in divers Countries over their Wives and Children, I desire to know what higher Power they could enjoy, since he that hath power over a Man's Life, which is of the highest concern to him, may certainly command him in all things else?

But as for your last Scruple, that you cannot fee, if Monarchy be of Divine Institution, how any Government but that can be lawfully set up or obeyed by Men, I think it may be a satisfactory Answer, if I tell you, that if those who are born under a Monarchy can justifie the Form they live under to be God's - ^ M^' Ordinance, they are not bound to forbear their own Justification, because others * 2$$t cannot do the like for the Forms they live under; let others look to the Defence of their own Government: If it cannot be proved, or shewed, that any other Form of Government had ever any lawful beginning, but was brought in, or 'erected by Rebellion, must therefore the lawful and just Obedience to Monarchy be denied to be the Ordinance of God?

F. I hope, before I have done, to give you a clearer Original from the Law of Nature, as well of Paternal Authority, as Civil Government, without recurring to Divine Revelation, which (as I said before) would oblige none but Jews, and.Christians, or Mahometans, whose Law is a Mixture of both the other.

D In

In the mean time give me leave to teJJ you, that Eve's being the Representative of all Wives, did not put either herself or her Daughters into any absolute Subjection either to Adam, or their Husbands if it did, then could not this Subjection be likewise owing either to Adam, as the Patriarch, or Grandfather of the Family, or to his eldest Son after his Decease; since this would make every Wife in the state of Nature, to have had two absolute Lords, her Husband, and her Husband's Father, which is contrary to our Saviour's Rule, that no Man can serve two Masters, that is, in the fame kind of Service: And therefore it plainly makes out my distinction, that there is a great deal of difference between a Conjugal Submission of a Wife to her Husband, and a Servile Subjection of a Servant to his Lord, as also of that Obedience or Duty, which a Subject oweth his Sovereign; since by your own Hypothesis it necessarily follows, that either Cam's Wise (for Example) was not to be subject to her Husband, or else must be free from all Subjection to her Father Adam; But as for any Submission to Cain, as elder Brother after Adams Decease, I desire to be excused medling with it, till we have dispatch'd the Question in hand.

I come now to those fresh Considerations you bring for this Monarchical Power of Adami for indeed I cannot call them new Arguments, because most of them have been answered already. The first Consideration is from the Priority of the, Being, which you suppose gave Adam a Power over his Wife, and consequently over his Children;but I think this Priority of Being could give him no such Power at all over her, and consequently not over them;for I desire to know whether if God had been pleas'd. to haye Created, the fame day that Eve was made, twenty single Men, and their Wives, that therefore Adam must have been, from' his being first Created, Monarch over them all, unless God had particularly commanded it.?

I grant indeed that from God's Creating Eve out. of Adami it did render her inferior to him, and also from God's express Command, that she was to be subject to him.in all Conjugal Duties ,• yet did.neither of these render either her, or her Children absolute or perpetual Subjects, and;Slaves to Adam, And that their ( being deriv'd from him, or by his Act, doth not at all alter the.Case, I have al-ready proved.

As for the third, That if she were formed for him, and not he for her, that this must be another reason which must extend to his Children too: Here the Assumption is not only false, but the Consequence too: For slie was not only formed for him, but that they might be a mutual help to each other; and therefore the Gen. i. 24. Scripture tells us, A Man Jball leave his Father and his Mother, and stall cleave unto his Wife, and they two stall be oneFlest; which Words (in my Opinion) are very far from proving any such absolute Subjection; for no Man can ever tyrannize over his own Flesh j and if such an absolute Subjection had been intended from Eve to Adam, it had been more consonant to Reason, for the Scripture to have enjoin'd her to have left her Father and Mother to cleave to her Husband. Whereas in- , deed there was no more meant by this Text, than that when a Man marries, he may freely quit his Father's Family, and joining himself to his Wife, may set up another of his own. But as for the Children that were begotten between them, tho' I geant they might be intended both for the Comfort and Assistance of him, and her; yet I have already proved that the Parents are more chiefly intended for their Children's Propagation, and Preservation, than the Children are for their Interest and Happiness.

Your fourth Consideration is only a supposition of the Question which is yet to be proved; that Eve was under an absolute Subjection to Adam after the Fall. I have already proved this supposition not to be true; and therefore the consequence, as to the Children, is false likewise.

Your fifth is rather an Interrogation than an Argument, whether Children ought not to be, and have not always been subject to their Parents all over the World? In answer to which, I grant that it is true, that they have ever been so, tho' not in your Sense. For I hold this Subjection neither to be servile, or abso- « lute, not yet perpetual, as long as they live: But in reply to this limitation of the Power of Parents over their Children both in its extent and duration, you tell me, this is purely owing to the Civil Laws of Nations, and not to the Laws of Nature; and for a Proof of this, you produce God's own People the Jews for an Example, that the Power of the Father over his Son was not determined but




by his Death. But yourself confessed, that he could not exercise this Power of Use andVi^ Sslden Death, but in thepresence os the Magistrate; the Circumstances of which, if they be ie. Gtn~ consider'd, will rather make against you; for, first, the Father could not have this ^X<»s*C rebellious Son put to Death, till he had accused him before the Elders of the City, that is, the Judges who were establifli'd in every Precinct, who, upon a solemn hearing, were to sentence such a rebellious Son to be stoned to Death by all the People of the City: Where you may observe that the Father had no Power to put him to Death himself; and therefore acted in this cafe, as an Accuser, or a Witness, not as a Judge. But if you'll believe Maimonides, one of the most Learned of the JevijhRabbins, he will tell you that by the Municipal Law of _ the 'Jews, this Power of the Father did scarce extend beyond the thirteenth Year „frim. of the Son's Age, after which the Son was reckoned adult, and emancipated from bis Father's Power, and could not after that incur this Punishment of a stubborn and rebellious Son; and a Father who did but strike his Son after he was adult, in-* curr'd Excommunication, for that he offended against the Law. And tho' I grant that the Nations you mention did exercise a Power of Life and Death over their Wives and Children, yet will not the Practice of some particular Nations, tho' never so much civiliz'd, amount to a Proof of a Law of Nature, which is only to be made out from evident Rules of right Reason, and the great end of this Law, the common gocd of Mankind; and especially when against the Examples of those Nations which you produce, I can likewise set those of many more Nations, where this Custom was not allowed, after once Civil Government was establifli'd.

And as for the Romans themselves, amongst whom the greatest Examples of this kind are to be found, they will not all of them amount to above three, or four, in six or seven hundred Years; and then, tho' there might be very good cause for it, yet the People of Rome never so much esteemed or loved such Fathers after they had put their Sons to Death, as they did before, but counted them too severe and cruel for so doing. And you may read inValerim Maximus, and Seneca, that Be Clem they killed Erixion, a Roman Gentleman, for whipping his Son to Death like a Slave; so much did they abhor all such Cruelty of Parents towards their Children. And afterwards, when by the general Corruption of Manners amongst the Romans, Fathers grew more cruel to their Children, and often put them to Death without cause; those of your Faculty suppose that some of the Roman Emperors (tho* it is uncertain who) took away this Power from Fathers, and made it (as it is now among us) Murder, for a Father to put his Son to Death; tho' others suppose (since there are no particular Edicts to be found concerning this Matter) this Law to be changed by degrees, and to be left off by common consent of the Romans, themselves; for it seems dangerous, to grant to a private Person the Cognisance of any Crime, which might belong to publick Authority; and they thought it better to strengthen both the Paternal and Marital Power by other Laws than putting to Death. And therefore Simplkius, upon Epi&etus's Enchiridion, fays, that the Romans allowed Fathers this Power, because they thought they might very well trust their natural Affection to their Children, for the exercise of that Power of Selling them, or putting them to Death, which'twas supposed they would rarely use, unless compelled byextream Necessity, or unpardonable Crimes; and therefore if a Father would put his Son to Death, he was to do it with his own Hands, that he might suffer as well as his Son; but when this tender Affectipn too failed, it was no wonder that the Reman Emperors did not think it for the common good of their People to trust Fathers with this Power any Ion* ger, which they had hitherto exercised, not so properly by right of Fatherhood, as that of the Master of a Family, who governed his Servants and his Sons by a like Authority. ,..

To conclude, I cannot but observe, how flyly you wave my objection against the Divine Institution of Monarchy; for tho' you seem loth exprefly to condemn all other Governments as unlawful, yet the consequence will be the same upon your- Principles: For if it be a good Argument which some make use of, for the Government of the Church by Bishops, because that Government being supposed . by them to have been instituted by the Apostles by Divine Precept; therefore that no other Government but Episcopacy, can be lawful, or any true Church, where that Government is not in use: So the fame Argument will likewise hold in Civil Governments, that all others must be unlawful, if Monarchy alone were . ;.■ . .1 . • D a. :. . ordained

Ordained by God, and that all other Forms whatsoever began from Rebellion, or 'the Fancies of Men.

M. To answer what you have said, in the first place, I cannot so flightjy pass over this Argument of the Law of Nations, by which I supposed the Power of Fathers over the Persons of their Children is suificiently established, and from whence also it appears that among the Jews, as well as Romans, the Children were look'd upon as part of the Substance of their Father, and consequently that they « had a perpetual right in their Persons, as long as they lived; that the Romans had the Power of selling their Children three times, yourself do not deny; that theJews also had it in use among them,' appears first, by the Story of the Poor Woman, the Widow of one of the Sons of the Prophets, who complained to Chat. 4.1. Elijha, in the second of Kings, telling him that her Husbandis dead, and the Creditor is come to take her two Sons to be Bondmen. And so likewise in the New Testament, our Saviour in St. Matthew supposes it as a thing commonly practised in those parts of the World where he lived. For in the Parable of the King, who would take account of his Servants, amongst whom, one owed him Ten thousand Talents: Mat. 18.24, But forasmuch as he had nothing to pay, his Lord commanded him to be fold, and his Wife 2and Children, and all that he had, and payment to be made. Which was founded upon

that Law amongst the Jews, that Fathers might sell their Children for Bond-servants, until the Year of Jubilee, as appears by Nehemiah, Chap. 5. where he relates the Complaint of those poor Jews, who had been forced, for want, to bring their Sons and their Daughters into Bondage: Neither was it in their Powet to redeem them, forother Men had their Lands, and their Vineyards.

 And amongst the Romans, this Power of settling their Children continued, till it was forbidden by the Emperor Justinian. And as for the Grecians, Plutarch in his Life of Solon relates, that till his time it was lawful amongst the Athenians, for Fathers to sell their Children to pay their own Debts: And I suppose it was upon this account, that Cymon, the Son of that great General Miltiades, was kept in Prison by the Athenians, till he had paid the Fine of Ten thousand Talents* which his Father died indebted to the Commonwealth. And Philostratusin his Life of ApoUonius Thyaneus relates, that it was common amongst the Phrygians to fell their own Sons. And to come to more Modern Times; a Son amongst the Muscovites may be sold four times; but after the fourth Sale, the Father hath no longer a Right in him, as the Baron of Heberftein tells us in his Relation of Muscovy; and it is not only in use amongst them, but also amongst the Tartars, East-Indians, Chinefes, and the People of Japan,not only to sell their Children themselves, but also, that they are liable to be sold by the Prince, or his Officers, for their Father's Debts, or Offences: So that you see here is the consent of most of the civiliz'd Nations in the World, who sure in this follow the Dictates of Nature and Reason, in the exercise of a full and absolute Propriety and Dominion, in, and over the Persons of their Children; so that if it be a received Custom or Law amongst most Nations, it is also from Reason too, since the Law of Nations is only that which receives its obligation from theconsent of many Nations, as Grotius well observes: And Aristotle lays it down as one of the strongest Proofs, when all Men agree in any thing: And Cicero tells us, That the consent of most Nations is to be looked upon as a Law of Nature; and therefore these Customs are to be esteemed as obligatory amongst all civihVd Nations, where the Municipal Laws of those Countries have not restrained or altered this natural Power, and Interest, which Fathers had originally over the Persons of their Children.

But as for what you fay, that according to my Principles, no other Government can be lawful besides Monarchy, I shall giye you the fame answer, that some of the most Moderate of our Divines have given to those, who would make the like Objection against us of the Church of England, that believe Episeopacy to be JureDivino, viz,. That God, for the necessity of some Ecclesiastical Order and Government in a Church, may permit, nay (perhaps) allow that Form of Government as lawful, which himself never instituted j nay, which perhaps wa$ unlawful to have been set up in the Church at all: And so likewise in Civil Governments, I will not deny, that those Forms may be lawfully obeyed as the Ordinance of God, which he never instituted; but have wholly proceeded from the Rebellions, or Inventions of Men. ■ i

F. I must confess, Sir, I cannot see how any Law of Nations can be supposed to lay any Obligation upon Mankind, diiserent from the Law of Nature, and

/ Reason,

Reason, or the revealed Law of God in Scipture. And, tho' I confess there is some division amongst Learned Men about this Matter; yet I think it is far more Rational to suppose, that there are but two Laws that can be Rules of Humane Actions, the Natural Law, and the Divine. And of this Opinion is the Learned Grotius himself, in the place you but now cited, where he fays, he added the Words, many Nations, because there can searce be found any Natural Law, which is also wont to be called the Law of Nations, that is common to all Nations: Yea, that is often Iook'd upon as a Law of Nations in one Count ry, which is not so any where else; as (fays he) we lhall mew in its due place, concerning Captivity, and Postliminium.  •■■

And for a farther Confirmation of this, I will make bold to read to you in English some part of what the excellentPuffendarf hath written upon this Subject, in his Learned Work De Jure Nature & Gentium, Lib. 2. Cap. 3. which you <S? may here peruse with me if you please.

 ** The Law os Nature, and. the Law of Nations, is accounted by many, one "and the fame, which only differ by an extrinsick Denomination. And from "hence Hobbs, De Cive, c. 14. $.4. divides the Law of Nature into the natural Law "of Men, and the natural Law of Commonwealths, which is commonly cal"led Jm Gentium: And then adds, that the Precepts of both are the lame; but "because Commonwealths, when once instituted, do put on the Personal Proper"ties of Men ,• that Law which speaking of the Duty of particular Men, we "call natural, being applied to all Commonwealths or Nations, is called Jm "Gentium, to which Opinion we do likewise subscribe;neither do we think there ** can be any other voluntary, or positive Law of Nations, which can have the *. power of a Law properly so called, and which may oblige all Nations, as pro"ceeding from a Superior. But most of those things, which amongst the Hou man Civil Lawyers, and others, are referred to the Law of Nations; as sup's pose, about the manner of acquiring of Contracts, and the like, do either be"long to the Law of Nature, or else to the Civil Laws of particular Nations, "which agree together for the most part in these things ,• yet from which no "new* or distinct sort of Law can be rightly constituted, because those Laws are "common to Nations, not from any Agreement or mutual Obligation, but in a that they do by accident agree, from the peculiar Will of the Law-givers in ** each particular Commonwealth; from whence the fame things may be changed "by one People or Nation, without consulting the rest, and oftentimes are found to "be so changed." And of this he here gives us several Examples of different Customs amongst Nations, in making War upon each other, according to diverse Forms or tacit Agreements, whereby War may be managed with as little Cruelty as may be. But thus he proceeds ,• These Customs, although they may seem to

* contain some Obligation, as arising from this sort of tacit Agreement amongst "Nations; yet if any Prince shall wage a lawful War, and neglect them, or  should do quite contrary to them, he would not be guilty of any Sin against "the Law of Nature"; but only of a piece of Roughness or Incivility, that he did not make War according to those Rules of Honour, which are used among them, by whom War is looked upon as a liberal Art. [And a little farther proceeds thus:] " Amongst the principal Heads of the voluntary Law of Nations,

* Gntim reckons the Right of Ambassadors, where we also suppose, that by the "very Law of Nature, Ambassadors are inviolable even with the Enemy, as

* long as they appear Ambassadors, and not Spies, and do not contrive Plots ** against those to whom they are sent. And having Jhevm the necessity of Ambassadors

* in order to Peace, he thus goes on: But there are other Privileges attributed to Am"bassadors, especially to those who reside in a place rather to fish out the Secrets' 9 of another State, than for Peace fake; those Privileges depend from the meer "indulgence of that Prince to whom they are sent, and so, if it seems good to

* him, may be denied them, without the violation of any Right, if he will like"wise suffer that his own Ambasladors should be treated in a like manner/'

M. I see whether this Author tends, but do not understand what use you can make of it to your purpose.

F. But I will quickly shew you, if you please to have a little Patience: And therefore to apply what I have now read to the Matter in hand; in the first place, it is apparent from this Author, that the Law or Custom of Nations hath no Obligation as such, but only as it agreeth with the Law of Nature, and the Law « * .of of God; and what Laws of Nations are founded on the Law of Nature, can only be tried by some Rule, which certainly is not to be learnt from the Knowledge of the Customs or Laws of all Nations j iince who is able to know them all? .And therefore these Laws must be tried, either by the natural light of a Man's own Conscience, or else by considering, whether this or that Practice of a Nation conduces to the honour or service of God, or the common gcod and happiness of Mankind, and so may be known as well by the Unlearned as the Learned. Now I suppose you will not affirm, that this Law of the absolute Property and Dominion of Fathers in and over their Children, can be discovered by either of these ways; or that a Man's Conscience will tell him, that it is his Duty to let his Father kill him or fell him, or use him like a Brute, without any Contradiction or Resistance. And as for the other, I think I have sufficiently proved, that this absolute Power, which you assert of Fathers over their Children, doth not proceed from that great Law of Nature, viz,, the common Good and Preservation of Mankind, to which the Practice of it may prove very destructive ; which, if proved, I think ■I may easily answer all that you have now said about the particular Customs or Laws of divers Nations concerning this matter, tho' your Instances were many more than they are.

For, in the first place, as for those you alledge out of Scripture, they do (as I said before) only regard the Municipal Laws of the Jems: Those of the Romans touching this matter did only concern that Commonwealth whilst it was in being, and no other Nations whatsoever. And for this Opinion I have both Grotim and Puffendorfof my side: For the former, in the beginning of the Chapter last quoted, after having set down the different Powers which Fathers may exercise over their Children, according to their different Ages, thus affirms: "Whatsoever is beyond "thsse Powers, proceeds only from a voluntary Law, which is different in divers "Places: So by the Law which God gave the Jews, the Power of the Father "over his Son or Daughter, to dissolve their Vows, was not perpetual, but only "endured as long as the Children were Parts of their Father's Family.

And by the fame Rule I may add, that Children were not reckoned as part of their Father's Gocds, and to be sold by him, or seized upon by Creditors for his Debts, any longer than they continued Members of their Father's Family, and consequently were not seized upon as his Sons, but Servants. And I defy you to shew me an Example, where ever among the Jews, the Children, after they were adult, and parted frdm their Father's House, were sold or seized as Slaves for their Father's Debts. And as for the Remans, it is plain they acknowledged theirPatria Potestas to be in use amongst them neither by the Law of Nature or Nations, but only from their own Civil Law, as appears by this Title, almost at the very beginning of Justinian's Institutions (which, as I suppose, you know better than I) . (.2.-Patria Potestas est Juris Civilis & Civium Romanorum propria. The Text follows in these Words (as I remember) Jm Potestatis, quod in hleros habemus, proprium est Civium Romanorum ; nuUienim alii sum homines, qui talem in liheros habeant potestatem, qualem nos habemm : And therefore they would not permit Strangers to exercise it over their Children within the City of Rome. And if the Power of the Father amongst the Jews and Romans was not by the Law of Nature or Nations, no more could it be so, tho' exercised amongst never so many other Nations; since jf .it were one of the Laws or Precepts of Nature, it could never have been taken away or restrained by any Civil Law, no not by the express Consents of all Fathers. And as for your Instance oi'Cjmon amongst the Athenians, it makes nothing to this purpose; since, if I take it at the worst, it maketh no more, than that the Atbe* nian Commonwealth dealt very ungratefully and tyrannically with Mihiadesand his .Son; an^ it might be that they kept him Prisoner, as being Heir to his Fa-^ ther's Principality in theThracian Chersonnese, out of which they supposed he might pay the Debt j as the King with us doth often put an Heir in Prison for his Father's Debts, where he hath Assets by Descent

But for all your odier Examples, unless they have a Reason in Nature to support them, they will no more prove that by the Law of Nations Fathers should have a Right of Life and Death, ot of selling their Children, than if you should argue from the common Custom amongst the Lacedemonians, the Aborigines in Italy, the Inhabitants of the Kingdom of Sofhiris, as amongst the Indians mentioned by Qit. Curtim, and the Chineses, and the Inhabitants of Formosa at this Day; all which either did, or now do destroy their Children as soon as they are brought

* . forth,

forth or else in the Womb before they are born, if they please so to dc And
as for some of these Nations you have instanced in, and particularly the Musco-
vites who
can sell their Children but sour times, it is apparent it is only a Muni7
cipal Law; for
if the Property of the Father over the Sons Persons were by them
looked upon as perpetual, he might not only sclrhim four times, but forty, if it were
possible. And after all, I suppose you will not be ty'd to follow the Practice of
the Muscovites
in other Actions, as a Pattern for other more civilized Nau'qns

But on the other side, I have, against this Custom of your Nations, ,the Examples of divers altogether as wise and civiliz'd, who did not permit Fathers to exercise this absolute Power over their Children j and therefore against your Example of the Jews I set that of the Egyptians, who did not permit Parents to^ put their Children to Death, nor yet to sell them, unless in case of great nece£* sity, and when they could not otherwise maintain them j and then I grant ir may be necessary. So likewise against your Roman Law, I set that of all the Greek Na» tions, none of whom permitted Fathers to put their Children to Death, except Tluunb. the Spartans; and that was only in one case, and that with the Judgment and ty"«g»' Consent of the eldest Men of the Family, when their new born Infants were so weak or ill shaped, as to be thought not worth the rearing- So like wise against your Examples of the antierit Gauls, I set that of the Germans, a Nation altogether as wife and civilized as the other, to whom I could likewise add the antient Britains, Spaniards, and divers others. And to the more modern Examples of the, Eastern Nations, where this Custom is permitted of selling or killing their Children, I shall oppose the Turlls and modern Persians, amongst whom it is forbidden, as also amongst all the Nations of Europe, who believe Christianity: And if we go over to America, we (hall find that they are there so indulgent to their Children, that no Fault whatsoever, tho' never so grear, shall make them put them, to Death, And to let you see that this is most suitable to Reason, the two greatest Philosor, phers amongst the Greeks, Plato and Aristotle, have condemned it ; \the former yi\ his Laws, where he exprefly forbids it, supposing that in no cafe whatever aiFa-> ther ought to put off all Piety and Humanity towards his Son,, and that, a Son, should be rather led by Nature, than driven by Force, to obey hi^r Father, ,j esoe-, dally since his Power is sufficiently establiihed by the Law, and tfe appointing of publick Judges- And Aristotle, in his Morals to Nicomachw, W. 8. cap.n. afo cuses the JusPatrium,then in use among the Persians^ as tyrannical-: An4 Grotim. tells you, he produces these Examples of the Romansand Persiansf only that,we. might distinguish Civil Rights from Natural. From whence it appears, that the,^,/. p. /£„. putting of Children to death by Parents was look'd upon as an pdsoiis thing raongst the wisest of the Antients; and therefore neither the, ije^Regia, nor the Juiicatarum Law of the XlJ Tables, nor the Julian Law de Adulteriis(all which left Fashe-rs L-vi- &D a Power over the'Lives of their Sons and Daughters) yet would extend this Powerz^nlathne by Interpretation to the Grand-father towards his Grand-son or .Grand-daughter. , fjiherorum.

M. Yet for all this, I think all the wisest and most civilized Nations, .were, of. my opinion, and it is from them that we ought to take this Law of Nations rather than the others; and therefore I think the Romans were a great deal wiser, and better People than the Greet, and the antient Gauls than the Germans. Nor* does your Argument against this Power of Life and Death in Father? by the Law', of Nature scent cogent, that if it were so, it could never be taken away or.t restrained by any Civil Law; since this Argument will make as much against tha*." Power of Life and Death, with which you invest your Fathers of Families in the btateof Naturej since if they have it by the Law of Nature, it could no more , uVcafe-1 °r Uken 3Way by CiviI LawS' than any Paternal Power in tne • fli 1vay' Sir'1101(1: If this Controversy is to be decided by the Wisdom and., ftn \ vai °s Nations> we sta11 never have done « For in the first place, ,who i t h A °f thlS Consent of tlie most civilized People? and that no account is • to be made of those whom you call barbarous1; for what Nation will acknow-' wage it felt to be so, or can arrogate so much to it self, as tW'-— au others to conform themselv es tv» *i 1


{24}

exceed all others in Knowledge. And yet on the other side there are divers Na"4tions, who prefer themselves tar before us; and I have read that the Chmeses have a Saying, that the Europeans fee with one Eye, themselves with two, but that all the rest of the World are stark blind; and yet this Nation maintains a Power of selling and exposing their Children, which we Europeans abhor. Now pray tell me, if there is not some common Rule to be drawn from Reason, or the common good of Mankind, how shall we judge which is in the right? So that notwithstanding all that hath been said on this Subject, I think I may safely conclude with the Judgment of the Learned Ptiffendorf, in Lib. 6. Cap. 2. where speaking of the Paternal Power, he says thus : "But neither the fame Power, as such, seems "to extend it self to that of Life and Death by reason of any fault, but only to a "moderate Chastisement. For since this Authority is employed about an Age ** that is weak and tender, and in which such incorrigible Crimes can hardly be "committed, which nothing but Life can expiate ,• it is much better that a "Father should turn out of doors a Son, who doth wilfully refuse through Obsti<r nacy and Wickedness all due Correction. So that Abdication and Disinheriting "seems to be the utmost Punishment which can be inflicted by a Father on a ? Son, considered as such.

M. I see it is to no purpose to spend longer time about this Question; since yourself have all along allowed, that the Father of a separate Family in the State of Nature hath a Power to put his Wife or Children to Death, in case they have committed any heinous Sins or Offences against the Laws of God or Nature. But you have not yet told me (and I doubt cannot) how Adam, or any other Master of a Family, could be endued with this Power of Life and Death, unless it were granted him by God. /

F. I promise to give you full Satisfaction to this Question by and by ; but in the mean time, pray let me make it a little more plain to you, that this Power of Life and Death, which may be exercised by Masters of separate Families over their Wives and Children, in some cases, is not by any Power they receive from God, as Husbands or Fathers,- but only as Heads or Masters of such Families, may be proved by this Instance : Suppose a Master of a Family, independant on any other (as in the Indies) hath neither Wife nor Children; yet sure he hath notwithstanding the fame Power of Life and Death over his Servants or Slaves, for such great Offences as you have mentioned, in case there be no superior Power over him to take cognizance of such Crimes. And to make this yet plainer, suppose a married Man, having a Wife and Children, will live (together with them) in the Family of such a Master as I have now described (yet not as a Servant, but as an Inmate or Boarder) and whilst he so continues, his Wife kills one of her Children, or one of his Sons, murders his Brother, who hath R^ight to punish this Offence, but the Master in whose Family he is an Inmate? And this follows from your own Supposal: For if every separate Family in the State of Na-. ture be a distinct independent Government, then all those that enter themselves, as Members of such a Family, must be subject to the Master or Governor of it. Nor do you reduce me into any Absurdity by your Reply to my Argument, by urging, that if the Power of Life and Death were originally in Fathers by the taw of Nature, it could never be restrain'd nor taken from them without their Consent: That then this will make as much against the like Power of Masters of: Families; since I must grant, this is taken away by Civil Laws; and why may not the other? To this I reply, that you do not observe the strength of these Words, Without their Consent: For I suppose that no Power whatever can take this out of the hands of such Fathers, cr Masters of Families, in the State of Nature, without they assign it to the Supream Powers of the Commonwealth upon its first Institution; whereas you make this Power to be obtainable by Force, by Conquest, or Usurpation, not only over those that are not at their own disposal, as Children and Servants, but over their Fathers and Masters too, without their Consents ; which is contrary to the Law of Nature and Reason.

M. I see you take it for granted, that I will admit your Instance of the Power of Life and Death to be in the Masters of Families, and not as Fathers, in the State of Nature: But as plain as you think it, since you question the Power of Life and Death, which I suppose to be inherent in all Fathers; I know not why I may not with more Reason question your allowing the like Power to Masters of separate Families, since there is no reason, in my Opinion, which you can bring

1 for for such a Power in yOur Masters of Families, which I cannot with like reason urge, may be also exercised by Fathers and Husbands over their Wives and Children, in cafe they deserve it. For if it be for the Good and Preservation of Mankind, that great and enormous Crimes, such as Murder and Adultery, sliould be punished, and that with Death; who is more fit to inflict these Punishments, or who can be supposed to judge more impartially of them than the Father or Husband himself? since he cannot put his Son or Wise to death, however they may deserve it, without very great reluctancy; since he, as it were, thereby lops off a Limb from his own Body. And therefore I cannot fee any Reason why such a married Man as you describe should, by coming under another Man's Root . only as an Inmate or Boarder, and.not as a Slave (which I grant would alter the Case) lose that Power of Life and Death, which I suppose he hath by the Laws of God and Nature over his Wise and Children, unless he had actuallygiven it up to the Master of that Family, with whom he came to board. And therefore as I do not deny, but that a Master of a separate Family hath Power of Life and Death, and also of making Peace and War with other such Masters of Families, nay with Princes themselves, if there be occasion as we read in Genesis,Ch. 14, that Abraham made War with the four Kings who had* taken Lot Prisoner. So likewise when Judahpronounced Sentence of Death against Thamar his Daughter-in-law, for playing the Harlot, Bring her forth, fays he, and let her be burnt^ Gen. 38. I own this was not dorte by the Authority of a Father alone (she not being his own Daughter, and his Son being then dead) but as the Master of a separate Family, who hath (I grant) Power of Life and Death, as he is Lord over the Persons of his Children, as Servants, and consequently over their Wives also: For if he hath Power over his Son, he hath certainly the like over all that belong to him, as long as they continue Members of his Family, and that he hath not thought fit to manumit or set them free. But now I desire to know by what Right these Patriarchs could exercise all these Marks of Sovereignty, especially this great Power os Life and Death, unless it were derived from God at first; since no Man hath any Power to dispose of his own Life at his pleasure, and therefore sure hath naturally no Power over, that of another Man's: So thattoot only thisPower of the Patriarchs± but' also that of all Monarchs to this day, must be derived from this Divine Original..,•/.■ .." . A ■ .

.. R Well then, I find you're forced to quit the Power of a Father, as such, by Generation; since it plainly appears, that this Power of Life and Death, which

Si affirm a Husband or Father may exercise over their Wives or Children in the te of Nature, is not, quatenus a Father, but Lord and Master over them; which in the first place I cannot allow, to be true.ip relation to the Wise; nor that the Submission ofthe Wife's Will to the Husband must imply a Power of Life and Death over her: For if she is not his Slave (as certainly she is not, for then a Man might sell his Wife when he pleased) I cannot see how she herself could convey by force of the Contract any such Power over .her Lisei tho' I grant indeed, if she happen to commit Murder upon one of her Children, or other Person of the Family, he may proceed against her as an Enemy, but not as a Subject; and if it be for Adultery it self, I cannot see that the Husband can by the, Law of Nature punish her with Death : For since that Crime doth really dissolve the Bond of Matrimony, Divorce, or putting her away, and deserting the Child born in Adultery, was even among the Romans look'd upon as a sufficient Punishment. But as for the Power of Parents over their Children, I do not deny but that a Father may have the like Power over his Children whilst they are part of his Family, as over his Slaves or Servants, in case of such great and enormous Crimes as you have already mentioned; but that this is not as a Father, but Master of a Family,N your self have already granted in your Instances of Abraham and Judah tho' if you will consider the last a little better, you will find that Judah did not proceed thus against 'Thomas, as her Father or Master, but by some other Right: For if you please to look upon the nth Verse of that Chapter of Genesis, from whence you -cite this Example, you will find that Thamar, after the Death of Onan her Husband, went with Judah's leave, and dwelt in her qwn Father's House, and she was then a Member of his Family, and consequently (according to your Hypothesis) not under Judah's Power, when she was thus got with Child by him; and therefore not he, but her own Father ought to have condemned her, if this Judgment had belonged to him as to the Master of the Family. And therefore some

. E of

of the Rabbins with more reason suppose, that when Judah gave this Judgment against Thamar, he did not act either as a Father or Master of the Family; for he was then under the Power of the Canaanites (who certainly had some Civil Government among them at that time) and therefore they suppose that he acted thus as a Civil Judge, appointed by the Prince or supreme Magistrate of that Nation.

But to defend the Instance I have given you of a Father of a Family losing his Power of Life and Death, upon his becoming a Part or Member of another Family; you your self have already yielded me as much as I can reasonably desire for the defence of my Assertion, since you allow this Power of Life and Death to Fathers, not as such, but as Lords and Masters over their Children, as over their Slaves; and if so, I desire to know who can challenge this Power but the Master of the Family with whom he lives, unless you can suppose two distinct Heads or Masters in the fame House; and then they will not be one Family, but two, under different Heads, each of them still retaining their distinct Rights, But you wilt fay, that this Boarder or Inmate is not a Servant or Slave to the Master with whom he lives, and therefore hath not forfeited or given up his Right or Power of Life and Death over his own Children to him. It is no matter whether he did or not, since by making fcimsclf a Member of the other's Family, he ceased to be Master of his own, and consequently must lose all the natural Rights or Prerogatives belonging to it, of which I grant this of Life and Death to be the chief: For if Families in the State of Nature are like so many distinct Commonwealths, independent upon each other ; it will likewise follow, that the Heads of those Families must be in all things necessary for the Good and Preservation of the Family, like so many distinct Civil Sovereigns, and consequently must have a Power of Life and Death, and also of making Laws, with Punishments annexed to them, in all Cafes where the Good and Peace of the Family require it. If therefore in a Civil State, or Monarchy, an absolute Prince tome into the Dominions or Territories of another, it is acknowledged by all Writers on this Subject, that such a Prince loses that Power of Life and Death which he had before, and cannot exercise it as long as he ic in the other Prince's Dominions: So by the fame reason, if Masters of Families, in the State of Nature, afe like so many Civil Sovereigns, it will follow, that they must cease to be such, when they become Members of another's Family, unless you will fall into the Absurdity os supposing two absolute independent Heads, ^r Masters, in one and the fame House; which, what a Confusion it wbuld bring, I leave to your self to judge. .. >

M I stall not much dispute this Power of Life and Death with you, as belonging to Masters of separate Families : But pray shew me how they can exercise this.Power over the Lives of those that are under their Jurisdiction, unless it were granted them by God, by virtue of that original Power given to Adam, not only as a Father, but Prince of his Posterity.;

P. I do not doubt but I shall give you a satisfactory Answer to this important Demand, without supposing any extraordinary Divine Commission from God to Adam: For as for your Instance of Abraham's making War, Leagues, or Covenants with other Princes, it is no more than what any Master of a separate Family may do for his own and their defence; and what, if you or I were Masters of a Family in the Indies, where there is no Power above us, we might do as well as Abraham; and all this without any otherCommission from God, than the great Right of Nature, Self-preservation, and the Well-performance of that Trust which Cod hath put into our hands, of defending and providing for our selves and our Families; since if God hath ordained the End, he hath likewise ordained all Means necessary thereunto : and therefore there is no such great Mystery in this as you suppose.  -' ".-m

M. If there were no more in it than a mere Right of Self-defence, for which I grant Retaliation or Revenge may be also necessary, you would have a great deal of Reason on your side : But pray shew me how a Father, or Master of a Family, can condemn either his Wife, Child, or Servant to Death, as a Punishment for any enormous Crime, such as I have mentioned (and you agreed to) without such a Divine Commission as I suppose Adam had; since I own Revenge or Retaliation may be used by private Men in the State of Nature, by the Right of Self-defence, 'which 1 grant may be exercised between Equals. But since all Punishments, properly taken, are the Acts of Superiors towards their Inferiors, I cannot concetue how any Father, or Master of a Familv, can inflict so great a Puniflament.as

Death Death upon any Member os it, unless he derived this Power immediately from God, by vertue of the Divine Charter committed by him to Adam, and from thence to be derived to all Masters of Families, or Civil Sovereigns, who could never derive this Power from the joint Compacts or Consent of Fathers, or Masters of Families; since no Man could convey that to another, which he had not himself. And I have already, I think, with a great deal of Truth asserted, that no Man hath Power over his own Life, to take it away when he pleases, and therefore cannot have it over another Man's; much less can convey any such Right to others, except it were granted at first by God, in the manner I have supposed, which I conceive may easily be made out by several Places in Gene/is j by which it plainly appears, that Adam, and after him Noah, were supernaturally endued with this Divine Power.

F. Though I sm satisfied that this Hypothesis is extreamly absurd; since if it were so, only Christian or JewistSovereigns, or Magistrates, who acknowledge the Scriptures, could lay any claim to, or exercise this Divine Power j whereas we find it practised by all those Nations, with whom the Memory of Adam and Noah is quite lost, and therefore must claim this Prerogative, not from any revealed, but natural Law of God: Yet however, since you think you have such clear Texts of Scripture on your side, 1 desire you to produce them, tho', if they fliould make out what you fay, they would only serve to confirm, by Divine Revelation, that Prerogative of Life and Death, which all Masters oi. Families, as well as. Civil Sovereigns, enjoyed by the Law of Nature, before ever the Bible was written.

M. As for my own part, I am so well satisfied of this Supream Power of Life . and Death granted at first by God to Adam, and after to Noah, that I cannot * fee that without the Supposal of this, any Supream Power could lawfully be.exercifed by Civil Sovereigns at this Day : And therefore I am of Mr. Selden's Opinion, who in his most learned Treatise, De Jure Gentium apud Hebraos, maintains, with the Jewish Rabbins, That the Law of Nature can never be plainly provedt and made out by Reason, without a Tradition of its Precepts, as given by God to Adam, and thence conveyed to Noah, and his Posterity : Which Divine Laws, 6r Commands, are called by theJews, the Seven Precepts of Noah, which' whatsoever People would observe, they permitted them to live its Inhabitants among them; though they did not embrace Circumcision, or those other Rites and Ceremonies commanded by the Law of Moses.' Now amongst these Precepts, that of instituting publick Judgments for Capital Crimes, is one of the first, in pursuance of that Command which God gave Noah immediately after the Flood,Gen.9. v. 6. Whosoever fieddeth Mans Blood, by Man Jhafl his Blood be pied; for in the Image of God made heMan. By which Text almost all Commentators understand, that it is not any common Man, but the Person of the Civil Magistrate, or Sovereign, that is to be meant : Since it Would be both impracticable, and also breed great Confusion in Civil Societies, if by this Word Man, every common Person, not endued by God with this Supream Power of Life and Death, {hould be understood; and therefore I do suppose, with the most learned Jews, that this Power was first exercised by vertue of that Divine Charter that was given of it by God to Adam, and then renewed again to Noah, by the Text above-mentioned.

Now that Adam had, by Divine Grant, an absolute Dominion over the whole p p.o.n World, and all Creatures therein contained, will appear from Gen. i. v. 27, 28. an. (Here is the Bible, I desire you would read it with me.)So God created Man in bis own Image, in the Image of God created hi him; Male and Female created he them:And God blessed them; and God said unto them, Be fruitful and multiply, and replenish the Earth, and subdue it;and have dominion over the Fijh of the Sea, and over the Fowl of the Air, and over every living thing that movethupon the Earth. By which Grant, or Donation, from God of subduing the Earth, and having dominion over the Creatures, Adam was made the general Lord of all things, with such a particular Propriety to himself, as did exclude his Children from having any sliare in it. So that if Cain had his Fields for Corn, or Abel his Flocks, and Pasture for them, it was only by Adams Grant, or Assignation, none of his Children or" Descendants having any Property in Lands or Goods, without his particular Grant, or Permission. 1

F. You must pardon me, Sir, if I cannot be of your Opinion, that all th« Precepts of the Law of Nature must depend upon no firmer Foundation, thaa

E 2 a Tradition

a Tradition of the seven Precepts, supposed by the Jewist Rabbins to be given to Adam, and Noah, and from them conveyed to all their Posterity; fince we find not the least mention of any such Precepts in the Scripture, or inJosepbus, Philo Judaus, or any other antient Writer, but only in the Talmud: Which, though it pretends to a great Antiquity in its Traditions, yet any judicious Man that will but peruse it, may easily see the Falfliood, as well as Absurdity of the pretended Tradition of, these Precepts j one of which is against eating the Members of any living Creature, which savours so strongly of a Jewish Superstition,_ that if that were a true Precept, or Law of Nature, no Man could eat a Difli of Lambstones, or a Black-Pudding, without sinning against the Law of Nature: And it is very improbable to suppose, that all Mankind, except Jews, Christians, and Mahometans, should be obliged to live or act by those Laws or Precepts they never heard of. For if (as you your self must.grant) the Memory or Tradition of these Precepts be quite lost amongst all Nations, except the Jews, it is all one as if they had acted without any Law at all; and consequently, if they have not some better grounds for their Observation of the Law of Nature, than these Precepts of Noah, I doubt whether (according to your Hypothesis) all Civil Sovereigns, that do not own the Original of their Power of Life and Death to this Divine Charter granted to Adam, and Noah, are any better than Murtherers, since they take upon them to exercise this great Prerogative without any Divine Authority for so doing. But I hope to shew you, before we have concluded this Conversation, that not only the Power of Life and Death, but also other Laws of Nature, may easily be deduced, by Reason, to have been given by Gcd to Mankind, by the ordinary Course of his Providence, without recurring to Divine Revelation ; which can only oblige those that have heard of it. r But since you lay so much stress upon those Texts of Scripture you have now cited, I pray give me leave to examine, whether they will bear that Sense you put upon them. As for the first of those Texts you quote, tVIiofoever fheddeth Man's Blood, by Man JhaU his Blood bested, &c. Suppose I should take it in that sense you put upon it, only to extend to Civil Sovereigns, or Magistrates, it will be so far from proving a Power of Life and Death to have been granted by God to Adam, and from him conveyed to Noah, that this Place seems to imply the contrary; for if it was a known Law before, that Murther was to be punished with Death by a Father, or other Magistrate, to what purpose was this Command now given to Noah?Since if it were a Divine Law before the Flood, wherefore'is it here repeated? And therefore all Expositors agree, that tin's is the first Precept enjoining Murther to be punished by the Civil Magistrate, which, before, any of the Kin of the Person slain might have executed ; as appears by Genesis 4.V. 14. when Cain said unto the Lord, /stall be a Fugitive, and a Vagabond on the Earth; and it stall come to pass, that every one that findeth me, stallflay me; which had been a needless fear, if none but Adam had a Power to take away his Life for the Murther of his Brother, as you suppose; much less that God should have needed to have set a Mark upon him to keep him from being murthered by his Brethren, or other Relations. Nor will that other Place you cite out of Genesis proveAdam's sole Dominion over the Earth, and all the Tilings and Persons therein contained: For if you please to consider it, you will find, that it is so far from proving your Opinion, that it speaks the direct contrary. Pray thercr fore observe of whom Moses speaks in that Place: Surely, not of Adam alone, when he fays, Male andFemale created be them; and God blessed them, and sard unto them, Be fruits ul and multiply, and replenist theEarth, and subdue it, and have Dominion over the Fist of the Sea, and ever the FovSl of the Air, and over everyliving thing that moveth upon the Earth: From whence we may observe, first, That these M. p. Words being directed in the plnral number, both to the Male and Female, were not intended to Adam alone j but by way of Anticipation, not only to himself, and Eve, (who was not then made) but likewise to their Posterity (that is) all Mankind: Then that they should be fruitful, and multiply, and replenist the Earth, and subdue it, (that is, possess arid enjby it) and ha ve Dominion, &c. over every living thing that moveth (in the Hebrew) creepeth upon the Face of the Earth. By which Words it appears, that not any Dominion over Mankind, but only over Brutebeasts, that move or creep upon the Earth, is hereby conferred. And that this must be the true meaning of this Place, is plain, if you will but read the two next Verses that follow. And Cod said, Behold I have given you every Herb




bearing See J, which is us on the Faie of all the Earth; and every Tree, in which is the Fruit of a 'free yieldingSeed; to you it Jhall Le for Meat. And to every Beast of the Earth, ti>/J to every Fowl of the Air, and to everything that creepeth upon the Earth, wherein there is Life; I have given every green Herb for Meat; and it was so.Which Words are certainly directed to the fame Persons as the former (that is) to all Mankind, by the fame Argument as that every green Herb is here granted for Meat to cvery-Beast ot" the Earth, and every Fowl of the Air, &c. that then was, or ever stall exist in Nature. - So'fthat this Text, which you have cited to prove this absolute and sole -Dominion of Adam over the Earth, and all tlie Creatures therein contained, -is so far from proving any such thing, that it seems to me to make out -the direct contrary Doctrine, viz,, that the Earth, and all the Creatures fherein, were iiot grahted to Adam alone, as the sole Lord and Master of them; but in common to himself, his Wise, and all his Posterity, who had as good a right to them, as he had himself. So that I must tell you, if you intend to bring; me over-to your Opinion, you must produce some better Proofs out of' Scripture, or Reason, than those made use of by Sir R. F. And therefore I desire that you would give me some plainer Proofs for Adam's absolute Power over his Wise, and all his Posterity, than hitherto you have done ; since I cannot see any Divine Charter granted by God in Scripture, of any absolute Power, or Dominion, over their Lives^or Persons.

As. I shall, Sir* do my best Endeavour to give you all the Satisfaction I can possibly therein; therefore I desire you farther to take notice, that Mr. Selden, in his Mare Clavfum, from the ancient Tradition of the jewist Rabbins,L.i. has understood this Text-in Genesis, to give Adam an absolute Power over the Earth, and all things therein contained, exclusive to his Posterity, as long as he lived. So that if Sir R. F. and divers pthers,,have erred in the sense of this Place, I believe it is more than you or I can prove, since sore they would not have put this fense upon it, without they had seme gQod reason for it.

But this much, I suppose, you will admit, that Adam was created by God, and is in Scripture called the Son of God, as indeed he was; and if so, let Luk. your self, or any other rational Man consider, whether it be at all likely that God stould not endow this Son of his, the Father of Mankind, with so much Authority and Power as mould enable "him to govern his own Family, and Chil-B- pdren, as long as he lived, without depending upon them for their Consent, and Se^* chopping Logick with them, whether his Commands were reasonable, or lawful or not? And if a Powor of Life and Death was necessary (as the Murther of Abel by Cain {hews it was) whether Adamhad no more share in that Power, than any of his Children or Grand-children: Which is sufficient to stew you the Absurdity of your Tenets, that the Authority of Adam over his Posterity was not absolute in its Exercise, as well as perpetual ia its Duration : And this, I think, you cannot but admit, because you have already acknowledged this Power of Life and Death to proceed from, or to be granted by God to Adam; and so consequently must have continued with him as long as he lived.

F. Well, I perceive you find your Monarchy, or absolute Dominion of Adam over Eve, and all her Posterity, as also over all. the Creatures of the Earth, not tef be proved from any of these places of Scripture you have brought for this extravagant Opinion-; and therefore you now urge upon me my own concession of this fupream and absolute Authority of Life and Death, which I do not deny but Adam might have exercised in some cases over his Wife and Children, as long as they continued part of his Family: But that he was not endued with this Prerogative as a Father, but as a Head or Master of his own Family, I think I have sufficiently proved, and therefore need not repeat it. And indeed, your own Instance of the Murther of Abel by Cain, (which, for all we can find, past unpunished by Adam) sufficiently proves, That this Power of Life and Death over his Children or Grand-children, when once they were separated from his Family, was not a necessary Prerogative of his Government; or else that his Children, and Grand-children, when they have erected new Families of their own, had it as much from God as he; and that from the fame Reason which you give, why God endowed Adam with it, viz-, because without such a Power, they could not have been enabled to govern their Children and Families as long as they lived. So that Adam's being created by G<5d, or called his Son, gave him not a jet more power over his Children, and his Defcendents, than wliar, as a Master, or

Head of a Family, he would have had by the Law of Nature however; and ir is all one in this Cafe, whether you suppose Mankind to have been created by God, or to have existed from all Eternity, provided you .hold the Being of a God, according to the Hypothesis of the more Modern Platonists, who though they held the Eternity of the World, yet likewise owned all things to be governed by God's Providence: And therefore, if on this Supposition Mankind could not be well governed nor preserved, without inflicting of Capital Punishments for great Crimes, and that they are necessary for its Peace and Preservation; it is likewise as neceflary, that there should be some Judge appointed by God to inflict them, which in the State of Nature can be only the Head, or Master of a Family; as after Civil Government is once instituted, it belongs to the Civil Sovereign or Commonwealth. And this I hope will serve to answer your Scruple, how Adam, or any other Master of a separate Family, may very well be endued with this great Power of Life and Death by the Law of Nature, without supposing any Charter granted him for it by Divine Revelation; or else depending upon his Children's consent for his Exercise of it.

But before I farther consider, whether this Power of Adam, or of any other Father or Master, be perpetual or not, and extends any farther than his own Family, give me leave to examine, whether or no Children, when grown to years of Discretion, and even while they continue Members of their Father's Family, may not in some cafes chop Logick with him, (as you call it) and not only question, but judge whether his Commands be reasonable or lawful, or not; or else Abraham (for Example) must have sacrificed to Idols, because his Father bid him. WhereasJosef bm tells us, He rather chose to quit his Country, and his Father's House, than to Jin against God. And therefore I think you cannot deny, but if Husbands or Fathers command their Wives or Children to do any thing that is morally unlawful, or contrary to the Laws of God, or Nature, they may lawfully (nay are obliged) not to obey such unlawful Commands.

M- I shall so far agree with you, that if the thing commanded be apparently contrary to the Laws of God and Nature, that they are not obliged to obey their Commands; but they must be evidently, and apparently so, before they thus take upon them to refuse Obedience to them; otherwise I deny, that their Conscience, however misguided, ought to be any excuse, or just ground of their Disobedience. For if their Conscience be truly grounded upon the Laws of God, or Nature, that will excuse them; but if it be not, Conscience without such a Law can never^do it. And yet this Non-performance of the unlawful Commands of the Husband, or Father, may very well consist without any Anarchy, or Disorder in the Family; since the Wife and Children must always yield him an active Obedience, in performing all his Commands, or else a passive one, in submitting to whatever harsli Usage,or Punishment, such a Husband, or Father, shall please to exercise or inflict upon them for their Nonpersormahce of them, though never so unlawful. But yet certainly in all possible and indifferent things, Children are bound to yield, not only a passive, but an active Obedience to their Father's Commands: For if his Children ftiould have a liberty to judge of his Commands, whether they are reasonable or not, what can ensue but Anarchy and Confusion in all Families?

F. Well, I am glad we are so far agreed, that a Wife and Children in the state of Nature have liberty to judge of their Husband's and Father's Commands, whether they are lawful or not, and also to disobey them when they are not so: And I think I may carry this a little farther, and affirm, that such Wife and Children ought not to obey the Commands of such a Husband, or Father, though they are not really contrary to such Divine or Moral Laws, but only erroneously supposed so by them; and therefore most Casuists agree, that even an erroneous Conscience does oblige, as long as a Man lies under that mistake. For St. Paul tells us, Whatsoever is not of Faith, is Sin, Rom. 14. Nay farther, such an erroneous Conscience may excuse a Man before God, if his ignorance was not wilful, but invincible, and not proceeding from his own fault; but of this no Man can judge but God alone, and the Party whose Conscience it is; and therefore such a Husband, or Father, can have no right or authority to compel their Wives and Children to perform such Commands, because the Will ought always to follow the Dictates of the Understanding; and therefore they should not be forced to do that, which they judge contrary to God's Moral or Divine Law; since Conscience may be injhutled, but can never be forced. Neither will your distinction of an active and passive Obedience help you in this Matter: For active Obedience I understand well enough; but as for passive Obedience, I think it is next door to that we call a Bull or Nonsense. And to prove this, I shall give you this plain Instance; suppose you had a Jew to your Servant, and should command him to do you some Work or other on aSaturday, which he judged a Breach of the fourth Commandment, that forbids him to work on the seventh Day, (or Sabbath) und you being very angry, should cudgel him soundly for this refusal; whereupon he tells you, that you may beat him as long as you please, he would not resist, but yield a passive Obedience; but yet could not perform your Commands: J ask you now, whether you would rest satisfied, that this Jewish Servant had sufficiently performed what you bad him, by submitting to your cudgelling? And whether your Dinner or Horse would not be as much unUrefled after this fort of passive Obedience, as it was before?

As. Perhaps indeed this Phrase of Passive Obedience may be somewhat improper, and may be more properly termed an absolute Subjection, or Submission; but itis all one what we call it, as long as you understand what we mean; since such Submission doth sufficiently avoid that Anarchy and Confusion which would necessarily follow, in case it were lawful for Wives, or Children, in any case ■whatsoever, to relist their Husbands, or Fathers, though for the defence of Life it self; .since no Government can be maintained, where the Parties governed have a right to resist their Superiors, or Governors, in any case.

F. I grai^t indeed, that no Government can be maintained, where the Parties p. n. M. governed resist their Superiors or Governors in the due exercise of their Power if. no. but when they exceed those limits, they cease to act as true Superiors, or Governors; and therefore when, instead of Husbands, or Fathers, they prove Destroyers of their Families, I doubt not but they may then be lawfully resisted by them. For suppose such a Father of a Family should, in a furious or drunken fit, go about to kill his Wife, or one of his innocent Children; can any Body think this was Treason against the Monarch of the Family, if his Wise, or one of his Sons, jjhould rescue herself or this innocent Child, out of his Hands by force, if they could 90t otherwise quiet him?

. r Xhis supposition of Madness or Drunkenness in Fathers of Families, you B. P. P. Gentlemen of Commonwealth Principles make great use of, to justify your Doc- Sea. 47. $rine of Resistance; and I know no reason why you might not extend it as west to Anger, Lust, or any other Passion that a Man is subject to; and have given all the Wor^ a power to judg? when a Man is drunk, and mad, as well as his W#cr Children, or Servants; nor do I know why you so much insist upon it, but because the Authors from whence you had it, are so in love with Rebellion and Disorder, that they seek and catch at every opportunity to recommend it to the World. But, I believe, had you a Wise, Child, or Servant, that should take the liberty os controuling you upon this pretence, you would be more enraged with the reason of the Resistance, than with the Resistance it self. . . , . I 3m sorry, Sir, any thing I have said can so far transport you to passion, as to make such unkind Reflections upon your Friends; but pray be not so hot; is it not possible that a Master, or Father, in the State of Nature, may be mad, or drunk?

M. Yes, and is it not possible also that the Wise may be so too? Now sup<pose they should mutually charge each other with madness, or drinking too much, B. P. P. who Qwll judge betwixt them? What horrible Confusion must this introduce into ^>id. all Societies, to give Inferiors a power to judge their Superiors to be mad, of drunk; and thereupon to resist, and oppose them with force? But if it doth at any time happen, Wives, Children, and Servants, that are dutiful, may have ways to appease their Husbands, Fathers, or Masters, when mad, or drunk, witBout resisting, or fighting them; as by getting out of the way, or by submission, prayers, and tears, which Nature hath ta,ught them on such occasions to make use of; and which is a thousand times a better Method, than those vsolent Courses you propose. ,

1*. All I desire of you in this Conversation, is, that you would be pleased to believe, I do not argue out of any love to Rebellion, or Disorder, or that I desire to encourage it in private Families, much less to reepmmend it to the World; only what I speak, is.purely out of a desire of the happiness and preservation of Mankind; and I; hope I fay no more, than what alt sober Men will allow may be every'Day practised in private Families:

And therefore, since you will needs have it, I do extend this Power of Resistance, not only to Madness, or Drunkenness alone, but even to Anger, Lust, or any other exorbitant Passion a Man can be subject to; and I do likewise give all the World a power ro judge when such a Man is mad, or furiously passionate, as well as his Wife,' Servants, or Children, if in those drunken, and mad fits, he goeth about to kill them, or any else. For I think in that Case, you will not deny, but any honest Neighbour may step in, and bind him, or hold his Hands; and so may likewise the Wife or Children themselves. As suppose, this Father, or Husband, should be so far transported with Passion, or Lust, as to go about to kill his Wife, or ravish his Daughter; I hope you will not deny, but they may lawfully resist him, if they can neither run away, nor yet pacify him by submission,, prayers, or tears; which I grant are much better Methods, if they may prevail: But what if they can neither get away, nor yet any of those gentle Means you propose, can work any good upon him; what shall they do then? Can any one believe, that God hath appointed an innocent Wife, or Children, to be made a-Sacrifice .to the Madness, Drunkenness, Passion, or Lust of such a Father, or Husband? And as for the Cafe you put, where the Husband or Wife should charge each other with Madness, or drinking too much, who should judge between them? It is a meer Cavil; for as long as they fall out, and only brangle, it is no matter whether there be any Judge or not. But if it proceeds to blows, and they are like to mischief or kill each other, no doubt but the Children or Neighbours may come in and part them ,- and may either hold, or shut up one, or both of them, till they are sober.

M. Pray, Sir, let us leave this touchy Discourse concerning Self-defence till anon, when we shall have occasion to fall more naturally upon it. Suppose then I should at present grant you, that a Wife or Children may (in case of such extremities as may happen to them by the Madness, or Drunkenness of the Husband, or Father) restrain, or resist his violence, in cafe no other means can prevail; what is this to disobeying his Commands, or resisting him when he is so-' ber? Which certainly they have no right to do. But to come as near you as possibly I can, and to let you fee I am not a Man of a domineering Temper, and who approve of unnecessary Severities, or unnatural Rigours, either in Masters of Families, Husbands, or Fathers; I grant that no Father, or Master of a Family, has any right to punish, or put to death the meanest of his- Slaves, much; less his Children, without a sufficient cause; or that he may sell his Children, or otherwise tyrannize over them by cruel Usage, or too severe Punishments, since" they are not only part of his own Substance, and to whom by the order of the Creation he gave a Being; but was also (as you well observe) ordained by God for their happiness, and preservation, as they were also (as well as his Wise) for his constant help, comfort, and subsistence; and therefore they were as much, or more, made for him, as he for them; as it is plain concerning the Wife from the Text in Genesis, when God said, it is notgood that the Man Jhould be alone, Iwifl make him an Help meet for him, Gen. 2.18. (viz..) the Woman; and therefore, as her subjection to her Husband is perpetual, as long as she lives, so likewise is that of the Children, in whom he acquireth a Property by their Education for so many Years; which I look upon as a greater obligation than their Generation; and over both whom he must in the state of Nature have an abserlute Power of Life and Death; which though I grant he may happen sometimes to abuse, yet I suppose no Person living hath any right in that state to resist him in the execution of it, much less to call him to an Account, or punish him for the Male-administration of his Power. And you have granted, that the Husband in the state of Nature hath a Power of Life and Death over his Wife, if she murthers her Children, or commits any other abominable Sin against Nature; and that then she may be justly cut off from the Family, and punished as an Enemy to Mankind, and so certainly may his Children too. But what need I fay any more of this Subject, when you have not as yet answered my former Arguments, concerning the Absoluteness, and Perpetuity of this Conjugal Subjection, (and that which will likewise follow from it) the constant Service and Subjection of Wives and Children to their Fathers in the state of Nature. Therefore pray, Sir, let us return again to that Head, and let me hear what you have to object against those Reasons I have brought for it.

K I. beg your pardon, Sir, if I have not kept so close to the Point as I might have done ,• but you may thank your self for it, who brought me off from what I was going farther to fay on that Head, by your Discourse ofPajjive-Obedience and Non-Resistance, and I know not what strange unintelligible Power of Life and Death, conferred by God on Adam, as a Husband, and a Father. But first, give me leave farther to prove, that this Subjection of the Wife is neither absolute, nor irrevocable. For Proof of which, I shall lay down these Principles, i. That the Wise in the State of Nature, when she submits herself to the Power of her Husband, does it to live as happily as she did before, or rather to enjoy more of the comforts of Life', than in a single State. 2. That therefore she did not renounce either her own Happiness or Self-preservation. 3. Neither did she make him the sole and absolute Judge of the means that may conduce to these Ends: For if this were so, let him use her never so cruelly, or severely, she could have no cause.to cenr sure him, or complain in the least against him. 4. If she has not so absolutely given, up her Will to his, {he is still Judge when she is well used by him; ot else so cruelly, that it is no longer to be endured. And therefore if such a Husband will not. allow his Wife sufficient Food and Raiment, and other Necessaries j or that he uses her cruelly, by beating, or other Punishments, or hath endeavoured to take away her Life; in all these cases in the State of Nature, and where there i s no Superior Power to complain, or appeal to, she may certainly quij: him; and I think she is not bound to return, or cohabit with him again, until she is satisfied he is sorry for his former cruel Treatment of her, and is resolved to make amends for the future. But whether this Repentance be real or not, she only can be Judge, since she can only judge of her own Happiness, and the means of her Preservation. And the end of Matrimony being for their mutual happiness, and help to each other; if he has broke his part of the Compact, she is then so far discharged from hers, and consequently in the meet State of Nature (which is that we are now talking of) the Vinculum Matrimmii (as you Civilians term it) will be likewise dissolved: So likewise if such a Husband, for no just cause, or crime in the Wise, but only to be rid of her, should endeavour to take away her Life; as suppose, to strangle her in her Sleep, or the like, no doubt but she may (notwithstanding your Conjugal Subjection) resist him by force, and save her Life, until she can call in her Children, or Family, for her rescue and assistance j who sure may also, notwithstanding this absolute Despotick Power you, place in their Father, or Master, rescue her from his Rage and Malice, whether ne will or not: Nay they are bound to do it, unless they will be Accessaries to her Murther... \ /•;•> . „; 31U 7t-j .

M. These are doubtful Cases at best, and do very seldom happen; and a Husband can scarce ever be supposed to be so wicked, as so hate, and-destroy his own Flesh j arid therefore we need not make Laws on purpose for Cases that so rarely happen. .A .j ■>.'-:■ •'• •. .;. . •

F Rarely happen! I see you are not very conversant at the Old Bail), nor at our Country Assizes; where if you please to come, you may offers hear of Cafes * of this nature j and I wonder you that are a Civilian, and have so many Matrimonial Causes in your Spiritual Courts, brought by Wives for Separation, poster; Savitiam, &c.should doubt whether Husbands do often use their Wives so illx that dt is not to be endured. But if the Wise have these Privileges, pray tell me, why the Children sliall not have the fame, according to your own Maxim, of Partmsequitur Ventrem, since the Subjection of Children must be according to your own Principles, of the fame nature with that of the Mother; and then pray what becomes of this absolute and perpetual Subjection you talk of?

M. Yet I hope you will not affirm, but that Children are under higher obliga^ tions of Duty and Obedience to their Father, than a Wife is to her Husband, with, whom perhaps {he may in some Cases be upon equal Terms ,• but Children can never be so in respect of their Father, to whom they are always inferior, and ought to be absolutely subject in the State of Nature, (that is) before Civil Laws have restrained Paternal Power. ■

F. I thank you, Sir, for bringing me so naturally to the other Head I was coming to, and I agree with you in your other Maxim, 0s" Qukquid ex me & uxore mea mscitur in potestate mea est, yet not in your Sense: For if I should grant, that the Father's Power over the Child commences from his Power over the Mother, by her becoming his Wise, and submitting herself, and consequently all

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the Issue that should be begotten of her, to her Husband's Power; yet as I have prov'd already in cafe of the Wife, so I think I may affirm the fame in that of the Children, that they are not delivered by God so absolutely to the Father's Will, or Disposal, as that they have no Right, when they attain to Years of discretion, to seek their own Happiness and Preservation in another place, in case the Father uses them as Slaves, or else goes about to take away their Lives without any just cause; since when Children are at those Years, I think they are by the Laws of Nature, sufficient Judges of their own Happiness, or Misery, that is, whether A they are well, or ill used; and whether their Lives are in danger, or not, by their Father's Cruelty.

For tho' I grant that Children, considered as such, are always inferior to their Parents; yet I must likewise affirm, that in another respect, as they are Men, and make a part of that great aggregate Body of Mankind, they are in all Points equal to them; that is, as the Parents have a right to Life, Happiness, and Self-preservation, so have they likewise; and consequently to all necessary means thereunto, such as Food, Cloaths, Liberty, (I mean from being used as Slaves) which Principles, if true, will likewise serve for a farther Proof against that absolute Property, and Dominion, you supposed to be conferred on Adam over the Earth, and all things therein, exclusive to that of his Wife and Children.' For , if they had a Right to a Being and Self-preservation, whether he would or hot, so had they likewise to all the means necessary thereunto; and he was not only , obliged to provide Food and Raiment for his Children, whilst they were unable to

do it for themselves, but also when they grew up to years of discretion, they might take it without his Assignment, and this by virtue of that Grant in Genesis I before quoted; And God said, Gen. i. (<&«,. to the Man and the Woman, and in them to all Mankind, then in their Loins) Behold, I have-given you every Herb bearingSeedy •which is upon the face of the Earth, Sec. Behold, to you it jhatt be for Meat. So that sure you were too rash, in affirming with Sir R.F. that a Son, a Slave, and a Servant, were all one at the first: For I hope I have proved, the Father doth not acquire any absolute Property in the Person of the Son, either by his begetting him, or bringing him up; for then I grant, a Son and a Slave would be all one. But if you please better to consider it, you will find, that Fathers were never ordained by God for perpetual Lords and Masters over their Children, but rather as Tutors and Guardians, till they are of Years of discretion, and able to shift for themselves j God having designed the Father to beget and bring up his GhikL not for his own interest or advantage only, but rather for the Child's happiness and preservation, which by the Laws of God and Nature he is bound to procure: For as it is the Son's Duty never to do any Action, that may make his Father repent his begetting, or bringing him up; so on the other side, the Father ought not to treat his Son so severely, as to make him weary of his Family, much less of his Life. It is the Apostle's Precept, Ephef. 6. 4. Parents provoke not your Children to wrath; which certainly he knew they were apt to do, or else that Precept had been needless. Now pray tell me, if Adam had used one of his , Sons (whom he loved worse than the rest) so cruelly, as to make him a Slave instead of a Son, and when grown a Man, should have put him to all the servile and hard Labour imaginable,with scarce Victuals enough to live upon,or Cloaths to cover him-; what must this Son have done? born all patiently? Or else do you think it had been a damnable Sin, if he had fled into the Land of Nod, to Cain his elder Brother? B. P. P. M. To answer your question, I think in the first place it ^had; for I do not c.2. Sect. 9. oniy take Qajn to have Deen tne fjrft Murderer, but Rebel too: And in the next place this Question is needless; for it can scarce be supposed, that ever Adam, or any Father can be so wicked and ill-natured, as to use a Son thus cruelly, without some just occasion ; but if he had, I think he ought to have endured any thing from his Father, rather than have left him without his leave, since I cannot see how Children can ever set themselves free from their Father's Power, whether they will or no.

F. If that be the condition of Children, they are then, instead of Sons, as absolute Slaves as any in Turkey,whenever their Father pleases. But you have already granted, that Fathers ought not to use their Children like Slaves, nor to fell them for such to others; and tho' I have no great kindness for Cain, yet I know not what warrant you have to call him Rebel: I am sure neither the Scripture, nor Josephs}, mention his going to the Land of Ned, as an offence

committed against his King and Father, Adam; but rather as a piece of Com2 pliance or Obedience to God's Sentence, who had made it part of his Curse so to do.

. M. I shall not much trouble my self whether Cain was a Rebel or not; I only tell you what some Learned Men have thought of his quitting his Country; but as for other Children, tho' I grant their Fathers ought not to use them like Slaves, yet if they fliould happen to do so, I think such Children ought to bear it as a Judgment inflicted by God for their Sins, and should not by any means set themselves free, tho' their Fathers use tftem never so severely; since it is God's Will they should be born, and continue under the Power of such severe Fathers.

F. But pray, Sir, tell me : What if this Son had fallen into the power of a Stranger who would thus make a Slave-of him, was he likewise bound to bear this as a'Punishment from God for his Sins, and might he by no means set himself free? since this could not happen without God's permissive Providence at least j and I think you will scarce prove it more in the Case of the Father, unless ^ou will allow God to be the Author of Tyranny and Oppression. | As. I grant, that a Man that is made a Slave to a Stranger by force, without just cause given by him, may set himself free by what means he can; but I deny hclhath the fame Liberty in respect of his Father, since the Father's Power over bim is from God, and so is not the Stranger's. -" ,

F What Power of the Father do you mean? that of making his Son a Slavei or of using him as a Father ought to use a Son? The latter of these I very well understand to be from God, but not the former: And if the Father hath no such Povver from God, I cannot see how it can be any Act of Disobedience in a Son to'look to his-.,own Liberty and Preservation; since Cruelty and Tyranny can never be Prerogatives of Paternal Power, as you your self confess. • M. I grant, indeed, a Father hath no such Power from God to treat his Son thus cruellybut if he does, I fay again, that God having ordained the Son to be absolutely subject to his Father, he must endure it, let the consequence of it be what it will: And I suppose you will not deny, but that in case of necessity, as when a Father hath not wherewithal to nourish and breed up his Children he may sell or assign his Interest in them to any Person, who will undertake to provide for their Nourishment and Education; and that the Children so sold, or assigned, do thereby become absolute Servants to the Person to whom they were thus assigned as long as they lived; and why this should be their Condition in respect of a Stranger, and not so to their Father, I can see no reason, since their Father would have been at as much trouble and charge for their Education as the Stranger.

- F- I so far go along with you, that in case of such necessity as you mention, a Father may sell or assign the present Interest in his Child to a Stranger: yet I cannot see any reason that this Sale, or Assignment, should confer so absolute a Property in the Person of this Child, as that therefore he should be a Slave to this , Master, or Fosterer, as long as he lived: Since admitting that the Father, ot other Person who takes upon him that Care, may perhaps justly claim a Right in the Service or Labour of the Child, to satisfy them for their trouble and charge infringing him up; yet it doth not therefore follow, that this Service is due as long as the Child lives, but rather until such time as they can make their Labour satisfy them for their charge and trouble in keeping him, which may very well be by that time the Child attains to twenty five Years of Age at farthest: And there are those that have offered to breed up and maintain all the Foundlings and Bastard Children in England, if they may be bound to serve them until about that Age. So that I see no reason why a few Years of Education should give any Man a Right over another's Person as long as he lived.

But if you urge, that the Child owed his Life to his Father, or Fosterer, since without his assistance he must have perished, and therefore the Service of the Child's whole Life is but little enough to recompence it: To this I answer, That the Parents are under an absolute Obligation, by the Laws of God and Nature, to breed up their Child, and they sin, if they do not perform it as they ought; the end of a Father being chiefly for the breeding up and preservation of the Child 5 and therefore there is no reason he should acquire such a Property in him, merely because he did his Duty: And the Duty of a Father being to better the Condition! of his Son, and not to make it worse, I doubt whether an absolute and perpetual 0 Fa Servr

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Servitude, or Death it self, were the better bargain. And if this Right will not hold for the Father himself, much less will it for a Fosterer, since he is likewise obliged by the Laws of Nature and common Humanity, as well as by his Corn tract with the Father, to breed up this Child so assigned him; and not to let him perish, if he be able to breed him up. Nor ought this Father's or Fosterer's .teia* poral Advantage, which he may make of this Child, to be the principal end of his Undertaking; but the doing good to Mankind, and the Advantage he may reap thereby, is to be considered only as an Encouragement, and not as the only Motive to this Duty, since he is obliged to do the fame thing, tho' he were sure the Child would either die or be taken away from him, before he could be with him half long enough to satisfy him for his Charge. ■ 'n

Neither doth this Reason hold true, even according to the Scripture Rules of Gratitude, that a Man hath a Right to exact, of one to whom he hath done a Courtesy, or bestowed a Benefit, a Return as great as the Benefit bestowed ,• since this were not Beneficence, but meer Bartering or Exchange; and a Man who had his Life saved by another's assistance (suppose by pulling him out of the Water) must be obliged by this Principle to submit his Life to his disposal ever after. And therefore I desire you would give me some better Reasons, why such a Son ought to be so absolutely subject to his Father's Power, as that it is not lawful for him* upon any account whatsoever, to free himself from ir, Jet his Father use him neve* so cruelly or severely.

M. Well, Sir, since you desire it, I will give you the best Reasons I have, why God cannot permit so unreasonable a Liberty as this would give to all Children, in case they should make use of it whenever they thought fit; and therefore God hath ordained it thus, to take away all those Pretences of" Undutifulness and Disobedience, which Children might make, should they be permitted to be their owa Judges, when they might quit their Father's Family without his leave; which Pretence of cruel Usage they would be sure to make use of, thereby to leave theiff Parents upon every slight occasion, saying, that their Fathers were so cruel and severe, that there was no living with them any longer; when indeed it was not so, but on the contrary, no just Cause of Complaint against them, more than bare correcting them for their Faults: And so the Father might be bereft of some, nay all his Children, who should be helpful and serviceable to him in his old Age, which would breed great Confusion and Inconveniences in Families, especially in the State of Nature; as in the Cafe you have put concerning Adam's Sons, they being the only Servants he could have to make use of on all Occasions.

F. I desire you in the first place to take notice, that I put this Cafe concerning fAdam by way of Supposition only; not but that I have a better Opinion of our first Parent (notwithstandipg his Fall) than to believe him so ill-natur'd, or that he was ever so cruel as to use his Children thus hardly. But in this depraved State of Nature such unnatural Rigors and Cruelties in Fathers, as well as Disobedience in Children, is but too frequent; which no Man needs to doubt of, that will but consult the Custom of divers Nations in Africa, and other Countries, at this day; where they sell their Sons for Slaves, and exercise this Fatherly Power with the greatest Tyranny and Rigor, using them as Slaves, or felling them to others for such things as they want. And if you think it against the Law of Nature for such Children, when they see themselves ready to be sold to work in the Mines in Peru, or Sugar-works at Barbadoes, to run away into another Country to avoid such a Condition, which is as bad or worse than Death, you may enjoy your own Opinion j but I am sure you'll have but few Proselytes, but such as are of the like arbitrary Principles. And as for your Pretence, that if Children should be allowed to judge when their Fathers treated them too severely, or like Slaves, they would all run away; that is but a Subterfuge: For first, it is a needless Caution, Children being, when young, not apt to leave their Parents who have bred them up, upon whom they depend for their Subsistence, and to whom, if they are treated like Children, they seldom fail to bear a natural Duty and Affection; and if well used, they will, when of Years of Discretion, be likewise willing to stay with them, and look after them when sick or old; not only for Duty, but also for their own advantage, and in hopes of having a share in what Goods or Estates they may leave behind them when they die. But if, when they come to Years of discretion, they can better their condition by marrying, and leaving their Father's Family, their Parents are bound in conscience to let them go; since it is their Duty to better the Condition of their Children, and not to make it )

wofse : Always provided that such Children either take care of their Parents

themselves, or else hire others to do it for them, in cafe they want their Assistance

by reason of their old Age, Poverty, or Sickness. But if Children may not quit

their Father's Families, tho'they are never so hardly or severely dealt with, the

consequence will be, that Fathers may keep their Children as Slaves as long as

they live, tho* it were to a hundred Years, or else may sell them to others, to be

used worse, if possible ,• the Absurdity of which Assertions, and how contrary

to the common Good of Mankind, I might leave to any indifferent Person to

judge of.

Therefore, I think, I may very well (according to the Learned Grotius) divide the Lives of Children into threePeriods of Ages. The first is the Period of Infancy or imperfect Judgment, before the Child conies to be able to exercise his ReasonThe second is the Period of perfect Judgment or Discretion, yet whilst the Child continues still part of his Father's Family. The third is, after he hath left his Father's, and enter'd into another Family, or sets up a Family himself. In the first Period, all the Actions of Children are under the absolute Government of their Parents: For since they have not the Use of Reason, nor are able to judge what is good or bad for themselves, they could not grow up nor be prescrv'd, unless theft Parents judged for them what means best conduced to this end;yet this Power is still to be directed to the principal End, viz,, the Good and preservation of the Child. In thesecond Period, when they are of mature Judgment, yet continue part of their Father's Family, they are still under their Father's Command, and ought to be obedient to it in all Actions which tend to the Good of their Father's Family and Concerns. And in both these Ages I allow the Father has a Right to make his Children work, as well to enable them to get their own Living, as also to recompence himself for the pains and care he has taken, and the charge he may have been at in their Education, and also to correct them, in cafe they ie fuse to work or obey his Commands. But in other Actions the Children have a Power of acting freely, yet still with a respect of gratifying and pleasing their Parents, to whom they are obliged for their Being and Education ; since without their care they could not have attain'd to that Age. But this Duty being not by force of any absolute Subjection, but only of Piety, Gratitude and Observance, it does not make void any Act, tho' done contrary to their Duty. The third andInst Period is, when the Son, being of Years of discretion, either by Marriage or otherwise is separated from his Father's Family: In which case he is in all Actions free, and at his own disposal, tho' still with respect to those Duties of Piety and Observance, which such a Son must always owe his Father, the Cause thereof being perpetual.

M. I must beg yonr pardon if I cannot come over to your Opinion, notwith-F.O.G./>.aa. standing all you have said in this long Discourse; since I cannot conceive how in any case Children can naturally have a Power or moral Faculty of doing what they will without theft Parents Leave, since they are always bound to study to please them: And tho', by the Laws of some Nations, Children when they attain to Years of Discretion have a Power and Liberty in many Actions j yet this Liberty is granted them by positive and humane Laws only, which are made by theSupream Fatherly Power of Princes, who can regulate, limit, or assume the Authority of inferior Fathers, for the publick Benefit of the Commonwealth. So that naturally the Power of Parents over their Children never ceases by any Separations, tho , by the permission of the transcendent Fatherly Power of the Supream Prince, Children may be disoens'd with or privileged in some cafes from Obedience to subordinate Parents.

F. And I must beg your pardon, Sir, if I cannot alter my Opinion in this matter, for all that you have now said, since you can give me no better Reasons than what you did at first: And tho' you'say, you cannot conceive how Children can ever in any case have a Power or moral Faculty of doing what they will without their Parents Leave, yet they may have such Power in many cases, whether you can conceive it or no. For tho' I do gtant, that Children are always bound P.». M 20, to study to pleasetheir Parents, yet doth not this Duty of Gratitude or Compla-21* cency include a foil and perfect Dominion of Fathers, in the State of Nature, over the Persons of their Children, and an absolute Power over them in all cases whatsoever, so that the Children can have no Right to consult their own Good or Preservation,

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however it may be endangered by their Father's Passion or ill Nature: Since a Wife is always obliged to this Duty of Complacency to her Husband; yet is not this so absolute, but that in the State of Nature she may quit his Family in those Cases I have already mentioned, and against which you had nothing to object. And I deny your Position, that Children, when .they attain to Years of Discretion, derive that Power and Liberty they use in many Actions from positive Humane Laws only; or that the Power which Parents naturally have over their Children can never cease by any Separation, but only by the permission, of the Father.

For as for Bodtn, and divers others that have written on this Subject, they do no more than follow others, who have asserted this absolute Power of Fathers upon no better grounds than the Civil or Roman Municipal Laws, without ever troubling themselves to look into the true Original of Paternal Authority or Filial Subjection, according to the Laws of Reason or Nature. And most Treatises of; this Subject being commonly writ by Fathers, no wonder if they have been very exact in setting forth their own Power over their Children, but have said little or nothing of the Rights of Children in the State qf Nature; and therefore I mail farther let you fee, that this Duty of Children, even of pleasing or obeying their Parents, can only extend to such things as they may reasonably or lawfully command. For suppose that Adam had commanded some of his Sons or Daughters never to marry, you cannot deny but this Command had been void (that being the only means then appointed to propagate Mankind :) For when there then lay a higher'Obligation upon them to increase and multiply than; there is now, they might then certainly have chosen Wives for themselves, when,they were of Years of discretion, and capable of Marriage.

And farther to {hew you, that Children may in some Cases separate themselves from their Father's Family and Subjection,. without their Father s Consent, is apparent as to the Daughters, who if they were at first obliged by this Precept to marry, might likewise do it whether he would or not, and were to be obedient to their Husbands "when they were married, the Obedience which they before owed to their. Father being now transferred to their Husband; or else they must serve two Masters, which is against our Saviour's Rule- By which it appears* that the Subjection of Daughters in the State of Nature is not perpetual: And to prove that Sons have a like Right to'separate from their Fathers Family, let us suppose that Adam had been so cruel and unnatural as some Fathers are ,• that being only sensible of the Profit he received from his Sons Labours, he would never have permitted them to leave his Family, nor to enjoy any thing of their own, but would have kept them like Slaves as long as they lived: If you affirm, that he might have done so if he had pleased, and that the Sons had no lawful means to help themselves, since he only was Judge whether ever he thought fit to set them free or not; you your self have already granted the contrary, when you affirmed, that a Father had no Right to sell his Child as a Slave; and then sure he can have as little Right to use him so himself.

But as for what you fay against that natural Equality of Children to their Parents, considered as Men, you might easily have understood it, if your Thoughts were not so wholly taken up with this transcendent imaginary Empire of Fathers in the State of Nature, as if they were somewhat more than Men : F^r pray tell me, are they not equal, who have the same Right from God to the same things? For if Fathers have a Right to live and be preserved, so likewise have the Children; and if they have a Right to the End, they have likewise the same to the Means necessary thereunto, such as are Food, Raiment, Freedom from Slavery, &c. And if they are thus equal, they must likewise, when they attain to Years of discretion, be endued with a Power of judging for themselves, concerning what things are necessary to their Happiness and Preservation, and what tends to their" Misery or Destruction; and consequently may very well judge whether their Fathers treat them kindly or cruelly : For if the Father in the State of Nature is the sole Judge of the Means that conduce to his Son's Happiness and Preservation, without his Consent he may determine, that Poverty, Slavery, and Torment, shall be fit Means, and conducing to this End, which is against Sense and Reason. And tho' I grant, that Sons may sometimes be mistaken in the true Means that may lead to these great Ends of Life; yet doth not this take away their Right of judging for themselves, any more than it doth the fame Right from their Fathers, who as Men are also liable to the like Mistakes. Neither did any Slave or Subject


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eves give up his Will so totally to his Master or Monarch, as abfclutely to renounce all Right to Happiness and Self-preservation, or to the Means that may conduce thereunto. But I think we have sufficiently debated this great Point of the natural Power of-Fathers over their Children: And therefore

Let us in the next place consider, whether Children may not upon these Prin-4 ciples in some cases make use also of Self-defence, even against their Fathers, if they cannot otherwise avoid certain Ruin and Destruction: Therefore I will first ask you what you think of this Cafe? A Son in the "State of Nature being separated from his Father's Family, and having Children and House of his own, what shall he do in cafe his Father, by the evil Suggestions of a Stepmother, or other wicked Persons, be so far incensed against his Son,', as to fend Men to burn his House, plunder him of his Goods, and destroy his Plantation?

AjC If the Son be absolutely set free from his Father's Family and Power with his consent, I do not deny but that such a Son may resist those Persons his Father fends to ruin him and his Family, and may repel their Violence by force; but I do not allow the Son the fame Power to resist the Person of the Father, if he should come himself thus to destroy him.

 F. Why so? Do you think a Father, by being so, hath any greater Right td

destroy his Son and ruin his Family than a Stranger?

M. No; but because the Person of a Father ought always to be esteemed by the*Son as sacred as his natural Prince : and if he should have a Right to resist his Father by force, he might happen to kill him in the Scuffle, which would be a Sin against 'Nature.

F. Well, suppose the worst, would this me more a Sin against Nature, than to suffer himself, Wise, and innocent Children, to be turned out of all they have, and left to perish by Hunger and Cold? St. Paul says, Thathe that doth not provide for his Family is -worse than an Infidel; and, I think, so would the Son be, if, for fear of hurting his Father's Person, he should permit all his Family to be exposed to certain'Beggary and Ruin.

*(.' This Precept of St. Paul obliges only., when a Man may provide for his ily by lawful means, but not when it cannot be procured but by doing what is unlawful, asTtake this Resistance of the Person of the Father to be.

F. I grant indeed that a Father, acting as such, is Jiot to be resisted, even when Ire corrects his Son; but I suppose you will not say, that in the case I put he acts as a Father, but an Enemy, when he goeth about without any just Occasion -to kill or ruin him; unless you can suppose, that the Will to jpreserve and destroy.can consist together in the same Subject: Neither can you affirm, that the:Father hath any Right to deal thus wickedly and violently towards his Son and his innocentJFamily. By what Law then must the Son be obliged to sacrifice his own Life, arid that of Wife and Children, and all that he hath, to this imaginary Duty -? '•"n"

M.; There seems to me.two good Reasons for it: The first is that Gratitude which the Son .must always owe his Father for his Being and Education; and therefore if he give up his Wife, Children, and all that he hath to his Will, it would 'scarce be a sufficient Requital for all the Benefits he hath ^ceived from him. The second is, because no Circumstances whatsoever can rake off or obliterate this Relation i And tho'tis true your Father, whilst acting thus, doth not deal with you as a Father, but an Enemy; yet he is still your Father, and you are and-will be always his Son, do what you can, and so consequently you will still owe him Subjection. For it is a Maxim not only of the Civil Law, butthaf B. of Nature too, and this most of all in-the State of Nature, that is, before Civil Laws bad restrained the-Paternal Power, Jura fanguinis nuDo deliBo dirirti pejfunt i andla'ftly from the fourth Commandment of, Honour1 thy Father, &c. Now no Man can render Honour to him whom he goeth about to resist, and so may also destroy.

F. I confess yoii have urged this Argument as home as the thing will bear; but yet-I think I can shew you, that the Son is so far from acting against the Law of-Nature-in thus resisting his Father, that I think he would rather transgress it, if he acted otherwise. But first to answer your Arguments, I deny that either Generation or Education do confer so great a Benefit, that a Man is obliged to sacrifice himself, his. Wifc, and Children, and all that he hath, in return for it.

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First for Generation: I suppose you will not much insist on that, since you must grant that a Father doth not act in that matter as a voluntary, but natural Agent; neither is it in his power to hinder.the Child that he gets from being conceived or born; neither did he get him so much to propagate Jiis Species, as to gratify his own present natural Appetite.

Then for Education, which I grant is much the greater Obligation, since by the former I am only born an irrational helpless Creature, but by the other I am made a reasonable Man, able to help and provide for my self, and knowing my Duty to God and other Men; yet even these Obligations are not great enough to make me sacrifice my self and all that I have to his Fury or Humour. I grant indeed, that if it were to save a kind Father's Life, a Son may be obliged to venture, nay lay down his Life to perform it; but I deny, that even for such a Father he hath a Right to give up the Lives of others, which are not at his disposal (as those of his Wife and Children are not) in this case. For this were not only to return more than was first given, but also to pay Debts with that which is not my own; and to give up their Lives, and let my Father take them away, is all one", if I can hinder it : Qui non prohibet, facit. Then as for the Relation of a Father, which you fay no Fault of his can obliterate or destroy, you must grant that it may be suspended for a time: As, when a Man binds or resists his mad or drunken Father, who would kill him or his Wife or Children, he doth not do it to the Father, but to the mad Man or Drunkard; and so likewise in this case, he doth not resist his Father, but a furious unreasonable Creature, who is so far from "behaving himself as becomes a Father, that he doth not act like a Man. Nor doth your Maxim held true in all Cases, and therefore is no Law of Nature; for Jurasanguinis aliquo deliilo dirimi foffunt, or else a Father could never put his Son to death for any Crime whatever, which you have affirmed he may: But certainly when he acts thus, it is not as a Father, nor doth he destroy him as a Son, but an Enemy or Malefactor. - .

Now I desire you or any indifferent Man to consider, since the common Good of Mankind is the Sum of all the Laws of Nature, and the great Rule by which they are to be tried, which Rule is to' be preferred, and conduces more there Ato, ■when they cannot consist at once or together: That a Father, who by your own confession comes to do an unlawful wicked Action, viz,, to ruin and destroy his Son, with his Wife and Children, should be resisted, and consequently one Man s Life put in hazard; than that many innocent Persons should be ruined, and perhaps starved to death for want of Food and Shelter. And as for the fifth Commandment, that extends no more to the Father than to the Mother; tho' you are pleased to leave her out, because it makes against your Opinion : And therefore if by honour is meant, Thou shalt not resist ; then no Man should resist his Mother any more than his Father, if she went about to kill him; and yet not the Mother, but the Father, is by your Hypothesis the natural Monarch, that hath this Power of Life and Death over the Son. But let us pursue this Point no farther; if you will not be convinced, I cannot help it.

But pray tell me now, what a Son must do, if his Father, transported by Fury and Malice, should go about to kill him with a Sword or other Weapon, and that be hath no otller way left to save his Life, neither by Intreaty nor Flight (which I grant ought to be done if possible) whether he may resist his Father with what next comes to hand, or fufser himself to be killed?

M. I am much better satisfied in this cafe than in the other, that he ought : rather to let his Father take away his Life than resist him, since here is but one Life to be lost; whereas, I confess, the other Cafe was harder, because there were more Lives concerned than the -Son's; and I am of this opinion partly for the fame Reasons as before, and partly because 'tis more suitable both to Reason and the Law of Nature, as also to Holy Scripture, Precepts and Examples: For if St. Peter command Servants to be fubjeSi to their Mafias, &c. not only to the Good and Gentle, but also to the Froward; and if Servants, much more Sons, who owe their Fathers a higher Duty and Obedience than Servants can owe their Masters; and Isaac was so far convinced that his Father Abraham had Power over his Life, that tho' he was a lusty young Man, and could carry Wood enough to consume a Burnt-offering, yet do we not find that he offered in the least to resist his Father, when he was about to bind him to be sacrificed: For he very well knew, that his Father could not be resisted without endangering his Life, if not taking it away in the Scuffle. And fore you will grant, that a Son ought rather of the two to let his Father kill him, than he take away his Life, by whose means he received his own ; especially since Abraham was the Master of a great Family, and in whose Life and Well-being not only his Mother, but all the Family, had an Interest, as necessary for their Well-being and Happiness. Nor can I think, that Abraham would have so readily assented to God's Command for the doing of it, had he not been already satisfied, that he had an unaccountable Power of Life and Death' over his Son by the Laws of God and Nature.

F. In the first place to answer your Authorities from Scripture; as for that Place of St. Peter you have cited, it is not a Precept given by the Apostle to Sons, but to Servants or Slaves, whose Lives and all that they had were at their Masters absolute disposal, being those whom the Apostle Paul calls, Servants under the Take; and unless you will make a Slave and a Son to be all one (which you have already denied) this Precept doth not at all concern them. And as for the Example of Isaac, that will make as little for your advantage; for first, as to Abraham, he could not but know, that to kill his Son without any just Cause, was as much Murder in him as in any other Man. Now what could be a juster or a higher Cause than God's particular Command? So that as this Act of Abraham is not to be taken as an Example by other Fathers, so neither doth the Example of Isaac oblige other Sons to the like Submission ; therefore it is most reasonable to suppose, that Isaac being then (as Chronologers make him to be) about nineteen or twenty Pin.M.p.ij. Years of age, and of Years of discretion to ask, where was the Lamb for the Burnt-offering, was also instructed by his Father, before he came to be offered^ of the reason of his dealing thus with him; and then the Submission was not payed to his Father's, but to God's Will, from whom he miraculously received his Being. But if any Man doubt whether Resistance in such a case were lawful, I leave it to his own Conscience to consider, whether, is his Father had him alone in a Place where he could neither run away, nor yet call for Help, he would suffer his Father to cut his Throat without any Resistance, only because he pretended Divine Revelation for it. Not but that I so far agree with you likewise; as to limit such a Resistance only to the holding his Father's Hands, or warding off his Blows, but not to the taking away his Life; but of the two, rather to lose his own than to kill him, for the Reasons you have given, and which I will not deny: But yet if the Father be mad, I doubt whether the Son is bound to let him kill him rather than take away his Life, since such a Father's Life is no way useful to the Good of the Family. So that tho' I should grant that Paternal Power is from God, and consequently irresistible, yet doth it not follow, that all the unjust Force or Violence, which a Father as a Man may use against his Son's Life or Fortune, is such part of a Paternal Power, as God hath commanded us not to resist; since you your self must grant, that he doth not thus act (in going about to kill his Son) as a Father; but a violent and wicked Man: So that where the Father hath no Right to take away his Son's Life, I think in all such Cases the Right of the Son to resist him doth take place. And if a Man may resist or bind his Father, when he is mad or drunk, and in such Fits goeth about to kill him, I can see nothing to the contrary why he may not do the fame thing, when his Father is transported by a sudden Rage or unreasonable Malice; since both of them do take away the Use of natural Reason, as much the one as the other, according to that Saying of the Poet, Ira furorbrevis eft, Anger is but a short Madness; Fury and Malice being alike fatal and destructive to the Son's Life and Safety with Drunkenness and Madness; nor doth such a Son resist his Paternal Power, but only his brutish Force and Violence. So that if Sons (when grown to Years of discretion) have not a Right to defend theif Lives, in the State of Nature, against all Persons whatsoever, who go about to* take it away without any just Cause; every Son ought to suffer his Father to kill him, whenever, being transported by Madness, Drunkenness, or sudden Passion* he hath a Will so to do: Which how it can consist with that great Law of Nature, of propagating and preserving the Species of Mankind, if a Father should have such an unreasonable unlimited Power, I'll leave to your self or any other reasonable Man to consider. Nor doth it follow, that because a Son can in no wise be superior to his Father, he ought not therefore to resist him; since tho' I grant Punishment is a Right of Superiors over their Inferiors, yet so is not Resistance; t.n.M* since every one knows that Resistance is exercised between Equals, as I have already proved Sons are to their Fathers, in- all the Rights of Life and Self

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preservation; and consequently to judge when their Lives and Estates are unjustly invaded.

M. I must confess I am in a great doubt which will most conduce to that great Law you mention (which I grant to be the Sum of all the Laws of Nature) viz..' of preserving or prosecuting the common Good of Mankind; that Fathers should have an absolute irresistible Power over the Lives and Fortunes' of their Children, let them use it how they will ; or else that Children should have a Right to resist them, in some cases, when they go about to take away either of them without any just Cause : For tho' I own, that (if the former Principle be true) Parents may be sometimes tempted to take away their Children's Lives or Estates without any just Cause; so on the other side, if Children shall assume such a Power to themselves of judging when their Fathers do thus go about to invade either their Lives or Estates, it will (I doubt) lay a Foundation for horrid Confusions and Divisions in Families; since, if Children are under a constant Subjection to their Fathers, they ought then to be absolutely subject to them in the State of Nature, and therefore ought never to be resisted: For if all Fathers, and Masters of Families, are trusted by God with an absolute Power of Life and Death over the Wife, Children, and Servants of the Family, as your self cannot deny; then no Resistance of this absolute Power can subsist with the Peace and Tranquility of that Family, without the Diminution or total Destruction of that absolute Power, with which they are entrusted.

And tho' I admit that Parents ought neither to use nor sell their Children for Slaves, nor to take away either their Lives or Goods, without great and sufficient Cause; yet of these Causes Fathers, in the State of Nature, must be the only and uncontroulable Judges: Since, if Children (whom I still consider as Subjects, tho* not as Slaves, in this State, as long as they continue Members of their Fathers Family) should once have a Right to resist, when they thought their Lives or Estates^ were unjustly invaded; they might also oftentimes, through Undutifulnese or false' Suggestions, pretend or suppose that their Fathers were mad, drunk, or in a Passion, and went about to take away their Lives, when really they intend no such thing, but only to give them due Correction : Which would give Children an unnatural Power of resisting, or perhaps of killing their Fathers, upon false Surmises or flight Occasions.

And as this would, introduce great Mischief and Cor fusion in private Families, so would it likewise prove a Foundation of Rebellion against all Civil Powers whatsoever,- if Subjects, who are the fame thing in a Kingdom that Children are in a Family (in the State of Nature) should take upon them to resist their Prince whenever they think he goeth about to invade either their Lives or Fortunes, which would likewise serve to justify all the most horrid Rebellions in the World; since all Rebels whatsoever may or do pretend, that their Lives, Liberties and Fortunes are unjustly invaded, when indeed they are not; and likewise upon the least Hardship or Injustice in this kind inflicted upon any private Subject, either by the Prince or his Ministers (which Abuses and Violences do often happen even under the best Governments) any such private Person, who shall think himself thus injured, may upon this Principle take up Arms, and endeavour to right or defend himself against such Violence; by which means, under pretence of securing a few Men in their Lives or Estates, whole Kingdoms (if such Persons can find Followers enough) may be cast into all the Mischiefs and Confusions of a Civil War, till the Prince and Government be quite destroyed.

F. I must confess, the Arguments you now bring are the best you have yet produced, since they are drawn from that great and certain Law of procuring the common Good and Peace of Mankind. But I hope I shall make it plain to you, that no such terrible Consequences will follow from the Principles I nave already laid down; and therefore I must first take notice, that you have in your Answer confounded two Powers together, which ought to be distinguished in the State of Nature, viz,, the Power which Fathers, as Masters or Heads of Families, may exercise over the Lives of their Children or Servants, whilst they remain Members of their Family, and that Reverence and Duty which Children must always owe their Fathers as long as they live, even after they become Fathers or Masters of Families of their own. In the first State, I have already allowed, that such Fathers, as Masters of Families, may lawfully exercise a far greater Power over their Children, whilst they are Members of their Family, than they can when i

they are separated from it, yet is not this Power in all Cafes absolute or irresistible, as I have already proved; and therefore I do in the first place restrain this Right of self defence only to such Cases where a Father would take away a Son's Life in a fit of Drunkenness, Madness, or sudden Passion, without any crime committed, or just cause given: Which I also limit to a bare self defence, without injuring or taking away the Life of the Father if it can possibly be avoided; and in this Cafe, if the Son, who is like to suffer this violence, may not judge when his Life is really in danger to be destroyed, because he may pretend so when really it is not. This is no just reason to overthrow so great a Right as self preservation; since if this were a sufficient Objection, it would have the same force against all self defence whatsoever: For it doth often happen that wicked and unreasonable Men will pretend that they were forced to take away the Lives of others, only to preserve their own, when indeed it was altogether false and needless, and they only killed them to satisfy their own Malice or Passion. And therefore, as there is no reason that the abuse of this natural Right should be used as an Argument against the use of all self defence, by any Man whatsoever ; so likewise neither ought the like abuse thereof by some wicked Children to be brought as an Argument against its being made use of at ah* by others, who are never so unjustly assaulted, and in danger of their Lives from their Fathers violence. If the first Principle be true, (on which this is founded) that a Son may exercise this Right of self defence in such Cases, without any intrenchment upon his Father's Paternal Authority, or that Filial duty and respect which he must always; owe him whenever he returns to himself, and will, behave himself towards him as becomes a Father, and not like an Enemy or Cut-throat. .j.i .<

And as for the Quarrels and Confusions, which you alledge may happen in Families between Fathers and Children, in case such a liberty should be allowed, those inconveniences will prove very inconsiderable, if you please to take Notice: That, first, I do not allow this Right of Resistance to be exercised by any Children before they attain to years of discretion. Secondly, that after they have attained to these Years, no Resistance ought to be made against a Father, whilst they remain part of their Father's Family, but only in defence of their own, their Mothers, Wives, and Children's Lives; since I grant> that a Son as long as he continues a Member of his Father's Family, ought to bestow all his own labour for his Father's profit, and cannot acquire any Property either in Lands or Goods without his Father's consent: And since you conceive this' Right of self defence, if allowed to Children, would be the cause of so great mischiefs in Families, if Children should have any Right to judge when their Fathers abused their Powei over them; let us a little consider on which side this abuse is most likely to happen; for if you please but to look into the World, and survey the Nature os Fathers and Children, and set the faults of the one against the other, you will find, that (as I confess) it is the Nature of many Children to contradict and disobey their Fathers Commands, and that most young People hate restraint*, and love too much liberty, and may oftentimes think their Fathers too harm or severe to them, when they really are not; yet doth such false Surmises and disobedient Actions, seldom end, either in absolute Resistance, or taking away their Fathers Lives by force; or if they do so, it is really done for their own defence, or whilst they are assaulted by them in their own Lives, or those of their Children; but is commonly acted privately, to satisfy their own revenge or malice, which I hold to, be utterly unlawful: So likewise let us consider on the other side, those P- n< temptations that Fathers lie under of injuring their Children!, or taking away?" **' their Lives, or using them like Slaves, withoat any just Cause; you'll find that they, by reason of their Age, natural Temper or Infirmities, may be easily transported to that degree of Passion, that not considering the Follies of Youth, they may oftentimes, in their Passion, either beat them so cruelly, as utterly to disable or maim them, or else take away their Lives for little or no Cause. And besides, Fathers being often covetous and ill natured, (which are the Vices of old Age) may (where there is no Power over them to restrain them from it) either keep, them as Slaves themselves, or else sell them to others for that purpose, (as. I have already given you an Example of the Negroes in Africa) and which of these two inconveniences are most likely to happen between Children and Parents, in the State of Nature, I ihould leave to any indifferent Man to judge between

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us. And therefore I think, it more conduces to the good and peace of Families, and consequently the happiness and preservation of Mankind, (which are the end of all Laws) that Children mould be allowed these Rights (I have already laid down)' of asserting their natural Liberty from Slavery; and defending their LiveSj and those of their Wives and Children, from the unjust Violence of their Fathers, than that they should be left wholly at their Disposal to be maimed, killed or ruined, whenever their Covetousness, Passion or Malice may prompt them to it: Since if all Fathers were satisfied that their Children have a Right thus to defend themselves in these Cases against their unjust Violence, it would be a means to make them act more cautiously, and to behave themselves with greater Tenderness and Moderation towards them. :.

So that to conclude: I utterly deny that these Principles, I have here laid down, do at all tend to countenance Rebellion, or railing Disturbances in Civil Governments; since I cannot allow you have proved Parents to be Princes or Monarchs in the State of Nature, or that Families, and Kingdoms or Commonwealths are all one: Or if I should grant them to be so, yet would it not therefore follow, that every private Subject in a Civil State hath the same Right to defend his Life, or that of his Wise and Children, against the Violence or Injustice of the Supream Powers, as a Son may have in the State of Nature to defend his Life, &c. against his Father's Rage or Violence; since I grant no particular Subject, on his own private Account, can contradict or resist the Supream Power of the lawful Magistrate (however unjustly exercised)- by Force, ~without disturbing, or at least endangering the Quiet and Happiness of the whole Community, and perhaps the Dissolution of the Government itself, which is against the Duty, not only of a good Subject, but also of an honest moral Man, who will not disturb the publick Tranquility for his own private security or revenge. But in private Families the Case is otherwise, and'Children may resist their Father in the Cases already put, without introducing either Anarchy or Civil War in the Family; since it can scarce be presumed, that either their Mother, Brothers or Sisters, will take part with a Son or Brother, against their Hufband and Father, unless it were that they might thereby hinder him from committing Murder, by defending their Son or Brother's Life, when thus violently and without cause assaulted; and if it should sometimes happen otherwise, yet this would be a much less mischief, than that, out of this sear, the Lives and Liberties of an innocent Wife and Children should suffer, without cause, by his Drunkenness or Passion.

But as for the Resistance which Sons may make in the State of Nature, and when separated from their Father's Families, it is of a much larger extent, since they may then not only defend their own Lives, but also those of their Wives, Children, and their Estates, against their Father's unjust violence. Though I do here likewise restrain this self defence only to cases of actual Invasion or Assault of such Fathers upon the Lives and Estates of their Children, in which Cases, I also absolutely condemn all Actions and Proceedings, done by way of prevention, before such violence or assault is actually begun to be made upon them; much less do I allow of any revenge or return of Evil for Evil by such Children, when the danger is over; since however such revenge may be lawful between Persons in the State of Nature, no ways related or obliged to each other; yet do I by no means allow the fame privilege to Children against their Parents, since I look upon the Obligation they have to them, to be of so high a Nature, that it can never totally be cancelled, tho' in those Cases of self preservation and defence they may be suspended for a time. As if I owed my Life, and all that I have to some great Person, who hath either saved the one, or bestowed the other upon me, though I should be very undutiful and ungrateful too, if upon his becoming my Enemy, though without any just cause, I should go about to return his injuries in the fame kind; yet were I not therefore obliged to give up that Life and Estate he had before bestowed upon me, whenever he thought fit, without any just occasion to take them away; and I am confident that Resistance in these Cases, and with these Restrictions, doth neither derogate from that Gratitude and Piety, which Children always ought to pay their Fathers, nor yet can tend to encourage either Anarchy or Rebellion; since such Sons, when once married, and are become Masters or Heads of Families themselves, then cease to be under their Fathers Subjection as they were before, though I confess they are

always always to honour and reverence him according to God's command in all Cafes, wfyen they will deal with them as Fathers, and not as Enemies.

M. I shall no longer dispute this Right of Resistance in Children in the Cafes you have put, since I fee it is to little purpose to argue longer with you about itbut this much I think is still true, that all Supream Powers whatever cannot without Rebellion and absolute Dissolution of the Government be resisted by the Subject; so that if the Government of Fathers or Heads of Families be Supream, as you seem to grant, that cannot be resisted neither, without bringing all things therein to Anarchy and Confusion.

F. Pray give me leave, Sir, to interrupt you a little; I desire you to remember that I do not ^llow the Power of Fathers or Masters of Families to be any more then Oeconomical, and not Civil Power; and Thave already '{hewed you, how Resistance of such a Power, when violently and unjustly exercised, may be resisted without any Anarchy or Confusion in the Family: But as for Resistance of Qivil Powers in some Cafes, it is not the Subject of this Discourse; and therefore I desire you would now mind the Subject in hand, and not pass off to any other, till we have difpatch'd this, so that I would rather, if you any fresh Objections to make, that you would now do it, because it groweth late.

M. I must confess ingenuously, your Arguments have much staggered me, since ^ fee great inconveniences may happen on either side. For if the Father or Master may be the sole Judge, when and how he may exercise this absolute Power, I grant all those Mischiefs may sometimes fall out, which you have here set forth: So on the other side, if the Children may be Judges in their own Cafe, tncjib' "Evils may often happen, which I have already alledged. And therefore pray pardon the, if I am not too hasty, in altering my Opinion in this Point, without better consideration. But methinks you have not yet fully answered one of my main Arguments, to prove the Power of Life arid Death to proceed from God alone, and'therefore must have been conferred at first onAdam, since no Man hath a Power over his own Life, (as I said before} arid therefore cannot have it <j^et'that of others. ,

"F. 1:1 thought' I had already as good as answered this doughty Objection,' wfteh I had yielded to you, that neither private Men, nor Masters of Families, It&e" any Right to defend their own. Lives, much less to take away those of others; but as it is granted them by God in the Law of Nature, in order to the procuring the great end of it, viz,, the happiness and propagation of Mankinds which I own could not, in this lapsed and depraved State of Nature we now are' in, long subsist without such a Power. Yet I think I have already sufficiently proved, that we have no need to recur to I know not what Divine Charter granted by God to Adam, or Noah, and from them derived to all Civil Magistrates, that ever have been or shall be in the World, the Consequence of which would be, that no Sentence of Death cpuld be justly given against any Man, but in such Kingdoms or Commonwealths, who own this Authority as conferred on them by God in Adam or Noah, from which they must derive their Title to it. TSfow I desire you would shew me how many Kingdoms or Commonwealths there are in the World, who ever heard of, much less owned this Divine Charter, this fine Notion, yea scarce reaching farther than some few Divines and high Royalists of our own Island.

'But be it as it will, the Antecedent or first Proposition is not true, that no Man in any case whatsoever hath Power over his own Life, and therefore neither is your Consequence; for I suppose, that for the same end for which the Civil Powers may take away another Man's Life, viz,, in order to the greater good of Mankind, (of which my Religion or Country is a part) I am likewise Master of my own, and may lay it down or expose it, when I think it can conduce to a greater good than my single Life can amount to. And therefore, the Example ofCvdrm the Athenian King is highly celebrated by all ancient Authors, and is not condemned by any Christian Writer that I know of, for exposing himself to certain Death to gain his Citizens the Victory, the loss of •which would have been the rain of that State. And in the first Book of Maccabees, Chap. 6. 43. (which though it be not Canonical Scripture, yet is allowed to be read in our Churches, as containing Examples of good Manners) you may read that Elea&er, the younger Brother of Judas Maccabeus, is there highly commended for his Valour in killing the Elephant, on which the supposed King

1 tj Antiochui Antiochus was mounted, that he might thereby destroy him likewise, though he might be assured of his own Death, by the Elephants falling upon him: And the Zeal for the Christian Religion amongst the Primitive Christians was so great, that we may read in TertuSian, and divers Ecclesiastical Historians, of whole Troops of Martyrs, who, though unaccused, yet offered up their Lives at the Heathen Tribunals to a voluntary Martyrdom. And farther, Eusebius himself doth not condemn, but rather commends some Primitive Christians, that being like to be taken by their Heathen Persecutors, cast themselves down headlong from the top of their Houses, esteeming (as he there tells us) a certain Death as an advantage, because they thereby avoided the crueltyand malice of their Persecutors. I could likewise give you (if it were not too tedious) several other Examples of Ancient Martyrs, who have given up themselves to certain Death, to save the Lives of some of their Friends, or else of Christian Bishops, whom they lookt upon as more useful to the Church than themselves, and which St.Paul himself does likewise suppose to be Lawful, when he tells the Romans, That though scarce'lyfor a righteousMan would one die; yet per adventure for a good Man some would even dare to die, that is, a Man highly beneficial to others. And the fame Apostle, in the last Chapter of this Epistle, returns thanks to PrifciUa andAquila, not only on his own behalf, but also for all the Churches of the Gentiles, because they had for his Lifelaid down their own Necks; that is, hazarded their Lives to save his, and where ever they might have thus exposed them, surely they might have lost them too. And therefore I think, I may with reason affirm, that in most Cases, where a Prince or Commonwealth may command a Man to expose his Life to certain Destruction for the publick good of his Religion or Country, he hath Power likewise to do it of his own accord, without any such command, the Obligation proceeding not only from the Orders of his Superior, but from that Zeal and Affection, which by the Laws of God and Nature he ought to have for h)s Religion and Country, even beyond the preservation os his own Life.

M. Well, I confess, that this that you have now said, carries some colour of reason with it, and is more than I had considered before. But pray resolve, me one difficulty more, which still lies upon my Mind. By what Authority, less than a Divine Commission from God himself revealed in Scripture, do Supream Powers take upon them to make Laws? And that under no less Penalty than Death itself, against such Offences, as by the Laws of Nature do no ways deserve Death, such as Theft, Counterfeiting the publick Coin, with divers other Offences, needless here to be reckoned up. And if a Father (as you will not allow him) hath no Right over the Lives or Persons of his Wife and Children, I cannot see how a Master of a separate Family can have any such Power, more than his Wife, or any other of the Family; and the Scripture seems to countenance this Power of punishing for Murder, to be in any that will take it upon them; and therefore you fee Cain said, whoever meets me, wiU flay me.And God tells Noah, whoever Jheddeth Man's Blood, by Man Jhatt his Blood be /bed, without restraining it to ariy Man particularly who is to do it.

F. This Objection is easily answered, if you please to consider, what you yourself did a good while since urge to me, that God endowed Adam with so much Authority, as should enable him' to govern his own Family and Children as long as he lived; which I readily granted you, and I only differed in the manner of its derivation, you affirming it to proceed from a Divine Charter or Grant by Revelation conferred upon him by God; and I maintaining, that both he, and every other Master of a separate Family, derive it only from God's natural, and not revealed Law, which if it be well proved, such Masters of Families, as also all Civil Powers (whom I suppose to be endued with the Power of all such Masters of Families or Freemen taken together) may for the fame end,(viz..) the good Government and Peace of their Families and Commonwealths, make Laws under no less a Penalty than Death it self, against such Offences as by the Law of Nature do not deserve it; since without such a Power (the wickedness of Man being come to this height it is) no Family or Commonwealth could be long preserved in Peace or Safety. And therefore, I suppose you will not affirm, but that such a Master of a Family may very well inflict any Punishment less than Death for such Offences, which if they find too gentle to amend those Crimes, they may likewise for the same reason increase the Punishments ordained for it. And therefore I yield, that tho* These doth not in its own Nature deserve Death, yet if the Master of such a separate Family shall find his Children or Serv ants to be so addicted to this Vice, as not to be amended by any less Punishments than Death, he may, for the quiet of his Family, make a general Law, that whosoever for the future shall commit Theft, shall suffer Death; and I doubt not but such a Law, when promulged, may belawsiolly executed; since this Master of a Family is intrusted by God with the sole Power of judging, not only what are Crimes, but also what are fit Punishments for them, since both are alike necessary for the happiness and preservation of the Family. And I so far agree with you, that such Masters of Families have as much Power ever the Lives'of their Children andServants, as the most abjolute Monarch* have over their Suhjetls, that is, for their common good, and no farther. And upon the fame Principles do all Kings and Commonwealths inflict capital Punishments for the Transgression of all siach Laws, as do any way entrench upon the common Interest and Safety of their People; and upon this ground, they may justly inflict no less Punishments than Death, for Coining of false Money, which is but a soct of Theft from the publick Treasure of the Commonwealth. And the same may be said for all capital Punishments ordained against other Ossences pf the fame Nature. ^ -;\ ■■, •

M. If Fathers or Masters of Families are endued by God, (as you your self Bow own) not only with this Power of Life and Death, for enormous Crimes against the Laws of Nature, but also to make new Laws, or ordain what Punishments they please for such Offences, as they shall judge destructive to the quiet and happiness of their Families, I fee no difference (notwithstanding what F. P. you have hitherto said- to the contrary) between Oeconomical and Civil Power. SectFor if we compare the natural Rights of a Father or Master with those of a King or Monarch, we shall find them all one without any difference at all, but only in the latitude or extent of them. For as the Father or Master over one Family in the State of Nature; so a King, as a Father or Master over many Families, extends his care to preserve, feed, cloath, instruct, and defend the whole ■Commonwealth; his War, his Peace, his Courts of Justice, and all his Acts of Sovereignty, tend only to preserve and distribute to every Subordinate, and Inferior . Father and his Children, their Rights and Privileges. Hath a Monarch Power to make new Laws, and appoint what Punishments he will to enforce their Observation? So also hath a Father of a Family. Hath an absolute Prince Power to command or dispose of the Goods and Estates of his Subjects, for their common Quiet and Security? So also hath a Father or Master of a Family. So that all the Duties of a King are summed up in this universal Fatherly care of his People; and if the Sovereignty be the-fame, I cannot see any Reason, why the Rights and Prerogatives of it should not be so too. And therefore, if Nonresistance against their Authority be an unseparable Prerogative of Sovereign Power; then if a Father or Master of a Family be endued with it, he ought no more to be resisted, than the most absolute Monarch.

F. I perceive your Head is very full of this Notion of the Identity of Natural and Civil Power, or else you woujd never insist so long upon it as you do, after what I have proved to the contrary. And therefore, since I see you look upon this as your topping Argument; ,1 shall do my endeavour to shew you more .plainly the difference between them.. For though I grant, that such Fathers or -Masters of Families, (as we here treat of) are endued by God with divers JPowers., which are analogous, or perhaps the fame wish those of a King or .Monarch, that is, of defending their Families, as far as they are able, from Foreign force, and Domestick injuries, and of revenging and punishing all Ossences that may ,prove prejudicial or destructive to the peace and happiness of their Families; yet doth it not therefore follow, that the Government of private Fajnilies and Kingdoms are all one, since they differ very much, not only in their Institution, but also in their End. For first, the Fatherly Power by the Law of •Nature is ordained only for the Generation and Education of the Children, till .they come to be grown up; and his Authority, as a Father, is ordained by God only for those ends; and therefore this Relationiof. a Father is so .inherent in him, .that it can never be parted with, or assigned, over to any other, so as to .make the Child or Son so assigned,, to .owe. JGhte /ame duty to him, as he did .to his Father. '.< ,:j . .; . -;

"there is also, besides the Power of a Father, that of a Master or Head of a Family over his Children and Servants, whilst they continue Members or Subjects of it, which Power I grant may be assigned, or made over to one, or more Persons, whenever such Master shall think fit to institute a Kingdom or Com*monwealth: Yet, as Dr.Sanderson very well observes, this Power of a Master differs very much from that of the Civil Powers of a Kingdom or Commonwealth, as well in the Object, as End of this Power. For first, the Power of a Father is only over one single Family; whereas that of a Commonwealth is over divers Families, united under one Civil Head-Secondly, In respect of the End, the Power of the Master is chiefly ordained for his own Interest and advantage; but that of the Civil Power chiefly respects the good of the whole People or Community. Lastly, the Power of the Master of the Family is only for the maintaining his own natural Property in those things which he hath acquired in the State of Nature; whereas one great End of Civil Government, is to introduce and establish Civil Property in things, according to the Laws of the Commonwealth, and also to maintain it when so constituted. To conclude; Fathers beget their Children, and Masters acquire to themselves Slaves and Servants, but it is from the consent ofseveral Fathers or Masters of separate Families, that / any fort of Civil Government commenced at first; so thatthe People at first made Kings, and not Kings the People: And further, it is the duty of Fathers and Masters to provide for their Children and Servants, but the People ought to provide fer their Kings, not only for their Necessities, but for their Magnificence and Grandeur; so that the Power of Fathers and Masters is Natural, whereas that of Kings and Republicks is Political and Artificial, as proceeding from Compacts or the Consents of divers Heads of Families or other Free-men. And as Kingdoms and Families differ in the manner of their Institution, so do they likewise in their Ends, which is of a far larger extent in the latter, than in the former; the main design of instituting Kingdoms and Commonwealths, being not only to defend their Subjects from such injuries or violence that they may do each other; but chiefly, by their united Forces, to guard them from the violence and invasion of Foreign Enemies.

For though I grant, it may sometimes happen, that a Family may consist of so great a number of Children, Servants or Slaves, as may make a little Army, such as Abrahams was, when he made War against the four Kings; yet is this purely accidental, and not at all essential to the being of a Family, which is as perfect in all its constituted parts, if it consists of three or four Persons, as of three or four hundred. Whereas a Kingdom or Commonwealth cannot subsist, unless it can either by its own Power, or united Forces, defend its Members from Foreign force and invasions: So also in private Families, in the State of Nature, there can be no Property acquired in Lands or Goods by any Member of it, without the Master's express will or permission. But in all Civil Governments, the very institution and preservation of Civil Property was one of its chiefest Ends, which may easily be proved by experience: Since in all Nations, where there is any Property either in Lands or Goods, there is a necessity of some Civil Government to maintain it. Whereas in divers parts of Africa and America, where there is no distinct Property in Land, and where there are no other Riches, than every Man's small Cottage and Garden, with their Hunting and Fishing Instruments, there is no need of any Common or Civil Power over them, higher than that of Masters or Fathers of Families, who own no Superiority among themselves, unless it be when they go to War, and then they chuse out of their own Numbers, for their Captains or Leaders, those whom they know to be stoutest and most experienced, whose Power determines as soon as the War ceases.

But to make an end of this long Discourse, suppose I should grant all you can desire, that Oeconomical and Civil Government do not differ in kind, but in largeness or extent; yet will it not follow, that therefore it must be in all Cases irresistible, since I think I am able to prove, that no Power whatever (except that of God himself) can be endued with this Prerogative, if once it goes about to frustrate, and destroy all the main Ends of Government,(viz,.) the happiness and safety of the Subjects, either by downright destroying of them, or else by reducing them to a condition of Slavery and Misery. But to let you see, I would deal fairly with you, I will discourse this Point of Adam sSove

* reignty


{49}
no farther, but will at present take it as the Lawyers fay, de lene ejse, or for suated ; -and L desire you would shew me in the next place, when Adam died, by what Law^ either Divine or Natural, Cam or Seth (chuse which you will) COdhVirbmraand oVer all the rectos" his Brethren,' and their Descendants- And then again, if you could do this, what benefit this Doctrine would yield to all fences and -States -at this day, or how you intend to deduce a Title for them, from Adam or Noah, or any of their Sons, to their respective Kingdoms, and consequently to an absolute Subjection of their Subjects, without which all your Hypothesis willigfeiry siodi»|&;|^* *? i |'c * i f I 1 r I  M. U*nuft ietmji you thWfcSfr-Sir, fqrv^ur> candid ■dealing, .and for the great

pains you have taken to enlighten my Understanding in this important Question. And though I doubt, you have laid down Principles not so suitable to God's Will revealed in the Holy Scripture, yet I will not impute it to any want of sincerity

in yourself, who, I hope, are satisfied of the Truth of what you have maintained; so on the other life, I 'jcfesire you not to take jt ill^ if I canrtot leave my own Opinion, which*rhave always Hitherto lobRtupdn, as most suitable to the Doctrine of the Church of England, to the Practice of the Primitive Church, and to the Laws of the Land, and must continue therein, till I am convinced I am stf^an Erfdr.1 BltV since I1 defire'to have anirtnex^Conversation with you upon th^,|npc«jMiN Subje^)prajvsoilet ,me IpoV vhesti^ jhall ij\*et.kgain,. that I may* prove to you from \he Holy Scripture, as well as those Authors J have perused, that there is a -Divine.Right dfXBlm -institutei^if GfoJ'for theSucfejfion of Kingdoms, which cannot without a kind of" Sacrilege, or the highest Injustice, be taken away from the Right Heir.

fl 1 kindly accept youir proffer, and, if you please, shall discourse this important Question with you to Morrow in the Evening, if your Occasions will give you lea vet ' • '. no 1 •'• '016 '' r'V '* !.*

;fljf.. I expect yon between seven and eight, and in the mean time am your Ser-.



Bibliotheca politica


DIALOGUE II.

Whether there can he made out from the No* \ iuraly Or Revealed Law of God, any Suc•y cejswn toCrowns by Divine Right? »• i*j i"}

O U ate, I see, Sir, a punctual Man to your Hour: Pray 2S»^®^^I*' do me the favour tq sit down, by the Fire, I will but make an end of what I am writing, and wait on you presently.

F: Your Servant, Sir, take your, own: time j but pray remember the point you are now to satisfie me in.

M. Now, Sir, I have done; and if I remember right, I am to derive a Title to all the Kings and Monarchs that have ever been, or shall be in the World, from that supream fatherly Power conferred by God on Adam. As for Commonwealths, which I must own to be of meer Humane Invention ,• tho'1 will not fay that they arc absolutely unlawful, yet I think they are not the Powers ordained by God in Scripture.

F. Well, Sir, we will discourse farther os that anon; and therefore I do assure you, I do not desire any more or" you now than that you should prove the Divine Institution of Monarchy; and I think that-task sufficient if it can be made out in one or two Meetings, M. It may seem indeed somewhat absurd to maintain, that all Kings arc nowT. P. Ch. i. the Fathers of their People, since you'll fay Experience shews the contrary. It 4 8. is true all Kings are not now the natural Parents of tliciij Subjects, yet they all

either are, or are to be reputed the next Heirs to those Primogenitors, who were at the first the natural Parents of the whole People, and do in their Right succeed to the Exercise of the Supream Jurisdictions and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that 'were subject to their Fathers: and therefore,, I suppose, that God, when he conferred this Supream Power on Adam, , did not intend it should die with him, but descend to his Heirs after his decease.

F. Well, I shall at present grant you all this likewise, thbugh it might be Ibii. questioned. But pray, who were those Heirs? many, or but one Person?

M. 1 suppose you will also grant me at presenr, what we before disputed, that the Power of Fathers over their Children, being the Fountain of all Regal Authority, by the Ordination of God himself, it follows that Civil Power not only in general is by Divine Institution, but even the Assignment of it specifically to the eldest Parents.

F. Pray whom do you mean by eldest Parents? our great Grand-mother Eve * For if you mean by it one that first had had Children' she must come in as next Heir, to Adam by these Word*. {'

AT No, Sir, you altogether misapprehend me, I mean the eldest Son dt Adam; Eve was his Wise, and could have nothing to do to inherit in an Hereditary Monarchy as this was.

F. I beg your pardon, Sir, if I misunderstood you, but you must thank the Loosoess or Impropriety of your Expression for it; for, I suppose, you cannot deny, but eldest Parents commonly signifie either the eldest Men, or Women that have Children, or those who have longest had Issue; and then in either of these Senses, our great Grand-mother Eve stood fairest to be Heir of this Divine Power of Adam : But this I am sere of, Parents can never signifie Heirs Male or Female, much less a Child who may sometimes (according to your Hypothesis) happen to be Heir. But since I am gotten into this Mistake, I shall not leave my hold, but shall make bold a little,to argue our great Grand-mother's Title; for indeed I cannot, see any reason why her eldest Son (for Example) mould r have any right to govern his Mother, and all his Brothers and Sisters, whilst see was alive. .■ ,. .; "i , >-■ ■

For first, if your Argument from Generation must be good, that every Man that is born, becomes a Subject to him that begets him, this Argument will serve for Eve, as well as Adam; since (as I have already proved) the Mother hath as great (if not a greater) seare in the Generation of the Children, than the Father: Or, secondly, if you insist upon the Divine Grant, you so much talked os last time, of Adam's Dominion over the Creatures, in which his Children were; included j_ I then proved to you, that this Grant was made as well to Eve as Adam; and consequently, that either see must, have thereby an equal right with him, or at seast after his Decease, to this Dominion, as a Husband and Wife, when joint Purchasers have to an Estate at Common Law. And lastly, if the/Qommandment of, Honour thy Father and thy Mother, were then in force by the Law of Nature, or by express Command from God) and that by Honouring, obeying must be meant (as most Commentators agree) then it will follow, that after Adams Decease, all Eve's Sons and Descendants, though never so remote* were tp have obeyed, or been subject to her, and not to her eldest Son, unless you can ftew me that the Salique Law, against the Succession of Women, was made by Adam the first Monarch, which, I suppose, you will not undertake to prove*. . .. ;_.

M. I must confess I did not consider this Difficulty; for indeed it might never have happened, since £w might have died before Adam; or if see did outlive hiin (which is uncertain) yet see was then very old, and consequently (besides' the natural weakness of her Sex) uncapable or unfit for Government, and so might very well leaveittoSeth; since Cain, the eldest, had by the Murder of his Brother, and his flying away into another Country, forfeited his Birth-right, and made himself uncapable of the Succession.

F. §p then here is a Forfeiture, and an Abdication of this Divine Right of Succession in the very first Descent; whereas indeed I supposed, that this Divine, Right had been at least as unforfeitable as the Crown of England; the yery^ Descent of which, as our Lawyers tell us, purges all Defects in the next Heir,^ though he had murdered his Father and elder, Brother too. But I only shew, you the Absurdity of this Notion, and seall not longer insist upon it j therefore pray proceed. _ ■. \ , ,

M. I can't tell what might, have been said, if Cam had come to claim his Birth-right: But this is certain, that he neither did, or could come to do it, B- psince God condemned him to live in a strange Country far from his Brethren ; c z' Se""9' and we read, That Cain -went out from the presence of the Lord, and dwelt in the Land Gen. 4. 16, of Nod, on the East of Eden; and he built a City, and called tlx Name of it Enoch, 17. after the Name of hisSon Enoch. And there are four Descents set down immediately of his Family, which could be no other than the Princes of that City of Cains Race. So that you see, even in Cains Line, the Principality descended to the eldest Soh.: -  ' \  .

F. I confess Cain's Children and Grand-children are particularly set down in Scripture; but that they were Princes or Monarchs over their Posterity,or which way this City was governed after Cains Death, whether by one, or by all the Sons of Cain, is no where mentioned: But I see some Men can find even absolute Monarchy in a Text, where the Scripture mentions no such thing; and no wonder, for the Akhymists hav;e found .out likewise the Invention of their Elixir* or Philosophers Stone, in such Texts as you and I can see no such thing. But to be more serious: n

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That a Father sliould be Lord over his Children and Posterity, I confess there may be some colour of Reason, though none cogent enough to make it out: But that an elder Brother hath any Natural or Divine Right to be Lord over all the rest of his Brethren, I can find no ground for in Reason, even upon your own Principles; for if every Man by his Birth becomes the Subject of him that begets him, it will neceslarily follow, that a Man by his Birth cannot become a Subject to his Brother, who (sure) did not beget him.

Therefore, I suppose, you will still insist upon that place in the fourth of Genesis, which you cited at our last Meeting, when God told Cain, speaking (as you suppose) of his Brother Abel, His iefire Jball be subjeU untothee, and thou Jhalt rule wer him. From which Words I then told you, I thought an absolute Subjection of Abel,and of all younger Brothers whatsoever, could not reasonably be inferred: For you may remember I sliewed you, that this Promise by God to Cain, concerning Abel, might be only personal, and ;relate to Abel ov&y, and not to the rest of his Brethren, much less all other younger Brothers, that sliould be in the World. And in the next Place, this Ruling might only have been by Ad-4 vice and Persuasion, and not by any Authority or Right of commanding hmr. So that if this be the Place (as I suppose it is) from whence you would deduce your Divine Right of elder Brothers being Monarchs over the younger in all Hereditary Monarchies, I must freely tell you, I think it a very bold Undertaking to found a Divine Right upon such doubtful Expression*;, as these of God to Cain. s i > ■'•>' • J

M. I confess, I was now about again to urge this Place to you j for as Lwas* not then well satisfied with your Explanation of ie, which: you now again repeat, so upon second Thoughts I am much more unsatisfied with your Paraphrase

4. upon them. For you seem to me plainly to pervert the Sense of the Words, and make them signifie just nothing. For sure when God spake the same Words to Eve concerning Adam, as he did to Cain concerning Abel,can you conceive they were meant personally to Eve only, and concerned no other Wife that sliould be after her? Or can you assign any Reason why these Words should be rather meant personally in the -last; and not in the first case? unless you will do it out of pure love to Anarchy and Confusion.- And if you fay these Words do not signifie any despotick Power, but a ruling or governing by fair means or Persuasion, this seemeth meer trifling with • God's Word, who fays expresly, Thy Brother s desire Jball be subject to thee, that-is, (fay you) as far as he thinks fit; and thou /halt rule over him, that is, if thou hast the knack to wheedle or per

7,suade him. Would not this have been a mighty Matter for God Almighty to have appeared to Cain about, and an excellent Argument to comfort him, and to appease his Wrath against his Brother? So tharit seems apparent, by this Law given by God to Cain and Abel, that this Regal and Paternal Authority was not to die with him, nor to be equally divided amongst all his Children at his Death; or that from thenceforth no-Man should have a Right, by Birth, of commanding another; for this Command to Abel-could not be supposed to take Place in the Life ofAdam, for then Adam was Lord over all his Children, and so none of them without his'Permission could rule over the rest ; and if it were otherwise by Adams Appointment, then Adam was the Sovereign still, and the Son or Grandson, so exercising this Power, was but his Deputy: But after Ada?n's Decease, then it became a real Sovereignty in his eldest Son, as having none butGod-superiour to it. •• '• ''

R I hope you will judge more charitably of me, than to believe that the Sense that I have put upon these Words, though different froni yours, is out1 of any love of Anarchy or Confusion, much less out of any design to1 pervert dr wrest this place of Scripture: And if I sliould be so severe as you are, perhaps I might with more reason lay this Charge at your Door. For, in the first place, I am not satisfied with your Arguments that these Words could not be* meant personally, or concerning Abel only; because the same Words-, when spoken of Eve, do likewise concern her Posterity ; and therefore, when spoken concerning Abel,they must likewise relate to all younger Brothers in Hereditary Monarchies; which consequence I may with very good- reason deny, for whatsoever Subjection may be due, by vertue of the like Words, from Eve and her Posterity, to Adam and all other Husbands, is to be supposed to have been enjoined, because all Women are descended from Eve, and so. were represented by her as their first


Parent. Thus St. Paul supposes all Men to be in a State of Sin and Death, as represented by Adam, their Ancestor,by -whose Disobedience all have finned. But no Row, 5. n, Man will affirm, that all the elder Brothers or Monarchs in the World were re^ presented by Cain, and all younger Brothers by Abel; no Man ar this day being (as appears in Scripture) descended from either of them: And I cannot but take notice, that the Better to strengthen your Notion, you again foist in out of the Margin of our English Bible, His Desire JhaU be subjectifaheei whereas in the Hebrew it is no more than, xHt?,'or its DesirefiaS be to thee.

Arid that the Words rule over are to be interpreted according to the Subject, and do not always mean a rulingby force, or command, appears by the fame Hebrew Words made Use of in .the.'first' of Genesis, concerning themo great Lights 'that God Ver. 17,18. set in the Firmament, to give Light' Us on she Earth, to rule over the Dayand over the Night; which cannot signify a ruling by force or command, but only by a natural influence or preheminence of the Sun and Moon above the Stars or Planets. And tho!y6u are pleased to ridicdle this Explanation of mine, yet I think l may with as much reason tre^t yours with the like Contempt- For since your self grant, that this Power of Cam Over AM'was not to; commence tift after the Death of Adam, and that this.Murder of Abet was committed above'a hundred Years after Adam's Creation/ appears by the time of the Birth ot' Seth (who was born some time as- Ger.. 5. %. i£$ Jj&fs Dea^h). would Jripfc this "thing .'HaVe beest1a:mighty Comfort to Cain, •when he was iH his dogged^ Humour; if God had bid him cheat*"dp"; for the time fliDuld come, that, if hebe'haved himself"well, about eight hundred Years hence, whfcntu*s Father7 Adam should die, he should then lord it over his Brother, and be rtvenged 6f hiriifor the Affront he had received in having his Sacrifice preferred before his own? So that this Interpretation of yours is so absurd, that I do much rather agree with divers learned Commentators, as well Jews as Christians, who make'jiot only a quite different Interpretati6n, but also a different Version of these Wotds from the Hebrew Text : And if you have the Learned JesuitMenochim's Notes upon the Bible, I pray let me fee them. Here pray observe what he fays upon this place':' Sedsub te erif appetitus, ejni In Hebrao & apud LXX est, Ad te conVersio'pus. V Sinfusjfl'■:Peccatum ejufqueappetitus & concupisentia te foUicitabit ad confenfum ; fed itaf.'uf 'dd tecortverti^ & a te confenfum petere &impetraie debeat. Id noster interpret adfenfu'm'dare vert it, Sub te er it appetitm ejm. By all which he means no more7 than that Sin should tempt or sollicit him to offend, but that he should rule dver1 it, that is, had a Power so to do, if he would use it as he ought. So likewise Mr. Ainfworth upon this £lace (as you may fee inPool'sCriticks) puts a like Sense upon the.following Words, referring the whole Sentence to the Sin, in these Words:Peccatum ponitur pro pœna peccatV y'juxtaHibrxos ita accipitur, Gen. 19. 15. LeV. io. 2. 1 Reg. j- p. SeJtfus'est:Propete punitio piccati, & ad te desiderium tjm; i. e. cupit te pœna peccati tui, ut folet post peccatum admiffum ;fedtu, si vis, dominaberis iHi, i. e. potes declinare peccatum. Q. d. Pœna hacsicut' sanis est, qui ad ostium cubat,cupiens ingredi ; fed in potefl/ife'Domini ejt' yel claudere ostium ne irigrediatur, vel aperire ut iniret, Prcbattcrhie fens us i. Prim membrum de pramio loquitur, reportabis fcil.prar ntiutft; ergo poster/ut loquitur ak pœna,peccatum janb'merat ipsi, punitio vero nondum, fed ad fores erat. So that, according to these learned' Commentators, this Place is ^6"be thus turned out of Hebrew': Jf thou dost not roeH, Sin Heth at the door, and toimf is. its desire; but thou ttiam or fkalt nits'over it. Which seems to me to be a much more' genuine' and rational'jntcrpretationlthan thar qf our Englijl ot Latin Bibles. • So that I thfntf I'may justly except against the Authority of so doubtful and obscure a Place, as sufficient to, found your Monarchical Power of elder Brothers in the Stare of Nature. .its.:

J; M' Well, Shy since yon are no better1 satisfied with this Testimony out of Genesis, fat the Divine Right of .Primogeniture, I will no longer insist, upon it; tho' I am not yet cdrfviijced, but' that my Interpretation of this Place is truer than yonrs, 6nC<lrhave likewise great* Authorities on my side, both antient and modern, bcfieiisour common Versions* to authorize it; and therefore since I have many other Examples out of Scripture of this kind; I shall the less insist upon it, but will now proved to the Examples tsefore the Flood. First therefore, it seems highly probable,' if not ''certain,' that Whatever Civil Government there wis in the World before that Period of Time (as it is very rational to believe there necessarily must be some in so' fong' a Space as neat 20b Years) it was chiefly adrh'inistred by those first Patriarchs, whose Names you'll find particularly recited in the fifth of Genesis: "r . And


{54}

B.P.P. $ 51. And sure that long Chain we there have of them, by whose Lives the Chronology of the World is only reckoned 'till the Flood, were in their several Generations considerable Persons, nay Princes over their own Families, which'.could not but be very numerous: And indeed the very counting the Age of the Works by the Years of their Lives, is to me an Argument, that they were no obscure, unregarded Men, but that they were either Monarchs or Princes of all Mankind, or at least over that part of the World in which they lived: And Jcsepbtp is likewise of my Opinion, in the first Book of the- Jewish Antiquities, where (as you may fee) cap. 3. he exprefly tells us thus : Seth autem centefimo & qujnto anno genuit Enos. Qui dum quinque & nongentos vixijfet annos,rerum cur am tradjdit. filiosuo Cainx: And immediately after proceeds thus, Lamechum autem filiftm ger nuitMatbuselas, Enocho ortus, cum annos ipse haberet œtatis CLXXXVII. Imperium veto Lamecho eidem tradiditparens, quod jam temierat ipse annos DCCCCLXIX. JjOr mechus parker Principatum reliquit Noe filio, pojlquamregnajset annos DCCLXX VU> Noe deniq; rerum jummam tenuit annos nongentos 0" quinquaginta; Lajnecho )annos ififo atan's babenti genitus. And Noab, the last of the ten Patriarchs, and the surviving Patriarch of all Mankind, was declared by God the'\universal Monarch of "the; v. 2.5. World, as soon as he came out of the Ark;to whom he granted the DomTr.O.G.?.47- nion over all things, as appears by those Words of God to Noah, (?«z, p. whexej 1. 1. c. 4. t»y I conceive, that though it hath been thence concluded by Mr. Seldenin'ms Mare Clausum,that there was a general Community between Noah and his'Soiis. yet the Text doth not clearly warrant it. For although the Sons are there join-; ed with Noab in the Blessing, yet it may best be understood with a Subordination, or a Benediction in Succession; and the Blessing might truly be fulfilled, if the Sons, either under, or after their Father, enjoyned a private Dominion: Nor is it probable, that the private Dominion, which God gave to Adam, and by his Donation, Assignation or Cession to his Children, was abrogated, and a Community of all things instituted between Noah and his Sons after the Floods

Wf^Lib"*' "^nt* w^en was t'ie ^e ^eir °^ t^ie World, why mould it be thoughts ~* "„ j"*' that God would disinherit him of his Birth-right, and make him.only Tenant in OxonEdit, common with his Children? And if the Blessing given to Adam, Gen. 1. 28. be compared to that given to Noah and his Sons, Gen. p. 2. there will be found a considerable difference between these two Texts. In the Benediction of Adam we find expressed a subduing of the Earth, and a Dominion over the Creatures; neither of which are exprefled in the Blessing of Noah, nor the Earth there once named : It is only said, The Fear os you shall be upon the Creatures, and into your Hands are theydelivered; then immediately follows, Every moving thing jhaU be Meat for you, as the green Herb, &c. The first Blessing gave Adam Dominion over the Earth, and all Creatures; the latter allows Noah Liberty to use the living Creatures for Food : Here is no Alteration or Diirunisliing of his Title to an absolute Propriety of all things, but only an Enlargement of his Commons.

F. As tor the Government of the World before the Flood, I have already acknowledged, that the Scriptures being silent in it, no Man can affirm any thing positively concerning it,whether it was Regal, Aristocratical, or Paternal: Neither is it any Proof, that because God thought fit, for our understanding the Age of the World, or the Genealogy of Noah, from whom all Mankind now takes its Original, to set down a Series of the Patriarchs from Father to Son ,• or, that because they were no obscure, unregarded Men, that therefore they must all be absolute Princes or Monarchs over their Families. This is, as a Father said long ago, Divinare magis quam scire- But I see, when Prejudice once blinds our Reasons, we easily make good the old Saying, Facile aedimus quod volumm. But as for your Quotation out of JosephTM, I grant indeed, that at the first sight it . makes for you: But suppose it doth, I cannot see how a Man can lay any stress upon it, since the Scripture, being silent of any such Monarchy, or Principality in these Patriarchs; since this Author writes his History above three thousand Years after the Time that these Patriarchs lived, which he there mentions; and that we are sure there were no Authors then extant, that writ of the Anti-diluvian Patriarchs, but Moses only, Josephm could speak no otherwise than by guess, or from some uncertain Traditions preserved amongst the Pharisees, of which Sect he was: To which Traditions, when not warranted by Scripture, how little credit is to be given, our Saviour himself teaches us; and also the many futilous Tiaditions of the Rabbins, at this Day, do sufficiently shew us. But, I


suppose, that by this Word «p%>i, there used by Josephns, (which is rendred by .the Latin Version Principatm) is not meant any Monarchical Power, but only that Principality or Eminency, or that Reverence and Respect which their Posterity paid them, either in regard of their great Age and Experience, or of the Spirit of God, with which they might be supposed to be endued, sufficient to make them to be taken notice of, and reverenced above all other Men living in their Time. I have likewise, upon better Consideration, two other Reasons to add, why by thecur am rerum, mentioned in this place, cannot be meant a Regal Power, because Josephm mentions no such thing of Adam the sirst Father, and, as you suppose, Monarch os Mankind; which sure he would have done, had he believed him endued by God with such a Power.

The second Reason is, that if you please to observe, he, ascribes, to Mathuselah, Lamech and Noah, as many Years of Empire, as of Life: So that either this, place of Josepbus signifies nothing at all,.'or else will make nothing to your purpose to prove these ancient Patriarchs to have been so many Monarchs.

Tcome now to the next Period of Time after the Flood, and whereof I grant we may discourse with more certainty : But I could have wislied you would have repeated more particularly the Words, whereby you suppose God granted to Ndah alone, an absolute Dominion over the whole Earth, and all the Creatures' therein contained. But I perceive you thought the Words not very favourable^ for you, or else you would have repeated^ or read them to me ; which since you;. Omitted, I pray give me leave to do it for you, and then I will leave it to your self to judge whether there, can be any thing drawn from this Text to counte-i nance your Opinion: The Words are these, And God blessed Noah, and his Sons, Gen- 9- f, *» and said unto them, Be fruitful, arid multiply, andreplenish the Earth, And the fear.!' is you, and the dread oj you stall be upon every Beast os the Earth, and uponevery Fonut os the Air, upon all that moveth upon the Earth, upon all the Fijhes of the Sea, into your hand arethey delivered. Every moving thing that liveth Jhall be Meat for you ; even Cm the green Herb have I given you allthings. Where you may plainly see, that Noah hath no Preheminencc in this Grant above his Children, who were (for as .much as 1 can see) by this Text to be Tenants in common with him of the Earth,, and all its Creatures. Nor is there much difference between this Grant to Noah '• " '" *' and his Sons, and that made to Adam and Eve,which I proved extended alike to all Mankind, more than that the Brute Animals are here exprefly granted1|oNoah and his Sons for Food, which they were not before to Adam. . v.

But I perceive you your self are sensible, that this is the most plain, and obvious Sense of these Words^ and therefore you have thought good to wrest them so as may best serve your purpose; and indeed you deal very cunningly to lay, that this Grant may be bcst'understood with a Subordination in Succession. 'Tis^ T.g. C. 4. true indeed, it serves best for your purpose that it should be so understood ,• but/>» 41. that will be best understood by any Body else, which bast agrees with the plain and obvious Sense of the Words. Nor will your Reason signifie any thing, that the Blessing might be truly fulfilled if the Sons either under, or after their Farther, enjoyed a private Dominion : Since that were to fay, that a Grant whose" express Words give a joint Title in present, (for the Text faith, Into your Hands they are delivered) may best be understood with a Subordination, or in Succession; because Jtis possible that in Subordination, or Succession, it may be so enjoyed, is all one as to fay, that a Grant of any thing in present Possession may best be understood in Reversion, because 'tis possible one may live so to enjoy it. And as for the other parts of this Grant, they are so expressed. that they must needs heunderstood to belong to Noah's Sons, not with a Subordination, or in Succession, but as full and equally as toNoah himself: The fear of you, and the dread of you (fays God) stall be upon every Beast, &c. Can any Body in reason say, that the Creatures were to sear, and stand in awe of Noah only, and not of his Sons without his leave, or 'till after his Death? And are the following Words, (Intoyour Hands they are delivered) to be understood (as you fay) if your Father please, or they shall be delivered into your Hands hereafter? You do also as wisely to lay, that if Adam had a private Dominion given him by God, that he would not now abrogate it: For I grant, that if he had given Adam any such private Dominion, that there had been no reason for him now to have changed it. But I think I haVe sufficiently proved at our last Meeting, that he had no such private Dominion given him any more than Eve, and those Children


that were to proceed from them. So that this Supposition being false, there will be no such considerable difference as you suppose between these two Texts. For certainly, (though it be not here expressed) Noah'sSons had as much right to subdue or possess the Earths as the Posterity of Adam had before the Flood, and likewise to enjoy, or eat the Products thereof; only here is granted to Noah Ibid. p. 47. an£j his Sons a Power to kill the Creatures for Food, which was not granted to Adam, or rhose that lived befbre the Flood: And tho' you will have this Grant to be no diminishing of Noah's Title to a sole Propriety in all things, but only an Enlargement of his Commons; yet methinks it is a considerable Privilege not only to himself, but his Sons likewise, who are hereby impo'wered to use the Creatures for Food, as well as their Father, or else their £aTe had been very' hard, if when the Creatures were sufficiently multiplied, tfieir might nqf^haye killed so1 much as aHart, or a Partridge, without his leave. And if they'Had a right thus to use these Creatures, how this differs from an absolute Propriety in them whenever they are: taken, my dull Understanding is /not abletqcdm-^ ■ nrehend.' '/*"'

M. Well, since you will not admit of this sole Dominsoh of Noah (dyerill

for the present admit, that ' Noah was a Prince or Monarch olet ■ah his'Pdst^rity ^ but then pray shew me t6 whom this Power descended after !His I^cea'sej."*foif I can fee nothing in Scripture that favours your Divine Right of Primogeniture,

was a Prince alike over his dwn Faand all its Products," the one as niuch

'but that every one of Noah's three Sons .... .

mily,
and had an equal share in the Earth, and all its Products,'the one as
as the other : So that here it is apparent that your sole Monarchy of the,'1
dwindles into a fort of davel-~kirid, where
all the Sons inherit alike* ' '. '* ,

M. I cannot deny the Matter of Fact to be as you have laid down; but then there might be very good reason for it, which might render the sole Prihcipahty'

T. O.G. p. 49. of Noah's eldest Son to be not only unlawful, but impracticable • for, in the '£rst'

/. 1. c. 4. place, Mr. Selden in his Mare Claufum (in the place aforecited) tests usi/fi*om, the ancient Tradition of the Jewish Rabbins, That "Noah himself, as Lord of ally waj% Author of the Distribution of the World, and ofprivate Dominion; and that by the Appointment of an Oracle from God, he did confirm this Distribution by hislast Will and Testament, -which at his Death he left in the Hands of his eldest Son Shem ; and also warned all hisSons, that none of them stould invade any of their Brothers ' Dominions, or injure one another, because fromthence Discord and Civil Wars would necessarily follow. Nor do I fee any reason why Noah might not emancipate his two younger • Sons from the Dominion cf the elder, and likewise give them a separate share of

the Earth, and also an independant Power over their own Family and Posterity. In the second pJace, it might be impracticable for one Man to govern all Mankind, when in a little time it became so multiplied and dispersed over the Faceof the Earth, and the Languages so confounded by the Act, or Will of God., thkt it was impossible for the three elder Sons of these three great Patriarchs to govern

B.T.P. j to. them. But during the Life of Noah, we do not read that any of his Children, or Descendants, withdrew themselves from him without his leave, but rather die

Gen. ii. i,2. contrary; for it is said, "The whole Earth was of one Language, and of one Speech;

and it came to pass, as they journeyed from the East, that they found a Plain in the Land of Shinar, &c. By which Words it appears they kept well enough togef Mt; and the very reason why they began to build the Tower, was, lest (said they) We should be scattered abroad upon the Face of the whole Earth: So that there was no Disunion amongst, them, nor so much as a desire of it whilst Noah lived."1

F. I pray give me leave to answer what you have said concerning this Distribution of the Earth by Noah's last Will, and also his making all his Sons Lords', ot Monarchs alike, both which savour so strongly of the Rabbinical Liberty of Invention, that I wonder how any learned Man can believe such jdle Stories, especially when the Scripture, and the most ancient Histories and Records that are extant in the World, mention no such thing. And though tfofefhm may, in the place you have cfted, suppose that e.very one of the Patriarchs he mentions., were Princes or Monarchs, yet he doth not fay any, thing like 'flu concerning|the three" Sons of Noab's being Monarchs, or of this Partition of the Earth between them; but maketh them to live together in those mountainous Parts, 'till they




descended from thence into the Plain : So that it was impossible for Noah to make a Distribution of those Parts of the Earth, which were not yet discovered. And it is apparent by the Scripture it self, that a considerable time afterNoah's Death all Mankind lived together ; and therefore there was no Impossibility (as you suppose) why Noah'seldest Son could not have commanded his Brethren, and their Descendants, they being not as yet dispersed, or separated from each other; as you may fee by the first Verses of the 11 th of Genesis, which you cited but now. So that if Noah's eldest Son was disinherited of his Right of governing his Brethren, and their Descendants, that could not be the cause of it, which you assign: And if Primogeniture be a Divine Right, appointed by God himself, and unalterable by Humane Laws, as you suppose, I cannot see how the Will of a Father, which is but aHumane Institution, can ever alter it : For I remember you laid it down as a Maxim, at our last Meeting, 'that theDivine Right of the right Heir javer dies, can le left, or taken away; so that if there hath been any such thing as a Divine Right of Primogeniture belonging to the eldest Son of Noah, it is not likely that he would have permitted his two Brothers to have usurped it from him. r ,

As. I shall not insist longer, on this Tradition, concerning the Distribution of the Earth amongst the Sons ofNoah. But certainly it is not a thing to be made so flight of as you do, since Cedrenm, a modern Greek historian, is very particular-in it; besides, so many other learned Men (and the great Selden among the rest;) -have given countenance to it: And though I grant that Primogeniture is of Divine Right, yet that might very well be altered by Noah's Will, especially since his Children might he. satisfied that he being a Prophet, and Preacher of Righteousness,, made: this Division of his Paternal Power by a Divine Command. - r. ■: -•  . ■•■

But I shall not dwell longer upon this, • but proceed to the next Period of Time; (viz,.) that of the Confusion, and Dispersion of Tongues, in which there are more evident Footsteps of this Right of Primogeniture, as also of the Pa- T triarchal Power I maintain: And therpfpre pray turn to the 10th of Genesis,, and there you will find (after the Recital of the Genealogy of every one of the Sons of Noah, whose Descendants are there particularly set down) these Words in the fifth Verse; By these -were the Isles of t/je Gentiles divided in tloeir Lands; every p. p. $4. one after his Tongue, after their Families, in their Nations. And likewise in the 20th Verse, These are the Sonsas Ham, after, their Families, after their Tongues, in their Countries, and in their Nations. And in the last Verse,These are the Families of the Sons of Noah, after their Generations, in their Nations ; and by these were theNations divided in the Earth after the Flood. So that if we consider the first Plantations of the World, which were after the Building of Babel, and the Confusion of Tongues, w&may find the Division of the Earth into distinct Kingdoms, or Nations, by several Families and Languages, whereof the Sons, or Grand-children p. A. MM. ofNoah, were the Kings, or Governors, by a fatherly Right. And for the prefer- p* 275vation of this Power, and Right in these Fathers, G od was pleased to bestow upon several Families a Language on each by it self, the better to unite it into a Nation or Kingdom. So that it becoming impossible (as I said before) for the elder Sons or -Descendants of these three great Parriarchs to govern all Mankind, who now no longer understood each others Language, it was absolutely necessary that the Heads of the several Families should take that care upon them, and their Children submit to them; wherein they had the Direction of God Almighty, who had commanded them to obey their Parents j and a miraculous Declaration of his Will for their Dispersion, by the confounding of their Language; and that so ordered by God too, that the Descendants of the fame Person, and Family, spoke one Tongue: Was not this a declaring these Fathers Princes of these several Families, and Tongues by God himself, who by his Providence had thus confounded their Tongues, and dispersed them by Families, that they could no longer be governed by three or four Patriarchs, but must have as many distinct Governments, as there were different Tongues, there being no means at present of any Intercourse, or Correspondence one with another, or with their former ■Governors? So that however in this Confusion of Tongues (by which, as jfc~ Jefhm supposes, -there were seventy two distinct Nations erected) yet- were they not confused Multitudes without Heads, or Governors, and at liberty to chuse what Governors, or Government they pleased; but were so many distinct Fa

I milies


 iomilies which had Fathers for Rulers over them of the fame Speech: Whereby it is manifest, that even in the Confusion, God was careful to preserve Fatherly Authority, and Monarchical Power entire, by diilributing the Diversity of Languages according to the Diversity of Families ; which shews that God was still for Gor vernment, and that Paternal too; since it is evident that every People followed their Ancestor, or Patriarch, as their Prince or Leader in this Dispersion, who had a. Patriarchal Authority over their Posterity: For by what else can you suppose they could have made their Children and Descendants to have followed them as far as the utmost Isles of the Gentiles? \ - ■.

F. I confess there are many Difficulties as well in the time, as manner of this Dispersion, according to our common Chronology; for if you suppose, that the Building of the Tower of Babel fell out within two hundred Years after the Flood; as most of our Chronologers, who follow the Hebrew Account, do;. then it is certain, thatNoah, and his Sons, were still alive, who lived 'till above four hundred Years after the Flood; so that'either Noah,and his Sons, did not travel with the rest cf their Descendants into the Plain of Shiner, where they built the Tower of Babel, which yet seems contrary to the Text, which fays, All Mankind being of one Language, they travelled,&c. And it these Children and Grandchildren left their Ancestors at home, what became of their Monarchical Authority, when their Subjects were gone ? And you your self do assert, that none of Noah's Posterity divided from him, as long as he lived. So on the other side, if you suppose that Noah and his Sons marched along with them in this Expedition, you must make them either to have quitted their Authority over, their Descendants, or else to have joined with them in this wicked and foolish Enterprize of building a Tower, whose top should reach to Heaven; which is., very hard to conceive of Noah, a Preacher of Righteousness, or his Sons, whom the Scripture no where mentions, or blames for having a hand in. this Attempt. ■

£. i. e. 4. But if you will lay the fault of building this Tower upon Nimrod, as Jqsephm doth, who makes him a great Tyrant, and a wicked Man, this will make against your own Hypothesis, which supposes no Rebellion, or Usurpation, to have been during the Life of Noah. So that to avoid these Absurdities, and Difficulties that will fellow by the placing the Building of the Tower of Babel within two hundred Years after the Flood, (as you must do, if you follow the present Herbrew Account) I think it were much better to embrace the Account of the LXX, which by adding a hundred Years to the Lives of each Patriarch between Noah and Abraham, makes the Confusion of Tongues to have happened not 'till about five hundred Years after the Flood which takes away those Absurdities I mentioned, of making Noah apd his Sons to have had a hand in the building of the Tower of Babel,or else that Nimrod did it, whether they would or not; which is likewise as hard to suppose : AU which Difficulties, according to this Account, may very well be taken away; since then, Noah and his Sons were dead, before ever this Tower began to be built. And for the further Proof of this, I refer you to the learned Isaac Vojfimhis Vindication of the Translation of the LXX, and his Chronology accommodated to that Account, as most agreeable to the ancient Hebrew Original: But this is only by the by.

M. I thank you, Sir, for your Solution of this great Difficulty, which I am satisfied cannot be better solved, than by this Account of the LXX Version. But I pray answer my Argument, which in my Opinion clearly makes out the Divine Institution, as well as Necessity of Patriarchal Power.

F. I was just coming to it; and therefore in the first place I must tell you, that I cannot imagine how you can prove from this Text concerning the Dispersion of Nations, and their following certain Leaders of their own Family, and Language, when otherwise they could not have conversed together; that therefore God must be careful in all this Transaction to preserve "your imaginary Patriarchal Power entire ; of which the Scripture is altogether silent. And you might

"T.T.G.c.iu as well tell me, that because in Hannibal's, or Darim's Army, there were whole

/>.' 177. Squadrons of different Languages, who were ranged under Captains of their own Language, or Country, that therefore Fathers, or Grand-fathers were Leaders of each Squadron; or that Darim, or Hannibal, were careful to preserve Paternal Authority.



{59}

But suppose I grant you the utmost you can ask, yet, since God thought fit at this Confusion of Tongues, that ail those of one Tribe should speak the same Language, which was not understood by any other, it is likewise very reasonable to suppose, that they could not travel so far as the utmost parts of Asia, without chusing, and following some Captains or Leaders to be their Guides, and Commanders in so long a Tourney; and whom could the People sooner chuse to follow for this purpose than their Fathers, or Grand-fathers, to whose natural Affection, Wisdom, and long Experience, they had from their very Infancy always paid a great respect and submillion: Yet doth it not therefore follow, that such Fathers or Grand-fathers thus led or commanded their Children and Posterity (now grown up to be Men and Women) by any natural or Divine Right, or that they followed them otherwise, than as an Army of Volunteers, or than as a Caravan in the Desarts of Arabia doth a Captain of its own chusing. But if you will suppose any thing beyond this, you will find yourself involved in greater Difficulties and Absurdities. For pray tell me, what great care was there to preserve a Patriarchal Authority in this Confusion and Dispersion, by breaking it into so many Parts? Indeed I am so blind I cannot fee it. For as I will not deny, but it was God's Will to confound the Language, and disperse the Families of Mankind, hoth for a Punishment, and also for the better peopling of the World: So am I not convinced, that God, in acting thus, was at all careful to preserve the Patriarchal Authority derived from Adam. For you cannot deny, but that at the same time he destroyed the true Supreme Fatherhood of the natural Monarch, or Heir of Adam, who could be but one Person, as you yourself have already asserted: Or, can it be any Reason to'say, that God, for the preservation of Paternal Authority, let so many several new Governments, with their Governors, start up, who mull all enjoy this Authority? And is it not more reasonable to say, that God was careful to destroy this Paternal Authority, when he suffered those of Noah's Sons or Descendants, then actually in Possession of it, to have their Monarchy torn in pieces, and shared by so many of their Subjects? And would it not be an excellent Argument for Monarchical Government to fay, when any Monarchy was shattered to pieces, and divided amongst many revolted Subjects, that God was only careful to preserve Monarchical Power, by rending a great settled Empire into a Multitude of little Governments. So that it is altogether irrational to conceive, that if any three or more right Heirs of Noah had Paternal Authority or Sovereignty by Right of Fatherhood over Mankind at Babel, that the next Moment, (all they yet living) Seventy two others should have a like Sovereignty by Right of Fatherhood over the same People, divided into so many distinct Governments: Either then these Seventy two Fathers were actually Rulers just before the Confusion, and then they were not one People, but an AriflocratkalCommonwealth, and then where was your Monarchy? Or else these Seventy two Fathers had paternal Authority,but knew it not, which is hard to suppose. And if these Seventy two Grand-children of the Sons of Noah had a Right to divide this Supreme Paternal Authority of Adam into as many distinct Governments as there were Heads of Families, why might not their Sons have done so in infinitum? And then there could never beany common Prince or Monarch let over them all, but by Force or Conquest, or else by EleElwn; either of which destroys your Notion of the Divine Right of Primogeniture.,

M. 'Tis a very pleasant Notion methinks this of yours, that the Posterity ofB. P. P. the first Planters of the World should follow their Ancestors, not as Children ox Sect. 6a. Subjects, but as Volunteers, and from a Reverence (forsooth) and Affection to their Age, Wisdom, and Experience. Indeed, I am thus far of your Mind, that these Children followed their Fathers freely, and were not driven afore them, nor dragged after them with Chains: But to infer from hence, that they owed their Father none of' this Service or Attendance, but out of meer good Nature and Gratitude, which are due to Strangers that, have obliged us by being our Benefactors, is a Notion that only becomes one, that owns no Right to be derived tcom Patriarchal cr Paternal Power; and since there were none of these Fatnarchs, who were the Leaders of Mankind in this Dispersion, but might be one or two h*dred Years old, if not more; can any thing in Nature look mojce ridiculous, than for Children and Descendants of these old Men, to elect them who begat them, to be their Leaders' and Governgrs, at a hundred Years ef


63. And to give you an Answer why Governments might not upon my Principles

crumble into new ones, in infinitum, I think it may be sufficient to tell you, that, First, God prevented it, and that for the most part by Monarchs, ever since the Creation of the World; and although he was pleased to permit many Divisions after this time; yet he would never suffer Mankind to be crumbled into such small Divisions, as to make every distinct Houstiold an Independent Government. Secondly, Those Monarchs prevented it, who would be hire to reduce to their Subjection any Person that should attempt to divide himself or Family from the rest, and set up for an Independent State, without his leave and liking. Third* ly, The necessity of Mankind prevented it, such small parcels of Men not being able to preserve themselves, but by uniting with the rest, for their Support and Protection: So that if you could never so clearly prove, that here was no Subordination to the eldest Son or Heir of Noah, yet this signified nothing, sot God ordered it so to be; and if these Grand-sons of Noah were Independent Governors of their own Families, without any Subordination to the eldest Son's Son or Heir ofNoah; yet were they still Sovereign Princes, and much left had any dependence upon their own Children and Descendants. So that hitherto the Multitude were kept under Subjection, and could not set up a Commonwealth, without rebelling against those Independent Governors, -

Now if in this horrible Confusion of Tongues, the People, by the Will of God, still fell under the Monarchical Government of these Fathers of Families j. I desire to know when they could obtain their Freedom, and in what Age it began?

F. I must confess you had some reason to look upon my Notion of the Descendants of the Sons of Ncahfollowing their Ancestors in this Dispersion, not as Children or Subjects, but as Volunteers, to be as ridiculous as you ate pleased to make it, could you have any way proved at our last Meeting, that the Power of Parents over their Children and Grand-children to ail Generations, is as absolute and perpetual, as that of a Master over his Slaves, and that a Son and a Servant were all one at the first; but since you failed in that Proposition, which is the Groundwork of all the rest, I must beg your pardon, if i cannot found the Descendants of Noah, following their Fathers or Ancestors in the Dispersion, upon any higher ground, than meer Gratitude and Esteem: I mean for all such of them, who were themselves at that time Masters or Heads of separate Families ,• and I desire to know of you, by what other Motive or Obligation, a great Grand-son (for Example) was obliged to follow his great Grand-father to the World's end, as his Prince or Leader, when perhaps his own Father thought fit to lead him another way; and I desire you to sliew me if they had (as they might very well have) commanded different things, which was to be obeyed? And how Disobedience to a Man's own Father in this cafe would have consisted with that Law of Nature, which you so much insist upon, of honouring a Man's Father? But indeed all this mistake proceeds from your, first false Notion, which I see you cannot yet be. quit of, in still supposing the Obedience and Subjection of Children to their Fathers to be absolute and perpetual: The contrary to which, I have already made out at our last Meeting t And therefore I must tell you again, that this Notion of these Grand-children, or Descendants following their Fathers or Ancestors, not out of Duty, but Choice, is not so ridiculous as you are pleased to make it; and though I do not suppose, that they elected these Ancestors of theirs for their Leaders by aBalks' ing Box; yet this much I am sure of, that they might prefer, if they pleased, the following of their Father or Grand-father, rather than their great Grand-father, if they perceived that he had doted through Age, or else by Weakness or Infirmities was unable to lead them; or that his natural Temper was so Imperious and Tyrannical, that there was no living under his Government? Neither doth the Scripture it self any where declare the contrary, only says in general, that by these Grand-sons of Noah, the Ifles or Countries of the Gentiles were divided, according to their Families and Nations, without particularly telling us, -who were the Princes or Leaders of each Tribe or Family. And to instance, if this Division happened in the Time of Peleg or Phaleg, as the Greek LXX? makes it, then not Arfhaxad the great Grand-father, or Selah the Grand-father, but Heber the Crand-son was die Prince or Leader of his Family at this Division; Since it is

from from 'him that Joseph* supposes the Hebrew not only to have descended, bat to '■<>• have taken their



Nor do you any better answer the other Difficulty, how all these Seventy two Patriarchs, or great Grand-fathers, could all of them claim alike Regal Power from Adam or Noah, whose right Heir could be but one Person. Indeed you tell me, that God ordered it so, by appointing every Nation a distinct Language, and to be led by the Ancestor of their Family. This is altogether gram diEhatti for though it be true, that the Scripture fays, that this Division of Tongues was made according to the different Tribes or Families of these Descendants ofNoah; yet doth it no where mention their being led or commanded by Seventy two Grand-fathers Patriarchs; and there might be for ought that you or I know, not only Seventy two, but seven score such Captains or Leaders of them; Nay, every distinct Father of a Family, when this Monarchical Power came to be crumbled into so many parts, might as well have claimed a share in this Regal Power, they being by this Confusion wholly reduced again into a State of Nature.

Nor are your Reasons sufficient to convince me of the contrary. As for your, first Reason, that God hath not suffered it to be so, signifies little; for either he hath hindered it by an express Command, or by the ordinaryCourse of his Providence: The former I am sure you can no where Ihew me; and as for the latter, whenever any Nation or People (hall be pressed with the like Necessity of separating themselves from the Government under which they were born, as the several Families of Mankind had at this Division of Tongues; I fee no reason why they may not have a like Right of quitting their Country, and becoming Subjects to another Government; or else of setting up one of their own if they can.

As for your second Reason, that Monarchs would be sure to reduce to their Subjection any Person that mould .offer to divide himself and Family from the rest, and set up for an Independent State, without their good leave and liking. This is a good Argument indeed, that they were not able to do it, but none at all, that they ought not to do it if they could; since this were but to exercise that "Supreme Paternal Authority with which God hath invested them, as much is ever he did any of those Seventy two Descendants of Noah, who set up so many new Governments, without the consent ol.Noab's right Heir. • 'Year third Reason, I confess, is somewhat better; That the Necessity of Mankind prevented it. But this also makes quite against.you, and only proves, that the Heads or Masters of Families being sensible they could not preserve themselves, but by uniting with others for their mutual Safety and Protection, were fain to submit (though by their own Consents) to some Common Power, for their own, as well as their Families Preservation. So that I cannot see from any thing you have said, that God had that great care..you suppose of maintaining your Patriarchal Power, muchless this Divine Right of Primogeniture.

As. I see it is to no purpose to dispute with you any farther about the Patriarchal Power of these Sons of Noah,and therefore.I shall proceed to the Times F.P.r. i. j.R, after the Confusion of Tongues; in whkh, theiirst Instance I shall give you, is ■that of Jacob, who when* he had bought hisÆrochers.Birth-right, .Isaac blessed turn thus;Be Lord over  thy.Brethren, and let the Sons of thy Mother bow down before Gen. 27,20. thee. By which is plainly denoted a Regal Power or Dominion over Esau his Brother, and the rest of his Brethren, if he had any. So likewise we find—

R1 pray give me leave to interrupt you a little, for I have a great deal to sav to this Instance you have, nemrKm»w. >

. r.a, gut me icave to interrupt you a little, for I ha' -.

to this Instance you have, now brought of Jacob and Esau; and therefore I delire I may speak, it before you proceed any further. And first, by the way, I cannot but observe, that this-Divine Right of Primogeniture* which you suppose here to be meant by the Word Birth-right, was capable of being sold for a Mess of Cottage, and z\lEsau's Heirs disinherited of their Right, because their Father preferred his Belly before his Honour and Interest. But if your Principles are true, a Divine Right never dieth, nor can be lost, or taken away.

The second thing I must take notice of, is your making Isaac, presently after T.T>G.cii. this Sale of the Birth-right, and as it were in confirmation of it, to have given t- »45Jacob his Blessing; whereas it is apparent by this Story in Gen. 25. that many fears pass'd (perhaps twenty or thirty} between Jacob's buying of this Birth-r»ght4and Isaac's conferring of the Blessing upon him, as any one that will but read the texh of Genesis may easily see. But if you had better observed this Text,

you would have found that this Blessing was not intended for Jacob, but Esau, for whom ljfiac then mistook him. But be it as it will, whether the Blessing was given to Jaccb or Esau, it matters nOt; for from these Words I can by no means gather, that any Government or Superiority was thereby conferred on Esau over Jaccb, or jaccbover Esau. For, first, as to Jacob, this Blessing was never fulfilled, ss to be Lord over Esau, who was Prince of Mount Seir in Jacob's Lifetime: And as for bowing, or any other Token of Superiority, we read indeed, thatJacob at his meeting his Brother Esau bowed seven times towards him to the Ground, though he had before fold his Birth-right to Jacob; and therefore this Birth-right cannot mean any ruling Power, or Lordship over his Brethren j

J&.p. 146. fince ic *s manifest from the Text, that Jacob had no more Brothers than Esau;

nor had Isaac any consideration of Jacob's having then bought this Birth-right; for when he thus blessed him, he took him not to be Jaccb, but Esau; nor did Esau understand any connexion between the Birth-right, and the Blessing; for fays he to his Father, He hath supplanted me these two times, he took away my Birthright, andbehold now he hath taken away my Blessing. Whereas, had this Blessing, to be Lord over his Brethren, belonged to the Birth-right, Esau could not have complained of this second Act as a Cheat, Jacob having got nothing, but what Esau had sold him long before.

So that it is plain, Dominion was not then understood to belong either to the Birth-right or Blessing. And therefore it is more rational to suppose, that this Word Birth-right only relates to the Right of Priesthood, which the Jews supposed always to deseend to the eldest Son, before the Law was given: And that by Blessing, is meant no more, than that double Portion of Goods, which by the Jewijb Law was due to the Firstrborn; and that this is the true Sense ot this place, I desire you to leek in Gen. 21. 10. (if you please to give me your Bible, I will shew you the place, and will read the Words to you) where Sarah taking Isaac to be Heir, fays, Cast out this Bond-woman and her Son, for the Son of this Bond-woman stjall not be Heir with my Son: Whereby could be jneant nothing, but that he should not have a Pretence to any equal share of his Father's Estate after his Death, but should have his Portion presently, and be gone. And far

ff.TC./.Hy. ther we read, Gen. 25. j, 6. That Abraham gave all that he had unto Isaac j but unto the Sons of the Concubines which Abraham had, Abraham gave Girts, and sent them away from Isaac his Son, while he yet lived; that is, Abraham having given Portions to all his other Sons, and sent them away, that which he had reserved, being the greatest part of his Substance, Isaac as Heir possessed after his Death; but by being Heir he had no Right to be Lord over his Brethren: .For if he had, why should Sarah desire to rob him os one of his Subjects or Slaves, by desiring to have him sent away? . >..

So likewise, if you look into the first of Chron. chap. 5. v. 1. you will find 3.

Ib. p. 148. place, that plainly confirms this Interpretation, where it is said j Reuben was the first-born, butforasmuch as he defiled his Father's Bed, his Birth-right was given unto the Sons of Joseph, the Son of Israel; andthe Genealogy is not to be reckoned after the Birth-right. For Judah prevailed above his Bret hen, and of himcame the chief Ruler } but the Birth-right was Joseph's, though he was the youngest Son. And that this}

,-• Birth-right was Jacob's Blessing on Joseph, Gen- 58. .22- tells us in these Words;

Moreover I have given thee one Portion above thy Brethren, which I took out of the Hand of the Amorites with mySword, and with my Bow. Whereby it js not only plain, that the Birth-right was nothing but a double Portion of Right due to the eldest Son; but the Text in Clnonicles is expresly against your Opinion, and shews that Dominion was no part of the Birth-right; for it tells us, "that Joseph had the Birth-right, but Judah the Dominion. So that unless you were very fond of this Word Birth-right, without considering in what Sense it is to be takep, you would never bring this Instance of Jacob and Esau, to prove that Dominion belongs to the eldest Son over his Brethren: For if this Blessing of Isaac upon Jacob signifies any thing more than this, it could not relate to his own Person, who never ruled over his Brother at all; and therefore it is at most no more, than a Prophesy, Ihewing that the Jews, as being descended from Jacob, should in after Times rule over the Edomites, or Posterity of Esau, according to what Rebekah had been foretold from God; Two Nations are in thy Womb, and two mannerof Peor

Gen. 25. 23. j]}(lii ie feparated from thy Bowels, and the one People shall be stronger than the other People, andthe Elder stallse, ye the Tounger. And so Jacob blesled Judah, and gave

him him (though not in his own Person, but in his Posterity) the Scepter and Dominion: From whence you might have argued as well, that the Dominion belonged to the third Son over his Brethren; as well as from this Blessing of Isaac, that it belonged to Jacob, they being both but Predictions of what should long after happen to their Posterities, and not declaring any Hereditary Right of Dominion in either Jacob or Judah.

 M. I will not rigorously insist, that Primogeniture is such a Divine Right as cannot be altered by any HumaneAcl or Constitution; but yet I take it to be such a _ •'. Right, that without the Father orders it otherwise in his Life-time, or that the elder '*"' Brother doth of his own accord depart from his Right, he will have a good Title to his Father's Government or Kingdom, and consequently to command over the rest of his Brethren; and thereforeGrotim'mikeS a great deal of differ rence between Hereditary and Patrimonial Kingdoms, the former being to descend to the eldest Son only, but the latter are divisible amongst all the Sons, if the Father please: And hence I suppose it was, that as Mankind increased; one petty Kingdom grew oat of . another. Thus the Land of Canaan,which was I2' peopled by six Sons of Canaan, and Philiftim the Son of Miz,raim, had eight or nine Kings in the Time of Abraham, and above thirty Kings in Jojhua's Time ; which could proceed from no other Cause, but the Fathers dividing their Kingdoms in their Lifetimes, or at their Deaths, amongst their Sons and Descendants; for we Bear not'o£ one tittle cf Popular Elections in those early Days. And I have- Proofs enough of . this in Scripture. Since thus we find it to have been ambng- the Sons of Ijhmael and Esau, as appears by Gen.2$ and 26.where it is T.f.e.i.f.16. f&idp^TUiese *are the Sons of Ishmael, and these are their Names by their Castlesand''6'?'*0' Towm, Sic. Twelve Princes, of. their Tribes and Families. . And these are the Names of th&~Dukesthatxame. of H(axir.'according to their Families, and their Places by their Nations. "And hence it is, that in after Ages, Princes did often divide their Kingdoms amongst their Children, of which you may fee divers Examples inGrctius De y. £. I. 2. cap. 7. which Divisions, when made and submitted to by the eldest Sest. 12. Son, I doubt not but were good. Yet I think it cannot be denied for all tfcis, that "by.the Law of "Nature or Nations, where there is no Will of the Father declared to the contrary, the eldest Son ought to inherit. And this is the Judgment not only of Christian, but Heathen Writers. Thus Herodotus, the Herod. Folym: most ancient Greek Historian, lays it down for a general Custom of all People or Nations, that the eldest Son should enjoy the .Empire; and theRomans Were likewise of this Opinion ; and therefore Livy, when he ibeaks of two Brothers of the AUo~ brogescontending for the Kingdom, fays, The Younger was more strong in Force than Right. And in another place, hecalls this Right of the eldest Son, the Right of 'J*sth. t.i\. Age and Nature; as also doth Trogus Pompeita in his Epitome of Justin, when he calls it the Right of Nations; and in another place, a Right of Nature, when he fays, that Artibaxanes, the eldest Son of the King of Persia, challenged the Kingdom JuJHn. /•». himself, which theOrder cf his Birth, and 'Nature itself appointed amongst Nations. I could give you many other Authorities from more Modern Authors, but I rather chuse to give you these, because you cannot except against them, as Writers prepoflest by either Jewish or Christian Principles. So that if this Right of Primogeniture be not absolutely Divine, yet it is'at least most Natural and Reasonable. , • .'• '> ■>.•■>

- ,F..I fee you are convinced, that this Divine Right of Primogeniture is not to be proved out of Scripture, and therefore you are contented to fall a peg lower, and to take up with the Right of Elderfhip by the Law of Nature or Nations, which howsoever you are pleased to confound them, are for all that two distinct things; for if the Succession of the eldest Son were by the Law of Nature, it were no more to be altered by the Will of a Father, than the Law of God itself; and therefore notwithstanding all your Quotations, your Right of Primogenitureamounts to no more than this, that it hath been a common and received Custom in many Kingdoms or Nations to observe it; and therefore Htrodotus, whom you have now quoted, calls it very rightly a Custom of Nations, thatthe eldest Son should enjoy the Empire: Which yet it is not true amongst alt Nations or People, by your own Confession : For then there would have been no difference between Hereditary and Patrimonial Kingdoms; but the eldest.Son should have inherited alone in the one, as well as in the other. Unless You can suppose, (as sure you will not) that some Kingdoms are to be disposed according to the



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Law of Nature, and others not. But if you would have considered Grotius, (whom you have now made use os) he would have instructed you better. For in the Chapter you have now cited, he makes the difference between them to depend upon the manner of acquiring the Kingdoms he speaks of; if you please I will shew you the Words, Sedin Regnorum Succejfione distingui debent Regna qua plena mode pLjfidentur>, & in Patrimoniosunt, ab his quamodum habendi accipiunt ex populi canfenfu, de quo discrimine egimussupra. Priorts generis Regna drvidipestunt etiam inter Mares, & Focminas, ut in Ægypto, & Britannia, oltm faclum vidimus.

Nullo discrimine Sexus,

Reginam scitserre Pharos, ait Lucanus; de Britannis 'Tacitus, Neque emm Sexum in imperio discernunt. But look a little farther, and you will find the reason of the difference between them: At ea Regna qua populi liberoconsensu facia sunt hxreditaria, ex prasumpta populi voluntate desertmtur. Prasumitur atftem populus id voluijfequod maxime expedit. And of this you may fee he giveth divers Examples, which we need not particularly recite: But this much is apparent, that Patrimonial Kingdoms are divisible among all the Children, because they are supposed to be wholly in the Fathers Power, either by Conquest, or the first Plantation of them: But Hereditary ones, that descend to the eldest Son, can only become so by the free consent of the People, by whom they were instituted; and therefore both I^hnael and Esau, whose Territories were wholly Patrimonial, might very well divide them alike, amongst all their Sons i but then your natural Right of Primogeniture is quite destroyed. The like may be laid of other Kingdoms where this Custom took place: And therefore those Passages you have cited put of the Greek and Roman Authors, for the Succession o£ the eldest Son to be by the Law of Nature, is to be understood according to the Sense of those Authors, who often confounded the Law of Nature or Reason, pror perly so called, with those commonly used, or received Customs- among civilized People; which they called theLaw of Nations, which yet were not Laws pro-i perly so called, since they may, without any transgression of theLaw of Nature^ be practised different ways. . ■.' ■> ;,■ I „

And therefore, though I allow Primogeniture, as well in Families as Kingdoms," to have had a just Preheminence by the practice of many civilized Nations* and look upon it as an excellent sort of natural Lot (where the elder Brother is fit to govern) that he mould succeed before the younger, to avoid Strife among such Re-* lations, and Civil Wars in Kingdoms: Yet that this is still to be understood according to the Custom of the Country, or Will of the People, that instituted the Monarchy, I desire to go no farther, than that Example that you have but now brought of Artabax,anes, who was the eldest Son of Artaxerxes, but born before he was King, and Xerxes his younger Son, but born after his obtaining the Crown ,• the Matter being referred to the People, they determined it in favour  Xerxes; as you will find in Herodotus and Justin, whom you have but now quoted. And though I grant, that when afterwards in the fame Kingdom, the like Contror versy was started between Cyrus and Arficas(who was afterwards called Artaxerxes Memnon) it was judged just, the quite contrary way, whether by Right or Favour, I will not determine; yet this may let you plainly fee, that this Ancient and Wife Nation had no settled Law, either natural or municipal, concerning this Matter. I could give you several other Instances of the fame kind, which you may consult at your leisure in Grotius, and other Authors; only this much may be certainly gathered from what yourself as well as I have said concerning it, that there is no certain Rule or Law, either of Nature or Nations, concerning this Matter: And therefore, your Instances of the Sons of Esau and Ijhmael- are so far from making out your Hypothesis, that if their Fathers could divide their Kingdoms into as many Parts as they had Sons, without any Subjection to the elder Brother, I can fee no reason why every one of their Children or Descent dants might not have done the like if they had pleased, till their Principalities had become as small, as those of the Dukes of Saxony are at this day; so that I cannot fee, to what purpose you have brought these last Instances out of Scripture, unless it were to make against yourself, and to prove that there were then, as there are now in the World, a sort of Princes who may be lawfully so, without claiming any Title from Adam or Noah,much less by any Right of Primogeniture.*. ........ «




M. It is sufficient for my purpose to be able to shew you, from these Examples of the Sons of Esau andIjlmael, that as well Hereditary as Testamentary Kingdoms, did antiently commence according to the Law or received Custom amongst Nations, without any Consent of the People cr Descendants of those that were to be governed by them : And as long as the Succession to such Kingdoms were by any certain or known Rule constantly practised among Mankind, the matter is not much whether the eldest Son succeed to his Father alone, or that his Brethren , shared with him in the Inheritance. For since it was God's Will to institute Civil Government amongst Mankind, it must be also his Will to make the Succession to it clear and certain to all the Subjects that were to submit to it, as he hath done, whether one Brother or many succeed; since the Will of the Father is as certain a Rule of Succession, as that by Inheritance ; and therefore what you have said in answer to my last Instances of the Sons oiEsau and Ijhmael signifies not much.

F. I did not then deny, but grant at our last Meeting, that Families might at first grow up into Kingdoms; but yet I do still (as I did then) assert that such Governments could not be instituted by any Father or Grandfather alone, without the express or tacit Consent of his Children and Descendants, supposing them once married and separated from their Fathers or Ancestors Families. But it is needless to repeat what I then said; only give me leave to mind you, that at the beginning of this Discourse you maintain'd, that not only Kingly Power in general, but also the Succession to it by the eldest Son, or his next Brother, is of Divine Right or Institution, or else all that you urged concerning the natural Right of Dominion of Cain over Abel was to no purpose: But now you insist, that Succession by a Testament or Will of the Father is also as much by the Law of Nature as the other $ in which I think you are very much mistaken, since the Right of bequeathing Kingdoms, or any thing else, by Testament, is neither prescribed by the Revealed Will of God, nor the Laws of Nature; since all settled Property in Lands or Goods, before the Institution of^ Civil Governmenr, proceeding only from Occupancy or Possession, must cease in the State of Nature with the Life of the Occupant or Possessor. Therefore in that State a Testament cannot take place by the Testator's Death; since, as soon as he dieth, his natural Right in the thing bequeathed is quite lost and extinguifli'd: So that the Dead not having an Interest in any thing, the Legatee cannot sustain the Person of the Testator, whose Right ceases before that of the Legatee can take place ; and therefore the Testament or Disposition of such things may then without any Crime be neglected or altered by the Survivors, unless all those who pretend an Interest in it do agree to it, or swear to see it fulfilled during the Testator s Life-time. And for this cause we find Abraham binding his Servant that ruled over his House by an Oath, not Gen.24.2,3. to take a Wife for his Son of the Daughters of the Land; and Jacob taking an Gen. 49. 29. Oath of Joseph, not to bury him in Egypt; because they doubted whether they could oblige their Sons or Servants to do it by their Testaments. So that it appears evident to me, that the Power of making Testaments, and bequeathing Lands or Goods, is but a Consequence of that Propriety in Lands, Goods, or Dominions, which arises from Compact or common Consent in a Kingdom or Commonwealth, after it is instituted, as I think I am able to prove whenever you please to discourse with me farther about it. But as for the Right of bequeathing Crowns or Kingdoms by Testament, I will not deny "but that some Kingdoms may have been bequeathable by their original Constitution, and others become so by Custom ,• yet I cannot grant that this Right belonged to the Prince or Monarch by the Laws of God or Nature, but proceeded purely from the received Law or continued Custom of that Kingdom : So that you must either confess, that there is no such thing as a Divine Right of Succession, or else it is such a one as signifies as much as nothing, since humane Laws or Constitutions can alter it or take it away. So that after all this pother about this Divine Right, it is not so good as an old Estate Tail, which formerly no Fine could bar. And I must farther tell you, that I cannot assent to your Opinion, that Succession by a Will or a Testament is so certain as that by Inheritance ; since all such Testaments must depend upon the Credit of the Witnesses, whose Credit may often be question'd by the Subjects, and who may very well for their own ends make a younger Son to have the whole, or at least a Share in the Kingdom, to whom his Father never intended ?ny; and which was likewise more easy to be done before such time as


written Wills or Testaments, solemnly published according to Forms of Law, came in use.'

But because you suppose that the natural Laws of Succession to Kingdoms are so plain and certain, that I may a little convince you of your Mistake in this matter, I shall for the present suppose that the Succession of an elder Son or Brother is sufficiently easy to be known ; yet I doubt it will not prove so in many other Instances: And therefore to let you fee I do not make this Scruple without cause, suppose Abel (for example) to have left a Son or a Daughter behind him, when his Brother murder'd him, pray tell me who was to succeed after the Death ofAdam, this Son or Daughter of Abel, or Seth their Uncle?

M. We do not read of any Children that Abel had, and therefore I cannot tell what to fay to it.

F. Well, but since it is probable he might have had Children, pray tell me (supposing he had) whether this Child, were it Son or Daughter, or Setb the Uncle, was to succeed?

As. Since you will needs have me speak my Opinion in a thing so uncertain, I think this Child, were it Son or Daughter, ought to have succeeded before the Uncle. •

F. Pray, Sir, tell me by what Law or Rule you thus judge ? whether by the Law of God or Nature?

M. I must confess, God hath prescribed nothing expresty concerning it, more Ver. 8. than what he says, Numb.27. that isa Man dies leaving no Sons, ye Jball cause his Intieritance to pass unto his Daughter; with divers other Rules of Succession to Inheritances there specified : And besides, it is more suitable to the Laws of Nature, that the Children of the elder Brother should inherit before their Uncle, there being no reason that they should be punished for their Misfortune, in having their , Father die before he could succeed to the Government.

F. I doubt the Place of Scripture you have cited doth not reach this Cafe of Kingdoms : For first, this being a Municipal*Law of the Jews, could only concern that Commonwealth; and secondly, it only relates to private Inheritances: And that this is so may be proved from the next Verse, where it is said, that a Man's Brethren shall be his Heirs; that is, all of them were to be Heirs alike, only the eldest was to have a double Portion. And if this Law concerning Daughters were to reach the Succession of Kingdoms at this day, the Laws of Fiance and other Countries, where Women are barred from succeeding to the Crown, would be against the Laws of God and Nature: And the like may also be said concern-* ing the Succession of the Nephews before their Uncles, or of Uncles rather than the Nephews, whose Fathers never enjoy'd the Crown; divers Nations having different. Customs, and that with a like appearance ot" Reason, concerning it. For on the one hand, if the Son of Abel might have pleaded, that he was the First-born of the eldest Son of Adam, and so ought to represent his Father; Seth the Uncle might likewise with as good reason urge, that he was more nearly related in Blood to Adam, as being his Son, than the Son of Abel, who was but his Grandson; and besides, being older than he, was endued with more Wisdom and Experience, and consequently was fitter to govern. But if Abel left only one Daughter, or more, I doubt not but the Question would have been harder to be decided; since, if Women are not permitted to govern in private Families, they will not (especially amongst Warlike Nations) be admitted to govern Kingdoms, especially since it would be left in her power, not only to govern her self, but by marrying to chuse a King for her Subjects, whom they do not approve of. And therefore we read, that in divers of the antient Kingdoms of the World Women were excluded from the Succession, as they are in France at this Day. T. T.G. e. 11. Nor are these the only Questions that either might then, or else have in latter f. 157,158. Ages been started concerning Succession in Kingdoms and Principalities, and have been the cause of great Disputes between Pretenders to Crowns, where a King dies without lawful Issue : As, whether a Grandson by a younger Daughter shall inherit before a Grand-daughter by an elder Daughter? Whether the elder Son by a Concubine before the younger Son by a Wise? From whence also will arise many Questions concerning Legitimation, and what by the Laws of Nature is the difference betwixt a Wise and a Concubine? All which can no ways be decided but by the municipal or positive Laws of those Kingdoms or Principalities. It may further be enquired, whether the eldest Son, being a Fool or


Mad-man, shall inherit this paternal Power before the younger, a wife Man? And what degree of Folly or Madness it must be that shall exclude linn? and who (hall be the Judges of it? Also whether the Son of a Fool so excluded for his Folly (hall succeed before the Son of his wiser Brother who last reigned? Who shall have the Regal Power whilst a Widow Queen is with child by the deceased King, until she be brought to bed? These and many more such Difficulties might be proposed about the Title of Succession, and the Right of Inheritance to Kingdoms, and that not as idle Speculations, but such as in History we shall frequently find Examples of, not only in our own, but_ likewise other Kingdoms, From all which we may gather, that if the Laws of God or Nature had prescribed any set Rules of Succession, they would have gone farther than one or two Cafes; as concerning the Succession of elder Sons or Brothers, where an elder Son dies without Issue; and would also have given certain infallible Rules in all other Cafes of'Succession besides these, and not have left it to the Will or particular Laws of divers Nations to have established the Successions so many several ways, as I am able to shew have been practised in the World.

M. I must confess you have taken a great deal of pains to perplex the Succession to Adam, which seems designed for nothing else, but to make me believe, that if Adam or any of his Sons were Kings or Princes, it must have been by the Consent or Election of their Children or Descendants: Which is all one as to fay, that those antient Princes derived their Titles from the judgment or Consent of the People, the contrary to which is evident as well out of Sacred as Civil History. , f. Since you appeal to History, to History you shall go; and to let you see, that I have not invented these Doubts about Succession of my own head, and that there might have very well been a real Dispute about the Succession to Adam in the Cases I have put, may appear by the many Disputes and Quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew; of which Grotim is so sensible, that he confesses, in the latter end of the G.J.T. 1.1 u Chapter last cited, that where it could not be decided by the People's Judgment, it c-7> {• 5* 5 »• was fain to be so by Civil Wars, as well as private Combats; and therefore he is forced ingenuously to confess, that this hath been practised divers ways according to the different Laws and Customs of Nations: And he gives us here a distinction between a direct lineal Succession and a transverfed, and acknowledges, that amongst the Germans, as also the Goths and Vandals,Nephews were not admitted to the Succession of the Crown before their Uncles. The like may be said of theSaxons and Normans ; and therefore we find in our antient English History, that before the Conquest the Uncle, if he were older, always enjoyed the Crown before the Nephew; which I can more particularly shew you, if you think fit to question it. The like manner of Succession was also amongst the Irish-Scots for above 200 Years afterFergus their first King. The like Custom was also obferv'd among the List, as long as they had any Kings amongst them, and is called the Law of Tanifiry. The fame was also observed in the Kingdom of Caslille, where, aster the Death of Alfhonso the Fifth, the States of that Kingdom admitted his younger Son Sambo to be King, putting byFerdinand de la Cerda, the Grandson tothe late King by his eldest Son, tho' he had the Crown lese him by his Grandfather's Will. So likewise-in Sialy, upon the Death of Charles the Second, who left a Grandson behind him by his eldest Son, as also a younger Son named Robert, between whom a Difference arising concerning the Succession, it being referred to. Pope Clement V. he gave Judgment for Robert, the younger Son of Charles, who was thereupon crowned Ring of Sicily. And for this reason it was that Earl John, Brother to King Richard the First, was declared King of England by the Estates, before Arthur Earl of Britain, Son of Geoff try the elder Brother: And Gianni!, who was Lord Chief Justice under Henry the Second, in that little Treatise we have of his, makes it a great question who should be preferred to an Inheritance, the Uncle or Nephew.

But as for Daughters, whether they shall inherit at all or not, or at least be preferred before their Uncles, is much more doubtful since not only France, but molt of the Kingdoms of the East at this day, from Turkey toJapan, do exclude Women from the Throne : And it was likewise as much against the grain of the antient Northern Nations; and hence it is that we find no mention of any Queen to have rqigned amongst the antientGermans or Irijh-Scots, and never but two among the English-Saxons, and those by Murder or Usurpation, ajid not by EleBien,


as they ought to have done. And upon this ground it was, that the Nobility and People of England put by Maudthe Empress, and preferred Stephen Earl of Blots to the Crown before her: For tho' he derived his Affinity to the Crown by 2 Woman, yet being a Man, he thought himself to be preferred before her. So likewise in the Kingdom of Arragon, Mariana in his History tells us, that antiently the Brother of the King was to inherit before the Daughter. Examples may also be given of divers of the other Instances, but these may suffice.

M. I pray give me leave to interrupt you a little : For by these Examples you would seem to infer, that these Laws about settling the Succession of Crowns in several Kingdoms depended upon the Will of the People; whereas I may with better reason suppose, that if such Laws and Alterations have been in such Suecessions, they were made by the sole Will of the first Princes, in which the PeoP»P.P. j 71. pie had no hand : For in the most antient Monarchies there was a Time, when the People of all Countries were governed by the sole Wills of their Princes, which by degrees came to be so well known in several Instances, that inferior Magistrates needed not resort to them in those cases ; and the People being for a considerable time accustomed to such Usages, they grew easy and familiar to them, and so were retained, two' the Memory of those Princes who first introdue'd them was lost ; and after Kings finding it better to continue what was so received, than to run the hazard and trouble of changing them, were, for their own ease and the goed of their Subjects, contented they mould be still from Age to Age so continued. Which Custom may hold as well in Laws about Succession as other things; and therefore we find that even in those Monarchies, where the People have nothing to do in making Laws, Women are excluded; which could proceed at first from nothing else but the declared Will or Law of the first Monarchs. So likewise the Original of the Salique Law is wholly ascribed to Pharamond, the first Fench King: And Mariana (whom you lately cited) tells us, that Alphonfo King of Arragon made a Law, that where Heirs Male were wanting, the Sons of a Daughter should be preferred before the Aunt; which Law is wholly attributed to the King, for he adds presently after: Sic safe ad Kegum arbitrium jura regnandi commtttantur.

F. Granting all this true that you have said, you cannot but confess, that the Laws of God and Nature have established nothing in this matter, or else it could not be in the power of Kings to make or alter Laws concerning the Succession, as your last Quotation intimates they may: Yet even in the most absolute Monarchies the Lawsabout the Succession of the Crown must wholly depend upon the Consent of the People, who are to fee them observed, or else every Monarch might alter these Laws of Succession at his pleasure; and the Great Turk, or King of France (now the Assembly of the Estates is lost) might leave the Crown to a Daughter, if either of them pleased, and disinherit the next Heir Male.

But as for the Original of this Salique Law in France, you'll find your self much mistaken, if you suppose, that that Law was made by the sole Authority of Pha~ Vide H»to- ramond  For the antient French Histories tell us, that the Body of Salique Lavisy Catlike""'wmcn are now extant> werc made by the common Consent of the whole Nation of a ia.cap.1. ^g prmcS} who committed the drawing of them up to three Judges or Commissioners, and which Laws Pharamond did only confirm: And any one that will but consult those Histories may fee, that Kings were so far from having the sole Legislative Power in their own hand, that they were frequently elecled by the Estates.Nor is that truer which you cite from Mariana, that the Kings of Arragon had Power alone to make Laws: It appears quite contrary from the Constitutions of that Kingdom, where the King could do nothing of this kind without the Consent of the Estates, and was not admitted to the Crown without taking an Oath to the Chief Justice in the Name of the People, that he would observe the Laws and Constitutions of the Kingdom, otherwise that they would not be obliged to obey him.

But at once to let you see, that about the Succession of the Sons or Descendants by Daughters, the Cases are much more nice and intricate; and that when P. Nk M. f. such Cases happen in limited Monarchies, where there is an Assembly of Estates, they 5 *• are the sole Judges in such Differences, may appear by two famous Examples in

Vid. Hect. modern History: The first is in Scotland, about 400 Years ago, when after the Boetb. L. Death of KingAlexander III. who died without Islue, when two or three several Competitors claim'd a Right to the Crown, as descended from several Daughters


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of David Earl of Huntington, great Uncle to the last King, the chief of which being 'John Baliol and RobertBruce, the Estates of the Kingdom not being able to decide it, they agreed to refer it to Edward I. King ofEngland, who adjudged rhe Crown to Baliol: Yet did not this put an end to this great Controversy; for not long after Baliol being deposed, Bruce revived his Title, and the States of Scotland declared him King, whose Posterity enjoy it at this day.

A like Cafe happened in the last Age in Portugal, after the Death of King Henryt firnamed the Cardinal,without Issue, when no less than four eminent Competitors put in their Claims; some claiming from the Daughters of Don Duarte, youngest VtJL Marian* Brother to the last King Henry; but the King of Spain, and other Princes, as Sons mfi' H'fito the Sisters of the said King. Henry dying without Issue, left ten Governors over the Kingdom, to decide, together with the Estates, the Differences about the Succession; who quarelling among themselves, as also with the Estates, before it was decided, Philip II. King of Spain, raised an Army, and soon conqueredPortugal: And yet we have seen in his Grandson's time, that the Estates of Portugal declared this Title void, and the Crown was settled in the Posterity of the Duke of Bi aganz,a, who still enjoy it.

And how much even Kings themselves have attributed to the Authority of the p-N-M Ib' Estates in this matter, appears by the League made between Philip the Long,*9' King of France, and David King of Scott., wherein this Condition was expressed : Y'ld-Mn.tray 'That if there jhould happen any Difference about the Succession in eitherof these Realms, |Jf p#K* & * he of the two Kings, which remained alive, Jhould not suffer any to place himselfon the "Throne, but him who Jhould have the Judgment of the Estates on his fide; and then he Jhould with all hisPower oppose him, who would after this contest the Crown. To conclude, I cannot fee any means how, if such Differences as these had afisen in the first Generation after Adam, I say, how they could ever have been decided without a Civil War, or else leaving the Judgment thereof to the Heads or Fathers of Families, that were then in being: Which how much it would have differed from the Judgment or Declaration of the States of a Kingdom at this day, I leave to your self to judge.

M. I shall not trouble my self to determine how far Princes may tie up their own hands in this matter of the Succession, and leave it to the States of the Kingdom to limit or determine of it,• but from the Beginning it was not so; and therefore give me leave to trace this Paternal Government a little farther : For F. P. 0.5 7. tho' I grant, that when Jacob and his twelve Sons went into Egypt, together with their Families, they exercised a Supreme Patriarchal Jurisdiction which was intermitted, because they were in subjection to a stronger Prince; yet after the Return of these Israelites out of Bondage, God from a special Care of them chose Moses and Joshuasuccessively to govern as Princes, in the place and stead of the supreme Fathers ; and after them likewise for a time he raised up Judges, to defend his People in time of Peril. Yet that all these were endued with Regal Authority, may appear, in that Moses is called in Deuteronomy, a King in Jejhurun, Dent. 33. 5. (that is, overIsrael.) And when Moses saw that he was to die, he besought God, B-r* 35to set a Man over the Congregation,that the Congregation of the Lordjbe not as Sheep which ^'""^ 2?" have no Shepherd. And as for the Judges, it is apparent from the Book that bears '7their Name, that they had Power of making Peace and War, and of judging in all Cases of Appeal; insomuch that whosoever would not hearken to the Priest, D*«m7. n, or to the Judge, eventhat Man Jhould die. But when God gave the Israelites Kings—,1

F. I pray give me leave to interrupt you a little, for I have a great deal to fay against your Notion of the Government of the Israelites before they had Kings actually nominated by God; for notwithstanding all you have said, it doth not appear to me, that either Moses, Jojlma, or the Judges, were any more than figuratively or in a larger Sense to be stiled Kings: For as for Moses's being called King in Jejhurun, he only calls himself so Poetically, in that excellent Hymn of Blessing, which he bestoweth upon the twelve Tribes': For certainly God did not suppose him to have been a King, when in Deut. 17.14. he speaks of the Children of Israel setting a King over them, as a thing that was to happen many Years after, and there lays down Rules how he should govern himself, which had been needless, if they had had a King already. And that Moses was not a King, Jose" fhushimself (hews us in his Antiquities, lib. 4. where he makes Moses to have instructed the Children of Israel at the time of his Death to this purpose: Aristocracy is the best Form of Government, and the Life that is led under it themost happy; and

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there/we let not the defire os any other sort of Government take possession of you, owning no other Master thanthe Laws, and doing every thing according to it: Tor God is your King, and that is sufficient for you. And ifMoses was no King, then certainly Jojbua was none neither.

M. Pray give me leave to answer what you have now said against the Kingly Power of Moses and Jo/hua: For if you will please to remember, that tho' the Saif hedrim had been constituted before this time, yet Mosesesteemed them as Sheep without a Shepherd, if a Man was not set over them which might go out before them, and which might lead them out, and bring them in; and God approved his Desires, and appointed Joshua to succeed him,, and the People received him Josh, i. 16, accordingly, and told him : AU that thou commandeft m -we wiU do, and whithersoever 17. thou fendefi us we will go : according as we hearkened unto Moses in allthings, so will we

hearken unto thee. If this were not Kingly Power, then is there no such thing. So that this Discourse, whichJosephm puts into Moses's Mouth, seems directly contrary to Moses's Thoughts and Practice. And whereas he makes Moses to have opposed Obedience to the Laws to Kingly Government, it is a pure Greek Notion: For whilst the Grecians lived under Kings, they had few or no Laws; but when they set up Commonwealths, they then found the Necessity of having Laws, and then the Dominion of Laws was opposed to the Government of Princes: But this was contrary to the Practice of Israel; for they were to live according to their Laws, as well under Kings as without them, in all Estates and Conditions; and their Kings were bound to govern them by the Law, and not by their Wills contrary to the Law. So that in this Josephiu clearly made the antient Customs of his Country to comply with a Greek Notion, that had no being for some hundreds of Years alter Moses was dead. . *

And as for the Time of the Judges, even in the Intervals between them, when every one did that which was right in his own eyes, even then the Israelites were under the Kingly Government of the Fathers of the particular Families, over whom the Prince or Head of it had likewise a supreme Power.

F. But pray give me leave to speak a little farther: Let me ask you, what is an Aristocracy, if this be not ? viz.an Assembly of the Elders, or chief Fathers of Families of each Tribe, meeting, consulting, and resolving of the publick Affairs of the Commonwealth, under their Head or President, the Chief of the Tribe. And this is the Government for which Josephm makes Samuel so much afflicted, when the People would quit it for a Monarchy.

M- I think you are much mistaken in this point; for it is no where declared, that these Fathers of Families governed their own Families independently; for B. P. P. §31. then there would have been no publick Government at all: Nor yet is it said, that these Fathers governed by Majority of Voices chosen out of themselves; for then, I grant, it would have been a Democracy: Nor yet doth it appear, that a few of the better fort of Fathers of every Tribe governed it by a Council and.Magistrates, or that there was such Council of the several Tribes; but on the contrary,, every Tribe was governed by the Prince or Head of it; and these Princes Moses calls, the Heads of theHouse of their Fathers, in Numb. 7. 2. and who were over V«r. \z. 18. those that were numbered and made their Offerings. And Moses tells us particularly what every Man's Name was; as, Nafhon the Son of Aminadab, of theTribe of Judah; and Nathaniel the Son of Zuar, Prince of Islachar, &c. Now if there . was in those days any Government at all in Israel, then were these Princes the Governors of the several Tribes, and so every Tribe was under a Monarch, tho' the whole State of Israel was not under any one Person, or constant standing Council, and consequently was a System of little Monarchies.

F. I am not at all better satisfied with your last Reply : For in the first place I have Josephns on my side, who must needs know what the Government of his Country had been, better than you or I; and he exprefly calls it anAristocracy, in which the Judge (when there was one) was only in the nature of a General or Stadtholder, to whom the last Appeal was to be made in all Causes : And it is also as plain, that neither Moses, Joshua, nor the Judges, had Monarchical Authority: For tho' it be true, the two first could make War and Peace, yet this was also with the Consent of the Princes of the Congregation, as plainly appears by the Josh. 9. Story of the Peace made with the G'becnites, which the Princes of the Congregation confirm d by an Oath. Neither could they raise Taxesupon the People, or take any 1 Sam. 1.3. thing from them without their Consent; and therefore Samuel appeals to them, how


little he had oppress'd them, Whose Ox or -whose Ass have I taken ? whom have I de* frauded? -whom have Ioppress'd? Neither could they, nor the Judges their Successors, make any new Laws for the People God himself being their King and Legislator: And therefore what you urge as to the Regal Power of Moses and Jojhua, after the Sanhedrim had been constituted, amounts to no more, but that both of them were Heads, or Captains of the People, to lead them out to War, and bring them back again, which is express'd by going in and out before them;and their Obedience to their Military Orders, as also to such things which God hath ex* prefly commanded, is understood by these Words : AU that thou commandest m, we •will do; and whithersoever thou sendest m, we willgo: Yet still this was with respect to their obtaining the Land of Canaan; for otherwise, if either Moses or Jojhuashould have gone about of their own heads to have led them again into Egypt, I suppose you will not say, theIsraelites were bound either to have followed them, or submitted to them ; but rather might have resisted them in such case.

Arid therefore Josephms Speech, which he makes Moses to deliver, is not so ridiculous as you are pleased to make it: For the Laws here mentioned by him, and here set in opposition to Monarchy, were not such Laws as were made by the Geeek Commonwealth, as you suppose, but the Law given from God by his hand ; and these he might well think were sufficient, with such Power as he and Jo/baa enjoyed, without having any recourse to a humane Monarchical Government, since God himself was their King: And as for the Judges that succeeded them, they had much less Power than either Moses or Joshua; since it is apparent by the Story of Deborah and Barak,Judges the 4th, who were the Princes or Generals of the Tribes of Zebulun and Naphtali, that they had no Power to force the People to go out to fight against the Canaanites, whether they would or no. And therefore you will find in the next Chapter, in the Song of Victory which they fung, that many of the Tribes came not into their assistance; therefore it is there said, That for the Divisions of Reuben there were great thoughts of heart; and therefore they ask, Why abidest thou among the Sheepfolds? &c. And presently after it is said, Gilead abodebeyond Jordan: and why did Dan remain in the Ships? Asher continued on the Sea-jhore, and abode in hisBreaches. And so they conclude with, Curse ye Meroz, curse ye bitterly the Inhabitants thereof, because they camenot to the help of the Lord against the miglxy.

\ .So that I am persuaded it was the want of this Power in the Judges of making Laws, of imposing Tributes or Taxes, and of forcing Men to serve in the Wars against their Enemies (which they did before only as Volunteers) that made the Israelites the more desirous to have a King over them, like those of other Nations, • who were endued with these Prerogatives. And therefore the best Commentators do interpret the Prediction of Samuelconcerning the manner of the King that 1 Sara. 8. iij should reign over them, and would take their Sons for hisChariots and his Horsemen, and lt' to be Captains over thousands, &c. to relate to his Royal Power of enrolling,and making them serve in his Army, either as Officers or Soldiers, and the taking of their Fields and their Vineyards, and the Tenth of their Seeds, &c. to give his Officers and Servants; to signify no more than his Power of imposing publiek Tribute, and Impositions on the People, to maintain his Royal Splendor, and the Necessities of the State, as other neighbouring Kings were wont to do; all which they not being used to before, they should cry unto the Lord by reason of them, as a great Oppression: And that Saul, when he came to be King, used this Preroga- % , tive, of forcing the People to come and serve in the War, in a higher manner than Samuel or the Judges had done before, appears by the nth Chapter of this Book, when Nahajh the Ammonite came to make War against Jabejh: Saul took a Yoke of Oxen, and hewed them in pieces, and sent them throughout all the Coasts ofIsrael by the hands of Messengers, faying, Whosoever cometh not forth after Saul, and after Samuel, so shall it bedone unto his Oxen : And the Fear of the Lord fell on the People, and they came out with one Consent.

And it seems evident tome, that the Power, which Samuel had before the Children of Israel' desired a King, was not Monarchical, but mix'd of Aristocracy and Monarchy together, in which Samuel as Judge had a Judicial Authority, and likewise a Supreme Military Power of leading them out to War against the Philistines and other Enemies; and yet notwithstanding, the Supreme Power, in all other things, remained wholly in the principalHeads or Fathers of the Tribes, which whether they were chosen by the People, or enjoyed it by Right of Inheritance* I confess the Scripture is silent; and therefore I am not at all satisfied with your Notion, that the Government of these People, when they had no Judges, consisted of twelve petty Monarchies, under the Heads or Princes of the Tribes; for there is no Authority in Scripture to countenance any such Opinion, the place you bring for it out of the first and seventh of Numbers not at all proving it. For, though I grant there were twelve Princes of the Tribes, whose Names are there set down, and who are called Heads of the Houses of their Fathers, yet is it no where said, that these were endued with Civil Power, or were chief Rulers over the Tribes; for it is apparent all Civil Power remained then in Moses and the Sanhedrim, who under him decided all Controversies : So that it is most natural to suppose, that these Heads of the Tribes were not Civil Magistrates, but the Military Leaders, or Captains of each Tribe, when they went out to War, and are the fame, who, in this Chapter, are called the renowned of the Congregation, &c. and Heads of the Thousands of Israel. 

Nor doth it follow, that because there were such Officers in Moses's Time, that they must continue the fame under the Judges, aftert so many Slaveries and Oppressions that this People had undergone; or that if they did still continue, that their Power was Monarchical; or that they could do any thing without the Consent of the Heads, or Fathers of Families of each Tribe, in whom I suppose the Supreme Authority was in the Intervals of the Judges : And therefore we find in the ninth of Judges, that the Men of Shechem, and all the House os Mi So madeAbimelech King; that is, not over all the Tribes of Israel, but over Eplnaim and half Manasfes only, which is to be understood by Israel in this Chapter; where it is said, ver. 18. by Jotham the Son of Gideon, speaking to the Men of Shechem, 7"hat they had made Abimelech, the Son os a Maid Servant, King over the Men os Shechem,because he is your Brother.

So likewise after Abimelech was dead, the Children of Ammon made War against the Children of Israel, as appears by the tenth of Judges j and they encamped in Gilead, which was a Country on the other side of Jordan,which was inhabited by the Reubenites, the Gadites, and the other half of Manasfes, who by themselves consulted for their own Safety; for it is said in the last Verse of this Chapter, And the People and Princes of Gilead saidone to another, What Man is he that will begin to fight again/I the Children of Ammon? He shall be Head overall the Inhabitants of Gilead. From which Assembly and Consultation it plainly appears, that they looked upon themseves to have a Right of setting a Prince or Head over them, distinct from the rest of the Tribes of Israel: And in the next Chapter you will find, that Jephthah was made Prince, or Judge by the Elders of Gilead. And tho' it is said that Jephthah went with the Elders of Gilead, and that the People made him Head and Captain over them, yet that can't be meant of all Israel, but only of the two Tribes and a half, which inhabited the Land ofGilead; for we find, Chapter the 12th, the Men of Ephraim making War upon Jephthab, because he had not called them out to fight against the Ammonites ; and you will find, verse the 4th, that Jephthah gathered togetherthe Men of Gilead, and fought "with Ephraim, and that the Men of Gilead smote Ephraim. In all which Story it appears, there was none concerned in this War but the Gtleadites only ; that is, those Tribes that inhabited that Region.

I have likewise another Authority for this separate Power of each. Tribe, when there was no common Judge over them ; as may appear from the Story of the Danites in the 18th Chapter, who wanting a Country to dwell inj it is there said the Children of Dan sent five Men of their Family to spy out a Country for them; which thing could not be done without an Assembly of the Chief of the whole Tribe: Neither is there any mention in all this Story of any such Chief, or Prince of the Tribe, as you suppose, only that six hundred Men went by common Consent, who made War, and conquered the City and Country of Laijh, which they called Dan.

But that all the Children of Israel, during the Intervals,of the Judges, did meet in one common Council or Assembly, upon any great Accident or Emergency, appears by the 20th Chapter of this Book of Judges; where, after the Rape and Murder committed upon the Levite's Wise, ic is said in the two first Verses; "then aU theChildren of Israel ivent out, and the Congregation tuu gathered together as one Man, from Dan even toBeerjheba, with the Land of Gilead, unto the Lori in Mizfeh. And the Chief of all the People, even of all theTribes of Israel, presented


themselves in the Assembly of the People of God, four hundred thousand Fatmen that dreHa Sword: Who being thus met, the Levite, the Husband of the Woman that was slain, having told them the Scory, concludes thus jBehold ye are all Children of Israel, give here your Advice and Counsel; and the Result is, AM the People aroseas one Man, faying, We will not a/iy of us go to his Tent, neither will we any of w turn into his House, Sec. Now if this were not as Dcmocratical an Assembly, as you can any where meet with in either the Reman or GreekHistories, I leave it to you your self to judge; though I grant the chief of the People, or Tribes of Israel, might preside in it. To conclude; 1 think I may with very great Reason maintain with Josephs, that the Government of the Tribes of Isael was Aristocratical before their setting a King over them : For had Samuel been endued with an absolute Monarchical Power (as you suppose) it had been a very needless Request of the Children cf Israel, to ask him to make them a King to judge them, as other Nations. •-*•

rM. You have made a very long (I had almost said a tedious) Discourse to prove, that the Government of the Children of Israel was not Monarchical before the Time of Saul: And though I cannot now well remember all the F.P.r.i.jro. Particulars of your Discourse, yet this much I can gather from it, that you are fain to confess, that during the Intervals of the Judges, and when there was no King Judg. zi. id in Israel, but that every Man did thatwhich was right in his own Eyes: Even then the Israelites were under the Kingly Government of the Fathers of particular Families: For in the Consultation after the Benjamitical War, you mentioned, for providing Wives for the Benjamites, we find the Elders of the Congregation bore the only sway: To them also were Complaints to be made, as appears by Verse 22. And though mention be made of all the Children of Israel, all the Congregation,ar,d all the People; yet by the Term of all, the Scripture means only all the Fathers, and not all the whole Multitude, as the Text plainly expounds it self, in the second of Chronicles, where Solomon speaks unto all Israel,viz,.xo Ver. 1. 2. the Captains, the Judges, and to every Governor, the Chief of the Fathers: So 1 x»»?.8.ii* the Elders of Israel are expounded to be the Chief of the Fathers of the Chil- z Chron* j. it dren of Israel.

But I am less edified with your Notion, in making any of the Tribes to have set a Judge, or Captain over themselves distinct from the rest of the Tribes of Israel. For the Example you quote of Abimelech makes directly against you ; it being said, Verse 2 2d of that Chapter, that Abimelech reigned thee Tears ever Israel; and in the next Chapter it is said, there arose to derend Israel, Tola the Son of Puah ; and that he judged Israel, that is, all the twelve Tribes, twenty Years : And if Gideon, the Father of Abimelech, was Judge over all Israel, as it appears by the Story he was, it will likewise follow, that Abimelech his Son succeeded (though by Force and Murder) into the same Power. It is likewise as plain, (notwithstanding what you have said to the contrary) that the Elders ofGilead did not alone make fefbthab their Head or Captain. For though I grant fephthah tells them, that if lie fought, and delivered them from the Children of Amman, that he would be their Head; yet it is plain by the nth Verse of that Chapter, that jfephthah uent with the Elders of Gilead, and it was the Pecple (viz,, of all Israel)made him Head and Captain over them; and it appears, that Jephtbab uttered all these Words bejore the Lord inMizpeh; where it appears by the r 7th Verse of tue former Chapter, the Children of Israel were then assembled and in* camped.

Nor am I yet satisfied, but that though God, out cf a special Love ard Care

to the House Israel, did chuse to be their King himself, yet did he govern them

at that time by his Vice-Roy Samuel, and his Sons: And therefore God telis

Samuel, They have not rejected thee, but me, that I should mt reign over them. It seems

they did not like a King by Deputation, but desired one by Succession, like all

the Nations. All Nations belike had Kings then, and those by Inheritance, not

by Eleilicn; for we don't find the Israelites prayed that they themselves might

chuse their own King: They dreamt of no such Liberty, and yet they were the

Eiders of Israel gathered together. Ir other Nations had elected their own Kings,

tio doubt but they would have been as desirous to have imitated other Nations,

as well in the electing, as in the having a King: And therefore I am sure there

is nothing to be found in Scripture that countenances your Notion of the Peoples

having a > igfo to eletl their own King. But this onlv by the by.

L ...


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F.P.c-1. f."J- But to prosecute the Matter in hand: When God gave the Israelites Kings,. Jie re-establifh'd the ancient, and prime Right of Lineal Succession to Paternal Cipr vernment. And whensoever he made choice of any special Person to be King,-he intended that the Issue also should have benefit thereof, as being comprehended sufficiently in the Person of the Father, although the Father only was named in the Grant. Which Lineal Right of Succession continued in the Family/of David until such time as his Successors, by their Idolatry,, so far provoked-.God's Anger as to -deliver them up to the King of Babylon, under whose, and bis Successors.Power, they, and their; Posterity^ continued Subjects for many Age^ ux F. I wall not dispute any farther wish,you (since I fee 'tis to no .purpose) concerning the Government of the Israelites, whether it- was Monarchical or Acistor cratical before the Reign of Saul j nor yet shall I positively assert, that Abimekchor Jephthah, and other os the Judges, were Rulers of some .particular Tribes Vd. J:h/tn. onjy_ yet very learned Men are of this Opinion, since they can "find no o^her ChZ^Can. way> but by a Synchronism in the Times of the Judges, as also of the Years of 5fffii.*.29*i, Rest, and Servitudej as may appear from Judges io. -ver, 6, 8. compared with *5»2,£f 293. Judges13. 1. to-reconcile that great Difference that will be found in the sacred Chronology, from the Time of the Children of Israel's coming out of Egypt, tp the fourth Year of Solomon, in which the Temple was begun to be built, whiefr doth amount to four hundred and eighty Years; whereas, if you. please to take j Kings 6.1. the pains to cast up the Years from the Children of Israel's coming out of Egypt, to the beginning of Sauts Reign, according to the common Account of the Years of the Judges, reckoned with the Reigns of Saul, and David, to that time, &<;. it will amount to 600 Years, which is more by 120 Years than all the time from the said Epochato the fourth Year of Solomon taken altogether. .. ';.j /

But as for the several Tribes asone, consul ting and ordering their, own Affairs, it is so plain, from the Examples of the People, and Princes of Gilead, as also from that of the Danites, that you have nothing to object against it. And so likewise in the Instance of all the Children of Israel meeting and consulting what i to do with the Benjamites; where, since you cannot deny the Matter of Fact, you

have no way to evade it, but by supposing I know not what Kingly Authority in the Fathers of particular Families, whom you do suppose to have then bore the only sway; because it is said, in that Chapter you quoted, that in the Consultation after this War, the Elders of the Congregation proposed it to .them, laying, How JbaS wedo for Wives for them that remain, -feeing the Women are destroyed out of Benjamin ? And then follows the Result of the. Congregation in the next Verse; And they said (viz>. all the Congregation agreed) that there mustbe an Inheritance for them that be escaped out of Benjamin, &c. all which amounts to no more than what I granted at first, that the Heads, or Elders of the Tribes presided in this Assembly, and put the Question to them: Which is so necessary in all.great Assemblies, that without such Officers they cannot- come to any Resolution; and therefore you ftould do well to prove the Monarchical Power of these Elders by some better Authority than this Text.

But if the Judges had Monarchical Power, as you suppose, notwithstanding all you have said against the Peoples electing them, it plainly , appears, by the Examples of Abimelech and Jephthah, that the People did often elect a Judge, or Captain over them, without any Nomination by, or Inspiration from God.

But to return to that which is most material: Your supposed Restauration of Patriarchal Government underMoses and Jos ma, after the Israelites returned from the Egyptian Bondage, I cannot but here by the way take notice, that the Truth will sometimes flip from you before you are aware: For if it be true what you. at first asserted, at our last Meeting, 'that a Servant, or Slave, and a Subject, were all one at the fir ft; and alfa that allMonarchs are endued with Fatherly Power; then if Pharaoh was a Monarch, the Children of Israel were not, according to your Principle, brought into Bondage by Pharaoh, but they were only adopted into another FatherlyPower. But you should have done well to have shewn more clearly than you have hitherto done, that thisPatriarchal Jurisdiction was exercised by Abraham, Isaac or Jacob before the Descent into Egypt, since all the Instances you have yet given of such a Power, have proved very unlucky. For though I read' in Ms 7. 9. St.Stephen's Speech in the Ails, that the Patriarchs moved with Envy fold Joseph into Egypt; yet is it no where mentioned, (nor I believe , will you your self affirm)

that that these Patriarchs ever had a Monarchical Power. For 3tiU jtaccÆ Went into Egypt, that Power was solely in him, according to your Principles; and after that iri Pharaoh as King of Egypt: So that though I can find the Word Patriarch (but once) in Scripture, yet I can fee no ground for your Patriarchal Authority, of Jurisdiction;and therefore that could suffer no Intermission, which never had any beginning in Nature.

But after this you tell me, that God chose Moses, and Joshua successively to govern as Princes, in the place of those Supreme Fathers, or Patriarchs; Which is easily, I confess, affirmed, only it wants Proof: For though you endeavour td to prove that all Paternal Power was Regal, yet it still remains unproved that all Regal Power is Paternal. It is true, that God did appoint Moses and Jbfiua to be the Rulers of his People under him; but that doth not at all make oat that they succeeded in the stead of Supreme Fathers, much less that they succeeded as Heirs, or Successors, to the Patriarchal Po-xer of Adam. For Moses and Joshua being chosen by God to be Rulers of his People, will no more prove, that Go- 1-T.G.f.iou vernment belonged to Adams Heir, as to his Fatherhood, than God's chusing Aaron, of the Tribe cf Lev/, to be Priest, will prove that the Priesthood belonged to Adam's Heir, or the prime Fathers, since God could chuse Aaron to be Priest, and Moses Ruler over Israel, though neither of those Offices were ever settled on Adam's Heir> or the first Patriarchs. So likewise for what yon say concerning God's railing up the Judges to defend his People, proves Fatherly Authotity to be the Original of Government just after the fame rate'; and cannot God raise up such Men, unless Paternal Power give a Title to their Government?

-But to come to your darling Instance, the giving of the Israelites Kings, where-* by you suppose God re-establish'd the antient prime Right of Lineal Succession to. Paternal Government. This I can by no means understand; for if by Lineal Succession, you mean to Adam, I desire to know how you will make it out, that either Saul, or David could be Heirs of Adam's Power? or how the Power that those Kings were endued with by God, was the fame Power which Abraham, Isaac, and Jacob enjoyed before. For if you please to consider it, your Hypothesis consiits of two Propositions : The first is, that all Paternal Power is the fame with Regal Power ;which if it be proved not to- be true, the other convertible Proposition, viz* that all Regal Power is Paternal, will likewise be as false. Nor is what you said last of all any truer than the rest, that whensoevet God made choice of any Person to be King, he intended that the Issue (I suppose you mean his Issue) stiould have the benefit thereof: For either Moses, and Jojhua, and the Judges, were no Kings, (though you have aslerted the former to be so) or else they had not the benefit of this Grant- But certainly Saul was a King, and yet his Issue never succeeded. But you speak very warily to suppose this Grant to be made to the Issue in general, without specifying in particular who should enjoy it; because I suppose you are sensible, that Solomon, whom God exprefly appointed to beDavid's Successor j and Jehoahaz., whom the People of the Land ±Cl*w.i6.u made King in the room of Jojiah,were neither of them eldest Sons of the Kings their Fathers. To conclude, I desire you would shew me what Relation*or Title all Kings, or Princes now a-days have, or can claim as Heirs to Adam, or Ncah; or how that Power with which God endued those Fathers of Mankind, is the fame which you fay all Princes, or Monarchs, may now claim to be given them by God: For, I confess, I can see no Relation at all between them.

As. It may indeed seem absurd to maintain, that Kings now are the Fathers of their People, since Experience shews the contrary. It is true, all Kings are not F. P« $ 8« the natural Parents of their Subjects, yet they all either are, or are to be reputed ® the next Heirs to those first Progenitors, who were at first the natural Parents of the whole People, and in their Right succeed to the Exercise os Supreme Jurisdiction; and such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers. And tho' I have all along supposed, that Paternal Government was at first Monarchical, yet I must likewise grant, that when the World was replenished with People, that this Paternal Government by Succession ceased^ and a new kind of it started up either F.V.O.p.61by Election, Conquest, or Usurpation; yet this was still Paternal Power,which can never be lost, or cease, though it may be transferred, or usurped; or it may be ordained anew in a Person who otherwise had no Right to it before. Thus ...: I <; .'v-'L:« God,

God, who is the giver of all Power, may transfer it from the Father to the Son, as he gave Saul a Fatherly Power over his Father Kijb.

So that all Power on Earth is either derived or usurped from the Fatherly Power, there being no Original to be found of any other Power whatsoever; for if there should be granted two forts of Power without any Subordination of one to the other, they would be in perpetual strife which should be Supreme, for two Supremes cannot agree; if the Fatherly Power be Supreme, then the Power of the People must be Subordinate, and depend on it; if the Power of the People be Supreme, then the Fatherly Power must submit to it, 'and cannot be exercised without the Licence of the People, which must quite destroy the frame and course of Nature. '..

F. If this be all you have to fay for the Proof of so weighty an Hypothesis, I confess I wonder how you, or any rational Man can lay so great stress upon it: For though' I should grant you, that some Fathers of Families at first became,- by the tacit or express Consent of their Children and ,Descendants> to be Kings ot Princes over them; doth it therefore follow, that all Kings govern by Right of Fatherhood at this Day.

'Tis true you tell me, that all Kings, though they are mt now the natural Fathers of their People, yet are fiill to beesteemed a& such by them, as succeeding either as Heirjt or Successors to those that -were so. I grant indeed, if any Kings now adays could prove themselves right Heirs to Adam or Noah, this were somewhat to the pur? pose; but to talk of a Paternal Power, proceeding from Election, Conquest, oc Usurpation, is perfect Jargon to me; for pray tell me, can a Man become, ba-t dued with Paternal Power over me, by my Electing him to be my King? Or can a Man, by Conquest or Usurpation, oblige me to yield him a Filial Duty, and Obedience? For if this were so, if a Father of a separate Family (such as Abr&* ham was) should be conquered by the Head of another separate Family, nay: though he were a Thief or a Robber, if once the true Father were killed or destroyed, all the Children and Descendants of the Family must pay the fame Duty and Obedience to this unjust Conqueror or Robbeir, as to their true Father t And the fame may be said in Usurpations, in cafe after the Death of such a Father of a Family, a younger Brother or Nephew sliould get Possession of the House and Estate, and force all his Brethren and Kinsmen to submit to him, they must then all own him to be endued by God*with the same Paternal Power, which their Father or Grand-father had; and consequently must Honour and Obey him as their true Father: Both which Examples, being contrary to the common Sense and Reason of Mankind, may shew you, how absurd this Hypothesis is; whereas indeed, Fatherhood being a Relatson of Blood, the Duty and Respect we owe to our Father, proceeding from that Piety and Gratitude we owe him, both for our Generation and Education, how can this Relation, or these Obligations be ever transferred to, or usurped by another; so that any othec Man can become my Father, or I owe him the like Filial Duty, and Respect, as to him that begot me and brought me up? -. • - . i..

And though I grant that God may confer a Regal Power on whom he pleases, either by his express Will, or the ordinary coi/rse of his Providence; yet when such a Person, who was not a King before, doth become so, I utterly deny that the Power he hath then conferred upon him, is a Paternal Power in relation to his Suct/ects; which is evident from your own Instance of Saul's becoming a King over his Father Kijb. For though you fay, that Godthen conferred a Fatherly Power on Saul over his own Father, this is a great mistake: For then Saul would have been immediately discharged from all the Duties of Piety and Gratitude, which he owed his Father; and they were all transferred from Kijh to Saul; so that after he became King, he might have treated his Father with no more Respect or Deference, than any other Subject; which is contrary to God's Commandment, that bids all MenHonour their Father and Mother. And 1 know not how Kings can be excepted out of this Precept. So that your mistake arises from this preposterous confounding of Paternal Authority with Regal Power: And because Adam,Noah, or any other Father of a separate Family, may be a Prince over it in the State of Nature, that therefore every Monarch in the World is also endued with this Paternal Power: Which that they are distinct, may farther appear from your own supposed Monarchical Power of Adam, who though granting him to have been a Prince over his Posterity, yet did not this discharge any of . his Descendants from their Duty and Obedience to their own Father: And though I confess you talked at our last Meeting of a Fatherly Power to be exercised in subordination to the Supreme Fatherly Power of Adam; yet this is a meer Chimera: For Filial Honour and Obedience, being due by the Commandment only to a Man's own natural Father, can never be due to two different Persons at once, since they jnay command contradictory Things; and then the Commandment of Honour (that is, obey) thy Father,cannot be observed in respect of both of them; and therefore granting Adam, or Noah, to have exercised aMonarchical Power over their Children and Descendants, it could not be as they were Fathers or Grand-fathers, when their Sons or Grand-children were separated from them, and were Heads of Families of their own, for the Reasons already given; so that if they were Princes in their own Families, whilst their Sons or Grand-children continued part of them, it was only as Heads or Masters of their own Families, but not by any such Patriarchal orPaternal Authority as you suppose. But as for the Conclusion of your Discourse, it being all built upon this false Foundation, that all Power on Earth is derived or usurped from the Fatherly Powers I need say no more to it: For if that be false, all that you argue from thence, concerning the subordination of all other Powers to this, will signify nothing.

M. I think I can yet make out my Hypothesis, notwithstanding all you have said -against it: For though I grant the Paternal Relation itself can never be usurped bf transferred} yet you may remember, I at first affirmed, thatAdam was F. P. not only a Father, but a King and Lord over his Family, and a Son, a Subject, a Servant, or a Slave, were one and the fame thing at first; and the Father had Power to dispose of; sell, or alien his Children to any other; whence we find the Sale, and Gift of Children to have been much in use in the beginning of the WofFe},° when Men had their Servants for a Possession 'and an Inheritance, as well as othe? -Goods; whereupon we find the Power of Castrating or making Eunuchs much .in use in old Times. And as the Power of the Father may be lawfully transferred, or aliened; so it may be unjustly usurped. And though I confess no Father, or Master of a Family, ought to use his Children thus cruelly and severely, and that he sins mortally if he doth so; yet neither they, nor any Power under Heaven can call such an Independent Father or Monarch to an account, or punish him for so doing.

F. I am glad at last we*are come to an Issue of this doughty Controversy. And though I forced you at our last Meeting to confess, that Fatherly Powet was not despotical, nor that Fathers upon any account whatsoever were absolute Lords over their Children, and all their Descendants, in the State of Nature; yet now I see, to preserve your first Hypothesis, you are sain to recur to this Despotical Power of Fathers in the State of Nature: Because without supposing it, and that it may be transferred or usurped, Princes at this Day (whom without any Cause you suppose to be endued with this Paternal, Despotick Power) could never claim any Title to their Subjects Allegiance. And then much good may do you with your, and Sir R- F's. excellent discovery: For if, as you yourself acknowledge, Princes are no longer related in Blood to their Subjects, any nearer than as we all proceed from Adam our common Ancestor, that Relation being now so remote, signifies little or nothing, so that the true Paternal Authority being lost (as you confess) the Despotick Power of a Lord over his Servants, or his Slaves, only remains: Since therefore you make no difference in Nature between Subjects and Slaves, then all Subjects lie at the Mercy of their Kings, to be treated in all things like Slaves, whenever they please; and they may exercise an absolute Despotick Power over their Lives and Estates, as they think fit: So that I can see nothing that can hinder them from selling their Subjects, or castrating them, as the King of Mingrelia doth his Subjects at this Day; and as the Great Turk and Persian Monarchs do use those Christian Children, whdm they take away from their Parents to make Eunuchs for their Seraglio's; and then I think you have brought Mankind to a very fine pass, to be all created for the Will and Lust of so many single Men, which if it ever could be the Ordinance of God, I leave to yourself to judgeAs. I was prepared for this Objection before, arid therefore I think it will make nothing against this absolute Power, with which I suppose God to have endued Adam, and all other Monarchs at the first: So that I am so fas from thinking that this Doctrine will teach Princes Cruelty towards their Subjects, that on the B.C.P. $.3.

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contrary, nothing can better inculcate their Duty towards them: For as God is the Author of a Paternal Monarchy;so he is the Author of no other. He introduced all but the first Man into the World, under the Subjection of aSupreme Father, and by so doing, hath shewn, that he never intended there should be any other Power in the World, and whatever Authority shall be extended beyond this, is accountable to him alone; so that Princes are bound to treat their Subjects, as their Children, with Mercy and Lenity, as far as they are capable of it, and not as their Brutes. And granting that Subjects and Servants, or Slaves, were at first all one, yet t think even they ought to be treated only as younger Children, yet as Children still: Nay even conquered People, that are in some Countries treated as Slaves, and but'a little better than Brutes, have certainly a very good Appeal to the Tribunal of God against their Princes, who will undoubtedly right them in another Worldj if they suffer patiently in this. If it be the Character of a good Man, that he is Merciful to his Beast, I doubt not but the very Brutes have a Right to be governed with Mercy and Justice, and that God who is their Creator, as well as purs, will punish cruel Men if they tyrannize over them; and much more if any Man shall exercise Cruelty on another Man, who is of the fame, not only Nature, but Blood.

Whereas all other Hypotheses leave the Prince at Liberty to make his Bargain with his Subjects as well as he can;and if they be brought by Force, or Fraud, to an entire Submission at Discretion, they may then be treated accordingly, and must stand to their Compact, be the Terms never so unequal, and then the Cafe of a Man, and a Brute, may differ very little; and if the Subject may resist, the Prince may take care to prevent it, and the War may be just on both sides, which is impossible.

I could likewise shew you many other Benefits that would accrue both to Princes, and Subjects, were thisHypothesis but once generally taught, and believed by both of them.

F. I pray, Sir, spare the giving yourself that trouble, for I will not dispute how honestly this Hypothesis may be designed, or what mighty Feats it might do, were it once universally received. But this neither you, nor I, can ever expect will come to pass, because neither Princes, nor People, will ever believe it to be true: For in the first place, the People will never be convinced of it, it being above a vulgar Understanding, that their Princes, wfcom they are very well assured are not their Fathers, nor yet right Heirs to Adam or Noah, should notwithstanding lay claim to a Paternal Authority over them. In the next place, Princes can never believe that they are Fathers of their People, for the fame Reason: I grant indeed, that they may be very willing to believe one half of yourHypothesisy that they are absolute Lords and Masters over them, and so would be willing upon that account to use their Subjects like Slaves; but that they should look upon themselves as Fathers of their People, and the Heirs or Assigns of Adam or Noah, I think no Prince in Christendom can be so vain to believe. So that whatever PowerAdam or Noah, or any other Father, might been intrusted with by God, because of that natural Affection which they were supposed to bear toward their Children; yet sure Princes at this Day can lay no claim to it, since none but true Fathers can be endued with this Paternal AffeElion.

And whereas you suppose, that Princes ought to treat their Subjects, nay even those that are conquered, like Children, and not like Slaves, or Brutes; this can have very little effect upon them, who can as little believe it, as the People. For if Monarchical Power is not Paternal (as I think I have clearly made out) then there can lie no Obligation upon Monarchs to treat their Subjects like Children: And therefore, since the Despotical or MasterlyPower only remains, which is; ordained principally for the good and benefit of the Master, and not of the Ser-. vant or Slave; who can blame Princes, if they exact the utmost of their due Prerogatives, and so treat their Subjects like Slaves, whenever it serves their Humour or Interest so to do? Nor are they any more to be blamed for thus exert-, ing their Power, than a Master pf Negroes in the West-Indies is, for making the best of the Service of those Slaves, whom he hath bought with his Money, or . are born in his House: Whom though I grant he is not to use like Brute Beasts, for the Reasons you have given; yet doth it not therefore follow, that he is obliged to use them like his younger Children; for then sure he could not have a Right to keep them for Slaves as long as they lived, and to let them enjoy no


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thing hut a bare miserable .Subsistence. And there is very good reason for this, for almost every Planter inBarladoes knows very well the difference between the Relations of a Father, a Master, and a Prince, and that the one is not the other; and it is from your jumbling together these three different Relations, of ^iS^^V'Slave, anf! aSubject, that hath led you into all these mistakes. For though x\ should be granted, that the Right of a Master over his Slaves may be acquired by Conquest, ox assigned to, or usurped by another; yet certainly, the 'Authority';or .Relation of a Father, and the Despotical or Civil Power of ..a Monarch, can never be acquired by Conquest, nor yet usurped, without the consent aud submission of the Children and Subjects. . , H .- - ... ,/„ . .

And therefore to conclude, I do not think your Pfypothesis one jot the better, by your founding,.-ft upon anImaginary Paternal Power, rather than upon Compafi, , which I am sere can never be made upon so unequal Terms, as to render the Case ,of a^«w;and a Brute very little different; since it. would be to no-purpose for y subject to, mike a Bargain with their Monarch, <

anypabject to, mike a Bargain with their Monarch, or Conqueror,; andyet,,tp leav&. themselves .in as bad, or worse condition, than they were in the State of / NatureYSo that however convenient your Hypothesis may be, either for Prince, or People, it signifies no more than the Popish Hypothesis of the Infallibility of the Pope, and aGeneral Council, which because they suppose neceslary, and is indeed very beneficial for their Church j therefore God had conferred it upon them: But how^false a way of Reasoning this is, hath been sufficiently demonstrated. The Application of this Comparison is so obvious, that. SI leave it to, you to make, M. I cannot but think, for all you have yet said, that God hath .endued all Princes with a Paternal Authority, and for this, I have the Church ofEngland F p on my side, which in its Catechism, in the Explanation of the Duties contain- Ko.g.^54, ed in the fifth Commandment, Honour thy father, &c. doth comprehend under that Mead, not only to Honour and Succourour Fathers and Mothers, hut also to Honour, and Obey the King, and all them that are put in Authority under.him; as if all Power were originally in the Father: So that this Command gives him the Right 'to govern, and makes the Form of Government Monarchical. And if Obedience to Parents be immediately due by a natural Law; and Subjection to Princes, but by the Mediation of an Humane Ordinance, what reason is there, that the Laws of Nature fliould give place to the Laws of Men? As we fee the Power of the Father over his Child gives place, and is subordinate to the Power of the Magistrate. And that this is not the Doctrine of Christianity alone, but was also believed by the best Moralists amongst the Heathens, may appear by this remarkable Passage out of Seneca dedementia, which is so put to this purpose, that I took the pains to translate it into English in my Com- . mon-place-Book: Some of which I will now read to you. What is the Du- *•c- *4* ty of a Prince .<* 'That of kindParents, who aje to chide fheir Children sometimes sweetly, and at other times with more .jbarpnefs, andsometimes correEi them with blows. And after having shewn, that a good Father will not proceed to disinherit hisSon, or inflifl any more severe Puaijhmeuti upon him, till he U post all hopes of Amendment; he proceeds thus:No Parent proceeds to Extirpation, till he hath in vain spent all other Remedies. "That which becomes a Parent,becomes a Prince, who is filled without flattery the Father of his Country; in all our other 'Titles, we consult their(i.e. the Emperors) Honour. We have called them the Great, the Happy, the August, and heaped upon ambit misMajesty all the Titles we could invent, in giving these to them: But we have filled him the Father of his Country,that the Prince might consider the Power of a Father was given him: Which U the most temperate of all Powers,consulting the Welfare of the Children, and preferring, their good bef ore its own.

And as for your Objection, why Princes cannot be loved and reverenced, as if they were our Fathers, because not being our Fathers indeed, they may possibly want that Natural and Fatherly Affection to their Subjects, and consequently may tyrannize over them; I think this is easily answered: For,

First, God, who is, and ever was the true Disposer of Kingdoms, hath in his Hands the Hearts of all Princes, and endows them with such Afiections.as he thinks fit, not only towards the People in general, but towards each particular Person: And therefore, as he was the Author of all Government, and is still the Preserver of it; so no inconvenience can happen, but he is able to redress




Secondly, That there was as great, or rather greater Inconveniencies, which sprung at first from the too great Lenity of these natural Princes, for want of Power or Will to punish the disorders of their Subject Children, as have ever sprung since from the Tyranny and Cruelty of the worst Princes: And I believe, to this was owing that excessive Wickedness, which forced as it were God Almighty to put an end to the first World, by that time it had stood about 1600 Years. And we fee afterwards Eli and Samuel, good Men, and severe Judges towards others, were yet too indulgent to their own Children; which shews the weakness of your Reasons, and the greatness of the Wisdom of God, in making all Government to spring from Paternal Power, which is the mildest of all Powers, and to descend by degrees to Hereditary Monarchies, which are the Divinest, the most 1 Natural, and the best of all Governments, and in which the People have^ the least Hand.

F. I fee plainly, that you think the Laws of Nature or Reason are not on your side, and therefore you are forced to recur not to the express Words of Scripture, but to the Paraphrase or Explanation of them in our Church Catechism, which certainly 'never was intended to have that consequence drawn from ir, which you have made; for though you are pleased to omit one pare of the Commandment with an &c. yet the Words are, as you yourself must acknowledge, Honour thy Father, and thy Mother; and if from Honour thy Father, you will gather that all Power was Originally in the Father, it will follow by the fame Argument, that it must have been as Originally in the Mother too: Father, and Mother, or Parents, being mentioned together, in all Precepts in the Old and New Testament, where Honour or Obedience is enjoined on Children: And if these Words, Honour thy Father, must give a right to Government, and make the Form also Monarchical; and if by these Words must be meant Obedience to the Political Pow,tr of the Supreme Magistrate, it concerns not any Duty we owe to our natural Fathers, who are Subjects; because they, by your Dcctrine, are divested of all that Power, it being placed wholly in the Prince, and so being equally Subjects, and Slaves with their Children, can have no Right by that Title to any such' Honour or Obedience, as contains in it Civil Subjection. But if Honour thy Father, and thy Mother,signifies the Duty we owe our natural Parents, (as by our Saviour's Interpretation, Matthew 1 j. 4. and in all the other places'tis plain it doth) then it cannot concern Political Obedience, but a Duty that is owing to Persons who have no Title to Sovereignty, nor any Political Authority, as Monarchs over Subjects. For Obedience to a private Father, and that Civil Obedience which is due to a Monarch, are quite different, and many times contradictory, and inconsistent with each other. And therefore, this Command, which necessarily comprehends the Persons of our natural Fathers and Mothers, must mean a Duty we owe them distinct from our Obedience to the Magistrate, and from which the most absolute Power of Princes cannot absolve us. And to make this yet plainer, suppose upon your Hypothesis, that Seth, as eldest Son of Adam, was Heir of all his Patriarchal Powe)-, how could all his Brethren and Sifters Honour, that is, Obey Eve their Mother, supposing Seth, and her, to have commanded them things contradictory at the fame time?

So, that though I grant the Compilers of our Church Catechism did intend in this Explanation to comprehend all the great Daties towards our Governors; yet it is plain, they never dreamed of this far-fetched Inference, that you have drawn from their Explanation of it; for though under this Command of Honour thy Father, and thyMotlxr, they do indeed comprehend Obedience and Honour, w be due to the King.C^c. this no more proves that they believed all Kingly Power to be. Paternal, than that because they likewise there infer from this Command, a Submission to be due to all Governor i,Teacbers, Spiritual Pastors, and Masterj^that therefore all these Parties here named do likewise derive their Authority from Adam's Fatherhood; or that because under the Command against bearing False Witness, we are taught to refrain our Tongues from Evil Speaking, Lying, and Slandering,that therefore all Lies, and Evil Speaking whatsoever, is downright bearit g False Witness against our Neighbour; since nothing is more certain, than that a Man ir^ay commit either of the former, wirhout being guilty of the latter. And to answer your Query, if Obedience to Parents be immediately due by a Natural Law, and Subjei~lionto Princes but by a Humane Ordinance, what reason is there

that that the Laws of Nature should give place to those of Men? I can easily reply, that the Power of a Father over his Child gives place and is subordinate to the. Supreme Powers, because they are both ordained so by God in theLaw of Nature; it being highly reasonable, that.the good of a private Family should give place to the common good of the Commonwealth, which is a sufficient reason, and extends to all Nations, which -never so much as heard of the Ten Com-' mandments. . . •: .'> .. ■• . ...'

But to come to your Quotation out of Seneca, I think this hath a great deal less weight in it, than your Argument from the Fifth Commandment: For though this Philosopher writ to the Emperor, to persuade him to Clemency; yet this I am sure of, that he nevefcgdreamt of this Notion of Adam's Sovereignty, or believed that every Prince was endued with Paternal Authority, because amongst other Titles he was stiled Pater Patria. And therefore what this Author here fays, is to be looked upon only as a Rhetorical Flourish, or, at the most, to be understood but in a Metaphorical fense; the Arguments of this Author not being to be always taken strictly as aLogician, but only as an Oratory who was to make use of all Appearances of Reason to persuade a young Prince to Mercy and Clemency; and yet all this wa's not sufficient, as Seneca himself found; before he died, by woful Experience. And Seneca very well knew, that lul/y was stiled Pater Patria by the- Senate, though he was never endued with your Imperial or Paternal Authority. >'\. v.'

But to reply a little to your Answer against my last Argument, that Princes not being our Natural Fathers, must often want that Natural and Fatherly Affection towards their Subjects, and therefore may tyrannize over them; I think the first part of your Reply will make nothing in confutation of what I have said: For though I will not deny but God, who hath the Hearts of Princes in his Hands, may sometimes endue them with such Affections as he thinks fit, not only towards the People in general, but towards each particular Person; yet this may be as well evil as good Affections: As God is said in jfudg.9. to have sent an evil Spirit between Abimelech, (one of your usurping Monarchs) and the Men of Shechem, his Subjects: And therefore God may as well fend the one for the punishment, as the other for the benefit of a Nation i And that God is more likely to incline the Hearts t>f Princes to such evil, than good Affections towards their Subjects, may appear,from Mankind's more often deserving God's Anger, for their evil Deeds, .than Favours for their good ones.

And I desire you would shew me in how many Absolute Monarchies now in the World, God Almighty is pleased to declare this wonderful Operation of these Fatheily .AffeElims towards their People. I pray deal ingenuousiy, and tell me, is it to be found in our European Monarchies, where most Princes do not only miserably-, harrass and oppress their Subjects, by intolerable Taxes, and standing Armies, till they reduce themito the lowest condition of Beggary:and Desperation; and where, for the least differences in Religion, they take away their Subjects Lives by that , cruel Tribunal.'of the Inquisition, without any fair or legal Trial; or .else, where, .notwithstanding all Edicts, Oaths, and Vows to the contrary, they seize lupon^ and spoil their Subjects of their Estates, and imprison and torment their Persons by those booted Apostles the Dragoons; because Faith is not to be kept with Hereticks; or else* in another. Country, where the Prince took upon him a Prerogative to dispense with all Laws at his pleasure, and to imprison, and turn Men out of their. Freeholds, contrary to the known Laws of the Kingdom? Or, to conclude, must we look for these Divine Operations amongst the Eastern, Monarchr, where they treat their Subjects like Slaves, and allow them no Property either, in Lands, or Goods, farther than they think fit, and to have their Persons and Lives wholly at their Mercy, to be castrated, made Slaves of, or killed, as often as it shall please their Humour orPaffion? And I doubt, if you will but read Antsent as well as Modern Histories, and alfb survey, the State of Mankind in all the Absolute Monarchies between France said Japan; you will find more frequently Examples of the evil, than good Affections of these your Artificial Fathers towards their Adopted Children. . '.•  ■']r.i,.

M. I cannot deny, but you .have given a very Tragical Account of the "Tyranny and Oppressions under diversAbsolute Monarchies now in the World; yet this is not the fault of, the Government, but of the evil Principles, bad Education, or Tempers of those Monarchs; as also, oftentimes from the unquiet and rebel

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B.C.P. § 3. Uous Disposition of their Subjects, from the distrusting of which, they place all their Security in standing Armies, and Guards; so that I must grant, that all those Governments that are maintained by Armies too strong for the Subjects in general, are uneasy, and degenerate into Despttick Monarchies, and are unsafe both to the Prince and People. And to let you see, that it is not my intention to P. P. i 6. maintain or defend Oppression or Tyranny, I must freely assert, with Sir R. F. (whose Principles I here take upon me to maintain) that all Princes are bound to treat their Subjects as their Children, and that it is contrary to the Nature of Mankind, to make their Offspring Slaves; and that all Kings, (nay Conquerors too) are bound to preserve the Lands, Goods, Liberties, and Lives of all their Subjects, not by any Municipal Law, but by the Natural Law of a Father, which binds them to ratify the Acts of their Forefathers and Predecessors in things necessary for the publick good of their Subjects: But yet you have not.done fairly, not to take notice of the great Oppressions that are exercised in some Commonwealths likewise towards their Subjects, which if you would please to consider, and weigh the fewness of these against the great number of Monarchies now in the World, I believe you will have good cause to confess, that there are many more good Monarchs, than equal Commonwealths. And I do believe there was as much Tyranny exercised in these three Kingdoms during our Civil Wars, and afterwards under the Government of the Rump and Cromwell, till the Return of the late King Charles, as in all the AbsoluteMonarchies between France and China, or from the North to the South Pole. And it is very remarkable, that when Oliver Cromwell set up the most Absolute and Tyrannical Government that ever was in this Ifland, there was yet no noise of any Fears or Jealousies of it in all his Times.

F. I am very well pleased to find you so heartily agree with me, in condemning of Tyranny and Oppreflion inall sm ts of Governments whatever. And I do assure you, I do as little approve of it, if it be any where exercised in Commonwealths, as you can do in Monarchies: Only I must needs tell you, I am not at all of your Opinion, that the Oppressions or Abuses, committed by the Magistrates in Commonwealths, are to be compared with the Tyrannies, and Cruelties exercised by Absolute Monarchs, and their Subordinate Ministers. For though I grant they often lay very severe Taxes and Impositions upon their Subjects, especially such as they have acquired by Conquest, and so act like Absolute Monarchs over them, yet arc these Oppressions not at all to be compared to those under Arbitrary Monarchies; for though perhaps divers Commonwealths may impose greater Taxes upon their Subjects than some Neighbouring Monarchs; yet doth it not follow, that their Government is more severe for all that; since the People having an opportunity by free Trade, and Liberty of Conscience in suchCommonwealths, to acquire a greater share of Riches, are also thereby enabled to contribute more to the maintainance of the Government, by which they reap so great Benefits. Thus we see a Citizen of Amsterdam isable to pay six times the Taxes of one of Antwerp': And therefore I dare, for all that, appeal to any common Subject (though a Papist) of the United Provinces^ whether he had not rather live under the States of Holland,than under the French King j or to any Subject of the Commonwealths of Venice, Genoa, or Lucca, whether he doth not prefer his Condition, as bad as it is, to that of any of the Subjects of the Pope, Duke of Florence, or any other Italian Prince; not to go over into T'wkey, and those other Eastern Monarchies, where the Yoke of Slavery lies yet more heavy upon the Subjects than in Europe.

And as for what you fay, in the comparing of those Illegal Arbitrary Proceedings^ that were exercised inEngland, during the late Civil Wars, and afterwards, till the King's Coming in, I must beg your pardon, if (besides the great Hyperbole in your Expressions on that occasion, which I am sure are very far from Truth) I impute those Miscarriages, not as the fault of this or that sort of Government, but rather to a powerful FaBion,back'd by a standing Army, which was more like a Tyranny, or corrupt Oligarchy, than any settled Government. Nor is what you fay concerning Oliver's Government more true than the former; for all Men, except his own Faction, were not only afraid, but really sensible of the lose of their Liberties under his Tyrannical Usurpation: Though indeed, there was a very "good reason, why there should be fewer Fears ot Jealousies of it, than in his late Majesty's Time, when his Government began to grow uneasy through the Peoples pies Fear of Popery and Arbitrary Government, which they had no jealousy of in Cromwell's Time; and as for the latter, they had no occasion to fear that which had already happened. •

But that you may not mistake me for a Commonwealths Man, I must so far agree •with you, that to condemn Monarchy as such, were to repine at the Government of God himself; so that I also grant, that the fault lies not in the Form of Government, but in the frail Nature of Men, which can rarely administer that great Trust committed unto them, as becomes what they take upon them to be, Cod's Vicegerents upon Earth: And I must own, that I esteem Monarchy limited bji known Laws, at the best and most equal Government in the World; and under which both Prince and People may live most happily and easily, if each of them will be but contented with their due share.

But I beg your pardon for this Digression;, and to come to a Conclusion, I must freely tell you ■ it is not a Straw matter, what your s or Sir R. F's Principles are concerning the Fatherly Power of Princes; for as long as there is no ground for it in' Scripture or Nature , you cannot expect that either Princes or People will ever believe you. Neither is it true, that Princes as Fathers are bound to treat their Subjects in all things like their Children, for then Princes ought to maintain their Subjects, and not Subjects their Princes; since it is the Apos- z tie's Rule, ThatChildren ought not to lay up for their Parent*, but the Parents for the Children: And though you pretend not to plead for Tyranny or Arbitrary Government, yet I cannot at all understand, why if it were not for this End, you should assert not song since, in your answer to me, that God thought fit to. change Paternal Government intoHereditary Monarchy, because of the excessive Wickedness of Mankind before the Flood, proceeding from the too great Lenity of those Patriarchal Princes, in not punishing the disorders of their Subject Children; which is a very bold Assertion; since you know no more than I, what that Wickednessijipas in particular, for which God drowned^ the World, much less what was tM occasion of it. And therefore, if God thought fit to change PaternalPower into Hereditary Monarchies, which (as I have proved) do not at all proceed from Paternal Power, it will also follow that the Government of your Patriarchs was not sufficient for the well being and happiness of Mankind, or else God would never have thought fit to have altered it for a more cruel and severe way of Government.

But as for what you fay concerning those Princes that place all their Security in Guards and Armies too strong for the Subjects, that they are uneasy, and degenerate into Defpotick Monarchies, (you might better have said Tyrannies) and that they are unsafe both for Prince and People, is very true, and I altogether agtee with you in it. But those of your Principles have no reason to find fault with Princes for so doing; for since they do but use their just Prerogative over their Slaves or Vassals, it is but fit that they should be made to undergo that Yoke, whether they will or no, which they would not bear willingly: And as long as Princes look upon themselves to be (what they really are upon your Principles) the Masters, arid not the Fathers of their People, as they suppose the Goods and Estates of their Subjects to be wholly at their Disposal, so can they never command them as they please, without the Assistance of Standing Armies. Nor have you any reason to complain of those Princes for keeping them too strong for the Subjects to oppose; since, upon your Principles, be they strong or weak, the Subjects are not to resist them. But if Princes, without your extraordinary fondness of using their People like Children, would but always use them like Subjects, with ordinary Justice and Moderation; and not oppress them with excessive Taxes, and unnecessary Penal Laws about Religion, you would find there would be no need of Standing Armiesto keep the People in awe, who would themselves be the best defence not only against Domestick, but Foreign Enemies. And this I'll assure yon is a much better Receipt against Rebellion, than all your new Recipe's of'Paternal Power in Monarchs, which is not only without all ground of Reason, but above common Apprehensions. •=■ <•• ■ i •. .

M. You have made a long Speech in answer to my Hypothesis, which since you are not satisfied with, I can likewise shew you another very good reason, why the People should love and reverence their Princes; and that is, those great Liberties and Concessions that all the Monarchs of Europe have granted their Subjects,

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which are now pass'd into the fettled Laws and Cuiloms of those Kingdoms, with. which the People ought to be very well contented. Nor ought they to reber, or resist, though they may sometimes out of wantonness and necessity infringe,, or intrench upon those Privileges, which they or their, Ancestors have conferred upon them; since they can never fvrfirt that Power they have originally over^ them.

F- I do not very well understand what you mean; for I have hitherto supposed that all'Subjects have a Property in their Estates, and a Freedom for their Persons by the Laws of Nature; and which no Civil Power whatever could deprive , them of without their Consent: And therefore I desire you would shew me, that if Children, Subjects, and Slaves, were all one at the hrst, how we in this side o£ the World came to be in a better condition than those in Asia, and AfricaOr; that we Englishmen can claim a Property in our Estates, and a Right to our Lives, which the Prir.ce cannot take away, but according to some known Laws?

M. I think I can eaiily do this, not only in relation to England, but any other, Kingdom, which is now governed by known Laws, and that upon Sir R.F.'s Hypothesis; which I shall do (as near as I can remember) in the Words of that e*-. cellent Person the late Earl of Clarendon, in his Survey of Mr. Hobbs's Leviathan; who supposes, according to this Hypothesis, That some one of Noah'/ Descendants vat aft, Absolute Monarch at first over all hisPcsterity, -which might continue in his Line forsome Ages, till at last their Relation by Blood to their Subjects wasrenm<ed at so great a, distance, that the Account os their Kindivd or Relation to each other was scarce remem*herd; whereby they who had the Sovereign Power, still express less Paternal Affection in their Government,looking upon those they governed as weer Subjects, and not as their Kinsmen or Allies; till by degrees, accordingtt the Custom of Exorbitant Power, they (considering only the extent of their own jurisdiction, and what theymigltt, ratlxr than, what they fiouid do) treated them who were under them, not as Subjects, but as Slaves^ whohaving no Right to any thing but what they permitted them, they would^uhw them to possess nothing, but whatthey had no occasion to take away. Estates they kilkone that they could call their own, because when their Princecalled for tlxjn, they were-his: Tlieir Per-^ sons were at his Command, when he had eitlier occasion or appetite tomake use os tItem j and their Children inherited nothing but their Father's Subjection; so that they were happy ormiserable, as he who had the Power over tliem, pleased to exeicije tt with more or less Rj-i gour or Indulgence;yet they submitted alike to both, acknowledging his Dominion to be natun. rally as absolute, al their Subjectionand Obedience. '• . . j I

Tliefe Princes might for some Ages have pleased themselves with this Exorbitant Exercise of their Power, whichthough it had been always the fame, yet the Exercise of it had, been very moderate, whilst there remained theTenderness or Memory of any Relation. But these Princes began at last to discern, and be convinced, that tiiegreat strength they seemed to be possest of, would in a jljort time degenerate into weakness, and the Riches theyseemed to enjoy, would end in want and necessity, as well in themselves, as in their Subjects; since no Man wouldbuild a good House, that his Children could not inlierit, nor wltnate their Land with any good Husbandry andExpence, since the profit thereof might be given if) smother Man: And that if the Subjects did not enjoy theConveniences of Life, they could not be sure of their Help and Affection, whenever they should have IVar withanother Prince as absolute as themselves; but they would rather chuse to be subject to him, under, whose.Government they might live with greater Liberty and Satisfaction. And lastly^ thai if they ingress'd as the Wealthand Power into their own Hands, they should find none uM would defend them in the Possession of it: And thatthere was a great difference between that Subjection which Love and Duty pays, and that winch results only, fromFeaf.stni Force; since Despair often puts an end to that Duty, whish Reason, and it may be Con/U? ence, wouldotherwise have persuaded them still to continue: And tlmesore. .that it was no* <ejjary that their Subjectsfliouldfind ease and profit in Obeying} as well as Kings flap snie in Commanding. These wise and wholesomeReflections might ptuail with Princes, Jii their own, as well as Subjects benefit, torefirain their Power, and tornake'itlef\ aJ/suhUe'i that it might be more useful; and to give their Subjects, such u Itofeify'fi.their Good^ andLands, as should not be invaded, but in such cafes, and on such occasions, as the ntr. cejftties of the Gcvernmtntreafly required. But as they found the benefit arising from ifiefe Condescensions highly tend to the Improvement oft/x Riches, and Gvilityiof their Subjc'Ui, with a(l those Additions of Pleasure and Industry which renderMm'sXise, as we/J ft the_Government easy and pleasant, tlxy still in several Generations enlarged these Grar cesand Cenceffioiu to their Subjects, yet reserving all in themfehes that they did not


part -with by thfit voluntary Grants or Concessions. And if we take a vjem of the several Kingdoms of the World,,we stall fee another face of things, both of Power, and Riches, in tbqst, Guvernmepp -where-these Condescensionsand Concessions haw been best observed, than in those Kingd/.ms where the Sovereigns eitlxr retain, er resume tot/xtnfehes all those Rights, or Prerogatives, which are invested in tlxm from the Original Nature of Government iso that there still remains enough in tlie Princes Hands to be made use of for tlxprefervatff>n of Ids own Power,and the defence of his SubjeEls, for ■whose benefit it w intrusted with him by God. So far the late Great Chancellor.

And these Privileges and Condescensions, being once pass'd into constant and standing Laws by the Princes that gave them,, and also solemnly sworn to by their Coronation Oaths, do for the future bind not only those Princes that granted them, but also their Successors, to their observation : And I then look upon them bound, under pain of Damnation, not to break or infringe them, without very great necessity- . , L

But however, if they shall happen so to do, since, they Were Matters of meer Grace and Favour at the first, and not of Right, the Princes that thus transgress them are only accountable to Gfid, and punishable by him, and not by their Subjects, for any Breaches or Infringemeets of such Liberties and Immunities : And this may serve against the Fancies of all those, who think Princes have nothing but what the People have given thsm; and likewise agajnst such as Mr. Hcbbs, who maintain so much is conferred ,pn them, that they have a Right to leave no body else any thing to enjoy, that they have a mind to take from them. And this I take to he.a much beubr Segufity fox.the Peoples Liberties, to leave it to the Honour and Conscience of their Princes, and that Fear they ought to have of the Divine Vengeance, in case they oppress, their Subjects contrary to Law, than your heady and violent Methods of Resistance for'the Oppression or Tyranny of Princes, which would but give the common People a Pretence of taking Arms,, and rebelling against their Princes upon every flight Provocation. , F. You have made a very plausible Discourse, whether os your o\vn, or from the Author you quote, is not much material;for, I doubt, when it comes to be examined, it will appear much more like a Romance than a true History: And therefore, granting at present your'Principles to be true (tho* they are not) I desire you to shew me, how you cfti make h) out, either from sacred or piophane History, that any Limited Kingdom now in the World ever had itsOriginal from those jptcsous.CohdefcensioDS, or Concessions of Princes, as you here mention: lor by all tRat ever I can read or observe, either from our own or foreign History, all the Liberties and Privileges, which Subjects enjoy at this day, proceeded ar fieft either from the original; Contracts, Customs, or Constitutions of those Kingdoms or Nations, al the first Institution of their Government; or else were forced from Princes by. their Subjects,; who would no longer endure the Severity of their Yoke; or else were granted by some of them, who believing they bad worse Titles than their Competitors to the Crown, were wiping to engage the People to their side, bv- gtaniiiag. them greater Privileges, than tliev h»fm -

... um gaming tnem greater Privileges than they be/ore enjoyed.

Ants tho'I grants the Reflections you make upon the Exercise of arbitrary Power, and the Miseries it brings both upon the Prince and Peopie, are very true; yet I am £ui»tihe Practice of most absolute Monarchs throughout the whole World hath run quite, contrary to your Suppositions. For Princes are so far (by whatl ever read emobserved) from being willing to #»/.with any of their Power, that they, have ftitt.cndeavoureilb.y degrees to enlargeits, and render it tnoie absolute thai it was lafe them; as you may observe in the .Government of France,Spain, Denmark, zrASoxden, in this last Age j and. what Encroachments were made in this Kingdom, by the Prerogative, upon the Peoples Liberties, during the: Reigns, of our iastjBrihces, he .is a Stranger to the Hits pry of the Country, that Kath nor read ofi, ifdw do not remember them; and how much higher they would have beai carried,- if t!*Mf strange and sudden Revolutson had not put a stop to it, I had rather you and-1 should understands Idea than by Expericrjce.

But i£soch.§ra(ue:S«flectionkas these of yours were abse.to work upon thesirst Monarchs, I desire to know the reason why those of Turkey, Persia, Russia, and the ^riumSxi^&csMMsracco, and of tte Jbistinss .(whOvsorc have .beep as wise as any you.am ratio)! Jhould not, in so many Ages as they have governed, see these ^conveniences, ,you mention, and restrain their exwbiunt Power within some moderate Limits j Nay, to die coatrary., one of the .most ambitiousan* .. * f* afpmng

aspiring Monarchs in Europe is making what haste he can to reduce his Kingdom into the fame Model. And what, do you think, would the Princes and Counsellors of these Empires fay to such a one as you or I, who should offer to preach this strange Doctrine to them, that they ought under pain of Damnation to use their Subjects as their Children, and not as Slaves or meer Vassals? I doubt they would make us pay dear for publishing such false Doctrine in their Dominions, or at least would despise us for half-witted Fellows, without any true Notions io Politicks; since they believe, that the true Security and Glory of a King consist in vast Standing Armies, great Fleets, and a Power to take from their Subjects and Neighbours whatever they please, thereby to enjoy their own Pleasures and Humours in all their Hearts can desire, and to extend their Empires {per fas &nefas) as far as ever their conquering Swofds will give them leave. And if you should tell them, that their Subjects could not love them, nor live happily nor contentedly under such a Government j I suppose their Answer would be (if they could speak Latin) Oderint dum metuant; or, in the Language of their own Country, that they would rather trust a Standing Army than the Affections of their People ; and that it is better to take from their Subjects what they have a mind to, than to leave it to their Good-will what they will give them. These are all the antient and modern Politicks that I can observe in most absolute Monarchies, or in those Kingdoms where Kings have taken upon them so to govern their Subjects at this day: But I defy you to shew me any one Kingdom in the World, where the People owe all their Liberties and Privileges meerly to the Good-will and Favour of their Princes, who granted them only out of those wise Considerations you have now mentioned.

But as for the Expedient at the latter end of your Speech, that these Privileges and Condescensions, when once granted by Kings to their Subjects, and pase'd into constant and standing Laws, and also solemnly sworn to by Princes at their Coro-; nation, do not only bind those Princes that granted them, but also their Successors, under pain of Damnation; I so far agree with you, tho' I must beg your Pardon, if I cannot think this a sufficient Security, for several Reasons I can give you at a more convenient Time, when I shall, when you please, more fully discuss this Point

M. I must freely tell you, Sir, I am not yet satisfied neither with the Instances you have brought, nor yet with your Replies to my Answers; and I think I can shew you, as to this Kingdom, that they are false in Matter of Fact. For if that the first and most antient Kingdoms and Monarchies began by Conquest at first, and that perhaps for the most part by Wars unjustly made, as I may also instance in England, if this were a proper Season for it; so that indeed the greatest Liberty in the World (if it be duly considered) is for a People to live under a PaternalMonarchy. It is the Magna Charta of this Kingdom, all other Shews or Pretexts of Liberty are but several Degrees of Slavery, and a Liberty only to destroy Liberty.

So that I think I may very well keep my first Opinion, that Paternal Government is the Foundation of all other; and I have ever thought God's Love and Kindness to Mankind did never appear in any thing more (except in Man's Redemption) than in creating only one Man, and out of him only one Woman: So that Adam was a kind of a Father to his Wife, that Marital, as well as all other Power, might be founded in Paternal JurisdiBion; that all Prince^ might look upon the meanest of their Subjects as their Children, and all Subjects upon their Prince as their common Father, and upon each other as the Children of one Man ; that Mankind might not only be united in one common Nature, but also be of one Blood, of one Family, and be habituated to the best of Governments from the very Infancy of the World.

Were this well considered, as there could be no Tyrants, so neither would there be any Traitors and Rebels j but both Prince and People would strive to outdo each other in the Offices of Love and Duty. And now do you or any Man living read Sir R. F.'s Patriarcha, or other Works, and fee if either he or I have ascribed one Dram of Power to Princes, which will not naturally spring from this Supreme Paternal Power. . ,. *

So that upon the whole, I think Reason it self would conclude, that this way of solving the first Rife of Government is true, and that it is the Duty of all, who by the Blessing of God are under Paternal Monarchies, to be very thankful for the Favour, and to do the utmost that in them lies to preserve and transmit that best

* Form

Form of Government to their Children after them. And surely thfa is no Nation under Heaven hath more Reason for this than the English, who are under a Paternal Monarchy, which has taken the best care that can be to secure them, not orHy from Oppression and Wrong, but from the very Fear of it.

F. Since you lay the chief stress of your Assertion upon the Original of most of the Kingdoms and Monarchies now in the World, and of our own in particular, I think I may safely join issue with you on both points, and in the first place affirm, that an unjust Conquest gives the Conqueror no Right to the Subjects Obedience, Much less over their Lives or Estates; and if our Norman WlUiam and his Successors had no more Right to the Crown ofEngland than meer Conquest, I doubt whether they might have been- driven out after the fame manner they came in: But I believe you will find, upon second thoughts, that unjust Conquests and Uftrpatsons of Crowns be no firm Titles for Princes to relie on; lest the old English Proverb be turned upon you, viz. 7%at "which is Sauce fora Goose is Sauce for a Gander. But I shall defer this Discourse concerning Titles by Conquest, and in particular that of our Kings to this Kingdom, to some other time; when I doubt not but to shew, that it is not only false in Matter of Fact, but also that it win not prove that for which it is brought.

A»d therefore what you fay in your Conclusion, in exaltation of God's. Love and Kindness to Mankind, in creating one Man, and out of him only one Woman, that Adam might be a kind of Father to his Wise, is a very pretty and indeed singular Notion; and you would do very well to move the Convocation, next time it sits, that this Explanation may be added to the fifth Commandment, that Women may be taught in the Catechism, that Obedience to Husbands is due by the Precept of Honour thy Fattier and thy Motheri

And therefore I need give no other Answer to all the rest you have said : For ■however specious the Hypothesismay seem (as you have dress'd it up) for Princes and People ,• yet till you have proved, that all Paternal Power is Monarchical, and that all Monarchical Povxr is derived from Fatherhood, it signifies nothing.

'Nor can these fix Fraudes do any more good in Politicks than Religion: For as Superstition can never serve to advance the true Worfhip of God, "but by creating false Notions of the Dkiine Nature in Mens Minds, which doth not render it, as it ought to be, the Object of their Love and Reverence, but servile Fear; so I suppose this asserting of such an unlimited deffotical Povxr in all Monarchs, and such an entire Subjection as Sir R. F. and you your self exact from Subjects, can produce nothing but a slavish Dread, without that Esteem and Affection for their Prince's Person and Government, which is so necessary for the Quiet of Princes, and which they may always have, whilst they think themselves obliged in Conscience and Honour to protect their Lives and Fortunes from Slavery and Oppression, according to the just and known Laws of the Kingdom, and not to dispense with them in great and essential Points, without the Consent of those who have a hand in the making os them: And all false Notions of this Suf,-eme Povxi; as derived from I know not what Fatherly (but indeed Defpotick) Power, are so far from settling in Peoples Minds a sober and rational Obedience to Government, that tfoey rather make them desperate, and careless who is their Master; since, let what Change will come, they can expect no better than to be Slaves.

Nor are Subjects put in a better condition by this Doctrine of absolute Nonresistance, since all Princes are not of so generous a nature, as not to tyrannize and insult the more over those, whom they suppose will not, or else dare not resist them ; and therefore I cannot see how such a Submission can soften the Hearts of the most cruel Princes in the World, as you suppose } much left how a Power to Wfift in some cases can enrage the mildest Princes to their Peoples Ruin ; since all Resistance of sirch mild and merciful Princes I grant to be utterly unlawful: Nor do I hold Resistance ever to be practised, but where the People are already ruined mjheir Liberties and Fortunes, or arc just at the brink of it, and have no other Means left but that to avoid it. - • '■>

To conclude,' J so far agree with you, that I think it is the Duty of all.that are born under a Kingly Governmentlimited by Laws, to be very thankful to God Vk *?avour> ant*to do the utmost that in them lies to preserve and transmit this best Form.of Government to their Children after them; without maintaining A A uI"ntc,1'gible Fictions as a Paternal Monarchy derived from Adam or Noah, And tho' I own that some of our former Kings have taken- the best care they could

v to secure thisNation from Popery and Arbitrary Power; yet whether the Method f>£ our three last Kings has been the readiest way to secure us from the Fears of it, I leave it to your own Conscience (if you are a Protestant) to judge.

But since you defy me to shew you out of Sir R. F's Patriarchs that he hath ascribed one Dram of Power to Princes, which doth not naturally arise from a Supreme Paternal Power, and that this is no exorbitant Height; I think I am. able to prove from many Passages in his Patriarcha, as well as other Works, that no Author hath made bolder Assertions to render all Mankind Slaves, instead of Subjects; and all Princes Tyrants, instead of Kings; and that his Principles are so far from being safe, that if they are duly losok'd into and weighed, they will prove destructive as well to the Rights ot PrisiOft?, as to the Liberties of the People. • yf.->; r «

M. I should be very glad to fee that proved; for 1 must always believe, 'till you shew me to the contrary, that this excellent Author lays it down for a Ground, that Princes, being as Fathers to their People, are bound to treat their Subjects as Children, and not as-Slaves: And therefore waving this last Controversy, which we have argued as far as it will go ,• pray make, out what you fay from his own Words, and I will give up the Cause.

F. I wonder how you can be so partially blind as not to fee this, since you yourself have already made use not only of a great deal of his Doctrines, but also of his very Words. And therefore, pray fee his Obedience to Government in doubtful Times; as also in his Preface to the Observations upon Aristotle's Po'F<>ge 4. liticks; where you will find he asserts, That Adam was the Father, King and Lord over his Family; a Son, a Subject, anda Servant, or a Slave, were one and the fame thing at first : "The Father had power to dispose of, or fell hisChildren^ or Servants. "Whence we find, that at the first reckoning of Goods in. Scripture, the Man"servant, and the Maid-servant are numbered among the Possessions^ and Sub*"stance of the Owner, as other Goods were." So that then, if the Power of a Father, and of a Monarch be all one, and that all Monarchical Power is Defpotical,the Consequence is also as evident, that all Subjects*are also naturally Slaves, un* less their Princes shall please to lay an easier Yoke upon them.

M. Perhaps Sir R. F. may have carried, this Matter a little too far; yet. if you please.to look into hisPatriarcha, Chap. j; Part 1. you will find that he hath this Passage, which plainly speaks the contrary: 'TheFather of a Family governs by no other Law, than by his own Will, not by the Laws and Wills of his Sons andServants. 'There is no Nation that allows Children any Action, or Remedy, for being unjustly governed; and yet forall this, every Father is bound by the Law of Nature to do his best for the preservation of his Family; but muchmore is a King always tied by the fame Law of Nature to keep this general Ground, That the Safety of hisKingdom be his chief Law. Whence you may observe, that though he takes away all Remedy from Children against their Parents for being ill governed, yet doth he not set the Father free from all Obligation to preserve the Good of his Family, of which sure a Man's Children are a principal part. 'y; i

And if you please to look back to the second Chapter of his Patriarcha, you will find these Words: To answer inparticular to the first Text, it may be said the Sense of these Words, By the Law of Nature all Men are born fret,must needs mean a Freedom only that is opposite to such a Subjection as is between Father and Son. This is mademanifest by the Text of the Lay*: For Ulpian in this place fpeaketh only of Manumission, which is a setting atLiberty of Servants from Servitude, and not of Emancipation, which is. the freeing of Children from the FathersTuition. Servitude, as the Law teacheth, U a Constitution of the Law of Nations, by which a Man_ is subject to theDominion of any other Man against Nature. So not every Subjection is Servitude, but Subjection contrary to theLaw of Nature. Tet every Man if born subject to,the Power of a Father. This? the Law itself faith, In Potefiatenosira Libert nosiri fum\ . So that you see here he maketh a difference between Servitude, and that Subjection thatis.due to Fathers. [ i

F. Give me leave to answer these two Instances; before you .proceed any farther; and I stiall in the first place make bold to answer your last Instance first, because I shall be much snorter upon it. But pray take notice by the way, that this Author is very high and rigorous for the absolute Power of Life and Death in all Fathers over their Children in the State of Nature, and that they may \ exercise it for very flight Ossences; And therefore, in this Chapter you have last quoted, he seems very well satisfied with the Example of Cajfim, who threw his


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Son out of tlx Consistory for publishing the Agrarian Law, for the Division of Lands; aud 1 think this was no such great Crime, for which a Father might justifie the putting his Son to Death. And in the Section before this, he justisieth the Power of Fathers amongst the Romans, as being ratified and amplified by the Law of the pixhttTables, enabling Parehts to fell their Children two cr three times ever. So that these things considered, I cannot fee how this Distinction of Sir R. F. out of the Civil Law will do him any service. For though I grant indeed, thatManumission, and Emancipation, arc two different Words, yet do they both signifie the fame thing. And though for the greater respect which they would sliew to the Condition of Children above rhat cf Slaves, they were pleased to make use of different Expressions; yet whoever will look more closely into the Nature of the Subjection that Children were in, under their Parents, by the Roman Law, will find, that the Condition cf Children was r.o better than that of Slaves. For First, The Father had such an absolute Power over the Person of the Son, that he could sell him three times, whereas he could fell a Slave but once. Secondly, He had such anabsolute Power over his Life, that he could take_ it away whenever he pleased. Lastly, A Son could hate no Property in any Gocds without his Father's Consent, 'till he was emancipated, or made free: So that if his Father were harsh and ill-natured, the Condition of a Son was worse than that of a Slave, as long as his Father lived.

And therefore, I am still of the Opinion of the antient Civil Lawyers, who assert the natural Freedom cf Mankind, according to the Maxim you have now cited. And they acknowledge, that the Servitude, or absolute Subjection ofChildren to their Fathers, was not by the Law of Mature, but by the Civil or Roman taw, peculiar to themselves, as I have already proved at our last Meeting.

But to come to your first Quotation, whereby you would clear Sir R. F. from maintaining any unjust Severity in Fathers, or Tyranny in Princes, because they are both to endeavour the common Good of their Families and Kingdoms. 'Tis very true he fays so; but of this Common Good they themselves are the file Judges. So that if the Father please to sell one or two of his Chileren, whom he least loveth, to provide Portions for the rest, he may lawfully do it for any thing I fee to the contrary. So likewise immediately after he asserts the Superiority os' all Princes above Laws, because there were Kings long before there were any Laws. And all the next Paragraph is(wholly spent in proving the unlimited Jurisdiction of Kings above Laws; as it is described by Samuel, when theIsraelites desired a King: So that it signifies little what Laws Princes make, or what Privileges they grant their Subjects, since they may alter them, or abrogate them whenever they please.

As. But pray take along with you what he says in the next Paragraph you quote; where you may fee these Words; if is there evidently jhewed, that the Scope if Samuel was to teach the People a dutiful Obedience to theirKing, even in those things which themselves did esteem mifchiev.us and inconvenient: For by telling them what aKing ■would do, he indeed instructs them what a Subject must suffer; yet not so, as that it is right for Kings to doinjury, but it is right for them to go unpunished by the People if they do itSa that in this point it is all one,whether Samuel describe a King or a Tyrant; for pa*' tient Obedience is due to both: No Remedy in the Textagainst Tyrants, but in crying and fraying unto God in that Day. And that Sir R. F. is very far from justifying Kings in the unnecessary Breach of their Laws, may farther appear by what he fays, t ap. 3. part 6. of this Treatise ; where pray fee this Passage. Now albeit Kings •who make the Laws, be (as King James teacheth m)above the Laws, yet will they rule jlxir Subjects by the Laws; and a King governing in a settled Kingdom, leavesto be a King, and degenerateth into a Tyrant, Jo soon as he leaves to rule according to his Lfiws; jet where he feesthe Laws rigorem, or doubtful, lx may mitigate and interpret them. So that you see here he leaves the King no Power or Prerogative above the Laws, but what shall be directed, and employed for the general Good of the Kingdom.

F. But pray, Sir, read on a little farther, and see if he doth not again undo all that he hath before so speciously laid down; and if you will nor read it, I will: General Laws made in Parliament, may, upon known respects to theKing, by his Authority, be 'mitigated, or suspended upon Causes only known to him. And although a King doframe all his Aliions to be according to the Laws, yet he is not bound ther eto, but at his good IVtll, and for goedExample: Or so far forth as the General Law of tlx Safety of

N 1'* the the Commonweal doth naturally bind him ; for in such sort only, positive Laws may be said to bindthe King, not by being positive, but as they are naturally the best, or only means for the preservation os theCommonwealth.

So that if the King have this Prerogative of mitigating, interpreting, and suspending all Laws, in Cafes only known to himself, and that he is not bound to the Laws but at his own good Will, and for good Example. I desire to know what greater Prerogative a King can desire, than to suspend the Execution of any Law, as often as he shall think fit. For though I grant the Suspension of a Law differs from the Abrogation of it, because the former only takes away the force of it in this or that particular cafe, whereas the latter wholly annuls the Law; yet if this Suspension be general, and in every case, where the Law is to take effect, it amounts to the fame thing with an Abrogation of it; as may be plainly seen in the late"King's Dispensing Power. For though it be true he pretended to no more, than to dispense with this, or that Person, who mould undertake a publick Employment, eitherMilitary ot Civil, without taking the Oaths and Test ; yet since he granted this Dispensation generally to all Papjsts, and others that would transgress this Law, it amounted to the fame thing, during his Pleasure, as anabsolute Abrogation of it. And therefore I do very much wonder why divers, who arevery zealous for the Churchof England, and the Kings Prerogative, should be so angry with him for erecting that Power, which not only this Author, but all others of his Principles have placed in him: And if the King may suspend this, and all other Laws, upon Causes only known to him, I do not see how he differs from being as absolute and arbitrary a Monarch, as the Great Turk himself ,• and may, when he pleases, notwithstanding all Laws to the contrary, take away Mens Lives without any due Fotms of Law, and raise Taxes without Consent of Par" UameHt.

M. But pray read on a little farther, and you will find that he very much restrains this absolute Power, in these Words: By this means are all Kings, even Tyrants and Conquerors, bound to preserve the Laws, Geods, Libertiesand Lives of all their Subjects, not by any Municipal Law of the Land, but by the Natural Law of a Father^•which binds them to ratifie the AEls 'of their Forefathers and Predecessors in things necessary for the publickGood of their Subjetls.

F. Were I a Monarch limited by Laws, I would desire no greater a Power over them than this you have here brought out of this Author. For he {a.ys,positive Laws do not bind the King, but as they are tlx best or only meansfor tlx preservation of the Commonwealth. In the next place you see that all Kings are bound to preserve the Lives and Estates of their Subjects, not by any Municipal Lmo of the Land, but by the Natural Law of a Father, which binds them to ratifie the Acts of their Predecessors in things necessary for the publick Good of their Subjects. Now this Paternal Power is large enough of all Conscience to discharge Princes< fuertft any Obligation to the Laws farther than they please.. For it before appears, fhat the Father of a Family governs by no other Law than by his own Will, and not by the Laws and Wills of his Sons or Servants ,• therefore if the Power of the King be wholly Paternal, he may alter this Will of his as often as he pleases: Nor can his Subjects, who are all one with Sons and Servants, have any reason ttf fi#d fault with it. For he says, There is no Nation that allows Children anyRemedy for being unjustly governed. And though it be true, that he restrains this Prerogative both in Fathers and Kings to the publick Good of their Children and Subjects; yet as long as he is left the sole and uncontroulable Judge of what is for the publick Good, all these fine Pretences will signifie nothing. For he is bound to observe or ratifie no Laws or Acts of his Predecessors, but what he is satisfied tend to this End®: So that if he thinks fit to judge, that Magna Charta, for Example, or trie Statute de Tallagio non concedendo, or any Liberty we enjoy, are not necessary, or contrary to the common Good, he is not tied to observe them. And upon this Principle it was that the Judges in the Reign of King Charles the First founded the King's Prerogative for Ship-money: For they supposed that the King, in case of necessity, (that is, for the publick Good of the Subjects) might lay a Tax upon the Kingdom, though without Consent of Parliament. So that upon this Pretence the King being the sole Judge of the Necessity, -he might quickly have raised what Taxes, and as often as he had pleased.

But, lest our Kings should think themselves too strictly bound by their Coronation Oaths, to observe the Laws, pray see in the ne*t Paragraph how this Author

endeavours endeavours to help the King to creep out of that Obligation too. Therefore pray read on. Others therebe" that affirm, that although Laws of themselves do not bind Kings, yet the Oaths of Kings;■ at theirCoronations, tie them to keep all the Lavas of their Kingdoms : flow far this isjriie, let ws but examine the "Oathsof the Kings of England at their Coronation: 'The Hoards "whereof are these \ "Art thou pleased to cause to be

* administred inJ ill thyv Judgments indifferent and upright Justice, and to use ^/Discretion ^vfth Mercy'? \Art thou pleased that oyr upright Laws and Customs ^'1be observes ; and<!oft thou promise, that these shall be protected and main

tamed by tjhee "These Two are ihk Articles of the King's Oath, which concern the jjtiii'y,or Suty&Pfy 'general y towhich "she "King answers' affirmatively; being first dernandidbythe'Archbishop of Canterbury i *' Pleascth it, you to confirm, and observe « the Laws and'Custbras of ancient Tfikes granted from God, by just and de

* vmt iCings* tirjto the English Nationy Oath ursto the said People, especially k~'\&€ £Ws,' Liberties aflirCustoms granted untb the Clergy, and Laity, by the ^•'ptnous King fywkr&V^'Wk may observe in these Wordsof the Articles of the Oath, ^'t^'kh^'itfMMred'w iriMJfa&e all the Lavs, but dnly the upright, and that withdiscretion and Wrcy. The <NWbr4 upright cannot meah all Laws, because in the Qath of Richard the Second, I.find evil and unjust Laws mentioned, which the Kihg f^ear^ \oJiBolifh: Ahfl in/the ofd Abridgment of Statutes set forth in King Hen'ry the Eiihihh 'L^v/s, tfie'Kirig is to swear wholly to put out evil Laws, which £ cinno'f fef tie be bdtir/d tbM%m'J"' "f~l . ';^6vs Wh'arÆSws are ttpfigit,' arfef what £w7„Whb shall judge but the King? Imce. hfe ' f\^&rS-4o administer upright Jit/hce with Discretion and Mercy; or (as

tiqilitaieht 'hrœtipiat, tr misericordiam. So that in effect the King doth so keep but filth hi. /« A» Judgment areupright, and those not literally al

W^Httt accoidlhgJto the Equity of'hisConscience, joined with I'

\t accitidmg'to the Equity of' his Conscience, joined with Merty, which is properly  .-M $gVbaticel/or 'ratherthan of xi Judge. And if a King did stritlly swear to Af^ve^ l&tdw'i^ He -cph&m, without; Perjury, give hisConsent to the Repealing or Abrogating ^'^y'Sif^uteb^AEl of Parliament, which would be very mischievom to the

* \pui )et it tesupposed for Tttfth, ihat Kings do swear to observe all the Laws of their jCtttgdmsi yA^man can]think it reason, that Kings should be more bound by their voluniary Oaths, 'tpa% common Persons are by theirs.Now if a private Person make a Contrail 'ttttet with vith? )pr withklt O'ath, he is. no farther bound than the Equityand Justice of the ContractYiel 'hint ; sol- a Mjttn mdy have 'Relief against an unreasonable and unjust Promise,is. either^ Deceit ot Eftbr, Force or'Fear induced him thereunto; or if it be hurtful)oy[grievdttf fit sheperforntapee.' Since the Laws in many Cafes give the King a Prerogative above iomf/tOh persons,'' Tfee no reasonwhy he should be denied the Privilege which the meanest ofhi:t $#bjeEts dotfreWty'l/,"8l'1: 37

^"neeaLnOt'/make any jewg Paraphrase' upon these Words : It is sufficient that

T' ~ Vtff what.Laws ziH upright, and what unjust; and

teases shall be observetr, :knd what riot So that no so just, #rid'necessary by the Parliament at the time of. leaking ^ jf he "thinks fit afterwards to judge.

Otherwise. . ^Wlest;this should not be sufficient, he'hath found t>ut another way whereby Prinzes'feiay absolve themselves of this tf oublesome Obligation of Oaths; and therefore he'Wouidha've them no more bound upthan common Persons, who, because they maty have Relief in publick Courts of Justice, against an unjust Promise; ifeither E^rror, Deceit, Force, or Fear, induced them thereunto; nay more, if it hp ljjsnful orgrievom in theperformance; Kings who have a Prerogative above common Persons, and who acknowledge no Tribunal above themselves, may absolve themselves of We'if'Oaths whenever they think good; by faying it was extorted from them" by Deceit; Force, or Fear : Or if they cannot fatisrie themselves without it, they might have had formerly the Popes's Dispensation for Money, which we read Kihg.Jotn, and Henry the "Third obtained to be absolved of the Oaths they had taken \to observe Magna Charta. But this Author hath found out a ihorter cut, and'iiath made Kings both Judges an'd PartieSj ahd. to absolve themselves by a Fundamental Right of Government. And what hath proved'the Conclusion of such Prinecs who have taken this Author's Liberty of - breaking their CoronationOath at/their pleasure? It hathonly taughttheir Subjects to imitate their fexample, "ajid to maUe a$, light of theirOath of Allegiance,


M. I will not deny, but perhaps Sir /J. F. may have carried the Prerogative in this Point a little too far; yet that he meant honestly towards the Commonweal in all this, I pray fee the 8th Section of this Chapter, where you'll find these Words; Many -will be ready to say, it is astavijb and dangerous Condition to be fubjeil to the Hallos any one Man, -who is not fubjetito the Laws: But such Men consider not, I. .' That the Prerogative of a King is to be above all Laws, for the goodonly of them wha are under the Laws, and to defend the People's Liberties, as his Majesty graciousty affirmed * inhis Speech, after his last Answer to the Petition of Right; howsoever, some are afraid

of the Name of Prerogative; yet they may assure themselves, the Case of Subjects would be desperately miserablewithout it. So that you fee here he asserts no Prerogative in the King to be above all Laws, but only for the good of the People, and todeV fend their Liberties; which I think is a sufficient restraint of Prerogative.

F. But read a little lower, and the People will have no such great cause to thank him, as you may fee by these Words: In all Aristocracies the Nobles are above the \ Laws; and in all Democracies, the People. By the likereason, in a Monarchy the King

must os necessity be above the Laws; there can be no Sovereign Majesty in him that is under them; thai whichgives the very Being to a King, is the. Power to give Laws; without this Power he is but an Equivocal King. ', , i And most part of what follows in this Treatise, is only to prove, that the Parliament, or Assembly of Estates, was a Creature wholly of the King's Creation, and consequently, that he alone makes the Laws in it: And he hath also written a. whole Treatise, called The Freeholders Grand Inquest, to prove that it is the King's;' Authority alone that makes the Laws; and therefore that he can interpret and dispense with them at his pleasure, So that RichardII, . had this Author liv'd in his time, might have made him a Judge as well us TresiUian ana Belkrap, since they all maintain'd the fame Principles. But, lest we should mistake him, fee what he fays at the Conclusion of this Treatise: For the confirmation of this Point, Aristotle faith, That a perfetl Kingdom is that wherein the King rulesall things according to his own Will; for he that is called a King according to the Law, makes no kind of Kingdomat all. This, it seems, also the Romans well understood to be most necessary in a Monarchy; for tho they were aPeople most greedy of Liberty, yet the Senate did free 'Augustus from all necestity of Laws, that he might be freeof his own Authority, and of absolute Power over himself, and over the Laws, to do what he pleased, and leaveundone what he list; and this Decree was made while Augustus was yet absent. Accordingly, we r find thatUlpian, the great Lawyer, delivers it for a Rule of the Civil Law, Prin

ceps Legibmfolutm est, The Prince is not bound by the Laws. .

So that upon these Principles, all Kings are not only discharged from the Penalty, but also the very Obligationof observing Laws, farther than they shall think » fit. And indeed, this Author carries this Prerogative beyond what the most mo

derate Roman Emperors ever pretended to, as I can easily show you from your own L Civil Law Books; and therefore pray reach me down your Volume of the Code, and

L. 3. lib. 6. t. fee here what the Emperor declares on this Matter De Testamentis. Ex imperfeilo 23- TestamentonecImperatorem hareditatem vindicare posse, sape constitutum est, licet enim Lex

Imperii Solemn bm juris Imperatoremfolverit; Nihil tamen tarn proprium Imperii est, quant C. de letTilusLegibm vivere. See likewise in the Theodosian Cede these words: Digna vox est Ma/. 4. lib. 1.1. jestateRegnantis, Legibm aUigatum fe Principis profiteri, adeo de Authoritate juris, nostra J4" pendet Authoritas, & revera majus Imperio est fubmittere Legibm Principatum, & ora

culo prafentis Editli quod nobis licerenon patimur, aliis indicamm, (viz. Succesforibm Iheodosio& Valentino.)

So that you may here fee, that even the Roman Emperors were more modest, than to declare themselves discharged by their Prerogative, or thought of any of these subtle distinctions of this Author, from their obligation to the Laws, however they were from the Penalty; which is the true Sense of this Phrase of beingLegibm folutm.

But God be thanked, most of our own Kings have been more conscientious, than to maintain that they were not bound by their Coronation Oath farther than they Rajlat, s. 99. pleased. For you may see in the Preamble to theStatute of Provisors, made in the 25 th of Edward III, where it is declared and acknowledged by the King himself, and both Houses of Parliament, that the Right of the Crown of England, and the Law of the Realm issuch, that upon the Mischiefs and Damages which happen to the / Realm, he ought, and was bound of his said People in his Parliament thereof, to

make Remedy, and Law, in voiding the Mischiefs which come thereof; And the . \r * King King seeing theMischiefs and Damage aforesaid, and having regard to the laid Statute (scil. the former Statute of Provisors) he here farther acknowledges, that he is bound by his Oath to do the fame to be kept, as the Law of his Realm, tho' by sufferance and negligence, it hath been hitherto attempted to the contrary.


So likewise, King Henry IV. declares in full Parliament (as appears by the Par- Pot. Par!. H. liament Roll) That whereas the Commons in Parliament had granted, that the xv. *■ 108. King should be in as great Liberty as any of his Noble Progenitors; on which our j#?ourMar~ laid Lord of his Royal Grace, and tender Conscience, had granted in full Parlia- "yu ment, that it is not his intent, nor will he alter the Laws, Statutes and good Usages, nor take any Advantages by the said Grant ,• but will keep the ancient Laws and Statutes ordained and used in the times of his Noble Progenitors, and do Right to all People in Mercy and Truth Selonc son Serment, i. e. according to his Coronation Oath.

M. J will not affirm, but Sir R. F. observing how much the King's Prerogative was run down by the long Parliament; and how the least flips and miscarriages in Government were aggravated by the Demogogues that then domineered, as open and violent breaches of his Coronation Oath, might be willing to make the best defence he could for such Miscarriages,- and this Treatise of Patriarcha, being a Posthumous piece^ perhaps he would have altered many things in it, had he lived to publish it himself; but I doubt not, but he was a very honest Man, and meant well to the Kingdom for all that. And therefore I hope you will not be too rigorous in your Censure of him.

F. 1'U assure you, Sir, I shall not, because he hath been dead many Years, and therefore I had much rather censure his Writings, than his Person, which I never knew. But, if I may judge from his Works, he was certainly no Friend to Parliaments, or the Power of the LaWs ab6ve the Prerogative: But that I may also shew you how dangerous and derogatory his Opinions likewise are to the Titles of all Sovereign Princes and Monarchs now in the Worlds however he may seem to write in their defence, pray turn to his Patr. chap. i. par. $>, and to a Question, What becomes of the Right of Fatherhood, incase the Crown escheat for want of an Heir; he thus replies, which pray read, It is but the Negligence or Ignorance of the People to lose the knowledge of the trueHeir: For an Heir there always is; if Adam himself were still living, and now ready to die, it is certain, there isone Alan, and but one in the World, who is next Heir, although the knowledge who should be that one Man bequite lost. The which he likewise repeats to the fame effect, in his Treatise of the Anarchy of a limited or mixed Monarchy. Pray see the place, and read these Words: It is a truth undeniable, that there cannot be a Multi- Mi feel. p. tude of Men whatsoever, either great or small, though gathered together from the several17 3Comers, andremotest Regions in the World; but that in the fame Multitude considered by itself, there is one Man amongstthem, that in Nature hath a Right to be the Ring of all the rest, as being the next Heir to Adam, and the othersubject unto him; every Man by Nature is a King, or a Subject. So that I think no Kings in the World being aWe to deduce their Pedigree from Adam (of whom there can be but one right Heir) they all (or at least all but one) are only Kings dt FaEio, and not de Jure, and Usurpers upon this Heir of Adam. So that if God would but be pleased to reveal who this next Heir is, all the Kings of the Earth were bound in Conscience to lay their Crowns at his Feet; though he were but a Cobler or a Linkboy. How ridiculous a Notion this is, I leave it to any indifferent Man to judge.

M. I hope this Opinion is like to have no very ill effect, unless any Prince, by ■virtue of this Title of Adamsright Heir, should pretend a Right to an universal Monarchy; and then I think it were but reasonable, he should be put to make out his Title; but seeing no body doth so, to the best of my knowledge, it is but reasonable that all Princes should in the mean time enjoy what they are in lawful Possession of, till this Heir of Adam hath made out his Title, and then they may consider farther of it. , .. .

P. And it is very well, that this right Heir is not to be found; for if he were, all Princes would be Usurpers, who did not immediately resign to him. But this Doctrine is of more fatal consequence than you imagine ; for it doth not only concern Princes in respect oiAdams right Heir only, but also of any other right Heirs to Princes, who have lost their Right to a Crown never.so many Ages ago: For lookv into his Directions for Obedience in doubtful times, and read this Passage : By Humane positive Laws, a Possession time out of mind takes away, orbars a former Right, »


{94}

avoid a general Mischief'of hinging all Right into a & imputation not decide able by Proof, and consequently, tothe overthrow of all Civil Government, in Grants, Gifts, hnd 'Con^ trails between Man and Man.; but in Gruntsand Gifis}'<that have their'Original from God or Nature, {as the Power of a Father hath) nofafeHeV Power ofMan can limit', nor make any Law of Prescription against them. Upon this^grouhU iibuilt that Nullum tempus occurrit Regi, no time bars a King. And a litrl^befopej he gives us this reasort of it: For tbo'by humane Laws a long Prescription-may take away Right I'.yei a. divine Right never dies, nor can be lost Or taktti away. By1 which Principle^ he renders the Titles of most (if not ali) of the" Princes of Europe'utthis day Very weak and disputable, whenever arly- other Person shall set'up-a Tftlcagainil them. - :-3 - '•;•>«" ' : 1 1

.. M. But Sir R. F. hath found a very good Expedient for this; for he telfe a^ 'iti the last cited Discourse, thatthe Paternal.Power cannot be loft, th'o' it may eiiher be fag. 27;. transferred to- usurped; and in his Anarchy of a limited Monarchy, he thus more at large expresses it. Many times, by the AB either- of' a Usurper himself ] or 0}those that set him up, the true Heir of a Crown is difphjfeffed, God' ujing the Minist ry of the "wickedest Man forthe removing and setting up of '* Kings;' in such cafes, the SubjeBs Obedience to the Fatherly Power must goalong, -and waif upon God's Ptovidence, who only hath rfahi-d give and take away Kingdoms, and thereby toadopt-Subjects into il>e Obedience of 'ahtiher Fatherly Power. And lastly; in his Discourse of ObedieVce, &c. hemorecleaflysctfleth this Point, in answer ro an Objection there made; that most Kings now in th8 World, have no other Titles to their Crowns but Conquest or Usurpation ? 'Hi replieth, "that tho' all Kings were Usurpers, yetstill the first Usurperhath thebefi "Rtle, being in Possession by the Permission of God; and where an Usurper hathcontinued-fe :Mg\ that the knowledge of the right Heir is lost by t/x SubjeBs; in such case the Usurper inPossession is to be taken and reputed by such SubjeBs for the true Heir, and is to be'cbeydby them as their Father.And I think you your self will not deny, but that Kingdoms may be transserred from one Prince to another by Conquest, or along Usurpation; and that when there is no other better Title extant, the King in Possession', of his Heirs, may have a good Title by a long PoUession, tho' it began by Usurpation at first. no v , .'/si" ;: ;'iir!j \\ w.

F. I have not now time to answer all that your Author hath as falfly, 'ds incoherently said concerning this Subject of Usurpation ;'*and I should be glad to heat you, or any Man else that will undertake to defend him, make him him consistent, not only with reason, but with himself, in this Discourse you'quote, concerning Obedience to Government in doubtful times. For to pass by his unintelligible . Notion, of supposing two supreme Paternal Powers subsisting at once, and-each of them laying claim to the Obedience and Submission of the Subjects, the former that of the Usurper, Who being in Possession of the Crown by the permissive Will of God,who hath thought fit to adopt the SubjeBs into a Fatherly Power; and the latter, that. Paternal Right which he supposes still 'to remain in the expulsed Prince, and his Heirs for ever. By which means the Allegiance of the Subjects is so divided and perplex'd, that they can never be able to tell, when the Allegiance to the tight Heir is to take place before that of the Usurper. - '• 

M. But if you had been pleased better to observe this Discourse, you would find that Sir R^F. hath very well obviated this Objection, as appears by-these ILidp. 68. Words. "The Right of Fatherly Government was ordainedby God for the preservation of Mankind; if it be usurped, the Usurper may be so far obeyed, as may tend to thepreservation oj the SubjeBs, who may thereby be enabled to perform their-  Duty to the hue and right Sovereign,when time shallserve; in such cases to obey an Usurper, is properly to obey the first and right Governor, who mustbe presumed to desire the safety of his SubjeBs. "The Command of an Usurper is not to be obeyed in any thingtending to the DefbuBion of the Governor, whose being in the first place is to be looked after. '' vi.^oi. ■. .-jb This is, I confess, a very pretty Distinction, to make the Usurper, wKb^go* verns whether the right Heir will or no, yet to do it by his Consent, and- AMI the Subjects, when they act thus, do but still obey their rightful Governor," wSch Supposition would be contradictory to what your Author hath already laid^&wrt of the Subjects being adopted into the Obedience of;another Fatherly" Powetfb^tih* Usurpation ; for if it be as he now makes it, they still remain under the Fatefnal Power of the former Prince,, .and the Usurper governs only as his "Deputy; which is a very choice refined Notion, by which all Men had been obliged in Conscience to yield as Kill Obedience toCromwell and the Rump, in all things that did noite/fd to *•..•»' "the tbt Destruction of the late Kings Person, as to him himself; which I suppose you high Royalists will by no means admit of.

But this is not the main Matter that I have to except against; for if the Principles I have read out of that Treatise be true, "That the Right of a lawful Monarch and his right Heir, is a divine Right; and that no length of time orprescription can bar it; because a divine Right never dies, can be lost, or taken away, till the knowledge of theright Heir be loft by all the Subjects; and till which time Usurpers and their Heirs can never acquire an'abfolute and indefeasible Right in the Kingdoms they possess; it will certainly follow that the Title that most Princes of Christendom have to their Crowns, will be hereby rendered disputable and uncertain-: For since this Author acknowledges, that the Titles of most Kings at this Day begun by unjust Conquests or Usurpations at first ; the right Heirs of many of which expulsed or deposed Princes are still, or were lately in being j they might upon this pretence make War upon the Prince in Possession and his Heirs, to the World's end : And tho' I grant, he fays, that an Usurper is to be fully obeyed, when the knowledge of the right Heir is lost by all the Subjects, it is extreamly uncertain and doubtful what he means by it; for if he means a personal Knowledge, sew ordinary Subjects, but those that have personally known all the Royal Family, can thus know who was the right Heir; and so consequently, as soon as ever his Father or Ancestor that held the Throne is turned out, or dead, few private Subjects can have any personal Knowledge of this Heir. But if he means a Moral or Traditional Knowledge, such as is conveyed down to Posterity by History j Authentick Records, or Genealogies; I know not how such a Knowledge can ever be said to be lost, as long as such Histories or Memorials remain in being: And that this is so, is apparent, many Princes in Europe having -upon this ground better Right to the Crowns of some Neighbouring Kingdoms, than those that wear them : And we know that by virtue of such an old Title from Charles the Great,the King of France looks upon himself to have a good Title' to Aljaiia, Flanders, and all the Low Countries, and as much o( Germany as he can get: S\) that I will leave it to your self to judge, whether these Principles do not only render the Titles of 'most Princes doubtful and uncertain, but the Subjects Allegiance too. ■■•■v.. - .'

M. I cannot deny, but Sir R. F. may have carried this Point of Obedience and Submission to Usurpers, and of a concurrent Right in the lawful Monarch and his Heirs, a little too far. For I think it were much better to suppose with Grotius and other Writers, that after the third Generation, or Succession of the Crown in the Family of the Usurper, they may have a good and perfect Title to their Crowns, against the right Heirs of the lawful Monarch; (and this I take to be highly reasonable for the Peace and Welfare of Mankind) than that they should be always divided in their Allegiance between two opposite Princes; but till then> I suppose the Subjects are bound to assist, and stand for the lawsol Heir and his Posterity, as far as is possible, without their own apparent Destruction.

F. I confess this Supposition is much, more reasonable than the former; but I (hould be glad to know by what Law of God or Nature, the peaceable possession of a Crown, by an Usurper and his Heirs, just for three Generations or Successions, should give a Prince a better Title than three or four Years Possession ; for God may have declared his Will as sufficiently in that time, as in three or four hundred: And if your Reason be good, that it is for the Peace and Safety of Mankind, that the Title of the right Heir should be lost and extinct after such a time; * I cannot see why it should not be more for the good of Mankind, that their Allegiance sliould be settled and ascertained in a far less space, that is, as soon as the Conqucrer or Usurper is quietly settled in the Throne, and hath received the Consent or Submission of all the Subjects, But. I do not desire at present to enter' any farther into this knotty Dispute about Conquest or Usurpations, but I rather desire to refer it to our next meeting.

M. Well, since you will have it so, I yield to it; but in the mean time I cannot but smile at your great partiality to the People, who upon yo.-.r Principles, if they lave but once given their Consent to the Usurper, he flull presently have as good a Title as the most rightful Monarch in the World : So that Cromwell having had wisConsent of the'People m his MockrParliament, had as good a Title as King Charles II. 5>o that notwithstanding whatever you may pretend to the contrary, you are no »ch Enemy to Usurpers, as you would make your self: But however, you

have

"ith the highest Tyranny and Cruelty, 11 y Slaves to such a Con

witn inc b v rrintinue absolute buDjects, "<*/ mmurcrs be




ready given: Nor can it be the Usurpation or Acquisition or Hi* * ... . - . a Family; for then the Subjects not being the Children of the Conqueror or Usurper, must be all Slaves instead of Subjects: So that I must again tell you, that it is from your want of distinguishing between Paternal, Masterly, and Regal Authority, which hath led you into all these Mistakes in this Matter; for the Relations of a Father, a Master and a King, are all really distinct and different, so that one osthem is not the other, as any Man may easily perceive, that doth but hear the three Names pronounced to him, and consider their Signification: And therefore' quitting this subject for the present, if you have any better Arguments to prove your Divine Institution ot Monarchy, pray produce them, for it grows

— - re

prove JUIU

late.

M. I shall readily obey your Commands; but pray Sir, in the mean time remember that we assume this Question the next time we meet. But to come to the Matter in hand, I think there are yet some material Arguments behind, to prove Monarchical Government of Divine Institution : For in the first place, you may please to remember, that you your self have acknowledged that all Civil Govern' ment proceeds from God. Secondly, You have likewise admitted, that the Govern, ment of Fathers, or Heads of Families, was the first and most ancient Government of any in the World after the Fall; when some Government became necessary for the Punishment of Offences, and the restraining of the inordinate Appetites and Passions of Mankind. And lastly, That this Government having absolute Power os Life and Death, in some Cases, over the Wise, Children, and Servants of the Family; and that if this Power is conferr'd upon them by God (which you likewise granted) and doth not depend upon the consent or compact of the Wise, Children and Servants: If these things were so, I leave k to your self to consider from the Premises, whether this Power in Heads, or Fathers of Families (call them which you please) is not a MonarchicalPower, or the Government of one Man, and that ordained by God; and that this was the only Government in the World, before the Institutions of Commonwealths, you your self cannot deny.

F. I shall shew you plainlv, that you would impose a Fallacy, cither upon yoi-r self or me in this Argument, and such a one which I have likewise already answered at our last meeting: For I then told you, that the Government of such Heads or Fathers of Families was only an Oeconomkal, and not a Civil Power; and this I proved by divers Arguments against what you then argued to the contrary; and therefore I think I may yet safely affirm, that Kingly or Monarchical Power cannot be proved to be of divine Institution by this Argument; and I have , a greater Man than Sir R. F. viz.. tire Judicious Mr. Hooker on my side, who makes a plain distinction between such a Head, or Master of a Family, and a King, as appears by these words in his Ecclesiastical Policy, which I desire you K-oker's Ecd. would read with me: It is no improbable Opinion therefore, which the Arch-philosopher sol. lib. 1.1;. Tom of, Tlhtt the chief Person in every Houjhold was always, as it were, a King ; sowhen 10- numbers oj Hmtfiolds joyned themselves in Civil Societies together, Kings were the first kind

0} Governors amongst them; which is also, as it seems, the reason why the Name of Fathers continued still inthem, who of Fathers were made Rulers; as also the ancient Customs of Governors to do as Melchiscdeck, asbeing Kings to exercise the Office of Priests (which Fathers did at the fi) fi) grew perhaps by the fame occasion.Howbeit this is not the only Lind of Regiment that hath been received in the World, t/je inconveniences of onekind have caused sundry ot/xrs to be devised. So that in a word, all Civil Regiment, of what kind soever, seemsevidently to have risen from the deliberate. Advice, Consultatifij, and Composition, between Men judging itconvenientf.vid Mpfnl, there being no impossibility in Nature

consider d by itself, but that Man might have lived WithofU any Publick Regiment. So

that Dialogue the Second.

that you may see, that tho' he places the Original of als Governments in the Heads or Fathers of Families (which Opinion I shall not oppose) yet it is plain that he makes a clear Distinction between Oeconomical Government,and that Politick or Civil power, which arises from Compact between Men. JSo that this will not serve the purpose you bring7"" it for. You •may now proceed to what other Arguments.and Ihstahce's.you please; but pray do not make- use any more of the Examples of the •Patriarchs either" before or after the Flood^fince they are, either altogether uncertiirii'tir.We as tb those after, the Flood,,! have proved" them to have been "not

X^egal"

JM: I shall hot ahy longer rrifirtu^h tf^rgj/ fin<Æ you, will not admit of those Inu^htes/tho' I fhihk there, may'be'a grqitdeal ot weight in them i But; thus much'I suppose you carinor deny, as well from the Testimony of sacred as prophane History,* that Monarchy is the first and most ancient Government in the World, as appears by those Remains we have left concerning the Egyptian and Assyrian Monafeties!) And as-for the Government of.God's own people the jew, he was pleased to be King Over them'himself, tho'to govern by his Viceroys, till such Elme al he' was"pleased to make Saul and'- David Kings over them.; Now what

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of

'its* D^Ajine ^Institution; it may lfideed be ah Argument to prove that Monarchy was tkt^fctoturaVtr<hmnniet%t'. 'because the most simple and easy for Men to light ton';'and Jo'no' cfeubVit VaS 'in 'the first. Ages ot the World, before Ambition, ^Avhric'e '-itid Ltixwy%-i& debauched the Minds of Monarchs, the best sort of Government. Andlp on the other side, there is this to be objected against it, that the letting up of so -many Commonwealths upon the Ruin<s of Monarchies, shewed that Men found great Mischiefs and Incbnveniencies in that fort of Government, when, once it grew Tyrannical, or else they had never departed from it ; and this made them, as Brutm said at the beginning of the Roman Commonwealth, to invent other sorts of Government, which might partake of all the Benefits without fchVIhcbnveniancies of absolute Monarchy.

VBut as for your Instance of Gods being himself King over the People of Israel, tKis'touithesri6£ the Question in hand, since that being a Theocratical, and not a Civil Cornmc^ealth^ could concern no other Nation but themselves : And as for your «hef .Instance'of God's making SduIKinfy I hope you will not bring that for an Argument of His Approbation, which it appears he was so angry with the Israelites for desiring; and tho* ft is true, he did at their Request make them a King, yet K'^m.apparent God' would have been much better pleased had they still continued without one': So1 that I think there can no conclusive. Argument be drawn from any "Examples in' the Old 'testament, to proye, Monarchical Government to be of Divine Institution, '■" /-i • Lulvj.-* ■ .u

 M. Well, however slight, you make £f $y Authorities out of the Old Testament, yet J'hope Tlhali be abse' to'shew rnore! cogent ones out of the New, to prove, ih^J^onanln is the only Power instituted^ot so much as taken, notice of, by our saviour Christ 'arid his Apofllf.s. And therefore when he would command the Pharisees(b yield OoediencVto the Supreme Power then in being, he bids them, upon' their stiewirig lum 3c Piece of Money, !ijo.-render to Cæsar the things that are Caf-Matt.a2.11 fax's; not taking any notice of the Senate orPeople, whose Authority these CaJ'ars r.P.O. had'iisiirped. And if St. jP'aul, in his.EJustle. to the Romans, had only said, Let every 'Soul be sub jell to the Higher Power's*, ,anji said Bo-more; then Men might, indeed have disputed, whether;St, Paufoy fiigher Pot^i had not meant as well other Governors is Kings, or other Forms of Government as Monarchy. But the g'obd luck is, St. Paul hath been his own Interpreter; for, after the general Doctrine of Obedience to be given by all Men to the Highe^ powers, he proceeds next to chaige it homer upon each particular tyian's Conscience, under pain of damnation, . saying. Wilt thou not be afraid of'the\\Power?which Power he expounds in the Singular Number, restraining it to one Person: He is the Minister of God to thee,&c. It is not,' They are the Ministers. And then again, He beareth not the Sword in vain. And a third time, in the &me Verse, lest we sliouldTorget it, he fays, For he is

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there is this difference, that whereas St. Paul useth
the Word in the
Plural Number, St. Ptier hath
it in the Singular, and with Application to iheKing
Only, without taking any notice of any Governors but Kings; and those'sent by
them. And it f$ farther to be noted, that St. Peter and
St. Paul wrote
their epistles
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at a time when the Roman Senate
had some share in the Government; and thatir
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was (in appearance at least) a Commonwealth: So
that some Authors suppose, that
notwithstanding the Emperors by strong hand had usurped a Military Power, yet
a great share of the Government was for a long time, nay even then, in the Se-
nate and People. But for all this, neither of the two Apostles take any notice of
any such Popular
Government; no, nor
our Saviour himself, who divideth all be-
tween God and
Cæsar, and
allows nothing, that we can find, for the People oc
Commonwealth. _
• '•

F. I think your Quotations out of the New Testament will prove of no more weight than those from the Old,and that they will not make out Monarchy to be of Divine Institution, any more than the former: For ourSaviour's Answer so the Jews signifieth no more, than that Tribute, and all lawful Dues, were to be paid to Cafar,as the Supreme Power then in being; to answer those Jews, who doubted whether any Obedience were to be given to a foreign Prince of another Religioh than their own. The like Answer may be given to what St. Paul says in the Ro~ mans, Let every Soul be fubjeSl to the highest Power; which was chiefly directed tp the newly convertedJews, who might doubt, as welt as their Countrymen in Judea, whether they were bound in conscience to be subject to Heathen Magistrates; as also against the Sect of the Gnosticks (then newly sprung up) who, tho they called themselves Christians, yet looked upon themselves to be thereby discharged from all Subjection or Obedience to Civil Powers; being those whom St. Jude Jude 8. exprefly speaks against, Who despise Dominion,and speak evil of Dignities* And therefore when St. Paul speaks of such Higher Powers, it is not in the Plural, but Singular Number, terming him, the Minister of God; because that at that time there was no such thing as aCommonwealth (as he knew of in the World) the, two greatest Empires, the Roman and the Parthian being then governed by Monarchs, The like I may fay to that other Text you have quoted out of ^t: Peter, which may very well be reconciled with that Place of St. Paul; tho'the one called the Higher Powers, the Powers ordained of God;and the other calls them, an Humane Ordinance, or Creature (as it is in the Original) since they certainly derive their; Authority from God, tho' by the Mediation or Consent of Men

And I believe you will prove mistaken in affirming, that the Senate or People had any Power when St. Peter and St. Paul wrote these Epistles: For it plainly appears, that whether these Epistles were written in the Reigns ofClaudim or Nero, the Government was then wholly in the Roman Emperors: For tho' I grant, that during the Time of Augustm the Senate had some shadow of Power, and that divers Provinces were under their Government;yet by that time Tiberimhid reigned but a few Tears, he quite took away all Power from the Senate, and made them no more than what the Parliament of Paris are to the French King, meer Ministers of his Tyranny, and oblig'd to verify all his Edicts; and the Compliance and Flattery of these Senators was so servile, that they pasted whatsoever Decrees he sent them, without the least Hesitation; till it became so fulsome even to himself, that it made him cry out, O gens in fervitutem nata! So that all you have said on. this Subject signifies no more, than that our Saviour and his Apostles did not come into the World to dissolve or alter the Civil Governments, or the Policies of Kingdoms, but to command Obedience to them, as they found them settled in the World, as the moderate MelanEihon very well observes, Christm nou venit mutare Politiae.

And I doubt not, but if our Blessed Saviour had thought fit to come into the World about half an Age sooner, and to have been born and preached the Gospel in the time of the Roman Commonwealth, but fie would have commanded the Jews to have paid Tribute to the Senate and People of Rome, as well as he did to Cafar .And St.Peter would have enjoined all Subjection and Obedience to be given them;



{99}

and might have said with greater Reason of them, than of those subordinate Ma-* gistrates they sent to govern their Provinces; that they were the Ministers of God. And if your Arguments for the Divine Right of Kings be true, it would be nd Rebellion at this day for Subjects to rife up and destroy the Supreme Powers in allCommonwealths, because they are not Monarchical; and consequently those, in relation to whom God hath left us no Rules of Obedience. Which Doctrine if any Man should offer to preach in the Territories of Venice orHolland, I think, in the former the Preacher might very deservedly be sent to the Gallies, and in the latter they-would at least fend him a Pair of Shoes. But if you have any thing farther to urge for the jfure Divinojhip ofMonarchy, pray will you let me hear it, for I am weary with answering such Trifles.'

M. I confess I have not much to object against what you have now replied, and therefore I shall insist no farther upon it; only thus much I am satisfied of, that God, by his own Example, as well as Institution among the Jews,seems , more particularly to have approved of Kingly Government (and that absolute too) than any other. Not that I will condemn all Commonwealths as unlawful, but that as being Sovereign Powers, they may be also ordained of God. "' But I have another Objection to make against your Hypothesis, and that is, you IriVe in your former Conversation supposed a natural Property in things, precedent to Civil Government, which can scarce be understood. For by what Right can any Man lay claim to any Property, but by the Laws of the Government in which he lives? And how can there be any such Laws before there was some Supreme s. p. p. Legislator to make them? So that the only way (I know of) to solve this Difficulty, is to suppose, that the sole Dominion of things was in Noah after the Flood.; and that whatsoever Property in any thing his Posterity possess'd in scvefa^tfiey enjoyed it by hisOrant and Allotment, and in virtue thereof transmitted the same to their Posterity, without waiting for the Election or Consent of the People, or entering into any Articles of Capitulation with them whom they were to govern, as you suppose was necessary for the first Institution of Civil Government. And the Texts in the tenth of Genesis seem to import as much : By these were the Ver. 5.32, JJki of the Gentiles divided in theirLands, every one after his Tongue, after their Families in their Nations. "These are the Families of the Sons ofNoah, after their Gener ations in Ver. 32. fkeir Nations; and by these were the Nations divided in the Earth afterthe Flood. That is,' not only the Nations themselves, but the Jfles or Countries of the Earth were divided by these Patriarchs, amongst their Posterities, into particular Shares and Territories.

Ants so likewise in all the Absolute Monarchies in the World, all the Property that Men enjoy, either in Goods or Lands, is either actually in the Prince, or else was at first derived from him; tho' I do not deny but when such a distinct Propriety in Goods or Lands is once instituted by the Monarch in any Kingdom, that he cannot again alter it or take it away, without manifest Violence and Injustice.

And hence it is that our common Lawyers maintain, that all the Lands in England are held of the King, either mediately -or immediately: For upon the Conquest by WfUiam the Conqueror, all Mens Estates were thereby vested in him. So that there is no. way so natural and easy to solve all those Difficulties that do arise concerning the Original of Civil Gove,~nment and Property, than to make them begin together in the Persons of Adam andNoah, and thence deriv'd to all their Posterity: So that whatfover absolute Dominion Princes or States have claimed in those Countries and Places, which they have either sciz'd upon themselves, as the first Occupants, or else have conquer'd from others, theyenjoy'd them meerly as they represented Adam or Noah, the first Monarchs of the World. Nor can we other way avoid these several other intolerable Inconveniences and Absurdities* that will follow from supposing an original Community of things, or that every Man at first might take what Quantity of Land he pteas'd, without the Authority or Assignment of any Supreme Power.

F. As to what you fay concerning God's approving Monarchy above all othef Governments, by his instituting it among the Jews, that way of arguing is very uncertain and fallacious; since one may by the fame reason argue, that the Ceremonial Part of the Mofaical Law was the best that God could have contrived, because he was pleased to prescribe it to the Jevos, during the time they should be under the Government of it. No doubt God prescribed them such a Govern*

O x ment

ment both in Church and State, as he thought fit for their present Occasion and Inclinations; but whether that were the best, or of perpetual Institution, is no , where said. '■ ,. ,

But as for the other part of your Argument, I thought you had been very well satisfied by what I said at our first Meeting, that neither Adam nor Noah had* by Grant or Donation from God, a sole Right to the Earth and all things therein. But since you are not yet satisfied with what I there said, I shall answer this Objection more particularly; and I doubt not but I shall make it so plain to you, that you your self ihall confess, that there is no such great Mystery or Difficulty in the tracing of Property, as also Civil Government, to their first Originals, with-* out supposing any such absolute Dominion or Property in Adam 'and Noah, or in any other Supreme Power, as their Successors. I shall therefore first of all remove the main Obstacle you have laid in the way, and shew you, that the Places of Scripture you have cited to this purpose do not prove the thing you intend them for. I did before shew you, that there was no manner of ground for Sir R. F.'$ Opinion, that none of Adam's Sons could have a Property in any thing, without} * Adam's Assignment; nor that any of Noah's Sons, when separated from their Fa-? ther's Family, could have any Property in any thing but by their Father's Donation; Scripture andantient History being altogether silent in these Matters. And therefore you are fain to lay hold of the first Place ofScripture that.you think might serve your turn, which will not do the business neither,> r .

For supposing I should grant you, that in the Dispersion or Division that was made of Mankind after the Flood over a great part of the World, the People that then followed their Ancestors or Leaders after this Dispersion (tho* the Text doth not mention any such thing) followed them as Princes or Monarchs; yet this will not prove what you would have, that these Fathers of Nations made this Division, of the Earth in right of chat Dominion which God conferred at first on Adam and Noah; since (as I have already proved) if this Division had been made in right of the Dominion that descended upon Noah, it ought to have been performed by the Authority of only one Man, and him the eldest Descendant of the eldest Son of Noah: And I have also sufficiently shewed you the Absurdity of this Fancy of such a Divine Right. And besides, it plainly contradicts it self; for either this Division you talk of was made in the Days of Noah, or it was not: If the latter, then it is apparent, that from the time ofNoah to that of Heber there was a Community of Things and Properties; tho' you have asserted the contrary: If the former, and that the Earth was divided before, then to what purpose was this Division in. the Days of Peleg?And tho' I grant, that about that time every Language or Nation might, under the Conduct of their Prince or Leader, seize upon some Territory or Island sufficient for them to inhabit in; yet doth not the Text tell us, whether the Country they lived in was by them divided into particular Shares, or whether they made use of it in common, as the Indians of America do at this day, where the Quantity of Land doth far exceed that of the Inhabitants that live in it.

Nor lastly, supposing that a Division was made of these Countries they then inhabited, doth it tell us, whether it was done by the sole Authority of their Prince or Leader, claiming as his own the whole Dominion of it, so that no Man could have Right to a Foot of Ground in it but himself; or whether this Division was made by the joint Consent and Agreement of all the rest of the Heads of Families, and other Freemen that went along with him. The Scripture is silent in these Circumstances, that only telling us, that the Great Grand-sons of Noah, mentioned Gen.10. The Ifles of the Gentiles were divided in their Lands, every one after hit Tongue, after their Families in theirNations; and that this Division was in the Days of Peleg: But no where declares, whether every particular Region or Country was then divided into distinct Shares or not.

And as for what you fay, that all Princes, and Conquerors of Territories and Countries, have the like absolute Dominion and Property in them, as Adam and Noah had over the whole World; if it were no more than that, I doubt it would be very little; since I have already proved, and I think you must grant, that no Monarch at this day can claim his Crown as the right Heir of Adam or Noah, or as their Representatives; and it will, I think, be much harder to prove, that the sole Property of an acquired Country or Kingdom must be in them by virtue of any such Right. But as for yemr Instance of WiUiam the Conqueror's having a Right to all the Lands in England by Conquest, since it requires somewhat a longer Answet than the Time will now afford, I shall refer speaking farther of it till another Opportunity : But pray, Sir, at present make me see a little plainer what those Inconveniences and Absurdities are that will follow from my Hypothesis, that God at first gave the World and all Creatures therein to Mankind, to be used and enjoyed in common, if they thought fit,

M. I (ball shew you some' farther Absurdities that will follow from- it than I have done already: For tho?Grotitu and Selien indeed maintain, that a Commu- r. 0>G; p. 4H. nity of things was by the Law of Nature, of Which God is the Author, and yet that-.fbch a Community should not be able to.contimse; seems to derogate from the Providence of God, to ordain a Community of tHirtes which could not contir"

And it seems also an Act of high Presumption in the Descendants of Noah; to abrogate the Natural Law ofCommunity by introducing that of a Propriety in.

thing*...-. - »•■*■« • " •7".'!'>! 1-. ■•° , •••:.;:> 

F^l pray give me leave to interrupt you, that you may not run on in i Mistake: ^Fot let Grotimm Selden assert what they please, I'&m not tied to submit tb * it * and therefore when I say, that God gave the World, and all the Creatures therein, to Men, to be used iff common, if they pleases I thereby understood"; that God hath by theLaws of Nature commanded notffing in this matter, but bath left the Earth and all things therein t6 be used in ttimmon, or in several, aS may best consist with the Convenience, Necessity, or Customs and Laws of each particular Nation or Commonwealth, who God designs-should live peaceably together, and make the best use of the Country where they inhabit, and the things' therein contained, for their-o^^^ommOfi Maintenancefand Safety, according t6 the -Expression of the Royal Pfalfttifi .- Bat the Earth hath God given to the Children of Msn, i.e.altthe Descendants of Adam. •>*''

M. Well, suppose it were foV1 the printd Duties of the Second Table are chiefly conversant about'thfe Right ofPropriety; but if this Ptopr&ty were introduced- by Ibid. Humane Laws or Agreements, as Grotitu and you your self suppose, then both the Moral and Divine Law would depend upon the Will of Men; so that there could be noLaw of Nature against Adultery or Theft, if Women and all things else had been in common.

F. This Objection wholly proceeds from your not having any distinct or true Notions of the Nature and true Original of Propriety; and therefore if you please to hear my Account of it, I hope you will grant (when I have done) that your Objection against the Community of things will be to no purpose. I do therefore in the first place distinguish between a Natural and a Civil Propriety: By the former Men might be guilty of Theft before CivilPropriety was instituted; but as for Adultery, that was always unlawful both by the Laws of God and Nature, which abhors Community of Women and promiscuous Copulations; and God hath particularly ordained, that theMan and his Wife should be one Flesh: And no Man, that maintains a natural Community of things, eves supposed that Women were amongst those things that were to be in common, or. that a Man had the fame kind of Propriety in his Wife, aS ^ his Horse; so that the Command against Adultery might very well consist with the Community of things^lw

M. Suppose I grant thisj I do not understand how there can be a natural Propriety, and yet a Community! in things, as you suppose.

F. I wonder you should no's he able to apprehend this, and have bean so often at an Ordinary and a Play-house: At the former, you know, tho' a Man hath a Right to his Dinner, yet all the Meat at the Table being in common, he cannot call any part of it his own, till he hath cut it or divided it from the rest; and at the latter a Man hath a Right to a Place either in the Box or in the Pit, and yet he cannot tell where it is, till he hath placed himself in it, or sent some body to keep it for him.

As. I do apprehend what you mean; but pray explain to me the Manner of this Natural Propriety a little more at large.

R1 would readily do it (since if that were well done, I grant it would be a great step to the clearing of the Original and Nature of all Civil Power) were it "ot n°w too late to enter upon so long a Subject; and therefore I think we may both be sufficiently tired with Talk, so as to put it off until another Opportunity, when I shall give you my Thoughts of the true Original of Civil Government, in' what fense it proceeds from God, and yet how far the Consent of the People is nescswry to make it obligatory on the Consciences of the Subjects; which when it is

once

once well settled, I hope there will be little need of disputing farther, whether this great Alteration hath been brought about by lawful Means or not.

M. I thank you for the pains you have taken to inform my Understanding in this matter: And therefore since 'tis now very late, I desire we may adjourn our Conversation to another time; and then I desire that you would prepare your self to discourse with me of the second important Question we agreed on, viz. the Irresistibility of allSupreme Powers by their Subjects; not not only because Resistance in any case whatsoever is inconsistent with Supreme Power, and destructive to the Peace of Civil Society, but chiefly as they derive their Authority immediately from God, and are only to render an Account to' him of their Actions. *

F. I will not deny but what you have said is true in some fense, That all Sovereign Power is derived from God,and is also as such irresistible by Subjects; but to affirm generally and absolutely (as most of your Opinion do) that all Commands and Acts of Men endued with this Supreme Authority, whether good or bad, lawful or unlawful, are part of that Authority derived from God, and therefore irre-? sistible in any cafe, or upon any necessity whatsoever, is so dangerous a Proposi-r # tion, that I know none that (hath contributed more to the Encouragement of the King, and the Popish Faction he favoured, to make all those Breaches upon our Laws, Religion, and Liberties, which we have suffered since the Beginning of his Reign. . ■ A:v::.cj \ . v:

M. I am so well pleased with the Freeness and Ingenuityjof your Conversation, that I desire nothing more than to discuss this important Question with you at our next Meeting: But I beg your pardon, if being taken up by some Business to morrow, I adjourn our next Meeting to the Day after, when, if you please to come at the same Hour as you did to night, you shall here find me ready to wait on you. In the mean time I must bid you good night. ;1 ,;

F. Your Servant, Sir, I wish you heartily good night; I will, not fail to meet you at the Time appointed. -



Bibliotheca Politica.

DIALOGUE III.



Whether Resistance of the Supreme' Power fy •„ *z Iu^/f Nation or People, in cases of the last Extremity, can hejustified by the Law of 'Nature, or Rules of the Gospel J.

F. M&&&£,M&OU are Welcome, Sir; I see you are a punctual Man to «£(9Sm3GX?£?8» your Word. Will you be pleased to sit down by the Fire^ 4| Q^^&S and drink a Disli of Tea?

.. *vm you b< ..w*

and drink a Dish of Tea?

As: I thank you, Sir: I assure you, I love to be punctual in small things, as well as in great ones, when I am not hinder'd or prevented by Business. F. Before we come to the Question we the last time : resolved to make the Subject of our present Entertainments it will*. I think, be convenient for me to look back, and see what I have already proved at our two former Conferences, viz,; i. That Adam h,A — -'

- uc convenient for me to lot . , xvw wnat i nave already

proved at our two former Conferences, viz,: '•*■

1. That Adam had not, either by natural Right of Fatherhood, or hy ^positive Donation from God, any such Authority over his Children, or Dominion over the, World, as you pretended.

2.: That if he had, yet ihis Sons or Heirs had no Right to it.

3. That if his .Heirs had, there being no Law of Nature, nor positive Law of God, that determines who is the right Heir in all Cafes that may arise ; the Right oi Succession, and consequently of tearing Rule, could not have been certainjy determined without the Judgment of the rest of the Children or Descent . dants of Adam. ... >. -.-j

. 4. > That the Knowledge of the right Heir of Adam (supposing still there , was one) being now long since lost, no Prince or.Monarch in the World can graft any Ticle.upon this Paternal Dominion of Adam or Noah.

y. That all Authority of inflicting Punishments of Life and Death, or other less Penalties, for the Breach of theLaws of Nature or the Transgression of the Civil Laws of the Commonwealth, is originally derived from God, as being that Bower with which God, in the State of Nature, hath intrusted all Masters or Heads of separate Families, and this not as Fathers, but as Masters.

<s. That since all Kingdoms and Commonwealths at this day do owe their Original either to the EUElion of the People, or to Usurpation or Conquest; God doth not now by the ordinary Course of his Providence confer thisDivine Authority on any Persons whatsoever, so as to give them a Right to the People's Allegiance without the People's Consent first had j or else an owning of their .Titles by a subsequent voluntary Submission to them.


{104}

As. I grant indeed, that you have with great Labour, and some appearance of Reason too, endeavoured to prove these Principles jou have here laid _down j^yet Hoover, thoVthe^

against the 'lajs, iFyou please* to hear me; For I think 'I can stew you a great . many evil Consequences that will follow from this Principle, cf making the CoÆit ot}Stik^ijfion of the People at all necessary to the conveying of a Supreme Powjr* or ofthat Divine Authority which you grant to b&de:riyejd.&om<36d-'h^h}fe^^ all Monarchs andSupream Magistrates in Commonwealths:'

P. I pray give me leave a little to interrupt you. I know very well what this evil Consequence is, of supposing, the Consent of the Peopseas a Means at all necessary for the conv&ing-of this Divine Authority; that Is, in plainEnglijh, because it will* destroy "your darling ipoctrine of Passive <)BEDrEN;cE^arrd NonResistance;therefore if 'it be so, pray let us rather fall presently to the Question it self, than argue by Consequences; which if we mould go that way to work, I have my Consequences likewise to urge, some os which I-have given you already. Therefore, if you please, let us begin a fairer way, and hear me propose those Heads, in which.I doubt Mt b^it we_flo b^oth-agre&j and then I will bring it to the majjr) Cafe oJrjQuestion,_jn vthkhvpt.rhaps we dfejr.

M. I confess I had somewhat more to say, which would have tended to prove this Doctrine of Non-resistance?pat, sices you are^ase^lo.DCÆposeraitothfA Mnwbd, which yon better ipp|3ve "of, Tain ready i.6compl

cts who are to live togetner in <t ^11111^.^,

That all Kings or Supreme Magistrates are likewise secured, by God's Authority, in those due Rights and Prerogatives, which are necessary for their well discharging this great Trust or Duty which God requires of them, and in '6<& stderation of which the People at first eletled or submitted themserves toshem. *

If therefore you grant, as I suppose you will, these twx> reasonable Propositions, the Question wi^l amount to no more than this.Whether^ if die Supreme Power, in any Kingdom or .Commonwealth, so far abuses this Txust, which<Sod by the People hath committed to them, and instead of preserving and-defending the Lives, Liberties, and Estates of their Subjects,.they manifestly go about to destroy or grievoufly to oppress them, by making them, inste*ad of Subjects, meer Slaves and Vassals ,• the Question, I fay, then is, whether, if such general^Vid* lence or Oppressions be committed upon the whose People, or so considerable 3 part of it, as that the Safety and Well-being of the Commonwealth cannot in any likelihood subsist without it; the People^ 'or the most considerable part of them, may not (in case their Lives, Liberties, and Persons ate unjustly assaulted and oppress'd by the Officers or Standing Armies of the Prince, or other Supreme Powers) for their own defence take up Arms to defend their .Lives, Liberties, and Estates, against such an armed Force and Violence. Where, by the way, I desire you to take notice, that I do here absolutely disclaim all Resistance of, or Self-defence against Civil Authority, or the Officers commissioned by it, by any private single Person, whether such Power be exerted according to Law or not, ot else abused in some cases to the Hurt or Destruction of such single Person o»ly. So that I suppose thisResistance to be lawful only in case of a general Destrul~ljmi ox intolerable Oppression, of the whole Pecpse, or at least a very considerable Part of them, and those that are in the chiefest Places of the Administration.- V \

M. I confess, the Doctrine of Resistance, as you have put it, seems at first som«what plausible, and to tend to the common Good and Preservation of the-People or Civil Society. But let me tell you, I am of opinion, that whenever it comes tobe put in practice, it proves (like the other Speculations of Commonweakhf-meti)more hurtful than beneficial to the common Safety and Presemrionof the Pdopk; and consequently more destructive to the main Ends of Government,; than conducive to the Good and Happiness of Mankind; and last of all, that suchResistance cannot well be maintained or executed without the Deposing er absolute Destruction of the Prince, or other Supreme Magistrate whatever may fce pretended to the contrary. And indeed it is almost impossible to suppose, that, any Monarch or Supreme Magistrate lhould ever (unless they were stark mad) purposely go

about about to kill or destroy their Subjects, in die Multitude aud Safety of whom con-1 fist his chief Strength and Riches. And you may as well tell me, that a Shepherd, whilst he is in his right Wits, should go about to kill or destroy his Flock, as that a Monarch mould wilfully intend to kill or destroy his People.

To conclude, since the People must be, in all Cafes of 'Tyranny or Oppression their own Judges, andExecutioners too; there is no Rebellion so rank and wicked, that this Pretence of a Self-defence of Men's Lives, Estates, and Liberties, may not justify ; whereas indeed it is contrary to all natural and Civil Justice, for the injured Party to be his own Judge and Executioner too: For then the other Side may pretend to the like Right, and the Trial must be referred to Force and Arms, in which Contention if the People are overcome, they are certainly reduced to a worse Condition they were before; but if the Prince or Supreme Magistrates have the worst on't, the Civil Power then in being is absolutely ruined : So that whether the People or Magistrate overcome, the State of both of them is very deplorable; besides divers other evil Consequences of this Doctrine, which I sliall defer, till I hear what you can fay to what I have now urged against your Opinion.'

F. You have made a very plausible Speech, in setting forth the dreadful Consequence of this Doctrine of Resistance in any cafe whatsoever; and I confess, if . what you lay down be true, viz.. that such Resistance always brings along with it greater Misery upon a People than what the utmost Violence and Oppression of Princes can produce, then your Consequence would be also true, that such Resistance is never to be practised upon any account whatsoever. So, on the other side, is that be not true, neither will your Consequence signify any thing.

I suppose you will not deny, but that there may be such a thing as a Tyrant, and that that part of Mankind who live under him may be sensible of his Tyranny; or else the Definition which K. James I. gives us of a Tyrant, in a Speech which he made to the Parliament in idoj. would be altogether in vain. But the Words are so sit for this purpose, that I will read them to you out of his Works. / do acknowledge, that the special and greatest point ofdifference that is between a rightful King and an usurping Tyrant, is this: That wher eas the proud and ambitiousTyrant doth think his Kingdom and People are only ordained for the Satisfaction of his Desires and unrea~finable appetites; the righteom and just King doth, by the contrary, acknowledge himself to be ordained for theprocuring of the Wealth and Prosperity of his People. And so likewise, in another Speech he made to the Parliament, he hath this memorable Passage : That a King governing in a settled Kingdom leaves to be a King,and degenerates into a Tyrant, so soon as he ceases to rule according to the Law. So that since it is plain, that the People may judge when they have a Tyrant instead of a. King to rule over them, and that under such a Tyrant the Condition of the People may be very deplorable; the Question still remains, what is best for them to do in this cafe? Whether it be better for them, or they are obliged by the Laws of Reason and Nature, patiently to submit to it? or else, if they can, either by their own Force, or the Assistance of a foreign Prince, to cast oft the Yoke? And I think I may still maintain, that they may do it, notwithstanding what you have yet urged to the contrary.

In the first place therefore, tho' you count it an almost impossible thing to suppose, that a Prince or Monarch would ever go about to murder or destroy-his Subjects; yet as incredible as it is, I can"; give you several Examples out of History, both antient and modern, that some Tyrants have been so brutish, as not only to endeavour it, but actually to put it in practice. Of the first kind is that of Caligula, whom Suetonim mentions to have wish'd, that all the People of Rome had but one Neck, that he might cut it oft" at once. The other is of Nero(in the fame Author, as also in Taci(m) who set the City of Rome on Fire, and consequently would have burnt all the People in it to please his Humour, and that he might sing his Ballad of the Destruction of Troy the more naturally whilst it burnt. A third Example I find related in Mocquet's Travels into the East Indies, of a cer- v,d.Moctain King of Pegu, about an hundred Years ago, who, by the persuasion of some quet'j ir* of his DiabolicalPriests or Magicians, took such an Aversion to his Subjects, that *ic/)> ub- * he was resolved to destroy them, and therefore forbid them to sow their Lands for^' two or three Years, by which means a great part of them died of Famine, or were forced to devour each other. And in such cases as these, I suppose, the Laws ot' Nature and Reason will justify Self-defence in the People ; and sure it had



been lawful for the People of Rome to have resisted Caligula's Guards, if he had gone about to put his wicked Wish into execution; or likewise to have resisted or put to death those Incendiaries they found firing the City, tho' they might have i had the Emperor Nero's Commission for it : So likewise sure it would have been

as lawful for the People of Pegu to have resisted those whom the Emperor might have sent to hinder them from ploughing and sowing their Lands. And that I am not the only Man of this Opinion, I desire you to consult whatBarclay hath, in his Treatise contra Monarcbomachos, which he writ against Buchanan, de Jure regni ap'udScotos, and the Author of Vindicia contra Tyrannos; where, tho' he be a most zealous Asserter of the unlimitedand imsistible Power of Princes, yet in his third Book, Chap. 8. he speaks to this effect ; the Sense of whose Words, as near as I can, I will give you in English.

"Now if any one should soy, But must the People always yield their Throats "to the Fury and Cruelty ofTyrants? Must they patiently permit their Cities to % u be destroyed by Hunger, Fire or Sword, and their Wives and Children to be

"exposed to the Lust of a Tyrant, and also themselves to be brought into the ut"most Dangers and Miseries of Life? Must that be denied to them, which is "the Right of aS Animals by Nature; that is, that they may repel Force with <c Force, and defend themselves from Injury? To this it may easily be answered, "that Self-defence,which is of natural Right, ought not to be denied to the Peon pie: And therefore if the King doth not only exert his Hatred against some "single Persons, but also shall go about to destroy the Body of the Commonwealths "of which he is Head; that is, shall exert his Hatred against the whole Peo/" pie, or some considerable Part of them, by an horrid and intolerable Cruelty or "Tyranny, there is a Power in the People, in this case only, of defendingitself, "but not of invading the Prince, or of revenging the Injury given; neither of de"parting from their due Reverence, because of the Injury receiv'd: In short, it "hath Right only of repelling a present Force, but not of revenging a past Injury; "for one of them indeed is from Nature, that we should defend our Lives and "Persons from Injury; and therefore the People may be able so prevent an Evil "before it be done, but cannot revenge it upon the King after it is done. There"fore the People hath this Right more than a private Man, that he hath no other "Remedy left him but Patience; whereas the People, if the Tyranny be intolef rable, may still resist, tho* with Respect.

In all which this Author hath there said we may easily understand his Meaning, unless it be in this of resisting Force with RefpeEl and Reverence .- For I cannot understand how a Man may fight against his Prince withReverence, or give his Guards a Knock over the Pate, or a Cut in the Face, with RefpeEl to the Princess Authority. But the Reason is plain why the People may act thus, because when a Prince once goeth about to destroy and make War upon his People, he doth not act then as a Monarch, but like a Cutthroat, and Enemy to the Commonwealth: And no Man can imagine a Will to destroy and to protect the People can at once subsist in the same Person.

M. But pray give me leave to interrupt you a little. I grant indeed, that by , the Political Laws of any Government, which are made to secure the Rights of the Subjects in their Lives and Fortunes, no Prince can or ought to take away his JZ. J. chap. Subjects Lives or Estates contrary to Law; yet by the I M P E R I A L L A Ws in every io. p. 203. Government, and by the Laws of the Gospel, which (as I shall hereafter shew) establish those Laws in all perfect Governments (and particularly in the Englijh) all these Rights legally belong to the Civil Sovereign, especially to be accountable to none but God, to have the sole Power and Disposal of the Sword, and to be free from all coercive and vindicative Power, and from all Resistance by Force. It is by these Common Lawsof Sovereignty, that the Gospel requires Passive Obedience, which is but another Name fos Non-resistance: These Laws are in eternal force against the SubjeEls in defence of the Sovereign, be he good or evil, just or unjust, Christian or Pagan ,• be he what he will, no Subject or Number of Subjects whatsoever can sift up his or their Hands against the Sovereign, and be guiltless by these Laws. Therefore for the SubjeEls to bear the Sword against their Sovereign, s or to defend themselves by force against him or his Forces, is against the Common

Laws of Sovereignty; and by consequence Passive Obedience, even unto Death, becomes a Duty in Sovereign Governments, by virtue of those Laws, andweare not to resist them upon any pretence whatsoever j but therefore all Subjects are

1 bound btrahd to suffer Death Wrongfully, rather than to resist: them upon any pretence or account whatsoever. So that let Popish Writers ,(tljo' never so moderates fay what they please concerning the Lawfulness of Resistancein some ca/es, yet we of the Church of England have learned better things from the Scripture and the Examples of the Primitive Christians, which we think our selves obliged most strictly to observe. And rherefore in relation to our own Government, and the present State of Affairs, I shall reduce all that i have to say against Resistance of the King,or those commissioned by him, into this Syllogism: Not to be resisted by the Subjects is an inseparable Right of all Sovereign Power*: But the King is here the only Sovereign Power. Ergo, the King is upon ho pretence Whatsoever to be resisted by his Subjects. So that, not to quarrel any longer about Words, Nonresistanceis the fame thing with Passive Obedience and Submission, and by consequence these are required by the ImperialLaws of the Government. Therefore whatsoever the Imphial Laws of the Government require of its Subjects, if it be not contrary to God's Laws, they are bound to perform it. But Passive Obedience, ot patient suffering of Injuries from the Sovereign, is not forbid by God's Laws: Arid therefore Subjects are bbttrld to perform it, where it is required by the Imperial Laws.

JR. I shall forbear to say ariy thing, as yet, concerning what t)octrines the Scrips tides teach; or the PrimitiveChristians practised concerning this matter, because I x desire to discourse that Question apart from this of the Laws of Nature or Reason, which we are now upon : Therefore I must tell you, that tho' this new Term ofIthperial Law ttf Nrfnrefistaike may sound very prettily to their Ears who iftind Words more than Sense; yet I must freely confess, that I am altogether a Stranger \ to this Notion of Imperial Laws,- as also df the Distinction you make between the Imperial and Political Laws of this Kingdom: And if. by Imperial Laws you mean those of the Roman Empire, 1 never knew that those Laws had any thing to do in England before, but always supposed the Political Laws of our Country to be the only Measure of the King's Prerogative, as also of the Subjects Obedience and Subjection. Nor do yoitr own Civil Lang, by as much as I know of them, make any difference between the Imperial and Political Laws of the Empfre; for by the one, as well as trie other, the Civilians understand such Laws ot Edifts of the Emperors, which, with the Approbation of the Senate, were made for the Peace and Well-government 6f the Comnidnwealth; but I never yet heard of any Imperial Laws, whereby the Emperor declared, that he had a Right to plunder or murder all the Citizens bf Rome, or that they believed they were obliged to suffer by your 'Imperial Laws withbut any Resistance. 1 am sure the Seriate and People did not believe, that the Emperor had any such Authority, when they declared Nero and Maximin, for their intolerable Cruelty, not only Enemies of the Commonwealth, but of Mankind'. But if by these Imperial Laws ofNonresisia'nce you riiean no more than what you laid down in your Syllogism, that it is an inseparable Right or Prerogative of Sovereign Powets, not to be resisted by their Subjects,, when you have proved this Proposition by ihe Laws of Nature and Reason, I shall then believe it. But as for your Conclusion, it being founded upon these Premises, it needs no Confutation,' fof if the Imperial Laws of Government do not require your PassiveObedience, rhen Subjects are not bound to perform it. And to shew yoii the Falseness and Absurdity of tin's Assertion, that whatsoever the Imperial Laws of any Government require of its Subjects, if it be not contrary to God's Laws, they are bound to perform it. Instead of\ Passive Obedience, or patient suffering of Injuries, let us insert, To give up to the 'Sovereign all our Civil Properties and Estates, if demanded by him, is not forbid byGod's Laws ; and therefore Subjecls are bound to perform it, whenever it is required by the Imperial Laws: For certainly the absolute Disposal of the Estates of the Subjects is is inseparable a Prerogative of Sovereign Power asIrresistibility it self; as I think I am able to prove, if you think fit to dispute that Question.

Bat at present I shall only confine my self to confute the Major in your Syllogism. In the first place therefore, though I do grant what you lay down for a Ground, to be true, That it belongs, to Sovereign Powers to beaccountable to, or pttnijhable by, none but God; yet, I suppose. Resistance of their Violence and Tyranny may very well be performed by the People, Without calling them to a Judicial Account, or erecting a Tribunal for that purpose: Cailing to an Account, and Punishment, are Acts of Authority of Superiors ovet Insefiors; but Resistancefor Self-defence . Pa is is a Right of Nature, and which no Man, by entering into Civil Government, ever parted withal, but out of Consideration of a greater Good to be obtained thereby, (vise.) his own greater Security, together with the common Good of that civil Society, whereof he is a Member; which, when by the Prince's Violence, it "is once like to be wholly lost, his natural Right of Self-defence, for the preservation of himself and Family,again takes place: Nor doth he then resist the Supreme Powers as such, but as Murderers and Cut-throats, who by going about to destroy the People have already lost all that Right they formerly had. And of this Opinion is that moderate Romijh Author, Barclay, before cited, who in the i dth Chap, o'f the Book last quoted, hath this remarkable Passage.

"What then? Can there no Cafes happen in which it may be lawful for the "People, by their own Authority, to rife up, and resist a King governing Tyrami*' caliy? His Answer to this Question is, there are certainly none as long as he * continues King: for the Scriptures forbid it, which fay, Honour the King, and % "he who refisteth thePower, rejifieth the Ordinance of God. Therefore the People

'* can have no Power against him, unless he committeth something, by which he •. "may cease to be Kingj for then he himself abdicates his Kingsliip, and becomes "a Private Man; and by this means the People being madefree, that Right re"turns to them, which they had before the King was made: But there are but ** few Facts of that Nature, which can produce such Effects. And I cannot, "when I think of it, find more than two Cafes, in which a King doth ipfofaflo "make himself no King, and thereby depriveth himself os all Honour, Regal Dig"nityand Power; (which also Winzerm takes notice of.)" One of these is, if he destroys his Kingdom, and then give us the Examples of Nero and Caligula, as I have already done; and next proceeds to this purpose, that when any King designs, and doth scrioufly endeavour " to put this in practice, he casts off'all care and de"sire of governing; and therefore thereby loses his Empire over his Subjects, "as a Lord of a Servant loses his Dominion over him, by giving up all Care,

* Lib. i. f.4." and Government of him." And of this Opinion likewise are * Grotim. and Puf

* 7.11. fendorf f, the two best, and most learned Writers on this Subject. Who do not t Lib. 7. c. 8. tnink it "inconsistent with the Rules of the Gospel, for Subjects to resist the King, $ 6- « if with a hostile Mind he seeks the Destruction of his People; for, fays the for

"mer, the Will of commanding and. destroying cannot consist together : And "therefore he who professes himself an Enemy of the whole People does thereby "abdicate the Kingdom ,• but that can scarce seem to happen in a King in his "right Wits, and who commands only one Kingdom. But if he commands more "Kingdoms, it may so happen, that he would destroy the People of one Na- • "tion to gratisie the other, that he may there makeColonies of them." And this, I suppose, Grctitti spoke in relation to the King of Spain, who (they say) had declared, that if he overcame the Dutch, then in Arms against him, he would fell the People for Slaves intoAmerica, and people the Country with. Spaniards. M. You very much mistake me, if you think, by Imperial, I meant the Roman , # J. Ibid. Laws, but only the common Laws of Sovereignty, which, though they destroy no Man's natural, or civil Rights, yet both grant, and confirm unto the legal Sovereign, in every Government, theEssential Rights of Sovereignty, of which I take Non-resistance, not only for Wrath, but Conscience sake, to be one of the chief. And therefore it were much better to venture the utmost that a Tyrant can • do towards hisPeople by destroying them, than to give the least inlet to Rebellion, by supposing the People may in any case whatsoever resist their Prince. For granting the worst that may happen,that a Prince once in a thousand Years should be so wicked and malicious, as to go about to destroy his People, yet he could scarce find Means and Hands enough to bring it about: And admit he ihould destroy, by his mercenary Forces, thirty or forty thousand of them, it were better all these should perilh, than that the Nation sliould be involved in Civil War, and the ^Prince's Person and Government destroyed by Resistance. And therefore in all Governments whatsoever, whetherMonarchies or Commonwealths, there must be an absolute Trust placed by the People in one, or more Persons, which Trust they can neither recall when they will, nor yet resist upon the Non-performance of it. And therefore it is a Mistake, when you affirm with those Authors you have quoted, that a King, or other Supreme Powers, can ever lose their Right, by going about to destroy the People, much less when they only think their Liberties in danger ,• and I have several Reasons to give you for my Assertion.



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As first, from the common Notion of a Trust; for what is more generally under- V. J.R.p.6. stood by trusting another, than that we lodge oursConcerns with him, and put them out of our Disposal? When I trust a Man with my Life, or Fortune, all Men agree, that I put it in his Power to: deprive me of both: For to deliver any Property to another, with a Power of Revocation, is to trust him (as we fay) no farther than we can fee him. He that can recover a Sum of Money he hath deposited, when he pleases, to speak properly, hath it still in his Custody, and trusts his Friend:no more than he doth his own Coffers; and therefore, if we consult our own Thoughts' we shall find, that a Trust naturally implies an entire1 Reliance upon the Conduct and Integrity of another, which makes us resign up our Liberty or Estate to his Management, imagining them safer in his Hands, than in our own. In short, a Trust, where there is no third Person to judge .of the Performance, (as in these Facts between Subjects, and Sovereign, there is not) I fay, such a Trust includes a Translation of a Right, and in respect of the Irrevocableness of it, is in the Nature of a Gift. So that there seems only to be this difference between them, that a Gift ought to respect the Benefit of the Receiver, whereas a Trust is generally made for the Advantage of him who conveyed it.

And in every civil Society, or Government, under Heaven, that doth not de- B. D. F. p. 8 pend upon another, th§re must be an absolute and uncontroulable Power fixed somewhere, which may irresistibly dispose of the Lives, Estates and Persons of the Subjects within that civjl Society, orG°vernment. For if every Man be- left at Liberty to . dispose of his own Estate and Person, as he pleases himself, then can he pro.mise himself no Protection, but what his own natural Force will afford him; and that will certainly be overpowered at one time or other by others. Without this Trust there can be no Justice^administred within the civil Society; for if every particular Man may be Judge in his own Case, the Right will certainly be asserted on bpth sides, tho' it really can be but in one: No Malefactor will ever condemn himself, nor submit to Justice, if he can, and may resist; and if a War happen, every Man will be for saving his own Goods from the Expence, as his own Person from the Danger of it j and the Consequence must be, that that Civil Society must perish either by internal Disorders, or externalForce.

Therefore this Power is, and must be in one Person, or Body of Men in every U.pag. 9. Civil Society, and is also indivisible: For supposing that it should be divided in the same Civil Society into two, or more Parts; as between two Men, and two Senates, or Councils,without any dependance upon each other, or any third Power, the Consequence must needs be, that they differing, and opposing one another, and having no lawful Power fixed in.either of them to oblige the other to submit, must have recourse to Force and Arms: So that this Civil Society can never rest 'till this Supreme Sovereign Power be reduced again into one. And if you suppose this Power ofjudging, and resisting in the People, or Multitude, the matter is ten times worse; that being a blind, and heady Monster, easily provoked upon slight Occasions, commonly judging false, even in its own Concerns, and as implacable in its Rage, as unfatiable in its Revenge.

To conclude: Whether this Supreme Power be in a single Person, or in a few, or in all, where ever it is lodged, none must oppose, none must resist it ,• nor can any Man assure himself of more Justice, or better Usage from aSenate, or a Multitude, than from a Prince, or single Person. So that this Inconvenience of being liable to have our Lives sometimes taken away, our Persons injured, and our Estates oppress'd by the evil Management of our Governors, is one of those hu* mane Miseries, that, by the Corruption of Men's Nature from the Fall, took Possession of the World, and can never be purged out of it 'till the final Conflagration. And therefore the Advice of Cerialis in Tacitm is always to be remembred, That "Tyrants and evil Princes are to be born with, as immoderate Rains, "and unkind Seasons, and amends may be made by a better Successor:" Since Resistance will not cure, but only inflame the Distemper.

F. You have made a long Speech, wherein I see you have heaped together all that Wit or Interest can produce on the behalf of Tyranny; though I must confess, I did not expect to find you, of any Man, so zealous an Advocate for it. But I forgive it, as long as I really believe,, that only a mistaken Conscience, and not any private Interest, prompts you to it. But that I may take your Speech to Pieces in order to answer it: In the first place, as to what;you fay concerning a Trust, I think you are under a very great Mistake. For no Man, either in a Civil



State, or in that of Nature, ever yet so trusted another, as that, if he abused his Trust, he had not reserved to himself a Right of Appeal. Under all Civil Governments this is notorious, since it is one of the main Businesses of Supreme Courts of Justice, upon Complaints, or Appeals, of Breaches of Trust, to call theTrustees to an Account, and force them to make Restitution for the Wrongs they have done. And whereas you fay, that in the State of Nature, where there is no third Person to judge of the Performance, such a Trust includes a Translation of Right (as in these Facts between Subjects and Sovereigns:) This is likewise a Mistake, though it be true, that in that State, if I trust a Man with my Life and Fortune, I put it in his Power to deprive me of both; and that this Trust naturally implies a Reliance upon the Conduct and Integrity of ahother, which makes me resign my Liberty, or Estate, to his Management ; yet doth it not therefore follow, but that upon the abuse of this Trust, I may have a Remedy ^ against him, who thus breaks this Trust I have so reposed in him. And when

there is no third Person to judge between me and my Trustee, I my self am the sole Judge of the Wrong he doth, me; and may not only turn him out of his Trust, if I rind he abuses it, but may also force him to make meSatisfaction for the Wrong he hath done: So that, if in the State of Nature I trust a Man with a Bag of Silver to keep forme; if he either imbez,els, or runs away with it, Inta^ certainly force him to make me, Restitution, or else enter into a State of War with him 'till he do: And where there is nO common Power over us to whom wtf ^CahAppeal, this Differeitce can no way be decided but by the Sword. And therefof'e'fcb Truft (as in those mutual Facts between Subjects and Sovereigns) can be irrevotable, or include a perfect Translation of a Right; and noTrust cart ever be supposed to be given but with this tacit Condition, that the Trustee doth not abuse it. And you yourself have made a sufficient Difference between, a Trust, arid an absolute Gtft; but granting that a Gift respects the benefit of the Receiver, whereas a Trust is for the Advantage of him who conveys it. From whence it must necessarily follow, that if this Trust be for his Advantage, he hath still an Interest in the thing trusted >, and consequently may call the Trustee to an Account in the State of Nature, and upon Satisfaction denied, appeal to God himself by Battel, or Combat. So that if the Supreme Powers are but Trustees of the People, they may beresisted, when by going about to destroy them they break their Trust. r; 1 :•

But as for the other part of your Argument, that in all Civil Governments under Heaven, there must be anabsolute and uncontroulable Power fixed somewhere, that may irresistibly dispose of the Lives, Persons, &c. of the Subjects. This, tho' it seems a better Argument than the former, yet is all one in effect; for the Question is still, Whether the People ever reposed such an absolute Power in their Supreme Magistrates, or not? I grant indeed, that as far as they act as the Nature of Civil Power requires, they are not by any means to be resisted. But the Question still is, Whether, ✓ when a Prince makes War upon the People, or goeth about to destroy them, there is then any Civil Power in being; and whether the Government be not already dissolved, since the main Endsof Government, viz,, the Good and Preservation of the Subjects, are quite destroyed. And now pray tell me which is most suitable to that prime Law of Nature, the Endeavour of the Good and Happiness of Mankind, that a wholeNation should be enslaved, or destroyed by the boundless WiU of a Tyrant, or that Rulers should be sometimes resisted when they grow intolerably Tyrannical, and abuse their Power, to the total Destruction of the Lives and Properties of their Subjects. So then, if filch an absolute Arbitrary Power in Princes, or States, can never consist with the main Ends of Civil Society, the Peace and Happiness of the Subjects, it is plain, that whenever they are reduced to such a State, they will look upon themselves as again in the State of Nature ; Nor would they have ever quitted their natural Freedom, and tied themselves up from providing for the Security of their Lives and Properties, by such means as they might before have justly exercised, had it not been to obtain these Ends with much greater Certainty by entring into Civil Society, and by fiated Rules of Right and Wrong, to secure their Lives and Properties with their future Peace and Quiet, by surer means, than they could hope for in the meer Stateof Nature.  ■'•.<

For it cannot be supposed that the People would ever confer such an arbitrary miittiited Power &i one Man, or many, over their Lives and Estates, that they »- - * might 

might take them away without any just cause; for this were to put themselves into a worse Condition than themeet State of Nature, wherein they had a Liberty to defend their just Right against the Injuries of others, and were upon equal terms of Force to maintain it, whether invaded by a single Man, or many in a Combination: Whereas by supposing they have thus given up themselves to the 1. T. G.part absolute Arbitrary Power and Will of a single Person, they have wholly disarmed z- fthemselves, and only armed him to make a Prey of them whenever he pleases j he being in a much worse Condition thatj is exposed to the Arbitrary Power of one Man who hath the Command of iooooo Men, than he that is exposed to the Arbitrary Power of iooooo single Men, no Body being secure that his Will who hath such Command, is better than that of other Men, tho* his Force be iooooo times stronger.

To conclude, granting a Supreme Power to be plac'd somewhere, either in a single Person, or in many, yet it can by no means be absolutely Arbitrary and Irresistible over the Lives and Fortunes of the People j for theirAuthority being (as I have already proved in the former Conference) no more than that Power which God hath granted to every particular Head of a Family, and other Freemen at their own disposal, for the security of their own Persons, and the common Good of those whom God hath intrusted to their Charge, they cannot confer upon the Supreme Magistrate any more Power than what God hath conferred upon them before, and and so can be no more than those Persons had in the State of Naturei before they enter'd into Society, and before they gave up their Power to these Supreme Magistrates, viz. that only which God had before trusted them withal. Now (according to your own Principles) no Man is trusted by God in the State of Nature with Hid. t. 355. an absolute Power over his own Life, much less to destroy or take away the Life or Property of another, and therefore cannot convey any such Power to those he would entrust with it. So then if a Man cannot subject himself to the Arbitrary Power of another, neither hath he in the State of Nature such an Arbitrary Power over the Life, Liberty or Possessions of another, but only as much as the Law of Nature gave him for the preservation of himself, and the common Good of Mankind; this is all he doth, or can give up to the Commonwealth, so that if it can have no more than this, itsPower, in the utmost bounds of it, is still limited to the publick Good of the Civil Society.

All which, if duly considered, the rest of your weaker Arguments are easily answered: For supposing but one Prince in iooo Years so wicked as to go about to destroy his People, it will then, whenever it happens, be as much their Right to defend themselves, as if it were to happen every Year. And tho' you assert he could scarce find Means or Hands to bring it about; yet that makes nothing to the purpose; for if he hath no Right to destroy* 30 or 40000 of the Subjects (as you suppose he may by his Mercenary Forces) then that 30 or 40000 may defendthemselves if they can: For when once a Prince hath thus enter'd into a State of War with his,People, who can tell when or where it will end, or can assure himself that he shall not be the next Man that shall be destroyed! And it is very pleasant that you allow the Prince this Power of Murdering to avoid Civil War; as if there could be no War begun unless there be Fighting on both sides; whereas Mr. Hobbs himself acknowledges, the very assaulting or setting upon any Man, to be entring into a State of War with him And sure, I think, to fall upon the People without Cause, and killing 30 or 40000 of them, is entring into a State of War, or else nothing is : And therefore you mistake the Question, when you argue from the Indivisibility of the Supreme Pc*.\xr that it must not beresisted; for the Question is not here, whether it be divisible or not, but whether it be not absolutely dissolved by thus entring into a State of War with the People, whom all Civil Magistrates are supposed to protect when they assume the Government. •

Nor doth this give any countenance to Malefactors or other single Persons, to rise in Arms and defend themselves against the Supreme Powers, when they have offended against the Laws, or that they think themselves injured by the undue execution of them; since such Abuses of Power cannot suddenly, or upon every flight occasion, disturb the Government. And in the case of Malefactors, the Supreme Power is still sure to have all the rest of the People on its side, for their own Security: And in case of iome Murders or Oppressions committed by such Supreme Magistrates on the Lives or Estates of some private Persons, tho' I suppose that even such private Men have a Right in the State of Nature to defend their Lives, and to

recover by Force, what by ### Force is taken from them; yet this Right must first give place to the publick Peace and safety of the Commnwealth, whereof they

are Members, which must not be disturbed for the fake of a few: And of this the People themselves are so sensible, that it is almost as impossible for a few oppressed Men to disturb the Government, where the Body of thePeople do not think themselves concerned in it, as for a raving Mad-man or beady Malecontent to overturn a•weUsettled State; the People being as little apt to follow the one as the other. So On the other side, whenever the People are once convinced that their Governors, instead of protecting, go about to destroy them, it is as impossible for any Man to persuade them not to take up Arms and defend themselves against them, if they are able to makesufficient Resistance. And therefore tho' I so far agree with you, that some Oppressions and Violences may be practised in all Civil Governments whatsoever, since such Abuses will continue as long as Men are Men; yet doth it not therefore follow that the Supreme Powers must always be born withal and never, resisted, no not when they go about to destroy the whole Body of the People.

As. But pray tell me, is it not a very mischievous and unjust thing, that Subjects should be both Judges andParties too in their own Case; since they may pretend that the King goeth about to destroy or ensiave them, when really he does not design any such thing; and would not this bring all things into Anarchy and Confusion ? I sliewed you the fatal Consequences of this at the beginning, but you have not yet thought fit to answer them.

F. I beg your Pardon, Sir, I have been so taken up with answering the main Arguments that you have proposed against this Right of Resistance, that I have not had time to consider this Objection, which is but a Consequence thereof: And therefore in the first place give me leave to ask you this Question; Suppose you were Master of a separate Family in the Indies, and a Neighbouring Prince or Cacik of the Indians should come to kill you, or to drive you out of your Plantation, might you not"defend your self, because you are both Judge and Party too in your owrf Case? Or suppose you should so far abuse this Power of Self-defence, as to pretend this Neighbouring Prince was coming to assault you, when he really was not, and mould therefore (to prevent it) set upon him first, and murder him and his Followers; must your Abuse of this Right, which you have by the La-w of Nature, be a sufficient Argument, that neither you, nor any Man else in the State of Nature, should ever for the future exercise this Right? so neither will the Abuse of these Rights be a sufficient Argument against the Right of Self-defenceagainst the Supreme Powers.

M. I gfant indeed they are not in the State of Nature, but it is much otherwise after People are entered into aCivil Society, or Commonwealth, and that upon your' own Principles; for then they have given up all thatEquality, which you suppose between Men in the State of Nature : For supposing what you affirm should be true, That Civil Government at first began from the whole Body, or major part of the People's making over all theirRight of Governing themselves to one Person, or more, upon Conditions of being protected in their Lives and Estates; they must likewise make over all their Right of Judging for themselves what means are necessary for their common Good and Preservation; after which transferring of their Power, they can never have any Right to meet again in a Body, either by themselves or their Representatives, to judge of these Breaches, ot the Transgressions of those Conditions which they at first proposed and agreed upon with such Princes or Governors. And when the People come once to multiply into a Nation, it is absolutely impossible for them ever to meetaltogether again, and give their Judgment of the good or evil Consequence of the Monarchs Actions, or to come to any Resolution upon them ; so that their Opinion can never afterwards be known, otherwife than by theMurmers of particular Persons, which none can certainly know neither, unless they could speak with everyindividual Person of that Kingdom, which is impossible. But if you will fay, this Oppression needs not be known by Words or Votes, but Actions, viz,, by the People's actual taking up Arms, this mult either be by the -wholePeople all together at once, or at least, the major part of them, or else of some particular Bodies of Men, much less than the whole, or major part: Now the -whole, or major part of a People of a Nation to rife and take upArms all at once, as one Man, is morally impossible : And if any part less than this -whole or major part, (as suppose a -whole Province or City) every such Party or Body of Men so rising, must be guilty of Rebellion, and disturbing the publick Peace of the


Commonwealth, as being but private single Persons, which you your self granted and condemn'd as unlawful. And therefore I desire to know, who shall judge when this Body or major Part of the People are thus assaulted, so that they may justly defend themselves? But indeed this Licence of taking up Arms is not only impracticable, but unreasonable too; for it supposes, that after the People have given up all the Power they had adjudging what was bad or good for the Publick, they have this Power still left in them, which would make them at once bothSubjeSis and Sovereigns, which is a Contradiction. ,

F. Had you been pleased but better to have observed what 1 said the last time I spoke, a great part of this Obj'ectionhad been saved. For I there exprefly asserted, that the Security of Men's Lives, Liberties and Estates, being the main Ends for which Men entred at first into 'Civil Society, and likewise desired to continue in it, as being the only means why Civil Government is to be preferred before the State of Nature, the People neither didor can give up their Right of Judging, when these are invaded or taken from them: And therefore you are very much mistaken, to believe that at the Institution of Civil Society; Men must have given up their common Sensesand Reason too of judging when they are like to be Murdered, or made Slaves of, or their Fortunes unjustly taken from them, by those whom they have ordained to be their Governors: And I suppose you will not say, that they thereby acquire a Power of altering the Nature of things, or of making War, Slavery or Beggary the means of procuring the Welfare and Happiness of the People, any more than they can matt that Hunger or Diseases should conduce to the preservation of any Man's Life: And therefore as the Judgment of these things was obvious and natural to every Man's Senses and Understanding in the State of Natme, so it is as plain, they never intended wholly to give up all their Right of Judging concerning their own Preservation and Happiness, and all means necessarily tending thereunto, but only in such Cases, and concerning such Matters as are beyond the Power, orabove the Knowledge of every ordinary private Subject. Thus in a Disease, tho' I give up my self to the Skill and Judgment of a Physician, yet I do it not so absolutely, but that I still reserve to my self a Right of judging,whether he gives me Poyfon instead of a Purge. And if Princes or Supreme Magistrates were thus abfo~ lutelyinvested with an Arbitrary Power of doing whatsoever" they pleased with the Lives, Liberties and Estates of the People, they would then be in a much worse Condition under Civil Government, than they were in the State ofNature, as I have already proved ; and therefore there is no need of any such general Meetings or Assemblies ofthe whole Body, or Representatives of the People, to judge when these Fundamental Conditions of all Government are notoriously yjolated and broken: Since it will be apparent to every Man's Sense and Reason that is thus aflaulted or injured.

And as for the other part of your Objection, how the People can know when the whole Body or major Part of them is thus assaulted or oppress'd; and being so aflaulted or oppress'd, wh*at number are necessary to justify thisResistance? To this important Question I thus answer, that if such a War or Assault be made upon such aconsiderable part os the People, as may justify this Resistance to be much better for the good of the Commonwealth, than that so many People should be de-: stroyed; Resistance certainly is then lawful: And the reason why every particular Person, when unjustly aflaulted by his Prince's Order, or his Estate taken away by hisunjust Edicts or Decrees, ought not to make any publick Disturbance, only to save the one, or recover the other, I have given you before, viz. because the publick Peace is to be preferred before that of any private Person: Yet even then, such a private Person may very well defend himself, if unjustly aflaulted by Assassinates, whom the Prince, or other Supreme Magistrates, shall send to take away his Life without any just Cause or legal Tryal; tho' I grant he may not sollicit others to rife with him, and take his Part, or help him ta defend his Life or Estate; yet (as a Reverend Dignitary of our Church very well observed) No Man can want Authority to defend his Lifeagainst him who hath no Authority to take it away. But much C' R'f' more, when this Assault or Oppression is either made upon the whole People in ge- 5!; neral, or upon so considerable a Part or Member thereof, as theCommonwealth could not well subsist without if it were destroyed: In all such Cases, I suppose the People thus aflaulted or oppress'd, have a sufficient Right to defend their Lives, and free themselves from that Slavery and Oppression they lie under: And thus the People of Rome might-very well have justified their Resistance of Nero'sIncendiaries,


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when he sent to burn the City, tho' they had been his own Guards. We read likewise in the Hist. August, that the Emperor Caracalla, the People happening to laugh at him (for his Folly) in playing the Gladiator in hisCircus.M^ximiis,. sent his Guards to kill them : So likewise in Herodian, that upon another supposed; Affront, he sent his Pretorian Bands to murder most of the Inhabitants of Alex-, andria, who came out to meet him with asolemn Procession. And I suppose no rational Man will deny, but that if the Citizens of Rome or, Alexandria ;had, had Arms in their Hands, they might have lawfully defended their,- Lives against these Murdering Guards; for I think it was much better that those,, should be destroys d u who were the Aggressors, than that so vast a Body oilnmeent Peopleshould be made Sacrifices to the unreasonable Passion or Revenge of $ Cpiel 'Tyrant. So thar, when the Oppression or Violence to Men's Liberties and Properties is gem-al and a notorious, and affect the -whole Body of the People; I do then suppose, that a.njy Part of them that are sufficient to defend themselves, may do it;..till they can find Assistance, either from the rest of the People, or else from some Foreign Prince or State, who will vindicate their Cause and come in to their Assistance. And thus Vi. Meteranl we read the Town of Brillin Zealand, under the Conduct of the Count of Mark, Histor. first revolted from the Tyranny of the Duke ofAha.; which Example was afterwards (tho' not immediately) followed by most of the Cities of Holland andZealand; and the Courage and Resolution of this Count, as also, of the Citizens of this Town, is highly commended by the Historians of that Time, for so nobly •venturing their Lives and Fortunes to redeem their Country from tjiat Slavery it then lay under, till at last they were relieved and assisted by Queen Elizabeth, to whom the United Provinces owe that Freedom they now enjoy. f

M. I shall not now dispute with you, what Right the States of the United Provinces might have to resist theTyranny of the Duke of Alva, then Governor for the King of Spain; since Grotius, and most Writers which are not of the Spanish Faclion, suppose that King to have had a Conditional Right of governing those Provinces,according to their own Laws and Privileges, from the very first Institution of the Government; and therefore not being an absolute Monarch over them, he might welL be resisted upon the Breach of those Conditions. But this is not the Cafe now in hand, since we are now discoursing of absolute Monarchies or Commonwealths, who being invested with the Supreme Power by the Consent of the People (as you, suppose) and therefore may have by their Consents (whether forced or voluntary, it matters not) according to your own Principled, a supreme unaccountable Power over them: And in the first place, I can dew you how a Man may make over all the Power he hath in his own Person irrevocably to another; as when a Man sells or grants himself for a Slave to another by his own Consent; who when he hath once put himself into this Condition, his Master hath an absolute Property in his Person, and an indefeasible Right for ever to his Service; so that notwithstanding all the cruel, harsh and unreasonable Usage he may meet with from his Master, he can never regain his Freedom without the Consent of his Lord: And this I take to be an uncontested Truth, agreed on by the Laws of Nations, and established by thePet. Ep. 1. c. Law of God. Thus St. Peter chargeth those who are in this State of Servitude, ta 2. -j. 18. hesubjectto their Masters with all Fear, not only to the Good and Gentle, but also to the Froward. So likewise St. Paul, in both his Epistles to the Ephesians and Colcfflans, Ep. 6. -j. 5 commands Servants to be Obedient to them that aretheir Masters according to the Flejh, Sec. Col. 3. 22. And that this particularly respects Slaves, appears by the 8th Verse of - the 6th Chapter of the former of these Epistles.

So that if a Man may thus make himself a Slave or perpetual Servant to another • by his own Consent, I cannot see any Reason why a whole Nation may not do the

same, and deliver themselves up to one Man or more, to be governed and treated both for their Lives, Liberties, and Fortunes at his or their Discretion; so that tho' he may perhaps abuse this Power to the severest Tyranny orOppression; yet havu they no Right to shake off this Yoke, or to resist him, since their Lives and Fortunes are wholly at his Disposal by their own Atl and Consent. And that whole Nations may justly surrender themselves forSlaves or absolute SubjeEls, I can give you two Examples approved of by God in the Scriptures: The first is that of the Egyptians, who, when they had fold all their Goods, and Lands, to Pharaoh for Bread to keep themselves alive in the seven Years of Famine we read of in Genesis, you'll find they were afterwards such absolute Servants or Slaves to Pharaoh,

... ..

TA<«
cti> for the People, he removed them to Cities, from one end of the Borders of Egypt, Ge"-
47«
even to the other end thereof; only the Land of the Priests bought he not, &c.
The other 22<
is that of the Gibeonites,
of whom we read that they accepted of their Lives from
Joshua and
the Elders of
Israel;
tho* on the condition of the greatest Slavery, ra-
ther than they would venture to be destroyed: So that if absolute Monarchy were

not lawful, but contrary to
God's Will and Institution, most of the greatest King-'
doms in the World would be governed contrary to
the Laws of God and Nature; and
the SubjeEis of
all the Kingdoms from France to China (not
reckoning those of
Africa) might
immediately, if they were able, rebel against
their Monarchs, and
set up what sort of Government they thought fit, since none of the Subjects in
those Kingdoms hold their Lives, Liberties or Estates by any other Tenure,
than the good Will or Pleasure of the Monarch, who may take away all, or any
of them, as often as he pleases to do it, and that without any right of Resistance in

all or any of their Subjects, let
them use them never Ib severely.;

F. I cannot deny, but what you fay is so far true, that one Man, or many together, may grant or sell themselves for Slaves by their own Consent; and that the Persons who thus make over themselves, have afterwards no Right or Property in any thing more than a bare Subsistence; yet that Servitude is not by the Law of Nature, but only brought in by Custom, or the Law of Nations, as all Writers agree, and is so far lawful, because it tends to the good and preservation of Mankind, that Prisoners taken in War should rather be kept as Slaves than immediately slain, or that Men compell'd by extreme necessity should sell themselves, or their Children, rather than both should :perish ; and therefore it is no wonder that the Apostles, who were not sent to alter the State of things in the World, or to entrench upon any Man's Civil Rights, should command Servants or Slaves to be subject to their Masters, tho* Unbelievers: Yet doth it not .therefore follow, that when Men are forced to give themselves thus up to the Power of another* they likewise give him an absolute Right over their Lives, so as that their Masters may take them away whenever they please; for that was more than they ever had over themselves; nor doth God confer any such Power upon Masters: And therefore if the Master hath no such absolute Right or Property in the Persons of his Slaves, as he hath in his Sheep or Cattle; I see no reason why . even Slaves, if their Masters go about to take away their Lives for no other Cause but to satisfy their own Humour or Passion, may not (if they cannot otherwise escape) resist their Masters, and save their Lives if they can: For all Writers agree, that if a Master doth so so inhumanly abuse his Slave, that he can no longer endure it without danger of his Life, he may in that Cafe lawfully r««, away and escape * from him; and why he may not as well resist him to save hi? Life, when his Master goethj about thus unjustly and without any cause to take it away* I can see no.reason to the contrary; since it was only for the saving his Life, that ..such a Man could ever be supposed',to yield himself a S/ave to another.; and which Condition being broken on the Master's part, the Semant is a£aia;jLn the State of Nature, and theRelations Master and servant so farceases, ori^^t least suspended during that. Violence. -r\ . . . ...jr-j . rr!1 .... -.' .'" ~.;Y:.

This being the State of particular,J-cannot think that God hath put whole '*

Nations in a worse Conditionsnor can I imagine that any whole Nation, unless urged by some extreme necessity,would ever give, up themselves so absolutely for Slaves, as not to have any Right to defend their own Lives, or a.Property ih. any thing they can enjoy; and if ever they, could be supposed to have done so> I think I may » boldly affirm, that such a. >Jition are not Subjects, but Slaves; anjd the Prince not a Monarch or Civil Governor,but only a Lord of a. great Family, ox Master of a publick Work-house. ,« hnn j.tiii -., i ;o r- r.'.j „I v 'j ffts ;:< . EoiTil take the.difference between Subjects or Slaves zxiA, Princes and Masters of Families to consist art this, that/, the Power of a Princg is chiefly ordained for the good and preservation of his Subjects, tho' I grant his-ownmay likewise be included in itasan Encouragement and.Re^atd fpr, his Labour; yet not as the principal End:'o£bisLiJlitum)f. i whereas in a Family of Slaves, they are chiefly ordained for his s rofit or Benefit that maintains them:; but their Happiness and Preservation is only' accidental/and as it may conduce to that. The main End also of Civil Government is to\institute*and maintain a distinct Property in Men's Estates, and whicjr the Prince or Commonwealth can have no Right to take away. And therefore thoJ.I grant: that in those Defpotick Monarchiesyou mention, the Monarchs do fc..: I Q, 2 '. * exercise

exercise an absolute Arbitrary Power over the Lives, Liberties and Estates of their Subjects; yet that this is byDivide Right or Institution I utterly deny, or that it was always so in all of them from rhe beginning; for most of those Empires you mention can no otherwise subsist, than by a constant maintaining vast Standing Armies orGuards to keep their Subjects in Obedience.

Nor can any Governments be of Divine Institution, which are exercised with a file RespeEi to the personal Power and Granduer of the Prince, rather than the good and preservation os the People: So that if you will but survey the Account* that Travellers give us of those Eastern parts Of the World, you will find that there are no knownsettled Laws or Propertiesr in those Countries, except at the Arbitrary WiUoi the Monarch or his Viceroys: And thus all those rich and fruitful Countries of Egypt and Asia, which formerly flourished in all Arts, Knowledge; and Civility, and abounded in Multitudes of People, are now, in most' places, reduced to meer Defarts, and do not breed a tenth part of that Number of People as they did in former Ages; which proceeds from no other Cause but the Cruelty and Injustice of the Government, quite different from what it was in the time of the Roman Emperors, who, tho' I confess they were in some sense absolute too, yet governed by, and were obliged to observe knownLaws; and the People had a settled Property in their Estates, which the Prince had no Right to take away »" I shall not enquire how all these Monarchs came to be so Arbitrary at first, and thus to abuse their Power ; but the Generality or Antiquity of this Abuse can be no more a Plea for its Right, than that because Idolatry was generally practised throughout the World within three or sour hundred Years after the Flood, till three or above four hundred Years after Christ; therefore Idolatry was the true and ancient Religion of the World. 1" ■ "' -»;«..•

Now, tho' I will not condemn this sort of Government,- where the Subjects* enjoy nb settled Property in Lands or Goods as absolutely unlawful, and directly contrary to the Laws of God or Nature: Yet in those Kingdoms and Commonwealths, where Civil ot Hereditary Property is once introduced, T think it is not lawfol, nor indeed in thepower of the Prince or Commonwealth to- destroy or take it away: And therefore if the Roman Emperors should have endeavouwdj by'any Laws or Edicts of their own making, to have destroyed all Civil or Hereditary Propertyin Lands and Goods, and to have reduced all the Estates of their Stibjects into their own Possession; I think they might have be'en lawfully disobeyed and resisted by the People, since they went about to destroy one great End of Civil Government, viz,, the instituting and maintaining of Civil Property. '• £

To conclude, I freely grant that in all Countries which are governed either by absolute Monarchies orCommonwealths, the Soveraignty is so fully in one Person or Body of Men, that it hath mdther Bounds er Limitsunder God but its own Will or Commands, provided they do not apparently tend to the absolute Ruin&ndDestruction of the People; for that being inconsistent with the Notion or End of goverhfcg them, they ate, and ever will be Judges of it : And therefore even amongslrÆhe Turks and Tartars themselves, if they mould Oncfe iffnd their Prince go about wiifully to destroy them, or sell them for Slaves; you would soon find (notwithstanding this servile SubjetHon) that they would quickly be rid of them, as the Janizaries have served their Emperors of late Years for far less Faults.*'^- -.• M ».m.v,\'

M. I cannot deny but you have spoken reasonably enough on this Subject ;-land perhaps if youhad restrainedthis Power -of Resistance only to such Cases where the Prince or Monarch makes open War upon his People, or doth otherwise afkta£y$p about to destroy;them, it might have been'a: tolerable Doctrine that they'may /awfullyresist the threes he shall send against them; but this isa Case that so seldom happens (if ever at all) that it can never be supposed, and no Prime, -tiniest he were Mad, can be guilty of it; and therefore whenever he acts thus*; I thinfahe may not only be lawfully resisted, but tied us for 'a 'Madman : But-rhis is seldom or never the Case between Monarchs and thdr People, for most ofthciWWfow and \fofuneSiions that I have ever read of, or observed in the World, have not proceeded from zwy necessity that the People had to rife up in Arms and rebelagainst their vS^ preme Magistrates, because their Lives ot Estates were aslaulted^orUn' danger to be taken away; But for the'most pare they arose either from the^at\ great Cruelty or Severity of the Supreme Power towards some particular private Men, who by themselves, and their Friends and Relations/have gone about to revenge those Injuries that they supposed had been done them: And of this ill Histories are so full, that

£ I I need I need give no particular Instances of them; all which Abuses mzy be reduced to these Heads; First,When a Prince doth commonly himself* violate the Chastities of the Wives or Daughters of the Subjects, which thV it hath been the Ruin of diverse Princes, yet is he able to do this only to some few particular Persons: And tho' if he should permit his Soldiers or Officers generally to do this without any Punishment; yet even this can hardly, if ever, extend to all the Wives, Daughters or Women in a whole Country : And therefore both these Cases are to be bom with* \ al, according to your own Principles, since it doth riot tend to the Slavery orDestruction of the People, I mean, as to their whole complexed Body. A Second is, when an absolute Prince or Monarch goeth about to alter the established Religion of his Country, and to introduce a different one by his ownsole Authority, whilst the major part of the People continue of another Opinion. In this Cafe I suppose you * will not affirm that the Subjetls have a Righi tcxresift their Prince for so doing : For then the Romans might justly have rebelled agamic Confiamine, when he shut up the Heathen Temples, andforbad all publick Sacrifices to their Gods, and thereby made the Christian Religion: Che establijhedProfession of the Empire.

JO But pray Sir give me leave to interrupt you a little might not Constantine have a Right to do. this, because the Christian Religion is the only true one; and that the Idolatry the Romans then practised, was against the Lawof Nature?

As. Whatever weight there may be in this Answer, yet you have no reason to pat this Question now, since you have already, viz.. at our first Conference, asserted that an ErroKesm Conscience puts Men under an Obligation to follow it, during the time they are. under this ignorance of the Truth: And therefore if the Roman Emperors hadnot a Right to do this by their own Authority, without any Resistance; she SubjeBs, whilst they believed the Worship of theit God to be thereby destroyed,, might, nay ought to have resisted the Empeior, rather than to have suffered him to have akered-the ancient Religion of the Empire, and to have brought in another, which they look'd upon as an upstart; and it is very natural for Men to do so, since nothing ought to be more dear to them thah the Worship and Honour of God. ■' ', ,

J3 I do not desire at-present to embark my self in this tedious and troublesome Dispute about the Authority of the Supreme Powers in Matters of Religion; and therefore I shall fay no more to it at present. But if your Assertion be true, that an absolute Monarch may set up what Religion he pleases, without being resisted by theSubjects, whom I suppose to be of another Persuasion, it will then follow, that if the French King or Emperor ofMuscovy should turn Mahometan, and should set up that Superstition by Force, for the Publick and National Religion of the Country, tho" with the Destruction of atl that should oppose it, none of their Subjects might resistthem info doing ; and if so, I desire you to consider what you have gained to Religion, by thus assertingsuch anunlimited Prercgative to all Monarchs. But laying aside this Dispute till another time, I pray go on to the rest of those Cases in which the People do take upon them to resist the Supreme Powers., .

M. I shall comply with your desires; and therefore a third Pretence of Subjects to rebel, is when. I the SupremePowers shall think it neceflary to levy upon their People more heavy: and grevious 7<**« and Impositions than the People are willing, or it may be, able so pay. Now if your Principle be true, that they may rife in Arms andresist the Supreme Powers, whenever they think themselves thus intolerably oppressed; arid if ihty shall be.JbleJudges of this Oppression, then all the Rebellions that ever weBcmade in England or elsewhere, by reason of such excessive Tributes or Taxes, would.be lawful; which would be a perpetual ground of Anarchy and Confusion ; forprivate Subjects not being admitted into the Privy Councils of Princes Ot States, can nevet be supposed to understand whether the necessities of the Commonwealth nfay^ require them or not: And indeed the People do so often repine and murmur at • the Government, when the publick Necessities require to impose greater, "taxes otGabels than they think they can well bear; that the Mobile of any great City or PrcmnvA, for Example, who think themselves thus oppressed beyond ■what they areabitt^ or perhaps willing to bear, may rise in Rebellion, and throw off all Obedience va CivilAuthority.;, and they may have a very good Pretence for it, according to you* Principle, because they may look upon themselves as a •very considerable, nay necessary part of theCommonwealth. And thus the common People of Kent might have justified their Rebellion in Richard II s Time under Wat lykr and Jack Straw; and the People of Devonshire and Somerset/hire might like

wise have justified their Insurrection in Henry VII's Reign under Flammock the Blacksmith: And I could mention others of the like nature; but I forbear, because you may say they were upon account of Religion. And Lastly,This Principle might very well justifie the Insurrection of the common People of Naples, under MaJfaneBo,which, besides the vast spoil it made upon the Goods and Palaces of the Nobility, ended at last (whatsoever they pretended at first to the contrary) in delivering up themselves to the King of France, who refusing to protect them, they were soon reduced to their former Obedience to the King of Spain.

In sliort, if the People should take upon them to Resist or Rebel whenever they thought themselves intolerably injured and oppressed in their Estates by immoderate Taxes, there would be no end of such Rebellions, especially considering the advantage which Wicked, Crafty and Ambitious Men would thereby take to excite the People torife and depose their lawful Governors, and set up themselves in their room, upon pretence of better Government and greater Liberty; and how prone the common People have been to receive such Impressions, he is but meanly skill'd in antient and modern History, who is not convinced of it. :-<

F. To answer this Objection before you proceed farther, my Opinion in sliort is, that tho* Taxes may often prove an Universal Damage, and a great Impoverifliment to the Subjects; yet if they are such as may be born with less trouble than can follow from a Civil War, or the Change of the Government, there is no just or sufficient cause of Resistance of the Soveraign Magistrates Commands or Edicts concerning them. As for Example, such great Taxes as the Subjects pay, and perhaps may bear it well enough in Holland and other Countries, since there may be a necessity for such Taxes; and of this I grant the Supreme Authority of the Nation can be the only Judges ; and how far this may extend I cannot positively determine; for suppose you should ask me, if the SupremePowers should borrow all the ready Money the Subjects had, for the necessary uses of the State, so.thatthey would give them Leather or Brass Money instead of it, to go at the fame Value, for the neceslary uses of Commerce; yet if they did not take away their Property in their Lands, Corn, or Living Stock, which are the necessary means of their Subr sistance; I do not think it were a sufficient Cause to take up Arms against their Governors for so doing; because the Subjects cannot tell but that the necessities of the State (for their necessary defence against a PotentForeign Enemy) .may re? quire it. And sure it is a much greater Evil to fall into a Civil War, ot to be subdued byStrangers, than to part with their Money ,• since by such a War or Conquest, they might not only lose that Money, but also their Liberties and Estates. .... '.: :■- .> '\ u:'<j

Yet on the other side, I would not be understood to give the Supreme Magistrates a Power to invade the Properties and Estates of their Subjects to what degree they thought fit; for then they might tax them to that extremity as might, force them to fell themselves and their Wives and Children for Slaves, or else being unr able to pay, must be forced to run away and leave their Habitations' (as the Peasants often do in France) whereby whole Villages, nay Towns, may become depopulated, as they are in divers parts of Italy and Turkey, by such extraordinary Severities; and therefore in absolute Monarchies, where there is no. Nobility, -Gentry nor Yeomen, who can claim, any Property in their Estates, which with us make up. the best and most considerable part of the People .; and where the Government being wholly Military, is exercised over the People only by force of Arms; I doubt not but such a People, reduced to this Extremity, . may not only -quit the Country where they are thus intolerably oppress'd, but chat if they are not of themselves strong enough to make Resistance and cast off this intolerable Take by Force, they may (if an occasion be offered) join with any Neighbouring Prince or State that will undertake their Quarrel; and upon this Account, I think we may very well justify the Revolt-o£the>GreekChristians from the Ottoman Thke, and putting themselves under the Protection of the Venetians, both in the,Morea and other Places; and also upon the fame Principles, I conceive the common People of France, who are reduced to the like Extremities, might also with a safe Conscience revolt from the present King, and put themselves under.the Protection of the Prince of Orange, our now present Soveraign, or the States of Hu&md^.i£ever they should be successful enough to make any considerable Invasion upon that Kingdom. • / <. • - ;;'- —>~'.~o~c..



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And therefore I must confess, that there can be no certain and stated Rule set down, to what Proportion absolute Princes or Commonwealths may tax their Subjects since in some Countries the People can better part with a Shilling than in others they can pay a Penny. And as I grant it must be left to the Mercy and' Discretion of; the Governors what Taxes to impose without thus ruining and destroying their People, as it is left to the Judgment of the Owner of the Beast, hpw much Burden it is able to bear : So if he, by laying too great a Weight, breaks the Back of his Horse or Beast, he not only hath the Loss, but makes himsei£;the.I^ug^ his Neighbours. So that tho' I confess the People

ought to, have patience, and rather to suffer many Oppressions and Hardships, than to put themselves in this miserable State of War; yet there is a Midst in all things, and tJieJPeppI^ .may be so cruelly of pressed by Taxes,and other Impositions^ as 'ft7^(tm^ossibl.e for them longer to subsist, or provide Necessaries for themselves, and, their Families: And ^sice u have already granted, that the Jfccjple may judgewherUbeir Prince makes War upon them, and goeth actually a.^Out to deffrtw theml by the Sword, I cannot fee why they may not have the sara£ Right 'of/judging when they are like to be destroyed by Famine too. And •w,ho can be judge of this, but those who feel it?

But indeed it is mofalfy impossible for the People to be mistaken in so plain a Case: Eor thp' this many.-headed Beast (as you commonly call them) the Peoples cannot argue very subtilly of the future Consequences of things, yet they have a very nice ana tender Sense of Feeling, and can very well tell, when they are so injured and oppressed, that they can bear it no longer: For then sure they may fee ^liowed to have as much Care and Sense of their own Preservation, as Camels and Dromedaries, which (as Travellers relate) tho* they are taught t>y their Masters to kneel dawn, and to receive their Loads, which they will patiently endure as long as they aije able to bear them; yet when once their Masters do over exceed that Weight, neither fair means nor foul can prevail upon them to rise, or they will throw off those Loads, if risen, that they feel will otherwise break their Backs. But I have discoursed long enough on this Head, and therefore if you have nothing more material to except against it, I pray proceed to the rest of the Causes that Subjects may, as you think, pretend to have to take up Arms against the Supreme towers.

M. I have somewhat more to urge towards proving that this Liberty, which you allow the Subjects, wholly tends to Anarchy and Confusion; but I shall reserve it to the last, when I shall sum up all that I have farther to urge upon this Subject; and therefore I shall proceed to the other Pretences that Subjects in absolute Monarchiesmay make to rebel; and the next may be, that the Monarch looking upon his Subjects as his Slaves, may either use them so himself, or sell ,t . them toother Rations for that purpose, as Monsieur Chardin tells us, the King of vi ~hJo. Mingrelia often doth diverse of his People to raise Money. And tho' I will hot be Ch*. in's so ridiculous as to suppose that such a Monarch can sell away all his People at ¥r*w1t /. i pnee, for then he should be left alone without any Subjects, and consequently become no King; yet in such Monarchies as diverse of the Eastern andAfrican are at this Day, where (as you your self own) the People have no Settled or Here-, ditary Property in their Estates, the Monarch may dispose of their particular Persons as he thinks fit; J cannot see any reason why the' Monarch may not in in these Countries, without any blame, exert his Prerogative if he pleases, and take as many of his Subjects or their Children to serve him as Slaves, as he thinks necessary for his Service.

And therefore whatsoever People or Nation have thus subjected themselves to the absolute Power or Dominion of one Man, they have no more right to regain their Natural Liberty, than I should have of taking away any thing by Force which I had before given or granted to anotherfor this sort of Civil Servitude is not so repugnant to Nature as some imagine; or that because Subjects were forced to consent to it for the avoiding of some greater Evil, they can afterwards have any right to shake it "oft* again whenever they will: For tho* I grant that God hath not instituted any such Servitude; yet when once it is introduced in any Country, Men are not at Liberty to cast off the Yoke whenever they please, but to observe St. Paul's. Rule, 'If thou art a Servant, care not for it; but if thouart Free, chuse it rather; that iji, Fieedomxs to be preferred before Servitude or SubjeBion. _But where Providence hatli .made Men absolute Servants or Subjects, they are

*" ';'- bound

bound to continue in that State, unless the Supreme Powers they 'are under think fit to release them from it; and therefore this can be no good Pretence under absolute Monarchies for Subjects to take up Arms against .their Prince, for such a State of Liberty which they never enjoyed. y.' \

F. I shall not trouble my self to dispute what Right an absolute Monarch may have over the Persons of his People, in a. Country where they have no Property; nor written Laws, and where they look upon themselves as no better than Slaves; * to their Prince, and perhaps may take a Pride in it (as I have read the Russians; do.) And therefore if they have so wholly submitted themselves, I grant what; you assert is true, and that they have no Right to Resist, according to the old Sayf> ing, Volenti non fit bijuria. And yet even in these DefpotickMonarchies, tho' the Prince may pick out here and there some of his Subjects to fell for Slaves, or else" to use them as such himself; yet I do much question, if he should go about to make7 any considerable Number (as suppose to take 20 or 30000 all at once for Slaves) I lay, I do much question whether these People would be so convinced of your Principles of Passive Obedience and Non-resistance, as to let their Monarchs Guards drive them into Slavery, like Sheep to the Market, but would, if they were abtejmake a vigorous Resistance, and knock their Drivers on the Head. Whether Jurii vel Jnjuria, I shall not dispute.

But for all this, even in absolute Monarchies, where the People have a settled legal Property in their Lands and Estates; and consequently where their Persons are Free, I doubt hot, if their Princes should go about to make all his Subjects Slaves, but that they might lawfully resist him, or those he employs in so doing. And tho' it be true he could not make all his People Slaves at once; yet if he asserted it as a part of his Royal Prerogative, and also exercised it on particular Persons as often as he thought fit, or could, I doubt not but the People might make Ie a common Cause; since none can know whose Turn it may be next; for sure Liberty from Servitude is as necessaryto Mans Happiness and Well-being, as Life is to hit Existence; which would seem no great Benefit to those, who being Born Free, Martial, were reduced to Slavery; it being well said by the Poet, Non est vivere, Sed valere vita.

And tho' the Roman Emperors did exercise an absolute Power over their Subjects, yet I never read that they durst presume to make Slaves of Free-born Romans; nor . indeed of any of those Nations they subdued; for they had too great a sense and love of Liberty themselves, ever to impose such a Yoke upon the People theyConquered, which was so destructive to the common Happiness and Preservation of Mankind. And I suppose if the French Grand Seignieur, as Absolute as he is, .or pretends to be, should go about to sell his Subjects (especially the Nobility) for Slaves, all that the Jesuits (those Instruments of Slavery) could do, would nor, I believe, be able to keep that People from rising against him. But if you have nothing farther to object against what I have now said, I pray proceed to the next Head, if you have any more Instances to make.

M. I am now come to the last Pretence that Subjects may make to Rebel, and that is, supposing the Monarchshould at oncej or by degrees, turn the Subjects out of their legal Hereditary Properties in their Estates; and of this you your self grant there can be no Dispute in those Defpotick Monarchies, where there is no HereditaryProperty allowed: And as for all other Governments, since you do own that all legal and civil Property in Lands did chiefly proceed, or at least is established by the civil Power, I cannot see why those Powers in any Kingdom (if they think it would conduce to the good of the Commonwealth) may not destroy this civil Property, and either make all Estates equal, or else ordain that they shall be enjoyed (as in all absolute Monarchies) at the Will of the Prince ; since if the Supreme Powers arc the Author of this Property, sure they may alter and abrogate it again as often as they think fit.

F. I shall not dispute with you concerning such Kingdoms where there is no civil Property yet instituted, or where the People do own themselves Slaves to the Prince; but if such a Monarch hath remitted any'thing of thisRight, and hath instituted a legal Hereditary Property in Estates; such a Law being once made, / dt not think it isin the Prince's Power to revoke it, any more than it is fora Master to reduce his Slaves again to Servitude after he hath once set them free; since both Men's Liberties, .or a settled or Hereditary Property in Estates, do equally conduce to the'Happiness and Propagation of Mankind, and the Good of that

People People or Nation Wherein it is introduced: And I doubt not but Pharaoh, tho' he was Lord of all the Lands of Egypt, by the Grant of'. the Egyptians, yet might lav* fully have been resisted by them, if he had gone to take away those four fifth Parts of the Profit of the Lands which he had left them Free by his own Con

"so that even in such absolute Empires, the Monarchs have Power to dispose of the Estates of the' People only, as far as the Compact or Concession at first made by them or their Predecessors do aHow. And it is also not much otherwisei where the Subjects do not acknowledge their Estates as the Gift or Benefit of the Supreme Powers:And that may happen chiefly too ways, either. When any Free People, under the Conduct, of a Captain or Leader, created by themselves, have Conquered any new Territory and Habitation j or else, Secondly, When divers Fathers or Masters of a Family, who had Estates of their own before, have agreed for their mutual Security, and the quiet enjoyment of what they were already posscss'd of, to joyn.together into oneCommonwealth, under the Command of one or more Men; or else of others that will bring their Estates, and joyn themselves to such a Government already Constituted, and will subject themselves to this Supreme1 Power,according to the Conditions already agreed on amongst them. A 'Third C_a(c may. be, When an HereditaryProperty in Land was establish'd before the Monarchy began, as in the Roman Commonwealth, this Property was establish'd before the Government was changed from a Reputlkk to a Monarchy 3 so that the People did not owe their Property to the Emperors Grant or Donation.

In the former Cafe, if such a F ee People conquer a Country under the Conduct of a Captain or Leader; tho' I grant such a Country may be assigned by him to all the People by Lot, or in proportion to the greater Merit or Service of his Fellow Adventurers or Soldiers (tho' it may seem that the Property of particular Men may have proceeded not from their own Right or Possession, but from the Assignment of their chief Captain or Leader) yet are not the Estates which such particular Men enjoy, to be look'd upon only as the meer Grace or Favour of such a Prince; since most of those who followed him in this Conquest or Expedition^ did it not as Subjects, but asVolunteers, and without whose assistance he could never have Conquered at all ;; so that they thereby acquir'd to themselves'a certain Portion or Share in the Land so conquered; tho' for avoiding Dissensions and Quarrels amongst them, it was left to the disposal of this new Prince, as a publick Trustee, to distribute to each Person what Share he mould have. But in the other Case, when Fathers or Masters of Families, before Free and possest of Hereditary Estates, do submit themselves to the Command of one Man: Voluntarily or by Election, those Estates do much less depend upon the Will or Favour of that Prince- And therefore, if such a Prince should, without .their Consents, go about to take away their Property in theit Estates, he might very justly Be resisted by them, since a quiet enjoyment of these in Peace and Sasety, was one of the chief reasons that made them chuse him for their Prince, and was certainly one of the Original Compacts of the Government. <

And that in absolute Monarchies, where the Subjects were not Slaves, they look'd upon themselves to have.such a settled Property in their Persons and Estates by Compact, that Seneca boldly pronounced, Errat, fiquis existtmattutumeffeibi Regem, I- rtc 'lfRege''mum eP 5 ,Secur'u*! Seatnmu mutua pacifeenda est. And Mr. Hobbs himself, as much a Friend as he was to the Arbitrary Power of Monarchs, and an Enemy to the Natural Rights of Subjecls,yet is forced in his Leviathan to confess, that the Riches^ Power and Honour of a Monarch, arise only from theRiches, Strength Taf q6 and Reputation of his Subjecls ; for no King can be Rich, nor Gloriom, nor Secure, whose^Subjects are either poor or contemptible. Tho' how this Riches and Strength of Subjects can consist with thatabsolute .Power which he gives his Sovereign over the Perlons and Estates of his Subjects, I cannot understand; since he will not allow of any Compacts or Conditions between him and them. But that their Propriety may very well consist with the Power of the Prince, Seneca (hews us j Jure Civili (Jzys he) emma Regis funt, & tamen iliaquorum ad Regempertinet univerfa poffejsto m pnguhs Dommos dijeripta funt, & unaquaque res habet pojfefforemfuum. Itaque dare wgi, CT donum, & mancijjum & pecuniam poffumw, nec donare illi de fuo dicimur. Ad iugesenim Potcfias omnium pertinet, adfingulos Propriety. And the Earl of Clarendon, "1S barvey of the Leviathan,makes this excellent Remark upon this Passage of

R

Seneca: And that Prince who thinks his Power so great, that his SubjeEis have nothing to give him, will be veryunhappy, if he hath ever need of their Hands or their Hearts. So that notwithstanding this universal Power, or supereminent Dominion of the Emperor over all things, which Seneca there supposes; yet if he mould have gone about to have invaded all Mens Properties, and reduced all Mens Estates into the publick Treasury, I doubt not but he would soon have had not only his own Legions, but the whole Empire about his Ears. And tho' 1 have heard that the B ench King doth by his exorbitant Taxes and Gabels raise more Money out of the Kingdom ofFrance, and the Territories annexed to it, than the Ottoman Emperor doth out of that vast Empire (of which he hath the sole Propriety of the Lands in himself) yet if the French King should endeavour, by the Power of his Standing Army, to tak« away all Mens Hereditary Properties in their Estates, and make them all to be holden at Will, I doubt not but he would not only be opposed by his Subjects, and perhaps ruined in the Attempt; but also, if he should succeed in it, would be so far from being the richer,- or more powerful, that he would become the poorer and weaker, when he had done: Since no Man would take the pains to build, till, or improve their Estates, any more than they do in Turkey, when they were not sure how soon they might be turned out of them, or at least could hold them no longer than for their Lives, or a few Years. So prevalent a thing is this empty Shadow and bare Name of Property that is now left in France (being often charged with Taxes to above half the Value of the Estates) to encourage the People to beautify, cultivate, and improve a Country abounding with all those Riches that Nature or Art can produce.

And to let you fee I am not at all partial, I think I may safely affirm the same of the Legislative Power in this Kingdom; so that, if it should happen (which tho' highly improbable, yet it is not impossible) that the Lords and Commons assembled in Parliament should so far abuse the Trust reposed in them, as to give up all their Civil Properties in their Estates into the King's hands, to be disposed of as he should think fit, and that the King should thereupon go about to turn all the People out of their Estates, I doubt not but they might - in that case 'resist the King, if he went to do it by force, notwithstanding this Act of Parliament: And my Reason is, that a fettledHereditary Property in Estates being as antient, if not more, than Parliaments themselves in this Nation, must consequently be a fundamental Law of the Government, and so cannot be altered by its Representatives. For tho' it be true, the People have given them a Power to dispose of what Part of their Estates they should think fit, yet did they not make it absolute, to extend either to their Liberties (I mean in respect of Slavery) or their whole Properties in their Estates. And if the King may be resisted, if he invade them by his own sole Authority, the Reason would be the same why he might be also resisted, tho* back'd by an Act of Parliament; since the taking away of Civil Property would prove as destructive to the People's Liberties and Happiness in the one case, as in the other, and as great an Abuse of the Trust reposed in them that were designed to protect it, ... ...

M. I cannot except against your Distinction between those Governments, where a Property in Estates did precede the Institution of the Government it self; for there, I grant, that such a Property may be a fundamental Law of the Government; but in those Monarchies that have begun by Conquest, under the Command of a King or absolute Prince over an Army of his own Subjects, in that case, upon the Conquest of a Kingdom or foreign Nation, not only the Prey or Goods of the Vanquished, but also their Estates, were forfeited to the Conqueror, who had a Right either to retain them for himself, or else to distribute them as Rewards amongst his Officers and Soldiers. And that this is the Right of all Conquerors, whether Commonwealths or Monarchs, by the Law ofNations, and was exercised amongst the antient Greeks and Romans, as well as other Nations, I refer you to your own Authors, Grotius and Puffendorf. And therefore, since it appears from History, that most of the Kingdoms now in Europe, and particularly this of England, began from Conquest, under the Conduct of their first SaxonKings; if then whatsoever was so conquered was acquired for them, and they alone had a Property in it, it will necessarily follow, that all Estates which the Subjects of all forts now enjoy, must have proceeded from their Grants or Concessions: And hence it is, that not only in England, but also in Scotland and France, they are all held either mediately or immediately of the King, as being at first all derived from him. And

we 0

we read in the antient Laws of Scotland, that the King had the whole Property of the Country till the Reign ofMalcolm Canmor, who, as we read in the antient Histories of that Country, granted all the Lands in Scotland to his Nobility and Gentry, according to that Old Maxim in their Law, Rex disiribuit totam tenant Scotia hominihmsuis. And therefore if Hereditary Property in Estates were only from the Gift and Bounty of our Kings, without any fundamental Contract between them and their Subjects, as you suppose; ' cannot see any reason (granting the worst that can happen, which is highly improbable) if the Kings of this, or of our neighbouring Nations, should go about by force to destroy and take away this Hereditary Property they now enjoy, that the People should have any Right to resist them; but that it would be not only Ingratitude, but Rebellion so to do. For tho' I own that Kings were guilty of Perjury in the sight of God, if they did it; yet that being an Offence only against God, the Subjects could have no more Right to resist, than Sons in the State of Nature had to resist their Father, if he should go about to take away those Estates, which he had before bestowed upon them.

And as for what you fay concerning the Roman Commonwealth, I grant indeed, that the Government of thePeople did there precede that of the Emperor; yet if you please to remember, Monarchy was the first and most antient Government of that People : And I doubt not bur all the Property the Romans had in their Estates, tho' they proceeded from Conquest of their Arms, yet it was wholly owing to the Grace and Bounty of their first Kings; and when, upon the Expulsion of Tarquin, the Supreme Power became divided between the Senate and People, the Property of all the Lands that were conquered, devolved upon them, who often divided them to particular private Men, as they thought fit j thoJ, I confess, the not dividing of these Lands amongst the Common People, was afterwards the Cause of great Tumults and Commotions among them r Yet notwithstanding the Senate and Nobility still maintained their Power, and to the last refused to make a Division of those Lands they had formerly conquered. So that the Roman Emperors succeeding in the Power of the Senate and People, they were likewise restored, as it were ex postliminio, to the Prerogatives of the first Kings, and consequently, asSeneca himsejf confesses in the place you have quoted, tho' the particular Propriety of TJtates was in private Men, yet you see he grants, the universal Possession or Dominion of them was in the King or Emperor, from whom they were originally derived.

I would not be thought to speak thus, as if I were an Enemy to Mens Liberties and Properties, or that I either fear or desire any Change in them, from what we now enjoy; but since I think it a thing morally impossible to alter- them, and that therefore no King will be so ill advised, as to go about to seize them into his own hands; but only by way of discourse, supposing the worst that can happen, I think* we are not only obliged in Conscience, but also that it were much better for the common Peace, that the King should take all we have, than that we should involve the Nation in Civil War and Confusion, and our Consciences under the Guilt of a mortal Sin, by such Resistance and Rebellion.

F. I am very sorry to see, that by your Principles all the free Nations of Europe lie at the Mercy of any Prince, to be made as errant Slaves as any are in Turkey, whenever their Monarch pleases, or that they think that they can make more of their People by taking away their Estates and Liberties, than by letting them enjoy them, which would render Civil Property in all Kingdoms like private Estates, which every Man may let to his Tenants at Will, upon a Rack Rent, or for Years or Lives, as they shall think fit. But I think I may very well differ from you in both your Propositions : For, omitting any farther Discourse of those Eastern Monarchies, where I grant the People are little better than Slaves; yet I think I can easily prove, out of the antient Histories of those Kingdoms that are now in Europe, that tho' most of them began by Conquest, yet was it not under the Conduct of absoluteMovarchs, but under such Princes or Leaders, whose Followers (as I said before at our last Meeting) were not properly Subje&s nor Mercenaries, but Volunteers, under those that commanded them; and therefore would never have gone out of their own Countries, but to advantage themselves, and to enjoy those Privileges, which their Countrymen had at home; of which Liberty in their Persons, and Property in their Estates, were the chief: And this is apparent in the French Nation, who, whatever their Condition may be now, yet anticntly called themselvesF anes, in opposition to that Servitude, which they supposed their • R 7/'' neigh


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neighbouring Nations amongst the Germans were in to the Romans at that time* And tho3 I grant, that these Nations of the Gcths, Vandals, Francs and Saxons, from whom most of the Kingdoms in Europe are now derived, might vest or intrust the Lands of the Countries they had conquered in them whom they had made their Kings, yet still it was with this Trust, that retaining a sufficient Part to sustain the Royal Dignity, they {hould distribute the rest to all their Officers and Soldiers, according to each Man's Valour or Merit: And if they had refused to have done this, can any Man believe, that so free a People, as the antient Histories relate them to have been, would ever have suffered it, without fulling down those Kings they had set up, which was then very common among them for much slighter Occasions? And to go no higher than U^illiam, (whom you call the Cwjtqueror) can any Man believe, that if he had retained all the Lands of England to himself, not only his ownNorman Lords and Soldiers, but those of other foreign Nations, who assisted him in this Expedition, would ever have suffered him to have reigned in quiet over them, if instead of a limited King he had set himself up for anabsolute Monarch, and have granted them no Estates but at his Will and Pleasure ; which would have reduced the Conqueror and the Conquered to the same Condition?

But as for your Example of Malcolm Canmor, I cannot believe that the Kings of Scotland were ever possessed of the whole Hereditary Property of all the Lands in that Kingdom, so as that no Man had any settled Interest in them before that time; and therefore I must beg your pardon, if I think this Passage in their Historians to be very suspicious, if not false. But I speak this only by the by, and I reserve what I have more to say on this Head for another time, wherein I doubt not but to be able to shew you, as evidently as can be done after so many Ages, that all the Kingdoms in Europe, which are descended from the Gcthick or German Nations, commenced at first from Compact with their first Kings, and have thereby an unalterable Right in their Lives, Liberties and Estates; and if so, have likewise Right to defend them, if generally and universally invaded by their Princes.

But granting, for the present, what you have asserted to be true, that all this Property, which is now in Europe,proceeded wholly from the Grants and Concessions of Princes; yet will it not follow, that by the Law of Nature oar Nations, if any King should go about generally or at once to invade the Liberties and Properties of their People, they might not lawfully be resisted: For, as I said before, even a Slave, when manumitted by his Patron, may lawfully defend his Liberty against him, if he goeth about to take it away, and reduce him again into Slavery. So likewise, in the same State of Nature, if a Prince freely grant his Subjects a settled and hereditary Property in their Estates, they have likewise a Right to defend them against him or any other, that would endeavour by force to take them away: For he that in this State grants any thing to another, grants him likewise a Right to keep it, whether the Donor will or not, or else it were indeed Swpov ZSopov : For he that in the State of Nature grants another Man any thing to be possessed or enjoyed only as long as he himself, or his Heirs, stall think fit, doth in effect grant him as good as nothing; since he may alter his Mind to morrow, and demand it again, and take it away the very

"next day. So that if you will grant, that Subjects have such a Right to their Estates, as that the Prince cannot without manifest Violence or Injustice take

:them away, you must likewise grant, that they have also a Right to defend them. T.T.G. s.19. But I suppose you will not deny that Right, that all Men have to their Civil

: Properties in all our European Kingdoms and Commonwealths, tho' never so abso

• lute: But your Objection against the Subjects defending it by force, if it be invaded, is, that it may cause Rebellion and Confusion. I grant indeed, it may sometimes occasion Civil Wars or intestine Commotions, if the People, finding their Liberties and Properties notoriously invaded, stall oppose the unjust Violence of those who,

■ contrary to the Trust reposed in them, do thus violently invade them: Therefore (forsooth) if this Doctrine be allowed, it may prove destructive to the Peace

* of Kingdoms and Commonwealths, and consequently to the Good and Happi"ness of Mankind: But methinks you might as well have argued, that honest Men

might not relist Robbers or Pirates, because it may occasion Disorder and Bloodshed: If any Mischief come in such cases, sure it is not to be charged upon him who defends his own Right, but on him that invades another's. If the innocent


honest Man must quit all he hath, for quietness fake, to him who will lay violent hands upon it, I desire it may be considered, what a kind of Peace there will be in the World, which would consist only in Violence and Rapine, and which would be maintained only for the benefit of publick Robbers and OppreQTors.

M. But pray, do you make no difference between a Knot of Thieves and Robbers, and the Civil Government of a Monarch or Commonwealth, which I suppose may very well be maintain'd without any Hereditary Property in Lands, as you have granted? And it were much better, in my mind, to forego these outward things, than resist the Civil Government, which is the Ordinance of God, as you your self acknowledge.

F. I think the best way to end this Controversy, will be, to desire you to give a Definition of Civil Government, that we may know what we mean by it; therefore pray will you give me an easy and plain Definition of it?

AL Well, Sir, I shall comply with your Desires: I then take Civil Government to be an Authority conferred byGcd cn one or more Persons, to make Laws for the Benefit and Protection of the Subje&s, and to inflifl suchPunishments for their 'transgression, as they flail think fit, and by the Subjects Obedience and Assistance to protetlthem against foreign Enemiet, and also to appoint what Share of Civil Property each Perfcn in thatCommonwealth flail enjoy.

F. Sir, tho' your Definition be somewhat lame, yet I am pretty well contented with it, only I will (hew you by and by wherein it is deficient. The first, and therefore chiefest Branch or Office of Civil Magistrates, is, to make Laws for the Benefit and Protection of the Subjects : Is it then a Branch of this Power, to send Soldiers or Dragoons to take away their Liberties, Lives or Estates? This sure is directly contrary to their Duty, and that Trust which God hath conferred upon them. Let us go on to the next Branch, the Infliction of Punishments for the Transgression of such Laws : Is this a Part of Civil Government, not only to fend their Soldiers and Officers to take away their Subjects Lives and Estates, but also to let the most capital Offenders or Robbers pass unpunifh'd, when they have done? If you maintain these to be the Prerogatives of Civil Government, or that to be Civil Government where these things are commonly practised, you may, even with Mr. Hobbs, set the great Leviathan free from all Obligation to his Subjects, any further than he shall think fit for his rwn Interest, and make them always in a State of Nature, that is, (as he supposes) of War with them; and then pray tell me, whether such a State can be the Ordinance of God, or not? But to come to the last Branch of your Definition (and in which alone I think it deficient) the appointing what Share of Property each Person in that Commonwealth shall enjoy: Tho' I grant it may be the Prerogative of Civil Governments to appoint this at first, yet are they likewise obliged to maintain this Property, when it is once instituted; and the People have as much Right to it as any King can have to his Crown, viz,, the Civil Law of that Country, or Consent of the whole Nation : And therefore if, according to King James the First's Rule, a King of a fettled (or limited) Kingdom, will break at the Laws thereof,and degenerate into a Tyrant, unless such Tyrant be the Ordinance of Gcd, he may certainly be so far opposed: For what can Pirates or Robbers do. more than his Officers and Guards by his Commission? The former can but murder Men, ravish their Wives, burn their Houses, and take away their Estates; and if the latter may do so Loo,pray where is the difference? Or what Satisfaction is it to me, that I am ruined'by one Man having the King's Commission, or by another that ruins me without it f since I am hire God hath given the one no more Authority to do it than the other. If then this unlimited Power be neither conferred by God nor Man upon the Civil Magistrates, I would fain know any Reason why Thieves and Pirates may be resisted, but their Instruments may not, that do the fame things? And why, when Civil Authority exceeds its utmost bounds, the Slate of Nature or Selfdefence may not take place ; since the. Civil Government is as much dissolved by seen violent Actions, as if a foreign Enemy had broke in, and conquered the Country?

But to answer your Query, whether I think a Civil Government may not be where there is no settled Property in Estates, and whether the Eastern Monarchies are not Civil Governments? To this I answer,, that I have Aristotleon my iide, who not without Reason affirms, that the Government of one Man, where there is no Gvil Property, ar.d where all Men are Slaves, is not Civil Government, but that of a Master of a great Family over his Slaves: And tho' I grant, that they may have some shew of Civil Government among them, as in a Plantation, where one of the Slaves may complain to the Master against another, for any Injury or Wrong done him; yet is not this Property Civil Government, any more than that of the Master of a separate Family, who looks upon himself as absolute Lotd over all his Slaves, allowed him by God, only for his Benefit and Grandeur, and not he instituted (as all Civil Powers are) for the Good and Preservation of the Subjects.

M. But methinks you seem herein to condemn the Government of GodV own People the Jews, which no doubt was an Absolute Monarchy, and that restrained by no Laws, except what God had exprefly prescribed them: And yet you see, notwithstanding Samuel told them, that their Kings sliould take away their Fields and theirVineyards, and give them to his Servants, and take their Sons and Daughters to be his Servants or Slaves; yet God leaves them no Power to resist them for so i Sam. 8.18. doing; but all the Remedy left them is, that they shouldcry out in that Day, be~ cause of the King-which they had chosen, andttie Lord would not hear them; that is, there was no Remedy left them but Patience.

R I have already given you my Sense of that Place, and I mail speak more particularly to it, when you sliall come to those Texts of Scripture, that you said you would produce for Absolute Subjection and Non-resistance:And therefore at present I shall only here shew you what the Earl of Clarendon, in the above mentioned Survey of the Leviathan, cap. 19. hath very prudently as well as honestly said con74- 77- cerning this Text. "They who will deduce the Extent of the absolute and iltf"mited Power of Kings from that Declaration by Samuel, which indeed seems to "leave neither Property nor Liberty to their Subjects, and could be only intended "by Samuel to terrify them from that mutinous and seditious Clamour; as it "hath no Foundation from any other Part of Scripture, nor was ever practised or exercised by any good King, who succeeded over them, and was blessed and "approved by God; so when those State Empiricks (of what Degree or Quality tl soever) will take upon them to presetibe a new Diet and Exercise to Sovereign "Princes, and invite them to assume new Powers and Prerogatives over the Peo"pie, by the Precepts, Warrants, and Prescriptions of the Scriptures; they "should not presume to make the Sacred Writ subject to their own private Fancies. So likewise in a Leaf or two before he speaks much to the fame purpose : " That Tag. 74. "what Samuel had said was rather to terrify them from pursuing their foolish De"mands, than to constitute such a Prerogative as the Kings should use, whom "God would appoint to go in and out before them ,• which methinks is very ma"nisest, in that the worst Kings that ever reigned over them never challenged or "assumed those Prerogatives: Nor did the People conceive themselves liable to <c those Impositions, as appears by the Application they made to Rehoboam, upon ** the Death of Solomon, 'that he would abate some of that Rigor his Father had "exercised towards them ,• the rough Rejection of which Request, contrary to "the Advice of his wisest Counsellors, cost him the greater Part of his Domi"nions : And when Rehoboam would by Arms have redue'd them to Obedience, "God would not suffer him, because he had been in the fault himself." From whence you may conclude, that this Great Man did not think all Resistance unlawful, in case of general and intolerable Oppressions.

Mr I shall give you my Opinion farther of what you have now said, when you have told me more plainly in what Cases you allow Resistance of the Supreme Powers^, and in what not. For till you have been more clear in this matter, I cannot tell what Judgment to make of your Tenets.

F. I thank you for putting me upon so fair a Method : And therefore that you may not mistake me, and suppose that I would go about to allow Subjects to resifit and take up Arms against the Supreme Power,. upon any less Occasion than an absolute Necessity, and apparent Danger of being destroyed, and ruined in their Lives, Liberties, and Estates: First therefore, considering that the Corruption of Humane Nature is such, that no sort of Government whatsoever can continue long, without some Inconveniences and Mischiefs to particular Men ,• nor that any Man, either Prince or Subject, was ever Master of such perfect Wisdom and Goodness, as always to perform his Duty so exactly, as never to offend: I do in the first place grant, that it would be both undutisul, as well as unjust, for Subjects to rebel against their Prince for his personal Failings or Vices: Undutisul, since the

Prince

Prince may be oftentimes an ill Man in his private Capacity, and yet a good Governor, in respect of the Publick; and also unjust, since neither do we ourselves exactly perform our Duties towards the Supreme Powers (or to one another) as we ought: And therefore it is highly reasonable for Subjects to endure, and pass by the personal Faultsor Failings of Princes, in consideration of that Protection and Security in their Lives and Fortunes, which they do enjoy under them; since it hath been found by Experience with how great a Slaughter of People, and how great a Confusion, and Danger of the whole Commonwealth, evil Princes have been resisted, or turn'd out of their Thrones. And therefore, I grant the private Injuries of Princes are to be pass'd over, in consideration of that greatCharge they undergo; and for those greater Benefits we receive from their Government; but chiefly for the publick Peace of the Commonwealth, or Civil Society. And therefore, I own it is very well said by that Master in Politicks, Tacitus, That the ill Humours, or Dispositions of Kings are to be born withal* and that often Mutationsof Governments are of dangerous Consequence. And he wifely introduces Ceriaks speaking to this purpose to the Rebellious Treveri: That they ought to bear with the Luxury and Avarice of Rulers, as they do with immoderateShowers, and other unnatural Evils; since there tors be Vices whilst there are Men, yet neither- are these,continual, but are often recommenced by the Intervemion of better.

But I will now particularize those Cases wherein I do absolutely disallow, and disclaim all Resistance in Subjects against the Supreme Powers.'

1. I deny all Resistance to Subjects against their Princes, or Supreme Magistrates, in all such Actions, or Prerogatives, which are absolutely necessary to the Exercise of their Supreme Power, viz,, of protecting and defending their People; as also against those who are commission'd by them for the Execution of such Powers.

2. I condemn all Rebellion against Princes, or States, meerly on the Score of Religion, or because they are not of the Religion of their People, or Subjects, if there be no positive Law extant, disabling or forbidding Princes, or other Magistrates of different Religions than that of their People, from being admitted to the Throne, or Government.

3. I look upon it as Rebellion in the People, tiunultuously to rife up in Arms to alter, or reform the Religion of the Nation, or Kingdom, already established by Law, without the Consent of the Legislators. • *

'4. I disclaim all Resistance, or Self-defence in Subjects, upon the account that _ the free, or publick Exercise of that Religion they profess, is not allowed them By the Legislative Power of the Kingdom, or Nation, provided that such Supreme Powers do not forbid, or hinder the People professing such a different Religion, to sell, Or transport their Estates, and Persons into any other Country where they please.

'. deny Resistance to Subjects against their Princes or Governors upon pretence of any personal Vices; as because they are wicked, atheistical, cruel, lustily or debauched, provided they generally protect their Subjects in their Lives, •Liberties and Properties. - <.' •' >

6. ;I deny this Right of Resistance to any particular Person less than the whole Body, or major part of the People ,• or at least such a considerable Portion of a Nation, as are able, when assaulted or oppressed in their Lives, Liberties ot Estates, to constitute a distinct, and entire Kingdom or Commonwealth of themselves-.'

"" *s.  J look upon it as wicked, and rebellious for any private Subjects to assassinate, murder or imprison their Monarch, or other Supreme Governor, since no private Person whatever ought to lay violent Hands upon his Prince, whose Person ought to be sacred, and in no wise to be violated, unless he put off the Character of a Prince, and actually make War upon his People. But if in this Case he happen to be resisted, and perish in the Attempt, he falls not as a Prince, but as a common Enemy, by breaking the Original Compact with his People, and entringintoa State of War against them : As a Father who unjustly makes War upon his Children, may be, (as I have already proved ac our first Conference) resisted by them in the State of Nature.

But

But as for all other Grievances, or Oppressions, if they are of that Nature as may ruin the whole Commonwealth,yet not suddenly, but after some time, and often repeated, I cannot allow such Grievances, or Oppressions, as a sufficient. Cause of Resistance j For as on the one hand, there is no Inconvenience so small but in process of 'Time it may turn to the Ruin of the Commonwealth, if it be often repeated, and excessively multiplied; so on the other side, length of Time produces so great Changes, that the Nature of these Encroachments or Injuries are not sufficient to juitifie Resistance, and the Breach of that Peace and Unity in a Commonwealth, which mast neceslkrily follow by entering into a State of War.

To conclude: I do not in any case whatever allow of Resistance, but only in these three necessary ones : When the Lives, Liberties, or Estates of the whole People, or the greatest part of them, are either actually invaded, or else taken away; and when they are reduced into so bad a Condition, that a State of War is to be preferred before such a Peace; and lastly, when the end of Civil Government, being no longer to be obtained by it, the Commonwealth may be look'd upon as dissolved.

As. Though you have been pretty long in treating of this Matter, yet I did not think it tedious; since I confess you have given me honestly enough (and so far I agree with you) all those Cases wherein you fay it is unlawful for Subjects to take up Arms, or resist the Supreme Powers: But I wonder you have not added one Cafe more, wnich divers Authors, that are high enough against Non-resistance in other things, do yet allow to be a sufficient Cause of taking up Arms, and resisting their Prince s And that is, when he actually hath, or goeth about toalienate, or make over his Dominion and Subjects to some foreign Prince •or State. s

F. I am not ignorant of what you say, but I thought it not worth speaking of; because in absolute Monarchies(which we are now treating of) if such Kingdoms are Patrimonial, and that the Monarch hath such an absolute Dominion over his Subjects, as neither to let them enjoy any Liberty in their Persons, nor Properties in their Estates, but at his Pleasure, I cannot fee any Reason why such a Prince may not alienate his Dominion over such a Kingdom and People, as well as any private Man may his Property in his Estate: Nor have the People any cause to be concerned at it, since they can then likewise be but Slaves, and enjoy nothing but at their Prince's Pleasure, as they' did before j so that whether he, or a Stranger govern them, it is all one as to their Circumstances. .But yet under such Governments as are not absolute, where the People enjoy their personal Liberties and Properties in their Estates, the Cafe may be muchother-' wife ; since they may not be sure, that the foreign Prince, to^whom their^pjjrn Monarch, or other Supreme Powers, hath assigned them, will maintain their Liberties and Properties as the former did. And therefore not being Slaves before, they cannot be alienated 'without their own Consents, and consequently they may take up Arms, and defend themselves" if they are able; unless the Prince or State, to whom they are so alienated, will give them-the like Assurance to preserve their Lives, Liberties and Properties, as their former Governors did. And therefore I do conceive the People of the Islands of Cyprus and Candy might very well have refused to become Subjects to the Grand Seignior, in cafe the Venetians sliould have sold or aliened their Dominion over them before he had actually conquer'd them. But in limited, or Hereditary Kingdoms, which are so by their Fundamental Constitution, I suppose, the Prince cannot, upon any account whatsoever, make over his Dominions to a foreign Prince without the Consent of his People, and next Heir. And therefore (granting the Story to be true), I doubt not but the People of this Kingdom might very well have opposed King John, if he had gone about to have subjected it to the Dominion of the Emperor of Morocco, upon Condition that he would assist him with ah Army of Moors to subdue his Barons, and Nibiltty, then in Arms against him. . )

M. I confess it is not worth while to dispute about that which so seldom happens, and is indeed almost impossible to be put in practice ; and therefore I shall not much oppose you in what you have said upon this Cafe ; yet, that I may be as good as my Word, and give you my Judgment concerning what you have lately said, I must freely tell you, that as it may happen, that a Prince or State may sometimes abuse their Power, so as to take away the Liberties and Estates^


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of 411 their Subjects, as you have set forth, (arid which I confess is a very great Mischief ) yet upon second Thoughts," I think it were much better that this Inconvenience should be suffered, rather than the worse Mischief of leaving Subjects to be the sole Judges, when their Liberties and Estates are invaded^ or like to be taken away; nay, every private Subject would be first Judge of it, Or else the whole People could never come to pass their Judgment upon it, which would leave too great a Latitude for turbulent and rebellious Spirits to make Disturb bahees in Kingdoms and Commonwealths; especially, if there be any small Grievances on the Subjects ; especially too; if they touch at those things they account their Hereditary Liberties and Properties. These, (though never so small) if the People are suffered to be their own Judges, (as you make them to be in their own Case) will soon be aggravated, and blown up to intolerable Oppressions of, and Invasions upon their Liberties and Properties, when indeed they are not. This is a pernicious Doctrine; for it will be a perpetual Cause of Quarrels, Civil Wars, and Rebellions, which would turn all Commonwealths, thb* never so well constituted, into Anarchy and Confusion. So that as you have stated this Question, you have broached a Principle highly destructive to all Civil Government : For if all, or any of the People, may resist or rebel (call it what you • please) whenever they think themselves oppressed in their Liberties and Estates, L. 0. •' this is for them only to be obedient, when they think themselves well governed; but stubborn and rebellious^ when they believe they are not; which would be to make all Government precarious and conditional, and the People not only Parties, but Judges, and Executioners too in their own Case, how far these Conditions are observed on the Governors part; and then the Regularity ot Irregularity of the Administration will no longer be the Question, but the Validity of the Power to command. And there wants no more to dissolve such l Government, than for Dick, or Tom, and every Rascal of the Mobile to say, This or That is destructive to the People's Liberties and Properties, and therefore an insupportable Grievance and Oppression. Arid if you will once allow any number of the People, though never so many, to judge this, or that Law, or Order of the Government, not to be for their Good, and that they may likewise resist and right themselves by Arms, whenever they thus fancy^they will quickly come to fay, that the Government it self is not'for their Good neither. And upon this ground all the Rebellions, raised by an incensed, and mistaken Multitude against the Government in all Ages, may easily be justified; and Wat. Tyler, and MaffianeUo shall be so far from being Rebels, that they may pass in suture Ages for Heroes, and noble Assertors of the People's Liberties. And I hope you will believe, I do not speak this out of any Liking or Approbation of Tyranny; or that I desire that Princes should stretch their Power to the utmost, to invade their Subjects Liberties or .Estates; but only to let you see, how far your Principles majr serve the Pretences of wicked Men to set whole Kingdoms together by the Ears, whenever they find the People so far discontented with the Government, as to be-lieve their malicious and wicked Insinuations: Of all which those long and cruel' Civil Wars, and Rebellions, which for several Years tormented, and almost ruined these three Kingdoms, are too late, and fad Examples.

F. I confess, Sir, you have made a very pathetick Speech, and exerted, I suppose, the utmost Strength of your Reason and Eloquence on this Subject ; for you have made the Consequences, of this Principle, viz.. (That thePeople may judge when their Liberties and Properties are invaded) to seem very dreadful. But after all, it is no more than what you have urged in great part already: And the main Strength of your Argument lies here, that if the People should take upon them but once to judge when they were notoriously injured or oppress'd, and thereupon take Arms to right themselves; they would soon make bold to put this Power into Use and Practice, when they had no occasion for it at all, or at least not sufficient to make any open Insult. But to shew you that there is no need of such an infallible Judge, as you suppose, to be necessary in a Commonwealth, any more than there is in the Church ; pray tell me, Sir, would it not have been very convenienr, if Christ had appointed aninfallible 'Judge (be it the Pope, or General Council, or both together) to decide all Controversies in Religion, and to whose Judgment allPeople ought to submit?

S  M.I

As. I cannot dfeny, but it would have been a very ready way to end all Disputes about Religion; but since God' hath not thought fit to appoint any such Judge, it were very great Presumption in us to set up one to please our Humour, since such a one could have no Infallibility, unless it were given him from above.

F. You judge very well; and doth it not therefore follow, that since there is no such infallible Judge, all Men ought to judge for themselves of the Truth of their Religion; and also in the Christian Religion, what Doctrines are agreeable to the Wosd of God, and what not? And yet you fee that from the ill use of this Liberty have sprung all the different Sects and Heresies in the World. Does it therefore follow, that Men must not make use of this Liberty, because they may abuse it? So likewise, must Subjects judge in no case whatsoever, when the Supreme Power tyrannizes over them beyond what they are able to bear? And must they never resist, or endeavour to cast off this insupportable Yoke, because they may happen one time or other to be wanton, and believe themselves oppress'd when indeed they are not?

M. I grant your Parallel would have somewhat in it, were the Consequences of every Man's judging for himself in Matters of Religion as fatal to the Peace and Happiness of Mankind, as your Doctrine of the Subjects judging when it is fit for them to resist the Supreme Powers: For I do not at all debar them from the Right of judging when they are oppress'd, or ill used by them, for that may very well consist with the Publick Peace j but I utterly disallow all manner of Resistance by Force, because it tends, not only to dissolve all Civil Government, but to disturb the common Peace and Safety of Mankind.

F. Notwithstanding your Distinction, the Parallel will held in both Cases; for are not Differences in Religion as fatal to the Peace and Unity of the Church, as the Subjects judging when they are oppress'd, and thereupon taking up defensive Arms, can be to that of a Civil State? And do not more Wars, and Quarrels arise about Mens Differences in Religion, than from any other Cause you can name? So that if the Peace of the Church were a sufficient Cause for supposing a certain, or infallible Judge in Religion, there would be the same Reason to suppose it in Civil Matters too. And therefore your Argument from the abuse of this Liberty of the Subjects judging when they may resist, is of no more force in one Case than the other: For I grant it may so happen in a Civil State, as well as in an Ecclesiastical, that the Subjects may rise up, and relist their Civil, as well as Spiritual Governors, without any just Cause ; doth it therefore follow, that God hath wholly delivered up Mankind to the domineering Humours of Men in Power, let them abuse it never so grosly? And therefore we must not be wiser than God Almighty himself. And when he hath not appointed any certain, and infallible Judges, either in Civil or Spiritual Matters, without any Contradiction, or Resistance, we ought not to suppose a Necessity of such Judges, mecrly because of some Inconveniences, which may perhaps often happen from the abuse of that Christian Liberty he hath given us. For then, I doubt, you will find the Remedy would be much worse than the Disease ,- as if, to avoid Heresies, we should set up. the Pope for an infallible Judge. So would it be likewise, if, to avoid Civil Wars, and Rebellions, we should set up the Supreme Magistrate (as Mr. Hobbs hath done) for a certain and irresistible Judge of whatsoever Means are necessary for the People's Quiet and Preservation; since I have already proved, that an insupportable Tyranny is not Civil Government ,• and that the Supreme Powers can no more alter the Nature of Things, but their own Laws or Edicts, -than they can ordain Poison to be used, instead of wholesome Food, by the People.

M. I confess what you have now said carries some weight with it; and my own carnal Reason doth very much incline me to your Opinion, were it not for two things; the one (as I said) is the horrid Rebellions that have, and may again arise in these Kingdoms from this Principle; which hath made God so strictly forbid all Resistance ofthe higher Povxrs, upon any account whatsoever: And therefore you are much mistaken when you assert, "rhatResistance, though for Self-defence, is one of the Liberties that God hath left us; since certainly he would never so severely have forbidden it, but that he not only knew how prone Men's corrupt Natures were to Rebellion, but also foresaw the fatal Consequence of it,

F. 

P. If God's Commands in Scripture be the greatest Argument you have against all Resistance whatever, I doubt not but to shew you (when we come to it) that you, as well as others, are mistaken in that strict Interpretation of those Places of Scripture. And as for the evil Consequences you suppose may folsow from this Doctrine, I doubt not likewise but to convince you, that much worse will follow from the irresistible Tyranny of the Supreme Powers, than ever have happened from the dreadfuHest Rebellions. And therefore, I desire you to take Notice, that what I have now said is not out of any design to justifie so horrid a Crime as I grant Rebellion to be, or to incite Subjects to be guilty of it; but only to hinder Civil Government from being destroyed, and Mankind from being made miserable.

For 1 have first asserted, that ho Resistance whatever is to be made in absolute Governments, but in those Cases in which the main Ends of Civil Government are visibly destroyed, or so near it, that there is no other means left but Resistance to prevent it- And then, when things are once brought to this pass, it is rot the People that make this War, but the Governors, who by their Tyranny have brought the Commonwealth into this Anarchy and Confusion you so much dread ; so that it is not the People, but they that are the Aggreslbrs.

And as for the ill use that may be made of this Doctrine, to stir up the People to Rebellion, when they have no just, or sufficient Provocation to resist: This will not prove of that dangerous Consequence you imagine, if you will but consider, that I do not allow this Resistance in any Case, but when the Violence, or Oppression of the Governors is so evident, and insupportable to all the People that groan under it, that no indifferent Man in his Senses will be able to deny it; for as long as it remains disputable, whether or no the People are sufficiently oppress'd in their Liberties or Estates, the Trust reposed in the Supreme Magistrates makes them the sole Judges of the Necessity of such exorbitant Actions, as being intrusted by the People as Men supposed to be both wise and good, and themselves ignorant in divers Cases of the true mears of their own Preservation; and the Supreme Powers remain the sole Judges, I fay, as long as the Case is doubtful or uncertain. ,

But since you have already acknowledged, that the People might judge (if such a Case -should happen) whether the Prince, or other Supreme Magistrate, makes actual War upon them, I would very fain know why the People cannot as plainly distinguish when he sends his Guards, or Dragoons, to take away their Lives and Liberties, or to turn them out of their Estates: And 'till this be done, 2nd the Tyranny so evident, general, and insupportable, that it is past all Question, I grant that the People ought to have Patience, and rather suffer many Oppressions and Hardships, than put themselves into a State of War. So that I think it, is morally impjfible, that the People can be mistaken in so evident A Cafe. Nor I believe can you scarce shew me one Example, either out of antient or modern History, of any whole Nation or People, or the major part of them, that did ever rise in Arms to cast off either a Foreign or Domestick Yoke,, which pressed too hard upon them, but when they had the most unavoidable and justest Causes so to do. And I believe I can shew you ten Examples out of Histories, (if the Question were to be decided by them) for one you can shew me to the contrary. 'Tis true, some private Men may sometimes make Disturbances, or Rebellions, but 'tis commonly to their own just Ruin and Perdition: For 'till the Mischief be grown general, and the Violence of the Rulers become evident, and their Attempts to destroy, or make Slaves of them, ate •most sensible to all, or the greatest part of the People, they are commonly more a great deaf disposed to suffer, than to right themselves by Resistance, well knowing the Mischiefs of War, and how destructive it will prove, not only to their Lives, but to the Welfare of their Families and Posterities, as well as private Concerns. So that the Example of some particular Injustice, Oppression, nay, absolute Ruin of here and there an unfortunate Person, moves them not. But if once they find their.Lives, Liberties and Estates, universally assaulted, and about to be taken away, who is to be blamed for it ; the Magistrate, or the People? For the former might hax'e avoided it, if they had pleased, either by not urging them to that Extremity at all, or at least redressing those Grievances and Oppressions before they became so general, and insupportable, as -not to be any longer endured. •■' '•

Sa &j

/

So that, though I grant, the Ambition, or Turbulcncy of private Men have sometimes caused great Disorders in Commonwealths, and Factions have been fetal to States and Kingdoms; yet whether this Mischief hath oftner begun from the People's Wantonness, and Desire to cast oft" the lawful Authority of their Rulers,• or from the Rulers Insolence, and Endeavours to get, and exercise a Tyrannical, Arbitrary Power over their People ,• that is, whether Oppression or Disobedience gave the first Rise to the Disorder, I leave it (as I said) to impartial Observers of History to determine.

But this I am sure of, whoever (either Ruler or Subject) goes about by force to invade the Rights of either Prince, or People, and lays a Foundation for overturning the Original Constitution and Frame of any Civil Government, he is guilty of the greatest Crime I think a Man is capable of, being to answer for all those Mischiefs, Bloodshed, Rapine, and Desolations which the breaking to pieces of Governments does bring on a Country. And he who doth it is justly to be esteemed a common Enemy, and is to be treated accordingly.

But as for the Instances you give of Wat. Tyler, and Mijfianeffo, I grant indeed it may so happen, that a great part of the common People, or Rabble, may sometimes upon sudden, or false Apprehensions, occasioned by some real Grievances or Oppressions, such as are great Taxes, or Gabels imposed by the State, take up Arms, and rebel against the Supreme Powers: Yet these Examples do not reach the Question in hand; these Insurrections or Rebellions you mention, being of a much Jess number than the whole People, or the major part of them; and in which I still include the Nobility aud G entry, and other Landholders, as the most considerable part. And so those Insurrections were in no wise justifiable, especially in such a Government as ours, where no Man can be taxed but by his own Consent, included in his Representatives; whereas all these Rebellions were chiefly (if not altogether) made by the meaner sort, or Scum of the People, of one, or a few Countries, whom I can never allow to make Disturbances j since they, having very little to lose, ought, in all Civil Governments whatsoever, to be directed and governed by those, in whom the Ballance'oT the Government in Lands, and other Riches, doth reside, and on whom, they chiefly depend for their Protection and Subsistence ,• and consequently ought to make no Alterations in the State without their Consent and Approbation.

But as for your other Instance, of the Wars raised in these three Kingdoms against King Charles the First, upon the Pretence of our Religion, Liberties and Properties being invaded, it is not proper to be treated of in this place; since we are now discoursing of the Power of Princes, and the Right of Subjects under absolute, and not limited Monarchies: And I grant, that some Resistance may be Rebellion under absolute Monarchies, which would not be so under limited ones; yet I do still suppose that it may be lawful under such limited Monarchy for the People to take up Arms, and make Resistance in defence of of those just Liberties and Privileges which they lawfully enjoy, either by the Original Constitution of the Government, or by Acts of Grace, or Concession of the Prince: But this requires a more large and accurate Discourse, which at another time I am ready to give you. Therefore, granting at present, that those Wars were downright Rebellion against the King; and also that they were made under Pretence of the Principle I now assert, yet doth it not at all overthrow the Justice of that Cause which I now maintain; since (as I have already more than once intimated) the abuse that may be sometimes made of a natural Right by some wicked, factious or hypocritical Men, ought not in the least to prejudice the Exercise of that Right to all the rest of Mankind,* who may lie under a real Necessity of making use of it.

To conclude : If the People may never be trusted to judge when their Liberties and Properties are actually invaded, because they may happen one time or other to be mistaken, and so enter into a State of War, without Cause, to the Destruction of Mankind, this Argument would serve as well against all Princes and Commonwealths who, being in the State of Nature with each other, should never make War for any Cause or Provocation, how great soever; because being Judges and Executioners too in their own Case, they may more easily happea to be mistaken. I suppose you yourself will grant, that one, or a few Men are more apt to be in an Error, than a Hundred thousand. . And I have

already

already proved, that where the People have never wholly given up their Liberties and Properties unto the absolute Will of the Supreme Powers, they are, as to that, still in a State of Nature, and do reserve to themselves a Right of judging when they are violently and insupportably invaded; and consequently of vindicating themselves from that Oppression. And therefore, granting what you have said to be true, that the People may sometimes happen to abuse this natural Right of judging, and resisting, by exerting it, when there is no real and absolute Necessity : So on the other side, if they are wholly debarred from it, because they may happen sometimes to abuse it, the freest People in the World, m. (our selves, for Example) may easily be reduced into a Condition of absolute Slavery and Beggary, and that without all Remedy by any humane Means that I can think of; and which is the worst Mischief of these two, Heave to your self, or any indifferent Man to judge. • . t

M- If you will have my Opinion in this point, I must freely tell you, that it itf a hard Matter to sind out a Mischief so destructive to the People, and which they should exchange for this miserable State of War, which you suppose may prove so beneficial to them; and yet I doubt, if it be thoroughly looked into, not only the Doctrine itself, -but also the lasting Wars and Miseries it may produce, would 'sufficiently prove the contrary; since the cruellest Tyranny, Slavery, and Loss of Estates, or any thing else almost, may be better born with in Peace and Unity, than a Civil War with the greatest Liberty and Plenty ; seeing all such Comforts would quickly be devoured, like Pharaoh's fat Kine, by such a cruel Monster feeding in their Bowels. And therefore, since Civil War is one of the greatest Calamities and Punishments that God uses to send upon a Nation, it seems evident to me, that the Welfare of any State, or People requires them to be obedient unto the Supreme Powers, though they be never so great Oppressors, or cruel Tyrants. For when once they enter into this dismal State of War, who can tell whether it will have an end, without almost the total Destruction of the Nation, or at least by bringing them into a far worse Condition of Slavery and Suffering, than they were before; since the State of Princes, oz other Supreme Powers, can never be so mean and inconsiderable in the World, as not to find, when like to be oppressed by such Insurrections and Rebellions of their Subjects, sufficient Assistance from neighbouring Princes, or States; who, making the Cause of such a Prince their own, will be sure to assist him to the utmost of their Power ,• it being found true by Experience,- as Tully long ago ob- , served, " That the afflicted State of Kings does easily draw the Help and Pity Cire 0r**"of many others, especially of those, who are either Kings themselves, or do egt* live in a Kingdom, the Regal Name being by them esteemed to be great and *' sacred." And farther, how ready a«way it is to subvert the State of any such distractep! Kingdom, and to bring it under the Subjection of Foreigners, we need not seek a plainer Proof, than by an Example no farther off than Ireland; where Dermot,King of Leinfter, being forced by his rebellious Subjects to crave the Aid of King Henry the Second for his Restoration to his Kingdom, his Assistance to recover his Right produced that effect which we now see, viz.. That the Irifl lost their Dominion, and became subject to the Crown of England even to this Day. -> ;.

And supposing, that the Subjects might likewise be assisted by some foreign Prince, who would undertake their Deliverance, they would not be in a much better Condition; since, if he were an absolute Monarch himself, he would be sure, for Example sake, as well as for their own Security, to carry as strict a Hand over them, and use them more severely than their own Prince had done before; and, I doubt not, but if Lewis, Prince of France, had been crowned King of this Kingdom, as he was very near'it, toward the latter end of King John s Reign, but that he would have been more cruel and tyrannical than ever King John had been before: So that they would have got nothing by the Bargain, but a Change of Masters, and a heavier Toke imposed upon them by a Foreigner.

And so much the Viscount Melun confessed upon his Death-bed to many of the English Nobility, which was the Reason of their returning again to their Allegiance to Henry the Third. So that I think it had been much better for the Barons and Nobility of this Kingdom never to have stirred or rebell'd at all against their lawful Prince. ~ - . .



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F. You seem so in love with Slavery, and all the Consequences of it, that it is a hundred pities but that you should feel the smart of it a little while, provided no Body was to suffer by it but your self and those of your Opinion: But could you see the miserable Condition those pcor People are'in who live under Arbitrary and Tyrannical Government, I doubt not but you would be os another Mind, and prefer a War now and then, tho' never so violent, before such a Peace; for when Men are once reduced to so desperate a Condition, as neither to be secured of their Lives, Liberties or Estates, they may have some hope to redress themselves by Resistance, but need not fear to be reduced to a worse Condition than they were before; and therefore I cannot understand how all the Comforts of a Civil Life would then be lost by a Civil War, when I have already put it as a chief part of the Cafe, that Subjects are never to make such a Resi/Umet but when the Supreme Powers are just about to begin, or else have actually enter'd into a State of War against their SubjeEls: For what can any foreign Enemy do more if he conquers them, than take away their Lives, Liberties and Estates? So that this is so far from being a State of Peace, that indeed the People are already exposed to all the Calamities of War; but a War, which you suppose may be made without any Resistance, whilst the Subjects (forsooth) are bound to keep the Peace; but much such another Peace as would be in a House into which "thieves having-broken, and the Inhabitants retiring into some upper Rccms, there stand upon their Guard and make Resistance; whilst the Thieves having seized upon all they have below, one of them should make such a Speech as this; / fray Sirs come down and submit your selves to Hi,for we ajfure you we intend not to kill you, hut only to bind you and take away aU you have; and is not Slaveryand loss of Goods better with Peace and Safety, than by assaulting Hi to provoke m to fire the House and kill youall ? for if you once enter into a State of War with Hi, it is very likely to end with your total Destruction; for ifyou continue to resist Hi, or think to call in Company to your Assistance, we can likewise call in many more of ourParty to come and help m; and then expect no Mercy. Now pray tell me, would not this be a very rational Argument to move these People to come down and surrender themselves to these Thieves, and partake of the Benefits of this excellent Peace they propos'd? and whether they would not tell them, that by shooting they would also call in the Neighbouring Town, whomight be too strong for all their fellow Thieves? Now if you will but take these honest People of the next Town for such Neighbouring Princes or States, who may joyn in the Assistance of such an oppress'd People, this Simile will fully, answer your Argument of those Neighbouring Princes that may take part with an oppressing Tyrant: And as for the consequence of such Assistance, on the one side or the other, that it may happen to bring them into a worse Condition than they were before, viz.. a Subjection to Foreigners (as I have put the Case) it can be no cause to deter the People from Resisting; for if they were (as I suppose) redue'd to a Condition of Slavery before, and had lost all their Liberties and Properties, how can we imagine them in a worse Case than they are already? And it is all one to such a People, whether their own or a strange Prince did tyrannize over and oppress them : Nay, were I to take my Choice, I had much rather be tyrannized over andopprese'd by a Foreigner than from my own natural Prince j since the former coming in by Force, and without any precedent Promise or Compact, I lie wholly at his Mercy, who hath no Obligation Upon him; and I had much rather, if I were to be a Slave, be so to a Stranger than to my own Father, if I were assured that both the one and the other would use me with like severity. And to answer your Instance of your Irish King, I think that Nation hath been so far from losing any thing by their Subjection to the English Government, that they have gained far greater Privileges and Liberties both for their Persons and Estates, than ever they enjoyed under their own Princes; so that they are rather the better than the worse by the Change. And besides, the Example is not to the Point we discourse of; the Quarrel being between two Jrijh Kings, where the stronger having injured the weaker, he called in the Enghjl to revenge his Quarrel; whereas the Question here is concerning the like Action done by the People against their Prince. And as for your other Example of PrinceLewis, it is uncertain whether the Condition of the Enghjh Nation would have been either better or worse under aFrench King. But thus much I am sure of, that had King John proceeded in that Tyrannical Course against his Barons and the rest of his ;f ."* \ ' * Subjects, Subjects, they could scarce have been in a worse Condition under the French; nay the Moors themselves, had King John actually surrendered his Crown to the Saracen Emperor, as the Historians of those Times relate he offered to do.

Nor can I be of your Opinion, that it had been much better for the Barrons and Nobility of this Kingdom never to have stirred or resisted the King at all; since if they had not, they had never obtained the Great Charter of ourLiberties from him; and if they had not as vigorously defended it when they had once got it^ I doubt not but the People of England had been long before this" time in the fame Condition, as to their Liberties and Properties, as some of our Neighbouring Nations ; all which is sufficient, I think, to prove that Resistance, in desperate and unavoidable Cafes, is not attended with those Mischiefs' and Inconveniences you suppose.

M. I stall not say much more in answer to your last Discourse, since it would be to little purpose, but only take notice that Similes are not Arguments; and therefore your Comparison between Thieves and honest Men doth not hold as to Princes and Subjects; since sure there is a great deal of difference between those that are to be Obeyedas the Ordinance of God, and thole who are obliged in Conscience to be subject to them, and Thieves who act directly contrary to God's WiH, and honest Men who having no obligation to them may justly resist them: So that if that be false, the rest of the Comparison will signifie nothing. And as for what you fay concerning MagnaCharta, I think it is not much for its credit to nave been extorted by Force, and afterwards defended" by Rebellion; tho' I will' not go about to impeach the Validity of it, since so many of our succeeding Kings have so solemnly and voluntarily confirmed" it; only pray take notice that it is Wholly derived from the Grace and Bounty of Our Monarch's, and therefore we are not to resist, trio' it may happen to be sometimes, and in some particular Cases, broken and infringed by the King, for some great Occasions and Necessities, ot which we are not competent Judges.

But to comfe to the rest of those evil Consequences that may attend your Doctrine of Resistance; I think the Benefits would be much greater to the People by strictly adhering to those Doctrines' of absolute SubjeElion andNon-resistance, than by propagating yours of Rebellion; for if the former were constantly taught and inculcated as most beneficial for them, and if they were once really persuaded of the Train of it, and would bbth constantly profess and practise it, it would make all Princes much more gentle and mild to their Subjects, tsiah otherwise at some times they are; for now they are still fearful that they will' take the first Opportunity they can to take up Arms against them; and upon the least Grievance or Misgovernment, to resist their Authority; for then Princes not needing to keep any fuels constant Guards artd Standing Armies, might afford to' lay much easier Taxes and Impositions upon them, for the maintenance ahdfupport of the Government, than rstyovthey do; and'in stort, would have much fewer Temptations to Tyranny and Oppression, could they be ohee assured of their Subjectsabsolute Obedience and Subjection: Whereas when they are under1 those constant Fears and'Suspicions ofInsurrections and Rebellions against them upon the least Occasion; it is no wonder if they are tempted sometimes'to abuse this Power for' their own Security. And therefore we read in our Histories, that William theConqueror never thought himself secure from the Englifi whom he had" newly conquered, till such time as he had turned most of the Nobility and'Gentry out ot their Offices and Estates, lest they stould have any Powerieft either" in his Life-time, or after his Death, rr>-ram him or his Posterity out of the Throne, as they did'the Heir of the Danijk King Cnute, who with his Dane's had'be'foreconquered England, as King William did afterwards with his Nmmani: So that upon the whole Matter it seems to me much more to conduce to the7 main design of CivilGovernment, viz. the Happiness'and Peace of Mankind in general, that" Princes and other Supreme Magistratesstould be suffered (I will not say authorized) by God, sometimes to abuse their Power to the general Oppression and. enslaving of the People, without any Resistance on their side, expecting their Deliverance wholly from him who can bring it about in his good time, and by such means as stall seem most meet to him, than that Subjects stould take upon them to be both Judges and Executioners too in their own Case; and thereby introduce not only all the Mischiefs of Civil Wart and all those cruel Revenges which the Wrath of an incensed Prince may justly inflict upon such Rebels in this Life, but also the Wrath of God, and those

Punistments

Punishments that he hath denounced in the Holy Scriptures in the Life to comej against such Rebellious Subjects as dare relist the Supreme Powers ordained by

Gad. v' . ■." ...

F. Before I answer the main part of your last Discourse, give me leave first to justify my Simile; for tho' I grant Similes are no Arguments, yet they often serve to expose the absurdity of several things, which either the false Colours of Eloquence, or the too great Authority of learned Men, might otherwise have hid from our Eyes: And therefore if the Supreme Powers have no Authority from the revealed Will <f God, or the Law of Nature, nor by the Municipal Laws of any Country, to invade their Subjects Lives, Liberties or Estates, they may be so far compared to Thieves and Robbers when they do; nor are such violent Actions of theirs to be submitted to as the Ordinance of God. And I suppose you will not deny, but that a Prince or State that does thus, acts as directly contrary to God's Will as Thieves themselves; and consequently, all honest Men or Subjects having so far no obligation to suffer or obey, may justly resist them; so that if this be true, all the rest of the Comparison curritquatuor pedibm.

But as for your Reflections upon Magna Cbarta, it is you your self, not I, that asserted it to have been extorted by Force, and defended by Rebellion; for it is very well known to those who are at all.conversant in our EnglijhHistories and Laws, that there was nothing granted in that Charter which was not the Birthright of the Qergy, Nobility and People long before the Conquest, and were comprized under the Title of King Edward's Laws, and which were after confirmed by William I; as also more expresly by the Grants of his Son Henry I. and KingStephen; as appears by their Charters still to be seen. And therefore these fundamental Rights and Privileges were" not extorted by Force from King John, as you suppose: The War commencing between him and his Barons, was not because he ■would not grant them fresh Privileges which they had not before; but because he had notfcept nor observed the fundamental Laws of the Land, and those Rights and Privileges which before belonged to the Clergy, Nobility and People, as well by the common Law of the Land, as the Grants of former Kings. And therefore if King John, by his apparent Breach of them, forced the Nobility and People to defend them, it was no Rebellion for so doing; nor was it ever declared to be so by any Law now extant. .r

But to come to the main Force of your Argument.; I confess it were an admirable Expedient, not only against Rebellion, but also the Tyranny of Princes, to Preach that they should not oppress their People, nor yet that the People should rebel against them ; but the preaching of these Doctrines, or getting as many as you can to believe them, will no more make Princes leave keeping Standing Armies, or laying great Taxes upon their People, than constant preaching against Robbery or Murder, will take away the necessary use os Gallows out of the Nation; since we know very well, that as long as the Corruption of humane Nature continues, so long must likewise all powerful Remedies against it. And therefore' your Instance of William the Conqueror will signifie very little; for I believe, had all those learned Divines (who have of late so much written and preached for v Passive Obedienceand Non-rejistance) been then alive, and had exerted the utmost of their Reason and Eloquence to prove them necessary j nay farther, I do not believe, tho' all the People of England should have given it under their Hands, that they would not have resisted or rebelled against King WtUiam, that yet he would have trusted them the more for all that, or have kept one Soldier the less for it; nor have remitted one Denier of those great Taxes he imposed; for he was too cunning and politick a Prince not to understand humane Nature, which cannot willingly endure great and intolerable Slavery and Oppression without Resistance, if Men are able; and therefore he very well knew, that after the forcible taking away of so many of the Englijh Nobilities Estates, there was no way but Force to keep them in Obedience: And as Princes can never be satisfied that their Subjects have been throughly paced in these difficult Doctrines ; so they can never be secure that they will not play the Jades, and kick and fling their Riders when they spur them too severely, and press too hard upon them. And therefore, I doubt such Princes whose Government is severe, will always find it necessary to ride this Beast (as you call it) the People, with strong Curbs and Cavisons. But besides all this, there is likewise another Infirmity in the Nature of Mankind, and of which Princes may as well be guilty as other Men, that they are more apt to oppress and insult over those, whose Principles or natural Tempers may be against all Resistance. And for this I appeal to your Example of thePrimitive Chrifiiansi who were not one jot the better used by the Roman, Emperors, tho' they exprefly disclaimed all Resistance of those Emperors for Persecution in Matters of Religion: And tho' some Neighbouring Princes are thought to have their Subjects in more perfect Subjection, and that either.their Religion or Natural Tempers make them less apt to resist the Violence and Oppression-'of'.their Monarchs, than .the English, or other Nations j yet I desire you to enquire, whether Taxes, and all other Oppressions, do not reign as much under thole (Governments, however sensible the Princes may be of their Subjects Loyalty and Obedience.' .,,

Therefore to conclude, I fliall freely leave it to your Judgment, or that of any indifferent Person, which is most agreeable to i the, main Ends&f Civil Government, v«. The common Good of Mankind, and the Happiness and Safety of each particular Kingdom or Commonwealth,, that the Violence and Tyranny of Princes should be sometimes resisted"; than that tjie People, under the pretence of this, irresistible Power-, should be liable to be made Beggars and Slaves whenever any Prince or State had a mind to it. And I appeal to your own Conscience, if the supposed Belief of the Passive Obedience of some of our Church, was not one of the greatest Encouragements which the King and the Jesuited Faction had to bring in the Popish Religion, under the colour of the DispensingPower, Ecclesiastical Commissioners, and force of a Standing Army, from which unavoidable Mischiefs nothing under God but this wonderful Revolution could have rescued us: And therefore I think it becomes any honest Man to thank God for it, and join with his Highness the Prince of Orange, as the only means (now Miracles are cealed) which God hath been pleased to ordain by the course of his Providence for our Deliverance. _ •J1 .

M. I must confess, I am somewhat staggered with those Reasons and Argument you have now given me against those Principles, which as I have always, so must still esteem as sacred, till I am convine'd I am in an Error,- and perhaps, if I were to consult my own carnal Reason and natural Inclinations, I should come over to your Opinion. But since it hath pleased God to lay much higher Restraints and stricter Rules of Obedience and Subjection on us, by his revealed Will in the Scripture, beyond what can be discovered by. the Light of Nature; and that under the highest Penalty, viz,. Damnation; I can see no reason why God Almighty may not grant Eternal Life upon what Conditions he pleases, tho' never so hard and uneasy for Flesli and Blood to perform: So that if our Saviour JesmChrjfi hath commanded us to take up his Cross and follow him, that is, to suffer all-sorts of Injuries and Afflictions, nay Death it self (as he himself did) rather than to resist the Supreme Powers under which he lived ; I cannot see any reason why he should not propose his own Example for our Imitation: And as he hath enjoined, and expects from us greater Degrees of Chastity, Charity and Humility, than ever he did from the Jews orPagans; so I fee no reason why he may not likewise exact from us a greater and more perfect Obedience and Submission, without any Resistance to all Soveraign Princes and States, than ever he did either by the Law ofMoses, or that of ±Tature; not but that there are sufficient Proofs in the Old Testament, for the absolute Power ofPrinces against all Rebellion or Resistance in Subjects : Tho' I confess this Doctrine is more plainly proved by the Example of our Saviour, and the Precepts of his Apostles in the New Testament, as also from the Example of thePrimitive Christians in Obedience thereunto. - ;' • ..

F. I perceive you begin to distrust your Arguments drawn from natural Reason and the Laws of Nature j and when you are prefled with the absurdity of this Doctrine of yours, you fly from God s Natural to his Revealed Will, and take Refuge under the Covert of the Holy Scripture, to impose an Opinion contrary to the common Sense and natural Notions of Mankind, not corrupted with the Prejudices of Education: And therefore give me leave at present to tell you, that I think I shall be able to prove, that the Pajsive Obedience (as you call it) of thePrimitive Christians, and their Sufferings for the Name of Christ, will not at alt contradict that natural Right, which I suppose all Freemen to have, as well under Civil Government as in the State of Nature, for the defence of their Lives, Liberties and Properties, unless where the common Good and Peace of the whole or major Part of the People require the contrary : And therefore the fame Reasons

T which which oblige particular Persons to be quiet, and not to disturb thtfpublick Peace of the whole Society, for their own private Safety and Advantage; unless when, the whole Body of the People, or the major Part of them is thus violently ailaul" ted in their Lives, Liberties and Estates; the fame Considerations of thepubliofc Good of their Country (whereof every Man is a Member) doth then as strongly' 'persuade, I may say en/oyn them to take up Arms arid defend thenlselves for- the Preservation of the whole People or Community, whose natural and civil Rights being nowattack'd, can no otherwise be restored to the same State they wera inbefore, but by that last Remedy that can be used in this Cafe, viz,. Vim mi repeSere.

M. I must confess that of all Commonwealth Hypotheses, yours is most reasonable, ! being coherent with it self, and also most likely to be swallowed by the Peopte j

because it flatters our corrupt Natures, to which this Christian Doctrine of Pajfiw Obedience is so directly opposite; as also, because it gives them a full Liberty,:! mean, not only the Representative Body, but the major part of them, to reasiume that Power which you pretend they never parted with; and so consequently alt ife» ceffity of suffering (except when they please to think they have justly deserved k) is taken away; and the Sufferings of the Primitive Christians wilt be rendered only a tame Madness, and that St. Paul was very much overseen to enjoyn this SfllH jection to the Romans, under the Government of one of the most cruel Tyranti that ever sway'd that Scepter: But we have not so learned Christ; and therefot* 1 am firmly persuaded, that we ought to be strictly Obtdient, without any Ra* fistance to those Civil Governors that God hath been pleased t6 set over us, let them abuse their Power never so Tyrannically.

F. 1 am beholden to you for your plain dealing with me in this Matter, and pleased to find that you have an Inclination to my Principles, were it not for somi Texts of Scripture and Citations out of the Fathers and Church History which give you a Prejudice against them, which I hope wheri they come to be closely examined will signifie no more than the former. '1

But for the dispatching this important Controversy, I pray give me leave' to propose this easy Method; first, that you would be pleased to lay down your Au* thorities out of Scripture in order; and afterwards, to shew me that the ahcieHi Fathers and Primitive Church always understood those Texts in the {ame Senso that you do, viz.. That no Resistance of the Supreme Powers is lawful to be "ttj* ercised[in any Case whatsoever.

M. I approve of your Proposal, and therefore I will first begin with those Probft which are expresly against all Rebellion or Resistance in the Old Testament. The S. C. R. cb. first Governor that God set over the Children ofIsrael, when he brought them oYtt »• t- 7- of the Land of Egypt, was Moses; and I think I need not prove how sacred and irresistible his Authority was: This is sufficiently evident in the Rebellion of Numb. 16. Korah, Dathanand Abiram, against Moses and Aarm, when God caused the Earih to open her Mouth and fwaSow them up. And lest this should be thought an extradf* dinary Cafe, Moses and Aaron being extraordinary Persons immediately appointed by God, and governed by his immediate Direction ; the Apostle St. Jude alledge? Juti v. ii. this Example against those in his Days, who were Turbulent and Factious, vJbi despised Dominions, and spake evil ofDignities, that they should perijh in the gainsaying Core; which he could not have done, had not this Example extended to all orarnary as well as extraordinary Cases; had it not been a lasting Testimony of God'* Displeasure against all those who oppose themselves against Soveraign Powers. Bat Moses was not always to rule over them, and therefore God expresly provides se* a Succession of Soveraign Powers, to which they must all submit: The ordinary Sorueraign Power of the Jewish Nation, after Moses's Death, was dcvolv'd either on the High Priest, or those extraordinary Persons whom God was pleased to raise up, such as joflua and the several Judges; till inSamuel's Days it settled in their Uid.p. 8. Kings. For as for the Jewish Sanhedrim, whose Power is so much extolled by thfe Jeviijh Writers (who arc all of a late Date, many Years since the Destruction of Jerusalem, and therefore no competent Witnesses of what was done so many Ages before) it does not appear from any Testimony df Scripture, that there was' such a Court of Judicature, till after their Return from the Babylonish Captivity.

But yet God took care to secure the Peace and good Government of the Nation, by appointing such a Power as should receive the last Appeals, and whose Sentence in all Controversies should be final and uncontroulable, as you may fee in




{139}

Deuteronomy, chap. ij. There were indeed inferior Magistrates and Judges appoin* T>eut. 17. v. ted in their several Tribes and Cities, which Moses did by the Advice of Jethro 8> 9> Ic» "» his Father-in-law, and by the Approbation's God. But as die Supreme Power lg was still reserved in the Hands pf Moses while he liv'd; so it is here secured to the %° '1 * High Priest or Judges after his Death; for it is exprefly appointed, that if those inferiorJudges could not determine the Controversy, they should come unto the Priestst the Levites, that is, the Priests of the Tribe of Levi (who by the 12th Verse appear only to be the High-Priest) and to the Judge that shall be inthose Days; that is, if it shall be at such a time when there is an extraordinary Judge raised by God (for there were not always such Judges in Israel, as is evident to any one who reads the Book of Judges) they should enquire os them, and they shall stew the Sentence of Judgment; and thou shalt do according to the Sentence, which they ofthat Place (which the Lord shall chuse) stall stew thee, and thou stalt observe to do according to all they stallinform thee: And what .the Authority of the Chief Priest, or of the Judge, when, there was one, was in those Days, appears from ver. 12. And the Man that will do presumptuously, and will not hearken to the Priest (thatstandeth to Minister there before the Lord thy God) or unto the Judge, even that Man stall die, and thou stalt putaway the Evil from Israel: This is as absolute an Authority as the mdst absolute Monarch S.C.Rtf. 10, in the World can challenge, that Disobedience to their last and final Determina'tion, whatever the Cause be, shall be punifli'd with Death: And what place can there be for Resistance in such a Constitution of Government as this? It is said indeed, ver. 11 And according to the Sentence of the Law which they stall teach thee, and according to theJudgment that they stall tell thee, thou stalt do. And hence some conclude that they were not bound to abide by their Sentence, nor were punishable if they did not, but only in such Cases when they gave Sentence according tothe Law of God: But these Men do not consider that the Matter in Controversy is supposed to be doubtful,, and such as could not be determined by the inferior Courts, and therefore is submitted to the Decision of the SupremeJudge ; and as he determin'd, Ibid p. n« so they must do; and no Man, under the Penalty of Death, must presume to do otherwise; which takes away all liberty of Judging from private Persons, tho' this Supreme Judge might possibly mistake in his Judgment, as all humane Judicatures are liable to Mistakes; but it seems God Almighty thought it necessary that there should be some final Judgment, from whence there should be no Appeal, notwithstanding the possibility of a Mistake in it.

So likewise when God had appointed Jostua to succeed Moses, and had conferr'd upon him all that Power thatMoses had before; and that he came to give his Orders to the two Tribes and an half before their Passageovet.Jordan, you'll find that they not only promis'd him perfect Obedience, as they had before pay'd to Moses;but farther also assur'd him, That whosoever he be that doth rebel against thy Joshua ,, jg. Commandment, andwill not hearken unto thy Words in all that thou commandest him, he stall be put to Death: So that there' was aSupreme and Soveraign, that is, an unaccountable and irresistible Power in the Jewist Nation appointed by God himself; for indeed it is not possible that the publick Peace and Security of any Nation should be preserved without it.

P. You have, Sir, methinks taken a great deal of Pains to prove that which I do not at all deny, but rather /oynwith you to assert, that Stubbornness and Disobedience to God's Commands is a very great Sin, and theRebellion thereunto it likened to the Sin of Witchcraft; as,Samuel shews to no less a Man than King Saul himself, when he had rebelled against (that is, disobeyed) God in not destroying . the King of the Amalekites; and therefore it is no wonder, that in a Govern- m' J' ment where God himself was the Head, and had appointed Mosesand Aaron as his Lieutenants or Substitutes under him, the one in Civil, and the other in Ecclesiastical Matters;that God should punisli their Murmuring and Rebellion against them as done to himself; not that I deny but that St. Jude does likewise denounce this Judgment of perishing in the gainsaying of Core, against those wicked Hereticks the Gnosticks, who thought themselves set free from all Civil Subjection, and therefore despisedDominions, and spake evil of Dignities; that is,'not the Men invested with them, but Civil Magistracy it self; which they look'd upon as inconsistent with their Christian Liberty,

But yet for all this, and that I grant God denounced no less than the Sentence of Death against any Man that refused to hearken to the Priest, or urito the Judge, in those Matters that should be brought before them by way of Appeal; and also,

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that whoever would not obey Joshua, but should rebel against his Commandments, should be put to Death ; yet can I not think that there was any Irresistible Power, plac'd by God, in the Persons of Moses, Joshua, or theJudges, or that it was not possible for the publick Peace or Security of the Nation to be preserv'd without that : But indeed all these Persons above nam'd, being to be obeyed as God's Substitutes or Lieutenants, as he was King of the Children of Israel, so likewise their Commands or Dictates were only -so far to be observ'd as they performs this Commission; and if they had swerved from it, I doubt not but they might not only have been disobeyed, but also resisted by them : And therefore pray tell me, suppose this Rebellion of Core had happened because Moses, making himself a distinct Party amongst the mix'd multitude of Strangers that came up with them out of the Land of Egypt, and others of his own Tribe, or whom hecoulfl Exod. 12.38. bring over to his Faction, under colour of this Soveraign Power (which God had given him) had, instead of leading and governing the People committed to his Charge, taken upon him to have rob'd them of all those Goods and Riches which they had brought with them out of the Land of Egypt, and had sold the People Ot their Children for Slaves to the Neighbouring Nations, to enrich himself and his Family do you believe that the Children of Israel had been obliged to have obeyed such a Leader, and not have resisted him and his Party if there had been oc-. casion? So likewise, if Joshua, instead of leading God's People into the Holy Land, had taken upon him, notwithstanding God's Commands to the contrary, to have carried them again into Egypt; can you think they had been bound to obey him, and might not lawfully have resisted him, if he had gone about, by the assistance of his Accomplices, to force them to it? For I doubt not but if theft Substitutes had acted contrary to that Commission God had given them, they were no longer to be look'd upon as God's Vicegerents, no more than the now Lieutenant of Ireland,the Lord Tyrconnel, ought to be obeyed, and not resisted, if he should go about, by vertue of that Commission which the King hath conferred upon him, and by the help of the Rebellions Irijh in that Kingdom, to murder all the Protestants and set up for himself. So likewise all the strict Obedience and Submission that was to be paid to the Sentence of the High-Priest or Judge, was only in relation to God himself,'whose Sentence it was, and who always revealed his Will, either to the Judge by particular Inspiration, or to the High-Priest by the Ephod or Urimand Thummim; and therefore we read in Judges, that Deborah, tho'aWoman, yet being a Prophetess inspir'd by God, judged Israel.

Now suppose that this Judge or High-Priest, neglecting (like Balaam) the divine Inspiration; and the Dictates of that sacred Oracle, had, instead of a righteous Judgment, given a Sentence in a Cause that had come before them, whereby Idolatry, or Breach of some great Point of the Law of Moses, had been established; do you think that God ever intended that this Sentence fliould have been obeyed under pain of Death?

And therefore you may find in the second Book of Maccabees, that when Jason and Menelam had by Bribery obtained the High-Priesthood, tho* it was then the 'chief Authority (under the Kings of Syria) both in Ecclesiastical and Civil Mat

ters ; yet when they went about to undermine the Jewish Religion, and seduce the 2 Maccab. 4. People to Idolatry, they were not at all look'd upon as High-Priests, but are there *• 2 J* called ungodly Wretches, doingnothing worthy of the High-Priesthood, but having the Fury of a Cruel Tyrant and of a Savage Beast; and were so far from being at all obeyed by the Jews, that Jason, Menelam and Alcimus, who were successively High-Priests in the room of Onias, were, as far as the People were able, opposed by them; till at 1 Mueah. 7. last JudasMaccabeus taking Arms against^/c/wKj the Simoniacal High-Priest, restored ~3> *4> *J« by force the true Worship of God: So that you fee that the Obedience was not pay'd to the Person of the High-Priests, only as such, by vertue of this Precept in Deuteronomy, but only as far as they observed the Law of Moses, and gave Sentence or Judgment in all Matters according to it. And therefore it is no good Argument of .yours, because the People were bound to obey their Sentence in doubtful Cases, therefore they had an absolute irresistible Power to give what Judgments they pleased, and that the People were obliged to observe them under pain of Death, and being guilty of Rebellion; for that had been to have given the High-Priests and Judges a Power to have alter'd the true Worship of God whenever they pleased,' and to have introduced Idolatry in the room of it. So that I think none of these Places will prove any more, but that God and his Lieutenants

were

were to be obeyed; and that it was Rebellion to refist them under the Jewi/h Government, as long as they did not force the People to Idolatry, which I do not at all deny.

M. Tho' you labour to wave these Examples and Precepts which I have now cited, and will not take them for convincing; yet let me tell you, your Exceptions against them only tend to prove that Idolatrous Kings might be resisted under the JetvijJ} Law, which is directly contrary to the sacred History ,• as I shall prove very clearly to you by these following Testimonies I shall make use os; yet I think it is much more plain, that when the Jewswould have a King, their Kings were to S. if. 5. P. be invested with a Supreme and Irresistible Power; for when they desired a King Mi. of Samuel, they did not desire a meer nominal and titular King, but a King to, Sxm g ,Judge than, and go in and out before them, and Fight their Battels, that is, a King 19,2a whp had the Supreme and Soveraign Authority, a King who should have all that Power of Government (excepting the peculiar Acts of the Priestly Office) which either their High-Priest or their Judge had'before.

And therefore when Samuel tells them what shall be the Manner of their King, i 8. 6, tho'what he says doth necessarily suppose the Translation of the Soveraign and Ir- 19,10. resistible Power to the Person of their King, yet it doth not suppose that their Ver. u. King had any new Power given him, more than what was exercised formerly by the.Priest and Judges; he doth not deter them from chusing a King, because a £ c. R. P. King should have greater Power, and be more uncontroulable and irresistible;. 12,15. than their other Rulers were; for Samuelhimself had before as Soveraign and Irresistible a Power as. any King; being the Supreme Judge of Israel, whose Sentence no Man could disobey or contradict, but he incurred the Penalty of Death, according to the MosaicalLaw: But the Reason why he dissuades them from chusing a King, was because the external Pomp and Magnificence of Kings was like to be very chargeable and oppressive to them ; Jsewill take your Sons and appointthem for himself, for his Chariots, and to be his Horse-men, and some shall run before his Chariots. And he -willappoint him Captains over Thousands, and Captains over Fifties, and -willset them to ear his Ground, and to reaphis Harvest. And thus in several Particulars he shews them what Burdens and Exactions they will bring upon themselves by setting up a King, which they were then free from; and if any Prince lhould be excessive in such Exactions, yet they had no way to help themselves; they must not resist nor rebel against him; nor expect that, whatever Inconvenience they might find in Kingly Government, God would relieve and deliver them from it when once they had chosen a King: Ye shall cry out in that Day, because of your King yer. 19. that you havechosen you; and the Lord will not hear you in that Day ; that is, God will not alter the Government for you again, how much soever you may complain of it.'

ThiSj I lay, Is a plain Proof, that their Kings were to be invested with that Soveraign Power which must not be resisted, tho' they oppress their Subjects to maintain their own State, and the Grandeur and Magnificence of their Kingdoms. But I cannot think that these Words contain the Original Great' and Charter of Regal Power, but only the Translation that was formerly in their High-Priests or Judges to Kings: Kings had no more Power than their other Governors had, for there can be no Power greater than that which is irresistible: But this Power in the Hands of Kings was likely to be mere burdensome and oppressive to them, than it was in the Hands of their Priests and Judges, by reason of their different way of Living; which is the only Argument Samuel makes use of to dissuade them from transferring the Supreme and Soveraign Power to a King; and therefore I rather chuse to translate Mishp'at, as our Translators do, by the Manner of the King, than with some learned Men, by the Right ofthe King, thereby understanding the Original Charter of Kingly Power; for it is not the Regal Power whichSamuel hereblames, which was much like that which he himself had exercised while he was Supreme Judge ofIsrael, but their Pompous way of living, which would prove very oppressive and burdensome to them, and be apt to make them complain, who had not been used to such Exactions.

P. You have, I must confess, made a much fairer Exposition of this out of Samuel, than divers of our high-flown Divines, who would render this Mtfipat as it is in the Hebrew, i. e. the Manner cf the King, by Right of the^ King; whereby they would entitle all Kings whatsoever to. an absolute Right to all their Subjects Estates, whenever they would take them away; not taking notice that this Word

Mijbpat

[graphic]

Miflyfat is sometimes used not only in a good, but a bad Sense, not for Right or Power, but for an evil Customor Abuse; and therefore you may find, in the second Chapter of this Book of Samuel, that speaking of the Sons ofEli, who -were Ver. 12, 13, Sons of Belial, they knew not the Lord, that the Priests (viz.. their) Custom with the14. People was, that when any Man offered Sacrifice, the Priests Servant came, whilst the Flejh

-was in seething, with a Flejh-hook of three Teeth in his Hand; and he strook it into the Pan, or Kettle, orCaldron, or Pot; all that the Flejh-hook brought up, the Priest took for himself: so they did /'wShiloh, unto allthe Israelites that came thither. Where I desire you to observe, that that which is rendered in our Translation thePriests Custom, is in the Hebrew Mijhpat, which they render Right; so that if this Word would do it, these wicked Priests had also a Right to take away as much of every Man s Sacrifice as they pleased for themselves; nay, to take it before God himself was served, and the Fat burnt (according to the Rites of Sacrificing.) And by the fame Rule, Kings also by this Word Mijhpat should have a Right to take what they pleas'd of the Subjects Estates.

I do likewise so far agree with you, that Samuel does not here describe a Tyrant, but one of those absolute Eastern Princes, who made use of a great part of their Subjects Estates (as they do at this day) to maintain their Standing Armies, and Royal Pomp and Magnificence. So that I grant, in short, Samuel meant no more when he thus spake to them, but, Since you will have a King, he must be maintained like a King, and very great Taxes will be laid upon ybit for this end; of which Burden if you should hereafter be weary, or would cast it off again, you shall by no means do it: For since this King shall obtain the Crown, not only by God's Appointment, but by your own Choice or Election, it shall not be in your power again to depose him, since it is your own Act: And therefore Samuel tells them, That when they jhould cry unto the Lord in that Day, because of the King which theyhad chosen, the Lord would not hear them. And as long as this King kept himself within these bounds, I grant he was not to be resisted.

Yet nevertheless, this Place you have now cited, as it is very far from patronizing Tyranny, or all the Abuses of Regal Power; so neither do I think it was Samuel's meaning to make the Kings of Israel so absolute or irresistible,as that upon no account whatsoever the People might disobey or resist them, let them use this Power never so wickedly, nay, contrary to God's express Commands, and the Ends of all Civil Government: And therefore pray tell me; suppose, instead of these necessary Burdens, which they mould be subject to when they had a King,Samuel had spoke thus to them: This King (whom you desire) shall prove an Idolater, and as cruel a Tyrant asPharaoh, or any of the Kings of the Philistines, Canaanites, or any other Nations who so long tyrannized over you; and shall take away all your Estates, and Lives too, at his good pleasure, without any Crime, or legal Trial; and in short, will not only himself use you for Slaves, but fell you and your Children for Bondmen to theEgyptians, and other Nations, and shall lay such grievous Tributes and Burthens upon you, that you shall be scarce able to live under them.

Now can any Man think, if the Israelites had been really persuaded, that their King must have such an absolute and arbitrary Power, as a necessary and inseparable Prerogative of his Crown, they would ever have been so fond of such a GoVer. 20. vernment, as to have cried out with one Consent ,• Nay, but we will have a King over us,that we may be like other Nations; But, sure, not to tyrannize over and enslave us, but that he may judge us, andgo out before tu, and fight our Battels. Or do you think, if they had had such a King as this, they would ever have long endured him? For that the Children of Israel did not conceive that their Kings had such an absolute and arbitrary Power over them, as to oppress them with Taxes, and to make their Yoke more grievous to them than they were able to bear, or to tyrannize over them at his good pleasure, appears plainly by the Story in the first of Chap. 12. Kings, concerning the Children of Ifrae fs assembling together zxShechem, to make Rehoboam King: And you'll find the Preliminary Conditions of his Government Ver. 3,4. were these : AH the Congregation ofIsrael came, and spake unto Rehoboam, saying. Thy Father made our Toke grievous: Now therefore make thou thegrievous Service of thy Father, and his heavy Toke, which lx put upon m, lighter, and we witt serve thee. But see the Answer that Rehoboam made them, according to the Wisdom of his young Ver. to, 11. Counsellors: My littleFinger JhaH be thicker than my Father's Loins ; and whereas my Father did lade you with a heavy Toke, I willadd to your Toke; My Father has chastised

you you with Whips, but IwiS chastise you "With Scorpions. And mark what follows upon this Answer : So whenall Israel Jaw, that the King hearkened not unto them, the People Wet. 16. answered the King, faying, WhatPortion have vie in David? neither have we Inheritance * in the Son of Jesse; To your Tents, O Israel": Now fee tothine own House, David. So Israel departed unto their Tents. And it is farther said, So Israel rebelled Ver. ip. .against the House of David unto this day. Nor is this Action at all blamed or disapproved by the Scripture, or rebuked by any Prophet at that time; for tho' the Word is here translated, they rebelled; yet in the- Hebrew it signifies no more than feti away front ot revolted: And it is saift before, that the King hearkened not -to the People : For'the Cause ("which may be also translated R £ v o L » T i o N) was i Kings 12. from the LoidT thatbe might perjorrH his Saying, which he spake by Ahijah the Shilonite iy* unto Jeroboam, when, in the Chapter before, the Prophet promis'd him the Kingdom of the Ten Tribes, and that God would rend them; out of the hand of Solo~tmz (i. e. his Posterity) and give'them unto him, who thereupon had a Right to them : And that,' upon his being made King by the People, he had also a Right to 'their Obedience, Is as evident; since to continue in a Stare of Rebellion towards one King, and an Obligation to obey another, are absolutely inconsistent in the fame Subject, as'I have already, proved at our second Conference. And therefore I cannot but here take notice ofthat rational Account which the Earl of Clarendons in his Survey of the Leviathan, which you before quoted, gives ofthis Revolution. *' Nor did the People (viz,, of Israel) conceive themselves liable to' those Imposi"tions; as appears by the Application they made to Rehoboam upon the Death "of Solomon, that he would abate some of that Rigour his Father had exercised ** towards them, the rough Rejection of which, contrary to the Advice of h*s ** wisest Counsellors', cost him1 the greatest part of his" Dominions: And when.

 Rehoboam would by Arms have reduced them to Obedience, God would not

• suffer him, because he had been in the fault himselsi11 *

As. After this extravagant way of arguing, whenever the Subjects of any Nation shall think themselves tooniUch oppress d with Taxes, or other Grievances, above what they are able to bear, if they are not eas'd by the King or Supreme Magistrates upon the first Petition, they may presently cast off that Power they were under, and set up another,"that would govern them upon cheaper Terms: Wf*iP the People of Israel had tftis Right, why may not all other Nations claim the fame? And this Doctrine, however comfortable it might be to the People, 1 am sure it would be very mischievous to Ssi the Monarchies and Commonwealths 5ft the World ; and it is likely that the Subjects of the French King, nay States of Holland, and other Princes, Would quickly take the first Opportunity, either to make their Princes and States to tax them no more than they please themselves, Or etfe they may presently cry with the Israelites, To thy Tents, O Israel. Nor can I fee how the King and Parliament inEngland would be in a much better Condition in relation to the People they represent, should they impose greater Taxes than they thought they could afford to pay. And this Privilege you give the Ifraelhes seems to be clean contrary to what you laid down at our list Conferences wherein you excepted great Taxes and Tributes to Princes or States, as no just Cause of Resistance, or taking up Arms : And therefore I think I may very well maintain the old Doctrine about this matter, and that tho* God did rend the Kingdom from Rehoboam, and bestow it upon the Son of Nebat, Whom also when the People had made King they were obliged to obey, ;becausc it was God*s Will it should be so, who gives and takes away Kingdoms from whomsoever he pleases j yet doth not this at all justify the Rebellion of the Jfi-aelites, or Jeroboam's Usurpation df his Master's Kingdom; since God oftentimes makes use of this Rebellion of the People to execute his Judgment upon a sinful Prince and Nation: And therefee it is very remarkable, that after this Rebellion of the Israelites from the House of David they never prospered ; but, by their Kings still falling one after another .'inrothe fame Idolatry, God at last was so highly provoked against them, that he suffered them to be carried away Captives into a strange Land, near two hundred Years before the Tribes of Judah and Benjamin underwent the fame Fate, for the like Crime. * A

F. I hope you will not bfe in a passion, because I have brought this Instance of the Israelites Defection fromRehoboam, as an Example of the Right that Subjects' may have, in those Cases I have put, to resist or cast off those Supreme Powers that God had once set over them : For I do confess, Divines and other Authors



{144}

arc much divided about this Action of the Israelites, some maintaining* it to be well done, and in pursuance to God's Will, and others holding it to be downright Rebellion. And therefore I /hall not positively assert either the one or the other, much less that Subjects may rebel whensoever they conceive themselves overtax'd: But thus much I think I may safely affirm, that if the Israelites had no Right upon any score whatsoever to resist, I cannot see why Kehoboam might not have made them, if he had pleas'd, as errant Slaves as ever their Ancestors were inEgypt; and what he else meant by saying, instead of fyhips to chastise them with Scorpions (which were a sort of thorny Rods, with which the Jews corrected their Slaves and Malefactors) I cannot understand. And as for Taxes, tho' I confess there is no setting any exact Measure to them, since no Man can positively define what the Exigences of a State may require; and I think no good Subjects ought to. deny to contribute as much as ever they are able to afford, to maintain the Government they Jive under, as long as they receive the Protection of it: So, on the other side, should the Supreme Power of any Nation (where the People are not meer Slaves) under the pretence of laying necessary Taxes for the Maintenance or Preservation of the Government, be constantly exacting from the People more than they are able to pay: As if, for example, they should out of every Man's Estate takeNineteen Parts, and'Ieave but the Twentieth for the Subsistence of those that own it; I dp not think, in that cafe, the People were obliged, in "conscience to pay it, and might in such case lawfully resist those Officers that lhould come to levy it by force, '"' .

M. I could have argued farther against what you have now said, concerning this Right 9s the People ofResisting, in case of extravagant or intolerable Taxes j but since it is not to the Subject in hand, I shall refer it to another time: And therefore, to return where I left off, I shall in the next place sliew you, how sacred and irresistible the Persons and Authority of Kings were under the Jewish Government; and there cannot be a plainer Example of this than the Case of David. He was himself anointed to be King after Saul's Death; but in the mean time he was grievoufly persecuted by Saul, who pursued him from one Place to another, with a design to take away his Life. How now doth David behave himself in this Extremity? What course doth he take to secure himself from Saul? Why he 5. c. R. 28, takes the only course that is left to a Subject; he flies for it, and hides himself from 29. Saul in the Mountains and Caves of the Wilderness, and when he found he was

discovered in one place, he removes to another: He kept Spies upon Saul to ob* serve his Motions, not that he might meet him to give him battle, or to take him at an advantage, but that he might keep out of his way, and not fall unawares into his hands.

Well, but. this was no thanks to David, you'll fay, because he could not do otherwise: He was too weak for Saul,and not able to stand against him; and therefore had no other Remedy but Flight : But yet we must consider, thatDavid was a Man of War, he flew Goliah, and fought the Battles of Israel with great Success: He was an admired and beloved Captain, which made Saul so jealous of him; the Eyes of Israel were upon him for their next King, and how easily might he have raised a potent and formidable Rebellion against Saul? But he was so far from this, that he invites no Man to his assistance; and when some came uninvited, he made no use of them in an offensive or defensive War against Saul: Nay, when God delivered Saul twice into David's hands, that he could as

1 Sam. 2$. easily have killed him as have cut off the Skirts of his Garment at Engedi, or as have

2<f. taken that Spear away which stuck on the Ground at his Bolster, as he did in the Hill of

Hachilah; yet he would neither touch Saul himself, nor suffer any of the People that were with him to do it, tho' they were very importunate with him to let

4. them kill Saul; nay, tho' they urged him with an Argument from Providence,

25. 8. that it was an Evidence, that it was the Will of God that he sliould kill him,

because God had ttow delivered his Enemy into his hands, according to the Promise he had

Ib. p. 30. made to David. We know what use some Men have made of this Argument of Providence to justify all the Villanies they had a mind to act; but David, it seems, did not think," that an Opportunity of doing evil gave him a Licence and Authority to do it. Opportunity, we fay, makes a Thief, and it makes a Rebel and a • Murderer too. No Man can do any Wickedness which he has no Opportunity of doing; and if the Providence of God, which puts such Opportunities into Mens hands, might justify the Wickedness they commit, no Man can be chargeable with any Guilt, whatever he does; and certainly Opportunity will as soon • justify any other Sin, as Rebellion, and the Murder or" Princes. We are to learn our Duty from the Law of God, not from his Providence; at least this must be a settled Principle, that the Providence of God will never justify any Action, which his Law forbids.

And therefore, notwithstanding this Opportunity which God has put into his hands to destroy his Enemy, and to take the Crown for his Reward, David considers his Duty, remembers, that tho' Saul were his Enemy, and that very unjustly, yet he was still the Lord's Anointed. 'The Lord forbid, fays he, that IJbmld do this unto my Master,the Lord's Anointed, to stretch forth my Hand against him, feeing he is the Lord's Anointed. Nay, he was so far from taking away his Life, that his Heart smote him for cutting off the Skirt of his Garment. And we ought to observe the Reason David gives, why he durst not hurt Saul, because he was the Lord's Anointed; which is the very Reason the Apostle gives in the Romans, because the^om. 13. t, Powers that are, are ordained of God, andhe that refisteth the Power, refisteth the Ordi- 2" nance of God. For to be anointed of God signifies no more than that he was made King or ordained by God. For this external Unction was only a visible Sign of God's Designation of them to such an Office; and it is certain they were as much God's Anointed without this visible Unction as with it. Cyrus is called God's Anointed, Isa. 45. u tho' he never was anointed by any Prophet, but only designed for his Kingdom by Prophecy; and we never read in Scripture, that any Kings had this external Unction, who succeeded in the Kingdom by Right of Inheritance, unless the Title and Succession were doubtful; and yet they were the Lord's Anointed too, that is, were plac'd in the Throne by him. So that this is an eternal Reason against resisting Sovereign Princes, that they are set up by God, and invested with his Authority; and therefore their Persons and their Authority are sacred. >

F- 1 am so far from differing with you in what you have said concerning this Example of David towards Saul,tho' his Enemy, that I think it ought to be a Pattern to every single private Man, tho' never so great, in a Kingdom or Commonwealth, how tO comport himself towards the Supreme Powers, if he himself alone be unjustly persecuted by them either in his Lite or Estate, that is, to fly jf he can, tho' with the Loss of all his Estate, rather than resist. Tho' there are some Circumstances in this Story of David, that make it evident that he' did not think a defensive War against those Cut-throats that Saul might send to kill him unlawful; and so much Dr. Fearnhimself, in his first Discourse call'd Resolving o/Sect. 2. Conscience, &c. against Resistance of the HigherPowers, acknowledges: For David, when he fled from Saul, made himself Captain of four hundred Men, which Num-1 Sam. 22.a. ber soon encreascd to six hundred, and still every day grew more by Additions. ~7T 2 J* Now why should he entertain those Men, but to defend himself against the For- \t iron*I2' ces of Saul? that is, to make a defensive War, whenever he was assaulted by them. -;;

As. I think I can give you a sufficient Answer to this, and therefore you must observe, that David invited none of these Men into him; but they came as V0-&C.21. p.32. lunteers after a beloved Captain and General: Which shews how formidable he could easily have made himself, when such' Numbers resorted to him of their own accord.

When he had them, he never used them for any hostile Acts against Saul, or any of his Forces: He never stood his ground when he heard Saul was coming, but ahvays fled, and his Men with him ; Men who never were us'd to fly, and were very ready to have served him against Saul himself, would he have permitted them. And I suppose you will not call it & defensive War, to fly before an Enemy, and to hide themselves in Caves and Mountains; and yet this was the only defensive War which David made with all his Men about him: Nay, all that he would make, and all that he could make, according to his professed Principles, that it was not lawful to stretch out his Handagainst the Lord's Anointed. And when these Men are pursued, as David was, by an enraged and jealous Prince, I will not charge them of Rebellion, tho' they fly before him by thousands in a Company.

Yet there was sufficient Reason why David should entertain these Men, who voluntarily resorted to him, tho'he never intended to use them against Saul: For some of them served for Spies, to watch Saul's Motions, that he might not be surprized by him, but have timely notice to make his Escape. And the very Presence of such a Number of Men about him, without any hostile Act, preserved

U him'

him from being seiz'd on by some officious Persons, who otherwise might have delivered him into Saul's hands. And he being anointed by Samuel to be King after Saul's Death, this was the first Step to his Kingdom, to have such a Retinue of valiant Men about him; which made his Advancement to the Throne more easy, and discouraged any Oppositions, which might otherwise have been made against him; as we fee it proved in the event, and have reason to believe that it was thus ordered by God for that very end. It is certain that Gad the Prophet* and Abiathar the Priest, who was the only Man who escaped the Fury of Saul, when he destroyed the Priests of the Lord, were in David's Retinue ; and that David enterprized nothing, without first asking Counsel of God: But he who had anointed him to be King now draws Forces after him, which after Saul's Death should facilitate his Advancement to the Kingdom.

F. I cannot think your Answer to this Objection satisfactory; for first, it is evi

1 Sam. 22. 1. dent, that when David was at the Cave of AduUam, his Brethren and all his Father's House, as soon as they heard it, went down thither to him: And tho' it be not expresty said, that he sent for any to come to his Assistance, yet it is plain he refused none that came ; and to what purpose should he make use of so many as 400 or 600 Men, unless it were to defend himself against those Men that Saul might send against him, since half a score or twenty Persons had been enough to have served for Spies? And if he had thought himself obliged only to run away^ three or four Servants had been enough in conscience to have waited on him in any neighbouring Country : But that David thought it no Sin to defend himself from the Violence of those whom Saul should send to kill him, is plain from what

1 Sam.22.23. he fays to Abiathar, upon his Flight unto him after the Death of his Father: Abide thou with me;fear not  for he that feeketh my Life, seeketh thy Life, but "with me thou fialt be in safeguard. And if David had not meant by these Words to have defended Abiathar s as well as his own Life, if assaulted, and without a possibility of escaping, it had been very cold comfort for David to have only assur'd him, that he should be in safeguard with him till the first Assault that should be made upon them, but that then he should shift for himself; for as for his own part,, he would, rather permit his Throat to be cut by the King's Officers or Soldiers than resist them.

And therefore, tho' I own that it was not lawful for him to stretch out his Hani against the Lord's Anointed; since I do not allow any private Subject to kill even Tyrants, unless in a State of actual War or Battel, wherein they are Aggressors, nor then neither, if it can possibly be avoided : Yet do I not find it at all unlawful for David, or any other private Man, to defend his own Life against such Assassinates as his Prince may send against him; so it may be done without a Civil War, or endangering the Peace of the Commonwealth. And so much you your self, tho' coldly, seem to yield, when you fay, that the very Presence of such a number of Men about David, without any hostile Act, preserved him from being seiz'd on by some officious Persons, who otherwise might have delivered him into Saul's Hands: For I cannot think that David would have been at the trouble of keeping so many Men only for shew, and a Terror to those officious Persons you mention, without resisting of them, if there had been occasion.

And tho' you tell me, that his being anointed by Samuel to be King after Sauss Death, was the first step to the Kingdom, to have such a Retinue of valiant Men about him; which made his Advancement to the Throne so much the easier, and discouraged any Opposition which might have been made against him, and that we see it proved so in the Event; and therefore have reason to believe, that it was thus ordered by God to that very End, I must take the liberty so far to differ from you.

For first, I desire to know by what Authority David could list 6 or 700 Men in Arms in Sauss Territories? and whether, according to your Doctrine, they were not Rebels for joining themselves with one who was declared a Traytor by the King? And tho' you fay it was thus ordered by God, I grant indeed it was; yet doth it not appear that it was done by any Divine Revelation to Nathan ot Abiathar, but only by the ordinary Course of his Providence, like other things in the World : And therefore it is no fair way of arguing for you to affirm, that whatever David did in the matter of his own Defence, contrary to your Principles, he must needs do it by express Order from God, of which the Scripture is wholly silent: Much less doth it appear from the Story, that these Men whom David kept with him, were only to facilitate his attaining the Kingdom, as yoii

affirm; since the Scripture mentions no such thing, only that after Saul's Death 1 Sim- *• +■

he went up by God's Command to Hebron, with the Men that were with him j

and thither the Men of Judah came, and there they anointed David King over the House

of Judah. But 'tis no where mentioned, that these Men were of any use to David

for the obtaining of the Crown, since the Tribe of Judah would have made him

King, tho' these Men had not been with him : For what could 600 or 1000 Men!

do against so vast a Multitude as the whole Tribe of Judah ? And therefore it is

evident, that these Forces were for no other End than his own defence.

And tho' you make very light of this State of War in which David was, in relation to Saul; yet pray tell me, supposing that the Duke of Monmouth had really been (as he pretended ) the legitimate Son of King Charles II. but by some particular Disgust of his Fatherj or by the Intrigues ot his Competitor, the Duke of York, had been forced to fly into Scotland, and there to have defended himself with 1000 or 1500 of his Tenants and Followers, tho' without fighting the King's Forces that should have been sent against him, but flying into the High-lands, and had there maintain'd himself, as David did, by Free Quarters or Contribution of the Inhabitants, till his Father died; woujd not this have been cried out upon in all the Pulpits in England, as a most Horrid Rebellion of a Sonand a SubjeEl against his King and Father, tho' he had never dohe any Act of Hostility against his Forces,but always fled from them? And yet he, being Heir apparent to the Crown, • might have pleaded as well as David;that he kept these Soldiers about him, only to keep himself from being murdered by those officious Persons, whom his Father or Uncle might fend to apprehend him, and to have such a Retinue of valiant Men about him, as might render his Advancement to the Throne more easy, whenever his Father should die.

I shall not urge, as a farther Proof of the Lawfulness of David's Resistance of . •.: Saul's Forces, his Intention to have staid in Keilah, and to have fortified it against Saul, had not he been informed, that the Men of that Citywould have saved them- 1 Sam. ,2$. selves by delivering him up to Saul; since, I confess, it doth not certainly appear by the Text, whether David would have staid any longer there than till Saul had approach'd near that Place; whether the Keilites would have delivered him up, or hot. Much less shall I urge that other Example, which some Men make use of, of David's going to the last Battle against Saul with Achijh, King of the Philistines s For tho' it be plain he march'd with them as far as Apkek in the Tribe of JJJachar; yet I confess it is not certain, whether he really intended to have assisted them or not, in this War against his Country; since he might either have gone over to Saul at the Beginning of the Battel, or else have stood neuter; tho' neither of them Would have been very honourable, or consonant with David's Character: Therefore I {hall say nothing of this, since the Lords of the Philistines, for fear he mould prove an Adversary to them in tlx Battel, made him retire again into the Land of 1 Sam- 29the Philistines; tho' he seem'd to be very much troubled to be so distrusted, that 3> 4» 8. he might not fight against the Enemies of that King, who had so good an Opinion of him. And therefore I pray you will proceed to those other Examples you have to produce out of the Old Testament.

As- Well, since you are not satisfied with this Instance of David, (tho' I am glad you allow the Persons, even of Tyrannical Princes, to be sacred) therefore to proceed in the Jewish History, Solomon, who succeeded David in his Kingdom, did all those things which God had exprelly forbid the King to do. He sent S.C.K. p*37< into Egyptfor Horses: He multiplied Wives, and loved many strange Women (to- 3sgether with the Daughter of Pharaoh)Women of the Moabites, Ammonites, &c. He 1 Kings 1 r. multiplied Silver and Gold. And tho'God (who is the only Judge of Sovereign 1. Princes) was very angry with him, and threatens to rend the Kingdom from him, 10* *7* which was afterwards accomplisti'd in the Days of Rehcboam; yet this did not give Authority to his Subjects to rebel. If to be under the Direction and Obligation of Laws makes a Limited Monarchy, it is certain the Kingdom of Israel was so. There were some things which the King was exprelly forbid to do, as you have already heard; and the Law of Moses was to be the Rule of his Government, the standing Law of his Kingdom: And therefore he was commanded, when he came to the Throne, to write a Copy of the Law with his own Hand, and toread in it all his Deut.17.18, Days, that he might learn to fear the Lord his God, and to keep all the JVords of hisLaw, 19, 2°. and these Statutes, to do them. And yet being a Sovereign Prince, if he broke these

Jj 2 T

Laws, God was his Judge and Avenger; but he was accountable to no Earthly Tribunal. Nor do we find, tho' there were so many wicked and idolatrous Kings of Judah, who broke all the Laws of God given them by Moses, that ever any of the Priests or Prophets stirred up the People to rebel against them for it.

F. Neither of these Instances do reach the Cafe in hand; for I grant, that neither the Breach or Non-observance of these Precepts enjoined the Kings of Israel by God, nor yet their open Idolatry, were a sufficient Cause for their taking up Arms, or resisting their Kings in so doing; since these were Offences only against God, and in which die People had nothing to do, those being no part of that tacit or implicit Compact of Protection and Preservation, that goeth along with all Kingdoms and Supreme Powers whatsoever. And I have already excepted out of the Causes of Resistance, or taking up Arms, the Prince's being of a different Religion from that of his Subjects. And tho' I must own, that the Kings of Israel were under the Direction or Obligation of the Law ofMoses, and so were limned Monarchs; yet this Limitation was not from the People, but from God, whose Business it was to revenge the Breach of it as often as they offended, and if they broke those Laws, God only was their Judge and Avenger (as you your self very well observe) who never failed severely to punish this Breach of his Laws.

Yet were not the People of the Jews always so nice and temperate as you make them : For, besides the Example of Rehokam, which I have formerly made use oL Chap. 15.17. you will find in the second of Choniclesconcerning Amazjah, who when he turned away from following the Lord, 'They (viz,, the People) made aConspiracy against him in Jerusalem, and he sled to Lachifli; but they sent to Lachish aster him, and flew htmthere, and made his Son Uzziah King in his stead. Nor do we read that any were punifh'd for killing him, asAmauah put to Death the Servants of his Father King Joajh, for conspiring against him, as it is related in the tenth Chapter of the second Chap. 11. Io. Book of Kings: And you'll find in the fame Book, that the City ofLibna revolted (which sure is the highest degree of Resistance) from that wicked King Jehorant, Ver. 4. 6. who had slain all his Brethren with the Sword, and walked in the way of the Kings of Israel, as did the House of Ahab,and wrought that which was evil in the fight of the L&rd, &c. And therefore it is said exprefly in the Text, thatthe City of Libna revolted from his Hand, because he had forsaken the God of his Fathers. I bring not these Instances to justify Rebellion, but to let you see that it was sometimes practised amongst the Jews, tho' you affirm the contrary, i chron. 16. But much more lawful was the Resistance, which Az,ariah, and the 80 Priests that were with him, made against King Uz,z,iah, when he would have burnt Incense in the Temple. Pray turn with me to the Place, and read what is there" Ver. 18. said: And they (viz,, the Priests) withstood Uzziah the King, and saidunto him, It appertaineth not unto thee, Uzziah, to burn Incense unto the Lord, but to the Priests the Sons ofAaron, that are consecrated to burn Incense. Go out of the Sanfhtary, for thou hast trefpaffed, neither Jhall it befor thine Honour, &c. And when he persisted therein, VideS.Ouy- and took the Censer in his Hand to burn Incense, and that thereupon the Leprosy soft. Ecloga arofe in his Forehead, the Priests thrust him out of the Temple. The LXX pJtTalu- render it, kvptn hi 'ot,'«v, i.e. they resisted him. Jofephus fays, they diove him where you'll out m haste. So that you see they went somewhat farther than Solomon's Question, find, that he Who may fayto a King, what dcest thou And, which is more remarkable, .they both owns withstood him before the Leprosy rose upon his Forehead; and no doubt but they thbrlesi|eS wcu^ ^ave ^one tne ^ame to mm> whether that Judgment had happen'd or not, tance in the nnce ne went about to usurp the Priests Office j it not being so much'as lawful High-Priest, for him, that was no Priest, to set his Foot within the Temple.

But if you look into the History of the Kings of Israel after their Division from Jttdah, they are so far from teaching us these Lessons of Passive Obedience and Nonresistance, that you will scarce find any other manner of Succession amongst them, but the killing of one King, and the setting up another; and Jehu, for rebelling i Kings 10. against and destroying the House of Ahab, had the Crown entailed by God's Pro30. mise to his Posterity unto the fourth Generation. And tho' I do not produce any

of these Examples as fit for our Imitation at this day (since what Jehu did was done by God's express Warrant and Command) yet I think they are sufficient Evidences, that neither the Person nor Power of the Kings of Judah orIsrael were always look'd upon as so sacred and irresistible by their Subjects, as you suppose.

M. I am glad you are so ingenuous to confess, that most of these Examples you have brought of the. Resistanceand Murders committed by the Jews and Israelites



{149}

npoh their Rings were not lawful; or can be proposed for the imitation of Christian Subjects; and if so, pray make what other use of them you please, since a faSo, ad Jm non valet Consequentm : I cannot deny but that the Succession of the Kings of Israel, after Nadab, the Son of Jeroboam, was very confused, God stir- s. C. R. piring up some or other to rebel against them and make them away, as a Punish- 35. meht for their former Rebellion and Idolatry • Thus Baa/ha killed Nadab the Son 1 17Jeroboam, and reigned in his stead; and for this, and his other Sins, God 25' 26'27* threatned Evil against Baajha, and against his House ; Zimri flewElah the Son of2 1 '' Baajha, but he did not long enjoy the Kingdom which he had usurped by Treason and Murder, for he reigning but seven Days in Ttrza, which being besieged and taken by Qmri, he went to the Palace, and burned theKings House over him -with Fire, Veri jg. and died. v  - < >' >

This Example Je%ebel threatned Jehu with, Had Zimri Peace who stew hit Master? z King' 9And yet Nadab andElah were both of them very wicked Princes; and if that 31* Would justify Tteafon and Murder, both Baajha andZimri had been innocent} but as for the Example of Jehus killing his Master King Joram, (you fay) it was by the particular Command of God, and is no more to be produced as an Example for Rebellion, and the Murder of Princes by the General of their Armies, than that because the Children df Israel had a Power given them by God, to extirpate and destroy those seven Nations, whose Countries God had given them to inherit, therefore they had a like Right to destroy all other Nations whatsoever, that lay near them : And therefore those Actions in Scripture, which are sometimes fcommanded by God, for the bringing about the great designs of his Providence, by those humane Means that may seem unjust to us, are not to be produced for Authorities, nor alledged as Examples. 1

F. 1 so tar agree with you, and do by no means allow that particular private v Men, of what Condition soever they are, should disturb the Commonwealth and murder their lawful Princes, tho' Wicked or Idolatrous, only to satisfy their own private Zeal or Ambition, and to set up themselves,-who perhaps are altogether as bad or worse than him they depose or make away. But yet I think I might ▼cry well produce these, to convince you that there were no better Examples for Loyaky or Passive Obedience among the Jews than other Nations; and therefore that your Examples out of *he Scripture do hitherto prove insignificant; yet I cannot but take notice of one passage, wherein, by following the ordinary English Translation, you fall into a great mistakej where you make Baajba to be slain by Zimri, because he killed Nadab; which as it is there rendered in the English is false, for the Words in our Translation are, becanse he killed him, viz. Jeroboam, to whom it there immediately relates; which is false, for Baa/ha did not kill Jeroboam, but Nadab his Son: Neither was it suitable to God's Justice to destroy Baajhafor that which he himself had ordained him to do; for God, by Jfm the Prophet, said to Baajha; Forasmuch at Iexalted thee out of the Dust, and t iade thee Prince w,r my People Israel, and thou hast -walked in the -way ofJeroboam, and hast made w People Israel to Sin, to provoke me to anger by their Sins: And therefore the Text concludes this Narration with these Words, 1'hat tlie Word of the Lord came against Baafha, and against hisHouse, even for all the Evil -which he did in the fight if the Lord, in provoking him to anger -with the -work of hisHands in being like the House of Jetoboam. But the Words which immediately follow, and because he killed him(i. e. Jeroboam) cannot be truly rendered in our English Translation, for the Reason already given; and therefore the best Criticks upon this Place translate it thus, leaving out and, therefore he (viz. the Lord) smote him; (i. e.Nadab) by the Hand 0/Baafha; whereas our Translation makes the Scripture to contradict itself. I have no more to observe from this History of the Kings and Chronicles; and therefore pray proceed to what other Testimonies you have to produce.

M. Well, I think I can snake it much more plain from other Examples and Precepts out of Scripture, that theJews were not only under high Obligations to s be subject to the Higher Powers, after they were carried Captives to Babylon; but ?j.' also not to resist them, tho' they went about to exercise their Power never so cruelly and tyrannically, even to the Destruction of the whole Nation. Now the Prophet Jeremiah had given them an express Command; Seek the Peace of the City yff, 7, -whither I have caused you to be carried away Captives, and pray tothe Lord for it; for in the Peace thereof you stall have Peace: Which made it a necessary Duty to be subject to these Powers under whose Government they lived. And accordingly we find

that

Esther 6. z. that Mordecai discovered the Treason of Bigthana and Terefli, two of the Kings ChamSi. C. R.}.berlains, the Keepers of the Door, who sought to lay hand on the King Ahasuerus; and 4°' **" how numerous and powerful the Jews were at this time, and what great disturbance they could have given to the Empire^ appears evidently from the Book of Esther. ■. . I. » ■■  

King Ahhsitems, upon the suggestions of Hitman, had granted a Decree for the Destruction of the whole People of the Jews; which was sent into all the Provinces, written and seasd with the King's Ring. This Decree could never be reversed again, for that was contrary to the Laws.-of the Medes and Persians: And therefore whenEsther had found Favour with the King, all that could be done for the Jews, was to grant another Decree for them to defend themselves ,• which E/tber 6.15, accordingly was done ; and the effect of it was, That the Jews atShusan flew 300 16,17. Men, and the Jews of the other Provinces flew 75600, and rested from their Enemies: Without this Decree Mordecai did not think it lawful to resist (which yet was a Case of as great Extremity and barbarous Cruelty as could ever happen) which made him put Esther upon so hazardous an Attempt, as to venture into the King's Presence without, being tall'd, which was Death by their Law, unless the King Esther 4. u. should graciously,hold out the Golden, Scepter to them; yet when the Jews had obtained this: Decree, they were able to, defend} themselves and to destroy their Enemies: Which is as famous an ExaJtople of Passive Obedience as can be met with in any History. . Jo!! !-> r>r. '.-5 '•" a ■

Dam 5.13, And pray»see here what'the Prophet Daniel acknowledges to Beltefhaz.zar. The l9' most high God gaveNebuchadnezzar thy Father a Kingdom, and Majesty, and Glory,

and Honour: And for the Majesty that he gave him, all People, Nations and Languages trembled and fearedbefore him: Whom he would he flew, and whom he would he kept alive, and whom he would he set up, and whomhe would he pulled, down. And if these Heathen Kings received such a Power from God, as the Prophet here affirms, St. Paul his made the Application of it, that he that refisteth, refisteth the Ordinance of God: And I think these Examples may serve out of the Old Testament, and therefore I shall conclude with the Saying of the Wise, Man, who was both a Prophet Eal. 8, 2, 3, and a King : Where the Word of a King is, tliere is Power, and whomay fay unto him, * What doest thou? .: ,, .

F- Tho' this last Proof be the strongest you have yet brought, yet I think it will not reach the Point in question; to prove that no Resistance whatsoever, tho' for saving the Lives of a whole Nation, can be lawful. I grant indeed, that the Command of the Prophet Jeremiah, of praying for the Peace of the City whither they were carried awayCaptives, was to be obeyed, being obliged to do it, not oniy by the Laws of Nature, and in regard of those Benefits of Protection, and enjoying the free Exercise os their Religion and Liberties without being made Slaves, tho' they had been carried Captives; which was no more than removing them out of one Country and settling them in another, according to the Custom of the Eastern Princes of those Times; when they would, by removing the best and greatest of the People out of a conquer'd Country, prevent their rebelling against them, as they had done before; but that they enjoyed a Property in their Lands and Estates after their Captivity, is certain, by the Prophets commanding them to build and plant Vineyards in the Country of Babylon, during the 70 Years Captivity foretold by him from God. So likewise I grant it to be a necessary Duty in Subjects, tho' Strangers, to be Faithful and Obedient to those Princes and States under whose Governments they live; and therefore Mordecaino doubt perform'd his Duty, when he discovered the Treason os the King's Chamberlains that thought to kill him.

But to come to your main Argument, that it was unlawful for the whole Nation of the Jews to resist those who were impowered, by the Decree of King Ahafuerm, to massacre and destroy them, I shall not dispute with you about the Matter of Fact, as you have related it, but only in this particular; that whereas Esther S. 11. you suppose, till the King had issued out a second Decree, wherein he granted the Jews which were in every City togather themselves together, and to stand for their Lives, to destroy, to stay, and cause to perish all the Power ofthe People and Province that jhouli assault them, &c. and to take the Spoil of them for a Prey; without which Decree, you fay, Mordecai did not think it lawful to resist, tho' it was a Case of as great Extremity as could ever happen; and that therefore Esther was put upon so Hazardous an Attempt, as to venture to obtain this Decree, tho' with the Peril of her Life;

but but that when they had once obtain'd it, they were then, and not before, enabled to defend themselves, and destroy their Enemies. In answer to which, I must needs tell you, that you do not fairly represent the latter part of this Story; for it no where appears in the Text (tho' you are pleased to add it) that Mordecai did not think it lawful for the Jews to resist till this Decree was obtained; for it is only there said, That he sent Esther to the King,and as soon as fie came into hk Presence, fie sell down at his Feet, and besought him with Tears to put away theMischief of Haman the Agagite. (Pray read the Words) And fie said, if it pleases the King, and if I have foundEsther 8. j< favour in his fight, and the thing seems right before the King, and I be pleasing in his Eyes,let it bewritten to reverse the Letters devised by Haman the Son of Hammedatha the Agagite, which he wrote to destroy theJews which are in all the King's Provinces. By which you may fee that Esther's Request was not for a Liberty to defend themselves, (as you suppose) but only to try if slie could get the King to reverse the first Decree obtained by Haman to destroy them. But because the King's Decree, when once issued out, was not to be reversed; therefore he issued this second De-Ciil* ?> *( cree, to give the Jews a Legal or Civil Power to gather themselves together, aud stand upon their Defence against all that mould assault them; which was so far obeyed, that the Rulers of the Provinces and other Officers of the King, instead of destroying, helped the Jews, because (fays the Text) the fear os Mordecai sell upon them.

So that tho' I own this Decree gave them a legal Power to stand upon their defence; and did likewise hinder the King's Officers from heading the People, and putting the first Decree for their Destruction in Execution, as otherwise they would have done, had it not been for this last, and for that great Power which they perceivedMordecai had at Court; yet doth it not therefore follow, that it was before that absolutely unlawful for the wholeJewifi Nation to have defended their Lives against those Officers or others who would have gone about to destroy them, and have totally extirpated their Nation. So that I take this Decree not to confer any new Right in the People of the Jews to defend themselves, but only to be a Confirmation of that natural Right of Self-defence, which all Nations, and every particular Member of Mankind have to preserve themselves: And tho' I grant that particular Persons are often obliged to give up this Right for the publick Peace and Safety of the Commonwealth; yet doth not this Law extend to whole Nations, or such Bodies of People without which the Commonwealth cannot well subsist.

And therefore I leave it to any unprejudiced Person, to judge whether it had not been better that the Jews should have thus resisted and saved their Lives, tho' without this second Decree, which only discouraged the King's Officers and others from falling upon them, than that all God's peculiar People sliould have lain at the Mercy of their Enemies, to be destroyed according to the first cruel Decree.

But farther to convince you that the Jews, after the Captivity, did not think it unlawful to make use of defensive Arms against cruel and persecuting Tyrants* who went about to destroy their Religion and Nation; it is apparent from the famous Example of the Priest Mattathias, with Judas Maccabeus and the rest of See tlt *ra his Sons, who successively headed the People of the Jews in that obstinate and a«d noble Resistance which they made againstAntiochus Eptphanes, tho' then their So- Books of the veraign, who when he had prophaned the Temple, and would have forced the MaccabeesJews to renounce their Circumcision, and to have sacrificed to Idols, under pain of Death; they joyned together and resolved to defend themselves, and to stand up for their Religion and Nation, then ready to be destroyed : And you find by the History, as it is related in the Books of the Maccabees andJofephus, that God did bless those Arms with Success, which they had taken up in their own defence, against a Prince infinitely more Powersol than themselves, who, with his Predecessors, had been their Soveraigns for above 130 Years. And tho' Antiochus died long before the end of the War, yet did they still prosecute it against his Succeslors: Nor did they ever make Peace with them, till Jonathan, Brother of Judas (who had before recovered and purified the Temple) was acknowledged HighPriest by Alexander the pretended Son of Epiphanes, and that they had cast off that lose ot Subjection which they were under to the Kings of Syria, and had settled the Government of their Nation upon the Princes of the Asmonaan Race, ingratitude of that Deliverance they so justly owed to their Piety and Courage ; and

which

which continued in this Family till the Conquest of Judea by Pompey, after 106 Years free Enjoyment of it: So that it is plain, the Jews, before the coming of Christ, both Priests and People, did not think it unlawful to defend their Lives and Religion, in cafe of great Extremity; and that our Saviour Christ hath any where, by his Gospel, retrenched whole Nations of that Liberty, lies upon you to prove.

But to conclude; as for the Text you have cited out of the Proverbs, that willdo you as little Service; for tho' I grant, it is true, that no Man can fay to an absolute King or Monarch, What dost thou? i. e. call him to account as his Superior; yet doth it not therefore follow, that a whole People or Nation have rip* Power to defend themselves, in any Cafe whatsoever, against his unjust Violence . or Tyranny; this not being the Act of a Superior, but an Equal (as I have already said) nor any Political, but a Natural Power.

M. I confess this is the notablest Example of Resistance that you have brought yet: But I think it may be easily answered, if we suppose with Jqfephrts and other Authors, that tho' Alexander the Great was certainly possessed of Palestine^ by Right of Conquest, and the Submission of the High-Priest Jaddm unto him; yet his chief Captains cdnspiring together, made such a scambling Division of the Empire among themselves as they could, every one almost seeking how he might suppress the rest, and attain the whole alone for himself; so as thereupon the Jews were as free from the Macedonians, as any other of their bordering Neighbours; none of the said Captains having any lawful Interest or Title to Judah: But that which turned to the Benefit of some others, brought a great Detriment (for want of Ability) unto them; for one of the said Captains, "viz.. Antkchm,havinggot* ten to himself a very great Kingdom in Syria; and another, viz,. Ptolomy, in Egypt, the Jews dwelling betwixt them both, were miserably (on every side) vexed by them: Sometimes the Egyptians, by Oppression and Force, brought them under their Subjection, and imposed great Tributes upon them; and sometimes the Syriansgrowing mightier than the Egyptians, did likewise greatly afflict rhem; especially in the Reign of AntiochmEpiphanes, whose Invasion and Government was

i Mace. i. most unjust and Tyrannical: He shed innocent Blood on every side of the Sanctuary;

37. spoiled the Temple, erecting in it the Abomination of the Gentiles, and caused it to be named

the Temple of Jupiter Olympius. Not to mention the Prophanation of the Law, and unspeakable Cruelties exercised upon those who refused to ofser Sacrifice unto Idols; until Mattathias, moved with the monstrous Cruelty and Tyranny of .the , said Antiochm, made open Resistance, the Government of that Tyrant being not, then either generally received by Submission, or settled by Continuance: So that "after the Time of Alexander the Great, theJewish Nation was governed by their own High-Priests and Sanhedrim, and lived according to their own La\jrs in all Matters both Civil and Ecclesiastical; tho', more often, I own, with z Subordination to the Soveraignty of the Kings of Egypt, till this Invasion of their Religion.and Liberties by Antiochus: So that they had a legal Right to the free Exercise of their Religion, which could not, without the highest Violence and Injustice, be'taken from them.

F. Notwithstanding what you have now said concerning this Action, I doubt not, but if you will considerJosephus a little better, as also the two Books of the Maccabees, you will find, that not only AntiochusEpiphanes, but also Antiochus the Great and Seleucus Philopater, were true and lawful Monarchs of Ccflo-Syria,and consequently of Palestine. And tho'I grant there had been Wars between Antiochus the Great and PtolomyPhilopater, concerning the Dominion of that Country; yet

Ca}. 3.4. it is plain out of Josephus's Antiquities, Lib. 12. That Antiochus had reconquer'd all this Country from the Egyptians, tho' he afterwards parted with half of the Tribute of it to Ptolomy Epiphanes King of Egypt, as a Dowry with Cleopatra his Daughter j yet surely he retained the Supreme Dominion of it to himself; for we

Cap. 3. finc>m tne second Book of Maccabees, that Seleucus Philopater supplied all the Costs of the Sacrifices out of his own Revenues; that is, of those Sacrifices that were offered for the Health of the King, as they were afterwards for the Roman Emperors: And we find in the beginning of both the Books of the Maccabees, that the King of Syria had Power to make and unmake the High-Priest whenever he pleased, as having the Dominion overCœlo-Syria and Phœnicia; over which, as appears by the second Chapter of the second Book os Maccabees,Seleucus had made ApoEonius Governor under himso that there cannot be more certain Marks of Soveraign

Majesty Majesty exercised by the Great 'Turk over any of those Tributary Princes or Governors, which he places and displaces at his pleasure. And therefore, it is apparent, notwithstanding what you have said to the contrary, out of I know not what Authors, that the Government of Antiochm Epiphanes was an unjust Usurpation; for, bating this Tyranny in the exercise of it, he had a juster Title than ever Alexander the Great had; since, besides Conquest, he had your own Right of Prescription by three Descents: And I have Grotim (besides other more antient Authors) on my side in this matter. And pray now fee Grotius's Opinion, in his first Book deJ.B.& P. cap.4. which I will read into English; and I think will § make sufficiently for my Opinion.

• The Fact of the Maccabees may seem like to this, (viz,, the Example of David u before going) for that some do defend these Arms by this Pretence, as if Aw ** tiochm were not their King, but an Invader, I suppose to be vain; since no "where in all the History of the Maccabees, Antiochm is called by any other "Name but that of theKing; and that deservedly, since the Jews had long since "acknowledged the Empire of the Macedonians, in whose Right Antiochus had "succeeded 5 for that the Law forbids a Stranger to be set over the People is "only to be understood of a voluntary Election, and not of that which the People "Were forced to submit to by a Necessity of the Times. But what others say> "that the Jews then used the Right of a People, who were in their own Power, is ** not true. For first of all, the Jews being conquered by Nebuchadnezzar, by the '* Right of War, obeyed by the lame Right the Medes and Persians, as Succes"fors to the Caldeans, whose whole Empire devolved upon theMacedonians, (with •* •wnicU Justin likewise agrees in his 36th Book: ) Hence the Jews are .said by "YachPtt, -to have been, during the Empire of the Medes and Persians, Vilijfima *' pars SerOientium. Neither did they covenant any thing with Alexander, and his *' Successors, but submitted themselves to their Dominion without any Condi•* tions, as they had been, under that of Darim before. But if the Jews were "sometimes permitted to observe their own Rights and Laws, that was meerly ** precarious, proceeding from the Beneficence of those ;Rings, and not from any * Law superinduced on their Empire. Therefore there is nothing which can *' defend the Maccabees in this matter, beside the most extreme and most certain "Danger, (viz..) as long as they so contained themselves within the bounds of «' SelMesence; and that according to David's Example, they retired into defort

^Places for their Security; nor took Arms until they were set upon." So far Grotim.

oAte. 5 shall not farther dispute this Point, though 1 thought I had very good Authority on my side -, but I think I have a better Apology to make for this Action of theirs,- viz,. That God might very well, either by an express Revelation^ or at least a Divine Impulse of his Holy spirit, command or excite Mattathiar, and his Sons the-Maccabees, to take Arms in defence of those Privilege which had been so often confirmed to them, 'till at last it pleased God to. restdre the Jews to an absolute Liberty for some Years, under their own f*ritices; which they-abusing, by Cruelty and Ambition, tyrannizing over their Subjects, and murdering their Brothers, it was no wonder that God was pleased to take away the Scepter from them, and confer it upon, the Romans, who gave it tmtie'rJ them to 'Herod,\thc Son of Antipater, the Idumean. And therefore you can <with'no more Justice urge this Example, of the Maccabees, to prove Subjects may *resist'the Supreme Powers, than to alledge the Example of Jehu as an Authority for Rebellion: Since, as I said before, whatsoever God is pleased to bring about by humane Means, but yet by his particular Precept or Revelation, is <t0 be still look'd upon as an Exception from the gene raL Rules of Non-resistance and Passive Obedience- . <'l * '■''

}R*l confess what you fay would fully answer my Objection, could you as evidently make outj fromthe History of - the Maccabees, or Josephm, that these Maccabean Captains did at all act in those Wars they made, by any express Precept, or Divine>Revelation from God, as without any^'ust Grounds/Vou suppose it. And therefore, I desire you would (hew me," if you can, any Testimony out 0f the Books of the Maccabees, or Josephm, to prove that they acted thus by vertue of any such Divine Inspiration, and then I am contented to yield the Cause; which, if you cannot do (as I think you can't) I must look upon my self.as to


{154}

have had the letter in this Controversy, concerning the Right that Subjects had to resist, in Cafe of Necessity, before the coming of Christ, r, •.- ::. . ,

M Yet for all that, some of the Fathers, and modern Commentators on, these Books of the Maccabees, do hold, that such wonderful Victories, as were obtained by Judas and his Brethren, could not have been without the miraculous Providence of God, and consequently a Divine Inspiration assisting them; especially considering the strange Judgment that we read fell upon Antiochm for his Impiety; and that Judas had oftentimes Divine Revelations,, appears by that Dream or Vision, mentioned in the last Chapter of the second of Maccabees,; ofJeremiah the Prophet's giving him a Golden Sword, and in giving it, speaking thus, Take this Holy Sword, a Giftfrom God, with which thou jhalt wound the Adversaries: Which Dream, if it were sent from God, as is highly probable, sufficiently confirms the commonly received Opinion, that this Resistance of the Maccabees was by Divine Warrant, or Inspiration: And whenever you can shew me, since the coming of Christ, any Resistance so miraculously abetted as this was, I will grant it also to be lawful. . ■*

F. I do join Issue with you in this, and must still suppose (until you give me better Evidence to the contrary) that the Jews, under the Conduct of the Mac cabees, did not take up Arms against Antiochm, and his Successors, by vertue of any Divine Inspiration to Mattathias, or any of his Sons: For it appears plainly* as well by the Scripture, as by Jofephms Testimony, that there was no more Divine Revelation after Malachi; neither do the Books of the Maccabees, Jofiphutj Sulpitius Severm, or any other antient Ecclesiastical Writer, mention theseMac* cabees as Men inspired by God. I grant, indeed, they might be excited by some divine Impulse of God's Spirit to do what they did: But this is so far from being at all miraculous, that I do suppose that divers great and good Men have been, in our latter Times of Reformation, stirred up by the fame Divine Spirit to undertake, and perform extraordinary things, for the Reformation of Religion^ and the Deliverance of God's Church and People. And therefore, as for the Vision, or Dream, which you mention, it doth not appear, that it was any more than an ordinary Dream ; and if this might pass for a Proof of a Divine Revelation, I could quote you many such Dreams as this, out of the Ifives, of lather, Calvin, and divers others of the first Reformers; whom I suppose yoa will not maintain to have had any express Revelation to do what they did; (spa* trary to the Civil and Ecclesiastick Laws of those Princes and States, uqder which they lived. And 'tis true these Books are not held Canonical; ye$ they were always esteemed in the Church as sacred Writing, jas written, tho' not by inspired, yet by pious Men : And though they are not received in matters of Faith and Doctrine, yet you know very well they are commanded to be read in our Churches, as- containing excellent Precepts, and Examples in matters of Morality; and though therefore, though perhaps they would not be j a good Authority to a Presbyterian, yet, I hope, we of the Church of England, xsuinot refuse them as Rules of Morality. But I think we are now come to tjje last Instances that can be brought before the coming of Christand therefore pray will you now proceed with your Quotations out of the New Testament, which, I suppose, you have ready for me. m'

M. I confess I am not able, in a Story so imperfectly related as this of d^e Maccabees, to prove they had God's express Warrant for this Resistance ; and you, on the other side, produce but a negative Argument, that they had not (tæ.) because neither Jofephm, nor the Book of the Maccabees expresly mention any such thing : And yet for all that Mattathias might, (for ought that you, or I know) have acted in this matter by Divine Revelation; since, as the. Rabbins suppose, there was for a long time after the Times of the Prophets, a lower fort ot Revelation given by God to some particular Men called Batcol, that is, the Daughter of the Voice, which seems to have been some private or inward Voice, by which God revealed his Will in some particular Cases. And we read that song after this, Jofeplms relates, that Hircanus, the last good High-Priest; of the Maccabeap Race, had the Gift ofProphecy by Divine Revelation : And why his great Grandfather might not have it likewise, I see no Reason. Besides all this, there might be other Reasons that God might allow to the People of the Jews a greater Liberty of Resistance, even without Civil Authority, to revenge the Prophanation of his Temple, and Religion, being the Place where he was please4 particularly to place his Name, than are allowed to us Christians at this Day, who have no such visible Temple, nor are under such severe Obligations to extirpate Idolatry. So that what Mattathias,and the People of the Jews acted in this matter, they might do it by the Right of Zealots, for the defence of the Law of Moses; even as Phineas did, who, by killing Zimri and Cosbi for Fornication and Idolatry, did that which in another occasion, and at another time, Would have been downright Murder.

But be it as it will, I think we Christians ,are by the Laws of the Gospel tied to a stricter Subjection to the Supreme Powers, (if it be possible) than the Jews themselves were-j and whatsoever they might have done underAntiochus for their own Defence, and to avoid Persecution-, yet Jesus Ghrist doth now require higher things of us; and hath by his own Example, as well as Precept, forbidden us to resist the Supreme Powers for any Persecution for Religion whatsoever; fince he hath ordained his Religion to be propagated, and defended by Sufferings and Persuasions, and not by force of Arms, against the Will of the Supreme Powers i and if-nc* ibr Religion; the -most .weighty of all Concerns, surely not for any temporal \thmg whosoever. ifiat the* Pcobf of. this reqjuires more time than this Evening will afford, without trespassing too much upon your, as well as my owp Repose. And therefore, I should be gla4 of another Evening's ConVttfwioh-wikh yoti^ toi 6ee\yoY^ Mind>\ if «it_ were .possible, from t^is dangerous Er^or/and r<£brjjp£ you ©ver.ro lh& true Beliefs and Practice^ of the Primitive

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taken; as also sty.what you intends'fake for the better Informatioti of my, C sctence., And therefore, if .you please, .and that you have no other Occasion dpaw^ you forth*oiit of yodr Lodgings, X will wait upon .you ag^in to-m<yri in the Evening about Seven; and shall think it a very proper Work for i

^onto jrrow

Evening about Seven; and shall think it a very proper Work for the Lord's Day, to have my Conscience better informed by those Testimonies, which you fay you will bring out of the New Testament, and Writings of the Primitive Fathers, and Church Historians, for my Instruction : And if you can out of them prove'to me, thzi'dSResistance whatever is unlawful, I promise you, upon the Word of s8f honest Maty to become a'Proschte to-this Doctrine!

'lit' I humbly tHknlf you, Sir, for your great Candour and Ingenuity: And thougji I am.W^rbfessM,Divine, yet I hope, by the help of the Scripture, and ^Sbse'jQuotatip^S.tHat I ciVptbduce out of the Fathers, as also from the conUt^T^iceW^'ftiitt^ Churchj fa/prove these1 Doctrincs^f .Passive Obearid'.'i&Jh-resistance xti be the true/ antieht ;and apostolical Belief. But &7l?^ ruiiU^u^T ^^ti^o ^„uiui^. .any linger to-night, therefore shall

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Bibliotheca Politica.
DIALOGUE IV.

Whether Absolute Non-resistance of the Supreme Powers be enjoined by the Do&rine of the Gospel, and was theantient Praffiee of the Primitive Church, and the constant Do&rine of our Reformed Church of England. '\Y

as Civil Knowledge.

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MMmmm%m§OUR
Servant, Sir: I fee you are better than your Word,
!w«v-v*-vr»-^ p £nce come somewhat before the time appointed. ; _
^ JR I do not deserve any great Commendation fbrit;
for this Evening being a time of leisure, I had nothing
else to do but to, wait on you : And indeed I was impatient
'till I w.as with you ; since I desire nothing more, uufo to
receive Satisfaction in this weighty Controversy; isince.l
know how great a Master you are both in Divine, as Well
And therefore, I beseech you to proceed in the Method
lat first proposed, by giving me these places of Scripture out os'the 'Nesy Tel*
tament, which you suppose prove your Doctrine and in the next place j
me, that they were always under* ood by the antient Fathers, as well-
Practice of the whole Primitive Church, in that Sense.

M. I very well approve of your Method; and therefore, to go on where we left off, I shall, in the first Place, lay down some plain, and easy Propositions, as the Grounds of our future Discourse, which, I hope,' you will have no Reason to deny. . '"

First therefore, I suppose,* that our Saviour's Kingdom not being of this World, he came not to alter the Civil Governments Polity of it, (as you have already asserted.) And-therefore did not alter any of those Rights of Sovereign Powers, and those Measures of Obedience and Subjection which were before fixed and determined by God himself: Neither hath given the People (either *TMA- *• considered as particular Men, or as a collective Body) any Power or Right tp resist, or rebel against such Supreme Magistrate v though they never so much abuse their Power, by their tyrannical Government, cither by persecuting the true Religion, or by any other Violences and Oppressions whatsoever.

And our Saviour himself tells us, That he came not to destroy the Law, and the Prophets, but to fulfil it j that is, to fulfil the antient Types and Prophecies in his own Person, to perfect an External and Ceremonial, by a Real and Evangelical Righteoufoese j to perfect the moral Laws with new Instances and Degrees of

Virtue and Obedience; but he abrogated no moral Law, and therefore not . the Laws of Obedience and Subjection to Princes, which bare always been reduced to the Firth Commandment. Fray tell me how you approve of this Doctrine? ,

F. I do. readily agree to the greatest part of it; but yet as our Saviour hath not been pleased expresly to enjoin us to resist the Supreme Powers, when they manifestly break and transgress all the Ends of Civil Government, and consequently dissolve it; so on the ojher side, he came not to destroy those natural Rights, which Mankind enjoyed before his coming, of defending themselves^ and providing for their own Happiness and Security, when their Civil Governors either could not, or would not protect'them. And as I grant, that our Saviour made no Alteration in Civil Governments, by abridging the Rights of Sovereign Power; so likewise hath he not conferred upon them any new Rights -or Prerogatives of destroying, or ensiaviJig their Subjects, without any Contradiction or Resistance; and consequently hath altered nothing in those natural Rights, or Means which the People had before his coming, of hindering the Supreme Powers from perverting those main Ends of Government, the Happiness and Preservation of the People. And that this Liberty doth not any way destroy those Rights or Prerogatives which are necessary for their own Security, and the weltgoverning of their People, I have, I think, sufficiently proved in our last Conversation. So that, unless you can now shew me, by such express Authorities, as that I can have no reasonable ground to deny it, I hope you will pardon me, if I cannot believe, that Christ by his coming into the World has taken away, or abridged that natural Right which Mankind before enjoyed (even after the Institution of Civil Government) of Resistance or Self-defence, in Cases of Extremity, against those who exercise nothing of that Supreme Power, with which God bath invested them, but the meer Title. For had the Intent of our Saviour's coming been for this End, he had, instead of freeing us from the Yoke of the Law, laid a much heavier upon pur Necks, if the Doctrines of Passive Obedience and Ron-resistance axe to be taken in that large Sense, and unlimited Extent, that their Asserters have been pleased to give them. So that though I grant our Saviour came to perfect, and not to abrogate the moral Law, with new Instances of Virtue and Obedience, and therefore hath not abrogated any Laws of Obedience and Subjection to Princes.; so hath he neither abrogated the great Law of Nature, of Self-defence in the People, when they are universally assaulted, or eppress'd in their Lives, IJberties or Properties.

And tho' I grant Obedience to Princes hath been reduced to the Fifth Commandment ; yet .neither doth that, by commanding us to honour our Father and Mother, forbid all Resistance of Children to the violent and unreasonable Actions jof -their Parents, much less of those whom they may command, or set on to kill or ruin us, as i have, I think, sufficiently .proved at our first Conference. And therefore, I pray, proceed to your Proofs themselves, and (hew me, that they prove as much as you hare affirmed. .  .

I A£ Before I come to my Proofs, I pray give me leave to observe to you, by way of Introduction, that as our Saviour hath lest the Government of the World as he found it, so he hath,-besides,all this, given such admirable Laws, as will both teach Princes to govern, and Subjects to obey better, which is the most ef- S.C.E. factual way to secure the publack Peace, and Happiness, to prevent the Oppression of Subjects, and Rebellion against Princes: But he has not interposed in new modelling the Governments of the World, which is not of such Consequence as some Men imagine. It is not the. external Form of Government, but the fatherly CafCy Prudence arid Justice';of Governors, with the dutiful Obedience of Subjects, which cammake any; People happy. If Princes and Subjects prove good Ghsictians, they may be happy under most forms of Government; if they be not/they can be so under none. Had ourSaviour given Subjects Liberty to re-' 'fist, to depose, co murder tyrannical Princes, he had done them no kindness at all: For to give Liberty t6 Subjects to resist, is only to proclaim an universal Licence to Factions and Seditions, and Civil Wars: And if any Man can think this such a mighty Blessing to-the World, yet methinks it is not a Blessing proper for the Prince of Peace to . give. •

But he who instructs Princes to rule as God's Ministers and Vicegerents, and to express a fatherly Care and Concern for the Happiness of their Subjects, and

that

Ibid. p. 47. that teaches Subjects to reverence and obey their Prince as the Image of God, and quietly to submit, and yield to his Authority, and that inforces these Laws both on Princes and Subjects in the Name and Authority of God; and from the Consideration of the future Judgment, when Princes, who abuse their Power, shall give an account of it to their great Master, and when Subjects who resist, shall receive to themselves Damnation; and' those who patiently suffer for God's fake lhall have their Injuries redress'd, and: their Obedience rewarded: I fay, such a Person as this, takes a more effectual' Course to reform the Abuses of Civil Power, and to preserve good Government :in the World, than all your wise Pole

Ibid. p. 47. ticians, and State-menders, who think to reform the Government of the World by some State-spells and Charms, without reforming those who govern, and those who are governed. This our Saviour hath done, and this is the best thing that could

Ibid. p. 48. be done; nay, this was all that he could do in this Matter. He never usurp'd any Civil Power and Authority, and therefore could not new model the Governments of the World: He never offers any external Force and Compulsion to make Men obey his Laws, and therefore never forces Princes to rule well, nor Subjects to obey. But he has taken the fame care of the Government of the World, as he has done of the other Duties of Piety and Virtue, that is, he has given very good Laws, and threatned those who break them with eternal Punishments; and as the Laws and Religion of our Saviour prevail, so will the Governments of the World mend without altering the Model and Constitution of them: But I come now to those places of Scripture I have to urge against your Opinion. - ■■ ■' •/] jlii--' - • \

F. I pray, Sir, pardon me, if I interrupt you ; and beg leave to make some Remarks upon this Preface you have now made. I will not deny, but you have spoken some honest Truths in what you have now said, though not without- a Mixture of divers Mistakes: For though I grant that Jesus Christ hath not interposed in new modelling the Governments of the World,, so he hath likewise given Princes no Authority to alter those which they find ready made, and modelled to their Hands, in those Countries wherein God hath placed them at the Helm. And though you tell me those Models of. Government I are not of such consequence as some Men imagine, yet I hope you ought, to have a better Opinion of this of England; since it is only to this Frame, of Government, that you'll own we owe all our Freedom and Happiness above divers other Nations, our Neighbours: Since, if it were not for our Laws, and Original;Constitutions to the contrary, I do not see why we may not be mi$e as absolute Slaves,as any in Turkey, whenever the King pleases. I grant mdesflj; that it is the fatherly Care, Prudence, and Justice of Governors that can make any People happy: But I desire you to shew me how many Governments 1 there are in'the World where Princes exercise this fatherly Care as they ought, without any known Laws j or where Subjects express a dutiful Love and Obedience to their Governors (unless servile Fear must be called so) whilst they find themselves miserable Slaves and Beggars. .0 ..unite -j , »-; ;i. . . <•„ w./..-r

I also yield, that if Princes and Subjects, are good Christians, they may be happy under most forms of Government j and if not, they can be happy.under none, is true in this Sense, if you take Happiness for the Hopes of a future Life: = But otherwise .there have been divers Princes who have been, very good Chris

tians, and yet by carelefoess of their. Affairs have governed theic Subjects very ill :~And likewise, I know some Subjects, who have been very loyal to their Prince, and very good Christians, and yet have^been made very miserable4 as Witness the Protestants in Hungary znlilFrance. :• .'.

But as I do not suppose, that our Saviour hath given Subjects Liberty to resist tyrannical Princes upon every slights Occasion, much less to depose or murder them; yet will it not follow, that if he hath given Liberty to Subjects to resist in some Cases, it' would only serve to proclaim: an universal Licence to Seditions, and Civil Wars: Since I do nos suppose such Wars to be lawful, but when the People are in as miserable Condition as a State of War can bring them to :. And if our Saviour had not allowed them this Power, no rational Man would think it a Blessing proper for the Prince of Peace to give, or to . come into the World to introduce Slavery, and the arbitrary Power of the Sword.

Though I grant he instructs Princes to rule as God's Ministers and Vicegerents, and to express a fatherly Care and Concern for the Happiness of their Subjects;



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and that he likewise teaches Subjects to obey thekvBrinces: Yes you know too welli how seldom these Instructions have all those, good Effects either with the Princes, or People- And therefore, as on the Peoplefs side, besides those Obligations of Conscience you speak of, there are likewise ordained temporal Punish-1 ments to keep Subjects to their Duty; so likewise there is often need of something else besides meer Conscience and Honour, to keep Princes from tyrannizing over their Subjects. , „\ ,'. '■„.[ ;• • ..*jn.H •„ >;?. -. . ■

And though I suppose the Consideration of a future Judgment may go a great way-with some Princes, to make them perform that great Trust God hath given them j yet pray tell me, have you not read (if not known ) some Princes in the World of late Times, who have either believed no such thing as eternal Damnation, dr at least have found a way by nice Distinctions, or Equivocations, to evade • all Laws, Oaths, and Promises whatsoever? And what Satisfaction is it to me, or how doth it:serye to alleviate my Misery, when I am made a Slave, and a Beggar, that those that had the Rule over me will be damned for so doing? But you tell me, that Lmust quietly and patiently suffer this for God's fake, and that then we shall have pur . Injuries redress'd^ and Obedience rewarded. I grant indeed that a single Person may. be rewarded ;in this kind, for preferring the Common Good or Quiet of the Nation before his own Private Interest: But that whole Nations, and Bodies of People* are obliged by the. like Rule, I utterly deny, since I do^not find where our Sfyjaur either enjoins or requires such an absolute Subjection at their hands; and if he doth, not, it is no better than Will-worship to pay it, and therefore it still lies upon you to prove it to me.

To conclude; I. think it may be a-more effectual Course, to preserve the main Ends of Government, for, the,People, sometimes to resist the insupportable Tyranny .r; . and Violence of;the Supreme Powers in those Cases of Extremity I have already . .; .\ put, than to let those, who have got the Power over us in their hands, do whatsoever they please with it,,to, our Ruin, without any controul. And also, I desire you to considerw whether the Fear of such Resistance from Subjects, when thus outraged and opprefs'd, may not often be a more powerful State-spell or Charm (as you call:if/,;to keep trie Supreme;Powers in their Duty, than those many Sermons, and,c£her Diseases; that have been lately preach'd and publifh'd, that their Power is irresistible,-* ar^ t^ therefore, all their Subjects are. bound to endure whatsoever Tyranny they;haye-a.mind to exercise Upon them. In short, I absolutely agree with you* j£v£,4S our Saviour never usurp'd any Civil Power,, or Authority, and therefore dj,d:fiot new. model the Governments of the World; so hath he also left Subje&ja-Right to maintain whatsoever Models, or Forms of . Governmenr, God hath becri-pleased tef establish among them, when they are in . . danger to be altered, or;in\#dedi either by a Domestick Tyranny, or Foreign .Force. And without thjjs^ight of Resistance,; for.you to tell us, 'That Jesm' Christ hath given very goodlJ£##-f> and tbreamed those: that breakthem with eternal

-/l is } and that as the Laws,, and Religion of our Saviour prevail, that so the

* of tye jfsorld wMmpnd without any more ado; is altogether as reasonable, as to'preach,, that because Christ hath-given us good Laws, and threatens everlasting Punishments to those; that break them, therefore they are sufficient to keep Men from robbing and murdering their Neighbours; and that all Men giving up their Natural,. Ragnts of resisting such Robbers, and defending, themselves against them*, fhouid wholly rely "upon the Efficacy of the Commandment against Stealings or else on the more pqwerful Motive with suchpeople, of a« Judge, and a Gab* lows, fhouid set them do;with us what they please, whenever we fall under thek Power: And therefore, I desire you would give me some better Proofs, that our Saviour hath enjoined all Mankind an absolute Subjection to the Supreme Pew- . - >..• _er$q under pain of Damnation, without any Resistance in any Case whatsoever.: But I,pray pardon this Digression, which, your own long Preface extorted from .me.' \ .-. -'r.-oj.V, ,« •. +•

. . M. I shall not further dispute this matter with you; and therefore to observe your Commands, 1 shall begin with that Divine Answer of our Saviour to the Pharisees and Herodians, when they consulted together to entangle him in his Talk. They came to'him with great Ceremony and Address, faying, Master, we know s'c-^'f' that thouart true, and teachest the Way of God in Truth, . neither carest thou for- any ^T^* Man; for thou regardest notthe Person of Men. Tell m therefore, what thinkest thou?' * .T-'l 'It

Is it lawful to give Tribute to Casar, or not? They thought it' impossible that he should give any Answer to this, which would not rtiake him obnoxious either to the Roman Emperors, if he denied that the Jews might lawfully pay Tribute to Casar; or to the Pharisees, and People, if he affirmed that they might; for there was a very potent Faction among them, who thought it unlawful for tH» Jews to own the Authority, or Usurpations of any Foreign Prince, or to pay T>eut. 17.15- Tribute to him as to their King, they being exprelly forbidden by the Law, to Ib. p. 50.s fit a Stranger over them for their King, who was not their Brother, that is, who was not a natural Jew. And it seems they could not distinguifli between thei* own voluntary Act in chusing a Stranger for their King ( which was indeed forbid by their Law) and their submitting to a Foreign Prince, when they were conquered by him. Our Saviour, who knew their wicked Intention in all this* that they did not come with an honest Design to be instructed in their Duty, but to seek an Advantage against him, expresses some Indignation at it, Why temp ye me, ye Hypocrites? But yet to return them an Answer to their Question, he bids them Ihew him the Tribute Money, that is, the Money in which they us?d to pay Tribute, and enquired, whose Image and Superscription it had. For Coining of Money was then as certain a Mark of Sovereignty^ as making Laws, or the Power of the Sword. Well, they acknowledge that the Image and Superserip'' tion on the Tribute Money wasCasar s; upon which, he replies, . Render'iMervfore unto Cæsar, the things that are Cæsar's; and unto God, thethings that are Gbd'k The plain meaning of which Answer is this; that since by the very Impression"-oft their Money, it is evident, that Casar is the Sovereign Lbrd, they must rericfcfc unto him all the Rights of Sovereignty; among which, Tribute is one, aS St. Jh. p. Jt. Paul tells us: Render therefore unto all their Dues,Tribute to whom "Tribute is due, Chi£ R»m. 13.7. torn to whom Custom, Fear to whom Fear, Honour to whomHonour. Whatever then-is due to Sovereign Princes, and doth not interfere with their Duty to God,; ^hat they mull give to Casar, who at this time was their Sovereign.'1

And though our Saviour commands us, only in general, to 'render to Cæsiir the things that are Cæsar/, without telling us, what Cafar't things "are j. this is feJfttr from making his Answer ambiguous, and of no use in this present' Gontroverly), that it suggests to us three plain and natural Consequences, which ]^are sufficient to end this whole Dispute. First, That our Saviour <lid not intend to make Alteration in the Rights of Sovereignty j but what Rights he found-Sover; Princes possess'd of, he leaves them in the quiet Possession of j for%a<l heiriteti to make any Change in this matter, he would not have given su£h a^erteralRiiÆ to render to Cæsar the things thatare Cæsar'/, without 'specifying what'these thMx S. C. R. p. 5<J. are. Secondly, And therefore he leaves them to the known Laws bf the Empif to determine what is Casar $ Right; that is, whatever is essential to the Nbrtbh of Sovereign Power, whatever the Laws and Customs of Nations determines be Casar s Right, that they must render to him; for he would make ho alteration in this matter. So that Subjection to Princes, and Non-resiikhce, is ^as plafiftV determin'd by our Saviour in this Law of paying Tribute; for Subjection, 'aifitl Non-resistance, are as essential a Right of Sovereign Power, and as insrparaBle from the Notion of it, as any thing can be; and fb it is acknowledged by {hje Laws and Customs of Nations, and is so determin'd by the Apostle St.Pbul, £$*l shall Ihew hereafter. "Thirdly, I observe farther, that when our Saviour joins bur Duty to our Prince with our Duty to our God, Render to Cæsar the thikgs tti'ardtit Cæsar's, and to God the things that are God's, he excepts nothing from Cs/rtrVRight, which by the Laws of Nations is due to Sovereign Princes, but what is a- VicF lation of, and an Encroachment on God's'Right and Sovereignty j. that is, H. j. 57. must pay all that Obedience and Subjection to Princes, which is conMent'witn our Duty to God. This is the only Limit our Saviour sets to our Duty tb;Prirfces. This, I hope, is sufficient for the Explication of our Saviour's(AnTweV To the Pharisees and Herodians, which evidently contains the Doctrine of Obedience and Subjection to Princes, enforc'd on us by the Authority of our Savicoir himself. ■ >■>■;■ .)-"?;

F. I shall not dispute, that this Instance of our Saviour did enjoin the^fea^tb pay Tribute, and render all those Rights and Dues to Casai,' as1 the Supreme Power, which are necessary to its Essence: But you seem to me to stretch 'this Prerogative a great deal too'far, when you thus suppose an absolute Subjection to

Princes, Princes, without any Resistance, to be as plainly enjoin'd by our Saviour in this Law, as paying Tribute. For the Reason you give for it, viz,, that Subjeflioni and Non-resistance, are as essential a Right of SoveraignPower, and as inseparable from the Notion of it, as any can be, and that it is so acknowledged by the Laws andCustoms of Nations, is the thing which I deny, and which having been the Subject of our last Conversation, is still to be prov'd: And I think I have there sufficiently prov'd* that absolute Non-resistance is no essential Right of Soveraign Power, nor inseparable from the Notion of it: Since by asserting it, no just Right of Soveraign Power will be thereby destroyed, or taken away, but rather confirm'd. And that I may make it out yet plainer by a familiar Instance: A General of an Army hath an absolute Power over the Lives of his Soldiers that tranigrese his Rulers 1 War, or Military Discipline : But suppose that in a mad Or drunken Fit he mould, command some Troops of his Guards to cut the Throats of all the rest of the Armyx and they mould be such obedient Coxcombs as to go about to put thisr Order in Execution, doth it therefore derogate from the Absoluteness of his1 Power as General, if the Army will not stand still, and let three or four hundred Fellows take away all their Lives? But that this Principle of Paffive Obedience in | your Sense, os suffering Princes, or other Supreme Powers, to destroy'or enslave them, is so far from being acknowledged by the Laws and Customs of all Nations, that, as I think I have proved it to be contrary to the Laws of Nature and Reason j so I doubt not but I can much easier make it out by the Laws and Customs of all Nations, as well barbarous as civilized, to fee. both unreasonable and impracticable. And that it is otherwise determin'd by St. Paul, I desire you to prove , to me, when you come to make use of the 13 th to the Romans, so much insisted upon by those of your Opinion.




But before I make an end with this Text we are now upon, I cannot but take notice of your last Assertion, That byrendring to Cæsar the things which are Cæsar's, God excepts nothing from Cæsar's Right, which by the Laws ofNations is due to Soveraign Princes, but what is a Violation of, and Encroachment on God's Right andSoveraigmy ;. that is, we must fay all that Obedience and SubjeElion to Princes, which is consistent with our Dutyto God. Now if this be the only Limit that our Saviour sets to our Duty to Princes (aeyou suppose) J wonder bywhat Law the Learned Do£lor,from whom you borrow this Principle, as also those other Clergymen of the Churchof England, could justify their refusing to read the King's late Proclamation of Indulgence, or Toleration: For ifshe King {as they own in the Oath of Supremacy) is the only Supreme Governor of his Dominions, in all Thingst wCauses whatsoever; he must likewise be the Cafar here meant in this Text; and' consequently an Active, not Passive Obedience, ought to have been paid to this Declaration. Since you fay, that Obedience is by the Law of Nations due to Soveraign Princes, to whom we must pay all that Obedience and Subjection which is consistent with our Duty to God and I hope you will not fay, that this Declaration was inconsistent with that Duty, or was any Violation or Encroachment upon God's Rights of Soveraignty.;

As. As for your last Observation upon those Clergymen who refused to read theDeclaration, I must confess, I have, according to my Civil Law Maxims, no Excuse ready for them; since with us it is always true, in this as well as other absolute Monarchies, Quicquid Hegi placuit, Legis habet Vigortm. Much less can I reconcile it with that unbounded Supremacy which the Oath of Allegiance, as also the Opinions of most modern Judges, have placed in the King in all Ecclesiastical Matters: But indeed, I can least of all reconcile it with this Assertion you now. mention; which, I confess, I have taken from divers Sermons and Treatises, that have been Preach'd and Printed of late by our City Divines; to whom I shall leave it to answer this Objection. But to proceed with the Design in hand, I shall S.C.It. p. $7. come in the next place to prove an absolute Subjection, without Resistance, to be due to the Soveraign Power, from our Saviour's Rebuke to St. Peter, when he dtew his Sword, and struck a Servant of the High-Priest, and smote off his Ear; which is as plain a Declaration against Resistance, as Words can make it: Then Mat. 16. 52, said jfefiti unto him, put up thy Sword unto his place; for all they that take theSword, jkall perish by the Sword. For the understanding of which, we must consider upon what occasion St. Peterdrew his Sword; for we must not think that our Saviour doth absolutely forbid the use of the Sword; which is to destroy all Civil Governments, Æ< pand the Power of Princes, and to proclaim Impunity to all the Villanies that

Y are

/

are committed in the World. The Sword is necessary to punish Wickedness, and to protect the Innocent: Even in theJFIands of Princes it is an Instrument of Jus

Rom. 13.4. tice> as St. Paul rells us: That they bear not the Sword in vain; but are the Ministers of God,Revengers to execute Wrath upon him that doth Evih In the Hands of private Persons it may be lawfully used in Self-defence: Thus our Saviour, a little before his Crucifixion, gave Commission to his Disciples to furnish themselves

Luke 22.36. with Swords, though they parted with their Garments for the Purchase. -Which' we suppose was not designed as a meer modislj, and fashionable thing, but to defend themselves from the private Assaults of Robbers, and such like common Enemies, who, as Josef hm tells us, were very numerous at that time: Forni

Ibid. p. 59. Man wanteth Authority to defend his Life against him, who hath no Authority to- take it away.

But the Cafe of St. Peter was very different: He drew his Sword indeed in His Master's Defence, but against a lawful Authority. The Officers of the. Chief Priests and Pharisees, came with Judas to the Place where Jesus was, to seize on him. This was a lawful Authority, tho' employed upon a very unjust Errand; but Authority must not be resisted, tho' in defence of the greatest Innocence* Men who draw their Swords against lawful Powers, shall perish with the Sword; which" doth not signify what the Event shall always be, but what is the Desert and Merit of the Action. Rebels may sometimes be prosperous, but they always deserve Punishment; and if-'they escape the Sword in this World,, St. Paul tells us, they shall receive Damnation in the next. What can be said more exprefly

M>. p. J9,6a. against Resistance than this? St. Peter never could have drawn his Sword in a better Cause, never in the Defence of a more sacred Person: If we may defend oppressed Innocence against a lawful Authority, if we may oppose unjust and illegal Violence, if any Obligations of Friendship, Gratitude, or Religion itself, could justify Resistance, St. Peter had not met with this Rebuke. But though' it was a very unjust Action, yet it was done by a just Authority; and lawful Powers must not be resisted, though it were in defence of the Saviour of the World: And if St. Peter might not use the Sword in defence of Christ's Person, there- is much less pretence to fight for his Religion; for though some call this fighting for Religion, it is only fighting for themselves- Men may keep their Religion if they please, in despite of earthly Powers; and therefore no Powers can hurt Religion, though they" may persecute the Professors of it: And therelore when Men take up Arms to avoid Persecution, it is not in defence of Religion, but ofthemsclves; that is, to avoid their suffering for Religion. And if St. Peter might W fight to preserve Christ himself, certainly neither he, nor we, ought to't ak e 'up Arms to defend ourselves from Persecution. Christ was the first Martyr for his own Religion; his Person was infinitely more sacred and inviolable, than anjrcjrte of us can pretend to be. And if St. Peter must not fight for Christ, certainly %e must not fight for ourselves, though we absurdly enough call it fighting for bur Religion. And who were these Powers St.Peter resisted? They were only "the Servants and Offices s of the High-Priest. The High-Priest did not appear there

It. p. 61. himself, much less Pilate, much less Cafar; and yet our Saviour rebukes St. PM for resisting the inferior Officers, though they offered the most unjust and illegal Violence. It seems he did not undetstand our modern Distinctions between the Person, and the Authority of the Prince; that though his Person be sacred, and must not be touched, yet his Ministers, who act by his Authority, may be oppos'd. We may fight his Navies, and demolish his Garrisons; and kill his Subjects, who fight for him, though we must not touch his Person. But he is a mock Prince, whose Authority is confin'd to his own Person, who can do nothing more than what he can do with his two Hands; which cannot answer the ends of Government. A Prince is not meerly a Natural, but a Political Person, and his Personal Authority reaches as far as his Commission doth. His Officers and Ministers of State, and Commanders and Soldiers, are his Ends, and Eyes, and Ears, and Legs; and he who resisteth those who act by his Commission, may as properly be said to resist the Petsonal Authority of the Prince, as if he himself were prelent in his Natural Person, as well as by his Authority. Thus our Saviour it seems thought, when he rebuk'd St.Peter for striking a Servant of the High Priest, and smiting off his Ear.



F In answer to this Place, which you have now brought to prove, that the Re* fistance that St. Peter would have made on our Saviour's behalf, was absolutely unlawful, I shall not insist, as some do, that Christ came into the World on purpose to be a Sacrifice for Sin, and that therefore it was inconsistent with his Design, and the Person he undertook, to resist and oppose, had it been never so lawful, to resist: Tho' our Saviour himself, by the Words which St. John relates him to have John 18. n. spoken to St. Peter, seems to favour this Interpretation, when, after he had bid him put his Sword into the Scabbard, he adds, "the Cup which my Father hath given ine,stall I not drink it? , And so likewise the Answer he give Pilate, who asked him whether he' was a King? Thousayeji that I am a King; to this end -was I born, John i8. 37. and for this caiije came I into the World, thatIstould bear witness unto the Truth. Nor yet fliall, I go about to interpret these Words, For they that take theSwordstallperist bythe. Sword, in,that Sense which Grotim puts upon it, tho' quite different from yours, as if it were not designed as a Rebuke to St. Peter, but for the Encouragement of his Disciples, and being indeed, a Prophecy, that the Jews, who now came against him with Swords and Staves, should perish by the Sword of theRomans, who should be the Avengers of Christ's Death: But I shall uke it in the same Sense as you doa as a Rebuke to St. Petery for going about to resist a lawful Au-1 thority, tho' employ'd upon a very unjust Errand. ,Yet will it not prove that the Supreme Powers may not be\resisied in any, case, or by"any Person whatsoever, let them use their Power never so cruelly or tyrannically, against their Subjects. I grajat indeed, Jt.proves what I have never denied,,that a private Person, tho' innocent, ought .not to resist the Civil Officers that come to seize him, for a Crime whereof he i$ accused before a lawful Au^ho^y > f°r tnis is not only unlawful by the Command of Christ, but also by ,the Law of .Nature ami Nations. For in England it is n0t only penal for a Man to resist the Officers pf Justice that come to seize him, tho' he be innocent of the Crime whereof he is accus d, but also to withdraw hiniself from Justice by flight. And tho' upon Trial he be found innocent, yet iif he fled for the fame,, he shall forfeit all his Goods, and that very justly, because no Man ought to suspect the publick Justice, or to withdraw himself from the Trial of the Laws. Now. to apply this to the Case of our Saviour, tho' the Action, which these Priests and Soldiers came ahout was in it self unjust; yet was it not so ekber in, respect of these Officers themselves, who acted by a lawful Authority; noxyet was it,unjust or unlawful in respect of the High Priest and Sanhedrim, who sent- them.t^FogJince it belong'd to them alone to judge of a Prophet, who they supposed, taught-contrary to the Law of Moses, since.they did believe our Saviours toib&cfticbia Prophet, it was in respect of them neither unjust nor unlawful to seize hii&i-iftodjbringhim before them, to give an account of his Doctrine: And they might likewise dp5 this either by day or by night, wish the help of more or sewers Men, .according as they should think fit; since they seared the People might rescue him j especially since they look'd upon him as one ysrho went about to make him-: self King of the Jwst in opposition to Cafar; and therefore whilst they lay under rhis.-Mistake, they were under as high an Obligation, as an erroneous Conscience cdujjUay upon. them^ of seizing him, and bringing hjm before the High Priest and tb&Governor. F,ot if they had believed him to be the true Messiah, and conse<JuenHy<.the Kjng of theirNation, [it had been* impossible that they should ever have.:gpne .about to put him tp jpeath^ Which likewise our Sayipur himself ackoOHfiedges, whep,prayrng fo^ithem that crucified he 'said. Father, forgive L"kt 23- 34» theinl'.fqr they kmw mt what th/ydp* ;,,}„  . fr. it7 .->

jl.ipeak not this to excuse, tjie Priests, or Sanhedrim, "for condemning our Saviour tcDeath, or for- using all the;Power they had with Pdate to have him executed; sinCfei -grant their Ignorance being in gieat part wilful, at least not invincible^ they.had no just.Excusc not, tp believe in, him, after, so many, Miracles he had wrought in.the. sight of all the, World: But only to, prove that.which I suppose you will npt.deny^ that Magistrates, even whilst they."act unjustly, are not to .be resisted in the,Execution of publick Justice y no, not to rescue an innocent Man by force from the Hand of Justice, after he is condemned : Since, the false or unjjust Sentences of Judges against particular Persons are to be taken for just in comraon;acceptation, till they be repealed; according "to that Maxim in your Civ^l Law, Prætor, dum miquum decernit, jus dicit. And therefore our Saviour coming to. fulfil.all Righteousness, and to be the exact Pattern of Divine and Moral Actions^ could not do less than rebuke St. Peter, for making use of the Sword ,A'ii Y 2 against


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against a lawful Authority. But what is this to the Cases that I have put ot" the Resistance of whole Nations, or great Bodies of Men, against an unjust Force and and destructive Violence upon their Persons and Estates, by those who pretend to act as the Supreme Powers, tho' contrary to all Laws natural and divine, and who have no Pretence to act as they do, but only their unjust and arbitrary Wills back'd by Power. And that there is a great difference in these two, I will clearly (hew you, from your own Concession, that no Man wanteth Authority todefend his Life against him that hath no Authority to take it away; and therefore I suppose St. Paul

Acts u. might, only with the help of those that were with him, not only have defended his Life against those whom we find (in the 2 y th of the Ails) were by Order of the High-Priest, and Chief of the Jews, to have lain in wait to kill Paul by the way, but also against any that Festm the Governor himself should have sent for the same end:

Acts 25. 16. Since he there declares, "That it is not the Manner (i.e. Law) of the Romans, to deliver any Man todie before that he that is accused have the Accuseds face to face, and have licence to answer for himselfconcerning the Crime laid against him. And therefore as Cits ar could give Festm no Commission to murder Men, so neither did God bestow on the Emperor any Authority to commit Murder, or to authorize others to do it. And if a single Person -might do this, certainly much more a whole Nation, Country, or City, may justify such aResistance, where their Lives, Liberties and Estates lie at stake, from the Violence or Tyranny of the SupremePowers; and therefore I do not see, but that I may very well grant the Instance you have put to be conclusive against this Resistance made by St. Peter on our Saviour's behalf: So that it doth not reach the Case in hand, that all Resistance of Supreme Pvwers is unlawful. So that unless Princes and their inferior Officers receive Authority from God to commit Murders, every Man may defend himself against them, when they go about to take away their Lives by Violence contrary to Law. And therefore I fee no Reason, from any thing that you have hitherto said, to believe that Christ did not allow this Distinction, between the Person and Authority of the Prince, to be good in some Cases; or, tho' his Person should be sacred, yet that his Minister** who act not by his Regal Authority, but his Personal and Tyrannical Will, may be opposed. Nor can I find any Consequence from what you say, "That he is a mock Prince whose Authority is confined to his own Person, who can do nothing more thanwhat he can do with his own Hands; since no Man in his Wits asserts any such thing : Pot I grant, that anAbsolute Prince hath Power to make Laws, and to command them to be put in execution, which do not contradict the Laws of God and Nature i and a Limited Prince hath likewise a Right to command in all things, that do not exprefly contradict God's Natural and Revealed Laws, and also those Positive Laws of his Country (which he is not the sole Maker of) that do not contradict the former : And if he can do this, I think he is endued with an Authority fufB* cient to answer all the Ends of Government, without sopposing this he must needs have an irresistible Power (and without which he cannot answer those Ends) to murder and enslave whomsoever he will. I grant indeed, a Prince is not meetly a Natural, but a Political Person; but certainly his Personal Authority, as King, doth not reach as fat as his Commission, or that he who resists those who act by his Commission, may be skid in all Cases to resist his Regal Authority: Since at this rate the poor Protestants in Ireland, at the beginning of the last Irish Rebellion, had been in a very woeful Condition, if it had happened (which was not impossible) that King Charles the First should really have granted a Commission to Sir Phelim Oneal to destroy them; which no Man could then certainly tell but that he had, since Sir Phelim publickly strewed such a Commission, and still asserted the Truth of it, till he came upon the Gallows. But this is only by the by, and in answer to what you have now said to this matter. So that there is no need of supposing what our Saviour intended one way or other in this matter; since-He did not rebuke St. Peter for resisting the inferior Officers, because they Offered an unjust and illegal Violence; but because he resisted those who acted by a true and legal Commission from the High-Priest and Sanhedrim, who supposed our Saviour to be a false Prophet.

As. Is this Distinction of yours were true, it would render the Example of Christ's Suffering, in obedience to the Supreme Powers, tho' unjustly, yet without

S. C.R.p. Resistance, of no effect to us; whereas I am firmly persuaded, that Christ took

81. such a mean and suffering a Person upon him, because it was most agreeable to the

Religion which he preach'd, and of which he was to be an Example; and therefore.

fore, tho' Christ suffered for other Reasons, and to other Ends and Purposes thatt
we do or can suffer, yet his Sufferings are an Example to us, because God chose
to save and redeem us by the Sufferings of his Son, not only that he might expiate
Our Sins by his Blood, but also that he might be an Example to us of Meekness,
and Patience, and Submission to the Divine Will, and Subjection to Government
even in the most unjust and infamous Sufferings. We may consider farther, that
Christ's Sufferings, in obedience to the Will and Appointment of God, do not
make him unfit to be our Example: For tho' God has not so peremptorily de-^< P-'
creed that all Christians should suffer, as he did that Christ should suffer; yet when-
ever we are called to it (as we always are, when we cannot avoid suffering with*
Ottt resisting a lawful Authority) our Sufferings are as much the Effects of Gods De-
cree and Appointment, as the Sufferings of Christ were; and in such Cases every
Christian may and ought to fay, as his Lord did, The Cup -which my Father hath
given me, staff I not drink it?

Thus St. Peter exprefly tells the Christians to whom he wrote, and gives it as i @ Reason why they should suffer patiently, even for doing well: For even hereunto i ?eU *< *»« were you called, because Christ alsosuffered forHi, leaving us an Example, that we should follow his steps. Now calling, in the New Testament, signifies the Choice and Eleetion of God, and always supposes a Divine Decree, Appointment, and Constitution, as the Foundation of it. Thus St. Paul tells us, that the Gifts and Calling Romt 11. f jf< (xXijJnc) of God are without Repentance ,• that is, that Decree he made to chuse the Posterity of Abraham for his People, which still entitled all those of them to Ib- P- 83* the Blessings of the Gospel, who would believe in Christ. Thus the State of Christianity is out Calling, and Holy Calling, because it is the Way and Means God hath cho- i <r,m' '• ?• fen and appointed for the Salvation of Mankind: And Christians are often stiled flf*' 5" *' the tailed, because God has now decreed to chuse all the sincere Disciples of Christ, as ht formerly did the Posterity of Abraham, to be his peculiar People ,• and throughout the Scriptures of the New Testament, God is never said to call, nor any one to be calledof God, but with respect to some Divine Decree and Constitution. And therefore when St. Peter tefls the Christians, that they are called to suffer, it signifies that God hath appointed them to it by his positive Will and Decree.'

This St. Paul discourses more at large in his Epistle to the Romans, and comibrts them under their Sufferings, from this very Consideration : That the Sufferings which they underwent were not the Effects of mecr Chance and Accident, »c*r of the Wickedness and Injustice of Men, nor barely of God's Permission, but of his Decree and Appointment; and therefore they might certainly conclude, that whatever their Sufferings were, theystiould turn to their good. And -we know, Rom. 8.28, that all things work together for good to them that love God, tothem that are called according 29> 30to bis purpose: Those who are called, that is, to suffer {which is the Argument theIbm P* Apostle is discoursing of) according to his Will and Appointment, And a little after he goes on, and fays: Andfuch Persons who are thus appointed, who are thus called st« P« 8f' by God ro suffer, shall be sure to conquer, and to receive the Reward of Conquerors. For thus the Apostle adds: For whom he did foreknow,he also did predestinate, to be conformed to the Image of his Son, that he might be the first-born amongst manyBrethren. This Conformity to the Image of Christ in this place doth plainly signify a Conformity to him in Sufferings', as is evident from the whole scope of this Place'Some Persons ft seems there ate, whomCiod doth predestinate or soreappoint to ^be conformed to the Sufferings of Christ j for this is not the actual Portion of all 'Christians, though it is the Condition of our Diseiplefhip<

So that though God hath not made us Slaves and Vaslkls to the Humour of Ib. p<8& every Tyrant, yet all the Afflictions and Sufferings of Christians, especially those <wlrieh befalthem on the account of Religion, are as particularly ordered and determined by God, as the Sufferings of Christ himself were; and therefore there is no dhfetence upon this account between thc Sufferings of Christ and the Sufferings Of his Disciples ; and therefore though Christ came into the World on purpose to suffer, in obedience to rhe Divine Will, this tfothnot make him ever the less sit *to be an Example to us. Nay, this Obedience to the Will of God, in suffering the hardest things from the most unjust and tyrannical Powers, is an Example to us of the fame patient Suffering,, and Submission to the Will of God.

It is true, none of us in particular can know, that God hath decreed, that We ** P< 8'< flialT suffer such or such things, and from such or such hands, as our Saviour did:




But yet this we know, that it is God's Will and Pleasure, that we fliould patiently endure those Sufferings, which we cannot avoid without Sin; and since he hath forbid us by express Laws to resist the Higher Powers, whatever Sufferings cannot be avoided without Resistance, it is God's Will and Pleasure that we stiould submit to them. And since none of these Sufferings, which are unavoidable to us, befal us without the particular Decree and Appointment of God, we have .reason, in imitation of our Great Master, to submit to them with the same Cheerfulness and Self-resignation as he did. [J.

There is something indeed in the Example of our Saviour, which in our Cir-; cumstances we are not bound to imitate; for he punctually knowing what God*^ Will and Pleasure was concerning him, voluntarily chose that Condition, which he so well knew God had allotted for him. He freely chose a mean and servile Fortune, he chose Suffering and Death; when his Time of offering up himself was come, he went up to Jerusalem on purpose to die there :• But we are not • -.. bound to chuse Poverty, and Disgrace, and Suffering; we are not bound voluntarily to deliver up our selves into the hands of Tyrants and Persecutors, who thirst after our Blood. We may and ought to use all just and honest Arts to make our Condition easy and comfortable in the World, and to avoid the Rage and Fory of bloody Men, because we cannot tell, that it is the Will and Appointment of

Ib. p. 88,89. God that we shall suffer, till our Sufferings are unavoidable ; and then when we must cither suffer or sin, when we must either renounce our Religion, or resist, she Supreme Powers; we must embrace Sufferings and Death, as that Portion which God hath allotted for us. »'•./.;•  '.• r

I (hall only here observe what a mighty Security this is to all good Christians, how absolute or tyrannical,soever the Power be under which they live; thatthey are safe in God's hands, and all the Powers of Men and Devils cannot touch t^em, till God by a positive Decree appoints and orders their Sufferings. There.coiya not be greater nor more absolute Tyrants than the Roman Emperors were atudra time ; and yet they had no Power over, the meanest Christian, but by ah express .Commission from Heaven. This is, the special Privilege of the Christian Church above the rest of Mankind, that they are God's peculiar Care and Charge ;, that lie doth not permit any Sufferings or Persecutions to befal them, but what he Isim'jflr" orders and appoints. It is a great Security to the-World, that there is no-jpvfl happens to Men but what God permits, and that he permits nothing but what.be can over-rule to wise and good Ends; but it is a greater Happiness to Bkveow Condition immediately allotted by God. God may permit a great many Eyjl^ip befal us in Anger, and Displeasure; but when he takes us into his immediate Prop tection, and under his own Government, whatever Evils he appoints for us, whoever are the Instruments of them, they are certainly for our good. And therejprg

Ib. p. 90. there is no such Danger in the Doctrine of Non-resistance, as some-Men imagine ..: How absolute soever this may be thought to render Princes, sincere Christians cp suffer nothing by it, for they stall suffer nothing more Ihpr less than what God .^Rf points for them to suffer : But as for the Absurdity^ you think you have brought me to, by granting that no Man wants Authority to defend his own Life.against him who hath no Authority to take it away, that does not extend to Supreme Powers; since,, tho? I grant they have no Authority to take away.Mens Lives copr trary to Lawj yet does it not follow that we may resist and oppose them, . i(!ihgy do. This I absolutely deny,, because 0od hath expxesty commanded us, noj^ti)

///. p. 190, resist them;, and I fee no Inconsistency between these two Propositions, tjbat^.

Prince hath no legal Authority to take away Mens Lives against Law, arid ye^ that he must not be resisted when he does so ; for both the Laws of God ana of our Country suppose these two to be very consistent. I .", . ■

F. To answer this long Speech of yours, the best way may be; to sliew ypu,, first, how far I agree with..you, and wherein I must differ from you; and I .will also tell you what Reasons I have for it. In the first olace I grant, that though our Saviour was indeed the Meflias, and> true JfCihg'of the Jews, .yet was he^ot such a Mejsias as they expected, nor was-he to have a Temporal, but Spiritual Dominion ; and therefore would not be such a King* though the Jews would have made him so. I likewise yield, that Christ submitted to the most unjust Sentence, and to the most ignominious and painful Death, rather than he would resip the Higher Powers; though he could easily have called for Legions of Angels to his rescue : As also that he rebuked Peter, when he drew his Sword in his defence, Resistance or Opposition. My Kingdom (laid he) is net of this World: if my Kingdom ■were of thisWorld, then-would my Servants fight, that Ishould mt be delivered to the Jews; but now is my Kingdom not fromhence. All which plainly (hews, that our Saviour's Subjection was no matter of Force or Constraint, because he wanted Power to resist; but it was matte r of Choice, that which was most suitable to the Nature of his Kingdom, which was not to' be propagated by carnal Weapons, but by Sufferings: Yet though it may not be propagated, sure it may be defended by force, in some caTes j as, if we were invaded by a foreign Power, who made War upon the account of Religion j and also in those Kingdoms or Commonwealths, where Christianity or the true Profession of the Gospel is established by Law, and makes a part, not only of the Ecclesiastical, but Civil Constitution of a Nation. In these cases, if those who pretend to the sole Legislative Power (but have it not) should goabout to alter the National Religion by force, and put Men to death contrary to the former Laws and Constitutions of that Kingdom, I think such illegal Powers may lawfully be resisted by the People, they having as much Right to the free Exercise and Enjoyment of their establish'd Religion, as they have to their Liberties, Properties, or any other Civil Rights; since by this legal Establishment Religion becomes a part of the Civil Constitution of the Kingdom, and so may be maintained by the fame means as other Rights. •< >

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idly, I grant, that in all other Cases our Saviour hash so far proposed his Suf-. serings to us for our Imiration, as we are engaged by our Baptismal Vow to suffer in the same Cause for which he himself silffered, that is, for the bearing witness Tliat Jesus is the Christ, or true Mejftai, and Son of God. And this the Apostle calls (speaking of Christ himself) the witnejfing before Pontius Pilate a good Confession. The like I also hold of all such Truths, as are the necessary Consequences of this great Doctrine. •;

idly, I farther grant, that when God calls any Person to suffer for the Testimony of his Truth, by the Cruelty of those who are the Supreme Powers (as the Apostles and Primitive Christians were by a particular Providence) that then those Powers^are not to be resisted, but patiently submitted to by Christians at this day; whenever it proves necessary for the fame great Ends for which Christ at first enjomed it, viz,, for bearing witness to the Truth of the Gospel, and for the further Propagation thereof by our constant Sufferings and Example, according to that Saying of the Primitive Fathers, Sanguk Martyrum semen Ecclesije. Yet is not this absolute Submission to the SupremePowers, in Matters of Religion, due by the Law of Nature, or that delivered to Moses; but (if at all) purely from the express Command or Example of Christ. So that all the difficulty lies in discovering, when we are thus called by our Saviour to suffer and bear witness to the Truth, though with the Lose of our Lives, and all that is dear to us.

And therefore, if I should grant, that whenever we lie under the like Circumstances of giving this Testimony as the Primitive Christians then did, and that it may serve as much for the fame Ends design'd thereby by God, we are also under the fame Obligations; otherwise I thihic we are lawfully discharged from it. As sot example ; suppose the King should, instead of a Papist, have turned Mahometan, and, to propagate or set up his own abominable Superstition here, should have sent sot, from Turkey or Morocco, a great Army of Turks or Moors,and by them would force all the Christians in England to turn Mahometans, by the fame Methods of Dragooning Men and seizing their Estates, as the French King hath exercised upon his Protestant Subjects; can any. reasonable Man believe, that we lie under the fame Obligation thus to suffer in a Country where the People are all Christians, as we were if we had happen'd to be converted in a Country where almost all or the greater part of them wereMahometans or Heathens, and where the Mahometan or Pagan Religion hath been for many Ages the established Religion of that Nation and Government. For in our Case, there is no farther occasion to bear witness to the Truth by

all the People amongst whom we live are sufficiently convinced of the Truth of jt s Nor can it be reasonable that our Saviour should give up whole Nations to be thus destroyed, at the Will of one, or a sew Men, only to do that of which there is no need: For then Jesus Christ hud delivered us up to be meer Slaves and Vassals to the Will and Humour of every wicked Tyrant, (which you seem to

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disappro\re) without performing any of those great Ends, for which he at first enjoined this Submission: And tho' I grant that the Afflictions and Sufferings of Christians, on the account of Religion, are as particularly ordered and determined by God, as those of Christhimself; yet, it is only as they may be subservient to higher Ends, viz,, the Propagation of his Religion, and the Good and Peace of? Mankind; which I think cannot be well promoted by supposing an irresistible Power in the Prince or State, of rooting Christianity quite out of a Nation or Country, after it is settled by Law, and become the National Religion thereof, and of enslaving all the People of it whenever he pleases : And this I take to be the true Bounds and Limits of our Submission to the Supreme Powers in Matters of Religion. But supposing, not granting at present, that Christ hath laid any more strict Commands of Submission upon us in those Matters; yet since he came not into the World to put us into a more miserable Condition in other things, than we were before his coming; nor to take away or abridge us of any of those Natural or Civil Rights that we enjoy as Men or Subjects; therefore if the People had a Right before Christ, to defend their Lives, Liberties or Properties against the violent Assaults and Oppressions of Princes or Stares, they have still the fame Liberty left entire in all Cafes, which remain not excepted by the express Precepts or Example of Christ; since it is a general Rule in all positive Laws, that whatever is not excepted or altered by a subsequent Law, remains the fame as it was before in all other Cases, which are not so particularly excepted: And therefore tho* I sliould grant that it were now unlawful in any Case to resist the Supreme Powers, who persecute or put Men to Death for bearing witness to Christ's true Religion; yet doth it not therefore follow that it were unlawful to resist in any other Case whatsoever, though it were in the defence of our Lives, Liberties or Properties; since such Defence was lawful (as I have already proved) before Christ's coming, and is not expresly forbidden by any Place of Scripture, or Command of Christor his Apostles. •. -'

And without the Considerations of these great Ends that Jefiti Christ had to enjoin his Followers an absolute Submission to the Supreme Powers in some Cafes, (tho* not in all) were to suppose, that instead of a merciful Saviour, he had only come into the World to patronize Tyranny, and to render the Condition of Mankind much more miserable than it was under the Law of Moses, or in the State of Nature; and seems to suppose, that instead of commiserating Men's Sufferings, he only took delight to make them more miserable. Nor will it be any Comfort or Security to Christians, when they are once made Slaves under an arbitrary tyrannical Power, Thatthey are safe in God's Hand, and that all the Powers of Men or Devils cannot touch them, till God by a positiveDecree appoint and order their Sufferings: For if this were a good Argument against all Resistance, it would be so likewise against resisting Pirates or Robbers; since whatever we suffer from them is by God s positive Decree, who thus orders all our Sufferings even from them: And yet I think (since Men are not now to be saved by Miracles) he hath likewise also ordained Resistance as the only humane Means to prevent their Malice and Violence, or escape out of their Hands when we fall under, them. Nor are the fame Ends unlawful against any other humane Powers, but what God himself hath ordained.

And therefore it is a very crude Assertion, to fay, that though there could not be more absolute Tyrants than theRoman Emperors, yet that they had no Power against the meanest Christian, but by an express Commission from Heaven; whereas I never knew as yet (and I would be very glad you could shew me) where this express Commission is to be found, whereby Princes, or other Supreme Powers, are authoris'd to persecute, enslave, or take away the Lives of the meanest Christians barely for Matters of Opinion, or Faults that do not immediately concern the publick Quiet and Safety: And as you have talk'd a great deal of the great Security it is to the World,that no Evil can happen to us but what God permits; and that he permits nothing but what he can over-rule towife and good Ends; and that God may permit a great many Evils to befalus in his Anger and Displeasure; andthat whatever Evils he appoints for us, they are certainly for our good; and that therefore there is no such Dangerin the DoBrine of Non-resistance as some Men imagine ; because sincere Christians can suffer nothing by it, sincethey JhaS suffer nothing more or less than what God appoints them to suffer. All these Arguments might as well be used for not resisting Pirates



{169}

or Thieves, or not endeavouring to divert or oppose a River that had run beyond its Banks, bait to let it go where it lists, to the destruction of a whole1 Country, because forsooth, sincere Christians can suffer nothing by it, forthey can suffer nothing more or less than God appoints them to suffer; indeed a wondrous use of Consolation. And therefore, unless you can prove that all Tyranny "is ordained by God for our good; and that therefore we are obliged under pain of everlasting Damnation to submit to>it ,• all that you have spoken concerning the Example and Sufferings of Christ signifie just nothing; so that I think the Absurdity still lies at your Door; since if Christhas not exprefly forbidden all Resistance of the unjust Violence of Princes, (as I do not find he has by any of the Texts you have yet brought) every Man may still defend his Life against him who you grant hath no Authority totake it away; and as for its being forbidden by the Laws of our Country, I shall answer that when you urge thoje Laws to me.

M. I hope I shall be able to prove that by and by, but in-the mean time give me leave to observe, that it seems very strange to me, that you mould own Christ hath obliged his Disciples to submit without any Resistance, in some Cases, to the Supreme Powers, when they persecute them and put them to Death for Religion; and'that they might not take up Arms in the defence of their Religion, which is the greatest concern that Men ought to have in this World; and yet that they might do it for much less considerable Matters^ viz,, their Lives, Liberties or Estates, which sure ought to be of much less importance than the Glory of God, which is chiefly maintained-by his true Worship. But I see you have found a Salvo for1 this, and will not allow Princes the irresistible Power of Persecution, when the Religion is once settled by Law; that is, when the Christians were strong enough to resist, which certainly would be no thanks at all for their Submission, since Men, who are weak and unable to resist, must needs obey and suffer; which were matter of Force, and not of Duty: Whereas we find by lertullian, and all the Ecclesiastical Historians, that though the Christians were strong and numerous enough in the Roman Empire, yet they chose rather to dye than to resist, as I shall shew you more particularly anon, when I come to those Quotations; but I will, if you please, now proceed to the two last Texts I have to cite to you out of St. Paul and St. Peter. . <■ 

■F. That we may not confound things one with another, I pray give me leave How to answer what you have objected against what I said last, before you proceed to any fresh places of Scripture; for though, in the first place, I doubt whether the Non-resistance, which Tertullian and other Primitive Fathers so strictly preached up, was founded upon any express Command of our Savioilr or his Apostles; yet granting at present that Christ and his Apostles enjoyn'd it both by their Example and Precept, yet this does not reach the Cafe now before us; for there may be very good Reasons why our Saviour might enjoyn an absolute Submission to the Supreme Powers without any Resistance, though they persecute us, nay put us to Death, for Matters of Religion; and yet he may allow us greater Liberty for the defence of our Lives, Liberties and Estates, when assaulted by the unjust Violence of the Supreme Powers.

For First, Our Saviour ordained his Religion to be suitable to his Person, viz.. a meek, humble, suffering Messiah, to be an Example of a meek and suffering Religion. Secondly, Our Religion is a thing that no Power in the World can take from us; Persecution indeed may increase it and render it more fervent, but can nevdr diminish it, if it be real. And God hath exprefly promis'd so great a Reward in another Life for our Sufferings for it in this, that it will infinitely outweigh all that ever we can suffer on that account. And Lastly, Our Saviour Christ was pleased to ordain his Doctrine to be propagated by Miracles and Sufferings, to distinguish it from all the false Religions that had been in the World before his, or that should be set up in opposition to it afterwards; since neither the Pagannor Mahometan Superstitions, nor yet the Jewijb Religion, can shew the like; to subsist, nay encrease for above three hundred Years under such great and cruel Persecutions; nor yet is the Glory of God at all diminifh'd, but rather increas'd under Persecution, since none are then firm to it, but such as are really persuaded of its Truth, and that they ought to suffer the worst that can befall them, rather than forsake it. ... *


And certainly nothing can tend more to the Glory of God, than to see it sub>"» fist and increase under a cruel and bloociy Persecution; yet there is not the fame reason that we should suffer Persecution aster Religion is become the settled Constitution of a Nation; because then every Man hath the same Right to it as he hath to his Property or Freedom; and tho' a Man may part with either the ojje or the other, yet is he not obliged to give them up by Force, and whether he will or no; so likewise neither that Right which;he hath to enjoy his.R^" ligion according to the Laws of his Country. And therefore I do not resolves Obligation to Non-resistance in Matters of Religion, into the being the major pafit in a Kingdom, as you suppose; for if the Government of England were Popish, that is, the Legislative part of it, and the major part of the common People were Protestants; perhaps in that Cafe they were under all the Obligations of enduring Persecution without Resistance, as they were under the Heathen Emperors > but indeed the Primitive Christians were obliged to Non-resistance, because.,they lived under a Government in which Christianity was forbid, and Paganism estaV lished by Law. 1 . , v; . ........

And though it is true Conflantine made several Laws, enj'oyning the free E*8J> cise of the Christian Religion, and forbidding the Heathen Sacrifices, and thai the Pagan Temples should be shut up; yet was not the Christian Religion^ foriiU that, the sole Religion of the State; the very Senators of Rome, and the raajoj-pflffi of the common People, continuing Pagans still. So that it seems the Christjas Re* ligion was all this while rather established together with Heathenism, than thafcthw was wholly forbid; since all Civil Offices and Preferments were equally conferred upon Pagans as well as Christians, if they deserved them; and therefore it was no hard matter for Julian the Apostate to revoke so many of those Edicts his UncJg had made in favour of Christianity, and to abrogate those which had been pubn lifli'd against the publick Sacrifices to the Heathen Gods, and shutting up tbqijj Temples : So that no wonder if they were now again under the. fame Obligations to suffer, as they were before Constantine's Time; since the Christian Religion was never the only one established by Law, so as to exclude the open Profession of any other, till the Time of Theodosim; after which (as also some time h&r fore) according as the Christian Religion increas'd, and as they got greater'tffjK vileges from the Emperors, so were they more stout and bold in standing ,up for and defending the j'ust Rights of their Religion, whenever they thought: them invaded by the Arian or other Heretical Emperors, aa I (hall shew you by several Instances out of Church History, when we come to it; feut you may now, if you please, proceed to the rest of those places of Scripture which you have to produce against this Doctrine of Resistance in those Case I havq put. >Jv.

M- I have many things still to object against your last Discourse, but since i\ grows late, I shall now confine my self to the Doctrine of the Apostles concern ning Non-resistance; not as if the Authority and Example of our Saviour we-?e o» not sufficient of itself to make a Law, but stood in need of the Confirmation and; additional Authority of his own Apostles, but we might justly suspect ourselves mistaken in the meaning of our Saviour's Words, or in the intention and. design of his Sufferings, had none of his Apostles, who were immediately instructed byr himself, and acquainted with the most sacred Mysteries of his Kingdom, evej? preached any such Doctrine, as this of absolute Subjection to Princes. And therefore to give you the more abundant Aflurance of this, I shall plainly shew you that the Apostles taught the fame Doctrine, and imitated the Example of their great Master. I shall begin with St. Paul, who hath as fully declared himself in *• this Matter, as it is possible any Man can do by Words. Let every Soul be subject unto the higer Powers, for there is no Power but of God, the Powersthat be are ordained of God: Whosoever therefore resisteth the Power, resisteth the Ordinance of God, and theythat resist shall receive to themselves Damnation'

This is a very express Testimony against Resistance, and therefore I shall consider it at large; for there have been various Arts us'd to prevert every Word of it, and to make this Text speak quite contrary to the design and intention of the Apostle in it: And therefore I shall divide the Words into three general Parts. First, The Doctrine the Apostle instructs him in; Let every Soul be fubjeB to tin higher Powers. Secondly, The reason whereby he proves and inforces this Doctrine; For there is no Power but of God; the Powers that be are ordained of God.Whoever there

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fire resisteth the Power resisteth the Ordinance of God. The Punishment of such Resistance* and they thatresist stall receive to themselves Damnation. I shall begin with the Doctrine, shot every Soul must he subject tothe higher Powers; and here are three-JW* p. ion Things to be explained. First, Who are contained under this general Expression of every Soul. Secondly, Who are meant by the higher Powers. "Thirdly, What is! meant bybeingfubjetf. First, Who are contained under this general Expression (Si every Soul; which, by an ordinary Hebraism, signifies every Man: For Man is a . compounded Creature of Body and Soiil, and either part of him is very often in Scripture put for the whole, sometimes Flesh, and sometimes Soul signifies the Man; and when every Soul is oppos'd to the higher Powers, it must signifie all Men, of what Rank or Condition soever they be, who are not invested with this higher Power. And again, the design of the Apostle, as you shall hear more particularly by and by, was to forbid all Resistance of Sovereign Princes; and had he known of any Man, or number of Men, who might lawfully resist, he ought not to have express'd it in such general Terms, as to forbid all without Exception.

And therefore I shall now a little more closely examine your main Argument, or incieed Foundation of all that you have urged for Resistance, viz. That tho' it is unlawful for private or particular Men to resist the Supreme Powers; yet that it doth! not extend unto the whole or major part of a People or Nation, whenever they are outragioufly oppress'd or assaulted by the higher Powers, beyond what they suppose they are able to bear; whereas the Apostle here commands st,y. p. I03, every Soul to befabjeSi; and therefore if the whole Body of the People be subject to God, , they must also be subject to the Prince too, because he acts by God's Authority and Commission. Were a Sovereign Prince the People's Creature, that might be a good Maxim, Rex major singulis,fed minor imiversis, That the King is greater than any particular SubyeEl, but less than AU together; but if he be God's Minister, he is upon that account as much greater than all as God is. •

And that the whole Body of the People altogether, as well as one by one, are IhU- 104. equally fconcernJd in this Command of being subject to the higher Powers, is evident from this Consideration, that nothing less than this will secure the Peace and OTranquility of humane Societies. The Resistance of single Persons is more dangetoiis to themselves than to the Prince; but a powerful Combination of Rebels is formidable to the most puissant Monarchs. The greater the number of Subjects that feb'et against theit Prince, the more do rhey distress his Government and threaten his Grown and Dignity ; and if his Person and Authority be sacred, the greater the Violence i$Jwhich is offered to him, the greater is the Crime.

J-Iad the Apostle exhorted the Romans after this manner; " Let no privare and p- J°4> ■"* jfed single Man be so foolish as to rebel against his Prince, who will be too Ic>5'

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would this have secured the Peace ana" Quiet of the World? How would this agree with what follows, that Princes a^e advanced by God, and that to resist our Prince is td resist the Ordinance of God, and that such Men shall be severely puniuYdfor it in thiV World or the next? For can the Apostle be thought abso^ lufely to condemn Resistance, if he makes it only unlawful to relist when he want sower to conqUet? which y^t is all that'can be made of it, if by every Soul the Apostle means only particular Men, not the united Force and Power of all the Subjects; : ,:

rNpr can there be any Reason affign'd why the Apostle should lay so strict a Com- uu. p. i^6. mand bn particular Chriftiasrs to be subject to the higher Powers* which doth not equally concern Whole Nations: For if it can ever belawfol for a whole Nation to resist a Prince, it "may iji the fame Circumstances be equally lawful for a particular Man to do it; if a Nation may conspire against a Prince who invades their Rights, their'Liberties or their Religion; why may not any Man by the fame reason resist a Prince when his single Rights and Liberties are invaded? It is not ftyf p. I0& fofase and prudent indeed for a private Man to resist, as for great and powerful Numbers: But this makes Resistance only a Matter of Discretion, not of Conscience. If it be lawful for the whole Body of a Nation to resist in such Cases* it must be equally lawful for a particular Man to do it j but he doth it at his own


Peril, when he hath only his own single Force to oppose against his Prince; so that bur Apostle must forbid Resistance in all Men or none; for single Persons do not use to resist or rebel,or there is no great danger to the Publick if they do; but the Authority of Princes, and the Security of publick Government, is only endangered by a Combination of Rebels, when the whole Nation, or any conliderable Part, for Numbers, Power and Interest, take Arms against their Prince- If Resistance'of our Prince be a Sin, it is not the less, but the greater Sin, the greater and more formidable the Resistance is; and it would very much unbecome the Gravity and Sacredness of an Apostolical Precept, to enjoyn Subjection to a few private Christians, who dare not, who cannot resist alone; but to leave a powerful Combination of Rebels at liberty to resist; so that every Soul must signifie all Subjects, whether single or united; for whatever is unlawful for every single Person, ebnsidedered as a Subject, is unlawful for them all together; for the whole Nation is as much a Subject to the higher Powers as any single Man. Thus I am sure it js in, our Government, where Lords and Commons assembled in Parliament own them;selves the Subjects of the King, and have by publick Laws disclaimed all Power of raising any War, either offensive or defensive against, the King. . •

Let us now consider what is meant by the Higher Powers, (Opt fat vtepx&ctut} which signifies the Supreme Power in any Nation, in whomsoever it is placed, whether in the King, as in Monarchical Governments, or in the Nobles, as in Aristocratical, or in the People, as Democracies. At the time of writing this Epistle the Supreme Power was in the Roman Emperors; and therefore when St. Paul 3- commands the Roman Christians to be subject to the higher Powers, the plain meaning is, that they should be subject to the Roman Emperor. And thus St. Peter explains it; Be subject to every Ordinance of Man for the Lord's saker whether to the King as Supreme, w'^TtpijjovTi, the Word us'd in this Text, as to him who hath a supereminent Power, and is above all others, as also unto Governors that are sent by him, &c. From which Text Epiphaniut proves that subordinate Magistrates, under the King are ordained of God; and therefore that the Power of Under Officers, since it is the Ordinance of God, ought no more to be resisted thap the King's, from whom it is derived. „ '"t)"

F. I hope I shall not be very tedious in answering your long Speech, since"'ft small share of natural Reason and Grammar will do if; therefore, to be as short as lean, I do freely acknowledge, that not only private Men, but whole Nations^ are, by this Precept of St. Paul, to be subject to the higher Powers, without any Rebellion against them, as well as particular Persons, as far as they are Powers ordained by God. And therefore it is necessary that you should consider what is the true signification of the Word &w&, which if it be once discovered, you.will find it carries its own limitation along with it; for it excludes both the Usurp*? tion of the Supreme Power, and also the illegal and wicked Exercise of it; and of this Opinion is the learned Dr. Sanderson in his Lectures of the Obligation, of humane Laws; where, in his fifth Lecture, §.12. (as I remember) he speaks tQ this purpose, in answer to an Objection, 'that then aU those who have the power of'the Sword; that is, of compelling those who areunder their Power to perform tlxir Commands), ought then to be obeyed in Conscience. His Answer is to this purpose; " That the" "Power he means,and on which aloneliesthe Obligation of Conscience, is not that "Power which the Greeks call iwu^it, that is, natural or physical Power o'rFofiie$ - or else that which is only de fatlo, by which any one is able to do whatevei*''^ "pleases without any hindrance; but that Power which they call e!|8«'*,'tfta't" % "lawful Power, or of Right; to wit, that which belongs to- him that hath it'ljy, "the Law of Nature, Nations, or Civil Constitutions, by reason of the Person* "who bears it, and in respect of those who are to be subject to it, To this f* ilwia, or lawful Authority, the Apostle doth now so much press an exact Obe^ "dience, that he names it five times in the space of three Verses, but fays nai "one word of this Swap's, or Force. So far he. And if our Translators of this Place had rendered the Word ilwfa, Authorities, instead of Powers, as they have render'd it in other Places^ and as they were fain to do in the first of Peter, ch. 3- ver. 22. where ibsemv a'ndSwupeuv coming together in the fame Verse, they render the former Word by Authorities, and the latter by Powers, which if they had constantly done, they had effectually prevented the false application of this Text; since no Man in his Wits can imagine, that when a Prince (for Example) destroys, oppresses and enslaves his Subjects,.he acts thus-asi lawful Power or Authority; or that belongs to him (as Dr. Sanderson Ver^ well æx-,presses it) by any natural or municipal Laws; much less can be the Htcu true or just Authorities or Powers which are here meant by St. Paul to bcordained by God; and that these Words may be so render'd^instead of the Powers that ar.e,;FV . appears from Plato, who more than once hath hu. for verd Petestiv^v^z. s'c^«u: Power or Authority. • ■•• . ,% •'. ■ o3... J So that if this Text were to be understood in your Sense, this Place of Scrips ture would serve to countenance and defend all the Tyranny, Cruelty and Oppression which the most wicked Tyrants can commit; all which must be ordained by God, by vertue of this equivocal Word Power. But that you may the better fee the absurdity of this Interpretation, pray let us put these things into the Text instead of Powers, and fee how it will run then. There is no Tyranny, ViJ olence or Oppression committed by Princes, or their subordinate Officers, but what is ordained by God. , W.n°st>ever therefore resists this Power, resists the Ordinance of God. You'll fay, perhaps, that this is not your meaning, yet is it the true Sense that must arise from your Interpretation of this Place; whereas it implies no more than God's approving, all just and lawful Governments, and confirming from Heaven those moral Duties of Submission, Obedience and Non-resistance, which were always due, and must ever be, to lawful Authority; that is, such as are agreeable to the -Laws of God and Nature, which you plainly see are not due to meer Force, Violence or Cruelty; for that is absolutely excluded out of the T$xt, which will by no means admit of it: The higher Powers or Authorities ordained by God having no Commission from him for any of these wicked Purposes, '••otvdr; ..: .■ „

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M. I doubt, for all your Confidence, that you very much mistake the sense of s. C. Aifi these Words; for in the,rirst place your (or rather your Doctor's) Criticism be-19. tween .<£«w« and Jw«fi/i/will-not dp, for they both signifte the same thing in Scripture, either Force and Pow/et/or Authority, m iyu iietnu^aojuitvxb rivet; IwiS not be brought under the Power ofiany thing, i-Cor. 6. ra*. must signifie Force, and wtfuf must signifie Authority atod Dignity. Thus' Efhes. 1. Jj. 'T*epuw ■xdcyji 'tyzfc, *?J £'S80%i *fr Sw«ft£«j.i(«i.nv((oriiToe} which are several Names and Degrees of Dignity and Authority as rwell as , Power. An$l in the second place you do much more mistake, wjjeniyou suppose by this, Word Powers to be meant only the true or just Exercises Civil, Authority,- whereas the «/ iifauliu are the ot ilai/ii^owTec, the Persons themselves who exercise Authority and Dominion, the tlfyxfinzfS the Ruleijs, v. j> the Ministers of God which bear the Sword, v.4.in St. Peter, the B^ixei); and 'HyffuwEc, the &jn,g and his Governors and Magistrates, 1 Pet,c. 2. v. Ij, 14, And therefore; Imulltell you,: you da very ill to separate the Power or Authority from the Persons intrusted with it. But suppose I fflouldffraini "'

rr ~* ""T

-j vMVf^HonsmtruUed with it.! , 1: - ■• . / ,-|.

rf««. * lijould grar$ .you that this^ord iis&m: doth here signifie the Exercise Jt c jg * 'r'£

of Authority, yet doth it not signifie. the right and lawtal.uie of this Power, but the' ... k

Right to exercise this Authority 5 whether well or ill, 'tis all one,, as to the Stjbr
mission due to it ibecaufe ho Resistance canbe lawfi^oi; want of a superior JuriP
diction over itj^Jne tjruth of this is eyjdent frorn t}oin 19. 10, 11. Pilate fays
to Jesta, bwiyfi thwmt that ffaisim e%o, I. have Power to crucifie thee, and have Power 1
to. release thee j Jesus grants it, and answers, ax tl%tQ ihicim fSefuaat Hkt 1^5, et

M>.3>t£. "Thou couldsst have no Pvwer .. against me, except it were given thee from above. '\

And tjherelbre I shall reduce .ygu/, Argument into the form of a Syllogism, that you JW> 1 j'8< t 'A

may more pjainjy fee the absurdity pf it... .
Powers not ordained by G»d, may be resisted without danger of Damnation.'.

But Powers exercises tyrannically, are not ordained of God; v J v

j Therefore wei aje not; forb^d^en to resist them.

'1ftShis Syliogisip the Minor is not true;; for though Tyranny be ndt the Ordinance of Godr yet the Power, or Authority (of which this Tyranny is but an *H Abuse) is of divine: Institution.; for tho' the Supreme Power is commanded to rule tjfM justly, yet is itiwitfial enabled to act otherwise.- for the good or ill use os it is left , ' •

indifferent, in respect of the Subjects Subjection, though not of the Magistrates com- ', I

rnanding or acting Power : So that the Abuse of this Power doth not make void the . M

Authority, though acting contrary to the Laws of God or Nature. The Obli-: gation not to relist, the Supreme Powers receiving not any Validity from their v" "' Justic*,


{174}


Justice, nor is it weakened or annulled biy their Violence or Injustice. Saul was Qod's Anointed, and Pilate had his Authority from above, notwithstanding their high Abuse of it.

So that upon the whole matter, I incline to believe, that the Reason which mads St. Paul call the Magistrates by the abftrailPowers, was this: He wrote to Christians living in the Roman Empire; and it was the Custom of theLatin Tongue to cast Persons endued with Power, Potestates. You may observe it in ,j3. Ulpian, L. quid sit. D. deÆdil. ediB. § 19. And in Auguflin, Epifi. 48. who says^ Stve Potestat veritati fovens aliquem corrigat, laudembabet ex illo qui fuerit emenddtm, five inimica veritati in aliquem faviat, laudem habet ex iUo qui fuerit core*natm > and mark that, Potestas inimica veritati, must needs signify a Man abusing his Authority. And in Juvenalwe read, An Fidenarum Gabionmque effe Potestat. And in Suetonius, Jurifditlionem de fidei commijfis quotamis,& tantiim in urbe deligari Magistratibdi folitam, in perpetuum atque etiam per Provincial Potestatibm Aelegavit.The modern Languages, Italian and French, which were bred out of the Latin, retain this antient way of speaking; for Potestat in old French, and Podesta in Italian, express not the Function only, but the Person who manages it. Thus antiently the Latin Word for the Chief-^Justice, was Justitia, as you may find in Glanvil, lib. 2.cap. 6. and Roger Hoveden's Annals; lo our King is called in the Abstract, Majesty, as the Grecian Emperors, iyt*fiiiaiXeicc..

Many dangerous Consequences flow from thence; but I desire not to make Sport with that unhappy Distinction which had almost ruined as flourishing, and strongly temper'd a Kingdom as any in the Christian World. It exposes Magistrates, and all in Authority, to the Contempt and Injuries of the basest sort of People; for when discontented it is very obvious for them to tell them j though Reverence is due to their Function, yet, that setting their Office aside, they 'will take the Liberty only to correct their Persons; and that the Magistrate is not at all affronted, though the Man be soundly beaten. Indeed, it is against common Sense to put such a difference between the Person and the Authority  Kings; for if it were real, neither God, nor the Laws of the Land haveniade any Provision for the King's Safety; for his Authority is not capable of1 ie* teiving any Benefit j and therefore it must be acknowledged;; by all sobetc'SB<i reasonable Men, that this Authority1 doth but convey fuc'h and such Frivi* ledges upon the Person who only can be sensible of them; and consequently whatever is attempted against his Person, is attempted against Iris Authority likewise.

P. 1 doubt you will have no better Luck in Criticisms'than my self, arid; that they will do your Cause as little good: For if there be rid" difference in the Scripture between ifaet'x and Zvvafitg, as you affirm; and that both of shea* signify, not the Authority alone, but the Persons endued with it, and thafthey are all from God; thenTyrants and Usurpers arc'ordained likewise by Gody &nd consequently Oliver Cromwest was as much theOrdinance of God, a£ King Charles i aftd if this be your Doctrine, much good may it.dd' you. But pray keep1!*** your self, lest if ;your Friends the Old Cavaliers come to know*it,' they will-quit* banish you their Company: Besides, I can shew Vcftf other[ Consequences that will follow fforn. it, which I have not now a mind to urgfei but- may hereafter j for I" have no mind to enter into that troublesome -foebate any more i for I told you enough of my Mind concerning it the last timdvwemet save'tmev ""But since yon will needs' have these4t}asuut not to-signifielowers or Authorities, but the Persons themselves, you shall have, your Will, for onee^ only I pray now answer me one short Question : Wheni for Example, -Charles the7 sixth, King os France, sell mad, and would have killed his Servants, by what Authority did they distinguish and.separate between his Person and his Power-?''and thought that they might Well resist and bind the one without 'any Diminution to the other. Or by what Right did the Portuguese seize'and imprison their late King, and make his Brother Regent in his room, but because the former used sometimes in a Frolick to murder his Subjects out of the Window, or as he met them upon the way; and was besides found, by reason of an iricurable Folly, to be utterly uncapable to govern? Pray tell me, did not the Servants and Sabjects of these Princes then separate the Authority from the Person ? If not, they must have let them alone to have done what they would, the Consequence of which you may easily imagine. , M. These

As. These Instances of the-Polly and Madness of Princes are the main things that you Gentlemen ofCommonwealth Principles have to defend them withal : But to shew you there is a great difference between maddrPrinces and Tyrant? t who are in their right Wits, I will shew you my Reasons why the one may be bound or resisted, and not the other. In the first place, I suppose you will not deny, but that Folly and Madness do so far incapacitate the Persons that arfe under those Misfortunes, that they hinder them from acting like rational Men, , much moK from performing any of the Functions of Civil Government. In the next place, they ought to be restrained for the Common Good of their People, as well as themselves, lest they should not only murder and hurt their Subjects, but themselves too.-' And lastly, because it is the highest Courtesy and Benefit that can be done such mad, -or foolish Princes, to shut them up dose, and hinder them from exposing their Folly and Madness, and rendring themselves ridiculou» to the World: Whereas a Tyrant,, whom I suppose in his right Wits, though be never so much mfimes or oppresses his People, yet Civil Government may be well enough carried on and maintains under his personal Conduct > and as long as he hath Wit and Sense enough to govern, he is so long to be tbeyed as the Ordinance of God, without any Resistance whatsoF. But this much I supposei.<you will not deny, but that this Power of refisting, and (hutting up mad Of foolish Princes, is whofly exercised by the Law of Nature ; since I never heard of any Civil or Municipal Law that made Previsiohsor itj- -ulf. z: .1 >0 stnic '... r.. . iO . « J . . >

-AT I stall not much difoljtethat with you; it may be so j but what do you infer from thence 1 - • :im»m 03

: :F. Why; no more than this-: that if I can prove to you, that there is no such great difference i»etweenMeatmen and -Fools, and habitual incurable Tyrants (afr.you imagine);,there is A like- Right in the People by the Law of Nature to resist and defend-tlwtoaselves against the $m as the other; and therefore I will examine each of your three Reasons one after another, and fee whether they may not as well be applied to stich Tyrants, whom alone I suppose may be resisted, as co Mad-men or Fools s and if they do, I suppose you will not deny the Consequence. Your first Reason is, that Folly and Madness do so far incapaestate their Reasons that are. under these Misfortunes, that they hinder them, from acting like rational Men, much more from performing any of the Functions of Civil Government. Now pray tell1 me, doth not Anger, Lust, Pride, Crueky, Wilfulnefs, Ambition, and unreasonable Self-love, which are the Passions and Vices which disturb the Souls of Tyrants^ and make them take a delight to enslave, destroy and oppress their Subjects, as much incapacitate their Reasons for performing these "Functions of Civil Governments, as Folly and Madness themselves? And I think I have already proved, that when Princes bring things to this pass, they dd as much deserve Tutors or Guardians to keep them from doing Mischief, and to manage their Kingdoms for them, as the most mad or foolish Prince we have read of in History. But the Mischief os it is, that such Tyrants, not being mad enough to be shut up like Mad-men or Fools, nor yet having Judgment, or good Nature, sufficient to perform the main Ends of Civil Government, by the. greatness of the Rewards that they are able to bestow upon their Followers, may fcon' bring the best Government into a State of Waeahd Confusion.: And 'till then I do not allow their Subjects to resist them. :T.■':

Your next Reason is, that they ought to be restrained for the Common Good of their People, as well as -themselves; lest they should not only hurt or murder their Subjects, but themselves too; Now pray consider, if these mad and foolish Princes mars be restrained and resisted, because they only murder, or hurt a few of their Subjects that" may come in their way, then have not such Tyrantt much greater Reason to be resisted and secured, that through unreasonable Revenge or Superstkion, make War upon and destroy the People, for no other Cause, but because they will not submit themselves to their unreasonable Lusts? Or that burn Cities, massacre whole Towns of innocent Subjects, and enslave and oppress a late flourishing Kingdomought not these as well to be restrained or resisted foe the Common Good of Mankind, though perhaps they will not

hurt or make themselves away, as Mad-men or Fools may? Or can any reasonable Man shew me, why the Extravagancies of such mad or foolish Princes may be resisted, but the furious wicked, and tyrannical Actions of the other, must be submitted to as the Ordinance of God? Or lastly, why a natural Infirmity or Weakness, such as Folly or Frenzy, shall make a Prince uncapable of Government; and yet why insufferable Tyranny, which is a moral Disability, shall give Princes a greater Privilege not to be resisted, I cannot understand; since the latter is much more destructive to the main Ends of Goverment j i. e. the Preservation and Good of the People, than the former can possibly be. i

As for your last Reason, that it is the highest .Courtesy that, can be done to such mad and foolish Princes to (hut them up, and hinder them from exposing their Folly and Madness, and rendring themselves ridiculous to the Worjd, I think the Reason will hold more strongly for the one, than the other. For as such foolish and mad Princes would, if they could come to themselves,, thank those who had done them so charitable an Office as to resist them, and Ihut them up ; so likewise, I verily believe, that if the Grace-of God, or some .natural Means or Accident, could so far open the Eye?, of such a.Tyrant, as.to let him see the Folly and Wickednesses of those Courses he takes against the People, he would, instead of being angry, thank his Subjects for resisting him; because thereby they had not only hindred him from making himself, any farther the common Hatred of his own Subjects, as well as his Neighbours ; but also from committing such heinous Sins and Offences against God, as Murder, Violence and Oppression. To conclude; I grant, that as long as a cruel or wicked Prince can so far restrain his Vices and Passions, as to maintain the Ends of Civil Government above mentioned, he is to be obeyed as the Ordinance of God. But when he will set no Bounds to his Tyranny, but resolves that his Lust shall be unconfined, whereby he becomes insupportable to his People,. they may as well distinguish his Person from his Power, as they do in the Case of Princes, when they are either Fools or mad Men. .... -: . .

M.But pray consider the rest of the Consequences of my last Discourse,and will not then the supposing a Power in the People of making this Distinction when they please, and of judging when the Prince's Government becomes intolerably Tyrannical, make them to take upon them to judge it so, when .it is quite otherwise, and so not seruple to rebel, or to resist (as youjcall it) whenever they are in the Mind to do it? And we have the more reason to be afraid of this, because from the long Parliaments,~and their Adherents, making use of this Distinction among other specious Pretences, were derived all the Miseries of our last Civil War. And therefore, though I own it is an easy thing to judge of the Madness and Folly of Princes, as well as other Men; yet (the Wickedness and Partiality of humane Nature consider'd,) it is a much harder Task to judge rightly what Actions of Princes are destructive to Civil Government, and render them as uncapable of it, as the most extravagant Actions.of foolish and mad Princes can be pretended to make them so. «« -sj

F. If the Instance of Mad-men and Fools seems to displease you, because it is very pat to the Subject in hand, I think I may likewise remark, that those Inconveniencies you suppose of making the People Judges in this Case, is the sole Objection I can find you have against what I have said j for otherwise, I do not see you have any thing to alledge against the fitness of the Parallel. But I have already, I believe, made it pretty plain, that murdering, enstaving and robbing of the People of their Propertœs, are things as easy to be judged of as Folly or Madness: And if a few Domesticks about the Prince shall be allowed, to judge when their Monarch is mad or foolish enough to be resisted and Ihut up, I cannot see any Reason, why the whole Body of the People may not as well be able to judge, when, by his Tyranny and Oppression, he hath dissolved the Governmenr, and entred into a State of War with them.

But to return now to the last part of ypur former Answer, wherein you grant that this Word il&ritt, doth sometimes signify not only, the Person, but the Exercise of Authority; but that it doth not .signify the right or lawful Use of it, but TA.buse too; and for the Proof of this, you alledge the Speech of Pilate to our Saviour; I am very well satisfied that that Text will make nothing for.

your your purpose: For though I grant that the Word in that place denotes Power or Authority, yet doth it not there signify the Abuse of it too : For certainly Pilate would never have told our Saviour, that he had a Power to abuse his Authority, and eo condemn him, tho' innocent; neither would our Saviour have answered him, that he had that Power from above. And therefore, I think I may very well maintain my Syllogism to be true, notwithstanding your denying of the minor Proposition. For since you cannot affirm Tyranny to be the Ordinance of God, yet that the Power or Authority, of which this Tyranny is but an- Abuse, is of Divine Institution ; which is but a Fallacy, if it be look'd into. For though you may, vulgarly speaking, call all Tyranny an Abuse of Civil Power, yet some Tyranny is more than that: For it is hot so properly an Abuse, as a Corruption of it into quite another thing, which God never instituted; and consequently therefore is not to be submitted to out of Conscience. It is- an old Saying, Corruptio oftirni, est pejstma; and you may as well tell me, that Vinegar, notwithstanding its Acidity, continues Wine still, as that Civ il Government, when it degenerates into the rankest Tyranny, continues still God's Ordinance: And if this be the true Consequence you draw from your Argument, it signifies little, viz,,that the Abuse of this Power, doth not make void the Authority of the Law of God or Nature. For I think I may maintain the clear contrary to what you aslert, viz., that the Obligation not to relist Ki«Mipm<> Powers, doth receive some Validity from the Justice they execute,

- T ~««>j uvu un jim-icc mey execute,

and is weakened, and at last annulled, by their intolerable Violence or Injustice. *

Nor are your Instances of Saul or Pilate, to the Question in hand: I grant Saul was God's Anointed, and could not have been lawfully resisted by David, notwithstanding his murdering of Abimelech, and the rest of the Priests: And Pilate might have his Authority from above, notwithstanding his Abuse of it: Yet doth it not therefore follow, that if either the one or the other had declared themselves sworn Enemies to the whole Nation of theJews; and that instead of governing and protecting them, they had gone about utterly to destroy them, I think they had then ceased to be the Ordinance of God, and their Divine Commission had been at an end. To conclude: As for the Reason you give, why St. Paul might call the Roman Emperors by the Name of Powers, 1 mail not deny it. But whether by the Word eU<riz, the Apostle means Persons or Powers, is much at one ; for if he means the former, he only urges Obedience to them as they are the means of the Happiness and Preservation of the People, as appears by the third and fourth Verses of the Chapter you now quote, where the main Reason St. Paul gives for our Obedience, is, That Rulers are not, a Terror to good Works, but to the evil; and that he, (viz.. the Supreme Power) is a Minister to Ha for our Good: And indeed, it had been a very odd way of enforcing our Obedience, for him to have said the quite contrary, that this Power •was to be obeyed, because he was a Terror to goodWorks, and a Plague to aS good Men, and a Minister to us of all manner of Misehief and Misery. This had been indeed an excellent way of proving the Supreme Powers to be the Ordinance of God.

M. Before I can give you a full Answer to what you have now said, I must beg leave to look back to thebeginning of your fir ft Answer, where you object, that if by the Higher Powers here mentioned, the Persons, and not the Authority of those in Power, are to be understood, then it would follow, that Tyrants and Usurpers are likewise the Powers ordained of God ,• which Objection, I think, may admit of an easy Answer:

First, ** Can there be no wise Reason given why God may advance a bad Man S. C. R. "(or Tyrant) to be a Prince? Is there ma-y, then it is no Reproach ro the Di- 12°"vine Providence. The Natutal End of Humane Societies is the Preservation "of Publick Peace and Order; and this is in some measure attained even under "the Government of Tyrants: But God hath a farther End than this, to bless "and reward a virtuous Nation, or to punish a loose and degenerate Age; and "there cannot be a greater Blessing than a wife and virtuous Prince, nor a greater "Plague than a merciless Tyrant: And therefore the Providence of God is as "much concerned in setting a good or a bad Prince over any People, as in re"warding or punistiing them. Upon this account God calls the King of -: A a AJfyria,

Isai. 10. 5,6." Assyria, the Rod of his Anger, -whom he raised up for the Punishment of an Hypo" "criticalNation.

Ib. p. 121. Secondly, "I have already proved, that by the Powers in this Text, the Apos"tie means the Persons of Soveraign Princes; and therefore, according to his "Doctrine, those Princes who were then in being, that is, theRoman Emperors, fC were advanced by God; the Powers that be, that is, the Princes and Emperors "who now govern the World, are ordained and appointed by God, and that

~ *' thus it is, God himself tells us: / have made the Earth, and given it to -whom it

./sr. 27. 5, • tc jeeme(i meet umo mt. md i fjwe given all these Lands into the hands of Nebu"chadnezzar, King ofBabylon, my Servant.

This was also the Belief of the Primitive Christians under Heathen and persecuting Emperors. Tertullian , who wrote his Apology under Severus, asserts, "that Cœfar was chosen by God, and therefore that the Christians had a pecu"liar Propriety in Cœfar, as being made Emperor by their God." So likewise St. Augustine, De Civitate Dei,speaks to this purpose (as I remember): God u giveth Happiness in the Kingdom of Heaven to the Godly alone: But this "earthly Kingdom both to the Godly and Ungodly, as it pleases him. ,.He "that gave the Government toMarim, gave it also to Cœfar .- He who gave it *' to Augustm, gave it also to Nero: He who gave it to theVefpafians, Father "and Son, most beloved Emperors, gave it also to the most cruel Domitian: And "( not to recount the rest of them ) he who gave it to Confiantine the Christian, "gave it also to the Apostate Julian. These things, without doubt, the only "true God governed as he pleased, by Causes, though hidden, yet not unjust. So likewise almost all the rest of the Fathers do own, that wicked and tyrannical Princes are given as Punishments to the People for their Sins; and. so upon this account are to be endured, and not resisted, since it is God's Will to have it so.

S.c.R.p.u%. But as for Usurpers, I think I can give you a very satisfactory Answer; "for "the most prosperous Rebel is not tht Higher Power, while our Natural Prince, "to whom we oVe Obedience and Subjection, is in being: And therefore, tho' "such Men may get the Power into their hands by God's Permission, yet not by "God's.Ordinance; and he who resisteth them, doth not resist the Ordinance "of God, but the Usurpations of Men. Whereas in.Hereditary Kingdoms, the ** King never dies; but the fame Minute that the Natural Person of a King dies, "the Crown descends upon the next of Blood: And therefore he who rebelleth "against the Father, and murders him, continues a Rebel in the Reign of the "Son, which commences with his Father's Death. "It is otherwise indeed, where none can pretend a greater Right to the Crown 'cc than the Usurper; for there the Possession of Power seems to give a Right:

Ib. p.izy. "Thus many of the Roman Emperors came to the Crown by very ill means, j "but when they were possess'd of it, they were then the Higher Powers: Foe "the Empire did not descend by Inheritance, but sometimes by the Election "of the Senate, sometimes of the Army, and sometimes by Force and Power, "which always draws a Consent (and Submission) after it. And therefore, the "Apostle doth not direct the Christians to enquire by what Title the Emperors "held their Crowns, but commands them to submit to those who had the Power "in their hands: For the Poslession of the Supreme and Soveraign Power is Title "enough, when there is no better Title to oppose against it; for then we must pre"fume that God gives him the Irresistible Authority of a King, to whom hetc gives an Irresistible Power; which is the only means whereby Monarchies and  Empires are transferred from one Nation to another: There are two Examples ** in Scripture which manifestly confirm what I have now said.

The first is in the Kingdom of Israel, after the Ten Tribes had divided from the Tribe of Judab and the Family ofDavid, where God had not entailed the Kingdom upon any certain Family : For after Jeroboam the first King, it is plain by the Story in the Books of Kings and Chronicles, that for some Successions there was nothing but Rebellion, and the Murder of one King by another, so that the Kingdom rarely descended from the Father to the Sonand in the whole Succession of these Kings, it only remained in the House of Jehu for four Generations, and then it returned to its former Uncertainty, as you may fee in the 15 th Chap

Ib. p. 131. ter of the 2d of Kings: All which plainly shews, "that where there is no regu"lar Succession to a Kingdom, there Possession of Power makes a King, who



{179}

"yet cannot afterwards be resisted and opposed without the Guilt of Treason i
"And this was the Cafe of the Roman Empire at the writing of this Epistle ::
** And therefore the Apostle might then very well fay, that the Powers that be are
u ordained of God j and that whoever had the Supreme Power in his hands, was
"the Supreme Power, that might not be resisted.
)' But it was otherwise in the Kingdom of Judah, which God himself had en-

tailed on David's Family, as appears from the Examples/of Joajb and Athaliah,
which we discoursed of at our last Meeting but one: Which Examples plainly ■
dew, that no Usurpations can extinguish the Right and Title of a Natural or
Hereditary Prince: Such Usurpers, though they have the Possession of the Su- •
preme Power, yet they have no Right to it,• and though God for wife Reasons, -
may; sometimes permit such Usurpations, yet whilst his Providence secures the°
Persons of such deposed and banistrd Princes from Violence, he secures their Title

too,--3'"u:-- ■■— l''Jl' ■•. -'-'-j1-'-. ij

But to prove more plainly, that no Resistance is to:be made against the Per^ sons .or Authorities of the Supreme Powers, let them be never so cruel and tyrannical* as it is evident not only from what St. Paul hath here written; but I shall . also crave leave to insist farther on that Text of St. Peter'-before cited;- in his ist Epist.' adChap.Submit yourselves to every Ordinance of Man for the Lord's fake, tvhe- Vtr. 13,1+1 ther it .be to the King, asSupreme; or unto Governors, ai unto them that are sent by him for the Punishment of Evil-doers, and for thePraise of them that do well: Where by Ordinance of Man, whether we understand, as some do, every Humane Law; or with others, morefustly, <*vflpfc*7»") vrku, every Humane Creature, (:as it is in the Original) that is, every Man endued with Supreme Power, it comes all to the fame Sense, and the King as the Supreme Power, and his Ministers or Officers, as Powers subordinate to him, and acting by his Commission, are to be submitted to and obeyed as much as himself: And it had been in vain for St. Peter to have concluded this Exhortation with footGod and honour the King, if he had allow'd it lawful in any case to resist him; since certainly ho Man can honour him, whom he resists: And that this is a Doctrine everlastingly true, appears by the time in-which St. Peter and St. Paul wrote these Epistles, which was either under the Reigns of Claudim or Nero; and I suppose you will hardly meet with two worse Men, or more cruel Tyrants, in all the Catalogue of Emperors: Since the former committed many wicked and cruel things by hisFreed-men and Officers; and also banished the Jews, and Christians together with1 them, from Rome.- And the latter is so notorious for his Cruelty, and Persecution of the Christians, that . his Name passes into a Proverb. And yet these were the Higher Powers, to whom the Apostles commanded them to be subject. From whence you may fee your Error in interpreting the tifirUi, to signify justand lawful Authority; whereas it plainly signifieth in this place, the Men vested with this Authority h6w[otvettyrannically they abuse it.

F. You have made a pretty long Reply; and I have heard it patiently, because, I confess, that on this depends the whole Controversy between us: And therefore I shall beg that you would hear me with the like Patience;because what you have now said, I grant to be of that weight, as to require a large, as well as a considerate Reply. And therefore I shall make bold to consider the last part of your Speech in the first place, because I can soonest dispatch it: As for your Argument, that we ought to be subject to the most tyrannical Governors without any Resistance, because Claudim or Nero, whom you suppose to be cruel Tyrants, then govem'd the Empire, and persecuted the Christians.

In answer to this, I must tell you, that if you please better to consider of it, you will find it very doubtful whether St. Paul wrote this Epistle to the Romans during the Reigns of Claudim or Nero. The Learned MonsieurCapel, in his Discourse which he hath written, on purpose, concerning the Time of the Writing of this Epistle, proves this Epistle to tlx Romans to have been written during the latter End of the Reign of Claudim. But those Learned who will have it written during the Reign of Nero, do all agree, that it was in the beginning of it, within the first five Years, when the Administration of Affairs was under the Ministry of Seneca and Burrhm, and when the Government of the Empire was most just and moderate, and divers Years before ever Nerd burnt the City, or persecuted the Christians, and did so many extravagant, cruel, and tyrannical Actions, as

A a a forced

• *

forced the Senate to declare him the Enemy of Mankind. But as for Claudim, he never persecuted the Christians at all, as I know of.

M. I pray, Sir, give me leave to interrupt you a little: Did not Claudius persecute the Christians, when under the notion of Jews he banished them from Rome, as appears by Alls the eighteenth, when Aquila and Prifiillawere forced to quit Italy and come into Greece, because of that Edict? And yet.it was this very Claudius, to whom St. Peter (if not St. Paul) doth require all Men to be subject without any Resistance. AJ '• .. . _ ?0 ujr. _ t7/ .

. p. I think this Difficulty will easily be answered; fox ia th<j first places tho' I grant that Claudius towards the latter end of his Reign banished the Jews from. Rome; yet did he not banish the Christians from thence, as we know of, *ny; otherwise than as they yrerejews by Nation; and upon this account it was* that; Aquila, being a Jewby Birth, was forced to quit Rome with the ;reij: But r*ei«j ther Suetonius, nor any other Author, tells us, that he likewise banished the Chris-, tians, tho' I know indeed there are some learned Men that would interpret-this Passage in the former Author, in his Life of Claudim: Judm^ipmltuantesi, impul-, fame Cresto Roma expulit; to be meant of the Christians being expelled Rome, a*j instigated by Christ their Prophet to Sedition. But tho' I own that pur Savjopr was sometimes called Chrefius by the Pagans, by way of Contempt, • yet that by this Cbrestushere mentioned, cannot be understood our Saviour Christ, is very evi-> dent; for it had been very improbable forSuetonius to have made Christ, who was dead above thirty Years before, to have excited the yews to Sedition: And therefore the Lord Primate UJber, in the ad Volume of ^.Amalf^.. (with much better Reason) supposes, that not our Saviour, but, some seditious yewc^od Crestus, who headed this Sedition, was the cause of the Banishment of the yews from from Rome: So, that this was no more a Persecution for Religion, than it would have been for the Parliament in King Charles the Second's Reign, duripg the heat of the Popish Plot, to have banished all the Papists out of England upon the account of their former Rebellions, and constant Machinations to overturn the Government, and Religion establish'd by Law: But supposing this Edict to have banished the Christians as well asyews, it had signified nothing; for k was no Persecution for Religion: And besides, being made in the last Year ofClaudius, it was but a temporary Edict ,• and we find the yews to have lived quietly at Rome in the Reign ofNero, as appears by the last Chapter of the Ails.

But as for Claudius's Government, it was so far from being an insupportable Tyranny, that there was no Prince that did take more care to do impartial. Justice, according to that small Capacity he was Master of, than himself. And tho' I yield, that by his Proconsuls, Presidents and Freemen, there were-many. Oppressions and Cruelties committed in the Provinces; yet it was only against some private Men, and did not extend to the destroying and enslaving the whole Body of the People, who during his Reign generally enjoyed their Liberties and Properties^ with as great Freedom, as under any of his Predecessors.

■And as for Nero, all Ecclesiastical Historians agree, that if this Epistle of, St. Paul was written in his Reign, it was within the first five Years of it,-, which was in his Non-age, under the Administration of Seneca andBurrhus; during which time all prophane Historians agree, that the Empire was never better governed; and as for the Wickedness and Violence that Nero committed afterwards, when he persecuted the Christians, murder'd his Mother, his Wife, and most of his best, and most intimate Friends, and set the City on Fire: St. Paul was so far from knowing any thing of them, that sure he would not have urged it to the Romans, as a Reason of their Subjection to him, that Rulers are not a 'Terror to good Works, but to the evil, or that he was a Minister to them, that is, to the SubjeEls for good; nay, even in the worst of his Reign, as far.as Justice was duly administred by himself, or his Under-Officers, I grant, he was not to be resisted, notwithstanding his Personal Crimes, which could only reach a few Persons, since a wicked Man may often make a tolerable Prince.

And though Domitian was in his own Person a cruel Tyrant, yet he was so far commendable, and to be born with by his Subjects, that during his Reign the Proconsuls, Presidents, and other Inferior Magistrates, were never freer from Corruption and Oppression: Whereas when Nerva (who was a mild good-natur'd Prince) succeeded him, by his too great Lenity towards those Inferior

- MagiMagistrates, all things presently degenerated into a most sad Condition, justice being sold and perverted, and the Poor robbed and oppress'd, by the Violence of the Rich and Powerful. And even Nero himself had this Commendation from his greatest Enemy, Suetonius, that he would not be governed by his Officers and Freed-men (as Claudius was) to do foolijh and unjust things. So that if Nero himself had not by burning the City, and by murdering the innocent) Citizens in the Night, made 'himself a publick Enemy; I do not fee but his Government might very well have been born with, notwithstanding his Personal Crimes and Vices: For if you please to remember, I have already excepted Personal Faults in Princes, from being any just cause of resisting their Authority, if they are such as can any way consist with the Common Safety and Welfare of the People. ; :.: .. M. I must, confess I never-yet consider'd this matter, concerning the Time when St. Four and Sti Paul wrote these Epistles j and.you'll pardon me if I do not readily allow what you fay, but I promise you to consider farther of this matter; and examine the Authors ydu have quoted: But however, whether the Christians were then actually persecuted, or not, or whether these Emperors: were then-act**' ally Tyrants, or not, signifies very little to me ;■< for these Holy Apostles might very well foresee,- not only by. Divine Revelation, but by Natural Prudence of Foresight, that the Emperors would prove great Tyrants and Persecutors of the Church; and the late Example of the Emperor Caligula had shewed them not only the Possibility, but also the great Likelihood'that- it might happen again1; And therefore it is no wonder, that these very Apostles do* m Consideration of this, commastid! all Christians to fubmit to, and obey all Supreme Powersy and tWk Subordinate Officers,. upon paint: of Damnation: And if St. Peter, in this Chapter last qnofied, commands Servants to be fubjetl to their Masters, notonly to' the Good and Gentle, but also to the Frowardj ;(that is, to the Cruel and El-condition'd) and gives this Reason for it; For this is thankworthy,. if a Man for Conscience towards God endures Grief, suffering wrongfully:And enforces it with this great Motive", For even hereunto were ye called,, because Christ also suffered for tit,leasing us an Example, shot yeshould follow his Steps: And if Servants^ or Slaves, were to be subject to their Mailers, set them use them, never so cruelly, it will,. I think, hold more strong sot Sovereign Powers, who are the immediate Ordinance of Gad.


J*.v You need not have made your Answer half so lon$, if you had been pleasM to take notice, that I have still; excepted any Resistantejwhich might be then made against, the Roman Emperors, upon the account of Persecution for the meet score of Religion; since I grant, that our Savidur hath, fop those particular Reasons I have already alledged, commanded us to ai patient Sufferings and bearing Test** many to the Troth of his Religion by Martyrdom, ou.any other-Sufferings which he {hall think fit to inflict upon us by lawful Authority, and for the like ends for which they were to suffer. Yet hath he not therefore-taken away all those othet Natural Rights, which whole Nations had of Self-defence against Tyranny and Sla*teryy whensoever they are exercised upon them. Nor doth your Argument from the Duty of Slaves to their Masters, at all concern Subjects, much less whole Natrons: For, I hope, there is a great deal of difference between them and perfect Slaves, who having no power over their own Persons, and so had neither Liberties nor Properties to lose.

But besides, if you please better to consider this Text, you will find, that this ditt wholly concern such Christian Slaves who were for their Religion s fake often* times the more cruelly treated by their Heathen Masters: And therefore those Words you have but now repeated, If a Man for Conscience fake suffers wrongfully, as likewise those in the 20th Verse, If you do well, and suffer for it, can only be meant of Suffering for the Profession of Christ, since no Heathen Emperors, nor Masters, ever persecuted their Subjects, or cruelly treated their Salves, for well doings that is, doing those Duties and Services that they owed them; and therefore^ this place makes nothing at all to the Question in hand.• -•>

- M. But pray tell me, doth not the Apostle Paul expresly command every Soul, that is, every Man whatsoever, (not whole Nations excepted) to be subjeel to the Higher. Powers? And since you grant it to be true as to particular1 Men, why it foould-not likewise hold as to whole Nations, I can see- no reason, unless you will be wiser, than the Apostle, and make Exceptions out of this general Rule, where the Scripture itself-makes none: For can any tiling be more express than this-, that V- they

they that resist stall receive to themselves Damnation; and the Word is in the plural Number, they,and must therefore take in all Men, none excepted: I have urged this already, and finding you have not given me an Answer to it, I make bold to remind you of that Omillion.

F. I beg your pardon, if the multiplicity of your Objections hath made me omit any thing that was material to be answered; but the truth is, I suppose that I had in effect done it already ; but since you will needs have it made plainer to you, I hope you will pardon me, if in the doing of it I am forced to use some Repetition. Therefore in the first place, I shall not deny the Interpretation which our Translators put upon this Word KpiJ*.*, which tho' it sometimes signifies not eternal Damnation, but temporal Judgments; yet I will own it will not well agree with what follows in this place, which are only temporal Reasons and Motives for this Duty. Now understand this Word Kp^a in the Scripture Sense;' and tho' I do it will be much at one; for I have already proved to you, that whether you take these ihstslcu for Powers or Persons, they are not absolutely irresistible, and I have St. Chrysoflome on my side in the Interpretation of this Word, who understands no ■ more by it, than that Civil Power or Authority is from God, bur not the Tyrarits or wicked Men that execute it; but if it be taken for the Person endued with this Authority, I have also shewn you, that when they degenerate into intolerable Tyrants they lose their Character, and may be resisted as well as Mad-men and Fools. So much in respect of the Powers themselves, and now to come to the People: I think I have given very good reasons already, why a whole People or Nation, or the major part thereof, may have a Right to resist the Supreme Powers, and yet that I need not allow particular private Persons the fame Liberty ; and one great Reason is, because they cannot, and the other because they ought not to do it. The first you yourself do acknowledge, since you say, a fri~ patePerson, -when he makes such Res stance, deth it at his own peril, when he hath unly his awn single-self to opposeagainst his Prince. And that Jingle Persons don't use to resist, nor is there any great danger to the Publick if theydo. To which I sliall likewise acid a much better Reason, which I have also given you before, why private Subjects oughe not in a Civil State to made publick Disturbances, to avoid any Violence that may be done to their particular Persons or Estates, because every private Subject otght to prefer the Peace and Happiness of the Commonwealth, whereof he is a Member, before his own private Interest, which being a Dictate of •the Law ot Nar ture or Right of Reason, cannot extend to the whole Nation ot Civil Society? since it is as much against the Law of Nature, for that to be deitroyed, beggar'd and enslaved, as it is that God should ordain all Mankind to be so. And therefore our Saviour and St. Paul never intending to alter any of those great Laws of Nature, it cannot be believed that they would tye Mankind to such strict and severe Rules of Non-resistance and Subjection, as flioula expose them to Beggary, and Slavery, and Ruin, with all the Miseries of this Life: Nor do I find that either out Saviour or his Apostles have either promised eternal Life for such slavish Subjection, or threatned Damnation for such Resistance.

M. To answer what you have now said, I must in the first place trke notice, that tho' I grant St. Chrysoflome,for fear of making Tyrants and wick. Princes to be ordained by God, gives that Interpretation of the Word #6w/» which you have now done ; yet he owns the Doctrine of Non-resistance, bteaule the! Power is from God, as you may here fee in these Quotations out of him, which the learned Primate hath made use of in the second Part of his Treatise of the Power of the Prince, which you may, if you please, read with me, and compare the Greek in PastMi, the Margin: " For it is the pleasure of God, that the Magistrate, whom he hath '; "stamped with, his own Image, mould have also his own Power. And he that

"obeyeth not him, makes War, in a sort, with God who hath appointed these "things. Let us not therefore invert this Order, nor fight with God; demon"stfating by our Deeds that Saying of the Apostle, Whosoever rejtsteth thePower, "refisteth the Ordinance of God." So likewise in another Place, " If we reverence and scar those Magistrates that are elected by the King, altho' they be witued, "altho' they be Thieves, altho' they be Robbers, altho' they be unjust, or "whatever they be; not despising them for their Wickedness, but standing in "awe of them for the Dignity of them that did elect them; much more ought UU. p. m, £ we thus to do in the Case of God." But it is no matter in what sense this, or

any

any other Father takes these Words, so long as the Doctrine of Non-resistarice is secure.

But it seems very strange, that you cannot find that our Saviour and his Apostles have neither promised eternal Life for slavish Subjection, nor threatned' Damnation for Resistance for as sure as the Words are, that they thatresist stall receive to themselves Damnation, so sure it will likewise follow, that they that do the contrary, and are patiently subject, shall receive eternal Life. I beg your Pardon for this Interruption, therefore pray go on with the rest of your Reply: And let me fee how you can avoid Damnation, if the Words of the Apostle are true. 1

F. The Question is still the fame as it was before, notwithstanding what you have now said ; for it is not, whether some Resistance be not unlawful, but whether all Resistance whatsoever be that Resistance forbidden by the Apostle. And to let you see that you do not put such a strict Interpretation upon other places of Scripture, pray tell me the reason why, when our Saviour expresly commands us, 'Not to resist the Evil, (that is, the Evil Doer)but -whosoever stall smite thee on thy Mdu 5. g$r, right Cheek, turn to him the other also. And is any Man -willsue thee at the Law, and 4°> 4'> 42take "away thy Coat, let him have thy Cloak also. And whosoever stall compelthee to go a Mile, go with him twain. Give to him that asketh thee, and from him that would borrow of thee turnnot thou away. [Or yet those more severe Commands] of pulling out the Ver. 28. 29. right Eye, and cutting estthe right Hand, if they offend m; of making ourselves Eunuchs for the Kingdom of Heavens fake; and that he thatcan receive it, let him receive it; What is the reason, I say, why those places of Scripture, which taken literally, are as strict as this you now quote, That they that resist stall receive Damnation; yet that most of the Fathers, as well as the more modern Commentators, put a figurative, and not a literal Sense upon these Texts ? Pray tell me your reason why they do so. (

AL I think the reason is very plain, because to understand them in a literal Sense, were utterly unpracticable, and contradictory to the common Sense and No1 tions of Mankind, and those natural Dictates of Self-preservation, which St. Paul approves of, when he lays, No Man yet hated his own Flest; and it was altogether unsuitable to the Doctrine of Christ, which was intended for the perfection of humane Nature, that is, of Mea's Souls and natural Reason, and for'the Quiet and Happiness, not Hurt and Destruction of their Bodies.

F. I grant your Reasons are very good and self-evident; but pray tell me, is it not as much against the common Sense and Notions of Mankind, that God should give Civil Soveraigns an Arbitrary Irresistable Power to Murder, Destroy and Ruin their People, if they mould think fit so to do, or that Jesus Christ, who, you lay, came into the World for the perfection of our humane Nature, and not for the destruction of our Bodies, should give the Supreme Powers an Authority to do the fame things with Murderers and Thieves; and that it was unlawful for Men to defend themselves against their Violence, if they could. So that lean fee no reason why this Precept against Non-resistance may not be taken in a limited or rational Sense, as well as Swear not at all; which, tho as express as Words can make it, yet Commentators interpret it to extend no farther than against swearing in common Communication. So likewise this Precept, Children obey your Parents' in all things ; which without the reasonable Interpretation of all things lawful, would oblige Children to obey their Parents in whatsoever they commanded them, whether good or bad.

But to come to your Quotations out of St. Chryfostome, which you would oppose against mine; I think they will not serve so much to your purpose as you imagine. For I grant that the Supreme Magistrate derives his Power from God, but not a Power to murder and destroy ; so likewise he that obeyeth him not, wars in a fort with God;and that whosoever refisteth the Power, (that is, when it is executed according to God's Will) resisteth theOrdinance of God: And as for the last Quotation concerning the Reverence that is due to subordinate Magistrates elected by the the King, tho' they are Wicked, Thieves and Robbers, &c. and consequently, much more the King who sends them; this, tho5 the strongest place of the three, yet will not do the Business; for I believe you Cannot suppose that St. Chryfostome there means that subordinate Magistrates, sent by the King, were really Thieves and Robbers, and took away Men's Goods upon the common Road, but



{184}

only that by Bribery and Corruption in their Offices they did rob and peel the
People, as much as if they had really been so; which extending only to some few
Persons, was rather to be born with (as any intolerable Inconveniencies in Civil
Government are) than for the People to take Arms and resist them. But I think
the Cafe would have been much otherwise, had these subordinate Magistrates) by
vertue of the Emperor's Commission, made use of his Forces to murder and rob the
Subjects of those Provinces over which they were set ,• and that it would not have
been any Rebellion in the People, if they should have taken Arms and resisted them,
since the Emperors did not impower such Magistrates to murder or rob, hue to
protect his Subjects. . .

But to give you a Quotation out of St. Chrysoftome, in lieu of yours, I shall shew you his Comment upon these Words in his 23d Homily on the Romans, ? Let "every Soul be subject to the higher Powers, (that is, fays he) that Christ might "shew that he had not instituted his Laws so, that he would overturn all common. "Policy and Government, but that he might reform it to the better, and might "also teach us, that superfluous and unnecessary Wars were not to be undertaken, ■*« "because it was then a common Discourse traducing the Apostles as Seditious and

"and Innovators, and doing all things they could to overthrow the common Cdn-
"stitutions of their Country " and therefore he stops the Mouths of the Jews and
and Heathens with these Words. '• . - «»M

From whence we may infer, that St. Chrysoftome did not believe that Su Paul
wrote this only to give Tyrants a Power to do whatever they pleased againlLtheir
Subjects without any Resistance; nor yet that Subjects should begin unnuceslary
and unlawful Wars, by resisting them upon every flight Occasion: Nor doth this
Father here forbid Subjects to resist in cafes of the highest Tyranny or .Oppression
that could befall them; so that I take the true Sense of these places of Sc Peter
and St. Paul to be no more than this; " Let every Christian submit to the. Su-
"preme Powers, ;'. e. to the Emperor, and all other subordinate Magistrates sent
"and appointed by him. For all tiwi'x or Civil Authority is from God and
"Magistrates justly exercising this Power are from him; and in his stead, all Sa*
"preme Powers, under whatever different Names or Titles they be,'are by God's
"Providence appointed in the World, for its Order, Peace and the well Gover-
"ning of it. He therefore that resisteth such Supreme Powers, whoever he be,
"resisteth the Ordinance of God," that is, the means that God hath ordained
for the restraining the disorderly Lusts and Passions of Men. And they that will
not obey their Laws, as far as the Laws of God or Nature may permit, birtwill
resist, shall receive to themselves Damnation. And thus far even Tyrants and
Usurpers may be obeyed, tho' not as such, but as Dispensers of publick Justice,
and Executors of the Laws, and so are God's Ministers for Good; that is, for
the publick Peace and Safety. But neither the Apostle, nor St. Chrysoftome his
Commentator, any where fay, that either the Power, however exercised, or the
Persons that thus abuse it to the Destruction of Mankind, are likewise from
God.

M. But pray consider the Medium a little more closely, by which the Apostle
proves and enforces this Doctrine of Subjection or Non-resistance. For, fays he,
S. C. R. p. I'/iere is no Power but of God, the Powers that be are ordained of God. Whosoever therefore
. 1l6>ll7- rejifteth the Power, resisteth the Ordinance os God. The plain meaning of which is this,
That Soveraign Princes, whether good or bad, Tyrants or good Governors, be-
ing advanced to the Throne by God, are his Ministers and Vicegerents, invested
with his Authority and Power to govern ; and therefore when we resist our Prince,
we resist the Ordinance, Constitution and Appointment of God; and such Men
do not resist, rebel or fight against Man, but God ; as he who resisteth any sub-
ordinate Magistrate, resisteth his Prince, from whom they receive their Authori-
ty and Commission. And this is a very forcible Argument for Subjection to
Princes; for whatever our Prince be, it is certain that God hath an absolute and
uncontroulable Right over us, as being the true Lord and Governor of the World;
and it earthly Princes are placed in the Throne by him, who is at liberty to put
the Government cf the World into what Hands he pleases, who wifl dare to oppose
God ? or ask him, why hast thou done so ? Whoever hath any sense ofGod'sDominion
and Sovereignty, dares not rebel againstjiim, and he who believes that Princes are
made by God, will no more dare to rebel against his Prince, than against God
. . himself

himself; since (as I said before) evil Princes may be sent by God for a Punishment to a wicked People, as well as good ones for a Blessing to a pious Nation.

F. If you had pleased to have considered what I have already said, you might have spared this Objection; for it is no more than what hath been already answered ; for tho' I grant that Soveraign Princes are advanc'd to the Throne by God, and are by him invested with Power and Authority to govern; and that when we resist our Prince, we resist the Ordinance of God ,• yet I desire to be judged only by your own Words in this matter; the Prince receives from God Authority to govern; but is the murdering, ruining and enslaving the People, any part of Civil Government? And when we resist our Prince, we resist the Ordinance of God j but is the resisting of an implacable Tyrant, and an Enemy of Mankind, resisting the Ordinance of God, or fighting against him? And I desire you only to consider the force of your own Comparison ,• for (you fay) hi who resisteth any subordinate Magistrates, resists the Prince from whom they receive their Authority and Commission; yet it is only in such things, which the Prince hath given them Authority or a Commission to do: As for Example, a Bayliff may arrest me for Debt by vertue of the King's Writ; yet if he goeth about to rob or kill me, I may lawfully resist him; and if I kill him, it is no Murder. The fame may be said of all other subordinate Ministers, how great soever they are; there to carry on your Parallel, the same that subordinate Magistrates are in relation to Princes, the fame are Princes in respect os God: Therefore if theynevef received any Commission or Authority from God to destroy and enslave their People they so far cease to be the Powers ordained by God; and, sure, may then be resisted by their oppress'd People.

"As for the rest of your Speech, as far as Earthly Princes are plac'd in the Throne by God, and govern there like his Vicegerents, I own they are not to be opposed j but since you will have them to be submitted to, because they may be or* dained by God for a Punishment for a wicked People; I thank you for putting me in mind to answer what you have before said upon that Subject. I do not deny, but God may often, for the Punishment (as you fay) of a sinful Nation, give them a wicked or tyrannical Prince; and likewise that such a Prince, when thus imposed by God, is to be born without Resistance, as far as is possible, or may consist with their being a People, and with those Enjoyments of Lise, which are necessary to their being Subjects and Free-men, and not Slaves: And tho' I grant that God doth likewise sometimes punish a wicked Nation by appointing Conquerors, such as the King of Assyria, to carry them away Captive, and to reduce them to the lowest Condition of Poverty and Slavery, as in this Cafe of the Jews by the King of Babylon, who was then the Rod of God's Anger, and whom he raised up for the punishment of an Idolatrous and Hypocritical Nation. Yet when he doth so, excluding all farther Resistance in the People, it can only be known by divine Revelation, and cannot extend to all Conquerors whatever, whether by Right ot Wrong. And therefore, as God doth often in his Anger deliver the People up td the Power of some cruel Conqueror or Tyrant; so likewise will he, in hiV good Time, and upon their Repentance, deliver them from it again. Now this Deliverance must be perform'd either by Miracles or humane Means; but Miracles are ceased, and therefore since only humane Means remain, these must be either, Firsts By changing the Hearts of such tyrannical Princes into a better and more merciful Temper towards their Subjects, as Solomon fays,The Kings Heart is in the Hand fw* *u 14 of the Lord, as the Rivers of Water he turneth it -whithersoever he wiS.Or else Secondly, By taking away such a tyrannical Prince out of the World, and putting another in his stead, who may govern the People more mercifully, and who will not any more destroy or oppress them, as his Predecessors did. Or Thirdly, By stirring up some Neighbour Prince to revenge the Injuries and Oppressions done unto such a persecuted and almost ruined People ; and to restore them to the enjoyment of their former Liberties, Religion and Estates. Or Lastly, By stirring up the People themselves to rise and resist those Oppressions they lie under, by their own single Forces, or by imploring the Assistance of some powerful neighbouring Prince or State. Now I suppose you will not deny, but that the First and Second of these Means very rarely happen; and as for the Third, we seldom find that when a former Prince is taken out of the way, his Successor grows so sensible of

B b the

the Tyranny and Mis-government of his Predecessors, as to let go any of that Ar bitrary Power which he hath usurped, or to remit any of those intolerable Taxes and Oppressions which he hath laid upon them ,• but are commonly like Reholoam1 when they come to the Crown, so far from making their People's Yoke more easy, that they rather lay it more heavy upon their Necks; as we may fee in th^ Kingdom of France, in these three last Descents, wher^ every Prince hath been still more severe and tyrannical than his Predecessor for finding himself invested iij this absolute and despotick Power, without any unjust Act of his own, he will exercise it as he found it, and will think himself not at all obliged in Conscience to restore any of those Rights his Predecessors had formerly usurp'd upon the People; since we find, Princes seldom lose any thing they have once got: And this may continue to all Generations, for ought we k^ow, (which is much too long for a Punishment) unless some extraordinary Accident fell out, as we now see by the Example of the Greek Christians, who having lain divers Ages under the Mahometan Yoak, are now restored to the Liberty of their Religion, by the Arms of the GermanEmperor and Venetians; and are so far from being blamed for joining . themselves to their Deliverers, that they are rather commended by all Christen* dom for so doing. And I see no reason why good French-menx as well Protestants as others, may not as justly join themselves to the Prince of Orange, 05 ajiy other foreign Prince, who will be so generous as to undertake, their Deliverance from that cruel Yoak they lie under, and will restore; them -to *heir antient Libertties, and the Protestants to the free Exercise os their Religion: Nor can I see a#y reason why God should deliver a People into Servitude whether a tyrannic^ Prince hath sufficient Power to oppress them; and why God may not be as weU said to deliver them, as often as the People find fit means and opportunity so to set themselves free. For doth such a Tyrant derive his Authority from God to oppress only because lie hath Power? And may not the People likewise from the same Original, derive a Right to defend themselves against such an intolerable Oppression? Otherwise, God would chiefly regard and provide for this destructive tyrannical Power of Princes, as the chief end of all Civil Society, andjap^ke the Good and Happiness of the People a thing subordinate to that, or oatjbef only by the by, which is contrary to Reason. Tis true, the Prophet Amos faith, 'thatthere is no Evil in a City -which God hath mt sent: So likewise are all natural Evils, such as Famine, Pestilence, Inundations and Foreign Enemies; and yet have not the People in these Cases a Power to rid themselves of them, if they •flan, by all natural humane Means? and yet they may be likewise Punishments] jsent from God. And if they may resist and decline such common and natural Judgments, without staying for an express Revelation for that purpose; why may they not for the same Reason rid themselves of such a Judgment as intolerable Tyranny, when they are able, and have an Opportunity to do it ? since they proceed from the like common Dispensations of God's Providence. Or else we must believe that the Wickedness of one, or more Persons, for the Destruction of Civil Society, is more particularly derived from God, than the Power of the whole People for their own Preservation, and the common Good and Happiness of the Commonwealth: By which means Princes would have the fame Power and Right over their Subjects Bodies and Estates, as they have over those of their Beasts^ to sell, kill and devour them at their Pleasure.

M. Tho51 grant it may be lawful for People to remove natural Judgments by humane Means; yet doth it not follow, that they may therefore remove by Force, such Punishments as God pleases to lay upon them from the Abuse of Civil Authority by the Supreme Powers, since he hath particularly enjoined them to bear such Punishments patiently without any Resistance, because they are inflicted by those whom God hath ordained for our temporal Governors and Masters, and whose Violences and Oppressions, as long as they continue in their Sins, God hath very good reason to continue upon them; and is they repent, they may be assured that in his good time, he will either remove them, or turn them to the best; for all things (even Afflictions) work for the good ofthem that fear him. And God will not suffer those that trust in him to be afflitled beyond what they are able tobear: And if this Doctrine of yours might take place, both Servants and Children, in the State of Nature,-might, upon the like Pretence,both resist and turn their Father and Master out of Doors, because (forsooth) their Government was so severe and tyrannical, that it was not any longer to be endured by them; and tho' such severe Fathers or Masters may be ordained by God for the Punistjment of such wicked Children and Servants; yet that being no more than other natural Judgments, they may be without any Sin removed by Force or Resistance, whenever they thought themselves strong enough to do it : And if this Doctrine be wicked and absurd in private Families, then is it much more so in Kingdoms; for certainly there is a more perfect Subjection due to a Soveraign Prince, than to a Father or Master; for he is more eminently the Minister of God, and acts by a more sacred and inviolable Authority. And notwithstanding what you have said to the contrary, that the Precept given to Servants by St. Peter doth not concern Subjects, I think I can very well prove that it doth ; as appears from the Example of Christ, which the Apdstle there recommended to our imitation, who was the most innocent Person in the World, and yet suffered the most barbarous Usage, not from the Hands of a private Master, but of the Supreme Powers. And therefore, when he commands, in the fame Chapter, to submit to Governors, at to thosetxho are for the ftmijhment of evil Doers, and the praise of them that do -well; it is evident that he did not intend this as a Limitation of our Subjection, or as if we were not bound to be subject in other Cases, since in the very fame Chapter he requires SubjeBion not only to the good and gentle Masters, but also to ^hefroviard, in imitation of the Example of our Lord, who suffered patiently under unjust and tyrannical Powers. 1 observe therefore, that the Apostle doth not alledge this as the reason of our Subjection; but as a Motive or Argument to reconcile us to the Practice of it. The reason of our Submission to Princes is, that they are advanced by God, that they are his Ministers, that those who resist them resist the Ordinance of God; and. therefore we must submit for God's fake, out of reverence to his Authority. But it is only an encouragement to Subjection, to consider the great Advantages of Government, "That Rulers are not a 7error to good Works, but- to the evil. But tho' this Motive should fail in some Instances, yet whilst the reason of rhe Subjection lasts (and rhat can never fail while we own the Soveraign Authority of God) so long it is our Dury to be subject, whether our Prince do his Duty or not.

R. Altho* what you have now replied is no more, in effect, than a Repetition of what hath been laid before; yet I forgive it, since your Cause will not admit no other; nor can I see any reason why natural Judgments may be removed by Force or natural Means, but not Moral or Civil ones; unless you could also prove, that it is God's express Command, that we may remove the one, but not the other; nor have you proved it otherwise than by telling me, that Princes are God's Ordinance, and are endued with irresistible Power, all which hath been already considered, and I have already shewn you it is neither commanded by God, nor yet ordained by him for the common Good of Mankind. And tho' I own that Afflictions may sometimes serve for a Punishment of a sinful Nation; yet it is as likely that such a great and lasting Punishment, as a merciless Tyrant, may as well bring the People to Repentance, and when they are sufficiently amended, they may very well enjoy the Benefits of it; and they may as well expect that God will bless all lawful Means for that End, whereof I take Resistance or Self-defence to bo the Principal, since Miracles are ceased. And of this we have an Example in the second of Kings,chap. i8- For tho' Ahax., the Father of Hezœkiah, had submitted himself, and become Tributary to the King ofAssyria; yet when Hezekiah his Son turned to the Lord, it is said, that he was with him, and that he rebelled against the King of Assyria, and served him not; and yet he was then as much subject to him, as Jehoiachin orZedekiah were afterwards to Nebuchadnexjuir. So that all that is new, in this Answer of yours, is only the fatal Consequences that it would bring upon all Families in the State of Nature; for then (forsooth) Children and Servants might likewise pretend, that the Government of their Fathers and Masters were so insupportable, that it was no longer to be endured, and so might rebel against them and depose them, which doth by no means follow; for I have already proved at our first Conver/ation, that some fort of Resistance, for the preservation of Life and Limb, may be lawful against the Outrages or Violence of a Father or Master of a Family; yet do I by no means allow that they should resist them, for any other Correction or severe Usage which they shall inflict upon them; since Servants or Slaves, whilst they continue under their Masters Power, can have no Liberty or Property of their own to defend ; and a Son, whilst he

B b 2 remains

remains part of his Father's Family, I grant, differs not from a Servant ; so that all that ought to be done, either by Sons or Servants, in cafe the Government of their Father or Master grows so cruel and tyrannical as not to be endured, is to run away and leave the Family : And thus we read,, that Hagar, upon the severe Usage of Sarahher Mistress, fled from her, nor was blamed by the Angel for so doing.

Nor is what you have now said, to prove the Subjection of Servants and Slaves to be as absolute the one as the other,.at all convincing; for I have long since proved that a Family and a Kingdom are very different things; and that Oeconomical and Civil Power do not only differ in Spiece, but in Genere too. For tho' I grant, that Slavery might begin by Compact, as well as by War; yet Subjection 'to Civil Power could regularly commence by Compact only: And therefore since the natural State of Mankind is that of Freedom from Slavery, all Subjects are supposed to be in that State of Freedom, and to have a Right both to their Liberties and Properties; which, if the Supreme Powers go about forcibly to take away, they then cease to be so, since they take away the main end of their Institution, I mean, this of such a People, who are properly Subjects, and not Slaves: For of those who own themselves to be Slaves to their Prince, I told you already, I would not take upon me to meddle; since I doubt whether such an Empire can be called a Civil Government or not: So riiat for all that you have hitherto said, I mult still believe St. Peter did not direct this Precept to Subjects, but to Servants under the Yoke, that is, to Slaves, such as had no Property in any thing, nor Power over their own Persons, but might be sold and assign'd, with their Wives and Children, to whomsoever their Master pleased ; which tho'not of divine Institution, yet since it was so ordained by the Civil Laws of the Empire, neither Jesus Christ nor yet his Apostles would make any Alteration in it; nor hath he thought fit to do so in any of those things which we enjoy as our Civil or Natural Rights, by the Law of Nature, or the Municipial Laws of our Country; and therefore it is not true that there is as perfect a Subjection due to a Soveraign Prince as to a Master, unless the People of that Nation have made themselves absolute Slaves to him, instead of Subjects, which could never be but by their own Consent. It is true, a Prince is more eminently the Minister of God, and acts by a more sacred and inviolable Authority than a Master; yet doth it not therefore follow that he acts as God's Minister, or by his sacred or inviolable Authority, when he destroys or enslaves the Subjects : Nor can you fay that God hath given him any Authority so to do. And as for the Example of Christ's Suffering, which you urge as a Reason of our absolute Subjection to Princes, without any Resistance, I have answered that already, and therefore need say no more to it; but do own, that in that great Point of suffering for Religion, when we are lawfully called thereunto, we are to follow his Example;yet doth it not prove that we are to suffer in all other Cases whatsoever, concerning which he hath given us no express Precept or Command.

M. I have something more to say to you about this Matter of sufserin gfor Religion, but I shall defer it at present, and shall only now consider the evil Consequences of your Arguments for Resistance of the Supreme Powers in any

B. P. P. (• 8. Cafe whatsoever; the Sum of which, if I can well remember, is to this Effect: ShaU a Prince be free from all Correction till God Almighty is pleased to chastise him? Must I sit still, and suffer my Throat to be cut, my Estate ruined; and not dare in any Case to defend myself, till God is pleased to interpose; and that in an Age in which Miracles are ceased? God is for the most part pleased to respite the Punishment of Oppressors till the next World; and if I be ruined in this, what comfort is it to me or mine, that the Injury shall be punished,

Ibid {. 9. when I shall reap no advantage by it? Now suppose the Subjects of such a Prince should succeed in their Rebellion, and prevail against him, they must then submit to another Prince, of whom they have no more assurance they shall be better treated; and if they set up many, they are all Men, and subject to be corrupted by Power and Greatness; and in an'Anarchy every Man will become a Tyrant to his Neighbours. So that this Doctrine of curbing and resisting Princes, is calculated for the ruin of Mankjnd; and tends to no body's good but theirs, who design thereby to gain a Power of doing to others what they pretend to fear. And when all is done, the Punislimcnt of Princes, who abuse their



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Power, must be left to God Almighty, who only can and will punish his own Ministers.

Now suppose all this were just as it is stated, if the Injuries a Man suffer are insupportable, under any Government he may petition for relief, and in all probability find it; if not, he may fly into another Country for succour; if he cannot do that neither, he will scarce be able to resist: So that if it were never so justifiable, it could be of no use to any such miserable Man; for no Prince, though never so ill natured, will attempt any such thing against any such num* ber of Men, as are in a Capacity of revenging the Wrong done them when they will, only out of hopes they will not, because they ought not. Nor will the Histories of all Ages piit together afford one Instance of a Monarch, that ever injured any Man at this rate, whom he believed able (if willing) to revenge the Wrong, but that he took care as far as he could to prevent it; and either to take him out of the way, or to put him out of a possibility of a Retaliation. So that all such discontented fretful Rhetorick is of no use in any such Case.

But then, on: the contrary, if every Ambitious and Factious Man might be left at liberty to insinuate into the Rabble, and the great and little Vulgar, that Princes are to be punished when they do amiss; that they are bound to Act according to Laws, and to their Oaths; and if they do otherwise, are presently to be treated as Tyrants, and the common Enemies of Mankind; that it is lawful for a Man to defend himself against the Injustice and Oppression of his Prince, &c. This can only serve to fill the World with Rebellions, Wars and Confusions, in which more thousands of Men and Estates must of necessity be * ruined, and Wives ravished. and murdered, in the space of a few Days,' than can be destroyed by the worst Tyrant that ever trod upon the Earth, amongst his own Subjects, Jn the space of many Years, or of his whole Life.

F. I perceieve you think this place of Scripture will not carry you through; and therefore you would fain confute my Arguments by ridiculing them. But in answer to the Expedients you have now proposed, I think I may make this return. First, as for Petitioning when a Government grows insupportable; sup^ pose then, the Prince declares he will not be petitioned in this Matter; but as the French King lately did, when the Protestants would have petitioned him against the Violation of the Edict of Nants, will not hear or receive them; or suppose he lays any Man by the Heels, that shall offer never so humbly to petition him, either in his own, or the Peoples behalf, as King James lately served the Bishops; then this Expedient can signify nothing. As for the next, flying into another Country for Succour, that is a very sorry Comfort, that a Man must be forced to go and beg his Bread in a strange Land; and whatever this may be a Duty for private or single Persons, yet it cannot extend to a whole Nation; since if all the People should-go away, the Commonwealth or Civil Society would be dissolved; and farther perhaps, as now in France, and in all Tyrannical Governments, it is commonly practised, the Prince should forbid his Subjects to go out of his Kingdom upon Pain of Death, or being sent to the Gallies; then I think this Expedient would signify nothing neither; But now, if nothing else will do, you fay Resistance can be of no use for such miserable People, because a Prince will not dare to attempt any such thing against such a number of Men as are in a capacity of revenging the Wrongs done them, where they will only out of hopes, that they will not, because they ought not to do it. I grant indeed, that never any Tyrant, when he went about thus to oppress his People, designed they should be in a capacity to revenge the Wrong he did them when they would : And therefore such Tyrants take very great care by Guards and Standing Armies to prevent it. But yet I can shew you a Prince, who very lately received such Encouragement by the Writing and Preaching of our High Clergy, that he seem'd resolved to bring in Popery and Arbitrary Government upon us chiefly out of hopes that the People* would not,because (as he thought) they ought not to resist: And tho' I also grant, that fewMonarchs injure particular Men so much, but that, if they believe them able t8 revenge the Wrong, they will take care as far as they can to prevent it; yet this signifies nothing, if once a whole Nation comes to be oppress'd, and disgusted against the Government: For if such a Prince or Commonwealth have not the Assistance of some other Power, either his own Standing Army or his Neighbours, his Authority would soon be at an end. Thus we read of the Massacre and Expulsion of the French out of Sicily; it was done in the twinkling of an eye, and before those in Power had the least Suspicion of it. ^9b likewise in the late Revolt of the Portuguese from the King of Spain, his Government was at an end in little more than a Day's time; and that Nation will tell tell you, that they look upon the Benefit of being, governed by a Prince of their own, and enjoying their own Laws, as very well worth that Expence of Blood and Treasure they were at to obtain it. To conclude, I do not speak this to encourage the Rabble, or great and little Vulgar (as you call them) to take Arms, and punifli Princes when they do amiss: Nor have I at all asserted, that Princes may be punished by their Subjects, unless you can prove to me, that every one who resists the Violence of another is his Lord and Master. Neither do I maintain, that tho' Princes are bound to act according to Laws, and to their Oaths, yet if they do otherwise they are presently to be treated as Tyrants, and the comx mon Enemies of Mankind; or that it is lawful for every private Man to defend himself against the Injustice and Oppression of his Prince. I grant, such Doctrine would serve to fill the World with Rebellions, Wars, and Confusions, and may produce all those dreadful Consequences you have here set forth.

But on the other side, under such a Tyranny as where the whole People, or the major Part of them, shall happen to be assaulted, enflaved, and oppressed to that degree, that no Man can tell when he is safe; I say, in such cases a Tyrant may destroy more thousands of Men, ravisli more Women, and ruin more Families and Estates, than it is likely to be done by the highest Resistance the People can- make . against him: Since they are mad if ever they make this Resistance, unless they are also morally sure, either by their own Strength or the Assistance of their Neighbours, of succeeding in the Attempt. -I v..

Nor do the Consequences of such Resistance but rarely fall out ih the manner you suppose : For it seldom happens but that the new Prince, to whom the People submit themselves, will (being warned by the Example of his Predecessor) take, care to govern with greater Mercy and Moderation ; and it is much more unlikely, that if they chuse or set up many Representatives out of their own Body, that they will be presently corrupted by Power and Greatness thus.to oppress the People ; and lastly, it is much less probable, that the People can continue1 long in an Anarchy, without any Government at all. So that, to conclude, this Doctrine of resisting of Princes, or other Supreme Powers, in Cafes of extremity, is so far from tending to the Ruin of Mankind, that I cannot see how they can be safe without it: And tho' the Punishment of Princes, who abuse their Power, may be left to God Almighty, yet I am confident the resisting of those, who tho' they have the Power of the Sword in their hand, yet act as none of God's Ministers, is neither contrary to the Laws of God nor Nature.

As. I perceive you want Testimonies out of Scripture to justify your Doctrine of Resistance, and therefore you are, when pressed by these, forced to fly to your did Refuge of Self-defence by the Law of Nature, in which tho' I have been forced to follow you, and quit the Method I proposed to my self; yet I would have you to know, it is not for want of more Texts of Scripture, and therefore I must still farther inforce the true Sense of that Place of the first of St. Peter: Submit your Chap. 2. 13, selves to every Ordinance of Man for the Lord's fake, -whether itbe to the King as Supreme, or unto Governors, at to them that are sent by him, for the Punijhment of Evil-doers,and S. C. R. ch. for the praise of them that do vxH. "For this is the very fame Doctrine which So 5. p. 141. "paultaught the Romans, Let every Soul be subjeEl to the Higher Powers. For the Ibid. p. 142. n fame Word is used in the Original, \>iorayv{r& and uxoraatriebu; and therefore "to submit and to be subject is the fame thing, which, as St. Paul tells us, signi"fies Non-resifiance: Only as St. Paul speaks of not resisting the Higher Powers, "that is, Emperors and Sovereign Princes, he therein includes all those who act by "their Authority; and St. Peter, to prevent all Cavils and Exceptions, distinctly "mentions both, that we must submit to all Humane Power and Authority, not ** only to the King as Supreme, that is, in St. Paul's Phrase, to the Higher Pow"ers, to all Sovereign Princes, who are invested with the Supreme Authority, '* but also to those who are sent by him, who receive their Authority and Com"mission from the Sovereign Prince.

F You may spare your Pains for making so many Explanations on this Text * for I have already granted, that all due Submission is to be given, not only to the Supreme Powers, but also to all those who are put in Authority under him

them, them, and that not only for Wrath, but Conscience sake; yet is this place to be understood in the fame Sense as the former, that is, as far as they make use of this Power for the great Ends of Government, (viz..) the Good and Preservation of the People, and not for their Ruin and Destruction, by taking away their Lives, Liberties and Properties at their pleasure. So that this Precept is to be understood, according to the Reason which both St; Peterand St. Paul give for this Submission, because Rulers are not a Terror to good Works, but to the evil; and becausesuch Governors are for the punishment of Evil-doers, and for tlx praise of tlieht that do well: And even a Government, where a Heathen Prince hath such Supreme Power, may, and doth most commonly, in respect to most of its Subjects,' give more Countenance and Encouragement to good Works than bad ones; and therefore Obedience to such a sort of Governors is not only lawful, but a Duty j nay, though through Ignorance and Malice they might persecute the true&eligion. For I have already proved, that at the time of Writing of these Episiks there was no actual Persecution begun by the Roman Emperors against the Christians; and though they did afterwards persecute them, yet even such as did so, being commonly Men of good Morals, and having much of Good-ncsej Justice and Prudence in 'their Natures (such as was Trajan, and the two Attontmtt's), they would not.fail extremely to encourage the Practice of such, •and other Virtues :by their Examples, and by good Laws preserve their Subjects (torn the Mischiefs of Immorality, and keep them in Order, Peace and Sobriety. But is it so when-Tyrants-(be they Usurpers or not) not only govern contrary to, but also subvert all the Ends of Government? 'f

vjd. If tbis.be> the Sense you put upon this place, J think t shall easily shew you not only the Absurdity, but Pemicjoufcess of this Interpretation,1 which indeed doth undermine all that Obedience and Subjection1 that is due from Subjects to their Sovereigns, unless they rule well, that is, -according to their Humours ©r Fancies. Now, I pray, "consider whether these great Apostles intended **.eo oblige the Christians of that Age to yield Obedience to those Powers, <f which then governed the World. If they did "{aVl think no Man will be g, Q "ib hardy as to fay, that they did not) then it wilt be proper to inquire whe- i *' ther what they here affirm, and assign as the Reason ot their Subjection, That ** Enters are not a Terror to good Works, but to the evil, were true of'the thenRoman ,c Emperors and Governors, or not. If it Were true; then I believe, it will hold "true of all Kings in all Ages of the World; for ther* cannot well be greater "Tyrants than the Roman Emperors were at this Time: And ib this will prove "an eternal Reason why we should be subject to ^Princes, notwithstanding the "many Faults and Miscarriages of their'Government. And if it were not true, *' it is very strange, that two such great Apostles should use such an Argument "to perswade Christians to iubmit to the Powers as only proved the quite "contrary; that they ought not to be subject to the present Powers, because t( they were unjust and tyrannical; and which indeed, in Contradiction to the

* Original Design and Institution of Civil Power, Were a Terror to good Works, !* and not to the evil." ?

'The Christians were at this time actually persecuted by the Jews in Palestine, and if they were not then also persecuted i>y the Emperors, yet it was that which they might daily expect, considering the'ir.extraordinary Wickedness and Cruelty: And yet the Apostle exhorts them not to resist such Powers; because they were not, (that is, should not be) a Terror to good Works, but to the evil. * If by this "be only means that they stiould be subject to them, while they encouraged tbvL *' Virtue and virtuous Men, but might rebel against them when they did the "contrary; how could the Christians of those Days think themselves obliged f* by this to submit to the higher Powers? • "For this was not their Case, they suffered for Righteousness fake; the Suu preme Powers were a Terror to them, though they were innocent; though

* they could not charge them either with breaking the Laws of God or Men: .** And therefore, upon your Principles they were not bound to submit to them "whenever they could sind it safe to resist. So that either youput a false Com"ment, upon the Text, or while the Apostle undertakes to deter them from '* Resistance, he urges such an Argument as was proper only to persuade them V to rebel."' • - w ■■

F. Had

J. Had you been pleased to have minded more attentively what I said last, you would not have thus misrepresented my Sense : For I have already proved, that there was no Persecution in the Roman Empire against the Christians when those Epistles were written, nor for many Years after; And I have also granted, that if the Emperors had so persecuted them, they ought not to have resisted. And therefore, by good Works, and Evil-doers, &c. in both those Texts of St. Peter and St. Paul, is not be understood, only believing in Christ, or behaving themselves as became innocent Christians, but in general that at that time when the Apostles wrote these Epistles under Claudius, and the beginning of Nero, (and indeed through his whole Reign where he governed by his Deputies) the Supreme Power was then really a Terror to evil Works, that is, to all Offences against good Manners, and the publick Peace of the Commonwealth, and were also a Punishment for Evil-doers; that is, those that did transgress against the publick Laws ordained for the restraining Men from committing any sort of publick Wickedness or Immorality. So that I own that neither the Heathens, nor the Christians, had then any Reason to take Arms or relist the Supreme Power at this time.

But admit there had been at that time great Miscarriages and Abuses committed under their Government, and that good Men had been oftentimes punished, and evil ones rewarded, and the ends of Government to some degree perverted j especially at Rome, where the Emperors took a Liberty of doing many unjust and tyrannical Actions: Yet I have no where (that I know of) affirmed, that Princes ought to be relisted only for being evil, or wicked; or that all the evil Actions and Mis-government of Princes, or their subordinate Ministers, ought to be relisted, much less punisli'd, by the People: But I have all along S.CJt.p.1 j 3. asserted the contrary; for I own, "that no humane Government can be so exact "and perfect, but it may be guilty of Miscarriages." Good Men may-suffer, and bad Men may flourish under a virtuous Prince, much more under those that are themselves wicked and unjust. And then are many Degrees of evil Government and Tyranny, some of which may consist well enough with the common Safety of the People, which was the Condition of most of the Subjects of the Roman Empire under the Reigns of Claudius and Nero; fince they did then enjoy the Protection of the Commonwealth, and all the Civil Rights of Subjects- And therefore you very much mistake me in supposing that I maintain we are only bound to be subject to those Supreme Powers, who rule Well, or who punisli Wickedness, and reward Virtue; fince I grant this was scarce ever performed exactly, even under the most regular Governments: Yet there is a great deal of difference between bearing with the common Infirmities of all Governments, and such intolerable Violences that dissolve the.Government itself, as by making War upon the People, and invading their Civil Liberty and Property. As for Example : No Man doubts, but the King may pardon a Robber, or a Murderer; but if, instead of hanging, he should pardon all Thieves and Murderers that Hould rob or murder in a Year or two together, and should likewise list them in his Guards to kill and rob whom they pleased, provided he had a storeof the Booty; I would very fain know of you, or any other reasonable Man, whether the People were bound to bear it; and whether they might not resist them, though they had the Kings Commission for so doing?

To conclude: When the Apostle here fays, that Rulers are not a Terror to good Works, but to the evil j and thatthey are for the punishment of Evil-doers, and for the praise of them that do well; the Apostle only means in general, the great Advantages of Civil Governmenr for the Suppression of Wickedness, and Encouragement of Virtue, which is the true End, and the best Improvement of humane Power. But this also is in great measure obtain'd under evil, and (to some degree) tyrannical Princes; rand therefore this Argument for Subjection is good, even under a Tyrant. Publick Justice was administred under the Government of Nero, and good Men were then often rewarded, and bad Men punished. And though Justice be not so equally, and so universally administred under an evil Prince, as under a good one; or, though such a Tyrant may oppress many «f his Subjects, and be the occasion of divers Calamities, yet whilst the main Ends of Civil Government are maintained, it lays a sufficient Restraint upon the unruly Lusts and Passions of Men, and give? great Security to the Just and

Innocent. Innocent. And therefore, good Men are concerned to promote'the Peace and Security of Civil Government, though the Prince be in some degree a Tyrant; for there is more Security to be had under such a Tyrant, than in a Civil War, or Anarchy.

In ordinary Cases it is very possible for private good Men to live easily and tolerably under a very bad Prince ;and though it should be their Lot to suffer, yet since the Peace and Quiet of humane Societies is in itself so great a Blessing, and the publick Good may be better consulted by the Preservation of Government, than by Resistance; it becomes every good Man rather to suffer patiently under such a Tyrant, than to shake and unsettle Civil Government, and disturb the natural Course of Justice by Sedition and Tumults, for the private Interest of himself, or a few other Men. ,

Yet all this is to oe understood of such Degrees of Tyranny, or evil Government, as may consist with the main Ends of a Civil Society, or Commonwealth; and as far as the publick Good of the People may be better consulted and preserved by the Preservation, than Resistance of it. And as I grant it to be every Man's Duty patiently to suffer many Injuries and Abuses, rather than to make any publick Disturbance ,• so on the other side, when the main Ends of Civil Government, viz,, the common Preservation of the Peoples Liberties and Properties, are actually, or about to be destroyed, I think every honest Man, that his careful of his own, and his Posterity's well-being and Happiness, may, nay, ought (if no other Remedy can be had) to make Resistance, not for the Destruction, but Preservation of Civil Government, which I look upon as good as dissolved, before such Resistance can be lawful.

M. I must confess your Doctrine, as you have explained it, is not so bad as? I supposed at the first hearing; but if People may never resist 'till things come to such a State, as that, by a general Invasion of Mens Lives, Liberties and Properties, the Civil Government be in a manner destroyed (as you suppose), the People may stay long enough before eves they shall be in a Condition to make this Resistance. For in all the small Observations that I have made out History, I never could find the People generally reduced to so fad a Case as this you have put: Most of the Rebellions, and Alterations of Government that I have read of, having begun from a few tyrannical Actions committed upon the Persons or Estates of some great and powerful Men, who being beloved by the People, were able to stir them up to revenge their particular Injuries. Thus one single Act of Lust in the youngerTarquin s ravishing Lucretia, gave occasion to BrutHiy and her Husband Colatine, to take Arms against the King his Father, and by expelling him and his Family to set up a Commonwealth. And therefore, since this Case of such an extreme intolerable Tyranny, as you mention, can never, or at least very rarely happen, I think I may still maintain what I first affirmed, that it is much better to put this Mschief to the venture, and suffer all the Inconveniencies that may happen from it, than by allowing the People to be th«ir own Judges, when the Government proves insupportable, to give them a Right of judging and resisting whenever they shall pretend that it is so; which they may make use of not to secure their own Liberties and Estates, but to gratify their own Humours, or else the Ambition or Revenge of great and factious Men.

* So that unless there is some Power that is irresistable, from whence there lies S. c. R. p. '* no Appeal, it is impossible for any Goverment to subsist. And though it

"is not necessary that this Power sliould be always in the Hands of one Man, * tgtt ". yet if God hath placed it in the Hands of a Prince, there it must be irresist*' able-too, however he uses it. For if once it be made lawful to resist the Su-' "premc Power where ever it is placed, you dissolve humane Societies, or at least *' expose them to perpetual Disorders and Convulsions. Factious and ambi"-rious Men will still find Pretences to resist good Princes as well as bad, and no" Government can be any longer secure than whilst ill-designing Men want

• Power to resist.1

* Now then to pass a true Judgment on this whole Matter, we must not only ** consider what present Inconveniencies we may suffer from the irresistable Power "of the worst Tyrant, but also what an irreparable Mischief it is for ever to "unsettle the Foundations of Government. We must consider whether Civil "Government be the greater Blessing to Mankind, or a Tyrant the greater



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"Curse; whether it be more desireable to endure the Insolence and' Injustice of "the greatest Tyrant,, when the Power falls into such a Hand ; or for ever to be "deprived of the Security of Government, and the Blessings of Peace and Or"der. And therefore, there is great Reason why God should so severely for"bid the Resistance of all Princes, though the cruellest Tyrants you can ima"gine; and why we should quietly and contentedly submit to this Divine Ap"pointment, because the Resistance of the Supreme Powers ( were it once al"lowed by God) would weaken the Authority of all humane Governments, "and expose them to the Rage and Frenzy of ambitious and discontented "States Men, or wild Enthusiasts. And this, I think, is a sufficient Answer to "this Pretence, that the Apostle limits our Subjection to Princes to the regular "Exercise of their Authority.a

F. I see we are even come where we set out, to the Necessity of an irresistable Power, and the Mischief that must follow, if the People ever judge for themselves; which indeed is but the fame Argument in Politicks which the Church of Rome makes use of for the Necessity of an infallible Judge in Spirituals j because otherwise, if the People judge for themselves in Matters of Re^ ligion, there would nothing follow but Anarchy and Confusion in the Church; and that there would be as many Religions as there are Men. And so you likewise urge, that if the People may ever once come to judge when they are assaulted, enslaved or oppressed, and should have a Right of making Resistance, nothing but Anarchy and Confusion must follow in the Commonwealth. Andtruly I think the Argument is as good for the one as the other: And as I hope we may be always good Orthodox Christians without such an infallible Judge in matters of Fakh, so I think we may be loyal Subjects to our Prince without investing him with an irresistable Power of doing with us what ever he hathj a mind to.

But since you have only repeated what you have said at our last Meeting, when we first began to debate this Question, so I mist beg your pardon, if I refresh your Memory, and again repeat my Answers. In the first place, I deny that it must follow, that if once it be made lawful to resist the Supreme Power where ever placed, this must dissolve Civil Societies, or expose them to perpetual Disorder; because (forsooth)-.some factious and ambitious Men will find Pretences to resist good Princes as well as bad. For first I have all along supper' fed the Commonwealth Civil Society as good as ditfolved, before such Resistance; is lawful : And therefore, the Convulsions or Disorders of a Civil War can scarce be worse than such a State; and until die. People are under this Condition, I grant factious and ambitious Men may make Pretences to resist good Princes, as well as bad, and may find some Followers as wicked as themselves to take their part. Yet this Infection seldom or never seizeth upon a whole Nation, who hath always Power and Affection enough for the Supreme Powers to join with them to suppress such Rebels. I grant, we ought always to consider whether Civil Government be the greater Blessing to Mankind, or a Tyrant the greater Curse; and I do never suppose such Resistance to be lawful, but when the Power sells into such Hands, that tho' they may call themselves a Civil Government) yec the People are almost as totally deprived of all that Secutity, and those Blessings of Peace and Order, which they may justly expect from it, as if they were, in a State of War. And therefore, as you suppose that God Almighty forbid* the Resistance of the most cruel Tyrants, because this Resistance, were it once allowed, by giving the People a Power of judging, would weaken the Authority of humane Governments, and expose them to the Rage and Frenzy of ambitious and discontented States Men, or wild Enthusiasts : And this you think a sufficient Answer. . L -.: ■'

So on the other side ,• if this Resistance be in no case lawful, though in ne» ver so great Extremities, and that the People must not judge when they^are1 so cruelly used, as that it is no longer to be endured, not only the Persons of Princes must be sacred and irresistable, but also all those Instruments of Tyranny whom they may hire and employ to that purpose; by which means all Government whatsoever will not only be absolute, but arbitrary, and without any sufficient Obligations to either Mercy, Justice and die Common Good, than what the tyrannical Will or Humour of one or more Men shall please to allow. So

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that the Lives, Liberties and Estates of a free People or Nation shall be in as bad a Condition as if they were Slaves, if all means of defending themselves by their own Resistance, or joining with those that would assist them, be wholly denied them. And whether God can ever be the Author of such an Institution, I appeal to your own Reason to judge, when you are in a more sedate and equal Temper. , .

M- I fee 'tis in vain to argue this Matter any longer with you; and therefore I must tell you, that I cannot but look upon these Doctrines of Pajfive Obedience and Non~reJtflance, as true Christian Doctrines; since the ancient Fathers of the Church and Primitive Christians did always both believe,and practise them; and in Imitation of whom our own Church of England, (which, I think, of any in the World come nearest to the Primitive) doth likewise maintain it in her Thirty Nine Articles, Canons and Homilies -,. whereas you can shew me no express Text of Scripture, jior Testimonies of the Fathers, nor Examples of the Primitive Christians to justify this Resistance; which whenever you can do, I shall be of your Opinion: And if you doubt the Truth of what I fay, I have here by me the Lord Primate Ushers Book of the Power of the Prince, and Obedience of the Subject; which you may, if you please, take home with you, and consult at leisure; in which I doubt not but you will meet with full Satisfaction in this matter.

F. I have already proved at our last Meeting, that Resistance for Self-defence against those who have the Power of the Sword, is a Right of Nature conferred by God on all Mankind : And unless you can shew me an express place of Scripture, which takes it quite away, I think I may very well maintain, that it is still left entire to us, and is not abrogated by the Law of the Gospel; and that it was lawful before our Saviour's Coming into the World, I have proved by those defensive Arms made use of by David, and the Maccabees. And as for the Testimonies of the Fathers, and the Practice of the Primitive Christians, of which the Reverend Primate hath made so ample a Collection in that Treatise you now shew me; I thank you for your kind Offer of it, but I do not now need it: Fot since I began to consider this Controversy with yo.u, I have carefully read over that Treatise, and I cannot find that this vast Collection out of Prophane as well as Ecclesiastical Writers, will prove any more, than those Principles, which I own to be true, and yet will not impugne this I here defend.

In the first part of this Discourse it is proved by Scripture, as well as other Testimonies, that the Authority of all Sovereign Powers is from God, which I also allow; yet doth it not hinder but that the Consent and Submission of the People is a necessary Means or Condition of conveying this Authority, when God doth not please to make or nominate Kings himself, idly, That the Persons as well as Power of Sovereign, though wicked Princes, is also sacred and irresistable ; yet this is to be understood whilst they continue to act towards their whole People as the Ordinance of God, and by vertue of that Divine Commission which they have received from him.

In the second Part of this Discourse it is proved from Scripture, Testimonies of the Fathers and other Authors, that particular Subjects are bound to obey the Supreme Powers in all lawful and indifferent things, or else to submit and suffer the Punishment in case of their unlawful Laws or Commands. As also to bear with any Violence and Injury that may be offered to them, rather than to disturb the publick Peace and Civil Government of the Commonwealth, which I also allow.

idly. That in the Time of the Primitive Church, and before the Christian Religion was settled by Law, and become part of the Civil Constitution of whole Kingdoms and States, it was unlawful to resist the Supreme Powers in case of Persecution, though to Death it self, for the Testimony of Christian Religion; which I have also allowed through this, whole Conversation. Yet none of these Quotations, as I can fee, do reach the matter in Controversy between us, and assert it expresly to be absolutely unlawful for the whole People of any Kingdom or Nation to make use of defensive Arms, and resist the intolerable Violence and Tyranny of the Supreme Powers, if they shall happen to make War upon their People, and go about to take away and subvert the main Ends of all Government,viz.. the Preservation of Mens Lives, Liberties and


Civil Properties. Neither do they any where assert, that in limited or mixt Governments, such as most of those now in Europe, where the People, by the Fundamental Constitutions of the Government, or the after Concessions of Princes, restraining their own absolute Power, enjoy divers Privileges and Liberties, unknown to those who live under absolute Monarchies: That such a People may not, upon the manifest Invasion of such legal Right by force, resist and defend themselves and their just Rights, against the violent Invasion of the Prince.

M. I cannot deny but you have fairly enough represented the Chief Heads, or Principles, which the Reverend Primate undertakes to prove in this excellent Treatise: And I think you have yourself granted enough to confute all yon have already said. For in the first place, if it be unlawful for every particular private Subject to resist the Supreme Powers, it will likewise follow, that it will be also unlawful for a whole Nation : For a whole Nation is only a System or Collection of particular Persons, and Universals have no real Being in Nature; but only in our Ideas: So that if it be unlawful for every particular Person to resist and defend himself in case he is injur'd and oppress'd, it must be also unlawful for a whole People, which consists of Individuals, to make such Resistanceand it is a Rule in Logick, that nothing can be affirmed of Individuals, -which may not also be affirmed of the wholeSpecies.

So likewise if you grant, That the Primitive Christians ought not to have resisted the Supreme Powers in cafe of Persecution for Religion, I think it will likewise as well prove, that they ought not to resist upon any account -whatsoever, since certainly there cannot be greater Wrongs or Violences committed in the World by Supreme Powers, than to allow them an .Irresistable Power of putting those to Death that bear witness to the Truth of the Gospel, since a whole Nation may be as well thereby destroyed if they prove firm to the Christian Religion, and that the Prince continue obstinately cruel. And you might as well argue, that patient Suffering without Resistance ought not to be exercised in this cafe; because it is destructive to Mankind, and the Quiet of a Civil Society, as to argue from the fame Reason, that a whole Nation is not obliged to suffer without any Resistance; when their Lives, Liberties and Properties, are invaded by the Supreme Powers. So that if the Primitive Christians might not resist the Roman Emperors, when they made so great a part of the People, and were so vast a Multitude in theRoman Empire in the time of TertuUian, as that he tells the Emperor Severns, in his Apology for the Christians, to this effect; " That had they a mind to pro"sess open Hostility, and to practise secret Revenge, could they want Numbers "of Men, or Force of Arms? Are the Moors, the Marcomans, or the Parthians "themselves, or any one particular Nation whatsoever, more in number than • " they, who are spread over the whole World? They are indeed not of your "way, and yet they have silled all the Places you have; your Cities, Islands, "Castles, Towns, Assemblies; your very Tents, Tribes and Wards, yea the Pal'* lace, Senate, and Judgment-Seat.

Nor need I to mention at large the famous Story of the Thebaan Legion, who all of them suffer'd Death rather than they would either Sacrifice to Idols, or resist the Emperor's Forces, tho* they were between Six or seven thousand Men, and might have sold their Lives dear enough : And if an Emperor may murder so many thoufends without any Resistance, I fee no reason why he may not put a whole Nation of Christians to Death by the fame reason.

Nor will one of your Reasons which you bring for it, signify any thing, that the Christians were to suffer without Resistance, because Paganism was then the Religion establifli'd by the Law of the Empire; for if a MunicipalLaw, as this was, ought to be over-ruled by the Natural Law of Self-defence, when they happen to clash, then the Christians who lived under the Heathen Emperors, might lawfully have taken up Arms against the Government, because they were deprived of their Lives and Fortunes against all Equity and Humanity: For to persecute Men so remarkably regular and peaceable, both in their Principles and Practices, is as manifest a Violation of the Law of Nature, as is possible. And if it was lawful for them to resist, then they seem bound in Conscience to do it whenever they had a Probability of prevailing: For without doubt it's a great Fault for a Man to throw away hisLife, impoverish his Family, and encourage Tyranny, when he hath a fair remedy at hand.' v

F. If you had a little better remembred what I have already said on this Subject, you might haue spared these Objections; for as to the first of them, it is rather a Logical Fallacy, than a true Answer: For in the first place, I have all along asserted, that no Man ought to give up his Right of Self-defence, but in order to a greater Good,(viz,, the Publick Peace, and Preservation of the Commonwealth.) And therefore Dr. Fern, and others of your Opinion, do acknowledge, that David might have made use of defensive Arms to defend himself against those Cut-throats that Saul sent to take away his Life, though he might not have resisted Saul's own Person ,• and you yourself have already granted, that no Man can want' Authority to defend his Life against him that hath noAuthority to take it away. So that if this Law of Self-defence is sometimes suspended, it is only in Submission to a higher Law of preserving the publick Peace os the Commonwealth, or Civil Society, which being once broken and gone by a general Violence upon all Mens Lives, Liberties and Properties of that Nation or Kingdom, that Obligation of maintaining the publick Peace being taken away, every Man's Natural Right of not only defending himself, but his innocent Neighbour, again takes place. And therefore your Logical Maxim, that nothing can be affirmed of Individuals, which may not be affirmed of the whole Species, signifieth nothing in this matter; for every Individual had before potentially a Right of Self-defence, tho' they were under an Obligation not to reduce it into Act, till the Bonds of that Civil Society were dissolved; and then it is true, they do not then resist to maintain that Civil Government which is already gone, but to get out of a State of Nature, and set up a new one as soon as they can.

But as to your second Objection, whioh I confess hath more weight in it than the former,. I shall make this Answer; That you yourself have given a sufficient Reason why a whole Nation, or Church, that professes the Christian Religion, cannot- be destroyed by all the Malice and Persecution that can fall upon it by persecuting Monarchs; for you tell us, that it is the special Privilege of the Christian Church, above the rest of Mankind, that they are God's peculiar Care and Charge; and that he doth not permit any Suffering, or Persecutions, to befal them, but what he himself orders and appoints: And that it is a great Happiness to have our Condition immediately allotted by God. So that it seems it cannot be in the Power of the cruellest Tyrant utterly to destroy Christianity, in any Country where it is truly taught, by all the Persecution that he can use. This was the State ofChristian Religion whilst it was in its Infancy ,• and in which we may observe more particular Declarations , of God's Providence by Miracles, and the Divine Inspirations of his Holy Spirit, than after it was grown up, and that all the World became Christians. In its Infancy, *tis plain that Princes could could not destroy it, because it was supported by Miracles, and supernatural Means; but in the other State, when Christianity was once grown up, settled and able to shift for itself, by being made the Religion of the Empire, and the greatest part of Mankind embracing it in those and other Countries, Princes then could not destroy it if they would, because their Subjects had then a Right to it, and a Property in it, as much as they had to any thing else they enjoy'd, and consequently might be preserved by the same Humane Means. Thus during the State of the Jewish Church in the Wilderness, and for some time in the Land of Canaan, we find the Children of Israel fed, and deliver'd from their Enemies, by Miracles- But after they had been long settled in it, and had renounced the immediate Government of God, they were then left to preserve themselves by the fame natural Means with other Nations.

And though I grant that such Persecutions, whenever they fall out, are very prejudicial to the Peace and Happiness of those Nations that labour under them; yet this is no sufficient Reason against Patient-suffering for Religion without Resistance: For since our Saviour is the Author of our Salvation, and hath ordained that it sliall be propagated not by Force or Resistance, but by Sufferings; and that he hath promised us an eternal Weight ofGlory for our submitting our Wills and Natural Affections to his Divine Commands; it is not for us to dispute the Reason of it, since that he who pleased to bestow upon us so great a Benefit without our Desert, might propose it to us upon what Conditions he pleas'd, though never so hard to be performed. Yet is this to be so understand, as that this Suffering for the Testimony of Christ, may serve for that great End for which he ordained dained it,(viz..) the Propagation of his own true Religion, by our bearing Testimony to it, in our couragious and patient Suffering, which in a Kingdom or Nation where Christianity, or any true Profession of it, is become the general and National Religion, cannot now be supposed to be necessary- And this may serve also for an Answer to your last Reply: For though I own, that the Municipal Laws of Commonwealths cannot abrogate any of our Natural Rights, but only in order to some greater Good or Benefit tending thereunto; yet certainly the Reveal'd Law of God may, and doth in some cafe abridge us of divers of those Rights, which Men by the Law of Nature might have made use os

But as for your Quotation out of TertuSian, tho' I have good reason to question the very Matter of Fact, since I can hardly believe, that how numerous soever the Christians might be, or whatever Mischief they might have done privately by setting the City on fire in the Night-time, which he also mentions a little before, as one of the Ways by which they might have revenged themselves: Yet do I not think, that they were then either for Strength or Number sufficient to have made any considerable Resistance, if they would, against the Prætorian Bands, and other standing Legions, which were then, if not all, yet for the greatest part Heathens: The most part of the Christians of those Times consisting chiefly of the meaner and mechanical Sort of People, altogether undifciplin'd and unarm'd; and so perhaps these Christians were under no other Obligations to Non-resistance, than what the particular Providence of God had brought them to, as these French Protestants, who remain still in France, are now under, that is, Obligations of Fear, and not of meer Conscience.

And as for your Example of the T"hebxan Legion, though it is true they might have sold their Lives dear before they had been killed; yet would this Resistance have ferv'd them to little purpose against the rest of the Army, which might consist of 30 or 40000 Men, all Heathen, and headed by the Emperor himself. But what if after all this stir about this Story, it should not be true f for Eusebini and Socrates, who lived nearer the time in which this Action is supposed to be done, make no mention at all of it, though they had very good occasion to do it. The first Writer that ever made any mention of this Story, was Eucberim Archbishop of Lyons, who did not write this Act of the Martyrs 'till above 150 Years after the thing was done; and he is also followed by one Ado in hisMartyrohgy, who lived likewise some time aster him, when writing of Legends began to grow in fashion. But granting all the Matter of Fact to be as you relate it, it proves no more than what I have already granted, that the Christians were at that time obliged to lay down their Lives for the Testimony of Christ, rather than to make any Resistance; but that this Precept is of a constant and eternal Obligation, when the Ends for which it was ordained, are no longer of any use, and when our Religion is establish'd by such Laws as the King himself cannot abrogate or dispense with, I utterly deny: And certainly, if you were not very much blinded with the Prejudice of these Notions of Pajsive Obedience and Non-refisiance, you would not leave all the People of England at the Mercy of a Popish King, to be dragooned out of their Lives, Liberties and Estates, as the Protestants have been in Franceand Savoy, whenever the King shall please to put them to that severe Trial.

M. You have given me a very long, and I wish I could say a satisfactory Answer; and I see, provided it would serve your turn, you do not value how much you villisy the-Sufferings of the Primitive Christians, by making them not of Ability to make any considerable Resistance, if they would. Though TertuSian exprefly affirms the contrary; and so you likewise take upon you to follow the Example of a late Doctor, and to question the Truth of the Story of the "thebaan Legion; which though it might not be committed to writing before Eucberim publish'd it, yet might he very well have received a faithful Account of this matter either by Tradition, or by some private Memorials that might be kept of it in that Church; since they suffered this Martyrdom not far from OElodurum, a Place now call'd Martinach in Vallais, a part of Switzerland, and not far from Lyons; so that he might very well have a sufficient Information of such a remarkable Action as this was.



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Nor doth what you say savour less of a Latitudinavian Principle, whilst you maintain, that a patient Submiffion to the Supreme Powers is not of constant and eternal Obligation in all Circumstances, which is contrary to the Opinion of the Primitive Fathers, and also of the Church of England. But if St. Paul's Doctrine be true, that we are mt to do the least Evil that Good may come; and if our Saviour hath enjoined us, not to resist the Supreme Powers upon any account whatsoever, and also to lay down our Lives for the Testimony of the Truth, we ought certainly to observe his Commands, let the Consequence be what it will, though it were to the total Destruction of a whole Church, or Nation; Since God, if he pleases, may "by the just Course of his Providence lay such severe Judgments upon us; whc^ean also infinitely reward us for our patient Suffering of them in the Life to eome.

R I think I may, without any Crime, question the Truth of TermBiatts Account of the Power the Christians had to make any considerable Resistance in his time ,• for sure he may be out in such a nice Matter of Fact, since he could be guilty of such gross Errors in point of Doctrine: For before he turned Montanifi, he was like ourQuakers, and thought all Resistance, of what kind soever, unlawful; and therefore he tells us, in his Apologetick,Idem summ Impevatoribm, qui & vkinu nostris; and a little after, Quodcunque enim non licet in Imperatorem, idnec in quenquam; and he likewise condemned all Flight in time of Persecution, as you may fee in the Treatise he writ upon that Subject.

And as for the bare Practice of Primitive Christians, they are not of any general binding Example to us, unless the Principle they go upon be true; since \ doubt not but many of them suffered Death out of a pure Desire of Martyrdom, of which Sulpitim Severm tells us, they were more covetous, than Men were in his time of Bifhopricks; insomuch that it was a common thing even for Women and Boys to offer themselves to voluntary Martyrdom, that the Council of - ■ wa» forced to make a Decree on purpose to forbid it.

And as for the Truth of the Story of the ThefoanLegion, it not being recorded by any Writer of the Age-in which it is said to have been done, I think a Man may very well question its Reality without any Suspicion of Heresy: And when I can see those Arguments answered by you, or any Body else, which the learned Doctor you mention hath brought against it, I will give more Credit to it than new I do. But you may call me a Person ofLatitudinarian Principles as much as you please in this matter; until you are able to prove to me by better Arguments than you have done hitherto, that the Doctrine of Non-resistance in case of Persecution for Religion, is of constant and eternal Obligation, unless it be in the fame Case in which the Primitive Christians were obliged to suffer, rather than resist i and till this be done, I fear not falling under St. Paul's Censure of doing Evil that Goodmay come of it .• And unless God had in downright Terms commanded it, I will never believe but that I may have a very good Right, in such a Government; as ours, to defend my Life against any one that would take it away upon the bare {core of Religion; nor can I think it a Doctrine suitable to the Justice and Goodness of God, to ordain a whole Nation to fall as a Sacrifice to the Cruelty or Superstition of any one, or more Men.

But since you are pleased to urge me with Examples of Primitive Christians, who,chose to die rather than resist or rebel against their Prince, pray give me leave likewise to tell you a few Stories, wherein these Primitive Christians have not fhew'd themselves so stanch in this matter as you would make them.

opposition therefore to your 'Thebaan Legion, I may set those Legions that composed the Army in Gaul, and which saluted Julian (afterwards the Apostate) Emperor, contrary to their Oaths of Allegiance to the EmperorConstantim; renouncing which, they took an Oath to the former, whilst the latter was yet alive; and had certainly fought against him, and resisted him with a witness, had he not chanced to have died by the way, before they could meet to decide the Quarrel.

As. Pray give me leave, Sir, to interruptyou a little, though I cannot deny the' Matter of Fact to be as you fay, and likewise that this Army was for the most part Christian; yet they were, I suppose, drawn in partly out of Hatred to Constatnim, because he was an Arian, and partly out of Compassion to Julian, who was at that time upon very ill Terms with Constantim his Kinsman, the whole y,. Ammiin.

Army Mrctllin-Ut, Army suffering many Hardships for his fake, for whom they had a great Love and Esteem. But certainly their Loyalty to Julian is very commendable; for though immediately after the Death of Constantim,he openly declared himself to be a Heathen; yet notwithstanding that, and his Persecution of the Christians during his whole Reign, we cannot find that either the Soldiers, or any other Christian, ever resisted or rebelled against him; but that they look'd upon it as unlawful to resist him, may appear by several Authorities out of the Fathers of that time.

F. Since you cannot deny the Matter of Fact, you strive to extenuate it by their Hatred to Constantim for his Apostacy from the Catholick Faith; an<i the severe and rigid Treatment of Constantim: But if their Hatred to him, because he was an Arian, could make them join with Julian to rebel against him, pray tell me why they might not have rebelled also against Julian, after he had declared himself an Apostate from the Christian Faith? Could they have had such another Leader as Julian himself? But he reigned too small a time, and was too constantly at the head of his Army, to give them any opportunity to serve him as he had served his Predecessor.

And indeed this Army of Julians was but too obedient to him, since we find that though they had been Christians before, yet at the time of Julian's Death they were then in Profession Heathens; for you will find in all the Ecclesiastical Historians, that when after the Death of Julian, they chose Jovian Emperor, he at first refused it, saying, that he being a Christian, would not command Heathens; whereupon they contested themselves to be all Christians; but certainly this had been a very impertinent Objection, had they been publickly known so at that time.

And though I grant, Julian countenanced the doing of a great many violent things towards the Christians; yet it is certain that he never made any Sanguinary Laws against them, but rather forbid them to be put to Death, or to suffer any Hardship on the account of their Religion; though I confess the Heathens, because they thought it would be acceptable to him, put many Christians to Death by Force and Violence: So that however he might be pleased with it, and connive at it, yet did he never enact it by any publick Law, or Edict; or if he had, do I allow the Christians a Liberty to have taken Arms, and resisted him upon the account of Religion? For though I own, the Christian Religion had been establish'd by Law by Constantim the Great, yet was it not so throughly settled as to forbid the free and open Profession of the Pagan Superstition; the Heathens being admitted to all Offices and Commands, as well as the Christians, and might freely perform all the Rites of their Superstition, publick Sacrifices to their false Gods only excepted: So that if Conflantine by his Edict could without any Rebellion, shut up the Heathen Temples, and give the Christians the publick Liberty of professing their Religion, why should notJulian have the like Prerogative, since his Power was alike supreme and absolute, to recall those Edicts, and to make quite contrary ones, if he had so pleas'd?

And though I also own, that the Christians did not actually rife in Arms against Julian; yet that there were many of them would have done so, is very likely, since they openly pray'd for his Destruction, and gave him very undutiful, fawey, nay reproachful Language, upon the account of his Apostacy, whenever he came in their way. And thus some of those who are called Fathers, were of an Opinion, that an Apostate, though an Emperor, might be put to Death. Pray read, what I have lately transcribed out of the Writings of Lucifer Calaritanus, (whom SeeBihlkth. St. Jerom calls a Man of a -wonderful Constancy, and of a Mind prepared for MartyrVet. Patr. dom)who writing to the Emperor Constantim, fays thus to him: "Pray shew "Tom. IV. Co- « kut one 0£ the Worshippers of God, that ever spared the Adversaries of his ''''''' w Religion: And then he reads him his own Doom out ofDeut. 13. 1. If there

te rife among you a Prophet, or a Dreamer of Dreams, faying, let us go after other Gods tc ( for the Orthodox always charged the Arians with Idolatry ) that Prophet, or "Dreamer of Dreams, Jhall be put to Death. You see what you are commanded *c to suffer-" [And again,] "Hear what God hath ordained by Moses, is to be done "with you, for perswading me to revolt from God, Deut. 13. 6. If thy Brother, u the Son of thy Mother, or thySon, &c. intice thee secretly, saying, Let us go, and serve "other Gods, thou shalt surely kill him. &c Here it is commanded, that my Brother

"shall <c shall be put to Death for inviting me to forsake God." [And in pursuaJiee os' this Doctrine, he tells him a little further to this purpose ; J " That if he had "..been in the hands of Mattathias or Phineas, and should have gone to live after "the manner of the Heathens, without doubt they would have kill'd him with the "Sword, which he repeats twice for fear lie should forget it. /?And this Treatise being sent for by the Great Athanasius, and being by him perused, he was so far from condemning any thing in it, that, as you may see in his Letter to this Lucifer,(which is in the fame Volume from whence I transcribed this) he highly praiscth him for writing it, and calls his Book, the DoElrine of the true Faith, besides many other Commendations, too long here to be repeated. And as for Julian himself, Soz,omen the Ecclesiastical Historian, writing of the manner of . his Death, fays, that it was believed by many that he was killed by some Christian




Soldier of his Army, whom he applauds for so doing.

,' M. I cannot deny but the. Carriage of some Christians of those Times, even of
those who are called antient Writers or Fathers, might be too undutiful, and may
be attributed to the morose, monastick Temper of the Father you have quoted,
though a great deal of this sort of Carriage may be attributed to that Christian
Zeal which the Jews called the Spirits of Fortitude, and the Greeks call tafrfacix, which
we render Boldness or Confidence, and which did often transport them to say those
indecent things to persecuting Kings, or theirGovernors, which had been insuperable
in any Man else on another occasion ,• a»d this was not only in Words, but Actions
too. Thus when the Emperorsbfumerianus, or Decius, (for my Author doth not know i
which it was) would have entred into the Cathedral Church of Antioch in time of \
Divine Service, Babylcu the Bishop, standing in the Church-porch, shut the Door
against him, telling him, that he would not suffer him, who was a Wolf, to enter
into the Sheepfold of Christ. And we also read, that Valentinian (who was after-
wards Emperor) being then an Officer under Julian, and waiting upon him to the
Door of a Heathen Temple, gave the Priest a Box on the Ear, because he offcr'd to
sprinkle him, being a Christian, with his prophane Holy Water: Yet I confess, Theo-
dora commends the Action; and says^ they after chose that Valentinian Emperor, him
■who had before struck the Priest: And therefore, I wonder to what purpose you quote
such Passages out of antient Writers, and the Actions of Primitive Christians, which,
if you are a Man of that Loyalty or good Breeding, as I hope you are, you will not
yourself approve of.

.ijr. I do not tell you I quote them for our Imitation; but only to let you see, I
that the Actions of those you call Primitive Christians and Fathers, are not by
your own Confession to be the only Pattern for us to follow; so that indeed their
Practices can signify nothing to us, unless the Principles they acted by were suita-
ble to the Laws of God and right Reason; unless you will have no Precedents
to be good, but what shall suit with your Humour, and those Principles you have
already imbibed: And if Babylcu the Martyr might; without any Sin, shut the
Emperor out of the Church by force, and that Valentinian was commended for
striking the Emperor's Priest on the Face, I think here are by your own Confes-
sion two sufficient Primitive Examples of Resistance, both of the Emperor's Per-
son,, as also of those commisfion'd by him, as certainly this Priest was, or else he
could have had no Right to Jiaye exercised his Idolatrous Worship, after the Tem-
ples had been shut up under •Conflaiftine and Constantim.' ■: ^-

But I now desire your Patience tp let you see, that not long aster these Times,
the Christians, as well Soldiers as others, were not so through paced in these
Doctrines of Passive Obedience and Non-resistance, as you would make them;
for it was by the Power of the. Christian Legions in Britain, that Maxhnm took
the Boldness to rebel against the Emperor Gratian, and making himself Emperor,
marched into.Gap), against him; where the poor Prince being also deserted by his
Christian Army, and forced to flyaway with a few Followers, was not long after
murder'd by Andragatkius; after which, this.Maximus had so good Success, that he
posscse'd himself not only of Britain, but Spain, Gaul, and part of Germany; and
was also acknowledged for Emperor by all the Subjects in those Provinces, as well
Clergy as Laity, though the Emperor Valentinian, the Son of Gratian, was then
alive. And all the Bishops making their Applications to him, defir'd him to
call a Council in Gaul, to suppress the Heresy of Prifcillian, which he did in com-
pliance with their Requests; wherein they condemn'd that Heretick, and his Fol-

D d lowers,

I

I

lowers, of Heresy; who afterwards (at the instance of Ithacius, and some other , 'Bishops) were by this usurping Emperor condemn'd, with divers others, to suffer Death; being the first that ever sufser'd that Punishment for Heresy. This Maximus, after five Years Reign, was overcome, and khTd in Battel by the Emperor T'heodofius,who restored that part of the Empire to Valentinian II. ']'

And farther, to let you fee that the common People of these Primitive Times, though they were not able to make Emperors so well as the Army, yet they were not so strait-lac'd as not to resist the Emperor's Orders, whenever they thought they entrenched upon their Religion, or that they went about to persecute them for it: I can give you a great many Examples out of Ecclesiastical History, of which

lib. i. ch. 30.1 will only here set down some few: The first is out of Socrates, Eccl. Hist, when the EmperorConfiantius, at the Instigation of Macedonius the Arian Bishop, 1 had perswaded him to send some Bands or Soldiers into Paphlagonia, to terrify the People, and make them turn Asians. The Inhabitants of Maminium,enflamed with a Zeal for the Orthodox Religion, marched against the Soldiers, with a good Courage; and ha\'ing provided themselves with the best Arms they could, they gave them Battel; in which sew or none of the Emperor's Soldiers escaped. And though I confess, (the Historians fay) these People were most of themNovations; yet this Action ought not to be condemned only for that Cause, since they were rather look'd upon as Schisinaticks than Hereticks, and were in all things else, except that one point, about reconciling the lapsed, very Orthodox; but in all other things were more strict and scrupulous, than the Catholicks themselves. / So likewise, when the Orthodox at Constantinople had chosen Paul for their

Hid. cap. 10. Bifliop, but the Emperor resolving to make Macedonius Bishop in spite of their teeth, and had sentPhilip, the President, to fix Macedonius in that See; as he was about to give him Possession of the Church, though they were guarded all along with Soldiers, yet when they came near the Door,the People made that Resistance, that they could not get in till several thousands of them were kill'd. ✓ 10*/' I

And some Years after, when the Emperor 'Theodofius II. had banifli'd St. Qhrjifif fiom, A. D. 404. the People flock'd together about the Palace, so that the Emperor, to pacify them, was forced to recall him from his Banishment. ■ \ <. Vr

Hijf. Iris ar- And when St. Ambrose was banilh'd byValentinian, at the Instigation of his Mo*

tit. L. 10. thzxjustina, the People did resist all such as came to carry him away: And such lRufini was tJieir ^ea* ^or 1Truth, and Love to their injur'd Bishop., that they chofe

lfiuc.it, rather to lose their Lives, than suffer their Pastor to be taken away by the Soldiers, that were sent to drag him out of the Church. I could give you more In.* stances of this kind, from these Primitive Times; but these may be sufficient vo shew you, of how little account the Doctrine of Non-resistance was in those Times, after Christianity was once settled, and that the People supposed they had the Law on their side. Neither do I produce them as fit to be imitatwl in all like Cases, but only to let you see, that the Example of those Times you call Primitive, are no sufficient Argument of what was lawful, or unlawful to be done. i; .

M. Since you yourself do allow all, or however, most of these Actions, to be unlawful, I think you might very well have spared the mentioning os them;. since I grant, that about the end of the 4th Century, when these things happen'd, not only the common People, but also the Clergy began to grow very corrupt in their Manners: And therefore, I cannot much value any Precedents that you can bring in that time, to justify Resistance in Christians, unless you could have shewn me any before the time of Constantine, which I am sure you are not able to do, roach less any Authority from any of the Primitive Fathers, which justifieth Resistance of the Supreme Powers upon any account whatsoever.

'F. 'Tis a very hard matter to satisfy you by Quotations; for before the time of Constantine, it is evident the Christians were not only weak, dispersed and disarmed, but had also the Laws of the Empire against them. And I have already granted, That Self-defence against Persecution upon account of Religion, was unlawful; but when, in the time of Constantine's Son and Successor, the Peopse having the Law on their side, stood upon their defence against those that would have taken away their Lives, as in the Examples I have brought of the Inhabitants ofPaphlagonia, then the Instances come too late; and the Age is grown so corrupt, that they are no longer Primitive Christians, than they observe your

Doctrines. Doctrines. But as for express Precepts, or Testimonies out of the Scripture's and Fathers, to justify Resistance, I think it is very needless to bring any ,• for the great Mr. Hooker shews us very well, that it is the Intent of the Scripture to deliver us all the Credenda and Agenda, necessary to Salvation; but in other Matters; within the Compass of our Reason, it is enough if we have evident Reason for them, Scripture non contradiceme;and if the Scripture doth not forbid such Resistance for Self-defence, ( as I hope I have now proved to be lawful) I do not value whether there be any express Authority to be quoted out of the Fathers for it or not: For whatever the Scripture leaves free, I think the Fathers have no power to forbid.

M. I fee it is to no purpose to argue longer with you from Primitive Examples or Testimonies: And therefore I come now to the last thing I proposed ; H.P.O. r. 2. which is to shew you, that the Doctrine of our Church ofEngland, as it is conw tain'dtin the ^Articles, Canons, and Book of Homilies, is as expresly for Passive Obedience, and against all Resistance of the Supreme Powers, as the Primitive Church itself: And therefore I mail begin with the Infancy of the Reformation,under Henry VIIL for there I begin the Reformation of. Religion in this Kingdom.

F. I pray, Sir, give me leave to interrupt you ,• for I must tell you, I will not be concluded by any thing that the King or Church, in those Times did publish concerning Matters of Faith or Practice; since, unless it were in that one Political, rather than Religious Article, concerning the Pope's Supremacy, the Church in all other Speculative and Practical Doctrines, was as much infected with Popery ^ as it was before: And therefore, if you will have me to be converted by your Authorities, I pray begin with the purer Times of Edward VI. and Queen £/iTuibeth.

M. I shall comply with your Desires, since you will have it so: And therefore I shall begin with the 39 Articles of the Church of England; where, in the 37th H.T.O. at. Article, (as they were pafs'd under Queen Elizabeth,Anno 1562.) you may find it runs thus: "The Queens Majesty hath the Chief Power in this Realm of England, and* other her Dominions, unto whom the Chief Government of all the Estates of this Realms u whether they beEcclesiastical or Civil, in all Causes doth appertain, and is not, nor ought "to be fubjetl to any foreignJurisdiction*

It is true, this Doctrine is not limited to the particular Cafe of Subjects taking , up Arms; but it seems to me by two necessary Consequences, to be deduced from it: First, Because if the Pope, who pretended by a Divine Right, had no Power over Kings, much less have the People any such Power, who pretend to an Inferior Right, as that of Compact. Secondly, Because the Article makes no Distinction, but excludes all other Ppwer, as well as that of the Pope. And in truth, the Plea is the fame on either side; the Pope fays, as long as the Prince governs according to the Laws of God, and the Church, (of which he is the Interpreter) so long the Censures of the Church do not reach him: And fay the People, as long as the Prince governs according to the Laws of the Land, (and of the Meaning of those Laws they themselves will be the Interpreters) so long are they bound to be obedient; but as soon as the King doth any thing that may contradict the Pope, then he is (deservedly, say the Romanists)excommunicated, deposed, and murdered; and when he usurps upon the Peoples Liberties, then he ought to be deposed by the People. The Arguments on either side are the fame, and for the most part the Authorities.

F. I must confess, this is the first time that ever I knew any Man go about to prove Passive Obedience and Non-refistance out of the Thirty Nine Articles; and indeed I should have thought you might have deduced any thing else from these Articles, as well as that. But let us fee, how what I have said in this Discourse can come within the Contents of this Article, which only fays, that the King or Queen of England is Supreme Governor over all Persons, as also in all Causes, whether Ecclesiastical or Civil, and is not subject to any foreign Jurisdiction: From whence you raise this Argument, That if the Pope, who claims by a Divine Right, hath no Power over our Kings, much less have the People, who can pretend to no such Right as he does, but only that by Compact. Now pray tell me, whether this be conclusive. I aslert, that the People have, by the Law of God and Nature, a Right to defend themselves against the Supreme Powers, in


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case they are violently astaulted in their Lives, Liberties, or Estates. Now I would very vain have you prove to me, how Resistance for Self-defence doth subject a Prince to any Jurisdiction, either foreign or domestick; and whether the People can have no Right to resist such Violence, unless they have also an authoritative Power over them? U. P. 0. p, M. It is not worth while to dispute this any longer with you to so little pur3> 4 pose ; and therefore I shall come to the Canons of the Church, and in particular,

those of the Year 1640, which I look upon as a foil Explanation of flie Belief of our Church in this Point, where you may fee, in the first Canon, these two plain Propositions, among others. B^.SparrowV First, "That the most Sacred Order of Kings is of Divine Right, being the Coiu&ionof « Ordinance of God himself, founded in the prime Laws of Nature, and clearly Canons, &c. « established by express Texts both of the Old and New Testaments. p'3 Secondly, "For Subjects to bear Arms against their Kings, offensive or desen

w five, upon any pretence whatsoever, is at least to resist the Powers which are "ordained of God : And tho' they do not invade, but only resist, St. Paul tells "them plainly, they shall receive to themselves Damnation.

From which you may plainly fee, that this Convocation, which consisted of as great Men as, I think, had been for divers Ages, do clearly maintain Monarchy to be of Divine Right, and Resistance to be in no Case lawful.

F. I should grant the Canons of this Convocation to be a good Proof of the Judgment of the Church ofEngland, were it not for two very good Reasons I have against: them: The one I will tell you presently, and the other I will keep a while to my self. In the first place therefore, I suppose you cannot but very well know, that this Convocation fate and pasted these Canons, which likewise receiv'd the King's Confirmation, after the Parliament (that was summoned together with this Convocation,) was dissolved : And the Writs by which they fate being to the fame purpose, I suppose you know, that by the Law of England the Convocation having been look'd upon as an Appendix to the Parliament, was till then always dissolved with it. VIA. Rush. For which reason all Acts and Proceedings of this Convocation were condemned, C0II18. part antj declared nu\\ and vojd by tneLong Parliament, that began to sit the latter

1. vol. i. f. £ncj Gf ts)e fame Year: And which is more, was likewise condemned by the first '3 v Parliament after the Restoration of King Charles the second. And therefore, I think,

I have very little Reason to own these Canons as conclusive. I H. P. 0. ch. M. In the first place, I might reply to what you have now said, that that very

2. Parliament, which first condemned these Canons, afterwards ruined the Monarchy itself. In the next place, that in old time the General or Provincial Synods were not dependant upon the Assembly of the Estates at the fame time. And I likewise farther answer, that these Canons were mad« and confirmed in a full Convocation of both Provinces of Canter bury and Tork; and the making of Canons being a Work properly Ecclesiastical, these Canons were made by the Representatives of the whole Clergy of this Kingdom. 2. The Canons were confirmed by the King (which was all that was of old required in such Cases) and tho' the Convocation fate after the Dissolution of the Parliament, yet this is not without precedent, even in the happy Days of Queen Elizabeth, not to look back unto Henry VIII. or the Primitive Times. And as for your Objection, that these Canons were rebrobated since the Restitution of Charles II. I fay, that I quote them not as Law, but as the known Sense of the Church of Englandat that time.

F. Your first Answer in behalf of these Canons is altogether invidious : For it was not this Parliament that ruined the Monarchy, but only the Rump or Fag-end of it, after it had suffered divers Violences and Exclusions of Members by the Ar1 my, and that the House of Lords (being by this Junto voted useless and dangerous) were shut out of doors. Nor is your second Answer any more true; for antiently, in the Saxons Time, the WittenaGemot or Great Council, and the General Synod, made one and the same Assembly, consisting both of Clergy-men and Laymen; and then all Matters of Ecclesiastical Discipline were enacted and confirmed by the King, as also the Spiritual as well as Temporal States. Nor can you shew me an Example of any General or Provincial Synod, which met independently, and without the States of the Realm, until after the Reign of Henry I. when the Popes took upon them to encroach upon the Royal Authority, as also upon our Civil Rights, and by his Legates to call Synods, and make Ecclesiastical cal Constitutions, in which, neither the King nor the States of the Kingdom had any thing to do. And tho', I grant, that upon the Reformation the King was restor'd to those Rights, as Supreme Governor of the Church, which the Pope had before usurped; yet is not this Act of the Supremacy to be si) understood, as to give the King all that Power, which the Pope unjustly took upon him to execute before ; ,for that had been to make the Cafe little better than it was before: And therefore this Act of the Supremacy being only an Act of Restoration of the King to his pristine Rights, (of which that of calling Synods and Convocations was one of the principal) the King could not call nor continue those Assemblies ia any other Form, or after any other manner, than they were held before the Pope s Usurpation, in taking upon him to call such independant Synods : And notwithstanding what you tell me, I am confident you cannot shew me any Precedent of a Convocation so turned into a Synod, as this was, in all the Reigns of Henry VIIIand Queen Elizabeth

But as for your last Reply, that you quote not these Canons for a Law that obliges by a Civil Sanction, but as the Sense of the Church of England at that time; if they do not now oblige the Church neither in point of Belief nor Practice, as you seem to grant, it signifieth no more to me what was the Sense os the greatest part of the Members of that Convocation in this matter, nor doth it any more sliew me what is the true Doctrine of the Church ofEngland, than if I should tell you, that because in the Reign of Queen Elizabeth the major part of the Bilhops and Clergy of our Church were rigid Calvinists in the Interpretation of that Article about Predestination, that therefore Calvinism was then the Doctrine of the Church of England, but is not so now. And therefore we ought not to take that sot a Doctrine of any National Church, unless the Synod or Assembly, that declares such Doctrine, be solemnly and lawfully assembled, according to the Laws and Customs of that Nation or Country wherein they are so declared.

M. Since you so much contest the Authority of these Canons, I shall no longer B. P. 0< p, insist upon them, but I shall here shew you out of the Books of Homilies, to which 8> 9* all the Clergy in England are bound to subscribe by Act of Parliament (as well as to the Articles and Canons) as containing wholesome Doctrine, and nothing contrary to the Word of God (so that these Homilies do indeed thereby become a part of the known Laws of the Land) that in these very Homilies there are divers Passages so very full and plain against all Resistance ofthe Sovereign Powers for any t ■Cause whatsoever, that if you are a true Church of England Man, as I hope you are, you can have no just Reason to deny their Authority.

The Homily, or Exhortation to Obedience, was made An. 1547. in the Reign of King Edward the sixth; in the sceond Part of which Sermon of Obedience we ace told in these Words (which I desire you to read along with me):

f That it is the Calling of God's People to be patient, and on the suffering *' Side, and to render Obedience to Governors, altho' they be Wicked and u Wrong-doers, and in no case to resist and stand against them. Subjects are ** bound to obey them (/'. e. Governors) as God's Ministers, altho' they be evil, not only for fear, but also for Conscience sake. And here, Good People, let us mark diligently, that it is not lawful for Inferiors and Subjects in any Case to resist and stand against the Superior Powers; for St. Paul's Words, are plain, that u whosowithfiandethstall get to themselves Damnation. Our Saviour Christ, and his Apostles, received many and divers Injuries of the unfaithful and wicked Men in Authorityyet we never read that they, or any of them, caused any Sedition, or Rebellion against Authority. We read often, that they patiently sufsirred all Troubles, Vexations, Slanders, Pangs, Pains, and Death itself, obe"diently, without Tumult or Resistance. Christ taught us plainly, that even M the wicked Rulers have their Power and Authority from God; and therefore it "is not lawful for their Subjects to withstand them, altho' they abuse their Power. Let us believe undoubtedly (good Christian People) that we may not obey Kings, if they command us any thing contrary to God's Commandments: In such a case we ought to say as the Apostle, We must rather obey God than Man. "But nevertheless, in that case we must not in any wise withstand violently, or "rebel against Rulers, or make any Insurrection, Sedition, or Tumults, either by force of Arms or otherwise, against the Anointed of the Lo) d, or any of his appointed Officers; but we must in such a case patiently suffer all Wrongs and

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"Injuries, referring the Judgment of our Cause only to God." And see Part the Third of the same Homily: "Ye have heard before of this Sermon of good Or"des and Obedience, manifestly proved both by Scriptures and Examples, That "all Subjects are bound to obey their Magistrates, and for no cause to resist, or "withstand, or rebel, or make any Sedition against them, yea altho' they be "wicked Men."

T could find many more such Places in our Homilies, but I shall trouble you but with one other Passage out of the second Book of Homilies, compiled in the Reign of Queen Elizabeth, in which Book the Homily againstWilful Rebellion is full to this purpose.

"In reading the Holy Scriptures we shall find in very many, and almost infi"finite Places, as well of the Old Testament as of the New, that Kings and Prin"ces, as well the Evil as the Good, do reign by God's Ordinance, and that "Subjects are bound to obey them. The farther and farther any Earthly Prince "doth swerve from the Example of the Heavenly Government, the greater Plague "he is of God's Wrath and Punishment, by God's Justice, unto the Country and "People over whom God for their Sins hath placed such a Prince and Gover"nour. What shall Subjects do then? What a perillous thing were it to com"mit to Subjects the Judgment, which Prince is wife and godly, and his Go"vernment good, and which otherwise? As tho' the Foot must judge of the "Head ; an Enterprize very heinous, and which must needs breed Rebellion; "and is not Rebellion the greatest of all Mischiefs? A Rebel is worse than the * worst Prince, and Rebellion worse than the worst Government of the worst

Prince, that hitherto hath been. If we will have an evil Prince (when God "shall send one) taken away, and a good one in his place, let us take away our "Wickedness, which provoketh God to place such a one over us. Shall the "Subjects both by their Wickedness provoke God for their deserved Punishment "to give them an undiscreet and evil Prince, and also rebel against him, and "withal against God, who for the Punishment of their Sins did give them such a "Prince?" And this Doctrine is more strictly enforced in the second Part of that Homily, from the Example of King David, in his Carriage towards Saul; from which it will appear, that they did not suppose Davidto have used so much as defensive Arms against him, as you may fee by this Passage in it: " That . " when for his most painful, true and faithful Service, King Saul yet rewarded "him not only with great Unkindnefs, but also sought his Destruction and Death "by all means possible, David was fain to save his Life, not by Rebellion or any "Resistance, but by Flight, and hiding himself from the King s sight."

From all which Passages out of the Homilies, I think, we may draw these plain Conclusions : i. That as well evil as good Governors are to be obeyed as God's Ordinance. ^^ That therefore they are not to be resisted for any cause, tho' they abuse their Power never so tyrannically. 3. That the People are not to judge when the Prince thus abuses this Power, so as thereby to make any disturbance. 4. That not only offensive, but also desensive'Arms, if made use of against him, are utterly unlawful, and also against God's express Command.

F. I grant, these Homilies seem to be very strictly penned against all Resistance, and ought to be (like all Discourses of this nature) positive and general; and perhaps if I were to preach a Sermon to the Common People on this Subject, it should be much to the same purpose ; and yet for all that I might not believe, that it was absolutely unlawful for a whole Nation to defend themselves, in case of such extream Violence or Oppression as I have already supposed: For when Preachers speak to Vulgar Auditors, they are not bound, like Casuists, to tell them all the reserved Cases in which they may be dispensed with in their Duty, lest they might use this Christian Liberty for a Cloak of Maliciousness (as the Apostle tells us.) Thus if a good Preacher makes a Sermon againstStealing or Murder, he may very justly tell the People (as the Authors of these Homilies do) that they ought not in any wife, or for any Cause, to commit Tlxft or Murder; without telling them all those Cafes of meer Necessity, in which it may be lawful to make use of the Goods of another, and also to commit Homicide; as, when a Man is forced to take Victuals, tho' without the Owner's Consent, for meer Preservation ot Life, or to kill a Thief, or any other Man that assaults him, to save his own Life. So tho' the Authors of these Books of Homilies do fay, that that we may

not not in any wise, and for no cause, withstand violently, or resist, the Supreme sowers j but that we must suffer patiently all Wrongs and Injuries, referring the Judgment only to God: Yet since they have not particularly put the Cafe, as t nave now done, viz.. what is to be done in cafe a whole Nation or People are about to be destroyed, ruined or enslaved, and made Heathens or Papists, by the unjust, '"ay illegal Violence of the Supreme Powers; we may rationally supposes that since they were good Men, and never intended to urge these'things further than what the Scripture and Fathers have already done, that they never really intended, that a whole People or Nation, together with the Religion established, Jhould be thus ruined and destroyed, father than such Resistance should be made.

As. But pray tell me, can there be any thing more express against your Interpretation, or more plainly oblige us to a patient Suffering, without Resistance of of the cruellest and most intollerable Tyranny, than these words I last read. *the farther and farther any earthly Prince doth swerve from the Ex am fie of the heavenly GoWrWnent, thegreater Plague he is^of God's Wrath and Punishment, by God's Justice, unto the Country and People, over whomGod, for their Sins, hath placed such a Prince and Govefnor. And by what there follows, you will fee that tho' such a Prince be so treat a Plague to them; yet they cannot without Sin judge such a Prince, or rebel against him, but must patiently wait God s leisure to remove him.

F. 1 confess this is the strictest Passage of any in the whole Book, yet doth not this 'exprefly reach the Cafe here put; or if it had, do I think myself, or any Body else, obliged, because of one or two unwary Passages in this Homliy, of which perhaps neither the Parliament nor Convocation closely considered the evil Consequence, or so much as knew they were there; things of this kind usually passing such great Assemblies by the Lump, as relying upon the Testimony of some ieadflig Bishops or Clergy-men, without considering the Book of Homilies strictly, tot reading over the whole. So that the Parliament might very well declare, that they contained found Doctrine, and nothing contrary to the Word of God, without asserting the literal Truth of every particular Passage in them, much less, that all that is contained therein, is to be believed upon pain of Damnation; and therefore I must beg your pardon, if I cannot suppose that all Resistance whatIbevfer, though in the most necessary Cafes of Self-defence which I have now put, is absolutely unlawful and rebellious; or that the Fathers of our Church ever intended tc lay so hard a Yoak upon the Neck of this Nation, which neither they nor their Fathers were ever able to bear; much less, that there is thereby taken away from this Nation, defending those fundamental Rights and Privile'dges, which ate essential to the Nature of the Government, ahd which, as it distinguished at' 'from a Despbtick Monarchy, so it doth the Subjects likewise from those of Other Nations: For if the Scriptures themselves were never intended to alter Civil 'institutions much less certainly can either our Canons or Homilies do it. Aud 'therefore to deal freely with you, if the Canons and Homilies had been never so express' '•on your side; yet, as long as no such Consequence can be drawn from the Holy Scriptures, I should hot much value What they fay, unless you can prove the Church of England to be infallible. Ahd for this I have the sixteenth and twentieth Article of the Church of England (made in the Year 1562.) to bear me out. tth^ former of which, concernihg the Sufficiency of the Holy Scriptures for Salvation, runs thus .• The Holy Scripture contains allthings necejfary tb Salvation: So that whatsoever is not read therein, nor may be proved thereby, is not to berequired of any Man, that it Jhould be believed as an Article of Faith, or be thought necessary or requisite toSalvation. ^Therefore if I have plainly proved, by sufficient Authority, that your Doctrines' of Passive Obedience and Non-resistance are not exprefly found in Scripture, nor by necessary consequence may be rationally deduced from thence, they cannot be required of any Man to be believed or practised as necessary to Salvation. And therefore, if either this Church, or any other, imposes such a burden upon me, I am not obliged to bear it: And this the latters of these Articles of the Authority of the Church expresly asserts in these Words: It is not lawful forthe Church to ordain any thing contrary to God's Word written, &c. After which it follows thus : So that besidesthe fame, it ought not to enforce any thingto be believed for necessity of Salvation. Where note, that by besides thefame, is to be understood any thing that is not found theremay be proved thereby by necessary Consequence, as was said before; and if the whole Church itself cannot do this, certainly no particular Church can.

And And that divers of the most eminent Divines of our Church have used the fame freedom with several other Doctrines contained in these Homilies, may appear from Dr. Hammond's, Dr. Heylin's, and Dr. Taylor's, with several other eminent Writers expresly denying, that the Church of Rome is guilty of Idolatry, or that the Pope is Antichrist; tho' both these Doctrines are as plainly laid down ir\ the Vid. id. Homilies, as the Doctrine.of Non-resistance: And yet none of these Men are ever Vol of Horn- taxed by those of the Church of England, for quitting her antient Orthodox. Docw ld'?ar tr*neS- -A-n^* desire y°u to give me a good Reason (if you can) why it is more *f the St? lawful and excusable to part with the former of these Doctrines than the latter? mom against The like I may fay also for the Doctrine os Predestination; which tho' exprefly Idolatry, efpe- asserted in the 3 6Articles of the Church of England, as interpreted by all the Biciaiiy the uji, shops and Writers in the Reign of Queen Elizabeth and King James, as also the 'IC*2' Bifliops and Divines sent as Delegates rrom our Church to the Synod of Don,, who 3' joined in the Interpretation of that Article, in the strict Calviniftical sense,' you

find, in all the Determinations of that Synod-aga-inst the Doctrines of the Ar minionsy which then began to prevail yet since the time that Archbishop Laud had the,nor minating of what Persons he thought fit to be made Bishops, Deans, &c. not one in ten of them but have been Arminians in all those Points, wherein they wholly differ from the Doctrine of Calvin, which is but the fame with that of Qui^tf Articles so interpreted; yet none of the Divines of our present Church, wh# -bold these Opinions, are branded with Apostacy from its antient Doctrine; but*if;any well meaning Divine, out of love to his Country, and to prevent Popery arid [Slavery from breaking in upon us, have but preach d or published any thing in, derogation to these darling Doctrines of Passive Obedience and Non-refistance, fae is strait branded with Apostacy from the Church, in quitting its main distinguishing Character; and we have lately seen degrading, nay the most cruel Whipping aha Imprisonment, thought too little for such a Man. But one may say of someMen with truth enough,

Dat veniam Co)*vis, vexat censura ColumbU. ■' -j. .  -. 3iJ.-)

'As. Methinks, Sir, it is a great Presumption in you, and those of your Party, to make yourselves the sole Interpreters of those Places of Scripture which To'exprefly forbid all Resistance of the Supreme Powers; and then, when you^ave wrested the Scriptures to your own. Mind, to cry out, that you are not bq'untl to believe these Christian Doctrines, because you suppose they are contrary to "lien's humane Reason, and the too great Love they have to their own Concerns; which is but the fame way of reasoning which the Socinians and Arians make use of against our Saviour's God-head, because their narrow Understanding cannot comprehend it: But besides all this, I could Ihew you out of the best Writers of the Reformed Religion, both in this and other Protestant Churches, who interpret these pjta^els of Scripture against all Resistance, in the fame sense as our honest Homilies'naye done; but I find it grows late, and I have not time now to shew you them : or if 1 had, do I believe you would be much edified by them, since you make so flight of the Authority of our Homilies.

P. You are very much in the right of it, and indeed I do not desire you^ put yourself that trouble, for the Papists themselves will not own any thin Doctrine of their Church, which is not exprefly found in the Council of , .the Catechism composed according to its Decrees, and therefore will not be concluded by the Sermons or Theological Treatises of any of the Divines of their own Church, as to any Thing or Matter in debate between us. And, I think, I that am a Protestant, may certainly claim a like Christian Liberty; especially, since I am very sensible upon what Account too many Men have carried tnese Doctrines of Passive Obedience and Non-resistance to so great a* height as they have done of late Years: But since you tell me that so many learned Writers, with of this and other Protestant Churches, have been of your Mind; So I could'also (if I had a mind to cap Quotations with you) produce a sufficient number'of .Places out of Luther, Calvin, Zuinglim, and other first Reformers, as also of our own Writers at home, who have in many places of their Works allowed Resistance for Self-defence, in cafe of intolerable Violence and Oppression, to be lawful; and .of these I can give you a large Catalogue, whenever you please to command me.



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But since they will convince you, as little as I suppose your Writers would do ane, I shall forbear mentioning them any further.

M. I value not much what Luther, Calvin, or any other violent Men of that fort, may out of Passion or Inadvertency have written on this Matter; and yet I can shew you a Passage out of Calvin's Institutions, which expresly forbids Subjects or private Persons to take up Arms against the Supreme Powers, as you may fee by his own Words in the fourth Book, cap. to.Neque enim si ultio Domini est effr/atata Dominations correSlio, ideaprotinm demandatam nobis arbitremur; quibm nuUum a!iud quam parendi &patiendi datum eft mandatum, Deprrvatis Homimbmsemper loquor. And tho' 1 grant some Divines of our Church have allowed Resistance in some Cafes, where the People, by the- Laws and Constitutions of their Country, might lawfully have made such a defence of their Liberties, yet have they denied it in all other Cafes, and particularly in our own Government; which is sufficient to shew, that whatever your Thoughts maybe of it, yet that they thought it absolutely unlawful for the Subjects of this Realm to take up Arms against the Ring, or who acted by his Authority, upon any Account whatsoever; and therefore I must needs tell you, that I look upon these Doctrines of Passive Obedience and Non-resistance, as the distinguishing Characters of the Church of England from all other Churches. '•

F. Tho' 1 do not much value the Opinion of Divines in matter Of Politicks, since most of them that I have met with have been very unhappy, when they have undertaken to meddle with that Trade; yet I doubt not but I can shew you, that some learned Men of our Church have not thought all Resistance to be unlawful, in cafe the main and fundamental Constitutions of our Go\rernment shall happen to be assaulted, or ourselves, in respect of our Liberties and Estates, like to be reduced to absolute Vassalage and Slavery. And therefore, if your Divines will own Resistance, where, by the Constitutions of the Government, it is allowed to be lawful, I think I can also prove, that it is not only lawful, but necessary, in some Cafes in our own, for the Preservation of the Original Constitution ; and if this fliould prove so, I know not what your distinguishing Character of the Church ofEngland will signify, unless you will make it necessary for particular Churches to have other distinguishing Characters than the Scripture requires, or the Constitution of the Government will allow of; and if so, I doubt the Church of England would get as little Credit by such distinguishing Characters, as the Calvinift Churches abroad do by making absolute Predestination one of the Terms of their Communions, the Scriptures (without their rigid Interpretation) teaching no such Doctrine. But as for your Quotation out of Calvin, it amounts to no more than what I have all along granted, 'That single private SubjeSis ought never to take up Arms or resist those in Power,but when the good of the whole Commonwealth requires it. And therefore he, in the fame Book, places a Power of Resistance in sobordinate popular Magistrates, whereby you may fee he grants the Thing lawful, but will not leave the Power of judging only in the common People, or Mobile; and soiar I confess he is in the right, tho' I grant those Magistrates are, in respect of the Monarch, as much subject as the People.

M. I shall be glad to know what Divines of our Church they are, who have granted Resistance of the Subjects of this Kingdom to be in any Cafe lawful; for if there are any such, I confess they are Authors unknown to me; nor do I know any, but one, who was seemingly in the Communion of the Church of England, who hath asserted this Doctrine in his Book of Julian the Apostate; but you see he was presently confuted by those learned Men of our own Church, who undertook him, and, I think, have so well performed it, that I cannot tell whether it hath been more for their Glory or his Disgrace*

But as for what you fay against making Passive Obedience the distinguishing Character of our Church, I confess indeed, it is very bad for a Church to hold evil or indifferent distinguishing Doctrines; but it is as certain, that it is very convenient for a Church to have distinguishing Doctrines, provided they be good ones, unless a Church can be obliged to err for Company, and to avoid distinction, which will not Very well agree with the Text, that forbids m to follow a Multitude to do Evil, nor with the Practice of the Primitive Christians, when the Orthodox were so few, in comparison, that had there not been some Names of Note among them, they would hardly have been reckoned a number. But it

E e • agrees agrees admirably well with the Principles of Popery, thus to avoid Distinction, which hath its Numbers to boast of, when nothing else is to be said

But there is one Lord, one Faith, one Baptism; and St. Paul reproves the Corinthians, because one cry'd he was ofPaul, and another of ApoOos, a third of Cephx, and the fourth of Christ: And must not then those that held one Lord, one Faith, one Baptism, necessarily distinguish themselves from all that held more than one? And if some would say they were of Paul, and some of ApoUos, and some of Cephas, might not others distinguish themselves from them, by saying they were of Christ? v>.„ .;.

But by this Doctrine, you pretend, we distinguish ourselves from all other Churches in the World, and so from the Catholick Church; and therefore you cannot comprehend, why any one should value a Doctrine so much on that score; but you may comprehend, if you please, that it was never pretended that this Doctrine is taught nowhere but in our Church; and, as I hope, I have, proved that it was taught in the Primitive Church, and is taught in other Protestant Churches at this Day: But this is evident, by fatal Experience, that Passive Obedience is the distinguishing Character of the Church of England by Law established; whereby it is distinguished from the separate Congregations among us, both of Fanaticks and Papists; and to justify this Distinction, we have the express Testimony of several of our Princes since rhe Reformation, and of the Laws themselves too, that are still in force; which abundantly shew how dangerous the Principles of other Persuasions are ro the State, as well as to the Church: Yet if other Churches have not so well preserved this Doctrine in its Purity, as ours hath done, as we would not provoke them to a Comparison, so we have no reason to be ashamed of it. But that many among them have taught this Doctrine, « might be proved from the Writings of many of the most learned and pious foreign °-Divines; and particularly from a Book of a French Protestant lately written, who '"in the midst of Persecutions writes in defence of Passive Obedience, when he at the fame time suffered what we feared.

F. Tho', I confess, at a time when it was made criminal for any Man publickly to maintain, that it was lawful to resist, in cafe the King should go about to introduce Popery and arbitrary Government among us by Force; and that whosoever went about to assert the Lawfulness of such Resistance, was sure to meet (if not with Punishment) at least with loss of Preferment, and Disgrace; when the Doctrine os Passive Obedience ran so high both in the Press and Pulpits; it was no wonder if any of our Church, who consulted their own Safety, durst stem so violent a Current; and yet even in these Times, the learned Dr. Falconer, in his Treatise os Christian Loyalty, chap. 5. §. 2. doth, tho* cautiously, allow Resistance in such great Cases, as of a Prince's alienating his Kingdom, or of destroying his People in an hostile manner, to be lawful, if ever it should happen: But put of a needless sear, lest this Doctrine of Resistance may be made use of as a Pretence for Rebellion, will allow it can scarce seem possible ever to happen in a King, Compos mentis, towards his whole Dominions. But I think I have already proved the possibility of it, and why they may not do the fame in an absolute Empire, where the Prince would make them Slaves^ and Beggars, by invading their Liberties and Properties, I can see no Reason, but think I have given very good ones for it.

But as for the other Person you mention, who did openly in Print oppose this Doctrine of Resistance, whether he, or his Opponent, had the better in this Dispute, I leave to the indifferent Readers, who,- I believe, will acknowledge that the Author of that Treatise did not so much forfeit his Reputation, by asserting a Right of Defence, where the Religion and Liberty are established by Law, and became a part of the Civil Constitution", as his Opponent did by introducing an arbitrary imperial Power in this Nation, unknown to, our Laws, whereby a few mercenary Red-coats, either of this, or a Foreign Nation, should have, by the King's Commission, an irre/istiblc Power over the Lives, Liberties and Estates of all Protestants. But since he went about, to make us all Slaves by his Imperial Law, I do not at all envy him so generous a Performance ,• and yet for all that, I had much rather have that Man's Reputation,' whom he opposed, tho* with all his Suffering, than this Gentleman's, tho' attended with all his Learning and Preferments.

• But as for what you fay inVindication of the Doctrine of Passive Obedience and Non-resistance in all Cafes whatsoever, it signifies little, since it is grounded upon a wrong Supposition; for you still take that for granted which is the Question yet to be proved, that because the Primitive Christians were against Resistance, in case of Persecution, therefore this must needs extend to whole Nations and Commonwealths, in all States and Conditions whatsoever; which, whether you have well proved or not, I leave it to your own Conscience to judge; for my own party I cannot say you have convinced me . with what you have laid on this Subject: Sflithat if the.se Doctrines, as you have put them, are neither good in themselves, nor necessary to be believed or practised jn all Cases, I doubt God may justly ask those who either practise or impose them on others, Who hath required these things atyout Hands* And as for those Divines of foreign Churches, who, you fay, have wirj&fot these Doctrines as well.as ours j as I know not who they are, nor in- what n^anner they have defended them, so do I not much vahie their Opinion, since thereiare many more altogether as Learned and Pious as they, who have held the contrary- No&axe all Divines who"maintain Passive Obedience andNon-resistance Q£jout side, whq write (which I also allow) that for particular private Subjects} to resist Princes in revenge of private Injuries, and rebel against the SupremePowers for not, being oitheir, own Religion,; or to take upon them to call Princes lOhaA Account, or pass Judgment upon them, or punish them for their Actions, ifcajtogether wicked and unlawful: Yet doth it not therefore follow that they, ^Wjmaintain'd. alJ, Resistance* to be unlawful, jn any Case whatsoever; tho' per-> baps,. ;if you were to make .uTe of their Authority, you would produce them of

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To conclude, I own myself for Non-resistance, in that limited sense I have now givefij-as far aS.it extends to. particular private Men; yet that, this Rule doth not extend to' the whole Civil Society or People; and therefore, altho' in my own. private.Capacity,; I ought to submit to, and suffer the greatest injustice, rather than^sist and disturb Government; yet when the main Foundations thereof are once begun to bejmlled up,, as I am an Englijb-man, I think I am more obliged^ by .all Ties both Sacred and Civil, to^lesend and maintain the Government or, Constitution, of which I am a Member, than I am to obey the King's personal Cojnmands^ and that being the primary Obligation, ought to be discharged in thcf first.piace. . ;<, ■  :c:: '■ r,< . _t».v: •

,; I shall;nQ loBger compare, whether the Divines that write for, or those that, vffjtfe.'iagainst Resistance, are the wiser or more learned, since you yourself, jt seems, 7at last,, are fejgn to own a limited Non-resistance, which you will have extend to private" Persons, but not to the whole Civil Society or People: But I think J:m£y venture stilj to maintain, that the Supreme Power, where ever it is placed, must be irresistible i and that a whole Civil Society or People, who are not invested with part of the Sovereignty, can have no more Right to resist than single Pexsoas: Eor to fay that whole Societies have a Power to resist, and that particvltt private Persons, as Members thereof, have if ajfo, is such a diminution of Supreme Power, as can never be consistent with jt;$> for all Inferiors, whether private Persons or whole Societies, can have no Power.but what is derived from the Supreme; and therefore, if they have a Right to [resist, even that must be de-. tited from the Supreme Power, and so that Power must destroy itself.

. 'But as for what you alledge in your Justification, that Resistance may be lawful^ to avoid Subversion of the Government; To this I may reply, that if Subjects b§ po longer in subjection to the Supreme Powers, the Government is hereby defirq>y«d » for what .more manifest Subversion can there be than this, That Subjetts arenow no longer in Subje&ion, nor Governors can be no lotfger able to govern? So that this Argument .tends only to prove, that Subjects may subvert the Government tmjUpyjs. rather than suffer the Sovereign Power to „do it another.. So that upon, fhe->whole Matter, if the Government must be subverted, you would have no Body have the doing of it but yourselveSk. ■;; r  j:ul , L* .

;£ However false your Premises arex and however weak the Proofs that you haye brought for them, yet I fee you are resolVd to stjek close to; your Conclusion, {i.e,) .that all Supreme Powers are absolutely irresistible. In which Dispute, whether you or I have been in the wrong, I dare appeal to any indifferent Judge j sot 1 think I have sufficiently made out, that Resistance by the whole People, or

E e 2 major

major part of it, against a general and intolerable Tyranny, is no diminution?of Supreme Civil Power, nor inconsistent with itNor is your Reason for your OpK nion any truer than the rest, that private Persons, whether taken single or in a whole Civil Society, can have no Power but what is derived from the Su» preme, which is by no means so; for every private Man of the Society the* acts by a Power precedent to it, viz,, the natural Power of Self-preservatiofl O? Defence, which no Man ever absolutely gave up, neither for himself nor his ChuV dren; when he-became a Member of that Commonwealth, tho* he was obliges for the Peace of the Government or Civil Society, to suspend that Right in ot* der to a greater- Good, which once failing, upon the Dissolution of the Government, every Man's original Right takes place. , - ■ ^lorij As for what you soy against my Notion, that Resistance is (awful, wfcert it may prevent the Subversion of the Government, your Reply to this is really equivocal, and consists in that false 6r wrong Notion you have of the nature of our Englijh Government, which you suppose only consists in the Preservationm the King's Personal Power, without any respect to the Laws or fundamental Constitutions of the Kingdom; and that as long as the People are in Subjection}: whether to legal Government or illegal Force, it is all one, the Government fS still preserved; which is a great mistake: For the King receiving his Power ftoii the Law, and having no Authority but what that gives him, when he overthrow* the fundamental Constitutions of the Kingdom, he doth himself destroy the G** vernment. And therefore, when in that Case the People do resists it i* either id maintain it, or else to restore it to the State that in was in before; so thafVii is not the People, in this Case, who have subverted it, but the King him*

self. . '• ;■-■> ■>*>''oT.

M. It now gtowslate, and it is high time to give over; but if you please to give me another Meeting, I doubt not but to sliew you, that by the Or*' ginal Constitution of this Government,' the King not only hath the sole Supreme Power, but that by several Acts of Parliament all Resistance of the King, or those commissioned by him, is absolutely against the Laws and se** \damental Constitutions of this Kingdom j and that they are all, by o« Laws, Rebels, that dare prefome: to make any such unlawful Resistance: And I desire that you would give me a patient hearing in this Matter, because I have so great a kindness for you, that I would not have you lie- undtr-ft* dangerous an Error, which may happen to prove'fatal to your Happiness, not only in the World to come, but also to the Safety of yourself and Fa* mily in this Life, if you should offer to put in practice what you have here maintained.—1. - ..£.-•>! ■: L>.;:vt

F. Sir, I give you many thanks for your kind Intentions towards me, since I do believe it proceeds from that real Friendship you have for me; the' as for-' the former of those Judgments you mention, I hope I (hall have no reason t© be afraid, of it, for any thing I can yet see from those Arguments you have hitherto urged: But as for what may happen to me in this Life, I hope I have as little reason to sea* it, since I believe this grtat Revolution will not only justify, but for the future defend those Arms that have been taken up for the restoring the trim antient Government of the 'Kingdom.

M I confess, Sir, that you have now too much the advantage of me, during these Times of Anarchy and Confusion; but yet I hope one Day to see this unhappy Nation again recovered from this fad Apostacy, into whkh, I confess, too many have lapsed; and then I doubt not but these Primitive and Loyal Doctrines of Passive Obedience and Non-resistance will be again restored to their former Integrity and Vigour.

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M. I thank you for your Advice, and you know, as my Humor is not to be troublesome or clamorous against that which is not in my Power to help; so on the other- side, I heartily wilh that the Prince may now agree with his Ma/esty apon siich Terms as may prove for the good of the Church and Security of tfae State. . But pray tell me when I may be so happy as to fee you here again, that we may folly resolve tms last Question? . ...'

F. To Morrow I stall be engaged, but the Day after being one of the Christmas Holy-days, I stall not fail to wait on you at the fame Hour, and am very well pleased to wait «njrou here, since I foresee a rrear naw  <* ^

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j ..... -..'notin Town.

M. I stall expect your coming with impatience, and in the mean time I am

your humble Servant.

F. Sir, I am yours. *


{214}

Bibliotheca Politica.
DIALOGUE V.


Whether the King be the sole Supreme Legislative Power of the Kingdom \ and whether our GreatCouncils, or Parliaments, he a Fundamental Part of the Government, or else proceeds from the.Favour and Concessions of former KingsV^jl

M. mmmmifcm |N welcome* $fr j' I i*#sit down by the Fire. I was f% VG&XQŒQ gjj thlfiking before you canjeMnfof the best Method of managing this important Questjon, whether by the Laws and Confutations of this Kingdom, it can in any Cafe whatever be lawful to resist the King, or those that act by vertue of his Commissions. I shall therefore proceed in the next place, to the' Proof of the second Proposition, in the Argument I at first proposed; or, to speak logically, the Minor in the Syllogism, viz,. That the King of England is the sole Supreme, or Sovereign Power in this Kingdom, and therefore is irresistable, and that not only as to his own Person, but also with respect to all such who act by his Orders or Commissions, though the things commanded be in themselves illegal.

F. I do not dislike your Method, though if you could never so plainly make out to me the Truth of this Minor Proposition, yet it will come too late to prove, that all Resistance of Supreme Powers is unlawful in all Cafes whatever, since I think you have failed in the Proof of that your first Proposition. But iince I do not deny the Truth of this second Proposition in some Sense, I pray be as stiort as you can in the Proof of it.

M. I shall observe your Desire; and shall briefly recite some Authorities, as well antient as modern, as also Acts of Parliament, which declare an absolute J.E. M. G. and Imperial Power to be solely in the King. To begin with the Saxon Times: s.17. p.m. First, as to the Title of King or Emperor used promiscuously; our King Edgar &dew. frequently in his Charters calls himself, Albionis & Anglorum Bafilem, and the Grecians esteemed the WordBatnheHc to be of full as eminent a Signification, as Cad. Vt^orv. Emperor : And King Edward the Confessor, in a Charter to the Abbey of Peter&> Monafi. burgy stiles himself Rex Anglorum, and his Government a Monarchy: And King Ang. fart. 2. Etbelred, in his Charter to Canterbury, stiles himself Angligenum, Orcadarum, neenon f'6^ in Gyrojacentium Monarchia, & Anglorum lnduperator. So that you hereby may see, that the Kings ofEngland^ long before the Conquest, look'd upon themselves as

Emperors Emperors, or absolute Civil Sovereigns. So likewise after that time '\ve find W.Rufm dates his Charter to the-Monastery Of Shaftsbury, Secundo anno Imperii taei: And though the Title of Emperor hath been disused, yet we shall find the Substance of it sufficiently challengedin that Letter of W. Rufm to Archbishop Ahfelm,telling him, "that he had all the Liberties in his Kingdom, which the Emperor VieLMtd PachaSenged in theEmpire: And the like was challenged by 8m? the First, in all wisii * his Disputes^ with the Pope concerning the Investiture of Bishops and Abbots;' and in all the Statutes of Premunire made by Edward the Third, the KingJs Sovereignty independent from the See of Rome, is exprefly asserted: And the' Statute of the 16th of Richardthe'Second declares; Thatjhe Crown of Eng- . land hath ever been so free, that it is under no earthly SubjeEiibn;but immediatelysubject to God in all things, touching the Regality of the Crown, and to no other. And the statutes of the 24th and 2jthof Henry the Eighth set forth, That this Realm t^f1 England is<kn Empire^'governed by one'Supreme Bead and King, and the Crown or Royal Authority is also thereby declared Imperial; and the Kings ofEngland are there■i&stiled KingsrW Emperors of this Realm. So that I think, no Man needs to doubt ttfhe-re the Supreme or Sovereign Power of this Kingdom resides. •rjjft1! will "slot deny any of those Authorities you have now made use of: Yet Titles alone are m Proofs of Power; for it is very well known, that the German Emperor, notwithstanding that great Title, is not therefore unaccountable or irresistdUe; finc-e the Colfege of the Princes Electors may depose him for Male-administration, or for violating any of the fundamental Constitutions of the Empire. And Mr. Seldtn hath very well observed, in hisTitles of Honour,- that this Supremacy, or Freedom from all Subjection, is not only challenged by our English Sovereigns; but also by the Kings of Denmark, Sweden, andPoland,- The former of which yet was so far from being an absolute M«flfecn, that before the Reign of this King's Father he might have been deposedtor Tyranny, or'Misgovernment, by the Estates of the Kingdom, as the Kins of Poland may at this day. And therefore these Titles may indeed prove a Freedom from all foreign Jurisdiction; but' do not prove that the King is endued with an absolute Sovereign Power Within the Kingdom, as you may fee in these Examples I have now given you.

M. If you are not satisfied with these Proofs, I doubt not but to give you other Authorities, both out of aritient and modern Lawyers, as also Acts of Parliament, which sufficiently declare where the Supreme or Sovereign Power resides. In the first place, I suppose you-will not deny, 'but that it hath been the Prerogative os the Itings of England, time out "of Mmditoeoih Money, dispose of all Offices, and create ncwDignities, as he should think fit; as also to make War and Peace, to make Laws; and in short, to do all things whatsoever that are essential to a Monarch. And that he ajone-is the sole sovereign Power in this Kingdom,, exclusive of all others, our anpenc Lawyers, Glanvil and Forteseue, plainly declare; the former of which fays thus-: Rex nuUum habere poteflparem, multo minm superior em. The fame thing is also 1- <"« I0« repeated by BratJon, and a. very good Reason given Vor it, in these Words: Omnis quidem sub Eo, & ipsesubnulld, nisi tantum sub Deo, parem non habet inregno suo, quia 3" c- 9* fic amitterit praceptum, * cum par in parem non habet imperium: Item nec multo fortim *1. e. His superiorem nec potentiorem habere debet, quia fic ejset inferior fibi subjeElis, & inferiores pares Power of ^eitmpoffuntpotemioribm^i^ - Command-.idR -But prayread what immediately follows: Ipfe autem RexnondebetefftsubHomi- ln*>" n£.sedsubDeo & sub Lege, quia Lex facit Regent; attribuatigitur Rex Legi quod Lexattribuit ei, viz,, dommationem & potefl atem: non est enim Rex ubi dominatur Voluntas, & non Lex... And though, I grant, the King is subject or inferior to nO particular private Man; yet that he hath a Superior or Master within the Kingdom, besides God and the Law (and so is not the sole Supreme Power) appears by a Passage out of the fame Author, in the second Book: Rex habet superiorem Deum, item Le-C. 16. gem, per quamfailm estRex; item Curiam fuam, viz,. Comites & Barones, quia Comites~ dlcuntur quasi Socii Regis, & qui habet Sociumhabet Magistnim: & ideo fi Rex fuerit finefrotw, i. e. Lege, debent ei frœnum ponere. From which Words it seems apparent to me, that this Author, thought (he King was not only inferior to the Law, bitt also to his Court of Parliament, called here Curia Baronum, who might bridle or. restrain him, if he transgress'd the Laws, which are here called the King's Bridle. Nor Can I conceive how this could be done, without some kind of Force or Constraint, if he refuse to receive this Bridle they would lay upon him.

M.I

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As. I do not desire at this time to enter upon this Question, concerning that 'Power, which I know some Parliaments have pretended ro, of curbing and resisting the King by force, if they supposed he invaded the fundamental Rights and Liberties (as they call them) of the Nation; and that for two Reasons: First, because it is not pertinent to our present purpose, of proving that the King is not the sole Supreme Power: As also because you very well know, that both Houses did, in i J Car. i. by an Act of Parliament concerning the Militia,solemnly renounce all coercive Power over the King, or any Right in either, or both of the Two Houses, of making Offensive or Defensive War against him. But if you have a mind hereafter to discourse further on this Subject, I doubt not but to prove to you H. T>. L. p. from divers other Passages out of BraBon, and that old Treatise called Fleta, that 4i« jt was no Political Superiority in the Curia Baronum, but only a directive Power, or

© moral Superiority, which they had of advertizing the King of any arbitrary Proceeding or Injustice he mould happen to do; and by Complaint, Admonition, and Entreating, to impose upon him to amend the same, according to his Oath; but not by Coaction or Constraint. And in this fense they may be said (in a moral way) to put the Bridle of the Law upon him, which may be called Civil Resistance; but as for Military Resistance against an unjust King, it is as inconsistent with our Englijh Government, as with any other Monarchy in the World, \\T But you very much mistake, if you suppose that the King of England is not Sur preme, because he is limited by Laws;which really is Bo Objection, because a Sovereign, without any Diminution to his Sovereignty, maybe limited in the Exercise of his Sovereign Power, either by his own Acts or Condescensions, or else by those of his Predecessors, under whom he claims. This is so certain, that there is no Supreme Power in Heaven or in Earth, which is not limited and confined in the Exercise thereof. * Thus the Onjripotent Power of God himself is limited by his own Wisdom, Goodness and Justice, which are himself. So likewise the Powers of all Absolute Unlimited Monarchs are only so comparatively, with respect to positive Laws; but as for the Laws of God and Nature, which bind their Consciences as firmly as any Civil Laws, they are bound to observe them, and exercises their Sovereign Power within those Limits which they set and prescribe. For whether they have their Supreme Power from God,as we lay, or from the People, as ybu alledge, it is all one as to this matter; for they can have no Right, neither from God nor the People, to make unjust and tyrannical Laws. And this Political Limitation of their Power, in the Exercise of it, doth no more destroy the Essence thereof, than its flowing in Pipes or Channels destroys the Essence a a Spring j since it is still the fame, whether it runs confined through Pipes, ot flows free and unconfined through the open Field. The Application is obvious.

But as for the precedent Words in this Place of Brafhu, which seem to intimate, that the King owes his Authority to Law; he there only means the King in opposition or contradiction to a Tyrant, who makes his Will his Law, according to that of Chancellor portescue: Rex est ubi bene regit, 'tyrawnm, dum pvpulum fibi creditum violentaopprimit dominatione; quod hoc sanxit Lex bumana, quod Leges ligant fuum latorem. Where you may observe, that this Author makes a King's governing well, i. e. according to Law, a Mark of Distinction from a Tyrant, who op-* presses his Subjects by a violent Domineering over them. And though he here snpposcs the King to be obliged by the Laws, yet that this Obligation is only Moral, appears by what immediately follows, when he fays,the Laws do oblige their Legiflator. Now if the King be the sole Legislator (as he here seems to intiA mate) he must also be the sole Supreme Power; and if so, cannot be accountable to, or under the Coercion of any Superior Power; for then he would not be Supreme, as you your self have granted song since.

F. Since you are not willing to enter upon that antient Power, which you cannot deny but the Great Councilformerly had, of putting a Bridle upon the King, and restraining his Actions, in case he invaded the Rights or Liberties of the People; I (hall not insist farther upon it now, for the Reasons you have given; only I must make bold to tell you thus much, thaj if they have not a Power of defending their just Rights, if forcibly invaded by the King, it would be all one as if they had none at all. Tho' I grant, that what you have said concerning the Limitation of the Exercise of Sovereign Power, that it dotb not derogate from the Absoluteness of the Power itself, is very true in all such Limitations which proceed from

the the intrinsic!? Mature and Perfection of- the Being in which it resides as in your Example of God's infinite Power, being limited by his other Attributes. So likewise all humane(Power (I own) are limited by the Revealed Laws of God; or those of Nature : But as to positive Laws you yourself assert, that absolute . Monarchs are only obliged by them as long as they please; and consequently; that they may alter them, or derogate from them, as oft as they think good J as the Roman Emperors could revoke any Privileges or Imniunities they had formerly granted to particular Persons, Cities, nay to Tributary Kings, or Commonwealths; and all this very justly, because as all such Grants were made only for the publick Good of the Empire, so they being the sole Judges thereof, when ever they found such Concessions to prove prejudicial to it, they might justly alter or revoke them. Now if the Power of our Rings be as absolutely Sovereign as that of the Roman Emperors ,• and only limited by their own free Grand or Condescensions to the People, and not from any Power ab extra,; such Grants or Condescensions, though never so solemnly past into Laws in the Parliament, or Assembly of the States, are still no more than positive Laws : And then it the King is the sole Sovereign Power (unlimited by any thing ab extra)how he can so tie np his own Hands, as that he may not break or rescind all those Concessions he had made; and those Limitations which he had put upon himself, if he think or declare it is for the better benefit of the Commonwealth so to do; I cannot comprehend, if he be, by the Original Constitution, the sole Lawmaker and Judge of what is for the publick Good: Much less can I understand how he can oblige his Successors (who must still be supposed as absolute Monarchs as himself) to observe them. And therefore if all our Civil Rights and Liberties, were no other than what you would have them (the free Condescensions or Self-Limitations of Sovereign Power) I desire you would stew me what Security we cart have for the Enjoyments of them longer than the King pleases: For it seems plain to me, that whenever he shall fancy the Liberties and Properties of the Subjects (both which you suppose were derived from him) to.he injurious to, or inconsistent with his Prerogative, or Sovereign Power, he may iawfully disannul or revoke them : And in what Case we then should be (consi- • dering how things had like to have gone lately)' I leave any indifferent Man t6 judge. - ■ «;

Nor is your Interpretation of Braflons Words, Lex facit Regem, &c. any mbfe than an absolute wresting of them from their true Meaning, which is not (as you would have it) to distinguish a King that g6verns by Law, from a Tyrant that makes his Will his Law: For every absolute Monarch that doth so is not i'Tyrant, provided he direct his Actions according to the Laws of God and Na-* ture, as you yourself assert; and a Prince may as well govern thus as the great Ttirk, Cz-Ærof Muscovy, and all the Eastern Monarchs do at this Day, who are riot counted Tyrants in so doing : But certainly >ou will fay, that he would make a very fcurvy English King, who would observe no other Rule. Nor do you left wrest Fortescue's Words, when you tender them, Rex est ubi bene regit,Ty~ ranmti, &c. Supposing the meaning of it to be, that this Author makes a King's governing (that is, fay you) according to Law, the only thirig to distinguish him" from a Tyrant, &c. Whereas he fays no such matter ,• but only Rex est, ubi benk regit, which he may do without any set Laws, as well as with them; as the fitst Kings you suppose did before they were limited by Laws.

But as for Fortescue's supposing the King to be the sole Legistator, that Word sole is of your own addition .,- for if he had said so, he would have contradicted himself, as I shall shew you presently. It is true, the King hath a great share in the Legiflative; yet hath he two other Bodies to join.with him by a concurrent or co-operative Power in it; and I think I have all the antient Lawyers of England on my side. To begin therefore with Ranulphde Glamiille,vsho-^rzs Chief Justiciary irf the Reign of Henry the Second: He gives us, in his Prologue to his Treatise of the Laws of England, this Testimony : Leges mmque Ariglicanas, licet nen feriptas. Leges appeUarinon videtur abfurdum (cum hoc ipfum Lex sit, quod Principi placet, & Le~ gis habet vigorem) eas scilicet, quai,super dubiis in consilio desiniendis, Procerum quident confilio, & Principis accedente authoritate,' constatesfepromulgates. So likewise Bratlon^ in his very first Chapter, speaks much to the seme purpose :' Cum Legis -vigorem hebeat, quicquid de confilio & de consenfu Maghatum3 & Reipubhcx commrmi sponsion?, au-*

F f thoritate

thoritate Prmcipis pracedente, juste fuerit defititum & apprcbatum. And also in his third Book, Chap. 2. when he speaks of the ancient manner of making Laws in England, he fays: Qua quidem fuerjnt approbate consensuUtentium, & facramento Regum confirmata, non possum mutari.wc desirui fine communi consensu Utentium, &conjilio eorum, quorum conjilio & consensu fuerint promulgate. Where you may fee these antient Authors plainly declare, that nothing hath the force of a Law in this Kingdom, but what is approved of and consented to by all Orders of Men, either by themselves or their Representatives: And, which is very remarkable, BraQm supposes the King's Authority, or Royal Sanction of a Law, may precede the Consent of the Great Council; which quite destroys that Notion, that it is the King's giving his last Assent, which gives it the Essence and Vigour of a Law.

And with these more antient Sages of the Law Fortesate also agrees in his j>th Chapter DeLaudibus LegumAnglia, where he fays: Rex Angliapopulum gubernat, non mera potestate regia, fed politica : popUlm etenim itslegibus gubernatur quas ipse fert, &C, What follows is word for word the fame with what Bra&on had before in his first Chapter, and therefore needs not to be repeated: So likewise in the 18 th Chapter, speaking of theAbsolute Legiflative Power of Kings in some other Kingdoms, he thus proceeds : Sed non sic Anglic statute oriripossum, dum nedum Principis vsluntatej fed & totim regni afsenfu ipsa conftuntur, quo Populi lasuram nequiunt,vel non eorum commodum procurare. But if they after prove inconvenient, he immediately adds; Concitoresormari ipsa possunt, fed non sine Communitaris & Procerum regni illtm assensu,

fuali ipsa primitus emanarunt. To which I may also add an Authority out of that .earned Author St. German, in his Dialogue called the DoEbr and Student, writteq in Latin, in the 1 oth Chapter, entituled, Desexto fundamentoLegis Anglia. The Student thus speaks: Sextum fundamentum Legis Anglia stat in dvversis Statutis per Do* minumRegem, & Progenitores fuos, & per Dominos Spirituales & Temporales, & pet Communitatem totim regni inParliaments, editis; ubi Lex rationis, Lex divina, Con.fuetudines, Maxima five alia fundamenta Legis Anglia primfujficere minims videbantur. Where you see the Legiflative Power is here attributed to the Lords and Commons jointly with the King. And therefore my Lord Coke, in his Notes upon the Statute of Westminster, I. calls it aCompleat Parliament, as consisting of all the Estates necessary thereunto: For, fays he, a Parliament making orenabling Laws consists of the King, the Lords Spiritual and "Temporal, and Commons; and it is no At! ofParliament, unless it be made by the King, Lords and Commons.

M. I shall not much concern my self with what your Common Lawyers, either antient or modern, have writ upon this matter; much less what Sir Edward Coke, a known Enemy to the King's Prerogative, doth maintain: Since I have as good b. or a better Authority than lie, viz,, that of the Tear-Book of 22 Ed. 3. wherein it is exprefly declared by divers Earls and Barons, and by all the Justices, in the Cafe of one Headlow and his Wife, who had a Suit with the King, That the King makes the Laws by the Assent of the Lords and Commons> and notthe Lords and Commons; and that he could have no Peer in his own Land, and that the King ought not to be judged by them. So that it is, I think, evident, that the Laws are primarily and properly made by the King, and that the two Houses may have a co-operative, but no co-ordinate Power with him. Aid though at this Day I grant, that Custom hath made the Assent of the Lords and Commons necessary to the passing of all Laws, yet it is still the King's Word, or le Roy le veule, that makes them so: And I much doubt, whether even this were part of the antient Constitution of this Kingdom or not, or proceeded at fitst from the gracious Favour and Permission of former Kings, as I could shew by a Series of Councils in the Saxon Times, if it were not too tedious to mention them particularly j therefore I shall only select some of the most remarkable.

For though I confess, the English Saxon Kings performed all great and considerable things by the Counsel and Advice of their Bishops and Noblemen, comprehended under the general Names of Wites; yet you will find by the Titles of almost all the Councils inSpelman, Lambard, &c. that these Kings alone made their Laws, though by the Advice and Counsel of their IVittena Gemote; which was then no other than the King's Greater Council, since he called what Great Men and Bishops he pleased to it, and omitted the rest : And it is never mentioned, that 0.tiiey were made by their Consent, as necessary thereunto. Nay, sometimes we find that some of the antient tow? Kings made Laws without the Assent of their


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Great Council. Thus Off a, King of the Mercians, being at Rome, out of his Royal ViJ.M«t. iv> Munificence, gave to the Support of the People of his Kingdom, that should come riL'n vit* thither, a Penny to-be paid"Yearly for ever out of every Family, whose Goods in p'171* the Fields exceeded the Value of Thirty Pence. And this he made a perpetual ■ • Constitution throughouY-alHiis Dominions, excepting the Lands conferred upori the Monastery of St. Allans. This Imposition and Law continued a long while in'force, though we find it not confirmed by any Great Councils in the Time of his tt.Spelmaii'i Successors; only in the Laws of King Edgar and King Edward it is enjoined to C***** be paid as the King's Alms; which implies it was the King's Gift, and solely his, without the Consent of a Great Council. ''

But to give you a more particular Proof of the Supreme and Absolute Power of J. E. M. & out Saxon Kings, as well during the Heptarchy as afterwards, in making and estab-P-.1?0, & liming Laws; I shall begin with the first we have extant, which are those of Ina,de'"' King of the West-Saxons, who began his Reigh An. 712. In the Preface to his Laws we find it thus exprefs'd, which I shall render out of the Saxons Copy, pub- Vid.Lam* limed by Mr. Lombard: I Ina, by or with God's Gift, sting of the West-Saxons, -with bard. Archaithe Advice or Councilof Cenred my Father, and Heddes my Bishop, and Ercenwold ">">"'• ^ ^ my Bijbop, and -with my Aldermen, andeldest Wites, or Wife Men of my Kingdom, do J^TV t' command, &c. Then in the first Chapter the King speaks in the first Person Plural; "' We bid or command, that all our People shall after hold fast or observe these Laws andDooms. From this Preface you may observe, t. That Kings are the Gift of God, and that God's Gift signified the fame with Dei Gratia; they are not the Creature of the People. 2. That Princes, for the better Government of their People, in the settling of Laws in Church and State, did then Consult, Deliberate, and Advise with their Bishops, Noblemen, and eminently Wife Men of their Kingdoms, whom for their Wisdom they honours with publick Employments in their Dominions. 3. That after such Consultation, Deliberation, and Advice, the Sovereign established and makes the Laws.

The next Instance I shall make use of, is out of the fame Author, in the Laws' ihu.iu of King Alfred, where, in the Conclusion of his Laws about Religion, and prefatory to the Secular Laws, he faith, / Alfred, King, have gatheredthese (Santlicnsf together, and caused them to be written; and then recites, that those that he liked not, with the Council of his Wites, he had rejected; and those he liked, he bad or commanded to be holden. And we may observe, that the King here speaks in the single Person, that He himself colletled or chose, and also rejetled, what Laws he pleased. The next material Illustration where the Legiflative Power then resided^ . . maybe found in the Laws ot King Edward the Elder, Where, after the Charge given to the Judges, the first Law begins, / WILL; and so in others. In the 4th it is thus expressed: Edward the King, with his Wites, that were at Exeter, stritlly enquiringby what means it might be better provided for Peace and Tranquility, &c. In the 2d and 3 d Chapter it is: WE alsoDeclare, Pronounce, or Sentence: And in the 7th, And I WIL L- In which Laws we have none, mentioned with the King, but his Wites ; and his Commanding, Willing, or Pronouncing in the Imperative Mood, is observable.

The next Laws I find are those of King Athelstan, which begin thus: / Athel- Ibid; p. 4fi stan, King, with theAdvice of Walfelm my High Bishop, and other my Bi/hops, com- sf*^ Ctndh manded or bid all my Rieves (i. e.Prafecls) of what Degree soever, to pay Tythes, &c. ^ And this he commanded his Bishops, his Aldermen, andPrapojtti (who were the Judges in the Country Courts) to do the fame. In these Laws, We, Cwzdon, is used, which, I suppose, is something more than Somner understands by his £uide, a Saying, Speech, or Sentence, and properly is, We will. But the Absoluteness of the King appears most in the 2 <5th Chapter, Wherein it is expressed, That if any of the Graves (i. e. Judges) do not perform these Commands, or be remiss in the Execw tionof those'he hath enjoined, befidtt be punijhed for his Excess of Contumacy, according to the Fines there set down.

King Edmund is the next of our Kings, whose Laws are transferred to us, and %/. Ctmit* the Proem tells us, that King Edmund assembled a Great Synod (or Council) to Lon- p- 4t. don, at the Holy Easter Tide : And the Persons summoned are stiled Godskind and A"'Ch' Worldskind, i. e. Clergy and Laicks. After the first six Chapters of Laws, in the Proem to the second Part of them, The King signifies to all Men, Old andToung, that he had ask'dAdvice in the Assembly of his Wites, both Ecclefiasticks and Laicks: And in

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the Laws it is often said, T'honne cwadoa, These we pronounce or appoint; and sometimes the single Person is used; and in other places, Us betweonan heoldan, It is holdcn betwixt us. Here we find the Great Council summoned by the King, and the constituent Parts of it to be she Clergy and Laity; yet still we find the Legislative Power in the King alone. ItiA p.444- ^° likewise m Title to King Edgar % Ecclesiastical Laws, it is thus: The Aa.Cb.96T* Laws which King Edgar, in a frequent Astembly or Council of the Servants of God, hathIbH. p. 455. ordained. Whereby you may fee, that the Enacting Part relates wholly to himself. The same KingEdgar, in his Charter to Glastonbury Abby, concludes it thus: Hone privilegii paginam Rex Edgarus, anno 12regni fui, facro feripto apud Londoniam communi Concilio optimatum fuorum confirmavit- So that though it appears this was in the Presence of a Great Council; yet the Granting and Enacting Part proceeded wholly from Himself.

Condi. 552. The Preface to the Laws of King Canutus, in Sir Henry Spelman, runs thus: T'lxfe are the WorldlyConstitutions, that I Will or Command, with my Wites Advice, that Men hold all over England. In most of the Chapters it is said, We teach, We bid, or command, We forbid: And in the Conclusion, it is in the single Person of the King,. NowI command all, and bid every Man in God's Name. And the Preface to the Latin Version of them faith, Hxc Junt Instituta Cnudi Regis Anglorum, Dacorum, Norwegarum, venerando fapientum concilio ejm, adlaudem & gloriam Dei, & fuam ReGest.Rerum galitatem, &c. Of this Canutm, William of Malmsbury faith, that he commanded lib. i. c. 11. to be observed for ever all the Laws of antient Kings, especially those made by KingEthelred his Predecessor, under the Penalty of the King's Fine, to the observing of which, he faith, that in his own time they were sworn to, under the Name of King Edward's Laws; not that he had appointed them, but had observed them. So that I think, upon the whole matter, nothing is more plain, than that our Englijh, Saxon, andDanish Kings, did not only call Councils, and preside in them, but that the Legislative Power was lodged solely in themselves.

F. I perceive the Authority of our ancient Lawyers is a little too hard for you to answer with your usual Distinctions; and therefore you seemingly deny their Authority, though in effect you grant it, as I shall shew you by and by: But as for your Quotation out of the Tear-Book, which you think sufficient to counterbalance all the Authorities I have brought, I think I may much better question the Judgment of those that gave that Opinion, since I can shew you that you yourself cannot allow it in all Points for Law: For in the first place, it is not there said, that it was so judged by all the Lords and Judges who were appointed to hear the Cause there mentioned; but only Fuit dit, que le Roy, &c. By which it seems to have been the private Opinion only of some one or more of the Lords or Judges there present: For it is not said, suit adjuge. And if you will have it to have been the Opinion of them all, pray read what follows after: Fuit dit quen temps le Roy Henry, & devant, le Roy fuit implede commeferoit autre homme de Peuple. Mes Edward Roy son fits ordeign que homme fueroit vers Roy per Peticion; Mesunques Roys ne feront adjugex.: Si nan per eux mefmes & lour Justices. So that if the former part of it be Law, the latter must be so too; and then it will directly contradict what you have quoted before out of Brailon: That in the time of Henry III. (in which he liv'd) there lay no Remedy against the King, but only by Petition: Whereas this Opinion makes him, 'before the time of Edward I. to have been liable to the fame legal Process with other Men. But notwithstanding, this Passage in the Tear-Book may very well bear a legal Interpretation, only by supplying what is indeed to be understood after the Words, non pas les Peers, & le Commune, [ viz. Sans asterndu Roy ] which as it was then true, so I hope it will ever be so.

But I think I can give you a much better Authority than this Tear-Book, to prove Ghaf. 21. where the Power of Making and Dispensing with Laws doth truly reside, viz..

The Solemn Declaration of the King, Lords and Commons, in the 25th of H. 8. (a Prince as jealous of his Prerogative as any of his Predecessors) where in the Preamble, read these Words: "It standeth therefore with Natural Equity and "good Reason, that in all and every sucb Humane Laws made within this "Realm, or induced into this Realm by the said Sufferance, Consents and Cusu torn, your Royal Majesty, and your Lords Spiritual and Temporal, and Com"mons, representing the whole State of your Realm, in this your High Court of "Parliament, have full Power and Authority not only to dispense with those,

"and tt and all other Humane Laws of this your Realm, as the Quality of the Persons ** and Matter shall require: Also the said Laws, and every of them, to abrogate, "annul, amplify and diminish, as it shall seem to your Majesty, and the Nobles u and Commons of your Realm, present in your Parliament, meet and conveni"ent for the Wealth of your Realm, &c. * Whereby you may plainly see, that the Power of Making, Abrogating, and also Dispensing with Laws, is by this Act ascribed jointly to the King, and the Two Houses of Parliament; and not to the King alone.

But though I do not affirm, that they have a Co-ordinate Power with the King in making Laws, yet they have a Co-operative Power therein, as yourself have granted; for what is Co-operation, but a Power of working together? and how can three distinct Bodies work together, without each contribute their share to pro-1 duce the intended Effect?

M. Perhaps I may have been too unwajy in my Expression: But gray answer, the Authorities I have brought from our ancient Engli/b Saxon Laws * wherein it seems plain to me, that the King had then the sole Legislative Power.

F. I grant, he had a chief Share in the Legislative Power; but not the Sole Power, that is, He could make no Laws but in the Great Council, and by their Consent: And this you might have seen as well as I, if you had not flily past by what made against you; and therefore, in the first place, to begin with your Instance of Off as giving that Boon to the Roman School, I think the Authority you bring for it is very slight: For though I own thatMatthew Paris, who writes his Lisey relates this Donation to have been made at Rome, without mentioning any Consent or Confirmation of his Great Council: Yet this seem* but an imperfect Account of the Matter ,• and according to the usual Way of the Monkish Writers of those Times, who are not so exact in such Matters as they should be: And therefore, though Offa did give, or vow these Pence at Rome; yet the Gift might receive its force from the Consent of his Great Council, after he came home: Since all his Laws, and the Acts of his Councils are lost, unless it be one, which Sir H. Sfelman hath given us from such Remains as have been saved out of the Libraries of several Monasteries at their Dissolution: And this contains no less than the Consent and Confirmation of his Great Council assembled at Cakuith, Anno 940. for the Foundation and Endowment of the Abby of St,Allans, as also that of another Council at Verulam, for the conferring of divers other Lands of his own to that Monastery. Now I leave it to any indifferent Man to judge, whether that King who could not bestow his own Demesnes upon the Church, without the Consent of the Common-Council of the Kingdom, could give away at once the 30th Penny of all his Subjects Estates for ever, without their Consents: I am sure the Donation of the same sort of Pence by King Ed-ward the Confejfor, which is now to be found among the Laws of KingPPiMamthe First, is said to be granted Omtmuni Concilio Regni, and that the Saxon Kings could not bestow their Lands upon Religious Uses. See Sir H. Sfelmans Councils, where Baldred King of Kent Spei.foncil. is an evident Example; who, though he had given the Manor of Mailings \nv'l'Xi}-?4°Sussex to Christ-Church, Canter bury; yet because his Principes, or Great Men, that is, his Great Council consented not thereto, it was revoked, until KingEgbert, and his Son Ethelwulf did afterwards renew the said Grant, with the Consent of n, p. 340; a Great Council held at Kingston, An. 840. as you may fee in the fame Volume, last cited. And I am sure after the Heptarchy, when our Kings were more power- / ful, the fame King Ethelwulf could not by his meer Prerogative grant the Tythes of his Subjects Estates to the Clergy, without the Consent of a Great Council of his Bishops and principal Men, held at Winchester, An. Gratia 8jj. and intituled thus; Celebris iUa donatio Ethelwulfi Regis decimamanfionis & omnium bonorum per ter- vu. VoL ram fuam Deo ?Jr Ecclesiœ fal~lx confirmatur. p. 34$.

As. I grant, that perhaps these Kings could not dispose of their own Lands, or the Estates of their Subjects, without the Consent of their Great Council, any more than the Kings of France could formerly; yet I hope they were absolute Monarchs for all that.

F. I beg your Pardon if I have been somewhat long in answering your Example os King Offa: But I will now shew you, that they could no more make Laws, than dispose of their own, or their Subjects Estates, without their Consent; and which you yourself might easily have seen* if you had pleased to have consulted 0 - Sir Ibid. torn, uSir Henry Spelman as diligently as you have done Mr.Lamhard: For there you p. »19. might have sound, that about the Year 712 King ha assembled a Great Council.

or Parliament wherein he made Ecclesiastical Laws concerning Marriages, efr. and Vid. Chronic did other things,ad concordiam publicam promovendam per commune Con/ilium, & Ajjert* Bromp. Col. sum Episcoporum,Principum, Procerum, Comitum, & omnium Sapientum Seniorum, & 848. tin. 54. popuhrum totimRegni- So likewise, if you will please to look into the Decem-Scrip~ tores, you will find how Altheftaris Laws were made by the Title of them, which runs thus: Hac sunt judicia qua Sapientes Exonia Confilio Adelfiani Regisinstituerunt, iterum apud Feuresham, & tertia vice apud Thundrcsfeldium, ubi hoc definitum\ Ftor. Wiirorti. jjmui& confirmatum est. So also King Ethelred held at London a Great Council, and A. D. 992. made Laws, ConfilioJujsuque Regis Anglorum Æthelredi, Procerumque suorum de ma Anglia, &c. Look also into the Title of KingEthelred's Laws in Bromptons ChroBrompt. ut nicle, where you will read these Words; Hoc eft Concilium quodEthelredmRex <&t sup. Col. 893, Sapientessui condixerunt adEmendationem ,& augmentum pads omni populoapudWodesto8f 4« cam in Mircena Landa, id est in terra Mircenorum, &c. Where by Concilium, must be

understood Law or Decree. To instance in one more out of the fame Author Uidi.C0l.S95. still, from the Title to another Set of Laws made by the fame King: Ha sunt Leges quas Ethelredm Rex & Sapientes sui conftitueruntapud Venetyngum ad Emendation Htm pads & felkitatis Incrementum. See likewise in Monasticon Anglicanum,the 1st Volume, Anno Dom. 1024- Canutm, Rex Anglia cum Confilio &Decreto Archiepiscoporum, Episcoporum,& Primatum suorum expulit Clericos inhoneste viventes ab Ecclefia Santli Edmundi, & tyLonachos in iliaconstituit. And the same King Cnute bestowed divers Lands, and other Privileges, on the Monastery then call dBriadricesworth (afterwards St. Edmundsbury) cum Confilio, & Decreto Archiepiscoporum, Episcoporum,Abbatum, Comitum aliorumque omnium Fidelium. The like we find in a Charter of King Edward the Confessor;by which he granted divers Lands and Privileges to the Abby of Westminster; Cum Confilio & DecretoArchiepiscoporum, Episcoporum, Comh turn aliorumque Optimatum.

From all-which it manifestly appears, that under the English Saxon Kings the Legislative, or Enacting Power, was in the Council of the Sapientes orWites, cotfjunctly with the King; and that none of these Saxon Kings could pass any Laws, or make any considerable Alteration in the State, without not only the Advice, but Consent of their Great Council; which then consisted of their Bishops, Great Lords, Principal Freeholders, and the Representatives of Cities and Towns, as "I shall prove another time, and was not left to the King, ad libitum, to call whom he pleased thereunto. And as the Word Decretum signifies Decree or Order; so likewise may the Word Confiliumhere signify something more than bare Advice, vk,. Agreement, or Appointment; which if you please to peruse any ordinary Dictionary, you may presently satisfy yourself in.

But before I dismiss this Argument} I cannot but remark upon your Instance of Vid. Gold- King Edmund'smaking Laws alone, because he there speaks in the first Person plumw'i Dift. ral; whereas if you will but consult the Proem to those Laws once again, you will, I doubt not, be satisfied of the contrary, for the Words are: Thathaving ask'd Advice of the Council or Assembly os Clergy and Laicks, that it seemed good to them all, as •well asto the King, and therefore we thm ordain: By which it appears, that the lastWords, wherein the Ordaining partresides, refer as well to the whole Assembly, as to the King.

M. The Government of our English Saxon Kings, is, I confess, very dark and obscure; though, according to our* ancient Historians, they seem to have been very absolute; though when we come to look into the Laws themselves, I confess they seem rather to have been limited Kings, than absolute Monarchs; though whether that Limitation proceeded from the original Constitution of the Government, or their own free Consent and Concessions, is a very great Question; though I rather incline to the former, and shall give you my Reasons for it when we come to discourse on that Subject: But in the mean time, I must tell you in Reply to what you have said, that if we consider the Times not long after the Conquest, you will find the Supreme Legislative Power to have been then wholly in the King (as it is so still) notwithstanding some ambiguous Expressions to the contrary; or else our Kings would not be, what I think they really are, absolute H.S.B.I). Monarchs. But to descend to Times less obscure, it is certain, that when the /.720,-21. Norma}J Conqueror first came in, as he won the Kingdom by the Sword, so did

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I

 Dialogue the Fifth. iij

he govern it by his Sole Power: His Sword was then the Scepter, and his Will the Law: There was no need on his part of an Act of Parliaments much less of calling all the Estates together to know of them after what Form, and by what • Laws they would be governed. It might as well be said of him, as in the flourishing and best Times of the Roman Emperors; Qttod Principi placuh, legis habet Vtgorem, that whatsoever the King willed, did pass for Law. This King, and some of his Successors, being then Ux^tuttUtc, and having a Despotical Power over the Lives and Fortunes of their Subjects, which they disposed of for the Benefit of their Friends and Followers,Normans, French and Flemmmgi, as to them seem'd best, i But as the Subjects found the Yoke to be too heavy and insupportable; so they addressed themselves in their-Petitions to the Kings their Sovereigns* . to have that Yoke made easier, and their Burden lighter, especially in such Particulars of which they were most sensible at the present time. By this means they obtaih'd, first to have the Laws of Edward the Confeffor; and by the fame (that is to fay, by pouring out their Prayers and Desires unto themj did they obtain most ot" the Laws and Statutes which are Bow remaining of King Henry the Third and Ring Edward the First. From whom, as also from HenryI. and King John, we m»y derive all those Privileges we noWlehjoy; most of which, as they were issued at the first, either in form of Charters under the Great Seal, or else as Proclamations of Grace and Favour; so do they carry still this Mark of their first procuring by these Expressions, "The King wiffeth, the King commandeth, theKing ordaintth, the King pro-vtdeth, the King grants, &c. And when the Kings were pleased to call their Estates together, it was not out of an opinion that they could not part with their Power, or dispense their Favours as they thought good, or abate any thing jof the Severity of their former Government without the Approbation and Consent of their People; but out of a just Fear, lest any one of the Three Estates (I mean the Clergy, Nobility, and the Commons) should insist on any thing which might be prejudicial to the other two. The Commons being always on the craving Part, and suffering as much perhaps from their immediate Lords, as from their King, might possibly have asked some things which were as much derogatory to the Lords, (under whom they held) as of their Sovereign Liege the King, the chief Lord of all. In this respect the Council and Consent, as well of the Prelates as the Temporal Lords, was accounted necessary in passing of all Acts of Grace and Favour to the People: Because that having many Royalties, and large Immunities of their own, with a more near relation to the Person, and a greater Interest in the Honour of their Lord the King; nothing should pass unto the Prejudice and Diminution of their own Estates, or the Disabling of the King to support his Sovereignty.

F. I confess you have given a plausible Account concerning the Government of William I. whom you call theConqueror.- Whereas if it be more exactly look'd into, it will be found that he had no more Power of making Laws without the Consent of his Great Council, than any of his Predecessors; neither had lie any such Despotical Power as you imagine, over the Lives and Fortunes of all his Subjects; for whether we consider them as Normans,French or Flemmings, or whether as Englijh, it will be all one: For if, as Dr. Brady supposes, these latter were quite turned out of their Estates, and that they were by him wholly given to the former; then these French andNormans, being Conquerors together with him, would never have submitted to any other Government than what they enjoyed in their own Countries, each of which was then governed by Kings or Dukes, together with a Great Council, or Assembly of the Estates: And we find, that when succeeding Kings would have oppressed and tyrannized over their Heirs and Descendants, they, together with the old Englijh, took up Arms, and defended their Liberties , and never laid them down until they had obtained their just Rights and Liberties contain'd in the Great Charters of Kingjfohn, and Henry the Third. And which (as Mattr. Paris himself tells us in the Reign ofKingjohn) contained for Anno the greatest pan the ancient Laws and Customs of the Kingdom: And therefore by the Statute, called Confirmatio Chartarum, 2 j Edw. I. it is adjudged in full Parliament, Tliat the Great Charter,and Charter of the Forest, jhall be taken at Common Law. So that they were not any new Grants, but rather Confirmations of their ancienc Rights and Liberties, as my Lord Coke very well observes in his excellent Preface to his id Institutes; where he tells us, That Magna Charta is for the must f<vt de*




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claratory of the principal Grounds of the Fundamental Laws of England; and far the Residue, is Additional tosupply some Dejcils of the Common Law: With whom likewise agrees one of his learned Successors, the lace Earl of Clarendon, in his Survey of the Ijeviaihan, when he tells us, That those Laws 'and Customs which were btforethe Conquest, are the fame which this Nation or Kingdom have been ever since governed by to this Day. ■-}.'*• ••TMr- "

And as for the Laws of Edward tlx Confessor, though it is true, that William the Conqueror regfanted and confirmed them; yet was it no more than what he was oblig'd in Conscience and Honour to perform and observe, .since he was admitted to the Crown by the general Consent of the Clergy, Nobility and People; and at his Coronation (as well as afterward) swore to observe the Laws of Ring Edward: And by the way, though these Laws are caUed the Laws of King Edward, yet William of Malmsbury long since observ'd, That thy were calledhis Laws, Non quas tulit, fed quas obfervaverit; that\i% he had only collected them into one body, and ratified them with the Assent of his Great.Gouncil. And that these.Laws were more than once sworn to, and confirmed by-King William himself, appears by the Story of Frederick Abbat of St. <&lbans, who frighted him into a Confirmation of them by Oath, for fear of , a general Insurrection of the People: So that if he, or his Son Rufmimade any Breaches upon their Liberties, they were, ex postliminio ,. restored to them by the Magna Charm's ofHenry I. King Stephen^ King Henry II. King John, and King,Henry the Third. And those Oppressions, contrary thereunto, are branded by all Historians as notorious Perjuries and Wrongs to the Subjects. , ■■, • 'i- . -• ''

But that King William the First altered nothing material in the Fundamental Constitutions of the Government, whatever he might do in some less material Customs or Laws, which he brought with him out of his own Country, appears plainly by this, which you cannot deny, that he often assembled his Great Council, (as hisEnglish Predecessors had done) and that in them were dispatched all the great Causes and Complaints of the Kingdom. And for this, I will give you the Testimony of two very ancient Historians: The first is Radolphm deDiceto, who in Anno 1071, tells us, That the Plaint of Wulstan Bijhop of Worcester, was heard and ended inConsilio celebrato in loco qui vocatur Pedreda, coram Rege, & Doroberniæ Archiepifcopo, & Primatibm totimRegni. The next is Gervasitu Do_ robernensis, who thus relates it of Lanfranc Archbishop of Canterbury;Eligentibm eum Senioribm ejufdem Ecclesia, & Epifcopis, ac Prjncipibus, Clero, & Populo Anglian, in CuriaRegis, in Afjumptione SanSla Maria. Here the Epifcopi & Principes, Bis" hops and Princes, the Cleri & Populus,the Clergy and People, or Laity, were the fame Persons, and only expressive of one another, and all had Votes in this Election. -; \ . • ''.'/;• •■

M. I pray give me leave to interrupt you a litjle: 1 will not deny but that the Conqueror did often assemble Great Councils of his Bishops, and Great Lords, commonly called in Historians, Principes or Primates; yet I think I may boldly affirm, that there were no Englishmen in those Councils, or that they made any Laws for the Benefit of Englishmen, who were kept under by those Normans, who then enjoyed their Estates; much less was there any such thing as Commons either by themselves, or their Representatives in those Assemblies, which then consisted wholly of the King's Feudal Tenants in Capite, and of no other, as Dr. B. hath very plainly sliewn us: And when King William made Laws, it is much to be doubted whether he made them so much as with the Consent of his Great Council, or not ; for the Title to the French and Latin Copies of his Laws, runs thus, put into English, These are the Laws and Customs which William the King granted to all his People of England afterthe Conquest, or Subduing of the Land: They are the fame which Edward the King, his Kinsman, before himobserved. In this Preface we have only to note, that the Laws are exprefly said to be the King's Grant, and the Supplemental Laws writ in the Red Book of the Exchequer, are by way of Charter, or Grant, thus; Wilhelmus RexAnglorum, &c. Omnibus hominibus fuis Francis, &Anglis, falutem; and all along the Authoritative Parts are expressed by Statuimus, volumus, interdicimus, prohibemus, prxcipimus. So that by .these Expressions in his Laws, the absolute Sovereignty of the Conqueror in the point of Law-giving is manifest. I shall content myself with a very few Authorities, because the matter is so plain; Ordericus Vitalis faith thus, Eamque (i. e. England)Gulielmus Rex fuis Legibus com

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. \ -■■; Dialogue the Fifth. ztt;:

mode fubegh. And Eadmer, Contemporary with the Conqueror, in his History^
thus; Ufus atc/ite leges, qucu patres fui, & if se in Normannia fokbant, in Angliascribere Fol. 6.
volem: Cuntta divitui, Jimul & humana ejus nutum expetlabaht. From whence you
may fee, that all Matters, as well Spiritual as Temporal, depended upon his sole
Will.

And though we have no particular Account of what Laws his Son William Rufus made, yet we may presume, according to the Testimony of Historians, that he was altogether as absolute in those Councils he call'd, as his Father, as may be seen in Eadmerus his Account of his Transactions with Archbishop Anselm. So that it is certain he governed by his own absolute Authority, raising what Money he pleas'd upon his Subjects. 'Tis true, that in the Reign of his Successor Henry the First, the People found some little Relaxation, by reason of the Charter he made them, containing several Mitigations of the Severity of the Feudal Laws, as also those of Forests; yet even, these are said to be made by his own single Grant and Authority, though I confess it was granted in a Great Council. So likewise in Florence ^ of Worcester, we find that in 28 of Henry I. 'that King confirmed the Ails of a Sy- PaT^o;.nod, or Council of the Clergy of the Province of Cantetbury, and gave his Royal Assent to them. • • • •

As for King Stephen, though .he was a notorious Usurper, andsetupandcrown'd by a Faction ofBisliops, and some few Temporal Lords; and that not long after J. K. M.G. his Coronation, he in a Great Council at Oxfordgranted to all his Subjects another P*g- * 15Charter of divers Privileges, and Freedoms from the former Exactions: Yet the Words^of the Charter are in his own Name, and by his own Authority solely, as • • appears by these Words; Observari pracipio, & cofistituo. But Richard, Prior of • fkxham alias Hagulstad, in his Chronicle, closes his Charter thus; Hxc omnia con- y^, x. Scrip! cedo,&confirmofalvaRegia, £s jttfta Dignitate mea. From which Words it is plain, CW. 314. that he never meant to patt with any of the just and neceflary Prerogatives of his Anno "S^Crown,.. ' " j tl, -. . \:'„- -v. •■'

! So likewise King Henry the Sdcond, in a Great or General Council held at London, v«l. Spei.Conconfirmed the Great Charter granted by King Henry the First, his Grandfather;."/. tom.i. b.ut this Charter also runs wholly in the King's own Name, without any mention/"'- 54of its being assented to either by the Bifliops or Nobles: And as for the Constitutions made at the Great Council of Clarendon, though that King made the Archbishop?, Bishops, with all the Clergy, as also the Earls, Barons and Nobility, all swear to observe them; yet the enacting Part proceeded only from the King, as appears , by their <yery Title thus, Afstjfœ Henrici Regis. faBa apudClarendon, &c. And .Mat. Paris concludes these Constitutions with, Decrevit enim Rex. From

Ehence, it appears*, that it was the King alone that decreed and constituted those I I jhftftiflet faymuch, of fhelGreat Councils in Richard the First's Time, since he /„ pw finedid not reign long enough to.call many, but-in that held at Nottingham, we find.<fc«, f. 419«b4FtbSKing 'dilfefeedjGo-ctr«L<se Canville and others ; and that the King appoin- , fed to be given, him t,Wo Shillings on every Carucate of Land throughout England, CSre. Ftprn whenceil.ihjall observe that the Wotds Rex pracepti, confiituit, Sfc. as they areinithis HiftoriarjE.jfiiew, that: -the King then had solely the authoritative Power otA^ng all Coafultatioins^of,, these Councils into binding Lawst, even where Money'.wastQ be levied on the,Subjects, and.that seizure was to be made of their Estates.,, But to come; to the mor^jtrx)uipleforne and perplex'd Reign of King John,: ifcWhich there were many Gre*rÆounciIs J-.ol.denj yet Lsliallinstance but in some fjw'of them mentions in Mat. Paris, as t,ha*.of St.Album, hs\A-\xf>.Jiffery Fitx.-J>1. *ot. f$er and the Bifhpg^of Winchester, in this -KiOg's Absence, - where exparte Regis it vras firmly enj'oyn.'dj..underpenafryiof LiseLa.np, Limb,;that the Laws ot King ÆfeByi, feist Grand^t.her, fliquhl bft. kept byj.all iu his Kingdom. FrOm whence wfc wa^roWerye, that the Laws,ha_d their .Fq£<e only seomthe King's Authority, as JPPWs by this,Expression, ,expqype J&gisfirmer est,pm<.eptum.And-.when afterWife.at^www^gii^t.^^a^j^BipeU^ to sign the first Qfogto Charta,. I own it was done^ki- a Grea^jf&uncil of Bjsliops, Eajrjs and Barons, as well those who stood forjhinj a^^ainst,himl:..yet that it proceeded wholly from lus own good. Will, is plain frpm ^jSbarta deffbjtsta of thisiKihg, as.appears by. these Words,. lAd emendationem^jgn^nostri, fjMVtatua, & fy»a <yoluntate noftra dedimm concejp.mwpfo nobis, & j,E. M.G. b^Mmxeft);!!, hMj^cyatesJubscv'iptfti. From, all whichQ»«ers of Liberties wcp. 211.

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may conclude, that the Petitions of the People were drawn into the Form of a Charter, and passed under the King's Seal as his meer voluntary free Grants and Concessions, without their Votes, Suffrages and Authority. And sometimes such Rights of Liberties have been bestowed and declared by our Kings, by way of Answer to the Petitions of the Lords and Commons; and that this Custom is not yet discontinued, appears by the Answer of KingCharles the First to the Petition of Right* when no other Answer would please the Commons but the King's express Assent to their Petition, in these Words, Smt DroiEt fiuB comrne est desire. But to return to the Reign of King Henry the Third. *

F. I beseech you, Sir, give me leave now to answer what you have already alledged out os our Historians for the Supreme and Absolute Power of our Kings, before we proceed further to less obscure Times. And therefore I must tell you, that you have in this long Speech of yours made use of all the Artifice 'of an Advocate for a Party,vrz* in urging all that can any way make for you, and slily passing ^ over whatsoever may make against you- And to begin with your Story of King ^ William the First, I shall not now dispute whether there were any Englishmenin those Great Councils, or whether they consisted only of Tenants in Capite, since I shall defer that Question till anon. But as for the Englijb you have put upon the French Title of the Laws of this King, it is not fairly rendered; for in the French it is, Apres le Conquest de la terre, which doth not always signisie a subduing byForce, but by any other ways of Acquisition different from that of Hereditary Succession; Matt. Paris, whichMatt. Paris was long since aware of, when, writing of this King, he fays, Rex p. 941. Anglia ex Cottquestudicitur, tamen quod beattu Edvardm, eo quod harede caruit, Regnum Sir H. Spell, kgavit Willielmo BastardoDuci Ncftnannorum. With whom Sir Henry SpeUman, in his Gltf. Tit. Glossary, agrees, WtHtelmm primtuConqueftor dicitur, quia Angliam conquisivit, i. e. onquejtus. ^^jjfcj^ purchased, non quodsubegit. And the learned Sir 'John Skene, in his Book • Tag. 39. Tit. de verborumsignificatione, writes thus, Conquestm signifiesLands quhilk ony Person «S Conquejl. quiris and pojsejjis, privato Jure, vel fingulari titulo, vel donatione,velsingulars aliquo contraEht. And therefore 1 very much doubt, whether or no the Latin Version of these Words, Ap es le Conquest de la terre, post subaSiam termm, be as antient as the French Original, and be not rather the Version of some Clerk or Monk who lived long after.

But whether these Laws were not intended as well for the benefit of the English as Norman Subjects, I appeal to this Title itself, tho' you have omitted patt of if, V. Lrges Ha sunt Leges & Consuetudines quas Gulielmtu Rexconceffit Unrverfo Populo Anglia post Gull. I. Edit.subaftam terram. So that unless the English were none of the People of England, fra/mf £^e^e ^aws were as we^ intended ft>r the one as the other: And I appeal to that Archaiomm.Charter of King William you have now quoted, whether or rio it doth not begin, per Rog. Omnibni hominibussuis Francis & Anglis; by which Words certainly the English, as Iviisden. well as Normans, had an interest in those Laws and Privileges therein granted. I mention this only by the by, in answer to what you have said, 1 J

But to return to what I am chiefly concerned to speak of, the King's sole Legislative Power. In the first place, I shall not deny, but as this Kingdom is a limited Monatchy, so it is suitable to the Honour and Dignity of the Monarch, that all Laws and Constitutions should run in his Name, and are often said to be made by him, tho' in a Political or Legal Sense, they could not be made without the Advice and Consent of his Great Council or Parliament. And that this was the Custom in the Time of William the First, as of all others his Successors, I needau. p. 170. quote only the 55 th Law of this King, in these Words, Prout Statutum est eis (scH* Liberifhominibus) & illis a nobis datum & concejsum jure hareditarh in perpetuum, per Commune Concilium totiusRegni nostri pradifh. From whence you may observes that this King could not then make Laws without the Consent of the Commott' , Council of his whole Kingdom: And tho' he might do many arbitrary and illegal Things to the prejudice of the old English Liberties, yet this was no more his Right, nor any more to be quoted as a Precedent, than his seizing upon the B^ ihops and Abbots Lands, and violently taking away the Plate out of Churches and Monasteries (as Historians tell us he did) cOuld give him a Right to them. • I have not much to observe upon the Reign of WiUiam Rusus, since we have pone of his Laws left us, if ever he made any. But thus much we plainly find from the Historians, and especially Eadmerus, that he called divers Great Councils of all the Nobility of the Kingdom; especially about his difference with Anselm,

whom,

whom, it is plain, he could not condemn without the Consent of this Great Council. But to come to the Reign of King Henry the First, it appears plainly by W. Malmsbury and Matt. Paris, that he was elected and crowned King by the common Suffrages and Favour of the Clergy and People; and certainly that Council, whose Votes could make a King, was also necessary to all such Laws as he was to make : And you yourself have granted, that this Charter of his was made in a Great Council; and it appears in Matt. Paris, as also in the Laws of this King, p# Pm cpublished by Mr. Lambard, "Ihat the Archbijhops, Bishops, Barons, Earls, Viscounts, or p. 62. '*' Sheriffs,Optimates .& totius Regni Anglia, were Witnesses to this Chai ter. And I can tell you of a very antient Charter of King John, which recites that those Chart* modeLaws were made de Communi Conjilio, & AJsensu BdronumRegni Anglix. It being rations feodi usual in succeeding Ages, at the Coronations of our English Kings, to confirm, M^gniSMli. make and ordain Laws, de AJsensu Baronum Regni, vel per Commune Concilium RevnLL'^'jl

. r ■ it T o J van. in Arc hi"

1. e. the Parliament, as it was afterwards called. VIS ArchUpis

As for Hemy the Second's Reign, it is apparent by the Laws of this King, in copi. Cant. SpeUmans Councils, that he granted his Charter in a Great or General Council, and consequently they must likewise give their Assents to it, as well as to that of his Grandfather Henry the First. And tho' in the Constitutions of Clarendon, the King alone is said to have made or decreed them; yet nothing is plainer than that the King could not make them without the Advice and Consent of his Great Council; or else to what purpose were they to be called? and if their Assent was necessary, certainly they had also a hand in making those Constitutions.

But that the King could not condemn any Peer or Great Man of the Kingdom in those Days, without a legal Tryal in the Great Council of the Kingdom, I need go no further than a Council summoned by Hubert Archbishop of Canterbury, as King Richard's Justiciary in his Absence ,• where Roger Hoveden tells us, that having shewed the Letters of Earl John to the Bishops, Earls and Barons, per Com-' mum Concilium Regni definitum efl, quodComes Johannes dijsaifietur; which interprets that Passage you have quoted out of the fame Author, that the King, in a Great Council, diseized Gerard Canville and others; that is, by the Authority and Sentence of the said Council. And so likewise in the same Sense is to be understood those Words you mentioned, The King appointedto be given him, constituit Jibi darif two Shillings on every Plough-land; that is, he desired it to be given him by them : For if he could have taken it without their Consent, to what purpose did he propose it in that Council ? if he could have absolutely demanded it, why should he only request or desire it of them?

So likewise for the Great Council in King John's Time,, nothing is more plain than that they were Parties to all the 1 Laws that were made in his Time; and that even the Great Charter was a Statute to which their Assent was likewise necessary, I shall shew you by and by, when I come to speak of the Great Charter of King Henry the Third, and the several Confirmations of it by his Successors. But if either William Rufus, King John, or any other King, ever levied any Taxes upon the People, without Consent of the Great Council or Parliament, it was contrary to our ancient Laws and the Liberties of the Subjects, and particularly to the 55th Law of William the First (part of which I have already cited) It begins thus; Volumus etiam ac firmiter pracipimus & concedimus, ut omnes.liberihomines totius Monarchies Regni nostri pradiBi habeant, & teneant terras suas, & pojsejjiones suas, bene & inpace libere ab omni exaShone injufta, & ab omni "Tallagio ; ita quod nihil ab eis exigatiir, vel capiatur, nifiServitium suum liberum, quod de jure nobis T facere debent, &facet e iemntur, & prout Jlatutum est eis, &c. So that whatsoever was done at any time contrary to this Statute was illegal, and consequently ought not to be quoted as any part of the King's Prerogative.

But that the Nobility and People of England had divers Rights and Liberties before the Time of King John, and of his granting that Charter, appears by its Conclusion in these Words; Sahis Archiepijcopis, Abbatibus, Prioribus,Templariis, In Matt. Hospitalariis, Comitibus, Baronibus, Militibus, & omnibus altis tarn Ecclejiasticis, PersonisPar"'" v,tf quamsecularibus libertatibus, qudsprius habuerunt. And as for the rest of the Liber- t'A° TMms' ties granted by this Charter, tho' they are said to have' been granted from the?" 'J: King's meer good Will, yet that is recited only to make it more strong against himself, .'since the Nob'Lty and People of England claimed those Liberties as their ancient undoubted Right. And the fame Author (as I have already hinted) Idem 254.

Gg 2 exprefly

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exprefly tells us, that this Charter contained Maxima ex fane leges antiques.

And a little lower he relates where those Liberties were to be found, Capitula quoque legum & Itbertatumqua ibi Magnates confirmari quxrebant partim in Charta Regis Henrici fuperim fcripta sum, fartimque ex LegibmRegis Edwardi antiquis excerpta. So that they were not only the effect of the King's meer Grace and Favour, as you suppose. But if you please now to descend to the Reign os Henry the Third, and so downward, from which Time our eldest printed Statutes bare Date, let us fee if I cannot answer all those Arguments which the Gentlemen of your Opinion have thence brought for the King's sole legislative Power.

As. Tho' I do not allow of your Notion of the Conqueror's not being properly and really so, as I shall shew you another Time, when I shall more particularly consider that Argument of the Right of Conquest in King Williamand all his Successors ; therefore I do at present readily assent to your Proposal, and it was the very thing I was coming to : And therefore I stall begin with the Magna Charta of Henry the Third, which begins thus, Know ye,that we of our meer and free Will have given these Liberties. The Statute de Scaccario, anno 51 Hen. 3. begins thus; "The King commandeth that all manner of Bayliffs, Sec. The Statute de DistriBione Scaccarii made the fame Year, runs thus; It is provided and ordained. The King •wiUeth. The S.atute of Malbridge 52 Hen. $.And he, i. e.the King, hath appointed all these Atis, Ordinances and Statutes to be observed of all his Subject's. If we come to the Reign of his Son Edward the First, and begin with the Statute of "Westminster, 1. it is there said in the Preamble, 'these are the Acts of King Edward the First, made at his first Parliament by his Council, and by theAssent of the Archbifiops, Bishops, &c. And in the first Chapter 'tis said, The King hath ordained and establishedthese A&s. And tho' I grant that in divers Statutes of this King, as in this of Westminster, it is recited that the King, by the Advice of his Council, or Assent of the Archbifcops, Bishops, Earls, Barons, &c. have made, provided, ordained or establisted such and such Laws; yet it is plain, that the enacting or decreeing part is wholly ascribed to the King, in all those Statutes wherein such Words are found, as I stall make it appear more plainly by the Statute of Aclon Burnel, made in 13 Edw. I. where it is said, The King by himself, and all his Council hathordained and established. And in the Statute of Westminster 3.18 Edw. I. chap. 1. Our Lord the King, in hisParliament at Westminster, at the Instance of the great Men of the Realm, hath granted, provided and ordained.In the Statute De its qui ponendi sum in AJJizes, 11 Edw. I. Our Lord the King in his Parliament holden, &c.hath ordained, that, &c. The Statute of Quo Warranto 18 Edw. I. runs thus; Our Lord the King, at hisParliament holden at Westminster, of his special Grace, and for the AffeBion he beareth unto his Prelates, Earlsand Barons, hath granted, that, See. 1 Edw. II. begins thus; Our Lord the King hath granted. The Statute ofGavelet, 10 Edw. II. begins thus; It is provided by our Lord tlx King, and his Justices. The Statute of Carlisle, 15 Edw. II. begins thus j "she King unto the Justices of his Bench fendeth greeting. Whereat of late vie haveordained, &c.

But if we come to the Reign of his Son Edward the Third, the Prefaces to most of the Statutes made in his Reign run thus; Our Lord the King, by the Assent of the Prelates, Earls, &c. and at the Request of his People,hath granted and establijbed j or else at the Request of the Commonalty, hath ordained, &o The like Stile continued during the Reigns of Richard the Second, Henry the Fourth and Henry the Fifth, with very little Alteration only it ran thus commonly; At the Request of the Prelates, t Dukes, Earls and Barons, and at theInstance and special Request of the Commons, the King hath ordained, &c. Whereby we fee a plain difference in the Phrases of the Statutes of those Times; for it is the Lords that give their Assent, whereas the Commons only Petitioned; but it is the King alone who ordains and esiablistes. I confess indeed, that under some Princes of bad Titles, as in particular, under the Minority of Henry the Sixth, there began some Alteration in the form of penning the enacting part of most Statutes that were then made, and that unto those usual Words, which were inserted ordinarily into the Body of the Acts, from the IT. S. B. R.p. beginning of the Reign of that King, viz.. bythe Advice and Assent of the Lords Spi711; ritual and Temporal, and at the special Instance and Request of theCommons, there was

added, by the Authority of the said Parliament. But it is still to be observed, that tho' these Words were added to the former Clause, yet the Power of granting and ordaining was still acknowledged to belong to the King alone, as appears by these



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Acts of Parliament of that King, viz,, 2 Hen. VI. ch. 2. 8 Hen, VI. cb. 2. Where it is said,, 0«r i«W King, by theAdvice and Assent, and at the Request aforesaid, hath ordained and granted, or ordained and established by theAuthority of this Parliament. And thus it generally stood (tho' a general Rule may have some Exceptions) till the beginning of the Reign of Henry the Seventh, about which time, that usual Clause at the special Instance orRequest os the Commons, began by little and little to be laid aside, and that of their Advice or Assent, to be inserted in the place thereof: For which I do refer you to the Statute Book at large; which Form, I confess, continues to this Day ; yet even in Henry the Seventh's Time, in the first of that King and the seventh Chapter it runs in this Stile, 'the King our Sovereign Lord, of bis noble and abundant Grace, by the Advice andAJfent of theLords Spiritual and Temporal, at the Supplication of the Commons in the said Parliament assembled, and byAuthority of the same, ordaineth. And tho' the Statutes of Henry the Eighth do generally agree in their Stile with those of his Father; yet in his Time also many Acts were drawn up in Form of Petitions; as 3 Hen. VIII. ch. 14.Praying your Highness, the Commons in this present Parliament assembled. And 5 Hen. VIII. ch. 4. Praying theCommons in this present Parliament. And in the Reign of his Son Edward the Sixth, tho' I grant that most of his Acts do run in the usual Form; yet this one is very remarkable, 1 Edw. VI. ch. 4. Wherefore the King ourSovereign Lord, &c. at the humble Petition and Suit of the Lords and Commons in this present Parliamentassembled, doth Declare, Ordain and Enatl, by the Assent of the Lords Spiritual and Temporal, andthe%om- .mons in this present Parliament assembled, and by the Authority of the same: which last Words, tho* they may seem to refer to the Parliament, and may make Men think H. S. B. B.p. that the Lords and Commons did then pretend some Title unto the Power of ma- 712. king Laws: Yet neither Advising nor Assenting are so operative in the present Case,as to trans ferthe Power of making Laws to such as do advise about them, or assent unto them. Nor can the Alteration of the Forms and Stiles used in antient Times import an Alteration of the Form of Government, unless it can be shewed (as I think it cannot) that any of our Kings did renounce that Power which properly and solely did belong unto them, or did by any solemn Act of Communication confer the same upon the Lords and Commons convened in Parliament: And therefore upon the whole Matter, since in almost all our most antient Statutes, p. F# Q it is precisely, express'd that they were made by the King himself; the meaning of 41." those general Words used in latter Times, that the Statutes are made by Authority of Parliament, are particularly explained in former Statutes, viz.. That the King Ordaineth, the Lords Advise, the Commons Consent, as by comparing the Writs with the Statutes that expound the Writs will evidently appear.

F. In answer to those Authorities you have now brought, I doubt not but I shall give you others of as great weight, that prove the direct contrary to what you now assert. To begin with your Instance of Magna Charta, I shall shew that those Charters that were granted and confirmed by Henry the Third, were not his Acts or Grants alone, but the Acts also of the whole Kingdom represented in Parliament. We have two express Declarations for the one, in the 25th c&Mam.ifi. King Edward the First; where is to be found in the Parliament Roll of that Year, a Confirmation of the great Charter of Liberties and Forests, in these Words, which I shall render to you inEnglish, out of the old French, for your better understanding. Know ye, that the Honour of God and HolyChurch, and for the profit of our whole Realm; We have granted for m and to our Heirs, that the Great Charter ofFranchises and Forests, which were made by the common Assent of the whole Realm, in the "Time of King Henryour Father, should be held in all Points without any Blemijhment. So like- N. 50. Dorfi. wise we find another Confirmation of those Charters in the Parliament Rolls of the 1 jth Year of Edward the Third, which being in oldFrench I shall render it into English. Imprimis, It is accorded and assented, that the Franchise of Holy Churchand the Great Charter of Forest, and the other Statutes made by our said Lord the King, and his Progenitors thePeers and the Commons of the Land, for the common profit of the People, shall be firmly kept and maintained inall Points. So that you may hence plainly fee, that the King himself, with the .whole Parliament, declare, and that in two several Kings Reigns, that the Great Charters were not only the free Grants of King Henry, but also the joint Acts of the Common Council of the whole Kingdom; and why King John's Charter should not be made by the like Authority, being one of his x Progenitors, I see no reason, especially if we consider that that Charter was first

drawn

drawn up by the Barons in the Form in which we find it, and was passed by that King, under his Great Seal, in that vast General Council or Assembly at Running; mead. And certainly, whoever can draw up a Law, and can offer it to a Prince to confirm, and without whose Consent and Acceptance it would not be good, must needs have a sliare in the making of it.

As for your other Instances of those old Statutes made in the Reign of Henry the Third, though I grant they begin, as you fay, in the King's Name : Yet if you would but have read a little further, you would have found that in divers of them the Bishops, Earls and Barons gave their Consents to them : And for the Proof of this I shall begin with one of the antientest Statutes we have left us, viz.. that of io H. 3. Merton, in the Preamble of which it is recited, Provisum e/1 in Curia Domini Regis apud Merton, where after the Parties that were present at the making of the Laws it concludes thus in the Latin Copies, ita provisum eft & concejsum tarn a prœdiblisArchiepifcopis, Episcopis, Comitibm, Baronibns, quam ab ipso Rege, ejr aliis; where you fee the providing and enacting part is ascribed to the Bishops, Earls and Barons, as well as to the King, who is here mentioned almost last of all. And tho' I confess that there was then no set Form of penning of Statutes in that honest and plain Age, when Parliaments did not last so many Days as they do now Weeks; and that the King's Judges and Council drew up the Acts, after the Parliament was up, in what Form they pleased, sometimes leaving out any mention of the Bishops, sonVetimes of uhe Temporal Lords, and most commonly of the Commons; yet that they did all give their Consents to such Acts, appears by the Statute of Westminster 1. which you have already cited, where the Assent of the Archbishops, Bishops, &c. Counts, Earls, Barons, and all the Commonalty of the Land, is exprefly mentioned. So likewise the Statute of the yist Year of King Henry the Third, concerning Measures, begins thus;Per ordinationes totius Regni Anglia suit menfuru Domini Regis compojita. ■ .1.;:

But farther to convince you, that in the Opinion of the Lord Chancellor, and those learned Judges who framed the Writs that were issued out upon any of these antient Statutes, you will find that they who lived in those very Times, believed those Statutes were made not by the King alone, but by him and the Common Council of the Kingdom; which Writs, as you may fee in the Register Yt. R'g'st- of Writs, runs thus; RexVicecom, &c.Salut. SiAfecerit, &c. tune fummonias,&c. B. Bnv. p. 174- quod Jit cor am Justiciary s, &c. Ostenfuru quare, cum deCommuni Concilia Regni Nostii M ^Ttuium ■d"gI''el'rovifU7f' fi> &c- as you may fee in the Writs granted upon the Statutes of Brevia'dcSta-Magna Charta, Marlbridge, Merton, Glocesier, &c. which have all of them this or thetuttm like Recitals, cumde Statuto,or juxta formam Statuti, de Coummuni Concilia Regni noftri

Ang. indeprovist. The like Instances I could give you upon the Statute of Ma, Ib: idge, and divers other old Statutes, in which the King, by the Statute itself, seems only to have enacted it; and yet you may fee that our Sages of the Law were very well convinced that those Statutes were made not by the King alone, but by the whole Common Council of England: So that there is no avoiding the Conclusion, that the Great Council, or Parliament, had then a great Share in the Legislative Power; unless you can suppose the King alone to have been the whole Common Council of the Kingdom, mentioned in these antient Writs.

But as for the rest of your Instances of Edward the Second's and Edward the Third's Times, I think I can shew you that there is no general Rule to be drawn, from some few Examples; for though it is very true that the first ofEdward the Second begins thus; Our L<n>d the King hath granted, &c. Yet it is plain, by the Statute itself, that it was made in and with the Assent of Parliament. The like I may fay of the rest of the Statutes of this King's Reign, though they do not all agree in Form, as you may fee by the Statute of Sheriffs, 9 Edw. IL Our Lord theKmg,by the A/sent of the Prelates,\Earls, Barons, and other great Estates, hath ordained and established. And though you would fain draw some mighty Consequence from those Phrases in the Statutes oŒdwardthc Third, and many of his Successors, by the A/sent of the Lords, and at the Request of the Commons; as if the Consent of the latter were not as necessary as the former :Yet indeed it is a meer difference in Form, and proceeds only from hence, that that Estate which found itself grieved, always Petitioned the King for Redress, and which amounted to as much as a Consent; for you shall always find that the petitioning Partstill refers to that Body which was then oppressed, without their giving any other Assent; for certainly their requesting to have an

Act \

Act made, doth necessarily express their Consent. And to prove what I have now said by Examples, pray see the 8th of Hen. VI. c. i. where it is recited in the Preamble, "That our Sovereign Lord the King) willing graciously to pro«* vide for the Security and Quiet of the said Prelates and Clergy, at the Supplitc cation of the said Prelates, &c. and of the Assent of the Great Men and Com"mons aforesaid, hath Ordained and Establifh'd. *Where you may see, that the Assent of the Prelates is not here at all mentioned, because it was needless, as being made at their Request. And if Praying and Requesting should destroy the Legislative Power, I doubt whetherEdwardlll. did not give away his, in his 14th Year, in a Statute concerning the Subsidy of Wools. The Preamble runs thus : "Nevertheless the King prayeth the Earls, Barons, and all the Commo"nalty, for the great Business which he hath in hand, &c. that they would grant • cc him some Aid upon Wools, Leather, &c. Whereupon Deliberation being had, "the said Prelates, Barons, and Commons of the Kingdom, have granted him «' 40 Shillings to be taken on every Sack of Wool."

But to convince you, that in the Reigns of Edward IU. and Richard H. the Three Estates had a concurrent Authority with the King in the Legislative, I shall give you two Precedents more out of our unprinted Parliament Rolls: The first is 31 Ed. TEL m. 13. which, being a Title to certain Statutes, begins thus: Quadam Ordinationes& Statuta, fa&a pro communi militate Regni, per Regem, Pratlatos, Duces,* Comites, Barones, & CommunitatemRegni Anglia. So likewise in Stat. RoBo( 5 Rich. II. m. 21. the Title is, Quadam Concordia, five Ordinationes,satire de communi affenfu Regis, Procerum, Magnatum, & Communitatis Regni Anglia. Where no Man can doubt but that the Word Communitates, in these Records, must mean the Commons, all the other Estates having been already mentioned.

But to return to the matter, to let you fee that not only the Commons, but also the Lords, have been oftentimes Petitioners, pray see these Authorities. The 1st is the Statute of Provisors, ijEdw.$. runs thus: <% Our Sovereign Lord the "King, with the Assent and Prayers of the Great Men, and the Commons of "the Realm .of England,hath Ordained, &c." And in the 4th of Edw. IV. it is recited thus : " The King, by the Assent, Advice* Request, and Authority, '* of his Lords Spiritual, Temporal, and Commons, &c. hath Ordain'd and ," Established" In the Preamble of the Statute of 1 Edw. VI. c. 4. it is thus: # *' Wherefore the King, our Sovereign Lord, minding and entirely desiring—— "at the humble Petition and Suit of the Lords and Commons in this present Par"liament assembled, doth Declare, Ordain and Enact, by the Assent of the Lords "Spiritual and Temporal, and the Commons in this present Parliament assem"bled, and by the Authority of the same/' And that the Assent of theCommons was always necessary to the making of Laws, not as bare Petitioners, but as Assenters too, as well as theLords, appears by this Protestation or Declaration of the Commons to Edw. Ill, which is still to be round in theParliament RoSs of 51 of 4& that King, which I shall read to you in English, out of the Law French, which perhaps you are not used to : tc Also the said Commons do petition our Lord the "King, that no Statute or Ordinance may be made or granted at the Petition

* of the Clergy, unless it be by the Assent of the Commons; neither that the said '.,'. - ,

* Commons should be obliged by any Constitution, which they may make for their

* Advantage, without the Assent of the said Commons: For they will not be obli

* ged to any of your (viz,, the King's) Statutes or Ordinances made without

* their Assent."

M. I do not deny, but that the Assent of the Commons, as well as Lords, hath been allowed as necessary for a long time; but whether the Consent of either at first was so, is a great doubt, since we find the first antient Statutes (as I have already observed) to have been made wholly by the King alone. And I think the most antient Laws are the best Interpreters of the Original Legiflative Power j F. F. G* J. and thence it appears, that many Provisions, Ordinances and Proclamations, made P* ?«• heretofore out of Parliament, have been always acknowledged for Laws and Statutes. We have among the printed Statutes, to this purpose, one called the Statuteof Ireland, dated at Westminster the pth of February, 14 Hen. III. which is nothing but a Letter of the King toGerard FttzrMaurice, Justiciar of Ireland. The Explanations of the Statute of Gloucester, made by the King and his Justices only, were received always for Statutes, and are still printed with them. Also the Statute

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tute made for the Correction of the 12th Chap, of the Statute of Gloucester, was signed under the Great Seal,, and sent to the Justices of the Bench, after the manner of a Writ Patent, with a certain Writ closed, dated by the King's Hand at Ibid. p. 51. Westminster, 2 Muii 9 Ed.l. requiring, tc That they should do and execute all and "every thing contained in it, though the fame doth not accord with the Statute ** of Gloucester in all things." 19 Hen. III. a Provision was made<fe Ajstsa Prasentationis, which was continued and allowed for a Law until the Statute ofWestminster II. which provides the contrary in express Words; So that in the old Statutes it is hard to distinguish wrjat Laws were made by Kings in Parliament,, and w*hat out of Parliament, especially when Kings called the Peers only to Parliament, and of those how many, or whom they pleased (as it appears antiently they did) it was rto easy matter to put a Difference between a Council Table and a Parliament, or between a Proclamation and a Statute. Not but that I own, in old Times there was a Distinction between the King's Special or Privy Council, and the Common Council of the Kingdom; and yet his Special Council did sit with the Peers in Parliament, and were as Part thereof, and were of great and extraordinary Authority there, as may appear by divers Acts of Parliament, some of which I have already recited, as the Statute of Westminster I. where it is said: These are theAEis of Edward, made at bis 1st Parliament, by his Council. The Statute of Ailon Burnel, 13 Ed. I. hath these Words: The King for himself, and by his I Council, hath Ordained and Established. And in Articulis superChartas there are these

Provisions: Nevertheless, tlx King and his Council do not intend:. And, Both the King and his Council, and allthey that were present, WiU and Intend, that the Right and Prerogative of his Crown stall be saved to him in allthings. And before these the Com1 E. 3. Stat. nans often petitioned the King; as 1 Edw. III. where Magna Chartawas con1. Preamb. firm'd, the Preamble is thus: At the Request of the Commonalty, by their Petition made beforethe King and his Council in Parliament, by the Affent of the Prelates, Earls "and Barons, &c. I could give you many more Examples of this kind, but that it is needless; only these may suffice to let you see, that the King's Council had a great Authority in those Times, and perhaps was as antient as the Great Counr cil it self.' j. E. M,G. Yet I cannot forbear to give you one or two Authorities more, to prove that the p. »34- King, with the Advice and Consent of a Council of his Earls, Barons, and other Wife Men, hath sometimes taken upon him to repeal all the Statutes made in a' precedent Parliament, as contrary to the'Laws and Customs of this Realm, and to his Prerogatives and Rights Royal, tho' granted by him in manner of a Statute. suit. p. in. And for this you may fee the Statute of 15 Ed. III. at large in Pultons Collection!

So likewise the Preface of the Statute of Westminster, 20 Ed. III. rtins thus: That "We (viz,, the King) by the Assent of Our Great Men, and other Wife Men of "our Council, have ordained, &c." Where you may observe, that here is no mention either of Lords Temporal or Commons. I could give you more Examples of this kind, were it not too tedious. From which Statutes it seems plain'.to' me, that this King did sometimes exercise a Prerogative of making and repealing Laws without Consent of Parliament. H. S. B. D. I" tne next place, I desire you to take notice, that these Words you so much p. 721. rely upon, viz,. By the Authority of this presentParliament, and, Beit Enabled by the King, Lords and Commons, as if they were three co-ordinate Estates, was never in use till the Reign ofHen. VI. and Hen. VII. two notorious Usurpers. And thai the King's single Answer to the Lords and Commons Request is a sufficient Act of. Parliament, without any mention of the concurrent Authority of the Lords and Commons enacting the fame, the Precedent I gave you of K. Charles's Answer to the.Petition of Right may suffice, though you have not vouchsafed to give me any Re^ turn rb it. So that I think these Instances may serve, instead of many Arguments,' for the proof of this Truth, That the Legistative Power (as we phraTe it now) "iY •wholly and solely in She King, although restrained in the Exercise and Use thereof, byconstant Custom, unto the Counsel and Consent of the Lords and Commons: For Le le Roy veult, or the King will have it so, is the Imperative Phrase, by which the Propositions of the Lords and Commons are made Acts of Parliament. And let the Lords and Commons agitate and propound what Laws they please for their Ease arid Benefit {as generally all Laws and Statuteyare more for the Ease and Benefit of the Subjectj than the Advantages of the King) yet as well now, as formerly, in the,

. —..« ■ • •-' '. • time

I

time of the Roman Emperors, only quod Principi placet, legis habet •vigorem; nothing but that which the King pleases to allow of, is to pass for Law: The Laws not taking their coercive Force (as Judicious Hodker well observes) from the Quality of such as devise them, but from the Power that giveth them the Strength of #.z>.L. Laws. So that, to determine the Matter logically, the Legislative Power is ei- 49ther Largely and Improperly, or Strictly and Properly taken: Largely taken, it signifies any Power, which hath the Authority to provide the Materials of a Law, and to judge what is just, convenient, or necessary to be enacted ; and to declare when any Matters, duly prepared, are made and granted into a Law: And this Ministerial fort of Legislative Power, improperly so called, the two Houses have and exercise, yet by Authority from the Crown. But then the Legislative Power is Strictly and Properly taken for the Power of Sanction, or for that Commanding, Ordaining Power, which gives Life and Eeing to the Law, and Force to oblige the Conscience of the Subject ,• and this is radically and incommunicably in the King, as Sovereign. And therefore (as I have already said) all the antient Acts run in the King's Name alone; and from the Legislative Power, thus properly taken, the Laws are properly called the King's Laws, and the Violation of them is punifliable as such.

F. You have made a very long Speech, and taken a great deal of pains to perplex a Question in it/elf very easy to be resolved; and to which I need return you no other Answer than what BraElon tells us, in his third Book, Chap. p. De Aclionibm. Nihil aliud poteft Rex in terris suis, cum fit Dei minister & vicarita, nist id solum quod dejure poteft: Nec obstat quod dicitur, Quod Principi placet, legis habet vigorem; quiasequitur in fine legis, Cumlege regia, qua: de imperio ejus lata eft; i. e. nen quicquid de voluntate Regis temere presumptum est, fed quodcotifilio Magstratuum Juorum, Rege authoritatem prastante, & habita super hoc deliberation. So that you fee, in the time when this Author writ, the King could do no more by his Prerogative, than the Law allowed him to do; And tho' it is true, it is his Will and Authority that gives Vigour to the Law j yet this only, as it is declared in Parliament, and in those Acts which had before received the Consent of his Great Council, here called the King's Magistrates:■ And therefore you have done what you can, to confound the difference between the King's Declaration, or Writs explaining and enforcing the Common Laws of England, or else interpreting former Acts of Parliament already made; which was a Prerogative often exercised by the King and his Council „ in Parliament, which then consisted of all or most of the Judges, and Great Officers of the Kingdom, of which I shall speak more at large by and by. And I confess, we are much in the dark, because our antient Parliament Rolls are all lost, and consequently the Statutes therein contained : So that we have almost nothing left of them, but such Copies or Remains, as were preserved by Judges and Lawyers in those and succeeding Times, whilst they were still in being.

Therefore I think I may at present boldly affirm, that if that, which you call the Statute of Ireland, was so far from being founded upon some former Statute not now in being, it was no Act of Parliament at all, but only the King's Writ to the Chief Justiciar of Ireland, commanding and enforcing the Common Law of England, in the Case of Coparceners, to be observed in Ireland. The like I may say to the Explanation of the Statute ofGloucester which might be no more than the Interpretation of the King and his Justices, of the Sense of some Articles in that Statute; and this for its greater Authority was exemplified under the Great Seal, and so sent to all the Courts at Westminster, and often to the Sheriffs of all the Counties in England; yet without altering the Statute in some Points, as *you would have it. The like I may fay of that Statute of ABon Surnel; and therefore it is very rashly done, to conclude, that tho' we have not the Original Acts and Records of Parliament of that time, that therefore such Statutes were made by by the King alone, in his Privy Council. So that I must still continue of the fame Opinion with the Great Selden in this Point, who in his Mare Clausum tells us: "It is most certain, that according to antient Custom, no Answer is given either "by the King, or in the King's Name, to any Parliamentary Bill, before that "Bill, whether it be brought in first by the Lords, or by the Commons, "hath pafs'd both Houses, as is known to all that are versed in Parliamen"tary Affairs." Which if it hath been the antient Custom of this Kingdom, it signifies very little in what Form the Law is express d, whether in the : , Hh King's



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King's Name only, as giving the last Assent thereto, or else as his Concession to the Lords and Commons Petition, as long as you grant that their Assent was necessary: For sure, whosoever petitions another to do a thing, which he cannot impose upon him without his Request, must give his Consent to the doing it, unless you can prove, that it could be done whether the Petitioner would or not. And this, by the way, will serve to answer an Objection, which, tho' you insist much upon it, is scarce worth it, viz,, the King's Answer to the Lords and CommonsPetition of Right, which was indeed no Grant or Concession of any new Rights or Privileges from the King to the People; but only a Declaration of several antient Rights and Liberties of the Subjects, which had been very much broken and infringed of late; and therefore the King's Answer was very proper, Soit DroiB faitl commeest desire :But that there is a Right plainly acknowledged, I suppose you will not deny.

The next Mistake you fall into proceeds from your confounding the King's Extraordinary Council in Parliament with the King's Special or Privy Council, and in a manner making this a fourth Estate; by whom (as you suppose) as well as by the Lords and Commons, Laws were often made j whereas indeed neither the one nor the other is true. For tho' I grant that there is often mention made, in our antient Statutes or Records, of the King's Council in Parliament; yet this is not to be understood of his Privy Council, but of a Special Council, with whom our Kings formerly fate during the Time of Parliament, and before whom and to whom, we find, by divers Records, that both the Lords and Commons did often petition, as you your self do truly affirm; but that this was not the King's Privy Council, but another quite different from it: And to which it seems to me that Fleta refers, in his 2d Book, Cap. 2. Habet enim Rex Curiamfuam in Conciliosuo in Parliamentssuis; prœsentibw Pralatis, Comitibm, &c. And this Council consisted of all the great Officers of the Kingdom, viz,, the Lord Treasurer, Chancellor, and Keeper of the Privy Seal, Master of the Wardrobe, the Judges of the King's Bench, Common Pleas, Barons of the Exchequer, Justices Itinerant, and Justices of Assizes, with such of the dignified Clergy, as it pleased the King to call: Which that they were altogether distinct from the King's Privy Council, appears plainly by this, that the latter never included all the Judges, nor did the Privy Council ever exercise any Judicial Authority in Parliament, as this Council did in those days; but that this Council consisted of the Parties above mentioned, see the Sta/» RastalV tute of Efcheators, made 29 Edw. L And in the Placita Parliamentarians that Year, . fip Pulton s tneStatute runs thus: Per Concilium Regis concordatum est coram Domino Rege if so 2*?* ''** consentieme, &c. But in the Close Roll of this Year it is clearly explain'd who were Tin. Tarl. of this Council, their Names being there particularly recited, viz,, all the Great 29 Edw. I. Officers above mentioned, together with the Judges of the King's Courts, and sol. 273. Justices Itinerant, &c. Which is likewise explained by the Parliament Roil, 9Ed.IL f ° Edw I ^ex vo^u't iu°d m''~'ftS CanceUarint, 7%esaurarim, Barones, Scaccarii, Justiciarii, & wniy.rfor/j. a?" deConfilio Domini Regis Londin. extstente, convenirent. I could give you many Numb. 9. more Examples of this kind, but I shall give you but two more, to prove that this Council in Parliament could not be the King's ordinary Privy Council. The Rot. 97. first is in Placit. Parliament. 2 Ed. III. in a Cause betwixt Thomas Fitir Peter andAlter nora Wife of John de Mowbray, coram Rege. The Record is long, but concludes thus, directed to the Justices : Et si difficulty aliqua fubfuerit, quare pramijfa facere non pojfitis, tune Placitum Hlud usque in frox.Parliamentum nostrum adjornetis, ut ibidem tune inde fieri valeat quod de Consilio nostro fuerit faciendum. '  '•Ur ( •■ t </•

By which we <may very well gather, that this was none of the King's Ordinary or Privy Council, or else to what purpose was this Cause adjourned to the Meeting of the next Parliament; since, if it had been to have been determined by the Privy Council, it might have been heard forthwith. if. 12.13. I shall give you but one Instance more, out of the Close Roll of the 41st of the King, wherein a Cause between Elizabeth Wife of NicholasD'Audley, and James D'Audley, in a Controversy between them (touching certain Lands contained in the Covenants of her Marriage) is said to have been adjudged devant son Conseil, e'est a scavoir, Chancellor,Thresorier, Justices, & autres Sages, affemblez, en la Chambre des Etoiles; i.e. before his Council, viz.. the Chancellor, Treasurer, Justices, and other Wise Men, assembled in the Star-Chamber. So that when any thing in our old Statutes is said to be ordained by the King and his Council,, it. is

always

always to be understood, not as if this Council were a fourth Estate, whose Assent or Advice was necessary to the making of Laws, for then they would have had the fame Power still ,• But Only according to the Custom ot those Times, when most Acts of Parliament were drawn;by them, and that the King palVd none without their Advice : It was then said to be done by the King and his Council (vfx}';Aa Parliament) and I conceive the PoWer of this Council continued'rill the Beginning of the Reign of Henry-zhz seventh/ when this Court was by Act of Parliament annexed to that of the Scar-Chamber, where also this Council of the King used t<J meet before (as appears by the Case I have last cited) and had afterwards ■only to do with Criminal Causes/and that as well out of as in Parliament: And that King Henry the seventh not caring to exercise his Judicial Power in private Causes, as his Predecessors'had dortej or to make use of their Advice either in the drawing or passing of Bills, which now began to be drawn by-Committees in either Houses wherein those Bills were 'preferred, this Council 'came by degrees to grow quite out-of use, as it -is at- this day. I hope you will pardon this long Digression, which I have been drawn into, to rectify a common Mistake of the Gentlemen of your Opinion, who, when they find any thing in our antient Statutes1 or Records,- wherein the-King's Council is mentioned, presently entertain strange Fancies of the Antiquity and Authority of the Privy Council.

'M. 'lkta so-fat-from thinking this Discourse you have now made to be at all tedJdtfSj that I $ve you many thanks for if, since it gives me a light into many things'^which I tfGffifess I did hot'know before; and I shall better consider* the Authdrit&fc you have now given me, and if I find they will hold good, shall come oVer'tb your Opinion in that point, tho' I am not as yet satisfied as so the Legislative Power of t>he. two Houses; and therefore pray proceed to answer the rest of the Precedents I have brought on that Subject. .

F:-I shall readily1 comply with your Commands; andtherefore to come to those Statutes of the ijtb and 20th ofEd. III. which you suppose to have-been repealed by that King without the Consent of the Lords and Commons. 'I grant -indeed, that the Statutes you mention were intended to be repealed by the King, without Assent of Parliament: Yet this was not done by himself and his Council alone, as* you suppose; but, by a Great Council of Earls and Barons, which the Kings of England in those Days were wont td:call upon emergent Occasions, arid for the doing of that which they thought Parliaments could not, or would not so readily perform; as in this pretended Repeal of the Statute you mention. And tho', I grant, this was a great Breach upon the fundamental Constitutions of the Kingdom, yet that it was done in such a Great Council as I have now mentioned, I refer-you to this pretended Statute it self, and to your Recital of it. And that the King often called suefi-Great Councils, appears by an Agreement of Exchange made for the Castled of Berwick, between King Henry IV. in the fifth Year of his Reign, and the Earl of Northumberland; where the King promiseth to deliver to the Earl, Lands ana Tenements to the value of the Castle, by these Words (which I shall render out of French from the Original which remains in the Tower) : By the Advice and Assent tf the Estates of the Realm, and of his Parliament (so that the Parliamenthappen before the Feast of St. Lucie) otherwise by the Assent of his Great Council, and other Estates of his saidRealm, -which the King will cause to be assembled before the saidFeaft, in case the Parliament do not happen,&c. » f "1 :.:•-•.•> .■ '• . '•

And yet notwithstanding this high Strain of Prerogative, neither King Edw. III. himself, nor the Parliament, were satisfied with this Repeal of those Statutes you have mentioned ; but in the next Parliament, held in his 17th Year, passed a for- Rot. Farl. maland legal Repeal of them, as by the Parliament Rolls of that Year, remaining *7Ed-1in thc'Tower, doth plainly appear; and which I could give you at large, did I not ^"OT*-23 fear to be too tedious. But I think it fit to let you know this, because most ordinary Readers seeing no more appear in Print in our Statute Books^ are apt. to imagine, that the Kings of England in those Days did often take upon them, without Authority of Parliament, to make and; repeal Laws. But as for your next Instance of the Statute of 20 Ed.III. it is much weaker; since,- tho' I confess that in the Preface to these Acts there is only mention of the Great Men, or Grantz. (as it is in our old French) and other Wise Men of our? Council; .-yet I shall prove at another time, that under this Word -Groan, were/meant the.Lords in Parliament, as by the Wise Men of our Council are understood the Commons. And it

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appears by the Writs of Summons and Parliament, of the 20th of Edward III. • that the Commons were present at this Parliament; therefore it seems most reasonable to interpret the Sense of many ancient Statutes, wherein the King alone is said to make and ordain Laws, by those later or more modern ones, wherein the King by the Consent of the Lords and Commons, or by Authority of Parliament, is said to have ordained them: Since the true Stile and Meaning of ancient Laws, Which were penned with the greatest Brevity, ought to be still interpreted by the modern ones, and not the modern ones by the ancient. So that I am ot" the Learned Mr. Lambard's Opinion, who in his Arckaionom, or Discourse upon the v . 2<Jo High Courts of Justice in England, exprefly tells us, "Thatwhether the Laws are Edit. 1635. "fad to be made by the King, and his Wife Men, or by the King and his Council,or hit « Common Council; or by the King, his Earls, Barons, and other Wise Men, or "after such other like Phrases, whereof you meet with many in the Volumes of m Parliaments: It comes all to this one Point, namely, That the King, his Nobi"lity and Commons, did ordain and enact the fame. And which is more, if you "shall find any Acts of Parliament seeming to pass under the Name and Autho"rity of the King only, as there be some that have that shew indeed; yet you <c must not by and by judge, that it was established without die Assent of the other "Estates.

As for the rest of your Insinuations, rather than Arguments against the Antiqaity of those Expressions, Be itenabled by Autlmity of Parliament, or, Be it enabled by the King, LOf-ds and Commons; which bear so hard upon you, to prove that these last have a share in the Legislative, that they were introduced in the Reigns of Hen. Viand VII. two Usurpers, and but in the Nonage of the former j I think I stiall be able to (hew you, that you are very much out in your account; for there are much ancienter Authorities, wherein the fame Words, or others equivalent, have been, used in our Statutes: And first, pray call to mind the Statute of Measures already recited;where it is said, 'that by the Consent of the wiiole Realm of England, the Measure of our Sovereign Lord the Kingwas thm made, &c. which certainly must mean

Tag. z-j. the Assent of all the Estates assembled in Parliament. And my Lord Coke tells us in his 3d Institutes, of an ancient Record that he had seen of the. 7th of this King, wherein it was said to be Enabled by the King, theLords SpirituaJ,Temporal, and Commons. But since I have given you Precedents enough of Statutes, which are said to be made or ordained by the King, with the Assent of Lords Spiritual and Temporal, and Cons mons; I will shew you one where the King is not at all mentioned; and that is in Rastal's Statutes, 4 Hen. 4. cap. 24. concerning Aulnage of Clothes, which runs thus; Be it ordained and accorded by the said Parliament, without any mention at all of the King. And to let you fee that these fatal Words you except against, were in use before the Reign of Hen. 6. pray see p Hen. 5. cap. 4. concerning the Mifprifion of Clerks in writing, which runs thus j"the King hath now declared, and ordained by Authority of this present Parliament, that the Justices, &c. which must Certainly refer to the Lords and Commons, unless you can make the King alone to be the whole Parliament : Whereas if that Phrase had began from Usurpation, it would have been first found in the Statutes of Henry the 4th. But to let you fee that Edward the 4th, though no Usurper, yet did not think that these Words did abate any thing of his Royal Prerogative, pray fee the Statute Book in the 4th of that King, Cap.i. wherein it is recited,That, the King, by the Advice, Affent% Request and Authority of the Lords Spiritual and 'Temporal, and Commonsin Parliament assembled, hath ordained and established: And that by Assent of Parliament, and by Authority ofParliament, is all one and the fame, since the Aflent of Parliament makes its Authority: Pray fee the express Judgment in this Point of the Lord Chief Juf

Pagi 104. tice Crew and Justice Doderidge, given in the great Cafe of the Earldom of Oxford, reported in JudgeJones's Reports.

To conclude; Though I do not deny His Majesty's Negative Vote to all Acts of Parliament, yet this Prerogative can be concluded only from his giving his last Aflent to a Law; for when a Bill begins from himself,. the Two Houses have likcwise»a Negative upon him; which is evident in an Act of Pardon, which proceeds originally from the King, and being sent down to the Parliament, though neither the Lords nor Commons can add or alter one tittle to, yet may they notwithstanding his prior Assent, refuse the whole Bill if they please, though already pasc'd under the Great Seal. And though I likewise grant, that it is the Le Roy le Veuk, that by yielding the highest and last Assent, gives the enacting force to the Lawand thus, I grant, the King may in a Logical Sense be said thereby to make the Laws according to that known Maxim, Quod dat formam, dat effe rei • Yet this does nos hinder but in a legal Sense, according to the express Declaration of our old Lawyers, and Acts of Parliament, the Law^s owe their Obligation to the joint Consent of King and Parliament; and his giving his last Assent or Form to the Law, no more proves his sole Legislative Power, than it would do that of the Lords or Commons, if either of them by t;he Constitution of the Government wefe to give their Assents last thereunto. So that I think upon the whole matter^ no Man can reasonably deny but that legally the Two Houses of Parliament have also their mare not only in training, but enacting of all Bills _that shall pals; for otherwise they would signify no more than the Committee of Articles in Scotland, or the King and Council of England in relation to Ireland; the former of which draws up all Biys that are to pass in the Parliament of that Kingdom, and the latter must approve or reject all Bills that shall pass in the Parliament of Ireland; Whereas the Authority of our Parliament consists in their consenting to, and enacting together with the King all Statutes whatsoever. And this Distinction I think may very well reconcile BraBon with Fortescue; the former of which fays, Quod ges ligant fitum L^mem (meaning the King) and the latter (in the place I have already cited) affirms, that the People are governed by those Laws, quasifse fert, which they themselves make: And this I think is to ascribe to the King as much Bower as is requisite to a Civil Sovereign, and yet to leave a sufficient lhare to the People to secure themselves from Tyranny

M. I must beg your pardon if I cannot be satisfied with your Division of the Legislative Power, between the King and the Two Houses of Parliament, since it is against the Sense of our old Lawyers Glanville and BraBon,who, as you yourself acknowledge, make the King the Sole Legislator- And though I confess Fortescue gives the People a share in it, yet he is but a modern Author in comparison as the other two, and writ to support the usurped Title of Henry the Sixth. So that I cannot comprehend how the Two Houses can have any lhare (properly speaking ) in the Legislative Power, without falling into that old Error of making the King one of the Three Estates* and so co-ordinate with the other Two: Whereas if the King be a Monarch, that signifies in Greek the Government of one Person, whereas by giving the Two Houses a part in the Legislative, you divide it into three several (hares. But indeed there is so close a Conjunction between all the Parts of Sovereign Power, that the ope cannot be separated from the other, but it will destroy the Form of the Government, and only set up an irregular Commonwealth in its place, which will scarce be able to hold long together, without falling into perpetual Quarrels and Disputes about the Encroachments upon each other s Power and Privileges.

And it appears as well by the whole Tenor of .our Laws, as also by divers express Statutes, that the King is the Sole Supreme, and consequently the Sole Legislative Power: The first of these I shall prove from the common Indictments of Treason, Murder, Felony, &c. Which run always, Encounter la Corone, (Jr la Digmtie de Roy; and the Process against such Offences are called the Pleas of the Crown, because they are against the Crown and Dignity of the King. So that it is not the Dignity and Authority of the Lords and Commons which is violated, but the Dignity and Authority of the King.

In the next place, this Opinion is contrary to the express Declaration of divers of those very Parliaments which you pretend have exercised a Jhare in the Legislative: For you cannot deny, that many of our ancient, as well as modern Statutes, were made and drawn up in the Form of a Petition from the Lords and Commons, or both of them, to the King: And it irvery strange, that one Fellow in the Su-1 preme Power should so humbly petition the other. But, 2. though Time hath altered the Form of Petitioning into BiUs, yet both Lords and Commons have been often used to call the King, Our Dread Sovereign, Our Sovereign Lord, Qur Leige Lord, and the like; and to stile themselves, We your Majesty's most Humble and Faithful Sub' jttls, or most Dutiful and Obedient Subject's;and in that humble Stile, to beseech him to enact such and such things; which sure they could have done al one, had they been co-ordinate with him in Law-making. Lastly, If they were Copartners with him in the Supreme Power, how came they to declare (as they did in the Preamble

< to

to the Statute of the 25th of Henry VIII. which you yourself have quoted) thattlie Realm of England is an Empire, governed by one Supreme Head and King, unto whom the Body Politick of the Nation', compacted of several Sorts and Degrees of People, divided in Terms of Temporality and Spirituality, owe and bear, next unto God, a Natural and Humble Obedience? Now how came they here farther to declare this Supreme Head of the Clergy and Laity, to be furnislied with Plenary, Whole and entire Power by the Goodness and Sufferance efAlmighty God? Certainly they can have no share in it if it be plenary, wholly and entirely in him :• Or how came they in the 1st Statute of Queen Eliz,. c. 7. (being a Recognition of the Queens Supremacy) to acknowledge, that all Power, Temporal and Spi-; ritual, was deducted from her, as the Supreme Head, and that they were her mostFaithful and Obedient Subjects; and that though they did in Parliament represent' the Three Estates of this Realm, yet that She was the only Supreme Governor thereof: Which was pursuant to a Statute to the fame purpose, in thezd of Edw. VI. e*l* wherein it is declared, 'That aS Authority of Jurisdiction, Spiritual and "Temporal, is dividedand deducted from the Kings Majesty, as Supreme Head of these Churclxs and Realms. Not to mention the Oath of Supremacy itself, That the King or Queens Highness is the only Supreme Governor of this Realm: Which these Statutes would never have acknowledged, had it not been consonant to our ancient Common Law j by which it is expresly declared in that old Law Book, (written as it is supposed by Bishop Bretton) in the very first Leaf thereof, in the Name of King Edw. I. himself j We will, that our Jurisdiction be-above aS other Jurisdictions;which had been spoken in vain, if all other Powers had not been derived from, and so sub-v ordinate to, the King's. Besides, I could prove this farther from History and Matter of Fact. •

F. 1 thank you, Sir, and I desire I may answer what you have now said,- besore you pass to another Head; for I doubt the time will not give us leave to discourse much further on this Subject to Night. In the first place therefore, I must, tell you, that the main Foundation of your last Arguments is founded upon a Supposition which I altogether disown, viz,. Co-ordination or Division of the Sovereign Power between the King, and the Two Houses: For I have always supposed, that the King continues still Supreme, and that (as the Modm tenendi Parr*liamentum declares) He is Principium, Caput & Finis Parliament!; that is, he can call and dissolve Parliaments when he pleases; and likewise, that the Executive Part of the Government rests solely in him, as also the Power of making War and „ Peace: And even in the Legislative itself, that the King hath more eminently (though together with the Parliament) a Supreme Enacting Power, without which it cannot be a Law. All this being consider'd, you will find that here is no Division of the Legislative Power; since neither the King, nor the Two Houses, have it solely and compleatly in themselves; but it is jointly executed by them all Three, as one entire Politick Body or Person. So that neither can they make any Law without him, nor he enact any without their Consent; and he, by giving his Consent last, gives it the Force and Sanction of a Law, and he is therein the Supreme, i.e. the last or ultimate Power, (in the true Sense of that Word) nay, the only Supreme Power, unless you could suppose two Supremes, that is, two Highest Powers at once in the fame Kingdom: But that for all this, the Two Houses are not subject to the King in Matters relating to Legislature, may farther appear, in that the King cannot command them to give him what Money, or to pass what Laws he pleases: Since if he should go about to do so, they might (as I suppose you yourself will grant) lawfully disobey him; which they could not do without apparent Disloyalty, and high Disobedience, were they in this, as they are in other things, relating to the Peace and Defence of the Kingdom, subject to his Commands, when legally issued.

But to return you a more particular Answer to what you have said, to prove the King to have the sole Legislative Power: As to what you prerei>aed I have quoted out of Glanville, if you please better to consider of it, you will not find that he*gives the King any more than an enacting Power, together with his Great Council: For though he tells us, Quod Principi placet, Legis habitVigorem; yet mark what follows, eas scilicet quas superdubiis in confilio definiendis Procerum quidtm confilio, & Principis antecedente Authoritate constat ejfepromulgate. Where, by the last confilio, is meant somewhat more than meer Advice, as I have already proved. But as for




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BraElon, though he agrees with Glanville in making the King's Authority necessary to the Essence of a Law: Yet he is more express than the other in making the Advice and Consent of the Great Council, or Commonwealth, also necessary to its being, as you may remember by these Words; Cunt Legis vigorem habeat, quicquid deConfilio & de confenfu Magnatum, & Reipublica communi Sponfione, Authors tote Principis pracedente, justefuerit definitum.

But further, to let you fee how much you are out in your Argument, whereby you would prove from the Form of our Indictments of Treason, &c. That the King hath the Sole Legislative Power of the Kingdom; I (hall shew you, that all our ancient Laws, as well Common as Statute, do declare the contrary: Since divers Acts of Parliament have expresly affirmed, that such and such Offences were Treason, not only against the King, but against the King and the whole Realm too: Pray take these Instances; fee the Statute i Edw. 3. c. 1. Wherein Hughde Spencer, both the Father and Son, are by the King and Parliament declared Traitors and Enemies of the King, and of his Realm: See likewise 28 Hen- 8. c. 7. Wherein the Crown is settled by Act of Parliament on the Heirs ofhis Body, begotten on Queen Jane, or by any other after Marriage; and that the Offenders that stall interrupt suchHeirs in their peaceable Succession, they, with their Abettors, Maintainers, &c. stall be declared and adjudgedHigh Traitors to the Realm. And therefore divers ancient Indictments in Stanford's Pleas of the Crown, are laidcontra pacem Regis & Regni. And that the Parliament hath reserved to itself a Power by the Statute of the 25 th of Edw. 3. to determine what Crime shall be adjudged Treason, besides conspiring to kill the King, and those other Offences specified in the same Statute, you may consult the Statute at large. But that these Offences can be nO other than an Endeavour to alter the Government, or Fundamental Laws of the Kingdom, I think is evident, since all Offences relating to the Lives, or Honour of the King, Queen, and their eldest Son, are there particularly specified j and it was by Vertue of this Statute, that the late unfortunate Earl of Strafford was first impeached by the Commons, and afterwards attainted by Act of Parliament in the Year 1641. but whether justly or not, it is not my Business now to determine: It is sufficient that it was then granted by the King himself; that if the Earl had been really guilty bf Destroying the Government, and Introducing an Arbitrary Power, he might have been deservedly condemned.

But that the Power of Making and Dispensing with Laws, is particularly apply'd not only to the King, but to the Lords Spiritual, Temporal, and Commons j pray remember the Preamble of the Statute I have already cited of the 35th of Hen. 8. c. 31. whereinta is so expresly declared, as alfo by the 24th of this King, chap. 12. the Preface of which Statute runs thus: u And whereas the "King's most Noble Progenitors, and the Nobility and Commons of the said "Realm, at divers and sundry Parliaments, as well in the Time of King Ed"ward 1st. Edward 3d. Richardid. Henry 4th. &c\ made sundry Ordinances, "Laws, Statutes and Provisions, for the entire and sure Conservation of the Pre* 41 rogatives, Liberties and Preheminences of the said .Imperial Crown of this "Realm, &c." Where pray note, that the making of all these Statutes, is ascribed to the Lords and Commons, as well as to the King: Which is also farther acknowledged by the said King Henry, when in a set Speech to the Parlia^ ment, reported by Crompton (in the Case of Errors) he said these Words; "We "being informed by our Judges, that We at no time stand so highly in our Estate "Royal, as in the time of Parliament,-wherein, We as Head, andyouasMem"bers, are conjoined and knit together into one Body Politick." And sure then, if the King's Simile be true, whatsoever Functions are performed by the whole Body, must be done by the Members as well as by the Head. I shall sum up all, I have said into this Syllogism, That Power which cannot make or enact any new Law without the Ad vice and Consent of two other Bodies, is not the Sole Legislative Power: But the King is that Power which cannot, &c.Ergo, The King is not the Sole Legislative Power.

M l shall not longer dispute this Question with you, since I own the Two Houses have claimed, for some Ages past, a share in the Legislative, though in a large and improper Sense, as you yourself do partly grant: And though for the more just and equal Course, our Kings have for a long time admitted the Three Estates, viz,. the Lord? Spiritual, Temporal, and Commons, into a seeming dare of the Le- •'«/ gislative giflative Power: Yet this was not by Constraint, nor by any Fundamental Constitution of the Government, as you suppose,• but only from their own raeer Grace and Favour, to make Laws by the Consent of the whole Realm, because that no one part thereof should have any cause to complain of Partiality: And though I grant the King is bound to observe these Laws when made, by vertue of his Coronation-Oath, so as that he cannot alter them without their Consent j yet is he still above the Law, by virtue of his absolute Monarchical Power, and is not subordinate to it, or so bound by it as to be responsible to the People for any Breach committed by him upon it; for that were derogatory to the Sovereign Power, and inconsistent with the Nature of Monarchy, and were to set up the Law (which is but'a Creature of the Prince's making) above his Sovereign Authority: And this would make our Monarchy a kind of Government which would neither be Monarchical, nor yet a Republics, but some mungrel thing made up of both. So that I take the Notion of a Mix'd Monarchy, to be a Contradiction in adjetto: A Limited Monarchy, I confess, there may be, either by the Monarch's own voluntary Grant or Consent, as in this Kingdom; or else on Conditions imposed upon a Prince by others, either by a Foreign Power, as in Tributary and Feudatory Kingdoms; or else by the Natives of the fame Country, as in some Elective Kingdoms and Principalities: But then such Limitations of Monarchical Power represent a Prince as it were fetter'd, and who cannot act as he would, and ought, for the Advantage and Welfare.of his People, if lie had his Liberty, and the full Exercise of his Sovereign Power: And therefore in most Governments limited after this manner, the Sovereignty stiU remains in the Senate or People that elected the King: Which makes me think it a Solecism in Politicks to affirm, that a Monarch (properly so called, and still continuing so) could be thus limited by Laws, or Fundamental Constitutions, as you call them at the first Institution of the Government: For if he were thus limited, that Power that could thus limit him, must be either Superior or Inferior to him. Superior it could not be, because the People that could put those Conditions or Limitations upon him, could not be his Superiors in the State of Nature, before they made him King; neither could they be his Inferiors, because an Inferior Power can neves limit a Superior: And since all our Laws, (as well as the Oath of Allegiance and Supremacy, we take to the King) do own him to be the Sole Supreme Governor of this Realm, I cannot understand how this Limitation ab extra, can consist with the King's Supremacy; for if he be thus limited and restrained, how is he Supreme? and if restrained by some Law, is not the Power of that Law, and of them that made that Law, above his Supreme Power? And if by the Direction of such Law only he must govern, where is his Supreme Power? So that then the Law must rule and govern the Monarch as a Superior, and not the Monarch the Law; and he hath at best but a Gubernative and Executive Power.

Lastly; If this Power of the Prince were limited at the Original Constitutson, there must be a Power appointed in some Council or Senate (call it a Parliament, or Assembly of the States, or by what Name you please) whose business it must be to fee them exactly kept and performed i Now these Men must cither liave a Power barely of advising the Monarch, and persuading him to observe these Fundamental Limitations; or else they must also have a Power of forcing or compelling him, if he will not hearken to their Advice and Remonstrances: If they have no more than the former Power, that you'll fay signifies little, since the King may refuse to hearken to them if he pleases, and may do what he will notwithstanding; but if they, have also a Coercive Power over him, and may resist or punish him for his Transgressions, he will then cease to be a Monarch; since he cannot be so, who is accountable to any Power, either equal or superior to himself: And this our late Parliaments have been well aware of, when they renounced all Coercive Power over the Person of the King, and any Right of making War, either Offensive or Defensive, against him: So that besides the History of Matter of Fact, which I can further give you, to prove our Kings to have been at first absolute Monarchs j I think, the very Hypothesis of a Mix'd, or Limited Monarchy, labours under such insuperable Difficulties and Absurdities, that I cannot conceive how those Limitations by which we find the King's Prerogative now restrained, could ever proceed from any higher Cause than the free Grants and Concessions of the King's Predecessors, confirmed by his own Coronation-Oath:

Which Which though I acknowledge he is bound to observe, and that if he breaks it, he commits a great Sin against God; yet it is only he that must punish him for so doing, since the Oath is not made to the People, but to God alone.

P. Notwithstanding what you have now said, I hope I am able to shew you* that all your Arguments against a Mix'd, or Limited Monarchy, are more subtile than true. For as to your first Argument from the Word Monarch,I grant indeed, that strictly speaking, the Word Monarch and Monarchy signify a single Ruler, and the Government of one alone: Yet in common Acceptation, or according to the. Laws and Constitutions of several other Kingdoms, besides England, as in the Empire, in Denmark, and Sweden, the Emperor, and those Kings, have been called Monarchs, and those Kingdoms Monarchies: And though by the Original Constitution of those Governments, those Princes have not been invested with a pure Imperial Authority, such as that of the RomanEmperors of old ,• yet since they had the Executive and Gubernative Part of the Government committed to them, and that they were look'd upon as the Heads of those Kingdoms, and that the Government did therein partake more of Monarchy than of any other Form, those Princes have been always called Monarchs, notwithstanding there was a very great Mixture of Aristocracy in the Empire, and in Denmark, and both of Aristocracy andDemocracy in Sweden. The like may be said of England, France, and those Kingdoms in Sfain, that were instituted by the Goths and Vandals, the Francs and Saxons, after the ancient Gothic Model of Government- And though I grant this fort of mix'd Monarchy is not to be reduced to any of the three distinct Kinds of Government laid down by Aristotle, yet are they not for all that to be condemned; but rather the more approved of, since by this Mixture they were capable of divers Benefits, and free from several Mischiefs, which are incident to any of those Forms of Monarchy, Aristocracy, or Democracy, when exercised purely and without any such Mixture : And that this, as to England itself, is no Invention of the Commonwealth-Men, (as you call them) you may read King Charles the First's Answer to the 19 Propositions sent him by the Parliament, for the Words are remarkable:This Kingdom, fays he, it mix'd of Monarchical, Aristocratical, and jag. 96. Democratical Government; and thatso wifely, that we have all the Conveniences, and none of the Inconveniencies of any of those Forms taken single.

Nor doth this at all derogate from the Nature of the Monarchy, nor make any 'Division between the necessary Functions of Sovereign Power: For I have already granted, that the Executive or Gubernative Part is wholly in him, as also the Power of making War and Peace. And as for the Legiflative, as long as the King hath a Negative Vote in all Laws that pass, and that they cannot be made without his Royal Sanction, the Legiflative Power is not divided, as I have already proved. , .. "» '\\

But as for your other Argument against a Prince's being limited by the Original Constitution of Government, though as I yield it is more subtile, so it is also more sophistical and fallacious than the former. For yourDilemma, by which you would prove the Absurdity of that Notion, will not do; because a Prince, at the Institution of the Government, may be limited by those who are neither superior, nor inferior to himself; but only equal in the State of Nature, as I suppose the People to be with the King before he was made so by them: And that Equals may thus limit each other, you yourself will not (I suppose) deny in the Case of Princes, who are Equals in the State of Nature: As Queen Mary {{ot Example) made such Conditions with King Philip of Spain,before she married him, that if he offered to meddle with the Government of this Kingdom without her Consent, it would be lawful for her to part herself from him, and to send him Home into his own Kingdom: And might she not with a safe Conscience have done so upon the Breach of the Conditions on his side? Apply this to the People in the State of Nature, and the Person they are about to make King before the Politick Marriage of a Coronation or Admission to the Crown, and see if they do not agree; or whether the People can be blam'd, if they repudiate the* Politick Husband for invading that part of the Government which they had reserved to .

I i them

themselves? Nor doth this argue any more Superiority in the People over the King in the State of Nature, than it doth for a Creditor, in the like State, to compel by Force his Debtor to pay him a Sum of Money which he owed him, in cafe there were no Civil Jurisdiction for him to appeal to. And let us farther suppose a Council or Parliament appointed, who may remonstrate to the King his Transgressions or Violations of the Law: let this may be without any Coercive Power over his Person, or of making War upon him; since the King may, if he please, remedy all these Disorders, by redressing their Grievances, and punishing the Authors of them: So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government, and do also go about to execute them upon the People by Force, this being in effect a making War upon them; I suppose they have theft a just Right to defend themselves against his Tyranny. So that if these Rights or Privileges we now enjoy, were not the meer Concessions of the King's Grace and Favour, as you affirm, but reserved as part of their Birth-right at the Original Constitution of the Government, (as I shall prove all our Fundamental Laws were) the People have then as much Right to defend them (their Allegiance to him being upon that Condition, either express'd or imply'd) as any other Nation hath to defend their Lives, Liberties and Properties, against the Violence of the Supreme Powers, or any commissioned by them, as I hope I have already proved to you: So that notwithstanding all that you have said to the contrary, I think the Notion of a Mix'd or Limited Monarchy in the very Institution, may be agreeable to Reason, and practicable too either in this or any other Kingdom: And when you can prove the contrary by History, or Matter of Fact, as you promise, I will give up the" Cause.

M. You have broached a parcel of special Commonwealth Notions, in which you are every way out: As first, in making the King's Authority derived either from, or by, the People's Consent: Whereas all our ancient Lawyers call htm God's Vicar, or Lieutenant on Earth, and not the People's: And in the next place, in supposing he may be resisted by Force of Arms, whenever the People shall think themselves opprefs'd, or their Fundamental Rights and Liberties (as you call them) invaded; it is contrary to the express Declaration of the Parlia-1 ment, by two several Statutes in the id Year of the late King Charles: And tho' you disclaim all Coercive Power of the Two Houses over the King, yet it is only to place this Right of Resistance in a more fallible and ungovernable Body, vhc. the whole People in their natural Capacities j which as it is more consistent with your Principles, so it is more dangerous to all Supreme Powers, as well Commonwealths as Monarchies, as I have partly shewed you already j and, I hope, may farther convince you before I have done. But since I have not now time to shew you the Falsity and Absurdity of these Notions, and to urge the Statute at large against Resistance in any Cafe "whatsoever; I pray go on in the Method you have proposed, and let me see how you can make out, that even our Parliaments dq not derive that Privilege they now enjoy of giving their Consent to Laws, as also their very Being, to the gracious Concessions of our former Monarchs.

F. That I shall do with all my Heart: But first let me tell you, that though I own the King to be God's Lieutenant in these his Dominions; yet I must like* wife aver, that it was only by the Consent and voluntary Submission of the People of this Nation, that the first Monarch (begin where you will) could obtain that Title. And as for those Statutes you mention against all Resistance in any Cafe whatsoevery I doubt not but to shew you, that it was never the Intent of that Par" liament to debar us from all necessary Resistance and Self-defence, in Cafes of illegal Violence, and intolerable Oppression j unless you can suppose they were r&solved to alter the Government, and to put it into the King's Power to destroy all our Laws and Liberties; and instead of a lawful King, to set up sor a lawless Ty* rant whenever he pleased.

But to come to the Matter in hand, I shall shew you, that it is not at all im* h. 3. possible or improbable, that without any Hinderance of that Po*wer which is neces*

lary fary to the King as Supreme, that he might for all that have been limited as to the Legislative at the first Institution of the Government, which I shall thus make out. .

I do therefore in the first place suppose, that the English Saxons being a free People, after their Conquest of this Island, as well Nobles as Commons, did agree by their free Consents, and publick Compacts, to set over themselves a Prince or Sovereign, and to resign up themselves to him, to be governed by such and such Fundamental Laws. Here is a Supremacy of Power set up, tho' limited as to the manner of its Exercise.

p. Then because in all Governments after Cafes will arise, requiring an Addir tion of Laws, suppose themcovenanting with their Sovereign, that if there be any Cause to constitute any new Laws, he shall not by his sole Power perform that Work; but that they will reserve in themselves a concurrent or co-operative Power .So that they will be bound by no Laws, but what they join with him in the making of. ■•»•■•

3. I suppose, that tho' the Nobles may personally convene; yet since the Com* mons being so numerous, cannot meet together in Person; therefore, for the doing of this Work, it be agreed, that every City or considerable Town fliould have Power to depute one, or more, to act for t^c whole Body in the Legislature. That the Nobles by themselves in Person, and the Commons by their Deputies assembling there, may be representatively the wholeBody of the Kingdom, with Power to execute that Authority reserved for establishing new Laws.

4. Since the occasion, and need of making such Laws, and expounding the old ones, could not be constant and perpetual; therefore we may farther suppose, for the avoiding of the Inconvenience of three standing co-ordinatePowers, they did not establish these Estates to be constantly existent, but occasionally, as the Causes sot which they were ordained fliould require.

5. Because a Monarchy was intended, and therefore a Supremacy of Power (as far as was necessary) must be reserved in one, it was concluded, that these Estates should be still Assemblies of his Subjefts, and swearing Allegiance to him; and that all new Laws, which by Agreement of these Powers should be enacted, fliould run in his Name, and be called his Laws, and they all bound to obey him in them, when thus ettablifh'd.

6. And lastly, it being supposed, that he who thus was to govern by Law, and for the Furtherance of whose Government such new Laws were to be made, lhould best understand when there was need of them; and that the convening and dissolving of the Assembly of the Estates, was a Power of great Trust; it was put into the Prince's Hands, by Writ to Convocate, as also to Prorogue or Dissolve such Meetings. But in process of Time, some Princes, not caring much to have their Government look'd into, or to have any Power in being but their own, taking Advantage of this Power of assembling these Estates, did, more seldom than need required, make use of it : Whereupon Provision was made, and a Time set by new Statutes, within which an Assembly of Parliament was to-be held. Now when you have made these true Suppositions in your Mind, you have the very Model and History of this Monarchy; and we shall easily find what to answer to the Arguments before produced on either side. For first, it is his Parliament ; because -an Assembly of his Subjects convocated by his Writ to be his Council, and to assist him in making Laws for him to govern by; yet not his, as other Courts are, as deriving their whole Authority from the King. So likewise his Power of assembling and dissolving them, proves him thus far above them j because, though, as to the Time of their Meeting, it depends on him; yet their Power and Authority, quoadSpecificationem, i. e. the Being, Kind, and Exercise of it, is from the Original Constitution. For as to that, they expect no Commission and Authority from him, but only to their Meeting, to proceed



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to act j but when met, they act according to the Original Rights of .their Constitution; and those Acts proceed from their conjunct Authority with, not from their Subordination to the King in the Legislative ,• as also in laying of Taxes, (jc. on the People.

The Oath of Allegiance indeed binds them, as his Subjects, to obey him, governing according to establifh'd Laws i But yet it supposes them to be built upon the Foundations of his legal Government, and must not be interpreted to undermine and destroy it. He is hereby acknowledged to be Supreme, so far as to rule them by Laws already made, or to be made, but not without them. So that this is no Derogation to the Legislative Power of Parliament: And I believe of these things no unprejudic'd Man can make any question. And herein consists the accurate Judgment of the Contrivers of this Form, that they have given so much into the Hands of the Sovereign, as to make him a Monarch; yet have reserved so much in the Hands of the People, as to enable them to preserve theirLaws and Liberties.

M. I confess you have given a long and plausible Account of the Original and Form of our Government, though if it come to be examined, I doubt it will prove a meer Romance, and not at all agreeable to true History, or Matter of Fact : Since if we look to the eldest 'times, either after the Saxon or Norman Conquests, we fliall find the Power of our Kings to have been still more absolute than they are now. And I think I could easily trace the Steps by which the People have attained to all the Power and Privileges they now enjoy ; which, as I do not grudge the Nobility and People of this Nation, yet they ought to exercise it with a due RespeEl and Subordinationto that Power from which they were all at first derived ; lest if they should ascribe them to themselves, the King should be tempted to destroy those great Privileges, and taking away the very Being of Parliaments, to make Laws without them.

But to shew you farther, that this Notion of an independant Power in the two Houses by the OriginalConstitution of the Government, is altogether inconsistent with the King's Prerogative, appears from clear Matter of Fact, even as you yourself have put it. For when Kings thought fit not to have their Power controuled, you acknowledge they called Parliaments less frequently than usual; and that thereupon there were divers Laws made, appointing certain times tor their Meeting; from whence it appears, that before this the times of their Meeting were wholly left to his Discretion. Nay farther, that the King's Prerogative of assembling them, or omitting it when he pleases, cannot be limited by any Act himself can make, appears from hence, that notwithstanding all those Laws that have been made for Annual and Triennial Parliaments, our Kings have never thought themselves obliged to call Parliaments oftner than they saw their own Occasions, or the Necessities of the People (which they themselves were sole Judges of) required. Nor did any Parliaments ever find Fault with this, 'till that rebellion*one in 1641, which had the Confidence to present to the King a Bill to be pass'd, whereby it was not only enacted, that there should be a Parliament every third Year; but that upon the King's omitting to issue forth Writs of Summons, the Sheriffs, nay Constables might summon the Freeholders, and proceed to Election ; and that the Lords might also meet without any Writs from the King; which was quite contrary to the Original Constitution, by which (as you yourself grant) there could be no Parliaments without his Summons ,• he being Principium,Caput & F)nis Parliament. And if so, it seems wholly improbable, nay impossible to me, that your Two Housesshould have, by the Original Constitution, any Power of meeting or doing any thing without his Majesty s Consent and Allowance : And we know that at this Day, the Speaker, in the Name of the House of Commons,desires of the King, Liberty of Speech. And King Henry VIII. and Gnieen Elizabeth did sometimes rebuke theHouse of Commons, and sent to them to desist, when they were about to pass any Bill they did not approve of, or to meddle with those things which did not belong to them: Which plainly declares, that (contrary to your Assertion) neither of the Two Houses have any Power to proceed upon any Business, or to pass any Bill which the

King

King disapproves of. And though I grant that they do not ask the King's Leave for the bringing in, or passing of all Bills whatsoever in either House; or that the King can command them to give him what Money, or pass what Bills he pleases; yet this Privilege must needs proceed from his Grant or Concession: Whereby, though he hath discharged them from an active Obedience to such Commands, yet hath he not thereby divested himself of any of the essential Rights of Sovereignty,or at all discharged them from a Passive Obedience, or Submission to his Power, supposing the worst that can happen, that he should take away what lhare he pleased of the Subjects Estates without their Consent; or make his own Edicts and Proclamations to be observed for Laws: Since the King's Authority is prior to all others, and that (as the Statutes of Edward VI. and Queen Elizabeth, which I have already quoted, expresiy declare,) AB Power, Authority and JurisdiElion, Spiritual and Temporal, is derived•wholly from the King: So that unless your Legislative Power of Parliament be ':. somewhat, that is, neither anAuthority nor a Jurisdiclion, it is by this very Body acknowledged to be wholly deriAed from him : Nor have you yet answered this Argument, nor I believe can you do it.

F. As for your History which you promise to give me, of the absolute Power of our first Saxon and NormanKings, I desire you to defer the speaking of it' 'till artother time, it being now late : Yet I do not doubt but to prove, that what I assert concerning the limited Power of our Kings, even by the Original Constitution of the Government, is no Romance, but true History. Nor are the Reasons that you have now urged to the contrary prevalent enough with me to alter my Opinion : For I think I am able to prove somewhat more than I but now asserted, viz,, that the Wittena Gemote, or Great Council, met constantly once a Year, or oftner, when Occasion was, under the Saxon Kings, without any Summons from them; as when we come to the particular History of this Matter, I (ball shew you more at large. And also, that for the first hundred Years, after the Coming in of theNormans, the Great Council, or Parliament, used to meet of course at the Kmg's Court, at two or three of the great Feasts of the Year, without any other Notice by Writ or Summons. The first mention we find of such Writs, being in King Johns Magna Charta : But that when these Assemblies became less frequent, by reason of the King's discontinuing of them ; and because of the Ease the Nobility and People found, in being discharged from so constant and chargeable an Attendance, they came to be so discontinued at last, that, as you yourself confess, there were fain to be express Laws made for their more frequent Meetings: And though the Power of summoning them, was still left wholly in the King; and that he did very often dispense with the Calling them, according to the intent of those Statutes ; yet doth not this prove any legal Prerogative in him so to do ; Wut that it was a high Breach of Trust, and also of his Coronation Oath, when he thus omitted to call them : Since our Kings were formerly sworn to keep, and observe those Laws, quas vulgm elegerit, which the People either have, or should chuse, con- Rot. Claus, i strue it which way you will ; though 1 own in French it is in the Preterit, auera & *•• *; i°eleu, Jhould have chosen. And as it is an old Maxim a Faclo ad Jus non valet con-Pars Vnu*' jequentia, so it is no true way of Proof, to argue from an illegal Exercise, or Abuse of Power, to a legal Right of Prerogative- And though the Parliament might not always actually question,* or find Fault with their Kings for thus neglecting to call them; because, perhaps the Publick sustained no present Damage from it; and that they thereby escaped the giving the King those Taxes and Aids which he usually demanded of them at such times: Yet when the long Forbearance or Omissions of Parliaments became a general Grievance, by reason of those Encroachments that the King and great Men often made upon the People's Liberties in those Intervals; and that the King look'dupon it as a piece of his Prerogative to abuse this Trust as far as he pleased: Then (and not 'till then) there was need of a Law, that there should be a Parliament every Year; and that in case of any Failure of Summons on the King's part, the People might proceed to Election without it, which was not so properly a new Law, as the Restoration of the old Constitution ; since anciently the People met the ,

King

King at these great Councils, at such set Times of the Year, as I {hall prove, when we come to the History of Matter of Fact, which I am not at all afraid to be judged by. And then also, I shall shew you, that tho' the King is now Principium, Caput & Finis Parliament!, (that is, the Parliament properly so called) yet that the great Council, or Assembly of the Estates, had, from the first Institution of the Government, a Power of assembling themselves, in cafes of Necessity, such Vid. Walsing-as are doubtful or disputed Titles to the Crown, or the Absence of the Success ham & Mat. for; and then they have often met by their own inherent Authority; and have Westminst. either settled the Succession of the Crown, as they thought good ; or else have in the begin- reC0gnized an Hereditary Right in the Absence of the Heir; as when King KinJiRelL Edward the first was in his return from the Holy Land : Or else to depose the '"g g»- £jng>S Justiciary,when he abused his Power, as in the Cafe ofWilliam Longchamp, Hunt"*"*'/ Bishop of Ely, who was left Vice-Roy by King Richard the first, when he went R&?Hoveden into the Holy Land.

And though I own that some high-spirited, and yet well-beloved Princes, might take upon them a Power ofrebuking the House of Commons when they meddled with Business they did not like: Yet this Submission proceeded from the great Reverence they had for their Persons, and Confidence they placed in • their Government. Since we find only those Princes that were wife and successful in their Government, and so became the Darlings of their People, such as Queen Elizabeth and King Edward the Third, (for as for King Henry the Eighth, I remember no Instance of it) who durst venture to act thus. As for the desire of Freedom of Speech, it is but a Compliment; for how can the Grievances of the Kingdom be redressed without speaking freely of them ? And if one great End of Parliament was to redress these Grievances, it were altogether in vain for them to attempt any thing in this kind, if the King could Browbeat them from it, whenever he pleased. But BraElon doth not only tell us, Rex habet fuperiorem, Legem, & Curiam fuam Baronum, &c. in the place I have already cited: But the old Book, called The Mirrour of Justices, also teaches us the fame Lesson in his second Section, where, speakin^of the King's Power, he tells us, "That though the King can have no Peer in the Land,, yet nevertheless, if by his ownWrong he offends against any of his People, none of those that judge for him can be both Judge and Party. It is therefore agreeable to Right, that the King should have Companions to hear and determine in Parliament, all Writs and Complaints concerning the Wrongs of the King, Queen, and their Children ; and of them especially whose Wrongs could not otherwise have common Right. These Companions ate therefore called Counts, after theLatin Comites, &c. Nor can I think that any King would have erected a Court to have redressed the Wrongs done by himself, or his Family, whether he would or not. But as for your main Argument, frofc the Words of the Statutes of King Edward VI. and Queen Elizabeth, That all Authority and Jurisdiction, as well Spiritual cm"temporal, is derived from tlx King; I do own it true; that is, if meant of all derivative Authority, such as that of all inferior Courts, as well Civil as Ecclesiastical. For I suppose you yourself will not affirm, that the Ecclesiastical Authority of Bishops, as to their Right of meeting in publick Synods or Councils, is derived from the Crown. But the Truth is, the Sense ot this Statute is no more, than that all such Jurisdiction is immediately derived from the King, though originally from the People, (which Fortefcue calls Poteflatem a Populoeffiuxiam), and by them intrusted with him, as the Supreme Magistrate, to distribute it to all inferior Courts, which yet he cannot at this Day create anew without an Aft of Parliament: So that this will not extend to the whole Assembly of the Estates themselves; since I doubt not but to prove, by undeniable Testimony, that thatConstitution is as antient as the English Nation itself.

M. I see you have a mind to wrest the true Sense of this Statute by a forced Interpretation; but I hope at our next Meeting to prove to you, that our first Saxon and Norman Kings were absolute Monarchs; and that not only all the Liberties and Privileges we enjoy, but also our Civil Properties were wholly derived from them: And if so, it vyill also necessarily follow, that all Difference and

DistincDistinction in Honour or Power, by which the Bishops and Temporal Lords can claim to sit in Parliament, is wholly derived from those Kings. For as to the Commons, I need not go so high for their Original; since it is the Opinion of our best Antiquaries; and I think the learned Dr. Brady hath sufficiently proved it against Mr.Petyt, that they are no antienter than the latter End of i Henry the Third's, or perhaps the 18th of Edward the First's Reign. Nor do

Ithe Authors you have quoted for the independant Authority of Parliaments, (viz,. BraSlon and the Mirrour)mention any other than the Curia Baronum, or that of Earls and Barons, as the Author of the Mirrour hath worded it; by which can be meant no other than the House of Lords : For as to that of the Commons, had they been then in being, or had they had any thing to do in the Government, it is not likely these antient Authors, as well as our Acts of Parliament of those Times, would have omitted particularly to mention them. So that the higher I go, and the more I look on the History of our antient English Kings, the more absolute I find their Power, and the less dependant upon the People. Therefore I have very great reason to believe, that our first Kings were absosolute Monarchs, not only by the Original Constitution of Parliaments, but also that our very* Liberties and Properties proceeded at first from their meer <Grace and Favour.

F. I know you have asserted the fame things more than once: All the Difficulty lies in the Proof. And therefore I would not have you be too positive, or rely too much upon the Conciseness or Silence of the antient monkish Writers of those first Times. For since, as I own, they have never given us any exact Account of our antient Civil Government, nor yet of the History of their own Times; we are forced, for the most part, to pick out the Truth from Other Circumstances, or such Passages as we can meet withal in antient Laws and Customs j nay, sometimes from those of their Neighbours, who lived under , the fame kind of Government and Laws with our SaxonAncestors, as proceeding from one common Stock or Original as I shall shew you before we have done. But since we are already in Possession of our antient Laws and Liberties, and of a Right to Parliaments once every Year, or oftner if need be, by two antient Statutes yet in force, at farthest once every three Years, by a late Act of Parliament, it ought to be your Task to prove to me the absolute Power of our first English Monarchs; and by what Steps and Degrees they came to part with their Power, and to be thus limited as we now find them; and when you can shew me this, I do assure you J will come over to your Opinion. .'••' • '•' .'

M. I shall observe the Method you prescribe. And therefore, to begin with the first Entrance of the EnglishSaxons into this Island; I suppose you are not ignorant of so common a Piece of History, that all the Title they had to this Island was by the Sword or Cm^uest of their first Princes or Generals, who being sent by Lot, together wsth the' Armies that followed them out of their own Country, because it was toa harrow or barren to sustain such great Multitudes, they came over hither to seek new Dwellings. Now whether these Princes were made Kings before they came over, dr that they made themselves so immediately after their Conquest, will be all one; since if we consider them as Military Captains or Leaders of Armies, tfieir Power was absolute1, as that of all Generals ever was, and must' be by trie necessary Laws of Military Discipline. If we look upon them as Kings or Princes (as it is very likely they were also before they came over) , since they were certainly of the Blood Royal; all of them deriving their Pedigree from Woden their God, as well as first King; and being appointed Kings by their Fathers, or other near Relations, over those Parties or Colonies they were to lead out and Command, there is no Ground to believe they owed their Titles to the Votes or. Suffrages of their Followers. But after they'had fettled a Heptarchy, or Seven-Kingdoms, in this part of Britain called England, we find them governing, and leading their People like absolute Kings and Monarchs over their little Principalities : And since each Kingdom was conquered from the Britains under their Conduct, according to the


Laws of Nations, and Right of Conquest, all the Lands of each Kingdom belonged to the Conquerors; who, though they cantoned them out into Shares to their Captains and Soldiers, according to each Man's Valour or Desert, yet did this wholly proceed from their Bounty and Favour, who might have kept the Whole to themselves, if they had pleased. And hence it is, that not only since the Norman Conquest, but also long before, all the Lands of England were holden of the King, as the Supreme Lord: And if so, I suppose you will not deny, but that according to your own Principle, all our other Privileges and Liberties must have been derived from him; since you have already asserted, that whoever is Lord of the Soil of a Country, he is so also over the Persons of thePeople,

F. Before you proceed any farther, I pray give me leave to answer what you have now said, I doubt with greater Shew and Appearance of Truth, than the Matter will justly bear when well canvassed. But since I grant our earliest Writers are very sliort, in giving us the true Form, or Original Constitutions of our antient SaxonGovernment, it is necessary we look into the Roman Authors, who treat of the Laws and Customs of the antientGothic Nations,; a Stirs of whom the Germans, as well as our antient English Saxons, certainly were; and in those Authors you will find, that they, as well as other Nations of the Gothic Original, were never governed by absolute Monarchs; but by Kings or * Princes, limited by the Laws and Common-Councils of their own Nations j as were all those that descended from this Gothic Original.

In the first pjace therefore, fee what Tacitfti fays, in his Book De Moribm Germanorumi who sufficiently proves, that it was a fundamental Constitution of all the German Nations, to order all publick Affairs in General Councils or Assemblies of the whole People. Wherefore the fame Author there tells us : De minoribm rebmPrincipes consultant, de majoribm Omnes; ita tamen, ut ea quoque, quorum penes Plebem arbitrhtm est, apudPrincipes pratrattentur. As also that in this Council they try'd great Offenders for Capital Crimes. Licet apudConfilium accusare quoque & discri- . men capitis intendere. Nor was the Power and Right of their Kings Absolute or Arbitrary, but Limited and Elective, as appears by these Passages in the fame Author: Reges exNobilitate, Duces ex virtuteJumunt. Nec Regibus infinita, aut libera potestas, &c. And speaking of the manner of their holding these publick Councils, after Silence commanded by the Priests: Mox Rex (faith he) vel Princeps,prout atas cuique, prout nobilitas, prout deem bellorum, p out sacundia est, audiuntur, authoritate suadendimagis quam jubendi potestate. Si displicuit sententia, sremitu aspernantur j fin placuit, srameas concutiunt. Honorat issimum asjensm genm est armU laudari. So that you may here fee their Kings had no Negative Votes in their Councils, whatever they might have afterwards among the English Saxons; and that they did not so much as preside in them, but the Priests, you may fee in the fame place: Silentium per Sacerdotes, quibm turn cœrcendi jmest, imperatum. And therefore it is altogether unlikely, that they should have had that Absolute Power, you fancy, over the Lives and Fortunes of the People; since you plainly fee, that they could neither make Peace nor War, accuse or condemn any Man, nor rasse Taxes, without the Approbation or Consent of those Councils.

Now since all the English Saxon Nations were from Germany, I leave it to the Judgment of yourself, or any indifferent Person, to consider, whether a People so free as this, who came over hither not as Subjects, but only as Volunteers under so many Captains or Generals, who went out meerly to seek new Habitations, should be so fond of a Government they never knew at home, as to give these Captains (whom they made their Kings)' an Absolute Despotick Power over their Lives and Estates, which they never could endure in their own Country. But that they were not then Kings, I thus prove : First of all, no antient Writer that I know of ever mentioned any such thing, but rather the contrary ; for who will believe, that before it could be known what the Success would be, they should make meer Soldiers of Fortune, or Leaders of some Bands of Adventurers, Kings, before the Country they were to govern was conquered, or that they knew whe


{249}



thcr cver they should arrive there or not? And as for the two first of these Prin-
ces that came over, viz.. Hengist and Horsa, our Histories make them Brothers
with joint Command over those Saxons, who were sent hither as Auxiliaries to the
Britains, against the Pi8* i nor is Hengist ever called King, or the Time of his
Reign reckoned, till near eight Years after his coming over hither, viz,, after the sty*
Death of Vortimer, and the driving of Vortiger into Wales: And therefore I can Rad-
give no account how these Princes should become Kings, but by the Consent or 77$.
Election of their Soldiers or followers. For, as for themselves to create them-
selves Kings, without the Consent of their Army or People, is altogether impro-
bable and absurd, and not at all to be relied on upon your bare Word; for other
Authority you yet give me none. But for the main part of your Assertion, that
the first Saxon Kings were Absolute Monarchs, because all the . Land was con- ,
quered for them, and to their Use, and that all Land was held of them, is alto-
gether as precarious, our Histories being herein wholly silent. But tho' we do
not certainly know which way they divided their Conquest to their Followers.,
fince Authors mention nothing of it; yet this I think I may positively assert, that
whatever was done in this kind by the first Saxon Kings, was not as absolute Pro-
prietors of the whole Country, but as publick Trustees, for those over whom they
were sent: For since (as I have already observed) these People were utterly
Strangers to a Despotick Government at home, it is altogether unlikely, that
their Followers should confer upon them an Absolute and Unlimited Power abroad,
which they were never used to befote: And therefore they could not be Kings by
Right of Conquest over the Estates or Persons of those who were Fellow-Conque-
rors with them, and set them up for what they were; nor yet over the Britains,
since they were either totally driven out into Wales or Cornwall, or else those sew
that were left, being reduced to a State of Servitude, were by degrees incorpo-
rated with the Saxons..

And tho', for want of Antient Histories, as well as Letters, among so rude and barbarous a People as these were at first, we have no Records upon what express Conditions these Captains were by them elected to be their Kings; yet thus much we may find out by those few Remains we have left us in Bede and other antient Historians, that they had all of them the fame kind of Government and Laws, with very little difference from each other: Since we find, in all the several Kingdoms of the Heptarchy, there were the fame kind of Wittena Gemots, or Great Councils, by whom the Kings were elected, and without whose Advice and Consent they could do nothing of moment, either in Peace or War, as any one that will but read those Laws that are left us, collected by Mr.Lombard and Sir H. Spelman, in his Saxon Councils, may easily observe.

M. I own indeed, that our Saxon Ancestors, when they had conquered this B. A. P. p. 3 Kingdom, brought in their Saxon Laws along with them j but it doth not from thence follow, that they brought their Popular Government in with them too: And those Assemblies Tackm mentions, might be Councils of the German People in general, not of the Saxons, which Name is not to be found in all that Author. But what if it be granted, that those People, which were afterwards called Saxons, were governed by such Councils, was not this Government a Democracy? And the People so far from having a Share in these Councils, that they only had Voices in them. And if any had any more Power here than others, they were the Priests, who were a sort of Chair-men in them, commanding Silence, and who had a coercive Power, as Tacitus fays. In these Governments, no Man can doubt of the Suffrages of the People; but under such as you mention, you would, I think, scarce be contented to live, where the Priests bear so much sway; where there were no Cities or great Towns, but only scattered Houses, and Habitations by Rivers, Fields, and Woods, made of Dirt or Clay, Arms of Trees and Stubble; where there was no Literature, especially among the common People, nor scarce Civility; where there was no Cloathing, but with Garments made of Beasts Skins; no Food, but Milk, Pulse and Flesh, without Art or Cookery; where there was no Propriety in Lands, no Money, no Work for Lawyers, as you will find, if you read Tacitm, and the 6th Book ofCasar's Commentaries.

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And as for what you fay concerning the Beginning of the Saxon Kingdoms .in B. P.P- {-19, this Island; to this I reply, that Hengist and Horsa, and those other Leaders, who »o. brought the Saxons into England, were all of them of the Royal Line of the Saxvns,

Mat.Wefim. as appears by all our Historians; and so if not Kings, yet well able to subsist. ad an. 449- And it was. not the manner of those Countries, to thrust out their Supernumeraries by force, but to draw them out regularly by Lot, at such a Rate and Proportion, and to give them Generals and Officers of great Birth and Degree.

Nor is it probable, if they had made Articles with their Followers, that these Princes should have had such Absolute Authority, as they had, over the Lives and Fortunes of their Subjects, in the more early Times, almost all the Privileges of the English Nation being granted long since that time; nay, most of them sincethe Conquest; yea, since the Barons Wars. But as for what you fay concerning the Gothick or Vandal Kingdoms, since they relate nothing to our Government, I need not fay any thing to them j nor doth it follow, that if their Kings were limited, or but upon condition, that ours must be so too. ;»

Vid. Versie- F. I fee you would fain evade the Authority of Tacitm, concerning the People's gan. Refiitu- having any share of the Government amongst the Saxons, because, forsooth, that tion of decay- Natjon jS not particularly nam'd in his History : But tho' the Saxons are not par* edsntelh- tjcuiariy nam'd by Tacitm, yet the Angli are there mentioned among those German gence, p. 23. ^at^onSj wsl0 ^rfoip'd their common Goddess Hertha, which that Author interprets to be Terra, the Earth j and you-very well know, that from these Angli, Tacit, de or Angles, theEnglist Nation as well as Name is derived. But tho' "Tacitus, who M>r. Germ. jjye(j aD0Ut the Beginning of the Emperor Trajan's Reign, names not the Saxons; Vid.Ful. in yet Ptolomy, who writ within 40 Tears after, exprefly mentions them, placing their Tab. 4. £»- Country not far North of the River Albis, and near the Place where all agree the rf • Angli were seated; so that they were either all one and the same Nation, or very

little different. But Etlxlwd Qua/lor, one of our antientest English Saxon Historians, in his first Book, makes this Nation of the Saxons of a far wider Extent, and than it reach'd from the River Rhine all along the Sea-Coast up toDonia, now called Denmark.' •■«. ;i. .

But since I see you cannot well tell how to evade this Testimony of Tacitm, but by affirming, that the Government in Germany was a Democracy; and, that the People had the only Sway in it, is a great Mistake, since he exprefly mentions their Kings and Princes, and there only speaks of the manner of transacting all publick Affairs, in which, it is true, the People (as it is very well known by our dhtient Histories) had formerly a greater Share than now; yet doth he not thereby exclude their Princes and Nobility from having also their Shares in it. And "as for what follows in TacittH, of the Royal Power, autloritate suadendi, magis quant juhendi fotejlate; I suppose you cannot deny, but that Privilege yet remains to us, since the King cannot command the Parliament to make what Laws, or give him what Money he pleaseth: And therefore that doth not make it a Democracy, much less the Priests presiding in their Assemblies, which; is no more to be wonder'd at, than that the Bishops have still Votes, and their Share of Legislature in the House of Peers; or that a Bishop, when Chancellor or Keeper, should be Speaker in the House of Peers. Or supposing that their Priests had more Power among them, than the Christian Clergy had after they were converted, doth it therefore follow, that it was not the fame Government, or that it must therefore be so intolerable, that I would not have been willing to have lived under it? Since, I must tell you, I am not against Civil Offices, though exercised by Clergy-men, as far as the Business of their Function, and the Car nons of the Church will permit. As for the rest which you object concerning the barbarous living of the antient Germans, it either makes nothing to the matter in hand, or else against you; since it proves plainly, that Absolute Monarchy was not the first Government among all Nations, as you suppose. Nor doth it therefore follow, that because these People were rude and barbarous, therefore they had not the Wit to prefer Absolute Monarchy before fore all other Governments, since the Romans (who sure were a civiliz'd People) did likewise as much abhor it.

But as for what you fay against Hengist, and those other Leaders, who brought the Saxons into Britain, being elected Kings by their Followers, isnothing but meer Guess and Conjecture. For that they were not Kin«s at home, you your self grant; and whether they were able well to subsist at home, or not, is nothing to the purpose. It is plain they thought they could mend their Condition, or else would never have left their Country. Andtho4 it be granted, that Hengist, with his Followers, came not over as Enemies, but Auxiliaries, to the Britains; yet it is not therefore more likely, that they were chosen by the King of their own Nation, than that their own Fallow-' ers should afterwards elect them, especially when the one is agreeable to our own Historians, and the other not: ForMatthew Fhrilegus tells us, that Horfm being slain,- .the Saxons. Fiatrem futon Hengistum in regmtni Cttntiafuhlima-1 ixrunt; that is, they elected or advanced him to be King, if I understand any thing by that Word: And this agrees wkh the Polichronicon of Ranulph Higden, who places the Beginning of Hengist's Reign immediately after the Death of his Brother Horsus, -viz.. Anno Dom. 465. eight Years after the coming of the Saxons intoBritain. And that the rest of the Saxons, who came hither after, had no better Title than Elections, I could farther prove, if; the Time would give me leave: For they that will read the antient Accounts of the Saxon Nation, and what Government they had among them, ■ long after the Time of Casar and Tacitus, will find that it was impossible that they, mould be thus created Kings before they came over ; . since at that time they had no such things as constant Kings- amongst them: For in' those Times it was rather an Aristocracy than a Monarchy,1 asJohannes Po~ marius in his Saxon Chronicle slieweth us, for which I refer you to Verftcgan,' where this Passage is made use of at large. Verstegan, p. (58. So that if this' were the Government of the Saxons as low as the Time of Charles the Great, I durst leave it to any indifferent Person to judge, whether the first Saxon Kings in this Island were made so by their own Princes before they came over, i or were chosen by their Followers; since no Historians mention^ the former, tho' all of them agree of the latter-: They commonly using'this Phrase, Regetnfecerunt, or ekgerunt. And that all the first Kings of the Hep-iW* Earlof tarchy were Elective, nothing is more plain; since the Great Council of tht^"""^ds Nobility and People did not only elect them, but often depose them too, when'.^%et£n\  they grew intolerable, through Tyranny or Misgovernment;' as may appear Quarter Sesby the Example of Sigiben, King of the West-Saxons, and divers others I could Cons atLeiinstance in, who were expelled this Kingdom (as Brompton and other antient c f£> ^9°' Chronicles tell us) by the unanimous Consent and Deliberation of the Nobility Notes theraand People. Many like Instances I could give you in the other Kingdoms of the uponHeptarchy, but that it would be too tedious. • ■ Vide Bromp

," I . i , ton. Chron.

Nor doth your Reason signify any thing, that it is not probable that the first ['I'jJ^ Princes were made Kings upon condition, because os the absolute Autho- iiM'rt)St rity^they had over the Lives and Fortunes of their Subjects, since it' is alto- f, IJ7. gether false in Matter of Fact; none of the Saxon Kings being able alone to make Laws, or impose Taxes upon their People, without their Consents in their Great Councils, much less to make War without it: For then the War, though begun by the King alone, must have signified little in an Age, when there were ab Standing Armies, nor Money in the Prince's Power to pay them, there being then but little Coin of any fort, and their Revenues being mostly paid in Victuals.-

M. Pray, Sir, give me leave to interrupt you a little. I «oWn indeed, that the particular Laws and Constitutions of each of the Kingdoms of the Heptarchy are not particularly known; and perhaps some of their Kings might be Elective, and consequently Hable to be deposed by their People, whetnerby Right or Wrong, I will not now dispute: But if we cbiisider the State

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of things, after these seven Kingdoms became reduced into one, you wiM find them much altered; and as Egbert,our first Saxon Monarch, reduced ail those Kingdoms into one, so it is to be supposed, that having no Right to them but by Conquest, and the Submission of their Kings, when overcome in Battle, both he and his Successors must needs have- become far more absolute than they were before; and if they were Elective before that time, did now certainly become Hereditary Monarchs, the Crown descending from Fa* thcr to Son for divers Descents: And so consequently these Princes granted divers Privileges and Liberties to the People of those Kingdoms they conquered. And that they were no other than the free Grants or Concessions of our former Kings, upon Petition or Request of the People, and accepted by the Clergy, Nobility, and People.of the Kingdom, in their Great Councils. For this Ineed go no farther than the Coronation Oath taken by the Kings of England^ when the Archbishop of Canterbury asks the King: Sir, will you gram and keep, and by pur Oath confirm to the People ofEngland, the Laws and Customs granted to them by the antient Kings of England your Predecessors; and namely,the Laws avd Customs and Liberties granted to tlx Clergy and People by the Glorious King Edward yourPredecessor? . . .

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From whence we may observe, that all the Bishops, Earls, Barons, and People there present, do own and confess, that their most antient Laws, Gnfi toros, and Liberties, were granted to them by Edward the Confessor, and other antient Kings. .. , x.:: :ro> •

F. I doubt you will prove as much out in the Account yon give me ©£ our Kings Power, after the seven Kingdoms were reduced into one, as you were before* For though I grant, that the Title of the West-Saxon Kings over all the rest proceeded from Conquest, and the Submission of the Kings and People they conquered; yet were they not all actually reduced into one Kingdom or Monarchy till a good while after; the Kings of Mercia, and of the East Angles, continuing in being till the coming in of the Danes, as you will find by our Saxon Annals. And though 'tis true, the West-Saxon Kings made those Princes tributary to them; yet that they did not become more absolute thereby, appears from the Testimony of out antient Histories; fince we find them transacting all Affairs in their Wittena Gemots, or Great Councils, as well after their Conquest, as they did before. And therefore we find, in an old

Vtl. 1.^.367. Register of St. Leonard's Abby in Tork (cited in the Monasticon Anglicamtm, put out by Mr.Dugdale) this memorable Passage: Memorandum quod anno Dor mini 8oo, Egbertus, Rex totius Britannia, inParliamento apud Wmtoniam mutavit nomen Regni (de confenfu Populi fui) & jujjit illud de catero vocariAngliam. And

Cb. 6. WiU. of Malmsbury, that antient and exact Historian, fays exprefly of this King Egbert, Lib. 11, Hasomnes Regnorum varietates Egbertus animi magnitudtne compejcuit, & ea uni quadrans Imperio ad uniformeDominiwn, serums unicuique proprias Leges, vocavit Angliam. It is therefore most evident, that upon the Submission •» of those Kingdoms he conquered, he promised and agreed to govern them according to their antient Laws; and hence we find the Mercian Laws called Menhen Lage, to have continued in force long after that Kingdom was united to that of the West-Saxons. '• .

Nor will your Inference from the Coronation-Oath prove of any greater moment: For tho' it be therein recited, that divers of the Laws, Liberties, &c we now enjoy, were granted by King Edward the Confessor, and other Kings j yet must it not be so understood, as if the People of England had no Laws or Civil Rights before his Time; for that were to contradict plain Matter of Fact, and the Histories themselves I have already cited. But why they were called his Laws, and his Customs, William of Malmsbury hath very well observed, when speaking of the good Laws made by antient Kings, and especially by King Ethelred, which were consirm'd. by King Cnute, he hath this remarkable Passage! In qttarum custodiam etiam tune temporis bonarum, sub nor mine Regis Edwardijuratur, nan quod ille statuah, fed quod obfervaverit. The like I may say for the Laws of divers other SaxonKings; which though they go under their Names, yet were made by the Assent of the Great Couneil of the Kingdom, as by the Titles of the Laws themselves in Mr. Lombard** and Sir H. Spelmdns Collection of them, you may be satisfied if you please.

But for a taste, pray see the Laws of King^ Alfred; which, though said to be made by him (as indeed it is true, he compiled them out of divers other Laws, formerly in force in the other Kingdoms of the Heptarchy.-) Yet that they were also assented to bV_the Wittena Germts, pray see the Conclusion of these Laws in Sir H. Spelman. The Words are remarkable; Ego Ælfredm, Wefb-Saxonum Rex, estendi hxc omnibm Sapientikm mek, & dixeriiht placetea custodiri. So that the calling them the Laws of King Alfred, ot King Edward, doth no more prove that they alone madei them, than our now citing such or such a Statute of King Hen. 8. or King Charfetl* do therefore suppose, that those Kings made Laws by their own Sole Authority such Phrases among ancient Historians, as well as ourselves at this J)ay, being used only for Brevity sake, and signify no more than their Confirmation of them.,;>v- •» <''

M- I shall not deny, but that our ancient English Kings did for the most part make no Laws without the Consentof their Great Council: Yetl think I can give you an unanswerable Argument to prove^ that the very Being and Constitution of Parliaments, or Great Councils, did in the beginning wholly proceed from the Grace and Favour of some of our ancient Kings; though to which of them to aseribe it, is not easy to determine. But *f we may believe your own Author the Mrirmir, he tells us almost at the very beginning; That King Alfred, for the goodState of the Realm, caused to ajjsemble t/x Counts er Peers; and then ordained for a perpetual Custom, that twicein the Tear, er oftner, for Business in time of Peace, they should affenr tie at London to treat of the Governmentof the People of God, and how Folks should keep themselves from Offences, and live in Quiet, and (hduld receiveRight by certain Usages and Judgments. And according to this Establijhment -were made divers Ordinances byseveral Kings, until the present King (viz,.) Edw. istV

; But to come) to the Proof of what I affirm; it is certain, that in those first Times the Saxon Kings conferred all the Btfhoprieks, and principal Abbeys in England, per Annulum & Baculum, as Ingulf and Malmsbitryexpresly tell us. And as for the Earls or Aldermen of Counties, as also the Great Thanes, Judges or Noblemen of the Kingdom," they were only Offices held for Life in those Times, which the King might discharge them of at his Pleasure: And hence we find the Tkles of Aldermanm Regis, and Thanm Regis, so frequently to occur in our ancient Histories and Charters: Those comprehended under the general "Name of Wites, being the only constituent Parts of the Great Couneil of the Kingdom in those Times; for as concerning those we now call the Commons ofEngland,*'we do not fo much as find the least mention of them, or any Representatives for them, till the latter end of theReign of King Henry the jd. or the middle of Edward the ist. as I think Dt. Bradj hatti learnedly and fully proved in his last Edition of his Answer to j»fr. Petyt's Treatise of the Rights of the-Commons of EnglandAfferted. Now if it plainly appears, that every Part or Member of the Parliament did anejendy receive their very Being from the meer Grace and ConcrfBon of our ancient Monarchs j can you, or any reasonable Man, assert with any colour of Truth, that our Great Councils, or Parliaments, could be a Part of the Fundamental Constitution, and as. ancient as the Government itself? And if Parliaments did thus receive all that Authority they now exercise from the King's Bounty, can any Man doubt whether all the Rights and Privileges we now enjoy, are to be ascribed to any other Original? For it the very Keepers (as you wiH have it) of these Liberties, did all proceed from the King, then certainly the things to be kept must do so too; and when you can answer this Argument I have now brought, I think I may safely promise you to be your Proselite, and to coine over to your Opinion. - ■



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A/. I confess, this is the most plaufible Argument you have-.hitherto urged; and if I can't answer it, I do likewise promise you to become your Convert, But though, granting that Parliaments might have received their Beiug from the Favours of our Kings, I might deny your Consequence, that therefore it will sollow that all the Rights and Liberties of the Subjects, os England,muH do so too; since they might very well have reserved to themselves both Hereditary Properties, as also a Right to their Lives, Liberties and Estates, which the King should not take from them without just Cause, and legal Trial; which when they sound invaded by succeeding Princes, they might then, (and not till |hen) find constant Great Councils and Parliaments to be neceflary for that end, and as the firmest Bulwark against the Tyranny of succeeding Princes: But the Author of theMr*. rour, in the Section before the place from whence you took your last Quotation, exprefly tells us otherwise; that upon the first Election of a King to reign over the rest os the Saxon Princes, they first of all madejnnt to swear, "that hewouldjnaiw tain the Holy Christian Faith -with all his Power, and wots Id govern his People according to Right,without regard to any Person, and should be liable to suffer Right (i. e. Judgment) as well as others of his Peofle.And though I do not give any Credit to all the Story he there relates of 40 Sovereign Princes in this Island at once; rye£j$be Substance of it may be true, that this Election was made of King Egbert, byjthe 40 Earls or Counts of those Provinces, which were aseerwaiji r by[ King -^Sfred called Shires. ^ i ut 1 .' -c'J ..O io .<::mxii:Bt}

Jin\ - • . 1. r; iv' ■ 1 ■-) -jtv..A i > iro/.. ■ h.-; 32£iO

But that this Author ascribes the Beginning of Great Councils to the first;|nr stitution of the Government, pray see .what he tjiere farther' fays.: : -Ani_ though the King can have no Peer in the Land, nevertheless, , if bybisjKwn Wrong he offends again/i any of his People, none of those that judge for him can be both Judge andParty.{. It if therefore agreeable to Right, that the King Jhould have Companions to hear and determine inParliament all Writs and Complaints concerning the Wrongs of \ the JLing, Queen, and their Children, of whichWrongs they could not otherwise hœue common Right. lhtse.Comr  panions are therefore called Counts, after theLatin, Comites. Whereby you may see, that this Author and BraElon, who were Contemporaries, were of the fame Opinion in this important Point: And I cannot imagmebow any Prince,, who had Power sufficient in his hands to do what he pleased, (as you suppose our Engli(b Saxon Monarch? to have had at the first) would ever, if theyScpuld have help'd it, have instituted a Court, one of whose chief Businesses it was to examine and redress the Wrongs and Oppressions of themselves, their Wives and Children. ■ ;~t. . , „■>.■•. j.i-:... o.Jlt-j 3:■ ;>n.

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But besides all this, what you fay might be somewhat likely; that our Parliaments, or Great Councils, did owe their Original only to the Kings good Will and Pleasure, did we not find the like Constitution to have been, in all the Neighbouring Kingdoms in Europe, which have been raised according to the Gothic Model of Government, upon the Ruins, of the Roman Empire. Now let us look into Scotland, and there we shall find this Institution as ancient as any History, or Record they have. If we. pass into France, we* shall find their Assembly ,of Estates, or Great Council,- to have been as ancient as their firstlings, and to have Yu B>ttoman\\2A as much Power as any where else in Europe: Since they nor. only frequently framoGallla. cieQ;ed, but also deposed their Kings of the first Race, and disposed of the Succession of the Crown as they thought sit. • If we look ;mto Spain, ^we shall find in the two greatest and most considerable Kingdom, viz,. Castille a.nd, Arragon, the like Assemblies: The Power of which was so great in the latter, that, they could even depose the King himself, if he tyranniz'd over or qppress'd them. If we go more Northward, we shall find in the ancient Kingdoms of Denmark and Sweden, andNorway, that their Assembly of Estates, or Diets, elected their Kings, and could likewise depose them, till those Kingdoms became Hereditary, which was but of modern Times. I shall omit Poland, because perhaps you may dispute whether it is a Kingdom, or a Commonwealth." But if we pass into Hungary, which was instituted by theHuns, a Nation of Gothic Original, we shall find not only the like Assembly of Estates, as in the other Kingdoms;but also that they had a Magistrate

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• gistrate called the Palatine; who was, as it were, the Conservator of the People's Liberties, and who could resist even the King himself if he invaded them,• and which is also very remarkable in all these Kingdoms> the Representatives of the Cities, or principal Towns, (which constituted the third Estate, or Commons in those Kingdoms) had always a Place in those Great Councils. ,

So that, td conclude, it is almost impossible to conceive how these Kingdoms I have now mentioned, couki all agree to fall into the fame fort-of Government about the fame time, unless it had proceeded from the particular Temper and Genius of the German and Getbick Nations, from which they were derived: Or who can believe, that all these Nations, and their Kings, finding the like Conveniencies from these Great Councils, and Inconvenieneies by the want of them, should all conspire to set them up in each of these particular Kingdoms.

~M. I will not deny but that the Institution of Great Councils, or Assemblies of the Estates, might be as ancient as the Government itself, in several of those Kingdoms you mention, which were at first elective: But what is that to England, where our Monarchy hath been by Succession from the first Institution of it, and hot Elective, as you suppose? Nor do I much value the Authority of the Mirrour as to the great Antiquity he afcribes to this Assembly of Counts, or Cvmites, (as BraElen calls them) and in which, by the way, no Commons are mentioned.) And though-1 grant, the Judicial Power of the House of Peers, is very our Kin_ Presence

learned Treatise written :on that Subject: Wherein he proves, that in all Consultations of State, and Decisions of private Plaints, it is clear from all Times the King was not only present to advise, but also to determine. And whensoever the King is present, all Power of Judging, which is derived from his, ceaseth; the Votes of the Lords may serve for matter of Advice, the final Judgment is only the King's: But indeed of late Years, Queen Mary and Queen Elizabeth, by reason of their Sex, being hot so fit for publick Assemblies j have brought it out of*use; by which means it is come to pass, that maihy things; which were in former Times acted by Kings themselves, have of late been left to the Judgment of the Peers; who, in quality of Judges extraordinary,'; are permitted, for the Ease of the King, and in his Absence, to determine such' Matters as were anciently brought before the King himself, sitting in Person, | attended by his Great Councif of Prelates and Peers: And the Ordinances that are made there, received their Establishment either fVoni the King's Presence in Parliament, . where his Chair( of States inconstantly-placedi ot at least from his Confirmation ofthem, who; hV all Courts? and in afl Causes, is Supreme Judge-; All Judgments ire'by, or under him,' ind cannot'bje wjthout, much less against his Approbation5:'The King only, and none but He,'if 'He'-were abk, fiould jbdge aM Causes, faith Wafttm. " So thafnothing seems plairiet to me, than that- the Jurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes, as well Civil as Criminal, by way of Appeal, not only between Subjects, but aHb iri all Accusations againjl the Lords themselves,- proceeds wholly from ihs Concession of out Kings; which may appear by an ancient Precedent, mentidned by Abbot Brampm in his History- It is the Case- between King Edward the C<mjej]or; arid GodwinEarl of Kent; whom the King accused for the Death of yu Script, j his Brother Prince Alfred, before the Honsc of Peers; and there you will find, Ann. 1041. that after the Earl had put himself u'pOn the Judgment of the King's Court, the Col. 937. King thereupon said; "You Noble Lords, Earls and Barons (i. e. "thanes) of

* the Land, who are my Liege-Men how gathered here together, and have "heard my Appeal and GodwinsAnswer; I will, that in this Appeal between "us, ye decree right Judgment, arid do true Justice." And upon their Judgment, that the Earl should- make the King sufficient Satisfaction ih Gold and Silver, for the Death of his Brother; the King being thereof informed, and not willing to contradict it, {the Historian there faith ) He ratifiedail they bad judged. I could give you many other Precedents of latter Date, were it not too tedious:

But

But this is sufficient to sliew, that what the Peers acted in this matter, was by the King's Sole Will and Permission. I shall only conclude with one Precedent more, in a Cafe somewhat of a like Nature. It is that ofHenry Spencer Bishop of Norwich, 7 Rich. II. who was accused for joining with the French: The Bishop complained what was done against him, did not pass by the Assent and Knowledge of the Peers: Whereupon it was said in Parliament; "That the Cogni"zance and Punifliment of his Offence, did of common Right, and ancient Cus"torn of the Realm of England, solely and wholly belong to our Lord the King, "and no other." From all which I infer, that the Judicial Power exercised by the House of Peers, is meerly derivative from, and subservient to the Supreme Power residing in the King. From whence it also follows, that if the Peers have no Power nor Honour but what proceeds from the Prince, and that the Commons were of .a much later Date, then both the Being- and Privileges of both Houses had but one and the self-fame Original, viz.. nothing else but the meer Grace or Favour of our Kings. I have only added this, the better to enforce rfly former Argument; and therefore I desire you would now answer them both together.

F, I am very glad your last Argument doth not prove so formidable as you suppose; for to remove that out of the way, I must tell you that you now very much mistake the Question j which is not only concerning the Judicial Power of the Peers alone, but the Legislative Power of the House of Peers and Commons taken together, which is the Subject of our present Dispute: And therefore if I should grant you, that the Judicial Power of the Peers is derived wholly from the King; yet would it not at all impair the Legislative Power of cither of the Houses, which no Historian or Law-Book that 1 know of (that is of any Credit or Antiquity) ascribes to the King's Favour, as you suppose: Nor is it true, that the House of Peers can give no Judgment, either Civil or Criminal, without the King's Consent or Approbation, which is never so much as ask'd, let the Cause be what it will; nor is his Presence at such Judgments at all necessary; but indeed you confound the King's Council in Parliament, (where I have shewed you already, he sat and dispatched divers Causes in a Room or Chamber, distinct from that of the Peers) or House of Lords.

But to come to your main Argument, that our Parliament must owe its Original to the King, because each os the Estates of which it consists, doth so. This I hope will prove as weak, when thoroughly considered: For first of all I • could (hew you, that these Councils could not owe their Original to the King, since the Saxon Kings rather owed their Original to them, by whom they were most commonly elected, as I could sliew you out of our ancient Historians, if it were now a proper time for it. But as for our Bishops and Abbots, &c which anciently made so great a figure in our Saxon Great Councils, (which I can shew you, were then both Civil and Ecclesiastical Assemblies) I have already proved out of Tacitm, that among the ancient Germans (a part of whom our ancientEnglish Saxons were) their Priests (who were their Clergy) had a conside1.1. c. i j. r3ble Authority in their Common Councils. And can any Body believe, that a Sort of People so powerful and subtile, as the Priests then were, would lose their Power after they came over into England? And we find in Bede, that Edwin King ofNorthumberland consulted with a Council of his Great Men and Priests, concerning his embracing the Christsan Religion; and when it was generally received, can any Body think that the Christian Bishops and Clergy would not expect to succeed in the same Station which the Heathen Priests before held in their V,. %/.CW. Councils? And that they enjoyed this Power very early, appears from hence, that , p. 619, too. the fame Ethelbert could not endow the Church and Monastery of Canterbury, sine AJsensu Magnatum &Princifum tarn Geri quam Populi.

( But indeed you are as much mistaken in the Manner of the ancient Elections

of Bishops and Abbots in England: For though I own that at the time of the Conquest, and somewhat before, there might be no such Elections of them as the ancient Canons required j yet that this was not so at the first, you may see

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in Bedes Ecdesiastical History, and other Historian?;' where it is often men? * dotted; that Bishops were chosen, according to the Canons, by the Archbishops and Bishops of the Province, and Abbot's by their Convent: Nor was the King's investing of them per Annulum, & Bacutum, then Iook'd Upon as any Derogation to their Canonical Election, that being ho' more than either a Ceremony of investing them with their Temporalities, or a Token of the King's Confirmation of the Election. And thai? this was so,' appears by KingEdgars Charter to the Abby of Glastonbury wherein he retains to himself, and his Heirs, Jm tribtmdi fratri ElectoBacUlum Pasiorttlem'.' '1 JliJ''

But that which so much scandalized both Ingulf and Malmsbur), was a Custom then in use, as also long before the Conquest, of Confirming the Bilhop Elect in a full Synod or Parliament. 'And to this Custom Ingulf refers, when he tells us, A multis annis feroaElis nulla erat £let~iio Prelatorum mere Libera, &Camnica  '&d j„gK$],.&t wines Dignitates tarn Epifcoporum quam Abbatum Regis Curia pro fun Complacent ia. con- sol jqj, b. ferebdt.yfhere, by, Curia Regis, you must not understand the King's Court in the Sense it Is commonly taken, but for the Great Council or Mikel Synod, as it was then called, and which dispatched Ecclesiastical, as well as Civil Affairs, in the fame Sense as Curia. Regis is used by Bromfctoh; in the Case of King Edward'and Earl Godwin, which you but now cited: And in which Sense it is always use^Lby Ingulf, when he speaks of the Great Councils under the'two Williams. I will not be verv tedious oh this Subject; and shall therefore give you but one Authority on thiS Head; aid it is that" of Wulstan, who was made Bishop of Worcester in the time of Edivard the Confessor;and that, as Matt. Paris tells us, Unanimi confenfu iamCleri, tyi'am totiM Plebis (Rege ut quern vellentjibieligerent Profit-p- ao. 10. km annuente) in Epifcbpum ejufdem loci tligiiur. And then he goes on thus; Nam licetfratrum norideejfet EleBlo; yet that? there concurred to it, Plebis Petitio, Vbluntas EpifcoporUm,' GratiaPro'cerum, Regis Autboritas: All which amounts to no more than that he was proposed by the People, chosen by the Bishops and Peers, and Confirmed by the King: Yet that all this did not hinder him from being invested ferBaiulum, & Annulum, as the Custom then was, niay appear, .by the Speech this Bishop Wulftan'xAZ&t at the-Tomb of Edward the Conjejsbr; whither he wenp tp resign" his Pastoral Staff after his being deprived of his/Bislioprjck !by Archbjffiop tahfrank, and the Synod. And the Conclusion or this Speech is remarkable, "Tibi(soil. Edwrtrdo) Baculum rejigho qui dedijli, Cur dm eorum dbhitto quos mihi commetidasti. A like, Example I could give you of the Election of, this Archbishop Ldnfrank himself in the King's Curia, or Great Council, not, long after the Entrance of King William. But for this I refer you to Eadmerus^ and the Reign of thjit'King, printed at" the end of Mr. "Taylors History of Gavetymct. 7#fKj.

^'l^admitting that the King alone had in those Days conferred all Bishopfifiksi 'does it therefore fallow, that his Nomination of Bishops, in the pursuance 6f :that Trust Hyhich the ^Kingdom reposed in him, did likewise make them to.^erive all,' the Right they had to sit in the Great Council from the King's soje Authority ? j Y^i -msght indeed With' as much Reason urge, that because

Jhe 'Emperor.^ieWi^i (as likewise divers of his Predecessors) did nominate 5ishops to Sees; therefore''tHey did likeWise receive from them all the Authority they had of appearing and acting in General Councils, which I am sure you aje too good a Church of England Man to affirm. :?| .

". '.M.'l must^cOnfessJf'nkvetdid so closer}' examine the antient Form of conferring > of Bimo'pricVs before the Conquest, as I find you have done: And I will better examine your Authorities.; and if! find this Custom to have been constant and uniform, I shall come oVt£ to your Opinion. Though I doubt it will not prove to have been so general as you "would make it; since by the Authority you have now.brought (mi 'of Mit. "Paris it appears, that it was the King who gave leave to'this Election,of BiGjpfa Wulstan in the Great Council, which I am not yes convine'd, did' then take .upon them to <meddle in Ecclesiastical Matters without the King's Consent:, But since you have spoken enough concerning the Right and Antiquity of the 'Bishops sitting in our Great

L 1 Councils,

» Councils, it is time ybu now speak of the Right of the Peers; or Temporal Lords, which certainly could have no place there, but from the Favour and Concession of our Kings: So that whether we consider those Lords in theSaxon Time as Rulers of Counties, called in old English Earls or Aldermen, in Latin Duces or Comites; or else as Judges or Counsellors, called in old Saxon Wiies'at fVisemen, in Latin Sapientes : Or lastly, as "thanes, in LatinMiniflri, who iyere either Military Tenants, or Civil Ministers;, or else Officers of the King' iti his Court, or other Employments; none of them were Hereditary in those. Times, but all of them either depended upon the King's Will, or else ÆW^f their Honours and Estates to his Favour.

F. I hope, notwithstanding the Confidefice ybu put in this part of the Argument, that it hath no more weight in it than the former. For though I grant there was no such thing as Hereditary Earldoms before the coming in of theNormans : So that though both the Earls and Aldermen might have Places.in l/J.Dugdale'jthe' Great Councils,Ratione Officii (as the Earl Marefchal of England has at this treface to his Day) and not by Tenure, as they did after that time; yet I very mitch do/ubt Baronage of whether tney ^ate there only Ratione Offuti, and not as Thanes; or by R^fbfj England. ^c tfoeir great Lordfliips, or Estates in Lands; but if they fate there as Ear}? or, Aldermen, yet might they not be the only Persons that fate in, those Councils by that Title. For there were, besides these, Aldermen of Citie's and Boroughs, who were elected by those Places; and who it^ is very likely', appeared' for them as their Representatives in those Councils, until by Succession of Time those Towns began to fend two Burgesses in their stead; some Footsteps of which still remain in London, where the Aldermen of every Ward are first proposed to be elected Parliament Men before any other: And it is certain that these Aldermen, in the most antient Cities, as London, Tork, Lincoln, &c. are not elected by any Grant or Charter from the Crown, but by an immemorial Right of Prescription. . > • > . ,..u

But admitting that these Earls or Aldermen appeared in these Councils, by reason of their Offices or Dignities which the King conferred upon them, yet doth it not prove, that the very Office itself proceeded wholly from him; since we find the Authority of those chief Men, whom Tacitm calls Princes, {and which answer these Earls) to have been used among the antient Germans long before, when he tells us in the fame Chapter where we cited the rest; Jura per * Pagos, Vicosque [Principes'] reddunt, centeta fingulis ex ptebe Comites Concilium Jimul &autloritas adfunt. Which exactly answers our County, and Hundred Courts, under the Saxon Kings; wherein the Alderman of,.the County, or his Deputy the Sheriff, presided, and the Freemen of the County or Hundred were the Judges of all Matters of Fact. So that though the King might apponit these Princes or Governors of Provinces, or Counties, yet doth it. no, more follow, that .they owed their Being and Place in the Great .Council wholly to his Will, than (as I said before) supposing that the King had antiently the Nomination of all the Bishops and Abbots in England, that therefore the.y must also owe their Place in our great Councils, or Synods, wholly to them; since the King performed . both of them as a publick Trust committed to him by the Commonweal in the one cafe, as much as in the other.; ,„ /!'

But indeed, I think the greatest part of the Members of this Aslembly (besides Aldermen and Burgesses for Cities and Towns) consisted of those Thanes, whose Names are often found in the Subscription of the" antient Charters of our Saxon Kings after the Principes, Duces and, Comites; and that though many of them might be the King's Feudal ^aneit"'ot Tenants in Grand Serjeanty, or SeU. Tit. Knights Service in chief, as Mr. Selden tells lis in his Titles of Honour, yet that tbn.fot. 507, Author no where excludes the cpeSmejta^SeJSens or Lefrlpe$ns, /.e. middle or 5' less Thanes, from having Voices"in'those Aflemblies, who were afterwards stiled Vavajsours, or Lords of Townships, afterwards called Manors, with Courts annexed to them under the Names of Sac and Soc ;which were the fame with our Court-Leet and Court-Baron: Especially, if you please farther to consider what



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a vast number of Alodarii, or Free Tenants there were then, who held their Landi discharged os all Services* but the common Burthens and Taxes of the Nation* none but the Lands of the King's Thous, being held by Military Services before the Entrance of the Noiitums.

So that whoever will but consider the Nature of but Saxon Councils will findj that the greatest part of the Persons that appeared there did not owe their Places only to their, being the King's Ministers or Officers, as you suppose* but to their holding such Lands and Possessions as capacitated them, and gave them a Right to have Places in those Great Councils. And that this was so, we need not Jjo no farther than the Laws of King Athelftan,where you will find Gentility itself annexed to an Estate in Land: For if you will bur be pleased to consult KingAthelftan s Laws, you will there find, that if a VtUain, Yi. Lamb, oxCheorl, could so thrive a& to get in Estate offive Hides in Lands, he was?- 54« reckoned a "thane, i- e. a Gentleman or Nobleman, as they were promiscuously reckoned at that time.

So" that though I suppose there might not be in those Times that exact Distinction between Peers and Commons, as there hath been established since the coming in of the Normans; yet was it the fame thing in effect, since the Bishops, Earls or Aldermen of Shires (though not enjoyed as Hereditary Honours) might make them the greater Nobility or Peers, as the Thanes were the less Nobility, Gentlemen, or principal Freeholders; who all appearing in Person, might, together with the Aldermen or Burgesses of Towns, represent those which we now call the Commons. And supposing that then there were no Knights of Shires,' • yet these being then the only Proprietors of any considerable Estates of Land in the Nation, might very well represent all their Vassals or Under-Tenants, as Tenants for Years, and at Will, are at this Day by the Knights of Shires, though they have no Votes at their Election.

* '. • ■.

To conclude : Though I grant that the Kings of England arc the Fountain of that Honour, which we call Peerage;yet it is^only in pursuance of that antient Constitution which their Ancestors1 brought^ (qut of old Saxony andNormandy along with ,them, as the firmest Defence ,j0lf Kingly Power against the Insolency and Incroachments of the common brf: preaner sort of People, as well as Tyranny in their Princes* And therefore''in all Monarchies where there is no Hereditary Nobility, the Prince hath no surer way to maintain his. Power than by Standing Armies, to whose Humours and Factions he is Dei>re subject, and is also more liable to be murdered, or deposed by them (when discontented with him) than ever any limited Prince yet was, or can be by his Nobility or People. As I could shew you from a Multitude of Examples, not only from the Roman, but Moorijh, Arabkk and TurkishHistories: And therefore, to constitute a lasting, stable, limited Monarchy (as ours is) it must be according to the Model I have here pro" posed.

M, I shall not contradict the latter part os your Discourse; but I must freely tell you, that if (as you yourself grant) there were no Knights of Shires in the Saxon Times, I cannot see how those we call the Com* mons ofEngland had then any Representatives in the Great Council; since those Thanes, or Lords of Manors, whom you suppose to have represented their Tenants or Vassals, were never chosen by them, and consequently could not properly be their Representatives: But I think it will be easy enough to" prove, that none of your inferior or middle Thanes, but only the chief or superior, had Places in those Assemblies. So that these Feudal Thanes, or such as held of the King in chief by Military Service, were of the fame kind with them that were after theNorman Times Honorary or Parliament tary Barons, and their Lands alone were the Honorary Thanelands, and such as were afterwards Parliamentary Baronies. Nor can I find any Footsteps in our antient English Histories of Cities and Boroughs sending any


Representatives to those Great Councils. So thar admit I should own ac present, that the Bishops, and some great Abbots, had, from the first settling of Christianity in this Jflahd, an indisputable Plade in the Gre'at Councils; and likewise that the Earls, Aldermen, or great Nobility, had also Votes in those Assemblies; and that the chiefThanes, or less Nobles, had also their Places there, by reason of the - Tenure' of their Estates': Yet certainly theHouse of Cmmms was of a much later Date, and ©weld ks Being either to the Grace and Favour of our Kings of-the liafman' Race, or else to those that hadusurp'd their Power. And this I think Dr. iBriidy hath very well proved against Mr- Petyt: And I think I Could tonvince" you also of the Truth df it by his, as well as other Arguments, Were it not slow too late'to enter- upon so long a Subject. • I '= <>i »>-1-1l 1 x'

F Therefore, pray let us defer any further Discourse of this Question ^'tffl the next time we meet; wherein I hope I may shew you, that if you owe that Opinion to the Doctor's Arguments, he hath led you into a very gross Mistake. And I shall only at present take my leave of you, and bid you good

Night... .. r • .; ■:'

,j , ...  ^ ...>•'..■ ■> M. I wish you the like.' ■


DIALOGUE VI.

Whether the Commons of England, represented by Knights,
Citizens, and Burgeffes in Parliament, were one of the
Three Estates in Parliament, before the 49th of Henry III.
or 18th of Edw. I.

IR, You ate welcome \ and since you were pleased to lend me .... word, that you would come and sit with me this Evening, I have been looking over all the Saxon Councils, collected by Mr. Lambard, and Sir H. Spelman, and yet I cannot find In them any Mention of Knights of Shires, or Burgesses for Cities or Boroughs; the only Persons there mentioned, as Members of those Great Councils, being Archbishops,, Bishops, Abbots, and Great Lords, andJudges; often called by the general Latin Names of Magnates, Principes, Proceres, Optimates, or Primates Regni,which were all comprehended under the Saxon Word, Wites, i. e. Sapientes; by whom (as Tll Sir H. Spe/manshews us in his Glossaty ) were meant only Senators, or Wise-men j B. '0. * that is, either 'Noblemen, or GreatLawyersWite, in Somner\ Saxon Dictionary, being first rendred Optimas, a Nobleman; and then Sapiens, a Wise-man. So jty, 66,6j.that these Wites, or Sapientes (Ib often mentioned in our Ancient Saxon Laws) when they are put alone, signify all the Ecclesiastick, as well as Lay-Members of Ec Sparfim; the great Council, such as Earls, Aldermen, and Thanes, and Judges, as Dr. & more particularly proves, in his Glossary at the end of his first Volume. But by Principes, and Optimates, can only be meant Nobles, or Chief Men, as the Word Princeps,Magnas, and Optimas do always signify in the Latin Tongue: That js to lay, such of the King's great Officers, Noblemen, and Judges of the Kingdom, as he pleased to chuse out, and call to his Great Councils, either for their great Wisdom or Estates, to make use of their Advice and Assistance for the making of Laws.

Therefore pray shew me where there are any Commons once mentioned in any of these Councils, or any that represented them. Here are indeed particu- B. A. P. larly mentioned, Archbishops, Bishops, Abbots, Aldermen,Wites, Great-Men, andp-?»10' Chief-Men, or Noblemen. These were all the Orders of Men that were then the constituent Parts of those Great Councils, Wittena Gemotes. And if the Commons, as now taken and understood, were then Members of them, they must be comprehended amongst the Wites or Sapientes, the Wise Men. But that it cannot probably be so, I shall prove, (1.) That most of the Saxon Laws, in their Prefaces are laid to be made and ordained by their Kings, with the Advice and Assistance of their Wites, or Wise Men simply, without mentioning any particular Orders of Men whatsoever. And when any. Rank or Degrees ofMen are particularly mentioned, they are only the fame before rehearsed, both Ecclesiasticks

Mm and

and Laicks. (2.) I note, that it carmot be denied, but that in every one of these Wittena Gemotes, Mice! Synods,Mice/ Gemotes, or Great Councils, whete the Laws are said to be made only by the King, with the Advice of hisWitts or Sapientes, without particularizing any Degrees of. Persons -, the Bishops and Abbots for the Spiritual Nobility, and the Earls, or Aldermen and Thanes; tor the Temporal, were present at the making of them-, as also the Judges^ if there were any of the higher Class, other than Bishops, Aldermen, and Gereves, or Prepofiti. (3.) I note, that it follows from thence, that these all jointly were the Sapientes, where there are only Wites or Sapientesin general named, without reciting any particular Orders or Degrees of Men. Now if .you can shew me from as good Authorities as, \ have here produced, that any <» rtbt Commons fate in these Great Councils, at least to represent the Body of She Commons among the Saxons, I will grant, that during the Saxon Government, the Freemen, or Commons of England, as now called, and distinguished from the Great Lords, were an essential constituent part of the Common Councils of those Times.

F. To return you as short an Answer as I can, to these Authorities you now cite, I must in the first Place premise, That though I grant all Nobility among the Ancient Germans, Saxons, and Franks, (who were but so many Stirps or Branches of the Gothic Nation) were at first wholly Military •, yet it is a very great Mistake, and favours of the Prejudices of the Age and Country we live in, to imagine that anciently there were the fame Distinctions between Peers or Noblemen, and Gentlemen, (whom we now call Commoners) as there are now. For if we go but over into France or Germany, we shall find no Difference there between the greater and the less Nobility; and a Gentleman is as Noble as a Duke, or a Marquis. And if we pass farther, into Denmark andNorway, from whence most of the Danish Laws are supposed to come, it is certain, that, but a few Years ago, there were no such Titles among them as Earls, or Barons every Lord of a Town, or District, being that which they call an Adelman, or Nobleman. And so I suppose it anciently was among the English Saxons. The

Cap. 21. Word Aihel, or Adel, comprehending (to speak in our present Dialect), alt Degrees, as well Noblemen, asGentlemen-, and for,'this,I, can give you !the Authority of an Ancient Author, viz. Paulus Warnefriius de gejlisLongobarAorum, who speakingof these Adelmen, or Adelings, tells usS7c apud eos quidam Nobiles projapiavocabantur. So likewise Sir A Spelman in. his Glossary, Tit. Adelingi, Tit. p. 9, 10. writes thus, Anglorum legibusdid pro nobilibus in genere, quod nec dim apud Germanos antiquatum ejf, qui omnes ^//W.Ædelmen vocant,

Pag. 708. 0 Saxonico Ædel pronobili: And Mr. Selden in his Titles of Honour, makes' the Word Ætbelum to signify all one, either Gentlemen or Noblemen. Besides,

* Lib. 4. Adam of Bremen,* and * Nitardus likewise, both Ancient'Historians, divide the Saxon Nation into Three different Degrees, or Orders, viz. into Athelings, i. e. Nob/es; Frilings, i. e. freemen-, and Lazzos, i. e. Villains,Bours, or Bondmen.

Besides which. Noblemen, or Gentlemen, there was likewise another Sort of Men, who though of an Inferior Rank, yet as Freemen, and having a considerable Share of the Riches and Strength of the Nation in their Hands, had likewise a Place in the Great Councils, as well as the former. And these were the Aldermen, or other Magistrates of Cities and Boroughs -, and in this they resembled the German Qiets, whose constituent Members were, according to Gonterus, an Ancient German Poet, 

Frxlati, Froceres, mijsifque potentibus Vrbes. , ,

But since this is a Dispute about the Signification of Words, in what Sense they were used in that Age we are now treating of, it will not be inconvenient to, examine from the most Learned Glossarists, the Ancient Signification of chose. Words which are in Dispute between us. And therefore, since, we are agreedabout the Meaning of all other Words except these, viz. Aldermen, Thanes, Wites, Magnates, Optimates, and Principes,Proceres, ot Primates, let us examine each of their Ancient Significations. To begin then with the-Word £al&op-man, Alderman, which Word was of a very general Signification,;: For Sir JJen.Sp*lman in his Glossary, Tit.Alderman, tells us, that there was Aidermannits Regis, Comitatut, Qvitatis, Burgi, &c. de Quorum pot"fiate nonfacile eJL dejwre.

2 Mr: Lam

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Mr. Lombard renders the Word €al&opman, in Latin Senator, (i. e. one that had rn his GJofftplace in theGreat Council); and so doth Mr. Somner in his Saxon Dictionary; ry' Tic-Alderfrom whence you may learn, that this Word is of a large Signification, and man' might comprehend such as in latter Times were called Commons, to distinguish them from the Lords or higher Nobility.

Verstegan renders this Word thus; €al&ep, Jo written in our ancient Lan- p. $26. guage, is properly an Elder,or Senior; yet an €al&epman, which we call now an Alderman, was such in effeB among our Ancestors, as wot theTrihunus Plebis with the Romans, that is, one that had chief Jurisdiction among the Commons, as being aMaintainer of their Liberties. And if so, such Persons must certainly have had a Place in the Great Council as Commoners 5 and therefore must from the Reason of the thing, signify something more in thole Times than an Earl, or great Officer of the King only.

So likewise, that the Word Thane comprehended more than the King's Great Feudal, or Military Tenants, may appear by these Interpretations of it, which our Antiquaries have given us. The Industrious Mr. Somner, in his Gloflary at the end of the X. Scriptores, as also Mr. Se/den in his Titles of Honour, do both agree in the difference I now make between the Greater and the p-267Less Thanes; the former being called cynm^er ^Se^nerThani Regij, the other Gi««7. called me&mera 'Sesnar Mediocres, vel Inferiores Thani, Middle, or Less Thanes, TM ^Cana" who were Maneriorum Domini, Nobiles minores, Vavasores C nonnunquam li-' beritenentes. With whom Sir H. Spelman in his Gloflary agrees, Thanorum duo er ant genera Majores quos 1 hainos Regisappellabant, nos Barones Regis, & Thaini Simpliciter, feu Thaini Minores qui lidem erant qui Barones Minores,hoc est Maneriorum Domini Nobiles minores, & nonnunquam Liberi Tencntes nuncupantur. So likewise Mr.Lambard in his Gloflary, thus, Thani autem £ 225. appeUatione viri interdum Nobiles, interdum liber Aconditiones homines, interdum Magistratus atque ftpe numero Ministri notantur. And also in his Perambulation ofKent, faith ^ejen, was usually taken for the very lame that we call now from the Latin word Gentilis, a Gentleman, that is, "£u$w, A man well born, or of good Stock and Family. So that I think nothing can be more evident, than that according to the Opinion of our best Criricks in the Saxon Tongue, the word Thane doth not always signify a great Lord, or Baron of Parliament, as he is now called, in distinction to an Inferior Nobleman or Gentleman. And that there were also Burgh Thanes, Thanes of Cities and Boroughs, will evidently appear from a Writ or Charter of K. Edward the Confessor, which is still to be found in Sir John Cotton % Library, in these „ .EiF . words e&wapb Kw£ Spec Willem -J Leo&tan -3 ytlrp popte peren -j alle mme Bupsfrepner on Lun&en ppenbhce, which Charter with divers other of p. 97. Ex Car like nature, confirming the Privileges of that Monastry, were collected by a c«n»bi Monk of Westminster called Sulcardus, who lived not long after the Conquest. westmin.

In the next Place, as for the word Magnates, though I grant it there often signifies Great Men or Lords; yet not only such as were Lords or Noblemen by Birth, but as I shall shew you by several Instances, as well before,, as after the Normans Entrance, that it also comprehended the Gentry, or Inferior Nobility, and such as were eminent and considerable either in the Countries or Cities, for Interest, Office, or Estate. ,

As for the word Optimates, I know it signifies the better, or best sort of Men; yet not always great Noblemen , or Lords 5 For in Monastic. Anglic. Tom. 3. we read of one Goda, who under Edw. the Confessor subscribed himself Optimatem, & Ministrum Regalem, (\. e. Thane.) And lest you should apprehend that Optimal should always fignifiy the King's Thane, or Tenant in Capite, de Frefne in his Glossary defines Optimates to be VajsaUiBarones qui ab uUo Domino ratione Hominii unde pendent ; but I shall lay more of this word Optimates, when I come to speak of the Times not long after William the First.

In the next place, for the word Proceres, it doth not only signify Men noble by Birth, but Isidore (a SpanishAuthor in the Gothic Times) in his Origines, Lib. 9. Cap. 4. fays thus, Proceres sum Principes Gvium; and that this word often signified in the ancient English Saxon, the Chief Magistrates of Cities or Burghs, appears byAlfrick's ancient Glossary, where these words- Proceres primates, vel primores, he thus renders yl&ppr buph papa. And du Frefne in his /. $6.



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i> 420. Glossary also, Proceres appellabantur qui in Civitatibus prxcipuos Magistrate gerebant.

As for the word Principes, any Man that understands any thing of the Latin Tongue, knows that it doth not always signify Princes, or Men Noble by Birth ■, but any Chief, or Principal Man remarkable by Place, Office or Dignity and therefore we often read in Livy, and other Latin Authors, of Principes Qvitatk; and in this Sense I suppose every Member of Parliament may be reckoned inter Principes, among the Considerable or Chief Men of the Kingdom: So that when our ancient English Historians, (as well before as immediately after the NormanConquest) do often, after the Archbishops, Bishops, 8tc. add, i!f cœteri totius Regni Proceres, C Optimates, orPrincipes, as Members of the great Councils of those Times: Yet that these Writers did not then mean what you would understand by these words, only Princes, Earls, or Great P. 60$. Lords, Mr. Se/den in his Titles of Honour teaches us, when speaking of this word Principes (as the most comprehensive of any) fays, that tho1 Princeps in the Singular, were proper to every Earl or Alderman; yet ;in the Plural, Principes is more often applied comprehensively to others also of less, tho' of special Eminency, such as were Viri Primarii, or Thanes. And for this he refers us to the Charter of King Ethelwulf, (as it is recited by W. of Malmsbury, Lib. 2. Cap. 2. andIngulph) wherein that King granted Tithes, and divers other i». <58a. edit. Privileges to the Church-Abbey ofMalmsbury, which is said to be done ConFranc. jisw Eptscoporum, & Principium suorum ; as also of Hen. Hunt.Who relating fbil6^ Edit' tne Election of Harold the Son of King Cnute, expresses it thus •, suit magnum placitumapud Oxonford ubi Leosricus Consul, V? omnes Principes eligerunt Heraldum.

Lastly, As for the word Wites or Sapientes, there can be nothing in that Word which can limit it only to Men Noble by Birth, since it signifies no more than the King's Great Council of Wise Men or Senators, and might also well reser to the Chief Magistrates, or Representatives of great Cities and Boroughs. For Du Fresne in his Glossary tells us, That among the Lombards, Tom. 3. p. 700. Sapientes in Italia appeUabant, & Civitatum CivesPrimarii, quorum Conjilio Respublics gerebantur. Hieron. Rubeus, Lib. Hist. Raven. Anno 1297.— £ed longeantea iliud nomen obtinuit in alijs Longobardorum Civitatibus ut colligere liceret ex Ottone, il? Acerbo Morenain Hist. Rerum Londevetium, &c. VuL Qntiw ^0J. -g tfris Authority inconsiderable, since the Lombards were derived from HistmTcoim^- trie Goths, from whom also the English Saxons had their Original, and had the cam.'like fundamental Constitution, and were governed by much the sime Laws.

But that the Title of Wit es or Sapientes, was often attributed to the Commons of England, I shall explain to you when I come to treat of the Antiquity of the House of Commons, alter the Normans Entrance; where I shall shew you, that divers Petitions were directed a tres Sages les Communes. And sure whosoever is chosen by a County, City, or Borough, as their Representative, and is by them thought wise enough to be trusted with their Purses, and to make Laws for them, may very well (I think) be called in Old English a Wite, or in our modern Dialect, aDiscreet or Wise Man. But let this word Wites signify what it will, yet it could never mean here great Lawyers orJudges, as your Dr. will have it; since I very much doubt whether Law was then a Trade or Profession, or not. And that the Judges in those Days had not any more Voice in making Laws, than they have now, or any more to do in it than in the bare drawing of them up, I am very well satisfied; since if they had any such Power in those Days, I do not believe our Kings would ever have let them have lost it, since it was so advantagious to their Prerogatives that they should keep it. I could give you divers other Authorities, though of later date, to prove that the Commons were often included under the word Sapientes in our ancient Statutes and Records; but I refer those sot the Times after the Conquest. I beg your pardon for being so prolix already, which the Abuse your Dr. hath put upon these words would not permit me to avoid. But now we have cleared most of the Terms in dispute between us, I hope we may proceed with greater Certainty.

Al. Though your Discourse hath been so long, yet since it is so essentially neceflary to the right understanding the matter in hand, I am well satisfied j and I shall more fully consider the Account you give of these Words another

. ■. . time, time. But at present give trie leave to tell you, That suppose I should admit, that those Words on which you have now given Interpretation of divers Authors, may sometimes be taken in the Sense you have now put upon them; and that consequently the Commons might be represented under some of those general Names; Yet am I not satisfied, how the Aldermen and Magistrates of Giles and Boroughs, could be included under this WordWites, since in the Auctuary to the Thirty Fifth Law of Edward the Confessor, 'tis laid, Erant & alu potefiates, B.G: p. 67. fff dignitates, per Provincias, & Patrias universas, C per fingulos Comitatus tot'ius Regni constitute, quiHeretoches apud Anglos vocabantur, Scilicet Barones, Nobiles, infignes Sapientes, 8tc. And Gregory of Tours,Rodovicus, and many of the Foreign Ancient Historians, mention Sapientes only as Lawyers, Counsellors, Judges-, and among the modern Foreign Lawyers, Hottoman and Calvin lay exprefly they were such. But perhaps not of the Inferior Rank, no more than the Saxons Sapientes were, of which their Wicena Remoter only consisted. And we have at this Day the Judges, and King's Council, and other great Lawyers, that fit in the Lords House, and are assistant to the Parliament, when there is Occasion. Nor have you yet brought any Proof, that the Cities or Towns then sent their Representatives to the great Councils in the Saxon Times, by this, or any other Title. But as for rhe Knights of Shires, though I grant the Treatise called Modus tenendi Parliamentutn, mentions such Persons to have been present In Parliament in the Time of King Ethelred; yet by that Word Parliament, so often used by the.Author of that Treatise, and divers other Circumstances, it may be easily perceived that the Author lived but about the Time of Edward III. or Richard II. as Mr. Selden in his Titles of Honour, and Mr. Pryn in his Animadversions to Sir E. Coke's Fourth Institutes, have very fully proved ■, so that admitting that your Thanes,or Lords of Towns, did then appear in those Councils for themselves and their Tenants, yet could they not be properly said to be their Representatives, because (as I told you before) they were never chosen by them; whereas now the ordinary Freeholders, of Forty Shillings a Year, and the Freemen and Inhabitants in Cities and Towns, have the greatest Share in the Election of s Knights, Citizens and Burgesses.

And as sor those Thanes you mention, they are those undet whom they claimed, owed their Estates wholly to the Grants of former Kings, and held their Possessions from them by some Tenure or other. And by Virtue of this Tenure it was, that all the Lands of England were liable, even those that belonged to the Church, to those Three Services, anciently called Trinoda Necejfitas, viz. Expeditio, Castelli, i!f Pontis extruQio, that is, Military Service against a Foreign Enemy, and the Repair of Castles and Bridges; and subject to the common Services of the Kingdom. And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service, appears by the Reliefs of the Earls and Thanes, express, in the Laws of King Cnute, in Sir H. Spelmans Councils. So that if all the Persons who held those Lands, owed them wholly to the King's Bounty, it seems plain to me that they must likewise owe their Places in the great Council to the lame Original.

F. I think what you have now farther urged will be of no great Moment against my Opinion 5 for as ro the Authority you bring from the Addition to that Law of Edward the Confessor, it is plain by the Word Barones,that it was added long since that Time, that Word not being commonly in Use, till some Time after the. NormanConquest. But letting that pass, it is plain by the rest of the Law, if you would have been pleased to have read it out, that these Heretoches ( here called Baron? ) were no other than ordinary Gentlemen, or Thanes (which then answered the Word Barons. And these ( as this Law it self expresty tells us) were chosen by all the Freemen in the Folcmote, or County-Court. And therefore though I grant they might be Men of Estates, yet there was no Neces fity of their being Lords, or Noble by Birth; nor is it likely that the People would have chosen their Earls, or any other of the like Order, when they had sufficient Choice of Thanes or Gentlemen in their own Countrey, to command the Military Forces of it. And though it is true these Gentlemen are called Nobles, and remarkable Wise Men, yet this (according to your own shewing ) doth not exclude others, and those"of a far different Profession,viz. Counsellors, Lawyers, and fudges, all which, you suppose had then Places in the Great Coun- . cilv as they have now in the Lords House. And if this Word might comprehend 1 both

both SWordinen and Lawyers, I cannot fee why it may not also take in the better and richer sort of Citizens and Magistrates, who in that Age, were elected by their respective Corporations: And I have already proved that these were called Sapientes in other Countries and I fee no reason why they may not have been called so here too. But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils, I have already given a sufficient Reason to the contrary.

I shall now farther shew you, That the Cities and Boroughs in the Saxon Times being so much more numerous and considerable than they are now, must needs have had (according to the Custom of those Times (a considerable Share in those Great Councils, since in them consisted a great Part of the Strength and Riches of the Kingdom j and were many more than they are at this Day-, for Bede tells us in the beginning of his History, That there werein England long Vi. Hollinfh. before his Time, Twenty Eight Famous Qties, besides innumerable Castles, andwalled chro.p. 192, Towns of Note ; many of which, though now extremely decayed, or quite ruined, \9l'Zhere,were then very considerable, the greatest and richest Part of the Nation inhabiting prnMtbbAs- m those Times for the most part in Cities ,or great Towns, for their greater Benefit sertim from or Security •, and the greater Part of the Lands of England in the Saxon Times, fivers Ancient and long after, lay uncultivated, and over-run with Forests and Bogs: So that the Authors. Inhabitants of those Cities and Boroughs being then so considerable for Estates in Lands, as well as other Riches, could not be excluded from having Places both in the British, or SaxonGreat Councils. What Man of Sense can believe, that the Ancient and Potent Cities of London, York, Canterbury,Lincoln, &c. should ever be excluded from having any Hand in the Great Consultation about giving Money, and making Laws, and for the Publick Defence of the Kingdom in the Saxon Times, any more than they are now > And therefore we find, that in all the Kingdoms of the German, or Gothick Original, the Chief Cities and Towns have still sent Deputies to the Diets, or Assemblies of Estates, as I said but now.

In the next Place, though I do not assert, that there were Knights of Shires before the Conquest •, yet I am not convinced that there were none. For though I confess the Treatise you mention, appears to have been written since the coming in of the Normans, yet the Substance of it must have been much older than the Times of Edward III. and Richard II; or else certainly King Henry IV. or his Chancellor for him, would never have been at the Trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal, which is thought to incroach so much on the Prerogative, had he not been very well informed of the Antiquity, as well as Authority thereof. And therefore it might very well be written about the Time of Henry III. from some Ancient Historians and Records, not riow Extant, though the Copies we have of it, may be of no longer Standing, ihan the Time Mr. Seldenmentions.

j But admitting that there were no Knights of Shires before the Conquest, and though the Thanes (who I suppose made the greatest Figure in rhe Wittena Gemotes) were not Earls, or chief Thanes, that is, of the Greater Nobility yet they were great Freeholders, and though Commoners, yet Gentlemen, and of the Lesser Nobility, in the fame Sense as Gentlemen, or Knights of Shires are now. And though not elected by the Countries, yet might be as well esteemed their Representatives, as they are now of Freeholders under I40 s. per Annum, Leaseholders and Copy-holders for Years, who have no Votes at the Election of Parliament Men; whereas these Thanes were then the chief (if not the only) Possessors of all the Freehold Estates in the Kingdom.

Nor is it any material Objection to fay, that these Thanes might at first owe those Estates to the Grant of the FirstSaxon Kings, and might also after a Sort hold their Estates of them as Heads of the Commonwealth, by such Services as were setded by Publick Laws; yet does it not therefore follow, that they owed their very Right of coming to the Great Council wholly to the King's Favour. For in the first Place it is to be considered, that though the First Saxon Kings conquered this Island from the Britons, yet those that assisted them being only Voluntiers, the Chief Officers or Commanders of them might not only deserve, but also capitulate for their Shares in the Land so conquered. And these being given out by the King, according to each Man's Quality, Condition, or Desert, might constitute those who were called the King's Xbaner-, as those who held likewise under them, were; the Middle Thanes or Vavassors-, supposing (till you can prove the contrary) that these had.Places in the Great Council, as well as the other j and you might as well argue that they could have no Places there, but by the Favour of their Lords. Whereas I have already proved, that an Estate of Five Hides in Land, of whomsoever holden, made a Thane or Nobleman of the Inferior Rank: And we find by the same Laws of;King Athellian, hisWeregild, or Price of his Head, was valued but equal with that of a Mass Thaner or Priest, {viz.) at Two ThousandThrymsat. So that a sufficient Estate in Land, did not ■only make a Man a Gentleman, but also give him a Place in the Great Council. And there were besides all these several Alodarij, who held their Lands, dis charged from all Services, and could sell or dispose of them without the Consent of the King, or any other inferior Lord, and are those often mentioned in Domes<Zav-Book, qui potuit ire cum terra quo voluit. Nor is your Argument conclusive, That because in those Times, as well as now, all Lands were held either mediately or immediately of the King, and were chargeable with those Three general Services you mention for the Publick Safety and Good of the Kingdom i that therefore not only all Mens Civil Properties, but also their Right of coming to the Great Councils, must wholly depend upon the King's Will: Since I have already proved, that the first Saxon Kings by their Conquest of the Kingdom, could not acquire the sole Property of all the Lands thereof to themselves, though they might be made use of as Publick Trustees, to distribute them according to those Mens Qualities and Deserts, who had helped them in the Conquest. So that when they were once possessed of such Estates, they had immediately thereupon a Right to a Place in the Great Council, the Burthen of the Government lying chiefly on such as had Estates in Land.

And that many others besides the Kings Thanes, or Great Lords, had Places in the Great Council of those Times, appears as well by the Name of Mycel * Synods, or Wittena-Getnots, which are rendred by our Ancient GlosiaristsNumerosa, or Pofulosa Convention as also the Titles and Conclusions, to divers of the Titles of those Great Councils in the Saxon Times, where are often mentioned after the Comites, & Proceres Terrae, aliorum fideliuminfinita multitude, which must certainly take in many more than the King's Thanes, Judges, or other of his Great Men, who were then but a few in Comparison of all the rest of the Freeholders of England.

M. I will not longer dispute the Probability of what you say; all the Difficulty lies in the Proof of the Matter of Fact. For in the first Place I deny that any other of a less Degree than the King's Thanes, or Chief Tenants, had any Places or Voices in the old Eng/i/h Councils. Nor can you find (as you your self'are forced to confess ) in ourSaxon Laws, or Ancient Historians of those Times, any Representatives of the Common People mentioned such as are now, much less Citizens or Burgesses for any City or Borough in England. And therefore what you fay concerning the Riches or Power of the Cities and Towns before the Corir quest, though perhaps it might be true, yet doth it not theretbre follow, that they must then fend their Representatives to the Great Councils. Nor is it any Argument to prove that they did, because great Cities and Towns do or did lately fend Deputies to the like Assemblies in other Countries, since our Government might not only Originally differ in that from theirs, but that also the sending of those Deputies might be granted by some later Princes, long since the Time of the first Beginning of those Kingdoms, and I do believe will prove so, if closely look'd into.

F. I think your Reply hath no more Weight in it, than what you have already urged: For in the first Place it lies upon your Side to prove, that none but the Kings or Chief Thanes, had any Places in the Great Councils of those Times •, and when you can prove that, you may do something.

But what I have now brought to prove the great Antiquity of our Cities and Boroughs in England, is not so little to the Purpose as you would make it; since it confirms that Right of Prescription, which all Ancient Cities and Boroughs in England do claim of fending Members to Parliament •, and therefore pray see what Mr.Lambard, a Person whom all the Learned own extremely knowing in the En- pag. 25^,257, glijh SaxonGovernment, tells us on this Subject, in his Archeon in these Words. &&

That

"That whereas in the Beginning of the Laws, (viz. those made by the Saxon "Kings he there mentions) all the Acts are said to pass from the King and his "Wife Men, both of the Gergy and Laity, in the Body of the Laws, each "Statute being thus •, And it is the Advice of our Lord, and his Wife Men. So "as it appears that it was then a received Form of Speech, to signify both the "Spirituality, and Laity (that is to lay, the Greater Nobility, and the Less, ot *' Commons) by this one Word Witena, \, e. Wife Man.

*' Now as these written Authorities do undoubtedly confirm our Assertion of "the Continuance of this manner of Parliament, Ib is there also unwritten Law *' or Prescription, that doth no less infallibly uphold the fame. For it is well "known, that in every Quarter of the Realm, a great many Boroughs do yet "fend Burgesses to the Parliament, which are nevertheless so Ancient, and so "long since decayed, and gone to Nought, that it cannot be shewed that they u have been of any Reputation at any Time since the Conquest, and much less <{ that they have obtained this Privilege by the Grant of any King succeeding *' the same. So that the Interest which they have in Parliament groweth by an "Ancient Usage before the Conquest, whereof they cannot shew'any Beginnings * which Thing is also confirmed by a contrary Usage in the selfsame Thing j "for it is likewise known, that they of Ancient Demesne, do prescribe in not  sending to the Parliament; for which Reason also, they are neither Contri"butors to the Wages of the Knights of Shires, neither are they bound by sundry "Acts of Parliament, though the fame be generally Penned, and do make no <c Exceptions of them. But there is no Ancient Demesne, saving that only which "is described in the Book of Doomsday, under the Title of Terra Regis, which ** of Necessity must be such as either was in the Hands of the Conqueror him'* self, who made the Book, or of Edwardthe Confessor, that was before "him. And so again, if they of Ancient Demesnes, have ever since the Gon"quest prescribed not to elect Burgesses to the Parliament, then (no doubt) there "was a Parliament before the Conquest, to the which they of other Places did v t*' send their Burgesses.

From whence we may conclude, that the Learned Author did not only believe that the Lords, but that also the Inferior Nobility, and Representatives of Cities -and Towns, were included under the Word Wites, and also that these Places claimed that Priviledge by Prescription, and not by Grant of any King since the Conquest, or before.

M. I shall not deny but Mr. Lambard was a Learned Antiquary, yet there are others, more in Number, and perhaps of greater Learning, who do suppose, that no Cities or Boroughs sent Burgesses to Parliament, but since the Conquest; tho* I confess the Time is not exactly agreed on; but whenever they began to appear there, it is certain they could have no Right of coming, but from the King's Summons or Grants; since none but such Cities or Towns, that held of the King in Capite, had anciently any Place in those Assemblies; nor of them neither B. A.P. any other, but those whom the King pleased to call. And from thence proceeds p'ag. 38. that great Variety we find in the List of those Towns, which send Members to Parliament. But I shall omit speaking any Thing farther of this at present.

But as for those middle, inferior Thanes or Vavaffours (as they were afterwards called) whom you suppose to have made so great a Figure in the Saxon Great Councils, I do not believe that they had any Votes there; and I hope I shall be able to prove to you by and by, that none but the King's Tenants in Capite appeared in those Meetings, from the Time of William the Conqueror, to the 49th of Henry HI. Now if it be true (as you suppose) King Wiham made no material Alterations in the constituent Parts of the Great Council of the Kingdom, after his Conquest of it, it will likewise follow, that the same Sort of Persons, viz. Tenants by Knights Service, were the only Members of it before the Conquest too. But if you have any express Authorities, out of our Ancient Saxoniaws or Histories, to prove that the Commons appeared at ihtWittena Gemotes In the Saxon Times, pray let us see them. 1 ,"tU-1 •'■'

F. I shall perform your Command immediately; but in the first Place give me leave to tell you, that what you have said concerning Cities and TowmS'riM sending Burgesses to Parliament,, till after .the Conquest, is a great Mistake, [bra? wpon a.false and precarious Hypothesis, that they all held in Capite- of the King';




{273}

the contrary of which, I shall make out, when I come to treat of that Question; So likewise is it as precarious, that none but the King's Tenants in Capite, had any Votes in our Great Ceuncils, in the Times immediately succeeding your Conquest, till the 49th of Henry III. and that therefore it must have been Ib before the Conquest. For as I own that King William made no material Alteration in the Government of the Kingdom, after his Entrance, so I likewise affirm, that as well after, as before that Time (if not Knights of Shires, yet) all the Thanes or Barons, i. e. great Freeholders of England, had Places in that Assembly before the 49th ot' Henry III.

But to proceed to the Authorities you desire) I shall begin with the First, and most Ancient General Council we have left us in the Saxon Times, viz. that which was held 3t Canterbury A. D. 605, by King Ethelbert, not long after the Settlement of Christianity in this Iiland \ which is Recorded by Sir H. Speltnan in his British Councils, in these Words * An. Intarnationis Dominica 685. Page 126. JEthelbertus Rex in fide Roboratus Catho/ica unacum Bert a Regina filioque ipso Eadbaldo, ac reverendijfimo pra/ule Augustino, caterifque optimatibus TerrxSoJenitatem Natalis Domini Celebrant Cantuari* Convocato igitur ibidem Commum Confilio tarn Cleri quamPopuli; Whence you may observe that the People then made a considerable part of the great Council from the very Beginning os the Saxon Times.

M. Pray, Sir, will you give me Leave to Answer your Questions, one by B. A. Pi one as you go, for fear I should not only forget them, but also tire you with Fw- 4> too long a Speech. In the first Place therefore give me Leave to tell you, that you are very much mistaken to suppose, that by the Word Populus, is here meant the common People, or Vulgar-, Whereas, when Qerus and Populus are used together, in our Ancient Writers of those Times, it signifies no more than a Common Council of the Clergy, and People or Laity, and not the Common Peoplefor then the Lords, or Great Men would have been quite left out of this Council, as certainly they were not; and so when Clerus, and Populus, are used together, and thus contradistinguished, then they are expressive of Two different Estates or Conditions of Men or Christians, the Clergy, and Laity or secular Men ■, and those were the Optimates Terr<e, the chief Men of the Land before expressed. Neither was this Council held under a sole Saxon Monarch, but under Ethelbert King of Kent only and that but Eight Years after Augustuscoming hither, and above Two Hundred Years before the Seven Kingdoms were united into one Monarchy.

F. I am not at all concerned at this Answer, since I can prove, that by the Word Populus must be here understood somewhat more than Kings, Noblemen, and Judges, viz. the Representatives of the Commons likewise;or else the Saxon Witena-Gemotes were not what their Titles speak them to be, Common, or General Councils of the whole Kingdom that is, of all the Estates or Orders of it there, but only a Convention of the Bishops and Great Lords. And therefore if the Word Clerus did then comprehend, all the Clergy, both Superior and Inferior, i.e. as well the Bishops as Abbots, Priors, Deans and Clerks, for the Secular Clergy, and Cathedral Chapters, &c. I pray give me a Reason why the Word Populus, when put alone, must be whoMy confined to your Earls, or ChiefThanes, and may not also take in the Middle or Less Thanes, Freeholders, or Lords of Townships, and the Representatives of Cities and Borough Towns j and why not with as much Reason, as that the Word Populusamongst the Romans, took in the whole Body of the People of Rome, both Patricians, and Plebeians, when assembled in their Comitiis Centuriatis, to make Laws, or create Magistrates. The rest of your Argument is not very material •, for though I grant this Council was held before the Heptarchy was united into a Monarchy, yet I think it is very easy to prove, that as all the Saxon Kingdoms consisted of several Nations of the fame Language and Original, so were they likewise under the fame Form of Government: And that Councils consisted of the fame constituent Members, as I shall prove to you from the Kingdom of the fVeft Saxons, from which was the Foundation of our present English Monarchy. And for this I shall give you the Authority of Will, of Malmesbury,and H. Huntingdon, (who 'tis highly probable) had seen the Ancient Histories and Records of those Times) and they both agree in the Relation of the Deposition of Sigebert, King of the West Saxons, for Tyranny and Cruelty,Anno 754; the Words are remarkable, which pray

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read; Unde in Annosecundo ipsius Regni congregatisum Proceres, tffPopuliTotius Regni iff provida de/iberatione,iff unanimi consensu omnium expulsus est a Regno iff Kinewulfas satus ex Regio sanguine eleSus eft in Regem; where you may observe a plain Difference made between the Higher Nobility, here called Proceres, and the Representatives of the People, here stiled Popu/i; as also from another Authority of a Great Council, held under the same King Æthelbert, as it is mentioned by Roger Hoveden, Domestick to King Henry II. in the Second Part of his Annals; where among the Laws of King Edward the Confessor, and which he writes to have been confirmed by King William I. you will find under the Title de Apibus, iff de aliis minutis Decimis, (which are there laid to be given to the Clergy by former Kings, and particularly by this King Etbelbert) these Words; Hacenint SanBus Augusiinus prœdicavit, iff docuit iff h£c concejsa sum a Rege, Baronibus iff Populo. So that ifPopulus here doth not signify an Order of Men, distinct from the Barons or Great Lords, it would have been a Tautology with a Witness.

M. I must confess, if this Authority you now urge, had been as Ancient as the Time to which it is ascribed, it would be of some Weight; but it appears by this Word Baronibus (not used in England till after the Conquest) that it was added long after that Time ( by some ignorant Monk ) to the Confessor's Laws, and therefore will not prove that for which you bring it, vis. That the Vulgus understood for the People or Commons, in the Sense they are now taken, had any Place in the Saxon Great Councils. B. A. A. But make the most of it, this was but the Confirmation of a Law made

Page 291,2f8.jjy j^ing Æthelbert; but how, and by what Words the Legislators were expressed near Five Hundred Years after the Law was made-, or how they were rendred in Latin after the coming of the Normans transiently, and without Design to give an Account of them, cannot be of much Validity to prove who they were; and that the Laws of King Edward were made, or at least translated into Norman Latin, after the Norman Conquest, appears by the Words Comites, (besides the Barons already mentioned) Milites, Servientes, 8cc. al! NormanWords (used in those pretended Laws) and not known here, till their Coming hither. He that will assert any Thing from a single uncouth Expression in one Case, and upon one Occasion only, brings but a slender Proof for what he %s; so will any Man think, (because'tis laid in one of King Edward's Laws, (and perhaps no where else, concerning this King's Coronation) quod debetin propria persona, cor am Regno, iff Sacerdotio iff Qero, jurare ante quam ab Ar~cbiepiscopis, iff Epifcopis Regni coronet»/-;) That the Priests were not Clergymen, nor the Clergymen Priests; and that the Archbishops and Bishops were neither. Many other uncouth Expressions do often occur in the old Monks, which are to be interpreted according to the common Usage and Practice of the Times in which they are delivered. And therefore seeing before the Time of the Conquest, and for Two, or near Three Centuries of Years afterward, the Commons (as at this Day understood) were not called, nor did come to Great Councils or Parliaments, as I shall prove when I come to speak of those Times: So that by Barons must be here meant the Great Barons, and by Populus, the Communitas Angli*, or which was then all one, the Communitas Baronum,-the Less Barons, or Tenants in Capite; and the Sense of the Words is farther confirmed by several undeniable Authorities; wherein, by the Communitas Populi, mast be understood not the Community of the People or Commons, but the whole Body of the less Tenants in Capite.

But to give you an Answer why the Word Populus could not comprehend all Sorts of People among the Saxons,as it did among the Romans, but only the Nobility, ( who were then, properly speaking, the only Freemen) is this, that none but the Nobility possessed any Lands in Fee-simple; all the rest of the meaner Sort of People (then called Cbeorl Polk) holding theirs in Villanage under their Lords or Thanes, being no better than meer Villains, or Costagers, and who were all bound to the Good Behaviour, every Tenth Family being bound one for another, in the Sheriff s Torne, or Court of Franc-Pledge, under their Head, or Tenth Man, called the Tjfthing-Man, who was to answer for them. So that the Commons of England were not such a Free People, nor had any Share in the Government, as some suppose, there being, I believe, no such Persons a§ our Yeomen or Farmers in those Days.

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K I (hall, I hope, take oft this Objection against my Signification of the word Populus. Perhaps this Law might very well be transcribed .fipm some old Copy of King Æthe/berss Laws not now extant , and in whfeh .. there might be the Word Thanes, instead of Baronibus, which is but a Translation of it, in the Sense in which it was used not long after the Conquest"..

Nor is it true which you affirm, that the Word Bar ones was never in life before the coming in of the Normans,in ancient Charters ; as, I shall prove to you by this Charter of King Edgar, to' the Æbby 'of Msestnun$ertcontaining a Confirmation of their ancient Charters and Privileges, collected by the aforesaid Sulcardus, a Monk of Westminster, as it is to be found in" the Cot toman Library •, the Charter it self is long, but concludes thus, jnConcitw uwbj'wi bablto infra Basils (ant Westflpopast. Prœfidente secumfilio suo Edwardo,'^ Areh\- B,b.c0tt<m)hep'o Dunstano, & universis Episcopis & Baronibus juis; where you may 'fee EM'e Fauftithat the Word was not unknown before the Time of William I. And I could **• G- 3- f- i* give you more Instances of other Kings Charters, where the fame Word , is used before the Conquest, were it worth the while to trouble you with them. .„ .

And lb likewise Popu/us for People, or folk in the Saxon-, Yet take it fas .you suppose) to have been writ not long before the Time Hoveden writ his History, (which was above 80 Years before the 49th of Hen. 3.) This Authqr, or whoever else added this Passage to this Law about, Tythes, did then suppose, that according to the Custom then used, the People or Commons had Representatives in those Assemblies which I shall prove liom your own Sense of these Words; for if the Word Populus signifies here another Sort of Men • , different from the chiefThanes or Lords, then this Word Populus must'necessarily signify some that were Commons, and not Lords, by your own Conces fion, and who also must represent others besides themselves. But it is highly improbable, that by this Word Populus should be meant the Communitas Angina, or the Communitat Baronumj for then if the Word Baronum would have included all the Tenants in Capite, both great and small, to what Purpose should the Word Populus have been added at all? Therefore I am so far from believing this way of expressing the several Estates of the Kingdom, to have been a Monkish Blunder, (as you suppose) that it was rather a common and ordinary way of Expression among the Writers of those Times, as well in Records as Histories, who then very well knew the People or Commons, to be an Estate, or constituent Part of the Common Council of the Kingdom, quite different from the Lords; and in which Sense it is recited' in an ancient Charter of King John, that he being divorced, the new Queen was Rot. Cart. j. crowned, de communi ajfenju & cortcordi VoluntateArchiepiscoporum, Epifco- Johan. m. 5. porum, Comitum, Baronum, Qeri Zf Populi totius Regni; Where byClerus it is "• 33plain must be meant the inferior Clergy represented by their Proxies in this great Synod or Parliament j and by Populus' was understood the People or Commons, likewise present by their Representatives or else the Words Gents and Populus iad been idle Tautologies in this Record. And in the like Sense it is also used by Matt. Parts, in the 9th of Hen. III. presentibm Clero, & Populo, cum Magnatibus Regionis; Where this Author makes a plain Distinction between the Magnates, and the Populus 5 which had been altogether in vain, if the Word Magnates would have comprehended all your greater or less Barons, or Tenants in capite.

But I shall in the next Place proceed to that great Synod, or Council, that was called by King Edward the Elder,Anno Dom. 905. and is mentioned by Simeon of Durham, and other Authors quoted by Archbishop Parker, the Compiler of the British Antiquities, in these Words, Plegmundus Cantuarienfis Archiepifcopus, una cum RegeMagnifico cognominato, EdvBardoJenioreConsilium Magnum Episcoporum, Abbatum Fidelium, ProeerumilfPopulorum, tfc. convocavit. Which Synod, or Council, was called to divide the large Dioceses of Winchester andSherburn^mo Five other (as I have already told you) where you may plainly see the Words fidelium UsPopulorum , pur distinct from the Word Proceres, if we take that Word to signify only the greater Nobility.

I shall now conclude with a few Words in Reply to your Answer, why the Word Populus, could not among theSaxons take in all Sorts of People, as well as amongst the Romans j for I cannot take it as a satisfactory Answer,

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for these Reasons; i. Because, tho' I should grant that the vulgar Sort of People were greater Slaves than they are now, and that they had no hereditary Properties in their Estates, but at the Will of their Lords; yet does it therefore follow, that all the Freemen of the Kingdom were Noblemen or Gentlemen, or else Villains, as now understood > Since Nitardus tells us in the Place abovementioned, that there were Three Sorts of People among the Saxons, Edelingi, I'rilingi, & Lazzi, i.e. Gentlemen or Noblemen, Freemen, and Slaves or Villains •, and this middle Sort of Men might -also possess Lands in AUodie, or Free Tenure, tho' they did also depend upon greater Men sot 'Protection, and seem to be those who were after the Conquest called in Doomsday Book, Commendatii,i. e. such, who tho' they lived under the Protection, and within the District of some great Man, Lord or Patron; yet as Sir Hen. Spelman tells us, were free both as to their Persons and Estates, not as sworn to, or holding of any but the King. And besides these there were also great Bodies of Men in Cities, and Burgh Towns, and those very considerable for Estates and other Riches , who tho' not nobly born, and yet being Freemen, it was but reasonable that they should have their Representatives in Parliament, as well as the former.

M. I shall not at present dispute the Matter farther with you concerning the Word Populus, since I shall refer speaking more about it, till I come to the Times after the Conquest. And therefore to return to the Matter in hand j had you but read a little farther in the fame Leaf, in the Author you have cited, you might have found who they were, whom King Edward the Elder called to this Council; The Words are these, Edvcardw Rex SynodumPrxdiSam Nobilium Anglorum congregavit cut prefidebat Plegmundm. Here your own Author tells us in few Words, the meaning of a long Title of this Synod now mentioned, vie. that the Bishops, Abbots, Pideles,Proceres, & Populus, were all Nobiles, Noblemen, that is, the Ecclesiatticks and Laics, or the Bilhops and Lay-Nobility, as I shall make more evident hereafter; and not the Vulgus, Commons, or ordinary Sort of People.

And to this Effect Malmsbury, and the Manuscript in the Bodleian Library cited by Sir William Dugdale, and Mr.Somner, from the Treasury of the Records and Evidences of the Church of Canterbury, cited by Sir H. Spelman,do all report of this very Council, That Edwardus Rex congregavit Synodum Senatorum Gentis Anglorum cuiprœsidebat Plegmundus, Sfc. That King Edward convened a Synod of the Senators (in the Saxon, Aldermen, of the English Nation) that is, such as were usually called to such Councils, which were only the Nobles, and great Men, for ought yet appears from this Instance. But what if after all, there was never any such Synod called, and consequently no such Title to it? For it was said to have been aflembled, by reason of a chiding Letter from PopeYormofus now this Yormofus died Anno 895. that is, Ten Years before this Council was supposed to be called.;

E I see this Authority galls you, therefore I do not blame you to do what you can to be rid of it; but I shall not give it up for all that. For that this Word Populorum, then signified all the Lay-Persons, who were actually"Noblemen, that is, of the greater Nobility, I think is a great Mistake. For to what Purpose are all these different Words here heap'd together, since the Word Proceres had done as well alone in your Sense, and at once comprehended, all those Lords or Noblemen, that you would only have to be there? But the Word Nobiles did not in those Times, neither doth at this Day in any other Countrey but England, signify none but great Lords, Barons, or Peers since in Germany and France, and other Countries, every private Gentleman is Nobilfs. And 1 think the 'Middle or less Thanes, might then as well be called Nobiles, as the great Ones. And the Aldermen, or other Magistrates of ■ great Cities and Towns, might also very well be stiled Nobiles, ratione Qfficii, I for the time they acted in that Employment, and might also deserve the ! Name of Senators, as well as the greater Aldermen, j5r Earls : And if there 5 were no other Lay-Men, but your greater Sojt of Aldermen, then what becomes of your Chief, or Kings 'Thanes, which you your self grant were constant •Members of those Councils? Nor indeed doth the Word Senator only signify such who were Noblemen by Birth, since among the Romans there were Senators of the Plebeian as well as Patrician Order \ as any Man who hath

but but read Lucius florus, may quickly fee. But as for your Exceptions, That there was no such Council, because Pope Formofus is said to have died Ten Years before this Council was called; it is a bold Assertion to annihilate a ^whole Council, because of the Mistake of the Date, or Time of its meeting, or perhaps in the Name of the Pope, or King then reigning; especially when it was assembled upon so* remarkable an Occasion, as the erecting of these new Bishopricks, which all our Historians ascribe to this Council."

But I shall now proceed to another Authority, and that is to the great or Common Council held at WinchesterAnno 853. where you will find in Sir H.Spelxian's Councils, as also in Ingulphuss History, that after the Bishops, Earls, and other great Men, ot Thanes, who subscribed to the Law of Tythes, granted by way ofPa*' 3S0, Charter there mentioned, wherein these following Parties are there mentioned, Aliorumque Fidelium infinita multitude quiomnes Regium O)irographum laudaverunt, Dignitates verb sua nomina fubfcripserunt. And the learned Commentator upon King Alfred's Life, published in Latin at Oxford, is fb well satisfied, that the Commons were meant by. this Expression, that he hath this remarkable Observation upon this King's granting of these Tythes: Bisvidetur Rex Decimtu Ecclefu concessive. Primum Anno 844, & 20 veroS$<;. vel ut asiiS^, e totaRegione,tycumAfsensu omnium Nobilium,& totiusPopuli. Where this Author rightly supposes, that the Words at the Conclusion of this Council, did comprehend the Consent of the People or Commons, as well as of the Lords, or Noblemen. Or else this reciting of this Word Pcpulus, as distinct from the Nobiles, had been altogether in vain.

So that tho1 I do not affirm, that the meer Vulgar, or Plebeian Sort of People did appear personally in the great Council of those Times, anymore than they do now, yet they were there by their Representatives, viz. either by Knights of Shires, as now, or else the chief Thanes, or Freeholders of the Kingdom as also by the Aldermen, or chief Burgesses of great Cities and Towns, who I suppose did then represent those Politick Bodies, since all Men could not appear there in Person.

But I shall give you another Authority out of the fame Author, viz. Archbishop Parkers British Antiquities, where when he relates the calling of the Pag. 87: Council of Calne, for the turning of Married Priests out of Monasteries, and Cathedral Churches, and putting Monks into their Places; He tells us a remarkable Accident that then happened, viz. The falling down of a Room where the Council was assembled: So that there fell together all of a sodden, (pray take the Words themselves out of the Authors there cited) Pr&Jules, Pro-ceres, Equites,Nobiles, pariter C Jgnobiles Corruerunt. So that you see here were other Sorts of Men present in this Council, beside the Pr&sules, (i. e. Bishops and Abbots); and the Proceres, (i. e. the Earls and chief Thanes), viz. theKnights, or Inferior Thanes, Noblemen or Gentlemen as also lgnobiles, those that were not Noble by Birth, such as were the Representatives of Cities and Boroughs. And of this Opinion the Archbishop himself seems to be ; for at the End of this Relation he makes this Remark Sed nec hujus domus in qua omnium Ordinum, tarn ConfpicuiOariq; viri, Confulto Convenerunt tarn repentina ruina ope Diabolica carere potuit; where by Omnium Ordinum,he must certainly mean the Three Estates of the Kingdom, in the seme Sense as the Word Ordines is used byCamden, and other Latin Writers, who . < call our Parliament Conventus Ordinum, that is, the Assembly of Estates.

M. I pray give me leave to answer this Authority before you proceed farther I must beg your pardon, if I cannot believe that all the Persons whom the Historian relates to nave perished by this Fall of the Council Chamber, to have been all of them actual Members of that Assemby, since there might have been there divers Persons, who tho1 of an inferior Rank, might have been present as Auditors or Lookers on-, it not being then the Custom to hold those Councils so privately, as we do now 5 so that divers of the common or ordinary Sort of People, called here Jgnobiles, and perhaps of the inferior Gentry too, being there, might all partake of this common Ruin, and so pay dear for their needless Curiosity.

. JP. I must beg your Pardon if I do not assent to your Opinion in this Matter 5
for I cannot believe (unless you can shew me very good Authority for it) that ever
the common People or Vulgus, in the Sense you take them, were let in only to •
gaze at such Assemblies. For what Room could have contained so great a Crowd?



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and if they were in those Days so great Slaves, as the Gentlemen of your Opinion please to make them, it is not likely that they should be admitted to cro,wd into the Great Councils then, any mote than now, when you allow them more Liberty, and greater Privileges than they then en joyed. And therefore J.., think I may very well stick to the Archbishop's Opinion, who supposes them to have been the whole Assembly of the Three Estates,' who were all involved in this Ruin. . .', . •■. ■

But letting this pass, I shall now give' you an Authority of a Great Council held under King Ethelred, which will , farther confirm our Sense of the Word Populus j which Council you may see in the First Volume ofMonasticon Angsts. contains a Concession and Confirmation of divers Privileges to the Monastery of Vol. 1.Wolverbampton, in these Words; H<ec deer et a funt Sigericbi ArchiepiJcopi in placito

Fol. 988. cor am Rege Etbe/redo, Eboracenfi Arcbiepifcopo, & omnibus Epi/copis, AbbaColm 2* tibus RegionisBritannia feu Senatoribus, Ducibus, Populo Terr<e.-. Where it

seems plain to me, that the Popu/us Terra are here put as a distinct Order of Men from all the rest aforegoing. , vl. .1.;

To come now to the Time after the Danish Invasion, and the Settlement of the Crown upon K\ng Cnute, who after he was made King, partly,by Conquest, and partly by Election, yet altered nothing of the Ancient Constitution. And F0I.619.  therefore Florence of Worcester tells us, that Anno 1017, being the First Year of his Reign, he divided the whole Kingdom into Four Parts, and..-also, fadus a/ft Principibus fjf omni Populo, Ipfe V?iUi cum Ipfo percujferunt: Where you see the Populus or Commons is put distinct by this Author from the Great Lords or Bromton, Fol. Noblemen, here called Principes^ and this Council is called by Abbot Bromton 908. in hisHistory Parliamentum apud Oxonidm: And also in his Charter to the Abbey

of Briadricefworth (since called St. Edmundsbury) which is still to be seen in the Office of the King's Remembrancer of the Exchequer, it is thus recited, Ego Cnut, Rex totius Albionis Insult, 6? aliarum Kationumplurimarum, in Cathedra Regali promotus, cum Confilio, iS> Deer et 0 Arcbiepifcoporum, Epifcoporum,Abbatum, Comitum aliorumque omnium Fidelium eligi Sanciend.: Whence it plainly appears, that under the Wordfideles, was then comprehended otner Persons of an Inferior Rank, or Order, to the Comites, or Earls, there mentioned •> and these could mean no other, than the Representatives of the Commons, whom I have proved to have been present in these Councils.

M. I cannot believe you have yet proved it; for though I have hitherto omitted to give you my Thoughts of this Word Fidehum, yet I must now tell you once for all, that by this Word is not here meant, or any where else in our Saxon Laws, to be understood the ordinary or common Sort of People; or any that represented them, but onlyTenants in Capite, or in Military Service, which were then called the King's Thanes, and were afterward the fame with the Barones Minprcs, mentioned in King John's Charter. But I shall plainly prove, when I come to it, that the Word Fideles, after the Conquest, signified only the King's Tenants in Capite, and were the lame with theMilites, whom we find to be Witnesses after the Dukes, or Earls, to this Charter of King Cnute. And though I confess this Word Fideles, doth in a common, or larger Acceptation, signify all such Subjects as owe Fealty and Allegiance to the King •, yet in a Strict and Legal Signification (as it is here to be taken) it signifies only the Barons, or Tenants in Capite, as Dr. B. hath very well shewed us in his Glossary. And therefore Sir HenrySpelman himself distinguishes between these and all other Subjects, in these Gloff.Tit.Fi- Words, InterdumSpecialiter dicuntur iidem, qui VajjaUi, qui Feudo accept0 in deles. Patroni Fide, & clientele funt, ViciJJimqueSuam ei certi obfequii nomine fidem

astrinxerunt. But indeed ,jt is impossible to understand it in your Sense; for then all that swore Fealty to the King (and so were called Fideles) should have had a Place in Parliament, and ail the Men in England above Fourteen Years of Age, must have been there in Person-, which would have been a pretty large Assembly, and such a Multitude as no one Place could have contained them. Page F. If what Dr. B. in his Preface to his NormdnHistory, page 157. as also in

his Answer to Mr. P. page 20. be true, that Feudal Tenures owe their Original to William the Conqueror, though in other Places he is of another Mind; then certainly this Word Fideles, must have been used in a larger Sense, in the Times before the Conquest, and must have extended to all those who were bound to take the Oaths of Fealty and Allegiance, in the Yolkmote, or County Court; as ■I 2: they they did long aster the Conquest, and ought to do so still, if required; and therefore this Word Fide/es could be then no more limited to Tenants in Capite in that Time, than it is now; who, though I grant they could not all be present in the Great Council in Person, yet they might be there by their Delegates (as well as they are now) and who might also consist of far greater Numbers than they now do; since we find in the Council of Winchester, (but now mentioned) that after the Dukes, Earls,and Great Men of the Kingdom, there is also added, aliorumque fidelium infinita multitude-, which great Multitude sure must have signified somewhat more than your Clues Thanes, or Tenants in Capite alone-, or else the Words Comites, and Vroceres, might very well have comprehended all the Degrees of Laymen: And therefore I desire you to shew me by some better Authorities than you yet have done, that before the Conquest, the WordFideles must needs signify Tenants in Capite, and no other; but thaf it did not signify only so after that Time, I shall join Issue with you by and by.

I shall now proceed to my next Authority, which is from Ailred, Abbot of Script, x* Rievallis, Who lived not long after the Conquest, who in his Life of Edward the CoL V2' Consejfor, relating the manner of that King's Election in his Mother's Womb,tells us, How Ethelred his father called a Great Council about appointing aSuccessor, that hereupon fays thus, Fit Magnus coram Rege Epifcoporum Frocerumque Conventus, MagnusFlebis Vulgique Consensus; where you fee apparently, that this Abbot made a Distinction between the Assembly of the Bishops and Great Lords, and that of the Flebs, Vu'gus, or Common People.

M. Pray give me leave to interrupt you a little before you proceed to any fresh Authorities. I grant it is true, that the Abbot in the Place you mention, tells such an idle Tale, that this Edward was chosen King whilst in his Mothers Womb, and so his Father made the Nobility swear Fealty to him before he was Born. He is the only Author of this"Legend that I know of; and sine your self must own that it is a little too gross to be believ'd; and therefore I wonder that you should urge that to me for a sufficient Authority, for the People or Commons having any Place in the Great Council in those Times. v

F. Pray, Sir, observe to what Purpose I make Use of this Authority; it is not to make good the Election ofEdward the Confessor in his Mother's Womb, but only to prove who were then- supposed (when this Abbot writ) to make up the constituent Parts of the Wittena-Gemot, or Parliament, in the Saxon Times, which was then believed by all Men, to consist of the Clergy, Higher Nobility, and Commons, unless you can suppose that the Abbot should mention the Commons by Prophecy. And granting that it was only according to the Custom of his own Time ( which the Author of the Preface to the Decent Scriptores, makes to be about the middle of KingHenry lid's Reign) it will sufficiently prove the Antiquity of the Commons in Parliament, to be near a Hundred Years older than the earliest Time you assign for it, (viz.) the 49th of Henry III.

But I shall now conclude with the Conclusion to King Edward the Confessor's vii spcl. Third Charter to the Abbey of Westminster, in a great Council held in the last Year Coun. Fol. of his Reign, as you will find it thus recited in Sir H. Spelmans Councils, in these 625' Words -, Hanc igitur Chartam meœ donationis & Libertatis, indie dedications prœditlœ Ecc/œ. recitari just coram Epifcopis, Abbatibus, Comitibus, omnibus, OptitnatibusAnglix, omnique Populo audiente, Us vidente; where by the Optimates Anglim, I think can be understopd no other than the Thanes, or Freeholders of all Sorts, as well the Kings as others; as also the Deputies of great Cities and Boroughs, the Words being Optimates Angliœ (non Regis); and though it is not likely that the Fopulus, who are here mention'd to be present, should be the Mob, or Common People, only admitted to stare and hearken at such a great Assembly -, yet since the Words are in respect of them only, audiente, df vidente, I shall not insist upon the Word Fopulus here, as a Part of this Common Council of the Kingdom.

But yet that the Word Fopulus does oftentimes refer to the Representatives of the Commons, I shall conclude from the Answer of King Harold, the last Saxon King, to the Message of William Duke of Normandy, demanding the Kingdom of England and that Harold, according to his Promise, should marry his Daughter: The Words are remarkable, and therefore pray read them out of Will, of Malmesbury, who lived near that Time, Contra, lUe(fit/. Heraldus) qux mil. Malm, de dixi de Fuellx nuptiis referens, de Regno (addebat) prxsumtudfum suijse quodgc\lUAnihr»m, * absque Lib. 2. Fol. ii. absque general! Senatus, & Populi Conventu & EdiSo asidnam Mihereditatem Juraver'tt. Now that by the Word Senatus is to be understood the higher Nobility, such as the Bishops, Abbots, Earls, &c. and that is meant by Populus Cap. 10. the Representatives of the People, we have Mr. Selden's Authority on our Side FtL 3Sa- who in his Dissertations on Pletd, speaking of the great Question that arose in Parliament in King Edward III. Reign, concerning King John's Donation of his 'Kingdom to the Pope, gives their Conclusion to this Debate, in these Words, Ordine univerfi tarn generis Hieratici, quam Proceres, &Senates, & Populus folenni inita deliberation in Comiciis, Mi rejponderunt unanimes, irritant planefuijjeJobannis Donationem Mam ut pote tarn sine ordinum affensu, quam Juramento in augurati adversum. But of this great Authority I shall speak more hereafter* when I come to it in order of Time. *

Since therefore it is apparent that the Commons had a Share in the Great Councils before the Conquest (as you call it) I desire that you would be pleased to shew me how they came to lose it after the coming in of theNormans, and to be so long without it, as until the 49th of Henry III, or 18th of Edward I. if your Authors are to be credited.

M. I must confess the Authorities you have brought out of the Saxon Councils, would seem to be of some Weight, were I not sensible, that the Monks, who were the only Recorders of these Councils, are very short and careless in giving a true Account of them; and if we go to the Councils themselves, we might be sufficiently convinced, that all those that are said to be present at them, could not have any Places or Votes in those Assemblies, as Members of them • for in some of them (as in this Example) we find the Queen to have been there, and to have given her Consent to the King's Charters • and yet I suppose you will not allow the Qjieen to have been there as an Estate by her self j much less to have been a Member of any of the Three Estates.

The like we may fay for those Abbesses we find mentioned to have been present in divers of those Councils, and particularly in that of Winchester, you so much insist upon, wherein Tythes were granted ; and these are said to have approved of the Royal Charter, as well as any of the reft; and sure you do not make Women to have had Voices in our great Councils in the Saxon Times. So that it appears plain enough to me, that Persons being menti'oned as present in these Assemblies, or being Witnesses to Charters there granted, do not make them to have been constituent Members thereof And therefore since the Saxon Times are so dark and obscure, and so litde to be collected of Certainty from what we find in the old Monkish Histories, and those Fragments of Laws and Charters they have left us, many of which are also forged by the Monks; I think it is Time that we pals over this, to the next Period after the Conquest, wherein I doubt not but to shew you, that for above an Hundred Years after that Time, none but the Bishops, Abbots, Earls Barons, or Tenants in Capite, were summoned by the GreatCouncil or Parli ament till the Time 1 have so often mentioned.

R I see you do all you can to perplex very plain and evident Proofs; For as to the Queen's being often present at the • great Councils, it is no more than what was usual in these eldet Times; and that in Prance as well as here as any Man that will but peruse the Charters of some of the Kings of Prance Pag. 156. 0f tjjg Second Race, as they are in Father Mabilion de Rcdiplomatica, may ear% 106. % satisfy themselves and as for the Abbesses, whom we find sometimes mentioned to have been there before the Conquest, they might also according ro the Custom of those Times have appeared in Person in the great Councils, in the Right of their Monasteries, and of those great Possessions they held or else they might have been often represented by their Oecomi, or Stewards, who transacted all Business for them •, and your own Civil Law doth always suppose, that what any Persons perform .by their Lawful Proxies, it is said to be done by themselves •, and that the Abbesses and Prioresses, did together with the other Spiritual Tenants in Qipite, soin to grant Scutage upon the Knights Fees they held, after your Conquest, I shall shew you before we have finished this Discourse. But since I think I have sufficiently proved the Commons being in Possession of this Right by a long Prescription, I shall now leave it to you to prove, that they did not enjoy it after the Conquest, and that not until the Time you suppose.

M. Since I

M Since you are pleased to impose this task upon me, I shall willingly submit toat and therefore before I proceed farther, pray let us fee how far we are agreed. In the first Place I think you will grant, that till about the latter End of Edward Ifi's Reign, there is no express Mention made in our Records, or Historians, of any Representatives for the Commons, either by Knights of Shires, Citizens or Burgejfes of Towns; much less the Word Commons, mentioned by them in the Sense it is now taken: For if we peruse btgulph, or Eadmerus, or anyother Ancient Historian of William the Conqueror, or his Son's Time, when they have Occasion to speak of the Great Councils of that Age, we can find none mentioned (besides the Bishops) except the Principes, Proceres,Primates, otOptimates Regni-, of else in the following Age, these Optimates, or Magnates, (by Matt. Park, andMatt, of Westminster,) are often comprehended under the more particular Titles of Comites & Bar ones, or else by the more general ones ofNobilitaf, Univerjitas, Communitas, or Barohagium Regni; that is, the whole University, Community, or Body of the Kingdom, represented in Parliament by the Bishops, Abbots, Earls, andBarons thereof. As for most of these Words, I have given you my Sense of them already, in the Times before the Conquest and though I grant there may be other Persons sometimes mentioned after the Barons, as Mitttes, LiberiHomines, or Tenentes, yet I think Dr. B. very plainly proves, by those Authorities he produces in his Answer to Mr. P. as also in his Glossary at the End of it, that by all the Words before-mentioned, which are used in our Ancient Historians, can only be understood either the Greater Barons, or else the Less, who were Tenants inCapite, and were a Part of the Baronage or Nobility of those Times, and whose Votes did then conclude all their Subfeudatories, or Mesne Tenants, who held of them •, and these together with the Bishops and Abbots, 8cc. did represent all Degrees of Men in the Kingdom, arid being often comprehended under the General Titles of Clerusand Populus, or else Plebs, yi*rB- °or Vulgus; or else under these Titles, as yet more generally expressed byRegnum, and Sacerdotium, i. e. the Clergy and Laity of the Kingdom; the Words Populus, and Plebs, or Vulgus,signifying no more in those Days, in our Historians, (when they treat of Parliamentary Affairs) than the Lay-Earls and Barons, with the; other Less Tenants in Capite: So that the Vulgar, or Common People, neither by themselves, nor their Representatives had* then any Place in our Great Councils: And therefore I think I may boldly affirm with Dr. B., First, That the Com- B; A-*mons represented by Knights, Citizens, and Burgesses in Parliament, were notIntrodltl1introduced, nor were one of the Three Estates in Parliament, before the 49th of KingHenry the Third.

Secondly, That before that Time the Body of the Commons of England, or Freemen ( as now understood, or as we now frequently call them ) collectively taken, had not any Share or Votes in making of Laws for the Government of the Kingdom, nor had any Communication in Affairs of State, unless as they were represented by the Tenants in Capite. And these Two Propositions I think I shall be able to prove by undeniable Evidence, drawn from our Ancient Historians, the Laws and Charters of our Kings, as also from those Parliament Rolls, Records, and Acts of Parliament, we have yet left us.

F. I confess you have made a very bold Challenge, and if you can make it out, I grant you will carry the Day, and I shall then willingly submit to your Opinion. But since I find the greatest Patt of our Arguments do consist in the equivocal Use of those Words, by which I confess the Commons in Parliament are generally expressed in our Ancient Historians; I shall in the first Place shew you, (to avoid all unnecessary Dispute about Words) that by every one of these Expressions you have mentioned,. the Commons might very well be comprehended, as well after the Conquest, as before. And therefore to take the Words in the fame Order as you have recited them, I shall begin with the Word Principes which I have already proved signified before the Conquest no more than Chief, or Principal Men; and that it means no more after the Conquest, I shall shew you by several Authorities. And though I grant that Word is most commonly used by Eadmerus, yet could it not be meant in the Sense it is now understood, there being then never a Prince, nor so much as a Duke in England. But what was understood by this Expression in after-times, we must appeal to Historians. Mat. of Westminster, in his Plores Histor. Anno Fol. 40*Dom. 1280. (being the 7th Year of Edward the First, which was but Fifteen Years

0 o after

after the 49th Henry III.) thus reckons up the: Constituent Parts of that Parliament, Rex, Pontifices, iff PrincipesAnglican* convenerunt in un:im, &c. Yet in Rot. Qauf. 7. Edward I. it is called a Parliament •, and at which the Statute of Mortmain was Enacted. And that the Commons were there as well as they are now, I shall prove when I come to those Times. But as for the Words Proceres and Populus, used as distinct from them, if in Bib. Cot- you please to consult the Ancient Manuscript Chronicle of" Walter of Coventry^ ton. po Henry III. Anno Dom.1225, you'll find this Passage; Purificatione Beat*

Marix convocantur apud London, Proceres Angliœ, ibique traBatu h/tbito diffusiorecum Clero, & Pcfuloibidem convocatb Rex conceffit Libertates tarn Ecckjjie quant Regni, quam Forest sic ut Cart a sum inie consetft& fingulis Comitatibus liberate plertiUs ttstantur ibidemque conceffa Domino Regi a Comitibus, (f Baronibus, &Clero Populo ibidem pr<esentib)(s, Quinm decima omnium mubilium de Communi ajffen/u, pr<eteYquam deEcdesiis. M 223. But Mat. Paris, in his History of this Transaction under this Year, relates it

thus: Rex Hen. adilatale tenuit turiam suam apud Westm. Prtesentibus clero & populo, cam magnatibus Regionissokmnitatc igrtur ut dccebat complcta, Hubcrtut de Burgo ex parte ejufdem Regis propo/uh corayn Archiepiscopis,Epifcopis, Comitibus, Baronibus, & aliis urtivetsis^ 8tc. But to give you now rhe rest in English .* The King here demanded the Fifteenth Part of all their moveable Goods * upon which the Parties above-mentioned, with one Accord answered, That they would willingly yield to the King's Desire, if he would confirm the great Charters. To which the King having assented, and sealed them \ they granted the said Supply. From which We may observe, that as alt the inferior Qergy were comprehended under the Word Clerus; so must, by a like Parity of Reason, the Commons be under Populus, or else it would have been an idle Tautology when it is put, as it is here, distinct from Magnates.

Now supposing there be no other Persons expresty mentioned by these Two Historians to have been at this Parliament of the Laity, but the Earls and Barons, and Laity, comprehended by them tinder the general Names ofProceres, Populus & Magnates •, yet do but read the Conclusion to the great Charter of the 9th of Henry III. and you will find, that besides the Archbishops, Bishops, Earls and Barons, there were also present, the Knights,Freeholders, and all others of the Kingdom, by their lawful Representatives, as I shall shew you more at large, when I come to make Use of this Charter, as an Argument to prove the Commons to have appeared in Parliament before the 49th ot He my UT. So likewise the Statute of Fines made 27. Edward I. was ordained de CommuniConcilio Regni, and yet no Mention made either of the Aflfent of the Lord's or Cotrrmons; and yet this Statute was made but Nine Years aftet the \tth of that King. Since which Time the Plotter himself acknowledges the Commons to have been always represented in Parliament, as they are at this Day •, and yet Mat. Westminster,speaking of this Parliament, mentions its Orders only in general Words, thus, "Dominica secunda Quadragesimacitatis Magnatibus Regni apud Westmonasterium; and yet it is certain all the Estates of the Kingdom were there: So that it is nor fife to conclude from the general and equivocal Expressions, either of Ancient Statutes, or Historians, That the Commons were not in Parliament, because not particularly mentioned.

I could give you more Instances of she like Kind, but I will not tire you. But shall how proceed to shew, that notwithstanding the Use you make of the Testimony of Mat. Paris, as to the Sense of the Word Magnates; 'yet, that all those Historians that writ immediately before, or after him, and contitrued his History, do frequently make Use of the word Magnates & Primates, to signify the Com-' mons, as well as the Lords assembled in Parliament.. And for the Proof of this, I shall give the Testimonies of Two approved Aurhots. The First isThomas Walsingham, in his History of England; who in Anno Dm. 131?, 6. Edward 11. hath these Word,Rccedens: (Rex) de Berexsici partibus pervenit Ebm-acum, ubi magnum cum Clero tenuit Concilium, & RegniMagnatibus Vniversis.

So likewise Mat. of Westminster, in his Flares Histor. in the 24th of Edward I. Anno Dom. 1296, relates a Parliament held at St. Edmondsbury, at which appeared Primates, ac Magnates sui Regni, 8tc a quibus novumTalUgium postulavit, Sec. I could give you more -of the lame Kind out of this Author but L fear, left I should tire you 5 and therefore I shall conclude with the Testimony




{283}

of Hen. Se Knight on, in his History, De Eveiitibus Anglit, where, in 9. Henry III. he thus speaks concerning this King's granting the Great Charters, Post h.tc Rex Henricus conceffit Magnatibus terre duas chart as, unam deForesta, & aliam de libertatibus, ob quam caufam Communes Regni concesterunt quint am decimam partemMobilium, & immobilium. From all which you may observe, That in the Time when this Author wrote, it was generally believed, that this Term Magnates, comprehended all the Estates of the Kingdom •, and likewise supposed the Commons ( whom he here calls Communes,) to have had a principal Share, not only in the paying, but granting this great Tax. And for the farther Proof of this, pray see what W. Malmesbury lays in his History, when reciting the Speech of the Bishop of Winchester, then the Pope's Legate, speaking of the Londoners, hath this remarkable Passage, Londincnses, qui pnecipui habebantur in Anglia sicut Proceres-, so that if the Chief Citizens of that Famous City, were reckoned ficut Proceres, sure those they chose to represent them in Parliament, might much better deserve that Title. And thus likewise Walsingham in his History, in the 17th of Edward \l. tells us, that he summoned to a Parliament at London, Regni Proceres, £5* Prxlatos ad Tra&andum de variis Regninegotiis \ but in the close Roll of this very Year, it appears by the Expensis Mi/itum, that the Cora- Ret-dans. 17. , mons were there as well as the Lords. So that you see they were all then f u- m' 24often comprehended by our Historians under the general Term of Proceres ^' Regni.

I come in the next Place to the Words Nobiles & Nobilitas. Walsingham, 5. Mr. ?ryri% id Edward II. gives us this Account-, Post Nata/e Domirticum convenit universa mul- pfrt ^tbe titudo Regni Nobilium ad ParliumentumLondoniis. Now what is here meant by 0*Parm this Multitudo Nobilium, mav be proved by the Parliamentary Writs of this Year, as appears by the close Koll, wherein there are Writs of Summons for the Commons, directed to the Sheriffs.

And that the House of Commons were often stiled Noble in latter Times, appears by a Speech Recorded in the Rolls of Parliament, 7th of Richard II. to be spoken by Sir Mich, de la Pool, then Lord Chancellor, to the Lords and Com- 7. mons, which begins thus, Tdisi vous (/. e, I fay to you) Meffieurs Prelats, & f'cB Fjrt SeigneursTempore/x, & vous mes Compaignons les Chivalers, & autres de la Noble Commune de Artgleterre.

And to prove that this Word was then used in this Sense amongst Civilians, from whom we derive most of our Titles of Dignities, you may see in the large Work of Barthol. Caffaameus, called Catalogus Gloris Mundi,written on this Subject s where, in his Eighth Part, Consid. 18, he hath this amongst other Comments on the Word Nobilitas; Nobilitas etiam caufatur ex loco, quoniam c 'tvis ex urbe fplendida oriundus, Nobilis est s, for which he there gives many Authorities. And this Title he looks upon as due also to Country Gentlemen, living upon the Husbandry of their own Estates, or Annual Rents.

And that by the Word Magnates, are often understood the Knights of Shires, commonly called in old French,Grantz des Countees; I can give you sufficient Authorities: Now this Word Magnates is always rendred in our oldFrench, F- * c. p. by Grantz: For the Proof of this, I desire you in the first Place to take No- 9*> tice, that Rot.Claus. 3 £ 2. in 16 dor/o, you will find this Title, Inhibitio ne qui Magnates, viz. Comes, Baro, Miles, feu aliquaalia notabilis Persona transeat al Partes tranfmarinas. Where you lee the Word Magnates is applied to Knights as well as Earls and Barons. And amongst the Common Writs of Michaelmas Term, Anno 34 Edw. I. in the keeping of the Remembrancer of the Treasury os' the Exchequer, the Knights of Shires, and Barons of the Cinque-Portsare called Magnates. So also in the Statute, 25 E. 3. de servientibus, it is there enacted, per Assent de les ditzPrelatz, Countes, Barons, C autres Grandes de la dite Communalte, iUonques Affemblez. Also in the Statute-Book printed in French, in the Statute of the Staple, 27 E. 7. the Knights of the Shires, are exprefly called ,Grantz des Countees. And lastly , as for the Word Optimatesl, which is derived from the superlative Optimus, it signifies no more than the best Sort of Men in any Commonwealth or City. And in, this Sense, William ofMalmsbury, in his History, speaking of the Rich Citizens of London, hath this remarkable Passage, Londinensesqui pro mag~F*t-rt9* nitudine Civitatis optimatis sum. And that not only Knights, but also soch Citizens as were remarkable and eminent for their Estates or Offices in Cities,

0 0 2 had

had the Appellation of Magnates, appears from an ancient Manuscript Book, kept in the Archives of the City otLondon j where in Anno Dora. 1229. being liber itAr.tt- the \%th of Hen. 3. an Act: of Common Council was made, per omnes Aiderl"k names, & Magnates Qvitattt, per affenfum univerforum Ctvtum, quod nullo tern

p' 6*' pore per mitt erent aliqmm vicecomitem admitti in vicecomitem per duos annos continues^ ficut priusextittrant. So likewise in the fame Book, Anno horn. 1244. 29 H. 3. mention is there made of a Diflenrion that then arose about the Choice of a Sheriff •, and the Book says, that qutitm de vulgo elegerunt; Nicho/. Bat. peraffenfum Æajoris, & Magnates elegerunt Adam de Bent/y. I could give you more of a like Nature; but I will not tire you •, but no doubt the eminent Citizens of Torsi and other Cities, were called Magnates in those Times.

From all which we may safely conclude, that not only Knights of Shires were called Magnates, but also the Representatives for the Cities were often stiled Pro ceres, Magnates, and Nobiles, in our ancient Rolls, and Acts of Parliament, and other publick Writings. I beg your Pardon for being thus long j but I could not make an End sooner, and prove the true Sense of these Words in question, from ancient Historians, Acts of Parliaments, and Records; by which I hope you will be satisfied how unsafe it is to depend upon the general and various Expressions of our English Historians (especially, as understood by those of your Opinion); since if we should depend upon them alone, the Commons would not oftentimes be found to have been present in Parliament, even when the Records themselves exprefly prove they were there.

M. I must confess you have made me think more on this Subject, than perhaps otherwise I should have done •, yet I must observe, that most of the Quotations you have made use of, concerning the meaning of the WordsProceres, Magnates, and Nobiles, &c. are from Authors who writ after the Time that I own the Commons, as now represented, to have been constantly summoned to Parliament * so that they might very well, through Haste or Inadvertency, confound them with the Earls and Lords, and so stile them by the fame Titles, For I will prove to you, before the Conclusion of this Discourse, by undeniable Records, that by the Words Magnates andProceres, must be understood the Bishops, Earls, and Barons, as distinguished from the Commons. And I think I can sufficiently prove from Mat. Paris, and the ancient Laws of our first Norman Kings, as also from the MagnaCharta of King John, that by the Words Barones are meant the Tenants in Capite, who are there only mentioned to have constantly appeared in Parliament, till the 18th E. 1.$ the greater and less Barons, or Tenants in Capite,together with those of higher Degree, (vie. the Earls, Bishops, and Abbots,) being the only Persons who represented the whole Body of the Nation, in our great Councils, or Parliaments. And I take this to be so evident and clear, that I cannot quit this Opinion, without you can shew me better Reasons to the contrary, than hitherto you have done.

F. I fee nothing will satisfy those who have once received a Prejudices or otherwise I think it may be proved sufficiently, from that Clause in Magna Charta I have mentioned, that other Persons were there before the 49/^ of Henry HI. besides your great Barons, and Tenants in Capite. And as for the use of those Words you mention, in our Historians after the Reign of Hen. III. nothing can be a plainer Proof for me: For if they did comprehend the Commons under those general Words or Phrases we have been now disputing about, I desire to know why they might not have been likewise comprehended under the same Terms, by Mat. Paris, and those other Historians who writ their Histories from the Norman Conquest to the End of the Reign of Henry the Third •, and why they might not have then confounded the Commons with the Lords, as well as they did afterwards. But since I see you insist so much upon your Barons, and Tenants in Capite, whom you will have alone to constitute theBaronagium, or the Communitat, or XJniversttas Baronagii Anglitt, pray give me leave to ask you a plain Question , Were your lesser Tenants in Capife, (or Barones minores) Lords or Peers of Parliament, or were they Commoners only?

M. To give you Mr.Se/dens Opinion, in his Titles of Honour, cap. 5. JV£. 70?. He supposes, that from the Time of the Conquest to about the middle of King John, every Tenant by reason of his Tenure or Lands he heldin capite, was irrdifterendy an Honorary or Parliamentary Baron \ but that about the End oFKing Johns Time, someonly that were most eminent of those Tenants, (sometimes stiled Baronet Majores Regni) were summoned by several Writs directed to them as Lords or Peers of Parliament; and that the rest, being the lesser or lowerTenants in Capite, ( sometimes stiled Barones m'mores,) were for lbme Time before this summoned by general Writs, directed to the Sheriffs or Bayliffs, as appears by King Johns MagnaCharta. Yet whether these Men wereB-A- ?< ever really Peers or not, I have Reason to doubt j since I do not rind but it was l8' they alone who for some Years after the Conquest, served upon Juries in County Courts, and dispatched all the Publick Business of the County j which was then ( as at this Day) a Drudgery beneath the Peers to perform j and therefore I shall not insist upon it. But thus much I think is certain, That they were a sort of Persons much above any other Laymen of the Kingdom j since they held their Estates immediately from the King, and were so considerable, as that by the Constitutions of Clarendon, they were not to be Excommunicated without the King's Leave $ and so were then in some sort of the fame Order, rat tone Tenure, with the Great Barons or Peers, being commo nly stiled Barones,and made up but one Estate or Order of Laymen in Parliament. And from thence I suppose proceeds that common Error of Sir Ed. Coke, that the Lords and Commons did Anciently fit together, and made but one House. Now if you have any Thing to object against this Notion, pray let me hear it.

F. I think you and I are come pretty near an Issue in this Question; for you confess that these lesser Tenants inCapite, and whom you comprise under the Word Barones, were not truly and properly Barons; and so far you are in the Right; but yet you will have them to be somewhat more than meer Commoners* as if there had been some Degree or Order of Men in England in those Times, who were neither Lords nor Commons, but an Amphibious Race between both. But to prove that they were indeed no more than Commoners, and not Lords nor Peers at all, nor equal with them, we need go no farther than their way of Tryal in Cases of Treason or Felony, which was by meer Commoners, who were not Tenants in Capite, as well as those that were* so that a Person who was noTenant in Capite, might serve upon a Jury of Life and Death , with those that were so j and as the Doctor, in his Answer to Mr. P. has asserted, that they only served in the Countrey upon all Juries; and that before the Time of King John. So after all this Noise of none but Lords and Barons appearing for the whole Commons of England,we find by your own showing, that Three Parts in Four of the Laymembers of that Council, were as meer Commoners as our Knights of Shires, and Barons of the Five Ports at this Day nor can I fee any Reason why the other mtsne, or inferior Military Tenants, might not be as well comprehended under the Word Barones, as the former, who were meer Commoners likewise; if we consider that it was neither Nobility, nor Birth, nor the King's Writs of Summons, but only the meer Tenure of their Lands that gave them a particular Right to a Place in that Assembly in those Ages. So that the Qyestion then amounts to no more than this, Whether the Commons ofEngland were then represented by Tenants in Capite, or by Knights of Shires, and others, as they are now. But since you will have none but Tenants in Capite to have had Places therein j pray tell me whether you allow that Privilege to all who held in Capite, or not?

M. Yes, I allow it to all who held in Capite by Knights Service, and who also enjoyed a whole Knights Fee * or so much as was sufficient to render them able to sustain the Dignity of that Place * not but that the King had also a Prerogative of summoning or omitting whom of them he pleased, to his Great Council or Parliament; till the Less Tenants in Capite thinking it a Wrong to them, it was provided by King John's Charter, that all of them should be summoned by one General Writ of Summons, directed to the Sheriff. But I exclude from this Council, all Tenants by Petit Serjeanty $ who tho' 'tis true, they held of the King in Capite, yet was it not by Knights Service. So likewise I exclude all Cities and Towns, though the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure: Since being neither Noble by Blood, nor. having Estates sufficient to maintain the Port of a Gentleman, or Knight, they had* no Right to appear there in Person among the other Tenants, who were Owners of one or more Knights Fees. Yet do I not affirm, that the Commons were not after some Sort represented in Parliament by their Superior Lords, since theBi- B.a. P. shops, Abbots, and other Barons, did then make Lords, and give Taxes, not only 117. <&dt)m.

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for themselves, but their Feudatory Tenants also, though of never so great Estates-, and Tenure in Capite was then looked upon as the only true Freehold of the Kingdom, and the Tenants by it as the only true Freeholders.

F. I (hall (hew you by and by the Falsity of this Notion; but in the mean Time pray tell me when a Great Council or Parliament was called, who represented those Persons, who you fay did not appear there-, and made General Laws, and granted General Taxes for themselves, and the whole Kingdom, when there was Occasion? For I see you shut out the greater part even of these your own Freeholders from this Assembly.

M. As for the Tenants in Petit Serjeanty, I at present conceive (though I am not sore of it) that many of them might hold Lands, and perhaps divers KnightsFees, by Grand Serjeanty, or Knights Service also; since those Estates which were given by the Conqueror to his Servants, to be held of him by such and such Petit Services, might in Process of Time fall by Purchase, or Descent, into the Hands of such Great Tenants in Capite, as had sufficient Estates to maintain that Dignity; and as for the rest, they might, for ought as I know, before the Statutede Tallagio non concedendo, have been taxed by the King's Writs, according to the Proportion of the Knights Fees, or Parts of Knights Fees, which they then held? and according to the Rate of the Sums imposed in Parliament; either by way of Aids, upon every Knight's Fee -, or else by way of Subsidy, by so much a Yard, or Plow-Land throughout all England; which has been the only way of Taxing, ever since that of Knights Fees hath been disused.

F. Then I find after all you have said, that scarce half your Tenants in Capite had any Votes in Parliament, either by themselves, or their Representatives -, and so having Laws made for them, and being taxed at the King's Will, were as errant Slaves and Vassals, notwithstanding their Tenure in Capite, as rhe meanest Person of the Kingdom, who was Taxed ( as you would have it) at the Will of his Superior Lord; which whether so great and powerful a Body of Men would ever have suffered, I leave to any indifferent Person to judge.

M. I grant this may now appear somewhat hard; yet since it was the reeeiv'd Law and Custom of the Kingdom, it was not then look'd upon as a Grievance -y and it was then no more unjust than it is now, that Persons under Forty Shillings a Year in Lands, though of never so good Estates in Money, or Stock; or that Tenants for Years, or for the Lise of another, should at this Day have no Votes at the Election of Knights of Shires, and consequently be without any Representatives in Parliament of their own Choice, and yet be subject ro all Laws and Taxes (though never so great) when made and imposed by rhe King in Parliament. And I am able to give you divers good Authorities to prove, that even London it self, and all other Cities and Towns which held of the Kingin Capite, and were called his Demesnes, were often taxed by the King and his Council out of Parliament, before the Statute De Tallagio non concedendo: And I think Dr. B. hath proved this beyond Exception, in his Animadversions upon Mr. d's Jam Anglorum fades nova; and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer: That the Yjng did that Tear (as he had divers times before) Talliate, or Tax all his Demesne Lands in England, and then likewise demanded os the City osLondon, the Sum of Three Thousand Marks, in the Name of the Talliage or Tax so laid: And the Mayor and Citizens at last yielded to it, after a great Contest. It appearing upon Search of the Rolls in the Exchequer, that the Citizens of London had been several times before so Taxed, in the Reigns of King John, and the King himself; and so they paid at least the Sum which the King demanded. By which you see, that the greatest and richest Cities and Towns in England were Taxed at rhe King's Will: nay, I think I am able to prove (were it now necessary) that the whole Kingdomwas often Taxed by the King and his Council only, before the granting of King JohnsMagna Chart a; and the Statute de Tallagio non concedendo, abovementioned.

But to return to the Matter from which you forced me to digress.

I think nothing is more plain, rhan that our Ancient Parliaments were only the King's Court Baron for the Dispatch of the Publick Affairs of the Kingdom • and in which, as in the Lessei Courts Baron, or Courts of Manor, the Suitors or Tenanfs were, together with the Lord, or his Stewards, the sole Judges. So that at first, after the Conquest, it belong'd to the King alone, as the Supreme Lord

3 of ©f the Kingdom, to appoint or call which or what Sort of those Tenants he pleased, to attend him with their Aid and Advice, at his Common Councils, or Parliaments. And I think nothing is more evident, (as I shall prove more at large from our Ancient Histories, Records and Statutes) than, that before the 49th of Henry HI. and some Years also after that Time, none but the Bishops, Abbots, Earls, and Greater Barons, and some of the LesserTenants in Capite, called in King John's Charter, Barones Minores, then constituted the whole Body of the Parliament, under the Titles of Baronagium Anglia, or Communitas, or Universitas Baronagii Angliœ. And for this I can give you so good Authorities, that nothing but more cogent and evident Proofs can bring me from this Opinion. And therefore I must tell you, I do not value those loose and inconsiderate Expressions of Historians, either before or after that Time.

F. I see the Testimonies of Historians are of no Credit, if they make against your Hypothesis; but I shall show you your Mistakes about the King's Taxing anon-, but the main Force of your Argument lies in the Signification of those Latin Words you have last mentioned; and which, I must needs tell you, I think you take in too strict a Sense. For First, as to the Word Baro, I grant it was not P. R. C. much in Use before William I. obtained theEnglish Diadem. Baro, lays Camden, Pa&e Io8Britanniprosuo non agnoscunt, in Anglo-Saxonicis legibus nusquamcompares, nec in Alsfici Glojfario Saxonico inter dignitatum vocabula babetur. For the English Fa& 121 Saxonscalled those in their own Language, Æaldermen, which in Latin were named Comites, and by the Danes Earls\but it was of so extensive an Import in its Signification, that we read of Aldermani Regis, Aldermani Comitatus,&c as I have already shewed you. So that according to the strict Sense of this Word, Spei olojs. we had great Number of these Aldermen; whose Titles seldom, if at all, de- T,tm A!dL'r" fcended Hereditary, till the Confessor'sTime: And after William I. the Saxon min* Words Æaldermen, and Thegnes, began to be changed-, and in the room of Aldermanni & Tbani, we find Comites Barones, as in all our Ancient Laws and Histories. Nor was the Word Barones only taken in those Days for Great Barons, and Tenants in Capite, but also for the Inferior Barons, or Free Tenants, which held great Estates of other Me.sne Lords, as well as of the King, by certain Services, and to whom the Great Lords, or Earls (as Sir H. Spehnan shews us in his Glossary, Title Baro) often directed their Charters, Baronibus, & Fidehbus Pa&n°nostris tarn Francis, quam Anglis; and we there also read some Quotations from the old Book of Ramsey-Abby, wherein the Barons of the Church'of Ramsey, as also the Milites,and Liberi bomines thereof, are particularly mentioned under the Title of Barons; all which, (as this Learned Author tells us) non de Magnatibus sunt intelligent^, fed de VaffaUis feodalibus, note foL melioris.

And the fame Author fays a litde lower, that Barons are often taken pro libere Tenentibus ingenere, hoc est tarnin Soccagioper servitium Militare.

M. What then? Do you suppose that all the Freeholders in England, by whatsoever Tenure they held, wereBarons, and appeared in Person in Parliament, before the Time Sir if. Spelman in his Glossary, and Dr. B. assign for the summoning of the vid.GM> Commons to Parliament? At this Rate every Yeoman, or Petty Freeholder, was ntl a Baron: So that this Assembly might then consist of above Fifty or Sixty Thoufind Persons. Since Spotin his Chronicle tells us, that William the Conqueror reserved to himself the Service of about Sixty Thousand Knights Fees, which by B. A. P. the Time, I suppose, might have been divided into many more lesser ones, byPa&19' Co-heirship, or by Sale; and otherwise Parcelled out by the King's License into Half Knights Fees, Third Part of Fees, Fourth Part of Fees, Eight Parts, Sixteen, Twenty, Thirty and Forty Parts of Fees; and so have been increased into as many more. And these, besides the Tenants in Soccage, must needs have been so numerous, that what Room, nay, what Field or Place, was able to contain so great a Multitude? Or how could any Business have been transacted therein, without the greatest Confusion imaginable?

F. So then you your self must also grant, that when all your Greater and Less Barons, or Tenants in Capite,appeared in Person, Parliaments were much more numerous than they are now; since according to the Doctor's Catalogue, out of Doomsday-Book, (in his Appendix to his Introduction to the English History,) all the Tenants inCapite, or Serjeanty, that held the Lands in every County of King William, did (besides the Bishops, Abbots, Earls, and Barons) altogether, amount but to about Seven Hundred; and these in the 49th of Henry III. by Forfeiture,



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and new Conveyances from the Crown, or by those othef Ways you have now mentioned, might be multiplied into twice as many more; and chose also of sufficient Estates to maintain the Port of a Member of Parliament, or Knight. Since Fifteen Pounds a Year was in the Reign of King John, and beginning of King Henry III. reckoned as a Knights Fee-, and he that had it was liable to be Knighted. And if so, I pray, according to your own Hypothesis, how could so great an Assembly be managed, as of about "three Thousand, or Four Thouiand Persons, without strange Confusion and Disorder? But upon our Principles there will follow no more Absurdities or Inconveniences than in yours; for either these Barons of Counties, Burgesses, and Inhabitants of Towns and Cities, were always represented by Knights and Citizens, as they are now; or else these Barons of Counties appearing for themselves, were Lords of Manors, or Freeholders of good Estates, who were not so numerous or inconsiderable as you imagine; the Freehold Lands in England, being in those Days but in a few Hands, in Comparison to what they are now. And for this Opinion I have Sir H. Spclman >of my Side-, who in the Place already quoted, under the Title of bar ones Comitatust expresty tells us, Hoc nomine contineri videtur antiquispaginis, omn'is Baronut* Feoda/ium species, in uno quovis Comitatu degentium: Proceres nempc, Vf ManeriorumDomini, nec non libere quique Tenentes, hoc est fundorum proprictarij, Anglice Freeholders ut fuperius ditlum est.Notandum autem est hoc libere Tenentesy nec tarn exiles olim fuiffe, nec tarn Vulgar es ut bodie deprebenduntur;nam villas, t!f Dominia, in minutat Htreditates non dum distrabebant Kobiles; fed ( ut vidimus in Hibernia) penesfe retinentes, agros, per precarios excolebant, (Sf adfatptitios.

So that you see Sir H. Spelman then believed, that the Manors, and Great Freeholds in England, were not then Parcell'd out into so many small Shares as you imagine. And that such Inferior Barons, whether they held inCapite, or not, were Lamb. Arch. also called Proceres, see the Laws of Henry I. Chap. 25. The Title whereof is,de Privilegiis Procerum Angli*. The Law runs thus, Si exurgat placitum inter homines alien j us Baronum foenamhabentium, trail etur placitum in Curia Domini fui. Now that this Socna was no more than Soc. in old Saxon, seeSpel. Glojf. Tit Soc. i. e. feUa de bominibus in curia Domini secundum confuetudinetn; so likewise in TituloSocha, vel dicitur, Soc; in Saxon foen. i. e. libertas Prancbefia. From all which we may observe, that these Lords of Manors, ( here called Proceres i!f Barones ) had Court Barons, which took their Name from their Lords, though Feudatory Tenants or Vavasours.

But granting that about the End of King John, or beginning of the Reign of Henry supposing that these Lords of Manors, and Great Freeholders, whether Tenants in Capite, 01 others, might amount in all to Five or Six Thousand Persons* I do not see why such an Assembly might not be as orderly, and as well managed, as one of Three Thousand, or Four Thousand, (supposing your Greater Barons^, and Less Tenants in Gapte, to have then made about that Number;) especially if we consider, that most Business, or Acts of any Consequence, (and for which Parliaments were called) might be prepared, and drawn up by the King and his Council before they met. So that take it which way you will, fewer Inconveniencies and Improbabilities attend my Hypothesis, than yours.

M. That the Earls and Greater Barons, both Spiritual and Temporal, together with the Tenants in Capite,(although never so numerous, as you are pleased to fancy } then made the Body of the Baronage of England, I have very good Authority on my Side; but that any Feudatory Barons, or Tenants of a Lesser Degree, ever had any Places or Votes in those Assemblies, I think you can give me no sufficient Authority for it.

Tis true Mr. P. in his Treatise of the Rights of the Commons asserted, gives us Two modern Quotations; the one out of Mr. Camdens Britannia, the other I0- out ofWli.Selden, to prove this Assertion. As for the former, it is in the Introduction to the Britannia, first published in Quarto ; the Words are these, verum Baro ex illti nominibusvideatur, qu<e tempus paulatim meliora, & molliora reddidit; nam longo post tempore non Milites, Jed qui liberierant Domini, Us Tbani Saxonibus dicebantur, Barones vocari cceperunt, nec dum magni honoris erat, pauloautem postea (meaning after the Normans Entrance) eo honoris pervenit ut nomine Baronagii Anglu omnesquodammodo Regni ordines continerentur. But he doth not tell us that this learned Author, in his last Edition of this Work in Fo/io, being sensible of his Mistake, hath added the Words




Superiores before Ordines; whereby it is plain he now restrains it only to tfje
Earls and Barons, as they are now understood.

Mr. P's other Quotation is out of Mr. Selden's Notes upon Eadmerus, where ft* J £8. Commenting on the WordBarones, he faith, Vocabulum nempe alio notione ufurpari quam vulgo, neque eos duntaxat ut hodie fignificare,quibus peculiaris ordinuM Comitiis locus estbut then conceals this that follows, which makes directly against him;Sed univerfos, qui Regu munijkcntti, ad sormulam Juris nostri Client elaris quod nuUius ViU£ Regime glebam,fed ipfum tantum modo Regent Jpeaatt Tenure en Chief (PhraJI forenfi dicimus) Jive Tenura in Gipite lati fundiapojfidebant; whereby you may fee that he expreily restrains this Word Barones to Tenants in Capite only; though your Author takes no Notice of it. Nor indeed in his Titles of Honour, doth Mr. Stlden give us any other Description of a Baron, (I mean such who had a Vote in Parliament) but such in the Sense that chaPis taken inHenry I. his Charter, as it is recited in Matt. Paris, Siquis Baronum meorum, Comitum vel Aliorum qui de metenent mortuus fuerit. i. e. One who was either one of the Earls, or Greater Barons; or otherwise held in Capite.

E Mr. P. is not at all to be blamed (as you make him) in these Two Quotations in that out ofCamden, you cannot deny, but he hath truly cited that Author, as it was in his First Edition; and if he afterwards altered it, it may very well be questioned, whether he did not add the Word Superiores, rather out of fear of displeasing theEnglish Nobility, (whom that Quotation had before fhock'd) than out of any Sense of his being in the wrong; as it appears by the Words immediately following, when he tells us out of a Nameless Manuscript Author, whose Name I wish he had told us •, That Henry III. out of so great a Multitude of Barons, which was seditious andturbulent, called the best and chiefest of them only by Writ to Parliament. By which it plainly appears, that he supposed all thole Less Barons, or Tenants in Capite, though no Lords, as now understood, who were thus excluded, to have been only Nominal, and not Real Barons; and if so, meer Commoners; or else he must extend the Peerage of England to at least Three or Four Thousand Persons •, for so many Tenants in Capite, might very well be at that Time.

The fame I may likewise fay as to the Quotation out of Mr. Selden; fcr by the Words, quibus peculiaris inordinum Comitiis locus est; 'trs plain he supposed that all the rest of those Tenants in Capite were but Commoners; yet he no where affirms, that none but these appeared in Parliament fbt all the Commons ofEngland; for he very well knew the Unreasonableness of that Supposition. Since besides these Barons, or Tenantsin Capite, Bra3on, in his First Book, tells us of chap. 4. divers other Orders of Men, of Great Dignity and Power in this Kingdom, about the Time when you suppose this marvellous Alteration to have happened. His Words are these, Et sub Us (viz. Regibus) Junt Duces, Comites, Bafdnes, Magnates, five Vavassores, & Milites, & etiamLiberi, & VtUani, Vf diverse Poteftates sub Rege constituta; and a little farther, sunt & alii Potentes sub Rege quidicuntur Barones, hoc est Robur belli; sunt & alij qui dicuntuf Vavaffores viri magnte Dignitatis. Ftom which Words I desire you to observe, that he here makes the Magnates, and the Vavaffores, or Feudatory Tenants, to be all one, and also ranks them before the Milites. Now whether these Vavaffores and Milites, who did not all hold of the King in Capite, were Men of so great Dignity and Power as these ■whom he here reckons immediately after the Earls and Great Barons, should have no Votes in Parliament, neither by themselves, nor their Representatives, is altogether improbable.

And agreeable to this of Bratton, Du Frefne, in his Lexicon Tit. Vavajsor, tells Pag* u6t. us, that Vavafforum duoerant ordines, sub majorum appeUatione compleBuntur, qui Barones appellantur, sub minorum vero, quos vulgoVavaffores dicunt\ & legeHenrici I. Reg. Thames minor es, refpeBu Thainorum majorum qui Baronibusdcquiparantur. But that these LelTer Thanes or Vavajjors, were also stiled Barones, Sir H. Pag. 73. Spelman tells us exprefly in his Glossary, Tit. Baro; Etiam Barones Comitum, Procerumque, hoc est Barones subalterni, &Baronum Barones f&pijfime leguntur; and of this he gives us many Examples; and particularly of the Chief Tenants of the Abbey of Ramsey, above-mentioned. So likewise the fame Author, a Leaf or Two farther, speaking of the Barones of London, mentioned in the Charter of King Henry I. understands them, pro civibusprtstantioribm qui soenas fuas, C confuetudines, i.e. Curias habuerunt, & Privilegia, eorum instar, qui inComitatu, Barones



Comitatus dicuntur, 8cc. Nor did this Title of Bar ones extend t© London alone \ but he also immediately tells us in the lame Place, Sic Barones de Eboraco, de

fignium, cum in Anglia turn in Gallia, S£c. And that Barons of Counties were no more than Lords of' Manors, I have just now proved for Socna means no more than a Court Baron, or Court of a Manor. So that here arises a plain Distinction between the Barones Regis, the King's Great Barons, Or Tenants in Capite; and these Lester Barons, we now are here speaking of, called Medmefj'e Tbegnes, and Burgh Tbegnes, by the Saxons, till they fix on the Word Parliamentum, to signify the Common-Council of the Kingdom; who, though no Peers, yet wereBarones Regni, Barons or Noblemen of the Kingdom, according to the general Acceptation of the Word Nobi/es,in that Age; and as such made up the Body of the Baronage, called by Matt. Paris, and other Authors,Baronagium, or Communitas Baronagii totim Anglia.

M. I see you do all you can from the equivocal Use of the Word Barones, to croud in new and unknown Men into the Great Council of the Kingdom, viz. your Barons of Counties, Cities, and Towns, whom (since you dare not affirm there were then any Knights of Shires) you suppose to have served instead of them; and these you would have to be, not Barones Regis, but Regni, or Terra, forsooth, i. e. of the hand, or Kingdom; whereas we never had any true Barons that held by Mefne Tenures here in England. This if you deny, you must deny all History, and all our Ancient Laws, and Law-Books too; and if you grant it, you must confess, that every trueBaron was zTenant in Capite, and by your own Concession, he must then be the King's Baron, or Baro Regis. I grant indeed, there were Nominal or Titular Barons (such as you mention) many in those Times, such as wereTenants to Great Lords, Bishops, or Abbots, of whom we find frequent Mention in our Ancient Histories, Records, and Charters. But these are not the Men who had ever any Place in our Great Councils; and I desire you would prove to me, that ever they appeared there before the Times I assign; and I would also have you inform your self of the Gentlemen of whom you borrow this Notion, if they can prove that there were any such kind ofTenure, as Tenura de Terra, or de Regno? Or whether there was ever any Man that held an Estate de Regno?Whether Forfeitures or Escheats were to the Kingdom? And whether Fealty was sworn, or Homage done to the Kingdom? Or whether an Earl was invested or girt with the Sword of the County by the Kingdom? Or whether the Ancient Ceremonies used at the Creation of Earls and Barons, were done by the Kingdom ? Thus all the Barons of England held of the King; and thus all these Things were performed and done to our Ancient Kings, and by them which are most manifest Notes of the King's immediate Jurisdiction over the Barons; and that they were his Tenants in Capite, and by Consequence his Barons only, which you cannot deny; and of which Tenantsin Capite, the Earls and Greater Barons, always Created by Investiture of Robes, or other Ceremonies, were summoned by particular Writs; and the other Less Barons, or Tenants in Capite, ever since the 17th of King John,were summoned by one Common Writ, directed to the Sheriff of the County; since which Time (if not some Time before ) I grant these Tenants in Capite were not look'd upon as Barons or Peers of the Kingdom, properly so called. Yet did their Votes in Parliament still conclude, and charge their Tenants in the making and imposing of Taxes or Laws, which they alone, together with the Bishops and greater Barons, still performed, until the Times I assign.

F. I see you are in a Wood, and do not know well under what Oafs to rank your Tenants in Capite-, for if they were at first all Lords or Peers, how could they serve upon Juries in Hundred or County Courts? If they were meer Commoners, then there, were Commons in Parliament, before the 49th of Henry III. and why might not others as considerable Commoners, have Places in the Great Council as well as they, whether they were the K-ing's Barons, orTenant sin Capite, or not > But in Answer to this, you tell me, that we never had any Barons held by mean Tenure, here in England this is plainly equivocal; for if you mean it of Barons in Capite, it is true; if of other Baronies, it is false by your own Confession. And Sir H. Spelman tells us, in the Title last quoted, that the Baron of Barf or d pleaded to hold of the King per Baromam, and yet he was never any Baron of the Kingdom. Now I desire you to shew me, if he, and such like Barons as himself, had no Place in Parliament, who it Was.represented them there. And therefbrs in Answer to your Dilemma, I grant that

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every Baron by Tenure, was a Tenant in capite but every Tenant in capite was 'not a Baron; and this I think is so plain, that you your self cannot deny it..

But as to your next Question, I can answer it without asking the Gentleman, from whom you suppose I borrow the Notion, That there might be other Barons, or Lords or Manners, who by reason of their Estates might have Places in Parliament (supposing Knights of Shires were not introduced till after King Johns Time, when such Freeholders became too numerous all-to appear in Person) and yet these might not be Barons by Tenure: And therefore all yohz Questions conclude nothing; for you suppose that which is still to be proved, that because all the1 Barons of England, properly so called, held of the Kirtg in Capite, and were consequently his Barons; that therefore none but Barons, and Tenants in Capite, had any Place in our great Councils, which is the Thing you suppose, and I as positively deny.

. M. Well Sir, since you put it to that Issue, I hope I shall fully convince you, that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament, before 49th Hen. III. or'. 18thEdw. I. and who alone gave Assent ,to all Laws that were made, and all Taxes that were to be imposed on themselves, and their Under-Tenants, who Were then concluded by the Acts of their superior Lords.

But not to wrangle with you any longer, about the Signification of tlte B A F Word Barones, I grant there were Nominal or Titular Barons, very many, Ag. u6. such as I have mentioned-, nay, that there were several other great Subjects' who had Tenants that held 5, 6, 7, 8, or 10, nay more Knights Fees under them, and who had the Name and Title of Barons. But what is this to the Purpose? I desire you would prove to me, by any direct Proof, that these Sort of Men had any Voices, either by themselves, or their Representatives in Our  '\

Feat Councils, till after the Time we allow them; and this (besides the Proofs • . • have already brought) I think is sufficient; since it is plain, that the Barques Regni, or Terra, and the Milites, and Homines sui, are all one and the fame Persons, that is, they were the King's great Barons, or Tenants in Capite, who alone constituted the Baronage, or University of the Baronage of England, or of the Kingdom, in our great Councils, or Parliaments. And for the farther Proof of this, I need go no farther than those very Arguments your own Author Mr. P. hath made use of, in his Right of nhe Commons averted-, Wherein he B. A. would prove "from certain Letters that were sent from the Baronage, arPag.itu University of the Baronage of England to the Pope, against the Church ofRome's Exactions here in England. And therefore I shall not bring only Fragments, Phrases, or single Words out of the Records or Histories which seem to counrenance my Opinion, contrary to the true Meaning of those Records, and the Sense of the Historians, as some of your Men do, but shall give you the Quotations out of those Authors, whole and entire -, and shall make such reasonable Deductions from them, as I think you will have no reason to deny to be fairly raised from the Words themselves.

Thus also, as Matt. Paris relates, in the 29th Hen. III. the Earls, and Ba- Fol 6 ^ tons sent Letters to the Pope, then at the Council of Lyons, to complain of the Pope's Exactions •, which Letters are laid by this Author to be directed a Magtiatibt/s, C Universitate Regni Angli*. And it is also true , that in the lame Year there were other Letters sent thither, from the fame Parties, to the Cardinals there assembled, which are recited by the old Manuscript to have sent Messengers to the Cardinals-, and the old Manuscript in the Cottonian Library, that they sent to the Cardinals assembled at the Council of Lyons, Letters i Baronibus, Militibus, C universis BaronagijRegni Angli<e per procurators fuos Roger urn Bigod Comitem Norff. WillieImum de C&ntelupo, Johannem filiumGalfridius Radu/phum filium Nicholas, Philippum Basset, Barones, Procurators Baro'nagii Anglia tune temporis.Innocentio Papa Quarto celebrante Concilium ibi generate. Anno Grati* 1245. And the Letters are thus directed;Venerabilibus in Christo fratribus universis, C singulis Dei Gratia Salutem. Barones, Milites, tf Un'werfitasBaronagii Regni Anglin. And Matt, of Westminster does likewise agree in this Relation, only stiles the Persons last named, Milites, whom Mas. Paris called Viri Nobiles, & di/creti: But this will make no Difference, as I sliall shew you by and by and to these Matt, of Westminster adds Mr. William Yotmc Clerk, who seems to have been their Secretary. ....,


B.a.p- But notwithstanding, it will appear that all these Persons so sent, named Zte

Page 103,104. rones gf Milites, & Universitas Baronagij, did not represent the Commons of England at all, but only the great Earls, Barons, and Tenants in Capite. For first it appears from Sir W. Dugdales Baronage ofEngland, that every one of the Persons here named, was either an Earl, Baron, or great Tenant in Capite, and notTome 1. common Persons, as your Author would have them.' And tho' it is true, the /w. 706. OttomanManuscript, and Matt, of Westminster call some of them Milites 5 ®" yet this makes nothing against our Opinion;for as I proved before, the great

Milites were often stiled Barons, and the Barons Milites.

Nor was this Earl, and the four Barons here mentioned, chosen or sent by the Baronage of the Kingdom assembled in Parliament, to represent them at the Council of Lyons, but were only pitched upon by a Body of Military Tenants, or Barons, at a Tournament intended to have been held at Dunftablewhich was forbidden by the King; and these took upon them to warn Mr. Martin, the Pope's Clerk, out of the Kingdom; as appears by the Account Matt. Parts gives us of this Business, in the Paragraph immediately following: So that the History of the thing makes it plain, who were the Universitas Regni5 to wit, the Barons, or the Universitas Armatorum, who were met to hold the Tournament, and these the King there called his Barons.

'And after this, in the 30th of Hen. III. when the Tope did not give Satisfaction to their Grievances, the King called (as this Author tells us) ad TarliMatt. Pans, amentum generalijjimum, totius Regni Anglkam totalemNobilitatem Londini ('viz.) 9' Trelatorum tarn Abbatum, iSf Triorum, quam Epnfcoporum Comitum quoque Us

Baronum ut de Statu regni jam vaciUantis ejsicactter prout exegit urgens necefi B. A. P. fltas contreUarent. In this very Parliament the King conferred with the Bishops Pag. 106. by themselves, and the Earls and Barons by themselves, about this Business of the Pope's not keeping his Promise: And certainly if there had been then any Commons in this Parliament, he would also have Conferred "with them about the fame Matter.

The Result of all these Conferences was, that yet for the Reverence due to the Apostolick See, they should again supplicate the Pope by Letters, to re* move their intolerable Grievances, and insupportable Yoke. And this they do , in separate Conferences. The Bishops write by themselves the Abbots and Priors by themselves; and the Earls, Barons, &c. by themselves, to the Pope 5 and if there had been any Commons , as at this Day, rhey most certainly would likewise have wrote to the Pope, as well as the other constituent Parts of this Parliament did.

F. I hope I shall be able to answer what you have now said : In the first Place, tho' I should grant that these Commissioners sent by the Baronage of England, were all of them Barons, and no Commoners among them; doth it therefore follow that the Persons that sent them, must have been all Lords too > For if those Commissioners, were all Peers, who represented your Barones minores, or Tenants in Capite, (who, as you your self have granted, were no Lords at all) why might not those Lords as well represent all the Commons of England, as they did these lesser Tenants in Capite ? So that it seems plain to me, that these Words, Universitas Baronagij AnglU, must needs then comprehend somewhat more than your Barons, and Tenants in Capite only; since the Words Baronesi5f Milites alone had sufficiently expressed all the constituent Members of your Parliament, without adding V?Universitas Baronagii, which would have been a Tautology.

But that it was very usual for the great Lords in those Days, to write Letters in their own Names, as also for all the Commons of England. I shall shew you by and by, wiren I shall make use of two other Instances of a like Nature, in the Reigns of Edw. I. and Edw. III. And therefore it is no good Argument to prove, that the Commons had no hand in this Mesfige, or Letters, because they did not write by themselves much less is it lo, because it is not exprefly mentioned by Matt. Taris, that the King constiltea the Commons as well as the Bishops, Earls, and Barons, that therefore they were not there: Since this Author writing very concisely, comprehends all the Lay Estates, under the Words Comites & Barones, or else Magnates alone. So likewise Matt, of Westminster, when he mentions divers Parliaments in the Reign of Edw. I. and Edw. II. expresses them under the seme Title. And .1 .' tho*



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tho' this Author often mentions the Earis and Barons to have done this, or that; yet it is no Argument to conclude, that the Commons were not then there. And for this, pray take these Examples out of Matt.Westminster hvitxenAnno Dom. 1300. the 28th of Edward I. he tells us, the King held his Parliament at Lincoln, where theComites & Barents demanded a Confirmation of the great Charters, and they further asked, that the Deforestations made by the King mould be confirmed; and then he tells us, that thereupon the Charters of Liberties and Fotests,were again renewed; and being past under the Great Seal, were proclaimed before all the "People, in everyCounty -, where you fee that the Complaints were made by the Earls and Barons; yet it is certain, that the Confirmation of these Charters, must have proceeded from all the Estates; tho' the Bishops,an d Abbots, and Priors, who were then constituent Members of this Parliament, are not at all mentioned. Yet that they, as also the Commons were at this Parliament, will easily appear, if you please to consult the Clause-Roll, where the Summons are entred. So also Henry deKnighton, Anno Dom. 1301. the 29th Edw. I. tells us of a Parliament this King held at Stamford, where met the Earls and Barons, and with great Courage persisted until they had got theCharter of forests fully granted and confirmed to them. Where note, that tho3 by way of wtcellency, the Earls and Barons (who then bore the greatest Sway, are here only mentioned) yet it is certain, that the Commons were also summoned to this Parliament. Now if these latter Historians pass by the Commons, tho' then constituent Members of Parliament, without any ©ne express Mention, why might not Matt. s aris do so too?

But that he did so, appears very plainly from the Letters of the Parliament held in Both Hen. III. to the Topeand Cardinals, being still at the Council ofLytms, to remove the intolerable Grievances above mentioned. That to the Tope is recited at large by Mat. Parts, tho' that to the Cardinals is omitted 1)y him •, Bib. citt. Sub but in an Ancient Manuscript of the Time extant in Sir John Cotton's Library, Effigkck^atr. both Letters are said to have been sent to the Cardinals at Lyons, k Batonibus, Militibus,' & Vniverfitatibus Baronagii Anglix. Now who these were, the subsequent Letter to theP^ in Mat. Paris will inform us, which begins thus-, San&ijftmo, 8cc. Devotifilh sui Richardus Comes Cornubit, &c. together with Mat. Park, divers other Earis there named ; but the Commons are not particularly recited, *96> 7°°' yet are comprehended under these general Words, Barones,Proceres, & Magnates, ac Nobiles Portuum marts habitaturos, nec non & Qerus & Populus vniversus Salutem-,and pray note, that Matt. Parts had before called this a Parliament, Ccmvenientibus igitur ad Parliamentum totiusRegm Magnatibus 5 p*t* 697which Words take in the Knights of Shires; as the Nobiks, Portuum martshabitaturos, do the BaTons of the Cinque Ports; (which by the way are here called Noble, tho' mere Commoners.) And to obviate your Objection, that the Word Clervs after Barones, may refer to the Bishops, Abbots, and Priors, that could not be ; for they at the fame time had already writ Letters apart to the T'ope, concerning this Matter; as you may see in the fame Author immediately before. And thetefore nothing seems plainer to me, than that by these Words, XSerus & Populus \Jriiverfusy must be meant the inferior Clergy, and Commons, appearing by their Representatives in this Parliament, and that so became generalijsimum Parliamentum, as this Historian calls it. M.Pray give me leave now to reply.

In the first Place I must tell you, that the Instances you have brought out of Matt. Westm. to prove that under the Words Comites and Barones, & Baronagium Anglit, were comprehended the Commons of England, and that after the Time I allow them to have been there, will not do your Business.

As to the Instance about the Pope's Nuncio, it seems to have been an Order of the Lords only; the Words being in Latin, de Affenfu Comitum tSs Baronum.

As to the Third Instance out of Knighton, he said indeed, that the Gomites & Barones met at the Parliament atStanford; and that might very wdl be, since they alone then insisted upon the Confirmation of the Charter of Forests.

But as for the Argument you draw from the Direction of this Letter to the Pope: The learned Dr. in his Treatise against Mr. P. hath given us a very good Arifwer to It, to this Effect-, that tho'it is true, that after the Barones 0Proce- I0 ret, there are divers other Parties mentioned, yet was this Troop of Words pot together in this Letter to no other purpose, than to make an Impression upon

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the Pope, and make him sensible what a general Dislike the Nation had of his Exactions and Encroachments, and to induce him to a Compliance with their Desires 5 the Multitude or Commons not being any-ways Parties, or privy to the writing of the Letters. For the Clamour of the People was a great Argument used in all these Letters, to affect the Pope, how ungrateful his Impositions were to the Nation. But in this of the Temporal Barons more especially, who address themselves to the Pope by Petition, enforcing it by the Clamour of the People, against those Injuries and Oppressions upon the whole Kingdom, it is to no purpose to repeat all that follows; only observe this Clause, Moquin necejse est ut venlant Sfandala Gamere Populi, tam Dominum Regem,quam nos intolerabiliter impellente. And the King likewise in his Letter to the Pope and Cardinals aggravates the Matter, by the like Arguments; as appears by this Clause, in his Letter to them; verutn Qamorem incomparabilemMagnatum Anglu tam Cleri quam Populi rton pqO'umus obaudire. From this general Clamour of the People, and not from their being Parties, it was. that the Beginning of the Letters from the Baronage, or the University ofEngland, was stuffed with so many Words and Phrases, to awar ken his Holiness, andinvite him to redress their Grievances.

F. In return to what you have laid, I must tell you, that I am not convined, that in the Parliament mentioned byMatt. Westm., the Demand for the Confirmation of the Charters was made by rhe Lords only; since it is not likely that the Commons (who are there stiled Divites Plebk, and are said to have been grieved by their Infringement) should not have been Parties to the Complaint for their Redress j especially since we find that in all succeeding Parliaments, the Commons are mentioned as most eager for the Confirmation of these Charters.

But «as for the most material Part of your Answer to my Authority from the Parliament's Letter to the Pope, I know the Dr. endeavours all he can, to avoid the Force of this Objection, by making the Parliament top upon his Holiness meer empty Words, instead of Matter •, that is, according to the Dr.s' own Phrase, they only laid an airyAmbuscade to intrap him. But whether the old Gentleman was thus like to be catched, I give you leave to judge. For certainly both he and his Consistory of Cardinals, knew as well as the Parliament it self, what were the constituent Parts thereof, and they could quickly have answered them, that they put a meer Sham upon his Holiness, in mentioning the Noble Inhabitants of the Sea Ports, and all the rest of the People, both Clergy and Laity in their Letters whereas they had nothing at all to do with the Matter,nor had shown any dislike of his Holiness s Proceedings. For if they had no Representatives in Parliament, how could it be known whether they were aggrieved or not > Or is it likely the Pope had no Nuncio, or Friends, among the Clergy, to give him an Account of the Cheat they there put upon him? And they might as well have talked of the Clamours of the Tinners in Cornwall, as of those of the Inhabitants of the Sea Ports, if it was only put in to augment the Clamour, or to fill up the Number of the Complainants i if the People (I mean both Nobility and Commons) had not been Parties to these Letters. And you your self have but now recited a Clause in the King's Letter to the Pope and Cardinals, which makes it plain it was so; when he tells them, that he could not stop his Ears against the Clamour of the Mag- nates, tam Qeri,quam Populi, i. e. as well of the Clergy, as of the Laity, as the Dr. renders it. So that these Words, Qamorem Magnatum, must signify here the Clamour or Complaint of the whole People in Parliament j or else they signify nothing at all.

. And I may as well fay that the Qerus and Populus never appeared in Parliament at all, but that these were also meer empty Words to frighten the Pope. But what fay you to the next Precedent Mr. P- produces to prove that the Lords and Pvc u$. Commons together have writ Letters to the Pope, when he attempted to invade the Right of the Crown or Kingdom, viz. The Letter from the Parliament at Mat. Wtstm. Jjncoln to theP^, in the 29th of KingEdvp. I. wherein they assert the Kings *>TMVom. Superiority over the Kingdom of Scotland, and desire that his Holiness would desist from meddling farther with it. Which Letter, tho' subscribed by above a Hundred Earls and Barons, as it was the Custom of ^hat Age, yet it is laid expresty in the Conclusion, In cujus ret TestimdniumSigiUatam pro nobis, quam pro tot a Communitate pradlfti Regni Angliœ prejentibus sunt appensa.

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M. Though this Authority is after the Time we acknowledge the Commons to have been summoned to Parliament, and therefore I need not speak particularly to it-, yet I grant your Argument hath lome Weight in it, since it here seems, that the Lords did Sign this Letter, for the Commons, as well as themselves: I (hall therefore endeavour to Answer it. I confess it appears very specious at first sight} but what if I shew you, that this Letter was written by the Lords only from , Lincoln, after the Commons had been dismissed from thence by Prorogation or Adjournment? For though it is commonly story'd, (but erroneously ) that this B. A. p. whole Parliament, or at least the Temporal Lords, and the Commons, wrote to p*&« > 53the Pope concerning the Jurisdiction and Superiority of the Kings of England over the Kingdom of Scot/and: Yet it cannot be so; for this Parliament met on the OBaves of Hillary, or the 20th of January, and fate but Eight Days; the Writs for the Commons Expences bear Date January the 30th of the lame Year-, and VM.41* the Letter to the Pope, signed by the Temporal Lords for themselves, and the °tthe Ae" whole Community of the Kingdom of England, is Dated February the 12th nextwrits following at Lincoln, after the Commons had been discharged Fourteen Days. So that you fee the Barons still continued to stile themselves the Community of England; and both Spiritual and Temporal Barons, and others of the King's Council, did stay and dispatch much Business, after all others were dismissed, according to the Tenor of the thete recited Proclamation, and may be fully proved from the Proceedings of that Parliament, as they are to be found in Ryle/s Placita Parliament aria. So that nothing seems plainer to me, than that the wholeFal- 24'» <&cCommunity of England, for whom the Barons there named set their Seals to that Letter you mentioned, were the Community of the Barons only.

F. I confess Mr. Pryn, in his Animadversions upon my Lord Coke's Fourth Insti- p"&{ 9tute, was the first who started this Objection, That the Commons could not be present as Parties to this Letter. Yet he still supposes that the Lords who staid behind, and made a kind of a Great Council at Lincoln, Signed it not only for themselves, but for the Commons also, though not actually there; and is^not so extravagant as your Doctor, to suppose, that by the Words in this, Letter, Tarn pro •' Nobis, quam pro tota Communitate, &c. are to be understood the Community of Barons only for that would have been a Tautology indeed: For so the last Words, CommunitasRegni, gcc. would have signified no more than that they subscribed for themselves, and themselves; and that the Word Communitas Regnit ( which I can prove to you by many Examples, did then comprehend the Commons ofEngland) must here mean more than your Community of the Earls and Barons. For pray take Notice, that theTenants in Capite, had now by your own Concession, left off to appear in Parliament in a Body, as being now represented by the Knights of Shires, Vfc. So that Sir Edward Coke very well observes in his Fourth Institute, that this Letter was Sealed by above One Hundred and Four Earls and Barons, yet it was by the Assent of the whole Commonalty in Parliament; and Mr. Pryn is so tar convinced of this in his exact History of Papal Usurpations, that he stiles this Letter, Tf>e Memorable Epistle of the Earls, Barons, Great Men, andCommons Page 893. ofEngland, &c.

But to shew you farther that there was no Change, neither of the constituent Parts of our Ancient Parliaments, nor of the Terms by which they are expressed in our Ancient Records, appears by a Plea among Mr. Ryle/s Printed Pleas of Fi>1. 37$. Parliament, in the 35th of Edward I. where it is recited, that in the Parliament at Carlisle Willde Testa, the Pope's Clerk, was Impeach'd per Comites, Baronest

alios Magnates, & Communitatem tot'ms Regni, concerning divers new and intolerable Grievances laid upon them by the Pope: Where you see there is no Change of this Word Communitas, after the Commons were (as you suppose) certainly present in this Parliament; and why the fame Word should not signify the same Thing in the beginning of this King's Reign, as well as now, you had need give me very good Authority to prove the contrary against such clear Evidence as this. But this Record goes on, and farther recites, that these Letters were sent to the Pope, Ex parte Communitatis prxdiftœ; and in which, Clerus & Popuhts di8i Regni, set forth the said Grievances to the full. Now, as the Word Qerus here expresses all sorts of Degrees of Clergy, as well Superior as Inferior, represented in Parliament and Convocation, so must Populus here signify the Laity of both Orders, as well the Commons as Lords, since the Commons were certainly present at this Parliament; and why the Word Populusshould not

3 signify

signify the fame Thing long before, I can see no Reason for it, but the Doctor's bare Assertion.

And as for what you fay, that the Commons could be no Parties to this Letter, because it appears by the Writs of Expences, that they were discharged before this Letter was written; admitting it were so, it makes nothing against my As sertion. For why could not the Commons agree upon the Substance of the Letter, and leave the Lords to draw it up, and subscribe it for them, after they were gone Home? And that it was so, appears by the Letter it self, which recites, That the Ying had caused the Pope's Letter, In medio, or pleno Parliamento exhiberi, acseriofe nobis fecit exponi unde habito traUatu, C deliberation Diligenti super contentis in literis veflris memoratis,communis concors, £f unanimus omnium, & singular um consensus suit, 8cc. Now every one knows, that understands any thing of Parliamentary Affairs, that when any Thing is said in an Act of Parliament, ot other Record, to have been agreed upon in full Parliament, that is always'understood to have been done, all the Estates being there present. Nor can 1 fee ariy Reason why this Letter should not be called the Letter of the Commons, as Well as of the-Lords, since the very Statutes of that Age were often laid to have been assented to by the Commons, though it is clear they were not drawn up into Form till after the Parliament was dismissed.

But that the Commons werecertainly Parties to this Lettef, appears by a Record of the beginning of Edrtard-the Md's Time, Printed by Mr. Pryn, then Keeper of the Records of the Tower, (and which- he tells us he found among the Rolls in the White-Tower) which Record contains the Heads of a Defence compiled by the King's Council, in order to a stronger Plea against the Pope's taking Cognizance in the Court of Rome, concerning the King of England's Superiority over Scotland-y . > « in the Conclusion of the Second of which Records, there is a' remarkable Article nstjy ** relating to this very Letter now before us, in these Words, hem adfinem yuod Page855. Nobiles Regni Anglic & Procurator es Communitafis fubditorum Regni pr.tdi3i adrttittantur per ipfumDominum Regent ad hujufmodi defenfwnes propenend. prout eorunt Aritecejfores ab Avo di8i Domini Regis nojirierant admijfi. Now to what Transaction of this kind, in the Reign of Edward I. this King's Grandfather, can this Passage refer, but tb this very Letter, which was assented, as vidS. per procurator es Communitatis Regni, as by the Barons, here called Nobiles Regni? And this Application theteof is given by Mr. Pryn himself, when he makes Use of these Records.

p R c But to let you fee farther, that the Lords and Commons, for all this Author's

Page 119. Opinion to the contrary, might join in a Letter to the Pope, I shall shew you by that which was writ in the Name of the whole Parliament to the Pope, in the 17th of Edward HI. about the Provisions of Benefices, which then grew so exorbitant, that Walsingham tells us in his History, 9po& Rex & tota Nnbilitas Regni vita Edw. ill. fatl ttoluit, &c. which Phrase the Letter it self will best explain. The Beginning ¥oi.\6i. and Conclusion of which I shall give you in Englijh, as you may find it in Mr. Fox's Book of Martyrs.

Vol. L Page To the Most Holy father in God, Lord Clement, by the Grace of God, of the *01* Holy Church ofRome, and of the Universal Church, Chief and High Bishop, his

Humble and devout Children, /^Princes, Dukes, Earls, Barons, Knights, Citizens and Burgesses, and all theCommonalty of tlie Realm of England, assembled at a Parliament holden at Westminster, the 15th 0/May lastpast, Stc. in Witness whereof we have hereunto set our Seals. Given in the full Parliament at Westminster, on the 18th Day of May, Anno Dom. 114?.

And it still appears by the Parliament Roll of this Year, viz. 17th Edward III. n. 59. that the Commons Petitioned the King, that the Lords might stay at the Parliament till they had perfected and SeaTd this Letter. Tit.Rot.Ro- And that there was such a Letter then written by the Parliament, appears by Edtf. the King's Letter to thePope about the fame Matter, still among the Tower Rein m. 3. t cords-, (in which he imitated his-Grandfather,Edward I. and Great Grandfather Henry III. who also sent Letters to the Pope on such like Occasions); but in those to excuse the Archbishop of Canterbury from being the Author of those Complaints, he had this Passage, that since it was the Judgment, tarn Procerum & Nobilium, quam Communitatis Regni in ultimo Parli-imentocontra Provisorum Exercitum.

»

To

To conclude I think nothing is plainer, than that under the Universitas Regni, in the First Letter to the Pope,the 29th of Henry III. and under the Communitat Regni, mentioned in the Letter of the 29th Of Edward I. were meant the lame Estates or Orders of Men, as were more particularly recited in this present Letter, under the same Words j viz. The Temporal Lords and Commons in Parliament Assembled.

M. I must freely tell you, I am not yet satisfied with the Sense you now put upon these Words, Univerjitas) andCommunitas Regni, before the Commons were summoned to Parliament} for you your self must grant, that as the Word Universitas Regni takes in the whole Representative Body of the Kingdom, Ib likewise the WordCommunity signifies no more than the fame whole Body or Community thereof Therefore if I prove to you, that in those Times this University or Community consisted only of the Ear/s, Barons, and Tenants in Capite, that Word Communitas Regni, ought never to be interpreted by the English Word Commonalty or Commons orEngland, till after the Time that I allow the Commons were admitted to make a constituent Part of the Great Council or Parliament, nor always then neither. And Mr. P. in his Book which we have so often cited, hath done very unfairly to make the Universitas and Communitas Regni, to signify the Commons of England, before they ever appeared in Parliament at all; and so hath he likewise abused the Word Populus, as 1 have already observed, to' signify the Commons, when indeed there is nothing thereby meant, but the whole Assembly of the Laity, which at that Time consisted of no more than the Earls, Barons, or other Tenants in Capite. And though I grant that by Communitas Prx- R. A. F: haorum, or Baronum, are often understood the Body of the Prelates or greaterFa*e '28* Barons only, called by way of Eminency, Proceres & Magnates; yet most frequently, these, with all the other Tenants in Capite, did make the whole Body of tile King's immediate Tenants in Military Service, and were all together called the Baronage of England, or the Community of the Kingdom \ and for this I think I shall give you undeniable Proofs by and by.

F. I am very well aware that the Word Populus often signifies the whose Body Of the Laity, yet not excluding the Commons, as I have already sufficiently proved. For then the Word must signify quite contrary to its genuine Signification •, instead of People, the Greater Nobility only yet when that Word is put after, as distinct fromMagnates, it must mean the Commons as now understood, I shall now shew you.

For that this Word Populus does not always signify the whole Body of the Nobility only, but takes in oftentimes the Commons too, pray see Matt. West, who tells us, Ki;ig Edward I. in the 34th Year of his Reign, making his Son a Knight, *t s$< Pro bac mtitia filii Regis concejjus eft Regi Trigefimus Denarius a Populo &Qeroy Mercatores vero vicefimum concejferunt: Upon which your Doctor in his Glossary very well remarks, that it is evident upon Record, who were the Populus meant by the Historian, viz.. the Comites, Barones, £9* aliiMagnates, nec non Milites Comitatuum. So that unless the Knights of Shires were Lords, it is plain Populus takes in the Commons too. But Universitas Regni^ and Communitas Regni, called in Trench le Commune tfangleterre, is indeed often taken for the whole Community, or Body of the whole Parliament •, and this Sir Edward Coke-owns expresty in his Second Instit. upon these Words, In ArticuGs super Chart as: Thus (fays he) ^53?here heCommune is taken for People •, so as tout le Commune is here taken for all the People; and this is proved by the Sense of the Words. For Magna Charta was not granted to the Commons of the Realm, but generally to all the Subjects of the Realm, viz. to those of the Clergy, and to those of the Nobility, and to the Commons also.

And this is a Rational as well as Grammatical Interpretation: For as the Word Universitas is derived ftom the Adjective Universus, which signifies the Whole, or Universal: So the Word Communitas is derived from the Adjective Communis, Common or General. So that these Two Words, when used simply in a Political or Legal Sense, ought to take in the whole Body of the Kingdom, or all Sorts and Conditions of Freemen, appearing themselves, or by their Lawful Proxies or Representatives, in Parliament.

But I have already sufficiently proved, that under those General Words used in our Historians and Records, viz.Principes, Proceres, Nobiles, Magnates, Baronest Vf asri de R*g»o, were then comprehended either all the, considerable Freeholders,



{298}

or Lords of Manors, or else the Knights of Shires, Citizens and Burgesses. So that if the Sense of these Words have been sufficiently explained, I think no reasonable Man can have any Cause to doubt, whether these Abstract Words, Kobilitas, Vniverjitas, and Communitas, should be taken fos all Sorts and Degrees of Men, when thus represented in the Great Council; or whether they shall be confined to the Greater or Lesser Nobility only, viz. the Great Lords, Bishops, and Tenants in Capite, as you would make me believe, which requires stronger Proofs than what you have yet brought.

Besides which Sense of this Word Communitas, or le Commune, it is also more commonly used at this Day, and often then too, in another more restrained and legal Sense and that is, when it is used for the Commonalty orCommons of England, distinct from the Peers; and this may very easily be distinguished, by observing, that when it is Taken in this Sense, it is always set after the particular Enumeration of the other Orders of the Lords or Peers, viz. the Archbishops, Bishops, Abbots, Priors, Earls and Barons; or when it is put contradistinct to the Word r. R. c. Magnates. I shall give you some Authorities and Examples from Historians and sage 35- Records of both these-, and that in the Times preceeding those that you allow the Commons to have been summoned in Parliament. Of this Sort is that which Pige-$$2. Matt. Westminster mentions as a Parliament held the 37th ofHenry III. and which is thus recited in the Patent Roll of this Year $ where, after the Excom? munication denounced against all Infringers of Magna Cl)arta, there is this solemn Clause added, That if to the Writing concerning the said Sentence, any other Thing, or in any otherwise should be added thereunto, besides the Form of the said Sentence then to be denounced and approved of; that then Dominus Rex, & pi .ciiBi Magnates, iffCommunitas Populi Protestantur publice before all the Buhops, that they would never consent thereto; and conclude thus, In cuius Rei Testimonium, & in poster um Vcritatis Testimonium, the King, the Earls of Not folk,Hereford, Essex, and Warwick, Petrus de Sabaudia, ad Instantiam aliorum Magnatum & Populi Prescript/, Jigillasua apposaerum \ where you may see, that it was usual before the 49th of Henry III. tor those that were Peers to put their Seals for the Communitas Populi, or Commons.

M. I pray give me Leave to answer your Authorities as you bring them, lest I not only forget some of them, but also tire both you and my self with too long a R. A. p. Discourse. I hope I am very well able to prove, by the Learned Doctor's Asli^7?. stance, that the Communitas Populi, here mentioned, doth signify not the Commonalty or Commons, but the Community of the Laity there present, consisting of the Greater Barons, or else of the Less, or Tenants in Capite. And for FoL 8d$. Proof of this, pray take Notice, that Matt. Paris called this Council Tot aAnglic Nobilitas. And in this Parliament the King demanded a great Sum of Money of them, after much Contest, and upon Promise to reform all Abuses, according to the Tenure of the Great Charters; thereupon the fame Author tells us, The Church granted the Tenth of the Revenue for Three Tears, and the Knights (or Nobility )granted for that Tear Scut age; to wit, Three Marks of every Scutum, or Knights Fee. And then the Archbishops and Bishops in their Pontistcalibus, with light Candles in their Hands, in the Presence, and with the Assent of the King, the Earl oi'Cornwai, his Brother, and several Earls there named, & aliorum Optimatum Regni Anglia, and other Chief Men of the Kingdom, Excommunicated and cursed all those that from thenceforward should deprive rhe Church of her Right, and all those that should change, alter or diminish the Liberties of the Church, andAncient Customs of theAtingdom, especially those granted in the Great Charter of the Common Liberties ofEngland, and Charter ol the Forest granted by the King, Archiepi/copis, Episcopis, & utteris Anglu Pr<elatis,Comitibus, haronibus, MMtibus, i5f Libere 'lenentibus, &c. i. e. To the Archbishops, Bishops, and other Prelatesof England; and to the Earls, Barons, Knights and Free-Tenants, or Tenants in Military or Knights Service: For they only were such as paid Scutage, which was at this Time a kind of Composition with the King, for the confirming Magna Charta, and was never charged but upon Knights Fees; and these were such that held perhaps one narrow or scanty Knights Fee only; or some part of a Knights Fee; as an Half^ Third, Fourth, Sixth, Eighth Part, Use. who all paid a Proportionable Share of Scutage to the Great Lords, or Tenants in Capite, for the Land they held of them in Military Service; which was paid first to the Great Lords, and by them paid to the King.



And from thence I collect, that besides the Marches Maj ores that came to this great Council or Parliament,, there were also the Tenants in Capite, according to the Directions and Law for Summons in King John's Charter, who were comprehended under the Words. tota Nobilitas^ Vf Milites; and that other Tenants that held of theTenants in Capite by Knights Service, were bound by their Acts', fort hey all knew how many Knights-Fees they held of the King in Capite -, and if they had given any away to others, they held of them as they did of the Crown, and anfweted a proportionable Rate towards this Tax, for the Fees, Quantities or Parts of Fees they held of them; about which there could be no Mistake after the Scutage was ascertain'd. So that in so great an Assembly, where all the Nobility of England were called together by the King's Writ, and upon so great an Occasion and Solemnity, as confirming the great Charter of Liberties aftet such an extraordinary Manner, it cannot be doubted, but besides the Barons, all the Tenants in Capite, both Great and Small, which were! then very numerous, were present, or at least, most of them; from whence it is not difficult to tell you who theCommunitat were •, after the Prelates, Barons and Magnates, they were no other than the small Tenants inCapite, who were all summoned by one genera! Writ, not ehosen and sent by the People, but summoned as the great Barons in general, by King John's Magna Charta, as I shall shew you hereafter.

F. I hope I shall be well enough able to prove, that what you have now alledged is pure Imagination, or in the Dr.'s Phrase, an airy Ambuscade, and quite contrary to the Sense of Matt. Park, as also of the Lawyers and Historians of those Times. For in the first Place, nothing is plainer, than that this Author by the WordsCommunitat Populi, must understand an Order of Men distinct from the Magnates; or else if the Word Magnatesmight have comprehended them allj it would have been to no Purpose to have mentioned any more.

But to answer those Authorities you bring from Mat. Paris; as for the Word Jsfobilitas, since you still insist upon it, I have already proved that the whole Parliament, as well the Lords Spiritual and Temporal, as Commons, were both before and after this Time comprehended under these Words, Nobilitat Angl'ut and if you yet doubt of it, I can give you a plain Authority out of Walsingham \ for it is in his Life of Edvo. II. Anno 1327. Where relating the Manner of that King's Deposition, he tells us, That when the Queen and Prince came to London, there then met Tota Regni Nobilitat, to depose the King, and chuse his Son in his Stead j and he presently shews what this Nobilitat was, for then there was sent to the King, (being Prisoner in Kenelworth Castle,) on behalf of the whole Kingdom, Two Bi/hops, Two Earls, Two Abbots, and of every County Three Knights; and also fromLondon, and other Cities and great Towns (especially the Cinque Ports) a certain Number of Persons, who informed him of the Election of his Son, and that he should renounce the Crown and Royal Dignity, Use This Proof is so plain, it needs no Comment.

As for the rest of your Argument, the Strength of it chiefly consists in this, that the Tax there mentioned is said to be granted a Militibus, or Tenants in Capite, (as you would have it) of Three Marks upon every Knight's Fee. But in the first Place I desire you to take notice, that this Scutage is not Scutage Service, but a general Land Tax, or Manner of taxing according to Knights Fees, and which was-continued long after Hen. 111. Reign as it appears by thisPaflage inSitHenry Spelmdns Gloflary, Tit. Scutagium ; Edvoardus primus habuit 40 Solidos de quolibetFeodo Anno Regni i; Dom. 1285. pro Expeditione contra WaUos. And it was also granted.by the Lords and Commons after the 18th of£tfw. I. when you and the Dr. suppose the Commons to have then come to Parliament and if so, I desire to know why a Militibus here mentioned by this Author, must only signify Tenants in Capite,by Knights Service, and not Knights of Shires \ or other inferior Tenants by Military Service; since it is not here said a Militibus qui de Regne tenuerunt in Capite; and therefore it is a forced Interpretation of the Dr.'s, and without any Authority, to limit these Words Militibus, *J? libere Tenentibus, & omnibus de Regno nojtro (which you omit with an &c.) as also the omnibus Hominibus Liberis Regni nostri, only to the Arch-Bijhops, Bishops,and other Prelates of England, and to the Eatls, Barons, Knights and Free Tenants, or Tenants in Militaty or Knight's Service •, because they were only such as paid Scutage; whereas you have alreadv acknowledged thatMagna Charta was granted to all the Peo



pie of England, who had all a Benefit hy it, and who paid towards the Aid there granted, as well as the Tenants inCapite. _ I

But if Knights Fees alone were taxed, and that by the Tenants in Capite only, I desire to know by what Right all Tenants in Petit Serjeanty, and by Burgage or Soccage Tenure (who made a greater "Body of Men in this Kingdom in those Times) could pay this Scutage, since they held not by Knights Service, but by certain Rents or other Services, and lb not appearing in Person, could have no Representatives in this or any other Parliament of those Times. But if you will tell me they might pay according to the Value that Knights Fees were then reckoned at, viz. for every 20 /. a Years Estate; I desire to know how this could be called Scutage, or how the Tenants inCapite, or other Lords from whom they held those- Lands, could give away their Money for them. And in the next Place I desire also to know how all the Cities and Boroughs in England could be charged with this Tax i a great many of them (as you your self grant) holding of the King in Capite^ or else of Bishops, Abbots or other mesne Lords by Soccage or Burgage Tenure, so that this Tax, if granted only by the Tenants in Capite, by Knights Service, could reach them, and no other Persons j but if by tbisWorda Æz/i/ifewmay be understood Knights of Shires, then theTax was general, as well upon Soccage Tenants, as those by Knights Service.

But for the other Words you insist upon, viz. the Liberi Tenentes, which you translate Tmw/x by MilitaryService; if that had been the Meaning of these Words, then they had been altogether in vain, since you have already told me, that the Milites were so called, non a Militari Ctngulo,sed a Yeodo ; and if it were no Name of Dignity, then certainly the Word Milites would have served to comprehend all your Liberi Tenentes, or Tenants inCapite, without any other Addition. But that these Words Liberi Tenentes, do not here signify Tenants by Military Service, pray lee Sir Henry Spelmaris Glossary, Tit. Liber Homo, & liber Tenens; where he there gives us a more general Signification of these Words thus, Ad Nobiles dim fpeBabant isti Tituli, a majoribus ortos omnino Liforis;and then ends thus, vide ingenuus, Legality Homo Francus, Tenens Liberi, alias Liber Tenens quo etim Sen/uoccurit interdum Homo liber j which upon every one of these Titles he makes to signify all one and the fame Thing, viz. an ordinary Freeholder. And therefore it is a very forced Interpretation of yours, to limit these WordsCommunitas Populi, only to the Community or Body of the Earls, Barons, and Tenants in Capite.

Tho'I confess you are very kind in one main Point, in understanding the Communitas Popu/i to mean the Community of the Lester Tenants in Capite, that were no Barons •, and then do what you can, these Words must here signify meet Commoners, or Commons, unless you can shew us a Third Sort of Men, who, tho' neither Lords nor Commons, yet had a Place in Parliament. So rhat these Gentlemen, notwithstanding their Tenure, were no more Noble than their feudatory Tenants, or Vavasors themselves; nay, than the Knights of Shires are at this Day : And then granting (as I doubt not but I shall be able to prove) that the Cities and Boroughs had then also their Representatives there j I pray tell me whether or no there were not Commons in Parliament before 49 Hen.III. or not. Which is contrary to your Drs Aflertion in divers Piaces of his Answer to Mr. P.

And that the Word Populus must bere signify the Commons, and not the wide Body of the Laity, appears plainly by this Place you have quoted ; since it is restrained by your self, to mean not the whole Community of the Kingdom, hat only the Community of Lester Tenants in Capite, who were not Lords.. But that Matt. Paris doth also in another Place take the Words Populus for the Commoners, and not for the whole Body of the Laity, pray again remember what he fays under Anno 1225. where relating the Manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us, Rex Henricus ad Natale tenuit Curiam fuam Mpud Westm.PrœsentibusUero, Vf Pcpulo, cum Magnatibus Regionis ; which pray let us put into English, and fee if it will not prove what I fay, viz. The Clergy and People being present with the Great Men of the Kingdom. Now if the WordMagnates (as you affirm) did then comprehend all the Barons and Tenants in Capite, to what Purpose is the Word People put here as a distinct Member of this Parliament? But to shew you farther that this Word Populus is not always to be understood for the whole Body of the Laicks, but Lords and Knights of Shires, I shall shew you outofWalstngham, Anno 1297. 24th Edce. L where he mentions a Parliament held at St. Edmundsbury, in quo aCivitatibus, & Burg is conceffa est Rcgi OBdva, a Populo vero reliquo duodecimo pars Bonorum: Where byPopuius is not only meant the Peers, but Knights of Shires, or Grands des Countees also.

M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr's Arguments; yet I think I am able to give you a very satisfactory Answer why all Tenants in Soccage should be bound by the Acts of those of whom they held their Estates. For since fas I have already proved) all the Lands in England (except what belonged to Religious Houses) was granted out by King William the Conqueror, to be held in Capite by Knights Service, and was again granted out by these Head-Tenants, to their'feudatory or meshe Tenants by the like Services, there were very few Lands granted in Free-Soccage at the first. And tho' it is true that in process of Time, many of those Estates and Lands became Free Tenements, or were holden in Soccage, that is, were Freeholds, yet the Lords still retained the Homage (which in the Times we speak of was no idle insignificant Word) and by that a Dominion ewer the Estate j whereby upon Disobedience, Treachery, or Injury done to the Lords, the Lands were forfeited to them and tho3 neither the Lands nor the Tenants to them (which were termed Freeholders) were subject to any bafe services, or servile Works j yet the Lords had still a great Power over these Tenants, by reason of their doing Homage to them j for eo nomine, their Lands were many ways liable to Forfeiture; and therefore it was but reason, that the chief Lords being Tenants in dpi/e, should conclude their Tenants in Soccage also, and both make Laws and give Taxes for them, without their being at all privy to it. But admitting I grant, that before the 49th of Henry III. there were in some Sense Commons in Parliament, tho' not as Knights, Citizens and Burgesses, chosen by the Common People as their Representatives; yet will it not destroy mine, nor the Dr's Assertion ■, who in die Introduction before the Answer to Mr. P. only affirms, That before the ^th aforesaid, the Body of the Commons of England, or Ordinary freemen (as nowunderstood, or as we now call them) collet!mely taken, 8cc. bad not any Share or Votes in making haws, unless a*they were represented by the Tenants in Capite.

F. Be it so but I am sure in many Places of the Dr. s Book, he absolutely • denies, that there were any Commons in Parliament, till the Time he assigns.

But as for what you alledge in Answer to my Queries, how Tenants in Soccage could have Laws made for them, and Taxes laid upon them by their Lords or Tenants in Capite? Your Answer is wholly grounded upon Mistakes: For in the firft place, King William did not grant all the Lands in England to be held of him by Knights Service since (asl shall prove hereafter) there were many subordinate Tenants to Bishops, Abbots and other Great Lords, who never forfeited xbeir Estates at all, nor were disseized of them by your Conqueror, and who had also great Numbers of considerable Freeholders under them as in Kent, the greatest Part of the Land was Gavelkind,which was Soccage Tenure.

In the next Place, neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service-, sinee you your self own that a great deal of Land was given by him to his Inferior Servaats, to be held by Petit Serjeanty, and other Tenures; and besides this, a great deal of other Lands was regranted by that King himself; to some of those old Proprietors who had been dispossessed, to be held in Soccage; as appears fromf'/et*, who speaking of these Sort of Men, fays exprefly; In' huj u/modi naneriis {scilicet Regis] er ant LiberiHomines, Liberi Tenentes, quorum quidam cum per Potentiores a Tenement is fiterant ejeSi, ca don post modumin ViULenagium tenenda r&sumpserunt; C quia hujufmodi Tenentes cu/tores Regis effe dtgnojcuntur, provisa suitquies, ne seftas fecerent ad Comkatum, vel Httnire{dim, &c ——— quorum Congregationem tune Soccamappellarent, bine est quad Soemunni bodit dicuntur, &c.

Where you may fee that these Socmen, or Soccagers were then created by a new Tenure from this King; and are also called Liber/ Tenentes, Freeholders, which is contrary to your Dr.'s Notion, who would confine the Title only ito has Tenants in Capite. Nor did all the Tenants last mentioned grant their Lands to dithers to be held by Knights Service, since they as well as the King did at 'first, as ,also in process of Time, grant Lands to the oldEnglish Proprietors to be held of them in Soccage j nor was Homage the proper, or only Branch of Soccage Tenure, fan

Fealty^

Fealty; (unless the Land had been held by Knights Service at first ) as you may see. in Littleton's Second Book, Sect. 118. Nor did this Soccage Tenure give the Lord any more Right over his Tenants Estate, to Tax him de oho& bajfo, at his Wirl, by reason of the Subjection he was in to the Lord, in respect of Forfeiture; since then the King should have had for the same Reason, the fame Right over all his "Tenants in Capite, to Tax them likewise at his Pleasure. And this Right of Forfeiture in cafe of. Felony, or for want of Heirs, continued to the Lords as well of Soccage Tenants, as others, long after the Time you assign for the coming of the Commons to Parliament, even to our own Times-, and yet for all that, those Lords , < could not give Taxes for such Tenants in Soccage at their Pleasure.

But that we may proceed, pray consider also the Form of the Peace agreed upon between King Henry III. the Prince his Son, and the whole Body of the Kingdom, Assembled in Parliament, to compose all Differences between the King and 48s* Hen. Hi. the Barons: The Title of which in the Record is thus; Htc eft forma Paris am. 6. cbrfo. Domino Rege & Domino Edwardo filio fuo, Pra/atis, Proceribus omnibus cumCommunitate tot JRegni Anglix Communithr & Concorditcr approbata. Which Articles were signed by the Bishop of Lincoln, the Bishop of Ely, Earl of Norfolk, Earl of Oxon, Humphry Bohun, William de Monte Canifw, Us Majore London \ inParliamento London Menfe Junii Anno Domini 1264. Hac autem Ordinatio fa3a eft London de Consensu,Voluntate, iSf Precepto Domini Regis, nec non Prelatorum, Baronum, ac etiam Communitatis tune ibidemprefentium. B. A. P. M. I think the Doctor hath given us full Satisfaction as to this Record, in his

Answer to Mr. P. the Substance of which I sliall here give you in short.

Firji, It is certain, that at the making of this forced Peace, Simon Mountjordl, and his Faction, then held the King and Prince, as also Richard Earl of Cornwall the King's Brother, as good as Prisoners, and made them do what he pleased \ and he carried the King and Prince along with him, until he had taken in all the strong Places of the Kingdom; and when he had done, then he called this Parliament, which could not be one in the Sense it is now taken, since there were none there but the Earls, Barons, and Heads of the Rebels, which had the King and Prince in their Power, and (as you your self set forth ) were the lame Persons that Sealed it for themselves, and the other Barons, and the whole Community of the Kingdom of England; which Community must be the Community of the Barons and Great Men, or Tenants in Capite, by Military Service, and no other; for how can the Lords and Barons sign any Thing for the Commons, as at this Day understood? They did not then, nor now do represent them. B. A. p. But I shall give you another Authority, to make this clearer, of some Years

Pag.%i. before, related in Matt. Paris, viz. Anno Dom. 1258, 42d Henry III. where Letters are said to be sent, aCommunitate Anglix, to the Pope, concerning Aymer de Valence, Bishop Elect of Winchester; the Direction is thus, SanBiJJimo in Chrifta Patri, &c. Communitas Comitum, Procerum, Magnatum, Aliorumque Regni Angst*cum subjeBione debita, Pedum Oscula, 8tc. And to put the Matter beyond all Doubt, it is certain that these Letters were sealed by Six Earls, and Five Barons only, vice totius Communitatis. I need not give you their Names, since you may find them in the Author himself, as also cited by the Doctor. And as for H. Bigod, the Chief Justice, and the Four Persons named after him, they are proved by Sir WiUiam Dugdale, in his Baronage of England, to have been the Greatest Barons in the Kingdom.

Now pray let me ask you this Question: Did these Eleven Persons, all Greac Earls and Barons, represent the whole Commons, or Community of England, as ac this Day understood; or did they represent the Community of the Barons only^ together with the Altos, the Milites, which held by Military Service of the Greac Barons, and the Less Tenants in Capite? for the whole Community here intended, must be one of them; take which you please, you'll lose the Cause. For certainly these Great Eirls and Barons that sealed this Letter, vice totius Communitatis,were not chosen nor sent by the Commons to this Parliament or Meeting; nor were the Commons represented as at this Day by them, as you your self have already granted.

F. I hope I sliall not need to make any long Reply to this Answer of yours, or rather of your Doctor's, since it is built upon the fame false Supposition with the other, viz. that the Words tym Communitate tot a Regni Anglit,must always mean only the Community of the Tenants in Capite; which Supposition, if it be false in



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your former Argument, is also as false in this of the Lords and Commons too j and therefore it is impertinent to repeat my Answer to it.

But if this were no true Parliament, because Simon Mounts or I had then the King and Prince in his Power •, this would likewise serve to Unparliament that of the 49th of this King j from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament •, since the King and Prince were as much in Simon Mountford's Power then, as now^ and yet no Man as I know of, ever questioned the Validity of it; though I cannot also omit, that you pals by in this Letter, the Words Magnatum aliorumque Regni; under which Words, (as I have already proved ) might very well be comprehended all the Knights of Shires, as well as Citizens and Burgesses ■, unless the Words had run thus (as they should have done to have made out your Assertion) aliorumque qui deRege Tenent in Capite. N

But to come to the main Point you insist upon •, which is, How these Great Earls, and Barons, could seal this Form of the Peace, and these Letters to the; Pope, in the Name of all the Commons ofEngland?

Before I answer to that, I pray give me Leave to ask you one Question. You have already allowed that the ordinary Tenants in Capite, (of which that numerous Body chiefly consisted) though called by Courtesy BaronesMinores, were really no Barons, nor Peers of the Realm *, and if Ib, were but Commoners. Now pray fell me how these Great Earls and Barons you mentioned to have Signed this Peace, and this Letter to the Pope, could put their Seals for those who were no Barons themselves, by your own Confession •, and you cannot fay they represented them, for they were as good Tenants in Capite, as the Greatest Lords? But if"you lay they did it by their Order and Consent, pray why might not these Great Lords, or Barons, as well do the like for the Knights of Shires and Burgesses, by their Appointment? Since I have already proved, that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland. And besides, I mutt here observe, that the Doctor and you do not deal fairly with your Adversaries, in citing this Authority of the Lords and BaronsSigning these Letters to the Pope, Vice totius Communitatis Angli& -y since 1 acknowledge in this Place, the Word Communitas being put alone, doth mean no more than the Community of the whole Kingdom. But in the Authority I have quoted, it is put after the Earls and Barons, and so then must mean the whole Commonalty or Body of the Commons, in the Sense they are now taken, and as it hath been always used in French as well as inLatin, when it comes after the Earls and Barons (as I have already noted.) And for this pray see the Stat. ofWestminster I. made the 3d of Edward I. but Eleven Years after the 49th of Henry III. Per t affentmentsdesArchievefques, Evefques, Abbes, Priors, Counts, Barons & tout le Comminalty de la terre illonquessummones.Which Phrase I can shew you to have continued the same in most of our French Statutes, during the Reign of this King, and all his Successors in many Records, and Acts of Parliament, whilst they were writ in Latin or French;which I shall omit reciting, because I suppose you your self will allow it.'

I have a great deal more to say concerning the true Sense of the Words Communitas, le Commune, C leCommunalty; which because it is long, and it now grows late, I shall defer till another Time. t But I think I shall be able to shew you from undoubted Records, and Acts of Parliament, from the Reign of Henry III. as low asRichard II. that these Words, when used as I have now said, after the Earls and Barons, cannot refer to them, but to another distinct Estate or Order of Men, then called les Communer, or les Communes, in English the Commons of the Kingdom, distinct from the Bishops and Lords.

M. I shall not now dispute with you concerning the Sense you have put -upon the Words you mention, but I grant they often signify the Commons, after the 18th of Edwardl. in some Acts of Parliament, and ParliamentaryRecords; but I must beg your Pardon, if I cannot allow Communitas to signify the Commons at this Time in your Sense and therefore am not yet convinced that the Words la Communalty de la terre, mentioned in the Statute ofWestminster I. ought to be understood or englished by the Word Commons; who, 1 do not suppose were then above once called to Parliament, till the 18th of this King.

But as for what you argue from the Knights of Shires being often called Mag- B. A. J. nates, zxAGrantz desCountees, I allow they are often so stiled in our Statutes Page 219. and Rolls of Parliament; but if you consider the Reason of it, this will do yonlittle Service, since they were so called from their being at the beginning of their. Election, chosen out of the Greatest and most considerable Tenants in Capite, under the Degree of Barons in each County, and no other •, who were chosen to represent the Omnes a/ios qui ie Rege Tenent in Capite,mentioned in King Johns Charter; or them, and all the other Military Tenants by mean Tenure. For 'tis scarce to be believed, that those Tenants in Capite, who made such a Noise tor B. A. P. their Liberties, would part with this main Point, of being personally present, or P*gt 19- else the Body of them represented by some of their own Number in every County.

And it may be upon this Account they had the Title of Notable Knights, &c in Cap. 15. the Ancient Writs of Summons, directed to the Sheriffs 5 though all the Tenants by Knights Service, as Suitors to the County Courts, were the Electors. And this was very likely the Reason of the Statute of the 7th of Henry IV. that the Election mould be made in the County Court by ail the Suitors; and also why the Statute of the 18th of Henry VI. by which any Man that had 40 s. per Annum of any Tenure, who was before permitted to be an Elector, was altered by the iotl4 chap. 2. of Henry VI. and so explained, that none but Freeholders of 40 s. per Annum, should afterwards be Electors, with respect to the least Part of a Knights Fee, viz. 40 J. per Annum, which were now come into the Hands of very LL. Hen. I. ordinary Men. For anciently, soon after, or near the Conquest, there were very chap.29. few^ or no great Soccagers; that is, such as held great Estates in Soccage; and neither the small ones, nor theNativi, or Copyholders, were reputed Libert, or Legales Homines, (as before-mentioned) or performed the Service proper to such Military Tenants, or those to whom they had alienated part of their Fees. But since I have tired you as well as my self, in wrangling about the Sense and Meaning of the Words in Dispute between us, I shall for the future rake a shorter Cur^ and give you Two or Three- Authorities from our Ancient Laws of William the Conqueror, and Henry II. and Richard I. which together with King John s Magna Charta? will, I think, make it plain enough in Conscience, that the Commons, as now represented, were not summoned to Parliament, during the Reign of King John-, and whether they were so summoned before the 49th of Henry III. (when they were called but once, till above Twenty Years after) will be the other Part of my Task.

F.' I approve of your Method very well, and I assure you I love Pedantick Disputes about the GrammaticalSignification of Words as little as your self, unless where it is absolutely necessary; as indeed you have rendred it so, by raising the greatest Part of your Arguments from the equivocal Use of those general Words, whereby our Ancient Laws and Historians have stiled the Constituent Members of our Great Councils; which if they are well cleared, I think it is high Time to fall upon some more solid Arguments. But before you come to that, I cannot forbear observing that you your self do allow, that in all Acts of Parliament and Records, after the 18th ofEdward I. the Words Communitas, and le Commune, when put after the Earls and Barons, do signify the Commons in the fame Sense in which they are now taken; but I must confess it seems incredible, nay almost impossible to me) that these Words should signify the Community of the Tenants in Capite, in the 48th of HenryIII. or 18th of Edward I. (begin where you please); and yet that the next Parliament after those, the same Words should be taken in quite another Sense, for the Knights of Shires, Citizens and Burgejses; and that no Statute,Record, or Historian of that, or succeeding Ages, should take the least Notice of it.

But before I conclude this Part of the Question, I cannot but rectify a great Mistake you have fallen into, by adhering to the Doctor with too implicit a Faith. For whereas you suppose, that the Reason why our Knights ofShires were called anciently Grants des Countees, was because they were at first elected out of the Tenants inCapite only; and who with the other Tenants by Military Service, were also the only Electors of them at first, till the Statute of the 7th of Henry IV. ordained the Elettionshould be made in the County Court by all the Suitors, as if it had not been many Ages so before. Whereas, it you please to peruse that Statute a little better, you will find it was not made to enlarge the Number of the Electors of Parliament Men; for long before that Time, all Sorts or Degrees of Freeholders, as well Tenants in Capite, as their Tenants by any kind of Tenure; or whether holding of such Tenants in Capite, or else of others, as Abbots and Priors,

and and other Mesne Tenants, did alike owe Suit and Service to the County Court, and consequently were all alike capable of giving their Voices there, at the Election of Knights of Shires, however small their Estates were. Nor was that Statute of Henry IV. now cited (which requires the Election of Knights of Shires to be made by those that were summoned, and all other that were there present) made to confer any new Right upon such Freeholders, but only to prevent the Abuses of Sheriffs, who were wont before that Statute to procure Knights of Shires to be chosen clandestinely, without any due Summons, or Notice given to the Freeholders of the Election; much less doth the Statute of the 8th of Henry VI. confer any new Right or Privilege upon Freeholders of 40 s.per Annum, to give their Voices at such Election, (as you soppose) but only takes awav the Right which the smaller Freeholders of under 40 s. per Annum ( whether Tenants in Capite or not) had before, and restrains it only to such as Jhall have Lands or Tenements to the Value of 40 s. by Tear above aU (barges. And it is yet a much greater Mistake to suppose, as your Doctor doth, that this Statute of the 8th of Henry VI. was at all altered by that of the 10th of this King, which is no more than an Explanation of it, viz. that by 40 J. per Annum, wasmeant 40 J. freehold, and that of Lands lying within the County where the EleUion Jhould be made. So that nothing can prove more expresty, that all Freeholders, as well Tenants in Capite, as by any other Tenure, were all alike capable of Electing, and being Elected by the Ancient Law and Custom of England, long before those Statutes, and consequently were all alike Freeholders in the Eye of the Law.

But if you have nothing at present to object against what I have now said, pray pursue the Method you have undertaken, and let me see those convincing Proofs you so much rely upon, and which you hope may also serve to convert me.

M. Before I undertake this Task, pray permit me to give you my Opinion, in answer to the Difficulty you have now proposed, which I confess seems to carry some Weight with it ■, but those Prejudices will soon vanish, when we consider that the first: Time this Alteration was practised, it was done in the King s Name, though by the absolute Power of Simon Mountfort, in the 49th of Henry III. and after a Discontinuance of above Twenty Years was again renewed by Edward I. at the Desire of the Earls and Barons, as I hope I shall shew you before we have finished our Conversation. And therefore it being first done by the King's absolute Power, and after with the general Consent of the Lords, there needed no Statute to introduce it, any more than there was in the Reign ofWHliam the Conqueror, to give the Bishops and Abbots that held by Knight's Service, Places in Parliamentamong the Temporal Lords, and to bring their Lands which were held before in franc AJmoigne, under the Yoke of Military Service.

But to proceed in the Design I have undertaken; it is necessary that I shew you first of all, who were thosefreemen, or Freeholders, properly so called, upon whom the whole Burden of the subordinate Government of the Kingdom chiefly relied, and who then constituted the Legal University or Community thereof, immediately after the 'Norman Conquest, and during many Kings Reigns after that Time.

I suppose you are not ignorant, that King William the Conqueror having outed. all, or at least the EnglishNobility and Gentry of their Estates, gave them away to his French and Norman Followers, to be held of him and his Succeffors in Capite, either by Knight's Service, or Petit Serjeanty reserving to himself the Ancient . Demesnesof the Crown, and adding more thereunto for the Maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then, after he had thus distributed the Lands of England, as aforesaid, he composed a Body of Laws still extant, and which are in great part Additions to the Ancient Laws of King Edward, and his Predecessors. I shall B. A. A. give you Three or Four of these new Laws, and then I shall leave you to judge, pf&e 254who were the true Freemen, or Freeholders of the whole Kingdom.

The First is the 52c* Law of this King, Tit. De Fide, & obfequio erga Regem. Lamb. Arch. Statuimus etiam utomnes Liberi Homines, federe C Sacramento affirmarent quod fife 170, & intra & extra Regnum Angliœ, {quedolim vocabatur Regnum Britannia) Willielmo dein' Regi Domino suo fideles ejfe volunt. Terras & Honores illiusomni fidelitate firvare cum ev, & contra inimicos C alienigtnas defendere.

R r Now

/

Now whose these Freemen were, that were thus to maintain the King in his Lands and Honours, we (hall fee in the 55 th Law following} Tit. De Uicntelari, feu ieudorum Jure, iff Ingenuorum immunitate; Volumus etiam acfirmiter prscipimus, iff concedmus ut ornnes Liberi Homines totius Monarchic Regni nostri prxdiBi habeant iffteneant terras sum, iff Pojsefjiones sua*, bene i5f in pace, libere ab otnni ExaBione injusta, iff ab omni Tallagio,ita quod nihil ab eh exigatur, vel ca'piatur, nisi servitium suum liberum, quotrde jure nobk facer e de bent, &facere

tenentur ; & prout Statutum est eis iff illis, a nobk datum iff concejfum jure Hereditario imperpetuutn perCommune Concilium totius Regni nostri; whereby you may see, that all the Freemen here mentioned, who were to hold their Lands and Possessions in Peace, and free from all unjust Exaction and Taillage, were only such who were to perform Free Service, (i.e. Knight's Service) which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom. B. A. P. So. that none were properly Freemen, or exempt from Tax orTalliage, but Fag. 17. jfuch as held by Military Tenure, tho' not Knighted.

And pray also, by the way, take notice, that by this Commune ConsiHum Regni you are not to understand a Council of English Men, or of English and Trench together, but one wholly made up of Frenchmen or Rormans,who as well Bishops and Abbots, as Temporal Earls and Barons, held almost all the Lands in the Kingdom by Knight's Service.

Which is also farther made out by the 58th Law lit. de Clientum seuvsffaHorem pr<tstationibus. Statuimus etiam iff firmiter prxcipimus, ut omnes Co/nit es, iff Barones, iff Milites, iff Servientes, iff Vnroerfi Liberi Hominestotius Regni nostri preedifli habeant iff teneant fe semper bene in Armk, iff in Equkut decet, iff oportet iff quodfint semper prompti, iff bene parati ad set vitium suum integrum, nobk exflendum iff paragcndum cum semper opusadfuerit secundum quod nobk debent, de FeodistffTenementk suis de Jure facer e; iff sic ut ilia statuimus, perCommune Confilium totius Regni nostri prxMli iff illk dedimus, iff conceffimus in Feodo, Jure Htreditario, hocprœceptum non ft violatum ulio modo super j or k faUuram nqftrampleni* nam.- So that here all the Freemen of his Kingdom were to perform their Mili

tary Services, with Horse and Arms according to their Fees and Tenures. Therefore they were Tenants in Military Service only (which in those Times were tlie only great Freemen, and that Service the only Free Service) which were meant in this Law; and how different they were from our ordinary Freeholders at this Day (for whom neither of these Laws were made) I dare leave it to the Judgment of every indifferent Person. » These then were the Men, the only legal Men that named and chose Juries, and,

served on Juries themselves, both in the Country and Hundred Courts, and dispatched all Country Business under the Great Officers, as will appear by the next Law with a little Explication by what follows*- Ut Jura Regia ittufafervore pro viribus conentnr fubditi, Statuimus etiam iff firmiter prscipinm ut omnes Liberi Homines totius RegniprtdiBi fint tratres concur ati, ad Monarchiam nostram iff adRegnum nostrum, p'o viribus fuk iff facultatibuscontra inimicos pro possesuo defeniendum, iff virilitcr servandum, Pacem, iff Dignitatem Corom no fine, integrantobservandam, iff ad Judicium reBum, iff Jufiitiam constant er omnibus nwdk pro posse suo fine dob, iff finedilatione faciendum. Now the Judgment they were to give, and the Justice they were to do by this Law (besides that in their own Courts and Jurisdictions) was principally as they were Jurors or Recognitors upon Assize, iffc*(tho' some of the greatest of their Milites were often Sheriffs, Hundredaries, and ether under Judges and Ministerial Officers of Justice in their seveiaL Counties) as may be seen in Glanville every where, but especiallyLib. 2> c. io, 11. lib. 9. £.7. c. 17.6s" lib. 13. throughout. This of being Suitors to the County and Hundred Courts, iffc. being a Service incident to their Tenures-, and before them many Times anciently in the County and Hundred Courts, and not privately in a Chamber, were executed Deeds, Grants and Donations of Lands, contained in very small Pieces of Parchment, witnessed by Tlwnat of such a Town, John of another, Richard of a third, iffc.which were Knights, and Liberi Tcnentes in Military Service in those Towns of considerable Estates, and not the lower Sort of People: And this Execution of Sales and Assurances in open Courts, was as publick and notorious, and as secure, as if at that time there had been a-pub-lick Register for them. 3

F. Before

F. Before I answer your Conclusion from King William's Laws, I must tell you I am not at all satisfied neither with the Account you give, how the Commons of England could come in to be a Part of the Parliament, without any Noise or Notice taken of it, either by our Acts of Parliament, or Historianssince it is not only improbable, but also quite contrary to Matter of Fact, and History it self; as I shall, I hope, make good, when we come to treat of that Subject. Nor is your Argument of any weight, since it doth not follow, that because William the Conqueror so subjected the Lands of Bishops and Abbots to Tenure by Knight's Service •, that therefore this was done by his sole Power, without any Law for it, made by the Common Council of the whole Kingdom. Since I observe in the first Law of King William, which you have now cited, that the very Services which (you fay) were reserved upon the Lands he had bestowed, are said to be so appointed or settled, by the Common Council of the whole Kingdom-, and therefore certainly the Services of the Bishops and Abbots must be so likewise ; and therefore I must confess my self to be of Mr. Seldens Opinion in this Matter, who presumes there was a Law for it, tho' now lost ; and cannot believe that this King (how powerful soever) should attempt to introduce so great a Yoke upon all the Bishops, and so many of the Abbots and Priors of England, without their Consents exprefly given to a Law, and made in the Great Council concerning it, tho' that Law (as many others of this King) is not now to be sound.

But to come to the main Design of your present Dis course, which is to shew that none but Tenants by Military Service in Capite were in the first Times after the Conquest,properly the only true Freemen or Freeholders of the whole Kingdom. I shall shew you first, that the Notion is quite new, and never heard of, till the Dr; (from whom you have borrowed it) first broach'dit ; neither Mr. hambard, Mr. Somner, nor Sir Henry Spelman, nor any of ourEnglish Antiquaries or Lawyers ever discovered any such Thing, before your Dr. arose to disperse these Clouds; every Man of the Kingdom, who was no Villain, being look'd upon as a Freeman, and every Owner of Lands of Inheritance, though of never so small a proportion, reckoned a Freeholder, and his Estate ailed his FrancTenement, or Freehold, as well in our Ancient as Modern Laws* and that Freehold was not restrained only to Military Service, within a Hundred Years after the Conquest, appears by King Johns Magna Chart a * in which it is exprefly recited, that NuUus distringatur ad\ faciendum majus servitium de feodo Militis, nec de alio UberoTenemento qttam inde debetur •, and that Soccage Tenants, tho' by Villain Services, were as much Freemen as your Tenants in Cache, see Spelmaris Glossary, Tit. Socman, where he fays thus; Socmannus in natura hrevium(brevi de Retfo) proprie talk est, qui Liber eft, & tenet de Rege, feu de alio Domino in antiquo domimco terrassuat feu Tenementa in Villenagio. hibro SanSi AJbani Tit. HouBon, Chap. I. Rege Angli* manerium de HouSontenuerunt in dominico ; omnes Tenentes uberi, scil. & cujhtmarii per joham dejendebant tenementa fua, &c. exquo patetsokmans liberos homines figmficare.

But since you seem to make a Distinction between Freemen and Freeholders, properly, or improperly so called •, since King Williams Laws you have now cited, do not warrant any such Distinction; I must beg your Excuse, if I am not of your Opinion •, for the First Law you have quoted Warrants no such Thing; it only says, That allfreemen in general, shall take an Oath of Fealty to the King, to maintain him, his hands and Honours, against hisEnemies and Strangers.

Now it is apparent, that this Law extended to all Freemen (who were by the ancient Saxon Laws recited in the Addition to the Laws of King Edward) to take the very fame Oath in the Folkmote, as they were after your Conquest to do according to this Law, either in the County Courts, or Sheriffs Tourne. Nor will the next Law do the Business any more than this for the Words are, That all Freemen of our said Kingdom may have and holdtheir hands and Possessions free from all unjust Taillage Exactions, ac. Which Word Possessions extends not only to Lands of Inheritance, (much less to Lands held by Knigh'ts Service) but also to Estates for Life, and all other Chattels or Poflessions, as well real as personal: Nor doth the Words Servitium hiberum, extend only to those Services which were reserved upon Lands held by Knight's Service in Capite, but also to those Common Services (called Trinoda necejjttas) which I have formerly mentioned, viz. The building and repairing of Castles and Bridges, and Expedition against, Foreign Enemies, which all the Lands in England were liable to, as well after, as before youi Conquest : Nor will the $%tb Law make more for you •, for tho' it



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only says that all Earls, Barons, Knights, and their Servitors or Esquires, and ail Freemen of the Kingdom shall always be fitted with Horses and Arms as they ought to be, and which they ought to do according to, and by reason of their Fees and Tenures. Now it is plain, that this Law cannot extend to the MsTenants in Capite only, since they, according to your own Sense, are comprehended under the Word Milites, and their Servientes, which seems to mean their feudatory Tenants, are as much tyed by this Law to find Horses and Arms, as the Tenants inCapite themselves. So that whereas the Law lays expresly, Universi Liberi Homines totius Regni, it should have been to make good your Sense, Universi Liberi Homines qui de Rege Tenant in Capite; and as for the other Freemen who were of lesser Estates than to find Horses, they were to be ready with such Arms as befitted their Condition, as we see it explained by the Assize of Arms of Henry II.; so that this Law of King William is not to be taken in the Sense you put upon it* That all the true Freemen of the Kingdom were obliged to be ready with Hotses and Arms, as if none were Freemen that did not •, but referring the Words Horses and Arms to those who are to find both 5 and the Word Arms to those Freemen who were only obliged to keep Arms fit for Footmen, which Sense the Words will very well bear, tho' expressed generally and concisely according to the Mode of those Times, which abhor'd more Words than needs: And if these Laws will not prove what you bring them for, much less will the last you have cited: For if the Word Omnes Liberi Homines totius Monarchic, in the first Law, who were to take an Oath of Fidelity to the King, must extend to all the Freemen of England, (as certainly it did) all Freemen being alike obliged to be sworn in the Court Leet, and County Court-, so must thistoo, the Title being, that Omnes subditi, all the Subjects should endeavour to maintain the King's Rights with all their Power; and tho I grant that Subditi here are the fame with Liberi Homines in the first Law; yet since by thatLaw all Freemen were to take the Oaths of Fidelity to the King,these must be also the very fame Freemen, who were to be sworn Brothers to defend the Kingdom, according to their Power and Estates, So that all that you have laid to prove your Tenants by Knight's Service in Capite, to be the only Freemen that served on Juries, &c. being built upon a false Interpretation of these Laws of King William, are but the mere Fancies and Imaginations of the Author from whom you borrowed them. And you your self, (or rather the Dr. from whom you borrow these Notions,) have sufficiently confuted this Fancy of the Tenants in Capite being the only Freeholders in the Kingdom •, for at the End of that last Speech, you are fain to fall a Peg lower, and giant that all Military Tenants whatever, as well those in Capite as all others that held of them by the like Service, were' included in this Law of your Conquerors, and consequently were capable of the like Privileges, either of serving in Parliament in Person, or else of being elected Knights of the Shire.

But taking the Words Liberi Homines in the largest Sense, and as they are in the Magna Chart a of King sokn,and Hen.]]\. Chap. 14. where it is otdained, that Liber Homo non amerdetur pro parvo deliclo, nisisecundummodum illius deliBi, salvo sibi contenememo suo, tff mercatar codem modo, salva marebaniiza, tJf villanussalvoWanagio ; .Upon which Words Sir Edward Coke in his Second Inst, observes, that Liber Homo is here meant such a one as enjoys a franc Tenement, that is, any Sort of Freehold.

But pray go on to prove by some plainer Authorities, that the Arcbbijhops and Abbots, &c. together with the Eatls, Barons, and other Tenants in Capite, were the only Council of the Kingdom for the assessing of Taxes, and making Laws in the Times immediately succeeding the Reign of King William the First. M. I shall perform your Desires, and will begin with the great Council or B A R Parliament held at Qarendon, of which Matt. Paris tells us,AnnoDom. 1164. 10th Page\i. of King Hen. II. In presentia Regis Henrici apud Clarendon 8 Cdlend. Feb. &c. deFol. 100. n.2o. mandato ipjius Regis,presentibus etiam Arcbiepisccpw,Episcopu,Abbatibus,Pricribust Comitibus,Baronibus, & Proceribus Rcgni, pSa est Recognitio ; and which Quadrilogus and Gervase of Canterbury,comptise under the general Terms of Prasules, f*f Proceres Regni; tfie Bishops and Great Men of the Kingdom. Lib. 1. c. 26. What can be more clear by this Enumeration of the Constituent Parts of this x.Script. coll. full parliament (as Mr. Selden and other Authors agree it 10 be) than that the Com138$. n. 60. m0ns were then none of them, and.that the Clerus and Populus in Hoveden, '11 4* were only the Clergy and Lay-Kobility.

So likewise when these Constitutions were again renewed by this King at Northampton, the lame-Author tells us, (tho' by a Mistake it is'written Nottingham) That Rex ?ater ibi celebravit Magnum Concilium de Statist isRegni, iff coram Rege HnedFtliofuo, Us coram Archiepiscopis, Epifcopis, Comitibus & Baronibus Regni sm j** 5P" which Council is more particularly recited by BcnediBus Abbot in his Manuscript History (now in the CottonianLibrary) Anno 1176. (which was the 25th Hen. II.) Circa Festum Conversions SanBi Pauli, venit Dominus Rexusque Northampton, & Magnum ibi celebravit Concilium de Statutis Regni sui coram Episco- S"b Efk'ie sis, i!fComitibus, & Baronibus Terra fuse ; & coram eis per Concilium Regis Hen-"' rici Wn sui, & per ConciliumComitum, & Baronum & Militum, 6? HominumJuorum hanc subscriptam ajfisam fecit, &c.

And Ralph de Diceto, Dean of St. Paufs, (A. D. 1210.) a diligent Searcher into the Histories and Transactions of his own and former Times, doth yet more fully coa&\^'!tv' •declare the Meaning of Abbot BenediS, in the Account he gives of this Great«. 40.' Council, thus; Rex juxta Consilium Filiifui Regis, coram Epifcopis,Comitibus, Baronibus Mi/itibust? aliis Hominibus fuis in hoc confentientibus, &c. Hoc autem faffum est apudNorthamptonam, -jmo Kal. Febr. From all which Authorities we may collect, that this Council at Northampton, as well as that at Clarendon, was a Great or Common Council of the whole Kingdom j to which were summoned of the Laity, only the Earls and Barons of his, (viz. the King'-s) Land, to which is also added, for the better explaining who were understood under these Titles of Baronum, Militum, Hominum suorum; that is, such Tenantsin Capite as he pleased to summon, and were his Men or Military Tenants tho' not Knighted, and who held Lands either of the King, or his Son, to whom the King might affign divers of these Barons and Tenants tn Capite to^ atturn Tenants to him, and to maintain his Court and Kingship; and the King's Comitet, and Barones ter- »' * ruesum, were the Earls and Barons of his Kingdom that held immediately of him, *g' 2°4" or were his immediate Tenants in Capite \ and that Homo suus C homines sui, •doxh always signify the King's, or any other Lord's immediate Tenants by Knight's Service * tor you may consult Spelmans Gloflary, and Du Fresne\ Lexicon, Under these Titles.

But farther, to confirm who were then the Constituent Members of our Great Councils, pray see the Title to the Assize of Forests under King Richard I. which Hovedon recites in these Words; Hec est Affiza Dom. Regts, £7hac sum pr<t- Hmd- Fo!cepta de Forestis Juis in Angsix faBa, per AJjenfitm Vf Consilium Archiepijcoporum, 445' h'n'*0' U Abbatum, Comitum, 67 Baronum, a Militum totius Regni. Where by Militum is to be understood not only those Tenants in Capite that were Knighted, but also all other Tenants in Capite tho' not actually so. And if the Word ever signifies any other Persons, they were not ordinary Freeholders, but Libert Tenentes g Am » in fervitioMilitari, Freeholders by Military Service, as you may find in Pagl /01 the Dr. s Gloflary, Tit. Probi Comines,Milites, 8tc. But pray remember also Pag. 61. what Sir H. Spelman tells us in his Gloflary, Tit. Miles, that theseMilites (when put alone) were properly the Libert Tenentes, or Tenants in Capite; $>ui non a MilitariQngulo,sedaFeodo nomen fumpferunt. So I think that no ingenious Man but will confess that all these Councils were General Councils or Parliaments of the whole Kingdom, consisting of no other Persons than Tenants inCapite.

F. To return an Answer to all your Authorities together, I must now repeat what I often said, that there are no firm Arguments to be drawn from the doubtful Words, and general Expressions of our Ancient Historians * and I doubt not but to shew you, that all the whole Strength of your Reasons consists in this alone.

But since I have already spoken so much of the various Signification of the Word Barones Regis & Regni, I shall omit that, and now proceed to the rest of the Words, which you think make so plain for you; and shall only observe at present, that these Words Barones and Milites, are always stretch'd or contracted, according as the Gentlemen of your Opinion find it best to suit with their Hypothesis.

As for Example. If the Word Barones is put alone, then it must signify none hut Great Barons, and Tenants inCapite if it be joined with Milites, then by Barones must be only meant the Great Barons or Peers; and byMilites, those Tenants in Capite who were not Lords. If any other Words follow Milites, then this '3 Word Word must signify only such Tenants in Capite as were Knighted. So likewise you deal with all other Words, tho1 of never so comprehensive a Signification.

But why may not I with as much Reason affirm, That by Barones mentioned in these Authorities, is to be understood the Barones properly so called; and by the Milites all Military Tenants, if not the Knights of Shires, whether they were Tenants in Capite, or Feudatories to others: For Radulphus de Diceto in Anno 1040. in the Laws of Malcolm the Second, King of Scots, mentions certain Milites, Vavasores, qui tenent de Baronibus terrassuas; and that not only Tenants in Capite, but all others of whomsoever they held, who were able to maintain themselves like Knights, might be then forced to receive Knighthood, appears by two Writs of 24l»and 26th HenryIII. as they are sound in the Close Rolls, under this Title, R,t. clans. forma de Militibus fazendis; and I desire you would read the Writ it self. 14th H. I if. Rex Vicecomiti Northampton, Salutem. Prœcipimus tibi quod per tot amBallivam Ro*'ciMti°& tuam in StWfc bonis ViUis, &similiter in pleno Comitatu tuo clamari facias, quod 36th H.ill. omnes illi de Comitatu tuo qui tenent Feodum Militis integrum, vel etiam minus ps. 1. m. 6. quam Feodumintegrum, dum tamen de Tenement0 Suo tarn Militari quam Socagio 4"J°- poffint sustentari, (!f Milites non funt,Sic ut Tenement a sua deligunt, citra sestum

omnium SanSorum Anno Regni Nojiri 25. Ar ma capiant & fe Milites fieri faciant. Et si quifuerint tales qui citraTerminum ilium fe Milites fieri non fecerint, Omnia Nomina corum Statim a Termino illo, £? quantitatem, &Valorem tenementorum fuorum nobis scire facias Teste Rege, apud Lewes 25 die Julii.

Similiter Scribitur omnibus Vicecomitibus. From whence you may observe, that not only Tenants by Military Service, but also by Socage Tenure were then liable to Knighthood.

And as for, the Words Homines Sui, which you will have only to mean the King's Tenants in Capite, those Words have so equivocal a Significaton, that there is no Argument to be drawn from them •, for they may as well signify all the King's Subjects sworn to him by Fealty and Allegiance, as Tenants by Homage, or Knight's Service only, as Sir H. Spelman in his Glossary observes upon the Word Homoy ikitur de quovUPrdtdiorum Tenente,sivaSocmanno, five Militari: And for this he cites the Book of Ramsey; and if Suus be added to Homo, it doth much alter the Case, as appears by the Words following, in the sime place, Dicitur Prxtcrea de Quovis Minifiro, &Subdito, C fxpe occurit hoc modo in Antiquis Privi/egiis, non Solum Vajfalos, £? Tenent es, fed Famulos, tffSubditos quoflibet Signifkans ; and for this he gives us several Authorities.

So that you fee these Words do not only signify Tenants in Capite, but also any other Subjects, and so might take in the Knights of Shires, with the Citizens and Burgesses likewise, at least the Representatives of such Cities and Burroughs as held of the King in Capite, by your own Sense of these Words.

But I shall however say something of the rest of the Words you insist upon, out of Abbot Beneditt, viz. Baronesterra su£, which means no more, than Regni sui before-mentioned, and then it will signify no more, than that all the Barons of his Kingdom were summon'd to this Assembly. For the Signification of which Word, I can give Mr. Selden's Authority for; who in his First Edition, 2d Parr, hath this reirurkable Passage, speaking of the several kinds of Barons, he fays, "That besides the Barones Regis, there were Barons of Subjects holding, not of" "the King, but by Mesnalty, who made a third Rank of such as were Lords of "• Manors, iffc. Out of this may be understood why, and in what Sense Baronagium "Angl'u, Rex & Baronagium fuum, iff sine Affenfu Baronagii sui,so often occur "in our old Stories, taken as well for the King, and the whole State sometimes, "as for the greater Nobility. But if your Dr. had been pleased to have compared the Authors he quotes with Page 41. others, nay, with the Title to the very Constitutions of Clarendon themselves, as he hath given them, as in his Appendix to his History out of guadrilogus, this ObCtl' '3S15- section would have been needless; for if you consult Gervafe ofCanterbury, he 1 stiles the Parties to this Council Prxfules, and Proceres Anglicani Regni. And as

ioo. f0T j)nltt par;Si pray observe that after the Word Clerw (which there coming immediately after the Bishops, Abbots, and Priors must needs signify the Inferior Clergy,) he expresses the Lay Orders thus ; Cum ComitibusBarombus ac Pi-oceribtts cunBis, where we may observe the Word Proceres here put distinct from Barones,which may very well signify not only the Less Tenants in Capite, but the Knights, Citizens and Burgesses, as I have already proved the Word Proceres does often




signify, both in our Historians and Records but the Quadribgus gives us theTirle' of these Constitutions more exactly in these Words* Fafta est ijhi Relognitio, cor am Arohiepiscopts, Episcoph, Clero, & Conitibus, &Procenbus Regni \ and in the next Line he fays, That those Customs were thus recognized, per Arthiepifcopos,Episcopos, Comites, Barones & per Nobiliores, & Antiquiores Regni; where he likewise distinguishes between the Bishops and Inferior Clergy , and those who.in the first place he calls Proceres Regni, in the next he callsNMidres & Antiquities Regni, by which he might mean the Knights of Shires, Citizens and Burgeflfe, who were called in the Saxon Times Seniores C Sapitentes, as I have already proved: Now if the Inferior Clergy appeared by their Representatives at this Council (sincethey could not then all come thither in Person any more than now,) to imagine that the Commons of England should not be likewise there by their Representatives of their own Order, is to deprive the Commons of that Right, which you cannot but allow to the Inferior Clergy.

To conclude, You your self confess, that your Less Tenants in Capite, sometimes called Barones Minores, were only nominally, and not properly Barons of theKingdom, in the Sense that Word is now taken; and if so, pray give me any satisfactory Reason, why other Commoners as well as they, viz. the Knights of Shires, Citizens and Burgesses, might not then likewise have had Places in our Great Councils or Parliaments.

JVL I see you use your utmost endeavour from the various and equivocal Sense of the Words in Question between us, to prove that the Commons in the Sense they are now taken, might be comprehended under the Words Barones, Milites, & Uominessui, which it is very certain could not be, according to the Constitutioh of the Government at that time. And therefore I shall give you a very plain Answer to your Question, why other Commoners as well as the lesser Tenents in Capite could not be present, or have places in those Great Councils, because it was contrary to the received Custom and Law of the Kingdom at that time, appears by those Clauses of King Johns Charter, which Dr. B. hath made use of with fb good success against Mr. P. and the Author of JamsAngbrum, &c. And therefore I desire you would read them along with me, as they stand here in the Appendix to the Dr.'s Compieat History of England; and as he hath transcribed them from paie an Ancient Manuscript inBennet College, and divided them into Ib many distinct Articles or Chapters, but those we chiefly insist upon are these.

Article 14. Nulium Scutagium vel Auxilium ponam inRegno nostro nisi per Cothtnune Consilium Regni nostri,nisi, ad Corpus nostrum redimendum, iff ad Primagegenitum filtum nostrum Militem faciendum, iff adPrimogenitam fill am nostram seme I Maritandam, C ad hoc non fiet nisi rationabile Auxilium.

15. Simili modo fiat de Auxilits de Quit ate ijmdinensi, iff Civitat Londinensis, habeat otnnes antiquasUbertates iff Uberas Confuetudines fuas, tarn per terras quam per aquas.

16. Pr<eterea Volumus, & concedimus quod ontnes alia Civitates, C Burgi, & Vfflœ, Vt Barones de quinq-,Portibus, iff omnes Portus hdbeant ontnes Ubertates, iff omnes Liberas confuetudines suas C ad habendumCammune Concilium Regni de Auxilits affidendh, aliter quam in tribus cafibus prœdiSis.

17. Et de Scuttigii* ajsidendis submoneri saciemus Archiesiscopos, Episcopos, Abbates, Comites, iff Major esBarones Regni singiUatim per Literar nostras.

18. Et prteterea facientus submoneri ingenerali per Vice Comites, iff Ballruos nostros omnes alios qui in Capitetenent de nobis, ad certum diem scilicet ad terminum quadraginta dierum ad minus, iff ad certum locum, iff inomnibus literii submomttonk causam submonitionit ittiits exponemus.

19. Et sic fa3a submonitione negotium procedat.ad Diem ajfignatum secundum Consilium eorum qui prasentesfuerint, quamvis non omnes submoniti veiterint.

From which Ancient Monument we may draw these Conclusions. . ('. ■

1. That the King exercised a Royal Prerogative before this Charted of Assessing Aids, and Scutages upon all sorts and degrees of Men, without the Assent of the Great or Common Council, (since called the Parliament) from doing which for the Future, the King by this Charter tied up his own Hand, unless in the Three Gales here particularly reserved.

2. That there is no mention of any other Members to be summoned to this Council, but the Archbishops, Bishops, Abbots, Earls, and Greater Barons by particular Writs, and all the other Lesser Tenents in Capite by one general Summons

by

by the Sheriff. So that it is apparent, that the Great Councils before this time J.E.M.G. only consisted of such EarlSj Great Barons and Tenents inCapite, as the King hv p. 2ii. special Writ was pleased to summon •, and this new way brought in a greater Number of the Tenants in Capite than ever had appeared before •, lo that if it should be true, which you assert, that this Charter was no new Grant to the People of England, but a Confirmation of their Ancient Rights and Liberties, it must then ne* ceflarily follow, that Great Lords andTenants in Ctpite, called sometimes Barones Minores, were then the only Representatives of the Commons. And that the Inferior Tenant's Consent was included in the Assent of his immeB. A. P. diate Superior Lord, whose Presence was required in those Great Councils or Parliaments, need not, I think, be doubted and I can give you, if need be, several Authorities to prove it. But pray observe further, that here is no mention at all in this Charter of any Citizens or Burgesses to be summoned to the Great Council, unless you will have them included under the general Title of all others who bold in Capite, and then none but such Cities and Towns who held in Capite could pretend to send any Members; much less is there any mention of any Knights to be chosen for Counties, which certainly would have been particularly provided for by this Charter, had they then had any place in this Assembly. 'So that I think it is very plain, that the Commons were not otherwise represented than by these Tenants in Capitefor the rest of King John's, and most part of King Henry Bid's Reign, for ought I can yet discern: For though this Charter was confirmed in the Second and Ninth Year of that King last mentioned, per Commune Confilium totiusRegni; yet there is likewise no mention made of any Knights and Citizens, or Burgesses. E Before I answer this main Argument of yours, (which I freely grant carrieth • the greatest shew of probability of any you have yet brought) give me leave to take notice, that I think you are very much out in your first Conclusion, That before this Charter, the King exercised a Royal Prerogative of imposing Taxes without the Assent of Parliament; for if you mean that this Exaction was exercised de fatio, and from thence you would make it a Prerogative of the Crown, I grant this was true, not only before, but after this Charter, before the Statute de TaUagio nonconcedendo was made \ but rf you mean de Jure, I affirm that our Kings were as much tied up by the 55th Law of William the First, (which you have already cited) from Levying any unjust Taxes, or ExaBions, fine CommuniConsilio totius Regni, as they could be afterwards by any other subsequent Law that could be made.

But I shall proceed to answer the Authority you have now brought from this Clause in King John s Charter to prove, That none but Tenants in Capite had any place in our great Councils, or Parliaments. But tho51 confess the Charters of Henry III. and Confirmations of Edward I. are the fame with this in the most material Parts-, yet there are several Clauses (of which this Clause in question is one) which are in King Johns Charter, and yet are totally omitted out of both those of Henry III. as I lhall shew you hereafter. So that let the Sense of this Place be , what it will, I defie you to shew me any great Council of the Kingdom, that

was ever summoned according to this Imaginary Model of yours and that I do not speak without Book, that Parliament or Council of 9. Henry III. held but 11 Years after King Johns Charter was confirmed Mat. Paris (as I have already observed) tells us, it consisted of Clerus, i$ Populus cum Magnaiibus Regionis.

But give me leave to read this Clause, according as your Dr. himself hath. Printed and Transcribed it, and as your self have now read it; and I doubt not} but it will appear plain enough, that the Clause you insist on in this Charter, doth not at all concern the great general Council of the Kingdom •, and for the proof of this, I desire you only to observe, that by the 15 th and 16th Clauses of this Charter you have now read, both the City of London,and all other Cites, Burroughs^ and Towns, had a Right to make a part of the common Council of the Kingdom for the Assessment of Aids, (otherwise than in the Three Cases there excepted.) For proof of this, pray take your Dr.'s Paraphrase to this Clause along with you in his Appendix to his compleat History of England, viz. That they, viz. the CiPag. 131. E. tizens, Burgesses, and Cinque Ports shall fend thoir Representatives orCommissioners to the Common Council of the Kingdom, for the A ssessment of Aids : So that according to his Concession, there must have been Citizens and Burgesses in the great ■ « • '' • «' Council


{313}


Council, in the Reign of King John; and if so, I« desire you to tell me whether those Gentlemen were Commoners or not?

But I will not infill too much upon his Concessions: Since, perhaps he may fay he did not make that Paraphrase upon Magna Charta, but that it was given him by a Friend ^ but I think it is very plain from the Words themselves, which point out a Distinction between the Common Council of the whole Kingdom, mentioned in the first Clause, which was to meet to Grant or Assess Aids or Subsidies 5 and that other Council or Assembly, consisting of all the Tenants in Capite, which by the 17th and 18th Clauses of that Charter, were to meet to assessEjcuage, and to do such other Business as was expressed in their Summons. So that nothing seems plainer to me, than that this Assembly mentioned in this Charter, for assessing Efcu3ge, was a distinct Council from the great Council of the Kingdonr^ which was appointed for the granting of other Taxes, called Auxilia, and for the making of Laws.

M. I confess this Gloss of yours, seems at first fight very plausible, and agreeable enough to the way of Reading and Pointing wish which ;the Dr. himself published this Charter; but for all that,-1 much doubt whether you are in the right, or not i therefore pray give me leave to put off this Debate till our next Meeting, since it now grows late-; and in the mean while I will take time to consider the Arguments and Authorities you have now made use of.

E Pray take your own time, but do not defer it above a day or two •, for I have a great mind to have this Question difpatch'd off our hands: I am your Servant.

M. Good Night, Sir.

Add, in Page 284. 1. 12. as follows.

But that the House of Commons were anciently often comprehended under the stile of Grantz (which is the lame with Magnates in Latin) pray consult the Parliament Rolls of Edward III. where you will find the of that King, this Pas- N. sage ; Us estajfentu, & accorde per noflre £? Seigneur le Roy, & toifs les Grantz in pleynParliament-, (that is, in full Parliament, where both Lords and Commons were present J that the Proceedings of the Lords against those that were no Peers should not be drawn into Example, &d. Now pray see the Commentaries of the most Learned and Reverend Author of the Grand Question, upon these Words in Pi ,,, this Record 'This hath all the Formality of an Act of Parliament, and therefore

* all the Estates were present: So likewise in the fame Year, in the next Roll but

'one-, Accorde est per nostre Seigneur le Roy, Us fonCounfeil inPlein Parliament j N>>8 'which was an Act of Parliament concerning those that had followed the Earl of

* Lancaster. So in the 5th of this King, we have the particular mention of the N. io.

* Bishops, as some of those who make a full Parliament; Accorde est per noflre

* Seigneur le Roy, Prelates, Counts, Barons, autres Grands de Roialme in pleyn

* Parliament. So in the 6th of Edward III. the Archbishop of Canterbury made N. 5.

* his Oration in pleyn Parliament, which is thus explained, en le presence nostre

* Seigneur le Roy, & tons les Prelats, £jf autres Grantz. And in another Roll, Ji

* est accorde iff affentu per tons in pleyn Parliament ; and who these were, we are N. 9.

* told in the fame Roll j viz. les Prelats, Counts, Barons, & tous les autres Sum

* mons a. mesme Parliament.

Now this is the clearest Explication of these Words in full Parliament, viz. in the presence of all those who were Summon'd \ so that if the Commons were then Summon'd to this Parliament, (as certainly they were) they must have given their Assents under the Title of Grantz; since the Prelates,Earls, and Barons were particularly mentioned before.



Bibliotheca Politica.
DIALOGUE VII.

Whether the Commons of England, represented by Knights, Citizens3 and Burgejfes in Parliament, were one of the Three Estates in Parliament, before the 49th of Henry HI. or 18th of Edw. I.

Part II.

F. ~XT OU are welcome, Sir, but I did not expect to lee you again lb X loon. •

M. I beg your pardon is I come unseasonably * but the truth is, I have so great a desire to conclude what we began upon, that important Subject we last discoursed of, that I could not be at ease till I had done my endeavour to give you Satisfaction therein, if it be possible.

But to come to the matter that we now meet about .• I must now tell you again, that tho' I confess this Gloss of yours upon King John's Charter, seems plausible at first fight, nay, is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter j yet upon better Consideration, I can see no good reason for making a full, or at least a half stop in the 16th Article, after these Words, ornnes liberat confuetudines fuas \adding the rest that follows, C ad habendum Commune Concilium, iffc. to the following Clause, & dc feutagmajfidendisy &c. much less for supposing as you do, without any ground, that there were two forts of Common Councils, one for astessing Eseuage, and the other for granting all other Aids and Taxes. And then, if read otherwise, it will plainly appear that it was one and the fame Council of the Kingdom that did then both grant Aids to the Crown, and assess Eseuage rat 'tone tenurxs which I am the more inclined to believe from the Fourteenth Clause here cited, which lays, That noScutage or Aids shall be imposed, unlels by the Common Council of the Kingdom. Now to what purpose is this lo express'd, if there was to be one Council for the granting of Aids, and another for the assessing of Eseuage: So that if this Common Council of the Tenants in Capire might grant Aids, and assess Eseuage upon the Subjects ( unlels in the Case before excepted ) I see no reason why they should not be the only Council, for the giving their. Assent to Laws also; and consequendy of concluding not only their own Tenants, but the King's Tenants in Petty Sergeanty and Soccage, nay, the Tenants of any other Persons whatsoever.

And thoguh I have seriously considered Mr. P's Appendix to the Rights of the Commons asserted, and Dr. £'s Answer to it, as also his Animadversions upon Jarii Anglorum, Use. Yet an I not see any colour of an Argument for making any distinction between the King's Curia of his great Lords and Tenants in Qpite, and the Great or Common Council of the Kingdom but that they were then all one




and the feme. It would be tedious to me, as well as you, to run over all the particular Authorities and Examples which have been urged Pro and Con in this Question. But I desire you, or your Friend Mr. P. to shew me that there was any Bishops, Earls, Barons, or other Members of Parliament in the Times we now treat of, that had any Place, or Vote therein, but according to their Tenure, and the ancient Custom of all Feudal Tenants, who by theGerman, Gothic, and Lombard Feudal Laws (which in substance were the lame with outs) were always summoned to the Court of the King their Supreme Lord.

But farther, to prove that this Council for Assessing Escuage, was no other than the great Council of Parliament of those Tenants in Capite, appears from Littletons Tenures, where in his Second Book, Sect. 97. he tells us, Thatafter an Expedition Royal into Scotland, Escuage shall be Assessed in Parliament upon all those mho failed to dotheir Service in that Expedition. So that if the Parliament did then Alfess Escuage, I desire to know why they might not do it in the Reign of King John, if this great Council of the Archbishops, Bishops, great Lords and Tenants in Capite, were the Common Council of the whole Kingdom in those Times? Yet that E.cuage was not always Assessed in Parliament after this Charter ofKing John, but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament, the R. A.P. Dr. hath given you above a dozen Examples in the Reigns of Henry III. and flgfny. King John.

Thus it was for Aids and Scutage Service; but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation, then the Tenants in Capite were not only the sole Grantors, but the Collectors of that Scutage too, from their Mesne Tenants : And the Writs to the Sheriff were different it. p.m. from those in Scutage Service, though the fame in Substance as likewise appears by those Records the Dr. hath there given us.

F. I doubt not but 1 shall make good my Assertion, and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter. In the first place, I must stick to that way of reading and pointing of this Clause in dis- <  pute, since it is not only agreeable to the Dr's Manuscript Copy, but also to the old FrenchCopy, published by Father D'Arcby in his Spicilegium, Vol. 13. which is written in the Trench of that Time: But to answer your Objection against this Interpretation, you your self have in great part helped me to do it, by that true Distinction you have now made between a Scutage as an Aid or Tax, and as a Service \ the latter of which you assert might be granted to the King, to be raised by his Tenants in Capite upon their Under-Tenants; whereas the former was only grantable in Parliament by the Common Council of the whole Nation. Which Tax, I affirm, was always granted to the King, and imposed by the Common Council of the Kingdom only, and not by the Tenants in Capite alone, before the Expedition was undertaken. Whereas Scutage Service (considered as a Payment of so much Money) was never due or payable, till the Expedition was ended; and then only upon such as had failed to serve in Person, or by sufficient Deputies; and was then to be assessed by the Tenants in Capitealone.

And though I grant it may seem to have been a Prerogative as you call it, exercised by some of our Kings, sometimes to grant his Tenants in Capite, a License to take Scutage of their Tenants, without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law, and the express Grant of this Charter it self; as is that Writ of King John to the Sheriff pjl's' of Gloceftershire, for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber, Earl of Winchester, for making his Eldest Son a Knight, and which the sajd Earl might have claimed of his Tenants by the Common Law, as also by the 20th Article of that Charter. But for a Scutage Tax Littleton tells us, Lib. 2. Sect. 101. Thatbecause such Tenements came at first, from the Lords, it is Reason they should have Escuage os their Tenants;and the Lords in such case might d istrain for the Escuage so Assessed by Parliament; or in some Cases they mayhave the Yangs Writ direSed to the Sheriffs of the fame County, 8cc. to Levy such Efcuages for them, as appearsby the Register.

But if either King John, or King Henry III. granted Writs to levy Escuage upon the Under-Tenants of the great Lords, and Tenants in Capite, without their own Consent in Parliament, this ought to be no more cited as a Precedent, rhan any other illegal Acts committed by those Kings; since, as our Records and Histories

S s 2 tell

tell us, it was such illegal Proceedings which were the Cause of the Barons Wars. And it is expresly against the Words of this Charter of King John, which you have now quoted, viz. null urn Scutagium vel Auxilium ponam inRegno nostro, nisi per Commune Confilium Regni nostri.

So that notwithstanding all you have yet said, it doth not appear to me, how Scutage, when givsn as a Ta* upon Knights Fees alone, and to be levyed not only from the Tenants in Capite themselves, but their Under-Tenants 5 as also from the Tenants of them, who though they held in Capite, yet held not by Knights Service; such as were the Tenants in Petty Serjeanty, and those who held of the King in Chief as of several Honours, and not of his Crown as in Capite, could ever 'charge fhch Tenants without their Consents given either by themselves, or their lawful Representatives; much less could your Tenants in Capite In. or Charge .iwth as did not hold in Capitethemselves, viz. thole Abbots and Priors who held Lands in Right of their Monasteries in Franc Almoigne, and who, together with their Under-Tenants made about Two third Parts of all the Abby-Lands in England; or could Tax those, who not holding by Knights Service at all, but by Tenure in Soccage, or Fee Farm, did not hold their Lands as Knights Fees, and therefore could never be taxed by your Tenants in Capite for so many Knights Fees, or Parts thereof And Bratfon (who lived at this very Time) had distinguished to no purpose between thole Common Services which all Tenants owe their Lords, and the g nb a general Taxes or Charges imposed by the Common Consent of the whole Kingc '. i6. p. 37! dom. The Words are very remarkable, pray read them. SumquxdamCommunes prestationes qus Jervitia non dicuntur, nec de conjuetudine veniunt nisi cum neceffi* i. *. whenttu imervenerit, vel cum * Rex venerit, sicut sum Hidagia, Corragia, Carvagia, & the King asia p/ura je necessitateOf ex consensu Communi totius Rcgni imroduBa qux ad DoKament° PJr" minum feod' non pertinent. And therefore I cannot see any Reason why the great Lords, and Tenants in Capite, should have ever Power to lay a general Tax upon the whole Kingdom, not the Tenth Part of which did then hold of them by Knights Service. So that nothing seems plainer to me, than that there was (as p R c our Ancient Historians tell us) a distinct Court, which was held anciently three Page iti. Times every Year, viz. at Easter, Whitsuntide, and Christmas; and then the King was attended by all the Bishops, great Lords, and other Tenants in Capite, and this was called Curia, or ConfiliumRegis; and if any Difference* of Right did arise between the King and his Tenants, or between Tenant and Tenant, here it was to be heard and determined; and many other Things were there acted and done, in relation to the Kings Barons, or Tenants in Capite only.

But under Favour, this was not the Commune Confilium totius Regni, or Parliament (as we now call it j) for the King held this Court ex More, or by Custom, without any particular Summons, as Simon of Durham, andFlorence of Worcester, and divers other Writers of the Lives of Out first Norman Kings, do shew us. But when they take notice of the meeting of theCommune Confilium totius Regni, their Fj£'<s"■ Expressions alter, and then they fay, that, Rex ascivit, as it is in OrdericusVttalis,

Exprtcepto Regis convener unt: or as Eadmerus Rex SanBionesua adunavit.

And Matt. WcJIm.oi latter Times takes notice of this Union, or Meeting of this Curia, at Assembly of Tenants inCapite, together with the Great Council or Parliament, in his History of Hen. III. Where relating how the King again confirmed the great Charter in a Parliament, Anno Domini 1252. being the 37<h of his Reign, he hath these Words, In quindena Rajche (adunato magno Rarliamento, &c.) So that it seems plain to me, that by this uniting of the great or whole Parliament, must be understood the Conjunction of both Councils together; and therefore, when this Council of Tenants in Capite, that thus met ex More took upon them to assess Escuage, and transact other Matters of Consequence, without the Consent of the major Part of the Tenants in Capite, who often failed to appear at these Courts, or Assemblies held ex More, it was then and not before, expreily provided by this Charter of King John, that Escuage should not be assessed for the future, without Summons, or Notice given of it to all the Tenants in Capite, who had Right to be there.

M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite,distinct from the Parliament, and which met ex More, and that these were the Persons, who were by this Charter to assemble for the assessing of Escuage-, which is a meer precarious Hypothesis •, nor can you, or those, from whom you borrow this Notion, make it out from any good Authority' for 1 have'already proved, that the BaronesRegis & Regni, were the lame Persons; and that usually the Barons or Tenants in.Capite of what Quality soever, did B- P. repair to the King's Court at Christmas, Easter, and Whitsunday, doth appear to Fa£e have been the Custom of those Times, from the Testimonies of our ancient Historians, and which you your self also alledge.

But to prove by Examples out of the Authors you have made use of, that the Bishops, great Barons, andTenants in Capite, were then alone the great Council of the Kingdom, pray read Eadmerus speaking thus-,Celebratum est Concilium in FoL67- » Ecclesia Beati Petri in occidentali parte juxta Londinum sita, CommuniCanfenfu Episcoporum, Abbatum, & Principium totius Regni, & huic Conventui affuerunt Primates Regniutriusque ordmk. And at this Meeting were present, the Prime Men of the whole Kingdom of both Orders: In this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom; yet, these were all the Kings Barons, they all held of him inCapite, as did all the Chief Men of the Kingdom. So likewise in another Meeting under this King Hen. I. when Archbishop Anselm was to give his Answer to the King, according to the Advice of the Bishops , and chief Men of the Kingdom, the fame Author tells us of Anselm, that at Easter, adCuriam venit, Communis Concilii vocem accipit, &c- Now p0i 6 pray tell me what Common Council this was, of the Bishops and Chief Men '9' of the Kingdom, that Anselm referred himself to? Was it not ex More, by Custom? You cannot find in Eadmer any Summons to it, neither Rex ascivit, nor pr<ecepto Regis convenerunt, nor Rexsanilione sua adunavit. In short, not to multiply Examples, look where you will in Eadmerus, or any other of the ancient Historians you have cited j and you will still find, that the Persons who met ex More, and without any Summons, were the fame who assembled by the King's Summons at other Times, that is, the Principes, andEpiscopi Regni or Terra, called more generally, Primates utriusque crdinis, or the Barones, or Majores Regni,who did at these great Feasts pro more, go to Court, and there hold a solemn Curia, or great Council; and that these made up the University, or whole Body of the Kingdom ; pray see what Mat. Paris says of such an Assembly. In die Fo1-6^- ■■ Pentecostes Dominus Rex Anglorum Londini Pestum tenens magnum, Ofserenijfimum, tune compost d per Regni Universit at em Elegant iEpift old, &c. This was about the Pope's Exactions, as hath been before delivered: And Hen. III. in his Letter to the Pope, calls the fame Persons MagnatesAngli*, which in his Letter to the Cardinals about the fame Matter, he calls Magnates Jiostri, as you may fee in the former Citations of them.

f .But pray give me leave to ask you this Question •, Might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the laid usual Feasts, since it was so much for the Conveniency of the Bishops, great Lords, and Tenants in Capite, (who I grant, were then all Members of the Great Council) to meet all the rest of the Kingdom, or Representatives of the Commons, at the fame Time, though the Writers you have quoted may not mention their being summoned at all? And as for the Writs of Summons, those of much latter Parliaments being lost, how can it be expected we should now prove their being summoned so many Years before?

M. I confess it might be so, that upon extraordinary Business, and when the B . ^ Occasion was great, and the King desired a greater and fuller Appearance, they p^'tl\ might also receive an express Summons at those Times, But then I must desire you to shew me any mention of a Summons to any of these Common Councils, which when called at other Times, are most constantly mentioned in this Author. And I desire to know of you, what you will fay to those Words pro more cs/ntffltf,which is spokenofche most general Councils, when the Community of rhe Kingdom met at the King's Court? You cannot deny, but that the Tenants in Capite, were the .Kings harones,Milites, Magnates, &c. Upon this we will joyn Issue \ and I affirm (without bringing Proofs which are infinite in this Cafe) thjt all the Bishops, Earls, and Barons of England, did hold their Lands, Earldoms, and Baronies of the Crown, or (which is all one) of the King, as of his Person, and that was in Capite.

William the Conqueror, as I said before, divided most of the Lands in England amongst his great Followers, to hold of him •, he made Earls and Barons, such as he pleased: They and their Descendants held upon .the fame Tetms with the first Grantors, which was, to find so many Horse and Arm>, and do such and such Services



{318}

vices •, both Titles and Lands were Forfeitable for Treason or Felony to the King. did Homage for them •, and every Bishop, Earl and Baron of England, was in those Circumstances, and held of the King after this manner.

Other Lands were given to other Persons for meaner Services -, as to his Woodwards, Foresters, Huntsmen,Falconers, Cooks, Chamberlains, Goldsmiths, Bayliffs of Mannors in his own Hands, and many other Officers, which in Doomsday-Book, are called, Terra Thanorum Regis, and sometimes Servientium Regis-, And I doubt not, whatever the Notion of ?etyt Sergeanty now is, but that originally, this holding of Lands was the true Tenure not but presenting the Lord with a Bow and Arrow, a pair of Spurs every Year, &c. might also be called PetytSerjeanty, though not so properly as the other.

F. Not to multiply Words to no purpose, I think your Reply is far from being satisfactory •, for in the first place, it is very unreasonable to demand that we should now shew the express Summons to these Common Councils which were not held de more •, since you know that all ancient Records of that kind are destroy'd and lost; for if we could produce them at this Day, the difference between us and those of your Opinion, would quickly be at an end ; as appears by thole great Councils, which are said expreily, by the Historians I have cited, to have been summoned, and yet no such Writs of Summons are to be found; nor is it any good Argument, that because our ancient Historians mention no distinct Summons 'to the great Councils, when met at the usual Times of the meeting of the Tenants in Capite, that therefore there were none such, since we find they often pass by much more material Matters than this.

And though I grant that the Tenants in Capite were then part of the great Council of the Barones, Mines, &Magnates Regni ; yet does it not follow lor all this, that none but the King's Barons, and Tenants in Capite, were Members of the great Council of the Kingdom •, since there might be in those Times other considerable Freeholders, w(ho (though they held their Lands of the Tenants in Capite, yet) might be there as Knights of Shires, or else appear in Person at those Assemblies as well as the other j and besides, there were others, who, though they did not hold of the King in Capite, but of some great Honour or Castle, or else of some Abbot or Prior yet were Men of very great Estates, and very numerous; all which must otherwise have had their Lands tax'd, and Laws made for them, without the Consent of themselves, or any to represent them. Nor is your Assertion at all true, That William the Conqueror divided most of the Lands in England to be held of him inCapite. For besides those Servants and Officers you last mentioned, near Two thirds of the Lands of the Abbies and Priories in England were not held, as also much other Lands in Kent, and other Countries, per Baroniam, or Knights Service, but in libera Eleemofina only, or Soccage, as I have already prov'd \ and consequently neither they nor their Tenants could, according to your Hypothesis, have any Representatives in Parliament.

And farther, you your self grant, that those Lands you mention, which were given out by your Conqueror, to his Woodwards, Foresters, 8cc. did not capacitate them to appear in Parliament, since their Tenure was only byPetit Serjeanty, and not by Knights Service: Nor could they become the King's Tenants in ancient Demelhe, because such Tenants held wholly by Soccage Tenure; whereas ir appears plainly by Littleton, that Tenants inPetit Serjeanty were subject to Wardship, Marriage, and Relief. So that whoever will but consider, that near half the Lands in England were held by Bishops, Abbots, Priors, &c. and of whom not a Third Part held by Knights Service of the Crown; and will then likewise consider what a vast number of Tenants those Abbots, Priors, Deans and Chapters (who were not Tenants in Capite at all) mutt have had and who either held Estates in Fee, or else for Life under them in Soccage, as well as by Knights Service; as also all the other sorts of Tenures I have already mentioned, which either held of the King as of some Honour or Castle, or else of other Mesne Lords by other Tenures than Knight's Service •, must certainly conclude, that not above one half of the Lands of the whole Kingdom was held either immediately of the King, or else of other Mesne Lords by that Tenure. So that if all these Persons, which were far the greater Number of the Free-holders, in England, should have been thus excluded from having any thing to do in our great Councils; I doubt not but we ihould have found sufficient Clamour in our Histories against so unjust a Constitution; and when the




whole Body of the Kingdom was in Arms against King John at Running-Mead,
they would likewise have inserted a Clause for themselves, if they had not had
their Suffrages there before, either by themselves in their own Persons, or by their
lawful Representatives. And therefore upoft the whole Matter, I durst leave it to
the Consideration of any unprejudiced Man, whether it is not much more probable,
that the Constitution of Knights of Shires, Citizens and Burgesses, appearing in
Parliament, should be much more ancient than the Time you assign •, than that so
small a Body of Men as the Bishops, Lords, and Tenants in Capite, should represent
all the rest of the Freeholders and People of England, who never held of them by
Knights Service at all. Nor have you yet answered the Quotation I have brought
out of BraUon in my last Discourse to the contrary. And whoever will but con-
sult that Author in his Chapter of Tenures, will find, that the Tenants in Capite
. were so far from having a Power of charging all the Mesne Tenants at their Plea-
sure, that in his Chapter de Tenuris, it appears, that a Mefte Tenant in Capite ha-
ving purchased an Estate for a valuable Consideration, was liable to no other Ser-
vices and Conditions, than what his Tenure expressM ; which once performed, the
Lord had no more to lay to him : And if so be he laid any further Burthens upon
him, he might have had a Writ of Acquittal out of the King's Court against him
directed to the Sheriffs; several Forms of which you may see in Glanville, and in
the old Register.

M. We are not to reft upon meer Probabilities •, for some things that now appear to us unreasonable at this Time, might then be very just. For if the Feudatary Tenants of the Bishops, Barons, and other Tenants in Capite,were well enough contented with the Constitution of the Kingdom as it then was •, and that it plainly appears by matter of Fact, that there was but one Common Council for the whole Kingdom $ and that, of the Bishops, Abbots, Great Lords and Less Tenants in Capite only, it is in vain to argue of any Unreasonableness in, or Inconveniencies that might arise from such a Constitution, though perhaps a great part of the Kingdom did not hold in Capite, nor yet by Knight s Service 5 and therefore though the Feudatary Tenants of the Tenants inCapite, were upon the Performance of their Services acquitted of all other Charges j yet this was still tovbe understood only of such ordinary Services as those Tenants were to perform byvirtue of their Tenures, such as was Scutage Service, or the attending upon their Lords when they went out to War along with the King; but did not extend to such Scutages as were granted in Parliament, or as a Tax upon Land by the common Consent of the Nation for then the Tenants in Capite were not only the Grantors, but the Collectors too, of such Scutage Tax, from their Military Tenants; and the Writs to the Sheriffs were different from those for Scutage Service. And for proof of this, I desire you would peruse that Writ which the Doctor quotes of the 19th of Henry III. which is still to be seen in the Close Roll of that Year. Rex Vice Comiti Suffex jalutem. Sciat quod Archie- CL 19. H. pifcopi,Episcopi, Abbates, Pr'tores, Cbmites, Barones, C omnes alii de Regno nostro 8- dorAngli&, qui de nobit tenentin Capite, spontanea voluntate sua, £f sine Confuetudine, concejserunt nobU Ejficax Auxilium ad magna Negotianostra Expedienda, unde provisum eft de Confilio illorum, quod babeamus de feodis Militum 6? Wardis, qua denob Is Tenent in Capite duas Mar cas adpreditlum Auxilium faciendum, & unde providerint reddere nobti unammedietatem ante Eestum santti Micbaelis, Anno Regni 19. C aliam Medietatem ad Pajche, Anno Regni nojiri 20.Ideo tibi precipimus quod * ad Mandatum vcnerabilts Patris R. Cicestren. Episcopi CanceUarii * This Mannostri,sine dilatione Diftringa* omnes Milites C liber os Tenent es, qui de eo Tenent d?te w's noc per Servicium Militare inBaUiva tua, ad reddendum ei de singulk fecdts militum, chancellor i5 Wardis duas Marcas, ad prediBumAuxilium nobis per manum suam Redden- but as a Tcdum in Terminis predi&is. 'nant in Capite.

Sic scribitur pro aim Episcopk, Abbatibus, Prioribus C Magnatibus.

Now I desire you to tell me whether any thing can be more plain, than that this Tax was granted by a Common Council of the Kingdom, according to that Clause of King John's Charter I have now cited: Wherein it is first especially provided, that Jio Aid or Scutage shall be imposed upon the Kingdom, unless by the Common Council thereof; and yet you see by this Writ, that the Archbishops, &c. with the Barons there mentioned, together with the other Tenants in Capite alone, granted an Aid or Scutage Tax of two Mark1 for every Knights Fee which thev held of the King; and that bv vLtue there



of not only those Knights Fees they held in their Hands, but also all those Subfeudatary Tenants called here Freeholders, who held of them by Knight's Service, were likewise charged for every Knight's Fee Ib held , the like Sum of two Marks. Now I ihink nothing can be more plain from this Record, than that ihis was a Common Council of the whole Kingdom, and yet consisted of Tenants in Capite only; and therefore 1 desire you to shew me some better Proofs than you yet have done, that these Tenants in Capite ever made a distinct Council, different from the Common Council of the whole Kingdom.

i7. I grant this seems at first fight to be a good Authority for you; but I doubt not for all that, to prove, that it makes wholly against you ^ and will, together with those other Proofs I shall urge, make out this difference between the two forts of Councils, I have already asserted; and therefore I must tell you, that there is no necessity of understanding the Words de Ccnstlio iUorum { mentioned in this Record) to refer to the Common Council of the whole Kingdom, it not being here said to be granted per Commune Concilium totius Regni; and then there can no more be proved from this Record, than that a Common Council of the Tenants in Capite, took upon themselves an unusual Power, sine confuetudine, as the Writ here mentions, in those Times, to charge not only themselves, but their Under-Tenants also: And that even this was an Encroachment, appears by the Statute, Detallagio non concedendo, made 25th of Edward I. whereby it is expresty forbid that any Talliage or Subsidy should be laid upon the Kingdom sine voluntate & ajsensu Arcbiepiscorum, Episcoporum, Comitum, Baronum,Militum, Burgcnfium, & al'torum libcrcrum bomincm de Regno nostro. Now pray read my Lord Cook\ Reason in his p . 2d Instit. why this Statute was made, 'The 2d Cause (fays he) was, That the 5 4 King the Year before, had taken a Talliage of all Cities and Boroughs, with'out Assent of Parliamenr, whereupon arose a great Murmuring and Discontent 'among the Commons: For pacifying which Discord between the King and 'his Nobles, and for the quieting of the Commons, and for a perpetual and

* constant Law for ever aster, both in this and other-like Cases, this Act was

* made, Uc. being no other ( as the lame Author tells us in the Conclusion

* of his Comment on this Statute,) than a Restitution General to the Subjects, 1 of all their Laws, Liberties, and tree Customs, as freely and wholly as at any

* time before, in better and fuller manner than they used to have the fame. But yet, that this was no general Scutage or Tax upon the whole Kingdom, but upon the Tenants in Capite, and their Tenants by Knight's Service alone, appears by the Writ it felt. So that not only all the Persons I have already mentioned, who being Tenants to Monasteries and Priories, did not hold by Knight's Service, and all Tenants in Petyt Sergeanty, and all Cities and Borroughs, who did not hold in Capite (who it they had not then Representatives in the great Council, were wholly Free from this Tax,) and not only these, but all Tenants in Fee Soccage, whether holding of the King, or of other Mesne Lords, were wholly exempt from this Scutage. So that nothing seems plainer to me, than that this Assembly that gave the King this Tax for themselves and their Tenants, was a Common Council only of Tenantsin Capite, charging themselves and their Tenants only, and not the whole Kingdom •, and that done in a Case of great necessity, fine confuetudine: For if it had included all the rest of the Kingdom, there would certainly have been some mention made, how all the rest of the Kingdom ( which did not hold by Knight's Service) should be Taxed.

And that this was a Council consisting of the Tenants in Capite only, may appear by a Record of the 42d. of this King ; which I pray read. Rex Bar. &c. Quia per Commune Concilium Comitum, Baronum, & aliorumMagnatum nobiscum in inter Commu- Waliia nuper exist entium^provisum est ; ^uod nos, & ipfi qu i fervitiumnobtsfe"s'aJii TM?cb cerunt-> ibidem habeamw Scutagium nostrum, viz. De Scuto 40 Sol. pro Exercitu no~Anna\i%.x.fir0 Wall. Anno Regni 41. Vobis mandamus, quod de omnibus feodis Militum qu&teRw.4. A Scut,nentur de Nobis in Capite, vel de War dis in manu nostra existentibus, (except is Levani. Feod. illorum qui brevianostra babuerunt de Scutag.fuo habendo) levarifac. Siutag.

nostrum. From which Writ it appears, that this was only a Common Council of Tenants in Capite, who had attended on the King, and done their Service in this



Welsh Expedition; and concern'd none else but such Tenants by Knights Service, and their Tenants who had fail'd to do their Service j and is such a Tax as is exprefly reserved by the last Clause of King Johns Charter, which is before cited; whereby Scutage is to be assessed by all the Tenants in Capite.

And that not only the Spiritual and Temporal Barons, and Tenants in Capite did thus meet, and hold distinct Councils or Assemblies for the granting of Scutage but also that the Spiritual Barons, and other Ecclesiastical Tenants in Capite, did also sometimes hold separate Assemblies, appears by the Patent-Roll of the 15th of this King, thus : Cum peteremus a Prelatis Angliœ quod nobis Auxilium fa- Rot. p*t. i$. cerent,pro magna necessitatenostrd de aud eis conftabat -, viz. Epifcopis, Abbatibus, H. 3. N. 3. Abbatisjis, Prioribus & Priorijjis, qui deNobis tenent in Capite, ipfi Nobis liberaliser concejferunt Auxilium tale; viz. De singulis Feodis Militum suorum40 s. de tot Feodit, de quot ipfi tenentur nobis rejpondere, quando nobis faciunt Servitium Militare. Where you see, not only the Bishops and Abbots, but the Abbesses and Prioresses granted a Scutage of 40 s. upon every Knight's Fee, for which they were answerable to the King. And tho11 do not suppose that these Women left: their Nunneries, and appear'd in Person at such Meetings yet they might very well do it by their Oeconomi, or Stewards, as their Lawful Proxies tor Assemblies of that Nature.

But when a General Tax or Aid was granted by the whole Kingdom, the Stile of these Councils runs much otherwise ; as appears by the Close-Roll of the 4th of this King, where it is recited in the Record, that OmnesMagnates iff Fideles R-ot- ciauf. 4. totius Regni nostri, granted de qualibet carucatd duos solidos. Now it hence ap- H' «* 5« pears, that this was a Grant of Caruage; which not being a Scutage-Service, nor yet a Scutage-Tax, was therefore to be granted by the Common Council of the whole Kingdom , assessed not only upon Tenants inCapite, and their Feudatory Tenants, but upon each Plough-Land of the whole Kingdom, must have been granted (as I have already proved out of BraBon, speaking of this Caruage) de Con/enfu Us communi Confilio totiusRegni; for otherwise these Tenants in Capite could never have charged all the other Lands of England which were not held by Military Tenure. And to make it yet plainer by other Records, pray see another of the 16th of this King, in these Words: Rex Vicecomiti Devon. Salutem. Sciatis quod Rot.Qauf.i6. Arcbiepiscopi, Epifcopi, Abb ates, Priores, V? Clcrici terras babentes, qu<e ad Eccle- H.$. M. 2. fias suas non pertinent, Comites, Barones,Milites, Libert Homines, & Villani de Regno nostro, concejferunt nobis in auxilium, quadragesimam partemomnium Mobilium suorum. So that it is plain here who made the Commune Concilium Regni, and gave this Aid of a 40th Part of their Goods ; viz. the Archbishops, Bishops, Abbots, Priors, Inferior Landed Clergymen, the Earls, Barons, Knights, Freemen , &c which was a Subsidy granted upon Goods, or Personal Estates, and not. laid upon Land, and could not be granted by the Tenants in Capite alone. And that it may fully express all the Parties to the Grant, the Record tells us, there were also the Villani, the Inhabitants of the Villages or Borough-Towns. And to let you lee that our Ancsent Manuscript Chronicles of this Age give the fame Sense to the Expressions of this Record, and that in the fame Terms •, pray read this Quotation, which a Friend of mine took out of an Ancient Manuscript, called Cbronica Sltb Effigic Monastery de Hageny, in the Cottonian Library, as ancient as the Times are we are Vefpafiani, B. now treating on. The Words are these : Anno 17. Henrici Regis §>uarti: (Where M2°note that the Year is mistaken for the 16th, but the King is the fame; Henry the Third being often in that Age called the Fourth, in respect to King Henry, Son to Henry the"Second) Idem Rex accepit ab Arcbiepiscop.Episcop. Abbatibus, Prioribus, Clericis terras babentibus, qu£ ad Ecclef. sua non pertinent, C ab Comitibus,Baronibus, Militibus, Liber is Hominibus, & Villanis de Regno Anglia, in Auxilium quadragesimam partemomnium Mobilium suorum. And to let you see that this Author makes a plain Distinction between the Tenants inCapite, and the rest of the Kingdom, pray observe what immediately follows in the fame place -, [ ut~\ (Annoejus oBavo) tu quo communi Affenju, C voluntate Magnatumsuorum, quam aliorum Laicorum totius Regni,quintam decimam Catalorum suorum univerfaliter accepit. Where note, by accepit, is still to be understood he received it, after the Peoples Grant of it, as before in the Record of the 16th; and that by Magnatum suorum, is meant the Great Lords and Tenants in Capite; and by aliorum Laicorum, ( put here as distinct from them) all other Orders or Degrees of Men.

T t Now

Now pray, how could these Taxes upon the Goods of the whole Kingdom have ever been given, but by the General Representatives thereof, (since all could not be there in Person) unless you can (hew me, that Men in those Days held their very Goods and Chatels by Tenure in Capite.

M. I think you and I may so far agree, that this Council I instanced in, confisted of Tenants in Capite only ; and likewise that they imposed Scutage upon no others than their Tenants by Knight-Service; yet doth it not therefore follow, that they were not the Common Council of the whole Kingdom, or might not have Tax'd all others, tho' they were not their immediate Tenants, as well as they did those that were: And therefore I am not convlnc'd, but that these Persons mentioned in the Records you have cited, (which you grant constituted a Common Council of the Kingdom) were no other than the fame Tenants in Capite already mentioned : For as for the fide les, mentioned in the Record of the 4th of He my the Illd. I think the Doctor hath very well proved, both in his Answer to Mr. P. as also in his Gloflary, that they were no other than the King's Tenants in Capite: And for this, pray consider the Authorities he there gives u?. For tho'I agree B.G. p.45. with you, that the WordFideles-doth sometimes signify (generally) all those who fiotoman in are under the Tower or Subjection of theirPrince; yet Hot0man also tells us, verbis Feud, That, fideles interdum fpecialiter dicuntur iidem qui Vajjali: QuiFeudo accepto in Col. 924. D. Yatroni fide, if Clientela funt, vicijsimque fuam ei certi objeqitij nomine Yidcmastrinxerunt. And in this Sense, I suppose, this Word is to be taken in most of our Histories and Records. I (hall therefore give you one, which will sufficiently clear the true Signification not only of the Word Fideles, but ofLibert Homines t^ince WiMam t0°" ^ IS in William Malmsbury, in these Words: WiKelmo f 'iSo fuo, cum vix SonroHenTM 12. Annorum ejfet, omnes Libert Homines, See. cujuscunque Ordinis if Dignitatis, the 1st. /. 50.cujuscunque Domini Fideles, Manibus if Sacramento fe dedere coatli funt. By A.n. 30. which you may see, that by the Words Libert Homines if Fideles, are here meant only the Feudal, or Military Tenants, either ot the King, or of any other Lord. And to ptove it farther by Records, pray see here those that the Doctor hath gi15-jfafom. venus in the fame place. The first is that of the Patent-Rolls of the 15th of Up' King John \ Rex Baronibus, Militibus,if omnibus Yidclibus totius Anglix, Salutes.

They were to hear what the Bishop of Winchester was to fay to them about the B. G, 45. Releasing the Interdict; and that these Militcs and Fideles were only the B. A. p. p.67, King's Tenants in Capite, is clear from the latter Part of this Record : Vnicuique 6S' vestrum, si fieri pot est, Literal nostras super hoc transmiffemus, fedKegotium ma

jori Yefiinatione, ifc. Teste Meipjo apud Rupcl, ifc.

The King had writ to them all particularly, but that the Business required greater Halle. It seems, before the Granting of Magna Charta, this King sent special Summons, and particular Letters to his Barons, and other Tenants in Capite, to meet upon any Occasion. So likewise in these Writs there mentioned to the Tenants inCapite of several Counties, as thev are found in the Close-Roll B.G. /■. 45. there cited: Rex omnibus Comitibus,Baronibus, Militibus, if asm fidelibus suis cl. 42. H. 3. je Qom FJjor. J\orthumbr. Cutnbr. Use. Vobts mandamusquod Prompti sitis, if PaM. 10. derjt. raf- cum ^ Armis, ifc. These were the Feudataries and Tenants in Military Service.

But to speak somewhat of the Clerici Terras habentes, ifc. as also of the Libert Homines if Villani, mentioned in the Records of 16. Henry III. you have now cited : 1. I cannot allow your Version of those Words Clerici TerrashaB. A. .j>,22o, ^enm^ qUit ai Ecclesias suas non pertinent, by inferior Landed Clergy-men, since 'tis more than you can make out-, for I take them to be such Clerks, as had Mannors and Military Fees not beloning to their Benefices, and that were held of the King in Capite, the Fee whereof was in the Crown, and not in the Church, and therefore did not belong to it.

But Mat. Paris, sol. 377, informs us better who they were that gave this Tax,

when he speaks concerning this very Council you mention: Ad Colloquium

cor am Rcge convenerunt Fpifccpi, & altar um Fcclcsiarttm Prtlati, cum Proceribus Regni, cenceffa est Regiquadragesima pars bonorum.

Now what the Libert Hcmines were in this Record ycu have cited, we may easily guess from the other Records I have made use of, in the 15th of Henry III. viz. such of those, Omnes alij qui de J\cbis tenent in Coptic-, which were not Milites in a strict Sense, as not having received the Order ol Knighthccd. And




{323}

I shall make out this Sense of the Words, as also of the true Meaning OfRtt-Pat* m. these Villani, by another Record, dated but Two Years after this of yours, ^ viz. 11 Hen. III. Rex Vic. Cant. Sa/ut. Sciat, cum oBavisSan&i Hillarii, &c. ad maniatum nostrum convenient apud Westm. Archiepifcopi, Epifcopi, Abbates,TrioresjComites Barones totuts Regni noftri ut traBatum haberent nobifcum de statu nostro, C Regni nostri, iidemArcbiepifcopi, Epifcopi, Abbates, Priores & Clerici Terras habentes, qua ad Ecclefias non pertinent, Comites,Barones, Milites & Liberi Homines pro fe Us fuis Villank nobis concejferunt in Auxi/ium Iriceffimam partembonorum.

From this Record we may observe, i. That the King's Writ was only issu-s.^;/. ed to the Archbishops, Bishops,&c. Earls, Barons of the whole Kingdom. ^ 221. 2. That in the Recital of this Tax, the Sheriff is told, first, That the Archbishops, Bishops, &c. and the Clergy which had Land not belonging to their Churches (a certain Sign that they granted by themselves, and out of nothing else but that) and then that the Earls, Barons, Knights and Freemen for themselves and their Villains granted a Thirtieth Part of their Moveables.

And from this Record it is also manifest, these Liberi Homines had Villanos (if not Bondmen) Villagers or Rusticks, Colonos, or Husbandmen at least; of whose Estates by publick Assent, and for the publick Benefit, they might in part dispose •, which Liberi Homines, according to the Tenor of all our Records and Histories, were Tenants in Capite; and that the Villani mentioned in the other Record of 16 Hen. III. to have given a Fortieth Part of their Moveables, did grant by their Lords ; that is, their Lords Paramount, that were Tenants in Capite,did grant for them, tho' they held it not immediately of them, but of other Tenants in Military Service, which immediately held of the Tenants in Capite who did charge them by publick Taxes, hath been shewn from divers Records : So that it was frequent in those Times to fay, Such, and such, concejferunt, granted such a Tax, that is, by those who had Power and Authority to do it for them-, and without their Consent too, when those for whom they granted were not capable of being Members of Parliament themselves. I could give you more Examples of the like Nature, but I will not tire you.

F. I pray, Sir, give me leave to answer this long Speech, and to begin with your Interpretation of this WordYideles. First then, we are so far agreed, that the Word Fide/es had two or three different Significations. First, it signified all the Subjects in general; in the next place, all Vassals, or Feudatory Tenants whatever, whether of the King, or any other Lord, as appears by the Passage you have cited out of WiUiam of Malmsbury, as also divers ancient Charters, particularly those of King William I. and Maud the Empress, and King Stephen, which are divers of them directed, Fidelibus fuis, Francis (!f Anglts, which cannot mean Tenants in Capite, since the Doctor and your self will scarce allow any Englishmen to have then held Lands in Capite of the Crown. Lastly I grant this Word Yideles may sometimes signify the Tenants in Capite of the King ; all which being so, I think you cannot deny, that it is not the bare Word, but the Sense it bears in the Place where it is used, that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4th of Hen. III. could not be the King's Tenants in Capite only, I have given you a sufficient Reason which you do not think fit to answer,viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom, as well what was held by Knight's Service, as what was not; and how your Tenants in Capite could Tax those Lands which were never held by Knight's Service, I desire you would resolve me. » And therefore by the Fideles here mentioned in this and many other Records, are not to be understood the Tenants in Capite only, but all other Subjects who owed Fealty;who, though they could not all appear in Person in our great Councils or Parliaments, yet were there by their Representatives the great Freeholders, Lords of Mannors, or else by the Knights, Citizens and Burgesses.

But I must now make some Remarks upon your Interpretation of the Writs of the 16 th and 21st of Hen. III. wherein you have certainly very much mistaken the Sense of all the main Words. Forjn the first Place, as for the




Qer'ici terras habentes non ad Ecclesias pertinentes, which you' interpret to have been Clerks having Mannorsand Military Fees not belonging to their Benefices, but held of the King in Capite, Jeetns to be altogether forced.For whoever iheaid Lof Clerks (that is, inferior Clergymen) Parsons, or Vicars of Churches, who held Benefices of the King in Capite, and not in Franc Almoigne? Or if they had any such, that therefore those Lands so held should be called Lands not belonging to their Churches •, for at this Rate the Lands of Bishops, all Abbots, Priors, Vfc. which held of the King in Capite, would have been in your Sense, Lands not belonging to the Church 5 but who but you and your Doctor ever gave such an unreasonable Comment on those Words?

Nor will that Passage you cite out of Mat. Park, at all favour your Interpretation •, for either these Bishops and Prelates there mentioned, gave this fortieth Part of their Moveables in Parliament, with the rest of the Kingdom, or else as Clergymen in Convocation: If the former, then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove, that at this Time any Ecclesiastical Person, below the Degree of an Abbot or Prior, had any Place in Parliament, by reason of his Tenure by Knight's Service in Capite, for those Lands he held in Right of his Church ; but if you'll have this Tax to be granted by the whole Clergy in Convocation, then such Clerks as you mention could not be there in Person -. First, because they are said to be such as had Lands',qu<s ad Eccleficu fuas non pertinent, and so could not have any Place there as Clergymen ; nor could they be included under the Prœlati, since that Word takes in none beneath the Degree of a Dean. And therefore if these Clerks gave any Thing in Parliament, they must do it by their lawful Representatives in Convocation, the Clerks of the Lower House then called Procuratores Cleri: So that take it which way you will, those Clerks could not be present themselves at these Parliaments, when those Taxes of the 30th and 40th Pan of their Moveables were given to the King; and

sentatives: But indeed the Words Proceres Regni, which immediately come after Epifcopi & Prdati in Matt.Paris, sufficiently shews this Grant was made in Parliament. That the Word Proceres often includes, not only the Knights of Shires, but Citizens and Burgesses too, I have already proved, when I spoke of the various Significations of that Word. Nor is your Interpretation of Liberi Homines, for Tenants in Capite, who Taxed theirVillani, any other than a meer wresting of these Words-, for if they were only those who gave for themselves and their Villains, whom you suppose were either their Bondmen, or else their Rusticks or Husbandmen, it is absolutely contrary both to Law and Reason for who ever heard that Villains or Bondmen, who had no Property either in Lands or Goods, ever paid Taxes ? And if you suppose that these Villani were only the Rustick Tenants in Soccage by Villain Service of the Tenants in Capite., then it is plain that all the Military or Feudatory Tenants of the Tenants in Capite, and all Tenants in Free Soccage by certain Rent, were exempt from both these Taxes, since they are not so much as once mentioned in these Writs, neither can be comprehended under these Villani, as yt)ur self mutt acknowledge: For if these Villani were meer Rufticks,

Eray tell me what Reason there was to put them Cheek by Jole with their ords, as they are in the Record of the 16th of Hen. III. as if they had given by themselves, as well as the rest of the Freemen of the Kingdom? Or what Reason is there why the Lords (as the Words are in your Record) gave pro fe suit Villanis, if the Liberi Hominesthere mentioned, had not represented them? Which could never have been said with any Sense, had they been only so many Masters over their Villains: Whereas it here appears, every one of these Orders or Degrees of Men here mentioned, had an equal independent Power to give for themselves, and not one for another. Or else this Word may be meant in a larger Sense, as in the Record of the 16th of Hen. III. where they are put in the Nominative Case (as equal to the rest of the Orders of Men there recited) and so could not be Husbandmen, or meer Villagers, but the Inhabitants of Cities and Boroughs. And which Sense Sir Henry Spelman allows in his Glossary ; Villanm est qui in Villa habitat, ut Vrbanus ab Urbe, &c. Villa autcm propria notat ViculumRufticatium, fed ex more Gallici idiomatps traducitur

therefore either as Laymen or Clerj




ad insignia oppida, & ad ipsat Urbes ; but take it in what Sense you please, it is plain it could never here mean meer Villagers •, nor could all your Libert Homines be only Tenantsin Capite-, for then the Record would have concluded thus, C Liberi Homines, qui de nobktenent in Capite, as it is in the Records you have cited of the 10th of Hen. III. to the Sheriff of Sussex, and may be found in many other Records, which respect only Tenants in Capite. And for further Proof of this Sense of the Word ViUanus, we need go no farther than these very Records themselves, of the 16th and 21st of Hen. III. which you and I have now made use of; in both which Writs there are certain Persons appointed to assess and collect the Aids in every County, and who, by virtue of these Writs, did cause to be elected Four of the best and most lawful Men, de fingulis Villis of each Hundred in the Counties there mentioned i and then the VtUani will signify in these Writs, not Villains or meer Rusticks who were not then reckoned inter Legates homines. And though'tis true you have brought some Presidents to prove, that the Tenants in Capite gave Taxes for their feudatory Tenants yet that was only where the Tax was raised upon Knight's Fees alone, and not upon all the Lands of the Kingdom in general, much less upon Goods and Chattels. So tha,t either the Liberi Hominesmentioned in these Records, must mean all the Freemen of England, who by their Representatives gave these Taxes of a 40th or 30th Part for themselves, and all such of their Tenants, who held Estates of Copyhold Leases, for Years, or at Will, or had Estates in Stock, Money, or other Chattels; for otherwise the Taxes could never have been general, nor charged upon moveable Goods of the whole Kingdom.

I have but one thing more to remark upon your Observations of this Writ, which is, that whereas you take notice that the King's Summons was directed to none of the Laity, but the Earls and Barons of the Kingdom •, and if so, I desire you to prove to me, that your less Tenants in Capite were at all present at those Parliaments •, for you have already granted that they were no Barons, and consequently could not be included under that Title; so that if these Liberi Homines who granted this Tax for themselves and their Tenants, were not only Tenants inCapite, but their Under-Tenants also by Military Service (as the Doctor himself grants in his Answer toAxgumentum Antinormannicum,) p. 25. as also in his Glossary, p. 51. then it will follow by his own Concession, that others besides Tenants in Capite were under the Title of Liberi Homines were Parties to the granting this Tax in Parliament; which is that I contend for. So that unless you can prove that your Liberi Homines were all Tenantsin Capite, you will never make out that none but they had a Right under that Title to appear at our great Councils or Parliaments; and to grant Aids, a*nd joyn in the making of Laws for themselves, and the rest of the Nation, before the Times you allow. To conclude, unless you can also prove that there was a Tenure in Capite of Goods and Chattels, as well as of Lands, it will appear by these Aids granted in Parliament of Personal Estates, that all Freemen or Freeholders were alike Free, and consequently had the fame Right to appear. in Parliament, either by themselves, or their Representatives.

M. But pray make out- if you can, by some more evident Proofs, that any other besides Tenants in Capite, were admitted into our great Councils 5 and that these Liberi Homines were not Tenants in Capite.

F. I think I need go no further than the first Words of the Agreement between King John and the Barons, which is still extant on the Close Rolls of the 17th of this King, (m. 2. dorfo,) beginning thus, Hoc est conventiointer Dominum Johannem Regem Ang/ta ex una parte, & Robertum Yilii Walteri, Marescalli exercitœ Dei, CsanSœ Ecclesi£ Angli<e, C Rich. Comitem de Clare, Use. and here follow the Names of divers of the rest of the Earls and Barons, 6? alios Comites & Barones, & Liberos Homines totim Anglin; so that it is clear this Charter was granted in a great Council of the whole Nation, in which were assembled, not only the Bishops, Earls and Barons, with all your less Tenants in Capite, but also all the Clergy, as well the Inferior as Superior, and all the Freemen or considerable Freeholders of the whole Kingdom by whatsoever Tenure j ]or,' as Mr. Selden words it in his Titles of Honour, Fol. 586,587. it was made "by the King and his Barons, and all the Freemen of the Kingdom; dom v which Assembly Matt. Paris expresses more succinctly by these Words, tata Kobilitat Angliœ inunum colle&a, quasi sub numero non cadebat; so that nothing can be plainer, than that many other, besides your Tenants in Capite, appeared at this great Council.

M. In the sirst Place, before I answer the main of your Argument, give me leave to tell you, That I cannot allow this Assembly at Running Mead to have been truly a Great Council of the Nation, but rather a Rebellious Armed Rout met together without the King's Writs of Summons, and indeed, whether he would or not; and I suppose you will not assert that any Representatives had Votes therein nor can you shew me that any Knights, Citizens, or Burgesses were summoned to it.

E I grant indeed that that Assembly was not properly a Parliament, I mean such as we have at this Day, as riot being called by the King's Writs; yet since almost all the Bishops, Earls, Barons, Tenants in Capite, and all the rest of the Kingdom were then in Arms •, it may very well be reckon'd a Common Council or Solemn Convention of all the Freemen of the whole Nation, and that after the most ancient Manner; since all, or the greatest part of the Freeholders of the Kingdom were there present in Parliament. And that this Council is look'd upon as a Parliament in the Eye of the Law, appears by a Writ to the Sheriff of 'Northamptonshire, which is found in the Close Rolls in the 28th

a. 28. H. 3. of henry III. to this Effect, That be Jhould not permit any one in his BailiM. 12. dor jo. wick to useany Liberties belonging to the Crown, unless they had formerly

been used, ad Tempus Parliamenti de Rune Mead; quod suit inter Dominum Johannem Regem Patrem nostrum, Sc Barones suos Angliæ.

M. I see that you are forced to confess, that this Assembly was no Parliament in the Sense we now take that Word, nor indeed could be any more than a Rebellious Rout there met, whether the King would or no: And therefore the Word Parliament is not to be understood in this Record in the Sense B.A.P.p.yi. we now ^e it, since that Word came not in Use here (instead of Magnum .Concilium, & Commune Concilium C Colloquium, a Conference ) until about the Middle of Henry Illd's Reign •, and doth no more point out the Constituent Members of it, than that Word did at that Time. And so the meaning of the Word Parliamentum is to be taken in this Record.

F. I think I have a very good Reason, notwithstanding what you have now laid, to affirm, That this was a great Council of Parliament according to the Mode of those Times: And tho' I grant it was not called by the King's Writs, since it is certain he avoided calling any, because he utterly refused to grant this Charter at all; yet that is not material; since they being a general and full Assembly, or Convention of all the Estates of the whole Nation, had a just Right to meet, and vindicate their Liberties then outragiousty opprest, and trodden under Foot by the King. And the King himself owned them as a lawful Assembly, by sending to them, and appointing them to meet in Rune v\d. Matt. Pa- Mead, between Staines and Windsor, on the 15th of June, which our Historians ris- tell us they joyfully obeyed; so that he himself admitted them to be a Lawful

Assembly of Estates, and consequently for his Parliament, as appears by the
Agreement now cited.

B. A. G-p.i$?. M. I shall not much trouble my self, whether tHis was properly the great

Council or not. But however, I cannot fee how Mr. Selden could make out, that this Charter was made by, or to all the Freemen of England: for it seems to me that there was not the least ground for it. For if under the WordsLibert Homines, all the Freemen, or Free-Tenants of what Condition soever, were comprehended; yet here is nothing in this Record that any way proves that they had any Hand in making this Charter •, but the true LiberiHomines here were only those whom the King calls Liberi Homines Koftri in his Charter, and immediately grants them several Relaxations of their rigid Feudal Tenures; by which 'tis apparent, these Liberi Homines, were the Tenants in. Capite, and yet B neither was the Charter made by them, as is before intimated: Tho' I con

'• feft these were the Freemen which made such a Cry for their Liberties (most of which were but an Abatement of the Rigor, and a Relaxation of the Feudal Tenures, as appears by the Charter it self) the rest were only Followers, and helped to augment the Noise they were no Law-makers as you imagine •, For >tis not probable, that those Men that had the Forte of the Nation in their Hands, would permit Men of so small Reputation to share with them in Lawmaking. Those that had the Power of this and other Nations de FaBo, always did give Laws and Tax the People.

E Supposing this, (as I have already proved it,) to be a Lawful Common Council, or Parliament of the whole Kingdom, I think I may still affirm that this Charter was made, not only by the King, but by the Bishops, Earls, Barons, and • all the Freemen of the Kingdom, who certainly gave their Alfent to it, by drawing it up into Form, and by accepting it from the King when pass'd under his Seal, as truly as the Magna Charta's of King Henry III. and Edvo. I. are called Statutes, for the fame Reason as I have already proved to you'; or as much as the Petition of Right granted by King Charles I. was a Statute; tho' past under no other Form*

Nor were the Libert Homines totius Regni, to whom King John granted this Charter, no other than the Tenants inCapite, as you suppose, since in the Time os Henry II. this King's Father, the Word Liber Homo was taken in a much larger Sense, as appears by the Assize of Arms ordained by this King (as it is recited in Hovendens History) where after it is appointed, what Corselets; Helmets, and other Arms every Tenant in Capite•■ should find., it immediately follows thus: Quicunque liber Laicus habuerit in Castillo vel in redditu ad Valentiam 16 Marcarumhabeas Loricam, C Cajfidem, Clypeum, & Lanceam; §>uicunque Liber Laicits habuerit in Catallo [ad Valentiam10 Marcarum habeas Harbergellum, & Cape/et Ferri, & Lanceam: Et omnes Burgcnses, & tota Communialiberorum hominum habeant Wambak, & Cape/et ferri Lanceam: Where you may observe, that every Freeman who was worth in Rent or Goods to the Value of 16 Marks, was to find as much Arms for the Defence of the Kingdom, as he that possessed a whole Knight's Fee •, and the meanest Townsman, and the whole Commonalty of Freemen (for sol tranflate the Words, Communia Liberorum hominum) were to find a Caplet or Head-piece of Iron, besides other Weapons. And the 2d Article of King Johns Charter fays exprefly, Concejjimus etiam &omnibus LiberU Hominibus h'ostris Regni Angliœ, pro Nobk & Haredibus Nojlris in perpetuum omnes Liberatessubfcriptas, habendas & tenendat eis, hxredibus Juis de Nobis & Htredibus Nojlris : Which the Doctor himself renders thus: We have also granted to all our Freemen of the Yingdomof England, ©V. And sure then this Charter could not be made to none but Tenants in Capite, unless you will suppose that none but they were Freemen, and all the rest Slaves.

Nor was this Charter only made to relax the Severity of the Feudal Tenures, as you suppose; since there are divers other Clauses in it which concern all the rest of the Freemen, and Freeholders in England, as well as they. For besides the First and Second Chapters of this Charter, which grants and confirms to the Church of England, and to all the Freemen of the Nation, their Rights and Liberties; if you please better to consider it, you will find that there are several other Chapters in this Charter, by which all other Freemen, as well as the Tenants in Capite,have an Interest in the Liberties there granted, as you may see by the 10, 11, 12, 13, I J, .16, 22., 23, 24,. 25. and above 30 other Chapters or Clauses therein express'd, which are granted, ■ ■ not to Tenants in Capite alone; but either to Ecclesiatticks, or other Lay Freemen of the whole Kingdom. But to prove this a little further, I shall give you but one or two Instances out of this Magna Charta; and that too in the Doctor's ownTranflation: Article48. ' No Freeman shall be taken, or imprisoned, 'or disseised of his Free Tenement, or Liberties, or Free Customs, or Out4 Lawed, or Banished, or any ways Destroy'd, nor will we pass upon him, or 4 commit him to Prison, unless by the Legal Judgment of his Peers, or by the 1 Law of the Land (i.e. by Legal Process.) The other is the 49th Article of

* this Charter, That we will not sell to any Man, we will not deny any Man,

* or delay Right or Justice -. Now judge your self, whether these two Articles were made to the Tenants in Capitealone, or to all Freemen of the whole Kingdom.

And hence it also plainly appears, that the fame Body of Freemen to whom this Charter was made, were likewise present, and gave their Assents to the



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snaking of it: Nor were Vavasors, or Feudatory Tenants of the Bishops, Abbots, Great Lords, and other Tenantsin Capite, Persons so inconsiderable as you would make them, that they only should come hither but as Followers, to augment tie Noise; since I have already proved from BraSon, that there were divers of them Men of great Estates and Power in their Countries •, besides the Tenants of those Abbots and Priors, who (as I have already mentioned) did not hold in Capite of the King at all, and yet made a great Part of the Kingdom besides Tenants in Vetyt Serjeanty, and those that held of great Honours, or Manors, who could never be represented by the Tenants in Capite at all. And therefore I must (notwithstanding what you affirm to the contrary) look upon all these Persons for as good Law-makers, as the greatest Lords or Tenants in Capite of them all •, since the main Force of the Nation did not lye in them, but in their Feudatory Tenants, who would never have followed their Lords in this Assembly, if they had not look'd upon themselves as having as good an Interest in the Rights and Liberties they demanded, (as appears by the like Salvo of all their Liberties) as their Lords themselves; and also as good a Right as they, in giving their Assent to them, when they were to be pass'd into a Law, as they were by this Charter; since these Feudatory Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike Expeditions, but where the King, or his Lieutenants, went out in Person.

M. I am very well satisfied that this could be no Parliament, for the Reasons already given: And tho' I grant that these Charters were made to, and in the Presence of the greatest Part of the Clergy, Earls, Barons, and Freemen of the Kingdom •, yet this proves not that they had any Vote, or Suffrage, in making of them nor indeed could they ; for the'Great Charters were only the Petitions of the People, drawn into the Form of a Charter, and passed under the King's Seal, as his mere voluntary Free Grants and Concessions, without any Votes or Authority from the People. And therefore the Great Charters of Henry III. recites them to have been made of his mereGrace and Tree Will \ as it is in the Preface to it. But pray answer me a few plain Questions, concerning KingJohn's Charter; which if you can resolve, I may be inclined to believe there might be some other Great Council, besides that of Tenants in Capite. The first is, If this Common Council of Tenants in Capite, were for Assessing of Aids and Eseuage only, (as you soppose it is provided by the last Clause of this Charter) why was the Cause of the Meeting to be declared in every Writ of Summons, to the Great Barons, and Tenants in Capite f If they were only summoned about Aids and Eseuage, or other ordinary Business of Course ; sure then the Cause of Summons need not to have been declared as it is here provided ■, in omnibus Liter-is Submonitionis, causam SubmonitionisWins exponemus.

F. I will give you an Answer to this Question immediately; but before I do it, let me tell you that you are much mistaken, in saying, that the Great Charters (because they were the King's Free Concessions) were therefore passed without any Votes, Suffrages, or Authority of the People of England; since I have already proved, in our Discourse concerning the Legislative Power, that the Matter of those Charters was no more than an Affirmative of the Common Law of England, long before your Conquest and that the Peoples Consent and Suffrage was sufficiently given, in their drawing them up, and offering them to the King to be sealed, and accepting them from him when he had done it: And therefore the Great Charters are always called Statutes, in our Ancient Records, and Acts of Parliament. But to answer your Question; I suppose that the King besides the ordinary Business of their Assessing Eseuage, had often other Affairs of Moment to be transacted with, and communicated to his Bishops, Great Lords, and Tenants in Capite, in which the rest of the Kingdom were not at all concerns; such as giving the King their Advice, as a Great Council, concerning divers weighty Affairs, (as in the Business of Ski fy, mentioned in the first Record I have cited) as also about undertaking Foreign Wars against France, Scotland,Wales, 8tc. in which they were bound to follow, and assist him, together with their Under-Tenants, according to their respective Tenures and therefore it was but Reason that they should have timely Notice, that they might give their Advice in it; as also that they might either come, or stay away, according to the Greatness or Urgency of the Occasion and might also give their Uoder-Tenants

i • 4 Notice, Notice, to provide themselves with Horses and Arms, and all Things necessary, in case a War should be agreed on: Which, I think, are sufficient Reasons for thus expressing the Causes of their Meeting in the Writs of Summons. .

M. Admit this were so, (which I lhall yet take further Time to Consider of) pray tell me, in the next place, if all your Inferior Barons, Vavasors, or Lords of Manors, &c. supposing them either to have appeared in Person, or else as chosen for Knights of Shires, who were the Members of the Great Council of the Nation 5 I pray tell me, why there should not have been the same Care taken, that they might be also summoned as well as the Tenants inCapite? Certainly they came not to them by Instinct; nor is it scarce probable that they would leave their Country-Business, to travel from one remote Part of England to another, to these Great Councils, (which seldom continued above three or four Days) if they had not had a Right so to do.

F. I shall answer you in few Words because it was not at all necessary to express that Clause you mention for them all; since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom -, for doing which, it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings : Whereas in this Council of Tenants in Capite, BiA.t>* 68i since there washy this Charter some Alteration in the Manner of their Summoning, so there was also for expressing the Cause of fheir Meeting : For whereas before that (as rhe Doctor himself allows) all the Lesser Tenants in Capite had particular Letters, or Writs of Summons, expressing the Cause of their Meeting; they were for the future to be summoned by General Writs directed to the Sheriffs j and therefore it was but Reason, that these should be a particular Clause reserved for their General Summoning, which there was no need of in those Writs that were issued for the Summoning the rest of the People, or Commons, to the 1 Great Council, or' Parliament j as I doubt not but it would appear, in case we, had those Writs to produce: In which likewise there was anciently often express'd the particular Cause of their Meeting •, as there was, for instance, in those famous Writs to the Lords and Commons of the 49th ot HenryIII. which B.a.p. 137. the Dr. hath given us in his Answer to Mr. P.

M. But I have still a greater Objection behind than either os the former. You cannot deny, but that by the first Clause of King John's Charter, (which I have made use of) all Aids, and Escuages, were to be imposed by the Common Council of the Kingdom : And Littleton himself tells us, in the Second Book of his Tenures, ThatEfcuage is always to be ajfejfed by Parliament, upon those that failed to do their Services, after the Expeditionwas ended.

Now if this had not been a Right Inherent to the Great, or Common Council of the Kingdom, but that the Tenantsin Capite alone assessed it in King John s Time ; how came they to lose that Privilege, and the Great Council of the Kingdom (or Parliament) to get it, if the former had not been the Only Great Council at the first?

F. I hope to give you as satisfactory an Answer to this, as I have to the rest of your Demands. This Alteration might have fallen out two ways j either according to Cambderi% old Manuscript Author, cited in his Introduction to his p"6 t22t Britannia •, the Sum of which is, That when King Henry III. after his great Wars with Sim.Æontford, and the Barons, had ruined many of them he, out of so great a Multitude, (which was before seditious and turbulent) called the best and chiefest of them only by Writ to Parliament; who, after that Time, became Barons by Writ, and not by Tenure, as rhey were before. And as for the Lesser Sort of them, called Bar onesMinores, they might be wholly resolv'd into the Body of the Commons, or ordinary Sort of Freeholders: And the King being fearful of any farther Increase of Power in these Barons and -Tenants in Capite, might no more desire their Company at the usual Feasts of the Year, whither before they used to come ex more and so their Power fell of course to the Council, or Parliament, of which before rhey only made a Part.

Or else it might happen from the Negligence of the Tenants in Capite themselves ; who growing weary of their Attendance, might neglect to come to those Common Councils held of course, because of the great Trouble and Charge of those Journeys j and the King being as willing to dispense with their Presence, this Court was lost by N on-usage j and so the Judicial Part of it remained in

U u . the

the House of Peers, and that of assessing Escuage, and advising and giving Aids in matters of War, fell wholly to the Great Council of the Kingdom; of which these Tenants in Capite, by their being capable of being Elected Knights of Shires, soon became the Principal Members.

But that I may have my turn to ask Questions •, Pray tell me, if your Common Council of Tenants in Capite,were the sole Council of the Kingdom, or Parliament as it is now called, why are there no other Rights or Privileges reserved to this Council, but this of assessing Escuage? Were not the Powers of granting other Taxes (which could not be included under the Word Escuage,) and also of giving their Assent to Laws, things of as great (nay greater) moment than this of assessing Escuage?

M. I (hall give you as short and satisfactory an Answer as I can to your Queries. There was no need of inserting any Clause to this Charter, of reserving or conferring any Power to this Common Council of granting Taxes, and giving their Assent to Laws, because they were things which at that Time they had no reason to complain of; since we do not read that King John (as Arbitraryas he was) ever took upou him to make any new Laws without their Consents j and besides, it was implicitly reserved to them by the last Clause of this Charter, viz. Saving tothe Archbishops, Bishops, &c Earls, Barons, Knights, and all others, &c. the liberties and free Customs whichthey had before. So that there was no need of any other Clause than this, because it had been not only the Custom but the Law of the Kingdom, for the King to lay Taxes and assess Escuage upon the Nation, without the Consent or Assistance of this great Council; which grew now so great a Grievance, that they would not be contented, until the King by this Charter had renounced it.

E I shall not now trouble my self or you, to confute this mistake of yours, That the Kings of England could legally raise Taxes upon all their Subjects without Consent of their great Council, or that they ever exercised such a Prerogative, unless it were in the violent Reigns of the Two Williams; and then if it was ever done, it was only upon their English, and not their Norman Subjects ■, the latter being exempt from it by the very Magna Chartaof King William I. by your own Confession. Nor would they, I believe, have born it ac hiis Hands; but I shall speak more particularly of this another Time. Only pray give me leave to ask you this one Question? If this Charter of King John had been intended as a constant standing Rule or Form, not only for this, but all succeeding Common Councils or Parliaments •, what could be the reason that this Clause you so much insist upon, of Summoning all Bishops, Abbots, Earls, Barons, and all the rest of the Tenants in Capite, should be omitted in the great Charter of Henry III. granted in the 2d Year of his Reign; and but Three Years after the 17th of King John(when these Charters were first granted) as also when it was again confirmed in the 9th of Henry III.? For can anyone of Sense imagine that so material a Clause as this, and so express for the Rights and Privileges of the whole Body of Tenants in Capite, as the sole Representatives of the whole Nation, could have been omitted, had they alone in those Times' constituted the Common Great Council of the whole Kingdom? How then comes it to pass, that in all the Records of Henry Illd's Reign, wherein this Charrer is mentioned, it is always recited MagnaCharta Nojlra, viz. his own Charrer, without taking notice of his Father's? I should be glad to receive a satisfactory Answer to this Question from your self or any other intelligent Person.

M. I hope I may give you a satisfactory Answer to this Scruple, which I think may be thus satisfied. I conceive that the first Great Charrer we have, which is commonly attributed to Henry III. and ttiled his Charter in Our Statute-Books, was properly the Charter of Edward I. or perhaps, rather his Explication or Enlargement of those Charters of King John and Henry HI. For we find not the Great Charter, either of that or King Johns, in any of the Rolls, until the 25th of Edward I. and he had a greater Sum of Money for confirming this Charter, than HenryIII. had. Now in this Charter then confirmed, there is no Provision made for any Summons to Great Councils or Parliaments and the Reason imy well be, because the Constitution of Great Councils or Parliaments was lately changed from what it was in the beginning

of King Johns Time, and till the 49°' of Henry III.; not pethaps was it Ib
fixed, and peremptorily resolved on at this Time, what it should exactly be for
the future, as to have it made an Article of the Charter. And to this Conjecture
the frequent Variations of Summons to Parliaments in those Times, do give a
probable Confirmation. •

Jf. I am not at all satisfied with this Supposition of yours. For I doubt not but to prove that it is altogether vain, and grounded upon no good Authorities, . 1 either from Hiltory or Records •, but I shall shew you before s have done, that the Magna Charta which we have still upon Record, by Infpeximus of Edvo. I. jrthe very same Word for Word, in all the material Parts of it, with that of Henry III. both of the 2d and 9th Year of his Reign; and that there was no Alteration at all made as to the manner of it, as summoning or chusing Members of Parliaments from the beginning of this King s Reign to the very end of it. Nor yet in the Time of Edward I. as you suppose.

M. I should not be displeased to see that proved, though I think I am able to (hew you the contrary. But before we proceed to that, I must needs tell you, I am not yet satisfied that there ever were anciently Two Councils •, one' of the Tenants in Capite, and the othet of the whole Kingdom ; for methinks not only your felt', but Mr.Fetyt, and Mr. Atwood his Second, have fallen very short of their Proofs they have brought in this Point: and there is nothing in the Doctor's whole Answer to them, in whichi (in my Opinion) he hath obtained a clearer Victory; therefore pray give me some better Proofs of .this Distinction, if you have any. •.

F. I did not imagine I should have needed to have spoken any furrher upon that Head ; yet since you now require it, I shall obey your Commands. Sine* therefore you tell me that the Times before your Conquest are obscure, and the Authorities uncertain, I will give you a short History of these Councils, beginning with KingWilliam I. and so going down as low as Henry III. So far then we are agreed, that the Council of Tenants inCapire, met ex more at the great Feasts of the Year ; and that they also granted the King Aids, or Subsidies, to be Levied upon themselves alone; as I grant, appears by the Writ of 19th of Henry III. which you have but now cited, directed to the Sheriff of Sussex.

But that this Council which was thus held ex more, was also often Summoned to meet at other Times when the King's Occasions required it, is also as certain; as appears by this Writ of the 26th of the fame King, which I shall read claus. to you, Rex Vicecomiti Northampton, 0V. Præcipimus tibi ficut alia* Pracipi- m. 7. dorfoi tarn, quodSummoniri facias Arcbiepifcopqs, Eptfcopos, Comites, Barones, Abbates,. Yriores, Milites, Vf liberos bomines quide nobis Tenent in Capite, eodem modo Jcribitur omnibus Vice-comitibus Ang/ite: Which Writ extending only to those who held in Capite, could never be a Summons to the Common Council of the whole Kingdom : for then this Restriction had been needless, qui de nobis Tenent in Capite; and it would have been known who had a Right to come to this Council, if these Words had not been inserted; so that this seems to make a plain Distinction between these Liberos bomines qui de nobis Tenent in Capite, and the rest of the Freemen of the whole Kingdom.

But when Eadmerus and other Ancient Historians mention the great or Common Council of the whole Kingdom (afterwards called the Parliament,) then their Expressions are more general and comprehensive; for proof of which, p^Agi at pray consult the Old English Saxon Annals, continued down to the Time of oxford, 1692 HenryI. wherein Anno Dom. 1085. (being the last Year of William I.) there is in Saxon and a remarkable Passage which I shall here give you in Englijh. ' At Christmas, the Lacin- P-li6' 'King (viz. William I.) was at Gloucester with his Nobles, and there held his 'Curia or Court (in Saxon his Hired) Five Days; (and immediately after it fol

* lows thus:) Presently after this he held a Great Council [in Saxon, Æycel

* Getbeat ] where he had many great Discourses with the Nobles, &c. Now it seems plain to me, that this ordinary Court ( here called his Hired) could not be the Great Council of the Kingdom ■, for to what purpose should it meet again so quickly, if it had been the Common Council of the whole Kingdom? Or, why are they here called by different Titles, the one his Hired, or Court, and tha

U u 2 •■ othet

2 Vol. F.451. other the Mycel Getheat, the Great Council •, which is also called commune Concilium totius Regni,in Sir Henry Spelmans Councils in this very Year.

And to (hew you more plainly the Difference between this Great Council of" the whole Kingdom , and the Lesser Council of the King's Barons and Te

Lib. 3. f. 58. nants in Capite; pray see Eadmerus, who relating what was done in a Great Council held at Easier,immediately before the Invasion of Robert Duke of Nor". • mandy, in the 2d Year of Henry I. fays, there met totaAnglite Nobilitat, cum Yopuli numercfitate; and then Archbishop Anfelm engaged for the King, that he should Govern the Kingdom according to the just Laws thereof. Where you see, that besides the Noblemen and Gentlemen, here railed, Regni Kobilitas, there was also a great Number of the Commons, here termed in the Barbarous Latin of that Age, Populi numerofitas.

But when the King held his Curia of the Great Lords and Tenants in Cap'ne alone, the Expressions are more particular; as may appear by many Charters of our first Gorman Kings to several Abbeys of their own Foundation, which are laid to be made Conjilio Affensu Baronum nostrorum tarn presulum quam Laicorum; as you will (for Example) find it in the Charter of Henry 1. to the Abbey of Abington, as it is exemplified in the Ancient Manuscript Register of that Abbey, now in the Cottcnian Library; in which Book you will find more of the like Nature •, which plainly make out this Difference between this Less Council of the King's Barons and Tenants in Capite, and the Great Council of the Kingdom.

And for further Proof of this, pray fee the Instrument of King John's Resignation of his Crown to the Pope, as you will find it at the end of Doctor Ms compleat History •, which is recited to have been done Communi-Concilio Baronum Noftrorum, that is, by the Common Council of the King's Barons and Tenants/* Capite,z great Number of whom were there present in Arms against the Landing of the French King, then expected. And yet this was never looked upon to have been done per Commune Concilium Regni, since this Resignation was declared void by the Bishops, Lords, and Commons in full Parliament, in the 40s1' of Edward III. because done fans lourAJfent, as it is in the Parliament Roll of that Year.

But whenever the whole Great Council or Parliament was summoned to assemble, then this Lester Council of the Tenants in Capite, must needs meet also, as being a principal part of it. And then the Expressions were more comprehensive, as I have already noted and our Ancient Historians do, in my Opinion, by their Expressions, plainly signify an Union of both these Councils to make up the Common Council of the Kingdom; as appears by the Letters which the Prior of Canterbury wrote to the Pope, upon the Election of Ralph Bishop of Rochester, in the 14th of Henry 1. to the See of Canterbury, as you find them in Eadmerus, (Lib. 5. sol. 111.) and which is there said to have been made adunato conventu totius Anglia; that is, in the united Assembly of all England, viz.as it follows immediately, the Epi/copi, Abbates & Principes Regni, & ingens Populi Multitudo. So likewiseHoveden in his History, (.F0/.273.) Anno 1121, (being the 18th of Henry I.) relates the Kings Marriage with the Lady Adeliza, Daughter to the Duke of Lovain, to have been celebrated at Windsor, adunato Coneilio totiusRegni, i. e. in the United Council of the whole Kingdom.

M. I am not yet satisfied with your Proofs: And I doubt not but to shew you that this Distinction-of your Friends Mr. P. and Mr. A. his Second, between the Common Council of the Kingdom, and the Council of the Great Lords and Tenants in Capite, will prove but a meer Chimera of those Gentlemen, from whom you have borrowed it; for there was indeed but one Common Council of the Kingdom in those Times, viz. that of the Bishops, Earls, Barons, and other Tenants in Capite.

And therefore in answer to your first Authority from the Saxon Chronicle, I shall shew you another of the'same King's Reign, which will shew the dis serent Expressions of this great Council by Hired, and Micel Getbeat, to have been the particular Fancy of that Monkish Writer, and it is from Gervar sot. i6$i. Doroborninfis, de AS isPontificum Cantuarienf. Ecclejtæ, where you may see in the Decent Script ores, this Passage, Anno 4. RegisWilbelmi I. Anno Dom. 1070.



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Lansrancus Cadomenfis Abbas eleBus suit Archiepifcopus Cantuarienfis a Senioribus ejusdem Ecclesiœ cumEpiscopk, & Principibus, Clero, C Populo Angli* in Curia  Regis in AQ'umptione SanSa A/LirU where you may lee that this Confirmation of the Archbishop was made in the great Council of the Kingdom, which is here called collectively, or all together, (and not one Part. of it only) Curia Regis. As for the Words which make up the constituent Parts of this Council, we have sufficiently debated them; and therefore I need lay nothing more concerning them.

_ But tho' the Dr. has given us more Authorities to prove this, yet I shall make use of but one more fromEadmerus, it is in the Reign of Henry I. iV. 125. thus, in subsequenti Nativitate Dom. tChrifti Regnum Anglia adCuriam Regis Lundoniœ pro more convenit, & magna Solemnitate babitu eft, &c. This Instance is full in all Points here is the whole Kingdom, that is, the whole Baronage or University of England, (for BraBon tells us, the whole Kingdom consisted of Earldoms and Baronies) who met according to Custom, at the King's Court: And hence it is manifest, that at those Times the Common Council of the Kingdom was held * and from this also, as from the former Instances, that the Barones, Principes, & Optimates, its Majores Regni, did at those great Feasts,pro More, according to the Custom, frequent the King's Court, and were the only "Persons that constituted that great Assembly.

JF. But pray give me leave to interrupt you a little. Did I not tell you but p * cnow, that the King did often convene the Common Council of the whole Pag' I?0, Kingdom to meet the Bifliops, great Lords, and Tenants inCapite, at one of these Feasts •, and so it might be an Assembly ex More In relpect of them, but extraordinary to all the rest of the Kingdom and this often happened at other Times as well as at these Feasts, according as the King's Occasions required, when all the others were summoned on purpose.

M I have already answered that Objection •, and granting it might be so, it does not prove it was so: But I desire you to tell me what you can lay to this Expression in the Authority I have now made use of fromEadmerus; Regnum pro more convenit, which is spoken of the most general Council when Fti. 90. the Kingdom of England then met at the King's Court. So that your sinall Chriticisin upon the Words adunato Conventu orConcilio, as if they signified this Union or Conjunction of two Councils into one, is but a meer Fancy of your Anthors, those Words signifying no more than a gathering or meeting together of all the Persons that constituted that Assembly, as appears by these Words in Eadmerus, Adunatis (without either Pracepto or SanBione Regis) adCuriam ejus in pafcba Terra Principibus, i. e. -the chief Men of the Nation being assembled at his Court atEaster.

But as for your main Instance of King Johns Resigning his Crown to the Pope in a Common Council of the great Lords and Tenants in Cspite,. but not of the Common Council of the Kingdom, I confess it were very considerable if it were true for tho' in all the Charters of this King's Resignation, the Words you mention, viz.Communi Concilio Baronum nostrorum are inserted, yet it could not be a great Council since tho' I grant that all the Tenants m Capite were at that Time summoned to appear in Arms against the King B. A. J. of Trance \ yet it being a Military Summons for the gathering together of an Army, and not sor the Meeting of a great Council for the five proscribed Bishops were in franee, and the Barons that fided with them, fled beyond Sea , not daring to appear ; so that this Resignation having been Executed before so small a Nirmber of Barons as appears by the Witnesses to it, viz. but Two Bishops, the chief Justiciary, 'Seven Earls, and Three Barons, without subjoining £7aliis Epifcopis, Comitibus, & Baronibus, or & Communitate, or tata Communitate, it does not appear that there were any more present •, so that this could not be such a Council as was constituted by King Johns Charter, that is, it was not a Parliamentary Council, or general Representative of the whole Nation ; and therefore the Parliament in the 40th of Edward III. might very well siy, the Resignation was made without their Assent j and so I think this great Argument of yours- comes- to nothing.

F. Pray do not triumph before the Victory. For 1 doubt not but to prove, notwithstanding what you have said, that this was a real Common Council of

th«

the Barons and Tenants in Capite, jn which King John resigned his Crown, thoJ not of the Kingdom •, which I prove thus. First, it appears by all our Historians, that King Jihn had just summoned all the Earls, Barons, Knights, and. Freemen ot the Kingdom, whoever they were, and of whomsoever they held, to appear in Arms; which made so valt an Army, that after all the ordinary Rabble were lent home, Matt. Parts tells us, that the Knights, Esquires, and Freemen rhat stay'd behind, made an Army of Sixty Thousand Men, who were encamped at Barham Down, not far from Dover, where this Resignation was executed : So that this being almost as great a Meeting as that at Runne Mead, the King might about the lame Time very well have summoned at least a great Council of all his Tenants in Capite, to countenance this Resignation 5 and that he did do lb, the Charter it self fays exprefly which had it been otherwise, would have appeared a notorious Lye to the whole World. Nor are your Objections to the contrary considerable. For, you say this was only a Military Summons, and not to a Common Council, yet such a 'one as was constituted by this King's Charter, which lure could not be at this Time, when that Charter was not yet made till the Year after, before which, you grant, that the great Councils, might have met without the 40 Days Summons, expressing the Cause of their Meeting ; and if they could meet ex More,as you grant this Council did at the great Feasts ol the Year, without any Summons at all, lure they might as well meet now on such an Exigency: The King had, 3tis true, summoned them at first upon ano- ther Occasion ; but say you, there was so small a Number of Barons at this Meeting, that it could not be a Common Council of the whole Kingdom •, neither do I lay it was, but the contrary •, but how doth it appear it was not? Why fay you, Five of the Bishops were then lied into France, with a great many of the Barons of their Party. The latter is not true in Fact ; few or none of the Barons siding with these Bishops •„ but as for the Bishops, what if Five were absent? Were there not enough left to have made a Common Council of the. rest of the Tenants in Capite > Well, but there were but Two Bishops present, and Seven Earls, and Three Barons, as appears by their Names at the End of this Charter, without any mention of more, or of the whole Communities being there. A special Reason, as if no more could be present at this Assembly than whose Names are to it •, by this Rule, the great Charters of King John, and 9th of Hen. III. were not made in a great Council of the whole Kingdom •, for there are no Witnesses Names expressed at the End of them •, Vis true, at the Beginning of these Chatters it. is laid they were done by the Council of certain Bishops, Earls, and Barons, which yet were but a very few more of all Sorts than there are mentioned at the End. of this Charter of King John's Resignation: So that this Appearance of the Bishops, Earls, and Barons, and Tenants in Capite is meerly precarious; tor if more might very well have been there, it is most likely they were, notwithstanding the Paucity of the Witnesses to this Charter; since thole were added only tor Form fake, and were commonly those who were nearest the Throne when the Seal was put to it.

I confess your first Objection is more material from Eadmerus, of the whole Kingdoms meeting the King atCoristmas ex more, without any Summons mentioned ; to which it may be reply'd, that there might be a Summons to the whole Kingdom to meet, as well as to the Tenants in Capite and this happening at Christmas, one of the usual Times of their Meeting, this Author might apply the Title of this Court to the Council of the whole Kingdom: And that this was so, will appear from an Anonymous Author who wrote in H. L his Time, published by Mr. Sylas Taylor, in his History of Gavel-kind, (jk 194) who relates this Ejection ot Archbishop Lanfranc to have been made Communi Consenfu & Confilio omnium Baronum suorum, omniumque Episcoporum, i!fAbbatum, totiusque Popu/i; which certainly must mean somewhat more than your Council of Tenants in Capitealone.

And this also is confirmed by Mar. Paris, who his been so careful, as to mention a Summons to a great Council immediately after the holding of the Curia of Tenants in Capite at Christmas; the Words are thus: Anno Dom.1237. i.e. the 21st of Henry III. tenuis Rex curiam suam ad natale apud Winton n\sit, autem cominuo per omnesfines Anglia Scripta Regalia prœctpient omnibus ad Regnum JpeQantibus, Archiepifcopis, Epifcopis, Abbatibus,Prioribus, Comitibus C Baronibus, ut omnes in oBabis Epiphanite Londoniis convenirent. Now

gray pray tell me, if this Curia held ex more at Christmas, had been the Great Council of the whole Kingdom, consisting of the Archbishops, Bishops, Abbots, Earls and Barons, and other Tenants in Capite, to what purpose should the King continuo, (i.e. immediarely after) issue out his Writs for Summoning the very lame Persons to meet him at London on the OBave of St. Hillary, when they were then all with the King at Winchester; and that he might then have communicated what he had pleased to them.

Or what have you to fay to the Curia or Council ■ held before, in the Ninth of this King, but Eleven Years after King Johns. Magna Charta, when the Great Charters were confirmed, and an Aid granted by the whole Kingdom? which Matt. Paris, Anno Bom. 1225. relates thus: (which tho' I gave you at our last meeting, it will not be amiss to repeat again:) Rex Henricus post natale tenuit curiam fuam apud Westmon. prafentibus Clero iffPopulo cum Magnatibus Regions; which Words (as I have already urged) must comprehend some other Persons than your Tenants in Capite alone; otherwise the Word Populos had been altogether in vain. So that you lee the Common Council of the whole Kingdom was often held at the lame Time with the ordinary Curia, and is by way of Excellency called by the lame Name as we at this Day call the Great Council of the Kingdom, the High Court of Parliament: And Curia and Court differ no more than a Latin Name from an English; which is likewise very well confirmed and explained in the Chronicle of Walter of Coventry (ro be found in divers Libraries) who lived in the Reigns of King John and Henry III. and speaking of this very Council or Parliament (which though it might begin at Christmas with the Curia, yet it leems held on till Candlemns) when the Commons were joined to it he fays thus j In Purificatione beat<e Maria convocantur apud London, Proceres Anglix, ibiq-y traUatu habitodiffusion, cum Clero, & Populo ibidem convocato, Rex conceffit Libertates tarn Eccleji*, quam Regni, quamForest*, sicut cart* su<e sunt inde confeffa. Now I leave it to yourself to judge, whether by these Words, TraSatudijfujiore-habito cum Clero, & Populo, &c. (put after the calling of the Proceres, i.e. Great Lords and Tenants inCapite), any thing can be meant but the inferior Clergy and Commons: All which being joined in one Body, made up the Commune Concilium Regni. And that this was so, appears by the date of this Grear Charter it self, 11Februarij nono Henry III. But that the whole Council or Parliament when thus joined, was likewise called CuriaRegis, I can prove by several Examples; Among which see the Scat, of Merton in 20 Henry III. beginning thusProvisum est in curia Domini Regis Henrico, &c. cor am Will. Cant. Archiepifcopo & Epifcopis fuffraganeisfuis, & c6ram majore parte Comitum C Baronum Anglia ibidem existentium pro Coronatione ejujdem Regis, proqua omnes vocati juerunt, it a provisum suit, & concest'um tarn a predihis Arcoiepijc. Epif. Comitibus,Baronibus, quam ah ipfo Rege , & Aliis. Now who can these Alij mean, coming thus after Barones, but the Commons as now understood?

M. I confess these Authorities you have now brought carry some Colour of an Argument, but if they are look'd into will signify little. To begin with your first Quotation from Matt. Paris; Suppose I grant that there was aCuria ex more held at Westminster, at which there then appear'd at Court only a small number of the Bishops, Lords, and greats Tenants in Capite: But the King not rinding them enough for the great Affairs he had then to communicate to them, immediately issued out his Royal Writs to all the Orders of Men there mentioned, to appear at London on the Off aves of St. Hillary; but how can you affirm there were any Commons then summoned in the Sense in which they are now taken, the Barons being the lowest Order here exprefly mentioned? But if you would but have read rhe Words that immediately follow in this place you have now cited, you would easily fee that your Knights of Shires and Burgesses could not then be there; the Words are these, venit igitur dieSanSi Hillarij Londonias instnitum Nobilium multitvdo: How could these Representatives of the Commons have been elected kand returned in so short a Time as between Christmas and Eight Days after Twelftide? So that there could have been searce Three Weeks Time from the Date of the Writs preJ sently after Christmas day, to the meeting of the Parliament. But the Truth is, by this infinita Nobilium Multitudo, who'are here said to have come to Londoni is to be understood the great Number of the smaller Tenants in Capite , who all appeared at this Council according to King Johns Charter: Whereas your Knights of Shires, Citizens and Burgesses, if they had all come at that Time, could not be called infinita Nobilium Multitudo, as not consisting at this Day of 6co Petsons ; and sure would have been fewer then. But as for your other Authorities, if this be true I have now laid down, they will be as easily answered i since by the word Populus, (put before, and distinct from the Magnates, in the Passage you have now quoted from Mat. Paris ) these smaller Tenants in Capile are to be understood 5 and byMagnates, the Bishops and Great Lords. And this also explains the like Phrase you now cite from Walter ofCoventry h where by Proceres & Populus, are to be understood the same Orders of Men, as by Magnates &Populus, in Mat. Paris -. So that it was with the Smaller Tenants in Capite, and the Inferior Clergy, with whom the King had this larger or more diffusive Treaty, as this Author words it.

E I confess, you have now put a very fair Gloss upon these Places I have now made use of: But 'tis an Hundred Pities that such a fine Hypothesis should have no better Proofs, than bare Surmises, to support it ; for that is all the Authority that I can see you bring for your Sense of this Word Populus, for the smaller Tenants in Capite,and not for the rest of the People but I see no good Authority as yet brought by you to prove it, except that Clause in King Johns Charter; which if (as I have lately shewed you ) it will bear a quite different Interpretation, all that you have said upon that Head will signify nothing. Therefore , as for the main Argument you raise from rhe Words, infinita Multitudo Nobilium, in Mat. Paris, that they could not be the Knights of Shires,- together with the Citizens and Burgesles, because they could not be such an infinite Multitude as this Author here mentions to have met at London; as also because of the Shortness of the Time of the Summons: If these are material Objections against our Opinion, so it will be likewise against yours: For how could this be a Great Council, aeccording to King Johns Charter, which expresty provides for Forty Days Summons, for the Tenants in Capiteto come to this As sembly? And if so be this Usage was broken at this Time, upon some urgent Occasion, in respect of them; it might be so also as to all the rest of the Kingdom ; for the Knights of Shires might be chosen at the next County-Court, and their Names returned immediately before, or together with their Meeting atLondon. And as to the Citizens and Burgesses, it was yet more easy for them to be chosen and returned in Three Weeks Time; since every body knows, the Cities might have called Common Councils; and the Towns and Boroughs, by the Notice of their proper Officers, to whom the Writs were deliver'd, might have aflembled at their usual Places of Electing, immediately* upon the Receipt of the Writs; and these, together with the Knights, Citizens and Burgesses, join'd with the Great Lords and Tenants in Capite, made up the infinita NobiliumMultitudo, mention'd by Mat. Paris.

But your main Objection, I confess, is behind ; how these Representatives of the Commons, here called infinitaNobilium Multitudo, could be the Knights, Citizens and Burgesses whole Number could not be, at that Time, above 500 Persons? As for this, pray consider, if the Difficulty will not bear, as hard upon you : For if your Tenants in Capite made such a vast Multitude; all those Difficulties will arise, that you press me with upon my Hypothesis, of the Meeting of all the chief Freeholders (or Lords of Manors in England) in Parliament , before Knights of Shires were introduced in the room of them; viz. How it was possible for so great a Multitude to Debate, Vote, or do any Business; and what Room , or Church, was able to hold so many; and the like. So that granting all your smaller Tenants in Capite (some of whom had but one Knight's Fee apiece) to have met there, these might have made a Body of Five or Six Thousand Men ; which how tj^y could have been managed any better than Ten Thousand, or Twenty Thousand, (which would have more than taken in all their Feudatory Tenants too) I desire you would resolve me, if you can. So that at last, upon your own Hypothesis, this Populm(the People) consisting of the Tenants in Capite, were as much Commoners, as the Knights of Shires at this Day. For as for the Word Nobilium, I have already proved, ( and you must needs here

grant grant it) that it takes in the Inferior Nobility or Gentry, under the Degree of Lords, as well as rhe Superior and if Ib, why not all the Considerable Mefne Tenants of those Tenanrs in Capite ? So that you have hitherto brought no Proof, but your bare Assertion, that under this infinita Multitudes Nobiliunt & Populus, must be understood only the Great Lords, and Tenants in Capite; since either this Author speaks hyperbolically, or else all the Chief Gentry of England, of whatsoever Tenure, might have as well appear'd at this Great and Extraordinary Assembly.

So that you are under this Dilemma; either this Curia (which you confess / met ex more) was the Great Council of the Kingdom, or it was not : If it was not, then there was some other Greater Council besides that; bur if it was, then it will plainly follow, (tho' you do all you can to mince the Matter) that this Great Council of the Kingdom, or Parliament, met of course by ancienr Custom Three times in the Year, without any Summons at all from the King : Which if I should have affirmed, you would have called it a Commonwealth Notion -, since nothing can be a greater Proof, that this Assembly of the whole Nation in Parliament, did not, upon your Hypothesis, immediately depend on the Kings Writs of Summons, for their Assembling and Acting when met.

M. Well, since you can bring no direct Proof, that these were any other besides the Tenants in Capite, who met at this Great Council •, I have still more Reason to suppose them to have been so, than you can have for the contrary Opinion -x therefore pray give me (if you can) some clearer and later Proofs, for this Difference between rhe Two Councils.

F. I (hall comply with your Desires; and, in order to it, shall conclude with Two or Three of those very Authorities the Doctor has given us in his Answer to Mr. P. Where he gives us this Passage out of Mat. Parts, in the 28th of Henry III. ( which plainly proves the Tenanrs in Capite not to have been the common University, or sole Representative of the whole Kingdom pray read it: Eodem B. A. P. Anno convenerunt regiasummonitione,cenvocati Loadinum, Magnates tot'uts Regni, F}1- ^39Archiepiscopi, Episcopi, Abbates, Priores Comites &Barones; in quo Consilio pe- A'D' I24'*, tin Rex ore proprio, inpr<rfentia Magnatum , (1. e. of all the Parties above-mentioned) in ReseSorioWeftmonasteriensi, Auxilium fieri pecuniare, cui suit responsum quod super hoctraBarent: Recedentesque Magnates de Resefforio, convenerunt Archiepiscopi, '& Episcopi, Abbates & Priores,seorfim per se. super que hoc diligenter traBaturi, tandem requisiti suerunt cx partc eorum, Comites & Barones, fivellent Hits unanim'iter consemire in responjione iff provifione super hk sacienda qui responderunt, (scilicetComites 8£ Barones) quod sine Communi Univerlitate nihil sacerent; tune de communi affensu eletfi suerunt expane Geri, EleSus Cant. &c.'

Now I think, here is as manifest a Distinction as need to be between the Lords and Commons, as Members of the Great Council, and the Common University j A. A of the whole Kingdom : For it is obvious, that when all the Lay-Lords, Earls/>. 2o7,'208. and Barons (to whom you may also add your Tenants in Capite, if you please) being met together, were asked by the Bishops, Abbots and Priors then present, Whether they would agree with them, or not? The Earjs and Barons answered for themselves, That they would do nothing without the CommonUniversity; which could not possibly be only the Lords Spiritual and Temporal, and Tenants in Capite, since rhey were now all here, and referred themselves to another distinct Order of Men, different from themselves, (who were not there present) as also from the Bishops, Abbots and Priors , who demanded their Consents to what they had agreed upon. Now if the Temporal Lords, and Tenants in Capite , had concurred here had been the Consent of the Common University of Lords, and Tenants in Capite. But besides the Consent of all these, there was, notwithstanding, (it seems) required the Consent of another Body of Men, called here the Communis Univerfitat \by which must be meant the Commons, or, no body, since otherwise they might have all agreed together without any more ado.

M. I confess, this Story out of Mat. Paris looks somewhat plausible at the first on your fide ; but I doubt not, if it be better considers, it will do you little Service: For what if by this Common Univerjity, is to be understood the whole Body of Lesser Tenants in Capite ; who not sitting with the Lords at



{338}

that Time 5 they would do nothing without their Consents, till it was proposed to them. But that they did afterwards all agree -, Pray read the rest of" this Narration, and it will make it clear enough, that this CommonUniversity of Tenants in Capite did also agree with the Lords, Bishops, and Abbots: The Words immediately following in Mat. Paris, are these: Tune de communi affenfu eleBijuerunt ex parte C/eri, Eletlus Cantuariensis,Wintonievsis, Lmcolni'ensis, Hj Wigorniensis Epifcopi ex parte Laicorum, Richardus Comes Trater Domini Regis,Comes bigod. Comes Legr. S. de Monteforti, C Comes Marefchallus ex parte ver a Baronum Richard/a deMontsichet Johannes de Baliol, p de ^anBo Edmundo, & Ramefeia Abbates •, ut quod isti duodecm providerent incommuni reeitaretur, nee ahqua forma Domino Regi oftenderetur Author it ate duodecim nisi omnium communeajjenjus interveniret. From which last Passage it appears plain to me, that in this Parliament the several Orders of Men that were the constituent Parts of it, were only the Bishops, Abbots, Priors, Earls, and Barons: And that all these put together were termed the Common University, which is more comprehensive than University simply taken. Now if the Commons, as at this Day represented had been there, we must have had some Mention of them one way or other •, as well as of the Committees of the othei Orders which made up the general Committe of Twelve; so that it is plain beyond doubt, that the Commons were not part of the Common University.

F. Then pray tell me who they were; for the Historian tells, that when all these Bishops, Abbots, Priors, had now met together, with the Earls and Barons-, yet these last tell them, that without the Common University they could do nothing; which had been Nonsense, if, as your Doctor supposes, the whole University or Community of the Kingdom had been all present.

M. I must confess this is a material Objection; but what if to help him out, I should tell you, that by the Common University here mentioned^ is to be understood the Body of the Inferior Tenants in Capite, under the Degree of Barons -, and this Common University of Tenants in. Capite might not have been present, and lat with the Earls and Barons at that Time, when the Bishops and Abbots made this Proposal: Therefore the Lords might very well answer, That till they bad consulted the Common University, or Body of Tenants in Capite, they could do nothing. And though this Body of Tenants m Capitedid not then actually sit with the Earls and Raroos; yet doth it not follow that they made a distinct Estate by themselves, different from that of the Lords or greater Tenants in Capite: For then the Archbishops, Bishops Abbots, Use. (who are here exprelly said to have consulted by themselves,) mast have done so likewise: Therefore, hough our Author is not so paiticuiai as he might have been; yet certainly this Common University were thereupon consulted, and gave their Assents to the Choice of this Committee of Twelve, who were to draw up their Answer to the King: For the Words arc, Turn cx communiaffensu eletli suerunt; which seem to refer to the Common University or Body of Tenants in Capite % ot else the Lords Excuse, as weft as the Election of these Persons by the Bishops, Earls, 0V. had been very insignificant.

fl This seems to me to be a precarious Assertion, and without any due Proof; for tho' the Words are Tune exCommuni Affensu, yet I very much doubt whether these Words do refer to the Common University of the who/eKingdom, or not. For you your self confess, that Mat. Paris is Jbort in this Point -y and that it was not so, seems more likely to me by this material Circumstance, that not one Person of the Twelve but was either a Bishop, Earl, or Great Baron. (For that Richard de Montsichet, and John de Baliol were so , Sir William Dugdale hath proved in his Baronage of England : ) Whereas, jf the University or Body of the Tenants in Capite had joined in this Election -, it ,is not likely but they would have Chosen some of their own Body to. represent them in this Committee, who were not Earls or Barons. Since your self must confess, that there then were a great Body of Men who were not Lords, nor did at this Time Sit or Act jointly with the Lords, or greater Barons in this Assembly. And likewise it farther seems highly probable, that this Common University of Tenants in Capite (take it in your Sense) did ncJt give any Resolution in this Matter; since we do not find any Money given in Answer to the King's.Request, hut only


Complaints of, and Orders about Redressing of Grievances ; which was in those
Days often done in a Great Council or the Bishops, Lords, and Tenants//?
Capite.

But I (hall shew you now by some other Records which the Doctor him- B. A. E self hath made use of, chat there otcen was a distinct Assembly or Council of Ac* *97the Lords and Tenants in Capite, different from that of the Commons or Commonalty of the whole Kingdom. The first Record is to be found among the u. 10. Patent Rolls of the 42 Henry III. beginning thus; Rex omnibus, Sec. cum negotik nojiris arduis, nos ©* Rcgnum nostrumcontingentibus, Proceres, & Fideles Regni nojiri ad nos London. In Quindcna, Pafche proximo preterit afaceremus convocari, & cum de Kegotiit supra di&is, iff maxime de prosecuiione Negotij Sicilie diligenter cumiijdem traUaremus, ac ipfi nobis rejpondcrunt quod ft ftatum Regni noflri, per Concilium tide Hum Nostrorumratisicandum duxerimus, & D<?minus Fapa Condttiones circa faclum Siciliœ appofitas me Hor aver it, per quodNegetium illud profequi pojsemus cum ejfeSu, ipfi diligentiam fidelitcr apponent erga Communitatem Regni no firiquod nobis Commune Auxilium ad hoc prxstetur, &c. The rest I shall not trouble you with , because it is not to our present purpose.

But you may here see, that taking the Words Proceres and Fide/es in your own Sense, the former for the Bishops and Lords, and the latter for the Tenants in Capite, who were called to consult about the Business ofSicily (which Kingdom the King had before too rashly accepted of from the Pope:) Yet tho' they were all met, they could do nothing but give him Advice, and could give him no Commune Auxilium, i. e. common Aids or Subsidies, without the Consent of the Commonalty of the Kingdom. Now what can this Com.' munity signify but the Commons; for your Lords and Tenants in Capite were all met already, and if they alone made up the CommonUniversity or Body of the Kingdom (as you suppose,) why could they not have immediately granted the King the Assistance he desired (if they had a sufficient Power so to do, ) without putting him off with a Promise, that they would use their endeavour with the Community of the Kingdom, (as a distinct Order or Body of Men,) that this Aid or Subsidy should be given him: And upon this Condition it is, that at the end of this Record, the King promises them, that before Christmas, he would mend the State of the Kingdom, per Consilium Proborum tvFidelhtm Hominum nostrorum, which can mean nothing less than a Parliament. Which the next Record in the fame Roll recites, was to meet at Oxford after the Feast of Pentecost. Which Record, since it not only recites the King's Oath, whereby he had bound himself to observe the Direction of a Committee of 24 Fideles, i. e. faithfulor Loyal Men, Twelve of which were to be chosen out of the King's Council, and the other Twelve by theProceres or Magnates Regni, as I have already proved, may take in the Commons as well as the Lords. But whether by these Words were meant the Lords or Commons, the Conclusion of this Record sufficiently confirms my Argument from the precedent Record, that the Lords and Tenants in Capite, could not then Tax the whole Kingdom at their Pleasure, without the Consent of the Commons: Or else to what purpose are these Words in the Conclusion of this last Record Promiferunt etiam nobis Comites, & Barones Memorati, quod expletis Negotiissuperius taffis, bona fide laborabunt ad hoc quod Auxilium nobis Commune prtstetur a Communitate Regni nostriin cujus rei, &c. Dat. 2 .die' Maij. And it appears by the Date, as also by the Entry on the Roll, that both these Records were perfected at once, and concerning the lame Business. And further, to prove that the Parties appointed in the Record to be chosen ex pane Procerum, were not chosen by the Great Lords, or Peers only, may be seen from a Patent Roll of the fame 42 Henry III. whereby Henry de Wengham, M. 6. Dean of St. Martin leGrand, and then Keeper of the Great Seal; and John Mansel, Provost of Beverlay, were two of the said Commissioners; tho' they were neither Barons nor Tenants in Capite (as I know of) but only Eminent Lawyers, and Men of Great Abilities (and so meer Commoners.) Yet Mat. 39U Westminster calls these Men Proceres, as you may see by this Passage, speaking of this whole Committee, Videntes ergo Prcceres anteditli viginti quatuor, adRegis & Regni regimen sic Eletfi, 8tc.

X x 2 I shall

ft/. 199. I shall now only conclude with a French Record, which the Doctor himself

hath also given us at large, and which refers to the laid Committee of 24 above-mentioned : It begins thus, Henrypar la Grace de Dieu Roy d' Engkterre, &c. a touz ecus, Sc. Sachiez ce pur le profit de nostre Reaume e a laRequeste de nos hauz Homes e Prodes Homes, e du Commun de nostre Reaume, Otreyames ec vint quatre Homeseujjent poer^ per que tout ce quil ordeneirem del Estat de nosire Reaume fust farm estable the rest being very long, you may read at your Leisure ; only I shall take Notice of the date of this Letter, to which Ibil the King also put to his Seal: The Conclusion being thus; Cefte chose feufeite a Lundre landemaigne prochein apres la Gaulehaut V an de nostre corronement quarente secunde. And tho' the Doctor can make nothing of the Words Gaulehmt\ this happened, I suppose, either ftom the bad Writing of the Record, or from the Ignorance or Mistake of the Transcriber; for it should be Gaule tn s el Cor ^ -Aut, that is, the Gule of August •, which is a "great Holiday in rhe r's.Guia Au- Church of Rome upon the First of August, (called also St. Petri ad Vmcula) gusli. in the Memory of St. Peters Chains curing of a Roman Virgin by her Kissing them.

I shall farther observe from this Record, that the Hauz or Prodes Homes mentioned in this Record, being taken in the Doctor's own Sense for High and Wife Men, that is, the Earls, and Barons; yet the Words e du Communethat immediately follow them, must needs signify some Body of Men different ftom the former; or else it had been a notorious piece of Nonsense; since if the former Words had taken in all the Lords and Tenants in Capite,that is (in vour Sense ) the whole Community of the Kingdom to what purpose are these Words e du Commune,that are immediately subjoined > since the hauz C Prodes Homes would have served to express all the Lords and Tenants in Cipite, whether taken as Great or as Wise Men.

M. I confess what you have now feid would carry some weight with it, were I not very well satisfied, that you impose upon your serf, by taking (as I told you at our last Meeting) these Words Communitae, le Commune, &Communalti in a wrong Sense, for the Commons as they are now 5 when indeed these Words before the 49th ofHenry III. nay the 18th of Edward I. (as the Learned? Doctor shews us in his 2d Edition against Mr. P.) are always to be understood, either of the whole Repiefenative Body of the Kingdom in general, consisting of the Bishops, Abbots, Earls, and Barons, together with all the Tenants in Capite, called by Mat. Paris and other Historians,Community Barenagij; or else for the Community of the Tenants in Cipite alone, stiled Communitae Regni in our Ancient Records. And this I think I can prove to you by undoubted Testimonies ■, but since you are now upon the proving Part, pray shew me that these Words I now mentioned did ever signify the Commons of England in the Sense they are now taken, before the Times we insist on. And I have the more Reason to desire this from you, because it is chiefly from the mistaken Application of these Words, that the Gentlemen of your Opinion have imposed their false Notions upon the World.

F. I shall undertake what you desire and I hope if I cannot satisfy you, the Fault will not lie in my Authorities, but your Prejudices against them. In the first Place, therefore, let me mind you, how tar you and I agreed at our last Meeting, when I granted you that these Words Community, la Commune, tf la Communalti, now in Dispute, were very Equivocal, and were often taken in different Senses; as sometimes, you fay true, for the whole Representative Body of the Kingdom sometimes for the Community of the Barons, and sometimes for the Community of the Bishops and Clergy •, but never as I know of for the Community of the Bishops, Lords, and Tenants in Capite, much lets for the Body of Tenants in Capite alone; nor were you then able to prove to me, that these Words must necestarily be understood in your Sense, for the Community of the Tenants in Capite. And tho' you should prove them sometimes to be taken in that Sense, yet would it rather make against, than for your Opinion; since they must still signify a different Body of Men from your great Lords, and consequently as meer Commoners as your Knights of Shires at this Day which is against your first general Assertion, that by these Words are always understood the Community of the Baronage only.

But

But to come to my Proofs (which I shalt divide in Two Parts -,) First, I will prove that these WordsCommunitas, le Commune, and Communalty, when coming immediately after Comites & Baranesy or Counts and Barons, or Proceres, in our old Statures and Records, do always signify the Commons in the fame Sense in which they are now taken: And for Proof of this, I will begin with the Reign of Henry III. when these Words came first to be generally in Use, and so descend to his Successors as low as Richard II. And if I can shew you, that these Words (so put) always signify the Commons, as well before, as after that Time* I think you have Reason to be satisfied, that there was never once upon a Time such a strange Alteration in the constituent Parts of our great Councils, as you supposed $ and yet none of our Ancient Historians or Statutes should ever take any Notice of it, till these modem Antiquaries took upon them to disperse these Clouds.

To begin first with the Words le Commune pray remember the Patent P. R. C. Rot. Roll of the 48th of HenryIII. which I mentioned at our last Meeting, viz. Pat- 48 H. J. the Form of the Peace between this King, the Prince his Son, and the whole g'\6p Body of the Kingdom Assembled in Parliament-, the Title of which is thus: ' "' Htcest forma pacts a Dam. Rege, Dom. Edw. filio fuo, Pnelatis, Proceribus omnibus cum Communitate teta RegniAnglis communiter, & concorditer approbata. Now pray what can these Words Communitate tota here signify, but another Body of Men distinct from the Earls and Barons, or else it would be a gross Tautology.

And pray compare this Form of the Peace now mentioned, with the Writs of Summons of the 49th of this King (when your Doctor grants the Commons were Summoned to Parliament after the fame Manner as they are now) and see if there be any Change in the Terms; and for Proof of this, we need go no further than the very Writ of Expences (for the Wages of the Knights of Shires, which the Doctor himself has given us at large in his Answer to' Mr. P.) it is the 49th of Hen. III. to the Sheriff of Yorkshire, wherein, after Rot- CL 49- »• other Recitals, it follows thus, Cumque Communitates Omit at mm dillorum va-^•M-l°-tlorf''' riot hoc Anno, fecerint praftationes addefenfionem Regni nostri, 8Cc. He therefore commands the said Sheriff, quod duobus militibus qui proCommunitate di&i Comitatus prafato Parliamento interfuerunt, 8£c. should be paid their reasonable Expences, DeCommunitate Comitatus pr<eii8i > For going to, and staying at, and returning from the said Parliament, Use.From whence it appears, that the Word Communitas and Communitates in this Writ, cannot signify the Community of Tenants in Capite alone, but the Commons of the County in general; unless you can prove to me that none but Tenants in Capite had performed these varias prœstationes in the Writ, and that none but they then contributed to these Expences of the Knights of Shires otherwise these Words must plainly signify the Commons in general, as they did in the like Writ of the 28th of King Edward t which I shall give you by and by. But I shall first shew you a few other Records of this King's Reign* concerning the Word P. R. c. Rot. la Commune (which Mr. P. has given us)-, they are in the Patent Roll of the Ht * 51st of this King, wherein by the Counsel and Assent of the King of the M,l6> Romans, & des Counts, & des Barones, & la Commune de la Terre, He pardons the Earlof Gloucester, and aU his Company: So likewise in the fame Roll, the King, by the Counsel and Assent of thesaid Counts, and Barons, & de la Commune de la Terre, Pardons the City of London, all manner of Rancor and ill Will

Now pray tell me a Reason, why should not the Word la Commune in these Acts of Pardon, signify the fame Thing as the Word Communitas in the Form of the Peace, and in the Writ of Expences of the 49th now eked? Since they come immediately after the Counts, and Barons, and so must needs signify a Body of Men distinct from them. For there is the fame Reason, why the Words la Commune de la Terre, should here signify the Commons of the Land; as that the Word Communitates Comitatus, should signify the Community or Commons of the whole County.

Tit Will you give me leave to answer this Question presently, because \ confess it is very material, before you proceed farther? There may (in my Opinion) very good Reasons be given, 1. Why the Words Cmmunitas & Id '2Communei Commune, may signify the Community of the Tenants in Capite, in the Form' of the Peacej and Acts of Pardon; and yet signify the Commons of the County • in general, in the Writ for Expences you have now mentioned: As First, Because the Subject Matter is different in the Form of the Peace, and Acts of Pardon, from that in the Writs of Expences the one being the Community Regni, and the other Communitas Comitatm only, called also in the Plural Number, (Jommunitatss Comitatuum; and then I grant when thus used, it always signifies the Commons in general. And there may be likewise a sufficient Reason given, why this great Change might have been made in the constituent Parts of our great Councils, and yet no change of Phrases or Expressions might be made in our Records and Statutes, nor any Notice taken ot it by our Historians-, which is, because the first Knights of Shires, being chosen out of, and by the Tenants in Capite only •, the Change was imperceiveable at first, there being still Men of the fame Order, appearing in Parliament, for the whole Body of those Tenants; the Difference being only in the Number, viz. Two, for a whole County \ whereas before, all the Chief Tenants inCapite came in Person. And I am :he more inclined to be of this Opinion, because in this Writ of Expences of the 49th of Henry III. (which you have now cited) there is no such Clause as is in the following Writs of like Nature,prout in casu consimili fieri confuevit; which (hews it to have been a new Thing for the Knights of Shires to have their Expences allowed them, that being the first Time of their Meeting in Parliament.

F. I confess what you lay is very plausible, were there any Colour of a Proof brought by you for it but I (hall shew you further, that your Distinction between the Communitas Regni, and the Communitas Comitatus, signifies nothing, unless you can prove that this Communitas Regni was not the Representative of the CommunitatesComitatuum mentioned in this Writ, and did not consist of Persons of the fame Degree or Order •, for the Writ of Summons of the 49th of Henry Ul. fays no more than that these Knights should be de legalioribusiZ pe1 ritioribusmilitibus comitatus, without limiting them to Tenants in Capite. But,

as for your Reason, why these great Alterations might be made in our great Councils or Parliaments, without any Notice taken of it, it is altogether precarious; for you have not yet, nor can, I believe, give me any sufficient Authority ( besides the Doctor's bare Assertion ) that ever none but Tenants in Capite were capable of being Elected Knights of Shires, or that none but such Tenants by Military Service were the Electors.

v\d. Dial. 6th. And I think I have sufficiently confuted the Vanity of that Assertion at our last Meeting, when I shewed you the false Interpretations you gave of those Statutes of the 7th of Henry IV. and 10th of Henry VI. whereby you would have proved, that there was some Alteration thereby made, as to the Electors of the Knights of Shires at the County Court: Whereas, indeed, before those Statutes, 1 all Persons of whatsoever Tenure, and of howsoever small an Estate of Freehold,

who owed Suit and Set vice to the County Court, were capable of being Electors, and consequently of chusing whom they pleased, as well Tenants in Capite, as others, to be Knights of the Shire; and that those who were not such Tenants were frequently chosen, in the Reigns of Edward the Third, and Richard the Second, I could bring sufficient Proofs, were it worth while to insist upon a Thing so certain.

But I shall go on to prove that the same Words, viz. Communitas le Commune, or la Communalte, were used in most of our Statutes and Records, to signify the Commons. I come therefore to the Reign of Edward the First, and I pray, in the first Place, remember, what I took Notice of at our last Meeting concerning the Statute ofWestminster the First, made in the Third Year of" See the old this King, beginning thus in trench, per Vajfentement des Arches ques, Eves-' French Sta- ques, Abbes, Priors, Counts, Barons, & tout la Communalty de laTerre, Illom/ues "lt"inToak-Summons. *

Now every one knows that Communalty is but French for the Latin Communitas, as appears by the first Writs we have left us ( except that of the 49th of Henry the Third, now mentioned ) de expensis Militum, being of the 28th of Rit. clan. this King, directed to the Sheriff of Somersetshire, to levy the Expences of the ^i^JQKnights for tha| County (who had served in the last Parliament) de Cvmm'12' °r°' fc' munitate



{343}

mun'itate Comitatus prxdiBi; i. e. of the Commons of the laid County in general. The si me Clause is also in the Writs which were then issued for the Ex- rti- 4** Par* pences of the Citizens and Burgesses who served in this Parliament; which were also to be levied de Communitate Ckvitatis vel Burgi, which sire must mean thegiae^"p!a. Commonalty, or Commons of all those Cities and Boroughs there mentioned $ for the Record is,Eadem modo fcribitur Majoribus, & Ballivis pro Burgensibus Subscript's: And which is also more remarkable, these Writs contain this Clause, that the said Knights and Burgesses should have their Expences allowed, proveniendo, manendo, redeundo a Parliamento pndiBo prout alias in Cafu confimiii fieri confuevit j which Words relating to a former Custom, not then newly began (as this Word confuevit in a legal Sense still imports) must needs relate to some Time much more ancient than the 49th of"Henry the Third, or the 18 th of this King $ the former of which was but 26, and the latter but 10 Years before this 28th of Edward the First; in which Time there was not above Thirty Parliaments called, if so many.

And further, that the Word Commonalty signified the Body of the Commons, and not Tenants in Capite in the Reign of this King, appears by the Statute 01 Ordinance (tho the Year is uncertain) entituled, ConfuetudinesCam'u, which you may see in trench in Tottles Collection the Title of them is thus, Ceux font les usages les queaxla Communahy de Kent Clayment avoir en Tenements de GaVel-Kind. Now every body who knows any thing otGavel-Kind, knows also it was generally a Soccage Tenure, there being but little of it held by Knight's Service, and consequently the Owners of such Lands who were then the greatest Part of that County, are here called laCommunalty de Kent.

So likewise in the Reign of Edward the Second, the lame Words are used in the sime Sense; as in the Statute of Pardon for the Death of fierce Gave- c^S/Jn fan made in the Seventh of this King •, which is granted per nous(i.e. the"' King himself) per Arehiefques, Evefques, Abbes, Priors, Counts, Barones, & la Commonalte de nofireRoiaume iUonques affembles.

So also in the Latin Records, as appears by an Act of Pardon granted by Parlia- Rot Farl ia< ment, in the 12th Year of this King: Consentient ibus Prœlatis, & Proeeribxs, & Ed. 2. m. if. Communitate Regnk So likewise the statute of Tork of the sime Year, writ in French, is recited to have been rmie per Assent des Prelates, Counts,Barons, & la Cm- Tottie's Sf*t. mune dat Royalme iUonques ajjemblez. Where you see that the Latin Word Com-p- 96munitas, and the French le Commune signify the sime Order of Men.

In the Reign of Edward the Third, I can give you many remarkable Examples of the sime Words in the Parliament Host. In the first of this King, Andrew de Hartford, a principal Citizen of London, was de AffenfuPralato- M- 8rum, Comitum^ & totius Communhatis Regni, pardoned all Homicides; which' was a Pardon by Act of Parliament. The very like Words are also used in the M. i?. sime Roll in the Act of Pardon granted to the City of London.

. I could Instance in many more, but I shalt only trouble you with orfe more in this King's Reign (it is so remarkable I cannot omit it) 6f the 54th of this King, and is to be found in the old Edition of Statutes printed inFrench; the Title begins thus, Ceux font les Chofes, queux nofire Seigneur le Roy, Prelats, Signeiers & laCommune ount orde'mes & efiables.

To conclude with the Reign of King Richard the Second, the like Expression M is found in the Parliament Roll of the 5 th of Richard the Second, where the '2" Statute begins thus: Per Commune jn-ofit du Royalme £Angieterre eient fdites per nojlre Seigneur le Roy, Prelats, Seigneurs, & k Commune de le Royalme esteames enceft Parliament. From the Titles to which Two last Statutes, I przy observe that the Word la Commune, is not only used for the Commons in the sime Sense as it was in the former King's Reigns -y but also that these Statutes were made by the joint Assents of the King, Lords and Commons. So likewise in the fame Roll are recited,Concordi<e, Jive Ordinationcs faftt de  . Communi Affenfu Regis Procerum, 65* Magnatum, 6? CommunitateRegnr Anglic j which I give you, to shew that the Words Community & le Commune, always signify the sime Thing in our Statutes and Records, viz. The Commons as now understood, different from your great Lords and Tenants ; and if they ate to be taken in this Sense after the i8th of Edward the First, I would be glad if you could sliew me any sufficient Reason, why they should not be so understood

dei stood all along before that Time, as well as in the 49th of Henry the Third only.

M. Tho' I grant that these Words you mention are to be understood for the Commons, as now taken, in many Records and Acts of Parliament, after the 18th of Edward the First ; (and therefore you need not to have taken the Pains to have gone beyond that Time) yet notwithstanding, I think I can prove to you by very good Authorities, that the Word Commjimtar, (which 1 grant is the lame Thing with le Commune in French) when put after the Words Comites iff harones, does not signify the Commons of England in general, bur the Community of the Tenants in Capite alone, or at least the Community of all Tenants by Military Service •, and that as low as the Reign of Edward the Hid. But for Proof of this, I pray peruse this Writ, which the Doctor hath B. G. p.32,35. given us in his Answer to Mr. P. Rex Archiepifcopk, Epifcopk, Abbatibus, R'lt.Pat. 30. I>ri0ribus, Comitibus,Baronibus, Mi lit ibus, & omnibus aim de Comitatu Cantine, ExLl.m.u Salutem. Sciatts quod cum primo dieJunij, Anno Regni nojiri decimo ottavo, Yrœlati, Comites, Bar ones, & eft er i Magnate 1 de Regno nojiroconcorditer, pro fe, £?' pro tot a Communitate ejujdem Regni, in pleno Rarhamento noffro, nobis concejferuntquadraginta Solidos, de fingulis Eeodtt Mi/it urn, in ditto Regno in  Auxilium, ad primvgenitam Filiam nojiramMaritandam, iff c. Cujus quidem Auxilij levationi faciend<e, pro dittx Communitate aifunento bujufquefuperfedimus gratiose, &c. By this Record it is clear, that such as paid Scutage, that is, Forty Shillings for a Knight's Fee, were then the tot a Regni Communitat, and no others : And of these the Tenants in Capite granted and paid it first for themselves and Tenants and then their Tenants in Military Service, by virtue of the King's Precept, paid it to them again for so many Fees as they held of them; so that this Tax being raised wholly upon Knights Fees, must be granted only by those that held by Knights-Service.

But further : That the Communaltc de Royaume, the Community of the Kingdom, as represented by the Tenantsin Capite, did still Ib continue as abo;re-menR0t.Fin. 2o. tion'd, till almost the Middle of King Edward the Third's Reign, is as clearly Ej'm. m. 7. proved by another Record of that King: Rex dileQk jidelibus fuk ViceSee itat targe, comiti Wigornit, Thorns Bottiler de Upton super Sabrinam, Militi; £?" Tbom.e B.G. p. 37. Q}[jy jeWycb, Salutem: Sciatts quod cum in pleno Parliamento nojiro apud Wejimonajierium, ad diem Euna proximopo]} f'ejium Kativitatk Beats Maria Virginis proximo prœteritum tento , Prttlati, Comites, Barones, & csteriMagnates de Regno nojiro Anglie, i$c. pro fe, (!? tot a Communitate ejufdem Regni, nob a concejjeruntquadraginta Solidos, de fmgulit Eeodis Militum, in ditto Regno Anglia, &c. So that the whole Community ofEngland, in this Record, were Milirary Men* liich as held Knights Fees, or Parts ot Knights Fees, and such as paid Scutage; and they were neither the ordinary Freemen or Freeholders, nor the Multitude or Rabble.

F. I pray, Sir, give me Leave to answer your Arguments from these Records as you put them , lest I forget what you have said. In the first place, as to this Record of" the 30th of Edward the First, which relates to a Tax given in the iSth Year of his Reign ; and recites an Aid of 40 s. upon every Knight's Fee through the whole Kingdom, to have been given by the Bishops, Earls, Barons, and other Magnates , (or Great Men of the Kingdom ) in full Parliament, for themselves and the whole Community, to Marry the Kings Daughter •, and which Subsidy he had deferred to Levy till now : And therefore, because this was a Tax granted only upon Knights Fees, that those only who pay'd this Scutage, were then the Communitar, or whole Body of the Kingdom 5 which is no Argument at all, since from this we may plainly collect the clean contrary. For if none had been to pay to this Tax, but those that held by Knights-Service in Capite, then the King would have had no need to have had it granted in Parliament since by the 14th Article of King John's Charter, he might have Taxed his Tenants inCapite for the Knighting of his Eldest Son, and the Marriage of his Eldest Daughter, without the Assent of the Common Council of the Kingdom : And according to your Hypothesis, and the Authorities you have brought to prove it, these Tenants in Capite might also, by the ljke Reason, have made their Tenants by Knight-Service have contributed to this Tax which yet you see they could not do without the Consent of

ParliaParliament : And therefore this Aid '(or Subsidy) being granted in Parliament; must needs extend to all the Lands in the whole Kingdom, as well those that held by Knight's-Service, as well as those that did not ; for it is not here (aid, as in the Writ to the Sheriff of Sussex, qui de nobis tenent iti Capite; and then the Words pro se, &tot a Communitat e Regni, cannot mean ( as you would have them) viz. That the Lords, and Tenants in Capite,had granted it for themselves, and the Community of their Tenants by Military Service only, who (fay you) represented the whole Community of the Kingdom; for then (as I have already observed) this needed not to have been granted in Parliament at all. For at this rate, no Tenants of those Abbeys and Monasteries, (which were a great many) who did not hold in Capite, would have paid any thing to this Tax; nor yet the King's Tenants, who did not hold in Capite, but of some Castle, or Honour: Nor lastly, any Tenants in Soccage, who were very numerous in Kent, as well as in other Counties (as Mr. Taylor proves in his History of Gavel-Kind.) So that if your Tenants in Capite, and other Under-Tenants by Military Service, had been then the Community of the whole Kingdom •, this Community had not consisted of above one Half, or at most a Third Part of the Kingdom.

But in my Sense of this Word Communitat, here will be no Difficulty at all j for these Magnates, mention'd in this Record, being taken (as I have proved they often are) for Knights of Shires, then these Words are thus to be understood; viz. That all the Parties mention'd in this Record, gave for themselves, and the whole Community of the Kingdom; consisting of all the Freeholders of England, who all contributed to the Marriage of the King's Daughter, according to their respective Estates. And tho' the Sense of this Word had been otherwise in this place, yet it would not have contradicted my Sense of the Word Communitat, which I do not lay always signifies theCommons, only when it comes immediately after the Words Comites & Barones; as it does not in this Record you have now cited.

M. But pray tell me how this could be ; since the Record fays exprefly, that this Aid was to be Raised by 46 s.upon every Knight's Fee •, which could only extend to Tenants by Knights-Service: Nor could this WordCommunitat here signify the Commons, as now understood •, since the Citizens and Burgesses are not at all mention'd, who (you know) do at this Day make up the greatest Part of the Representatives of the Commons ofEngland.

F. This proceeds from your not knowing, of else not c&nfidering, the Ancient Manner of reckoning Estates, ( and consequently of Taxing by Knights Fees) not only Lands held by Military, but Soccage-Tenure also j as appears by 24- »• iii. those Writs of the 24th and 26th of Henry the Third, as they are still up- JJ8^*j{j: on the Close-Rolls being both almost the fame, word for word, which lpartl\m/6 gave you at our last -Meeting •, yet since you may have forgot them, pray Ar/*' read them again. Rex Vicecomiti Northampton. Salutem : Frœcipimus tibi,quod Tit. de htilitiper tot am Ballivam tuam, in fingulk bonis Villis , & fimiliter in pleno Comi- b>u f<*ienil*< tatutuo, clamari fades, §>uod omnes illi de Comitatu tuo, qui tenent Feodum Militis integrum, vel etiam minus, quamFeodum integrum, dum tamen de Tenemento suo, tarn Militari quam de Soccagio, poffint fustentari ; C Militesnon sum , Jicut 'tenementa fua diligunt citra Fejium omnium SanBorum, Anno Regni Nostr. XXV. Ar ma capiant,& fe Milites fari jaciant.

Where you may note, that all Men, who held the Value of a Knight's Fee, either by Military, or Soccage-Tenure, were liable to be made Knights, provided they could maintain themselves of their Estates ; which could never have been, had not the Custom of Reckoning and Taxing Estates of all sorts, as well by Knights Service, as otherwise, according to the Value of so many Knights Fees, (that is, at 20 /. per Annum) been then commonly used. But as for your next Objection, that the Citizens and Burgesses are not mention'd in this Record, and so could not be comprehended under the Wotds Communitas Regni; this proves no more than that which will easily be granted you 5 that this Word Communitat, used in your Record, is there to be understood restrictively, and according to the Subject-Matter •, viz. the Community of Freeholders, or Land-Holders of the whole Kingdom only; since this Tax being wholly upon Lands, the Commons of Cities and Boroughs, then called CommunitiesGvitatum, & Burgorum, whose Estates lay in Money or Goods, could not be Taxed by Knights

Y y Fees -t

Fees-, nor, do I doubt but that if the Records of that Paliament of the 18th'of Edward I. were now extant (which are lost) it would appear, that they also contributed to this Tax, according to their Estates, as they did in the 34th Year of this King, to make the King's Eldest Son a Knight. And as for your other Record of the 20th ot Edwardthe Third, since it is but the lame in Effect: with this of the 30th ot Edward the First, the fame Answer will serve for both; only I cannot but observe, that whereas you have often asserted that this Word Communitas, did only signify the Community of Tenants in Capite, now you fall a Peg lower, and it must at last take in the whole Community of Tenants by Knights Service, whether in Capite, or not, who must certainly grant this Tax, by their Representatives, the Knights of Shires, who were present at this Parliament, as appears by the Writs of Summons;now if you grant (as indeed you must) that the Word Communitas now signifies such interior Military Tenants, as then served for Knights of Shires, why must not the fame Word signify the like Persons before the 18th ofEdward the First.

M. Well then, however, you grant that this Word Communitas does not always signify all the Commons ofEngland, as you supposed ■, but give me leave to urge further, that it must mean the Community os the Tenants in Military Service only: Prjy see this very Record of the 34th of Edward I. which Mr. P. has 172,173. given at large in his Appendix; which being long, I ihall trouble you with no more than what makes to our present Purpose, viz. That the King intending to make his Son, Prince Edward] a Knight, Summoned the Archbishops, Bishops, Abbots, Priors, Earls, Barons, and other great Men of the whole Kingdom, to appoint what Aid they would grant the King towards it; and then it follows thus, " That the Prelates, Earls, Barons, and others, as also the "Knights of Shires, being met, treating together with Deliberation upon this "Matter, considering that an Aid was due to make his Son a Knight, be"sides rhe Burthen that lay upon the King, by reason of the Scotch War, at "length they unanimously Domino Regni concejj'erunt, pro fe & totd Commtnitate Regni tricejjimam partemomnium Bonorum suorum tcmporalium mobilium, for making his Son a Knight, and towards his Expences of his War in Scotland. And then the Ctvcs (Sf Burgenfes Civitatum, . ac Burgorum, ac cxteri de Dominicis RegisCongregati, treating about the Premises, and considering the Burthens Lying upon the King (not mentioning any Aid for making his Son Knight, as not holding of the King by Knights-Fee, or Service, and therefore none of the Cotrjinumunity of the Kingdom) Domino Regi unanimiter ob caufas supra diUas concesserunt Vicefimam partembonorum suorum mobilium. Here the Prelates, Earls, Barons, and great Men, with the Knights of Shires, consulted together and gave for themselves, and the Community of the Kingdom, a Thirtieth Part of their Goods, and the Citizens, Burgesses, and Tenants of the King's Demesnes ( which were likewise none of the Community of the Kingdom ) gave a Twentieth Part j for if they had been of the Community, they had paid a Thirtieth Part a;, well as the rest 5 and therefore 'tis most certain that even at this Time, viz. the 5,4th ot Edward I. they were not raken to be part of the Community of the Kingdom, and that the Tenants in Capite, Serieanty, or at least the Military Men, arid Tenants in Military Service were only such. This I have cited, to shew you that Anciently the Citizens and Burgesses were not then reckoned as Part of the Community of the Kingdom, and therefore the WordsCommunitas, and le Commune, though put after, and distinct from Comites and Barones, did not then include allthe.Commons ot England, as you have very confidently asserted.

f. As to this Mi Record you have cited, I need give you no other Answer to it, than a like Writ of the of this King, which the DoSor himself hath rage 57. also given us in his Glojjary; which I shall here read you at Large, together wirh his Learned Comment upon it; it is for the Collecting of this Twentieth and Thirtieth Part granted in the Thirty Fourth you have now mentioned 1 the Writ runs thus, Mlitibus, liberis bominibus, & totiCommnnitati Comitatus Middlesex turn infra Libertates, quam extra , filutem: cum Archiepifcopi, Epifcopi,Abbates, Priores, Comites, Barones, Æi/ites, Libe/i Homines, ac Communitates Comitatuum Regni nojiri Tricesmam omnium Bonorum suorum tcmporalium mobilium, Civefque & Burgenfes, ac Communitates omniumCivitatum & Burgorum ejufdem Regni, neenon Tcnentes de Dominicis . nojirit Vicejfimum Bonorum suorummobilium, curialiter Concefserunt, & gratantur, 8ic.

And And lest we should Happen to mistake the Meaning of these Words, the Doctor himself has furhish'd us with this Learned Comment upon them, as follows in the fame Place. "It is said in this Record, that the Archbishops,B- °- P- 34'* Bishops, Earls, Barons, Abbots, Priors, Knights and Freemen, and Com"munities of Counties, gave a Thirtieth Part of their Goods, as if they had "been all Members, and fat in this Parliament. And so it is said of the Cities "and Burghs, that the Citizens, Burgesses, and the Communities of the Cities "and Burghs gave a Twentieth Pan of their Moveables, as if they had been all "there. But these Words signify • no more, than that the Knights and Freemen '* gave by their Representatives, and that the Communities of Counties, Claus. 34 Ed. 1 **and the Citizens and Burgesses, and Communities of Cities and Burghs, "gave by their Representatives, as is most clear from the Writ of "Expences for the Knights of Lincolnshire, and so consequently for the rest.' Now I desire you would tell me, whether there can be a plainer Record against the Doctor's Opinion than this \ for in the first place, who were these Knights, Freemen, and Commons, who granted this 26th and 30th Part of their Moveables in the 34th Year of this King; but the Knights, Citizens and Burgesses, the Lawful Representatives of the whole Kingdom in General, as well those who held in Capite, or else by inferior Military Service, as those that held by any other Tenure? Or who were these Representatives, but Men chosen out of all Sorts, as well those that held by Knights Service, as those that did not •, unless you can prove ( as you have not done hitherto) that all the Cities arid Boroughs in England held of the King in Capite; and that none but Tenants in Capite, or Military Service at least, were chosen either for Counties or Cities: And though I find your Doctor has an utter Aversion to the Word Commons, and therefore will needs translate the Word Communitates, by Communities, and not Commons; yet if you were to render these Words, the Commons of the Counties, Cities and Boroughs, into our Law-Lrt//», I desire to know what other Words you could make use of, but these in this Record, -viz. Communitates Comitatuum,Qvitatum C Burgorum? So that to conclude, if in the 28th, 34th and 3$|th of Edward the First, all the Commons gave by the fame Representatives as they do now, I can see no Reason why they might not do so too, Thitty or Forty (nay Threescore) Years before that Time-, and pray take Notice also, that here the Tenants in AncientDemesne gave likewise by themselves, and could not be charged by the Knights of Shires. And therefore, as Mr.Lambard in his Archeon very well observes, this Prescription of not being chargeable with the rest of the County, must be very Ancient, since there was no Land at that Time reckon'd as Ancient Demesne, which had not belong'd to the Crown before the making of Doomsday-Book. And if granting an Aid to the King separately from the rest of the Kingdom, were sufficient to constitute the Grantors a distinct Estate, then the Tenants in Ancient Demesnewere no Part of the Commons of the Kingdom by the fame Rule.

M. I must confess, what you have now said concerning the constant Use of the Words Communitas, and leCommune (coming after Comites and Bar ones) to express the Commons in Parliament in our Statutes and Records, would weigh much with me, had I not good Reason to believe there were no such Thing as Commons in Parliament, in the Sense now taken, before the 49th of Henry the Third-, and from which Time I suppose it was discontinued till the 18th of Edward the First •, for which I can give you very good Proofs: But in the mean time pray shew me by any Record, or Statute, that there were any Knights, Citizens and Burgesses Summoned to Parliament till the Times I allow. For in the first Place, you cannot shew me any Mention of Commons in the Plural Number, in any old Statute before Edward the First's Time; and as for the Words Communitas and leCommune, which I grant was often used to express the Commons after that Time, your self own they are equivocal and therefore when put after the Earls and Barons in the Instances you have given, may signify the Community of the smaller Tenants in Capite, which were the only Representatives of the Commons that appeared in Parliament in those Days 5 and I am the more inclined to be of this Opinion, because I have searched the old Statutes very exactly, and cannot find any Mention of the Word Commons in the Plural, much less of Knights, Citizens, or Burgesses, till the Statute of the 34th of Edward the First, dc Tallagio nan conceden



{348}

do, (made in the 34th of Edward I.) wherein I grant they are expresty mentioned: And as for Writs of Summons, you can produce none till the 23d of this King, to Summon them to Parliament •, though I (hall shew by and by, that the Doctor has found out one of the 18th of Edward the First; whereby he proves they were then Summoned, after about Twenty fix Years Discontinuance: Therefore, pray shew me if you can by any sufficient Proofs that they were there in Henry the Third's Reign, or in Edward the First's, till the 18/&.

F. I confess, your Doctor has not only exceeded all other Men, but himself too in this rare Discovery: For whereas in his First Edition of his Answer to Mr. Tetyss Book, he was content to follow Sir William Dugda/e,and make the Commons to have been First Summoned to Parliament in the 49th of Henry the Third and to have commenced with Montford's Rebellion, and so to have still continued on. Now the Doctor, upon Second Thoughts, in his Edition in Folio, will have them never to be Summoned any more than that once; because, forsooth, he cannot find them mentioned in such express Words, as that he cannot evade them, by saying the Sense is Equivocal. And if the Commons not being exprelly mentioned in our Statutes, were a sufficient Reason to prove them not to have been there; were the Writs of Summons lost, as well after as they are before the 23d ofEdward the First ^ you might as well have faced us down, that there were none in all that Time, till the Statute deTaUagio non concedendo, you now mentioned. And for Proof of this, pray fee the Statute called Articuli superCbarta*, made in the 28th of this King; which is said to be made and granted by the King, at the Request of the Prelates, Earls, and Barons, who are only mentioned in this Statute; and yet certainly the Commons were then at this Parliament, as appears by the Writs of Summons and Expences but now mentioned •, and sure their Assents were given to it, as well as the Bishops, and Lords. I could shew you the like in many other Statutes of this King •, nor are the Words Communitat, or Commonalty ever mentioned above Twice in all the Statutes of this King's Reign, viz. in that of Westminster the First, and that against bearing of" Arms: neither is the Word Commons to be found above once or twice in all the Statutes of Edward the Second. For in the Statutes made at Lincoln, in the 9th of this King, 'tis said to be done by the King, the Counts, Barons, and other Grands of the Kingdom. Now if these general Words did comprehend the Commons in those Times, you grant they were constanly Summoned to Parliament: I desire you would give me any good Reason why the same general Words may not as well comprehend them long before > And if the bare Omission of the distinct Orders or States of Men that gave their Assents to the making of any Statute, and the different penning of Acts of Parliament, were a sufficient Reason to prove they had no Hand in it; I doubt two Parts in Three of the old Statutes of Henry the Third, and Edward the First, would have been made without the Consents, either of the Bishops or Lordssince in most of them there is no mention made of either: And that * what I fay is true, pray at your leisure peruse these Statutes following, vis.de Distrittione Scacarij of the 51st of Henry the Third, with other Statutes made in the latter End of that King's Reign, as also that of AS on Burnel made in the nth of Edward the First that of Winchester made in the 13th of this King} that of Merchants in the fame Year: As also those of Circumspefte agatts, and ^uoWarranto-, and see if you can find any mention, either of the Lords or Commons in them.

But to come to direct Proofs: Tho' I grant the Words Knights, Citizens, and Burgesses were not exprefly mentionad in our old Statutes yet I shall prove to you by other Words of a much more Comprehensive Signification, that they appeared in Parliament in the very Beginning of Henry the Third's Reign. For this we need go no farther than the Old Manuscripts, as well as Printed Copies of Magna Cbarta; which was first Granted in the Second Year, and again confirmed in the 9th of Henry the Third, both which conclude thus: Pro hac autemDonatione C Concejfione, Archiepiscopi, Episcopi, Abbates, Briores, Comites, Barones, Milites, libere Tenentes,a omnes de Regno nostro dede

[graphic]

I

Abbots, Priors, Earls, Barons, for themselves and the inferior Orders, vis. the Knights and Freeholders, and all others of the Kingdom by their Lawful Representatives, gave this 15 th of their Moveables, at both those Parliaments , in which this Charter was first made, and afterwards confirmed.

M. I confess this Authority looks very plausible at first; but if it be strictly looked into, I believe it will prove nothing at all: for as to your Interpretation of these Words, I do not allow it, for Reasons I shall shew you by and by. But in the first place give me leave to dispute the Antiquity of this Charter, which I do not take to be so Ancient as you make it; for tho' I grant there was such a Charter made in the 2d, and again confirmed in the 9th of Henry the Third yet you have already had my Thoughts of this Charter, which you suppose to be Henry the Third's, viz. that this which we now have is not properly his, but his Son Edward the First's; since it concludes thus: His testihti Bonifacio Cantuar'senfis Archiepifcopo, E. Londinenfi Episcopo, &c. AnnoRegni nostri (fcil.Henrici 3.) nono; whereas this Boniface here mentioned, was not * Archbishop of Canterbury before the 27Henry the Third, nor was there any one whose Name began with E. Bishop of London, during the Time thatBoniface held the See of Canterbury.

F. I am very glad you have made these Objections against the Validity of this Charter: For if I can prove to you, that what you have now urged from your Friend the Doctor, is a meer Cavil against the Charter it self, I think you nave Reason • to be my Convert. In the first place, I therefore freely grant that the Original of this Charter is not to be found among the Statute Rolls in the Totter, where there is nothing left of it on Record, except a Confirmation of it by a Charter of Infpeximus of Edward the First, (the Conclusion of which is as you have now given) and I think there cannot be a greater Proof of the careless keeping, or Embezzlement of the Ancient Statutes and Records of the Kingdom, than the Loss of this great Charter, which certainly must have been enrolled at the Time when it was made •, as well as every common Grant made by the King to ordinary Persons of Markets and Fairs since we find Copies of it still Extant in the Ancient Annals of divers Monasteries, where the Originals of it were formerly kept-, as in particular, in the Annals of the Abbey of Burton, published in the first Volume of Ancient English Writers, Annals Bm. lately Printed at Oxford, which fully answers your Objection for instead d£P*t- *7i« & Boniface, it is there Witnessed by 5. Archepis. Cant. i. e. Stephen Langton, who was then Archbishop of Canterbury near 20 Years before Boniface: there is also an, Gfc. after the Name of this Archbishop. And the same Charter is likewise recited Word for Word with the former $ and hath the fame Conclusion concerning the granting of this 15th, by all the Parties above-mentioned, in the Chronicle of WalterHemingford, published by the Learned Dr. Gale, in his 2d Volume of English Historians, only it hath no_Witnesses Names at the end, Printed ** but the King himself, Tefie meipso. And farther, both agree in all Things mate- °xon' l6%1' rial with four Ancient Manuscript Co pies of this Charter, of the 2d of Henry the Third, when he was in Minority, one of which is in the Cottonian Library -t a 2d was lately in Possession of Sam.Baldwin, Serjeant at Law; a Third is in the Hands of John Cooke, Esq-, chief Prothonotary of the Court ofCommon Plea/; and a 4th is at this present with Mr. Petyt of the Inner-Temple, which I my self have seen.

But to put this out of all doubt, there is still Extant a fair Original of this Charter of Confirmation of the 9th ofHenry the Third, (when he was of foil Age) under the Great Seal of this King (which is supposed to have belonged to Bat tail Abbey) and is now to be seen in the Hands of Sir Nathaniel Pome I, Bencher of the Inner-Temple, who is so civil as to communicate it to all who have the Curiosity to see so great a Rarity •, so that, tho' it is not to be denied, but that the Charter published by Sir Edward Cooke in his 2d Institutes, is properly the Charter of Confirmation of Edward the First; since Boniface was at that Time Archbishop of Canterbury, and sulkBishop of London, (E. being -by mistake put for F.) yet I think no Man has any Cause to doubt whether that Clause we dispute about, be not in the Copies of this Charter, as well as in this of Edward the First. • • .'

XL Well,

M. Well, admitting this Charter to be as ancient as you please, yet let me tell you, if your Sense be, that the Words at the End of this Charter, B. A. P. viz. orhnes &e Regno, those who gave or granred this Subsidy, were Memp. 125,126. bcrs or that Parliament ; if you will understand it so, and according to the literals Meaning of the Words, then cmnes de Regno, as well those that had Estates in Land, as those that had not, all Copy-holders, allTradesmen, all Bondmen and Villains (of which there were great Store in those Days) and all Servants wete there present as Members of Parliament. And so then I would willingly understand where all these People should meet, how their Councils lhould be managed, and how it is possible in such Meetings (if any such there can be) to prevent the greatest Confusion imaginable. The Meaning then of the Words must be, that the Archbishops, Bishops, Abbots, Earls, Barons, Knights, Free Tenants, and all of the Kingdom, or all the King's SubjectsDederunt, that is,, paid a Fifteenth Part of their Moveables to the King, for 'his granting these Charters not that they themselves gave or granted this Subsidy. And 'tis reasonable to conclude, that all the King's Subjects paid the Fifteenth Part; because one way or other, little or much, they enjoyed the Benefit of them. I take this to be the Genuine Sense of the Words, but Mat. Tarts, whom you now quoted, makes it very apparent, who were the constituent'Parts of this Parliament h for if you please to observe, the Men to whom the Chief Justice proposed this Fifteenth, and those who consulted about the King's Demands, and those that returned an Answer to them ;and also granted the Fifteenth Part of the Moveables, as well of the Ecclefiasticks, as Laicks of the whole Kingdom, were only the Archbishops, Bishops, Earls, Barons, Abbots Priors •, and therefore they were the only constituent Parts of' this Parliament as they were also of the Parliament, or great Council held at Merton, in'the Twentieth Year of this King's Reign; Whither fays Mat. Paris, Consummato cum gaudio Nuptiasi convivio Rexrecedens a Londonijs venit Meretonam, ut ibi revocati Magnates una cum Rege de Regni Negotijs contraBarent. _

F. I think I can as easily answer this small Objection against our meaning of these Words at the End of this Charter. Do I affirm that these Words are to be taken literally, or the contrary > Therefore you do ill to put a Sense upon me, which I do not allow of. But pray tell who ever was so mad as to believe that these Words are to be understood literally ? Or that all those Persons who you here give us a Bed-Roil of, could all appear in Parliament in Person, or had all Votes at the Election of Parliament Men; and yet for all that, this Cause is true in a legal, tho' not in a literal Sense, that all the Freemen of the Kingdom granted this 15 th, viz. That the Prelates and Temporal Lords in their proper Persons, and all the rest of the Kingdom by their respective Representatives, granted this Fifteenth. 1 hope it is a good Rule in your Civil, as well as our Common Law, that he who gives, or grants any Thing by his sufficient Proxy or Representative, is said to perform it by himelf j and in this Sense, all the Men in the Kingdom gave, or granred a Fifteenth for the Confirmation of this Charter and so at this Day, it may be said in a legal Sense, that all the Men of the Kingdom do join in granting the King a Tax by their Representatives in Parliament, tho' none but such as are Freeholders of 40 s. a Year, can have Votes at the Election of Knights of the Shire, nor any but the Aldermen of divers Cities and Towns, and the Freemen of Corporations, and the Scot and Lot Men of Boroughs, who have any Votes at the Election of Citizens or Burgesses.

And that your Doctor himself, tho' he hath misled you in the Sense of this Word Dederunt, yet can grant this to be a reasonable Interpretation of this Clause, when he is in a good Humour.; pray remember his Comment upon the Record of the 34th of Edward the First, which I gave you but now ; wherein, after the Bar ones it follows, that Milites Uberi Homines & Communitates Commitatuum dederunt, granted a 30th Part of their Moveables, and the Comunitates Qvitatum & Burgorum a 20th;; " Whereupon he tells you, "these Words are so expressed as if they had been there all in Person; hut "these Words signify no more, than that the Knights and Freemen gave by41 their Representatives, and that the Communities of Counties, and these Citizens "tlzens and Boroughs gave by their Representatives". And why these Milites Libert Homines, C omnes de Regno, might not do it as well in the lame Sense, in the beginning of the Reign of Henry the Third, when this Charter was granted and confirmed, I should be glad is you could give me a sufficient Reason. Sq that I shall refer it to your own Ingenuity, to consider, when the Charter says expresly, that all the Persons therein mentioned gave% Fifteenth, whether it be not a manifest wresting of the Grammatical Signification of this Word Dederunt, to render it they paid •, for at this rate a Man may make Words signify just what he pleases. But our ancient English Historians are the best Judges in this Case. For the Annals of Waverly-Abbey published in the fame Volume I last mentioned, under the Year 1225, having given us a ihort Account of the granting these Charters, 9th of Henry the Third, recite the Conclusion of the great Charter in the same Words as they are in the Charter it self 5 only before Dederunt there is also added the Word Concejjerunt, which shews that the Author of this Part of those Annals, who might very well write at the fame Time, or presently after the Charter was granted, by his Paraphrase of Conctjferunt, seemed to intend to prevent any such Mistake in the Signification of the Word Dederunt. And that this was the constant Opinion of all Historians and Antiquaries to this Day, I will shew you from Henry de Kn'ghton, who lived within 100 Years after this Charter v\i. Script*was granted, and in his History hath this Passage in this Year, vis. 9th ofHenry Cot. 24*9. the Third $ Post h<ec Rex Henricus concestt Magnatibus terra duas Chartas imam de Foresta,£7 aliam de Libertatibus ob quant caufam Communes Regni concefserunt 15 Part em mobilium, C in mobilium.From whence it appears plainly that at the Time when this Author writ, it was generally believed that the Commons (called Milites iS> Libert Tenentes in this Charter) granted this 15th. of all their Goods.

I shall conclude with a modern Authority of a Person, who you will own to be a Man of great Judgment and Learning, viz. Sir Henry Spelman, who in his Discourse of Magna Chart a, inserted in his Glossary, hath this remarkable Passage, Demum Anno 9. Regis Henrici concedente Clero, iff Populo cum p 6. MagnatibusQuintodecimam partem omnium rerum mobilium tot'tus Regni Angst* j 37' renovantur Chart £ Libertatum, proutJub Rege Johanne prius trunt condita, where it is plain, that by Populus he meant the Commons as distinct from the Lords and Clergy. As for what you fay farther, whereby you would set up the Authority of Mat. Paris against the express Words of the Charter it self, I suppose you or the Doctor from whom you borrowed this Notion, are the first who interpret ancient Statutes and Records, according 'to the general Words of Historians : Whereas I always thought till now, that the Sense of the Historians ought to have been understood by Records, and not viceversa. $ since the former differ one from another in the Manner of Expression of the , constituent Parts of our great Councils or Parliament, and for brevity sake, express themselves in as few Words as they can.

But notwithstanding the Conciseness of those Expressions which we find in Mat. Park, and other ancient Authors yet I think even in this Place now cited, there are Words enough to prove there were other Lay-Persons at this Council, besides Earls and Barons there mentioned ; or else, what is the meaning of these Words aliisUniverfis immediately after Baronibus, to whom Hubert de Burgh proposed the King's Demands, and who also gave their Answer to them? And if these Gendemen were not Barons, as certainly they were not (or else to what Purpose was this Distinction made) then they were meer Commoners •, and so we find there were Commons in Parliament, from the Authority of Mat. Parts, that before the 49th of Henry the Third; which is likewise proved by the Statute of Men on (which I have lately cited) in the Conclusion of its Preface, which runs thus, Itaprovifumfuit, & concejsumtam h predittis Archiepiscopps, Episcopts, Comitibus, Baronibus, quam ab ipfo Rege,& Alijs. Now pray tell me who these C Alij were, if not the Commons, for you did not answer this Question when 1 last mentioned this Statute.

M. I shall tell you my Thoughts of these Alij by and by, when I come to these Words omnes de Regno; but in the mean Time, give me leave to give you the Doctor's Interpretation of this Word Milites put here after




Barones, which Milites were not Knights of Shires (as you suppose) bur Tenants in Capite by Military Service •, as appears by the Assize or Statute of Richard the First, quoted by R. Hovenden in his History, which is said to have been made, per AJJ'cnfum iff Confilium Archiepiscoporum, iff Episcoporutn,Abbatum, Comitum iff Baronum, iff Militum. Now these Milites were often! ttileawarons, and theBarons, Milites. Nam Miles (faith Sir Henry Spelman) quern Baronem vocabant non a Militari Cingulo(quo Equites creabantur) Jed a Militari Feodo, quo alia/ post'effor if? liberi Tenens, nuncupatus est,nomen sump/it, that is, such as had Lands given them for, or such as held Lands by Military Service, and did Homage and Fealty to those of whom they held their Lands; and in this Sense, Mat. Parti calls all the Temporal Nobility Milites, when in the Parliament 37 of Henry the Third, he lays, a MilitibusConcejsum est Scutagiutn illo Anno ad Scutum tres Marcx.

F. I think your Interpretation of the Word Milites is forced, and quite contrary to the true meaning of this Charter: Now pray (hew me the Consequence, that because the Barons were anciently stiled Milites,that therefore your Tenants in Qtpite were then stiled Barones too; which is not true, and quite contrary to this Charter it self, where these Milites (whoever they were) are put after the Barones, as a distinct Order of Men from them; whereas if the Terms had been then reciprocal, the Words Barones, or Milites(chuse which you please) would have comprehended both; but indeed this Title of Miles was then of a much larger Signification, and took in all Knights of whatsoever Tenancy, whether by Military Service or Soccage •, as appears by those Writs of the 25th and 26th of Henry the Third, which I have already cited; whereby those that held Estates sufficient to maintain themselves de Tenemento fuo tarn militari,quam Soccagio, were alike Summoned in to take the Order of Knighthood and when Knighted, were certainly as good Milites as the best of your Tenants in Qipite ; and so might very well be reckon'd amongst the Milites in this Charter. But pray tell me what fay you to these following Words, UberiTenentes iff omnes de Regno? ,

M. These will likewise bear a like Interpretation; for by these Uberi Tenentes, that immediately follow in this Charter after Milites, I suppose were meant no other than the lesser Tenants in Capite, who having scanty Knights Fees, or part.of Knights Fees, desired not Knighthood, or had compounded, or fined for it, that they might not be made Knights, and who not being actual Knights, are here called Free Tenants or Freeholders, as I have already told you at our last Meeting.

F. Pray give me leave to answer this Interpretation of the Word Libert Tenentes, before we proceed farther. You may remember that I have answered all your Authorities, whereby you would prove that the Tenants inCapite were at this Time the only proper Freeholders of the Kingdom; since I then proved to you from Sir HenrySpelman's Gloffary, that any Freeman having an Estate of Inheritance, was as much the Liberi Tenens, a Freeholder, as the best Tenant in Capite in England. Indeed if the Words had been Milites iff liberi Tenentes, quide Rege tenuerunt in Capite, you had said somewhat ; but otherwise it is all meer Supposition, without any Ground. But pray go on to the last Words in this Charter, iff omnes de Regno nostro; what can they mean, but that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representatives?

M. If you do not like our Sense of these Words, Milites and Liberi Tenentes; I cannot help it, nor (hall I dispute them longer with you; but as for this last Clause in the Charter, iff omnes de Regno, it only means, all those who were Tenants in Capite in general in the lame Sense; as when our, Ancient Historians mention Regnum iffSacerdotium, by Regnum is to be understood both the Temporal and Spiritual Barons, great and small •, the King's Justices, or a iv other that exercised any share or Ministerial part of the Government; as p^ :ups all those did one way or other, by coming to our Great Councils or Parliaments, isle, all which is evident from the Words of the Quadripartite History, concerning Tbomat Becket, thus, Rex apud Clarendum, Regnum convocatuniversum. ^uo cum venijfent Prxsules, iff Proceres, Uc. i., e. the whole Baronage called together by the King's Writ, or a full Meeting of the Spiritual



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ritual and Temporal Barons, both great and small. I pray allo remember fhal Callage you your self made use of but now, out of Matt. Paris, whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite -, because that after the Curia held ax. Christmas, the King immediately issued out his Writs' commanding omnibus ad Regnum fpeQantibus, to appear at 'London; and yejt you see there are no more mentioned to be Summoned than the Archbishops, Bishops, Abbots, Priors, Earls and Barons. So that we may hence learn the true Meaning of these Words, omnes de B. O. p. dj. Regno spe&antes, inMatt. Paris, the Regnum, or Government, the Communitas Regni, the totalis Regni unroersitas, the infinitanobilium multitudo; and also gives us the Meaning ot those Words, omnes alii de Regno, in the Close Roll of the 19th of Henry the Third, to the Sheriff of Somerset/hire, Scias quod Comites M.6. Dor. hf Barones, £?' omnesa/p' de toto Regno nostro, &c. Conceffcrunt, &c. Which are further explained by a Writ in the fame Roll about the fame Business, directed to the Sheriff of Sussex (which you have likewise cited) beginning thus, Sciatismd.M.9. quod Archiepi/copi, Episcopi, Abbates, Priores, Comites, Bar ones, & omnes Alij de Regno nostroAngliae, qui de nobis lenent in Capite nobis concejjerunt, &c. Here rhe omnes alij de Regno, were the omnes quide nobis Tenent in Capite •, which were then all the Regnum, or Communitas Regni. So likewise it may be farther proved from a Record of the 48th of Henry the Third, Rex omnibus, 8cc. cum Rot. Pah N. j venerabiles Patres,G. E. Eborum Archiepiscopus, &c. & alij Prœlati, Magnates, Milites, liberi Tenentes, (If omnes alij de Regnonobis nuper in Articulo neccjjitatis fervitium fecerunt, subsidium, 8tc. And I may also put you in mind of the Writ I cited but now, directed Archiepiscopis, Epifcopis, 8tc. Comitibus, Baronibus, Militibus, & omnibus aliis deComitatu Kancite, 8tc. for the Levying of Forty Shillings upon every Knights Fee in that County. Now this Writ could not be directed to all the Men in Kent, but to all such as paid Scutage ; for not a Fortieth Part of them were Tenants in Capite, or Military Service. So that these omnes alij de Regno, and omnes alij Comitatus, were the fame one with the other, and otherwise it could not be: For by omnes de Regno, or omnes alij de Regno, the Inhabitants in general could not be understood, for they never were Summoned, no not the Hundredth Part of them, to meet in Great Councils; for 'twas impossible they should; and perhaps not above a Fourth Part of the Kingdom paid to this Fifteenth, if we consider how many Servants, Villains, Bondmen, and many such People there were then in the Nation that paid nothing.

F. You have taken a great deal of Pains to perplex and darken Words in themselves very clear and perspicuous; for methinks it is a strange piece of Confidence in your Doctor, when the Charter fays expressly, That Omnes deRegno, all the Freemen of the Kingdom gave this 15th, to restrain this Act only to the Tenants in Ctpite, who were but a few in Comparison to the whole Kingdom •, this is indeed to make Words signify any Thing he fancies.

But to answer your Authorities, which are founded all upon false Suppositions, without any Proof. As to your Authority from the Quadrilogus History of Thoma* Becket; it is true, that the Prajules and Proceres are there called Regnum, the Kingdom ; but I have already proved at our last Meeting, that this Word Proceres was of so comprehensive a Signification, that it took in all the Principal Men of the Kingdom, as well those that were Lords, as those that were not; so that the chief Citizens and Magistrates of our Cities and great Towns, are often stiled Proceres iff Magnates Qvitatum, in our Ancient Historians and Records and certainly the great Freeholders, or Knights of Shires did much more justly deserve that Title.

. As for the other Passage out of Mat. Paris, where the Bishops, Abbots, Earls and Barons, are called omnes adRegnum speRantes •, this is but a general way of Expression in this Author, and proves nothing: For either the Word Barones, takes in all the smaller Tenants in Capite, or it does not; if the latter, then this Author does not exactly recite all the Orders of Men, whom your self must acknowledge to have appeared there •, since the great Barons alone could never make this infinita hobilium multitudo mentioned in this Author; if the former, then it is plain, that he thereby comprehended more than those who were




really Barons. Since it is certain that the smaller Tenants in Capite were not really lb, and consequently were meer Commoners, as I have told you more than once. And then make the molt of this Word Barones, it may in a large, and common Acceptation, take in all the chief Freeholders, or Lords of Mannors which (as I have already proved) were often called Barons in our Ancient Historians, and Laws of the first Norman Kings •, and Mr.Cambden tells us, that under the Word Baronagium, omnes Regni ordines continarentur. This I supposing that by this insinita Nobilium muhitudo, is to be understood, all the chief Gentry, or Freeholders of England, called oftenNobilitar Angh<et as I have already made out, and which may also take in the Representatives of Cities and Towns j but if we should suppose, that by the Bar ones here mentioned, are to be understood only the Tenants inCaphe; yet, since they, together with the great Lords, made the chiefest Figure in the Government -, it was easy for this Author to overflip the particular Mention of others, it being enough to comprehend them with the Representatives of the rest of the Kingdom, under the general Phrase of Insinita Nobilium muhitudo: As I have already'said, the Conciseness of Historians, was to be explained by our Statutes and Records, and not that their express Words should be interpreted by the obscure or general Phrases and Expressions of Historians; and if byomnes de Regno, are to be understood all the Tenants in Caphe in general; how could this be without a notorious Tautology? Since if it be as you fay, that the Bishops, Abbots, Earls and Barons, comprehended all the greater Nobility, and the Milites & liberi Tenentes, all the lesser, or Tenants in Capite, (who'made then the whole Kingdom) if so, what can these Words omnes de Regno here signify, but so many idle Words without any Sense or Meaning?

But it will be now more easy to answer your false Interpretation of these Words, omnes Alij de Regno, which you will needs have to signify only the Tenants in Capite; and it will be no hard Matter to shew you the Doctor's Prevarications on these Words •, for as to the first Writ directed to the Sheriff of Somersetshire, though I confess the Words at the beginning of the Writ, are omnes alij de toto Regno nofiro; yet the Doctor has in his Glossarypurposely concealed the Words that follow, which plainly restrain them to Tenants in Capite, and their Under-Tenants by Military Service. But if you please but to turn to the Writ which he has given us at large in hisAppendix, Numb. 14. you will find, first, that this Writ recites, that the Earls, Barons, and omnes Alij de Regno,had granted the King an Aid of Two Marks on every Knights-Fee, qua de nobh Tenent in Capite. Secondly, That at the Command of the Earls, Barons, and all others that held in Caphe, the Sheriff should distrain omnes milites& liberi tenentes qui de ek tenent per servitium militare, who were likewise to pay the King the like Sum of TwoMarks for every Knights-Fee; ■so that you may here plainly see, that this could be no general Tax granted by the whole Kingdom, since none but Tenants in Caphe, and their Under-Tenants by Knights Service, were chargeable with it; which, if given with their Consents, must have been done in full Parliament, and in which they had Representatives of their own chusing; and if without their Consents, was directly contrary to Law.

But you need go no farther than this Writ you have now cited, to prove that the Milites & liberi tenentes, were not at this Time only Tenants in Caphe, as you suppose, but their Feudatory Tenants also5 as appears by the express Words of this Writ, which orders and directs the Sheriff to distrain omnes 'Milites, & liberi Tenentes quide eis tenent per servitium Militare. But as for the other Writ to the Sheriff of Sussex, which (as you lay truly) relates to the former, to the Sheriff of Somersetshire-, it sufficiently interprets those general Words, omnes alij deRegno, and exprelly restrains them to omnes alij qui de nobii tenent in Capite, who in a Council of themselves alone, granted this Tax for themselves only, as I have already proved \ which, whether it was according to Law or not, we shall enquire by and by.

But in the mean Time, give me leave to answer your next Record, of th? 48th of Henry III. which recites an extraordinary Service and Aid done by the Prelati, Magnates, liberi Tenentes, Of omnes alij de Regno: Now that this was not a Service performed, or an Aid given by the Tenants in Capite only for



the whole Kingdom, the Word Subfidium in the Writ may teach you, which was never granted otherwise than by the whole Kingdom in Parliament. But let us first consider the Substance of this Record, which is indeed but the King's Declaration of a Right to all his Subjects in general, or the Freemen of the whole Kingdom, that what they had lately performed in Articulo neceffitatis prœdittœ, nonstbi ceiat in prœjudicium, nec ad poster urn trahatur inconsuetudinem, vel consequent iam nec ad hujus modiservitium compellentur; which being the Effect of this Record, now lee the Cause why it was granted, which you may find in another 9' dor'"'m Record of the lame Year, and on the Roll, and to which this Record you cited relates, which is a general Summons directed, Arcbiepiscopis,Epifcopis, Abbatibus, Comitibus, Baronibus, Vice-comitibus, Æilitibus, libers Hominibus, & universeCommunitati Comitatus Lincolntœ, commanding them all, even the Citizens and Townsmen, immediately to appear with such Arms as are there expressed (and were proper for each Man's Estate and Condition) for the common Defence of the Kingdom, against Strangers then ready to invade it; and this Record alfo lays, eodemmodo scribitur cxteris Vice-comitibus Anglia. Now since it appears by this Writ of Summons, by which this Service and Aid was performed, that not only the Tenants in Capite, but all the Subjects of the whole Kingdom, were engaged in the Performance of it; can any body, but one who will take Things by halves, suppose that by these omnes alij de Regno there mentioned, ( and who must certainly be the lame Parties intended in the Doctor's own Record, viz. all the Freemen of the Kingdom) could be meant no more than the Lesser Tenants in Capite,taken altogether, when they had been ( according to our Sense ) all particularly named before?'

But that by these omnes de Regno, cannot be here meant only the Tenants Rot-CL 2in Capite, but all the Freemen of the whole Kingdom, I shall prove by another Mm' dor^ Record of the 16th of Henry III. and is the very Writ I gave you before, wherein at is recited, that the Villani, together with the rest of the Liberi Homines, had given a Thirtieth Part of their Moveables; in Consideration of which, this Writ concludes thus, Concejjimm et iamArchiepijcopis, Epifcopis, Abbatibus, Rrioribus, Comitibtts, Baronibus, & vobis omnibus Aliis de Regno nostro,quod tarn Cbarta nostra, de Foresta, quam alia Chart a nostra de Libertat i bus, quas eh, 6? vobh fieri fecimus deaetero in omnibus teneantur; so that it plainly appears, that by these Words in this Record, omnibus Aliis deRegno, must be understood all the Freemen of the Kingdom in general, unless you will allow none to have had any (hare in these Charters, or to have received any Benefit by them, but the Doctor's Tenants in Capite alone •, which sure you will not affirm.

But lest I tire you as well as my self, in dwelling so long upon Things so plain and obvious, were not they by too much Artifice rendred obscure, I come at last to the Conclusion of your Discourse, which is no more than a Repetition of what you had said at first; that because all the Kingdom could not be summoned to appear in Parliament, and that Villains and Servants, (!fc. never paid to this Tax^ that therefore the Words omnes de Regnoare not to be, understood literally •, (a doughty Discovery) and therefore you have found an Expedient to help this Contradiction by your Tenants in Capite, and I by Knights, Citizens and Burgesses for the Laity, and by theProcurators Cleri for the Inferior Clergy. Whose Interpretation is most agreeable to Truth, I durst leave to any indifferent Judge * for I must needs tell you once again, I cannot see any manner of Reason, either from Authorities, or from the Nature of the Thing, that ever your Tenants in Capite could be the omnes de Regno in a legal Sense, and as such did represent all the Freemen of Estates in the whole Kingdom •, therefore if you can prove this, it may go far to convince me, otherwise not.

M. Since you will not rest latisfied with those Authorities I have already pro- B. A. P. duced to prove it; pray let me Discourse with you a little more particularly of < «7-Ethe Nature of Tenures by Knights Service. I therefore suppose that the Doctor lbld-t2u hath very well proved by several Records, as also the Two Writs of the 19th of Henry the Third, to the Sheriffs of Somerset and Sujfex, that the King anciently by his Prerogative, and his original Power and Right- reserved upon Knights Fees, did Tax the Military Tenants of his Tenants in Capite,and their other ordinary Free Tenants, and by his Writs caused th;m to pay ^ Zz 2 both

both Scutage Tax, and Scurage Service, and other reasonable Aids, as often as Necessity required.

E I grant indeed the Matter of Fact to have been sometimes as you lay, since there is no averring against express Records 5 but I fay likewise, that as for those Writs the Dr. has given us, concerning the King's Ordering the Sheriffs to distrain the Mefne Tenants of the Tenants in Capjte for Scutage-Service, as to Marry their Daughters, or for the finding of Men in any Warlike Expedition it was no more than what those Mefne Tenants were bound to do by the Tenures of their Estates ^ if they had failed to serve their Lords in Person, or by sufficient Deputies: And therefore the King might legally grant them Scutage upon such Tenants -, and perhaps might also change their Service in Person into a pecuniary Aid, as appears by some of those Writs the Dr. has given us and this not by his extraordinary Prerogative, but by Law.' So likewise, tho' your Tenants in Capitecould Tax themselves in their distinct Council, or else in the Common Council of the whole Kingdom, at what rate they pleased, for the Knights Fees they held of the King •, and tho1 the King might sometimes undertake, by this Pretence, to Levy a Scutage of Two Marks on their Under-Tenants also ; yet does it not appear by either of those Records you have now cited, that they gave for more than themselves alone; the Words in the Writs being only, that they had given the King Efficax Auxihum of Two Marks upon every Knight's Fee (as well Wards as others) who held of him in Capite, without any mention of their Mefne Tenants. So that if the Sheriff was afterwards ordered to distrain these Mefne Tenants also, for Two Marks for each Knight's Fee they held of their Lords; this was straining a Point of Prerogative •, for by the fame Rule the King might (by the like Prerogative) have Taxed all the Bishops, Abbots, Great Lords, and all other Tenants in Capite, without their Consents, as well as their Mefne Tenants, tho' it was contrary to the express Words of the Charters of King William I. and KingJohn, which you your self cited at our former Meeting: So that granting the Matter of Fact to have been practised sometimes, as your Records make out this is no Proof that this was a constant Law, or settled Custom much less that the King had a Right so to do. B. I. A Pag. M. I do not doubt but that I can prove to you, that what this King then 179,180. did in charging these Mefne Tenants, was according to his Ancient Prerogative , and what himself and his Predecessors had frequently done, both before and after that Clause in King John's Charter of NullumScutagium, vel Auxilium ponant in Regno meo, 8£c.' was granted; nay after it was granted by Rot. 11. Hen.Henry III. and Edward I. that they taxed their Demesnes thro' England, (tho1 3. M. 19. not the whole Kingdom) by the Advice of their Privy-Council, until the Statute de Tallagio non concedendo was made, in the 34th ofEdward I. And both Richard I. and King John, had taxed the whole Kingdom, without common Assent, before the Grant of Magna Charta: As also in the Reign of RiiV. 442. chard I. as you may find in Hoveden, who lived at that Time; (the Passage is long, and therefore I shall only give you the Beginning of it;) viz. that this King,Anno 1198. (Regno.9.) acceptt de unaquaquc Car uc at a Terrœ totius Anglidt, V. Solidos de Auxilio, &c. And then goes on to shew us the Manner how it was raised and collected ; and 3tis observable, that he uses these Words, F 209. A. D. Auxi/ium and Tallagium, for the fame Tax. So we find in Mat. Paris, That 1203,1207. KingJohn took a Seventh Part of all Moveables, without common Assent, and another time a Thirtieth; the Great Men and Clergy grumbling at it. King Henry III. also taxed all his Demesnes, in the 33d Year of his Reign, Ms. 1. as appears by a Writ in the Close-Roll of this Year; whereby he also commands the Sheriff of Bucks, that he makePhilip Baffet a Rationabile Tallagium , de hominibus suis de eo tencntibus in Manerio de Wycumb, quodaliquando suit Dominicum PrædeceQorum Regis, &c. B,a:j. 178. In the 39th Year, this King (as the Doctor shews us at large, by a Record in the keeping of the Remembrancer of the Exchequer) taxed all his Demesnes and, among the rest, the City of London at 3000 Marks -, which, tho' with some Contest, (mentiond in this Record) they were at last forced to pay ; because it was found upon Record, that this King, and his Father, had several times Talliated (or Taxed) the said City in like manner, at the

Sums Sums therein mentioned ; so that at last the Mayor and Citizens were fain to acknowledge themselves thus Talliable by the King.

So in the $2d Year of his Reign, he Taxed all his Demesne-Lands beyond Rot-cl- 52Trent, by his Escheators: And this Right was acknowledged by all the Bi-"^.r3- M'I0' shops, Earls and Barons, in the 33d Year of Edward I. as appears by their Ry^VPiadt. Petition to him in Parliament, in these Words: Ad Petitionem Archiepiscopo-Purl, rum, Episcoporum, Prdatorum, Comitum & Baronum, & atwrum proborum hominum de Terra petentiumquod Rex concedere velit yuod ipji pojfint taUiare antiqua dominica, unde sum in Tenantia, ficut Rex Dominicasua taliavit; ita responfum est, fiat ut petitur.

From all, which you may plainly see, that the Kings of England had anciently a Prerogative of laying Taxes, not only upon their own Tenants and their Mefne Tenants who held under them, but upon the whole Kingdom too* and if their Successors have acted otherwise, it has proceeded from their meer Grace and Favour, who have tyed up their own Hands from exercising this Prerogative.

F. Pray, Sir, observe, that you have now quitted the main Question, Whether others besides the Tenants inCapite appeared in Parliament before the 49th of Henry the Third ; and after that, till the 18th of Edward the First? And now start a new Point, Whether the King, with the Consent of his Tenants in Capite would not Tax the whole Kingdom? And to make out this, you have muster d up a great many Authorities but for what End I know not, unless it be to prove that some former Kings stretch'd their Prerogative to act directly against Law, and their own Charters to the contrary; and to justify them in it when they have done; as if all Things were done according to their Lawful Prerogative, because they did it. If this be Law or Reason either, much good may do you with it: For at this rate the King, notwithstanding all Laws made and sworn to by him to the contrary, may take what he pleases out of our Estates without our Consents, because his Predecessors broke the Laws, and their Coronation Oath into the Bargain. But you might have remembred, that a de sa&a ad jut, non datur consequentia; but I doubt the Precedents you have now brought, will not come up to the Proof of the Assertion you have laid down: For it is plain, as well from King Johns Charter, as by that Passage In Bratfon I but now cited , whereby it appears, that extraordinary Taxes, such as Hidage, Cor age, and Carvage, C alia (under which I suppose was included your Scutage Tax also) could not be imposed without the Consent of the Common Council of the whole Kingdom, when the King met his People in Parliamenr. If then this were Law, whatever King John or Henry the Third, or any other King acted contrary to this Rule, was illegal, and produced among other Mischiefs the general Revolt of all the Baronage, i. g. as well the Inferior as Superior Nobility of the whole Kingdom; till such. Time as our Kings finding they could do no good by Force, were fain, at last to content themselves with the Legal Prerogatives of the Crown, and by new Laws and fresh Declarations of the Ancient Law, to declare it unlawful for them to impose any Taxes upon their Subjects, without their Consents in Parliament.

But let me tell you, that by thus setting tip the King's Illegal Prerogative of taxing the Mefne Tenants of their Tenants in Capite, you quit the Question; For I asked you by what Right the Tenants in Capite (whom you suppose ) could grant by this great Charter a Fifteenth of the Moveables of the whole Kingdom, as well of those who did not hold of them by Military Service, as of those that did; nay of those who never held of them at all >And' you then fly presently to I know not what unknown Royal Prerogative of Taxing the Mefne Tenants of the Tenants in Capite at pleasure $ which you must allow, either was according to Law, or it was not: If the former, I have already proved he could not do it .by Law at all •, but if again'st Law, there was the like Reason why he should have had the like Prerogative over his Tenants in Capite too -, even over the very Bishops, Abbots, and Temporal Lords: And then I desire to know whether the great Council of the Kingdom had not been long since destroyed and given


{358}

But to examine your Authorities. It is true, Hoveden fays of %khard the First, that accept de un.iquaq-, HidaTerra V. Jolidos; yet does it not therefore follow, that he took this Tax without consent of his great Council. It was the ordinary Phrase of Writers in those times, to fay, Rex accepit, i.e. received such a Tax, when indeed he took nothing but what was given him by his Parliament. And therefore, tho' we find this Tax not mentioned in any other Writer, but only Hoveden , and so cannot give you an 'express Proof that this Tax was granted in a Great Council; yet it is most likely ( nay, certain it was) for the Word accept does not in its own nature import any violent or illegal Exaction: And therefore considering the nature: of the Thing it is greater Reason to suppose, that this Aid was granted by Consent 5 'since this fame Author tells us, in the Relation of this Affair, that this Money was received by the Hands of two lawful Knights of each Hundred, and that they did Answer this Money to the Exchequer, Coram Episcopts, Abbat ibus, & Baronibus ad hoc affignatis, who would never have undertaksn it, had no't this Tax been granted by the Common Council of the Kingdom; but that this King could not Tax the whole Kingdom at his pleasure, may appear by a Relation out of this very Author, in the very fame Year, but a litpjg. 441. b. tie before, viz. That when the King demanded by Hubert, Archbishop of Canterbury,that Homines Anglia, the Men of England should find him 300 Milites, i. e. Knights to stay one whole Year in his Service, or else would give him so much Money, as that he might therewith maintain those 300 Knights in constant Pay, viz. "to every Knight Three Shillings of English Money "Wages a Day; and that to grant this, all the rest were willing, as not da"ring to resist the King's Will; only Hugh, Bishop of Lincoln, as a true Ser"vant of God, abstaining from all evil, answered, That he would by no means "agree to the King's Desire, because it would redound to the detriment of "his Church, &c. And Ib it seems the Business fell and came to nothing. Now it is plain, that this Request must have been made in the great Council of the Kingdom, or at least in that of the Tenants in Capite; and if he could not charge his Subjects with the keeping but of 300 Horsemen for one Year, without their Assents, can any Body believe that he should presently after extort a much greater Sum, viz. Five Shillings out of every Plowland in England > But as for all your Precedents for King Johns Reign; he was such a Notorious Tyrant, and Breaker of his Coronation Oath, and common Faith both to God and Man, that I hoped that neither your self nor any good EnglijhMan would have fetch'd Precedents for Prerogative, from so profligate a Reign as his •, and in which I grant there were more than once Illegal Exactions of this vd cbron Nature; which yet are branded by those very Historians that relate them, for Thom. w'ikes, great Oppressions and unjust Exactions h as particularly in this first Instance £r Annah-s de out 0f Mat. Paris, of King Johns taking away by Force the Seventh of the Wtcwrl) in Moveable Goods of the whole Kingdom; which is by this Author called by no 1T/W°£ better than Rapinian, Rapine or Robbery.

oSd. The fame I may fay to the like Exactions of his Son Henry the Third,

which are branded by all" Writers, as horrible and illegal Oppressions; nay, are owned to be so by this King's frequent Confirmations of Magna Charta, and Acknowledgments of his Breach of them, and Promises to observe them better for the future. But I am sorry to find your Doctor, whom you follow, both in his Answers to Mr. P. and Mr. A. as also in his compleat History, still to cite the most violent and illegal Actions, nay the very Perjuries, for,Flowers of the Crown, and Royal Prerogatives.

But as for the Authorites you urge for this King s Talliatmg his Demesnes without Consent of Parliament-, you your self grant that this Talliage was not general upon the whole Kingdom •, and if so, could only concern his own Tei antsin Ancient Demesne, and none else j who were always exempted from being taxed with the rest of the Nation, because they were liable to yield the King a reasonable Talliage, ratione Tenure, whensoever he needed it; yet this was'counted rather a Privilege than otherwise ; since they were not only free from all other Burthens and Parliamentary Attendance-, but were alib Taxed much less than the rest of the Nation, in regard ot their Tilling the King's Lands for the Maintenance of his Houshold: But when this reasonable Prerogative



grew to be abused, and the Exactions levied upon them became into* lerabte, then they would no longer suffer it 5 but got it taken away by the Statute Ae Tallagio non ccmcedendo. After which we find the Tenants in Ancient Demesne frequently giving their Shares of Aids and Subsidies in Parliament by Delegates of their own, as in the Record of the 35th of Edward the First, which you have now cited ; till at last they came to be resolved into the common Body of the Kingdom ^ but as for the City of Lo/xbn,, it was never taken for part of the King s Demeans; and so is not to be sound in Doomesday-Bock; but -as appears by Record, held of the King tit Capite;and therefore could be no otherwise Taxed than as the rest of the Tenants in Car site, that is, by the Common Council of the Kingdom. And this made the Londoners deny to be otherwise Talliated , as appears by this Record of Henry the Third, which you have now cited. But the truth is, they had this Exaction first laid upon them in the exorbitant Reign of King John-, and this was afterwards trumped again upon them in all the ill part of his Sons Government, because his Father had done it Jbefore; and I doubt not but if Ship-Money had passed unquestioned, and been as often paid in the Reign of King Charles the First, but that it would have been urged as a Precedent in the Reign of Charles the Second.

But as for your last Authority of the 33d of Edward the First, pray take Notice, that it is before the Statute dtTallagio non concedendo, and extends only to such Estates in Ancient Demesne, as were held of the King by Noblemen or Gentlemen, either by Gift, or Purchase; and which, for all that, still kept the Ancient Custom of being Talliated by the King , as their Under-Tenants were by them, to enable the Lords to pay the King's Talliage; and in this Sense 1 understand these Words in this Record, wide sum in 'scnantia •, i, e. of which they are in Tenancy to the King. Nor does the Record call them Dominica sua, as it does the King's Demesnes that follow: So that this could not be a Tax upon all Under-Tenants by Knights Service, as you suppose since their Estates were never called Antiqua Dominica, and therefore I think after all, you cannot (hew me any legal Precedent that our Kings claimed a Right under Colour of their Prerogative, of Taxing the whole Nation dt Altofy Baffo, at their pleasure.

M. I (hall not now dispute it longer with you, whether the Kings of England had not anciently a Power of Taxing the Lands held of them, without the Consent of their Great Council •, but thus much I think I m3y safely aver, That when this Great Charter was made, the Tenants in Capite, as the Common Council of the Kingdom, gave Taxes and made Laws, not only sor themselves but their Mesiie Tenants, and the whole Nation also. Nor was this at all unreasonable, that thole who thus held Estates by Mesne Tenure under the Tenants in Capite, should be bound by the Acts of those of whom they held them ; B since we lee in Scotland, that at this Day none sit there, either as Commissioners , of Shires, or Burgefles for rhe Royal Boroughs, but such as hold in Capite of the King -, for anciently, before the Law for excusing the smaller Barons or Tenants in Capite from coming to Parliament, and sending Commissioners of Shire, in their stead, was intoduced by a Statute made in the Seventh Parliament of Ki!te fames the First, Anno Dom. 1420, it consisted all of Tenants in Capite, viz. o%.the Bishops, Abbots, Priors, Earls, Barons, iff hiberi Tenentibus qui de Rege Tenent in Capite; as appears by the very Words in the Latin Tides to divers of those Statutes, as you may find them in Scenes Collection of Scotch Laws. Now if this Law did anciently, and does still prevail in Scotland, that the Tenants in Capite should be the sole Representatives of that whole Kingdom, I cannot see any Reason why it might not have been so anciently in England also, especially since I can give you so good Reasons to back this Opinion.

F. I will Answer your Argument from Scotland by and by; but in the mean Time give me leave to tell you why I think it could never have been the Custom in England; and that for two Reasons, First, because it was against Reason; and idly, because it was against the known Law of the Kingdom. That it was against Reason, is apparent;since what Reason was there, that if a Man in thole Times purchased an Estate for a valuable Consideration, of a -


Lord, or any other Tenant m Capite (as certainly Thousands did) to be held either by Knight's Service, or in Soccage, that such a Tenant should lye at the Mercy of his Lord, to dispose of his Estate in Taxes, and make Laws for him at his Pleasure •, however exorbitant those Taxes were, or inconvenient those Laws might prove* the Lord being no Representative, of his own Choice or Appointment?

In the next Place, that this was contrary to the received Law and Custom of the Kingdom in those Times, I can prove by Two very sufficient Authorities, the one of the Earl of Chester, the other of the Bishop of Durham.Now it is certain that both this Earl and Bishop held their County Palatines in Capite immediately of the King, nor had those Counties any Representatives in Parliament, till long after that they had Knights of Shires and Burgesses granted them by particular Statutes made for that Purpose; now according to your Hypothesis, all the Fueholders and Inhabitants of rhose County Palatines should have been bound by all Acts of Parliament, and Taxed withthe rest of the Kingdom as often as there were Laws made, and Taxes given when their Bishop or Earl was present, which was not so; for in the first Place as for the County of Chester, if the Earl had been the Representative in Parliament of his Tenants by Knight's Service or otherwise, as also of all the Abbeys, and the City of Chester it self, and all other great Towns in that County, his Vote in Parliament would have obliged all of them; and there would have been no need of a Common Council or Parliament of the States of the whole County, in which they then made Laws, and taxed themselves as a separate Body from the rest of the Kingdom; as may appear from these following Records which Mr. A, hath given us; the first of which is a Writ of King Edward the First, directed Archiepiscopis, Epifcopis, Abbatibus, Prio'Pat r'^usi Baronibus, Militibus, C omnibus a Hisfidelibus Juts in Comitat. Cestri<e} reJt i. M. 6. citing, That whereas the Prelates, Counts, Barons, £7 alii deRegno, had given him a r 5th of their Moveables, he desires that they also would of their Benevolence and Courtesy (in Latin Curia/itate ) grant him the like Subsidy •, which, Note, could not be done out of a Common Council. Rot Pat 20 So likewise in another Writ of the 20th of this King, reciting, That whereas

£. 1. m. 6.

fat

Doctor always does) mat meie rrooi nomines were tne tans lenants in Capite, what can this Word Ccmmunita*here signify, but another Sort of Men distinct from them, viz. the Commonalty or Commons of that County? And which is also remarkable, this County was now fallen to the Crown sor want of Heirs Male of the last Earl •, and so according to the Doctor's Notion, the King being their sole Representative needed not' to have been beholden to them fer these Subsidies; since tho' not as King, yet as Earl 'of Chester, he might have taxed them himself 5 which yet he thought not fit to do, because he knew it was contrary to the Rights and Privileges of that County, which had ever since the Grant of it to Hugh Lupus by William the First, always been taxed by themselves.

Which Privileges are also exprefly set forth in a Supplication of all the Estates of this County Palatine to KingHenry the Sixth, which Mr. P. has given us from an ancient Copy of it then in the Hands of Sir ThomasMainwaring of that County, Baronet: Wherein the " Abbots, Priors, and Clergy, Barons, p. "Knights, Eiquires, and Commonalty, set forth, that they with the Consent of

4^. "the Earl, did make and admit Laws within the fame, £>V. and that no In

*' heritors, or Possessors within the said County were chargeable or liable, or were "bounden, charged, or hurt of their Bodies, Liberties, Franchises, Lands, Goods, ** or Possessions, unless the said County had agreed unto it. Now what can here be meant by County but the Common Council, or Parliament thereof, since otherwise they could make no Laws, nor do any other publick Act:?

The like I may fay for the County Palatine of Durham, which from the Grant thereof by William Rufus to the then Bishop, had always been taxed by themselves, and not by the Bishop in Parliament, and that as low as the Reign of Edward the Third 5 as appears by this Record of the 14th of that Rot. Aiman King * containing a Letter or Commission to R. Bishop of Durham h reciting, i$Ed. j.m.p. " That whereas the Prelates, Earls, Barons and the Commons of Counties, "had given him a 9th of their Goods there mentioned, that therefore the 1 Bishops

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u Bishops should convene'the Magnates & Communitatem Libert at is veflr£ "(to wit, of his County palatine )ad certum diem, & locum, with all conve"nient Speed-, and that done, to persuade and excite the said Magnates &"Communitas, to grant the King the like, or a larger Subsidy, towards the "Maintenance of his Wars which had been altogether in vain, if the Bishop, "or the King could in those Days have Taxed this County at their "Pleasure. .

Now if these great Tenants in Capite could not Tax their Mefne Tenants without their Consents, much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service, or in Socage, without their Consents, which last had a much less Dependance upon them.

M. I must confess I never considered these Precedents of the County Pala- Bt APtine of Chester and Durham;and therefore can fay nothing to them at present,^' 11 u since it is Matter of Fact $ but as to Reason and Law, 1 think it is consonant to both, that not only Tenants in Military Service, but Socage Tenure, should be bound by the Acts ot their Superior Lords, of whom all the Lands of England were formerly held by Knights Service: And though in Process of Time many of these Estates and Lands became free Tenements, or were holden in Socage j that is, were a fort of Freeholders; yet the Lords retained Homage (which in the Times we now write of, was no idle insignificant Word) and by that a Dominion over the Estate j whereby upon Disobedience, Treachery, or Injury done to the Lords, &c. the Lands were forfeited to them. And although the Lands, nor the Tenants of them (which were termed Freeholders) were subject to any base Services, or servile Works, yet the Lords had a great Power over these Tenants, by reason of their doing Homage to them (which though now antiquated) yet eonomine, their Lands were many ways liable to Forfeiture, and Taxes too. ,. ,

So that upon all these Accounts, it was then as reasonable that the Tenants in Capite should in those Days make Laws, and grant Taxes for all the rest 4 of the Kingdom; as the Tenants in Capite in Scotland should do so to this very Day, for all the Inhabitants of that Kingdom of never so great Estates; and to this Argument which is certain in Matter of Fact, you have yet answered nothing, nor do I believe an.

F. I cannot see, notwithstanding What you have now said, that the Superior Lords, by reason of Homage, should have an absolute Power over their Tenants Estates: For though in the Profession of Homage to the Lords, I grant the Tenant thereby promised to become the Lord's Man; yet he nevec thereby meant to become his Slave •, and there were mutual Duties on both Sides; so that if the Lord failed to protect his Tenant in his Estate, or unjustly oppressed him, he might have refused ( nay renounced) his Homage, till the Lotd had done him right; nor can I see how a bare Right of having the Forfeiture of the Estate in the Cases you have put, which yet let me tell you, were never so strict in respect of Socage as Military Tenure, as I could shew you, were it worth while •, for if this Right of Forfeiture alone j could give the Superior Lord a Power over his Tenant's Estate, to make Laws for him, and Tax him as he pleased, then by the seme Rule, the King as Supreme Lord over all his Tenantsin Capite, should have had the like Power over them, of making what Laws for them, and imposing what Taxes he pleased upon them, without their Consents; and so there would have been no need of Common Councils or Parliaments at all, since upon your Hypothesis, the Tenants in Capite were the only Persons that had any Right to appear there. But if neither the Wardship, Marriage, nor Relief of the Heir, could give the King such a Power over his Tenants in Capite, much less could they attain the like Right over all theit Mefne Tenants by Knights Setvice; for that would have given them a greater Power over their Tenants than the King himself had over them; therefore if those great Tyes of Wardship, Marriage and Relief of the Heir, could neither give the King, nor yet any Tenant in Capite, Power over the Estate or Liberty of his Tenants by Knights Service, much less over their Tenants by Socage Tenure, who were not under this Subjection. And farther, if a Right of Forfeiture alone,

Aa a in

in some Cases, could have given the Lords a Power of making Laws, and
granting Taxes for his Tenants in Socage, then they should have still kept
that Right hy this Rule, since all Lords had a Right of Forfeiture even upon
their Tenants in Socage in some Cases, before the Statute of taking away
Knights Service, and the Court of Wards, and Liveries, in the Second
Year of King Charles the Second -> as I could prove, were it worth
. while.

As to Scotland, I shall not deny the Matter of Fact to be as you fay, that it bath at this Day no other Representatives in their Parliament, but the Tenants in Capite-, yet whether it was Ib or not anciently, I very much doubt-, since I find the very.fime Wards and Phrases made use of in the Titles of their old Statutes, as also in their Records, to express the Constituent Parts of the great Council of that Kingdom, as were used vid. chart. inEngland, to express those of England at the fame Time. For Proof of Fundut.Monast. which, pray see the oki Charters of King Malcolm III. and David I. as you de Dunserhng. ^ find them at tfae ^ of the tj€COnd Volume in Mr.Dugdale's Monajt.

Anglic, and you will see the former to have been made by the Assent of the Comites (Jf Barones Regni, Cleroadquiescenteque PopuJo, 8tc. and as | shall also shew you from Sir John Skene\ Collection of Scotifh Laws; to begin with the most Ancient there Extant, {viz.) an Aflize or Stature made B. A P. p. 0- in the Time of KingWilliam, Sirnamed the Lion, who began his Reign Anno &dein statut. Dom. 1105. in the Fifth of our Henry I.; to the Observance whereof it is TfTcaf^' tbere ^P16*^ tnat tf* Ep'fC0Ph Abbates, Comites, Barones, Thani, & tot*"Communitas Regni tenere firmiter juraverunt. So likewise King Alexander II. star. Akxan. who began to ReignAnxo 1214, which was the Sixteenth Year of our Reg.F0l.22. ]fongJohn, and he made his Laws de consilioajjensu venerabilium fat rum Cap. 2. Epifcoporum, Abbatum, Baronum, ac proborum hominum fitorum Scotia,and who these were, may also farther appear by the beginning of certain Statutes made by the said KingAlexander in the feme Year, which begin thus, Statuit Rex per con/ilium if? ajfenfum totms communitatU fute,8tc. stat. Rob. 1. I shall next produce the Title of a Parliament holden the 13th of Robert I. F0J.29. who began his Reign Anno Dom. 1306, in the Third of our Edward I. In Dei nomine, Amen. Robertus Dei Gratia RexScotorum Anno Regni fuo Decimo tertio die Dominica proximo, 8tc. habito folenni trattatu, cum Episcopjs,Abbatitbus, Prioribm, Comitibus, Baronibm, & aiiis Magnatibus de Communitate totius Regni ibidemcongregate; and which Title concludes rhus, de Communi consilio & exflrejfo concenfu omnium Prelatorum, &liberi TenentiumprediUorum ac totius Comnttmitatis. prediffxt ordinavit, cond'idit, Sac. Statuta infra Senpta, 8fc. So likewise in an ancient Manuscript, called, ScotoChronicon; formerly in the Pol? session of the Right Learned and Honourable Arthur Earl of Anglesey, and now in the Herald-Office , you will find the Entail of tile Crown ofScotland! to have been made by rhis King Robert, Anno Dom. 1315 , in' a general Council or. Assembly of the whole Kingdom' of Scotland, as well Clergy as Laity, which chap. 24. as this Author tells us (who lived within Sixty Years after) was held, Dominica.

p/vxima ante festum Apostolorum Congregati apud Acre in Ecckfia Parochiali ejusdem Laid, Epijcopi, Abbates,Friores, Archidiaconi, nee non Diaconi, & ceteri Ecclesiarum Frdtlati, Comites, Barones, Milites, 6? ccetvri deCommunitate, Regni Scotue, tarn Cleri qutim Laid, Sec.; from which it is apparent, there was a great Council of the whole Kingdom (as in England) more comprehensive than that of Tenants in Capite alone.

And that our English Records also agree with these Scotch Statutes, you may fee by Two Records which Mr.Pryn has given us in his History of Papal VsurpaRot. Par. 17. tionsj, out of the Rolls of the 17th of Edward I. It is a Letter to Eric, King of £. M. 4. Norway, concerning the Marriage of his- Son Edward, with his Grand-daughter, then Heiress of Scotland and "Norway, reciting that the Custodes (Scil. Regni Scotix) Magnates,Pnelati, ac tot a Communitas prediBi Regni Scotu unanimi, & Rot. Par. 18. cxprejjo confensu, had agreed to the said Marriage. So likewise in anorher LetE.i.m. 9. ter 0j. this King EdwariTs about the feme Marriage, he declares that he had by his Procurators therein named, treated and agreed wirh the Cufiodibus, Epifcopisy Abbatibus,Comitibus, Baronibus*, & tota- Communitate ejusdem Regni; and it presently follows, ac prtditfi nobiles & totaCommunitas Regni Scot it praditsi, Now



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whom can this Word Communitas signify, put here distinct from the Easts, Barons, and Nobles, but the Commons of that Kingdom?

So likewise in the Fourteenth Year of King Robert the First, there was Jn-Dom.i^c. a Letter sent from the Parliament of Scot/and to the Pope, complaining against the Violence of the King of England (which is to be seen in Manuscript, and is also Printed by Dr. Burnet, in his History of the Reformation ) and by which it Part 2. Pot.plainly appears, that the Comites, Bar ones, Liberi Tenent es, & tot a Communitat l09Scotix, agreed to this Letter.

And that the Cities and Borough Towns were at that Time Part of this P- R- C. p. 83. Communitas, appears by the League made between this King Robert and the King of France, in the 28th Year of our Edward the First, which is to be seen in a Roll os this Year, still Extant in the Tower; which League was ratified and confirmed in their Parliament, by King John de Baliol, ac Pr<elatos, & nobiles XJniverJitates, & Communitates civitatum, &villarum prxditli Regni Scotix-, and I suppose you will not deny that in Scotland, the Cities and Boroughs from Times beyond all Memory, sent their Proxies and Representatives to the Parliament in Scot/and, and that each Citizen and Burgess fb sent, had as good a Vote in their Parliament, as the greatest Bishop or Earl of them all.

M. I desire no better Proofs than what your self have now brought to make out, that the Tenants in Capite are not only at this Day, but have been fiom the very beginning of Parliaments in that Nation.

For I shall appeal to those very Statutes and Records you have now cited, which compared with divers subsequent Statutes of that Kingdom, will make the Matter plain enough, that the Communitas, and these probi ho minesmentioned in these Laws you have cited, were the Community of the Tenants in Capite only.

In the First Place, therefore, let me observe from that very Law of King Alexanders, the Title of which you have but now quoted, that these Words per qffensum Communitat is cannot here signify the Commons, since they » alone could neither advise, nor give their Consent to make Laws, and there- * fore they must needs refer to the whole Community or Assembly of Estates, consisting of Tenants in C&pite only; as I shall prove by a Parliament of King Robert III. who began to Reign Anno Bom. 1400, (in the 10th Year of our B.A.P. p.98. Richard VL.) the Title is thus, Parliament urn Domini nottri Roberti III. Scotorum #«*.Rob>j. Regis, 8CC. vocatts & summonitismore Jolito Epifcopis, Prioribus, Ducibus, Comitibus, Baronibus, Uberis Tenentibus & Burgenfibus qui deDomino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth, Anno Dom.1427, being the 23d of King James I. Summonitis Us vocatts more folito Epifcopis, Abbatibus, Prioribus,Comitibus, Baronibus, & Liberi Tenentibus, qui de nobis tenent in Capite, & de quolibet Burgo certisBurgenfibus. So that I think nothing can be plainer fiom these Ancient Statutes, than that the Scotijh Parliaments did anciently consist of no other Members than the Bishops, Abbots and Priors, Dukes and Earls, Barons, Freeholders and Burgesses, which held of the King in Capite.

Having thus shewn the Ancient Constitution of the Scotijh Parliaments, for your Satisfaction, I shall farther shewwhen, and how it was altered.

In the Seventh Parliament of King James the First, held at Perth, Anno Dom. 1420, there was a Law made (which I shall contract) ** That the small Barons statut. Jacfo u and Freeholders need not to come to Parliaments, and that for the future out of «• ibid. "each SherifBom there should be sent Two or more wise Men after the Large"ness of the SherifFdom, the which shall be called Commifiaries of the Shire; "and that these should have full Power finally to hear and determine all Causes * to be proposed in the Great Council or Parliament; and that the said Com*' miflaries should have Costage of them of each Shire that ought to appear in "Parliament or Council. I have only given you an Abstract of this Statute, because it is pretty long, and penn'd in old ScotijhEnglish, but you may consult it at your Leisure.

And this is farther confirm'd by a subsequent Act of Parliament of King James B. A. P. the Sixth, holden atEdinburgh, July the 29th, 1587, wherein after a Repetition Foi.99.

Aaa 2 of „

of the former Act of King James the first, and a Confirmation of the same, fit follows thus-.

"And that all Freeholders of the King, Under the Degree of Prelates and "Lords of Parliament, be warned by Proclamation to be present at the chu"sing of the laid Commissioners 5 and none to have voit in their Election "but sick as hes Fourtie Shillings Land in free tenandrie halden of the King, "and hes their actual Dwelling and Residence within the fame Schire, &c." I need give you no more of this Act •, but I think it is most clear from this as1 well as the former Act of Parliament, that the Commons in Scotland were only the King's Tenants inCapite, and are so at this Day; since none. but they can either chuse or be chosen Commissioners for the Shires. But as VhL Present tQ ^ Bor0ughs, who do each of them send but one Commissioner or Burland p.17.C gefs (except the City of Edinburgh, which sends two) all which are chosen 'by the Common Council of the Towns' •, now there are in Scot/and three forts

of these Burghs, that is to fay, Royal Burghs, Burgs of Regality, and Burghs ibid. p. 100. of Barony •, but only the Royal Boroughs, the Burgi Dominici Regis, or qui ie Rege Tenent in Capite, send Commissioners to Parliament, and are in Number Sixty.

To conclude, That I may apply what , hath been said concerning the Constituent Parts of the ScotifhParliaments to ours Anciently, it seems to me, that from the great Affinity there was between ours and theirs, 'tis certain, that our and their Communitas Regni, was the fame, that is, they were the small Barons and Tenants inCapite.

F. I cannot deny but that the Parliament of Scotland hath, for above these Two Hundred Years, consisted of the Bishops, Abbots, and Temporal Lords, together with the Lester Tenants in Capite, or their Representatives the Commissioners for Shires, and Burgesses of Cities and Towns, till the Reformation; that the Bishops and Abbots were quite taken away; tho1 the former were restored to their Places in Parliament, by a Statute made in the latter end of King James the First; yet I cannot allow, that from the beginning of that Government, the ScotchParliaments have consisted of no other Members than those; since the Word Communitat coming, as it does in these old Statutes and Records (I have now cited) immediately after the Yrdati, Comitest Barones, & Ælites, &c. must signify a Distinct Order of Men from the Tenants in Capite, called in the Statute of King James the First, the small Barons, and since the Citizens and Burgesses, though none of those Barons, weie also, comprehended under this Communitas (and whom you grant to make the Third Estate,) why this Word might not comprehend all the orher great Freeholders, I can fee no Reason to the contrary.

And therefore I suppose, that in the Reigns of King David the Second, or Robert the Second, or else the beginning of Robert the Third, there was a great Alteration in the constituent Parrs or Members of the ScottishParliament: And about that Time, the Chief Freeholders, or Lords of Manors, who held of Bishops, Abbots, and other Temporal Lords, as well as of the Tenants in Capite, or else of the King, by petty Serjeanty, or Socage Tenure; as also* many of the small Towns, or Baronies, might either forbear coming at all, or else desire to be excused, because of the great Trouble and Charge of Attendance? (as you see the smaller Tenants in Capiteafterwards did, when Commissioners for Shires were appointed in their steads) and so might by Degrees leave oft" coming, or be excluded by ibme Law not now Extant. And thus the Tenants in Capite, might become the sole Represen, tatives of the whole Nation in Parliament. And 1 am of this Opinion, because in many of the old Statutes before the Time of Robert the Second, we find the Communitas totius Rcgni, coming immediately after the Earls and Barons (as in our own Ancients Statutes and Records 5) but after those Reigns, we find no more mention of this Communitas, but only of the Dukes, Earls, Barons, Liberi Tenentibus, V? Burgenfibm, qui deRege Tenent in Capite, as in the Titles to thole Statutes of King Robert the Third, and James the Fifth, you have now cited.

And yet that Liber Tenens was not anciently taken for a Tenant in Capite only, pray see the 14th Chap, of the Laws of King Alexander the Second, m^AnmBom, 1214. with your Doctor's Comment upon them; Statutumest

quod i

quod nec Epifcopi, nee Abbdtes, nee Comites, nee aliqui liberi Tenentes, tenebunt curias fuat nisi Vicecomes .Regis, vel servientes Vicecomitis ibidem fuerant. B. A Upon which Words, the Doctor in his Answer to Mr. P. . hath this Remark, viz. This again (hews us, that the Freeholders were Lords of Manors at least. So that unless you will suppose that none but Tenants in Capite were Lords of Manors, or held Courts, (as certainly very many of the Melhe Tenants did) this Word Liber Tenens must extend to any other great Freeholder or Lord of a Manor, of whatsoever- Lord he held it; and as such might anciently have had a Vote in that Parliament. So that if I have (as I think sufficiently ) proved that the Word Communiias coming after the Earls and Barons, in our ancient Statutes and Records, did certainly signify another Order of Men distinct from the Tenants in Capite, I have the fame Reason to believe it was so in Scot/and too •, not only because these general Words Community* totius Regnitmust needs be more comprehensive,, than to express the Tenant in Capite only, ( who could never Represent .all the great Freeholders in Scotland any more than they did in England) but also because it is acknowledged by theScotch Lawyers, that the Fundamental Laws and Constitutions are the fame in both King^doms. For Sir JohnSkene in his Epistle to, King James before his Scotijh Laws, fays thus, InteUigo tuas tuorumque Majorum leges,cum legibus Regni tui Anglie magna ex parte confentiunt; which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms. ., , , ,

To conclude, I cannot but admire your Doctor's strange Partiality, who does allow the Commons'-of Scotlandto have even been a Third Estate, when he exprefly grants, that, "The Commons of Scotland were, and are at thisDayy "the King's Tenants in Capite; and that the.King's Royal Boroughs were such "as ever did, and do at thisDay in Scotland, only fend Burgesses to Parliament: Now why the Cities and Boroughs in England ihould not have always had the like Privilege, as well as in Scotland, I wish you could give me any sufficient Reasoa

M. Since you own that the Tenants in Capite, or else Commissioners in their stead, have been the sole Representatives for the whole Kingdom of Scotland. for above 200 Years, I doubt not but they were so, long before that Time; since you confess you cannot shew any Law by which this Ancient Custom came to be changed; though I grant, that the Statutes before King David and Robert the Second, are said to be made by theCommunitaf totim Regniy yet you must not suppose that Constitution of the Kingdom altered, when the Clerks altered their Phrases in penning their Statutes and Records; so that this Communitas was the Community of the Tenants in Capite only, and not of the Freeholders, or of the Citizens and Burgesses of the whole Kingdom; since as for the former, you cannot fay, that all the People in Scotland had. ever a Right to chuse the Commissioners for the Shires: For then Jtis most likely they would have kept it to this Day; whereas we see that none but Tenantsin Capite have Votes at such Elections.

And as for Cities and Boroughs, I cannot find (nor do I believe you can shew me) any Instance of a City or Borough-Town in Scotland that ever sent Deputies to Parliament, but what held in Gipite of the King. For though there are, as I said already, besides the Royal Burghs, two other sorts, viz. Boroughs of Regality, and Boroughs of Barony, who hold of the King, but not in Capite, or else of some Bishop or Temporal Lord; and though divers of these are considerable for Trade and Riches; yet none of them send any Burgesses to Parliament: So that though I confess there are Three Estates in the Scotch Parliament, called in the Statutes of King David and Robert the Second, the Tres Communitates Regni j yet did these always consist of the Tenants in Capite only, who therefore fit together and make but one Assembly.

Now that we may apply what hath been said to England, I desire you to take Notice, that the Doctor and we that are of his Opinion, do not positively affirm, that the Commons of England were not at all represented before 49 of Henry the Fourth, but that they were not represented in Parliament by Knights, Citizens, and Burgesses of their own Choice, but by the greater and lesser Tenants, in Capite, the greatest part of which I grant were not Lords. And admit

that

that I should grant you that some Cities atid Boroughs sent Members to Parliament, before the 49th of Henry the Third •, yet were they only such as held in Capite, and no other, as the Doctor has very well observ'd in his Answer to Mr. Fs Argument from the Petition of the Town of St. Allans. So that upon the whole Matter, there will be no more gain'd by you in this Controversy, than that perhaps some Citizens and Burgesses appeared in Parliament, and constituted a Third lbrt of Men, which you may call the Commons, if you please, though I cannot find they were so called, till after the Time of Edward the First. But supposing this to be so; it is very far from your Republican, levelling Opinion, who do suppose, that all the Freeholders of England, had an ancient indisputable Right of appearing in Parliament by Reason of their Propriety in Lands, or other Estates. Whereas by our Hypothesis, we suppose the Great Council or Parliament to have anciently been the King's Court-Baron, consisting of his immediate Tenants, call'd thither by him their Supreme Lord, to advertise him of the Grievances of the Nation j and to propose what new Laws were necessary for the Publick Good of the Commonweal; and together with him to raise such publick Taxes, both upon themselves and their Tenants, as the Necessities of the State required; yet notwithstanding, there is a vast difference between your Notion and mine, concerning the Rights which such Tenants in Capite might claim of coming to Parliament; since before King Johns Charter, (whereby I grant all the Lesser Barons or Tenants in Capite were to be Summon'd by the Sheriff to come to the Common Council of the Kingdom) the King might have only call d some of the greatest and wisest of them, and such as he thought molt tit to advise him in making Laws, and imposing Taxes upon the Nation. And the like Prerogative his Son Henry the Third resumed during the greater Part of his Reign, as I shall shew you from divers old Statutes by and by. And that our Kings did often take upon them to call whom they pleased^ and omit whom they pleased of these Tenants in Capite , may appear by those who were called Pares Earonum, or aliosMagnates, who are put after the Barons ; and of these thete are many Instances of their being ailed to Parliament, and again omitted in several King's Reigns after the Commons were a Third Estate, as represented as at this Day.

F! I must beg your Pardon, if I cannot come over to your Opinjon, notwithstanding what you now have said; since I do not find your Reason to come up to what you intend therein; for you only suppose, (but without any Proof) that the Words Populus and Communitas must signify only Tenants in Capite, in the Ancient ScotijhCharters and Statutes. All the Argument you bring ro the contrary is, that I cannot shew you any Law by which it was altered to what it is now-, and therefore, that the Constitution has been always the fame as at this Day. Now pray consider, whether this will not press altogether as hard upon in your relation to England 5 for you cannot shew me any Law whereby the Tenants in Capite were excluded here, and Knights of Shires introduced in their steads; and therefore, by the fame Rule, let the Scotijh Parliaments liave been of what they will, yet ours have been still the fame they are now. But if you fay, that this contrary Usage hath been introduced, either by the King's Prerogative, or by the silent Consent of the People; or by some Law that is now lost, are not all the fame Arguments to be made use of in rhe Case of the Scotijh Parliaments: Which I may upon as good Grounds suppose t6 have deviated from their Original Constitution, as you do that our English Parliaments have done it.

So that if those Arguments are of any weight, they will serve for England, as well as Scotland; but if they are not, it is in vain to make use of them at all. The like I may fay, as to Boroughs in Scotland; since it is as «a A-10suPP°fe» that divers Boroughs in Scot/and might voluntarily desist from lending their Deputies to Parliament, that did not hold of the King in Cat'te>^s it is, that divers Boroughs in England did Petition to be exempted Irom lending Burgesses to Parliament, by reason of their Inability to pay the hxpences of their Burgesses; as I could (hew you by divers Precedents, (some of which are m Print) had I now Time.

As for the rest of your Discourse, I cannot imagine to What it tends •, for if the Tenants in Cdpite had any Place in, or Right to come to Parliament, how came they to have it, but by reason of the great Freehold Estates they held of the King? And if so, I can see no Reason why those that had as good or better Freehold Estates than they, should be all excluded: Or why a small' Tenant in Capite of but one Knights Fee held of the King in Capite,should give him a Right to a Place in Parliament •, and yet that a Mesne Tenant, ©r Vavasour (as he was then called) who held Ten Knights Fees of some Bishop or Abbot, who perhaps did not hold in Capite at all, should have no Right of appearing there, noi of chusing any Representative for him; since notwithstanding all you have now said, the Doctor either contradicts himself, of you, when he tells os expfefly in his Answer to Mr. P. " That the Te"nants in Capite who were no Barons, represented only themselves, and not B-A'p-P-68' "the Commons. But how will this agree with What he fays in his Introduction, that the Body of the Commons had no share in making Laws, 0V. before the 49th of Henry the Third, unless they were represented by the Tenants in Capite? And if so must then certainly represent those that he here calls the Body of the Commons of England collectively taken.

But as for your Notion of the Parliament's being the King's Court Baron j tho' you have borrowed it of a learnedScotch Lawyer, Sir George Mackenzy, yet let me tell you it was never true 5 for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tenures of Lands by Knights Service •, or than the very Institution of Manors in this Kingdom,, which the Doctor tells us are of no higher an Original than the Norman Conquest.

But admit I should allow your Notion of the Parliament's being anciently the King s Court-Baron, then certainly all the Tenants in Capite had a Right to appear there, and to be not only Suitors, but Judges of all Differences arising among the Tenants in the Lords Court, where neither the Lord himself nor his Steward were Judges •, and that of Right and not by Favour. Whereas you suppose such a Court-Baron as never was heard o£ where the Lord could admit or exclude whom of his Tenants he pleased, to which if they had a Right ratione Tenure, certainly he could never do. So that instead of a Court-Baron and a Common Council according to King Johns Charter, whereby all the Tenants in Capite were to be summoned to this Council, or pretended Court Baron; you suppose the King still retained a Prerorogative of calling or omiting whom he pleased-, which instead of confirming the Validity of the Charter, and that it was to be a Rule how such Councils should be called for the future •, you make to signify just nothing, and that no Common Council was ever called according to that Model. But pray shew me a Court-Baron, wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates, that did not hold of the Manor, though they were resident within it. But indeed you are out in the whole Matter, for the Doctor himself grants in his Answer to Mr. P. when " he gives us "King Johns Letters of Summons to a Council directed to the Barons and "Knights (and as he translates Fidelibvs) Feudatories, ot Vassals of all England, B. A P. p. 40. "wherein he lets them know,, that he had sent his Letters to every one of ** them, if it might have been done". Now what Reason had he to write thus, if these Gentlemen had no Right to be consulted, or that the King might have called or left out whom of them he pleased? But the Barons, or Tenants inCapite were of another mind, when in the 37th of King Henry the Third, as

without all the rest of their Peers; divers of whom, it seems, the King had for some Reasons then omitted to summon.

But as for your Instance of the Barons, Peers, or alios Magnates, which were sometimes summoned, and sometimes omitted in the Reigns' of our Three Edwards; you do well to put in, that it was" after the Times that the Commons were as Third Estate; for indeed, it was only after that the Tenants in Capite had left off making a distinct Council by themselves ; which I suppose was about the End of the Reign of Henry the Third •, and then it is true, the King calledj several of these Tenants in Capite, (as also others that

Mat. Parts tells us, they refused



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were not so) by Writ, to the House of Lords, as Tares Baronum, i. e. not as real Barons, but Baron-Peers, since a bare Summons by Writ did not as yet (nor long after) vest a Peerage in their Heirs. So that upon the whole Matter I see no Reason from any Thing you have urged from the Example of Scotland, to make me change my Opinion, that the Tenants in Capite were anciently the sole Representatives, either of this or that whole Nation in Parliament. For pray take Notice that I do not find the Tenants in Capite so much as mentioned in the ancient Statutes of that Kingdom, or Charters of their Kings, as the Common Council or Parliament of Scotland, before the Reign of King Robert the Third, which was but late in Comparison of the Antiquity of thole Councils in that Kingdom. _

M. I could fay more as to the Antiquity of the Tenants in Capite, their coming to Parliament as the sole Representatives of the Nation, before the Time you mention •, but it grows late, and therefore I shall wave it at present, and so shall only proceed to remark that great Part of the Error of the Gentlemen of your Opinion, proceeds from this false Ground, that you suppose that the Parliaments both of England and Scotland were a perfect Representative Body of all the Freeholders and Freemen of those Kingdoms; which is a meer Chimera. For in the first Place, if we will consider, it never was, nor indeed is so at this Day •, since you your self must acknowledge , that all Copyholders and Leaseholders under Forty Shillings a Year, all Freemen in Towns Corporate, where the Election . lies wholly in the Mayor and Aldermen or Common Council •, and lastly, all that will not pay Scot and Lot in divers Borough Towns, are utterly excluded from giving their Votes in the Choice of Parliament Men-, and consequently from having any Representatives in Parliament, though sure as much Freemen as the rest of the Kingdom: And this either by general Statutes, or else by the particular Charters and Customs of those Cities, Towns and Boroughs -, all which are looked upon as good and lawful Representatives of those Cities and Boroughs. So that I am clearly of the Doctor's Opinion, that the Tenants in Capite, as well those who were Barons as those that were not, only represented themselves, and not the Commons, as being (as you truly observe) never chosen by the People. And as no Man can believe that a great Lord or Bilhop could represent his Mesne Tenants, so neither could the smaller Tenants in Capite who were no Barons, be properly laid to represent theirs;and yet, these might according to the Custom of Feudal Tenures, and tsie Power, they then had over their Tenants Estates, very well make Laws for them, and tax them at their Pleasures, because the main Interest and Strength of the Kingdom lay almost wholly in them •, and these (as the Doctor very well observes) having the Power of this, or any other Nation de faUo, always did make Laws for, and Tax the rest of the People.

But to lay somewhat to the Authorities you have brought from the County Talatines of Chester and Durham j I know not what old Privileges they might pretend to, of not being forced to give voluntary Aids or Subsidies of their moveable Goods without their Consents j yet thus much I think may be made out, that as for all Land Taxes, and the general Laws and Statutes of the Kingdom, they were as much bound by the one, and as much liable to pay to the other, as the rest of the Subjects of England; or else how came they afterwards to be bound by our general Statutes at all, as certainly they were from all Times since the Conquest •, though Chester had no Representatives in Parliament, till the Reign of Henry the Eighth, and Durham had none till our Times.

F. You Gentlemen who hold this general Notion of Tenants in Capite, are so intoxicated with it, that you do not care what Absurdities or Contradictions you fall into, provided you may maintain your dear Opinion, as I shall shew you by and by But first let me tell you, your Reply to what I have now said, is very fallacious, and in some Points mistaken as to the Matter of Fact: For in the first Place, I doubt not but our Common Councils or Parliaments were in the first Institution, the main Body or Representative of all the Freemen of the Nation-, and though it came by long Continuance of Time to deviate from that' Institution j yet, that is to be attributed either

to

to some prevailing Custom, or else positive Law to the contrary; for I think
it evident, that in the Saxon Times, all the1, Freeholders of England had a Right.'
of coming to Parliament in Person-, and hence it is, that Liber Tenens, li-
ber Homo iff Ingenuus, were Synonymous, and of the fame Signification, as I
have proved from Sir Henry Spelmans Comment, in his Glossary upon those i
Words. And hence it is, that the Members of those Councils were so nume-
rous as they were in those Times, and long after, till they became so vast and
unmanageable, that they were fain by Degrees to pitch upon this Method of
sending Knights of Shires to represent them; which is certainly a very an-
cient Institution, since the Tenants in Ancient Demean, claimed to be ex-
empted from the Expences of Knights of the Shires by Prescription, as I
shall shew you more particularly by and by; and likewise, since all Riches
consisted in those Days in Land, or else in Stock, or Trade $ therefore rhe
Cities and Boroughs, and Towns, by Reasen of their Riches, had always a
Share in the Legislative Power, as well as in giving of Taxes. And since
all such Citizens and Burgesses, not being able to come in Person, as the
Freeholders could, were represented either by their chief Magistrates, called
their Aldermen, or else by Burgesses of their own chusing, as at this day*
so that all Freedom, or Ingenuity being in this, as in all other Common-
wealths, reckoned per cenfum, by the Estates of the Owners; our Common
Councils were, and that truly, rhe Representatives, not only of the Estates,
but Persons of all the Freemen of the Nation. For I am so tar of the Doctor s
Opinion, that the Cheorl Folk (as they were then termed) were little bet-
ter than the Scotch Vassals, or French Peasants at this Day, and se were not
reckoned among the Freemen; all Freedom consisting then in so much Free-
hold Lands, held in a Man's own Right, or being Freemen of some City or
Borough Town. And this gives us a Reason, why Copyholders and Te-
nants rbr Years, have no Vote in Parliament at this Day:, since it is certain,
( and all our Law-Books allow it) that at the first all Copyhold Estates were
held by Villenage, and the Owners of them at first the VtUani, or Tillers of
the Demesnes of the Lord of that Town; there being at first no Freehold
less than that of a whole Township, since a Manor; and therefore all
Copy-holders and Tenants for Years, or at Will, though Freemen, are not
admitted to have Votes at this Day, because (as I laid before) Freedom anci-
ently consisted in the Inheritance or Freehold Estate of Land , or in Riches
in Trade or Traffick -, Leases for Life and Years, being not commonly in Use in
those Days. And hence it is, that when Estates of Freehold came to be
divided into small Parcels, all Freeholders till the Statutes of Henry IV. and VI.
(which we have before cited) were as much capable of giving their Votes
at the Election of Knights of Shires, as the best and greatest Tenants in Capite
jn England, till it was reduced by those Statutes to 40 J. Freeholder Annum-,
these Freeholders and Burgesses of Towns being anciently looked upon in the
Eye of the Law, as the only Freemen; and it was these Freeholders alone who
owed Suit and Service to the County Court, and were amerced if they did not
appear.

This being premised, and sufficiently understood, will give us a very good
Account, why Copy-holders and Lease-holders for Years do not give any Votes
at Elections of Knights of Shires; and yet the Parliament may still continue the
Representative of all the Freemen of the Nation; as the People of Rome, and the
Territories about it were of all the Romans, though there were a great many
Liberti, and in lnquilini, who sure were Freemen, and not Slaves, and yet had
no Votes in their Comities Centuriatis, or general Assemblies of all the Roman.
Citizens.

But that the Libert homines, iffLibere Tenentes de'Regno, must take in more T>t- Libert
than your Tenants in Capite, the Doctor himself is at last forced to confess Hom'!n^ &
in his Glossary (notwithstanding his maintaining the contrary in the Body <fiLtbereTen-
his Book) viz. that the Libert Homtnes,iff LibereTenentes, mentioned in K. Johns
Magfia Charta, were not only the Tenants in Capite, but their Retinue, and
Tenants in Military Service also, and whom he there supposes to have been
then the only Men of Honour, Faith and Reputation, in the Kingdom -, and if so,

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might certainly have been chosen Knights of Shires, as well as any of the Tenants in Capite-, though this is hutArgumentttm ad llcminem-, tor the Truth is, that the Mesne Tenants by Military Service, were not the only Men of Faith and Honour in those Times, fince it is certain the King's Tenants in Petyt Serjeanty, and of feme Honour or Castle, or else his Tenants in Soccage, besides those who held of other Mesr.e Lords, and the Tenants of those Abbots and Priors who did not hold in Capite, and yet were very numerous, were Men of as much Faith and Honour as those that didsince miny of them possess d as good, if not better Estates than the Tenants in Capitethemselves. So that you are certainly mistaken in Matter of Fact, when you lay the whole Force and Strength of the Nation lay in their Hands \ for if you mean "Legal Force, I have already proved, that the Tenants in Capitehad no Legal Right to give away the Estates of their Mesne Tenants, or to make Laws for them without their Consents, who were altogether as free as themselves, Servitiis juk debitis solummcdo exceptk, as Bractcn tells us, much lei's for Ib great a Body of Men as 1 now mentioned, who never held of them at all, and consequently could not upon your own Hypothesis, be ever represented by them. But if you mean a Physical Strength or Force; though this can give no Natural, much less Legal Right for one Man to Lord it over another-, yet even this was much farther from Truth, fince the Mesne Tenants of all Sorts, as well by Military Service as in Soccage, together with those above-mentioned, who never held of the Tenants in Capite at all, made Six Times a greater Body of Men, both for Numbers as well as Estates, than all the Tenants in Capite taken together.

But to conclude, neither is your Remark upon my Authorities from Chester and Durham at all to the Purpose -, for I have sufficiently proved, that those County Palatines, were not at first concluded within the general Laws and Taxes of the Kingdom; since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester, sufficiently declares; and certainly Durham had the like Privileges, fince I never heard that the Men in that County were more Slaves to their Bilhop, than the CheshireMen to their Earl. And though I grant that about the confused Times of King Henry VI. there was a great Breach made on the Ancient Liberties of these Two Counties Palatines; and if the King and Parliament made Laws for, and Levied Taxes upon them, though they had no « Representatives therein, this proceeded partly from their being over-powered by the rest of the Nation, and partly by the Ease they found in being excused from the Expences of Knights of Shires, and Burgesses, which all the rest of the Kingdom was at that time liable to, and which came to a great deal of Money (Four Shillings per diem, being in rhose Days, more than Forty Shillings now.) And yet you see at last rhey were aware of their Error, and at their Request , got the Privilege of having Representatives in Parliament of their own chusing, as well as the rest of the Kingdom. And if this had not been a Right claim'd by English Subjects, how came the Welsh Counties, which were anciently no part of the Kingdom of England, to have been admitted to chuse one Knight for each County, and Burgesses for each Borough Town, as well in KorthWales, as South-Wales, though both these were Conquered Countries at the first, and incorporated to England by particular Statutes? And therefore we have no Reason to deny the Truth of * v\d. Fortes, Bragorssand * Forte/cue's Assertion, that no Laws are made, nor Taxes imAng."ca'pftt. V°fe& in England, fine confenjucommuni totius Regni -, or as the latter truly adds, in Parliamento and certainly this Word common Assent must take in all their Aflents, who had Estates either in Land, or other Riches, at that Time when this Law was Established.

But leaving this Dispute about Scotland, and the County Palatines, pray make an end (tor it grows late) and give me the rest of your Reasons, why the Commons could not be represented in Parliament before the 49th ofhenry III. and 18th of Edward I.

M. I will

M. I will proteed to do it, and for this End shall reduce my Arguments to these Five Heads. The First is, some Writs found out and produced by the Doctor, whereby he proves that the Commons were not summoned during the Reign of Henry the Third, till the 49th. Secondly, The general Silence of all Statutes in Henry the Third's Reign; wherein is not one Word mentioned of the Commons, but rather to the contrary. Thirdly, The critical Time (viz. in the 49th of Henry the Third,) when the Commons were first called, during Montfort's Rebellion. Fourthly, Their Discontinuance from that Time, till the 18th of Edward the First, there being no Mention made of them in all the rest of the Reign of Henry the Third, nor yet of Edward the First, till the 18th-, in which the Doctor shews you a Writ (not taken notice of before) by which the Commons were Summoned anew to Parliament: Lastly, From the uncertainty of the manner of the Writs of Summons, whether for one Knight or Two Knights, and sometimes no Citizens and Burgesses at all 5, which sufficiently prove the Novelty of the Institution, as also of some Parliamentary Forms relating to the Commons, which shew that neither their Number, nor Manner os Election, was fettled long after the Reign of Edward the First.

To begin therefore with the first Head. I know the Gentlemen of your Opinion make a great Noise about the loss, or rather defect of the Writs of Summons, and Parliament Rolls of all the Kings, till the 23d or 25th ofEdward the First. So that we cannot be so well assured what was done in Parliaments of those Times, as we may be afterwards. Yet there are still some Writs of Summons extant upon the Close Rolls before and in those B A pTimes, by which the Bishops, Earls, and Barons, were Summoned to Parlia- .V &ddn. ments", or Great Councils. And we have all the Close Rolls of King John and Henry the Third ; on the Dorses of which, anciently, most of the Writs of Summons to the Commons in other Kings Reigns, are entred (few on the Patent Rolls, which we have likewise.) 'Tis thetefote very strange, if the Commons were then represented by Knights, Citizens, and Burgesses, and Summoned to Parliament as at this Day, that there cannot be found any Summons to them upon rhese Rolls, as well as to the Lords.

But the Learned Doctor hath, for our Satisfaction, found out Three Writs of Summons to the Lords, one in King Johns Reign, and two other of Henry the Third. The first is in the Close Roll, 6th of King John, directed to the Bishop of Salisbury , which is needless here to be repeated Verbatim ; M. 3. %dorft>. only pray take Notice ot the material Words of this Writ, where after the Cause of the Summons particularly express'd, it concludes thus,expedit hahere vejjrum Confdium iSf aliorum Magnatum "Terrœ nostrt quos ad diem ilium & locum fecimusconvocari. The Second is in the Close Roll of the 26th of M. 13. dorfo. Henry the Third, directed to IV.Archbishop of 1ork\ wherein he is likewise Summoned ad traftandum, Kobifcum una cum csterk Magnatibusnostris quos fimiliter fecimus convocari de arduk ~Kegotw nostris ftatum nostrum C totius Regni noftri fpecialitertangentibus; with this Note underneath, eodem modo'Scribitur omnibus Episcopts, Abbatibus, Comitibm, &Baronibus.

The Third is of the 38th of the lame King, directed to Boniface, Archbishop c/, ^.Hen. 3. of Canterbury ;whereby he is Summoned to be at Westminster within Fifteen Days M. 14. dors. alter Hillary . next coming, before the Queen, and Richard Earl of Cornwall, de Magnatibus about the Affairs of Gafcony: And this vety Council Mat. Paris, Anno Dom. ***** adCon1254. calls a Parliament, to which all the Magnates, or Great Men ofEng-g 'kTM'P land came together-, the Day of which Meeting he makes to have been the Pag. 92, 93. 6th of the Calends of February, being St. Julians Day, and which fell out within Fifteen Days after St. Hillary s Day, which was that appointed for the Meeting of this Parliament by the aforesaid Writ of Summons. And who were the Constituent Parts of this Parliament, may be farther made out by a Letter of the Queen, and Eatl Richard to the King, then in Gafcony, which is recited by Mat. Paris, in his AdJitaments in these VVords; Domino Regi unglix,Additament &c. Regina C Richardus Comes Cornubu Salutem, Recipimus literas Vestras ad F. 189* N. $0.J\.atale Domini proximo prœterititm quod in Crdstino SanBi Hillarij Convocare7BUS Archiepifcopos, Epifcopos,Abbates, Priores, Comites, & Regni Angiu ad vfiendendum, 8tc Whereby it appears who were then the Constituent Parts or

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Members of our English Parliaments, viz. the Archbisliops, Bishops, &c. Earls, and Barons of rhe Kingdom. So that there is no such Universal Silence concerning the Constituent Parts of our Parliaments, as you and those of your Party suppose, from the Loss of the Parliament Rolls of those Times; most of which, though I confess are lost; yet there are enough left to satisfy any reasonable Person, that there were then no Commons in Parliament in the Sense they are now taken. .

F. You cannot give me a better Demonstration of the Loss of the Parliament Rolls and Writs of Summons, than what you now offer; for if we have all the Close Rolls of King John and Henry the Third, on the Dorses of which you tell me the Writs of Summons use to be entered •, then certainly those to the Lords were there enter'd also-, and if so, how comes it to pals, that in above Eighty Years Time, in which there must be above Eighty Parliaments, you can (hew me but Three Writs of Summons, and those only to as many Bishops, and to no Temporal Lords at all? If so be these were Parliaments and not great Councils of the Bishops, Lords, and Tenantsin Capite, only, as I rather believe they were. For you rely too much upon your Doctor's Credit, when you alledge, that we have all the Close Rolls of King John and Henry the Third •, which is a great Mistake; for I have had a Friend who has given me a Note of what Close Rolls are still Extant in those Reigns, and what are lost, which you may here see.

To begin with King John-, pray observe, That all the Close Rolls of the first Five Years of his Reign are gone; and so they are in the 9th, 10th, nth, 12th, and 13th; for certainly, there were some in those, as well as in the succeeding Years. In the next place, till the 18th, there is but one Roll left of each Year; but then there are Three •, and after that, but one or two in a Year to the very end. Now pray tell me, how we can be assured, that there was not more then one Roll in every precedent Year, as well as in the 15th. The like I may fay for the Reign ofHenry the Third, which though I grant are more entire than those of King John, there being some left us of every Year, but the 23d; yet they are but a few; and for the greatest part but one in each Year; never but two in any Year in all this long Reign, unless it be the 39th, in which there are Four; which is very strange, that in so busy a Time, as most of this King's Reign was, there should be no more Rolls left: And therefore it seems very probable', that at least half are lost, and in which might be many Summons, as well to the Commons, as to the Lords. And if they are not lost, pray tell me what is become of all the Writs of Summons to your Lesser Tenantsin Capite, who certainly often met in this long Reign according to King Johns Charter. But if you will tell me they are lost, or omitted to be entred upon the Close Rolls, I may with like Reason and Certainty affirm the lame of the Writs of Summons to the Knights, Citizens, and Burgesses; for if the one may be lost, sure the other may be so too.

But what if after all, these Writs you have produced were not any Summons to a Common Council, or Parliament at all; but only to a Great Council of the Tenants in Capite? Which I have great Reason to believe, not only because the Title to the last Writ is only Summonitio ad Concilium, and not Commune Concilium Regni; but also because Mr. Selden and Mr. Pryn, who certainly must have seen all these Writs, as well as the Doctor, and were as able to judge of them, never cite them for Summons to Parliament; And Mr. Pryn observes of several Writs, in which the like Words of Summoning the Lords to give their Advice, are likewise found, that they were only to such Councils, or CoUoquia, or Treaties, which were frequently used as low as the Reign of Richard the Second. But if these Writs had been Summons to Parliament, sure Mr. Selden and Mr. Pryn had no Reason to bewail (as they so often do) the Loss of not only Parliament Rolls, but all Wrirs of Summons, both of Lords and Commons, (except those of 49th Henry the Third,) till the 23d of Edward the First. But pray go on, if you please, to make good the rest of the Positions you have now laid down.

M. I doubt not but in the next place to shew (though 'tis true most of our Parliament Rolls are lost} both from our Ancient Historians and Statutes, that



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there were no Commons in any Parliament, during all the long Reign of King Henry the Third, except in the 49th of that King.

I (hall begin with the first Act of Parliament we have of the Time of Henry the Third, which was made in the 20th of this King, at Merton, where though it is laid, To be provided and granted, as well by the Archbishops,Bishops, Earls, Barons, as others; yet the Words £?' A/its, and others, are to be understood of the Tenants inCapite, distinct from the Earls, and Barons, as I have already proved.

F. I (hall Answer your Authorities as you go. You may fay you have proved it, but I know not when. And why may not I with as good a Face maintain, that these Words C Mm do hete signify the Commons; if the Wofd Barons must take in all the Great Lords and Lesser Tenants in Capite, as sometimes you suppose it doth, when no other Lay-Members are mentioned? But I have already observed, that this Barones is a Cheveral Word, and to be stretch'd, or contracted , as best suits with your Hypothesis. So I think I may with greater Reason suppose the Earls and Barons, to be all comprehended under the Word Barones, and the Commons under Mis, as I have already proved; and which is also most suitable to the last Clause of Magna Charta of King Henry the Third. But you forget that 1 have, I think, sufficiently made out, that the Commons had their Representatives, both at the making and confirming of Magna Charta in the 2d and 9th of Henry the Thitd •, and therefore whatever Proofs you bring to the contrary, will come too late; though I shall patiently hear what you have to fay. But if you have no mote Authorities to ptoduce from Statutes and Records, which have not been already considered, pray proceed to the 4 9"h of this King's Reign, and give me some Reasons why the Commons were cailed in that Year, and never before nor after, till the 18th of Edward the First 5 for they both seem to be very improbable Suppositions.

M. I lhall obsetve your Commands, and shall give you as short an Account as I can of this Transaction. First therefore, I desire you to take Notice, That after Simon Montjort, and the rest of the Barons of his Faction had taken King Henry the Third, and Richard Earl of Cornwall, the King's Brother, with B. A. P. many orher of the Nobility, Prifbnets at the Battef of Lewes; he carried M54-&dlinthem about, with Him, till they had taken in all the strong Forts and Castles of the Land •, and when this was done, Mat. Paris tells us, that calling together atLondon, the Bishops, Earls, and Barons of that Faction, which so seditiously held their King Prisoner •, they began to set up a Committee for the Government os the Kingdom, consisting of Twelve Lords, who were chosen out of the whole Community or Body of the Baronage, without whose Advice and Consent or at least of Three of them, no Affairs in the King's Houfhold, or in the Kingdom, should be transacted -, and to these Ordinances, the King and his Son were forced to agree. And though the Record of this Agreement recites, that this Ordinance was made at London, by the Consent, Good-liking, and R0t. pat. 48, Command of the King; and also of the Prelates,Barons, and of the Commu- ffcn. ill. M. nicy these present; yet I am not convinc'd, that by the Word Communitat\n6.Dorjo. the Latin Record, is to be understood the Commons, but the Community of the '• whole Kingdom ; since this Agreement is Signed only by some Great Earls, and Barons, and no Commoner Witness to it, but the Mayor of London, whom your self will grant was no Parliament Man.

Afer which, Simon Montfort, the better to settle himself in his Usurp'd Power and in those Lands and Castles which himself and those of his Faction had unjustly wrested from Prince Edward; who was now also a Prisoner, having delivered himself as a Hostage for the Performance of this forc'd Peace •, they in the fitst place sent out Writs in the King's Name, unto divers Bishops, Abbots, and Priors, and to such of the Noblemen as were of their own Party, to appear at Westminster, on the Octaves of St. Hillary next ensuing; and the Doctor hath given us a Copy of the Writ of Summons to B- A' pthe Bilhop of Durham -? as it is found in the Close-Rolls of the 49th of ^aJus. ±9. King •, and at the end of it, it is thus recited, eodem modo Mandatum est Epis- ^ j/t. 'M.' copo Carleol.As also to divers Bilhops, and Abbots, all of their own Party n. Dorso, fa and Faction •, there being above an Hundred Abbots and Priors then Summoned ScheduU. (more than were ever I believe, before or since); and then follows a short Writ to the


Sheriffs of Counties, to Summon two Knights it hegaswribus & Discretoribus singulorum Comitatuum;though it doth not appear by the Writ, whether the Sheriffs of the Counties were to Elect, and fend these Knights, the Sheriffs being then of the Faction, and made by them; for 'tis there said, only quod venirefaciant. There are also other Writs recited to have been directed to all the great Cities and Towns of England, as also to the Cinque-Forts -y to send two of the most Legal and Discreet of each of the laid Cities, Boroughs, Towns, and Cinque-Ports, to the said Parliament at Westminster, at the Time aforesaid. So that without the History of this Nick of Time, these Writs ( which are laid to be for the Delivery of the Prince out of Prison, and for the settling of Tranquility and Peace in the Nation,) cannot be understood.

But Prince Edward's Release could not be agreed upon in this Parliament, whatever other Business might be dispatched: So that Things still remained in this uncertain Condition (the King being all this Tirrfe a meer Shadow) until such Time as Simon Montfort, and Gilbert de Clare, Earl of Gloucester falling our, the latter at last took up Arms, and joining with the Earls of Surry' and Pembroke, to whom also came Prince Edward, after he had made his Eseape from Hereford; they all together raised considerable Forces against Montfort, who meeting them, and joining Battel near Evejham-, Montfort with one of his Sons, and many other Lords and Knights were Slain, and all his Party routed.

Now pray tell me, if this is not a very clear Account from the History of the matter of Fact, why the Commons were first called to Parliament by Mont. fort during his Rebellion. And I think I can also give you very good Reasons (and Authorities to back them) why they were again discontinued all the rest of this King's Reign, until the 18th of Efdward the First.

F. I shall tell you my Opinion of your Narrative by and by; but in the mean Time, pray satisfy me in one or two Questions: Pray Sir, what may be the Reason, that we can find but Twenty Three Earls and Barons Summoned, of that great Number there was then, and only Thirteen Bishops in this Parliament •, and yet at the fame Time there should be Summoned above an Hundred Abbots and Priors, and but Five Deans of Cathedral Chuiches •, pray why might not these numerous Barons be trusted, as well as all the Abbots and Priors?

M. As for his not Summoning all the Earls, Barons, and Tenants in Capitc, but putting Knights of Shires and Burgesses in their Rooms; rhere may be a

B. A. P.p.i43. very good Reason given for it, viz. the Danger that Simon Monfort and his Privado's apprehended from the too great Concourse of the Nobility, and their great Retinues j and the Example of his own and the Barons Practices at Oxford, in the Parliament of the 42d of Henry the Third, might be the Cause why they altered the Ancient Usage; and of their sending Writs our, commanding the Sheriffs of each County, as also the Cities and Burghs to fend two Knights, Citizens, and Burgesses respectively. But the Reason why there

ibid. 139. was  many Abbots and Priors Summoned, was, because Simon Montfort thought "J himself sure of them: He was a great Zealot, and a Godly Man in those Times, and a great Minion of these Religious Men (as then called) as also of the Bishops and Clergy •, and they were at least seemingly Great Favourites of his.

F. I must confess there is some colour of Reason, why Simon Montfort should Summon so many Abbots and Priors to this Parliament, if he were sure of all their Votes before-hand \ but there is no Certainty of this •, for if he had been so sure of them, there was as much Reason why he should have called them all likewise to the Parliament at London, which you say he Summoned the Year before; when with the Consents of the Bishops, Barons, and others, he made the new Ordinances you mention: But you cannot find in any Historian or Record, that he then Summoned so many of" them 5 and it seems pretty strange, that all these Abbots and Priors, and Deans, not a fourth Part of which were Tenants in Capite, should all take the Trouble to come to this Parliament without anv Scruple •, if neither they nor their Predecessors had ever been Summoned before.




But the other Reason you give why so many Earls and Barons should be omitted, is much more unlikely -, for if the numerous Barons factious Practices at Oxford had before frustrated Montfort's Design, there had been indeed some Reason why he mould have done all he could to have hindred their1 coming again •, whereas on the contrary, the Earls and Barons at the Parliament at Oxford, though they came thither'with Arms and great Retinues, yet it was only to join him, and to force the King to agree to the Oxford Provisions. But if the Commons were now summon'd (as you suppose) to curb the extravagant Power of the Lords, yet it could not be his Interest, or indeed in his Power so to do •, not the latter, because the Earls, Barons and Tenants in Capite,were too powerful and numerous a Body to have suffered such an Affront and Breach on their Ancient Right, as this would have been. Nor could he and his Two and Twenty Companions, have ever dared to have displeased so great and powerful a Body of Men, as you must allow your great Barons, and Tenants in Capite both great and small then were, and who made such a powerful Opposition for their Liberties in King Johns Time; or that they would have thus tamely permitted Men wholly of the Sheriff's Choice, to have thus taken away their Places in Parliament, and made Laws for them, much less the Citizens and Burgesses, most of whom Were certainly not Noble by Birth, nor yet held Lands in Capite. Nor could it be for Montforts Interest so to do: For the greatest Part of the Eatls and Barons were of his Side already, and thus to exclude them, had been the only way to disoblige them, and make them leave him, and go over to the King's Side. So that I must needs tell you upon the whole Matter, granting Montfort to have been such a Knave and Hypocrite as you make nim, yet certainly he was no Fool, but a cunning Politician •, and I leave it to your self, or any indifferent Person, to judge whether it was possible for him to do so filly and unpolitlck a Thing as this. For granting all the Abbots and Priors to have been of his Side, (as you suppose) they could no way counterbalance the great Power of those Earls and Barons, and numerous Tenants in Capite, that were all hereby excluded. So that let the Commons have been Summoned When you will, it was certainly before this 49th of Henry rhe Third, or not at all.

But to give you my, Opinion why so sew Earls and Barons are mentioned in this Record of the 49th of Henry the Third, to have been Summon'd to this Parliament: I conceive it was not out of any Jealousy or Suspicion in SimonMontfort of those who were then his fast Friends, but out of pute Carelesnets, or Omission of the Clerks ; who I suppose through Haste, Inadvertency, or Multiplicity of Business omitted to enter the Names of all the rest of the Earls Bilhops and Barons, to whom Writs of Summons were likewise sent. And that I do not speak without Book, I appeal to the Record it self where there is a blank Space left unfill'd of about Four Inches Breadth, which could be left for no other End, than to add the Names of all the rest of the Earls and Barons who were certainly Summoned to that Parliament, as^well as those whose Names are there expressed.

M. I shall not longer dispute this Point, bat I think you must grant that the Commons are never mentioned in any Record or Statute of this King j for after his Victory at Evejham, he called a Parliament at Winchester,whereto we do not find any Commons Summoned, as before j but the King, by the Advice of his Magnates alone, Seized the Liberties of the City of London, and also they gave him all the Lands of the late Rebels.

And then there was after this a Parliament Summoned at Kenelworth in the 50th of this King, where it was agreed by the common Assent of the Bishops, Abbots, Priors, Earls, Barons, and all others, that Six Persons, who were all (except one) either Bishops or Barons, should chuse Six others, and the whole Twelve were to judge concerning those Who were disinherited for their late Rebellion •, and their Determination or Award, is call'd,Diffum de Keneltaorth, and was made to better the Condition of the disinherited, and to turn the Forfeitures *and Loss of their Estates into a Composition for them after the value of five years Purchase, to be paid at two or three ssiort Payments: Yet we do not find that to this Parliament the Commons were at all t 1 summoned, Summoned, but the contrary; for though it is true that the Statute gives us all their Names who had a Hand in drawing up 'this Decree, yet the Doctor fnrther proves to you from Sir William Dugdales Baronage, that there was not one of them, but what was either a Bishop, or a great Baron of the Kingdom. Whereas had there been any Commons in this Parliament, they would certainly have had Commissioners of their own Order, as well as the Bishops and Lords.

F I mall give you a short Answer to your Authorities from the Parliaments of Winchester and Kenelvoorth. As for the former, you must own that &i4.P.p.i44. aj] tne R0]]s 0f ^ are lost; and that there is no more left of it on Record than that Writ or Commission which the Doctor has given us; which recites, That by the unanimous Consent of all the Magnatum, or great Men (as the Doctor renders it) the King had the Seisin and Possession of all the Rebels Estates given to him. Wrhich is no Argument to prove that no Commons were there; since I have so often made out, that under this Word Magnatum, not only the Knights of Shires, but Citizens and Burgesses were often comprehended. Tis true, there are no Writs extant, to prove the Commons were now Summoned; neither is there any Reason to believe the contrary; since if it were a cunning Invention of Montfort to Summon the Knights, Citizens and Burgesses, to abate the Power of the Tenants in Capite, it was sure as good Policy for this King to continue so Politick an Institution, which would for the future serve for ib good a Balance, not only against his Tenants in Capite, but his great Lords too. For the Parliament at Kenelvcorth, I shall admit all the Matter of Fast to be true as you have related it from Mat. Westminster, who fays, that the Twelve Commissioners appointed to draw up the Statute of Kenelvoorth, were chosen de Potentioribus Procerum, iff PrudcnticribusPraiatorum; and also that the French Record (cited by the Doctor) together with Sir Wiliam Dugdatfs Comment upon it, make it out plain enough, that the Lay Commissioners who were chosen by all the Parties there named, to make this Statute, were all great Earls and Barons, though in the Record ic self only stifd Knights.

Well, what follows from all this? That the Commons could have no hand in this Choice, because the tous Autres,or omnes A/ij, mentioned in this, and other Records, must needs always signify the smaller sort of Tenants inCapite and I fay it signifies the Commons as now taken. Whether you have made good your Interpretation by any cogent Proofs, I must leave to your own Ingenuity; for to tell you the Truth, I think your Doctor has led you astray in this Point •, and till you can make it out better than you have done, I must beg your Pardon if I keep my old Opinion. And if your Argument be good, that no Commoners were there, because none of them were chosen Commissioners, then by the sime Argument none of the small Tenants in Capite were there neither; because none under the Degree of an Earl or Baron were Elected. As sor the want of Writs of Summons to these Parliaments, if that were to be the Rule, that makes as much against the rest of the Tenants in Capite, who were no Barons; nay, the very Bishops, Abbots, and Lords •, since there is no Writs of Summons found for their Appearance at either of these Parliaments; and so the King might call whom he pleased.

M. In the First Place, It does not follow that because Montfort had Summoned some of the Tenants in Capite to appear for all the rest; and that he also called feme Citizens and Burgesses to this Parliament of the 49th, yet the King might have very good Reasons (though we cannot now positively tell what they were,) not to follow this new Invention of Montfort's, however it might then serve the Turn; for perhaps ths King did not like it, because introduced by a Rebel. And he had also by his Victory at Evrjham, id quelled the Power of the great Lords, and Tenants in Capite, that I believe he was afterwards able ro call or omit whom of them he pleased, according to the Testimony of Mr. Cambdens Nameless Manuscript Author, cited in his Britannia; that after rhe horrid Troubles and Confusions of the Barons Wars, only those Earls and Barons, Quibus Rex dignatus est breviaSummonitionn dirigere venirent ad Par/iamentumsuum, & non Alii.



And that this was true in Matter of Fact, I (hall prove from the nest8-'4 ft p." 144, Statute of Henry the Third, which is extant,, viz. that of Marlbridge, made I4S* in the %id Year of this King^ to which there were no more Summoned than some of the more Di/creet of the Greater and Lejfer Barons, as appears by these Words in the Preface to that Statute, Convocatis Discretioribus ejusdem Regni tarn Majoribus quant Minoribus, Provisum eft,& Siatutum ac concordatum, 8tc. which seems to have been done by the King s particular Direction; since by the general Writ of Summons provided by King John's Charter, the Sheriff of each County was to Summon all the Minor Barons, and Tenants in Capite; which could not be, if only the more Discreet were then Summoned; nor is there in this Preamble, the least Hint or Intimation of any Writs directed to Counties, Cities or Burghs, for the Choice of Members.

I desire you in the next Place to take Notice, that Briton (who lived about B.a.p. p.95. that Time) supposes this Statute to have been made, Per la Purveance de Robert Walerani id per Commune Meiit des Graunts Seigneurscht Rialme; by the Procurement or Forecast of Robert Walerand, and by common Assent of the Great Lords of the Realm, without any Mention of the Commons. I have a great many more such Statutes to Instance in, which are said by M. Paris to have been made in several Parliaments of this King, by the Community, or CommonUniversity or Baronage of the whole Kingdom \ but I pass them by, because we have sufficiently debated most of them already.

F. If only some of your Great Lords, and Tenants in Capite, could thus meet, and make Laws to bind all the rest, and they so tamely put up this strange Infringement of their Privileges, as you suppose, it seems their Power was much abated since the 37th Year of this King, when (as I said) Mat. Paris tells us, that the Barons would donothing without the rest of their Peers, whom it seems the King had then omitted to Summon-, and therefore I must needs tell you, that I am not of your Doctor's Opinion, nor yet of Cambderi's Nameless Author, that this King, after his Victory over Montforl and his Adherents, could by his Prerogative call, or omit what Peers he pleased \ since it is contrary to the Declaration of all the Bishops, Abbots, and Priors in full Parliament, in the Second of Richard II. wherein they claimed, "That holding per Baronium, it did belong to them, de Jure Cconjuetudine ibid, fir R. ** Regni Anglia (that is, by Rights of Prescription) to be present in all Parli- Cotton'*al** aments as Peers of the Realm, and to treat, consult and ordain concerning the lem°n "ff' * Affairs of the Kingdom. And if the Spiritual Lords claimed this Privilege, m m sure the Temporal Barons might with the like Right have made the like Claim j Mr* and I am sure it is highly derogatory to the Rights of the Peerage ofEngland to maintain that the King either hath, or ever had the Power of calling and leaving out what Lords he pleased, and so to make pack'd Parliaments to serve a Turn whenever he pleases.

But to come to the main Strength of your Argument, that because the more Discreet Men of the Kingdom osthe Greater as well os the Lesser, are only mentioned in this Statute, that therefore there were only called to it such Lords, and Tenants in Capite,' as the King pleased to Summon, and that all the rest were left out^ which is a very idle Supposition for at this rate, I may as well fay, that there were no Temporal Barons there at all, and that by the Greater Discreet Men are to be understood some of the Bishops and Judges who, though no Peers, yet were then the most Learned in the Laws and Customs of the Kingdom, of any Persons at that Time, and consequently the most IVi/e and Discreet to draw up Laws; and by the lesser Sort of Discreet Men, shall be understood suchGreat Clerks and Lawyers, though not Tenants in Capite, as the King pleased to chuse, as being likewise most able to advise him. But if you tell me that this Interpretation is forced j I may as well fay the fame of yours, and that with greater Reason. Yet I shall prove that this Parliament was Summoned in no other Manner, and consisted of no other Persons than those that used to appear in all other preceding Great Councils or Parliaments.

In the First Place, therefore, I must put you in Mind of what I have already said, that there is no Conclusion to be drawn from the bare penning of the different Forms of ancient Statutes, who wew Summoned to the making



{378}

of them, nor by what Power they were Enactedsome of them, it is truet being drawn in the Form 'of'the King's Charters, or Writs; without any Mention of the Assent either of the Lords or Commons ; and others are said to be Enacted by the whole Realm, without any Mention os the King at all; and I have given you a List of divers old Statutes from the Reign of King Henry the Third, to the Time of King Edward the Third, in which there is no Mention at all made, either of the King, or any other of the Three Estates; and yet no Man, I think, but will grant that these Statutes were all made, arid agreed to by them, according to the Usual Forms, though it be not particularly expressed. And therefore to give a better Account of this Law, it is fit we consider, that these Wordsconvocath Discretioribus Regni, are no more restrictive to seme particular Persons, than if it had been in the Superlative Degree, instead of Discretioribus, it had been Difcretiffimis, or Sapient istimis Regni, which no Man would interpret to mean only a lew of those whom the King should judge the wisest and most discreet Men of the whole Kingdom; and therefore we must not mind the Grammatical, but Legal Sense of these Words •, and then it amounts to more than this, that by the Greater Discreet Men, were meant the Lords Spiritual and Temporal, as under the Lesser Discreet Men were included the Commons.

But that these Minores Difcreti, cannot be understood of the Tenants in Capite only, appears by the Conclusion of the Preface to this Statute of Marlbridge, irt these Words: Provisiones, Ordinationes, iff Statuta subscripta abomnibus Regm ipsius incolis, tarn Majoribus, quam Minoribus, jirmiter if inviolabikcr temporibus perpetuUStatuerit objervari; so that if by the Major es Incolt, who were to obseve these Statutes, the Lords Spiritual and Temporal are meant, then by the Minores lncote Regni, must be understood for the fame Reason, the whole Commons of England; and so likewise by Parity of Reason, by the Minores Difcreti, mentioned before in thePreface, must be also meant the Representatives of the Commons in Parliament.

And that this alone can be the genuine Sense of these Words, may appear, by comparing this Statute with another made at Gloucester, the 6$ of Edward the First; where in the Preface it is recited in these Words, purvenan'tmesm le Roy, pur Amendement de son Royahne, & pur pluts plenier exhibition de droit fkome le profit d' officedemande, appclles les phis Discretes de Jon Royahne, auxibien des Greindres , come des meindres, eftablie eft, iffacordantment ordeine. So that if the Commons were there called to this Parliament, arid if by the GreindresDiscretes, were understood the Lords, then' by they like Reason under 'Meindres Discretes must be meant the Commons, as at'this Day. :■ \

But that this Statute was made by the Common-Council of the Kingdom, and not by a Conventicle of a few of the Lords and Tenants in Capite, Sumso/. 171,174, moned ad 'Libitum Regis, appears by all the Original Writs, sounded upon se'75- veral Branches of this Statute, which are to be seen in the Register •, reciting that

this Statute was made de Communi Concilio Regni. Now the Word Commune signifies no more than General; and how could this be call'd a General Council, which only consisted of a few of the wiser. Sort of Bishops, Lords, and Tenants in Capite.

As for what you and the Doctor cite out of Cambdens Nameless Author, of King Henry's sending Writs of Summons, and culling out a sew of the Earls and Barons out of a great Multitude that were Seditious, after' the War with the Barons was ended; if you will have it extend to those who never forfeited ,by reason of Montfort\Rebellion, I need not say much' to it, Fo.'. spo. since Mr. Selden, in his Titles of Honour, hath sufficiently baffled that Author's Authority •, for. if it was never true as to Earls, it was not like to be truer in respect os the greater Barons. But as for your lesser Barons, or Tenants in Capite? I know not but he might be much more in the right, in "respect of them:' ■■'»-'**•■

What you say as to Robert Walrand, is not much material; for though he was never so gredt a Baron or Lawyer, yet he could draw up this Law but as be. Ing. 6ne of the King's Council, who in those Days drew up, and prepared all Bills* that were oftered in 'Parliament. And thus Briton might well fay, 1 that that this was made by the Common Ajsent of the Great Lords, (this Act being lo highly for their Advantage) and yet the Commons might be also there as well as they ; for otherwise, if Briton must be literally understood, what becomes of yourMinores D/fcreti mentioned in this Statute to have given their Consents, as well as the Mijores? whereas this Author mentions none, at whose Request it was made, but the Great Lords only. But that by these Minores bicoURegni, mentioned at the end of this Statute, were meant the Knights, Citizens, and Burgesses, pray see a Writ of Summons the 24th of Edward the First, with the Doctor's Note upon it, in his Answer to Mr. P. The Writ is directed to the **• M. 4. Archbishop of Canterbury-, and concludes thus, that he should warn the Precu- gor^'pratores Cleri there mentioned, to appear with him, ad traBandum, ordinafidum' p*15*' £1 faciendum nobifcum, Ccum ceteris 'Prtlatis, Proceribus, & Alijs, Incolis Regni nostri; in the Margin over-against these last Words, the Doctor gives us this Note, the IncoU Regni were the Knights, Citizens and Burgesses mentioned in xhe former Writ, but not here particularly enumerated. Now, though it is true, that this Writ is after the Time that the Doctor will acknowledge the Commons to have been constandy Summoned, to Parliament; yet if these Words could mean the Commons in this Writ, why they should not signify the fame in this Statute, I can see no Reason, but the Doctor's Prejudices to the contrary. But if you have no more Authority to alledge from the Reign of Henry the Third, pray go on, and shew me the rest of your Arguments, why you suppose the Commons were never called in above half the Reign of Edward the First, till the 18th. And I desire this the more, because as I have already proved from the Statute of West. 1. 3 d of Edward the First, the Words, C tout le Communally de laTerre,coming immediately after the Counts, Barons, and those other Words foregoing, must needs signify the wholeCommonalty, or Commons of the Land; and so the Doctor himself has rendered it in his An- R A  r. swertoMr.P. *4*M4*

M. But first, pray observe what the Doctor there tells you, that by the Word Commonalty, he means not the Commons in the Sense they are now ciaus. ?. Ed. r. taken, but the Community of the Tenants in Cos he only: And for this, praf in 1. die veniconsult the Writ of Summons to the Archbishop of Canterbury to come to^lt'fmFarl'*" this Parliament, (which 1 confess is the only Writ of this kind that is left upon the Rolls from the 49th of Henry the Third, to the 23d of this King) in which you will find the Archbishop Summoned ad traBandum,ordinandum una cum Prelat'u, £f magnatibus Regni ; that is, as the Doctor explains it, with the Prelates and Great Men of the Kingdom •, which Great Men very frequently comprehended, as well the Barons Majores asMinores, the Earls, Barons, and lbld- ***7greater Tenants in Capitc, and the less, which then were the Community of the Kingdom 5 so that your Interpretation of the Words des Greindres, & des Meindres in the Statute ofGloucester (by which you would interpret the like Words in . the Statute of Marlbridge) for the Commons, as now understood, will signify nothing, as being before the Time we allow the Commons to have been Summoned to Parliament in this King's Reign.

. F. It were a very easy thing for any Man of a confident undertaking Temper, to frame what Interpretation he pleases, from the general or equivocal Words of Histories or Records, if he could as easily find Authorities to support it but I see nothing like a Proof for it, but the Doctor's bare Assertion: Since I have already sufficiently proved, that the Words Communalty and Communitas coming in our Statutes and Records immediately after the Counts and Barons, do always signify the Commons, as now understood •, and why they should not signify so here, I can see no Reason. For as to the Words in the Writ to the Archbishop of Canterbury^ they prove nothing at all, who were the Constituent Parts of that Parliament; for if the Word Magnates must needs signify the greater and leffer Tenants in Capite only, pray why do they not signify so in the Writ of Summons to Parliament, of the 49th of Henry the Third, J* *|r to the Bishop of Durham (which the Doctor has Printed) where there is no '*' r;* mention made of his Treating or Advising with any other Persons, than the othei Prelates, & Magnatibus nosim?Yet the Doctor, within two Leaves after, gives us the Writs of Summons for the Knights, Citizens, and Burgesses to B.AF.p.147.' this Parliament. But it seems in his first Edition of his Book against Mr. P.

Ccc 2 ."" he

he had not made those rare Discoveries he did afterwards; where he pretends not to carry this Opinion beyond the 49th of Henry the Third. Therefore pray go on to shew this new Light, by which the Doctor discovered that the Commons were never Summoned to Parliament all the Reign "of Edward the First, till the 18th.

M. In the first place, you cannot shew us any mention of the Words Communalty, or Communitas, in any of the Parliaments of this King's Reign-, not B. A P. Pag. in the Statute it Bigamis made in the 4th of this King -, the Preamble thereof 147,148. runs t0 tnjs gggQ.. That these Underwritten Constitutions were recited before some of the Bishops and others of the King's Council, and afterwards heard . and published before the King and his Council; here is no express mention, who were the Constituent Members of Parliament at this Time, or of this Parliament in particular, more than that it is said, in the Close of this Statute, that the aforesaid Constitutions were Published at Westminster, in the Parliament 'after the Feast of St. Michael.

So likewise by the Statute of Westminster the 2d, made in the 15th of Edward the First, it appears, that the Prelates, Earls, Barons, and the King's Council, were the Constituent Parts of the Parliament at Gloucester you but now mentioned; for it recites, that the King, in the 6th Year of his Reign, Convocatis Prelatts, Comitibus,Baronibus, iff Concilio suo apud Glocestre, 8Cc. And thus the Statute of Mortmain made by this King in the 7th of his Reign, is recited to have been made de Consilio Prelatorum, Comitum, Baronum, C ahorum Jidelium Regninostri de Concilio nostro existentium, 8cc. The Statute of ABon Burnel, was made in the nth of this King, by himself and his whole Council, Le Roy per Luy, & per tout son Council ad ordein & establie -, though this was done in Parliament, as appears by the Statute of Merchants of the 13 th of the fame King, which recites, that the King had made by himself and his Council at his Parliament at Mon Burnel these Establishments. I have . been the more particular in the recital of these Statutes, not only because here is no mention made of any Commons in these Parliaments; but also because k farther confutes your Position in your 5 th Dialogue, that the King had not, then the sole Legislative Power.

F. You have said almost nothing now (I except that of the King's being the sole Legislative Power,) which I have not already freely acknowledged, viz. that the Words Communitas, and Communalty, are not above twice.mentioned in the enacting parr of any Statute in this King's Reign; and the Knights, Citizens, and Burgesses not once mentioned, till the 34th of this King; nor any mention again of the Commonalty, till the Statute of Lincoln,made in the 12th of Edward the Second; and yet it appears by the Writs of Summons and Expences, beginning at the 28th of Edward the First, that the Commons had been Summoned to Parliaments ever since that Time; and that they were so also before that Time, I have already proved both by Acts of Parliament and Records; and it would be a very uncertain Constitution, if we should suppose the Representatives of the Nation, in the Great Council or Parliament, to alter as often as the Words or Phrases whereby they are expressed. But by yours, and your Doctor's Method of Arguing, if the Writs of Summons to the Commons of the 49th of Henry the Thitd, had happened to have been torn off, and lost, as they easily might have been; since it is only affix'd to the Roll by a loose Schedule; and also, that all the Writs of Summons to the Commons had been lost, from the 23d of Edwardthe First, to the 34th, when there is no denying the Commons to have been there, because particularly named; and if these Writs had also happened afterwards to have been lost, till the 12th of Edward the Second, when they are expresly named in the Statute of Lincoln, which I now mentioned: Then the Commons should have been as well excluded by the fame Argument, as they are after the 49th of Henry the Third, by the Doctor and those of his Opinion, because no Writs of Summons are found for them, nor any mention made of them in any Statute, first for above Thirty Years, and after that for above Thirteen Years together; since you will not allow the WordsCommunitas and Communalty to signify the Commons, till you please to take them in that Sense.

This

This may serve as a general Answer to all you have said concerning the Omission of the Commons in all Statutes, till the 18th of this King, and may serve not only for them, but against the Bishops and Tenants in Capite; being all present at divers Parliaments, where the Acts are recited to have been made by the common Assent or Accord,without at all specifying whose Assent, and semetimes without naming the King at all.

This being premised, it will be easy to return you a short and particular Answer to the Statutes you have cited. As for that de B'tgamis, you confess that the Statute only mentions its being recited before the King's Council, and publish'd in Parliament, without relating what were the constituent Parts of it; Ergo, no Commons were there; and I may, with as good a Face fay, no Bishops, Abbots, nor your smaller Tenants in Capite were there, because not particularly named. As for the rest of the Statutes you have cited, of Gloucester, Mortmain, and ABon Bur neb,'tis true, the Prelates, Earls, and Barons are there only particularly mentioned, because they then bore the greatest Figure in the Government, your Lesser Tenants in Capite being quite left out •, for that they could not then be comprehended under Baronum, I have sufficiently made out. But to conclude, give me any sufficient Reason, why the Commons might not be at these Parliaments, as well as they were in the 18th of this King-, tho' most commonly no otherwise mentioned than they were before that Time. If you say the Writs of Summons make it out they were there, you confess- your Prejudice; since the two Writs of Summons before that Time would, if they had not been lost, have made out the fame Thing.

As for what you fay for the King's being the sole Legislative Power in those Times, I have long since proved, that no King could ever legally make Laws, without the Consent of the Common Council, or Parliament 5 and'aster that, all that you can say for the King's making Laws alone, with the Advice of his Council, signifies nothing: For if the Words are literally to be understood, then this Council of the King, whether you will have it to consist of the whole Parliament, as the Statute of Mortmain seems to intimate, or else of his particular Council in Parliament, as in the Statute of A&on Burnel, where those Constitutions are said to be ordained by the King and his Council •> if by ordain'd, you mean only drawn up, and prepared for the Parliaments Assent, it is no more than what I shall easily grant to have been the usage in those Times: But if you will have ordained to signifyena&ed, then pray tell me how you will avoid the King's Council having a joint Hand with the King in his Legiflative Power; since the Words are, the King by himself and bis Council had. Ordered and Established. But you have carried both your self as well as me, too far from the main Question; therefore, pray give me some better Reasons why you are of this Opinion, That the Commons were not Summoned again to Parliament, till the 18th of Edward the First.

M. I am now coming to it: But first remember, that about an Hour or two B- A. P. ago, I cited a Record of the 30th of Edward the First, which related to an Act PaS'1491 of the 18th of this King: By which Record it appears, that the Prelates, Earls, Barons, and other great Men of the Kingdom, had then in full Parliament on the first ofJune, granted him 40 s. on every Knights Fee, to marry his Daughter: And it thence also appears, that tho' this Tax is said to be given for themselves and the whole Community of the Kingdom; yet it was by the Community of Tenants in Capite alone, because it was to be raised wholly upon Knights Fees; so that hitherto in this King's Reign, there appears nothing that can plainly evince, either the Summoning, or being of any Commons in Parliament, as now understood; however, we are at least left at great uncertainties; nay, in my Opinion, the Proof is more strong on the Negative, that there were none.

F. I wonder you should mention this Writ any more •, since I have already confuted the Doctor's Notion about it; and proved, that it was a general Tax granted by the Parliament upon the whole Kingdom, and not laid, either by or upon the Community of the Tenants in Capite alone; nor does the way of Taxing by 40 s. upon every Knights Fee at all prove it: For if it is to be understood of Lands only held by Knights Service, then this Tax could not have ex* tended to any other Estates, as certainly it did; since the King could, by King

Johns Charter have made his Tenants in Capite to grant him an Aid towards' this Marriage of his Daughter; and (if what you fay be true) could also have made all the Mefne Tenants of the Tenants in Capite, to have contributed to it according to the Knights Fees they held ; and this without calling a Parliament at all therefore pray give some better Authority than this •, for 111 assure you, I am not at all satisfied with it. B. A P.p. 149. M.I will now give you the Writ the Doctor has discovered, and by which <tf dein. ft wfli plainly appear, that this Tax granted in the 18th of this King's Reign was given before ever the Commons were Summoned to it and for this, the Learned Doctor has found out, (among a loose Bundle of Writs of this Year,) a Writ of Summons, directed to the Sheriffs of most Counties of England, j and they are the ancienreft extant, or perhaps that ever were (for in probability, the calling of Knights, Citizens, and Burgesses, according to that Example, was discontinued from the 49th ot' Henry the Third, unto this Time) by which two or three Knights were directed to be chosen for each County: Pray read, the Writ it self; since I look upon it as the first Pattern of this kind-, that of the 49th of Henry the Third, seeming to have been written in Haste, without those Forms that were afterwards required in Writs of this kind, and particularly in this: Edwardus Dei Gratia Rex Angli.e, Dominus Hiberni<e9 &Dux Aquitanix Vice-comiti Westmerlandia Salutem. Cum per Ccmites, Barones C quofdam alios de ProcefibusRegni Nojiri, nuper suijsemus super quibufdam Specialiter requifiti, super quibus, tarn cum ipjis, quam cum aliisde Comitatibus Regni ihus Colloquium habere volumus C Tractatum, tibi pnscipimus quod duos, vel tres deDifcretioribus, &' ad laborandum potentioribus Militibus de Comitatu prxdiBo fine delatione Eligi, & eos ad nosusque West' mcniisterium venire facias ita quod fint ibidem a die SanSi Johannis Bapt. prox. futur. in tresSeptimanes ad ultimnm cum plena .potestate pro fe, iff Communitate Comitat. prxdiUi ad confulendum, iffconsentiendum pro fe iff Communitate ittJ hits qu.e Comites, Barones, iff Procures praditfi, tune dixerimconcordanda, iff habea* ibi hoc Breve. Teste meipfo apud Westmonast. 14. Die Jun. jinno Regni Nojiri 18.

Whereby you may see in the first place, that there was yet no certain Number of Knights of Shires settled, who were to be Summoned to appear at this Parliament. And you may, in the next place remember from a betore-mencioned Record of the 30th of Edward the First, That on the first of this Month, the King had Scutage then given him in full Parliament: And now Fourteen Days after, at the Instance ot the Earls, Barons, and other Great Men of the Kingdom, upon certain matters by them moved and propounded to him, he issued* His Writs of Summons to the Sheriffs of the several Counties, to cause to be chosen two or three Knights of each County, to come to him at Westminster, three Weeks after St John Baptist at farthest. We may also further; observe from, this Writ, that it is -most probable (though it is not here absolutely said so) that the King was moved by the Earls, Barons, and great Men of the Kingdom, to call these Knights to this Parliament •, and that as this Writ is the first to be found after that of the 49th of Henry the Third; so I take it to be the first Writ of Summons after that Time, for the Elfction of Knights to represent the several Counties.

In the next place, that there could be no Citizens nor Burgesses chosen, or sent to this Parliament hy virtue of this Writ, in the fame manner as they were afterwards by Directions contained in the Writs sent to the Sheriffs, for Electing Knights of the Shires.

Lastly, That by this Writ, the Knights were to come to the King at Westminster, three Weeks after St. JohnBaptist at farthest; which was the 15th of July also, that in the fame Year, between the Time of the date of the Writ, and the "Time appointed for Meeting of the Knights, the Statute of Westminster the Third was made, as may appear by this Clause at the be-' ginning, Dominus Rex in Parliament0 fuo apud Weflmonafter'ntm postPafcba. Anno Regni Jui Decimo oBavo, videlicet in Qjtindena SanUi Johannis Baptist. (that is, the 8th of July)ad Instantiam Magnatum Regni fui Concejstt, Providit> iff Statuit, Quod de extero liceat unicuique libero hontini,8tc. So that this was the lime full Parliament, which gave the King Scutage on the first of June;



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arid then the King and Barons, without the Commons, made this Statute, or the Knights had another Summons after the Dare of this Writ (for before that they were not in Parliament) ot the Knights came a Week before they had need to have done; but neither of the latter are, probable, seeing the Knights then were great Husbands of their Time and Expenœs, and were not very forward to undertake this Service, as being constantly bound with, or engaged by Sureties, or Manucaptors for the Performance of.it, and their Appearance in Parliament: And therefore it seems reasonable to conclude, that this Law was made without them, and before their coming to Parliament. ,:

So much of this Writ; from which, as well as divers following Writs and other Records, it is evident, that it was from this King's. Authority, and at this very Time, that the House of Commons came to be fixed and establUh'd in the present constant Form it is now , and hath been in for many KingsReigns and then the King in this Age was not altogether confin'd to, any Number of Knights, Citizens, or Burgesses; nor were several strict Forms and Usages now practised, ever then thought of, nor some Legal Niceties and Punctilio's now in use; then judged absolutely necessary.

F. Fray give me leave to answer what you have now said from this Writ, before you proceed to any other Record. First, as to your Argument from the Variety or Uncertainty of the Number of Knights of Shires, which you at first suppose to have been summoned to Parliament, that I doubt will prove a gross Mistake ; for if we closely consider the Writ it self, it will prove no more than a Summons of these Knights to a great Council, Colloquy or Treaty (as the Writ here calls it) and not to a Parliament; the Words Colloquium & Tratfatummentioned in the Writ, not then signifying a Parliament; but such a Colloquy, Treaty or Council, as is mentioned in the Statute of the Seventh of this King, forbidding all Men coming with Arms to such Assemblies •, wherein there is also a plain Difference made between Parliaments and such Treaties, as'I have already proved from the Statute of the Staple of the 27th ot Edward the Third,which was first made in such a Treaty or Council,as appears by the Title to the said Statutes, and was afterwards confirmed by the next Parliament, in the 28th Year of the fame King, Chap. 1, whereby Magna Charta, and all other Statutes before made, are also confirmed. For had this Summons (you mention) been to a Parliament, sure there would have been also Writs of Summons found for the electing and returning of Citizens and Burgesses, as well as Knights of Shires to this Assembly, and these Writs of Summons would have been entred on the Dorse of the Close Rolls, according to the Rules your self have laid down; whereas this Writ is only found in a loose Bundle of Writs of Summons; neither is there any Title in the Margin of the Record (as is usual in Writs of Summons to Parliament,) whereby it may appear what kind of Assembly this was to which these Knights were summoned. Nor is your Argument from the Date of the Writs of Summons any convincing Proof that the Commons were not already in this Parliament at the Time of the Writ issued; since during the Session of it, the Earls and Barons might make, this Request, for calling of some other Knights out of the Counties, to give their Opinions and Advice in the Matters to be proposed to them by the King; and that thereupon the King at their Request* thought fit to summon Two or Three more of the Knights to have their Advica also.

And as for your last Argument, rhat the fame Parliament which'' gave the Tax above-mentioned on the first ofJune, must befitting even, to the very Time of the Return of the Writ, because the Statute ofWestminster the Third was made, on the Quindene of St. John Baptist, (viz. the 8th ot July) so that the King and the Barons, without the Commons, made this Statute, and th3t these Knights were summoned after the Act was passed there is no Necessity of making these Consequences ; for this Parliament might very well he dissolved that very Day this Act passed, and this Council or.Colloquy might be summoned to meet within Three Weeks after Midsummer (i. e.about the 16th of July) according to the Writ you . have cited. And so I believe it would appear, were the Rolls of that Parliament, and the Writs for the Expences of the Knights now extant, as they are lost, as well as those of divers succeeding Parliaments*

M Well then, you are forced to confess, that this Writ was issued whilst the Parliament was still fitting; and if so, I cannot see any need there was of another- less Council or Colloquy to meet after the Parliament was ended, since as long as it was fitting, that could have much better dispatched all such Business as the King had to do -, and how the King could foresee that he should have need of another Council before he had any Business for it, seems very improbable •, and therefore I think I may very well suppose with the Doctor, that this Writ was a Summons to Parliament, though it does not (I grant) exprefly call it so. But your Argument is of no weight, that because this Writ was not entred upon the Close Roll, that therefore it is not to be look'd upon as a Summons to Parliament, as also because the Title to it is only Summonitio ad Consilium •, since the Doctor in his Answer to Mr. P. gives us several Parliament Writs upon the Close Rolls with this Title ad Consilium h which proves, that the King had in those Days a larger Power of calling what number of Knights of Shires he pleased to Parliamenrs as appears by Two other Writs he there gives us of the 22d of Edward the First, which are entred in the Close Rolls to the Sheriff of" Northumberland, to cause Two Knights to be elected for that County, bearing Date the 8thof October and the next Day after, the King, as appears by another Writ to the lame Sheriff, ordered him to cause to be chosen two other Knights besides the former, and to cause them also to appear at Westminster the Morrow after St.Martins Day, to hear and do such things as the King should more fully enjoyn: The like Writs (with both the former) were sent to all the Sheriffs in England. Now though it is true, that the Title to the first of these Writs, is only de Militibus Elegendts & Mittendts ad Concilium; yet these Words well considered must certainly here mean a Parliament, both these Writs being entred upon the Close Rolls, where all Writs of this kind are wont to be found, as I have already observed •, and besides, the Words in the first Writ are the fame with those which are found in several other Writs of Summons to Parliament, viz. ad Confulendum, U Consent iend., pro se iffCommunitate ilia hiit qua Comites, Barones & Froceres prxdiSi concorditer ordinaverint in pramijfis.

F. I confess we are at a loss in this Affair, for want of the Records of this Parliament •, which if we had, I doubt not but there would appear very good Reasons why the Lords did then desire the King should consult more of the Knights of the Shires than what had appeared at this Parliament-, as that Lords might refuse to give their Advice in the Matters proposed by the King, without he would also consult more of the best and ablest Knights of Counties, who were to come up with fresh Power, and further Instructions, what Answer to give the Sing in the Matters he should propose, which, that it was neither to give Money, nor make Laws, is plain •, since (you fay) the Tax of 40 s. on every Knight's Fee was given, and the Statute of Westminster 3d made before they came up to Parliament * but indeed the Words in the Writ plainly prove that this was no Parliamentary Meeting, since they are here

_ only Summoned ad Confulendum, 6? Confentiendum whereas in all Writs of

P"i-137. Summons to future Parliaments, the Words are ad faciendum quod tune de Communi Consilioordinabitur, or the like, as appears by the Writ of Summons of the 23d of this King, which the Doctor has printed whereas the Words in this Writ are only ad consentiendum, &c. bits qua Comites, Baronet i!f Froceres prtdiftitune duxerim concordanda, &c. And if this had been done at the Request of all the Tenants in Capite (as you supposej how come the Bishops, Abbots and Priors, who held also in Capite, to be omitted, and not mentioned in this Writ to have joyned in this Request, as" well as the Earls, Barons and great Men?

But as for the Doctor's next Precedent, viz. a Writ to the Sheriff of Northumberland, to return Two Knights of the Shire, and then the next Day after, other Two for the fame County; I am not at all satisfied, that those Writs were a Summons to a Parliament, and not to a great Council; for besides the Title of the Writ is de MilitibusEiegendk if Mittendts ad Consilium, the


Words in the Writ are not the lame with those which were commonly used in Writs of Summons to Parliament, as I have already shewn you in this Writ of Summons we are now upon: Whereas in the Summons to Parliament c/M.r-*i- £• »• of the 23d of this King, the ordaining Part doth as much refer to the Com- ***'DQr>Bmons, as to the Lords, the Commune Consilium consisting of hoth •, Whereas in these Writs you have cited, they were to consent to such Things which the Earls, Barons, and great Men should think fit to agree to. But thar I may lhew you a little more plainly, the Absurdity of this Fancy of your Doctor's, that these Knights of Shires were now summoned, the Parliament sitting; Pray let me ask you one or two Questions concerning this Business; pray who were these Gentlemen that the King you lay thus summoned to Parliament?

M. According to the Doctor's Account, they must have been all Tenants in Capite, since he often tells us, that out of these alone, the Knights of Shires were chosen at the first.

R Well, but then who were these Magnates and Alij Proceres, mentioned in the Statute of Westminster, and in this Writ of the 18th of Edward the First?

M. I must own -my self at a loss, certainly to define who they were-, for if I lay they were the smaller Tenantsin Capite, who are here put as a distinct Order from the Comites Us Barones immediately foregoing, I foresee you will ask me how these Gentlemen could be Summoned; since all the Tenants in Capite were at this Parliament already? Therefore, I must tell you, I think there were only some of the greatest and wisest of the Tenants in Capite, who were no Baron*, now Summoned; and whom the Doctor tells us, were often called to great Councils, as Barons, Peers; and who, though sometimes called to fit among the Lords, were often again omitted in several Kings Reigns; so that this Parliament was composed (as those of Ma/bridge and Gloucester) not of all, but only of the more disereet of the lesser Barons or Tenants in Capite.

F. If this be all you have to fay to extricate your self out of this Difficulty, I think it will not amount to much; for in the first place, all you have here said is meer Conjecture without any Proof; since this Statute ofWestminster 3d, fays only in general, that it was made at the Instance of the Magnates, under which Title your Doctor, when he explains the Writ of Summons to the B' ÆP«^-I47Archbishop of Canterbury tells us, were frequently comprehended the Barones Majores, the Earls and Barons •, as under Minor es, the lesser Tenants inCapite; which when the Statute of Westminster the first was made, he will have to be the whole Commonalty of the Land therein mentioned; and why this Parliament of Westminster the 3d, should not consist of the same Members now, needs seme better Reasons than your bare Affirmation to the contrary. Besides, this Prerogative of calling these Barons Peers to Parliament, did not only extend to Tenants in Capite, but to other Melne Tenants also; if the King thought them considerable enough for Estates, or Wisdom, to do them that Honour ; and so was not confined to Summon none but Tenants in Capite, who according to your Interpretation of King Johns Charter had all a Right to appear by General Writs, at the Common Council of the Kingdom. But you may put what Sense you please on these Words Magnates & Proceres; yet I am sure your Dotlcr can take them in no other Sense than for the Community of all the Tenants in Capite, both great and small; and so he tells us in his Glossary, when he Comments upon the Writ of the 30th of Edward the First, which Tjf Commltni, you mentioned, and which refers to this very Parliament of the 18th, when tuRtpu. Forty Shillings was granted on every Knights Fee to Marry rhe King's Daughter ; B.o.p. 52,3?. and there the Doctor immediately tells us, "That such as paid that Scutage "wereTota Communitaf Regni, and no others; and that the Tenants in Capite "granted and paid it first for themselves and Tenants, ©V. and which , must certainly relate to this very Parliament of the 18th of Edward the First, or none at all.

M. I confess I do not see how the Do&or can solve this Difficulty, but by denying What he has already said, and affirming, as I do now, that all the lesser Tenants in Capite were not Summoned to this Parliamenr, but only




some of them at last ordered by this Writ to be chosen and returned by the

 C°K'Yes, he might do it, if bare affirming were to pass for Proof; but I shall not give'up my Reason upon rio better Grounds, either to him or you ; not to mention the Improbability of the Thing, that the King should be now overpen.uaded by the Earls, Barons, and orher Great Men, to call these Knights of Shires, which had been omitted ever since the 49th of Henry the Third, for above Twenty Years, when he had no need at all of them, but rather the Advantage of governing without them; since it is the Policy of Princes rather to diminish than increase the number of the Members of their great as well as private Councils, who certainly are more easily managed when they are a few than a great many.

M. but what if we should go from the Doctor's Position, and fay, that perhaps these Knights were chosen out of the Mesne Tenants of the Tenants in Capite; many of whom I grant might be considerable for Interest as well as Prudence; and with whom the King at their Request might desire to treat of certain Matters which had been before moved and propounded by him.

F. This is all that can be laid, and yet is much more unlikely than the other; since to believe that the Earls, Barons, and Tenants in Capite should be now grown so weary of their Power of imposing Taxes, and malting Laws for the whole Nation, as tp intreat the King to admit their Under-Tenants to partake of so large a share in both, is so extravagant a Fancy, that if it had not suited with the Doctor's present Hypothesis, he would never have asserted it in cold Blood; since himself affirms, that upon the making of King John's Charter, the Earls, Barons, and Tenants in Capite, were the only Parties to it; and that all the rest of their 'tenants who were therepresent, were only their Retinue 'and Tenants in Military Service, which were with them at Runnemede, and were

B.G.Glo.t-$i- hard/y to be reckoned among the freemen of the Kingdom'; all the reft being only f ollowers whohelped to augment the Koije , and were not Law-makers: f or 'tis not probable (fays the Doctor very well) thatthose Men that had the force of the Nation would permit Men of small Reputation to Jhare with them inLawmaking: Those that had the Rower of this or any other Nation de Facto, always did give Laws, and Tax theReople. But it seems these Great Lords and Tenants in Capite, are either very stiff to maintain, ^ or else easy to give up their Privileges, just as it best suits with the Doctor's present Occasion ; but the Doctor may 'contradict himself as much as he pleases, since it is not his Fault, but his Hypothesis that hath led him into it.

M. I confess it seems somewhat hard at present to conceive it; but we know not what Reason the Lords and Tenants in Capite might have had to desire the Concurrence of these Knights of' Sjiires at this Junctute of Time. But that their coming to Parliament looks like a new Thing, may farther appear from hence, that the King for a good while after the introducing Knights

B.A.P.p. 152. of Shires to serve in Parliament, was wont to use the Liberty of Nominating the fame Members of Parliament who were formerly chosen; as appears by a very remarkable Writ' the Doctor there likewise gives us, of the 28th of the fame

cfeuf. 28. £.1. King, directed to the Sheriff of Cumberland; whereby he is commanded to

At. 3. Dors, cause t0 appear at the Parliament of Lincoln, on the OBave of St. Hillary, the very lame Knights, Citizens and Burgesses, who had before appeared at the last Parliament, unless any of them were Sick or Dead. From which we may collect, that our Kings in those Days often made use of their Prerogative of Summoning such Members to Parliament, as were not then actually chosen by the Counties to serve in that Parliament: And for a farrher Confirmation of this, there is still extant upon Record in the fame Roll the Returns of several of the Sheriffs upon the fame Writs: Whereby it appears, that the fame Members were returned to appear in this Parliament, without any new Elections, who had before served at the precedent, unless in the Case of some that were Sick or Dead.

And that our Kings had not yet a long Time after lost their Prerogative of Nominating how many Knights, Citizens and Burgesses, they would have chosen Claus. 45. Ed. and rerurned to appear in Parliament, may appear by a Writ of rhe 45th of Ed3 M. 2. Dor,. Ward the Third, whereby one Knight for a County, and one Citizen and Burgess,

and and those too named by the King to the Sheriff, were to he Summoned to appear in Parliament at Winchester,to do those Things that are appointed in the fame Writ, which were likewise directed to all the Sheriffs inEngland ; and that this was a Parliament, appears from hence, that the Knights, Citizens and Burgesses had Writs for their Expences at this Meeting at Winchester. And though in these Cl. 45. Ed. 3. Writs it is only expressed by these Words, Magnum Con/ilium Nostrum; yet from M-22- D°rfthis Writ of Summons it is evident, it did the Business of a Parliament, and so no ~ ^ lJ- die great Matter for the Name. ^mu 

F. If these be all the Arguments you have to produce against the Ancient Right , of the Commons being part of the Parliament before the 18th of Edward the First, I doubt they will not he sufficient to do the Business. For as to this Record of the 128th of Edward the First, whereby the King is supposed to have had a Power to cause those Knights of Shires to be returned who were Elected to serve in the Parliament before going, without any new Election, this is altogether precarious; for if you will but read the Writ it self, and the Reason of the King's thus acting, it will plainly prove the contrary. For the King recites in that Writ, "That having ** resolved that the Charter of Forests should be observed, and that his Subjects "had made a Peramb^ation thereupon-, yet that -he would conclude nothing in *' that Matter, without the Counsel of the Prelates, Earls, Barons, and other Great ** Men v and therefore desiring to hasten that Business, as far as he could without * any Delay, he thereby orders him to cause to come before him to the Parliaf* ment at Lincoln, the fame Knights, Citizens, and Burgesses, as were before "Elected. Now the King might have very good Reason for it, why he would rather treat with them than with any other, because they had been privy to all the precedent Transactions concerning this Business of Forests, and therefore were most likely to come to the speediest Conclusion with the King in that Affair, as being better instructed in it, than h was possible for any new Members to be, who had not before been privy to the whole Affair.

Yet that the King never intended hereby to im'pose Representatives upon his People without their free Consent, appears by this Clause at the end of the said Writ, Ita quod Milites, Cwes & Burgenfes prœdifti diBis die & locomodis omnibus interjint cum plena potestate audiendi, 8c faciendi.^z qu£ ibidem inprœmijfis orditiari contingentfro communi commodo difti Regni. Now how these Knights, Citizens and Burgesses could appear in Parliament with full Power of acting therein, without the new Election or Confirmation at least of those whom they represented, I should be very glad if the Doctor or your sess could inform me. But to come to your next Record of the 45th of Edward the Third, whereby you would prove that the King in those Days had a Power of appointing, not only how many Citizens and Burgesses should appear in Parliament for each County, but also could name the Persons that should appear therein: I wonder how the Doctor could so impose upon your, or his own Understanding; since nothing is more apparent than that this Council at Winchester, to which they were Summoned, was no Parliament at all but a Great Council, as appears by the very Words of the Writ it self, which recites, "That whereas a Parliament lately at Westminster, "had given the King a Subsidy of Twenty Four Shillings and Three Pence upon "every Parish in England, that the King being willing to be better inform'd "after what manner the Levy of this Tax might be soonest performed •, and be"cause it would be burthensbme for all the Great Men, Knights, Citizens and "Burgesses, who came to the said Parliament to meet together again for this "Matter, therefore he Ordained for the sparing their Pains and Expences, to 41 have a Colloquy and Treaty with some of the fame Members, and therefore "names the very Persons whom he commands should appear before him at Win"chester, to inform him and his Council of the best Manner and Form whereby "the said Tax might be soonest and most conveniently levied, according to the "Intent of the said Grant. So that nothing is more plain from the Writ it self,' than that this Assembly was no Parliament; the proper Business of which is always to make Laws, give Money, or redress Grievances; none of which, it is apparent, were the Cause of this Meeting. So that those who were thus Summoned, did not appear as Knights of the Shires (their Power being expired at the Disso- , lution of the Parliament) but only as so many particular private Men, who by reason of their Interest in the Country, the King supposed could best inform him


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in the,Business above-mentioned; the like I may fay for the Citizens and Burgesses then summoned. But that in the Reign of this King there were several Councils of this kind, which tho' no Parliaments, as having but one Knight, one Citizen, and one Burgess, and only making Temporary Ordinances concerning Trade, and other Things of less moment, which were to be put in Practice for a Time, till they could be confirmed by the next Parliament, appears by the Ordinance or Statute of the Staple above mentioned, fi*. 215. And of these Mr. Yrynin the first Part of his Parliamentary Register of Writs gives us divers Precedents; which he rightly judges, were only Writs of Summons to such Councils, and not to Parliaments; because there is no Summons in them adYarliamentum (which was the constant Word then in use for the great Council of the Kingdom) but onlyColloquium (f? TraBatum or Concilium, which was the Title then given to such Colloquies, Treaties, or Councils ; as alse because there are often but one Knight for each Shire ; and no Citizens, or else but one for each City and Borough; as also from the Writs to those Bishops, which are summoned to such Councils, in which is no Clause for the summoning of the Deans, Arch-Deacons, and Proctors for the Clergy of the Diocese, as was then usual in all Parliamentary Summons; and lastly, because the Titles of the Writs for these Assembles, are only Summonitioai Concilium; all which your Doctor passes by very flily without taking any Notice. And this may serve for a sufficient Answer, not only to this, but all those other Precedents which the Doctor hath there heaped together of the like nature.

M. But what lay you to the last Record the Doctor has given us, whereby he farther proves that the King did likewise often use his Prerogative of discharging such Knights of Shires as he judged not fit to be chosen, or returned? As may appear by another Writ which he likewise gives us of the 7 th of Richard the Second, directed to the Sheriff of Surry, reciting, " That B.a.p. "whereas Sir Thomas Camois being a Banneret, was chosen rone of the Page 162. "Knights of" the Shire for the fame County^ yet because such kind of Bana.M.32. « neretS were notwont before-Times to be chosen Knights of the Shire, ** therefore he commands them to cause another Knight to be chosen to come to "Parliament in his stead. So that upon the whole Matter nothing seems plainer to me than that-the chusing and returning of Knights, Citizens and Burgesses, being then but a Modern Institution, and proceeding wholly from the King's Favour, it was no wonder if they used a greater Liberty, and a larger Prerogative of nominating and discharging luch Members of Parliament as they thought fit, than they have of lateAges taken upon them to do, when the Custom concerning these Matters became better settled by Process Pag. 1 $4. ib. of Time. I have omitted several other Instances, which the Doctor there gives us of the King's Adjourning or Dismissing of Parliaments, to appear again upon his Summons without any Day appointed, which is contrary to.the present Custom of Parliaments; as also of divers Records in the Reign of Edward, the Second; the first a Precept to the Sheriffs to send up again such Members as had left the Parliament, or else to chuse others in their Stead; as also another Record of the same King, whereby it appears, that he not only by his sole Authority (and as far as it appears) without their Consent, not only Prorogued, or Adjourned the House of Commons, but also punished the Members for Absence. All which do farther prove that several of those Rights and Privileges which the House of Commons do now assume as their ancient and undoubted Birthrights, have been only granted from the Crown by the Indulgence or Connivance of some of-our Kings, who were afraid to displease them, and which his Majesty may, for ought I know, reassume and exercise again whenever he shall think it convenient so to do.

F. As for this last Record, whereby you would prove from the King's discharging Sir Thomas Chamois from serving as a Knight of the Shire for Surry, that therefore he had a Power at that Time of discharging whom he pleased from serving in Parliament, the Writ it self shews the contrary, for it Pug. 73d. there recites, that the said Sir Thoma* and his Ancestors had been Bannerets, which could not be meant of such Bannerets, as were Knighted in the Field; and therefore Mr. Selden in his Titles of Honour truly supposes, that this

2 Word Word cannot Be understood of any other Banneret then a Parliamentary-Baron, or Banneret of that Time: "The Expression of Hujusmodi Bannereiti "shewing that it is not meanr of all Bannerets, but such only as have that u Title, either by Inheritance, or in such a kind as an Inheritance might "be made of it, is apparent, by the precedent Words, Bannerettus est ficitt "cotnplures Antecejforum Juorum extiterunt. And the said Sir Thomas, and his Ancestors, having been often called to Patliament among the Barons, therefore this Writ was issued to discharge him for it appears by the first Volume of Sir William i)ugdale\ Baronage of England, that this Nobleman's Ancestors had been frequently summoned to Parliament, from the Reign of Henry the Third, as this Gentleman himself was likewise summoned to all Parlia-. ments from this 7th Year of Richard the Second, to the 8th of Henry the Sixth inclusively, when he is supposed to have died. And if he himself were not summoned to Parliament as a Lord, before the 7 th of Richard the Second, Mr. Selden in the fame Place , gives us a sufficient Reason how this might be, viz. " That his Name, by reason of Non-age, or some other Cause, was "omitted till the 7th of Richard the Second, for want of an Heir by Lineal "Descent, [Entails of Honours by Tenure, not being then frequent.] And as it . " hath sometimes happened (in like Case) the Dignity being obscured by his "abstaining from the Name of Lord, or Baron, the Freeholders of Surry "chose him Knight of their Shire * after which, he being according to his "Ancestor's Rights, summoned to Parliament as a Baron, there was a Neces** fity to discharge him, which was done under the Name of Banneret, and "not Baron, it seems according to the use of that Time, because he then ** held not a whole Barony, or did not hold per Baroniam". So that whoever will but consider this Account Mr. Selden gives us of this Business, need not run to the King's Prerogative, for a Reason how this Peer came to be1 discharged from serving as a Member in the House of Commons.

But that Banneret then signified the lowest Degree of the higher Nobi-.Pass, bility, appears by the Statute of the 15 th of Richard the Second, in the Second Parliament, in which, after the Archbishop, Bishops, Abbots, Priors, Dukes, Earls, Barons, immediately follow Bannerets, Knights of Shires, CitiJ , Zens and Burgesses * all which are specified to have a Right of coming to Parliament of old Times ; so that this Title of Banneret could not then signify what it hath ordinarily done since that Age: But a Baron's-Peer, at least such a one, had been himself, or his Ancestors, frequently called to sit among the Lords, but not holding by Barony, was not called a Baron, bwt Banneret only.

So that I hope I have now fairly run through, and examined all "the Precedents which you or your Doctor have been able to urge in this great Question 5 and I think, if you are as candid and ingenuous as I take you to be, you will not assert, that any of them do amount to a Proof; either that the Commons were never summoned from the 49th of Henry the Third to the 18th ot Edward the First •, or that the Writ of Summons he there produces, was to a Parliament and not to a gteat Council ; or that the King ever took upon him to appoint what number of Knights, Citizens and Burgesses, should come to Parliament, or could nominate who they should be-, or could discharge whom he pleased from serving as Members therein. All which your Dpctor, I think, with greater Confidence, than right understanding of the true meaning, of the ancient Writs and Records of Parliament, hath undertaken to assert. I beg your pardon for troubling you so long on these Heads, since the Length as well as Diversity of Records you have now cited, could not be answered in less compass.

M. I must confess, you have given pretty plausible Answers to most of the Authorities and Records I have now cited ; yet I cannot assent so fat as to come over to your Opinion, without a longer Consideration of the Strength of the Answers you have now given me to the Doctor's Authorities. But in the mean Time you would oblige me, if you could give me the rest of your Arguments, whereby you would undertake to prove that the Commons have been always an essential Part of rhe Parliament ever since the Conquest: For it seems to me, by what I have read out of our ancient Historians, that there is no express mention made of them I

hy Name, in any Historian or Record, till the Reign of Edward I. and as for those Arguments Mr. P. hath given us to the contrary, methinks the Doctor hath given satisfactory Answers to them. *■

F. I think I have made it clear enough, that the Commons of England were a constituent Part of the WittenaGemote, or Common Council of the Nation, before your pretended Conquest; and if it doth not appear that they were deprived of that Right by the Normans Entrance (which you have not yet proved) I think we may very well conclude, that Things continued in the fame State as to the Fundamental Constitution of the Government, as well after .your Conquest as they did before. Nor have you, as I fee, proved any Thing to the contrary •, since you confess, that as much a Conqueror as Ring William was, yet he altered nothing in those Fundamental Constitutions; the most that you pretend he did, being only in an Alteration of the Persons who were the Legislators, from English to Frenchmen, or Normans. So that upon the whole Matter, I think there is no need of any new Arguments to confirm this Truth; since the Commons of England claiming a Right by Prescription, of having their Representatives in Parliament; if you, nor your Doctor, nor none of those whom he follows, can prove by sufficient Authorities when this began, then I am sure you ought, if you were of the Jury in this Matter, to find for the Tenant in Possession; since that, together , with a constant Usage Time out of Mind, is as well by your Civil as our Common Law, a sufficient Tide to any Estate: Yet I doubt not but to shew you the next Time we meet* that the Doctor has not given such satisfactory Answers as you imagine, to most of Mr. P's best Arguments, proving this Right of Prescription to have been the constant Opinion of all succeeding Ages * to which I shall also add divers new Authorities, as well from Ancient Historians, as Parliamentary Records and Statutes But since it is grown now very late, I beg your Pardoa till another Opportuniay. . •

M. I thank you, Sir, for the Pains you have taken to satisfy me in this great Question; but pray come again within a Night or Two, that we may mike an End of this weighty Controversy, and then we may proceed to what we at first intended, viz. Whether the King can ever lawfully be resisted j or whether by any Act he may commit, he can ever cease to be King.

E I accept of your Proposal, and shall wait of you again as you appoint, but in the mean Time pray consider well of the Authorities I have now urged, and the Answers I have given to your Arguments, and then I hope there will be the less need of new ones.

M. I shall not fail to doit * but in the mean time am your humble Servant. _J F. And I am yours.

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DIALOGUE VIII.

Being a Continuation of the former Discourse concerning the Antiquity of the Commons in Parliament j whereinthe heft Authorities for it are proposed and examined. With an Entrance upon the Question of Non-Refistance,&c.

Part III.

Am glad to see you again so soon; for indeed I am very impatient to make an end of this great Question concerning the Antiquity of the Commons appearing in Parliament j and therefore pray go on where you left off, and give me those plain Proofs you promised me, whereby you would make out that both the Knights of Shires, as well as the Citizens and Burgeiies, had a Right to be there ever since the Conquest; for I desire to go no higher.

F. I thought I had said enough on that Subject at our last Meeting to satisfy any reasonable Person: I am lure more than you were able fairly to answer, especially as to my Replies to the best Authorities you brought from the Doctor ^ and therefore pray before we proceed farther, tell me your Opinion upon Second Thoughts, of those Authorities and Arguments I then gave you.

M. I must confess they do somewhat shock me; bur I hope you will pardon me, if I cannot come over to you, without first hearing what may be said by the other Side i> and to this End I have writ to the Learned Doctor for his Solution to several Difficulties, that I confess upon his Hypothesis I know not how to solve j buc doubt not but to receive farther Satisfaction ftom him as to those Points in a short Time •, but in the mean while, let us proceed in our intended Design, and .examine the rest of the Arguments you have to produce on your Side.

F. I shall obey your Commands; and therefore in the First Place you cannot expect more than is in our Power to give you. For since all the Parliament Rolls and Writs of Summons, (except those of the 49th of Henry the Third ) ate lost, till after the Times in Question between us, you must be contented with what other Proofs we can produce, provided they are sufficient to satisfy any unbyass'd, indifferent Person. And to this End I lhall sort the Authorities I intend to make


use of into these Three Heads. First, I shall give you divers Quotations out of the most Ancient Writers, who lived in, or nearest the Time you prefix; viz. the coming in of the Norman William; and shall descend down in order of Time, as low as your Doctor's 18th of Edward I.

•Secondly, I shall shew you from the Authorities and Testimonies of the Judges of almost all our Courts 5 of the House of Commons ; nay, of several whole Parliaments, and the King himself, That the Commons had an undoubted Right of Sitting there by Prescription.

Thirdly, From the Consent of all our Neighbouring Kingdoms, who being go» verned by a King, and a great Council or Assembly ot the Estates according to the Gothick Model, the Commons had always from the Institution of the Government their Representatives in those Assemblies.

M. I much doubt that; but pray begin with your Ancient Historians; for as for my own Part, I must freely tell you, though I have looked them over very warily, yet I can find nothing in them concerning the particular constituent Parts or Members of our great or Common Councils, but the Magnates, Optimates, or Principes,Conines and Bareness all which, though you have at our last Meeting shewed me from some Authorities, that they may take in others, though not Noble by Birth; yet since these Words have been most commonly taken in another Sense, it needs some better Proof than to fay in general, that meer Commoners were there, because those general Words may sometimes be taken in that Sense. And as for the Words Clerus and Populus, which I confess are often mentioned to be present at those Assemblies; the Learned Doctor, in several Places of his Answer to B. p.26. Mr. P. as also in his Glossary, hath plainly proved, that as the Word Clerus some27. Tit. derm t}mes signifies the Bishops, and sometimes the Inferior Clergy; so Populus does <& Popului. aif0 neither great nor little People, but only the Laity; and therefore as it is used and restrained, signifies the Lay Plebs, or the Lay Magnates. What I mean by Plebs, I shall shew you by and by; but that the Word Populus does not signify the Inferior Sort of People, or such as were inferior to Barons, Tenants in Capitet or Noblemen, the Doctor has very well proved from tsiat Passage made use of by Mr. P. to prove the Commons to have been in that great Council which madep. R. c. Henry the First King, because it is laid by Mat. Park, that Congregate Clero, Qf Pol. 55. Pop/douniverse, &c. by which Word Populus he would understand the Commons B. A. P. alone distinct from the great Lords. But the Doctor very plainly shews him the Pag. 27,28. Falseness of this Interpretation from the fame Author, within Three Lines of the Place himself had cited; where the same Body of Men, which is but just before called Populus, is presently after called Magnates, ad h.ec Clero refpondente iff Magnatibus cunBis; not one Word in this Place of any Populus; but the Great, or Noblemen, (that is, the Tenants in Capite) must be the People or Laymen here mentioned; and this lame Clerus and Populus is by Eadmerus, speaking of a great Council held at Westminster in the Second Year of this King, called Primates Regni Anno D. 1102. utriufaue Ordinis; or as 1'orence of Worcester words all the Orders of Men assembled in this very Council, Omnes Principes Regni s,tiEcclefiaflici, & Secularis Ordinis; the which the Doctor also proves from several like Passages in Eadmerus; in all which, as also in all other Authors the Doctor hath there cited, this Populus is explained to be the Earls, Barons, and great Men of the Kingdom only; ibid. r> 31,32. that is, all the greater, as well as smaller Tenants in Capite.And though I confess at our last Meeting you brought very good Proof, that the Word Populus was more comprehensive among the Romans; yet though the Roman Populus comprehended all the People, as well Nobility as Plebeians; and that in Scotland it took* in the Burgesses of the Royal Boroughs, which hold immediately of the King; yet does it not follow that this Word must needs signify so in this Kingdom too, since in all Countries, not all the People, but only the Governing Part of it is used so? the Populus in all Histories, Publick Acts, and Laws of those Kingdoms; thus in Poland, the Populus consists solely of great Councils of the Nobility and Senate, in which there are no Plebeians at all.

f. I hoped we had done wrangling about this Word Populus; but since I see you are not yet satisfied, I shall shew you more plainly, that by this Word used in our Ancient English Historians, is not only meant the great Lords, and Tenants in Capite, but another larger, and more comprehensive Body. And whereas you lay that the WordPopulus is still restrained by our Ancient Historians to the Mag


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nates, Primates, fc? Principes Regni; all which Words do in their genuine Signification signify Great or Noble-men; and that tho' they are sometimes taken in a different Acceptation, yet that it lies upon me to prove that they are to be taken.in my Sense. To this I must tell you, that the proving Part ought to lye wholly of your side •, for since the Commons of Englani have been for above these Four Hundred Years constituent Members of our Parliament, (as is agreed on all hands) and that they also claim to be so by Right of Prescription, it still lies at your Door to prove the contrary, and to shew at what Time, and upon what Occasion they were first introduced : Which if you have not been able hitherto to perform, so as to give me any tolerable Satisfaction, you cannot blame me if I still keep my own Opinion, and believe them as Ancient as Kingly Government it self in this our Island.

But since I grant these Words Clerus and Populus are of a general, and equivocal Signification, their true Sense and Meaning is best to be understood from the Subject Matter that is treated of; as I shall shew you first from the Nature and Signification of the Words Clerus and Populus, according to the ancient Con- * stitution of our Government, that they must signify many more than your Tenants in Capite alone; and then I shall confirm my Interpretation by the Authority of such ancient Historians as lived either in, or very near the Times I mention ; and therefore I shall first prove it from the great Analogy there was between the Cierus and the Populus, so that if the Clerus took in more than your Tenants in Capite in our Common Councils, by the fame Reason the Populusmust do so too.

Now that this word Clerus, when used by it self, does not originally signify either the Bishops and Abbots alone, or the inserior Clergy alone, (as your Dr. asserts) is evident, because derm is a general Word, and comprehends all the Clergy of whatsoever Sort or Degree. Now that all the Clergy, as well the Superior as Inferior, had either themselves in Person, or else by their Representatives, a Place in the Saxon Wit ten Gemots, or Mycel Synods, and made together with the Laity one entire Council, or general Assembly, without the joynt Consent of both which no Laws or Constitutions, whether Ecclesiastical or Civil, could be en- K.ieSpelnnn*/ acted: For Proof of this, we need go no farther than Sir Henry Spelmans first Cmnc- 1 ^ Volume of Saxon Councils, and particularly in the Councils or Synods of Clovejho {|T4/'??2> first and second, that of Kingston, Anne Dom. 838. tha^ held under King Egbert,'' and Withlafe King of the Mercians, and that of Winchester under the fame King Egbert, in which Tithes were first granted : In all which you will find that both the Clergy, as well the inferior, below the Degree of Bishops and Abbots, as also the Laity below your Earls, and great Aldermen and Wites, had a Share.

And that this continued so, both in, and after the Norman Times, appears by the first great Councils we have left us, that were held under the first Kings of the Norman Race.

M. I should be very glad to see that proved •, for I always hitherto believed that none of the Clergy had then any Votes in theGreat, or Common Council of the Kingdom, but those Bishops, Abbots and Priors, who all heldin Capite of the King alone. And tho5 it is true, there was also a Synod, or Convocation of the Clergy often held at the fame Time when the Common Council of the Kingdom was assembled, yet was it no Part of that Council ; and as the Clergy had nothing to do in the making of Temporal Laws, so had the Laity no hand in the making of Ecclesiastical Canons, or Constitutions; for the Pope's Legate or Archbishop of Canterbury often held these Synods at other Times when the Common Council of the Kingdom was not assembled at all; and thus it continued till the 25th and 26 th of Henry the Eighth, when the King was first by the Clergy in Convocation, and afterwards by the whole-parliament, recognized and declared Supreme Head of the Church of England under Christ •, and from that Time the King re-assumed the Power which the Pope had before usurped; and his Consent alone under the Great Seal is the only Ratification of all Canons or Ecclesiastical Constitutions passed in either of the Convocations of Canterbury, or fork, at this Day.

E I grant that for between Three Hundred and Four Hundred Years, the Matter of Fact hath been as you fay ; but that it was not so from the beginning, is also as certain. For first, in the Saxon Times, before the Pope's Usurpation came


in, it is evident from the Councils, or Synods, I have now cited, that the King had no more Power to make or confirm any general Ecclesiastical Laws or Constitutions without the Consent of the Witt em Gemvt or My eelSynod, consisting of the Clergy, as well as Laity, than he had to make Temporal Laws without it. So far were they in those Times from having any Notion of any Personal Supremacy in the King in Spiritual, more than in Temporal Matters; and that this continued so till the Pope did not only usurp upon the King's Right, but that of the whole Kingdom in general, may appear by those Memorials we have left us, of such Common Councils or Synods, in the Reigns of our first Norman Kings.

_ . . For the Proof of which, I (hall begin with the Reign of William the First, in Amn Damm. whose ^ theprivUege3 0f the Abbey of Westminster were confirmed by

sJ Effete that King in a Common Council, as well of all the Clergy, as Laity of the Fausiinsy A. 3. whole Kingdom * as may be proved by a Charter still to be found at large in the old Chartukry of the Abbey ofWestminster, now in the Cottonian Library, collected by Sulcardm an ancient Monk of that Abbey, the Conclusion of which Charter of Privileges makes it very plain, of what Members this Council then consisted, and who gave their Consents to the Acts of it, which pray read, In folemnitatePentecostes habito Confifib inceleberrimo loco pr&fcripti Westmonast. & a nostra regia Majejlate conventis in unum, cunBis Regni noftriPrimatibus, ad audiendat, & confirmandafy quosdam SynodalU decreti caufas necestariax commurii cons ensumaximeEpiscoporum, Abbatum, aliorum infignium Procerum, 8cc. Scripta est btc Charta, & sigiUata & ab ipsoRege, i$ supradiBk personk testijkata confirmat. & auUorizata in Dei nomine, &x.

This being one of the first and most remarkable Councils of this King's Reign, I cannot let it pass without observing, First, that all the chief Men of the Kingdom were there, as well of the Clergy as of the Laity. and that the Words Primates and Proceres here mentioned, are very comprehensive, and may take in many others besides your great Lords and Tenants in Capite, I have already proved at our last Meeting but one. Secondly, Pray observe that this Charter of Privileges, tho' all of them concern sneer Temporal Things, is authorized, confirmed by the common Consent and Subscriptions of all the chief Men, as well of the Clergy as Laity. From all which nothing can appear more plain to me, than that in the Reign of this King, the Clergy and Laity made one Common Council, without whose joint Consents nothing could be transacted in the Legislative ^ whether of Ecclesiastical or Civil Concernment. I could give you more Instances of this kind in this King's Reign, but I A D1092 make haste to that of his Son William the Second, in whose Seventh Year Eadmerus Ead. Hist. Nor. tells us, there was a Common Council held at RocKingbam, about the Difference 1.1. /. 26. between Archbishop Anfelmand the King at which were present, Episcopi, AbSfelmam Con- bates, Principes, ac Qericorum, ac Laicorumnumerosa multitudo ; now that by at.i'ot. 2.f. 26. prjmjpes or Chief Men, may be here meant many more than your Tenants in Capite, I have already sufficiently proved ; and that this numeroja multitude must mean somewhat more than those, I shall prove farther by and by.

In the long Reign of Henry the First, I could give you many Instances of this kind, but let these suffice. In the 7th Year of this King, Bromton tells us in his History (speaking of the Council in which this King gave up his Right of InCoi. i000 6' veftitures) Clero & Populo ad Concilium Londoniac congregato ; and who this GemsSfeLconc To. and Populns then were, he immediately explains himself thus, Astamibust Ardn2. f. 28. epifeopk,Epifeopk, c£teraq-,mukitudine maxima Procerum, C Magmtum; under which Words I have already proved,that divers others besides your Tenants in Capite might be comprehended, and their great Number shews them to have been more than those.

But tho' this Author does not here exprefly fay it, yet that the rnferior Clergy were likewise at these Councils, appears from Sim. of Durham, and the Continuator of Florence of Worcester, Anno Dom. 1126. being the 25th cf this King, where they both make mention of a Synod or Council held at London, at which were assembled the Archbishops, Bishops, Abbots, ©V. (the Pope s Legate presiding over the Clergy,) and besides these, cumianumera Oeri, & Populi Multitudine. And the Continuator of Florence (hews us the Manner of their giving their Consents to those Constitutions, as well Civil as Ecclesiastical, there made and published ; they being proposed, with a placet vobis •, and the Answer to them is, i Placets f facet, Placet, Placet, thrice repeated; which is very like the Form still observed in the Bishops and Lords giving their Consent to all Matters proposed in their House by saying Content.

So likewise the Continuator of Florence, in Anno Vow. 1127. being the 27th of this King, mentions such another General Council, or great Synod ; wherein William Archbishop of Canterbury presided over the Clergy, and after the Recital VULSpd CmH. of all the Superior Clergy as before, he thus proceeds, Confluxere quoq-,illuc (i.e. 2K0/.F. 35. to Westminster) magna multitudines Clericorum ty Laicorum, tarn Divitum, quamMedwcrium, & faQus est Conventus inestimabilis fe Ait etiam tribus diebus, aBasum ibi de negotiis facularibusnonnulla, qua dam quidam determinata, qu&dam dikta, qu&dam vero propter nimium œstuantk turbe tumultumab Audientia judicantium projTtgata. And tho' the Author gives us the Ecclesiastical Constitutions, yet it is plain from him, that Civil Matters were also transacted in this very Council,which consisted as well of the Superior as Inferior Clergy •, as also of the Nobility, and Commons which are all expressed under the general Words ofDivitum & Mediocrium, and resemble the Phrases of the Majores & Minores ; and the des Greindres Us desMeindres, mentioned in the Statutes of Marlbridge and Gloucester •, which Words were debated at our last Meeting.

In the Reign of King Stephen, there were also several Councils held of the lame Sort and particularly that of his Third Year, in which was granted a Charter of Confirmation of this King's, of the Privileges of the Abbey of^a"*8' Westminster, Which is also to be found in Sulcardus"s Chartulary above-mentioned; I39' wherein after the general Words of habito univerfali totius Angli<e cohfilio, and a mention of the Pope's Legate (who presided over the Clergy •,) it follows thus, affuerunt etiam Comites, Regni mei Barones quamplurimi, & innumera Qeri &Populi multitudo qui bis omnibus inferfuerunt, iy Religiofo favore vohintatem C AJsenffum, Authoritati nostr<epagint, & Privilegio prœbuereht, 8£C.

So likewise in an ancient Manuscript Chronicle of the Abbey of Ely, under Anno Dom.1119. being the Fourth Year of King Stephen, there is a remarkable v-d ..  Passage, when speaking of a great Council then held atLondon, he expresses it J~i J2[a in these Terms, Concilia adunato Cleri & Populi, (and then explains of what Members these did consist, viz. Episcoporum, atq; Abbatum, Monachorum, & Clericorum) Plebifq-, infinitemultitudinis. Now pray give me leave to make some Observations from these Passages in all these ancient<Charters and Historians; that besides these Bishops, Abbots, Earls and Barons of the Kingdom, there were also an innumerable Multitude of Clergy and People, or (as the Ely Chronicle words it) an infinite-'Number ot Clerks and Commons. Now, pray tell^e, what can be meant here by all these put distinct from the rest of the higher Orders, but the inferior Clergy, as the Deans, Archdeacons, who were then the only Proxies or Deputies of the Secular Clergy of the whole Diocese? And who can be meant by this infinite Multitude of People, or Plebis,(which naturally signifies the common People distinct from the higher Nobility) but the most considerable Freeholders, or Lords of Mannors, whether Tenants in Capite, or not, under the Degree of the higher Nobility, together with the Citizens and Burgesses of Cities and Towns; and who came not only as idle Spectators, since the Charter I last cited expresly mentions that they were not only present, but also gave their Assents to this Charter of King Stephens?

M. And may I not with as good Reason ask you why these Words Populus and, Plebs may not in the historical barbarous Latin of that Age serve only to express • (not the Multitude, or Rabble, or meer common People, but) the whole Body of lesser Tenants in Capite,' beneath the Dignity of the greater Barons?

F. I will give you two very good Reasons for that •, First, from the great Analogy there was then between the Members of the inferior Clergy, and those of the Laity or Commons •, the former of which, even all the Abbots and Priors, Deans and Archdeacons, (except those few that held in Capite) with all the rest of the inferior Clergy already mentioned, holding only in Frank Almoign, and not by any Military Tenure at all. Now pray give me any sufficient Reason why the Laity should not also consist of all other Orders of Men who did not hold in Capiteneither, and by whom I do not mean the meer Vulgar, or Rabble, tho' Freemen or Freeholders of small Estates, but the most considerable Freeholders or Lords of Mannors in England 5 or else the Knights of Shires, who, I suppose, represented not only themselves, but their Inferior Tenants whether Copyholders, or for Term of Years; as also theRe


presentatives of all the Cities and Borough Towns in England \ Now these might together with youriTenants inCapite, make so great an Assembly, as might very well deserve the Title (with an easy Hyperbole of infinita orinnumcra multitudo) as our ancient Historians express it.

Whereas your Doctor's Tenants in Capite, could never in these first Times after this Conquest, amount to so great a Multitude ; not being, by his own Confession, above 700 Persons, besides the Bishops, Abbots, and Priors, who did not make B.Ar.p-171- al)oVe ioQ morej which could never deserve the Title of an infinite and innumerable Multitude.

M. Neither your Notions nor your Authorities to prove it, do any way satisfy me for in the first Place your Argument from the Analogy between the Clergy and Laity, who, you lay, made up this Assembly, does not hold;for, tho' I grant there might be in that part of it which we call the Convocation, and was rhen ailed the Synod, all the Bishops, Abbots, and great dignified Clergymen 5 yet were not these considered as Ecclesiasticks, Members of the great Council of the Kingdom •, but a distinct Assembly from it, which treated only of Spiritual Matters, and together with the Bishops and Abbots made Ecclesiastical Canons,- as the Two Houses of Convocation do at this Day •, yet meddled not at all in Matters of a meer Civil or Temporal Concern■, any more than the Lay Council could meddle with Spiritual?. And to let you fee that this was true, it is evident beyond dispute, that this Ecclesiastical Synod was often assembled by the Authority of the Pope, or Archbishops of Canterbury or Jerk,when the Common Council of all the Laity were not summoned at all ; and so vice versa the Common Council of the Kingdom often met, when the Synod of the Clergy was not convened •, as appears by the most ancient Writs of Summons to the Bishops we sq. 2. have left us as particularly, the first Writ W this kind that is upon the Rolls,viz.

That for the Bishops (which Mr.Pry« has printed in the First Part of his Parliamentary Register) in the 6th ofKing/o/;«, and which I have cited from the Doctors Answer against Mr. Pryn at our last Meeting-, in which Writ, tho11 grant there is a Clause for summoning the Abbots and Conventual Priors, yet there is none for the inferior Clergy. But in the next Writ, which the fame Author has likewise Published, viz. mi Pa That t0Archbishops of 1'ork, there is no Clause at all for summoning '' any of the Clergy as such, tho' 'tis true, there is underneath an Eodem modo

scribitur omnibus Efiscopis, Abbatibus, Sec. Coniitibus & Baronibus ; which shews that this Writ was not to summon them in rheir Spiritual but Temporal CapaciPg. 7I? S- ties. So likewise in the next Writ ol Summons to Parliament , we have left us . 'on the Roll, which is cited in Mr.Seidens Titles of Honour ; as also in the simeParliamentary Register, and in Dr. B. againstMr.P. viz. That of the 49th of Henry the Third, to the Bishop ofDiorsme, without any Clause of Summons to Hi p. 5 the Clergy, whether Abbots or orhers. So likewise in the next Writ of Summons that is left us, viz. That of the 2 ?d of Edward the First, (published also by Mr Pryn) to the Archbishop of Canterbury, in which there is no Clause of summoning any of the Clergy -, and tho' there immediately follows another Writ of the 23d of this King, in which I grant there is this Clause of Prœmu-' nientesPriorem, &c. viz, The Prior, Chapter, and other of the Clergy of his Diocese, to appear in Parliament; yet that they were no necessary part of it, but only of the Convocation, appears by the rest of the Writs of the Summons to Bishops, which Mr. Pryn has also given us in that Chapter ; all which if you please to peruse, you will find, that in near 200 Writs to Parliaments or great Councils, the Clause of Prxmunientes Clerum, is to be found in scarce half of them\ which shews that the summoning or omitting them depended wholly upon the King's Pleasure, and so were no constituent part of the great Council or Parliament, as you suppose they were under the first Norman Kings ; for rhen lure they would not have been omitted to have been constantly summoned in all Parliaments, as well as the Bishops and Abbots.

But to come to your next Argument from the Numerousness of rhese Assemblies, which you fay could not be properly called Kumerosa, or Injmiia Multitudo, whereas all the Tenants in Capite as well Ecclesiasticks as Lay-men, did not amount in all to 800 -, there may be an Allowance made for this to the Monkish way of writing of those Times, who might call such a great, or more than ordinary Assembly of the Clergy and Terants in Capite,an innumerable ot 1 . . infinite Infinite Multitude, when indeed they were but few more than our Lords and Commons are at this Day.

F. I pray, Sir, give me leave to answer what you have already laid, before you proceed any farther, because what I hare to reply to it, will be pretty long. In the first Place, you cannot with any reason (if you better consider of ir) deny, that the Clergy, as well the Superior as Inferior, did, before your Conquest as' well as long after, make but one Assembly or Body of a General Council; tho' sometimes fitting in several Places (as the Lords and Commons do at this'Day) for the Words in the Old Book of Ely, are Munato Qmi/io Cleri & Popu/i, which is to be rendred, the Council of the Clergy and Laity, being united and' joined together, as I have already shewn this Word Aiunato does always signify; as also by the Confirmation of that Charter of KmgWilliam's to the Abbey ofWestminster and to which (tho' a Matter of meet Temporal Concernment) all the Clergy, as' well as Laity, gave their joynt Consents, as appears by the Conclusion' of that Charter, as also to that of King Stephen, but now cited; which they could never have done, had they not then made a Part os the same General Council, or Assembly.

Having proved to you that the inferior Clergy did anciently make a Part of the General or Common Council os the whole Nation, I ihall now proceed to answer your Objections : 'Tis true, that for a great Part of feme Kings Reigns, for want of the Writs of Summons to the Superior as well as to rhe Inferior Clergy, we cannot certainly tell, tho' we may presume it from the general Words of the Historians, whether the Inferior Clergy were summoned or not; yet this, I think, I may boldly aver, that whereever any ancient Author makes mention of the'Clerus and Populus in general, being present at any such Common Council, it must necessarily mean, not the Biihops, and Abbots, or the Superior Clergy alone, or the great Lords and Tenants in Capite only, but those , and the Representatives of the whole Nation, both Clergy and Laity taken together; as I think I have sufficiently made out.

Nor is your Objection considerable, from that Writ of the 6th of King Jcbn, that no Inferior Clergy were summoned, because only the Abbots and Priors are mentioned at the End of it. To this I answer, that (granting it to be a Writ of Summons to a Common Council of the Kingdom, which is not yet proved) the Omission of the Inferior Clergies being summoned, is no cogent Argument to prove they were not there ; since for ought as you and I know, there might be other Writs issued to the Inferior Clergy, distinct from those to the Bishops and Abbots; which last used to have distinct Writs to each by themselves; and I may as well suppose these Writs to be lost, as you do that all the general Writs to the smaller Tenants in Capite, who were no Barons, and yet were to be all summoned, according to King Johns Charter, are all lost. And as for the Abbots and Priors mentioned at the End of this Writ of King Johns, they were such as held only in Capite, or else such as did not; if the former, this might be only a Council of Tenants in Capite, and none other; of which I grant there were many held in those Times, upon Occasion of Wars, Scutages, and other Matters; but if by thtsc Conventual Abbots and Priors summoned by this Writ, you will mean all Abbots and Priors of whatever Tenure; then it appears plainly that this great Council consisted of many other Ecclehasticks, than what held in Capite, and if so, why might not the Inferior Clergy as well make a Part of it?

But as for your next Authority, the Writ of the 49th of Henry the Third, which is certainly a Summons to Parliament, in which is no Clause of summoning the Inferior Clergy; this is no more an Argument than the former, since it might not then be the Custom -to insert them in the fame Writ with the Bishop, to be summoned by him ; but they might have general Writs of their own directed to the Clergy of each Diocese. But that all the Inferior Clergy as well as the Superior appeared at divers Common Councils or Parliaments during this King s Reign, (which they could never have done without the King's Summons, tho' the Writs are lost) may appear from that great Council or Parliament of the 9th of Henry the Third : Whereto as Mat. Paris tells us (in the Place, I have ib often mentioned) were summoned Clerus £?' Populus, cum Magnatibus Regionis, or Regni, as Mat.Westminster words it; and in this Council was given by omnes de Regno, the 15th of all the Moveables of all the whole Kingdom. So that these




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mnes de Regno must take in all Degrees of Men, and consequently the Inferior Clergy too; since it is certain the Bishops and Abbots did never represent them in the House of Peers, or in Convocation, so as to lay any Taxes upon the Inferior Clergy without their express Consents. And this is the more evident, because this Tax was a i$thupon Moveables; and not a Tax upon Land, and consequently could never be imposed upon those of the Clergy, (who held in Frank Almoigny as all the Inferior Clergy then did, and do at this Day) by the Bishops and Abbots that held in Capite. And that these Charters were made by the Common Consent of the whole Kingdom; (and then certainly by the Inferior, as well as Superior Clergy,) may appear by the Confirmation of the great Charters, as also in the Rot. stat. 2 j. Preamble to the Statute of Articuli super Chart as (made, the one in the 2 jth, the £. i.M. 38. other in the 28th of Edward I.) in both which it is exprelly recited, that the great Charters of Liberties, and the Charters of Forest, were made per Commun AJfent de tout le Royalme, en Temps nostre Pere; and if by the Common Assent of the Realm, then sure by that of the Inferior as well as Superior Clergy, since the Bishops and Abbots, who fate there only by their Baronies could never represent them.

That the Inferior Clergy were also summoned to Parliament, in the 39th of Henry III. appears from the Anna/s ofBurton, in Anno Dom. 125?. Where that Author, (who lived at that Time) relates, that the Inferior Clergy then appearing in Parliament, sent Messengers to the Pope concerning the intolerable Grievances they then lay under ; among which, the first Grievance set forth by the Procurators of the Clergy for the Diocese of Lincoln is this,Quod decima bencficiorum suorum Domino Regi suit concejja ipfis non vocatU, maxime cum agitur de aliquoobligando necejsarius est ejus exprestus conjenjus: By which it appears, that the Inferior Clergy then claimed it as their undoubted Right by the Law of the Land, not to be Taxed either by the King, or the Pope, without their express Consents j and they contended so hard for it, that they have preserved this Right even to this Day, when they now give their Votes to the Choice of Knights of the Shires; tho' till the late King Charles's Reign, they were never Taxed without the Consent of their own Procurators in Convocation. And this may serve to enlarge your Understanding, and to shew you in what Sense the whole Clergy, as well the Inferior as Superior, did anciently make the Third Estate in Parliament, which was more Comprehensive than the Bishops and Mitred Abbots alone, who fate in the Upper House only per Baroniam, by Reason of their Baronies; tho' in the Synod or Convocation of the Clergy, they acted only as Ecclesiastical Persons; where they also pined in the making of Ecclesiastical Laws, and giving Taxes; which last you cannot deny, but to be a meer Temporal Thing.

M. You may be so far in the right; yet tho' the Inferior Clergy often joined with the Common Council of the Kingdom, in "giving the fame Taxes, yet this was by, and upon themselves alone, and they had no hand in making of Temporal Laws, and giving Taxes for all the rest of the Kingdom; and I challenge you to shew me any Precedent within these Five Hundred Years, that the Inferior Clergy ever made the Third Estate in Parliament, or rhat their Consents was ever asked to the making of Temporal Laws; since the Bishops have been always look'd upon till of late, as the only Representatives of the Inferior Clergy in Parliament. How else could they be obliged by general Statutes or Acts of Parliaments? Since according to your own Confession, they gave no Votes at the Election of Knights of Shires, but since the Return of King Charles II. So that if they had ever joined in this Legislative Power (as you suppose they anciently did) I cannot see why they should not have kept it to this Day.

r. I grant indeed, it has been otherwise between 300 and 400 Years; but that it was not so from the Original Institution of the Government, is also as certain For that the English Common Councils consisted of all Sorts and Degrees of Ecclefiasticks you must allow; fince.before the coming in of the Normans, theBishops and Abbots did not sit in the Æycel Synods, as Temporal Lords, is generally acknowledged •, and yet even after they came to fit among the Lay Peers in the great Council of the Nation by virtue of their Baronies, the Inferior Clergy also gave their Assents to the making of Temporal Laws, and giving Taxes; I have proved by such Authorities, as I do not see you are able to Answer; and for further Proof of this, to shew you their coming was continued down to the Reign of He nry III. Fag, 64. see Sir H, Spe/mans Councils, Second Volume, where you will find that they were*

in in that great Council at Clarendon, when thole famous Constitutions were made,p- 6*> as appears by these Words in Mat. Park at the end of these Constitutions, Haric . Recognitionem, five Recordationem deconsuetudinibus libertatibus in quk At'cht-An"' Dom* epifcopi, Epifcopi, Abbates, Priores1 Clerus, cum ComitibusBaronibus, & Pro-11 ceribus cunftk juraverunt. So likewise at the Council of Gaintington in the 34th of this KingRoger Hoveden has in his History these Words, Dominus p. $4r. vero Rex statim postquam in Angliam applicuitmagnum congregavit Concilium, Epifcoporum, Abbatum, Comitum iS> Barcnum, & aliorum multorumQericorum, quam Laicorum, apud Gaintington. And Mat. Paris in the Year 1185, (being the 3,1st of this King's Reign) mentions a Common Council of the Kingdom then called at ClerkenweU, where Convocati/s est C/erus £5"Populus, cum tot a Nobi/itate; which Dr. HeyHn in his Stumbling-Block of Disobedience thus translates; the Clergy p. ,93, and Commons, together with the Nobility being summoned. And in the 1st of Richardl. R. Hovedenalso tells us of a great Council held at Pipewel Abbey in Northamptonshire, where the Archbishop of Canterburyproduced a Charter of King William I. Coram Rege, C Univerfis Epifcopk, Qero, & Populo. And an Ancient Charter of frimo of King John, ( now in the Archbishop of Canterbury's Library) Entituled, ChartaModerationsfeod. magni figilli, recites the laid King to have been Crowned, Mediante tarn Cleri quam Populiunanimi conjensu, & savore. And tho' the rest of his Reign was turbulent, yet the Author of the ManuscriptEulogium, quoted by Mr. Selden, in his Titles of Honour, mentions a great Council at London, in the 16th Year of King John, where the Archbishop of Canterbury*- 587. was present, Cumtoto Clero, & tot a Ji-ffa Laicali, i. e. (fays Dr. Heylin in the fame Place) " The Clergy of both Ranks and Orders, with all the Laity (called here "Se3a Laicals ) and the Lords and Commons had then their Places in Parliament. And the Doctor proceeds thus, " And in Possession of this Right the Clergy stood *' when Magna Charta was set forth by King Henry III. Wherein the Freedom, "Rights, and Privileges of the Church of Fig/and (of which this evidently was "one) was confirmed to them •, (/': e. the whole Clergy in general.) I have here (hewed you, what Dr. Hey/in s Sense was j to let you see that a Person of, great Learning, and a high Churchman, thought it no Heresy to be of our Opinion, and to maintain as he does all along in that Chapter, that the Inferior Clergy and the Commons were a ConstituentPart of the Common Council or Parliament long before the 49th of Henry III. and that the Inferior Clergy continued to be so, till the Reign of Henry IV. at least. another List of the Abbots and Priors, which the Dr. himself has given usjof the 2 ?d Ib,i- *5S> 157* of Edward I. to the fame Parliament above-mentioned, when the Inferior Clergywere likewise Summoned j there appears to have been Seventy Abbots and Priors summoned to this Parliament, of which not a third Part ever held in Capite; and tho' divers of them then pleaded Exemptions, yet they were many of them such as held in Capite as well as those that did not; as the Abbots of St. Edmund's-Bury, Waltbam, St. A/bans, Evejham, &c. all which, as it is notoriously knownr held in Capite, and were commonly summoned to all Parliaments afterwards. Now pray fee how all this numerous Train of Abbots and Priors (which Mr. Pryn confesses parr,ament&tto have sometimes amounted to 122) who were summoned to some Parliaments^. i4,. and great Councils, ame to be omitted; which is to be ascribed chiefly to their own Petition and Desire, when their constant Attendance in Parliament when held every Year, and frequently oftner, was counted a Burthen rather than an Advantage, by reason of the great Charge and Trouble of coming to those Assemblies, and their teing bound to contribute to the general Aids that were then given the King. And thence it is we find on the Rolls so many Discharges upon their Petitions in Parliament, that they did not hold of the King by Barony, nor inCapite ; nay the Ab- m. bot of Leicester, after having served in no less than 5 c Parliaments, yet in the 25 th leidenv of Edward YSL procured a Writ of Exemption from the King, §>uod non compel/a- Titles of Hottervenire ad Parliamentum •, the Lords in Parliament easily giving way to it, since »»»"» P- 73i» they knew that the fewer Hands the Legislative Power was reduced to, the greater t0 735still were theirs that remained. To which may be added the King's Pleasure, who by Degrees began to omit summoning of divers of the smaller Abbots and Priors, before summoned •, since it has been the Policy of divers of our Kings to reduce their great Councils or Parliaments, especially the Peers, into as few Hands as they could, because then they are most easily managed; and the Abbots and Priors never complained of it, for the Reasons already given. Thus most of these came to be struck off by Degrees, till at last, of all this numerous Company, of Abbots ibid. 14*. and Priors, there were in the Reigns of Edward III. Richard II, ano,nEdward IV. and even to the Dissolution of Monasteries under HenryVIII. no more than 25 Abbots and Two Priors, viz. the Prior of Coventry, and of St. John of Jerusalem,summoned to Parliament. I have dwelt the longer on the History of these Abbots and Priors, because it sufficiently confutes your Doctor's Notion, of none but Tenants in Capite, appearing in Parliament

But that their Consents was also anciently asked in the making of Laws, we need go no farther than the Authority I have now given you from the Continuati'on of Florence of Worcester. And farther, that they were once a Part of this great Council or Parliament, besides the Testimony of the Modus tenendi Parliamentum,;' (who tho' he be exploded, as an ancient Author, yet certainly is a good Witness' for his own Time, viz. That ofEdward III.) where the Procurators Cleri are'' reckoned among the Constituent Members Or States of Parliamentj which is also confirmed by the Two first Writs of Summons we have left us on the Rolls, viz. the 23d of EdwardI. wherein this Clause of' Pr&munientes Clerum is particularly expressed which pray read from your Doctor's Answer to Mt. P. Pr<emunientes Priorem&Capitulum EcclesiAvcstrte,Archidiaconos totumqueClerumvestr<eDioc<estsfa-Rot. Claus, m denies quod iidem Prior i$Ai'chidiac. in propriis P~ersonksuk,CdiBumCapitulum 4- dmst. per duos Procurator es idoneos plenamtf sufficientem poteftatem ab ipsis Capitulk,&B- A'p' p" Qero babentes, und vobiscum, inter fint, modk omnibus tune ibidem, ad traBandum,1^' vrdinandum, V?faciendum nobiscum, & cum costerk Prœlatk, & Proceribus i$ aliis Incolfs Regni nostri qualiter fit hujujmoiipericulk obviandum. (viz. The Dangers in the Writ mentioned to be threatned from France)hxA that this was not the first Time this Clause of Pr&munientes was inserted in the Writs of Summons to Bishops, mighr lie easily proved, had we all the Writs of Summons before the 2 3d of Edward I. as well as since. But we may hence observe, that the Inferior Clergy are not only summoned to treat with the Prelates, but are as well as they, here authorized to treat, ordain and act with them, and the Lords and Knights, Citizens and Burgesses (for so your Doctor himself here in the Margin translates,^/* bxolk Regni.)b.n& how they could thus consult and act with them,ifthey had not been then, as well as the Prelates, a Part of the fame Body of the great Council or Parliament of the Kingdom, I confess surpasses my Capacity to understand. Nor is this Clause found in this Writ alone, but also in the Writs of the Bishops Summons


to Parliament as low as our own Times. And that these Writs were' not a Convo^ P. 120. cation, but Parliament, appears in Fryrss Parliament Register plainly, by the Letters of Procuration made by the Prior and Chapter of Bath to William Swynham and John de Merston, appointing them to appear and act for them as their lawful Procurators in the Parliament summoned Anno Born. 1299. being the 27th of Edward 15 which is of a different Form from another Letter of Procuration of the lame Prior and Chapter, Anno Dom. 1295. (31 EdwardI.) to their Pn> curators therein named to act for them in the Convocation then summoned at Westminster; the same Difference is also observed in all the Writs of Summons •' to Convocation, different from thole whereby the lame Persons are summoned to

Parliament; the former being directed only to the Two Archbishops, or rheir Vicar-Generals, to summons all the Bishops, Abbots, Priors, and Clergy of their respective Provinces; without any particular Writs issued to any other Bishops, Abbots, Priors or Gergymen, as in Summons to great Councils or Parliaments •, wherein there are commonly particular Orders to the Bishop to warn all the inferior Clergy £ 6' in the manner but now mentioned; as Mr. Pryn very well observes, in his First Part RotMaul. of his said Parliamentary Register; where you may see, there is a Writ of Summons 31. Edw. 3. to Parliament, of the»3ist of EdwardlU. to the Archbishop ofCanterbury, reciting m. Si. Dorso. that he intended a Parliament, for divers arduous and urgent Businesses concerning Himself and Crown, and the necessary Defence of the Kingdom and Church of England ; and then proceeds thus, Et quia Negotia pradiBa per quam Ardua sine. Maxima deliberation tarn Prtlatorum Cleri quamMagnatum, & Communitatis ejufdem Regni, 8cc. And therefore it behoved him to summon the said Clergy, Great Men and Commons; and then requires him to summon all the Bishops, Abbots, Deans, and Priors, and Archdeacons, to appear personally, and the rest of the Clergy by two Procurators •, with full Power adtra&andum, confulendum super prœmijjis una vobiscum, ad consentiendum. lllis qun tune ibidem super diUisnegotiis divina savente dementia contigerit ordinari.

M. But what can you lay to their being omitted to be summoned in divers Writs to Parliament, as appears inPryn's Register you now cited and from whence himself has there made this Observation, " That there is no Clause of P. 107. « Pr^munientes, 8fc. in any Writs of Summons to Councils of State, but only to "Parliaments, and that notalways, but at the King's Pleasure. Which shews plainly, that tho' they were sometimes summoned as a Part, yet were certainly no ef sential constituent Part of this general Council, since they were omitted in so many of them; and had they been always a Part of this great Council -, pray tell me, how they came to lose this Right; since the Clergy in those Days were not wont to lose any Right or Privilege they enjoyed.

F. I have already granted, that tho' the inferior Clergy have been no necessary Constituent Part of Parliament, for divers Ages last past, yet does it not follow, that therefore they never were so; since they have lost this Right by Degrees. And I shall now shew by what Steps it might have happen'd. First, therefore pray observe, that anciently all Abbots, and Priors whatever, as well those that held in Capite, as those that held in f rank Almoigr^were all summoned alike to the general Councils of the Kingdom as appears by the first Councils after your Conquest, that we have any Monuments of 5 nay it also appears from that very Writ of the 6th of King John, (if it were a Writ of Summons to Parliament) which as I have already proved at our last Meeting it is most likely it was not, whereby the Bishop is to summon all the Abbots and Priors of his Diocese, none excepted. And tho' I grant that in the next Writ of Summons of the 26th of Henry III. to the Archbishop of Tork, there is no Clause expressed of summoning the Abbots and Priors, and other Clergy of his Diocese, yet it is much to be doubted, whether this were a Summons to Parliament, or not, being without any Title either of ad Parliamentum orConcilium.

But that the Abbots and Priors, as well those that held in Capite, as those that held in Frank Almoign, were summoned to the great Parliament of the 49thofi/«rISrSJt 7y IU- aPPearS that List °f tneir Names, which both Mr.Pryn, and the Doctor h fot.tos,' nave Panted from the Roll. Nor do I believe that this was the first Time that all 109, no.' these Abbotsand Priors, being 101 in all, were summoned to Parliament, notwith

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But to give you some Account of the Inferior Clergy, how they likewise might come to be often omitted out of the Writs of Summons to great Councils, and not to make a constant Part of the Parliament, but only of the Convocation. This might happen two or three ways, and that without any positive Law for it. As in the first Place, pray consider the vast Increase of Power which fell to the Bishops, after Henry I. had given up his Right of Investitures to the Pope ; by which means they depended not at all on the State, and so took upon themselves a greater Power of imposing upon,and making Temporal Laws for the Inferior Clergy in Parliament, as if they had been their Representatives yet they could never represent all the Abbots and Priors, who held in trankAlmoign, for the Reasons already given, as also because most of them were exempted from their Jurisdiction: But that the Bishops could never impose Taxes upon the Inferior Clergy at their Pleasure, without their express Consents in Parliament, or Convocation, appears by this memorable Writ of 9th of Edward II. to the Archbishop ofCanterbury, which Mr. Pryn has likewise given us-, by which it appears, that divers of the Clergy p*1 ^ had consented to gtant the King a Subsidy in the precedent Parliament, but only by Reason of the Absence of the said Archbishops, and others of the Prelates, and Clergy, it could not then be done; and therefore the Archbishop is thereby ordered to call a Convocation for that Purpose ; which had been needless, if the Bishops alone could have taxed the Inferior Clergy in Parliament or Convocation, without their express Consents: So that it is plain, that in that Age they still retained a great Share of the Supream Power, viz. of not being taxed, unless by Representatives of their own, either in Convocation or Parliament; as it continues to this Day.

But to shew you farther, how the Presence of the Inferior Clergy, and consequently their summoning to Parliament, became less necessary, we must have recourse to the Bull of Pope Boniface the 8th in the 24thofEdward I. by which he fbrbadall the Clergy of the Western Church, as well Superior as Inferior, to give

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any more Taxes or Subsidies to Temporal Princes, without his Holiness's License; whereupon the King summoned the Bishops and Clergy to Parliament, at St. Edmund\-bury in the 24th of his Reign •, where when they then refused to grant him any Supplies, he then, (as all the Historians tell us,) held his Parliaments atWestminster, Cum Baronibussuh, exchiso C/ero, without either Bishops, Abbots or Inferior ClerVii. Mttweft. gy. Which was the first Precedent of this Kind, that we ever read of in this ParAnn. 1296. liament; the King with the Consent of the Lay Lords and Commons seized all p. 405 to 408. tne Temporalties of the Clergy, as well Bishops as others, and put them out of Thorns Ws Protestion,until they were forced to redeem themselves by paying a 5 th Part of ,9i$.'' their Moveables : for doing of which they were afterwards forced to procure the Walsingham, pope's Absolutions ; some of which Mr. Vryn has given us in his find RegiAnm Dem. fa . an(j vet for an this, the Pope maintained this Power over the Clergy for the i2tf, 1297. futme . {0 that they could not be taxed without his express License, (which since it could not always be obtained) no wonder if our Kings did more frequently omit summoning any more than the Bishops, and Abbots, who were bound to appear in Parliament by their Tenures; and so left out all the inferior Clergy as useless: The main Business, and Cause of their summoning to Parliament,viz. giving of Money, being now taken away by the Pope's usurped Power. Tho' whenever his License was obtained, yet that their own express Consents in Parliament or Convocation was necessary to this end, appears by that Passage in the hnmte'pf Burton in Anno 1255. already cited ; when the inferior Clergy being extravagantly oppress'd between the Pope and King, they sent express Messengers when they met in Parliament, who were to set forth their Grievances to his Holiness. I have given you as good an Account as I am able, how the Inferior Clergy, which as well as the Superior, did once make a Constituent Part of our great Councils before the Conquest, nay for above 200 Years after, did at last cease to be so,

fartly by the prevailing Power of the Bishops, partly by the Usurpation of the ope •, tho' chiefly by their own Silence and Consent, not complaining of their want of Summons to Parliament, as long as they could 'scape Scot-free, and all the rest of'the Kingdom pay Taxes. Notwithstanding which, the Clause of their acting and consulting with all the rest of the Estates in Parliament still remaining in the Writs of Summons, is a sufficient Monument to Posterity, to prove their ancient Right. VM. Dr. Bur- And the Clergy of the Lower House of Convocation was so sensible of this, T'S tfJh"y t*iat amonS certain Petitions by them made to Dr. Cranmer then Archbishop of 'in^feCcUcliion ^M^ury, and the rest of the Prelates in the higher House of Convocation, of Records, fx in the Reign of King Edward the Sixth, and the Second Article of which *ts. Dr.'stil- runs thus, " Also that according to the ancient Custom of the Realm, and lingfleet, « tne Tenor of the King's Writ for summoning of the Parliament, which now />. 117. M an(j evet 1^ keen directed to the Bishop of every Diocese, the Clergy "of the Lower House of Convocation may be adjoined; and associate with "the Lower House of Parliament; or else, that all such Statutes and Ordi"nances as shall be made concerning all Matters of Religion and Causes "Ecclesiastical, may not pass without the Sight and Assent of the Clergy. And there- is in the fame Place a Second Petition •, as also a Paper of Reasons »rf p. ut, oQ^gj t0 Queen Elizabeth, and after to King James, to the fame Effect.

And lastly, to shew you, that the Government of the Church and State of Scotland was anciently all one and the fame in respect of their Clergy as well as Laity, with that of England in their great Councils or Parliaments, appears by the Agreement between King Edward the First, and the States of Scotland, concerning the Marriage of his Son Prince Edward with the Princess of Norway then Heiress of Scotland, which is published at large in Mr.Pryri's First Volume of the Pope's Usurpation, where you will find this Agreement to i9  have been made between the laid King Edward ex ma parte, C venerabiles f>atres custodes, (scil. Scotia:) Epifcopos, Abbates, &totum Qericm; nobiles viros, Comites & Barones, totamque Communitatera Regni Scotiar, ex altera, dematrimonio contrabendo, Sec.

From whence you may observe, that as the fame Stile was observed there in the Titles of their general Councils or Parliaments as with us ; and as the inferior Clergy there put after the Bishops and Abbots did not hold in Capite,but Frank Almoign in that Kingdom; so likewise by the lame Analogy between the lowest Temporal State with the Spiritual, the Commonalty of Scotland here stiled Community


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munitas Scotia could not then consist only of Tenants in Capite, as your Doctor, and thole of his Opinion suppose it did.

M. I must confess you have (hewn me more for the Inferior Clergies being once a Constituent part of the Parliament, than ever I knew before; I will take Time farther to consider them: But that the Word Popu/us must needs then take in any more than the Tenants, in Capite, I much doubt; since the other Word Plebs, which you so much insist upon from the old Book of Ely, signifies no more than Popu/us, which as the Doctor shews us in hisGlossary, " in it self signifies nei- B. G. p. 24. "ther great nor litde People, but only Laity; and therefore as it is used and re"strained, signifies either the Lay P/ebs, or the Lay Magnates, as I can (hew you "by several Examples; as particularly out of Mat. Westminster, Anno Dom. 1295, F0J.424.iv.3o. "23d Edward I. where speaking how the Pope's Legates were received in England^ "who came to make up the Differences betweenEngland and Prance -, he thus* "relates their Reception, Quos in Regno Angli<e applicatos excepit Plebs debito.H honore, ac cita per Regem apud Wejlmonasterium Prmatum, & Optimatum fuorum "Caterva. Here the Plebswere the Great or Chief Men of the Laity •, that is, "the Earls and Barons which he had called to Westminster,who Ib honourably ** received these Two Cardinals.

So likewise the same Author, Anno Bom. 1297. 25. Edward I. "The King ft/. 430. "and Barons being at some Difference about the Observation of Magna Cbarta, "and the Charter of Forest, speaking how the King declared that he intended to "observe those Charters; after this he relates, that the King thereupon required "to be given him by the IncoU or Inhabitants, the Eighth Penny; and fays thus, "Articulos in p-ædiBis Cbartis Contentos,innovari infuper C obfervari Rex Man"davit, exigendopro bac Concefstone ab Incolis O&avum denarium fibi dari,qui max * Concensus eft a Plebe, insua Camera tune Grcumstante; petit etiam a Clero subfi"dium. $Lui responditfe velle summo Pontifici Ltteras Supplicatorias dirigere pro "Conferendi Licentia obtinenda. So that the Plebshere mentioned by the Histo"rian were only the Lay Nobility that stood about the King in his Chamber. Now "pray consider, that the Word Plebs is of a much more vulgar Signification than *' Populus, so that if the former did not signify the Commons as now understood, "the latter cannot do so. And therefore I see no Reason to suppose that these "Words must signify the Commons. The like Error, I must tell you by the way, the Gentlemen of your Opinion have fallen into, concerning the Word Vulgus in the old Coronation Oath in Latin, when they ignorantly Translate these Words in B.g. p. 34, the old French Oath, les leys les quelles ly la commuante auraeleu, leges Consuetudines quas vulgus elegerit, to the great Confusion of this Nation in the beginning of the late Troubles: Whereas the Community here understood in this Oath, was the Community of the Bishops and Abbots, Earls and Barons, and great Men, and the whole Body of Tenants in Capite expressed before in this Oath byClerus, and Populus for by them alone could these Demands be made for the Vulgus; i. e. the Multitude or Rabble could never come near to make these Demands at so great and splendid a Solemnity.

F. This is but to urge the fame Thing over and over again; for that under the Word Populus were also comprehended the Commons, I have already sufficiently proved, and can yet prove it further, from divers Historians and Records, both of Henry III. and Edward I. and Edward II. Reign. In the First Place therefore. I must still put you in mind of that Passage so often cited from Matt. Parts, in the 323. 9th of Henry III. where the Members of that Common Council in which Magna Cbarta was granted, is said to be Clerus t!f Populus cumMagnatibus Regionis \ or as Mat. Westminster in the fame Year, almost in the fame Words, Clerus C Popu- &>284. hts cum Regni Magnatibus; with both which also agrees the Manuscript History of Walter of Coventry, who speakingof this very Council of 9th of Henry III. relates it thus •, At the Purification of the Virgin, there assembled at London the Proceres Anglic ibique tra&atu diffujiore habita cum Clero & Populo, the King then granted the Liberties of the great Charter, and that of Forests; and that there was granted aComitibus tzBaronibus,Clero, & Populo, ibidem Pr<esentibus quint a decima omnium mobilium de Communi Affensu. Whence pray observe, what I before minded you o£ that this Tax, as it was a general one upon all the Moveables of the Kingdom, took in all Sorts of Persons, and so could never be given by the particular Order of the Doctor's Tenants in Capite, since it did not concern Tenures at all; and was levied on those that did not hold by Knights Service, as well as upon those that did.

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But the Author of the Annals of the Abbey of Burton, is more full in this Point; for in Anno Dem. 125 5, being the 39th ofHenry III, he tells us, a Parliament was held at Westminster, Convocatis ibidem Epi/copis,Abbatibus, Prioribus,Comitibus, £f Baronibus, & totius Regni Majoribus, in quo petebat [ Rex ] a Clero& Populo, de Lakkfeodis futssibi sufiragium exhiberi, 8tc. {viz. For the Business or Sicily-,) and then goes on thus, d'tsponens de fuo iniquo Consdio hoc prius a Clero, & postmoium a Popuh Majori & Minoriextorqueri. From which Passage I shall observe, f irst, That all the Clergy in general, as well the Bishops and Abbots, as Inferior Clergy, are here stiled Clerus. Secondly, That the Nobility and Commons, or whole Body of the Laity, are all together called Populus. Thirdly, That this Populus is there also distinguished into the Major, and Minor; now as by the Major can be meant none but the greater Nobility, so the Populus Minor an signify none, but the Commons in general; unless you will suppose that the King's Design was only to extort Money from the Tenants in Capite, and no others.

But to put it farther out of all Dispute, that this Word Populus, when put after and distinct: fromMagnates Barones, 3nd the like, in our Ancient Historians and Records, does signify the Commons alone 5 I shall prove to you by the Patent Roll of the 19th of Edward I. (the Year after your Doctor supposes the Commons were called to Parliament) where there is a Writ directed, Baronibus, MHitibus, & LiberkHominibus de M^jZ//<z,reciting that the Comites, Barones, iff Populus de Regno,\ai. lately freely granted a 15 th of all their Moveables, and therefore desires like Aid from the Welch; now nothing can be plainer, than that by Populus in this Record must be meant the Commons; and yet it is also as evident from another Record now in the keeping of the Remembrancer of the Exthequer, that this 15th was granted the Year before in the 18th of this King (the very Time whence Dr. B. dates the constant Summons of theCommonsto Parliament;) for by this Writ, or Commission, he appoints Commissioners for the Collecting of that 15th of all Moveables; which the King thus recites the Archiepifcopi, Epijcopi, Abbates, Priores, Comites, Barones, & omnesalij de Regno, nunc Jtcut alias de nobis & Progenitoribus nostrk liberaliter fccerunt, to have lately freely granted him; which can be no other than that mentioned in the Record of the 19th; unless you can suppose that there was a 15 th granted Two Years together, which is very unlikely, and more than the Nation could then well pay.

So likewise by the Parliament Roll of 1 Edward III. it appears that Hugh le Dijpencer, Jun. had been in the Reign of his Father, Per Confidcrationem Parium, & Populi Regni, & per Affcnsum Domini Edwardi tune RegisAngl. -exiled and disinherited for ever, as a Traytor to the King and Kingdom; that is, he was banish \I by the joint Consent of King, Lords and Commons. Now if Populus in these Records signifies the Commons after the Time you own they appealed in Parliament, I would be glad ro see some better Reasons than you have hitherto given me, to prove that this Word could not have the fame Signification before the 49th of Henry III. or 18th ofEdward I. Though I grant that Populus does also sometimes signify both Lords and Commons ; as appears fromMat. Westminster, where relating how King Edward I. in the 24th Year of his Reign, made his Son a Knight, then he tells us, Pro hac Militia filij Regk Conceffus est Regi Trigejimus Denarius i Populo C Clero, Mercatores veroVuesmum conceflerunt. Yet that the Commons 1 had also a share in this Grant, the Doctor himself acknowledges in his Gloffary, under the fame Heads in these Words; "It is evident from this Record, (meaning "that of the 34th of Edward I. above-mentioned) who wete the Populus, or Peo"pie intended by the Historian in this Place, to wit,theComites, Barones, & alij "Magnates, nec non Milites Comitatuum. Now I desire to know whether the Knights of the Shires were not then Commoners as well as now, though reckoned among the Magnates, and as a Superior Order to the Citizens and Burgesses, here called by a general Word Mercatores, who then gave a 20th Part of their Moveables by themselves?

But that the Word Plebs does not only signify the Lay Nobility, but the Commons too, in both the Quotations you have made use of out of Mat. Westminster, is also as plain; for in the first Instance concerning the Reception of the Legates, is it to be imagined that none but Earls, and great Lords accompanied them, and that there were no Knights or Gentlemen amongst them? And as for the words Primates, and Optimates, I think I have sufficiently proved that those do not only signify the Lords, or greater Nobility, but the lesser Also: Nay, the Chief Cit'izens, and Magistrates of Cities and great Towns. As

As for the next Authority concerning the Plebs that granted the Eighth Penny, it is much more evident that the Commons, as well as the Lords, must be comprehended under that Term. And that this is so, I need go no surrher than the Doctor's own Concession in the fame Place a little farther, which you may read in these Words; And thatthe Agreement for the Confirmation of the Charters here mentioned was made, and the Eighth Fenny granted bythe Earls and Barons, and perhaps the Knights of Shires; and that they were the Plebs that flood about the Kingin his Chamber, is clear from the Writ of Summons of Parliament for Two Knights in every County, DatedSeptember the \%th immediately following, to come and receive the Confirmat ion of the Charters and his Letters,that the paying of this Eighth Penny: should not prejudice the Commons for the future; and to do further what byhis Son and his Counsel should be Ordained. So that the Doctor himself is forced to confess, (tho' sparingly) that the Knights of Shires were likewise there, and comprehended under the Word Plebs at the Time of this Grant. The King held this Parliament at his Palace of Westminster, in some of the Halls or great Rooms, and the Commons might very well fit in the now Court of Requests, ( then called the Alba Aula, or White-Hall) (where Parliaments have been frequently held ) and from thence be sent for by the King into the Painted-Chamber, or now House of Lords, where the King then fate j and which might, in respect of the Hall from whence they came, be very well called, Camera Regis; for none can imagine his Presence-Chamber, or Bed-Chamber, could hold all that Company ■, and in that Room the King might make that Speech to them which this Author mentions •, and then upon his promifingto renew the Charters, followed the granting of theEighth Penny ablncolis, by the whole People, who immediately granted the said Subsidy. Now the Doctor grants in this Place, That the IncoU here meant by the Historian were the IncoU Regni, fucb Inhabitants as used to pay Subsidies and AijLs; only the Plebsmust here signify the Lay Nobility. Now, if the IncoU Regni were such as used to pay Aids and Subsidies, who made this Concession, can any Man doubt, but that this Grant was made by their Representatives, or the Knights, Citizens and Burgesses? For if the Tax was general upon the whole Kingdom, (as it appears it was) can you imagine that the Citizens and Burgesses were not there present when this Tax was given, as well as the Knights of the Shires •, since it was to be levied upon all alike? Nor is the Doctor's Objection of any Weight, That becausethe King not long afteK Summoned another Parliament when he was beyond Sea, to meet his Son Prince Edwardat Westminster •, that therefore it was not probable, that if the Commons had been at the Agreement, andgranting of the Eighth Penny in the King's Chamber, they would have been dtfmijfed, and called again about thefame Business in so short a Time, feeing the Confirmation of the Charter was dispatched in Six Days, when theParliament met October the 6th. For the Doctor is very much mistaken to imagine that this was the fame Business they met about before, when the very Writ of Summons (hews the contrary. For the Tax was given already, and therefore they could not meet about that •, but the Truth was, the King went away in Haste into Flanders, without confirming the Charters. So that before the People would give any1 more Money, his Son, Prince Edward, was forced to confirm them, (as the Doctor himself confesses in the fame Place,) after the Confirmation of these Charters, and that the Earls and Barons were satisfied. But as for the Doctor's wondrous Discovery of the false bad Translation of the old French Coronation Oath, I do so far indeed agree with him, that the Words leCommune aura elu, are not to be Translated, which the Commons, or Vulgar People, but the whole Community shall chuse; rendred here by the Word Vulgus, by the Old Monkish Translator: yet this can by no means signify only the Bishops, Abbots, Lords, and Tenants in Capite; (for who ever knew the Word Vulgus to signify the Superior Clergy and Nobility ?) and so to exclude the whole Body of the People in general. But Mat. Westminstertells us, Conceffus est ( viz. to Edward I.) Novenarius Denarius a Vulgo, f a Clero vero Denus ad ScotorumPertinacium reprimendam, who had then invaded Northumberland, and harassed the other Northern Counties. Now pray read the Pi Doctor's Comment upon these Words in his Glossary. Here Vulgus is the fame wi/fcPopulusand Plebs, when opposed to Clerus, or ■joined with it as a distinct Body, of Men ; and Clerus & Populus, Clerus & Plebs, Clerus 8c Vulgus, are the Clergy and Laity, in the Meaning of this Historian •, whether the Earls andBarons alone, or the Temporal Earls and Barons with the Commons were understood by them; that tst theCommons represented in Parliament, and not the Multitude or Rjbfcle. Which

1 "indeed

indeed is a worthy Discovery of the Doctor's. Nor do I know any body so mad as to render it in the Coronation Oath •, but that this Word Vulgus, when put foe the whole Laity of the Kingdom, is very ancient in that Oath, fee the Old Coronation Oath in Tattle's Collection of old Statutes, who transcribed it out of some Ancient Latin Copy of that Oath, or else from that Clause in the Coronation Oath of King Richard II. which is still to be seen upon Record.

I beg your Pardon for speaking so long upon the true .Signification of these Words Clerus and Popu/us, P/ebsand Vulgus, since there was a Necessity for it, by reason of those false Glosses that the Doctor has with so much Artifice put upon, them, still using them like Charms to bewitch and impose upon his unwary Readers; especially since a right Notion of these Words is absolutely necessary sor the right understanding the true Sense and Meaning of our Ancient English Historians. So that after all this Pother the Doctor makes about the Signification of these Words Topulus, Plebs, and Vulgus, as Synonimous as he grants them to be, they must all signify the whole Body of the People, as well the Commons as the Lords, represented in Parliament, by his own Confession; or else, I leave it to your self to consider, who of the Two is guilty of levelling Notions, your Doctor or Mr. P. since one does but assert with the general Consent of Ancient and Modern Writers, that the Words Barones andBaronagium Anglix did anciently take in more than the Lords, and Tenants in Capite. And the Doctor straight calls him a Man of Levelling Principles, and that jumbles the Commons together with the Lords. Whereas your Doctor can when he pleases, make the Words P/ebs and Vulgus to signify the great Lords, and Tenants in Capite,contrary to the Subject Matter on which he discourses, and to their Genuine Signification, either in Ancient or Modern Latin.

M. Yet notwithstanding what you have now said, methinks you have not been yet so clear in your Explanation of the Word Populwfor admitting I should grant you, that there were in some sort Commons in Parliament as represented by the lesser Tenants in Capite, who were not Lords j yet does it not therefore follow that there must have been another Rank or Order of Persons beneath, or different from them, since (as I laid it is, but now) 'tis only the Custom, and Law of each Country, that can determine what is the Community, or Representative Body of the People; so that there is no such certain Analogy between the Ckrus, when taken for the Inferior Clergy, and the Popu/us when taken for the lesser Nobility, or Tenants in Capite. Since in Scot/and, though their great Council or Parliament, might consist of the Abbots, and Inferior Clergy, as with us, who did not hold in Capite;yet you cannot deny, but that the Temporal Estate or Laity, (at least of late Ages) wholly consisted of the Earls, Barons, Lairds, or smaller Barons, together with the Burgesses of Royal Boroughs, all which held in Capite; and for ought as I can see from any clear Proofs you have brought to the contrary, did so from Times beyond all Memory: And so it might have been in England. too, for ought as I know; for though you have taken a great deal of Pains to Answer the Doctor's and my Arguments against the Tenants in Capite being the Representatives of the whole Kingdom in Parliament, before the 49th of Henry III. and 18th os'Edward I. and also to prove that the Words made use of in our Ancient Historians, Records, and Acts of Parliament, are of a more comprehensive Signification than to be confined to them alone: But you have not as yet proved that these Gentlemen who you suppose to have had Places in our great Councils, besides the Tenants in Capite, were Knights, Citizens, and Burgesses; or whether all the Lords of Manors, or great Freeholders in England, appeared there in Person sor themselves, and their Under-Tenants; therefore I pray be a little more clear in this Point, and shew me some Authorities that the Knights of Shires, Citizens and Burgesses, have been always constituent Members of Parliament ever since the Conquest: For methinks you waver in this Matter, and sometimes you seem to assert the former, and sometimes the latter.

F. I confess it is not my Humour to be positive in any Thing that is in the least doubtful or obscure and therefore as I will not maintain that Knights of Shires were always a constituent Pact of Parliament before your Conquest, or presently after, tho' it is positively asserted by the Author of the Modus tenendi Parliamentum ;since the Antiquity of that Piece is justly questioned by Mr. Selden and other Modern Antiquaries. So on the other Side, I mail not assert that they were not there from the beginning. But thus much I think I am able to prove, that they were Summoned to Parliament long before the 49th of Henry III. or 18th of Edward

toari I. But as for the Cities and Boroughs, that they had their Representatives in
Parliament, at or presently after your Conquest, I think I can prove from as unde- -
niable Testimonies as can be expected: Since all the most Ancient Rolls and Re-
cords of great Councils and Parliaments are long since lost and destroyed.

Yet to shew you that we have some very ancient Authors that seem to mention not only the Citizens and Burgesses, but Knights of Shires to have been summoned before the Times you insist upon; and if it prove so, whether they were there from the very Time of the Conquest is not material; since if I confute your and your Doctor's Opinion of the 49th of Henry III. and i8th of Edward [. I carry the Cause, and you may then invent if you can some other Epocha whereon to fix their first appearing at our great Councils.

I shall therefore give you another Quotation out of the fame old Monk Sukardus which immediately follows the Conclusion of the Charter of King William I. to the' Abbey of Westminster, but now cited: And it has been made use of not only by Mr. P. in his Ancient Rights of the Commons, Sec. but by Sir William Dugdale himself, in his.Origines Juridicalts; as also by the Author of Argumentum Antinormannicum, to prove the Commohs to have been summoned to a great Council in the 9th Year otKingWilliam I. Anno Dom.i 075. The Words, ascited in SirWilliam Dugdale, are these, That after the King had Subscribed his Name to this Charter with the Sign of the Cross; adding many of the Bishops, Abbots, and Temporal Nobility, instead of Cum multis aliis, hath these Words, Multis praterea illusirijfiJbm virorum perfonU, & Regni Pnncipibus diverfi Ordinis omijfis qui huicConfirmationipiiffimo affeSutestes & fautores fuerunt: Hij autem ilio tempore h Regia pot'esiate diver/isProvinces; & urbibus ad univerfalem Synodum pro causis cujujhbet Christiana Eeclefi* audiendis, & traQandk adprafcriptum celeberrimum Cœnobium quod Wejimonasterium dicitur Convocati. Now I shall only observe from this Author, that Mx.Selden in his Tit/es of Honour, and Sir Henry Spelman in his Glojfaty, pag. 273. do always render Provincia for a £ounty or Shire. 'nt. rnvmu,

M. I pray give me leave to examine this Quotation, because I confess it seems very specious at first Sight; but if it be thoroughly examined, will make nothing > at all for you. And to this End, pray let us read the Doctor's Observations on B. A. A. got; this Passage at the end of his Answer to Argumentum Antinormannicum.

F. But you need not read from the beginning of that Paragraph, since I so far agree with the Doctor, as that bySrincipes diverfi Ordinis, are not to be under- Ib'ld- 3°*> stood (as this Author renders them, whom the Doctor here writes against) the Chief or Principal Men of several Ranks or Conditions} but the Chief and Principal Men of both Orders, viz. of the Clergy and Laity 5 yet will it not therefore follow (as the Doctor here would have it) that these Principes diverfi Ordinis were only Bishops, Abbots, and great dignified Clergymen only;' and theProceres and Magnates, the Earls, Barons, and Temporal Nobility alone • for though I grant he produces several Quotations out of Florence of Worcester, Mahnsbury and Eadmer, to prove that Principes Regni Ecclefiastici £?Secularvs Ordinis Primates Regni utriusque Ordinis, &c. were at these Councils; yet I have already proved that the Words Principes and Primates do not in their proper Signification signify none but Bishops, or dignified Clergymen, or the Temporal Nobility only; *nce these Words mean no more than Chief; Principal, or most considerable Men both of the Clergy and Laity, who had by reason of their Offices, Dignities or * Estates, any Place in our General Councils at that Time; and which did certainly comprehend the Inferior Clergy also, though the Doctor has made bold to pass them by, without any Notice taken of them; and if they were then there, by the fame Rule the lesser Nobility or Commons were also summoned from divers Provinces, Cities, and great Towns.

M. Well, but pray see here; does not the Doctor prove plain enough, that this md. Gentleman he writes against is mistaken in his Translation, by applying the Words Provincm, & Urbibus, to Chief Laymen from divers Counties, Cities, and Boroughs; whereas the Doctor here proves that the Words mentioned in this Passage cannot here mean Laymen sent from County to Cities, but only the Bishops, whose Seats are here called Urbes, and which, as the Doctor shews us, were by a great Council held at London in the Year 1077, being the nth of KingWilliam, translated from Villages to Cities, as were Sherburn in Dorset/hire, removed to Sarum; Selfey toChichester, Litchfield to Chester, which was before this Council itlbid. p. 302. Westminster cited by Sukardus,which this Author places in the 14th of this King.




{408}

And the Doctor here farther proves that these Words following, pro causu cujuflibet Christian* Ecclesix that this Universal Synod being called for hearing and handling the Causes of every Christian Church-, that these Words, every Christian Church, must certainly mean many Churches in England, which in Reason and Probability could not be meant of the small Parish Churches all the Nation over; and therefore muft be understood of Cathedrals or Churches where Bishops Seats then were, or where they had been, or were to be removed. /.

F. Pray give me leave to answer this Comment of your Doctor's, before we proceed farther. In the first Place, suppose I grant him that by Urbes may here be meant such Cities as had Bishops Seats, yet does it not therefore follow that it shall signify no other Cities or Towns but Bishops Seats only •, for tho' I grant in the Modern Acceptation of this Word Urbs, here in England, a City and a Bishop's Seat are one and the fame-, yet it is plain, that at first it was not so ; for then there had been no need of the Law you mention, whereby it was ordained that Bishops Sees should be removed from Villages to Cities; nor were all of them so removed at the Time of the holding this Council, which was held Two Years before the said Decree: Nay, the Doctor shews us from this very Place here cited, that some of them still remained in VilKt & Tick, in Villages and small Towns. And tho'the Doctor here supposes (I know not on what Grounds) " That the Persons "summoned by the King to this Synod, from Provinces and Cities, were such as "were concerned, or able to advise the King in this Matter, of the Convenkncy "of the Places whither the Removals were to be made, as Deans, Archdeacons, "and other dignified Persons, and Church-Officers> as well of the Clergy as "Laity, tfc.

In the next Place pray observe, that the Doctor owns that by these Principes univerfi Ordines, were meant the chief Clergymen and Nobility he there musters up; but pastes by, or else did not consider the whole Context of these Words, hij aittem illo tempore diverfis Provinces iSf Urbibus adj univerfalem Synodutn Convocati \ which must certainly refer to the Principes Regni diversi Ordines, to the chief and considerable Men both of the Clergy and Laity of the Kingdom, who were alike summoned from divers Countries and Cities, and great Towns, to this Synod. Now pray do you or your Doctor tell me (if you can) what Earls, Barons, or great Noblemen, were then summoned from Cities, or great Towns, as well as the Bishops and Deans of Cathedrals: Which. if you cannot do, I see no Reason why we may not understand these Principes Regni, who were also summoned from the Countries and Cities, for the Representatives of the Commons of those Cities and Towns at that Time.

In the next Place, I think the Doctor is as much out in his Interpretation of the Word pro causis cujuflibetEcclcsia, for the Causes1 of every Cathedral Church; since it mult certainly mean not only Cathedral Churches, but all other Churches, whether Parochial, or Conventual; for rhat it takes in the latter, appears by one great Cause of the summoning this Council, which was chiefly for the Confirmation of the Privileges of the Abbey ofWestminster, which sure was no Cathedral Church, and yet must be some Church, or Ecclesiastical Corporation, or else this Synod could have had nothing to do with it: And I doubt not but this General Synod mighr, if it had pleased, have either made more Parish Churches, or united others where there were too many ; and should it not then have been laid' to have met pro causis cujuflibet Ecclefi£; for the Business of each Parish, as well as Cathedral Church? Lastly, The Doctor will have all rhesc great Clergymen and Laymen only to meet at this Council,, to advise the King about what farther Removals were to be made of Bishops Sees; as if thereupon he had had the sole Power of making Laws about them, without their Consent, or that of the Lay-Nobility, who tho' he will have to be always present in such Synods and Assemblies, yet does he not give them any Votes therein whereas it appears by this Charter in Sukardus, but now cited, that the Bishops, Abbots, Earls and Barons, whose Names are to it confenferunt (5 signaverunt; and it was ab ipfo Rege & supradiQk Perjonistejlijkata, consirmata£?' huftorizata which if I understand Latin, signifies not only that they witnessed, but also assented to, authorized and confirmed it; which also appears more fully by the Conclusion of the Charter of King Stephens but now cited ; all which the Doctor passes by as flily as a Commentator does those Words in a Text of Scripture that makeiagsinst his Sense 5 for this had quiteruined and destroyed his fine Notion of the great Councils of the Kingdoms then wholly

conconsisting of a few Bishops, Abbots, dignified Clergymen, and great Noblenien, who had nothing else to do there but to look on, whilst the King alone made the Law.

To conclude •, to shew you that this Assembly was not only an Ecclesiastical Synod, but Civil Council also, or Parliament as we now call it, I will give you Two good Testimonies for it, that we are not alone in this Opinion: The first is from Mr. Somner's Glossary, Parliamenturn Synodus magna vocatur ; and to confirm this there is written in an old Hand in the Margin ot this Manuscript of Su/cardus over against the Passage now cited, this Note Kota hie omnes convocari a Rege fua auUoritate ai causa* Religions traftandas tarn nobiles de Clertf, quamPrincipes Regni cumaliis infertoris gradus quorum convent io videtur effe Parliamentum.

M. Yet I suppose you cannot deny but that the Doctor has plainly proved from several Quotations from Gervat'of Canterbury, Richard of Hagulftad, and tlife Continuator osf'lorence^ that the Word Provincia'm this Place signifies a Bishop's lo"^ i^2Diocese-, and therefore that the Principes Regni who were summoned out of these Provinces or Dioceses were only the Bishops, Abbots, and other great Clergymen.

F. I will not deny but that this Word Provincia does sometimes in our ancient Authors signify in an Ecclesiastical Sense the Diocese of a Bishop, as those Authors (the Doctot has here cited) shew us; yet that it must be taken in a more unlimited Signification in this Place, is also as certain $ since besides that this Word Provinciadoes most commonly signify a Shire or County, (as I have already lhewn) the very Context sufficiently proves it; since Sukardm fays exprefly^ that the chief Persons of both Orders were summoned from the Counties, or Provinces, as I already said ; which when it refers to Lay-Men as well as to the Clergy, I hope you will not affirm that it can signify Dioceses only; but that besides the Bishops and Abbots, there were a great many more Persons present , at this Council, both of the Clergy and Laity, the Doctor himself confesses. Let us therefore consult the Authors themselves which Dr. Brady has cited for ihe Sense of this Word Provincia, and let us see how fairly he has dealt with them. Now pray Sir observe, it is true, the fame Words are almost repeated verbatim in every one of these Historians, R. Hagulftad, Gervat of Canterbury, WJi and the Continuator of Florence, who all speak of a General Synod held at Westminster Anno Dom 1138. being the Third of King Stephen, in these Words, Decimatertia die Decembrts celebrata eft Synodus apud Westmonast. cut prxfuit Albericus Hoftiensis Episcopus DominiPap£ Legatus, cum Epi/copis diver/arum Provinciarum numero XVII. Abbatibus fere XXX. Here the Dr. concludes with an Use. Now see what lies hid under this &c.-, in R. of Hagulftad, and the Continuator ofFlorence, it follows thus, CumCleri & Populi muhitudine numerosa 5 in Gervase of Canterbury almost in the lame Words, Cum innumera Cleri & Populi multitudine. Now pray tell me ingenuously what could be the Doctor's Meaning (who pretends to be so exact in all his Quotations) to leave out this so material a Passage in every one of these Authors,with this£?V. unless it were that he was afraid his Readers shquld take notice how numerous this Council was, both of the Clergy and People j which if he had done, it would have quite overthrown and destroyed his Notion of Tenants in Capite, and let the World have known that this Council consisted of a far greater Number both of the Clergy and Laity, than 17 Bishops, and 30 Abbots. Now had such a Thing been done by Mr. Petyt , it would have "been branded by the Dr. with the hard Terms of taking away, or leaving unre"cited such Words and Matters as he thought would either advance or destroy his "Assertions, as he (how justly, Heave it to you to judge) accuses Mr. P. in his "Title to his first Edition of his Answer to him". But

lurpe eft Dotfori, cum culpa redarguit ipfum.

M. I cannot believe the Dr. had any sinister Meaning in leaving out this Passage, but did it either because (as I laid but now) he supposed these Expressions as only Hyperbolical Phrases, by which these Monkish Writers used to express all the Ecclesiastical or Lay-members of those Councils; or else because he did not think it worth while, since he might not look upon this innumerable Company of Clergy and People here mentioned to have had any Share or Voice in this great Council, but only to have come thither as idle Spectators, as the Dr. shews us thePo- B.A.A. p. 30

G g g pulus

pu/us did at the making of Lanfranc Archbishop of'Canterbury; nor yet that they, or the Bishops and Noblemen chose him, but only all applauded the King s j Choice. But that the Dr. was not afraid to take notice of the great Multitude of

I People that in those hospitable Days were wont to flock to such Assemblies, pray

fee what he fays in his Series of English Great Councils, or Parliaments, at the End of his Introduction to EnglishHistory where speaking of the Election of p. 54. Archbishop An/elm, he recites this Passage out of an Epistle inEadmerus, Huic EleSioni ajfuerunt Epifcopi, Abbatcs & Principes Regni, £y ingens Populi multitudo.. The ordinary People (fays the Dr.) came to shout and make a Noise at such Meetings, and only for good Victuals and Drink.

F. Very well •, I think I shall easily answer your and the Dr's learned Observations. First, as for the Monkish Hyperbolical Phrases ofinnumera or numerosa Cleft, & Populi ntultitudo: I confess, you might suppose there was somewhat in them, if they had been peculiar only to one or two of them •, but when all these Writers do with one Consent agree, in almost the same Words, to express all the Members of such Councils ; I cannot fee how they could have writ thus, unless they intended to be understood literally, that there were great Numbers both of Clergymen and Laicks, who appeared as Members of those Assemblies, far more than the Dr's Tenants in Capite.And that they had also Votes therein, appears by that Passage in the Conclusion of King' Stephens Charter, which I quoted but now out of Sulcardus -y when speaking of this very Council in the Third of King Stephen, which we last mentioned, that not only the Comites, C Barones Regni, but the innumera multitudo C/eri & Populi, were not only present, but Religiose* favore voluntatem, C Afsenfum Authoritati noflrœ paging, & Privilegio prœbuerunt,i.e. yielded their good Wills and Consents to this Charter of Privileges to the Abbey of Westminster. And to shew you farther that this infinite Multitude of Clergymen and Laics were also part of this Council, pray remember the Passage I but now cited out of Florence, of the Council held at London, cum innumera Cleri & Populimultitudine, who all alike gave their Consents to the Constitutions, by placet t placet, placet; and consider what the lame Sulcardus has said in the next Council of the Fourth of King Stephen; when after Concilio adunato Cleri& Populi, and a Recital of the Bishops, he concludes with Monachorum & Qericorum Plebijque infinitemultitudinU, as all alike Members of it.

Now I shall leave it to your self, or any sober unprejudiced Person, to consider, whether it is likely that so Grave and August a Thing as the Royal Charter of a Prince should take notice of the frothy Consent and Applause of the meer Rabble or Mob, (whether of the Clergy or Laity); or so judicious a Writer as this Author, and the rest of the Historians (now cited) should have nothing else to do, but to record to Posterity for a very remarkable Transaction, That a great Multitude of the ordinary or vulgar Sort of People came to these Assemblies only to shout and mnke a noise, for good Victuals and Drink: And therefore the Dr. • and you, I hope, will pardon me if 1 still keep my former Opinion, that both the Archbishops Lanfranc and Anfelm, were not only named or proposed by King William the First and Second, in the Common or General Council of the Kingdom, but were also therein Elected or Chosen by the Clerus and Populus, according to the Manner of that Age, and the literal Meaning of those Ancient Authors, whose Words the Dr. either leaves out, or strives to wrest to quite another Sense. B.a A p ac ^or are *"s Objections against the Election of Lanfranc at all considerable. For as ... p. aco. ^ ^eftrft objection against the literal Sense of the old Author, printed at the End of Taylors Gavelkind, " That he could not be elected conjensu totius Populi "Anglis, because, who can believe that all the People of England, or the Hun"dredth Part of them, ever knew or understood of Lanfranc s being made Arch"bishop'1? Now pray let me ask you this Question j supposing this Election had been made in a General Synod of the Clergy alone, and the Words had been instead of totius Populi, totius Cleri Angliœ, would it not have been meer cavilling, to ask how all the Clergy of England could leave their Livings, and come up to give their Consents at this Election, or that the Hundredth Part of them ever knew of it? Since every Body is sensible those Words are not be understood in a literal, but legal Sense •, that is, the whole Clergy are said to give their Consents to a Thing, when they do it by their lawful Representatives, the Bishops and Procurators of the Inferior Clergy? And why may not the whole People of England be as well said to give their Consents to this Election by their lawful Representa1 tives

tives at that Time? But that we ate not singular in this Opinion, pray fee what Archbiihop Parker fays in hisAntiquitates Britannic*, of this Election o{ Lanfranc s, Celeberrima est autem hujus, prœ œteris EleQio, &c.Ele&us est enim a Majoribus Cantuarienfis Ecclesiot, turn acceffit Procerum, atque Prasulum, totiusque quasiPopuli consensus in Aula Regis, quod fane est inftar Senatusseu Parliament! Anglicanu As for the next Objection against this Election of Lanfranc %, it is yet weaker than the former, because the Dr. has answered this Question himself, How the English Saxon Bishops, Barons, and the whole People should chuse a Stranger, a Person they had never known, and postpone all their deserving Countrymen > Now pray read a very good Solution to this Difficulty (if he may be believed) in his Answer to Mr. P. wherein he tells us, that King William had taken away from the English p- '4» »5their Estates, and gave them to his Normans; and that this he did from his very first coming in •, and then reckons up the Earldoms he gave to his Norman Followers. Now if the English had then no Estates, they could sure have no Places or Votes in that great Council when Lanfranc was chosen. But if to solve this you will fay as the Dr. does in his Answer to Antinormannicum, that this Council was held about the Fourth Year of the Conqueror, some Years before he had p- 3°°made an absolute Conquest, and that the English Bishops, and Barons, and Freemen had still some Estates left, and therefore might then make the major Part of this great Council, when Lanfranc was made Bishop, who would never have'elected him had it been left to their Choice: Pray tell me if the bare Fear of refusing be a sufficient Objection that he was not elected, whether or no it will not be as strong an Objection against his being elected by the Senior Monks of the Church of Canterbury^ Gervafeexpresty tells us he was," Because (says the Dr.) they did itby Gervas. Dm6. ** Order and Direction from K.William-, and their Proceeding being no other than itin Ali- Rnxt. "is now by the Chapters of other Churches upon the Conge d'Estire, they could &j%°>Ll6ti' "not refuse him". And now supposing his Power to have been as great in the ,7. 'p'?6' Common Council of the Kingdom, as in the Chapter of Canterbury, why may we not fay almost in the fameWords, They could not, they durst not refuse him (who was already elected by the Prior and Chapter oiCanterbury) for fear of losing their Estates. But if an Election that cannot be refused, is none at all, the Dr. may do well to consider whether there was then, or is now, any Canonical Elections of Bishops in England at this Day.

M. I shall not farther dispute this Matter at thisTime 5 therefore pray go on "■'

to the.rest of your Authorities out of our English Historians, proving that any Knights, Citizens and Burgesses appeared in Parliament before the Times we allow them to have been there.

F. Tho' I think I have sufficiently proved at our last Meeting, from the Charters of King John, and Henry III. as also from the Words Communitas and le Commune, that the Common Council of the Kingdom consisted of many more Members than your Tenants in Capite; yet to let you see that the Historians and Annalists of those Times did comprehend all the several Orders under the general Titles of Clerus and Populus, or Magnates andProceres, you may see in the Chronicles of Thomas Wikes, Anno Bom. 1237. Where it is only said in general, that the Clerus and Populus Regni did in that Year (being the Ninth of Henry III.) grant the King a 30th of all their Moveables for the Confirmation of Magna Charta ; and which is more remarkable, the Parliament which was held in the Year 12 64. being 49th of this King, (and in which you grant the Commons were present) is only thus briefly mentioned by this Author, in an Historical way, tranfaSo fiquidem vicefimo die Nativitatis Dominica fa8aest London, per Comitem (sciL Leycestriæ) Convocatio non minima Procerum Anglicorum, &c. Where in the Annals of Waverly in Annal- travertins Year, it is only laid, FaBum est Parliamentum magnum Londoniæ, fc>V. Nowljf* P,2,7* pray observe, that either the Commons are mentioned by Wikes under the Name of Proceres, or not at all -, and that under the Word Parliamentum the Commons were then comprehended, appears by the Agreement between the King and the Barons there extant, which is said to be made, de unanimi ajfenfu, £7voluntate nostra (sci/. Regis) Edwardi ¥ilij nostri Pr<tlatorum, Comitum, iff Baronum, C Communitatis ditiiRegni nostri: Now it must be granted, since it appears by the Writs of Summons of 49th Henry III. that the Commons were there, and consequently must be comprehended under this Phrase diCommunitatis Regni; and if this had been the first Time they had been summoned, 'tis strange none of these Authors should

G g g 2 take

take any notice of so remarkable an Alteration and Change of - the constituent Parts of our English Parliaments.

But that the Knights, Citizens and Burgesses were also summoned in the next Year, in a Parliament of the 50th of this King, you may fee in the hldlVifas's Chronicle, Anno Dom. 1265. where he sets down all the constituentEstates of Parliament, which were summoned to meet at Westminster, at the Translation of St: Edward's Reliques, in these Words, Convocatis universis Anglis Prœlatk & Magnatibus nec non cunBarum Regni sui Civitatumpariter, & Burgorum pctcntioribus ut Iranstationis Sokmnia Celebrius illustrarent; where the Knights of Shires are comprehended under Magnates, and the Citizens and Burgesses are here stiled Potentials Civitatum &Burgorum. And that this was not only for a meer Ceremony, but for Parliament Business also, see the next Page, where he tells us, Celebrata tandem tantx translationssolemnitate ctperunt Kobi/es (i. e. all the Estates abovementioned) ut affolent, Parliamentarians genere de Regis Regni negotiis pertraBare, &c. And in which Parliament the King so far prevailed as to obtain a 20th Part of all the moveahle Goods of the Laity. And yet the Continuator of Mat. Paris in the Affairs of this Year takes no Notice of this Parliament, but only fays in general, that St. Edward's Body was this Year translated into its new Shrine. And the Ænnals oiWaverly under this Year make mention of this Parliament in general Terms thus, EaBa Convocatione Epifcoporum, Comitum, Baronum,Abbatum, Priorum, Vf multorum aliorum. So uncertain a Thing it is wholly to depend upon the general Expressions of Monkish Writers, without comparing them and the Records together, and considering the Subject Matter about which they treat. Nor can we suppose, that the constituent Parts of our Parliament were chopt and changed as often as they did their Phrases and ways of expressing the Parts of them. For they not foreseeing the Differences that might arise about these Matters, had no Reason particularly to recite the Constituent Members or Estates of Parliament, as often as they had occasion to mention them, it being very well known who they were at that Time. But to prove further, that it was not likely there was any Alteration in the Constituent Parts of the Parliament, from what it was in the 49th, may appear by this Writ still extant among the Patent Rolls of the 54th of this King •, where it is expresly recited, That it not seeming safe p the Prdatis, Magnatibus, & CommunitatiRegni nostri, that Himself and his 54- Son Prince Edward should be both out of the Kingdom at once in the Holy Land 5 7' and that therefore he gives the whole Subsidy of a 20th, granted him by the whole Kingdom, to his said Son. And that it continued so in the beginning of Ed' wardl. Reign, appears by a Protestation in the 4th of this King t, as it is found in the Patent Rolls, wherein he recites a 15th to have been granted him of all Moveables, by the Comitcs, Barones, ac alij Magnates, & Communitas Regni nostri. So that unless the Sense of these WordsCommunitas Regni must alter every Year, there is no Reason for us to believe any Change to have been in theConstituent Parts of Parliament since the 49th of Henry III. This I think may be sufficient to shew you that before the Time you mention, not only the Knights of Shires, but the Citizens and Burgesses did appear in Parliament both before your 49th oi Henry III, and 18th ot' Edward I.

M. Perhaps indeed since that the Commons might be comprehended under the general Words Magnates &Proceres by Wikes\ Chronicle in the 49th of Henry III. or else not be mentioned at all, which I rather incline to believe; that the other Passages out of the fame Author concerning the Citizens and Burgesses being summoned either to a great Council or Parliament in the Reign of Henry III. is more than I before ever took notice of Yet this Author does not tell us, whether it was to the one or the other, nor how many of them were there 5 whether one only, or more, for each City and Borough-Town ; or whether they were elected by the People, or nominated by the King to appear there: But as for the Words Communitas Regni mentioned in the Agreement of the 49th ofHenry III. tho' it might signify the Body of the Commons in that Record, yet if they were not again summoned to Parliament, till the i8thof Edward I. it signified only the Body of the lesser Tenants in Cmte, till after ths i8ch of that King.

F. I am sorry to see Prepossession and Prejudice has so much over-run you as to hinder you from closing with the Truth for pray tell me,, if this Author last mentioned could in the49th of Henry III. (when the Commons were summoned without Dispute) comprehend all the Estates of that Parliament under the general



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Words of Proceres and Magnates -, and the Knights of Shires are understood by the fame Word in the next Passage cited out of the fame Writer; why may not others do so too in other Parliaments? As for your next Exception, it is a very small Cavil for it appears that this Summons of the Citizens and Burgesses at the Translation of King Edward's Relicks, was to a Parliament, by the Words that follow, Nobiles ut astblentParliament ationk genere de Regis, & Regni negotiispertraBare: And why these Citizens and Burgesses should not be as well elected by their respective Cities and Boroughs this Year as well as in the last, as it appears they were by that Writ to the Cinque Ports, which the Dr. and Mr. Pryn has B A p given us •, I defire you would give me any satisfactory Argument to the contrary. p',jH:s pjrt/1Asfor your Objection against the Words CommunitasRegni being to be understood m:nt Register, for the Body of the Commons in 54th of Henry III. it is altogether as unreasonable, since this is to make the Constituent Parts of the Parliament alter, not only when Writers shift their Phrases, but when they do nor ; and that without any other Reason, but because the Writ of Summons and Parliament Rolls of those Times are all perifli'd. And to deny the Commons were there, only for that Reason, is altogether as unjust as for any Court of Justice to turn a Man out of the actual and long Possession of an Estate, meerly because his Writings and Evidences by the Carelesness and Roguery of his Servants have happen'd a great many of them to be lost or burnt.

But fully to convince you (if possible) that Dr. Brady's Opinion of the Commons not being again summoned from the 49th of Henry III. till the 18 th of Edward I. is a meer Fancy of his own, and contrary to the express Authorities both of Historians and Records •, and to come to plainer Proofs * pray in the first Place take notice, that it appears by a Writ of the 1 ith of King Edward I. to the Archbishop of Canterbury, acquainting him with the Rebellion of Lewellyn Rot' Wain*, m. Prince of Wales, that he had de Concilio Prslatorum, Procerum &Magnatum 4'2' d°r^0' Regni, nec non totius Communitatts ejusdem, resolved (God willing) to put an end to thisWeljh Rebellion -. So that this War seems to have been resolved upon at the Patliament held the Year before, and now mentioned in this Record a War which that valiant and fortunate Prince effectually concluded by the total Subduing oi'Wales, and the killing of Lewellyn, whose Head was cut off and sent to London the Particulars of which War Ymghton, as well as other Historians relate at large ; and also that presently after, David, the Brother of this Lewellyn, the Cause of all these Mischiefs, was (as this Author shews us) in Magno Parliamento atShrewsbury, condemned, and afterwards hang'd, drawn and quarter'd. - Walsingham is more short in the Relation os this Patliament •, only fays, that in the 1 ith of Edward I. Habitum est Parliamentum at Shrewsbury, in which this^"?^ David was condemned and executed as before. But Thomas Wikes, who lived clfln. ihom. at this very Time, in his Chronicle but now cited, will better instruct us than ei- wik«,/. m. ther Walsingham or Knighton ;and his Account of this Parliament is as follows.

Anno 1289. Grca Festum Sti. Michaelis Rex convocari fecit apud Salopesberiam Majores Regni sui C Sapientiorestarn de Civibus, quam de Mdgnatibus & fecit illuc adduci David, qui apud Rothelan fuerat captivatus ut superexigentiam DeliSi sui corpore subiret jfudicium, Kc. And then relates at large the Manner of his Execution. From which Passage we may observe, that this Author makes it plain who were the Communitas Regni mentioned in the Record of the nth of this King* and who constiruted this great Parliament at Shrewsbury, viz. Majores CMagnates Regni, which last, as I have often proved, takes in the Knights of Shires, and the wisest of the Citizens..

M. But yet this Author fays no more, but that the Majores Regni Csapientiores tarn de Gvibus, quam deMagnatibus, were called to this Parliament wherein LeweUyn was condemned: Now it doth not appear that theseCwes were elected, or that there were any Burgesses chosen for the Boroughs, or that there were any Knights chosen by the Counties $ thete were indeed Magnates called to this Parliament, but they might be all Tenants inQipite.

F. Well then, since you will not be satisfied without direct .and evident Proofs such as neither your self nor Dr.B. am. deny ; pray take this which Mr. Petyt has not long since communicated to me ; and which he has lately discovered in Rotulo WaUw, in a By- Roll not taken notice of by any body as I know of before. It is a formal Writ of nth of Edward \. for summoning the Temporal g' ^jj^Jir, Lords to be with that King at a Colloquy, (or Parliament) apud Salop hi Cra

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stino St'n Michaelis; and there is in the fame Roll a second Writ directed to several Cities and Boroughs for electing Two Citizens, and two Burgesses to this id. ibid. Parliament with a void Space toinsert more Names. And also a Third Writ is there directed to the Sheriff of every County in England to cause to be chosen Two Knights,pro Commun'itate ejusdem Comitatus. And lastly, there is a Fourth Writ diiected to the Justices and other of the King's learned Council, with the fame Preambles to each of them, all being commanded to appear at the fame Time and Place. Now what can Dr. Brady fay ,to this? That he was so long Keeper of these Records, and fuse ought to have perused them, (as he did many others of the fame Reign,) yet has either wilfully or carelefly passed by- this so memorable a Record. And so I hope this will convince you for the future of the Danger of being over-positive in an Opinion, because it could not presently be confuted; and let you see that it is not at all improbable, but that the like Writs of Summons would appear as well before the 49th of Henry III. as in the rest of the Years of his own and his Son's Reign, had not those Records been lost and destroy d: Which considered, we have Reason to thank God for those that the 1 Iniquity of the Times have yet left us.

M. I must confeis you have told me more than ever I yet thought could be produced against the Dr.'s Opinion; and I mould be throughly convinced, could you shew me any Writs of Expences for the Knights, Citizens, and Burgesses, who appeared at this Parliament.

E 1 hope you will not aver against an express Record, tho1 the Writs of Expences for that Year are lost (being never entred upon the Roll) by the OmifVd. 4thPart of fion of the Clerks, who as Mr. Pryn acknowledges, oftentimes neglected the EnPirliamentKe- tl-ies 0f Writs of Summons themselves, as well as of Expences. But if this were iijer, p. 12. mater}ai Objection, then there should have been no Commons summoned to any Parliament from the 49th of Henry III. to the 28th ot Edward L; when the first Wtits of Expences (except those of the 49th of Henry III.) do first appear upon the Rolls; and so you must then go from the Doctor s new Notion of the Commons being again summoned in the 18th of this King. But to shew you that these Expences for the Knights, Citizens and Burgesses could be 'no new Things, Pray peruse the Clause in this Second Writ it expenfis Militum &Burgensium, of Rot. aauf.it. the 28th of Edward I. we have upon the Rolls : The Writ is to the Sheriff of 5^ £. J.m. 12. jncrfetjhire to pay to the Knights of that County, Venientibm ibidem nobiscuttt Tj0' de diverfis negotiis nos,& Populum Regni noflri/pecialiter tangentibus rationabiles

txpenfas suas in veniendo ad nos ibidem, morando, iSf inde ad propria redeando (and now observe what follows)prout alias in Casu Consimili fieri consuerit. Now pray tell me, how this last Clause could ever be true, if the Knights of Shires, Citizens and Burgesses, had never been summoned to Parliament since the 49th of Henry III. which was but 32 Years ; or the 18th of this King, but 10 Years beiore this Writ was published all over the Kingdom.

M. I confess what you now fay, seems to carry some Weight with it 5 but yet in my Opinion falls far short of a Prescription •, since a Thing might be said to be done as in like Cases was accustomed, tho' it had never been practised above 20 or 30 Times.

F. I fee neither you nor your Dr. by Reason of your different Employments, had ever any true Knowledge of the Nature of Tenures and Prescription according to the Laws of England -, which he is not to be blamed for, had he not taken upon him to be so great a Master in both : Therefore to set you right for the future •, you must know, the Knights, Citizens and Burgesses have ever claimed being summoned to all Parliaments by Prescription, as I shall prove by and by; but as for that Part of it called Custom, my Lord Coke tells us in his Notes upon p.106. Littleton, " That in every Custom there be Two Essential Parts, Time and Usage, "Time out of Mind, and continual Peaceable Usage without lawful Interruption". Now the Commons have in all Times beyond the Memory of Man, challenged to have enjoyed both these essential Parts of Common Law or general Custom. So that these Words, Prout Caju Consimili consuevit, must be by Implication of Law extended beyond the Times ofHenry III. and Edward I.

And for Proof ot this, I lhall shew you what Claims the Commons have made to this Usage from Time immemorial. Therefore I shall begin withMr.P s first Arp. 7. gument in his Rights of the Commons asserted, where the Burgesses of St. Albans

in their Petition to King Edward II. in Parliament,./!/^ Regni 8, let forth, that they *' Sicut

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Sicut c&teri Burgenfes Regni ad Parliamentum Regis (when it should happen to*9*- Pat-8be summoned) Verduos comburgenses Juos venire debeant, prout totis. WTOSa^j^^ temporibus venireconsueverunt\ tarn temporeDomini Edwardi, nuper Regis Anglizdc'stMiina. patris Regis, & ProgenitorumJuorum, as in the Time of EdwardII. Semper ame infians Parliamentum, &c.; and farther declare that the Names of such Burgesses coming to Parliament were always enrolled in the Rolls of the Chancerynotwithstanding all which, the Sheriff of Hertford,at the Procuration, and in.Favour of the Abbot of St. A/bans and his Council, refilled Burgenfes pr&diBosprxmunire feu nomina eorum retornare prout ad ipjum pertinuit, 8tc and therefore they pray. Remedy .The King and Council's Answer whereunto was thas,Scrutentur Rotuli, &c. de CinceUaria si temporibus ProgenitorumRegis Burgenfts pr<tdi8i folebant Venire velnon? & tune fiat eis super hoc Justitia vocatisevocandissi necejjefuerit. Where by the Words totis retroaBis temporibus, &c. must be understood that they and their Predecessors were always accustomed to fend two Burgesses to Parliament in all former Ages, not only in the Time ofEdwardi. but his Progenitors; therefore in King Jffc/f's Time, his Grandfather, at least, and Ib long before the 49th ot'Hen. III.

M. I confess the Gentlemen of your Party make a great deal of Noise with this Quotation, but if it be strictly lookt into, I believe it will prove of no such great Consequence as you would make it. For Mr. P. hath concealed the main Cause of these Burgesses pretending a Right of sending Members to ParliamentSi and therefore twill not be amiss to give you the rest of it at large.

Ad Petitionem Burgensium viUx de San&o Albano fuggerentium Regi quod licet ipfi tenent villam prxdittam deRege in Capite & ipsi sicut cœteri Burgenfes Regni ad . p t Parliament a Regis cum ea Jummoniri contigerit perduos Comburgenses Juos venire ''p"3' debeant prout totis retroaBis temporibus venire conjueverunt pro omnibusfervitiis Rfgi faciendk, Sec. By which Words, as the Dr. very well (hews us, it is evident, that the Burgesses of St.A/bans claim'd not, nor prescribed to come to Parliaments as meerly from a Borough, but as from a Town that held in chief of the King ; and this Service was incident to their Tenure, and was such as the King's Progenitors had accepted in lieu of all Services due by reason thereof

Jlnd farther, the Answer to this Petition is remarkable, which amounts to no more than this, That if it did appear by the Rolls of Chancery, that the Burgesses of St. Albans were wont to come to Parliaments in the Time of the King's Progenitors, then such as have been called (i. e. to Parliament) should be called when there was necessity for it. Hence Jtis clear the King and his Council were equally Judges when it was necessary to call them, and for them to come} as they were of their Rights and Pretences to come.

F. I very much wonder a Gendeman of your Understanding should be so much imposed upon by such weak Inferences: For in the first Place it is a great Mistake in Matter of Fact, that these Burgesses of St. Albans claimed to come to Parliament no otherwise but as Tenants in Capite for tho' the said Petition recites, that they held the said Town of the King in Capite, yet they do not likewise say, that they claim'd to appear there only by that Tenure, for then they should have recited that they sicut cœteri Burgenfes Tenentes in Capite, and not sicut c£teriBurgenfes Regni ad Parliament Regis venire debeant. And tho3 it is true they set forth, that they appeared there for all Services, yet do they not fay, that their Tenure in Capite was the only Cause of their Appearance in Parliament; since divers Towns and Boroughs of the Kingdom, which held not in Capite at all, had the like Privileges before -y of which I can give you divers Instances, which I shall read to you out of this Note, which a Learned Friend of mine, since deceased, hath taken out of the Rolls in the Tower, tho' when he sent , it me, he through Haste or Inadvertency, hath forgot to let down the number of the Roll to most of such Boroughs who never held in Capite, and yet have always sent Burgesses to Parliament by Prescription j as first. The Borough ofArundel, which always held of the Earls, and never of the King, being granted by Henry I. to Hugh MontgomeryEarl of Arundel. Secondly, The City of Bath appears to hold of the Bishop of Bath and Wells. Thirdly, The CityofWeUs it self, which always held of the Bishop, and never of the King, and is therefore called Villa Epifcopi in all publick Writings belonging to that Church, and was made a Free Borough in the Third of King John.Fourthly, Beverly was made a free Borough by Thurston Archbishop of Tork, which was confirmed by KingHenry III. Fifthly, Pa,._ 52< H? Bodmin, which always held of the Earls of Cornwall. Sixthly, Bridgwater ; for ,5m. is.'

Chart. Antiq. King John granted it to William Brewer, Quod Britgwater, fit liber Burgus.

2.Jok.M. 13. Seventhly, Coventry, which was always held of the Earls of Chester, and pleaded in the Reign ofEdward I. to have never been taxed with the King's Demesnes, but with the Body of the County. Eighthly,Bifi)opsLinne, tor King John

Cart- Amo 6. granted to John Bishop of Norwich, Quod Burgus de henna fit Liber Burgus in

Job- perpetuum: All which by the Writs we have left us, sent Burgesses to Parliament

as early as any that held in Capite. These I give you only for a Taste; but I doubt not, but, if I had Time, I could give you Three Times as many, especially in Cornwall, where the Boroughs did almost all hold of the Earl ofCornwall, and not of the King. But besides the Doctor's Error in supposing that no ancient Cities or Boroughs had any Right of lending Members to Parliament, but only as they held of the King in Capite, his Mistake is yet much more gross in his construing those remarkable Words in the King's Answer to the Burgefles of St. Albans, Et tunefiat eis super hoc Justitia, evocatis evocandissi. necejfe suerit, thus, " And ** then let them have Justice in thisMatter $ and such at have been called, may be u called, if there be "Kecejfity. Upon which Words you have also from the Doctor put this pleasant Gloss: " Hence 'tis clear the King and his Council were *' equally Judges whenit was necejfary to call them, and for them to come; as they ** were of their Rights and Pretences to come. But I must needs tell you, I think nothing can be more absurd, and contrary to the genuine Sense of this Record, than the Doctor's Construction, who will needs have the Words evocatis evocandis, only to mean a Calling, or Summoning to Parliament, which is quite contraty to the true Sense of the King's Answer to this Petitions for if that had been his Meaning, that those only should be Summoned to Parliament whom the King pleased to call, to what Purpose were these Words, scrutentur Rotuli, See. de Cane ell. si temporibus Progenitorum Regis Burgensespradifti Jolebant venire vel non? For if their coming to Parliament had been a Matter of meer Grace and Favour, and not of Right, and so wholly left in the King's Breast whether they should come or not; it was in vain for him to command the Rolls of Chancery to be searched, whether any Burgesses us'd to come to Parliament or not, in the Times of his Progenitors. Or if it had not been a Matter of Right, why should it be here said, that upon search of the Rolls, Tune fiat Justitia, Let Justice be done, if there never was such a Right of Prescription by which they claimed? But I much wonder that the Doctor (so great a Critick in Records) should ever construe them evocatisevocandis, a summoning or calling to Parliament; and I desire you would shew me in what Parliament Roll, or Ancient Record you can find evocare ad Parliamentum, to summon to Parliament: But I more admire that you, who are a profess'd Civilian, should no better understand the Sense of your own Terms; whereas if you would have but consulted any Civil Law Dictionary, you might have found evocare Testes always signifies to summon Witnesses; and I can shew you by Twenty Precedents both from our Common Law Records, as well as your Canon Law Forms, that evocatis evocandis, does always signify the Summoning such Witnesses as are to be summon'd in a Cause; and in this Sense it is to be understood in this Record, that not only the Rolls should be search'd, but also Witnesses summon'd to prova their Claim, if any Dispute or Doubt should arise about the Matter of Fact.

M. I stiall no longer contend with you about the genuine Sense of these last Words, since perhaps you may be in the right; but yet for all that, it does not appear, that the King and his Council did by this Answer allow this Petition of the Town of St. Albans to be true, That they had sent Burgesses to Parliament in the Time of his Predecessors; much less that any other City or Borough in England were then allowed such a Right by Prescription.

E I grant indeed that this Petition doth not absolutely allow the Matter of Fact ( as it concerns the Dispute between them and the Abbot) to be true, as it is there set forth •, neither yet does it condemn it for false But whether it were true, or false, it matters not; for both the Petition and the Answer do sufficiently prove the Point for which we make use of it; (viz.) that it was then received for a general Custom, or Law, Time out of Mind, That the Cities and Boroughs had sent Members to Parliament according as in the Petition is set forth; otherwise it can

P.r.c. p. 10. £arce be supposed (much less believed) that the Burgesses of Si. Albans, or the Penman of this Petition, should dare to tell the King, and his Learned Council, in the Face of the Parliament, so ridiculous a Novelty, to be recorded to Posterity, as that they and their Predecessors in the Time of King Edward I, and his Progenitors, hitors, had sent two Burgefles to every Parliament, or that the King and his Council should have ever received this Petition without Indignation, and a severe Rebuke for their Impudence •, if all the World then knew, (as certainly they must, were it true) that there was never any Election of Burgefles to Parliament before the 49th of Henry III. (which was but Fifty Years before the 8th of Edward II.) from thence had appeared no more till the 18th of Edwardl. which was but 24 Years before the Delivery of this Petition, a Time which must have been then fresh in the Memories of most of the King's Council there present: Whereas they allow this general Claim of Prescription. And every Person, (tho' but meanly skill"d in our Law) does understand a general Prescription, viz.a tempore cujus contrarium memoria bominum non exiftit, what it was then, and so remains, by the Law ofEngland at this Day, as appears by our Ancient Records, Law-Books, and Judicial Proceedings.

And surely the Burgefles of St. Mbans did not ground their Petition of Right upon bare Affirmation, but the Justice and Certainty of their Claim, as they very well Ibil- P-lr* knew, wherefore so they prayed it might be examined by uncontroulable Proofs, the Rolls of Chancery. And the King, Chancellor, and all the Council, did no less know there were such Entries on the Rolls, and therefore order'd their Search. Whereas if the very Ground of their Petition had been notoriously false and idle (as it must have been, if neither this, nor any other Borough had sent Burgefles to Parliament before the 49th of Henry III.) then instead of recording this Petition and Answer, to future Ages, they would with Contempt and Indignation have rejected it nor would the Abbot of St. A/ban'sCouncil, and the Sheriff of Hertford, against whom this Petition was exhibited, have been wanting in their own Defence to have shewed that this Ancient Prescription, not only of this, but of all other Boroughs, was a meer Chimera and Fable. But instead of this, we do not find they made any Opposition against it, because they knew they had been summoned and appeared at divers Parliaments before that Time •, as you may see in ProfsParliamentary Register parl.s. p. 20a. they were in the 28th of Edwardl. which is almost as early as we have any Writs of Summons left us to the Commons of this King's Reign. And tho'it is true, the Sheriff of Hertford in this 28th Year, returns that the Bailiffs had made np Return of the Precept lent them * yet this plainly proves that they were then look'd upon as a Borough, and that it was very well known that it was wont to send Burgefles to Parliament, or else it had been a vain thing for him to have sent them any such Precept at all. And tho5 it is also true, there are no more Returns from St. Albans left us till the 35th of Edwardl. yet that is no good Argument against their Appearance in the former Years; since the Writs and Returns upon them being in' loose bits of Parchment, might very well be lost, as well as they are for many other Places. But that the Burgefles of St. Albans were summoned, and appeared in Parliament in the 35 th of Edwardl. appears (tho' the Returns be lost) by the Writs of Expences of this Year (being the first we have left us in Prin's Parliamentary t3rl4 p'Register) for the Cities and Boroughs * in which List, the Burgefles of St. Al- *7* bans are first upon the Roll. And that they were in Parliament before this Time, may further appear by that Clause at the end of the Writ which I have already taken notice of, viz. That they were to have their Expences for coming, staying, and returning, prout in cafuconfimili fieri confuevit; which words relate to Ancient Custom, and extend to St. Allans, as well as to any other Borough there mentioned. And that they also were summoned and appeared in primo & Jecundo of Edward II. (in whose Reign this Petition was exhibited,) you may see in Prin's Parliamentary Registers, both Third and Fourth Parts; in the last p of which you may find the Names of the Burgefles return'd in the First and Fifth '2°°'P'9°°' of this King as they might have been seen also in the Second, had not the Return (as Mr. Prin then acknowledges) been torn off; tho' it is plain that they appeared there •, and so may be likewise lost for all the rest of the Years of this King, till the Second of Edward III. when we find they appeared again, and so continue to send Burgefles to this Day. And if it be a good Argument of their Non-appearance from the defect of Records, I'll undertake to prove that London and several other Cities did not send any Citizens to Parliament in several Kings Reigns, as you may see in this List of Towns (whose Writs of Expences we now mentioned) of the 35th of KingEdwardl. where London, and most other great Cities are omitted, and yet St. Albans is in. To conclude, it is certain, that this was no new Claim of this Borough 5 as appears by a


{418}

vid. Breve 5. a Writ of the 5th of Edward II. to the Sheriff of Hertford, that the Bailiffs of Ed. 2. in Bun- tneAbbot having refilled to levy the Expences for Ralph and Feter Picot, who had served as Burgesses for the said Town in the lass Parliaments whereupon the laid Ralph and Pe:er set forth before the King, that the said Town used not to be taxed with other Boroughs of the laid County for the Expences of Knights, wittemporibusretroaQU ; but that it is a Free Borough, and used to be summoned to Parliaments, which have been summoned by the King and his Progenitors temponbus retroaSis •, and that the Burgesses of the said Town used to receive their Expences as the Burgesses of other Boroughs of the Kingdom. To which Plea and Petition of the laid Burgesses, when the King had appointed a Day both to the said Burgesses and Bailiffs of the Abbot, to appear before him in Chancery, they railing at the Day appointed, the King therefore issued out this Writ to the Sheriff of Hertford to summon the said Abbot and Bailiffs to appear again before him, to mew Cause why the said Ralphand Peter should not receive their Expences as aforesaid.

M. I will consider further of this Argument-, for 1 must ingenuously confess I never heard or understood so much of this Matter before: But pray proceed to the rest of your Authorities.

K But that it was not only the Opinion of the Borough of St. A/bans, and ad* mitted by the King and his Council, but that also that it was the Belief of succeeding Parliaments, that the Commons were part of the great Council of the Kingdom long before the 49th of Henry III. for Proof of which, I desire you to

vidMu Paris' a^ t0 min(*that K*n8 J°^n m tne I4"th °^ his Rei8n made himself and Crown Anno 121 ?. tributary to the Pope.

Rot. Part. 40. But Anno 40 Edward III. when the Pope demanded the Arrears of this Tribute Ed. 3. n. 7,8. from the King; the Prelates, Dukes, Counts, Barons and Commons, upon their full Deliberation in Parliament, resolved with one Accord, that neither the King, nor any other could put the Realm, nor People thereof into such Subjection, sanz assent de eux, without their Assent, viz. as well of the Commons as of the Lords 5 * and that it appeared by many Evidences, that if he had lb done, it was done sanz lour ajsent, and contrary to his Coronation Oath, £?c Now what can be more plain, than that above Three Hundred Years ago there was not the least Dispute that the Commons of England, (of which the Citizens and Burgesses were then undoubtedly a Part) ought to have been present in the Commune Concilium Regni, ot Parliament of King'Johns Reign, and to have assented to that King's Resignation, to make it legal and valid, as well as the Prelates, Earls, and Barons. B A P p. 70 ^s ^or l^'sArgument, I need trouble my self no farther than to give you the

• P- 7 • j)r>S Ansivej in his own Words, viz.- '* All that the Resolution of this Parliament "in rhis Case proves, is, that King John could not subject himself, his Realm or "People, without, their Assent \ but moves not who they were that in such Cases 4< at that Time gave or denied their Assent, or how they did it •, or whether 153 "Years before this Resolution, the Commons were represented by Knights, Citizens, "and Burgesses as at this Day. The Prelates and Barons gave their Answer first, "that such a Subjection could not be made without their Aflenr, and then the "Commo- :were jsked whar their Thoughts were, and they answered in rhe lame "Mannti, and in the lame Words the Barons had done, and when they answer all "together, they do it in the same Form of Speech, conceived first by the Barons, "without any Consideration whether the Commons were the fame Body of Men, *' at the Time of executing the Chatter of King Johns Subjection, Cc. as at that "present, or no. •

F. I must tell you, I am not at all satisfied with this Reply of the Dr's. For if there is no heed to be taken of the House of Commons Answer to the Pope, given in so solemn a Manner as this was, there is no Credit to be given to any Thing they could fay, if they are once suppos'd to speak like Parrots by rote, and only as they were taught by the Lords, without any Consideration of the Truth or Falstiood of what they averred. And tho' the first Proposal of this Matter was by the King to the Lords, yet the Pope then threatning to excommunicate the King, and put the whole Realm under an Interdict •, it was certainly the Interest as well of the Commons as the Lords, to avoid the Blow by a wary and true Answer to the Pope's Demands. For had their Answer been so idle and frivolous, as you would make it, it would have been Advantage enough for the Pope to have returned in Anlwei to this Letter, (had what the Dr. alledges been true) that the upstart House of Commons had nothing to do to meddle or treat of any such Matter,

since fince they were none of the Parries to the Agreement, nor one of the Estates, at that Time when King Johnresigned his (Srown, and made himself and Kingdom tributary to his Holiness's Predecessors. Nor was the Space of an Hundred FiftyThree Years, from the Time of King John, to the 40th of Edward III. so far beyond the Memory of Man, as that so memorable a Transaction could not be well known to the Pope, as well as to the House of Commons then in being ; since the making them a Third Estate, fell out but in the Time of their Grandfathers; so thai it is scarce possible that the Memory of so remarkable a Transaction, of which the whole World then rang, should be lost in Two or Three Generations.

But I shall now proceed to shew you, that as it was the express Judgment both of the Lords and Commons, that King John could not make the Kingdom Tributary to the Pope without their Consents in Parliament; so was it the Judgment also of the whole House of Commons in the Second of Henry V. and admitted c. p. 3?. by that Noble Prince and the House of Lords, that they ever had been a Member of Parliament, and that no Statute or Law could be made without their Assent; as appears by a Petition or Protestation presented by the said Commons to the King in Parliament, a Copy of which I shall now read to you, as far as it concerns the Matter in Question ; " Our Soveraign Lord, your humble and trewe Lieges, "that ben come from the Comune of yourLond, bysechin unto your riht twissness, Rot- p<*n2. "that soo as it hath ever be thair Libertie and Freedom, that their should noo Sta-H' *• p's- * "tute, noo Law be made, of less than they yaf thereunto their Assent, confide- n' "» *' ring that theComune of your Lond, rhe which that is, and ever hath be aMem"ber of your Parlement, been as well Assentirs as Petitioners, that fro this Time "forward by Compleint of the Comune of eny Mischief, asking Remedy by Mouth "of their Speaker for the Commons, outher else by Petition written, that there "never be no Law made thereupon and ingrosed as Statute and Law, neither by Ad"ditions, neither by Diminutions by no manner of Term, ne Terms, the which "that should change the Sentence and the Intent asked by the Speakers Mouth, "or the Petitions by foresaid yeven up in Wryteing by the foresaid without Assent "of the foresaid Comune, 8tc. This Petition is so plain that it needs no Comment, therefore pray tell me what you think of it.

M. In the first Place give me leave to tell you,that I do not find at all by the King's Answer to this Petition, that the King allowed the Matter of Fast therein set forth to be true, but rather the contrary, as you may see by the Answer it self in these Words-,The King of his Grace especial granteth, that fro hensforth nothing be enacted to the Petitions of his Comune that be contrary of their asking, whereby they should be bound without their Assent, saving alway to our Leige, (/. e. Royal Lord) his Real Prerogatyf to grant, and deny, what him lust of their Petitions, and Askings aforesaid.

And I shall farther give you the Dr's Answer to this Argument, which is to this Effect "The Design of this Petition was not to set forth the Antiquity of B At p.^w. "their Existence, but their Right, that nothing might be enacted without their "Assent contrary to their Intent and Liking ; and to shew you it was never done "fince the Commons were a Third Estate, or (asrhey fay) a Member ofParlia"ment, therefore 'tis needless to prove that which no body denies, that the As"sent of the Commons was then and is now required to the making of all Statutes "and Laws. But pray give me leave to ask you (with the Dr.) What, were the "Commons of England as now represented by Knights, Citizens and Burgesses, "ever an essential constituent Part of the Parliament from Eternity, before Man "was created? Or have they been so ever since Adam? Or ever since England was "Peopled ? Or ever since the Britans, Romans^ and Saxons inhabited this Island? "Certainly there was a Time when rhey began to be so represented. And that this "1 is the Question between us, concerning which, whether you or my self be in the "Right, I durst leave to any impartial Judge.

F. But notwithstanding your Dr.'s Answer, I think the King and Lords did here allow the Substance of this Petition or Claim, as the main Ground and Foundation on which it was built, viz. That the Commons had everbeen Members of Parli- x ament and therefore that no Law, or Statute should be made without their Assents (which Encroachment upon their Liberties, it seems had been before endeavoured by the King and Lords ;;and therefore let me tell you, that the Answer of the . King in Parliament, is rather a full Concession of the Truth of the Commons Claim; otherwise it is not to be imagined that the King and Lords would have left such ■ H h h 2 a Claim

a Claim as of ancient Right, without any Denial or Protestation against it. But instead of this, the King and Lords allow the whole to be true ; only the King reserved to himself his Negative Voice of granting or denying what he pleased; which the Commons themselves do also allow him in the Conclusion to the Petition it self, as you may lee, if you please to read it at large. And farther, that this Affirmation df the Commonswas no other thanaRenovation,orMemorialofthe ancient Law of the Land, in that Point, is more fully explained and confirmed by a Peti-' "tion to King Edward II. in Parliament, of all the Bishops, Prelates, Counts, "Barons, and others of the Commonalty, in the 18th of his Reign, about an 100 * Years before this of the 9th of Henry V. setting forth, That they held their Ma"nors of the King in Capite, as well within the Forests as without; to which "Manors they heldGasz (i.e. Wast) Appendant, and of which the Seignories "had been rented out by the Acre, half Acre, and Rood, in improving their laid "Manors, and that thereupon the Officers of the King had made Seizure thereof, "because they had not the King's License so to do •, and therefore pray they may "improve their said Manors, ©V\ To which Petition it was answered by the King and his learned Council in Parliament, That this could not be done without a new Law •, to do which the Commonalty of the Land will never Assent •, and concludes, Infra coramRege. From whence I make these Observations, That the King and his Council do hereby declare it, (as the ancient Custom of England,) that no new Law could then be without the Aflent of the Commons or Commonalty of the Land •, and also, that this Commonalty was a distinct Body from the Commonalty of the Tenants in Capitebefore-mentioned, who were the Persons that put up this Petition.

And besides this, I can (hew you divers Precedents to the lame Purpose •, and particularly a Declaration or Protestation to Edward III. by the Commons in Parliament, that they would not be obliged to any Statutes or Ordinances, without the Aflent of them the said Commons. Which is also farther confirmed by another Petition of Right, or a Protestation of the Commons to King "Richard II. as it is to be found in the Parliament Rolls of the 6th of Richard!!. (Tt. i.m. 52.) wherein they pray against a pretended Statute made by the King and the Lords, against those who in the Statute of Henry IV. are called Lollards; in which they set forth, that the said Statute was never assented* to by the Commons ■, and therefore pray that it may be annulled. And pray observe the Reason, for it was not their Intent to be justified, nor to oblige themselves, or their Successors, to the Prelates, more than their Ancestors have been in Times past.

From all which we may observe, that the Commons do by all these Petitions and Protestations, make as strong a Claim by Prescription for themselves and their Ancestors not being bound by the Acts of the Bilhopsand Lords, as the King could make for himself and his Ancestors, touching his own Prerogative by Prescription. But as for your Queries on this Petition, since they are not your own, give me leave to tell you, I look upon them as impertinent: For who ever suppos d that the Commons claim'd a Right by Prescription ever since the Creation, or ever since the first Peopling of this Island? Since any Body may see, that this Word ever is to be understood according to the Nature of the Subject in hand, viz. from the first Institution of the Saxon Government in this Island. Now pray give me leave to put you a Case •, Suppose you mould affirm? that the Crown of England hath ever been successive, and not elective; would it not bemeer cavilling, to ask you, whether it was so, jure Dhino, ever sinceAdam? But as you will leave it to any impartial Judge, who is in the Right, you or I, so (hall I likewise leave it to them to consider, which is most likely, That your self, your Dr. and some of our Modern Antiquaries, should make the House of Commons no ancienter than about the latter End of Henry III. or middle of Edward I.'s Reign; or the constant Judgment of both Houses of Parliament, with the Assent of the King, and his learned Council, who have insisted upon the Consent of the Commons, as their ancient and undoubted Right, beyond all Time of Memory.

M. I must confess you have proved it plain enough, that it was the constant Opinion of more than one Parliament, that the Commons have been before the 49th cf Henry \\\. Members of the great Council of the Nation-, but how long before that, they do not set forth. But since Parliaments are no more infallible than general Councils, I hope you will pardon me if I do not give absolute Credit to their Testimony; since in an illiterate Age, as that was in which the Commons ttions make this Petition, it might happen that not only they but the King himself, and his Council at that Time, might not certainly know, how long and how little a Time the Commons had been summoned to Parliament. Therefore since all the Writs of Summons to them before the 49th of HenryIII. are lost, I pray shew me ftom this general Right of Prescription you so much talk of, that there must have been Commons summoned to Parliament before that Time; for I have now somewhat very material out of Mr.P/jw's Parliamentary Register, to object against Mr. Lombard's Argument from the Plea of the Tenants in ancient Demesne being exempted by Prescription, ftom paying to the Wages of Knights of the Shires ; (as you told me at our last Meeting but one.) But first let me hear the rest of your Arguments from this Prescription of Knights, Citizens and Burgesses appearing in Parliament, before the 49th of Henry III. ■ For since you have now proved they were there by an undeniable Record in the 1 ith of Edward I. I shall now confine my self to Sir HenrySpelmaris and Sir William Dugdale's (as well as the Dr.'s first) Term of the 49th of Henry III.

F. I shall observe your Desires, and in performing of which, I shall pursue this Method 51 shall first give you a general Definition of Prescription, and shall then prove, that the Knights, Citizens and Burgesses, have always claimed to appear in Parliament by vertue of this general Right of Prescription. Now the Terms of the Law tell us, " That Prescription is, when a Man claimeth any Thing "for that he and his Ancestors and Predecessors, whose Estates he holds, had, or * used any Thing in all Times whereof no Memory is to the contrary": Now pray let us see to what Time this is limited, that shall be laid to be within Memory, and what was anciently counted beyond time of Memory in a Prescription: M Pjrl Which may be best learnt ftom a Petition of the Commons to KingEdward III.£. j. n. is. in the 43d of his Reign, which is to be found in the Parliament Roll of that Year j wherein among other Petitions of the Commons, this is one, which I shall render and abridge out of French. "Item, because the whole Time of King "Richard I. is held for temps de Memoric, that it would please the King farther "to limit this Time ; so that it do not pass the Coronation of King Edward., "Grandfather to the King that now is. But mark the King's Answer to this Petition, " Let the Law continue as hath been hitherto used, until it be otherwise "ordain'd". So that since there has been no Alteration in this Point ftom the Reign of Edward ID. then the Time beyond Memory, or whereof there is no Memory to the contrary, continues still beyond the Time ofRichard I. •, for Littleton tells us, that all the Time of Richard I. is Time of Memory ■, and therefore '' 2' [' SirEdward Cooke in his Comment upon him, lays, "That this was intended

* from the first Year of his Reign, for (from that Time) being indefinitely, doth

* take in all the whole Time of his Reign, which is to be observed.

Having fixt a certain Time of a general Prescription beyond Memory, I shall now proceed to shew you, that the Claim of the Commons appearing at the Common Council or Parliament of the Kingdom is beyond that Time. Which since I cannot do directly, (by Reason of the Loss of the Records of Parliament of those Times) any farther than has been already in the Case of the Burgesses of St. Albans (which alone is, I think, sufficient to satisfy any reasonable Man) we must therefore make use of such Collateral Proofs and Records, which tho' they do not directly, yet by undeniable Consequence will prove the Point in Question, \interammimia shall therefore in the first Place make use of a Writ in the Exchequer of the of Edward I. directed to the Barons thereof, reciting, "That whereas the Men of Co"ventry set forth in their Petition to the King, that the said Town is not a City, Bo"rough, nor Demesne of the King's, so that the Townsmen were not wont to be taxM ed as Citizens, and Burgesses, or Tenants in ancient Demesne, in anpTaxes granted * to the King, and his Progenitors, but only with the Community of the said ** County dtWarwick; and yet that the Taxers and Collectors of the said County "have endeavoured to levy a 30th of their Goods (towards an Aid granted by «' the Communities of the Cities and Boroughs to the King) to their Damage 1 and Impoverishment; and therefore pray remedy : The King therefore orders, 'that the Rolls be fearch'd concerning such Taxations in the said Town •, and if 1 it evidently a] 7«ar by them, that it is as they set forth, and that the said Mea were always vxed with others without the Towns, Boroughs and Manors aforesaid, in all Payments of this Sort •, that then they should not permit the said Taxers and Collectors to distrain the said Inhabitants to pay the King by reason of the

"said Concession of a 30th, otherwise, quam in totktcmporibus retroa&k in hujuj"ccmodi caste fieri conj'ueverit,8tc". From which Record we may draw these Conclusions, First, Thar this Town of Coventry did not hold of the King, and'yet W3S a Borough, and as such sent Members to Parliament in the 26th, 28th, and 30th of Edward I! as appears by the Return of Writs of that Year. Secondly, That yet it prescribed, tctk temporibus retroaBk, in all Times past, to be taxed with the Body of the County, and not with the Communities of the Cities and Boroughs, in all Taxes granted to the King and his Progenitors j which plainly shews, that the Cities and Boroughs granted Taxes by themselves in the Times, of his Progenitors, that is, in the Time of Kihg/oÆw at the least. Lastly, That the King orders the Rolls to be searched which had been idle Direction, had it then been known or believed, that the Cities and Boroughs never gave any Taxes for Themselves in Parliament before rhe 49th of Henry III. but little above Forty Years before the Date of this Writ. . .1 \. •■ j ..

I (hall (hew you a like Writ (which is to be found in the fame Place) for the Towns-men and Tenants ofBeverly in the County of Tork, in the 8th oi'EdviirdU. letting forth in their Petition, that they had been taxed to the 26th lately given to the King per Communities Comitatuu'm, (i. e. the Commons of the Counties) by theTaxersand Collectors of a Subsidy of the 20th in the '4'M 'Counry ; altho' they and their Ancestors had been accustomed to be taxed to all Aids, as well to the King, as to his Progeniors, granted per CommunitatesComitdtuum ejasdem Regni, with the Community of the County, and not with the Communitates CivitdtumiSBurgorum ; yet that the Taxers and Collectors of the T>th, latdy granted by the Commons of the Cities and Boroughs, do grievously distrain them, to their grear Damage, and therefore pray remedy; Whereupon the King' commands that the Rolls be search'd of such like Taxations; and if it appear that the said Town has been always hitherto taxed, as they in their Petition let forth, that then they shall be discharged from the laid 15th. ".

From which Record we may conclude, that this Town of Beverly, thoJ an an- cient Borough, (and as such was summoned to send Bureelles to Parliament in the 26th of this King) yet did not hold of the King in Capite, nor in ancient Demesne. Secondly, That Aids had been given the King and his Progenitors per Cdmmunitat esComitatuum, i. e. by the Commons of the Counties; whrth could not. be done but by their lawful Representatives, and that in Parliament. Bht how far these Progenitors must extend, I need not repeat to you ; the Ground of which Petition being admitted by the King iri Parliament. "*..•■ ;>. •

M, These Authoriries mo' material, yet do nor in my Opinion reach the Point you were to prove, viz. That the Knighrs, Citizens and Burgesses appeared' in Parliament before the Reign of Richard I. for borh these Authorities, (tho1 admitted for good) yet reached no higher than King Johns Time,- which is within Memory, as your self have now set forth, since the Word Progenitors need not be extended any farther than the Time of that King, who was great Grandfather to Edward the First and Second, to whom these Petitions were made by these Towns men, and so do not clearly amount to your full Time of Prescription, viz. before the Reign of Richard L . « . 4 J ''

- F. Well, it yon grant this, you have lost your Cause, since certainly the Reign of King John is long before the 4 9th of Henry III. but since you will be so overcritical, I will lhew you some Claims by Prescription beyond all Time of Memory, made by the Tenants inandient Demesne, from being taxed to contribute to the Wages of Knights of Shires; and if they thus ptescribed, it is plain there must have been Knights of Shires chosen,, against paying whose Wages they prescribed to have had this Privilege. Now this Prescriprion must be very ancient, since as Mr. Lambard (hews us in the Place I have quoted, there has been no new Tenants in ancient Demesne, since the Time of Williuml. But pray see the Wrk-it self in the old Register of Writs, (which by the Bye is there put down only as a Form for drawing all other Writs of this farads rhere to be found, for other Towns, and particularly the Tenants of ''Ddihamnn Hump/hire, whenever there was occasion 0 and therefore it is not to be wonder'd thar neither the Name of the King, nor of the Place be expressed in Words ar length. The Writ it self is not very long, therefore I shall give it you in Latin, as fat as is material: Rex Vicecomiti L. sa/ut em Motifiraverunt nobishomincs; & Tenentes de Manerio de F. quod'eft de Antiquo  Dvmttrico Coronx Angliæ ut dicitur quod licit ipfi& eorum Antctefleres Tenentes de i -i' c eodem


{423}

eodem Manerie a tempore quo non extat memoria semper haQenw quieti effeconsueverunt de expensis Mihtutn adParliamenta nostra & Progenitorum nostrorum Regum Angliæ/w Communitate djffi Qmitatus vementium, £5V. ancsthen proceeds, " That "whereas the Sheriff distrains the laid Tenants to contribute to the Expences of ** the Knights that came to the last Parliament, to their great Damage, otherwise ** than tot is retroaUis temporibus fiericonfuevit \ therefore commands him that he "desist from his said Distress, and do not compel the said Tenants to contribute u otherwise quam omnibus temporibits retroa&is. And now tho' this Writ be without any King's Name or Date, yet it appears at the Bottom it was issued by G. L. Eferope then Chancellor, and William de Herlston,Clerk of the Chance? '• i ryj and this must have been before the 15th of that King, because it appears by the Close Rolls of that Year, that in December the Great Seal was delivered to William d' Ayremyn, under the Seals ofWilliam de Clyffe, and the said William de if. Herlston, Clerks of Chancery who are often mentioned in our Records to have dl^inSuMd . been Keepers of it pro tempore, till the Second of Edward III. when the said RotCiau'i William de Herlston had the sole Custody thereof committed to him. £d.\. mJ"3*3.

But there is yet a perfecter Writ of this kind in the 50th of Edward III. extant Morn the Rolls directed to Johnde Cobban, and Four other Knights therein named, 50- £• 3. reciting that whereas Simon Archbishop ofCanterbury claims as well for himself f-2-'»^9-Mo. as his Predecessors, and their Tenants, hitherto a tempore quonon extat memoria, for certain Lands held in Gavel-land in the County of Kent, which ought to be free from the Expences of Knights coming to our Parliaments, as well as those of our Progenitors and concludes with aSuperjedeas to the said Sheriff nor to molest the said Tenants, until such Time as the King be further informed, and that He by the Advice of his Council has ordained what is to be done in the Premisses. From both which Writs we may draw these Conclusions; First, That there was at the Time of the granting these Writs, a Claim by Prescription, Time out of Mind, allowed for all Tenants holding of the Archbishop in Gavel-kind, to be exempted from contributing to the Wages of Knights of the Shire or else these Petitions, and the Writs upon them, had been idle and ridiculous.

Lastly, That this Claim of being thus exempted Time out of Mind (which as I *■ have already proved, extends beyond the Time of Richard I.) is allowed by the King himself for good in both these Writs * only in the last the King will be informed whether they are Tenants in Gavel-kind or not. So that the Conclusion must be, That if these Tenants in Ancient Demesne, and Gavel-kind, were always exempted from paying to the Wages of Knights of the Shire beyond Memory, i e. by Prescription, then certainly those Knights must have been chosen Time beyond Memory. I could give you several other Writs of like Nature, but I will not overcharge you. Now certainly if the Knights of Shires were thus elected Time beyond Memory, the Citizens and Burgefles must have been so too, since in Scotland where there were for a long Time no Commissioners for the Shires yet the Cities and Boroughs ever sent Delegates to Parliament, as your Dr. himself allows.

M. I must beg your Pardon if I cannot come over to your Opinion, concerning this Prescription of Knights of Shires, Citizens and Burgesses appearing in Parliament before the 49th of Henry IIL since Mr. Pryn in his Second and Third r!d- observ.Part of his Parliamentary Register has proved, 1. That all the Words you insist "TMIZZTMupon to prove this Prescription, are to be understood in another Sense than what part2. p. i7'3, you will now put upon them ; so that tho' Mr. Lambard and others of great Part 3. Sect, s! Note lay the Original Title and Right of all our Counties, ancient Cities and P*totum' Boroughs electing and sending of Burgesses to Parliament, to be by Prescription Time out of Mind, long before the Conquest \ yet against this Opinion Mr. Pryn argues thus (whose Arguments I shall contrast, because it would be tedious to recite them all verbatim.) That as for the Wages of Knights of Shires (which is the Principal Thing you insist on in this Argument) the ancientest Writ extant for their Wages, are those of 28th and 29th of Edward I. and no Records or Law- Pa»2- F««75. Books I have seen, derive their Title higher than the Reign of Edward I. The first Statute concerning them is that of the 12th ofRichard II. which only enacts, cap. 12. that the levying Expences of Knights shall be as hath been used of old Time.

The next Statute of the 11th of Henry IV. enacts that Knights of Shires unduly Cap. 1. returned, shall lose their Wages of the Parliament of old Time accustomed, not at, or before the Conquest accustomed; Yea no Man can prove there were any Knights for


Counties elected, and sent to Parliaments by the King's Writs, before the 49th of Henry III. not to the Reign of the Conqueror, or before the Conquest, as Mr. Lambard would strain it. Now as for the Words AntecefsoresProgenitores in the Writs you have cited, the former may very well signify the Ancestors of those Inhabitants of Boroughs or Towns, and the latter the Predecessors of the King that then was, which in the Time of Edward II, and Edward III, when those Writs were granted, need extend no higher than the 49th of Henry III. •, and as for those other Words in these Writs, as totps tcmporibus retroadis, and a tempore quo non extat memoria, they must have the like Interpretation, or what is equivalent to it, viz. in all Times pasted, or Time out of Mind •, i. e.before there were any Knights elected for the Counties, they were always free from contributing to their Wages-, so that this Prescription need not extend higher than the 49th of Henry jit. abovementioned •, since which Time it is true (as they there let forth) that they and their Ancestors in all Times, or Time beyond Memory, have always used to be quit from iuch Expences of Knights: Now there were many Prescriptions and Customs in use inEdward Illd's Time, and since, which may be well laid to be 1 Time out of Mind, yet certainly had their Original not before, but long since the

Fol. 58.113. Conquest, as you may read in Brooks, fitzherbert, and other Law-Books, Title Custom, and Prescription ;and Ccokes first Inttit.My Lord Hubbard in his Reports*

V. 117, n 8, skat wfoch hath been used, or prescribed in but Two or Three Ages on/y,, or out

19 ' >99' of the Memory or Mind of Men then being, is reputed a Legal Custom, or Prescription, 34 Hen. VI. Brook'j Tit. Prescription. Therefore this Prescription of Tenants in ancient Demesne to be exempted from contributing to Knights Wages, will no ways warrant Mr. Lombards Conclusion from it; Ergo, there were Elections of Knights of Shires before the Conquest. 1 am certain that at this Day Tenants in ancient Demesne can plead, that both they and their Ancestors, Timeout of Mind, never were accustomed to pay Excise for any thing for which Excise is now paid-, will it not rherefore follow, ergo, all other Places now subject to pay Excise, were liable to it before the Conquest, when it is a Duty imposed but since the late Wars? So that Mr. Pryn here proves, that your and Mr. Lombard s Argument from the Tenants in ancient Demesne, and Gavel-kind, not paying in all Times past, or Time beyond Memory, to the Wages of Knights of the Shires, is altogether fallacious, and inconclusive.

E Pray Sir give me leave to reply to your Anlwer before you proceed to speak of Boroughs. First let me tell you, Mr Pryn very much forgot himself when he here says, that the first Writs for Wages of Knights of Shires are but of the 28th or 29th of Edward I. since you know better-, for your Doctor has

■ ^ r printed the Writs of Expen cess or the Knights of Shires that served in this Parli'I41' ament of the 49th ofHenry III. and you your self have urged it to me, that this was the first Time that these Knights had their Expences allowed them, because there was no Clause of prout in Cafu fimili, expressed therein; which I told you might only be through Inadvertency of the Clerks since the Doctor there gives us another Writ of the42d of that King, whereby it appears that the Four Knights of Counties who had appeared before the King and his Council at the foregoing Parliament, were ordered their Expences, for going, returning, and staying at the said Patliament: Which (hews that these Writs were no new Things -, and if so be these Knights had their Expences allowed them only for their Attendance at a Parliament, it is much more reasonable and likely they had their Expences allowed when they made a Part of it.

But to put this out of all doubt, Mr. Pryn himself has cleared this Point, not only by printing this very Writ in the 4th Part of his Parliamentary Register, but by declaring in the very first Section of that Volume, that tho' after this Writ no more are to be found of this Sort extant upon the Rolls of Henry IIL till the 28th of Edward I. yet they were constantly issued out at the End of every Parliament held after the 49th of Henry III. till the 28th ofEdward I. (being 35 Years Spaces as this Clause in the Writs of the 28th, 29th and 33d of Edward I. prout aliasin Cafu confimili fieri confuevit, assures us. But all the Bundles of Writs from the 49th of Henry III. till the 29th of Edward I. being lost; and no Writs of Summons from the 49th of Henry III. entred in the Clause Rolls till the 22d of Edward I. tho' returnable into Chancery, no wonder that these Writs de Expenjis (then not returnable at all) were

no not enrolled till the 28th of Edward I. after which they were usually endorsed on the Clause-Roll till the Second of Henry V. So that by Mr. Prytfs own Confession, the Loss of the Writs from the 49th,of Henry III. till the 28th of Edward I. is no Argument at all to prove that there were no such Writs before the 49th of Henry III. unless you could prove to me, that the Writs and Records of all those Parliaments had been so well preserved, that there are none lost orembezled, which Mr. Pryn acknowledges to the contrary; for if they were lost after the 49th of Henry III. pray give me a Reason why the like Writs of Summons and Expences, might not be lost as well before that Time.

Having, I think, sufficiently answered Mr. Pryns Argument from the not finding any Writs of Expences before the 28th of Edward I. from what he himself said afterwards upon better Consideration; I shall now proceed to reply to that other Part of his Argument, from the equivocal Use of the Words, old Times accustomed, and in atempore quo non extat memoria ; which he will have to signify a Space of" Time only beyond the Memory of any Man living: Whereas the Words Custom and Accustomed, when used of any general Custom or Usage all over the Realm is still to be taken in much larger Acceptation, as all our Law-Books will teach you! But I shall not dwell upon this, but (hew you that those Authors, whose Works

?ou have read, had no true Notion of this Expression in our ancient Records and leadings viz. a tempore cujuscontrarij memoria non existit; which has been always understood (as Littleton here tells you) for a Time beyond the Reign of King Richard I. So that wherever you find these Words, totps temporibus retroa8is, or de Tempsdont memorie des Horns ne curge al contrarie, in any Records, they are always to be understood of a Time older than that now mention'd. You may prove a contrary Usage, but before that Time no Deed can be given in Evidence, nor Custom alledged beyond it: And that this is not the Sense of Littleton alone (who indeed makes a Query about this Time beyond Memory) I appeal to all our Year-books -, and if you please to see all the considerable Law-Learning at once about this Point, pray consult Roll's Abridgment (or Common-place-book) p i6Title Prescription where he gives you these Conclusions, from the Year-books,' which I shall here read to you inEnglish.

1. " It is clear enough, that there was a certain Time called Time of Memory "in a Prescription •, and for this he cites the Year-books of 19. H. 6.-j^.perNewton "1 E. 4. 6. Brook. 9. H. 7. 11. 14 H. 7. 1.

a The said Time of Memory in a Prescription was from the Time of King "Richard I. 20 H 6. 3. Dyer Mar. 119. 5. 3. 4. 9. B. The Time of King John "is within Memory, Lit. SeB. 170. 34 H. 6. 36. B. 47. So that the laid Time "of Memory was from the Beginning of the Reign of King Richard I. (who "was Brother to King John, who was Father to Henry III.)-, for the whole Time "of his Reign was within Time of Memory, 20 H. 6. per Newton again, 13I/. "4. 9. B. where the Seisin of King Richard is allowed for a good Title, and so a '* Warranty in his Time.

"So it seems by these Words a tempore cujus contrarij memoria non exijlit, is "properly and generally intended for all the Time before that; and before the "Statute of Limitation, was meant of that against which no Proof could be made "to the contrary, either by Testimony or Evidence in any Time before, without "any Limitation of Time. The 34 H. 6. 36 .B. 37. seems to prove this ; so that the Time of all Prescription was in those Days the fame with the Time of Limitation of Seisin in a Writ of Writ, as Littleton tells us.

And since you have not as yet brought any considerable Proofs (but only bare negative ones which have been answered,) against this Prescription of the Election of Knights of Shires Time beyond Memory -, what you have laid to the contrary is little to the purpose j for all the Modern as well as Ancient Law-Booksare against this Notion of Mi.Pryns. For in Judge Telvertori's Reports, Gibson andHolcrosss P. 31, 32. Case, you will see that whereas Unity of Possession is by the Statute of the Dis solution of Monasteries a good Discharge of Tithes yet if the Monastery were founded deins Temps de Memorie (as this Abby of Vale Royal was in the Time of Edward I.) a constant Unity since the Foundation, was held by the whole Court for no good Discharge of Tithes by Prescription as the Plaintiff had laid it for the Defendant shewing that the said Abbey was founded since' Time of Memory (tho' above Three Hundred Years old) was a sufficient confessing and avoiding.

I i i So

So that Mr. Pryns Arguments whereby he would have the Words, all Times passed, and Time of which no Memory is to the contrary, to signify a much less Space of Time in these Writs I have now cited, and to be restrained within the 49th of Henry the Third, will not signify much, since they are expressly against all our Law Books : Neither doth he cite any Cafes for his Opinion out of Brook or Fitzherbert, tho' he quotes their Titles. But as for this Quotation from Cook s first Institutes, there is nothing there to countenance his Notion, more than he tells j, us that from Brafton and fieta, (upon the Words de Temp iont memorie, &c.) do

'1 *' cere oportet longum t ems us & longum usum ; viz. qui excedit memoriam hominunt, P. 113. tale enimtempus fuffiat pro Jure; but without telling us what was then under** stood by this memoria hominum ■, ar.d a little after upon these Words, Afcun proof "al contrarie : For if there be any sufficient Proof of Record or Writing to the '* contrary, albeit it exceed the Memory, or proper Knowledge of any Man living, "yet it is within the Memory of Men : For Memory is twofold: First, by Know"ledge by Proof; as by Record, or sufficient Matter of Writing. Secondly, By "his own proper Knowledge; and for this he cites d i vers Year-Books in the Margin". But as for all that long Quotation Mr. Pryn has here given us, I know not whence he had it •, for there is not any Thing in Hobarss Reports to that Purpose, in the Places he has cited. And as for the Year-Book of 34th of Henrythe Sixth, and Brook, they are both directly against his Notion, as you may see by what Rolls has been already quoted from the lame Places. And though it is true in Prescriptions of Ways, and Commons, and other such petty Things laid Time beyond Memory, the Judges or Jury are not so exact, as to make the Plaintiffs prove their Prescription beyond the Time of any Man then living: Yet if they prescribe for never so long;, it is still in the Power of the Defendant to prove that there was no such Prescri, prion ; and this as high as before Richard the First, but no higher. And thus high we assert the Coming of Knights of Shires to Parliament; for I do not pretend to lay it as high as the Conquest, or before, as Mr. Lambard does. If it prove beyond the Time now specified, it is sufficient to disprove Mr. Pryn's Notion.

But to let you see I am a fair Adversary, I will admit for once, that this Time beyond Memory shall be taken in a strict literal Sense, for only as far as is beyond the Memory of any Man living : Now, pray, see what you will get by it; if you remember that the Writs I but now cited from the Register, for the Tenants in ancient Demesne their being discharged from contributing to the Wages of Knights of the Shires, was laid, <J tempore cujus contrariimemoria non exiftit: And these Writs are proved also to have been issued within the 15 th of Edward the lid ; and if so, pray reckon backwards, and see if the 49th of Henry the Hid, ( when you suppose Knights of Shires to have been first chosen) does not fall within the Memory of most Men then living •, for Henry the Hid reigned somewhat more than Seven Years after this 49th ; to which Seven Years, if you add the almost 35 Years Reign ofEdward I. it makes 42 Years; then add these 15 Years of Edward II. and, if you please, see if the whole makes above 57 Years; which certainly was within the Memory of many Men then living: And it had been a senseless Thing for the Chancellor, and Clerks of Chancery, that then were, to have granted these Writs of Exemption for a Time beyond Memory, when they themselves might have remembred when Wages for Knights of Shires first began.

M. As for what you have said for this Prescription of Knights of Shires, I will not dispute it farther with you, since it is a Point of your Common Law, (in which I confess my self but meanly skill'd); but I shall take farther Time to advise with those that know better. In the mean time, as for the Cities and Boroughs, let them have appeared when you will, their coming to Parliament could not be so ancient as before the Time of Richard I. much less the Conquest, as you suppose ; since Mr. Pryn hath, in the same Second Part of this Parliamentary-Register, traced the Summoning of the Boroughs to their very Original ; and proved it could not be ancienter than the 49th of Henry the Hid. I shall here contract his Arguments, and give you them, as I did the former. First, He here proves, that there were never Part 2. p.214. but 170 Cities and Boroughs, who sent any Members to Parliament 5 of which 170 (in his Catalogue) Nine of them never had but one or two Precepts, and others but four Precepts of this Nature sent them •, upon none of which Precepts the Sheriffs made any Returns of Burgesses, as these Ballivi Libert am nullum mihi dederunt rejponfum, or nihilinde fecerunt, attest: Whereupon they never had any more Precepts of this Kind sent them to this Day, Cbrist-Qmrcb in Hampshire only

excepted; excepted which of late Years hath sent Burgesses to Parliament; so that in Truth there were only 161 Cities and Boroughs in England that ever sent Members to Parliament, during all the precedent Kings Reigns ; viz.From the 26th of Edward the 1st to the 12th of Edward the IVth. Secondly , That 22 more here named of these161, never elected and returned Burgesses but once, and no more during all the laid Time. Thirdly , That many more of these ancient Boroughs riij. p. 22$ here named, never sent Members, some of them more than Twice, others Thrice, 226.' others Four, others Five, others Six, others Seven, others Eight Times: And Lancaster has but 13 Elections and Returns of Burgesses, and no more, during all the above-mentioned Reigns. Fourthly, That altho' seme of these Boroughs here named, who seldom sent any Burgesses,1 though they were summoned by the Sheriffs Precepts to elect Burgesses, without any great Intervals of Time, to Six or Seven succeeding Parliaments, yet most of them had a long Discontinuance of Time; seme of above 200, others above 300 Years Distance, between those few respective Returns : Of which, he here gives you several Instances, and resets you to his precedent Catalogue of Returns for the Proof of it. So that there were but 112 Cities and Boroughs (taking in theCinque-Forts and all ) who sent Members to Parliament in the Reign of Edward the lit: Seven of which made only One Return, and no more, for ought I can discover, before or after Edward the Ill's Reign, till of very late Years.

Yet that in Edward the lid's Reign, there were Precepts issued by the Sheriffs, ^ p'227' and Returns of Burgesses for J9 new Boroughs there named, which (for ought I 2 can discover) never elected any Burgesses before. Fifthly, That under this long Reign of Edward the Hid, there were Sheriffs Precepts issued to t9 more new Boroughs, and Returns made upon them to serve in Parliaments, or great Councils, who never sent any Members before •, and Precepts to more, that made no Returns ac all thereupon. As for the Gnque-Ports of Dover, Romney, Sandwich,Winchelsey, Hastings, Hythe, and Rye, though there be no Original Writs for, or Returns of their electing and sending Barons to Parliament now extant, before the Reign of Edward III. yet it is apparent, by the Clause-Rolls, that they sent Barons to Parliament in 49th of Henry, and during the Reign of Edward I. and II. Of which more anon. Sixthly, That King Richard II. Henry IV. and Henry V. created no new Boroughs at all, neither were there any Writs or Precepts issued to, or Election of Citizens or Burgesses by any new Cities or Boroughs, but such as elected them before their Reigns. Seventhly, That about the midst of King Henry the Vlth's long Reign, there were Precepts issued to, and Returns made, by Five new Boroughs, and no more, which never seht Burgesses to Parliaments before , viz. Gatton in Surrey, Heytesbury, Hyndford, Westbury, and Wootton-Bajset, all in Wiltshire;yet very poor inconsiderable Boroughs, though they elect Burgesses at this Day. That during Edward the IVth's Reign, there was one new Borough, (here named) which began to send Burgesses to Parliament under him, though it N never sent any before.

F. Well, but how came this about, that so many new Boroughs were made in some Kings Reigns, and few or none in others; and so many omitted, that had served before in other Parliaments?

M. Pray read on, and you will see, this Author gives us a very good Account of that 5 and imputes it to Two Causes. First,The Partiality and Favour of the Sheriffs, and the Ambition of the Neighbouring Gentry, who desired to be elected in such new Boroughs. Secondly, The meer Grace and Favour of the King, who by divers Charters to new Corporations have given them the Privilege of sending Burgesses to Parliaments. For Proof of which, pray see what this Author here farther fays. It is evident by the precedent Sections, and Catalogue of ancient Cities, Boroughs, Ports, and their Returns of Writs and Elections before specified with these general Clauses after them, Konsum alia, or ulk Civitates nec Burgi in Bal- ibid. p. 228, liva mea, or in ComitatuprœdiQo, prater Wycombe, ©V. As you may see by the 229> 234Return of the Sheriff of Bucks, Anno 26.0sEdward I. where he denies there were any Cities or Boroughs in his whole County 5 and yet the very next Parliament but one, within Two Years after, the Sheriff of Bucks returns no less than Three Boroughs viz.Agmondejham, Wycombe, and Wendover, with the Burgesses Names that were returned : So that the 78 new Boroughs, here named, were lately set up in the Counties since Edward the IVth's Reign, by the Practice of Sheriffs, and the Ambition of private Gendemen seeking to be made Burgesses for them, and


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Consent of" the poor Burgesses of them, being courted and feasted by them for their Votes, without any Charters from the King, and are all mean poor inconsiderable Boroughs, set up by the late Returns and Practices of Sheriffs.

And tho1 others may conceive, that the Right of our ancient Boroughs or Cities electing and sending Burgesses and Citizens to our Parliaments, proceeded originally from some old Charters of our Kings heretofore granted to them, and to which Opinion I once inclined 5 yet the Consideration of the new Discovery of the old Original of Writs for electing Knights, Citizens and Burgesses, I found in Osar s Chappel, hath rectified my former Mistake herein, and abundantly satisfied me that neither bare ancient Custom or Prescription before or since the Conquest, nor our King's Charters; but the Sheriffs of each Counry's Precepts and Returns of Elections of Burgesses and Citizens for such Boroughs and Cities, as they thought meet by Authority and Power granted to them, in and by this general Clause in the Writs of Summons issued ro Sheriffs, for every County before every Parliament, enjoining them in these Words, Tibi prjtcipimus firmitcr injungentes, quod de Comitatu prœdifio duos milites, &de qualibet Civitate duos Cives; £f de quolibet Burgo duos Burgenses de discrettcrtbus, 8cc. fine dilatione Eligi,& eos ad nos ad diBos diem, C locum venire facias, &c. By virtue of which general indefinite Clauses used in all Writs of Summons ever since the 23d of Edward I. without designing what particular Cities or Boroughs by Name within each County the Sheriff mould cause to elect, or fend Two Citizens or Two Burgesses, but leaving it wholly to each Sheriff's Liberty and Discretion to send the Writ directed to him to what Cities and Boroughs he pleased; thereupon every Sheriff used a kind of Arbitrary Power in the Execution of this general Clause, according as his Judgment directed, or his Affections, Favour, Partiality, Malice, or the Solicitations of any private Boroughs to him, or of Competitors for Citizens or Burgesses Places within his County, swayed him. This is most apparent by some Sheriffs in several Counties returning more Boroughs and Burgesses than their Predecessors, others fewer; some omitting those Boroughs returned by their Predecessors} others causing Elections and Returns to be made for such new Boroughs, which never elected or sent any before, nor after their Sheriffalties, as is evident from the Returns Annk 28. 33. E. 1. and 34 off. 3. for Devon. Anno 26. E 1. forTorkjhire. Anno 33. E. I. for Oxford/hire. Anno 28. E. t. for Hampshire. Anna 33 and 34 of E. 3. for Somerset.Annis 25. 27. and 28. H. 6. for Wilts, Sec.

So that the first Writs or Memorials of any extant on Record for electing Knights, Citizens, and Burgesses to come to Parliament, are those of the 49th of Henry III. but these Writs only commanded that the Sheriffs Ihould cause to come Two Knights, &c. of each County •, and the like Writs were directed to the Cities of London,Lincoln, and other Boroughs of England, to elect Two Citizens and Two Burgesses for each of them, and the rest of the Cities and Boroughs in England; the like Writs were also issued to Sandwich and the rest of the Cinque Ports, without expressing their Names, or Number in each County: And this Form I conceive (fays Mr. Pryn)continued till the 2 3d of Edward L when the afore-cited general Clause authorizing and intrusting every Sheriff to cause Two Citizens and Two Burgesses to be elected, £?V. out of every City and Borough in his County, was first put into the Writs, by Authority and Colour whereof every Sheriff sent Precepts to what Cities and Boroughs of his County he pleased.

¥. I have with Patience heard this long History of Mr. Pryns concerning the Election of Citizens and Burgesses, from which I must notwithstanding make bold to differ. For tho' 1 own him to have been a Man of great Learning and Industry in Matter of Records, yet I doubt he was often too quick in taking up of Opinions upon slender Grounds. Therefore for the answering of him, I shall first shew you the Improbability of his Suppositions, and in the next Place (hall make use ot no other Confurations than what his own Book will afford us, as to the Writs of Summons, Returns, and other Things he lays so much stress upon. In the first Place, for the Notion of Sheriffs fending Precepts to what Cities and Boroughs they pleased, .and consequently making as few or as many send Members to Parliament as they would \ that this was not so at first is evident from those very Writs of the 49th of Henry III. by which it appears that they were not then directed to the Sheriffs, for any more rhan to the Counties; but as for the Citizens and Burgesses, and Barons of the Cinque Ports, they were then 1 • . directeddirected te themselves $ and he also confesses, that this continued so frotri that Time till the 23d of Edward I, So that all this while (being aboHt 28 YearsJ it seems the Nomination of what Cities and Towns should fend Members to Parliament did not depend upon the Will of the Sheriffs, but upon somewhat else. And I have asked you once (tho' without receiving any Answer) what Rule StmoH Montford went by, to tell what Cities and Boroughs were to send Members, and what not, since the Words are only in general, dt quolibet Burgo, Sec. And therefore pray answer me now if you can. *

M. I conceive in the first Place, as for the Cities, Simon Momford lent to those that were anciently esteemed so,viz. such as had Bishops Sees annext to them, such as London, Lincoln, particularly named in these Writs, and others of the lame Rank •, and as for the Boroughs, tho' we have not the Returns of them left us, yet I suppose they were such walled or other Towns, as were of some considerable Note in England; such as he thought were most proper for his Turn,

Jf. That this could be no Rule, appears by this clear Proof First, That neither Coventry and Litchfield, tho' the Sees of the Bishops, were counted Cities in the Time of Edward I. nor long after •, nor yet Ely; for it appeirs by the Lists that Mr. Pryn hath given us, that it never sent Burgesses but only once, and that only to a great Council, till of late Years. So that the Sees of the Bishops was it seems no general Rule to make Places capable of send ing, er not sending of Citizens to Parliament.

And in the next Place as to Boroughs, that is pure Imagination, that none but considerable or walled Towns sent any Burgesses at first: Whereas in the firstList of Returns which Mr. Pryn has here given us of the 26th and 28.th of Edward I. which are the first extant, for ought I know, (except those of the 23d, which I have never yet seen) besides the Shire Towns of the Counties, there are Returns of a great many small Boroughs, which never had any Wall?, nor yet (for ought as we can find) had any Thing remarkable to make them be pitch'd upon to send Burgesses more than others. But of these I shall speak more l>y and by i only shall remark thus much, that there must have been some other Rule besides Momford s own Will, for all this*-, and what this Rule could be, unless an ancient Prescription in those Towns to send Members, I desire you or your Doctor would shew any good Reason or Authority to the contrary.

And after the 23d of Edward I. when Mr. Pryn supposes that the Sheriffs by this general Clause in the Writs began to take upon them this new Authority of lending Precepts to, and making Boroughs of what Towns they pleased': This could not in the first Place extend to suth as were before that, Counties of themselves, such asLondon, "fork, Bristol, Sec. nor yet such as were ancient and opulent Cities, such as Canterbury, Lincoln, Exeter,&c. who were not made Cities by having Bishops Sees annext to them, but were such long before Christianity was preach'd to the English Saxons, as I have already proved. Nor could this Power of the Sheriff"extend to the Cinque Ports, whose Right of sending Two Barons for each Port was sure very well known and settled in the 49th of Henry III. as appears by these general Words at the Foot of the Writ, fimiliter mandatum eftjtngute Portibuspro fe, without naming them in particular •, so that if it had not been sufficiently known what Ports were thus to send, all the considerable SeaPort Towns in England might have had Precepts sent them as well as the Cinque Ports •, who had at first their Summons directed to the Barons and Bailiffs in general. Nor is there any Writ found directed to the Warden of the Cinque-Ports to summon each of them to send Burgesses, till the 17th ofEdward II. as Mr. Pryn here fliews you: So that in all these Elections and Returns, (being above n,<L V245Twenty)) the Sheriff" could have no Power, and therefore did not depend upon his good Will and Pleasure alone, as this Author would have it.

But to come to that which Mr. Pryn chiefly insists on, viz. the putting in and leaving out divers of the smaller Boroughs in ib many King's Reigns and which he attributes wholly to the Favour or Partiality of the Sheriffs. I shall first argue against the Improbability of the Notion, and shall then confute it by plain Proofs from Mr. Prynhimself First, It is not at all likely, the King should ever trust the Sheriff with this great Prerogative of making what, or as many, Boroughs as he pleased in ■iCounty; since that could not be then done without some particular Writ or Charter \ for otherwise this had made the Power of the Sheriff more arbitrary than that of the * King himself j if he had in those Reigns you treat of j no other Rule to go by than

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his own Humour, Passion, or Interest: Nor would the King have ever endured such an Innovation, since it would have been in thePcwer ot the Sheriffs to have made as many Boroughs as they pleased, and to have increased the House of Commons to an un| ) reasonable Bulk, which was against all Rules of Policy for him to suffer. Lastly, Nei

ther would the House of Commons themselves have suffered this Encroachment: For sincemostof the Cities and Boroughs of England sent Members to Patliament before this Innovation of the Sheriffs began, they would never have quietly permitted new Men to be sent in among them, from obscure Places they never heard of, without either turning them out themselves, or complaining to the King in Parliament of so great an Abuse. Nor yet would these smaller Boroughs themselves have thought it a Privilege in those Days, when they paid their Burgesses Wages all rhe Time of their Service in Parliament, to be thus forced to elect and fend Burgesses to Parliament, whenever the Sheriff pleased to send them a Precept so to do. VilParl. Ret. gut wnat an y0U fay against direct Matter of Fact? Has not Mr. Pryn here Sel1'8- plainly proved to you, that the Sheriffs did in those Times exercise an Arbitrary t * Power in this Matter, returning some Towns out of Ill-will only, to charge them

with electing Burgesses, to make them liable to the Payment of Wages to them; omitting of others also out of Spite, as appears by this Petition of the TownsMen of St. A/bans you have now cited ; a great many of which were so long omiti ted, that they came at last to lose all Right of sending any more, till it came to be

again revived of late Years ( as in the Cafe of divets Boroughs, whose Names IHJ. ajj. Mr. Pryn has here givenus) who by Orders of the Long Parliament in 1640, again I sent Members to Parliament after some Ages Intermission ? Pray now tell me, what

other Satisfactory Account can be given, for the making of so many new Boroughs, and omitting so many old ones, but the Arbitrary Power of the Sheriffs, who . - then took upon them to do what they pleased in this Matter; as appears by so maL • ny Instances lie has here given us?

F. Well, since the Improbability, ( I may fay Impossibility of the Thing) will not satisfy you, I doubt not but to shew you, that though the Sheriffs might sometimes abuse the Trust committed to them, in sending Precepts to the Boroughs that were not liable to them, yet that for all this they never exercised that Arbitrary Power you fancy, of making and unmaking what Boroughs (and consequently as many Parliament Men) as they pleased. Now to prove this from Mr. Pryn's own Instances and Authorities , I shall reduce all the Causes of this Abuse to these Heads: 1. The Favour, or Malice of the Sheriffs. 2. The Ambition of the Neighbouring Gentlemen, who desired to get to be elected at such Boroughs. Or, lastly, From the Desire of those Towns themselves, to get this Privilege among them of Electing and Returning Members to Parliament. To begin with the first of these ; It could never proceed from the Favour of Sheriffs toiuch Towns, because the Charge of Wages to the Burgesses was then so great (when Two Shillings a Day was more than Ten Shillings is now ) that they could never look upon it as a Favour, to have this Charge imposed upon them ; unless it were some few, who were very large, and in a rich and flourishing Condition, and those always sent Burgesses to Parliament before the Sheriffs had this Power committed to them, as you supposed, by that general Clause in the Writ of sending Summons to the Cities and Boroughs. Nor could the Sheriffs (ifthey would) have long continued to lay this Burthen upon any Town out of Malice; for if such Towns could not afford this extraordinary Charge of sending Burgesses to Parliament, they might have 'soaped it whenever they would either by making no Returns at all to their Precepts sent them, as Mr.Pryn here Ihews, in the Lists he has given us of Returns, very many of them did; or else they might have taken that Remedy against '• t-s 3 3- it, " which (as this Author'here expressly acknowledges) divers Towns did; who be"ing malicioully charged by the Sheriffs to send Burgefles, when both unwilling and unable 5 and who upon their Refusal to elect, returned Burgesses for them a^ gainst their Wills-, whereupon rhey complained to the King or Parliament of the . Abuse, and so wete eased of this Charge and Trouble, or else eased themselves .^ Other Boroughs growing very Poor, and unable to send Burgesses to Parliament,

^ and defray their Expences, were thereupon discharged by the Sheriffs who made ibid.f. 233, special Returns in their Favour; (and of these he gives you several Instances in 2*6' « hls Collection of Returns for the County ofBucks, as also in the Case of Lcn

caster); whilst others procured perpetual, or else temporary Exemptions from the ^ . King and his Council from sending Burgesses to future Parliaments; and upon

"some "some one or more of these precedent Grounds, they quitted, waved, or lost "their ancient Privilege of sending Burgesses, which they rather reputed a "Charge, Burthen, and Oppression, than an Honour". And of this he gives us-a remarkable Instance in Toriton in Devonfare, which after having elected ibid, p.220 and returned Burgesses to no less than Thirty two Parliaments; yet in the 42d of Edwardlll. upon their Petition to the King in Parliament, obtained a Patent to Rot.ParU 42. be exempted forever, which he here gives us, as also a temporary Exemption E- ?• Partlfrom King Richard II. to the Town of Colchester for Five Years, in regard of their great Charge in building their Town-Walls: Which shews that the Bur- P'241, gesses^Wages was then a great Burthen even upon Towns rich and flourishing in Trade, which were then able to wall their Towns at their own Expence. And I could shew you more such Exemptions as these, were it not too tedious-, and I.doubt not but there were many more such than what are entred upon the Rolls.

Now that we »may apply what Mr. Pryn has here laid, to our present Purpose it is granted, that tho' the Sheriffs might sometimes oppress some Towns by sending Precepts to them to elect, who ought not to have sent Members to Parliament at allyet that he could not make new Boroughs without the Inhabitants Consent, is plain by his own shewing, since they could be eased of that Charge whenever they pleased. And I desire you, or any one else, to shew me any City, or considerable Town in England, that thus began first to lend Citizens or Burgesses to Parliament by the Sheriff's Arbitrary Power. Not but that some Towns might complain of this Abuse of the Sheriffs without any just Cause, as in this Petition of Toriton now mentioned, where they set forth, quod villafnradi&a ad mitt end. aliquot homines pro diBa villa ad Parliamenta nosir a oner an non debeat, nec aliquoshomines pradiBa villa, ad'Parliamenta no- of Excmpti-' sir a vel Progenitor urn nostrorum miferit, nec minereconsueverit ante annum 0n, Part.Reg. Regni nostri vicefimum primum, &c. Now tho' this Petition was false in Mat- part 2. ter of Fact, since it appears by the former Returns that they had sent Bugesses to Parliament long before, in the Reigns of Edward L and II. yet the Ground of their Petition was right, that they ought not to fend any Men to Parliament, unless they had been accustomed so to do in the Time of this King's Progenitors •, which had been a vain Plea, if it had been in the Sheriff's Power (as of Right) to have summoned what Towns they pleased to Parliament, since then there could have been no Custom pleaded against it.

This being granted by Mr. Pryn, and proved from the Nature of the Thing, we shall come now more particularly to give an Account how several Towns might come to be put in or left out of the Sheriffs Lists of the Boroughs, without granting them this Arbitrary Power of making what Boroughs they pleased. Now these 170 Cities and Towns Mr. Pryn has given us, and which have had Precepts sent them at any Time, may be divided into these Three Ranks: The First is of those (who being nine in Number) which he fays never made any Returns to the Precepts sent them, and so continue to send no Members to this Day (except Christ-Church in Hampshire.) Now these Nine Towns either ^itL p<*had a Right to fend Burgefles to Parliament in the King's Reigns, in which jJJJf**1' they received those Precepts, or they had not; if they had such a Right, the *P-224Sheriffs did but their Duty to send them Precepts as'well as«to the rest of the Boroughs of the County. For sure they had some Rule for doing it, more than their own private Fancies since the very Writ of Summons (from whence you would deduce this Power to the Sheriffs) only recites de qualibet Cwitate, 8tc C de quolibet Burgo, 8tc. which had been mighty uncertain, if had not been then very well known what Towns were then Cities, and what Boroughs: And sure these Nine Towns must have then been Boroughs (in Reputation at least) or else they could never have had one, two, «r more Precepts sent them (as Mr. Pryn here owns they had) and they might have had many more such for ought we know, had all the Sheriffs Precepts, and the Returns upon them been preserved, as most of them are lost or mislaid, as I shall shew more at large by and by. Or if these Towns had no Right at all to send Burgefles to Parliament, it was not in the *. Sheriff's Power to impose it upon them; since they might have refused it if they pleased. And so take it either way, nothing can be argued from the Loss or Omission of the Returns for these Boroughs, that they either had, or had not any

former

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former Right to elect ; since this might happen from the Negligence of the Bailiffs, or Constables of the Town, or else from their own Desire to be excused from . the Charge. Thus in the 28th of Edward L the Sheriff returns, that the Bailiffs of St. A/bans had made no Return of his' Precept: Neither is there any Returns of such Precepts to this Borough all the Reign of this King : Does it therefore follow, That this Town'had no more Precepts sent them in all his Reign? When I have shewed you the contrary by the Writs of Expences in the 3 5th of Edward I. Or that they had no other Right to appear in Parliament as a Borough, but what the Sheriff's Precept first gave them; when you fee they claimed by their Petition xoEiwardW. to send Burgesses to Parliament in the Reign of this King and his Progenitors.

The Second Rank of Towns are such for which are sound, for some one, for some three, and for others more Precepts, with Returns of Elections.made thereupon \ and yet those that have made the most Returns do not amount during the Reigns of Edwards I, II, and III. Richard II. Henries IV, V, and VI. to above Thirteen Returns. Well, granting all this, will it therefore follow, that they had no other Right than the Sheriffs good Will and Pleasure > Since if they had a Right, and were willing to preserve it, they might have petitioned the King in Parliament against this Abuse of the Sheriffs. And if they were willing to give up their Right, by Reason of the great Charge and Trouble of sending their Members, volenti non fit injuria. Now does it therefore follow, that no others had any other Right to elect, but what the Sheriffs Precept gave them; only, forsooth, because no more Returns appear either in the loose Bundles of Returns, or upon the ClauseRolls ? Or that therefore there were never any more Elections and Returns made than what Mr. ?ryn has here given us ? Which is a very fallacious Argument, considering how imperfect those Bundles of Returns are, out of which he has ex-' tracted them; most of the Precepts and Returns being no doubt lost and broke off the Files, in the removing of the Records from one Place to another; besides the whole Bundles of Returns of several Years in divers Kings Reigns, that are quite lost, or so mislaid, that no body can find them. And for the Truth of this, I appeal to Mr. Petyt, who assures me, he sound the Returns of the Knights, Citizens, and Burgesses to Parliament of the 23d of Edward I. in an old Chest in the Exchequer, among other Things of a quite different Nature; which Mr. Pryn never saw, or else certainly he would have given us the Returns to this Parliament, as well as • he does the Writs of Summons to it: And yet that even these were not always en33' tred upon the Clause-Rolls, but lay scattered up and down the Chapel of the White-Tower, Mr. Yryn also himself confesses, (in his Introduction to his third Part of his Parliamentary-Register), "That he found no less than Ninety five loose "Original Writs for Elections and Returns of Knights, Citizens, and Burgesses to "Parliaments and great Councils, in the Reign of Edward III. which were never "entred on the Clause-Rolls •, and lay there until he found them buried in Dust and Rubbish, as well as Oblivion, in a confus'd Chaos, scattered from each other, . "and intermixed with many Hundred Thousands of other Writs and Records of "various Kinds". Now what if these Writs and Returns had never been found > So that by his own Shewing , it is no ways certain that there were never any other Writs issued, or Returns made for the Counties, Cities, and Boroughs, than those he had before found and published. And he himself also here confesses, " That by "reason of the Negligence of Record-Keepers, there are more Writs and Returns "of Elections extant from some Counties than for others, though all had the like "Writs sent them And if this was so as to the Counties, it might be likewise so as to the Cities and Boroughs; the Returns of which are commonly indorsed on the Back of the Precepts and where they were not so indorsed, were much more likely to be lost. And farther, that the Clause-Rolls are no exact Rule for the Summons of Knights or Barons of-the Cinque-forts and Burgesses, appears by Mr. Pryns own shewing; vis. That there are no Writs of Summons to the Cinque-Portsentred on the Clause-Rolls, for most Part of the Years of the Edwards I, II, and III. 'in the List he has here given us of those Years. Now if so many considerable Boroughs, as the Cinque-Boroughs, could be thus omitted, what can we expect for most of the smaller, and most inconsiderable Boroughs in England?

To conclude this Head •, If by Mr. Pryn's own Confession, the Entries of Elections, and Returns upon the Clause-Rolls, are so very imperfect ; and that the loose Bundles of Summons, Precepts, and Returns, are far more imperfect (so many of




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them being lost) pray tell me, How can he, or any One else, frame any Argument from these that remain, that there were never any more Precepts to, and Returns' from Cities and Boroughs, than thole he has published.

But to come to his Third Rank of Boroughs ; viz. Such as for whom there ap- i^d. pear no Precepts nor Returns, till the Reigns of Edwards II, and III. and other succeeding Kings; all which Boroughs he therefore supposes to have been newly made in those King's Reigns, because there are no Precepts or Returns from them found sooner. It must therefore follow that the Sheriffs made all these Boroughs at their Pleasure •, but Mr.Prvw has done well here to add, that they never elected or returned any before, for ought he can find to the contrary;since it might appear to the contrary (Tor ought he could tell) if the Returns of the Sheriffs in the Reigns of the former Kings had been still preserved; as "appears by the Instance of the Cinque Ports I just now mentioned : Or how could Mr.Prytt tell, but divers of these Towns might have been created Boroughs by the King's special Writs or Charters, tho' now lost, or perhaps unknown to this Author, who could not be supposed to understand the Original of all the Boroughs in England, their sending Members to Parliament? But that he is certainly mistaken in making several Boroughs to have been but new, because no Returns are to be found from them before the Reign of Edward II. may appear by these for Example. First, Litchfield, which was long before that Time a Bishop's See; and lure then if not a City, yet an ancient and considerable Borough. Secondly, Old Sarum, which was in the Reign of Henry III. a Bishop's See (till it was removed) and if not, was certainly a very ancient Borough, and as such'sends Burgesses by Prescription to this Day, tho' the Town be quite destroyed. The like I may fay of Gatton in Surry, which tho' Mr. Pryn will have but to be a new Borough , because no Returns appear to have been made for it by the Sheriffs, till the Reigns of Henry VI. yet this is no certain Rule; since it was a very old Borough, and had anciently been so considerable, as that we find several great Councils held at .it in theSaxon Times, tho' it be certainly now reduced to a small Hamlet of half a score Houses. Now I will leave it to your self to judge,whether the Sheriff would have pitch'd upon so small and inconsiderable a Place as this to make a Botough of, had it never sent any Burgesses to Parliament before that Time. And I doubt not, but those Gentlemen that know the rest of the smaller Towns Mr. Pryn has there mentioned with Gatton, could lay as much for their Antiquity as Boroughs, if you please to enquire about them.

But I have held you too long upon this Point,1 and therefore shall proceed to those Two that remain, viz. The Ambition of neighbouring Gentlemen to make as many Boroughs as they could, that they might be chosen at them j and the Desire of such Towns to be made Boroughs, to receive the Advantages of the Money spent among them at such Elections. The first of these, in the Times we are now speaking of, could be no Cause of their sending Members to Parliament .* Since it is certain, that before the Reign of Henry VIII. none were elected for any City oi^Town, but Persons free of, or actually resident in such Cities and Boroughs i as "appears by the Statute of the First of Henry V. which does but recite and confirm this ancient Custom. So that this Trick of chusing Members for Beef and Ale has been introduced but of late Times, viz. since the Reign of Henry VIII. when Gentlemen began first to be chosen for Cities and Boroughs: And if that is so, the last Cause falls of it self,viz. The Desire of such small Towns to elect; since if they could get nothing, but rather lose by their sending Burgesses to Parliament, and paying them their Wages (as they must do as long as they chuse from among themselves) it is unreasonable to believe, that they ever should desire this as a Privilege; and therefore it is only since the Neglect of this good old Law for Wages, that so many Boroughs (which Mr.Pryw here mentions to have had Precepts again sent them of late Years to elect Members after some Age's Intermission) desired to have this Privilege renewed to them, as was done in the Cafe of those Boroughs he here mentions; which yet certainly had been very gross, and contrary to all common Right, if the House of Commons had not then believed those Boroughs to have had higher Right by Prescription than the Sheriffs Precepts gave them. As for the last Rank, viz.those Boroughs created by the Writs or Charters of our Kings, I need fay but little, since this Author here grants such Creations to have been good before the Statute of the 5 th of Richard II. but not since -t tho' I cannot fee any Reason for it why he should give



the Sheriffs such Power of making new Boroughs after this Statute, in the Time of Henry VI. as he does in the Case of Gatton, and those other Boroughs he there mentions with it; and yet deny this King the like Prerogative. And I find no such Grant till the Reign of Edward VL But yet for all this, as I will not fay there were none j so are there but very few Examples of Charters, that confer upon any City or Borough, a Power to send Members to Parliament, who had it not before by Prescription ; tho' I grant that Privilege may be mentioned in the Charter, and ib put it in the Power of the Mayor and Aldermen to elect; for the future ; when it was the whole Populace, or all the Inhabitants of that Town that were to elect before: Of which I could give several Instances, were I not streightned in Point of Time.

But to shew you from the very Statutes themselves that Mr. Pryti has here cited, that the Right of the Cities and Boroughs to appear in Parliament, was not anciently looked upon to have had no other Original than the Favour of the Sheriffs; pray read these Clauses of the Statutes he has here quoted: The first is that memorable Statute of the 5 th of Richard II. 2 Par/, c. 5. (now mentioned, and which up.240,341, j ^ve already cited) which expresty enacts, " Thar all and singular Persons and "Commonalties which from henceforth (hall for Time to come have Summons of "Parliament, shall come from henceforth as before to Parliaments, in the Manner "as they be bound to do, and hath been accustomed within the Realm of England "of old Time. And whatever Person of the said Realm, which from henceforth "mail have the said Summons (be he Archbishop, Bishop, Abbot, Prior, Duke, "Earl, Baron, Banneret, Knight of Shire, Citizen of City, Burgess of Burgh, u or other singular Person or Commonalty) do absent himself, and come not at "the said Summons, (except he may reasonably and lawfully excuse himself "to our Sovereign Lord the King) he shall be amerced, and otherwise punished, "according as ofold Times hath been used to be done within the said Realm in "the said Case. And if any Sheriff of the Realm be henceforth negligent in ma"king his Returns of the Writs of the Patliaments, or that he shall leave out os "the said Returns any Cities or Boroughs which he bound, and of old Times were "wont to come to Parliament, he shall be punished in the Manner as was accu"stomed to be done in the said Case of old Time, in the French (0? Antiente".)From which Statute we may draw these Conclusions : First, That the Knights, Citizens and Burgesses, are supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of old Time, as well as the Lords Spiritual and Temporal here mentioned. Secondly, That by these Words, have been accustomed of old Time (or £ Anciente, as it is in the French Record) we are to understand a general Custom of the Realm, Time out of Mind, that is, by Prescription : So that if the Bishops, Abbots, and Temporal Lords, are here acknowledged to have had a Right to fit in Parliament by Prescription •, so have the Commons likewise by the same Words equally applied to all the Orders here mentioned. Lastly, That if any Sheriff (hall neglect in making Returns of any such Cities and Boroughs, which were thus bound to come to Parliament of Old Time, he shall be punished, as hath been accustomed to be done in all Time past (or<T Anciente.) Now pray tell me with what Colour of Justice,the"Sherifts could be thus punish'd, if there had been no certain Rule to know what Cities and Boroughs were bound to come to Parliament of Old Time, but it had been wholly lef t at the Sheriff's Discretion which they should summons, and which they should omit? Let us next compare this with the Statute of the 23d of Henry VI. c. 15. (which Mr Vryn has here also given us) reciting," That divers Sheriffs of Counties have"sometimes returned none of the Knights, Citizens and Burgesses lawfully chosen "to come to the Parliaments; but such Knights,Citizens and Burgefles have been re"turned, which were never duly chosen, and other Citizens and Burgesses than "those which by the Mayor and Bailiffs were to the said Sheriffs returned, and "moreover by no Precepts to the Mayors and Bailiffs, or to the Bailliff or Bai"lifts, where no Mayor is, for the Electing of Citizens and Burgesses to come to "the Parliament; and then appoints the Penalties for the said Abuses and Neglects.

Now pray tell me, whether this bare Abuse of the Sheriffs, and Neglect of the Duty of their Office, here condemned by this Sratute (and tor which the Statute of Richard VL declares them punishable at Common Law, as this Act makes them liable to it by Statute-Law) coiild give them such an Arbitrary Power, as this Author, fancies ; much less can serve to corroborate " his Opinion (as he here

"supposes "supposes it does) concerning the true Original, Continuance, Discontinuance, "Reviving and Antiquating Parliamentary Citiesand Boroughs, not by Charters,and "Patents from the King, or Prescription Time out of Mind, but by the Sheriffs "Power and Arbitrary Returns, by the forecited general Clauses in their Writs?

But since I confess I have dwelt too long on my Answer to Mr. Pryn's Arguments, I shall conclude with only giving you one Record, which I hope will sufficiently' satisfy you, that not only St. Albans, but several other ancient Boroughs claimed to fend Burgefles to Parliament by Prescription: Which appears by a Writ or Com- partmission from the King, reciting a Petition of the Town of Barnstaple to King Ed- dor/9, ward III. and his Council in Parliament, which is also to be found in the PatentRolls of the 17th of this King, setting forth, That the laid Town hath been a Free Borough a tempore cujus contrarij memoria non existit ; and as luch, enjoyed divers Liberties, and Free-Customs, by a Charter of King Aihelflan: And this among others, ac quod adsingulaParliamenta nostra, & diBorum Antecestorum nofir or um, (among which the laid King Atbelstan must certainly be reckoned for one) duos Burgen/es pro Communitate ejujdem Burgi mitt ere solebant; and therefore that Charter being lost, they desire a Confirmation of it from the King. Whereupon he by this Commission directs a Writ of Enquiry to several Gentlemen and others therein .mentioned, to enquire if the laid Burgefles had enjoyed all thole Liberties Ib granted by the laid Charter of King Atbelstan, or not. Which would have been ridiculous, if the King and Council had been fitisfied that no Cities and Boroughs lent any Members to Parliament under the SaxonKings^ or at least before the 49th of Henry III. And this Authority is the more remarkable, because Barnstaple is one of Mr. Pryns modem Boroughs, for which he can find no Precepts or Returns earlier than the 26th of EdwardIII. tho', no doubt, as appears by this their Petition, in the 17th of this King, it had sent Burgefles to Parliament many Ages before, tho' the Precepts and Returns upon them be all lost.

And that not only the Cities and Boroughs do thus claim by Prescription, but that the Knights of Shires have always claimed the fame Privilege, may appear by ano- M. ther Petition of the Commons House, extant on the Parliament-Rolls of the $ 1st of Edward III. which I (hall contract and put into English out of Trench, reciting thus, " Because of Common Right (in the Roll de Commune dro'ii) of the Realm, "there are, and shall be elected Two from every County of England to come to "Parliament for the Commune of the laid Counties .• And also the Prelates, Dukes, "Barons, Counts Barons, and luch as hold by Barony, which are, and shall be "summoned by Writs to come to Parliament, except the Cities and Boroughs "who ought to elect from among themselves such as ought to answer for them.

Whence we may conclude, that the Commons then claimed to come to Parliament of Common Right, (that is, by Common Law, or general Custom of the Realm, Time out of Mind) as much as the Bishops, Abbots and great Lords. 2. That neither the Bishops, Lords, nor Tenants in Capite, had any Authority to impose Taxes, or make Laws for the Commons of the Counties, or these for the Cities and Boroughs, without their Consents; because they had each of them Representatives of their own Order to answer for them in Parliament.

JVL I muu confess this would have been absolutely convincing, could we have seen this Charter of KingAtbelstan s j but since the Towns-men ot Barnstaple do only in their Petition (among others) set forth this Privilege offending Burgefles to Parliament •, now who can tell whether there were any luch Thing in their Charter or not i since they consols they had lost it ? Or granting it was as they set forth, yet this will sufficiently evince, that the Right of Cities and Boroughs to send their Representatives to Parliaments, was not, as you suppose, as ancient as the Government, but had its Original from the Grants and Charters of former Kings.

F. As to these Objections, we can have but all the Proof that this Subject is capable of at such a Distance of Time: But if I were a Jury-Man in this Matter, I mould rather believe that the Town of Barnstaple had luch Charter not long before they made this Petition to King Edward III. and that there was such Clause therein as they here set forth •, than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their Privileges (of which this of electing Burgefles was one) if there had never been any such Clause in it at all. But as for the other Objection, That if it were so, then it appears that all the Right of Cities and Boroughs sending Members to Parliament, is derived from the Grants and Charters of former Kings •, it is very fallacious; as you will

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find if you confider and compare the ancient Right of the Bishops and Abbots, as also of all the Temporal Nobility, to come to the greatCouncil of the Kingdom. Which, as to the first of them, I proved to be as ancient as Christianity it self, among the English Saxons: And as tor the Priesthood and Nobility in general, to have been as old as the Institution bf the Government it self Now, though you grant that long before the Conquest our Kings had theNomlnation ofBishops and Abbots, and also the ma-! king of Aldermen, Earls, and Thanes, who made the Temporal Nobility in those great Councils will it therefore follow. That because our Kings were thus entrusted by the People with this Prerogative of naming and investing Bishops and AbbotsperAxnuhtm & Baculum, and also of creating those great Men now mentioned that therefore all the Right either Order had to appear at those Councils, not only proceeded from, but depended wholly on the King's good Will and Pleasure ana that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbevs, or made any Aldermen, Earls, zr&Tbanes, or not-, but have changed the whole Frame of the Government into an Absolute Despotick Monarchy, by destroying or omitting the Members of the great Council of the Kingdom; whether you believe the Clergy, Nobility, and People would have suffered any of those Kings to have made such an Innovation? Apply this to the Right of most of the ancient Cities and Boroughs in England, and fee if it do not exactly agree with this parallel Case of the Bishops, Abbots, and Temporal Nobility j since as there were Priests and Nobles, who from the very first Institution of our great Councils did not owe their Original to the King, but brought it with them out of Germany, and to whose Suffrages the first Saxon Kings owed their Elections \ so no doubt were there divers Cities and Towns in England so considerable from the Time of the Expulsion of the Britons, that it was thought fit to pitch upon them as most able to send Representatives to the great Councils of the Nation, that so thev might imitate their old Government in their own Countrey, in which the great Cities and Towns had always a considerable Share, as they have In the German Diets to this Day * tho* the King "might then (as he is now) be entrusted with the Prerogative of making qew Cities and Boroughs with like Privilege with the old ones; tho' this was but rarely practised till the Reign of James I. The Two Universities being some of the

fending Burgesses to Parliament; which Power has, I confess, been exercised even to a Grievance in the Reigns of his Son, and Grandsons * so that it were to be Wislj.'d> that there was a Law passed, that no new City or Borough should be made for the future without an express Act of Parliament.

Now I would very gladly hear what you can farther lay to so many weighty Authorities, which I have now given youfor evident it is, that if they are compared and considered in Series of Time, that neither Edwardlli or Hid, nor their Judges or learned Councils,no nor the Parliaments of their,and succeeding Tirnes^ bad ever, heard any Thing of'Pr. Brady's Annm Mirgbi/isy or 49th of Henry III. which was but 43 Years before the Reign of EdwardIf. his Grand-child, arid litde above 60 Years before that of Edward his great Grandson.

M Well notwithstanding all this, whosoever will reflect upon what the Doctor hath writ, may suspect that the Judges (nay Parliaments) were very ignorant in the 13- History .of this Nation, or that they spoke out of Design. And it is a great Argument that the Lawyers studied and knew only Popular and Lucrative Law,and not the Constitutions of the Nation before their own Time. And thoT I must confess what you have now said may seem to me to carry some weight with it; yet since I do not easily change my Opinion, upon the first heating of a new Argument or Authority ,give me leave better to confider what you have said. But in the mean Time,fince •you have now mentioned the German Diets,.pray Sir, before we leave off, shew me what you undertook to prove at the first Entrance on this Subject; viz. That in all the great Councils, or Assemblies of States in Europe, which are derived from the Germans and Gotbs, there are found Representatives sor the Plebeians or Commons, distinct from the Clergy, and greater and lesser Nobility.

F. I readily agree to your Desires, out since my own Notes concerning this Matter are very long, and that I have them not about me; Pray give me leave to make use of the Authority ofDx.Heylin, an Author you have no Reason to look upon as partial, since he was not only remarkable for his great Skill in History, but also as being a great Friend and Disciple to Sir Robert Filmer in Politicks, was a vehement Assertor of Absolute Monarchy, and an utter Enemy to the Power of Par


liaments5 liaments •, yet this very Person in his Treatise called, The Stumbling ofDisobedience and Rebellion, &c. printed 1658. in his 5 th Chapter (I have already quoted for the Inferior Clergy being anciently a Part of the great Council or Parliament of the > Kingdom) proves the Uniformity of the Three Estates to have been the fame in all the Christian Kingdoms on this fide of Europe. He runs through them all, beginning with Germany, which I shall contract, because he there says a great many other Things not so material to our present Purpose.

And first, beginning (as of right) with the German Empire, Thuanus gives this August, man. Note in general,Impcrium in tria omnino membra, dividitur, that the Empire is di- lib-2Vided into Three Estates, over all which the Emperor is the Head or Supream Prince. Of these the first Estate is ex facro Or dine, of the holy Hierarchy,composed of the three Spiritual Elettors, together with the Residue of the Archbishops and Bishops, and many Abbots, Priors, and other Prelates. The second is of the Nobility, confisting of Three Temporal EleBors, the Dukes, Marquesses, Lantgraves, Burgraves, Earls, and Barons, of which there is no determinate Number •, the Emperor having Power to add daily to them, as he sees Occasion. The Third Estate is of the free or ImperialCities, in Number Sixty, or thereabouts, who represent themselves at the General Diets, by such Commissioners or Deputies as are authorized to that Purpose.  t.

Next pass we over into France, and there we find the Subjects marshalled into Three Estates, whereof the Qergyis the first. Rex coaBis tribus Ordinibus, Sacerdotio, Nobilitate, Plebe, subjidia rei pecuniary petiit. So PaulusÆm'ilws doth inform us. Out of these Three are chosen certain Delegates or Commissioners, some for each Estate,as often as the King's Occasions do require theii Meetings the Time and Place whereof is absolutely left unto his Disposing: And these thus met: do make up the Conventm Ordinum, or VAffemblie des Estats^ as the Frenchmencall it, in Form much like the English Parliament : [And of the Meeting of these Three Estates, not only thisAuthor, but all the other French Historians 5 and in particular Phil, dt Camm'mes make Sequent mention. 1 : ■■

 Pass we next over the Pyrenees, to the Realms of Spain, and we shall find in Bmb* de Reeach the same TtjreeEstates, whose Meeting they call there by the Name of Curia, pub. lib. 3. (io Spani/h the Cortuz)or chief Court,^t* J£»a»V, by Way of Eminency consisting of the Clergy, the Nobility, and the Commoners of the Provinces, and most An? cient Cities. For Proof of which, we need but look into the General History of Spain, translated out of French by Grimston, and we shall find a Court of Parlia- Gen. Hist, of ment for the Realm of Ar agon,consisting of the Bishops, Nobles, and Deputies of Spain, i. 14. Towns and Commonalties, having Place in thesaid Estates, convened by King James at Saragosta, Anno 1325, for settling the Succession, and declaring the Right Heir. Also for Castile, we find a Parliament of Lords, Prelates, end Deputies of Towns summoned azToledoby Alfonso the Noble, Anno 1210. upon Occasion of an Invasion made by the Moors: Another before that atBurgos, under the same King, An- UBb. 10. no 1179, for levying of Money on the People to maintain the Wars. Also that great Convention of the States held at Toledo by Ferdinand the Catholick, 14.79, for swearing to the Succession of his Son Den John •, in which the Prelates, the IdNohility, and almost all the Towns and Cities which sent Commissioners to the Assembly, are expressly named. Thus do we also find a Meeting of the Deputiesof the Three Estates of Navarre at the Town dtTasaUa, Anno 1481, sot preserving the Kingdom m Obedience to King Francis Phabus, being then a Minor, undei1 Age : And for Portugal, that the Deputies of the Clergy,Nobility, Provinces and good Towns of Portugal, assembled at Tomara, Anno 1581, to acknowledge Philip the lid for their King, and to settle the Government of that Kingdom for the Times to come. «w. 30.

Now let us take a View of the Northern Kingdom^ and still we find the People ranked in the self fame Manner. ; and their grea* Councils to cr<i6ft of the Qergy, the Nobility, and certain Deputies, sent from the Provinces and Cities, as in those before. In Hungary , before that Realm received the Gospel, we read of none Bonfinhsin batNobiles & Plebeii, the Nobility and Common Peopse, who did concur to the ££"/**°*<r' Election of their Kings •, but no sooner was the Faith of Christ admitted, and a ec''' Qergy instituted, but instantly we find a Third Estate,Epifcopos & Sacerdotum # tbtd% Dfr. Collegia , Bishops and others of the Clergy superadded to them, for the Election of 2. /. 2. the Kings, and the Dispatch of other Business, which concerned the Publick, as it œntinueth to this Day. In Denmark we shall find the same, if we mark it well, n DeM(/. 2. 1 - For /. 3.


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Pwtan. in Do- For though Fontanus seem to count upon Five Estates, making the Regal Family ru Rescript. Tj. t0^ ^ faft^ an(j subdividing the Commons into Two •, whereof the Yeomanry in hijhr. Re- jfgfees one, and the Tradesman or Citizen the other: Yet in the Body of the Hinunvamc. -7* fl-ory. we find only Three, which are theBijhops, the Nobility, and Civitatum Delegati, the Deputies or Commissioners of Towns and Cities. For Sweden,it comqs near the Government and Forms of Denmark, and hath the fame Estates and Degrees of People, as amongst the Dam ;that is to lay, Froceres&Nobiles, the greater and the less Nobility ;Eptfcopi& Ecclesiastici, the Bishops and Inferior Clergy %Qvita. b ^ tes & Universitates, the Cities and Towns Corporate, (for so I think he means by Um'' '131' versitates,) as Thuanus mustereth them. [To which we may also add (tho' here omitted, by this Author) the Delegates of the Rusticks or Husbandmen, who make a Fourth Estate in the Assembly of Estates in this Kingdom.] Where the Bishopsand Clergy enjoy the Place and Privileges of the Third Estate (notwithstanding the Alteration of Religion ) to this very Day •, the Bishops in their own Persons, and a certain Number of the Clergy out of every Sochen, (a Division like out Rural Deanries,) in the Name of the rest, having a necessary Vote in all their Parliaments. [ And this Swedish great Council is the more remarkable, because it comes very near our Constitution in England, in which I proved the Inferior Clergy, and the Commons (not excepting the meanest Freeholders) anciently had their Representatives.

So that it had been the strangest Thing that could have been observed in all the Political Constitutions on this Side of Europe, if that of England, tho' descended from the same Goihick Original, and founded according to the same Model, should have had no Representatives for the Commons or Plebeians in their great Councils, or Parliaments. Dr. Ueylin here concludes with Scotland and England , the former of which, since you agree to have had from all Times, Citizens and Burgesses in their great Councils or Parliaments, I need not repeat what is there said, since it is no more than what you your self have granted •, and as for England, he owns, (as appears by the Passages I have already cited out of this Chapter,) p*gc 193. that the Clergy, Nobility, and People were called to a Parliament held under Henry II. at Clerkenwell. ;

M. I will not deny, but there were -Representatives of the Cities and great Towns, in the great Councils or Assembly of Estates of all those Kingdoms you have now mentioned out of Dr. Heylins Treatise; yet whether they were there from the very first Institution of those Governments is much tq be doubted. But since I have not now Leisure to enquire into the Original of ail these Kingdoms , nor at what Time each State began to come to these great Councils5 give me leave in the mean Time to remark, That all these Kingdoms (except Sweden) came nearer to that Constitution which we suppose to have been anciently in England and Scotland, and also other Kingdoms where Feudatory Tenures were i.A.r. p. ^.observed, and consequently none but the Chief Lords or Barons by Knights SerService, and that held of the King; so that all those Foreign Councils, or Dyets, &c. at first were all the fame, as consisting of Emperors or King» with their Earls and Barons, Bishops, and great Officers * as is evident from all the old Vid. KtttUm German and Trench Authors. And since Cities sent Deputies in Germany andItalyy Discwrsus ft/tf-they were only from Imperial Cities; the like I believe would be found in France, \and those other Kingdoms you have now mentioned; but you cannot shew me, Yjinless in Sweden) any Representatives elected by the Common People, or Rusticks, distinct from the Nobility and Gentry; like our Knights ot Shires inEngland. So that I still doubt, whether all the Representatives of the great Lords, and other Nobility that appeared in the Councils ot" these Kingdoms were not all Tenants in Cafite, and no other.

F. That this is a meer Surmise of yours, I think I can easily prove v for in the first Place, as for the Bishops, Abbots, and Clergy, who still made the first Estates in all these Kingdoms; nothing is more certain, than that they never any of them held of the King by Knight's Service, and therefore could not fit in their great Councils by that Tenure •, that Institution being for ought as I know, peculiar to England, and introduced by your Conqueror, as you your self acknowledge. And as for the Temporal Nobility, you will find, that in France, not only those Noblemen that held of the King by Military Service, but those who held in libero Alodio, without any such Service at all, had Places, either by themselves or their Deputies, in the Assembly of the Estates. So likewise for the

3 Cities Cities and Towns that sent Deputies to it, I believe you will not find that any of them held of the KinginCapite. And to come to Germany •, you are likewise as much mistaken, in fancying that all the Imperial Cities were subject immedi- i ately to the Emperor before they became so. For Hamburgh and Lubec were once subject to their own Princes; the former to the Duke of Holflein and Sleswick, and VilL 7- Aelthe latter to Earls of its own-, till at last they either purchased their Liberties ^T^fu they enjoy from their Princes, or else cast them off, and were after received into seatick^CapT the Body of the Diet by the Bulls or Charters of several Emperors. And so like- 2. p. 30. wise Brunswick was always a free City, till it was united to the Empire by its own Consent- I could shew you the like of several other Cities, now called Imperial, who held anciently not of the Emperor, but either of their own Earls, or Bishops •, though I grant it was the Charters of the Emperor with the Consent of the Diet, that gave them a Place in those Assemblies. And though it is true, that in all the rest of these Kingdoms, the meer Rusticks or Peasants have no Representatives in their great Councils5 yet this makes no Alteration in the Case, if you please to consider it for the Nobility and Gentry are the only true and proper Owners of the Lands of those Kingdoms 5 all the Rusticks or Peasants being meer Vassals, and in France almost Slaves to their Nobility and Gentry, who (as I have already said) had all alike Votes in their Assembly of Estates, as well those who held of the King in Chief by Knights Service, as those that did not. Whereas it was always far otherwise in England,where the meanest Freeholder was always as free as to his Person and Estate, as the greatest Lord of whom he held. And hence it is, that we have had from all Times those of the Degree of Yeomen, so peculiar to England, asFortescue in his Treatise de LaudibusLegunt Angli<e takes Notice, who if they lived on their own Lands, had no more Depertdahce on the Noblemen and Gentlemen, than they have now-, and therefore it was but Reason, that these should have their Representatives in Parliament, as well as the Inhabitants of the Cities and Boroughs, who had most of them a far less Share in the Riches and real Estates of the Kingdom. Secondly, Pray take Notice, that in the rest of the Kingdoms of Europe, except England and Scotland, there was no Difference in Point of Privileges as to being Taxed, or having Voices in the great Council of the Kingdom, between the higher Nobility, such as had the Titles of Dukes, Marquesses, and Counts -, and simple Gentlemen. Whereai in England it has been always otherwise (at least since the Conquest); and the Earls, and Barons had by their Tenures, Places as Lords or Peers in the great Council of the Kingdom, and so made a distinct Body from the rest of the People; whereas in other Countries, the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason, that the rest of the Inferior Nobility or Gentry, should have their Representatives in this great Council, or Parliament, or otherwise they would have been as very Vassals as to their Estates, to the great Barons and Tenantsin Capite, as the Boors in Germany, or the Peasants in France were to their Lords, by whom they were taxed at their Pleasures; which they never were in England, as we can find either from History or Records. So that though 1 grant that it is the municipal Laws of each Kingdom or Nation, that must determine what are the governing Part of the People in those Countries; yet though that was not absolutely the same in all of them as it is in England,yet we find it so in the main; and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebeians or Common People, who make the Third Estate in those great Councils. But I must here exceptSweden, in which it is certain, that the meer Rusticks or Boors had always their own Deputies in their Diets, as well as the Cities and Towns -, and if Sweden had this Privilege, I cannot fee why the English Gentry and Yeomanry (who with us make but one Body of Commons) might not have had the like, till you can shew me more sufficient Proofs to the contrary.

M. Well, Sir, 1 shall consider of what you say. But since it grows late, that we rriay wind up this Conversation as fast as we can, give me leave to tell you, that though I should admit all that you have hitherto averred for Truth, and that we should grant the Commons of England to have been as Ancient a Part of the great Council, or Parliaments, as any of the other Two: What is that to the main Point in Question between us, viz. that of Non-resistance of the King upon any Account whatsoever > Or how can you justify those os the Clergy, Nobility, and Gentry of the Church of England, for taking up Arms against the present King, and con

3 tributing

tributmg so much as they have done to the driving him away, and in bringing Things to this Confusion they are now in? Since, let your Constitution of Great Councils and Parliaments be never so Ancient, let us also for once suppose them (as you do) to have a Share in the Legislative Power of the Nation, yet how can this Authorize them (much lets any private Persons out of Parliament) to take up Arms against the King, or those Commissioned by him? Since the whole Current, both of Common as well as Statute-Law runs directly against you; and all with one Consent assert, That the Disposal of the Militia, or Military Force of the Kingdom, has been even so absolutely in the King's Power, and at his Disposal, that no Man can without being guilty of Treason, take up Arms (whether offensive or defensive ) without his Commission to authorize him to do it. So that no Government in the World is more averse to all forcible Resistance than our own; the King having been even from your Time beyond Memory Ib fully poslefs'd of the whole Militia, or Power of raising offensive or defensive Arms in this Kingdom, that it is expresly forbidden by the Statute of the 7th of Edward I. against coming to Parliaments and Treaties with Force of'Arms; in which the King sets forth, That in the last Parstamem, the Prelates, Earls,Barons, and the Commonalty, (in Latin Communh&s, or Body of theRealm ) have said, that to Jis ( i. e. to theKing ) it belongeth, and our part it is through our RoyalSeigneury, to defend (that is, in old French, to forbid )Force of Armour, and all ot her Force against our Peace, at all limes when it shall please us, and to punish themaccording to our Lazes and U/ages of our Realm and hereunto they are bound to Aid us as their Sovereign Lord,as oft as need shalt be. From whence you may observe, that it is the King's Prerogative to forbid all manner of Aims, or Armed Force within the Realm; so that no Man can lawfully Arm himself without his Authority. And this is further confirm'd by the Statute of 25 Edward III. concerning Treasons; wherein it is declared, (without any excepted Cases to the contrary) That to levy War against our Lord the King in this Realm, or to be adherentto the King s Enemies in his Realm, giving them Aid or Comfort in the Realm, or elsewhere, is Treason. And SirEdward Coke upon this Statute faith thus, That this was High Treason before by the Common Law; for noSubjcQxan Levy War within the Realm, without Authority from the King ; and if any Man Levy War to expulfeStrangers, to deliver Men out of Prisons, to remove wicked Counsellors, or again/I any Statute, or to any otherEnd, pretending Reformation, on their own Heads, without Warrant, this is Levying of War against the King,because they take upon them Royal Authority. From which Statute, as also from your own Oracle's, (Sir EdwardCoke's) Interpretation of it, you may observe that it was not only Treason to make War against the King's Person, but to take Arms to make any Reformation or Alteration in Church or State, without the King's Authority. Nor can any Subject of England justify the taking Arms upon any Account whatsoever, unless it be by the King's Commission. And therefore all rhe Judges of England, in Vide Dyer'* the Cafe of Dr. Story, who was Executed for Treason in the Reign of Queen EHReports. zabeth, did with one Consent agree, that the very Consultation concerning making War against the Queen, shall be interpreted a making War against her Person, and supposes a Design against her Life. So that nothing seems plainer to me, than that by the Ancient as well as Modern Laws ofEngland, all defensive as well as offensive Arms, are exprefiy forbidden and condemned.

F. I think I shall be able to make out, notwithstanding what you have now said, That all Resistance of the King, or those Commissioned by him, is so far from being Treason, as you suppose, that it is every Man's Duty to oppose him, in Case he goes about to set up, instead of a Legal Monarchy, a Tyrannical Arbitrary Power in this Nation, since this is but to preserve the Original Constitution of Parliaments, which in some Cases cannot be maintained without soch a Resistance be allowed. But to proceed to the Authorities you bring from our Statutes j As for the first you urge, from that 7th of Edward I. I think that can by no means do the Business for which you design it; for in the first Place, this is only a Declaration of the Bisliops, Lords and Commons of the Land, that it belongs to the King to defend (i.e. forbid) all Force of Arms: But mark, Sir, what Force: Sure it is only meant of such Force as belongs to the King's Prerogative to forbid •, viz. Force of'Arms against the Publick Peace, and such as he might punish according to the Laws and Usages of the Realm ; and therefore the Statute exprelly declares, that (as Subjects) they are hereunto bound to Aid him their Sovereign Lord the King at all Times, when Need shall be; but does this Act any where fay that he hath an irresistible Power to disturb this Peace by his own private Illegal Commisfions, or that any Men are bound to assist him in it j or because (for Example) he hath Authority to punish all Men according to Law that (hall come to Parliaments with Force or Arms, that therefore he hath an unlimited Power of raising what Forces he would, and imprisoning or destroying the whole Parliament if he pleased, and that no body might resist him, if he had gone about so to do. The like may be said, if the King should notoriously and insupportably by Force invade all the Civil Liberties and Properties of his Subjects, by levyingTaxes, or taking away their Estates by downright Force, contrary to Law. Now can any body in his Senses believe that the Act of 25 th of Edward III. was made to prevent all Resistance of such Tyrannical Violence, and that the Resistance of those Forces (whether Foreign or Domestick) that might be sent by the King's private Commissioh to murder or enslave us, is making War against his Person, or that it comes within any of the Cafes expressed in that Statute? And therefore cannot fall within the Compass of Sir Edward Coke's Comment upon this Statute; all the Offences therein specified being TreaTons at Common Law before that Statute was made; nor is the Reformation there mentioned, to be understood of a just and necessary. Defence of our Lives, Liberties, Religion and Properties, as settled and established by the Laws of the Land, to be looked upon as making War against a weak or seducecTKing ; but is rather in Defence of him and the Government, by opposing Tyranny, which will certainly bring both him and us to ruin ac last; so the Reformation he there mentions is only to be understood of such Insurrections and Rebellions as have been made under the meer Pretence or Religion, or obtaining greater Liberties for the Common Sqft of People than they had by the Law of the Land ; such as were the Rebellions of Wat Tyler in King Richard II. and Mortimers m Henry Ws Reigns; not to mention the other Rebellions raised by the Papists in the Times of King Henry VIII. Edward VI. Q. Elizabeth's Reigns •, all which being begun by seditious or superstitious Men, were cerrainly rank Rebellions, and so are and ought to be esteem'd by all good Subjects.

M. I grant these Pretences seem very fair and specious; yet notwithstanding this your pretended Right, or a Necessity of Resistance of the King,or those commissioned by him, in Case of Tyranny, has been still looked upon as Rebellion in all Ages,, and the Actors dealt with accordingly whereever they were taken.

F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it, and keep the Power in their own Hands, they, still executed for Traytors whosoever opposed or resisted their wicked and unjust Actions,tho' they Were never Ib near Relations to them: Thus both Edward and Richard II. put their Uncles the Dukes of'Lancaster and Gloucester to death, meerly because they joyned with the rest of the Nobility and People to prevent their Designs. So that it is not the Execution of the Man, but the Cause that makes the Tray tor ;'since Princes are seldom without a ftfficient Number of Judges and Jurymen to condemn whomsoever they please to fell upon.

But that the Clergy, Nobility and People of England have always asserted this Right of Self-Defence, in Case their Liberties and Properties were unjustly invaded by the Tyrannical or Arbitrary Practices of the King, or those about him, I think lean prove, by giving you the History of it in so many Kings since«your Conquest, as will render it indisputable, if you please now to give me the hearing, or else to defer it till the next Time we meet.

M. I confess I was so weary of sitting up so long at our last Conversation, that I made a Rdblution not to do so any more ; and therefore since it gtows late, let us leave off now; and I promise to meet you here again within a Night or Two, and then I will hear how well you can vindicate your Right os Resistance from Law or History. But if you have no better Proofs for it than the Rebellion of the Barons in King John and Henry Illd's Reign, you will scarce make me your Convert; since Impunity does never sanctify a wicked Action, or render it the more lawful; and you rave already given it me for an Axiom, that a Fa9o ad Jus non va,et conjequentia. • .

F. I accept of your Appointment with Thanks; but pray do not forejudge my Arguments till you heat them •, and as for the Axiom, I allow it for good, provided I may urge it in my Turn: But in the mean Time I shall wish you good night.

M. And I the same to you.


D I A L O G U E IX.

Whether by the ancient Laws, and Constitutions of this Kingdom, as well as by the Statutes of the i %th and 14thof King . Charles the Second, all Refinance of the King, or of those commijfioned by him, are exprejly forbid,upon any Tretence whatsoever. And also, Whether all those who affifled his late Maj ejiy King William, either before, or after his coming over, are guilty of the Breach of this Law.

jlR, I am glad to see you again so soon 5 for I was just now looking i over some of our old Historians, that lie here upon the Table, to rub *^ up my Memory for sufficient Instances and Authorites, that it hath been always the received and constant Custom and Practice'of the Clergy, Nobility, and People of this Nation, to defend the ancient Government of this Kingdom by general Councils or Parliaments •, as also their just Liberties and Properties, not only by Remonstrances and Petitions, but by Force too, against the King, and those commissioned by him, in case they found them evidently and violently invaded, beyond what any fair or gentle Means, as Petitions andlntercessions, were able to redress. And for Proof of this, I shall go as high as the Times of the Kings of the West Saxons, from whom all the Kings of England before the Conquest were descended, after the Kingdom of the West Saxons had prevailed over all the rest. I shall therefore begin with the Reign of SigebertKing of the West Saxons, who, as I told you in our 6th Conversation, breaking the Laws and Constitutions of the Kingdom, and tyrannizing over all Sorts of People, was in a General Council of the whole Kingdom deposed, arid expelled into the Forest of Andredswald, where he was afterwards slain byaHogherd ; astheStf.*on Annals under the Year 755. as also Huntingdon, and Mahnsbury, relate. I shall not mention the Deposition of KingEdwin, by the Mercians and Northumbrians, and their chusing his Brother Edgar in hisStead, because not done by the Common Council of the whole Kingdom •, and that also for slight and insufficient Grounds.

Therefore since the Times before the Conquest do afford us no more Examples of this kind among the Kings of the West Saxons Race •, (to which I only confine my self) since those Kings being for the most Part at Wars with the Danes to the Time of Edward the Conseflbr, had somewhat else to think on than the making themselves Absolute, or Tyrannizing overjheir Subjects: But indeed, there is scarce to be found in History a Succession ol more mild, just and valiant Princes, than Egbert the First King of all England, and his Descendants.

M. Pray Sir tell me to what Purpose you cite these Instances of the Nobility and People of England deposing and casting off their Kings in the Times before the Conquest; is it that you would justify that Common-wealth Principle, that the Parliament hath the like Power to depose the King at this Day in Case of any



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Infringement of the Fundamental Laws of the Kingdom, or Breach of the Original Contract (as thole of your Party now term it ?) If you do, pray speak plain, and then I shall know what Answer to give you.

F. Tho' I assert it, (as undeniable in Matter of Fact,) That the English-Saxons did often exercise that Power they had reserved to themselves, of Electing and Deposing their Kings, when they became insupportable for Tyranny or Misgovernment ) as appears not only in the Kingdom of the West-Saxons, I have now instanced in, but in almost all the other Kingdoms of the Heptarchy ■, in which there are to be found many more Instances of trie Depositions of their Kingsj than what were in the West-Saxon Kingdom : And this was then very just and necessary, since these Kingdoms were all Elective , and none of them Hereditary; and that the general Meeting of the great Council of the Nation was always at set and constant Times; and did not depend upon the Will and Pleasure of the King, either to call or dissolve them, as I have already proved: And that this Power was no unusual Thing, I appeal to all the Ancient Kingdoms of Europe, founded after the fame Model as ours, and which I mentioned at our last Meeting ; so that nothing is more frequent in their Histories and Annals, than the Deposing of their Kings for the above-mentioned Crimes of Tyranny or Mis government. But that some of theseGothick Kingdoms, as Denmark and Sweden, whilst they continued Elective , have exercised this Power even till of late, is so notorious in Matter of Fact, that it needs no Proof, since the Kings of those Kingdoms hold their Crowns at this Day by that Title , and on those Conditions which the Nobility and People gave them, after the Deposition of their Predecessors.

But rhough this were so anciently also in England, it does not therefore follow that it must be so now for since the Crown of this Kingdom became Hereditary, and that the Calling and Dissolving of great Councils or Parliaments came to depend wholly upon the King's Will, I must allow, that the Case is much altered, and that the Two Houses of Parliament have now no Power to depose the King for any Tyranny or Misgovernment whatsoever. The first Parliament of King Charles the Second, in the Act for attainting the Regicides, have actually disclaimed all coercive Power over the King ; and yet for all that, the Nobility, and People of England,may still have a good and sufficient Right left them of defending their Lives, Religion, and Liberties against the King, or those commissioned by him, in case of a general and universal Breach and Invasion of the Fundamental Laws of the Kingdom , or Original Contract , ( if you will call it so), and not to lay down those defensive Arms, till their said just Rights and Liberties are again restored, and sufficiently secured to them. So that though I will not bring the Custom of the Englijh-Saxons as a Precedent for the Parliament's Deposing ot the King, yet I think I may make use of it thus far, that this Nation has ever exercised this necessaiy Right of defending their Liberties and Properties^ when invaded by the King or his Ministers, either by Colour of Law, or open Force. And that this hath been the constant Practice from almost the Time of your pretended Conquest down to later Ages, I think I can make out from sufficient Authorities, both from Histories and Records.

M. Though your Doctrine is not so bad as I expected, yet it is still bad enough; and I never knew this Right of Resistance carried home, but that it always ended in Deposing and Murdering of the King at the last; as we have seen in our own Times: But let the constant Practice have been as it will, I am sure such Resistance hath been always condemned by our Ancient Common Law, as well as Modern Statutes, as I shall prove farther to you by and by. And therefore pray give me leave to tell you, That the never so constant Practice of an unlawful Thing, can no more justify the doing of it, than that' constant Usage, Time out of Mind, for Thieves to rob betweenLondon and St. Albans. Not that I fore-judge you, or refuse to hear any Instances and Authorities from Histories or Records to make good your Assertion.

F. I thank you for your Patience: What therefore if I prove that such Resistance has been not only actually exercised by the Clergy, Nobility and People in former Ages, but that it hath been also allowed by our Kings themselves, and approved of by great Councils, or Parliaments in those Times ,"for lawful, and the Actors in it wholly indemnified and saved harmless nay, a Power given them, and that by the King himself, to resist him, and defend themselves, in cafe he broke his Charters and Agreements made to and with his Nobility and


People,or else with some Foreign Prince ? Which may appear from this remarkable In

Farte roster, fiance of King Henry- II. at the End of whose Reign Hoveden in his Annals, gives t 3- us the Conditions ot the Peace made in the last Year of this King, between him and

Philip King oi-France, with the Consent of their Bishops, Earls, and Barons; where, among other Articles, you will find this for one, particularly relating to the Barons of England, who were also to swear to the Peace, in these Terms , Et online s Bat ones Angliœ jura bunt, quod fi Rex Anglia noluerit ha* Condit tones tenere, quodipfi tenebunt cum Rege Francis, & Comite Richardo, iff eos adjuvabunt pro pojje contra Regent Anglim, &c.Whence we may without doubt conclude, that the Resistance of Subjects in some Cases against their Kings, was then allowed of, even by the King himself, and thought not inconsistent with the Allegiance they bore him, though it might suspend it for a Time.

Al. I confess, this Instance would be of some Weight, were it not for the Critical Time when this Peace was made ; viz. when Richard Earl of Poiftou , the King's Eldest Son, had rebelled against his Father, and taken Part with the King of France; and had drawn over a great many of the Norman, and PiBavian, and Englijh Barons to his Party ; which when King Henry perceived, this very Author you have quoted here, tells you, Guod Rex Anglixin arSo pq/ttw Pacem fecit cum Rege Phi/ippo ; that is, was constrained to make Peace with him: So that Kinghenry being in this Streight, the King of France and Earl Richard, with the Barons of his Party, forced KingHenry to sign what Conditions they pleased ; for there is no such Clause Ib much as mentioned for the FrenchBarons.

But make the most of it, it is but a Temporary Relaxation of Allegiance from King Henry to his Barons, and the King might surely thus release them if he pleased: But it is plain, they could not have acted thus, without this Condition had been expressly inserted.

F. Well, supposing King Henry to have been never so much constrained to the making of these Conditions ; and that it was his own Act that rendred it lawful, it still proves as much as I urge it for * vis. That neither the Kings of France or England then thought this Resistance absolutely unlawful; for then the King's own Act could never have dispensed with it.

But to shew you farther, that the People of this Nation have ever maintained this Right of Resistance, even without the Allowance of our Kings themselves: And for the doing of this, I shall proceed with the earliest Instances of this Kind after ^Anna'sHmed' ^e Conquest •, viz. In the Time of King Richard the First, during whose Absence in the Holy Land, he had committed the Government of his Kingdom to William Bishop ot Ely, who abused his Power by an arbitrary and insolent Carriage affronting and oppressing John Earl of Alortcn, the King's own Brother, and Jeffry Archbishop of fork, the King's base Brother ; whereupon they rose up against him j and having the Bishops, the Earls and Barons of theft Side, appointed the said Bishop a Day, to answer to his Crimes in the King's Court, or great Council of the Bishops, Lords, and Tenants in Capite, then calledjCvrw Regis;where, when he refused to appear, they all with one Consent came to London, and fought with the Followers and Adherents of the said Chancellor by the Way. When they came to Town, Earl John, with the Archbishops of Yorkand Rouen, with all the Earls and Barons, together with the Citizens of London, met in St. Pauss Church-yard, and there it was proposed, that the said Chancellor should, for his Evil Government, be deposed and banish'd the Kingdom: And so he immediately was, by the general Consent of the Common Council of the Kingdom. So that you see the Nobility Clergy, and People, had then no Notion of an irresistible Power in the King, and those put in Commission by him, when they found their Power to grow Tyrannical and Insupportable.

M. But if I forget not, you omit one material Circumstance in this Affair, which seems to make against you •, which is, That the Archbishop of Rouen, and William the Earl Mareschal, did, at that Time, produce the King's Letters, signed with his Seal, wherein he had appointed, that they Two should be associated in the Govetnment with the Bishop of Ely ; and that he should do nothing without their Privity and Consents, and of thole associated with him,in the Business of the Kingdom i and that if he offered to do otherwise, he should be deposed. So that It seems what they now acted, was not ib much in Opposition to the King's Commission as to the Bishop's, who had refused to obey his Commands,



F. I confess it was as you set forth ; yet this makes nothing against my Opinion ; since it is apparent that Arms were taken, and this Resistance made by the Major Part of the Bishops, Earls, and Barons, together with the Londoners, before ever it was known that such Letters were written by theKing. And Ib it seems they would have done much the fame Thing, if there had been no such Letterssent by theKing at all. You may also remember, that all these Proceedings also were approved of, and confirmed by the King himself

But that I may proceed in my History of Non-Resistance, I come to the Reign of King\?Wv7 his Brother 5 who when he had refused the Archbishop of Canterbury, and all the Bishops, Earls, and Barons of the Kingdom, to confirm the great Charter of King Henry the First, they, together with the rest of the great Men to**-p*TM, and People of the Kingdom, of all Degrees and Conditions, took up Arms, and ^'R'2'l!!.<" made a vast Army, resolving never to lay them down, till he had new granted and cortfitmed the Charters of Liberties and Forests; till at last the King finding himself almost quite forsaken, so that he had scarce Five Knights left about him, he was at last forced to meet the said Bishops, Earls, Barons, and People, at Run- , Mead, and there to grant them that great Charter, which has been the Subject of lb much Discourse between us. So that you see here that the Church of England in those Times (if the Bishops and Clergy are the Representatives, of this Church) had then no Notion of this Doctrine of Passive Obedience to the King's Absolute Will and Commands. '. .',/

M. I cannot deny the Matter of Fact to be as you fay; but yet you may remember, that the fame Author tells us, That the Pope thought the King hardly dealt withal in this Matter •, so that he gave Audience to the King s Ambassadors, Concerning the Rebellions and Injuries which the Barons 'of England had committed against their King ; and that upon a solemn Hearing of the whole Business, and after a Consultation with his Catdinals, he did, as Supreme Lord of England, (after King Johns Resignation of his Crown to him) by his Bull then published, make void the said great Charters of Liberties and Forests; and condemn all the Barons Proceedings, as against their Duty and Allegiance to the King their Sovei"eign Lord: So that it seems this was not approved of any where but by 'the Actors. The Pope thereupon excommunicating the Barons, and suspending the Arch:" bishop ofCanterbury for joining with them.

F. I believe you will make nothing of this Objection : For it appears from the lame Author, that the Pope had before this excommunicated the King ; Ibid. p. 233. and as far as lay in his Power, depriv'd him of his Kingdom, and absolved all his Subjects of their Allegiance : So that it is plain, it was not out of any true Principle, or Hatred of Rebellion and Resistance in Subjects , that the Pope had thus acted •, but purely to gratify the King at this Juncture of Time, and to defend him in his Tyranny, and Breach of his own Charters, because ha was then become his Vassal; and so he cared not how much he oppressed his Subjects, because he was thereby the more able to pay him the Tribute he had granted for the Kingdoms of England and Ireland: And he could also expect the more securely to extort Money from the whole Kingdom. But that this Bull of the Pope's was contrary to the King's own Express Act and Agreement, appears plainly by that Clause which is still to be found in a Charter under the Seal of this King j and Which seems to have been the Pleads of the great Charter, (according to which it was drawn into the Form we now find it in Matthew Paris) m which it is expressly provided, and granted by the said King, That in case he should go about to break or infringe any Clause in the said Charter, and shall not amend it within the Space of Forty Days, that then, lUi Barones cum Communia. totius Terra distringent&gravabunt nos modis omnibus quibus potuerint, aut (fell.) per captionem Cajirorum, Terrarum, Poffeffionum, &aRk modi* qilibus potuerint, donee fuer'it emendatumsecundum arbitrium eorum, salva persona nofira & Reginanoflrœ, & Liberorum nostrorum, C cum suerit emendatum intenient nobk sicut priwseceruni. So that you fee here in the Judgment even of the King himself, they might freely resist, and take up Arms against him, till he made good every Article of these Charters, if violated \ and were not to return to their Obedience till it was amended. And the like Clause, almost Word for Word, is also to be found in the Conclusion of the great Charters, published in Maifhew Paris.

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M. I grant the Clause is there as you quote it; yet I much doubt whether it was of any Validity, being no doubt drawn up by the Barons then in Arms, and which the King durst not at that time refuse, and Ib he was indeed under a kind of Duress when he did it. And besides, pray mark the Conclusion of this Clause $ this Resistance was to be Salva Persona nostra & Reginœ nofirx, & Liberorum nofirorum, curtifuerit emendatum,intendent nos sic ut prius fecerunt. Now how this Security here reserved for the King's Person, could consist with that open War the Barons made afterwards against his very Person, and casting off all their Allegiance to their Natural Prince, and calling in Prince Lewis, Son to the King of Iranee, I cannot understand.

F. I think all this may very easily be solved : For in the First Place, King John was no more compelled to agree to this Clause, than he was to the Charters themselves; and if those were lawful and reasonable, so was this Resistance too; since there was no other Way or Means left to preserve them, in case the King should go from his own Acts, and break through all he had done; so that if the Ends were lawful, the Means to preserve it must be lo too; or else those Charters would have signified nothing, any longer than the King pleased. As for the other Part of the Objection, that this Resistance was still to be, laving the Person of the King and Queen, Cc. and that this did not consist with the Barons after making War against his Person, and casting of all Allegiance to him: It was not theii Faults, but the King's, if they could not perform this Agreement; since the King, by making War upon the Clergy, Nobility, and People, by his open and notorious Breach and recalling of these Charters, calling in Strangers to his Assistance, and declaring he would no longer govern according to Law, had made it absolutely unpracticable to preserve their Allegiance to him any longer; so that they never cast off their Duty as Subjects, till he had cast off his Duty as a King •, and then what was there else left to be done, but to provide for their own Safety, by calling in a Foreign Prince to their Assistance as soon as they could? Since there was no other way left them to defend themselves against those Troops of Strangers the King had invited over: And though many of them, with their Captain Hugh de Boves, had been cast away, and drowned in a Tempest at Sea, yet more were daily expected. So that if Tyrants should suffer nothing for the Breach of their own Charters and Oaths, they would be in a better Condition by their Violation, than the observing of them •, for by the making them, they for the present quiet the Minds of their discontented Subjects, and when they please may break them all again, when they have got Power, if no body must presume to resist them, or not_think them as much Kings when they destroy and oppress their People, as when they protect and preserve them, by governing according to the Laws of the Kingdom. But pray what have you to fay against that general Resistance that was made by almost all the Bishops, Barons, and great Men of England, against his Son Henry the Third, and about the frequent and notorious Violations of the great Charters which his Father and himself had so often sworn to, and confirmed, and for which he had received such great Benevolences and Subsidies from the Nation?

M. Btfore I answer this Question, pray take Notice that I am not at all satisfied with your Arguments; That whenever Subjects shall think themselves injured, and 'oppressed by'their Sovereigns, that then they may cast off their Allegiance to them, if they cannot have the Remedy they desire; since this were to make them both Judges and Parties too in their own Cause; which is altogether unjust and unreasonable between private Men, much more between Kings and Subjects. But passing by this at present, I shall tell you my Opinion of this Resistance ofSimon Montfort, and the Earls, and Barons, his'Adherents, that it was downright Rebellion, and tended only to Dethrone the King, and make him a meer Cypher, and to devolve the whole Government upon themselves; as appears by the Oxford Provisions recited by so many Authors of that Age; and which were afterwards condemned, (and consequently those violent Means by which they were obtained) by Lewis the Ninth, King of France-, who in an Assembly of his Estates, upon a solemn Hearing of the whole Difference between King Henry III. and his Barons, declared these Oxford Provisions null and void. So far was this good and pious King from countenancing any Rebellion (or Resistance, as you term it) of Subjects against their Lawful Sovereign.



F. For all this, I cannot find that the King of France did then at all condemn this Defence the Earls and Barons had before made of the Liberties granted them by the great Charters; for though he restored the King to his former Power, by avoiding the Oxford. Provisions; yet at the fame Time when this was done, (as the Continuator of Mat. Paris tells us) he expresty excepted the Ancient Charters Page 992. of King John, Univerfati (fcil. Anglit]concejfe, and from which per illam fententiam in nullo intendebat penitus derogare ; and if he did not in the least intend to derogate from them, he could not with any Justice condemn the only Means the Barons had to maintain them; after so many Trials, and fresh Promises and Oaths of this fickle inconstant King, all broken and laid aside. So that you may as well or better alledge the Pope's shameful Absolution of this King from this Oath he had made to observe the great Charters, as an Argument why they should not be any longer bound by them, nor the Barons obliged to defend them as this Sentence of the King of -France, to render the Resistance the Barons had made in Defence of the great Charters to be unlawful. And that King Henry himself did afterwards allow this Resistance for good and lawful, pray lee the Agreement which was not long after made in full Parliament, in the 49th, between the King, Rot. Pat. 49 the Prince, and all the Prelates, Earls and Barons of England; whereby he obliged H- 3- M- 5himself to observe all the Articles and Ordinances which had been before agreed upon atLondon in the 48th Year of his Reign. And then follows this Clause in the Record (which the Doctor himself has Printed in his Appendix at the End of the First Volume of his Introduction to English History) which I shall here translate out of French, because it is very old and obscure; it is thus: " And if our Lord "the King, or MonsieurEdward, (viz. the Prince) shall go against the Peace "and Ordinance aforesaid ; or shall grieve the Earls ofLeicester, or Gloucester, or *' any of their Party, by Reason of any of the Things aforesaid; that then the "great Men, and Commons of the Land, (in French, hauz Homes, & Comun de la ** Terre) shall rise against them to grieve them to the utmost of their Power, and "shall be obedient to them in nothing, and in doing all Things as if they were "bound to them in nothing, until these Things shall be amended and maintained "according to the Ordinance of the Peace aforesaid. And to this our Lord the "King, Monsieur Edward, and the great Men of the Kingdom, have sworn upon "the Holy Gospels, to keep and maintain the Things aforesaid. And with this Record agrees this King's Latin Charter, much to the lame Purpose recited in die Annals of Waverfy, Anno 1264, only the Words there are more general, That if Page 217. the King or Prince should break the said Peace, by hurting or falling upon any of the said Earls of Leicester, or Gloucester, or any of the Persons above-mentioned, Liceatomnibus de Regno nostro contra nos infurgere, & ad gravamen nostrum, opem C operam dare juxta post'e, adquod ex prefenti prœcepto nostro omnes iff fingulos volumus obligari, fideliter & homagio nobisjaBo nonobstante. So that you lee here, that by the Judgment of the King himself, and the whole Parliament, this Resistance might be exercised, notwithstanding the Homage they had done him. And this is that Form of the Peace which I have before cited to you to have been made, ( as appears by a Writ to the Sheriff of Torkjhire, to be seen upon the fame Roll, and in the fame Membrane) unanimi conjensu & voluntate nostra, & Edwardi Rot.clans.49 filij nostri Primogeniti, Prœlatorum, Comitum, Baronum, & Communitatis Regni * 3nostri, &c. Which Clause Dr. Brady thought fit to conceal, and not Publish with the former Record, because the Word Communitasdid not at all suit with his Notions in this Place.

M. I must confess this so solemn an Agreement upon the Record would have R.A. P. 13 $. been very considerable, had it been made whilst the King and Prince had been free, & deinand in their own Power whereas the Doctor has made it plainly appear, that the King^nd Prince were at this Time in the Power of Simon Montfortand his Adherents, who called that famous Parliament of the 49th, to which we suppose the Commons were first summoned; and therefore the Prince was not delivered ibid. 143. at this Time (any more than the King his Father) out of their Power-, and was only taken out of Dover Castle, and made a Prisoner at large under a Guard (as his Father was) until he made his Escape from his Keepers at Hereford Castle. So that I do not at all value this Agreement, because made by Duress; though I confess the Words of the Records are exprels, that it was deunanimi confensu & voluntate wstra, &c. Edwardi Filij nostri. But it appears plainly, that by this



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Agreement the King had discharged himself of all Royal Power, and confirmed an Instrument, whereby the whole Government of the Kingdom, and Nomination of all the great Officers of the Crown was put into the Hands of Nine Earls and Barons.

¥. At this rate, no Act that a King can do when he hath the worst of ir, though confirmed by a Solemn Oath (as this was upon the Holy Gospels) can ever be binding ; for it is but alledging that it was done by Duress, and it is sufficient to render it null and void. But be it as it will, this was certainly the general Consent, Act and Declaration of the whole Nation assembled in Parliament, and that owned by the King himself, and his Son the Prince, and all his Party. And farther, that this Resistance of the Earl of Gloucester (who was one of these Barons) was not aster counted for Treason, or Rebellion, appears kot. Tat. ji by that Pardon of the laid Earl which we have before cited " to have been made *5- «* by this King, with Assent of the King of Almaine (his Brother) and the

"Counts and Barons, and Commons of the Land, in which he pardoned the "said Earl, and all his Company, (and also all the Londoners) all Rancor "and Ill-will j and in the fame manner as the King quits and discharges "the Earl, and his Company, so does the said Earl hereby for himself, and all "his Company, remit to all those that were of the Party of the King, "any Thing done since that Moment (that is, that Civil War, in which the Earl ofGloucester had so great a Share.) So that you see this Resistance of the Earl of Gloucester was within Two Years after the Battel of Eve/ham so far from being looked upon as Rebellion, that the Pardon is made mutual, not only for the Earl, and those that followed him, but also for those that had taken the King s Part.

But I shall come now to his Son, and Successor, King Edward the First •, where' we shall find this Doctrine of Resistance asserted more than once, not only by v,de Mat. private Men, but by the whole Parliament-, as appears by those Letters >rhat IAmn'n^er' were w""611 the King's Command, (or Permission at least, in the 29th of his p.4jtf*01' Reign) in the Name of all the Earls, Barons, £? tota Communitas Aright, to Pope Boniface the Eighth, in Vindication of the King's Superiority over Scotland-^ in which you will find this remarkable Passage, Necetiam permittimus necpertnittemus, Jicut non poffumus nec debemus prœmiffa tarn infolita, inaebita, &prœjudicialia, & alia* waudita, pralibatum Dominum nostrum Regem, etiam si veUet facere, modo quolibetattemptare. Which Restraint of the King's Will must certainly mean somewhat more than a bare Remonstrance or Declaration against it; since we have seen in our own Times, Kings make nothing of meer verbal Declarations of the Two Houses of Parliament, if they had a mind to do a Thing they thought belonged to their Prerogative, though the Parliament declared against it. And to let you farther see that this Doctrine was at this Time generally believed, and practised all over Europe, you will find almost the same Clause in the Letters which were written in the Reign of Philip the Fair, King of France, Anno 1203, (which falls about the 30th of our King Edward the First ) and were sent to the fame Pope Boniface, upon Occasion of the like Usuipations upon the Church ofFrance, in the Name of the whole Clergy of that Kingdom; whereby it not Pryn's second only appears that this was done in a general Assembly of Estates, viz. of the Vol. of Pap. Clergy, Barons, &c. & CommunitatesVjllarum-, but they also there declared, P-Sst""^ exP'effimus^ v'va voce-> ^.uod ft prtfatus Dominus Rex (quod absit)tolerate, 'J vel dijfimulare vellet, Ipsi (soil. Episcopi, 8c Barones, Use.) nullatenus fustine

rent. So that here you see not only the Temporal Estates, but the very Clergy declare, that they would by no means suffer the King to act thus (no not) if he would.

But the Barons and People of England, did actually put this Doctrine in Execution, some few Years before this Letter I now mentioned was writ to the Pope •, which Transaction I shall give you almost verbatim out of Mat. ofWeSminster, and Henry< de Knighton, in Anno 1297, (being the 26th of Edward the First) when the King having extorted a great Sum of Money from the Clergy and People, contrary to Law, and being then going, intoFlanders, he called a Parliament at Westminster, where most of the Earls and Barons refused ro appear, until such Time as their Petitions for the Ease of their Country were heard-, and that the King would again confirm MagnaCharta. Yet nevertheless the

King King upon Concession of his Male Administration, which he made before all the People, with Tears in his Eyes, and Promise of Amendment, then obtained of the Commons an Aid of the Eighth Penny of their Goods. But as soon as the King was gone over, the Constable and Earl Marefchal, with other Earls and Barons, went tothe Exchequer, and there forbad the Judges to levy the laid Tax upon the People by the Sheriffs, because it was done without their Knowledge, without whose Consent no Tax ought to be exacted, or imposed. So that the said Earls and Barons being thus gathered together, and the greater Part of the People joining with them ; at last Prince Edward, then Lieutenant of the Kingdom, was forced to call a Parliament j to which the Earls and Barons came attended with great Multitudes, both of Horse and Foot, but would not enter the C;ty of London, till the Prince had in his Father's Name confirmed the great Charters, and had pasted the Statute de TaUagio nonconcedendo; both which were afterwards again confirmed by the King his Father Ibme Time after his Return.

And this will serve to explain the last Article in this Statute, " Which compre** hends the King's Pardon or Remission to Humphrey Earl of Hereford and Ejscx, "then Constable, and Roger Bigot, Earl of Norfolk,Maresehalof England, (the "Two principal Leaders in the late Resistance,) with all other Earls, Barons, "Knights, and Esquires, of their Party; all Leagues and Confederacies, as also *' all Rancor and Ill-will, with all other Transgressions against them, 0V. And pray see Sir Edward Coke's Comment on these Words ; "If you compare our ^Jsnjiit. t, "English Histories with this Act of Parliament, the Old Saying shall be verified, P- *3*"ThatRecords of Parliament are the truest. Histories. The King had conceived a "deep Displeasure against the Constable, Mareschal, and others of the Nobility, "Gentry, and Commons of the Realrrh for denying that which he so much de"fired; yet for that they stood in Defence of their Laws, Liberties, and Free "Customs, &c. (I suppose he refers to the Resistance but now mentioned) "whereupon he did not only restore the lame to them, as aforesaid, but granted "special Pardon to those against whom he had conceived so heavy a tjisplea"sure, &c. and such a one as you will scarce read the like. And after a short Gloss upon the Words Rancor and Ill-will, he thus comments on these Words, ttiam tranfgrejsiones fi quas fecerint: Here the Words, si quas fecerint, were added, lest by Acceptanccof a Pardon, they should confess they had transgressed. So careful were the Lords and Commons to preserve their Ancient Laws, Liberties and Customs of their Country. So that it is plain, that SirEdward Coke then thought the Lords and Commons had not transgressed, in thus standing up, though with Force of Arms, for their just Rights and Liberties; and which sofficiently proves that this Author did not conceive such a Resistance to be making War against the King, and so Treason at that Time at Common-Law, and consequently not to be afterwards Treason by the Statute of the 25 th of Edward the Third (as you would have at); since that Statute does not make any other OvertActs to be Treason, but what had been so by Common-Law before this Statute was made.

But in the Reign of this King's Son, Edward the Second, there were much more pregnant and fatal Proofs of the Exercise of this Right of Resistance by the Earls, Barons, and People of England, against Pierce Gaveston;whom having H. Knyghtm, been before for his Misgovernment of the King, banish'd the Realm by Act of tmag.ffist. Parliament, and coming over with the King's License, but without any Reverse of the said Act; Thomas Earl of Lancaster, the King's Uncle, with the rest of the Earls, Barons, and Commons of the Land, took up Arms against him. And tho' he raised some Forces by the King's Commission, yet they fought with him, and took him Prisoner, and beheaded him near Warwick. Some Years after which, the laid Thomas Earl of Lancaster, withHumphrey de Bohun, Earl of Hereford, together with divers other Earls and Barons, took Arms, and spoiling the Lands vof the Two Spencers, Father and Son, came up to London, where the King had called a Parliament •, in which the King was forced to banish the laid Spencers out of the Kingdom, though they quickly returned again: Against whom, when the laid Earls above-mentioned, and divers other Barons and Knights, again took Arms; but being fail'd by some of their Confederates, were overpowered by the King's Party, and the Earl being taken Prisoner, was Attainted, and Beheaded at PontfraB; yet was this Judgment against the Earl, and those of his Party, after


wards reversed in Parliament, in 1 mo. Edward HI. and their Heirs restored in Blood, as also to the Lands of their Fathers; as besides the Act, it still is to be seen upon the Rolls, appears more plainly by a Writ of this Kings reciting i " That "wriereas at a Parliament at Westminster, among other Things, it was agreed by Rut. Claus. 1 « ^ Kjng5 the Prelates, Earls, Barons, and Commons of the Kingdom, that all f. 3- P-2- « th0fe who were in the Quarrel with Thomas Earl of Lancaster, against the "Spencers, should have their Lands and Goods restored, because the said Quarrel "was found, and adjudged by the King, and the whole Parliament, to be good "and just; and that the Judgments given against them were null and void, and "therefore commands Restitution of the Lands and Tenements now in the Crown, "to the Executors of the said Earl. And the like Writs are found for the other Lords and Gentlemen that had been of his Party. ■;

And further, that not only this Resistance made by this Earl, and the rest of his Followers, but also that which this King himself made together with Queen Isabel, his Mother, against the Misgovernment of the King his Father, through the Evil Counsel of the Two Spencers, appears by the Act of Indemnity passed in the First Year of this King; in the Preamble of which there is recited a short History of the wicked Government, and Banilhment of thespencers, Father and Sous *' and also how Thomas, late Eaxioi'Lancaster, was by their Procurement pursued, "taken, executed, disinherited •, and how the laid Spencers, and Robert Baldock, "and Edmund, Earl of Arundel,by the Royal Power they had usurped, had "caused the King that now is, and the Queen his Mother, to be utterly forsaken "of the King his Father, and to be Exiled from the Realm of Englandand that "therefore the King that now is, and the Queen his Mother, being in 1^ great "Jeopardy in a strange Country, and seeing the Destructions, and Difinherisons v which were notoriously done in England, upon Holy Church, the Prelates, Earls, "Barons, and the Commonalty osthe lame, by the said Spencers, Robert Baldock, "and Edmund Earl oi Arundel; by the Encroachment of Rojw! Power to themselves: "And seeing they might not remedy the same, unless they came into England with "an Army of Men of War, and have by the Grace of God with such Puissance, "and the help of the great Men and Commons of the Realm vanquished and de"fttoyed the said Spencers, &c. Therefore our Sovereign Lord rhe King, by the "Common Council of the Prelates, Earls, Barons, and other great Men, and of "the Commons of the Realm, have provided, and ordained, &c as follows. That "ho great Man, nor other of what Estate, Dignity or Condition soever he be, that "came in with the said King that now is, and with the Queen in Aid of them, "to pursue their said Enemies; and in which Pursuit the King his Father was "taken and put in Ward,&c. shall be impeached, molested or grieved in Person, "orinGoods, in any of the King's Courts, &c. for the Pursuit, and taking in Hold "the Body of the said King Edward, nor for the Pursuit of any other Persons, nor "taking their Goods, nor for the Death of any Man, nor any other Things perpe"trated, or committed in the said Pursuit, from the Day of the King and Queens "Arrival, until the Day of the Coronation of rhe said King.

The Act of Indemnity is so full a Justification of the Necessity and Lawfulness of the Resistance that was then made against King Edward II. and his wicked Counsellors the Spencers, that it needs no Comment. And tho' KingEdward III. took Warning by the Example of his Father, and was too wise then to follow the like Arbitrary Courses; yet Richard II. his Grandson, being a wilful rash young Prince, fell into all the Errors of his great Grandfather, and found the like, if not greater Resistance, from his Nobility and People: For when he had highly mis: governed the Realm by the Advice of his Favourites, Alexander Archbishop of Tork, the Duke of Ireland,and others 5 a Parliament being called in the 10th Year of his Reign, the Government of the Kingdom was taken out of their Hands, and committed to the Bishops of Canterbury and Ely. with Thomas Duke of Gloucester the King's Uncle, Richard Earl of Arundel, and Thomas Earl of Warwick, and Nine or Ten other Lords and Bishops ; but notwithstanding this, the King being newly of Age, refused to be governed by the said Duke, and Earls, but was carried about the Kingdom by the said Duke of Ireland, and others, to try what Forces they could raise, and also to hinder the laid Duke and Earls from having any Access to him. But see what followed these violent and arbitrary Courses, as it is related by r.d. 2«97. Henry de Knighton, who lived and wrore in rhat very Time, and is more exact in this King's Reign than any other Historian; he there tells us, that when Thomas




Duke of Glocefter, and the other Bishops and Earls now mentioned, found they "could not proceed in the Government of the King and Kingdom, according to "the Ordinance of the preceeding Parliament, through the Hindrance of Michael u de la Poole, Robert de Vere, Duke of Ireland, Nicholas Brembar, and Robert Tre"sillianChief Justice, and others, who had seduced the King, and made him alie"nate himself from the Council of the laid Lords, to the great Damage of the "Kingdom". Whereupon the said Duke of Glocester, and the Lords aforesaid, with a great Guard of Knights, Esquires, and Archers, came up towards London] and quartered in the Villages adjacent: And then the Archbishop of Canterbury, the Lord Lovet, the Lord Cobham, the Lord Eures, with others, went to the King* in the Name of the Duke and Earls, and demanded all the Persons above-mend- 27°0' oned to be banished as Seducers and Traitors to the King : And all the Lords then swore upon the Cross of the said Archbishop, not to desist till they had obtained what they eame for. The Conclusion of this Meeting was, That the King not being able to withstand them, was forced immediately to call that remarkable Parliament of the nth Year of his Reign* in which Michael de la Poole and the Duke of Ireland were attainted, and Tresilian, and divers other Judges, sentenced to be hanged at Tyburn, upon the Impeachment of the said Duke ot Glocefter, and the Earl of Arundel, for delivering their Opinions contrary to Law, and the Articles • the King had not long before proposed to them at Nottingham.

1 shafl omit the Resistance, which Henry Duke of Lancaster made after his Arrival, by the Assistance of the Nobility and People of the North of England, against the Arbitrary Government of this King, being then inIreland; not only because it is notoriously known, but because it was carried on farther than perhaps it needed to have been, and ended in the Deposition of this King. Only in the first Year of Henry the IVth, there was the fame Act of Indemnity almost word for word, pasted for all those that had come over with that King, and had assisted him against Richard the Second, and his evil Counsellors, as was passed before in primo of Edward the Third. I shall not also insist upon the Resistance of Richard Duke of fork, in the Reign of King Henry the Vlth, who took up Arms against the Evil Goyernment of the Qpeen, and her Minion the Duke of Suffolk ; because you may fay, that this was justifiable by the Duke of lork^ as Right Heir of the Crown: Nor will I instance in the Resistance made by the Two Houses of Parliament, during the late Civil Wars, in the Time of King Charles the First, since it is disputed to this Day, who was in the Fault, and began this Civil War, whether the King or the Parliament: Only thus much I cannot omit to take notice of, That the King in none of his Declarations ever denied but that the People had a Right to resist him, in case he made War upon them, or had introduced Arbitrary Government; and expressly owns in his Answer to one of the Parliament's Messages, that they had a sufficient Power to restrain Tyranny, but denied himself to be guilty of it: And still asserted, That he took up Arms in Defence of his just Right and Prerogative, to the Command of the Militia of the Kingdom, which they went about to take from him by Force.

M. I have with the greater Patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned, because I cannot desire any better Argument to prove the Unlawfulness of fiich Resistance, than those Acts of Pardon and Indemnity which you must own have still followed it even when the Barons proved most fortunate; as in that of Henry the Third, to the Earl of Glocefter, and those of his Party and that of Edward the First, to the Constable and Mareschal, and their Followers: Nay, after the former Kings had been unjustly deposed, we still find the Actors and Complices of such wicked Actions, did not think themselves safe till they had an Act of Indemnity pasted to them, of all the Robberies and Murders they had committed in the War; as your self have recited in the Two Acts of Parliament, in the Reigns of Edwardthst Third, and Henry the Fourth. Now if these Resistances had not been downright Rebellions in the Eye of the Law, to what Purpose were these Acts of Indemnity passed, since no Man needs a Pardon, but rather merits a Reward for defending the Government establish d according to Law?

F. In Answer to this Objection (for which I am already prepared, since I foresaw you might make it) pray give me leave to ask you, Whether you can



find the Words Treason, Rebellion, Robbery, or Murder, in any of these Acts of

Pardon? And if you cannot, Whether you think Treason or Murder, could be pardon'd by general Words or not? And the Reason why I ask this Queston, is, because if they could not, then the Consequence will be, That none of these Parliaments supposed that the Resistance that had been made, or all the other Acts performed in Pursuance of such Resistance, were looked upon by those that had done them, no not by the Parliament it self, to be Treason, Rebellion, or Murder since certainly those that were Actors in such Resistances, and taking up of Arms, having the Power in their Hands, would nor have fail'd to have had those Words inserted into those Acts of Indemnity, if they had supposed themselves guilty of those Crimes.

M. I cannot fay that the Words Treason, and Rebellion. or Murder, are expressly mentioned in these Statutes, since even the Actors in them did not think it for their Credits, to own themselves to have been guilty of any such Crimes; yet all the particular Words and Expressions in these Acts amount to the very fame Thing for the taking up Arms with one that is not King, against him that is, and the actually seizing upon his Person, and keeping him in hold, was Treason at Common-Law, before the Statute of the 25th ot Edward the Third i And is not taking Men's Goods by Force, and destroying their Persons in Time of Peace, Rebellion and Murder at Common Law? So that if these were the Facts they 'had been guilty of, and if these Acts were Treaibn, Rebellion, Robbery, and Murder •, then certainly all Treasons, Rebellions, Robberies, and Murders, aie likewise pardoned by those Statutes. And though 'tis true, the Law is now, That no Pardon of Treason or Murder mail be good, unless those Offences are parStat. 2. ch. t. tfcularly named: Yet this was so ordained by the Statute of the 13 th of Richard the Second, by which it is particularly provided, That no Pardon shall be allowed before any Justice for the Death of a Man, &c. Treason, ©V. unless the fame Murder, Treason, i5'c. be specified in the said Charter -, before which Statute Sir *• 7is- Edward Coke, in his Second Inftit. tells us, That by the Pardon of all Felonies, Treason was pardoned, and so was Murder also.

F. I cannot deny but that these Fasts you mention were Treason, in Strictness of Law, before the making that Statute yet does it not follow, that even these may be in some Cases justifiable (as well as binding a King, when he is out of his Wits) if the publick Peace ot the Kingdom, and Preservation of the Government, according to the Fundamental Laws of the Kingdom, require it. Thus for Example; Suppose King John, after he had made actual War upon his Barons and People, had happened to have his Forces routed in the Field, can any one believe that it had been unlawful for them to have secured his Person to prevent his making a new WaT upon them? And yet this by the Letter of the Law had been Treason. Now there are many Actions, which in Strictness of Law are Treason, yet being for the publick Defence arid Security of the Nation, deserve a Pardon of Course. Thus, if Foreign Enemies should Land in England, and a Neighbouring Nobleman or Gentleman, who has no Command over the Militia of the Countrey, should raise on the sudden , such a Force of his Tenants and Neighbours, as were sufficient to make a Head against them, till the Militia of the Countrey could come in to their Assistance though this taking up of Arms, without an Express Commission for it, be a high Misdemeanor ; (nay, Treason, according to your Principles; yet I suppose you will not deny, but that the Persons engaged in it, do notonly deserve Pardon, but Thanks for their Courage, and so speedy a Defence of the Nation. And I remember I have read a famous Instance of this Kind, that when the Traytors concerned in the Powder-Plot found themselves discovered, they fled into Warwick/hire, and thence into Worccjierjhire, and were pursued and taken by the High-Sheriff of that County in Staffordshire; which though a great Misdemeanor, since no Sheriff can justify carrying the Foffe Comitatm out of the County yet this was so well taken, that King fames the First rewarded him, and (as I take it) Knighted him for his Pains.

But to apply this to the Matter in Dispute •, though it is true, taking and imprisoning the Kings Person is Treason in the Eye of" the Law, yet (as in the Case of Edward the Second ) if the Government could not be restored to its pristine Srate without that Extremity, it must, and will ever deserve a Pardon : And therefore you see the. Parliament in the First of Edmrd the Third, not only par



{453}

dons, but justifies the doing of it, because done for that End. So likewise the Statute of the nth of Richard, the lid. Chap. i. not only indemnifies, but " justi"fies the Duke of Glocefier,. the Earls, Lords, and all others of his Party, for f taking up Arms against the Persons above-mentioned, tho' maimain'd and back'd "by the King himself, as being done for the Weal and Safeguard of the King, "the Maintenance of the Crown, and Salvation of the Realm. So much for the* Point of making War against the King, and imprisoning his Person. So that if taking up Arms for the Safeguard of the King, and Salvation of the Kingdom, were just and necessary to be done, the Consequences of it, via. the taking of Mens Goods, and killing of those that resist them, cannot be Robbery or Murder, because done in a State of War; which can never be carried on without seen, Act$ of Hostility. And therefore you see in the Act of Pardon to the Earl of Glpcestcr, and to the Londoners, granted in Parliament of the 51st of Henry the Did. fwbich I have now cited) those that took part with the King are as expressly pardoned, as thole that were with the Earl; and in the like Pardon to the Constable and, Mareschal, in the Time of Edwardthe 1st. (which I now also quoted) those Lords would not own they had transgressed; but the Words are only,Wiam transgrejjianes Ji quas fecerit. So that since such Reformations could not' fee brought about without Violence and Bloodshed, and some Irregularities, which in Times of Peace could not be justified by the strict Letter of the Law * it was but Reason, that for the quieting of Mens Minds, and their future Security, they should be indemnified for what they had done with so good an Intent, and for the Common Good of the Kingdom. But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown, but only to their being Kings in the Eye of the Law, appears by a like Act of Pardon passed in Parliament in the First of Henry the Vllth. to pardon and lave harmless all those that came over with the King, and all that helped him to recover his just Right ro the Kingdom against King Richard the Hid. there called, that Usurper. So that you may see, such Acts of Pardons do not concern the just Tules of Princes, nor the Justice of the War, but are to quiet Mens Minds under the New Government whereas those that took part with the Usurper, were not pardoned, but lest to the Law •, since the present Government would not take care for their Security, that had obstructed its Settlement. So the Act of Oblivion of the 2d of Charles the lid- though it pardons Treasons expressly, yet it as well pardons the Treasons of them that had Commissions from King Ciurles the 1st. or lid. as well as those that acted by Commissions from other pretended Authorities. So that you see, in the Judgment of this so modern a Parliament, Men might be supposed to be guilty of Treason, tho' they had taken part with the King, and had acted by his Commission, if the Things commanded were illegal. '., . •

M. I confess, you have taken a great deal of Pains, to justify taking up Arms against, nay, Imprisonment of our Kings, when that which you call the Preservation of the Government requires it; that is, when there is a Faction in the Kingdom strong enough to make a Disturbance. For it was very well laid by Tacitus, In the Speech he makes for Otho to the Soldiers to take up Arms, and kill Galba, then Emperor \ That it was in vain to speak more for the Justification of that Action, quod laudari non potest nisi peraftum. Treasons, if successful, have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them, and to pardon, nay, justify all those that have been Actors in them; as we may fee by those Acts of Indemnity you mention: And therefore I am not the mote convinced, that such Resistance was lawful, notwithstanding those Ipeciouj Declarations of Parliament, of their being made for the Publick Good, and Preservation of the King and Kingdom.

But you have done very warily to pass by, without any Justification, the Deposition of King Edward the lid. as also that of the Resistance ( as" you call it) of Henry Duke of Lancaster against King Richard the lid. as also his Deposition, tho' done in Parliament; since all the Proceedings against this King were repeal d in Parliament, in the 1. of Edward the IVth, as appears by the Parliament Rolls of Rot. Pa that King's Reign; wherein the taking up Arms against King Richard by Henry % Ed. 4 Earl of Derby^ is said to be done contrary to his Faith and Allegiance; and his taking the Crown, called Usurpation •, and the killing of King Richard his Sovereign Lord, termed (as it justly deserved) Murder and Tyranny, which does (tho' not directly, yet) by Consequence condemn his Depoiition too, since he is after


that here called King. And you do as warily pals by the late Rebellious War of the Long Parliament against King Charles the 1st. as also his horrid Murder before his own Gates; because you know very well, that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss 5 but commonly ends with the Murder or Deposition of the King, or else driving him from his Throne -, as we how find it by woful Experience in the Person of our Unfortunate King, who was so lately forced to quit this Kingdom for the Security of his Person: And therefore, to put an end to this Part ot the Dispute, the Parliament of the 13th of King Charles the lid. were so sensible of the great Mischiefs that attended this Rebellious Doctrine, as having been the Destruction of one of the best Princes that ever reigned, and the Occasion of the Lois of so many brave Men, besides the Ruin of so many great and Noble Families, that they were resolved to do their utmost to prevent it for the future; and therefore the King and Parliament, in the 13th and 14th of King Charles the lid. passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors, to take away all Dispute about it, though they declare it to have been his Ancient Right: And therefore, to take away all Pretence for taking up Arms either by the Two Houses of Parliament, ot any other Person whatsoever; they, in Preamble to both these, that these Acts thus expressly declare, "Forasmuch 15 Car. 2. "as within all his Majesty's Realms and Dominions, the sole Supreme Gochaf. 6. * vernment, Command and Disposition of the Militia, and of all Forces by "Sea and Land, and of all Forts and Places of Strength, is, and by the "Law of England ever was, the undoubted Right of his Majesty's and his "Royal Predecessors, Kings and Queens of England; and that both, or either "Houses of Parliament cannot, nor ought to pretend to the fame, nor can '* lawfully raise or levy War, Offensive or Defensive, against his Majesty, "his Heirs or lawful Successors: And yet the contrary hereof hath of late "been practised almost to the Ruin and Destruction of this Kingdom; and ** during the late Usurped Governments, many Evil and Rebellious Principles "have been instilled into the Minds of the People of this Kingdom, which, "unless prevented, may break forth to the Disturbance of the Peace and Quiec « thereof, tfc.

And in pursuance of this Statute, it was likewise ordained by the Authority aforesaid, in the 2d Statute for theMilitia of the 14th Year of the same King, where not only the same Preamble is recited verbatim, as before in the former Statute, but it is also Enacted, "That no Person, (no not a Peer of Chap. 3. "the Realm) shall be capable of acting as Lieutenant, Deputy-Lieutenant, "Officer or Soldier, by virtue of this Act, unless after the Oaths of Alle"giance and Supremacy they take this Oath following; viz. I A. B. do "declare and believe, That it is not lawful, upon any Pretence whatsoever, "to rake Arms against the King; and that I do abhor that traiterous Po"sition, that Arms may be taken by his Authority against his Person, or "against those that are Commissioned by him in pursuance of such Military "Commissions. And it is also to be noted, that all Mayors of Cities, or other Corporations, were obliged, by a former Statute of the 13 th of this King, to take the fame Oath. From both which Statutes and Declaration, we may draw these Conclusions: First, That the Militia (i. c. the Command of all Military Forces and Warlike Affairs) are declared to be wholly in the King. Secondly, That either, or both Houses of Parliament, cannot make any War, Offensive or Defensive, against him, £5V. Pray mark that. Thirdly, That the contrary Practice hath tended almost to the Destruction of this Kingdom, and that many Evil and Rebellious Principles (whereof this without doubt is intended for the chief) have been instilled into the Minds of the People,&c. And lastly, That in pursuance thereof) all Persons above-mentioned were not only obliged to renounce taking up Arms against the King, upon any Pretence whatsoever; but also against any that shall be authoriz'd by the King's Military Commissions, without any Exception?. And it is farther Enacted, That all Clergymen should be obliged to take this Oath, as well as the Laity; and it is likewise there ordained,. That all Clergymen who were to enjoy any Livings or Preferments in the Church, were likewise, for the Space of Twenty Years next ensuing, obliged to subscribe this Declaration. So that it is no wonder, if the Loyal Clergy

of of the Church of England, think themselves not only tied hy the express Rules of Scripture, but also by the Laws of the Land, strictly to observe this great Law of Passive Obedience, and Non Resistance. Now pray see here the Doctrine of Non-Resistance in its full Amplitude, yea, this very Doctrine declared to be 7< the Law of this Kingdom, and that by two express Acts of Parliament. And can you think the Two Houses were not in earnest when they made this Declaration? Surely had they not been so, they had been very ridiculous to jest with all our Laws and Liberties * had they not been, I lay, verily persuaded of the Truth of this Doctrine by Law, as well as by Scripture. So that I hope you must now be forced to confess, that even our own Representatives have solemnly renounced, for themselves and the whole Nation, all Right of Resistance, so much as defensive, against those commissioned by the King, upon any Pretence or Occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings, or those commissioned by them, (no, not if they never so much abuse their Power) but the old Primitive Artillery of Preces and Lacbrynue.

F. As for what you have more than once said, that this Doctrine of Re^ fistance, if carried home, always ends in the Deposition and Murder of the King-, tho' it hath I grant sometimes happened, yet that has not been always so, but most often to the contrary as appears by those Resistances that were made in the Reigns of King Richard Lhenry HI. Edward I. and divers Times in Edward and Richard lid's Reigns, before Things were driven to that Extremity, as they afterwards were. And as I will not justify the Deposition of those Princes, tho' done by Parliament, yet will I not absolutely condemn them; since no Act of Parliament hath, as I know, ever done it: And tho' it is true, all the Proceedings in Parliament against Edward. II, are taken off the Rolls, yet was it not done by Order of Parliament, but by Richard II. alone, when he by his exorbitant Courses feared to be served after the fame Manner. But that there was in those Times some Ancient Law extant, which was also destroyed by that King, appears by that remarkable Declaration of the Lords and Commons in Parliament, sent by way of Message to the King (then wilfully absenting himself from the Parliament) by the Duke of Glocester his Uncle, and the Bishop of E/y, who lure were too great to tell so notorious a Lye. The Speech you will find at large ir\Knighton, beginning thus, Do-mine Rex; and after many Petitions, and good Advices, at last thus concludes, 0which I shall give you in 'Latin, —r Sed & uiium aliud de animo nostro fuperest nob is ex pane Populi vestrivobis intimare, habent enim ex antiquo Status & de fafto non longe retroaSk temporibut experienter quoddolendum est babito,fi Rex maligno Confilio quocunque, vel inepta contumacia aut comemptuy feu protervavoluntate singulari, aut quovis modo irregulari fe alienaverit a Populo fuo, nee voluerit per jura Regni, C Statuta,& laudabiles Ordinationes cum falubri Corisilio Dominorum, & Procerum Regni, gubernari, & regulari, fedcaptiofe in fuis infanU Confiliis propriam voluntatem fuam singular em proterve cxercere, tune licit urn est its cumcommuni affenfu Populi Regni, ipfum Regem de Regali folio, abrogare Cpropinquiorem aliquem destirpe Regisloco ejus in Regni folio fublimare.

From whence yon may observe, that the Lords here relate to an Ancient Statute or Law then in being, tho' the Execution of it on the Person of his great Grandfather Edward II. was but of Times not long passed; and that King Richard might as well destroy the Record of that Law, being not then commonly known, or in private Men's Hands, as well as he did divers other Records •, as appears in the 24th Article against this King, wherein it is set forth, "That the said King had caused the Rolls pf the Records touching the State "and Government of this Kingdom to be defaced and razed, to the great Preju"dice of his People, and the Difinherison of the said Realm,fife. So that not" thing is more certain, than that the Two Houses of Parliament, at that Time, did look upon it as their undoubted Right to depose the King in case he violated the fundamental Laws and Constitutions of the Kingdom- Tho' how this could consist with that Power which the King then exercised, of calling and dissolving Parliaments at his Pleasure, I do not understand, since it can never be supposed that a King, whilst in full Power, would permit a Parliament, called in his Name, to sit, to depose himself for evil Government.

As for the War made by the Two Houses against King Charles. L I shall not undertake to "justify it, for the Reasons already given j as'also because

it

it was not a War undertaken by the general Consent of the whole Kingdom, but carried on chiefly by the Puritan or Presbyterian Party : For tho' the City of London, and many other great Towns were for the Parliament •, yet it is also certain, that the major Part of the Nobility and Gentry of England fought for the King, and were ib considerable a Number, as to make an Anti-Parliament at Oxford; so that this War could never have happened, had not the King

Srted with the Power of diflblving of" the Parliament out of his Hands. Much s will I justify the Murder of this King, or of any others above-mentioned, as being no necessary Consequences of that Resistance I only allow for Lawful,u/.z. That of the whole or major Part of the Nation. Nor were Edward II. or Richard II. put to Death by any Act or Order of Parliament, but were murthered in Prison j and the Murderers of Edward II. were afterwards attainted by Act of Parliament and executed as they deserved. But as for rhe Murder of King Charles I. it is not to be taken into this Account, it being not done by the Authority of the Lords and Commons in Parliament, but by a Factious Rump or.Fag-End of the House of Commons, who fate by the Power of the Army •, after far the majorPart of the Members who were for the King were shut out of Doors, and the Lords voted useless and dangerous.

M. I confess you have made as good an Apology for these Actions as the Matter will bear; but that neither of the Two Houses can at this Day have any coercive Power over the King, or to call him to an Account for any thing he has done, appears by the express Declaration of both Houses in the Statute of the 12th of Charles II. as also in those but now cited, in which they utterly disclaim all making War, whether offensive or defensive, against his Majesty $ much less can he be subject to any other Coercive or Vindictive Power, or ought any ways to be resitted by private Persons: Therefore supposing I should grant fas I do notJ that the Parliaments had formerly a Power of deposing of their Kings, or that the Clergy, Nobility and People had also a Right of taking up Arms against the King in Case of notorious Tyranny, and Misgovernment -, yet is all such Resistance exprefly renounced, and declared unlawful by the Oath and Declarations now cited. So that tho' in 'the dark Times of Popery, such Resistance might be counted lawful, not only by the Laity, but also by the Bishops and Clergy, who ought to have taught the People better Doctrine •, yet I think it had been much better for the Nation to have endured the worst that could have happened from the Tyranny of Kings, than to have tranigress'd the Rules of the Gospel, and the constant Doctrine of" the Primitive Church by Resistance and Rebellion against the Supream Power of the Nation.

F. 1 shall not now maintain that the Two Houses of Parliament have any Authority at this Day to depose the King, or levy a War against him, upon any Account ; yet that they have still a Power to judge of the King's Actions, whether consonant to Law or not, and whether he has not broke the Fundamental Constitutions of the Kingdom , rs-no where given up, as I know of: But that Resistance in some Cafes is not contrary to the Doctrine of the Gospel, I have already proved, and that it was not directly contrary to the Laws of the Land before these Statutes, you do partly grant. But since the main Strength of your Cause, lies in this Oath appointed by these Acts of" Parliament, therefote if I can give a satisfactory Account of the true Meaning and Sense -of these Acts, to be otherwise than you suppose, I hope you will grant that Resistance fnay still be lawfully made by the whole Body of the People in the Cases I have now put, against any Persons, who under Colour and Pretence of the King's Commission should violently assault their Persons in the free Exercise of their Religion, as itisbyLaw established, or should go about to invade their just 'Liberties and Properties, which the Fundamental Laws of England have Conferred upon every Free-born Subject of it.

And in order to the clearer Proof of this, I shall make use of this Method j I shall fiist explain the Terms of this Declaration, and then I shall proceed to mew you that even in a legal Sense all defensive Arms, or Resistance of the Kings Person in some Cases, or of those commissioned by him, is not forbidden, nor intended to be forbid by these Statutes and Declarations: First then, by taking Arms against the King, is certainly meant no more than . making War against the King, according to the Statute of the Twenty fifth ot' Edvxrrd III. which de

3 clares

clares making War against the King to be Treason 5 and this is unlawful upon any Pretence whatsoever. Secondly , The Clause , by his Authority against his Person, is only to be understood of the King's Legpl Authority 5 and by his Person, is meant his Natural and Politick Person, when acting together for the fame Ends, as I (hall shew you by and by. So that both these Statutes are but Declaratory of the Ancient Common-Law of England against taking up Arms, and making War against the King, and do not (in my Opinion) introduce any new Law concerning this Matter : So that whatever was Treason by the Statute" of the 2*5 th of Edward the Third is Treason by these Statutes, and no more; viz. all making up Arms, or actual making War against the King in order to kill, depose, or imprison him, as Sir Edward Coke shews us in his Third Insiitut. in his Notes upon this Statute •, yet notwithstanding, after this Statute of the 2jth of Edward the Third, the Clergy, Nobility, and People ofEngland assembled in Parliament, did suppose it still lawful to take up Arms against those illegally commissioned by *he King, in case of notorious Misgovernment and Breach of the Fundamental Laws of the Nation; as appears by that general Resistance made by Reason of the evil Government of the Duke of Ireland, and those concerned with him, in the nth of Richard the Second 5 which, as I have already proved, was allowed for lawful by Act of Parliament, and consequently by the King's own Consent, without which it could never have been so declared. The like I may say for that Resistance which y,i Graft*. was made in King Henry the Sixth's Reign, by RichardDuke of Tork, and the Earls chronicle, and Barons of his Party, against the Evil Government of the Qiieen, and the Duke 6 2 7of Somerset, who governed all Affairs in an Arbitrary and yet unsuccessful Manner, by Reason of the Easiness and Weakness of King Henry. But though this Resistance was also approved of in the next Parliament of the 33d Yeat of this King, yet I shall not so much insist upon it, because I know you will alledge, that this was made by the Lawful Heir of the Crown against an Usurper, since the Crown was not long after adjudged to be his Right, though King Henry was allowed to wear it during his Life: Yet however, it shews the Opinion of the Clergy, Nobility, and People of England it that Time, concerning the Lawfulness of such Resistance, before this Declaration of the Estates of the Kingdom, concerning the Legality of the Duke of York's Title, was made in the Parliament above-mentioned.

Thirdly, That the Parliament by these Statute of the 13 th of Charles the Second for the Militia, never intended thereby to enable, or leave it in the Power of that King, or his Successors, to make this Kingdom an absolute Despotick Monarchy instead of a limited one ; as they must have done, had they declared that the King, and those Commissioned by him, might do what they pleased with the Religion, Lives, Liberties, and Estates of the People of this Nation, and that it was Treason to resist in any Case whatsoever. Sure they could not but remember that apparent Commission of Sir Phelim Oneafs, in the YearS4i, whereby he pretended to be impowered to drive theEnglish Protestants out of Ireland, and to set up the Popish Religion in that Kingdom, and restore the Irish to their Estates; and sure divers of them could not be unmindful that this was to give away all Right of Self-Defence, in case any future King should by his own innate Tyrannical Temper, or the evil Counsel of wicked Men,' be persuaded to use Force upon the Persons of the Lords and Commons, either whilst they were actually sitting, or in their Passage to the Two Houses, since by this Act or Oath, if understood in your Sense, they must have barred themselves, and the whole Nation, of all Right of Self Defence, in any Case whatsoever, though of the greatest Extremity; and therefore I doubt not, but the Intent of this Parliament was to leave Things as they found them. And as it was absolutely unlawful for the People of this Nation to take up Arms against the King, so it is also as unlawful in him, or those Commissioned by him, to make War upon the People, or to disseize them by Force of their Religion, iust Rights, Liberties, or Estates: And if the King hath a Right to defend himself, and his Crown and Dignity, against Rebellion, so must the People of this Nation have a Right likewise to defend themselves against Arbitrary Power, in case of an Invasion of any of the Fundamental Rights above-mentioned;or else all Bounds between a Limited and Despotick Power will be quite taken away, and the King may make himself as absolute as the King of .France or Great Turk whenever he pleases.


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M. I will not dispute with you about Hare Matter of Fact, or that a prevailing

Faction might not in turbulent Times, and during the Reigns of weak and ill-ad-.

vised Princes, take upon them by Force of Arms, to remove Evil Councellors, and to put the Government of the Kingdom in what Hands they pleased, and then procure Acts of Parliament to indemnify themselves for fb doing: Yet I cannot allow that even such Acts could make it lawful to take up Arms against the King, or those Commissioned by him, upon any Pretence whatsoever. So that though I grant that the Intent of this Parliament of King Charles the Second, was not to make any new Law against Resistance, or taking up Arms against the King, yet was

. it their Design so to explain the Ancient Statute of the 25 th of Edward the Third, that none should for the Future doubt in the least, that all taking up Arms, or Resistance of the King, or those Commissioned ,by him, upon any Pretence whatsoever, was unlawful and treasonable: And for this we need go no farther than the very Words of these Declarations, which the Parliaments of the 12 th and 13 th of Q)arlcs the Second have made concerning this Matter: As .First, in the Statute of the 12th of Car. 2. Cap. 30, for attainting the Regicides, tne Two Houses of Parliament- expressly declare, " That by the Fundamental Laws of this Kingdom,

. " neither the Peers of this Realm, nor the Commons, nor both together in Parlia"ment, nor the People collectively, or representatively, nor any other Persons "whatsoever, ever had, hath, or ought to have any Coercive Power over the Per*' sons of the Kings of this Realm '\ Whereby not only all the Traiterous Examples of the Depositions, and Imprisonments of King Edward, and Richard the Second, are expressly condemned ; but also all taking Arms to force the King to redress our Grievances, whether he will or not. And farther, That all Arms, whether Offensive or Defensive, are expressly forbid , pray mind that Clause »in the Preamble to these Acts of the Militia I now mentioned; wherein that Parliament expressly renounces "all taking up Arms, as wellDefensive as Offensive against the King: And the Words of the Oath it self are yet more strict, "Thai it is not lawful, up"on any Pretence whatsoever, to take up Arms against the King ". Now can any Thing be plainer, than that all defensive Arms, tho' for our Religion, Lives, and Liberties, or whatsoever else you please, are expressly declared to be against the Fundamental Laws of this Kingdom.

But as for the dreadful Consequences of this Law, if never so strictly taken, they are not so bad as you are please to fancy: For as to your Instance of Sir PhelimOneass pretended Commission from King Char/es the First, you may be very well satisfied, that it was a notorious Piece ot Forgery ; since besides that good King's constant Denial of any such Commssion granted by him, Sir Thelim, when he came to suffer in Ireland, tor raising that horrid Rebellion, did voluntarily at the Gallows acknowledge, that he had forged it himself, by putting the Seal of an old Patent, which he had*by him, to that pretended Commission you now mention : Nor indeed can it ever enter into my Head, that any King Ihoulti grant a Commission to destroy or make War upon his People as long as they Continue in their Duty to him, though of a difterent Religion from himself j tho' perhaps he may think fit for some Reasons, to dilirm them, or deny them the publick Exercise of their Religion, or render them uncapable of bearing any Offices of publick Trust in the Kingdom. But if these should be lawful Causes of Resistance, why' the Papists should not be allowed it as well as the Protestants, I can see no Reason to the contrary. As for your other Instance, that the Parliament by renouncing all defensive Arms, must be supposed likewise to give up all Right of Self-defence, in Case the King,, or any Commissioned by him, should use any Violence to the Persons of the Lords and Commons assembled in Parliament, or in .going thither: This is so unlikely, and remote a Case, that it hardly comes under the Consideration of a bare Possibility. But, however, let the worst that can happen, I am very well satisfied, that the Parliament was then so thoroughly convinced of the Mischiefs had befallen this Nation by this Republican Doctrine of Resistance, having been thf Cause of the Destruction of the best constituted Church and Government in the World, as also of the Murder of one of the best Princes that ever Reigned, that they were, resolved rather to trust to the Coronation Oaths, and innate Goodness of our present and future Kings, than to suppose any War could be lawfully made against them, upon any Account whatsoever 5 which would have been expressly contrary not only to the Doctrine of the Church of England , but the known Laws of the Land. ■

 F I do

F. I do' not deny, but the Persons of" the Kings and Queens of this Realm are, and ought to be Sacred and Inviolable; and yet no Man will therefore fay, that they are irresistible too in all Cafes whatsoever. As if the King (for Example) should attempt to ravish Women, or rob, or murder Men upon the Highway, or in the Streets, as the Ancient Historians relate of Nero and Commodus the Emperors, and as is reported of the last King ofPortugal, and which was one of the Reasons of the Estates of the Kingdom removing him from the Government. And as our Henry the Vth. is related by our Historians to have robbed Men upon the Highway before he was King: So if he had gone about to continue the fame Frolick after he came to the Crown, I do believe his Person, and all those that robbed by his Commission, had not been irresistible •, nor would it have been Treason within the Statute of the 25 th of Edward the Hid. though he was then actually King, any more than it would have been Treason had the like happened when he was Prince, tho' he was exprefly within that Statute. And yet this would not have contradicted the Parliament s Declaration in the 12th of Car. the lid. That neither the Parliament nor the People have Coercive Power over the Persons of the Kings of this Realm; since by Coercive Power must be here understood, his being subject to the Penalties of the Law, or being called to an Account by any Jurisdiction. But there is a vast Difference between that, and Resistance for Self-Defence, since I may use this against the Violence of my Father in the State of Nature, as I have already proved j tho' I cannot justify the Punishment os my Father, or calling him to an Account as his Superior: Therefore 'tis only in the King's Politick Capacity, that he can be said to do no Wrong; since you see he may personally commit the greatest Crimes imaginable, tho' his Person is unpunishable for want of a Superior Power to call him to an Account: Yet 'tis not so with those who act by his Illegal Commissions or Commands since, having delegated the Executive Part of his Regal Power to his subordinate Ministers and Officers, 'tis they that are accountable and punishable too by the Law of the Land, in case they any ways trans gress or violate it by his illegal Commissions or Commands, as I shall prove more at large by and by. And as no War, properly so called, can be made against a single Person, but against a Man, as he is aided or assisted by many others ^ so this War against the King can be only interpreted of such Wars or Rebellions as are made against him in his politick Capacity, as he is King and Supreme Governor of the Realm, and the Commander of all the Militia thereof to legal Intents, and for the Defence thereof against Foreign or Domestick Enemies; nor was there any great Fear, according to the Ancient Legal Constitution of this Kingdom, that this could often fall out, or indeed be put in practice to any other Purpose by the Kings of this Realm, if we consider the Ancient Form of ordering the Forces or Militia, of this Kingdom.

For, in the first place, I desire you to observe, That by the Common Law df England, before these Acts of theMilitia, the King himself could not, but in Case of Invasion or Insurrection, levy or keep on foot any standing Forces in England, unless for Foreign Succours, which was usualty by Contract with some great Lord or other Person, or by Tenure, against the Scotch and Welsh and as for the Militia, it was never reduced into standing Troops, Companies, or Regiments, till the Spanish Invasion, as will appear by all Acts of Parliament in the Statutes at huge, where Acts for the Assize of" Arms were made only for Men to provide and have in Readiness such Horses and Arms, to shew them before the King's Commissioners when they should be required to take View of them ; 3 Regimented Militia^ being of no elder Date than'Queen Elizabeth. But King James the 1st. did, by Act of Parliament in the first Year of his Reign, repeal all former Acts for Assize of Arms, and never established any thing in lieu thereof: So it stood till King Charles the Ild.'s Time, that these new Acts for the Militia were made. And (to confirm this Point beyond all Dispute) in all the Quarrels between the King and the Barons, andTork and Lancaster, the Parliament often refused to meet until the Forces were disbanded that were raised upon those Occasions: Nor had any King standing Forces or Guards, till Henry the Vllth. when that of the Yeomen of the Guatd was settled by a special Act of Parliament: And what is most remarkable, the Commons in the Long Parliament of Charles the lid. did, by their Votes entred upon their Journals, declare and assert, That by Law noArmed force could be kept up in Time of He ace, except the Militia; and as for Foreign Succours, they were obliged to be carried immediately to the

N n n 2 Port Vid. Parliam.

Port of their Discharge, and were not to exceed one Month at farthest from the Time of their first *Muster. As for Castles and Forts within the Realm, they were almost all supplied and defended by Tenures j but for theMilitia of Old Time, it was in the Sheriffs of the Counties to make use thereof for the Execution of the Laws, and Defence of the Kingdom, except in the Cases aforesaid and it was Treason for any Subject to levy Soldiers, except by the King's Commission, and in the Cases aforesaid or fb much as to ride or go arm'd, as may appear by the Statute of 'Northampton, in the 2d of Edward the Uld. much less was it lawful for them to take up Arms, unless in their own Defence against illegal Violence, and in such manner as the Law directs; And it was one of the Articles that was adjudged to be Treason in Parliament against Mortimer, That he rode armed to Paliament, and threatned the Prelates and Peers that did any thing against his Will, and who advised the King to levy War upon his Subjects. See also Coke's 4th Institutes, Title Council-board, where the 4th Article against the Spencers is, "That thev falfly and maliciously had counselled deRudeMw-U TMe King t0 ra'^e Horse and Arms in Destruction of the good People, against ttwMMi. W" the Form of Magna Chart a j and so by their evil Counsel would have moved Art. 2." "War within the Realm, to the Destruction of Holy Church and of the People, "for their proper Quarrel: So that taking Arms by the King against his Subjects, and the Subjects against the King, was both alike against Law.

zdly, That taking Arms against the King, in Construction of Law, is Levying War.- But this can by no means extend to Defensive Arms in Maintenance of the Law, which is allowed and enjoined; and that nothing else was here meant, is plain, since by the subsequent Words in this Oath, it is restrained to the taking Arms by his Authority against his Person, or those Commissioned by him: Which shews, that nothing here is intended to be forbidden, but taking up Offensive Arms upon popular Pretences, without and against the Authority of the Law;which is further explained in another Test by the Authority of both Houses of Parliament.

Thirdly, 'Tis observable, this is but a Test upon some that were to come into Offices, and can by no means make any Change in the Ancient Law, which cannot be changed by Implication. Nor does this amount to so muchj the first Part of this Oath requiring only that the Party admitted into Office, ihall so declare and believe; and tho' the Second Clause calls it a Traiterous Position, yet it is restrained only to these Two Particulars, "That Arms may "not be taken up by the King's Authority against his Person, or those "Commissioned by him: Which can have reference to nothing but that Distinction taken up in the late Times of Civil War, when the Parliament pretended to take Arms, and grant Commissions in the Name of King and Parliament, by vertue of that Authority which they supposed he left with them at IVefiminjler: So that this Clause can by no means exclude any Arms made use of for legal Defence according to Law.

Fourthly and Lastly, Tho'the Words, against tfxse Comtnijfioned by him, may seem to extend the Matter further, and is mistaken by some, as if it required at least Passive Obedience to all Commissions of the King, tho' never so illegal 5, yet there is not the least Colour for it, since nothing is a Commission but the King's legal Command or Authority pursuant to some Law, and sot putting the same in Execution, which is the legal Definition of a Commission. And when this Test was first brought in to the Second Parliament of King Charles the lid. and that the Word Legal was offered to be added to the Bill j upon a long Debate it was only left nut, because it was declared by all the Lawyers in the House, seven by Sir Heneage finch, then the King's Sollicitor) and agreed to by the whole House, That it was clearly implied, and could bear no other Construction, but that all Illegal Commissions were null and void, and in no legal Sense could be called Commissions: So that taking up Arms in the Defence of the taw, and pursuant thereunto, cannot in any wise be called a taking Arms against the King's Person, or those Commissioned by him. And farther, that by the Words, in pursuance of such MilitaryCommiffions, are meant such as are warranted by that Act, and such as the King may issue hy his Royal Authority, which is bounded by Law, and consequently cannot grant any Commissions, but what are according to Law. So that if these Commissions are granted to Persons utterly disabled by Law to take them, as all are, that do not take the Test appointed by the Act ot

the

the 25th of King Charles II. Entituled, An Att to prevent tie Dangers that may arise from Popish Recusants: As also all Commissions to do any Illegal, A'iolent Action, are absolutely void, and consequently may be resisted; or else our M<igna Charta, with all the other Laws that establish Liberty and Property, as also our very Religion it self Established by Law, may be either undermined by the King's new dispensing Power, or else subverted by open Force •, and every Commission-Officer in a Red Coat, will be as Sacred and Irresistible as the King himself

But to conclude: That the Instances I have given, that the King's Commission may be abused to the Destruction of the Nation; nay, of the .whole Parliament, are not so unlikely and remote as you imagine; Pray let me put you in Mind, that as for that pretended Commission to Sir Phe/im Oneal; tho' it is true, it proved at last to be forged, yet was it not known to be so till long after; and therefore having all the Signs of a true Commission under the King's Great Seal, the poor Protestants in Ireland were to have had their Throats cut according to this Oath, before ever they could be satisfied whether it were true or not. But that a Popish King persecuting and destroying his Protestant Subjects only for Matters of Religion, is not so improbable a Thing as you would have it •, theFrench King's late Dragooning, Imprisoning, and sending to the Gallies all that refused to renounce Heresy, (as they call it,) and subscribe to the Articles of the Romish Religion, has given us but too lad and recent an Example: And how you can assure me, that the King acting upon these very Principles, and being governed by Jesuit Confessors, will never do the fame Things, I should be glad to receive some better Satisfaction than his bare Word to the contrary.

Nor yet is my other Instance of its being left accotding to your Doctrine in the King's Power, to make a violent Assault upon the Persons both of the Lords and Commons assembled in Parliament, whenever he pleased, without any Resistance whatsoever, so remote and improbable as you are pleased to make it; since you may find it still upon Record among the Articles exhibited in Parliament against Robert deVere, Duke of Ireland, RobertTresilian, Chief Justice, and Sir Nicholas Brembur, in the Parliament of the nth of Richard 11. (which I have already mentioned) the 15th Article of which was, ** That they by their raise Council VULRot.Purl "had caused the King to command the said Nicholas, being then Mayor of Lon- 11 *■

 don, suddenly to rise with a great Power to kill, and put to death the said **uiKmU' ** Lords-, (vie. Thomas Dukeof Glocejier, and the other Lords there named)

"and the Commons (viz. of the Parliament of the 10th of this "King) who were not of their Party and Conspiracy •, for the doing of which "Wickedness, the laid grand Traytors abovesaid, were Parties and Presents to the

* Destruction of the King and his Realm. So that if this Treason had not been discover'd, and that no private Persons might then resist those Commissioned by the King, it would have been Treason, according to your Principles, for the said Lords and Commons to have resisted those that were thus sent'to assault them, and take away their Lives ; and what hath once happened, 'tis not impossible but it may happen again. Therefore this is a Thing to be considered as a necessary Consequence of your Sense of this Oath. So that upon the whole Matter, and considering the late of Scene of Affairs, I durst leave it to the Judgment of any indifferent Foreigner, tho' a Papist, which was most likely, before the unexpected Coming of the Prince of Orange into this Kingdom, that the People should rise up in Arms, and expel the King from his Throne, or that he should by Virtue of the pretended Sense of this Oath, back'd by your Doctrine of Passive Obedience, have enslaved this Nation, and set up what Government and Religion he pleased.

M. I must confess you have given a. very cunning and specious Gloss upon the Words of this Oath, and Declaration of the Parliament of King Charles II. but whether it is legal or not, I very much doubt, since I nevet heard of it before; and I could have wish'd, that if they designed not to lay a Snare upon Men's Consciences in this great Point, that they vvould have been more clear in expressing all those Cases wherein it might be lawful for us to resist the King, or those Commissioned by him j as also who should judge, when the Kings Commissions are so illegal and violent as to require Resistance for if every private Subject may judge of the Legality, or Illegality of the King's Military Commissions, and can raise a Party strong enough to make Opposition against those that are Commis

3 fioned

stoned by them in the Execution of the King's Orders, a discontented" Faction may soon find a Pretence to raise another Rebellion, and Civil War, as dreadful as the former; and notwithstanding your great Care and Concern for the-King's Person, which you grant to be sicred and inviolable, could it long continue so? For if the King himself appeared at the Head of his Men, to command and encourage them in their Duty, it would be much worse, as long as the Matter,they took up Arms for, should be'by them accounted a Violation of the Laws- Thus we may remember, that though the Parliament of Forty One did pretend to take up Arms for Defence of the King's Person, and only to take away Evil Counsellorsyet did they for all that, order their Generals and . Officers to fight as much when the King was personally present, as at any other Place or Time; so that his Majesty's Person ( had not God thought fit to order it otherwise) might have been as well destroyed in the Battels of Edgehill,oiNaseby, as his great Grandfather King James III. ot Scotland, was in thatBattel against his Rebellious Subjects, Headed by his own Son. So that according to your Interpretation, instead of mending the Matter, this Parliament of King Charles II. had only left it far worse than they found it. For whereas the Long Parliament made themselves the sole Judges, and Redressers of the King's Violations of the Peoples Rights; now according to your Interpretation of this Oath, and Declaration of the Parliament of King Charles the Second, every private Man may not only judge of the King's Violation of the Law by his Military Commissions; but also make Resistance against them, whenever they think themselves able so to do. And then notwithstanding that Parliament's utter renouncing all Arms, whether offensive or defensive, to be raised by themselves against the King, they would have still left a Power in any Part of the People strong enough to make this Resistance which they had renounced for themselves, who are their Lawful Representatives. Thus for Example; supposing the last Civil War had begun upon the Account os raising of Ship-Money, which whether it was lawful, I will not now. dispute-, it was sufficient that all the Judges except Two, gave their Opinions for it •, and if any County in England strong enough to make an Insurrection, had rose in Arms upon the Levying of this Tax (as it has several times happened even about Taxes granted in Parliament) this (though small) yet being look'd upon against Law, must have engaged the whole Nation in a Civil War, and also endangered His Majesty's Person, in case he had appeared in the Field with those Men he had raised to subdue that Rebellion; so that I am still satisfied that it is far better to suffer a Mischief than an Inconvenience"; that is, it is better to trust to the King's Conscience and Discretion, what Commissions to grant, though sometimes perhaps they may chance to be illegal, than to leave it in the Power of the People to rise irr Rebellion, whenever they think such Commissions to violate their supposed, or pretended Liberties and Properties.

F. I see you will not argue against the Resistance of the King's Person, in case he should go about to Ravish, Rob, or Murder his People. But now you raise another Difficulty who shall judge, and consequently make this Resistance, against the King's Commissions, when executed by illegal Persons, or to illegal; and violent Ends. For if the People may judge for themselves of the Illegality: o£ such Commissions, a Rebellion may bq raised, and His Majesty's Person endangered, notwithstanding all the Provision the Parliament have made against it. But before I answer this Argument of yours, pray give me leave to ask you One. or Two Questions: Do you think the; King's late Declaration for the Dispensing Power, and. the Commissions granted thereupon, to be according to Law or not? ,

M. I must confess I think they are unlawful, yet it does not follow that they may be therefore resisted. ■ . . f. , -. } j>

F. I do not ask you that now; but only tell me whether ypu think the Bishops are obliged in Conscience to disperse that Declaration, or the Clergy to read it in their Churches ?' And whether those have done well who have refused to read it? '• ,

M.,l must tell you, I am so good a Protestant, and so true an Englishman, that I cannot allow the King that Power; and therefore I must grant that the Bishops did bravely, and like true Christian Bishops, to refuse to disperse it; and where it was dispersed, the Inferior Clergy have done very well not ro read it.




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F. Well then, notwithstanding all the dreadful Mischiefs proceeding from private Subjects judging of the Legality, or Illegality of the King's Declarations, and Commissions, or Commands j yet they may, it seems, not only judge whether they are lawful or not; but a Disobedience to them may not only be lawfully exercised, but is very commendable. Now what is this Disobedience to these Commands, but a Moral, or Civil Resistance of the King's Power in this Matter? And why may not such a Judgment be made by the People in as plain a Cafe, and a Resistance also follow thereupon against such violent illegal Commissions, (suppose to raise Money without Act of Parliament, or to Dragoon Men to go to Mass) since the Violence is more evident and apparent in • this Cafe upon Men's Persons, than in the other upon the bare Consciences of the Bishops and Clergy ? For the Force being more immediate and pressing upon their Persons and Estates, there is no other Means left but to resist it if they are able.

M. I can give you very good Reasons to satisfy you, why, tho' I grant private Subjects may judge of the Legality or Illegality of the King's Commissions, and also refuse to obey his Illegal Commands, and also that all pnblick Officers ought to take Care at their Peril how they act by, or excute such illegal Commissions; yet that it does not therefore follow that soch illegal Commissions or Orders though executed upon the whole Body of the People, may be resisted by them •, for all Limitation of the Royal Power being only voluntary, and proceeding from the meer Grace and Favour of our Kings, they are not compellable by Force, or resistable if they should impose their own Proclamations or Edicts upon us instead of Laws. For tho' I grant that the King hath no just, or le- ■SC.Jt.p.rj©. gal Authority to act against Law, and that if he knowingly put any Subject to & Death contrary to Law he is a Murderer •, and no Prince can have any such Prerogative , as to commit open downright Murders either in his own Person or by those who act by Commission from him j But what follows from hence? That they may resist or oppose them if they do: This I absolutely deny, because God and the Law have commanded us not to resist$ and I fee no Inconsistency between thole Two Propositions j That a King hath no Authority to act against Law, and yet that neither he, nor those commissioned by him though acting against Law, may be resisted. Both the Laws of God, and the Laws'of our Country, suppose these Two to be very consistent.

For notwithstanding the Possibility that Princes may thus abuse their Power, and transgress the Laws whereby they ought to govern, yet they also command Subjects in no Case to resist; and it is not sufficient to justify Resistance if Princes do what they have no just Authority ro do, unless we have also a just Authority to relist. He who exceeds the just Bounds of his Authority is liable to be called to an Account for it j but he is accountable only to those who have a Superior Authority to call him to an Account. No Power whatsoever is accountable to an Inferior; for this is a Contradiction to the very Notion of Power, and destructive of all Order and Civil Government. Inferior Magistrates are on all Hands acknowledged to be liable to give an Account of the Abuse of their Power, but to whom must they give an Account? Not to their Inferiors, nor to the People whom they are to govern •, but to Superior Magistrates, or to the Sovereign Prince who governs all. Thus the Sovereign Prince may exceed his Authority, and is accountable sor it to a Superior Power; but * because he hath no Superior Power on Earth, he cannot be resisted, by his own Subjects, but must be reserved to the Judgment of God who alone is the King of Kings.

jr. In the first Place I deny (and I have sufficiently proved the contrary) that all Limitation of Royal Power proceeded at first from the meer Grace -and Favour of our Kings •, since the Crown of England has been from its first Institution limited by Laws, and the People have likewise always enjoyed a 'Right and Property in their Lives, Liberties, and Estates by the fame Laws: But tho' you and I are thus far agreed, that the King hath no Just and Legal Authority to act against Law, and that if he put any Man to Death, or take away his Estate contrary toit, it is Murder and Robbery ~i and likewise that the Subjects may be capable of judging concerning such Illegal Commands : But you will not allow, that if such a limited Monarch should send his Mercenary Forces to take away our Lives or Estates, or to Dragoon us till we




will own our selves of his Religion, that those Instruments of his Tyranny may be resisted; or that I have brought any Reason for it. Whereas if you had but attended better to my Discourse at our Third and Fourth Meetings, you might have remembred that I plainly enough proved to you, that God hath not given Princes, nor those commissioned by them, any Authority to Murder or . enflave their Subjects; and your self then granted,That every, Man hath Power

R'p;59' to defend his Life against him who hath no Authority to take it away • which holds more strongly in our Constitution ; where if the King give a Man a Commission to act contrary to the Law of the Land, it is altogether void^ and the People may as well justify their Resistance of those Officers or Solr diers who should come to dragoon or persecute them, for professing the Religion established by Law, as if he had sent them downright' to cut their Throats. And this being their Right by the Laws of God and Nature, whether God hath taken away this Right by an express Precept in the holy Scripture, I also examined at those Meetings. But whether any Municipal Law of the Land hath restrained us from it, I have also now considered and proved it contrary to the true Intent and Meaning ot" these Acts concerning the Militia. And therefore to fay, that it is not sufficient to justify Resistance, if Princes do, or command what they have no legal Authority for, unless we can also shew an Authority to resist, is a Mistake; if by Authority you mean an express Civil Law for it; because such Resistance in absolute Monarchies is justifiable by that which is Prior to all Civil Laws, the Right of Self-Defence, or Preservation : And so likewise in limited Kingdoms, there is the fame Necessity of defensive Arms upon a general Breach, or Violation of any fundamental Constitution of the Government, since it cannot be kept or maintained without such Resistance be allowed.

So that if the King hath no Authority to act contrary to Law, he cannot sure delegate that to others, which he had not in himself; and consequently luch Commissiions to persecute, or murder Men contrary to Law, being in themselves void, the Persons that execute them being no Officers, may be justly resisted, and the Resistance of such an illegal Act doth not at all derogate from his Sovereignty as King, since (as I told you before) that is limited only to the Performance of Legal Acts, and extends not to Illegal Orders or Commands. And as. for the rest of the Reasons you give against this Resistance, viz. because he who exceeds the just Bounds of his Authority, is liable to be called to an Account for it, only by those who have a Superior Authority to do it ; whereas no Power whatsoever is accountable to an Inferior: You do but impose upon me and your self the same Falacy which you have so often made use off in making being accountable all one with irresistible, which, are vastly different j ■and therefore your Conclusion is as false, that because the Sovereign Prince may exceed his Authority, and is only acountable for it to God, that therefore he cannot be resisted by his own Subjects ; for he may be resisted, and yet be still unaccountable; those Two differing as much as Self-Defence does from Punishment, as I have more than once told you. M. I cannot rest satisfied with this Reply ; for though I so far agree with S.C.R. you, that an Act without a Legal Authority carries no Obligation at all along p.i92ji?3. with it, and therefore cannot oblige the Subject to Obedience. Now this is true, if by Obedience you mean an active Obedience •, for I am not bound to do an ill Thing, or an Illegal Action, because my Prince commands me. But if you mean Passive Obedience, it is as manifestly false ; for I am bound to obey, that is, not to resist my Prince when he offers me the most unjust Or illegal Violence. Nay it is very false and absurd to fay, that every Illegal is an Inauthoritative Act, which carries no Obligation with it. This is contrary to the Practice of all Human Judicatures, and the daily Experience of Men, who suffer in, their Lives, Bodies or Estates, by an unjust or illegal Sentence. Every Judgment contrary to the true Meaning of the Law is in . that Sense illegal; and yet such illegal Judgments have their Authority and Obligation, till they are rescinded by some higher Authority. This is the true Reason of Appeals from Inferior to Superior Courts, to rectify Illegal Proceedings, and reverse illegal Judgments, which supposes that such illegal Acts have Authority till they are made null and vojd by a higher Power; and if the higher Powers, from whence lies no Appeal, confirm and ratify an unjust and illegal Sentence, it carries so much Authority and Obligation




gatioa with it, that the Injured Person hath rio Redress, but must patiently submit and thus it must necessarily be, or there can be no End of Disputes, nor any Order or Government observed in Human Societies.

And this is a plain Demonstration, that though the Law be the Rule according to which Princes ought to exercise their Authority and Power ; yet the Authorityis not in the Laws, but in the Persons that Execute them : For otherwise, why is not a Sentence pronounced according to Law by a private Person, of as much Authority as a Sentence pronounced by a Judge ? Or how doth an Illegal Sentence

£ronounced by a Judge come to have any Authority ? For a Sentence contrary to aw cannot have the Authority of the Law. And why is a Legal, or Illegal Sentence reversible, and alterable, when pronounced by one Judge, and irreversible and unalterable, when pronounced by another: For the Law is the fame, and the Sentence is the fame, either according to Law, or against it, whoever the Judge be: But indeed the Authority of the Person is not the fame, and that makes the Difference. So that there is an Authority in Persons, in some Sense distinct from the Authority of Laws, rtay Superior to it; for there is such an Authority, as though it cannot make an Illegal Act Legal; yet it can, and often doth make an Illegal Act binding and obligatory to the Subjects, when pronounced by a competent Judge.

F. I think, notwithstanding all you have now said, your Distinction of a Supreme Authority in Persons, above and distinct from the Authority of Laws, will prove a meer Notion •, for you grant that the King hath no Just or Legal Authority to act against Law, and that if he put any Man to Death contrary to it, it is downright Murder •, but you will not allow, that if the King should thus murder never so many Thousands, either He, or those Instruments of Tyranny may be resisted •, and therefore you would fain top upon me your old Distinction of an Active and Passive Obedience : The former of which I very well understand, but as sor the latter, I have long since proved, that it is so far from being any Obedience, that it is indeed downright Disobedience, or a Refusal to do that which the Prince commands; so that truly your self have taught me to distinguish between the King's Personal Authority, and his Legal; for otherwise, why are you not as mnch obliged to yield an Active Obedience to the King's Personal Illegal Commissions ot Commands, as to his Legal Ones, if there were no Difference between them? So then, all the Difference between us lies in the Measure of the Disobedi- 1 ence^ you maintaining, that it is sufficient not to yield Obedience to such Illegal i Commissions and Commands ; and I, that besides this Denial of Obedience, (if it be in a fundamental Point, and that which generally concerns the whole Body of the Kingdom) that they may not only be disobeyed but resisted too, if forced upon us with Violence and therefore all that you have said to prove that the Authority to which we are. bound to submit, consists not in the Laws, but in the Persons, tho' acting contrary to Law is even according to your own way of Reasoning altogether unconclufive.

And farther, when you fay, that it is false and absurd to affirm, that every Illegal is an Authoritative Act which carries no Obligation with it; I shall prove, that this Absurdity lies wholly on your Side. For i. Legal and Authoritative, are * R s all one in our Law •, for that which is not Legal carries no Authority along with it} t'Si l6iso that Illegal Authority is in plain English, unlawful lawful Power. Nor had K. Charles I. any such extravagant Notion of his Royal Authority, (who certainly understood his own Power better than you or I,) when he owns in his Declaration to the Long Parliament, Dated from Newmarket, 1641, That the Law is the Measure os his Power; which is as full a Concession of the Thing I affirm as Words can express; for if the Law be the Measure of it, then his Royal Power, or Authority (which is all one) is Limited by it. For the Measure of any Thing is the Limits or Bounds of the Thing Limited ; and when it exceeds those Bounds it is an Illegal, and c6nsequently an Unauthoritative Act, which carries no Obligation either Active or Passive along with it. So likewise in the said King's Answer to both Houses concerning the Militia, speaking of the Men by them named to him to be Commissioners for it ; He thus replyed, If more tower Jhall be taught fit to be granted to them than by haw is inthe Crown it self his Majesty holds it reasonable, that the same be by some haw first vested in him, with Power totransfer it to those Persons, &c In which Paflage it is granted, that

0 0 0 all

all the Power or Authority of the Crown concerning the Militia is by or from the Law, and that the King hath no more Authority than what is vested in him by the Law of the Land.

i. Your Argument from the Practice of Human Judicatures is also very falfacious •, for you argue from the bare Abuse of a Trust, or Commission, with the Execution of which all Judges and Officers must be intrusted, to that which is quite of another Nature, (viz.) When the Person intrusted acts directly contrrry to his Commission, or without any Commission at all-, And therefore you are quite out in your Law, when you tell me, that an Absolute Illegal Judgment is Valid till it be reversed ; sot if it be apparently contrary to the known Forms of Law, and Practice of the Kingdom, it is so far from being Valid, that though it be put in Execution, it would be look'd upon as Null, and done without any Authority at all: As suppose the King in Person, or any Inferior Judge, should condemn a Man to die, either contrary to the Verdict of his Jury, or without any Jury at all this is so far from being Authoritative, or Valid, that such a Judgment is Void in it sols, and those are guilty of Murder, who execute it, and it will need no Writ of Error to reverse it. But I suppose by Illegal Judgments, you mean such Judgments which have v some Error in them, either in Matter of Law, or Form, for which they may

be reversed. I grant, if these sliould not be look'd upon as Valid, and hold good till they are reversed in a higher Court, there could not be any Judgment given at all, since all Human Judicatories whatsoever are subject to Errors and Mistakes; and there is sure a great deal of Difference between such Actions as are done by that Authority which the Law entrusts them with, though not duly exercised, and those violent and illegal Acts, which a Prince, when he persecutes, and enslaves his Subjects, performs by his wicked Instruments, contrary to all Divine and Human Laws: So that the Validity of such an Erroneous Judgment, is not from the Judge's Personal Authority, above the Law, nor from his Mistake or Ignorance of the Law, but from that high Credit and Authority which the Law hath given to all Courts and Judicial Proceedings; which if they are done in due Form, are to be taken for Law, however unjust, and must be presumed to be free from Error till they are reversed in some higher Court. S.c. R. p. M. But if you please better to consider of it, you will find a Necessity qf own*$6. & dan- jng a Supreme Power in the King beyond all Appeal, or Resistance, and that there must be a Personal Authority in him, Antecedent and Superior to all Civil Lawsj for there can be no Laws without a Law-maker •, and there can be no Law-maker unless there be one or more Persons invested with the Power of Government; of which, making Laws is one principal Branch for a Law is nothing else but the publick and declared Will and Command of the Law-makers, whether they be a Sovereign Prince, or the People. ibidem, 197. And hence it necessarily follows, that a Sovereign Prince does not receive his & deinde. Authority from the Laws, but Laws receive their Authority from him: And I must be still of the fame Opinion, notwithstanding BraSons Words, which you before quoted, Lexfacit Regem, the Law makes the King •, by which I cannot believe that that great Lawyer meant that the King received the Sovereign Power from the Law ;for the Law hath no Authority, nor can give any, but what it receives from the King ; and then it is a wonderful Riddle, how the King should receive his Authority from the Law. And therefore I must stick to my former Interpretation, that when he fays the Law makes the King, that is, it distinguisheth him from a Tyrant % as appears from the Reason he gives for it, /. e. Non eft emm Rex ubidominatur voluntas, V? non hex, he is no King that Governs by his Arbitrary Will, and not by Law -,not that he is no Sovereign Prince, but he is a Tyrant and not a King.

And hence ■ it as evidently follows, that the Being of Sovereign Power is independent on Laws-, that is, as a Sovereign Prince doth not receive his Sovereign Power from the Law, so should he violate the Laws by which he is bound to govern, yet he is not to be resisted, much less doth he forfeit his Power. Tis true he breaks his Faith to God and his Country, but he is a Sovereign Prince still.' And therefore it plainly appears that every Illegal Act the King doth, »or Illegal Commission that he grants, is not an

Inauthoinauthoritative Act, or Commission, but lays on the Subject'an Obligation to yield, if not Active, yet a Passive Obedience. And in the King's most Illegal Acts, tho' they have not the Authority of Laws, yet they have the-Authority of Sovereign Power, which is irresistible, and unaccountable. la a word, it doth not become any Man, who can think three Consequences off, to talk of the Authority of Laws in Derogation to the Authority of Sovereign Power. The Sovereign Power made the Laws, and can repeal them, and dispense with them, and make new Laws, The only Power and Authority of the Laws is in the Power that can make and execute Laws ■,Sovereign Power is inseparable from the Person of a Sovereign Prince, tho' the Exercise of it may be regulated by Laws; and tho' the Prince doth Very ill who having consented to such a Regulation, breaks the Laws, yet when he acts contrary to Law, such Acts carry a Sovereign and irresistible Authority with them, while he continues a Sovereign Prince.

F. I am very well satisfy'd, notwithstanding all you have hitherto laid, that the Government of England owns no such thing as this Arbitrary Power with which you would invest the King •, since I have already proved at our Fifth Meeting, that the King is not the sole Legislator, and consequently not the sole or Supreme Sovereign Power. So likewise our Law doth as little understand any liich thing as a Personal Authority in the King, antecedent and superior t9 all Laws. For since God hath now left off making Kings by his own special Appointment, as he did among the Jews, every King must either be so by the Law or Culton of that Country, or else a bare Possession of the Throne is sufficient to make him so ; and then every Usurper hath as much Right to a Crown as the most lawful Prince •, and Oliver Cromwell was as Rightful a Prince as King Charles II. It is true, the first King of any Race could not be invested with the Crown by the lame Law as his Successors are, that is, by an Hereditary Proximity of Blood; yec such a King, whenever he began to be so, could have no Legal Right, without the Election, Recognition, or Consent of the People. And as for an Hereditary Right, that is but a Right by the Law of the Land, or general Consent of the People, (testify'd by an uninterrupted Custom) to entail the Crown on such a Family; so that in either Case they are Kings by Law. And therefore I conceive it can be only in this Sense, that Bratfon fays, Lcxfacit Regcm, i. e. The Law of the Kingdom makes the King ; which more plainly appears, by what immediately follows, attribuat igitur Rex Legi, quod Lex attribuit ei, viz. Dominationem, &Potejlatem; in which Words nothing seems more plain, than that the King ought to yield the like Dominion and Power to -the Law, as the Law had given him before; or else how could BraBon call the Law (in the Place I have already cited,) the King's superior? And if the King's Title to the Crown were not by Law, How came it to pass that the Braces, for Example, had a better Title to the Crown of Scotland than the Baliols? But only that the Laws of Scotland, that is, the Consent of the States of that Kingdom, made them so; for otherwise any Man that looks upon the Pedigree of both those Families, will see, that Baliol, according to our Rules of Descent, was the nearer of Blood to the last King David than Bruce, and was so adjudged, upon a solemn Hearing, by osr King Edward I. in Parliament. And as for William, whom you call the Conqueror, under whom all our present Kings do claim at this Day, he could have no just Right or Title to the Crown of England by Conquest, but by the Election, or Submission of the People, declared by them at his Coronation. And therefore that Law by which he was made King must be precedent, or at least concurrent with his being so; and upon whatever Terms or Condititions he then accepted it, his Successors are bound both by the Laws of God and Man to observe them. And therefore whatever you have built upon, or would infer from these Principles, is of no Force.' And if the King be the sole Sovereign Power, that makes the Laws, repeals them, and dispenses with them when he pleases; I would be glad to know upon what Grounds so many of the Bishops and Clergy refused to read the King's Declaration of Indulgence? since certainly if he alone made the Laws, he also could dispense with tberri. But I shall say no more of these Points now, because they are not directly to the Matter in hand.


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M. As for what you fay concerning the King's not being the sole Supreme Legislative Power, I confess you and I have discoursed long upon that Point •, and if I were thoroughly satisfy'd of it, I could much easier assent to what you have laid as also if you could prove to me, that the King received his Power from the People, and not from God, the Matter would be yet plainer; for then it would evidently appear, that the People might have reserved to themselves such a Right of Resistance as you now maintain ; but that they never could have such a Power in England, from the Constitution of this Monarchy, I need go no farther than your own Instance ofWilliam the Conqueror, who owed all his Right to this Kingdom to the Power of the Sword, and not to' any Hereditary Right, much less Election, or Confirmation of the People; as I think Dr. Brady hath proved beyond dispute; in his Learned Answer to Argumentum Antinormanicum. So that since we owe all the Rights and Liberties we enjoyv to the gracious Concessions of our Kings of this Norman Race, we ought not in' Reason or Gratitude to resist them, if they should sometimes encroach upon what we take to be part of those Liberties so granted 5 no, not if the King (who derives an Indefeasible Right to the Crown from the Title of the first Conqueror) should go about to take away all those Liberties, nay, our very Religion and Property too from us.

But I have not Time to pursue this Argument further now, and therefore shall leave it to another Opportunity.

F. As for what you have now said concerning William the First's having no Right to the Crown of this Kingdom, but what he owed to his Sword, is false in Matter of Fact it being more than that Prince himself ever asserted or pretended to* And in the next place, As for your Doctor's proving him an Absolute Conqueror over the English Nation j supposing he had done it, (which yet I positively deny) yet will not this serve to do the Business for which the Doctor urges it, viz. to set up an Arbitrary, Irresistible Power in that King, and all his Successors •, but may be urged against him to a quite contrary Purpose, as I shall shew you more at large, whenever you please to discourse farther upon that Subject. And as for all those things we call Legal, our Rights and Privileges, which you lay were wholly granted us by the Charters of his Successors, I have already proved that to be false in Matter of Fact at our Fifth Meeting, where I shewed you that the Englijh Nation had the same Liberties, (as to their Persons and Properties fn their Estates, before your pretended Conquest) as they enjoyed afterwards •, and that Magna Charta was but the Recital and Confirmation of our Ancient English Laws, as Mat.Paris affirms in the Place I here formerly cited. But admitting these Liberties and Privileges you mention had been owing to the Favour and Bounty of former Kings, yet can I see no Rebellion or Ingratitude the People of this Nation are guilty of, if they keep and defend them now they have them ; but would rather betray a servile, base Spirit, if we part with them : For since it is a Maxim in Law concerning all Grants, as well from the Crown, as private Persons, that they ought so to enure ut Res magts valeat, quam pereat, i. e. that the Parties to whom the Grant is made, may not lose the Benefit of it, whenever the Grantor pleases ; therefore it is also a Rule in such Grants, that they are still to be interpreted in favour of the Grantee against the Grantor -, and also, that the Grantee shall not be left without some Means or Remedy of keeping and defending his Right against the Grantor whenever he goes about to take it away. Nor do I know any Exception there is for the King's Grants, more than those of private Subjects •, since both Brail. \i c. 8. BraBon and Fleta tell us, non debet ejj'e Rege major inExhibitione Juris, minimus c.e^7.' X" Mtem ejsedebet in judicio suscipiendofi petatur ( which I take to be the true Reading of that Place, and not:peccat,parcat, or pet at, as divers Copies have it.) That is, as the King is the greatest in distributing of Right or Law to his Subjects, so ought he to be no more than the least of them in submitting to right Judgment, if he be petitioned to, and that it be required of him, (either of which Senses this Word will well bear); but if he absolutely refuses to do this, and will take away their Rights and Liberties by Force, and will deny them the Benefit of the Laws, What other Remedy is there left them but a general Resistance ? Since otherwise the King may alter the Government, and takeaway all our Legal Rights and Liberties whenever he pleases.


M. I confess, this Dispute concerning the Resistance os thole commissioned by the King, and the King's being the sole Legislator and Original os all the CivilLiberties and Privileges we now enjoy, hath carried us from the main Points hi this Question: Pray therefore, satisfy me (if you can) those great Objections I have made: First, how this Resistance can consist with that Sacredness and Inviolablenefs which you your self suppose to be due 'to the King's Person: For either this Resistance, in case of an Invasion of our Civil Rights, must be made even when the King's Person is actually present, to back those illegal Commissions; or it must be forborn, out of that due Reverence and Care of his Royal Person which the Law enjoins. If the former, the King's Person is in Danger to be destroyed, whenever a factious Party is strong enough to rise in Arms, and oppose the King's Commissions, upon pretence of their being against Law: But if, on the other fide, this Resistance is not allowable when the King's Person is present, then all such Resistance will signify nothing j * since as soon as ever the King in Person shall appear in the Field to back his Commissions, all your Defensive Arms (as you call them ) must be immediately laid down, unless they mean to destroy the Sacred Person of the King: So that take it either way, all Resistance is either illegal, or else unpracticable. Secondly, I can as little understand (as I told you before) how the Two Houses of-Parliamerit should renounce all taking up Arms, as well Offensive as Defensive, against the King for themselves, and yet should leave a Power in the diffusive Body os the - Nation, nay, in any Part thereof, strong enough to make a Rebellion, which they thought unlawful to exercise themselves: Lastly, By what Legal Authority the People, or any Part of it, can justify the taking up even Defensive Arms; since you your self acknowledge, that no Arms can be taken up regularly, but by the King's Authority: And you have also disclaimed all taking up of Arms by his Authority against his Person, or against those Commissioned by virtue of such Authority \ tho' I confess, you except the Cases of Self-defence, and in Maintenance of the Law yet I cannot find those Exceptions allowed of in any of our Law-Books, either Ancient or Modern.

F. I hope to give you such Satisfaction to every one of these Objections you have made, as may serve any indifferent Person. Therefore, as to the first, concerning the Sacredness of the King's Person, which I allow of as well as you, we must, in the first place, distinguish between such Commissions as the King issues by Colour of Law, when the Judges, for Example, had given their Opinions in the Case of Ship-Money: For they being the sole Interpreters of the Law in the Intervals of Parliament, I do acknowledge that their Determinations are not to be opposed by Force, but legally reversed when the next Parliament meetsand they •are then to answer in Parliament for their false Interpretations and Opinions, as Tresilian and his Companions did in the i ith of Richard the lid. and as the Ten Judges did upon the Two Houses Declaration against Ship-Money, arid their Impeachment thereupon. Thus, though Mr. Hampden refused to pay Ship-Money when demanded of him, and rather chose to lie in Prison than pay it •, yet it had been downright Rebellion, in cafe any Resistance had been made by him against the levying of it: But had this Tax been laid by the King's sole Power without fiich Colour of Law, I doubt not but Resistance might have been made even against those that were Commissioned by him to levy it; and if any one Town or Hundred were not strong enough to seize such Officers as presumed thus to levy it against Law, the Sheriffs of every County in England might have raised the Poffe Comitatus, and seized all such Offenders, and carried them to Goal; since the King's Commissions never did, nor can indemnify the Persons so Commissioned, in case the Thing they were about to execute was contrary to Law. And for this, I need go no farthet than the Old Mirror of Justices, which is owned for good Law at ch this Day •> which, speaking of Robbery, and the several Kinds thereof, has this ^c^io. Passage, which I shall here render out of the old FrenchLaw: into this Offence ( viz. Robbery ) all those fall, that take other Mens Goods by Commandment of the King,or any great Lord, without the Owners Consent. Where you see there is no Difference at all made between those that took away other Mens Goods by the Command of the King, or any other •, but it was Robbery in all of them alike, and consequently the Actors might be alike seized and punished as Robbers. The fame is also allowed by the Statute of the 20th of Henry the Vlth, whereby the Qh % King's Purveyors are foibid to take any thing to the Value of 40 s. or under,



without ready Payment in hand, of any Person ; and that it then should be lawful for every one of the King's Liege-People to retain their Goods and Chattels, and to resist such Purveyors and Buyers. So likewise the last Clause in this Oath you so much insist upon, viz. in pursuance os such Military Commissions, seems to restrain to such Commissions as were granted by the King's Authority; that is, according to Law, and no other.

So that you fee, by the Old Law of England, the King's Commission did not render any Man irresistible, unless he executed it according to Law; Since the Constable of each Town might raise the Inhabitants thereof, to seize such Wrongdoers; and if they were not strong enough, the High-Constable of the Hundred might raise the whole- Hundred; and in case they were not sufficient, the HighConstable might crave Aid of the Sheriff, and assemble all the several Hundreds of the County till these Malefactors were seized. So that as long as there were no standing Forces kept up in the Nation, (as I have shewn you there was not till the Reign of King Charles the lid.) there could never be any Clashing between the King's Civil and Military Commissions. And this is one gteat Reason why no King of England, since the Act de Tallagio non concedendo, was so hardy as to issue any Commissions to levy Money without Colour of Law; because they knew they were void in themselves, and consequently would be resisted by the whole Nation. So that thiswould not have been taking up Arms by the King's Authority against those Commissioned by him, but only in order to bring those to Justice who had not any Commissions at all to do what they did; the Law taking no Cognizance at all of the King's Personal Commissions, when absolutely against Law.

Nor, if the King had joined his own Presence to such illegal Commissions, would it have mended the Matter, or rendred these Robbers of other Mens Goods any more irresistible, than they were before; since the King can give no Man Authority to do that, which he has not Power to do himself: And therefore since his single Person may be resisted, in case he go about to Ravish, Rob, or Murder People; then sure his joining himself with such Men, tho' never so numerous, can never make him more irresistible than he was; unless you will suppose, that the King may not rob or commit Murder with a few without Resistance, but may justify the doing of it with an Army: And if so, pray tell me, what Number they must be to render the King, and all those with him, thus irresistible? And therefore it is no wonder, if our Law has made no express Provision for resisting the King's Person, since it had so high a Regard for his Honour, as not to suppose he could be guilty of making War upon his People: But if the King shall be among such wrong Doers, either by Force or Fraud, the Cafe will be otherwise. Thus, when KingEdzcard and Richard the lid. joined their own Presence to the illegal Actions of the Two Spencers, and Robert deVere, Duke of Ireland; yet the Nobility and People took no notice of that, but prosecuted them, notwithstanding the King's personal joining himself with them: And Thomas Earl of Lancaster^ tho' he had the worst of it in such a War, and was taken and executed, yet was his Attainder reversed in Parliament, as I have already said, and his Quarrel with the Spencers declared to be good and just. As the like Resistance was also declared to have been for the Safety of the King and Safeguard of the Realm, in the Parliament of the ,uth of Richard the lid. wherein the Duke of Ireland, and the rest of his Faction, were condemned, as I have already shewn you: And tho' I grant, that in such a Division between the King and his People, his Person may run a great Hazard; yet it is his own Fault, and not theirs, if it so fall out; and they are not to lose their Lives, Liberties and Properties, in case the King will fully join himself with Murderers or Robbers, since this is not to resist Royal Authority, but illegal Force, without any Authority at all; and if he will thus expose himself to the Mercy of blind Bullets, Charge is to be given to all not to kill him wilfully or wittingly, since we are neves to despair of his Repentance, till he absolutely renounces all Reconciliation with his People: And thus, even in the midst of such a Resistance, the King's Person may be as safe as he can be in such Circumstances, though not so fife as if he were in his own Palace. But if an Army of wicked and lawless Men must not be refitted, because they have got the King's Person on their side; then PrinceEdward ( asterwards King Edward the 1st.) could not have justified his fighting with, Simon Æontsord, and those of his Faction, who had, as you your, self acknowledged, i- got got the Person of King Henry III. into their Power, and acted all things in his Name, and by his seeming Authority ^ as the Historians of those Times exprefly tell us 5 and the King being in Montsorfs Army at the Battel of Evejhant, was in great Danger, being then wounded in the Neck with an Arrow : So that if this Oath had been then to be taken in this Sense, this rescuing of the King by his own Son out of the Hands of these wicked Counsellors, had been taking up Arms by his Authority against his Person.

M. Pray give me Leave to answer this Instance you have now brought, because I think it does rather make against, than for your Opinion. I grant Prince Edward might well justify his righting with Simon Montfort, tho' he had the King's Person then in his Power, because the Prince very well knew •that bis Father was carried about with them as a Prisoner against his Will ; and therefore ought to release him, tho' with some Hazard to his Person •, since it could not be otherwise brought about. But sure there is a great deal of Difference between fighting to release my Prince, when made a Prisoner against his will, and fighting against him to take him away from Evil Counsellors, whether he will or not j as the Long Parliament did against King Charles L tho' they knew he was in the Head of his Army with his own Consent; and this was sure taking up Arms by rhe King's Authority against his Person, and is that which is to be exprefly disclaimed by this Oath ; and will be also treasonable, if done in any Case whatsoever, where the King shall think fit to be at the Head of his Forces, whether the Thing be lawful or unlawful for which they are raised.

F. Well then, it seems the Fear of endangering the King's Person is nothings if the End for which it be done be lawful. And why it may not hold in other Cafes as weil as this, I can fee no Reason. I grant, that what the Parliament did was unlawful, because the Occasion of the War began on their fide, as it was then said * but supposing the King made War upon the People, I doubt not but the Case had been otherwise. And for Proof of this, pray give me Leave to put you a Case which may well happen, now we have a Standing Army distinct from the Militia: Suppose that in a Suit with a great Favourite of the King's, a Man recovers a House and Lands against him by a Judgment at Law, and he also by Course of Law put into Possession thereof by the Sheriff afterwards the King s Commission is obtained by the Interest of this Favourite, to command an Officer and some Companies of Soldiers of the Standing Army, to take Possession of this House, and deliver it back to the Person who first had it. The Man in Possession being a stout and powerful Person in his Country, hearing of it, resolves to maintain the Possession of his House according to Law •, and therefore gets in good Store of his Tenants and Neighbours to defend it. The Officer comes with his Soldiers and summons the House : They within refuse to yield up the Possession whereupon an Assault ensues*, in which a great many are killed. The Man in Possession is by the King's Command indicted for Treason or Murder, for fighting against those commission'd by the King. Now, pray tell me, Whether the Judges ought, according to their Oaths, to direct the Jury to find this Man, and those of his Party, guilty of the Crimes above-mention d, or not; and whether the Officer and his Soldiers are not rather to answer for this Offence.

M. Truly, I cannot deny but this Military Commission to put a Man out of his Freehold is Illegal, and consequently void, and so may be resisted since I know the Law lays^ That a Man s House is his Castle, and he may justify the Defence of it against all Subjects whatsoever : Bur what is this to resisting the King's Person, who was not there; for if he had, I doubt not but this Person ought to deliver it up to the King, rather than endanger his Majesty's Sacred Person: Nor is this Resistance considerable, it being only in a particular Case, which can no way by a general Rebellion alter this Government over the whole Nation.

F. You speak agreeable to your own Principles. Well, but suppose the King should be persuaded by some very ill Men about him to play this or the like Trick, whenever he had a Mind to favout one Party more -than another, and so should hinder the Execution of the Law whenever he pleased Can you think the Nation would long endure this, without any Resistance? Or suppose, to make the Case more general, the King should undertake to lay a Tax upon the whole Nation^ without Consent of Parliament, and fearing it should not be levyed, should resolve to do it by his Officers and Soldiers of his Standing Army 5 and lest they should be resisted, should march with them in Person from one County throughout to another to see the Money raised : Do you think the whole Nation out os pure Deference to the King's Person, were bound to permit him to do whatever he pleased, and let the Soldiers take this Tax, which they were certainly not obliged to pay, had he not been personally there?

M. Yes, I am of that Opinion that they ought for it were better to pay it, than that a Civil War should happen about it, in which the King's Person, as well as the Government, may be destroy'd.

F. I soe you are of this Opinion, because you fancy that the whole Government consists in the King's Person alone, which it does not but in the Legislative Power, which is not in the King alone, but in the King together with the Lords and Commons assembled in Parliament : Therefore you are mistaken in supposing that this Resistance must needs alter the Frame of the Government since it is undertaken to maintain the fundamental Constitution of it. For if the* King may take what Money he pleases from the People, and make what Laws he will without the Parliament, and without supposing it lawful to resist him is he does, the Fundamental Constitution of this Kingdom will be but a Jest, considering how light some Princes make of their most Solemn Declarations to their People; nay, their very Coronation-Oaths now-adays. And it is a strange Paradox, that one Man may defend his Life and Property against the King's single Person, in cafe he go about to rob or murder him •, and yet that a whole Nation should not have the like Right 5 and that a Prince may not rob or murder Men by himself, yet may do It without any Resistance, in case he can raise an Army to back him.

ill. Let what will happen, I am for understanding this Oath and Declaration in the strict literal Sense ; which you, by your false Glosses, go about to destroy •, therefore to tell you plainly my Mind, I think, neither one single Person, nor yet the whole Nation, can justify Resistance of the King's Person j no, tho' he should go about to rob or murder me, it were better I were killed, or lost all I had, than that the sacred Blood of my Prince should be shed by my Hands. Since the whole Parliament have on behalf of the People actually renounced all defensive Arms against the King, (by which I suppose they mean all defensive Arms against his Person.) Nor have you as yet answered my two last Objections, concerning that Renunciation of the Two Houses, and the want of a competent Authority to raise the Arms of the whole Nation, in case of that which you call a General Invasion of Mens Religion, Liberties, and Properties, if ever any such thing should happen, as it is not likely it ever will. t

F. Your Principles and mine are so diametrically opposite, that it's no wonder we may draw quite contrary Conclusions ^ for whereas you suppose that Nations were made for Princes to govern anfl dispose of at their Pleasure, without any Resistance on the Peoples fide, let them do what they will •, I suppose that Princes are made for the common Good of their People -t and where their Happiness and Preservation do not interfere, ought inviolably to be preserved; but when through the Folly, Negligence, or Tyranny of Princes, that which was ordained for their Protection, proves their Ruin and Destruction 5 I think the Preservation of the Prince's Person ought to give place to the Publick Good; and better that he, than that the whole Nation should perish. Which tho' it was the Opinion of Caiaphas, in relation to our Saviour, yet it is so well approved of, that it is said by the Evangelist St. John, that he spake not that of himself, but being High-Priest that Year, he prophesy'd. For there may be a Civil Government without a King, but there can be no King without a People. Os this Opinion ourEnglish Ancestors always were; who, though they often resisted, and sometimes deposed their Kings, they still maintained Kingly Government, tho' with the Change of the Person. And if it fail'd in the last Civil War, it was because it was at last managed by a Faction of Men of quite different Principles both in Religion and Politicks, and not by the Nobility and Gentry of the Nation, whose Interest it was, and ever will be, to maintain the ancient Government of a limited Monarchy, without falling into a Commonwealth, or giving up their just Rights and Liberties to an Arbitrary Power.


{473}

But to anrwer the rest- of your Objections, which, if what I have already laid down be Law and Reason too, may be easily done. As to the fifit Objection, the Two Houses might very well renounce the Power of making any War offensive or defensive against the King, and yet leave the Right of Resistance for "elf-Defence and Preservation to the whole Nation in general -t since the former was necessary, unless they would have asserted a Right in themselves of sitting whether the King would or not, and waging a War against him whenever they " pleased, after he had actually dissolved them which would be to set up Two equal absolute Powers at once in the Kingdom. But that they did notrenounce it for the wholeKingdom, is plain •, for though by the Statute of the 12th of Q)arles II. they disclaim all coercive Power over the King's Person for themselves and the People, either collectively or representatively, yet do they neither there nor in any of these Acts for the Militia, renounce all defensive Arms for the Defence of their Religion, l iberties, and Properties •, there being a great deal of Difference between such a Defence, and a coercive Power over the King, as I have already sufficiently proved ; nor indeed was it in the Power of the Parliament to have done it if they would, since they are but Trustees for the People to preserve their just Rights,arid had no Power wholly to give up their Religion, Lives and Properties to the King's Mercy. Sa that this Renunciation of all defensive Arms on the Behalf of the whole People, had been absolutely void in it self: And since it would have rendered the Legal Constitution of the Government of this Kingdom absolutely precarious, it notwithstanding the Illegality of the King's Commissions, and their being void if granted to illegal Purposes , the King's Presence shall render -it downright Treason to resist them. And if this be so, the last Difficulty will be easily answered, viz. By what Authority or Commission the People may make this general Resistance ? To this I fay, that in the first Place all Commissions granted to Persons uncapable by Law to take them, or for illegal Purposes, are to be supposed to be issued contrary ro the King's Will and Knowledge, and therefore are to be look d upon as void in Law; and consequently the Persons not, to be commissioned at all, and Ib may be resisted by rhe King's legal Officers all over England, as I have already proved: But if once rhe King should countenance and abet such Robbers' by^. his own personal Presence, this Resistance may then be made, and justified by the whole Nation, not by the King's Authority against his Person, but by another higher and precedent Right, viz. the Right of Self-Defence, and the Common-Safety of <the whole NarOn which the People must have reserved to themselves at the first Inttitutio 1 of the Government, or else all Monarchies would be alike, and their would be no difference at all between absolute and limited Kingdoms.

M. I lhall not trouble my self about other Kingdoms, but this much I firmly believe, that our Kings are absolute Monarchs, notwithstanding they have limited themselves by Law to the Manner of their Administration of these grand Essentials of Government, the making of Lavs, and raising of Money: So that since the Supremacy of rhe Government is still in themselves as God's Vicegerents here on Earth, and not as the People's Deputies, I cannot but still understand this Oath in the strict litteral Sense in which I am confident this Parliament meant it; and therefore since they have exprelly declared the Law to be so, I will not be wiser than the Law; especially since it is most agreeable to the Scriptures, and the known Doctrine of the Church of England, that the King's Person is not only unaccountable but irresistible too upon any Pretence whatsoever •, and I think I am able to shew you, that "it is much better for this Nation, or any other of a like Constitution, to suffer the worst that may happen from rhe ill Government, nay Tyranny of our Kings, than to involve themselves in Blood and Confusion by Rebellion and Civil Wars, as often as the People lhall judge, though never so falfly, that their fundamental Rights and Privilege? are forcibly invaded by the King.

F. I think I have very exprefly proved at our 5th Meeting, and that from undoubted Testimonies from our ancient Histories, and Writers of the Laws of England, as also from the whole constant Tenor of the Statute Law of this Nation, That the Kings of England are-not limited by their own Concessions, in the Manner of the Administration of their Sovereign Power, bat


from the first Constitution of the Government I And if the King be not the lose Supreme Legislative Power, I care not what lbme Divines have writ to the contrary ; and since it is a Law-Qpestion, the supreme Authority alone ought to decide it. And therefore it is no Matter in this Case, what the Scriptures lay, nor yet the Church ofEngland; the former hath not, and the latter cannot determine what is the legal Constitution of the Government in this Nation, and where the supreme Power resides. And therefore suppose it to have been the Intent of this Parliament, never so much to bar all Resistance of the King's Person in any Case whatsoever, yet I am sure it was not in their Power to do Things absolutely inconsistent and contradictory in themselves, as they must have done had they made the Persons of all Officers, however commissioned by the King, absolutely irresistible ; and much more if they had indued the King's Presence with an absolute Power, in Order to countenance their Commission, the most violent and illegal Action; and yet have supposed they had thereby altered nothing in the Constitution of the Government, though they had rendred it instead of a limited, an absolute despotick Monarchy,which as I am not yet convinced it was in their Will, so neither was it in their Power to grant if they would .• And therefore as I do not desire to be wiser than the Law, so I cannot allow this to be any Law at all in the Sense you would put upon it. So that make the most of it,this was but the unwary Declaration of a Parliament of very young or biassed Men, not long after the King's coming in, who through the great Abhorrence they had of the late Civil War raised by the Parliament, under Colour of the King's Authority, were drawn in before they were aware, to be a little too free in their Expressions, not considering the Consequences that might follow : But when this fond Fit was over, and that a standing Army had been raised in England under pretence of the Dutch War, and that the King had by his Declaration of Indulgence made some Approaches to an Arbitrary Power, and in order thereunto, would in that very Parliament in 1675. have imposed this very Oath or Test, not only upon those who were to take it before, but upon all Peers and Parliament Men before ever they fat in the Two Houses, as also upon all Officers in Church and State, to the very Justices of Peace -, so that the Disguise being now seen through, it made divers of the Peers, even those of greatest Loyalty and Wisdom, stiffly to oppose the laying this Test upon all the Clergy, Nobility and Gentry of the whole Nation, as it was then the Design of the Court-Party to have done Which vigorous Opposition, tho' in the smaller Number, yet met with such good Success, that the Bishops and Lords of" the contrary Opinion, could not then carry it; and the Eyes of the whole Nation were afterwards so much opened, that the King durst never offer this Test any more to either of the Two#Houses. So that if you will but consider this Matter of Fact, how this Test was first obtained; and how afterwards, when it was thought to be intended to set up Arbitrary Power, was also as vigorously opposed by them and their being sensible that the Parliament had gone too far already in doing what they had done •, I think none can take this Oath in your Sense, except those Clergymen, who will allow none to be of their Church, but those who are for this Passive Obedience; according to their prejudicate Notions of Loyalty, or else some few mercenary Lawyers, who, in Hopes of Preferment, (which they can never otherwise obtain) would interpret this Oath in such a Sense as would make us all Papists and Slaves too, whenever the King has a mind to it. Now which of these Extremes are worst, that the People should judge for themselves (tho' perhaps erroneously) when the King, or those acting by his illegal Commissions, shall violendy assault them in their Religion, Lives, Liberties and Estates, and thereupon they make Resistance with one Consent, when they find themselves brought to this Extremity; or else that the King should be thus invested with an irresistible Power of doing whatever he pleased with us; I durst leave to any indifferent Person to judge.

M. I confess you have told me more concerning the History of this Oath, than ever I knew before; but let the legal Sense of it be" what it will, and setting aside the Precepts in Scripture for absolute Submission without any Resistance, I think I am able to prove from your own grand Topick of the common Good and Preservation of Mankind ; that it is much better to submit to the worst, arid greatest Tyrant that ever was, than to resist him, if he be our lawful Prince . •'• :■ for for if you consider what is the Subject of all Human Happiness and Contentment, it is certainly Life t, now what Tyrant ever in his whole Reign destroyed so many Mens Lives by Force, or unjust Prosecutions, as a Civil War, if carried on with Violence and Animosity does in a Year's Time? So vast a Difference there is between Vid. An Anthe Evils of Tyranny and Rebellion, and so much is the Remedy worse than the swer to Dr. Disease •, the Cruelty of a Tyrant (tays one) is like a Clap of Thunder, it strikes K'"*'s Sme with great Terror j but Civil War is like an Inundation, it sweeps away all before it, without Noise: Thus one Man brought to the Scaffold by the Arbitrary Com- w, p" ,T, mand of a Tyrant, makes more Noise than Ten Thousand killed in the Field In 35, a Civil War but that does not make it the less, but the greater Evil, while we are made willing to destroy our selves, and do it more effectually in one Day, than the bloodiest Tyrant could find in his Heart to do in his whole Reign : All the Men put to Death by the Arbitrary Commands of Tyrants since the beginning of the World, in all the Kingdoms of it, will not amount to half the Number of s those who have perished in the Roman, or English Civil Wars. So much laser are we in God's Hands than in our own, and in theirs under whom God hath placed us. And though he often makes them like the Sun and Sea, (tho' highly useful in themselves) Scourges for our Sins, yet he has promised to keep their Hearts in his Hand, and to turn them as seemeth best unto him; we have more Promises of/y,,/, 98 ,0 Safety there, than when we are delivered over to the Beasts of the People, whose Madness David compares to the Raging of the Sea.

In short, The strict Restraint of the People by Government, is their truest Liberty and Fieedom ; since if they were at Liberty from Government, they would be exposed to Combat one another •, which would be worse than the greatest Slavery in the World: The great Mistake is in the foolish Notion we have of Liberty, which generally is thought to consist in being free from the Lash of Government, as School-boys from their Master, and proves in the Consequence only a Liberty to destroy each other and yet it is for such a Liberty as this, that Men most 1commonly begin Civil Wars, and fall a cutting of each others Throats. Therefore, though I grant it were much better for all Princes to let their Subjects live happily, and enjoy a competent Share of Ease and Plenty ; yet on the other Side, if they will not permit them so to do, but will tyrannically oppress them, it were much better sor them to fit down contented with Poverty, nay* Slavery it self, rather than to destroy so great Part of a Nation, as may be lost in a Civil Wat, whenever it begins. Thus even the Poet Lucan, though of CWs Party, reckoning up the Miseries of the Civil Wars of Rome, winch were all for Liberty, as if envying the happy Condition of those who lived under absolute Tyrants, cries out,

Ftelices Arabes, Medioq-, Æaque Tellus,
$Luos sub perpetuis temerunt Fata Tyrannis.

I could give you Instances of the Truth of this in most Nations, enough to make
a History : And if such a History were written, of the Mischiefs of this false
and pretended Liberty, and Good of the People, I durst undertake the Compa-
rison, that more visible Mischiefs come upon the People, more Destruction of
the Publick Good, and greater Loss of Liberty and Property by this one Method,
than by all the Tyranny and Violence of Mankind put together •, and consequently,
that there is no Comparison 'twixt the Evils of Tyranny, and of' a Civil War sor
Publick Good ; and that the Mischiefs on this Pretence of Publick Good, are
infinitely less tolerable, and a more Universal Ruin to the People , than any Ty-
ranny of lawful Governors, that ever was in the World ; whereas this is by many
Degrees the "greatest, and most lawless Tyranny, and always brings greater Mifc
chief along with it, such as Confusion, Rapine, Violence, Contempt of all Laws
and Legal Establishments, with more intolerable Evils of all Sorts, than those it
pretends to remedy.

But of all Pretences for Rebellion, Religion is the most ridiculous since a Man's Religion can never be taken from him, or a false one imposed upon him, whether he will or not •, and also because a Civil War introduces greater Immorality, and more loosens the Reins of Discipline, and is more contrary to the Spirit of true Religion, than any other Thing in the World: True Religion is - P pp 2 not not propagated by the Sword, it is a small still Voice that cannot be heard in War •, War confounds it, and debauches it. The most profligate, and licentious Court, bears no Proportion in Wickedness to the Lewdnels, Blasphemy, and Contempt of all that is Sacred, which reigns and overflows in Camps. It was an old and true Saying, Nul/a fides, Pietafq; viris, yui Caflra sequuntur.

F. I fee when neither the Scripture nor the Law an justify your absurd Doctrine of Passive Obedience; then you fly back to your old Topick the Law of Nature, and common Good of Mankind: I allow your Principles, but not the Deductions you draw from thence, which are indeed but Paralogisms, as I will fliew you by and by ; but I see there is nothing so false and absurd, which Prejudice and Education will not make Men swallow: I confess, you have made a long and ingenious Harangue in Commendation of the Benefits of Tyranny and Slavery •, which had you done only for an Exercise of your Wit, I should have ranked it with Cardan's Panegyrick of Nero, and in Praise of the Gout •, but if you vent such Notions in good earnest, I cannot forbear shewing you the Absurdity of them.

First, therefore, admitting what you say for Truth, that a Civil War does destroy more Men in one Battel, than the greatest Tyrant hath ever done in his whole Reign Is this an Argument that no Man may defend either his Life or Liberty against Arbitrary Power? If this were true Reason, it were the greatest Folly in the World for thePo/es, or any other Nation that are at Wars with the Tartars, ever to resist them •, for their Emissaries might thus make use of your Argument to make them submit to them: Life is the only State of Happiness in this World, and without which nothing can be enjoyed: It is therefore better for you to be made Slaves than to venture a Battel •, for in the Fight God knows how many of you may be destroyed ; whereas, if you quietly submit, we promise to hurt none of you, we will only carry you away, and sell you for Slaves, and sure Slavery is better than Death ; for even Slaves enjoy a great many Comforts of Life, though with some Hardships; and you may be redeemed again, or make your Escape ; but Life once lost can never be recovered. The same Argument a Tyrant may use for the Exercise of his Arbitrary Power over Mens Lives ; that he will not (nay, cannot) destroy the whole Nation, but only use them as Butchers do their Sheep cull out the fattest, and let the poor Ones live, thrive and grow fat, till they are likewise ready for the Knife. This perhaps may be a proper Life for those Beasts that cannot live without Man's Protection ; but what Man of any Courage or Sense, would be willing to live under a Government where his Poverty was to be. his only Protection ? Who would not venture his Life in one brisk Battel, rather than live in such a vile and slavish Condition ? And who would not rather argue thus; It is great odds, if among so many Thousands, I am the Person ordained for Death ; or if I am, I may perhaps purchase Victory for my Countrymen, and L'berty for my Posterity ; but let the worst happen, I venture my Lite for the Puback Good •, and it is better once to die, than always to live in fear.

But if the Calculation of the Number of Men's Lives that may be lost in the Recovery, or maintaining any Right whatever, should be the only Rule to render War either reasonable, or lawful I doubt whether most of the Wars Princes make for small Territories, or Punctilio's of Honour; (as lowering the Flag, for Example) nay, even for the Recovery of their Crowns, when unjustly detained or raken from them, can upon your Principle ever justify either Princes in Conscience to make such Wars, or oblige Subjects in Prudence, (according to your Rule of the Publick Good) to fight in such Quarrels since none of them but often cost more Lives to defend, or regain them, if lost, than the Things are worth that the Princes of the World usually make War about, against each other.

But if you tell me, that Men are bound by the Law of God, and of their Country to assist their Prince in any Wars he shall Command them, without enquiring into the Consequences of it; and let what will happen as to the loss of Men's Lives, Estates or Liberties, that we are likewise to obey and submit to lawful Princes •, because, let them tyrannize, enflaye or destroy us never so muchj yet God has put us into their Hands; and we are safe in God's Hands whilst We are in theirs: This is all a meer Falacy, for what is this to your main Argument from the Destruction of Mankind ? For, if so many Men are to lose their Lives i in in the War, what Difference is it as to them, whether the War be made' by a lawful or unlawful Power > It is still upon this Principle unlawful to be made, and consequently unlawful to be fought for. And if you once grant that Princes may tyrannize without Resistance, kill or enslave any of their Subjects •, What Difference is it, as to the People that are to suffer it,whether he be a lawful Prince, or a Tyrant or Usurper that does it? For as for being delivered by God into the Hands of a lawful Prince to be dealt withal as he shall think good, it is all meer Jargon: Pray prove to me (if you can) that whilst a Prince thus tyrannizes, oppresses, and enslaves his People, that God ever thus deliver'd the People into his Hand for that Design or that whilst he does Ib, he acts as God's Minister. This I have urged you to prove at our Fourth Meeting 5 but since you could not do it, I take the Case for desperate.

But to answer your Comparisons of the Sun and Sea, to which you compare lawful Princes that turn Tyrants they are as easily retorted upon you: If the .Rays of the Sun are too hot, we may resist or avoid them, and put on thicker Cloaths ; or set up Shelters to defend our selves from them ; The like we may fay of his malignant Influences or Effects upon Men's Bodies, could there beany Means found out as easily to avoid them. So likewise for the Sea; suppose 'the breaking in of it upon any Countrey to be sent by God for their Sins, you will not lay it is unlawful for the People to make Banks or Dikes, or use any other natural Means to keep it out, or to drain it away. And the Case is the lame as to Tyranny for. if Resistance be as natural a Means against it, as these I have mentioned are against the too violent Heat of the Sun, or breaking in of the Sea, I cannot see why we may not as lawfully exercise it. But since we are talking of Waters, this puts me in mind of the Place you have now cited out of Proverbs , That the Heart of the Ying is in the Hani of the Lord; which without doubt is a great Truth; but then you should have added what immediately follows •, as the Rivers of Waters he turneth it whithersoever he will.Now, How does God turn Rivers of Waters? It is not by any supernatural Means, but either by a strong Wind, or else by the Hands of Men. Therefore So/onion's Comparison of God's turning the Hearts of Kings vid. Dr. PjHke Waters, is but an Allusion to the Custom of those Eastern Countries, that as a Gardiner draws the Streams of Water through the Trenches he cuts, into what pllra''s . Part of the Garden he thinks good •, so doth God turn the Hearts of Princes to act, tStS"" or do quite contrary to their first Intentions •, nay, to what they have actually done before. But, How is this performed? It is only as he makes use of the Gardiner to turn the Streams of Water: It is wholly by human Means, such as Advice of good and wise Counsellors, and a prudent Consideration upon it; to which also may be added, the Resistance of their Subjects, when after all Remonstrances and Intreaties to the contrary, Princes still go on outragiously to oppress them; when they see they will no longer bear it, and find themselves engaged in a troublesome War with them, they then see their Error, and send to their Subjects and offer them Terms of Peace. Thus divers of our Kings Hearts were turned •, when they law the Nation would all, as one Man, resist their tyrannical Arbitrary Proceedings, they camejp Terms with them, and granted them MagnaCharta, and other good Laws, for tne Security of theif just Rights and Liberties. But as for what you fay of our being safe in the Hands of Tyrants, as being in God's Hands; I grant we are still in God's Hands even when we fall under the Power of Thieves and Robbers. But is our Safety then so great, as when we are out of their Hands > Or, may we not get from them by Force, if we are able ? Especially if what Bratton tells Cah »•/• i°7« us be true, in these Words in his Third Book, Exercere igitur debet Rex potestatem juris ficut Dei minister., & Vtcarius inTerra, quia ilia potestat folius Dei eft; potestas autem injurin Diaboli non Dei, fff cujus hor urn operum facit Rex,ejus minister erit cujus hor urn operum facit, igitur dum facit juftitias vicarius eft Regis <tterniy minister autemDiaboli cum declinet ad injuriam. Now , pray tell me, if the King can thus cease to be God's Lieutenant, and become the Devil's Officer, whether we can properly be said to be under the Power ordained by God, or that we can be very late in such Hands, I cannot very well see.

As for unnecessary Wars, undertaken without any such Cause, for meer Pretences of Liberty and the publick Good; and which may have sometimes caused many more Misehiefs and Inconveniences than those they pretended to cure •, does it therefore follow, that no Wars, tho' against insupportable Tyranny, and for Self defence, have never been, nor may be, undertaken by any Nation in the World



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and that the State they are in, after such a War, is always much worse than it was before? Which is notoriously false, as you may lee by ib many Instances I have given you from our own Histories ; as I could also shew you from other Countries; such as the Switzers and ttiitch, who have by defending their Liberties when unjustly oppressed, brought themselves into a State of Plenty, Liberty, and Safety. And therefore, notwithstanding your making so light of Men's just Rights, Liberties, and Properties, there are certainly such Things that distinguish a Free People from Slaves ; as any, who will but travel into France, Turkey, or any other Arbitrary Government, may easily satisfy themselves. And if these Things ought to be really esteemed as the Causes of all the Earthly Happiness we enjoy, then certainly they may be defended, and fought for; and if in the Purchase of them many Men's Lives happen to be lost, this is no necessary Consequence; since such Reformations are often brought about with very little Bloodshed: As appears by many Instances I have now given of such Resistance, and may more evidently appear by this late great and wonderful Revolution. But admitting it should happen as you %, and that a great Part of a Nation should be destroy'd in a Civil War, for their just Rights and Libertiesj yet it is still upon your own Topick, better for Mankind that it should be so, if true Liberty (I do not mean from lawful Authority) may be but obtain'd at last thereby ; since Life is not to be esteemed only for meer living, but living happily ; nonest vivere, fed valere Vita ; and Life is enjoyed by Slaves in Galleys, as much as by the greatest Prince; yet no rational Man but will will allow that Men may venture their Lives, rather than suffer themselves and their Posterity to fall into that miserable Condition ; the like he may, if they were only to be reduced to the Condition of the Peasants in France , or ordinary Christians in Turkey; and if so, I think I may then safely affirm , that it is better that half the People of any Country should be destroyed by a Civil War, if their just Rights and Liberties may be preserved to them and their Children at the last, than that Slavery, with all its Consequences, such as Ignorance, Baseness of Mind, Cowardice, Beggary, &c. should ever be entailed upon a Nation : For as for the Loss of Men, it may be made up again in some Generations; but when Men's Civil Liberties and Properties are once lost, they cannot, without some rare and iuv expected Revolution, be ever regained ; as we fee in the Subjects of all Sorts in frame, Turkey, and Muscovy, 8cc. at this Day. And therefore, if you please better to consider, the real Liberties of a People (such as we contend for) are not that of School-Boys, to be free from the Lash of their Masters: However, that if such a Discipline were to be exercised upon Men. all their Life-times, I think no Man but would fay it were worth venturing his Life, rather than to fall into so miserable a State. So that what you cite from the Poet Lucan, is only to be taken as a Poetical Exclamation against the Miseries that Civil Wars often bring upon a Nation But to fay that it was Lucan s Opinion, that Subjection under the severest Tyrant, was better than the Liberty the People of Rome enjoyed, is to suppose that either you or I have never read that Author 5 since nothing is more plain, than that the main Design of that Poem is to magnify Goto and Pompey,who fought for the Liberty of their Country, above Ca/ar, and those that joined with him to destroy it. As for all the rest that you have said, that you could make a History of greater Miseries, as Loss of Liberty, cVs.that have come upon whole Nations by righting for their just Rights and Liberties against Tyrants, than by all the Tyranny and Violence of Mankind; I think you would have a hard Task to make it good, since I suppose under AblbluteMonarchies it is unlawful for the People to take up Arms,till they are either like to be enslaved or destroyed by the Tyranny of their Prince, or else so intolerably oppress'd by his Soldiers, that they can scarce even in a State of War live in a much worse Condition; and if they are ever subdued and reduced to their former Condition, they cannot be worse than what they were under before. The like I may lay as to Limited Monarchies or Commonwealths, that degenerate into Tyrannies; the People may perhaps better their Condition by Resistance, and recover their Liberties, but cannot be in a worse, if they 'are overcome : For I do not allow such Resistance lawful till the very Fundamental Constitutions of their Government, whereby it is distinguifh'd from an Arbitrary Delpotick Power, be actually invaded, or taken from them : So that let the worst that can happen, they can scarce fall into worse Condition than they were before. And as for England, we may speak it experimentally , That of all the Resistances that have been made by the Major Part of the Nation, or greater Part of it in Defence of




their just Rights and [Liberties, every one of them have happened for the best, and been a Means of .restoring this Kingdom to its former Estate, except the last, in which I grant we lost it by that War; yet that was not from the Doctrine it self, but because the War was begun and carried on by a violent Faction', upon unjust Grounds; and, which was worse, the Government and Difcipline of the Church, as established by Law, was altered without any Legal Power; all which could never have happened, had not that War been not only begun, but continued to the very last by a Standing Army, which could give what Laws they pleased, even to those that pretended to command them. So that why the Abuse of this Right once in a Thousand Years, should be made any just Argument against the ever using it at all, I can see no Reason in the World for it.

As to the rest of your Discourse against making any War about Religion, that is also as fallacious: For though I grant, that true Religion is not to be propagated, yet I think it may lawfully be defended by the Sword, especially where it is the received Establish'd Religion of a Nation; or else the Defence of Religion against Infidels, would be no Argument at all to fight against a Turkish or Popish Prince that unjustly invaded us. For tho' it is true, that Religion cannot be taken away from any Man without his Consent, yet a Man may be taken from his Religion 5 and when the Professors are destroyed, either by Martyrdom, or violent Persecution, as bad, or worse than Death, what will become of the Church and Religion Established by Law, when all the Persons that constitute that Church are driven away, destroyed, or made to renounce it? And for this we need go no farther than over the Water to our next Neighbour. It is likewise .as fallacious what you urge of the great Corruption of Manners by Civil Wars; which if it be any Argument at all, is so against all Standing Armies whatever, whether raised by lawful or unlawful Powers. And I think there was much more Debauchery in the King's 'late Camp at Hounslovo-Heatb, as also in all Places where they quartered, than was lately at lork or Nottingham, among those that took up Arms in Defence of their Religion or Civil Liberties unjustly invaded by the King and his Ministers. Nor does it always happen, that Armies raised for Defence of Religion and Civil Liberty, must prove debauch'd ; since we may remember, that the Parliament Army (to its Praise be it spoken) was infinitely more Sober, and outwardly Religious, than the King's. But if you will fay that this proceeded from their Principles, as well as good Discipline, I know no Reason why Men who fight in Defence of their Religion and Cfvil Liberties, may not uponChurch-of-England Principles, as to Church-Government, and Common-Prayer, may also by a strict Discipline be as little debauch'd as any Standing Armies the most lawful Monarch can maintain; who if they lie Idle, as ours have done all this King's Reign till now of late, are more likely to fall into all the Wickedness that attend a loose Discipline, and want of Employment, and consequently may also corrupt the Places where they Quarter by their ill Example.

M. I shall not longer argue this Point, since I see it is to no Purpose. But you have not yet told me what these fundamental Rights and Liberties are, that you suppose the People may take up Arms to defend; nor yet what Number of the Nation may thus judge for themselves, and take up Arms when they please; for it may so happen, that the whole Nation may be divided as to their Opinions concerning these Things. And the South Part ofEngland, (for Example ) may think their Religion and Liberties in great Danger, and *that it is very necessary to take up Arms for it, when the North Parts are not under those Apprehensions, but lye still as was lately seen in the Risings for the Prince of Orange.

F. As to the first of these Queries, I think I can easily give you Satisfaction, and luch as you can have nothing material to reply to. And as for the other, though I do not fay I can give you such an Answer as will bear no Exception or Reply, yet I doubt not but it will be that which may very well be defended, and may serve to satisfy any indifferent and unprejudiced Person ; and which, if not allowed, will draw much worse Consequences along with it. And therefore as for the ]ust Rights and Liberties we contend for, they are only such as are contained inMagna Chart a, and the Petition of Right, and are no more than the Immemorial Rights and Liberties of this Kingdom •, and that first, In respect of the Safety of Mens Lives, and the Liberties of their Persons. Secondly, The Security of the Estates and Civil Properties. And Thirdly, The Enjoyment of their Religion, as it is established by the common Consent of the whole Nation. All which I will reduce to these plain Propositions. / 1. That

iiVrjo't ist i. That ho Freemen of England ought to be Imprisoned of Arrested contrary Part of the yin-t0 LaWjwithout specifying the Causs of his Commitment in the Warrant, or RMts % Mittimus, whereby he is sent to Prison. And he ought not to be sent out of'the English^?- Body of the Country, or Jurisdiction where the Crime was supposed to be men. committed, unless he be removed by due Course of Law. Neither ought

he by the Law of England, to be detained in Prison without Tryal only for
a Punishment; but ought to be Tried the next Assizes or Goal-delivery, or within •
some reasonable Time to be allowed of by the Court. And this was Common-
Law, many Ages before the Act of Habeas Corpus made in the 31st of King
Charles the Second, which does but ascertain that Law concerning bailing Men
for all manner of Crimes, in case no Prosecution come in against them: Much
less can the King, or any Court below the whole Parliament, banish any Man
the Kingdom in any Case, unless by some known Law already made, whereby he
is bound to abjure it upon a lawful Tryal by his Peers, and Conviction by his own
Confession.

2. Nor can the King, nor any Courts of Justice, condemn a Man to loss of Life, or Members, without due Tryal by his Peers, and Legal Judgment given thereupon.

And for Proof of this, I need go no farther than Magna Chart a, and the Petition of Right, which are both but declaratory of the Common Law of England. See thefoie Magna Chart a, Cap. 29. whereby it is Declared and Enacted, That no Freeman may be taken and Imprisoned, or be disseised of his Freehold, or Liberties, or his free Customs, or be Outlawed, or Exiled, or in any manner destroyed, but by the lawful Judgment of his Peers, or by the Law of the Land, which is cap.it. 9,3. also farther confirmed and explained by these Statutes, vis. the 37th, 38th, and Cap.t. 42d of Edward and 17th of Richard IX all which are summoned up, and more particularly declared against, contrary to the fundamental Laws of the Land, in the Petition of Right exhibited to KingCharles I. in Parliament, in the Thirtieth of his Reign; wherein the late Imprisonment of the Kings Subjects without any Cause shewed, and the Denial of Habeas Corpus are exprefly resented-, as also putting Soldiers and Mariners 10 Death by Martial Law in the Time of Peace. And the King's Answer to this Petition is remarkable, The King willeth that Right be done, according to the Statutes and Customs of Vid. Rush- the Realm, &c. Which not satisfying as too doubtful and general, the King at worths Hist, last gave this full and clear Answer in legal Form, Soit Droit fait comme il est Col. pt. 1. p. desire.

jo7,55>8,<2i. -yjjg Second Point in relation to our Civil Properties is this, That no Tax, Taillage or Aid shall be laid or levy'd by the King, without the Consents of the Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and whole Commonalty of the Realm in Parliament. This was first of all granted by the 56th Law of William the First, which I have already cited; as also more particularly forbid by the Statute de Tallagio non concedendo, in the 34th of Edward the First, which was but a Revival, or Explanation of the former Law of William the First, and also by the 25 th of"Edward the Third ; whereby it is Enacted, " That no Person "should be compelled to make any Loans to the King against his Will, because "they are against Reason, and the Franchise of the Land;and it is also pro"vided, that none should be charged by any Charge or Imposition called a "Benevolence, nor by such like Charge, which is also more fully set forth in the "said Petition of Right, to have been lately executed by certain Commissioners; as also that divers other Charges have been laid and levied by Lords-Lieutenants, Deputy-Lieutenants, c. contrary to the Laws and free Customs of the Realm.

The Third Point declared against in this Petition of Right, is against Quartering of Soldiers (though they pay for their Quarters) contrary to the Will of the Owners and Inhabitants, much more when they did take free Quarter in Time of Peace, as hath been too much practised of late. So that by the Common Law of England, not only Private-Houses, but Inns and Ale-Houses, are not compellable to Quarter Soldiers unless they will. So much was this Nation anciently a Stranger to Standing Armies, and Quartering of Soldiers in Time of Peace, that there was no Provision made for it, either at Common-Law, or by any Statute that I know of 1



4tMy, That no new Law can be made without an express Act of Parliament, or the joint Consent os the King, Lords and Commons: And therefore that Parliaments ought to be duly summon'd and held for the Good and Safety of trie Kingdom, by Common as well as Statute Law, once every Year ; and according to more modern Statutes, once in Three Years at least, or whenevet there is a just «nd necessary Occasion for it. And for Proof of this, I need go no farther than the Old English Saxon haw, which ordains, That the great Council, or MycelSynod, should be held twice in the Year, as the Ancient Mirror os Justices recites, and the constant Custom long after the Conquest, in which there never passed a Year without a General Council of the whole Kingdom. And when this ame by degrees to be discontinued, then were those Statutes of Edward the Third, and Richard the Second, made; whereby it was enacted, That a Parliament should be held every Year, and oftner if there were Occasion.

5thly, Since the Legiflative Power of Parliaments is the very Soul and Essence of the Government, the Election of Knights, Citizens and Burgesses to fit and serve in Parliament, ought to be free; and all the Members of Parliament, who have Places there either by Patents or Writs of Summons, as the Lords} or else by Election or Writs, as the Bishops, ought to be present, and there to have Freedom of Speech and Votes, without any Guards to over-awe or terrify them •, and none to be forced, threatned, bribed or tamper'd with to give their Votes contrary to their Consciences, either by the King or any of his Ministers. This is ordain'd by the Statute of Westm.T.Chap. 5. whereby it is expressly provided, That all Elections ought to be free: Which Sir Edward Coke, in his Notes upon this Statute, extends to Elections of Knights of Shires, as well as other Elections since. I have . sufficiently proved, that the Commons elected Members to Parliament when this Statute was made; and that this was the Ancient Law of England, you may see in the Rolls of Parliament, 1. Hen. 4. wherein it is alledged by the Parliament, as one of the Articles against Richard the Hd. in these n. ?& Words: Item licet de fiatu C conjuetudineRegni sui in Convocatione cujufli. bet Partiamenti Populus suits in singulis Comitatibus Regni debeat ejfe liberad eligendum, C deputandum Milites fro hujusmodi Comitatibus ad inter ejjendum Parliaments, C ad exponendumeorum gravamina, C ad profequendum pro remediis fuperinde prout videntur expedire.

lamen prafatus Rex ut in Parliaments Juis liberius confequi valeat suit temeraria voluntatis effeOum, direxitmandata sua srequentius Vicecomitibus ejus ut cert as Tersonas per ipsum Regem nominatas, ut MilitesComitatuum, venire faciant ad Parliament a sua; quos quidem Milites eidem Regi faventes inducere poterat, proutsrequentius fecit, quandoq-, pro minas varias, Of terrores, C quandoq^ per munera ad conjentiendum ilsis quaRegno pr*di8o praiudiciatia fuerant, £f Populo quamplurimum onerosa, 8tc. So that you here may lee, that it was then judged by the whole Parliament to be a Breach of one of the Fundamental Liberties of the Nation, for the Iling to make false Returns to be made of Parliament-Men, as also to corrupt or over-awe their Votes, either by Promises or Threatnings.

But to conclude: That we have such Things as Fundamental Laws and Privileges, I shall go no farther than King fames the 1st his Speech, confirmed by an Act of Parliament of the First Year of his Reign; wherein it is recited, "That "the King hath vouchsafed to express many ways, how far it is, and ever shall be "fiom his Royal and Sincere Care and Affection to the Subjects of England, to "alter or innovate the Fundamental Laws, Privileges and good Customs of this "Kingdom, whereby not only his Royal Authority, but the People's Security of "Bands, Livings, and Privileges (both in general and particular) are preserved * and maintained; and by theabolishing or Alteration of which, it is impossible but "that present Confusion will fall upon the whole State and frame of this Realm. So that if this Judgment of the King and both Houses of Parliament was true, sure we may justly suppose, that Things of such vast Concernment deserve our contending for by all Means possible and lawful to preserve them: For what the Nobles of the Land upon Occasion one© said with one Voice in full Parliament, every Freebora Subject of England may as well fay at this Day, Nolumus Leges Angli* mu; Q.qq

tar 1 s which is a Maxim that ought to be imprinted upon the Hearts of all true Lord Eicon's EngHjhmen •, who, (as my Lord Bacon very well observes) take themselves to have utters, />.43. as good Title to their Laws, as to the common Air they breathe in: And King Charles the 1st somewhere fays, "That it was his Maxim, that the King's Prero"gative is to defend the People's Liberties 5 . and that the People s Liberty "strengthens the King's Prerogative. For indeed, if the Foundations are destroyed, the Superstructure cannot stand; and if this Rule had been well observed by this King's Sons, we had not been reduced to this great Confusion we now lie under. For my Lord Bacon calls those Flatterers, who put the King upon such danIbid. p. 41. gerous Courses, as great Traytors to him in the Court of Heaven, as he that draws his Sword against him. And King James the 1st. in his Speech in Parliament, 1609, calls all those who persuade Kings not to be confined within the Limits of their Laws, " Vipers and Pests both against them- and the Com"monwealth.

M. For my part, I shall not go about to defend such ill Men, whoever they be •> yet since such Insinuations are done privately, and in a Corner, it is very hard sot Subjects to judge when such evil Counsels are infused into the Ears of Princes j and much more unjust for them to make any Resistance on pretence to remove them: And therefore, besides the Absurdity of making Subjects both Judges and Parties, you have not yet told me, what Number of Men mutt be at once oppressed in their Fundamental Rights ( as you call them,) and who may make this Resistance. For methinks it is very absurd, to give one County (for Example, upon the Account of free Quarter,) a Power of rising in Arms, and resisting the King's Officers and Soldiers, when perhaps all the rest of the Nation, where no Soldiers are, feel no such thing.;

E I am not so unreasonable, as to maintain, That Subjects ought to take Arms merely because the King gives too much Ear to Flatterers and wicked Ministers, or is too much led by them: Let him be so, provided the People do not smart for it. But if once it comes to that pass, that they giow intolerable, and set the King upon a General Invasion of the People's Rights, in any of the great Points I have now laid down * let them look to themselves. If they will not permit a Parliament to fit, and redress those Grievances, they must expect the. Nation will rise at last against them, as they did against Gavejion and the Spencers^ and make them undergo that Punishment they so, well deserve. But as for what you fay, of making the People Judges when their Rights and Liberties are invaded , the Consequence is as bad, if the King alone shall judge. As for Example, in the Case of Ship-Money \ the Judges gave their Opinions,, that the King might raise Money for Ships of War, in cafe of Necessity, without any Controul j but if he were sole Judge of this Necessity, he might lay this Tax as often, and raise it to what Degree he pleased- Therefore, as I shall not deny that the King may - ^udge it fit to do a great many Things against the strict Letter of the Law, in Cases of urgent Necessity •, but it will be at his Peril if he judge amiss. As for Example: Every Man's House is his Castle, and "he may lawfully desend it against all illegal Commissions j yet I think no Man will deny, but that in case of a Fire in London, the King may, by Common Law, command his Officers to break open some of the next Houses, and blow them up with Gunpowder to stop the Fire: But admit he should, out of Malice or Misinformation, command some Houses to be blown up that stood a Mile off, under Pretence of stopping the Fire, do you think the Owners were bound to stand still, and let them - do it?' • .,_ .

But if the People must not judge when their Fundamental Rights and Liberties are invaded, because they will be both Judges and Parties; then no Man whatever, by this Argument, ought to defend himself against the Violence of another: For who can be Judge, but he that feels, the Blow ? Nor indeed could Princes make so much as Defensive Wars^ since whenever they do so, they are themselves both Judges and Parties, as I told you at our Third Meeting, when I answered ( as I then thought) all your Arguments against the People's ever judging for themselves. So that if it be proved, that the People, in a Limited Kingdom, remain, as to the Defence of their Lives, Liberties, Religion and Properties, always in the State of Nature, in respect of their Prince, as well as all the rest of mankind,


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they must certainly make use of defensive Arms when Necessity requires it, or else become Slaves whenever he pleases to make them so if the] People have no Right to judge of his Violence and Oppressions > ; ,

But as for the Number that are to make this Judgment and Resistance thereupon; I grant in most Cases this is not to be done, as long as the Oppression is begun by Colour of Law, without actual Violence. Secondly, when it concerns only some particular Bodies of Men ; thus, if Free Quarter should be taken in one or two Towns or Counties, I do not allow it. a sufficient Cause for all the Neighbouring Towns, much less the whole County, or the Neighbouring Shires, to take an Alarm, and rise in Arms upon it; since, perhaps, the King may know nothing of it, and if he were once informed of it, would redress it: But can you affirm the Case would be the fame, if this Grievance should become general all over the Nation? And that the King should be so far fiom redressing it, that he should put out a Declaration, setting forth that it was his Prerogative so to do j would not the whole Nation then take it for granted, that the King's Design was to govern by a standing Army, who should live upon the People, and devour them to the very Bones? And might not they make Resistance against these Robberies and Oppressions? The fame I fay for all other Breaches made in any other of our Fundamental Rights. I do not allow any Resistance to be made, till it become a general Oppression upon the whole or major 'Part of the Nation, and without all Hopes of being otherwise remedied. And this must be also so evident, that there can be no Doubt or Denial of the Matter of Fact for so long as the Case is disputable, or the Grievance is not of a general Concern, I grant the People ought never to stir: But of this they alone must judge ; since our Constitution has left us no other Judges of these Breaches, but the diffusive Body of the whole People in the Intervals of Parliament.

But for your last Question, as to the Number that may thus rise to make this Resistance, I answer thus •, That when once the Mischief becomes general, and without all other Remedy, any Part of the People who think themselves strong enough to defend themselves against such Violence, may begin to rise, if they can, till the rest of the Kingdom can come into their Assistance; as l told you the Town of Briell did against the Tyranny of the Duke D' Aha, in the beginning of -the Belgick Wars ; and it was soon after seconded by the Revolt of divers other Cities and Towns in those Provinces , till the Spaniards were quite driven out.

7H. I do not. deny but you speak more moderately on this Subject than most of your Opinion, who think every private Man has Right to take up Arms and raise a Rebellion, whenever he judges his Person or Estate is invaded, or injured by the Government. And indeed this Remedy of Resistance seems at first sight pretty tolerable, if it were not that we very well know that this manyheaded Beast, the Multitude, is very apt to be deluded by the cunning Speeches, and sly Insinuations of factious and ambitious Men, whose Interest it will always be to fish in troubled Waters, and raise Disturbances to make themselves the Heads of a Party. Thus in the Year —42. what Lies and Stories were there raised to incense the People against that good King, to make them take up Arms against him, as an Invader of their Liberties, and one that was about to make War upon them : And who that is not over-partial to his own Opinions, does not see, that the Nation has been blown up into a Flame by the lying Reports of a French League, and a supposititious Prince of Wales 5 neither of which, I durst pawn my Lite, have the least Tittle of Truth in them. So that this Doctrine can scarce fail, almost every Time it is put in Practice, to bring all Government to Anarchy and Confusion.

F. I have already in Part anlwered this Objection at our Third Meetingbut since you will urge it over again, I shall in the first Place admit the Matter of Fact to be as you fay, that the People may, by some turbulent Demogogues, be sometimes so far incensed as to take up Arms when there is no just Occasion j yet let me tell you, I doubt that neither of these Instances you have given, will make good your Afletion. For in the first Place, as to King Charles the First, it is said by all Writers on the Parliament's Side, that the King by leaving his



Parliament, and going xoTork, and there taking a Guard when no Enemy was near, and when the Parliament had as yet raised no Forces at all •, as also by his going to Hull to remove the Magazine of Arms that lay there, in order to put them into the Hands of an Army to make War upon the Parliament who then demanded the Setdement of the Militia to be in Commissioners of their Nomination •, that he thereby broke his Coronation Oath, whereby be was iwom to govern according to Law, and not by Force. But as for what you fay in respect of the present Juncture of Affairs, I never can desire a more plain Proof of the People's Necessity of taking up defensive Arms; since admitting that neither of the Reports concerning the French League, and the false Birth of this suppoled Prince be true ; yet, I think, the Nation has had sufficient Provocations to rife as one Man, and joyn with the Prince of Orange for the obtaining of a free Parliament to fet all Things right, which the King's violent, illegal Administration has so much discomposed. But admitting the utmost you can suppole, that sometimes the People may- judge amiss, as well as the King, and

there is no real Occasion; (hall this Abuse of a Right be a sufficient Cause against their ever exercising of it at all. I am sure this is no good Argument against the natural Right of Self- Defence between private Persons in the State of Nature, that some Men do often abuse it •, nor can I see how, upon these Grounds, even Sovereign Princes may be allowed to make so much as defensive Wars, ('as I said but now) since they may pretend that themselves are wronged, and invaded, or at least are like to be so, when no such Thing was really done, or intended •, and so by their Mis-judgment or false Pretences, many Millions of Lives may be lost: What then? Must no Prince ever make War at all, rill all the World be satisfied of the Justice of his Quarrel? If so, I doubt the last War King Charles the Second mide against the Dutch, and this late War the King of France has now made upon the Empire, (hould never have been by your Principles so much as begun; much less carried on with so great an Effusion of Blood, and the Destruction of so many Cities and Towns: And whether this, as well as Tyranny at home, is not more often put in Practice by Princes, than any Resistance of this Nation, or all the Subjects of the World have made against such Tyranny and Arbitrary Power, I leave it to your self, or any indifferent Person to judge.

M. I doubt not but I may very well join Issue with you upon this Point-, for I think that upon those very Conditions, and Grounds you have now laid down, the Clergymen, Lords, Gendemen, and Commons of this Kingdom, who have either come over with the Prince of Orange, or have taken up Arms in Defence of his late Declaration, cannot justify themselves by any of the Instances you have given for joining themselves with him in Arms. For tho' I grant His Majesty, by harkening too much to Popidi Counsels, may have done many Things which in Strictness of Law cannot be justified •, yet since they do not strike at that which you call the Fundamental Constitution of the Government, and have been also done without any Force on the People of this Nation; but have been either transacted by Judgment .of Law j or the Colour of it at least, viz. by the Opinions of all or the Major Part of the Judges; all the Parties above-mentioned ought (according to your own Principles) to have waited for the Meeting of the next Parliament, to whose Determination they ought, by the Law of the Land, to have referred all such Grievances and Violations of Laws which they had to complain of •, and if then the King had refused to have remedied them, they might have had some Colour (I do not lay Right,) for taking up Arms, and doing what they have done •, whereas I cannot fee how you can, even upon your Principles, defend the late Risers from wilful Rebellion against the King.

And for Proof of this, I need go no farther than the Prince of Orange's late Declaration, which being drawn by the best Advice of the Malecontents then in Holland, would not fail to mention all the Violations of Law, which they thought his Majesty's Government had been guilty of, ever since his coming to the Crown: And therefore, not to insist upon the Want of Right which I conceive the Prince had to concern himself with the Affairs of another Prince's Kingdom,

through that Misinformation may take


Arms against their Prince, when

I shall, I shall, however, mention every Article in which his Highness conceives the Religion, Laws, and Civil Liberties of this Nation to be endangered. In. the First place, As to the dispensing Power, which the King has lately affumed to himself in Matters of Religion; and thereby putting into Offices and Commands Persons uncapable by Law of bearing them, without taking the Test as I shall not now dispute the Legality or Illegality of the King's Declaration concerning it, so as to that Pan of it which concerns Liberty of Conscience, or dispensing with the Papists and Dissenters to meet in Assemblies for their Religious Worship, notwithstanding all the Acts made against Mais and Conventicles, it was no more than what King Charles IL had done before with the Advice of his.Privy-Council in which, if it had been Rebellion to have opposed him, sure it is the fame Crime in the'Reign of his Brother. 2. As for the Commission for Causes Ecclesiastical.

F. Since I foresee your Discourse upon this Subject is like to be long •, and to consist of many more Heads than 1 doubt my Memory will'serve to bear away, pray give me Leave to answer all your Instances one after another, as you propose them. First, then, As to the late Declaration concerning the Dispensing Power, it was so far from being done by Law, or so much as the Colour of it, that besides its being against divers express Acts of Parliament, which tie up the King's Hands from dispensing with the Acts against publick Mass and Conventicles $ as also, that disable all Persons whatever to act in any publick Employments, till chey have taken the Test appointed by the said Act, (in which all non-obfiantes are exprefly barred): But this Declaration was never so much as shewn to the Privy-Council, till it was ready to be published.; and then, indeed, the King caused it to be read in Council, declaring that he would have it issued forth, tho' without ever putting it to the Vote, or so much as asking the Consents of the Privy-Counsellors there present •, tho' I grant the Tirle of it sees forth, that it was done by his Majesty in Council, to impose upon the Nation that stale Cheat, whereby this King (as well as the last) would have had us believe, that their Declarations had been issued by the Consent of the Council, when, God knows, there was no such thing.

And as for any Judgment, or Opinion of the Judges to support it, and make it pass by Colour of Law, it was never, as I can hear of, so much as propos'd to them in their judicial Capacities, though perhaps it might be proposvd 'to the Lord Chancellor, and some of the Judges who were of the Cabal, which is nothing to' the purpose; all that I ever heard to have been brought judicially before them, was, the Case of Sir Edward Hales taking a Commission for a Colonel of a Regiment, after he ,had openly declared himself a Papist; in which great Point, though I grant the Major Part of the Judges gave their Opinion for the Dispensing Power, yet was it only in theCafe of Military CommiJJions, as several of them afterwards declared, and not of all sorts of Employments, as well Civil as Military 5 much less for Popish Heads of Colleges, Parsons and Bishops, to hold their Livings, Headships, and Bishopricks, if they pleased to turn to the Romijh Religion; or that the King should please to bestow them upon Popish Priests, it would have been as legal in the one Cafe, as in the other ^ since as for Popish Heads of Colleges, and Parsons, we have had too many Instances of it; and if we had none for Bishops, we must thank the Constancy of most of them, if they have not openly declared for the Romijh Religion, since they might have kept their Bishopricks notwithstanding. But I do not at all doubt but that such a general Dispensation for professed Papists to take and hold all sorts of Offices and Places of Trust, not only Military, but Ecclesiastical and Civil, would have in a little time brought all Offices and Employments into their Hands.

Nor is this Dispensing Power in Matters of Religion, the sole thing aimed at by this Declaration, as appears by the very Words and whole Purport of it •, which is not confined to Matters of Religion only, but claims an unlimited Power of dispensing with all sorts of Statutes in all Cases whatever, none excepted; and if so, pr3y tell me what Magna Charta, or the Statute de Tallagio non concedendo, , or any other Law will signify, whenever the King pleases to dispense with them, either as to raising Money, or taking away Mens Lives, or Liberties, or Estates,

v contrary contrary to Law? Nay, the Papists already give out (and that in Print) that all Laws for taking away Religious Orders, and SuppressureS of Monasteries, are against Magna Chart a, by which Holy Church (that is, the Popish Religion then in being ) is to enjoy all her ancient Rights and Liberties ; and the Abbots and Priors do thereby, as well as the Bisliops and Lay-Lords, reserve to themselves all their ancient Rights and free Customs. Now whether this unbounded Prerogative would not Quickly have destroyed not only the Ecclesiastical, but Civil Constitution of this Kingdom, as they now stand established by Law, and would have soon introdiic'd both Popery and Arbitrary Government on thisNation, I leave it to your self, or any indifferent Person to consider.

And though I do not lay, that the bare giving of Papists or Protestant Dissenters a Liberty of Religious Meetings, or Assemblies for Mais, or Preaching, is an Infringment of" the free Exercise of our Religion established by Law j yet pray take one thing along with you, which is a Matter of great Moment to the Dissenters, as well as to us of the Church of England: For if the King can thus, by his Prerogative, give them a Liberty to meet publickly, contrary to Law; let the latter look to it; for he may by the lame Prerogative (whenever he pleases) dispense only with the Papists, and keep the Laws still on foot against Dissenters •, nay, he may by the fame unbounded Prerogative dispense with all the Laws for the publick Exercise of our Religion ; and under pretence of dispensing with them only in some particular Cases, shut up our Church-Doors one after another, beginning with the Cathedrals, and 16 proceeding by degrees to Parish-Churches. And tho' I grant King Charles II. did assume a Power of dispensing with all Statutes concerning Religious Meetings, contrary to Law; yet the Nation had not then any sufficient Reason to life in Arms against this Declaration •, since it did not extend the King's Prerogative beyond those Acts concerning Religious Worship. And farther, the Nation was not out of all Hopes of having it redressed by the next Parliament, and Ib was not in that desperate Condition in which it was lately, before the Prince of Orange's coming over. And you may remember, that the late King, upon the joint Address of the Lords and Commons against that Declaration, was forced to call it in, and cancel it •, which certainly ought to have been better considered by his Majesty, and those of the Popish Junto that advised him to issue out the late Declaration, so expresly contrary to Law, and the Sense of both Houses of Parliament, and which gave the Archbishop ofCanterbury, and the rest of his Brethren, a sufficient Ground of petitioning against it ; and this was so evident, that a Jury, in which the greatest Part were high Prerogative-Men, could not upon a fair Trial but acquit them.

M. I shall not further dispute this Point, since you have dwelt so' long upon it •, though I must still tell you, I do not look upon this as a sufficient Cause for the Nation's taking up Arms, for another Reason 1 shall shew you by and by. And therefore I shall now proceed to the next Head complain'd of in the Prince s late Declaration,(vie.) the late Commission for erecting a new Court for Causes Ecclesiastical j but as I will not enter upon the Question of the Legality of it, so on the other side it was also done by Colour of Law $ and the King, as supreme Head of the Church, was told by his Ministers, rhat he had Power to erect what new Court Ecclesiastical he pleased, provided it was not of the fame kind with the High Commission-Court, which had been abrogated by the Star, of the 17th of King Charles I. as likewise particularly excepted in the Proviso, in the Stat. of the 12th of King Charles II. for restoring Ecclesiastical Jurisdiction to the Bishops Courts: So that admitting that Court was not legal, yet the Persons who advised the King to erect it, and the Commissioners who fat in it, were only answerable for it in the next Parliament; and though the Bishop of London was suspended, and the President, and Fellows of Magdalen College were unjustly expelled by this Court, yet sore none of these Miscarriages could give the Subjects of this Kingdom any just Pretences to take up Arms to redress them, being done (as I laid before) by Colour of Law, without any Force or Violence and was also submitted to by the Parties against which these Decrees were given, and was at the most but a Matter of particular Concern, and reacn'd no farther than the laid Bishop and College, and did not touch the Religion and Civil

Liberties

1

Dialogue the Ninth. ^g^

Liberties of the whole Kingdom ; and consequently was not of that general Importance, as to be any just Cause of the Whole Kingdom's taking Arms, much left for the King's Officers and Soldiers to run over to the Prince ofOrange, as they lately have done. ■ .

F. To answer what you have now said concerning the Ecclesiastical Commission ; that, I must also tell you, was issued forth without so much as any Colour of Law for it •, and though the late Chancellor, and some of the worst and most Mercenary Judges countenanced it by appearing for, and acting in it, yet it is very well known, that it was never proposed to all the Judges to be argued in the Exchequer Chamber, as it ought to have been, before a Thing of that great Importance to the whole Nation had pass'd the Seals. As to what you lay, that the King's Ministers told him it was according to Law, and that they alone ought to answer for it in the next Parliament, and that no publick Disturbance ought to have been made about it, because the Things that that pretended Court did, were but of a particular Concern, and only reach'd the Bishop of London, and one single College that is but a Fallacy which you put upon your self For sure if you had better considered of it, you would find that what these Commissioners have already done, is of a little more publick Concernment than you are aware of; for pray tell me, why by the fame Law, by which the Bishop of London wasr suspended for his Refusal to silence Dr. Sharp,all the Bishops in England might not have been suspended one after another by that pretended Courr, if they had refused to obey or execute any Letters or Orders from the King, tho' never so illegal or unreasonable? Since what Command could be more illegal, than the King's positive Order to the Bishop to suspend a Clergyman from his Diocese, without first hearing him, or giving him leave to answer for himself? So likewise for the Case ofMagdalen College •, by the same Law by which these Ecclesiastical Commissioners took upon them to turn out the President and Fellows, for disobeying the King's Mandamus, by the fame Law rhe King might put upon any other College in either University, Popish Heads, and Popish Fellows, till instead of Nurseries for the Education of our Youth in the Protestant Religion, they may become as absolute Popish Seminaries, as the Colleges ofDoway, or St. Omers. And though I grant that the Persons concerned in these unjust Decrees, might have patiently submitted to them without any Protestations against the Jurisdiction of that pretended Court, since they might for some prudential Reasons have thought fit to submit, without N making any such Protestation, and yet for all rhat not allow their Authority 5 yet indeed the Matter of Fact was far otherwise; for when a Part of these Commissioners fate at Magdalen College, to expel the said President and Fellows from their Places, contrary to Law, and the express Statutes of the College, several of them protested against their whole Proceedings, and appealed to the King's Courts at Westminster! And it isa plain Proof how willingly Dr. Hough the President of this College, submitted to this Sentence, by his locking the Doors of his Lodgings, and leaving the Commissioners to break them open before they could get in, and put in his pretended Successor by Force.

But as to what you fay, that the King was told, he might as Supreme Head of the Church, set up what new Court he pleased for the Execution of his Ecclesiastical Jurisdiction; it is certainly a great Mistake. For I utterly deny, that the King has Power to erect any new Courts either Ecclesiastical or Civil, unless by Authority of Parliament •, the King s Power to make a Vicar-General being only confirmed by the Statute of King Henry the Eighth, as was. also the Authority of the High Commission, by the Statute of the first of Queen Elizabeth. And if either of those high-spirited Princes had believed themselves to have been invested with such an unbounded Prerogative, they would certainly have exercised it without being beholden to the Parliament. But indeed it is but a Subterfuge, to alledge that this Court was not of the fame Nature with that of the High Commission, because it did not take upon it to Fine, or commit Men to Prison, nor to administer the Oath ex Offieio, to those that were convened before them i since it is not the different Name, or some small difference in the Manner of the judicial Proceedings, but the Causes or Matters that a Court pretends to take Cognizance of, that can make it a Court of a quite different


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Nature. Now it is notorioufly known, that this late Ecclesiastical Court took upon it to judge of Matrimonial Causes about Alimony, and concerning Simoniacal Contracts, and all other Misdemeanors both of Clergy and Laity, against Religion and good Manners, which were the fame Things the late High Commission Court took upon them to determine.

M. I shall make no farther Reply at present to what you now say, till I come to answer once for all: Therefore I shall go on to rhe next Thing excepted against in the Prince's Declaration, (viz.) the Erecting of Publick Chapels for Mass, the protecting of Priests, and the making a Jesuit a Privy-Councellor; all which, tho' I confess they 3re against the express Letter of divers Statutes, yet since all these Things depend upon the King's dispensing Power, set forth in his Majesties late Declaration, Which as I will not assert, lo I will not positively deny; since the said Declaration of Indulgence, and all Proceedings thereupon were issued out and executed undet Colour of Law, viz.of the King's Ecclesiastical Jurisdiction, without any Force or Violence upon the Conscience, Religion, or Properties' of the King's Protestant Subjects, whom the King in his said Declaration solemnly promises to protect in the free Possession, and Enjoyment of their Religion established by Law. And I cannot see how a Liberty granted to Popish Priests to fay Mais, or the putting in a Jesuit into the Privy Council, or making Popish Judges, or putting a Papist into the Ecclesiastical Commission, can be looked upon as any Invasion of the Protestant Religion; the free and publick Profession of which we have (God be thanked) as quietly enjoyed as we did in the Reign of this King, or in that of his Brother.

f . Since you cannot directly justify the King's setting up Publick Mass-Houses iti London, and in molt other Parts of the Kingdom, and his so publick ptotectingand countenancing Papists and Jesuits, even to the making a Jesuit a Privy-Counsellor, tho' they are all in Judgment of Law alike publick Enemies and Traytors to the King and Kingdom and that all these (as you cannot deny) are contrary to the express Words and Intent of all Statutes against Priests and Popish Assemblies; lo you endeavour to palliate it under the King's dispensing Power, which you suppose to have had a Colour of Law (at least) to support it. But tho'the giving Liberty to Popish Assemblies, and the Conventicles of the Dissenters, was no direct hindrance of the free Exercise of the Protestant Religion establish d by Law, yet I must utterly deny that the King has any such Prerogative, as to dispense with those Laws, and by his sole Authority to declare those that the Law calls Enemies and Traytors, to be good Subjects. And you may as well tell me, that the King has not only a Prerogative Power to pardon Highway-men; but may also protect them, and put them into his Guards, with a Commission to rob whom they pleased as to give Papists Power to bear Arms, or to protect and employ declared Traytors, (as Popish Priests and Jesuits are by Law) as the King had done. The like I may fay, for putting in Popish Judges and Justices of Peace, (viz.) that it was all done by Force of the King's Personal Orders, without his Legal Authority, which is that alone we can take cognizance of, or render any Obedience to. And though 'tis true, I do not deny the King a Power of making whom he pleases Judges, yet this Prerogative is still to be exercised according to Law. And therefore if the King should make an illiterate Man a Judge, who could neither Write nor Read, the Writ or Patent would be void in it self. The same I may say of a Popish Judge; the Law making no Difference (as I know of) between a natural and a legal Disability. But however the turning out honest and able Judges, because they would not give up our Religion and Liberties to the King's Arbitrary Will, is certainly a much greater Breach of the Trust committed to him by his Coronation Oath, wherein he swore he wou'd mainrain the Laws of the Land, and mix Equity with Mercy in all his Judgments: Now where is the Equity, or Justice of this, that whereas most of the Judges anciently held their Places quam diu se bene gefferint, they should now (by a notorious Encroachment of the Prerogative) not only be made durantc beneplacito j but that the King should stretch this Prerogative so unreasonably, as to examine the Judges beforehand, whether they would agree to the dispensing Powet; and to turn out those that refused to comply, meerly because they would not serve his Arbitrary Designs? And then to put in some of the meanest and most mercenary Lawyers at the Bar, (nay some who never come thither at all) into their Places for no other Merit or good Qualities, but because they would, serve a Turn, is so notorious a Breach of his Oath, that it could not fail in a little Time to destroy all our Common, as well as our Statute-Laws, since these were all lately lodged in their Breasts, and resolved into their Arbitrary Determinations, which yet (as all the World knows) were wholly managed by the Influence and Commands of the Court : And this I fay again, was as notorious an Abuse of the King's Prerogative, as if he had put in; Highway-Men into his Guards, with Commissions in their Pockets, to rob whom they pleased; since these Gentlemen in Scarlet have taken the fame Liberty under Colour of Law, to raise Taxes upon the Subjects, against the Express Letter of an Act of Parliament •, as may be seen in their late Determination concerning Chimney-Money, making Cottages, built for the Use of the Poor, and Houses of Persons exempted from Payment, liable to Chimney-Money, contrary to the express Words of that Statute.

M. I cannot deny but the Things you now mention have been great Abuses of Prerogative, but whether so great as to require Resistance I must still disagree with you. Therefore I shall now proceed to the next Particular complain'd of, {viz.) The examining of the Lords Lieutenants, Deputy-Lieutenants, Sheriffs, and Justices of Peace, to know whether they would concur with the King in the Repeal of the Test and Penal Laws, and turning all such out of Commission as refused to comply with the King's Desires in this Matter. Now, tho'1 will not lay it was well or prudently done, yet it was no more than (what I thinks the King, by his Prerogative, might justify the doing of; since he may, by Law, give a quietus est to what Judges he pleases •, and put in or out of any Commissions, whether Civil or Military, whom he thinks fit: And as for the Persons so examined , they might have chosen whether they would have given any positive Answers to the Questions put to them, by the Lord Chancellor and Lord Lieutenants ; and if they had refused to answer positively to those Questions proposed to them, I know no other Penalty they had. been liable to , more than being put out of Commission, which sure is no Punishment, but rather an Ease. And though I do not defend those evil Ministers, that put the King upon this Method 'of distrusting and disobliging his best Protestant Subjects, (I-mean those of the Church of England) by putting them out, and putting in either Papists or Fanaticks in their Steads; yet all that own themselves of that Communion, ought to have been of more loyal Principles, than to have taken up Arms, as some of them have done, upon Pretence of standing by the Prince of Orange's Declaration against these Abuses.

F. I see though you cannot directly justify the 'examining of the Lords Lieutenants, and Deputy-Lieutenants, and Justices of the Peace, about taking away the Penal Laws and Test, and turning those out of Commission that refus d; yet . you strive to mitigate it (as far as you can) by making it Part of the King's Prerogative, to put in and out what Judges, Justices, and other Officers he pleases. Well, granting this to be so, yet sure you cannot deny but that the closetting of Judges, and all other Officers you have now mention a, and putting those out of Commission, that refus'd to comply with the King's Will, ( and that for no other Reason) was sure a strange Abuse of that Prerogative: And the Excuse you make, that tiie Persons examin'd had a Liberty to refuse whether they would give any positive Answer or not, is yet more trivial, since it is very well known, that as well those who gave doubtful Answers, or refused to make any Answer at all, were as much turned out, as they who positively denied to comply with the King's Demands: So that no Answer was looked upon as Satisfactory, but such as seemed to give up all Freedom of Elections, and Votes in Parliament none being to be chosen by the King's Directions, but such as would engage before-hand to repeal the Test and Penal Laws. And I think you will not deny, but that the King by thus examining all these Magistrates and Officers you now mention, and by turning those out that refused to comply, did all he could to hinder the Free Election of Members to serve in Parliament, and the Freedom of giving their Votes when they came thither : And the King might as well another Time have declar'd, That he would have no Members chosen, but such as would agree to take away the Statute de Tallagionon concedendo, or any Branch of Magna Charta,

R r r which wh"rch he should think fit to have repeal'd. And as this strikes at the very Fundamental Constitution of the Government, (viz.) rhe Free Election of ParliamentMen, so it was inserted among the Articles against Richard the Second, that he had caus'd the Sheriffs to return whom he pleas'd for Knights of Shires, as I have already Ihewed you.

But what fay you to the King's late calling in almost all the Charters of Cities, Towns, and Corporations inEngland; and putting in Popish or Fanacick Officers and Magistrates into the Rooms of thole that were turn'd out, only to influence Elections, and to procure what Persons he desired ro be return'd for Parliament-Men? Is rot this a grand Breach of the Fundamental Constitution of the Kingdom, thus to take away the Legal Rights and Privileges of these Corporations, for no other Cause than to procure the King such Parliament-Men as he had a mind to? And if a Parliament had been chosen by Men of these Principles, pray consider what small Hopes there would have been? for Men of like Principles with them that chose them, to have redressed the Grievances the Nation then lay under.

M. I beg your Pardon, I forgot to mention this sooner •, and though I will not take upon me absolutely to defend the Legality of it, much less the Design for which it was done, since I grant that it was in order to destroy, or at least to humble, the Church of England; yet since it was done by Colour of Law, and Judgment of the Court of Kings-Bench, and no more than what has been formerly done in the Reign of KingCW7«; 1 cannot fee how the Noblemen and Gentlemen lately in Arms, could defend their Rising upon that Ground, unless they would also at the fame Time, justify the Lawfulness of the Plot and Rebellion intended in the fame Reign; and in which so many of the Whig Nobility and Gentry were deeply engaged.

F. To answer what you have said in Vindication of this great Violation of one of the Fundamental Rights and Liberties of the Kingdom ,■ I must in the first Place tell you, That as I lhall not now examine into theMatter of Law, whether a Corporation can forfeit its Charter for Misdemeanors or not 5 much less shall I concern my self whether it were done by or without Colour of Law, or the Judgment of the Court of 'King's-Bencb, since it is notoriously known that none of the Judges were permitted to fit there, nor any new ones put in, but such as would blindly agree to all the Court would have done ; and therefore I value not any Thing they did, nor think it one Jot the more legal for their Judgments: Nor is it any Excuse, that the fame Thing was done in King Charles's Reign, and therefore might as well be done now without any Rising against it. For though I must tell you, I look upon the raking away of the Charters from the City of Laxdon, and the other Cities and Corporations of the Kingdom, one of the most arbitrary and illegal Acts of that King's Reign, yet there were leveral Reasons which made it unlawful for the Nation to rife then ; yet it might not be (6 now: As in the first Place, because most of thole Charters were either willingly surrendered by the Members of those Corporations, or else were declared forfeited by Trial and Judgment of Law. Whereas it was much otherwise in this King's Time, when notwithstanding that all the Cities and Towns Corporate in England, had but a few Years before taken out new Charters to their great Trouble and Expence, they were now fummon'd anew to surrender these again, for ho other Reason, but because it was the King's Pleasure it should be so. For who can imagine, that all the Corporations of England could have forfeited their Charters in so snort a Time as Three or Four Years? And they were plainly told, that the King must and would have them ; and that it was to no Purpose to stand out; and therefore it was no wonder, if all the Cities and Corporations of England were forced to submit patiently to this Violation, since they found by Experience the Judges were ready to give Judgment against them right or wrong.

And besides this, I have already laid it down as a Maxim , That no Resistance whatever is to be made, till Matters become desperate, and all other Means are become absolutely ineffectual, which I think they were not, as long as King Charles lived, who besides the Inconstancy of his Humour, which seldom persisted long, either in well or evil-doing, (especially if the ill Consequences of it wete well laid open to him,) was too timerous then to have put in any Magistrates into Corporations, but such as were for the Protestant Religion, as it stands by Law

Estaestablished \ and such, however angry they might be with those they calsd Whigs, in respect of their opposing the Duke's Succession to the Crown * yet I believe most of them would never have given up the Freedom of Elections of Parliament-Men, or have done any Thing to bring in Popery among us: So that as long as Things remained in this State, there were some hopes still left of a Redress of our Grievances, whenever a Parliament had met j and that the Nation was grown more cool, and had come to it self again after those Heats which had risen in the late Parliaments about the Succession, and other Things. Whereas now the Case was far otherwise in this King's Reign * wherein we found not Only our Religion, but the fundamental Rights and Privileges of the Nation, struck at by the King's dispensing Power, and the Arbitrary Proceedings of the Judges. And not only the Freedom of Elections of Knights of Shires, but, of Citizens and Burgesses, endeavoured to be taken from us; either by threatning the Electors, or else by open Force; as I shall prove by and by, when I shall have Occasion to speak farther upon that Head: So that unless a great Part of the Nation had declared for the Prince of Orange\ he had been repuls'd with Shame and Ruin, and our Chains tied taster upon us, than ever they were before.

M. I shall forbear replying farther to what you have now said, till I come to conclude. But in the mean Time I cannot omit another material Grievance set down in the Prince's Declaration, {viz.) the turning out and disarming the English Protestant Magistrates, Officers, and Soldiers in Ireland, and putting of Jrijh Papists in their Rooms •, as also the late Declaration of Indulgence in Scotland; but as I will not defend the Justice or Prudence of those Councils, so I think none of them could give any sufficient Cause for the People of this Kingdom to rise in Arms; for lure it is enough (if not too much ) for them to concern themselves with the Grievances and Miscarriages of their own Country, without taking upon them to take up Arms to reform those of their Neighbours \ since they are not only ignorant of the Laws and Constitutions of those Kingdoms, but may also mistake the true Reasons and Grounds on which those Alterations were made.

F. I see you can as little defend what has been illegally acted in Scotland, as in Ireland* only you would fain put me off, by telling me that the People of this Nation have nothing to do to take Notice of what is done in other Kingdoms j and you may as well tell me, that a Man ought not to take any Warning, as to defend himself against Thieves, though he fees another Man robb'd by them before his Eyes $ or that the Protestants of England should not take Warning by the fad Example of those in France, from ever suffering a Popish King from having the same Power here as the French King has in France, for fear of the like fatal Effects j Since I never sound Papistsgive Protestants the least Forbearance, or shew them any Mercy, longer than whilst it was not in their Powet tohurt them.

But to come to the Matter in Hand j we cannot but concern our selves with what has been so lately done inScotland and Ireland, for the introducing of Popery and Arbitrary Government in those Kingdoms, since the fatter is notorioufly known to be govem'dby the fame Laws as England-, and it is as much against the I^ws of that Kingdom, as it is of ours, for the Irish Papists to be put in Arms, and the Protestant Militia disarmed, and for Popish Judges, and Justices of Peace to be put in Commission, as hath been practised under the Government of the Lord Tyrcornel: And if English Protestants in Ireland cannot enjoy their Estates and Liberties, without being turned out of them by the Papists, how could we in England expect better Treatment, whenever they shall think themselves strong enough: And as for Scotland, though it be not wholly governed by the fame Laws as England,yet the fundamental Constitution of the Government is the fame in both Kingdoms, and the King can no more make, abrogate, or dispense with Laws in Scotland without the Parliament, than he can here * and therefore for the King not only to issue out such a Declaration of Indulgence, and Suspension of all the Penal Laws in Scotlandagainst Papists, but also therein to declare, that he expected an Obedience to all his Commands, without Reserve ( whether legal or not) was so bold a Stroke, that we could not but

R r r 2 expect expect the like in England, though His Majesty thought it not fit at present, to discover his Mirid so plainly to us.

Jit I lhall not any longer dispute these Points with you, but own that the Abuses you mention, were indeed of great Concern both to the Protestant Religion, and our Civil Liberties; yet however, besides the Laws of the Land, (which I still suppose do exprefly forbid all Resistance of the King upon any Account whatsoever) I think there ought to have been no such Thing done by any Subject' of this Nation, even upon your own Principles, which seem not to allow of such Resistance, but in case of an actual and violent Assault upon Mens Religion, Lives, and Properties, and that by open Force of Arms. Now I desire you to shew me, whom the King has ever yet dragoon'd, or persecuted till they would become of his Religion? Or whose Life his Majesty hath taken away, even of the most notorious Traytors, but by due Tryal, and Course of Law? Nay, he has pardon'd divers, several after they were condemn'd, meerly because he was inform'd they were not really guilty of the Crimes whereof they stood condemn'd. And as for Mens Civil Properties, I defy you to shew me any Person s Estate that has been taken from him without due Course of Law •, or any Taxes that have been Assessed upon the Nation, but what have been granted by Parliament; or else raised by the Opinion of the Judges, by whom if his Majesty hath been mifinform'd, They only ought to answer for it in the next Parliament, who are the only proper Judges of their Miscarriages, without having any Recoutse to Force, which the Laws of this Kingdom so much abhors. And therefore make the worst of it you can, all these Grievances already mentioned, were no more than some Breaches upon the outward Splendor of our Church, Religion, or feme of our Civil Liberties •, whilst the Main and Essential Parts of both continu'd untouch'd •, since, God be thanked, we have hitherto enjoy'd the Free and Publick Profession of our Religion, together with our Lives, Liberties and Estates, in perfect Peace, and undisturb'd by any outward Force or Violence from the King, or any Commission'd by him: And as for those' Grievances you mention, viz. The turning out the President and Fellows of Magdalen College, by the late Ecclesiastical Commission, as also the turning out of the Deputy Lieutenants, and Justices of the Peace, and all other Magistrates out of Cities and Corporations, the King has sufficiently redresVd them, by restoring the first to their Places, and by putting all the rest into Commission again, and turning out those th3t came in their Rooms, and all this before the Prince of Orange came over and I doubt not but his Ma jesty would have been content to have given the Nation any other reasonable Satisfaction they could have desired in the next Parliament: Which ought to have been patiently waited for until his Majesty thought fit to call it, without going about to right our selves by Force.

F. I confess you have made not only the most plausible Defence you can of the King's late Actions, but have also urg'd the utmost that can be said against those defensive Arms that have been lately taken up by those Lords, Gentlemen, and others who have associated themselves to stand by the Prince of Orange, till our Grievances were redressJd by a Free Parliament: But if what you have said be strictly look'd into, I doubt it will prove but a mere Subterfuge to hide the Nakedness of the Cause you have undertaken. In the first Place therefore, let me me tell you, that though I confess the King has not yet Dragoon'd us to Mass, nor has made an actual War upon the Lives and Properties of the People of this Nation j yet that he has not only invaded our Liberties, but also endanger'd the Protestant Religion of the Church of England establish'd by Law, you your self have not the Confidence to deny} only you will not suppose it to have been done by any Armed Force, and therefore ought not to have been resisted by Force, but to have waited for their Redress by Parliament; which is but an Evasion: For in the first Place it is plain, that the Things complain'd against, in the Prince of Orange's Declaration, do most of them strike at the Fundamental Constitution, both of the Church and State, as I have sufficiently prov'd, and shall do it more particularly hereafter, when there is Occasion. All therefore that remains to be prov d is this, That all these Breaches, and Violations of our Religion and Civil Liberties, though done under Colour of Law,' yet were acted and maintained by ''• Force.


{493}

Force. And Secondly, That all other Hopes of Remedy or Redress, unless by joining with the Prince of Orange,was wholly taken from us. The first of these I prove thus: It is notoriously known, that for the King to maintain a Standing Army in Time of Peace, has been always declar'd against in Parliament, as contrary to Law, and dangerous to the Religion, Civil Rights, and Liberties of this Nation. Now it is also as certain, that the King has, ever since the Duke of MonmoutWs coming over, let up and maintain'd a Standing Army in this Kingdom * in which he has also put in as many Popish Officers, and they as many Popish Soldiers (contrary to the Laws of the Land) as ever they could find •, besides the many Irish Papists that have been of late lent over, for no other Purpose than to be listed here, and whilst Protestant Soldiers were turn'd out of several Regiments to make room for them: Not to mention the lifting of vast Numbers of loose and profligate Fellows, and some of them pardon'd Highway-Men, who, provided they had their Pay, would not have stuck to rob or murder any body they had been ordered \ as may be sufficiently prov'd, not only by their common taking of free Quarter, but by. their frequent taking it in the Houses of Gentlemen, and other private Persons, in divers Places of this Kingdom; and that without any Amends or Redress as I know of, tho' frequently complain'd of at Court: AU which being done by the King's Arbitrary Power, without the least Colour of Law, and in Contempt of the Militia, the only legal Forces of this Kingdom, what was this but plainly to declare, that as the King had thought fit to act so many arbitrary Things clean contrary to Law, so he was likewise resolv'd to maintain 'em by Force; since it is plain, that the King never durst undertake to do all these Illegal and Arbitrary Things we have now mention'd, until, such time as his standing Army was raised? And tho3 it is true, Mens Lives, Liberties, or Estates cannot be taken away, unless by some Kind of Force * yet as for those Civil Rights and Privileges, which are the main Bulwarks and Defences of the former, they can only be invaded or taken from us by illegal Judgments and Declarations; which if supported by a visible Force beyond what the Nation (in the Circumstances it was in) was able to resist, this is as much a taking them by Force, as if there had been Resistance made about them.

Thus, if Soldiers come into my House, and lay that the King hath given them Orders to quarter there upon free Cost, I suppose you will not deny, but this is a forcible taking of my Goods, notwithstanding I dare not (because I cannot) refist them. The lame I may fay for a whole Nation, when once opprefs'd in their Civil Liberties, and those Oppressions are once back'd and defended by a Standing Army, contrary to Law: But that this Army was raised chiefly to this Intent, I can give you a remarkable Instance from the Mouth of the late Chief Justice Wright,who sent for Officers and Soldiers to make the Scholars at Oxford keep silence, because they humm'd at what the President and Fellows of Magdalens had just before laid against the Authority of this pretended Court. So that to conclude i from that very time that the King began to keep up an Army, and to list Popish Officers and Soldiers, (tho' utterly disabled by Law to take Commissions, or to bear Arms) by virtue of his Dispensing Power, and all this in Order to back and support his Arbitrary Proceedings, I look upon this Nation under such a Force, as that they might lawfully remove it by Force, whenever they could: And that either by joining with some Foreign Prince, or else by their own Domestick Arms.

But to come to the Second Point to be prov'd, viz. That there was no other Means but Force left us to redress those Mischiefs, and to retrieve us out of that lad Condition in which we lately were, as also to hinder us from falling into worse j I shall only suppose (that which I think you will readily grant) that there could be no other Means to cure these Evils, but either by some sudden Change in the King's Inclinations, or else by a Free Parliament: The former you must acknowledge was not possible, as long as he continued of the Religion he is of, and suffers himself to be manag'd by the Counsels of the Jesuits, and French King; and as for a Free Parliament, what Hopes could there be of that, as long as the King had done all he could to hinder Free Elections, and due Returns of ParliamentMen, by making either Popish or Fanatical Sheriffs, and putting Mayors and



other Officers of the like Principles into most of the Cities and Corporate Towns in England? Nor can I tell but that Force would allb have been used, is they found they could not have compassed their Designs without it, in those Places where Soldiers were quarter'd ; since I am credibly inform'd, that at the late intended Elections ot" Burgesses for Northampton and Brack/y, the Officers and Soldiers quartered at those Places, declared, That none of the Townsmen should be admitted to give Voices at the Election, unless they would promise to Vote for those that the Court would let up: And the like Instances I believe I might give you of other Places, had I time to enquire into it. And as for the House of Peers, pray consider how many of the Bishops and Temporal Lords the King might have gaind, either by Threats or fair Promises, to his Party, or at least prevail'd upon to stand Neuters, and not to oppose his Designs \ and if these had fail'd, it had been but calling up some Popish, or high Tory, or Fanatick Gentlemen to the House of Lords, and to have fat there as Barons, Peers, pro tempore, till this Job was done and I doubt not but there would have been enough found out, of each Sort, for that Purpose. And that I do not speak without Book, I have had it from Persons of very good Intelligence, that such a Design was lately on foot, and the Court Party thought they had very good Authority for it 5 since Mr. Pryn and Sir WilliamDugdale pretended to-fhow us several Examples of this Kind, as low as the Reign of K Henry the IVth. And a great part of the Design of your Dr. fl.'s late Books leem to have been only to prove, That the King might not only have Summon'd to Parliament what of the Commons he pleased, but what Lords too, and have omitted the rest •, as I have already lhown you at our two last Meetings. And sure, if the King had such a Prerogative Two or Three Hundred Years ago, these Gentlemen would not have deny'd his present Majesty the like Power; since they have, in all their Writings and Addresses, declar'd him as absolute as any of his Predecessors.

But to make an end j As for what you fay of the King's Redressing the Grievances of the Nation before the Prince of Orange came; it is very true, he did by the Advice of some of the Bilhops, endeavour to put Things into the fame State they were in at his first coming to the Crown. But I very much mistrust the Sincerity of his Majesty's Intentions, since it is plain he never ofter'd to do it till the Prince of Orange was just upon coming, and that his Declaration had been spread about the Kingdom; and then he did it very unwillingly. And which is also more remarkable, his Majesty, in none of his Declarations, ever disowned his Dispensing Power, or so much as put out Father Peters from the Council, or disbanded one Popish Officer or Soldier out of his Army: All which are no great Arguments of the Sincerity of his Intentions. So that I think this was sufficient to convince any reasonable Man, that thete was no other Means left us but Resistance, and that by Force, and a hearty joining with the Prince of Orange at his Landing.

Now, since this Resistance was not made either in Opposition to the King or the Laws, but for Defence of both, against a Standing Army kept up contrary to Law, and headed by Officers, the greatest Part of which, by not taking the Sacrament and Test, according to the Act made for that Purpose, had render'd themselves wholly uncapable of holding those Commissions, and consequently whilst in Arms were to be look'd upon as common Enemies to the Nation. But as for his Majesty's Gtacious and Merciful Disposition •, as I shall not make it mjr Business personally to reflect upon him, so I must needs tell you, the Execution of Mr. Cornish, Mrs. Lisle, Mrs.Gaunt, for Treasons falsly alledg'd, or else such as Women could scarce be capable of knowing to be so, were no great Evidences of such highly merciful Inclinations.

M, I confess you have taken a great deal of pains not only to set forth the late Miscarriages of the Government, but also to prove that the Army which the King raised upon the Duke of MonmoutWs Invasion, and which he hath since kept up to prevent either fresh Rebellions at home, or Invasions from abroad, has been tnerely maintain'd ro support all these late Breaches upon our Laws and Civil Liberties, which you fay were made upon them. Now this is very uncharitably done; for as his Majesty was forc'd to raise that Army at first, because the late Rebellion in the West was too powerful to be quell'd by the ordinary


Train'd Bands of the Kingdom, whom he had too much Reason to suspect, by the running over of several of them to the Rebels, not to be so Loyal as they ought to have been : And if his Majesty had not had a small Body of an Army on Foot, the last Summer before the Prince of Orange came over, he must, upon hts Landing, have yielded to his Terms, had they been never so unreasonable. And though I will not defend the Listing of Popish orIrish Soldiers, or the Granting Commissions to Popish Commanders, yet it is very hard to prove this to be a making War upon the Nation, unless you can suppose there may be War made without Fighting. And as for those Violations of the Laws, which you suppose were made only upon the Presumption of this Standing Army, this is likewise very hard to affirm; since how can you tell that the Judges and Ministers would not have given the fame Opinions and Advices, concerning the dispensing Power, Chimney-Money, and the Ecclesiastical Commission, had there been no Army at all rais d; since they might, for ought I know, have presum'd that the People of this Nation had been sufficiently convinc'd of the Truth of the Doctrines of Passive Obedience and Non-Resistance, as not to have needed a Standing Army to back what he had already done, though contrary to Law. But as for the latter Part of your Discourse , I say the People ought to have waited till the King had call'd a Parliament; and then if they had betray'd their Trust, and given up our Religion and Liberties, as you suppose they would have done, it had been then Time enough, and not till then,1 for the Nation to have calsd in the Prince of Orange and hisDutchmen to their Deliverance. So that till this Parliament had been try'd, you could not fay that Matters were altogether desperate.

J1. I see you do all you can to prove, that the King's Raising an Army, wherein he had Listed so many Popish Officers and Soldiers, (and Which were like to be daily increas'd upon us) was no making War upon the Nation, because they had not yet actually robb'd or murder'd People; and you 'may with as much Reason tell me, that a Thief upon the Highway does not use any Violence upon the Party he robs, if he should only clap a cock'd Pistol to his Breast, . without asking him to deliver his Money. Now, I suppose, you will not deny, but that the Passenger would quickly understand the Meaning of that Sign, and would soon deliver his Purse, for fear of losing his Life. Apply this to the taking of the Customs contray to Law, and to the Chimney-Money that has been rais'd upon the poorer Part of the Nation, and the taking away the Charters from the Corporations, merely through the Terror of this Standing Army •, and fee if* the Similitude does not exactly fit. And for what you fay, concerning the presuming upon the Doctrine of Passive-Obedience, and so might have done the fame Arbitrary Things, whether he had raised an Army or not; though I am very glad you confess, that those Doctrines encouraged the King's Arbitrary Proceedings, yet I must beg your Pardon, if J cannot believe the" rest. Whatever Thoughts the King might have of the Major Part of the Clergy, Nobility, and Gentry, yet certainly he had no such good Opinion of the ordinary People, who compos'd the Æisitia, (and indeed are the Hands of the Kingdom ) since you confess the King did not look upon them as sufficiently Loyal, and therefore was forc'd to maintain a Standing Army for fear of them. So that it seems the Nation was not yet thoroughpac'd in your Doctrines of Passive-Obedience and Non-Refistance, as you would have had them j but that even this Standing Army, when it was to Fight against the Religion and Liberties of their own Country , was not to (be trusted, the King himself' was convinc'd of, when he lately left them at Salisbury; and because some of them deserted him, he feared the rest would not Fight, in so unjust a Quarrel.

But as for the rest of your Speech, that the People should have tarried till Matters had become altogether desperate, and that a Parliament had actually given up our Religion, Civil Liberties, and Properties, to the King's Arbitrary Will that had been indeed entailing Slavery upon us by a Law, and would have made good the Proverb, of shutting the Stable Door after the Horse is stolen j and puts me in mind of a Story L have heard of a Gentleman, whose House being beset by Thieves, who were actually breaking in at a Window,

and arid that he was about to shoot at 'them, his over-scrupulous Chaplain (who I suppose had nicely studied fourDoctrine of Non-Resistance,) desired his Patron to forbear, because the Thieves had not as yet sufficiently declar'd their wicked Intentions by assaulting or robbing any Body in the House: But I suppose the Gentleman was not such a Fool as to take his Chaplain's Advice and a great Part of the Nation was more sensible of the Dangers they law hang over their Heads than to follow your Opinion. ° °

M. I see you are very free in your Comparisons, in making the Kings late Army little better than Thieves-, and then what Opinion you have of the King himself who headed 'em, I leave it to your self to consider; but» since Similitudes are no Arguments, I shall not trouble my self to argue this Point any longer with you, since I see it is to little purpose. But yet let your Right of Resistance be what it will in desperate Cases, yet I am sure that divers Lords and Gentlemen of your Opinion can no way justify their renouncing all Allegiance to his Majesty, by adhering to a Foreign Prince and by their late advising the fame Prince to call a Convention, without taking any Notice of the King, or making any more Adresses to him about it, than if he had never been their anointed Sovereign; and indeed it was a great Shame, as well as a crying Sin, for the Nobility, Gentry, and People in and about this great and populous City to let their King be hurried away Prisoner by a Handful of Dutchmen, tho' his Majesty hath had since the good Fortune to escape out of their Hands, when he saw there was ho other Means to help him.

F. In answer to what you have now said, I must freely tell you; that if the Resistance that hath been made against the Army commission'd by the King was lawful, so has all that has been done in Pursuance of that Resistance been alike lawful and necessary and therefore what if I should tell you that the King by breaking the fundamental Constitution of the Kingdom, and by twice going away without ever offering to repair those Breaches, and give the Nation any sufficient Satisfaction for the fame, has not only put himself in a State of War against the People, but has also thereby ceased to be King; or if you will have it more plainly, has lost and forfeited his Right to the Crown.

M. This is a rare Commonwealth Doctrine, and of the fame Batch with that of Bradjhaas and Coolis Speeches against King Charles the First but I thank God I have learned loyaller Principles, and do firmly believe, that a King of England cannot for any Tyranny or Breach of Laws whatsoever, forfeit his Crown or Royal Dignity, as you suppose. But since this is a new Doctrine, 1 shall not be unwilling to hear what you have to say upon this Subject another Time, since it is now too late to pursue this Argument any further. ,

F. Before I make any Reply to what you have now said, I desire not to be misunderstood, as if I call all the King's late Army Thieves, or himself the Captain of them, since in Similies it is sufficient if they agtee in some common Property, without being the same Things to Which they are compar'd tho* this much I may safely say, that those that take Free Quarter without Consent of the Owners in Time of Peace, and those who support 'em in it, are no better than Thieves •, but since you desire to hear my Reasons for this Opinion I have now given you, I desire that we may have another Meeting to debate this weighty Question: and then I will likewise hear whatever you have to fay against it. But I must tell you by the way, that you are very much out in making my Opinion of the fame Batch with that of the Regicides 5 for it appears plainly by the printed Tryal of King Charles the First, that they acknowleged him for King of England at the fame Time when they read his Indictment y whereas I affirm the contrary, and fay that the present King cannot be judged or deposed by the Parliament or People; yet that he has without any Act of ours absolutely abdicated the Government, and deposed himself: But that 1 may not seem to speak out of any Prejudice to this King's Person or Government, I desire we may first debate it in general, whether a King of England can ever fall from, or forfeit his Royal Dignity, let him behave himself never Ib like a Tyrant: And when that is dUpatch'd, it will be then Time to consider, Whether the King has so behaved himself or not.

JVL I like your Proposal well enough-, Only let me desire you to come again as soon as you can; for since I hear there is like to be no Term, I intend to visit iome Friends in the Country, till I fee the Times clear up a little better.

F. I will not fail to wait on you, within a Night or Two j and in the mean Time am your Humble Servant. M.And I am Yours.


{498}

DIALOGUE X.

I. Whether a King of England can ever fall from, or forfeit his Royal Dignity for any Breach of an OriginalContraSi, or •wilful Violation of the fundamental Laws of the Kingdom?

II. Whether King William (the Norman) did by his Conquest acquire such an absolute unconditioned Right to theCrown of this Realm, for Himself and his Heirs, as can never be lawfully resisted or forfeited, for anyMale-Administration or Tyranny whatever.

H! Are you come at last ; I have looked for you these two Nights; I and now began to fear you were not well, or else had distrusted your Cause, and declined another Conference.

F. I beg your Pardon for disappointing you ; which yet I had not done, had not some Business hindred me ; but however, to let you fee I do not decline another Conference with you upon this Subject, pray let us go on where we left off; and tell me freely your Sense of my Notion of the King's Forfeiture, or Abdication of the Government by his Violation of the Fundamental Laws of the Kingdom, and Refusal to repair those Breaches, when he might have done it?

M In answer to your Demand, I will deal freely with you, and must tell you, that I have perused all Writers that have writ any Thing considerable concerning the Laws of Government, or of Nations-, and cannot find in any of them any Thing to countenance your Notion of Forfeiture, or Abdication of an Absolute Sovereign Prince, as I must still take ours to be, notwithstanding all you have yet Tur 'hen i * t0 tne contrary ' unless what you have cited at our Third Meeting, out of Barcip. ± §. 7 l[ clay's Third Book contra Monarcbo-machos; where he allows the Subjects to resist • Puffcnthr'f '<k their Prince, in case he go about to destroy the Body of the People or CommonJunKut. L.7. wealth, whereof he is the Head-: To which I may also add another Case which cap. g. §. 6,7. vou j^yg omitted, viz. If the Prince make over his Kingdom to another, without the Consent of his People: And I confess, that both Grotius and P'uffenitff'Zgcek with Barclay in this Notion: Because they look upon both these Cases, as plain downright Renunciations of their Civil Authority, over those whom they were obliged to Govern. But indeed, the first of these Cases is so improbable -, nay, almost impossible to happen, that were it not for the over-great Niceneis of these Writers, it need not to have been so much as mentioned; since none but a Madman, can ever go about to destroy his whole People ; and therefore such a Prince may be Resisted as a Man out of his Wits ; and locked up, if ever it should so fall out (as you your self have confessed it hath very r*arely) for a Nation to be so unhappy as to have such a Prince ; but as for the Second, viz. the making over their Supreme Power to a Foreign Prince ; that likewise so very

rarely rarely happens, that it is scarce worth the while to make any Dispute about it: But in all other Cases, they held the Supreme Power of every Nation to be al> lblutely Irresistible in any Case whatsoever ; and if irresistible, then certainly uncapable of forfeiting their Right to govern, by any pretended, or real Violation of the Liberties and Privileges of the People. And Bodin, in his first Book de Re- Ca}, j. publica, though he grant, that absolute Princes are obliged in Conscience to keep and maintain all such Privileges which have been granted to the People by either themselves or Predecessors, which are for the good of the Common-wealth ; yet since the Prince is sole Judge, whether these Privileges are consistent with his SV preme Right to Govern and Protect his People, he may therefore have occasion lbmetimes, not only to Detract from them, or dispense with them in some Cases 5 but may wholly break and lay them aside, by turning Tyrant yet nevertheless in /A> uh all these Cases People are still bound not to resist them. And that he looked upon cas. 5! the King of England as such an Absolute Monarch, as well as oilhers he there mentions, you may read in the Place I now cited j where after he has allowed Resistance to be lawful against those Princes, who were not properly Monarchs, as enjoying but a Share of the Supreme Power, and among which he reckons the German Emperor, and the Kings of Denmark, Sweden and soland: But then, when he comes to speak of Real and Absolute Monarchies, his Sense is quite different; as you may see by these Words ; Quod si Monarchia qu&dam est, summd un 'ius potestate constituta, qualis est Francorum,Hispanorum, Anglorum, Scotorum, Sec. (I shall slip all the rest, because not to our Purpose) ubi Reges sinecontroversia jura , omn'ta Majejiatis habent per fe \ nec fingulis civibus, nec universisfas est summi Trincipisvttam, famam, Fartunas in diferimen vocare, feu vi, feu Judice conttituto id fiat, etiamfi omnium scelerum, acFlagitiorum qu<e in Tyrannis convenire antea diximus, turpitudine infamts ejfet. Where you may observe that Force or Resistance, by which such an absolute Prince's Life or Regal Power (here called Fortunat) are as much forbid, as calling him in Question by appointing Judges to fit upon him. And he there gives us a very good Reason for it, Because all SubjeSs of what Degree soever, cannot pretend to any Coercive Fower over the Personof a Sovereign Prince.

F. We have discoursed enough concerning the Resistance of Absolute Monarchs, at our Third and Fourth Meeting, and therefore I desire we may not fall again upon that Subject, which can produce nothing but needless Repetitions; and I have already proved, at our Fifth Conversation, that our King is not an Absolute Despotick Monarch, but is limited and tied up by the Fundamental Laws of the Kingdom, from making of Laws, or raising Taxes without the Consent of his People in Parliament •, and that our Government is mixed, and made up of Monarchy, with an Allay of Aristocracy, and Democracy in the Constitution % the former in the House of Lords, the latter in the House of Commons, as K. Charles the First himself confesses, in his Answer to the Parliaments 19 Propositions. And "I have farther enforced this from divers Authorities out of our Antient as well as Modern Lawyers ; viz. Glanvill, Bratton, Fortefcue, and Sir Edward Coke. So that since we have such clear Proof for our Constitution from our own Histories and Authors, nay from the King himself, besides the Whole Purport and Style of the very Laws and Statutes of the Kingdom, I do not value the Authority of Bodin a Foreigner, whose Business it is to set up the Authority of the French King to the highest Pitch he could •, and therefore being sensible that antiently the Government of France and England were much the fame, he could not with any Face make his own an Absolute Despotick Monarchy, unless he had made ours to too •, but this is not the only Error he has been guilty of in our History and Constitution, as I can shew you when there is occasion. But Arnifaus,who, as well as Bodin, is so much for Absolute Monarchs, yet does in his Treatise of Government called his confess, that a Tyrant in an Hereditary Monarchy, who violates all the Laws of Justice and Equity, to theendangering the Ruin of the Commonwealth, doth excidere Jure hxreditario^ fall from, or forfeit his HereditaryRight. But pray make it out by some convincing Proofs, either from History, or Law, that our Kings are such Absolute Monarchs as you would make them, that by the fundamental Constitution of the Government they cannot be resisted, nor can fall from their Regal Power, let them cany themselves never so Tyrannically for I do not see you have been yet able to do it by any Arguments you have hitherto made use of.

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M. I have already at our Fifth, as well as at our last Meeting, given you divers Arguments and Authorities, whereby I proved the Kings of this Realm to be coml.1.Cat- 9. pleat and absolute Monarchs especially that Place from BraBon, where he thus speaks of the King, That every one is under him and that himself is under none - but God ^ that he has no Peer in his Kingdom , because so he would lose his Power, since an Equal has no Command over an Equal •, much more has he any Superior, because then he would be inferior to his Subjects; and Inferiors cannot beequal with their Superiors. Which sufficiently destroys that Notion of yours, That Subjects can be in any Case equal with their Princes, so as to judge and resist their Actions. Which is also farther enforced by another Passage just aforegoing, de cbart'ts vero Regiis, & faBk Regum , nondebent, nec pojfunt Justiciary, nec private perjona dijputare , nec etiamf in illis dubitatio ul}a oriatur, pojfuntearn inters retari £f in dubiis, & obfcuriis, velft aliqua dittio duos continent intelleBus, Domini Regis er itexpefianda interpretatio & voluntcti, cum ejus fit interpret ari cujus est concedere: From which we may conclude, That the King's Actions were above all Censure and Dispute, much more forcible Opposition of his Subjects. And I defy you to shew me any Passage in BraBon, Fleta, or even your beloved Author Fortescue, that in the least countenances your Doctrine of Resistance, much less your Opinion of the King's Forfeiture of his Crown and Royal Dignity for Tyranny, for the highest Violation of Laws-, but rather the contrary, in all those Passages that I have either observed my self, or sound quoted out of them by others. For though I grant both BraBon and Fletacall the King, if he prove a Tyrant, or one that governs contrary to Law, not God's but the Devil's Minister; yet for all that, they no where maintain, that then he ought, or may be resisted by his Subjects 5 or that they are discharged of their Allegiance towards him. For Brafion tells us, in the lame Place, That if the King do any Man wrong or Injury, Locus erit sup1.2. cap. 7. pftcatjoni quodsaBumsuum corrigat, V? emendet ; quod quidemsi nonsecerit, jatis sujficit ei adpanam, quod Dominum expeBet ultorem j nemo quidem de faff is suit  presumesdifputare, multofortius contra faBum fuum venire. The fame he lays likewise word for word in another Place, of any other King or Prince, who has no superior Lord, against whom there is no Remedy by Assize (or legal Trial) as against an Equal, but only Place left for the injured Subject to Petition. And BraBon gives us a very good Reason for it in this Maxim, omnis quidem sub eo, ipse sub nulla nisi tantum Jub Deo. So that though I grant this Moral Obligation, which the King hath to observe the Laws, is farther increased by his Coronation-Oath, asBrass. J. p. 344, Son observes in his Third Book de ABionibus: But then, as in the Oath of Alle245. cap. 9.giance, the People swear norhing to the King, but what they are bound to observe unsworn: So the King in his Coronation-Oath promises nothing to the People, but what in Justice and Equity he is bound to perform, whether he swear or not: For, ad hoc (faith the same Author of the King) eleBus, & creatus est ut Judiciumfaciatuniversis, &c. and scparare debet Rex, cum ft Dei vicarius, Jus ab Injuria, &c. But then if he will pervert this great End, sor which God made him King ;.if he will not act as it becomes God s Vicar \ if he will obstruct or pervert the Laws, and govern never so Tyrannically 5 yet still there is left no Remedy to his Subjects by the Law, but Moral Persuasion : For the Laws Imperial of this Realm, have declared him to be a free, unconditioned, and independent Sovereign, exempted from all Coertion, and outward Force, much more from any Forfeiture of his Crown or Regal Authority.

F. I hope I shall be able to return you a satisfactory Answer to the Authorities you have now brought: For, as for Reasons I fee none. In the first Place, as to what you fay concerning Barclays, and all orher Writers agreeing , that in these Two Cases you mention, the People may resist their Prince, because he does as good as renounce the Government of them, and abdicate the Crown he wore: Pray observe, that they also allow the People to judge for themselves, when the King thus goes about to destroy them, to make over his Crown ro a Foreign Prince. Now I desire you to shew me, why the People in a limited or mix'd Kingdom ( as ours is ) cannot as well judge when the King has broke the Fundamental Laws of the Government, whereby it is distinguished from an Absolute Defpotick Monarchy ; and hath either actually set up," or is going about to bring in Tyranny or Arbitrary Power; since according to the Rules I have laid down at out last Meeting, rhe Matters to be judged of may be as plainyand evident, not only to a single Person, but to a whole Nation. All that you have

V

to say against this is, only an Hypothesis you have laid down, without any juft Grounds, That the King isa Sovereign Prince, who holds his Crown without any Condition whatever-, and therefore free from all Forfeiture of his Crown, or Regal Authority 5 which is the Point to be prov'd. Now if I have already made out (as I suppose I have) that the King of England is not fiich an Absolute Monarch, as not having the two main Parts of it, viz. the Power of raising Money, and making Laws, in his own Disposal, without the Consent of his People and these reserv'd to them by his own Concessions, or that of his Predecessors, from the very beginning of Kingly Government in this Island ; and if I have also proved at our last Meeting, that if we have such Fundamental Rights, we have also some Means left us to keep and preserve them inviolable$ and that this Means is only a defensive Resistance, in case they are forcibly invaded by any of the King s Officers or Soldiers, nay, by his own personal Power, if he shall be so ill advised as to join himself with such Instruments of Tyranny; it will then also follow, that such a Resistance is really a Suspension of their Allegiance to the King for the Time it lasts; and till they can see whether there be any Hopes left of a Reconciliation with him, and that he will amend his Errors and Misgovernment. And if he does so, and that he. will give his People any sufficient Testimony of his Amendment and Sincerity, by giving up such evil Ministers to Punishment, that put him upon such desperate Courses; I do then readily grant, that the People ought to lay down their Arms, and be again reconciled to their King, and submit themselves to him as before, according to that Clause in King John's Magna Cbarta I have already cited, wherein there is a Power left for the carons, in case of any Breach of it, to take Arms, and constrain the King by taking of his Castles, Lands, and Possessions, to amend those Transgressions; and when all was thus amended, the Charter lays, Tune cumfuerh emendatum (then and not before ) intendent nobis Jicut prius fecerunt, they shall be subject: to us, as they were before. But what followed upon this? The King not only refused to observe this Charter, but procured the Popes Dispensation to be absolved from the Oath he had taken to observe it $ and also raised what Forces he could at home, and sent for Foreigners into this Kingdom to ^support his Tyranny whereupon the Barons at last were forced to renounce all Allegiance to him, and to declare he had forfeited all Right to the Crown by his Tyranny and Perjury towards his People; as Mat. Paris and other Authors shew us at large. Now what the Barons did in the Case of King John, may be also done by the People of this Kingdom in all succeeding Times or otherwise, the King will be in a better Condition after" he has done the worst he can by Force of Arms against the People, than he was before •, for if (as I have already proved ) he may be resisted, till he give the Kingdom Satisfaction that he will surcease from such Tyrannical Courses ; and if such Resistance is really a Suspension of Allegiance for the Time it lasts •, it will likewise follow, that if the King will still persist in these wicked Courses, he must at last forfeit his Crown, and discharge his Subjects of all Allegiance to him or else he would be in a better Condition, by his wissul persisting in his Tyranny, than he could by quitting it, and reconciling himself to his People : For whereas by this Method the best he can expect is to return to the Exercise of the fame Limited Power he before enjoyed if he push Things to the utmost Extremity, he may, perhaps, get the better of his People, and rhen will set up for an Absolute King by Conquest ; or if he fail in that, and be beaten, or taken Prisoner by them, he can lose nothing, since by your Principles he still continues an Absolute Sovereign Prince, as he was before, and must be immediately put in the fame State and Ability of destroying the Government, and enslaving the Nation. But your Civil, as well as our Common Law, has a very good Maxim,Nemo ex proprio DeliQo benesicium capiat, no Man may take Advantage of his own Wrong; and therefore such a Prince ought certainly to lose, and not to gain any thing by his own Illegal and Tyrannical Actions; and therefore I grant, that the King is not tied, by his Coronation-Oath, to observe any new things that he was not, before he was Crown'd, bound to do; only there is the higher Obligation of an Oath added thereunto. So if the King be a Limited Prince, whose Authority depends upon the right Exercise of it, and that he can claim no Allegiance of his Subjects but upon that Condition if such a Prince wilfully breaks all those Conditions, and absolutely refuses to amend, he must at last forfeit his

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Crown, and lose all Allegiance from his Subjects, or else all their Resistance would signify just nothing j and they would after all be in a much worse Condition than they were before.

Now if this be so, all your Quotations out of BraSon and F/eta will signify nq1. 7. c 7. thing : 1 For, asPuffendorf very well observes, a Supreme Power may reside in a § 7.10. 'Limited King, in respect of all his particular Subjects yet they may all toge

* ther have a Right to disobey him in those things to which his Power does not 'extend: For, fays he, it does not follow, that because I am not bound to obey

, * him in all things, therefore I must he his Equal or Superior; or because I can'not in any wise command him, therefore he may enjoin me what he pleases. 'For Sup erne and Absolute are by no means one and the fame ; for the former de'notes the Absence of a Superior, or an Equal in the same Order, but the latter 'a Faculty of exercising all the Rights of Government, according to his owa 'Judgment and WillAnd therefore this Author in the next Chapter fays very lib. 7, cat. 8. rationally concerning resisting of Tyrants in extreme Cases, 4 That their Scruple ''is nothing, who will not admit any Liberty of resisting rhe most cruel Tyranny 'of Rulers, because there cannot be supposed any lawful Call of Subjects taking

* Arms against the Supreme Power, since no Jurisdiction can belong to any Subject 'over such a Power: As if (fays he) that Self-defence were an Effect of Juris

* diction, or that there is required any peculiar Call or Precept for Men in case 'of extreme Necessity to defend themselves, and to repulse any unjust Force 'from taking away their Lives or Estates •, any more than there is for those who 4 are like to starve, to allay their Hunger by earing, tho' it may be the Meat they 'eat is not their own, but another Man's.5 So far he. And if this be lawful even in Absolute Monarchies, in case of Defence of Life, the fame, I fay, may be also by the same Reason exercised in Limited Kingdoms, when the King goes about by Force to take away the Religion, Lives, Estates, or Liberties of the People, contrary to Law; since both are founded upon the fame Principle, rhat a King, by destroying the Fundamental Laws and Conditions by which he is to govern, renounces the Government$ and indeed lo far dissolves it, that he ceases to be King.

And tho' I grant BraBon and F/eta, and other old Lawyers, have not in express Words taught this Doctrine, yet they do it in effect since the

Lib. 1. c. 8. rmer te^s us> n eft Fex, ubi dominatur voluntas, C non hex \ that is, he is not a King, when his own Will, and not the Law govetns: And

Ub, 9. c. $>. in another place, Rex eft dum bene Regis, Fyrattnus dum Populum sibi  creditum violenta opprimitdominatione •, and in the very lame place, (as you have also observed ) he tells us, exercere debet Rex potestatemJurkr ut Vicarius & Minister Dei, poteftas autem injuri* Diabolt eft, non Dei j cum declinat ad injuriam Rex,Diaboli Minister eft. Now, if what Bratton fays be true, that the King, when he does Injury, is the Devil s Minister, and not God's; I cannot see how he can then act as God's Lieutenant j or why it is not as lawful to resist the Devil's Minister, as the Devil himself And as to what you alledge out of the fame Author, that there is no Remedy left Against the King, in case he does Wrong, or oppresses any Man, but only Petition \ and after that, the only Remedy is expels et Deutn ultorem, in case he refuse to do Right: This is to be only understood of Remedy in ordinary Courts of Justice, and by ordinary Means; for otherwise this Author would contradict himself; whereas he tells us exprefly, (as I have already noted out of BraBon and Fletd) in Fopulo Regendo Rexhabet Superiores, Legem per quantsaBus est Rex, C Curiam fuam, viz. Comites iff Barones, that is, the highest Court of Parliament, called by way of Eminency, the Earls and Barons ; who, he here fays, debent ei frœnumimponere, in case he transgress the Law ; and therefore if he go on still wilfully to violate all the Fundamental Laws of the Kingdom, by the lame Power by which they may put this Bridle upon him, by the lame Power may- they also declare (in case of manifest and downright Tyranny,) that he has forfeited his Crown •, and tho' they cannot depose him as his Superiors, yet they may declare that he hath by violating the Original Contrail between him and his People, ceased to be King, and that both themselves and all his Subjects are discharged of all Allegiance to him.

And agreeable to this Opinion, the old Mirrour of Justices tells us in the Place I have formerly cited at our Third Meeting, That thoJ the King have no Peer in




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the Land, nevertheless, if by his own Wrong, he offends against any of his People, none of those that judge for him, (i. e. none of his Justices) can be both Judge and Party. Therefore it is agreeable to Right, that the King should have Peers or Companions to hear and determine in Parliament all Writs and Complaints concerning the Wrongs of the King, Queen, and their Children, of which Wrongs they could not otherwise have common Right. Now can any one imagine that any private Person might have Right against the King, or his Queen, and Children and that there should be no Remedy left for the general Oppression, and Violation of the Laws and Rights of the whole Nation in general, and that whether the King would or not? For if it had lain in his Power to have hindred it by dissolving the Parliament, this Law had been wholly in vain. So that this will serve to answer your other Quotation out of BraBon, concerning the King's Charters, or Grants, (for so I suppose faQis is to be rendred in this Place) That no private Persons, no, not the King's Justices, could in those Days take upon them to dispute about, or interpret their Meaning •, but it was to be left to the King himself! But how? Not to his private Interpretation in his Chamber, ot Privy-Council, but to his Interpretation in his Great Council in Parliament -, which, as I proved in our Fifth Meeting, consisted of all the great Officers of the Crown, together with the Judges; who, the King being present, were in the Nature of" Counsellors or Assessors to him; and there all Matters not determinable in ordinary Courts, were heard and determined ; and of this Nature were the King's Charters 5 tho' now that Power, since the Dissolution of that great Court, is fallen pardy to the Chancery, and partly to the King's Bench, who do both of then! at this Day judge of the King's Grants, whether they are according to Law, or not and can declare them to be void, if they are not.

M. This is right Rump-Parliament Dottrine, or rather worse, (if worse can be ;) for whereas Bradjhaw, and those Mock-Judges, appointed by that pretended JunUo, plainly asserted an Inherent Right in the People ofEngland, and the Parliament, as their Representatives, to call the King to an Account, and to judge and condemn him, as his Superiors; you, to evade that Doctrine, as being exprefly condemned both by the First and Second Parliament of King Charles II. in the Statutes I have already cited, do fall into a much more dangerous Error. For whereas those Men supposed it was only in the Parliament (and in themselves, as the Commons of England), to judge and depose the King, and to put him to Death for Tyranny •, you take this Power out of their Hands, and place it in every private Person, which you call the diffusive Body of the People; which are not only more fallible, but more dangerous Judges, as being more apt to Errors and Mistakes. But if you would have better confider'd the Words and Meaning of that Act I have formerly cited of King Charles II. for attainting the Regicides, you would there find these Words in the Preamble to that Act exprefly against 1 you: ' Whereby it is by both Houses of Parliament declar'd, That by the un

* doubted and Fundamental Laws of this \ Kingdom, neither the Peers of this

* Realm, nor the Commons, nor both together in Parliament, nor the People col

* leSfively, or representatively, nor any other Persons whatsoever, ever had, have,

* hath, or ought to have any Coercive Power over the Persons of the Kings 01

* this Realm.5 Where you lee by this Act, that all Power of judging or deposing the King is exprefly renounced, not only for the Two Houses of Parliament, but for the whole People, whether collectively, or representatively, or for any other Persons whatsoever. But as for what you lay, that the King in case of a wilful and constant Violation of the Fundamental Laws of the Kingdom, is not then deposed by the People, but deposes himself, and thereby renounces the Government over them ; this is a meer Evasion, which you, and those of your Party, have now found out to make the King to have forfeited his Crown, without any Judgment of the Parliament or People •, for who can believe a King will ever depose himself or do any Act, besides an express Resignation of the Crown, whereby he can ever be construed to have parted with it. And therefore your Notion is no better than the Equivocation of the Jesuits; who, if they are ask'd whether it be lawful or not for Subjects to murder their Kings, will tell you by no means; but it is still with this mental Reservation, that Princes excommunicated and deposed by the Pope, do thereby cease to be Kings; and therefore their Subjects being thereby discharged of all their Allegiance to them, they may not only be

resistsd,

resisted, but murdered by them as Tyrants and Usurpers. Put the People here instead of the Pope, and fee if the Parallel does not hold exactly.

But as to your Argument, from a Necessity of Resistance, to a Necessity of laying the King aside, because he has forfeited all Rights to the Crown, upon his persisting in the Violation of the Fundamental Laws, and refusing to make the People Satisfaction, and this upon the Account of I know not what Original Contract; for as to the Coronation Oath, I see you dare not insist upon it; to that I do not now wonder that the Gentlemen of your Principles are so violent for this Right of Resistance, since it is only in order to introduce your Darling Doctrine of the Peoples Power of deposing or laying aside their Kings (as you term it) whenever they shall Judge they turn Tyrants, and have thereby forfeited their Crowns; which is a most dangerous Doctrine: And if it should take Effect, Princes had need look about them, since the People may make up such a Pretence (for ought I know) even against the very best of them, that are now Regnant in Europe.

But lure absolute Monarchs ought not to be outed of their Crowns by strained Consequences, or forced Interpretations of Laws; therefore pray shew me this Original Contract you so much insist upon, and those Conditions on which you suppose our limited Monarchs hold their Crowns. I confess if you could shew me any Clause in our Laws, or Ancient Forms of the Coronation of our Kings, as Vid. Hoctoman there was at the Coronation of the Kings of Arragon, wherein the Chief Justice Franco-Giiha. on lIie behalf of the People plainly told him, that they made him King upon this Condition, that they would have more Power than himself; or that in the conferring of the Regal Power, it was expresty reserved in what Cases it should be lawful for them to resist the King, or to absolve his Subjects of their Allegiance, as Bodin tells us it was expresty inserted in the Coronation Oath of Henry II. Duke of Anjou (afterwards King of France,) when he was made King of soland; that if he broke his Oath and violated the Laws and Privileges of the Clergy and Nobility of Po/and, then the People of that Kingdom should not he obliged to render him any Obedience: I grant then, that the Liberties of such a People might be preserved. But the King that took upon him the Regal Power upon such Conditions, would not be properly a Monarch, but an Inferior Prince, liable to the Judgment of his People, whenever he really did, or that they imagined he had thus violated their Laws, since the Supreme Authority would still reside in them.

But indeed the Case ( God be thanked) is much otherwise with our Monarchs who are Kings by Right of Inheritance, whether ever they take any Coronation Oath, of not: As King Edward the First was, whilst he was in the Holy-Land almost Two Years before he could come over to be Crown'd; and King Henry the Sixth was not Crowned till the Eighth Year of his Reign, as well as of his Age. But that our Kings are so by Inheritance, and by the Laws of God and Man, previous to any Coronation Oath, or Consent of the People, is expresty declared by the Act of Recognition of King Jamesl And thatTreason could be committed egainit Vid. Cook'i him before he was Crowned, Sh Edward Cooke tells us in Calvin's Case, was the 1th Reply. Opinion of all the Judges of England on the Plot for which Watson and Clerk the Priests were Executed, and Sir Walter Rawleigb Condemned. So that what you have now urged from Reason, or Authority of our Ancient Lawyers, is either quite mistaken, or else does not reach the Matter in Hand: That it cannot be made out from Reason, is plain; since your whole Argument is built upon this false Foundation, that it is lawful in some Cases to resist the King, as upon a notorious Breach of the Fundamental Laws, and therefore it is necessary also to declare him to have forfeited his Crown, if he persist in this Violation; whereas I deny your Assumption, for I hold it utterly unlawful to resist on any Pretence, or for any Cause whatsoever: And therefore it is imposfible for the King, who (as I said but now) is an absolute unconditioned Monarch, to forfeit his Crown for any such Violation of your Original Contracts, or Fundamental Laws of Government. So that let me tell you, the Citations you have brought out of History, as also BraBon andFleta, do not prove either the one or the other of these. For First, As to the Clause in King Johns Charter concerning Resistance, and the Barons having a Power thereby to constrain the King to amend his Violations of it, by making War upon him, and that they should

not not return to their former Allegiance till all was redressed •, make the most of it, it could be no more than a particular Concession for himself alone, and was not intended to reach his Successors, who are not at all mentioned in this Qause. And that it was never intended to reach them, may further appear because that this Clause of Resistance is omitted out of all the subsequent great Charters, that were granted by Henry III. or his SonEdward I. and instead of this, it was thought a sufficient Security upon the last Confirmation of these Charters in the 37th Year of King Henry III. for the Kings, Bishops, Earls and Barons to agree, that the Archbishop ofCanterbury, and all the rest'of the' Bishops, should declare all those that wilfully transgressed or infringed the great Charters in any Point, excommunicated 'rpsofaSo, not excepting the King himself, according to the Form which you will find in Mat. Park, and other Writers of this Transaction. But for the Places you have cited out ofBra&on, there is none of them reach the Point in Question; for as to the first, Km est Rex ubi dominaturvoluntai& non Lex ; the Meaning of it is, not that he is no King, but that he does hot act as a King, but a Tyrant, when he thus governs by his meer Will, and not by Law. And to the lame Effect is the next Passage, Rex est, dumbeneregit •, Hyrannm, dum Populumsibi tradidum violent a cpprimit dominatione ^ all which we readily grant: Yet since he is still an absolute Monarcn, all Writers hold, that his governing without or against Law, cannot give the Subjects a Power to resist him, much less can it be construed as a Renunciation or Forfeiture of his Imperial Power. And therefore tho'it is true, that as Braflon and Fleta tell us, whilst he thus acts, he does not act as God's Lieutenant, but the Devil's Minister; yet does it not follow that we may therefore lefitt him with carnal Weapons, or Force; since we cannot so resist the Devil himself And tho' he may in this Matter of Breach of the Law, which he has sworn to observe, act as the Devil's Minister, yet notwithstanding in all other Points of Government, as in the Punishment of Robbers, and other notorious Offenders, and in the due Administration of Justice between Man and Man he still acts as God's Lieutenant; and it is much better that we should have some* Civil Government, tho' mixt with Tyranny and Oppression, than that we should fall into all the Mischiefs and Confusions of a Civil War, nay, that Anarchy too which has often been produced by it. And tho'I confess the last Place you have made use of, to wit, Rex babet Superiorem, Legem, & Curiam suam, viz. Comites C Barones,pc. who ought, if he transgress the Law, to put a Bridle upon him \ yet by this"(as I have already proved) neither Brafton nor fleta could mean any co-active Force, but only a Moral Restraint upon the King by Petitions, Remonstrances, or denial of Aids, till he would be refbrm'd by fair Means \ But that it does not go farther, appears by the Parallel BraBon there- makes between our Saviour Omst and the Virgin Mary, who being both free from the .Law of Moses, yet voluntarily chose to be obedient to it; which sufficiently proves •that those Authors never designed that the Parliament should make the King, by Force, or whether he would or no, to amend his Faults j since that was, as you your self must acknowledge, against their very Institution ; since both their Meeting, and their Dissolution, wholly depend upon the King's Will.

F. I confess you have made a long and elaborate Speech in answer to my Opinion, that the King may forfeit his Crown, that is, by his own Act cease to be King •, but I shall be able to give you a satisfactory Answer to all this, if you please to take it. In the first Place therefore I cannot but observe, that all your Di£ course depends upon Two Principles, alike false j first, that no absolute Monarch can by his own Act forfeit or lose his Right to the Government, without a formal Resignation of the Crown: Secondly, That the Kings of England have ever been such absolute Monarchs. Which if they are both great Mistakes, all that you have said on this Head fills of it self Now that a King, tho' an absolute Monarch, may do such an Act as shall make a Forfeiture of his Crown, without any solemn Resignation of it, you your self are forced to allow, in the Two Cases you have put, viz. that of such a Monarch becoming an open Enemy to his People, and going about to destroy them •, and that of his making over his Kingdom to another, without the Peoples Consent Now if the diffusive Body of the People in an absolute Government, can judge of these Two Cases whenever they happen, without appealing to any general Council, or Assembly of the whole Nation $ I desire to know (for you have given me no Answer to this Question)

T 11 Why

Why k may not be as easy and lawful for the the People to judge without a Parliament, when the Fundamental Laws of the Constitution are generally and wilfullybroken and violated and that Violation persisted in by the King, for the Introduction of Tyranny and an Arbitrary Government > Since theRulesI have laid down to know it are but a few, and easy to be known and judged of by the most common Capacities.

Now that a Superior or Governor may lose all that Power and Authority he once had, and that without any Act of the Party governed, may appear by those great and natural Relations of a Husband and a Master; in the former of which, if a Husband, in the State of Nature, use his Wife so cruelly, that she can no longer live or cohabit with him without Danger of her Life, I doubt not but she may quit him ; and may also when she is out of his Power, marry her self again to another Man that will use her better: So in the other Relation of a Master, if * such a one, in the State of Nature have a Slave, and will not allow him sufficient Cloaths, Victuals, or will beat him, or use him so cruelly for no justCause, that he cannot enjoy the ordinary" Comforts of Life; no Man will deny but that such a Slave may lawfully run away from such a Master, and is at Liberty either to live of himself, or to chuse another Master if he think good; And this Instance is much more strong in an hired Servant, who is to serve his Master for such and such Wages, or to do such and such Work, and no other S if in this Case the Master refuse to pay him his Wages, or put him to do other Work than what was agreed upon between them, or instead of an hired Servant will make him his absolute Slave ; in these Cases no Man can doubt, but by this unjust Treatment of the Master, the Servant is discharged of his Service, and may go whither he pleases. And of these Actions, I have already proved at our first Meeting, the Party injured, be the Wife or Servant, must be the only Judges in the State of Nature, where there is no Civil Power over them ; or else if the Husband, or Master, shall judge for himself, the Wife or Servant is never like to get any Redress. Apply this to the Case of a limited or conditional King, and his Subjects, and see if it be not absolutely the same, upon the total Breach of the Original Constitution of the Government; and whether the Bond of Allegiance is not then as absolutely dissolved, by the sole Act of the Prince, without any authoritative Power in the Subjects, as it is in the Case of such a Wife or Servant, by the sole Act of the Husband, or Master, without any Superior Authority, in such Wife or Servant, to quit them, and so to discharge themselves of their Wedlock, or Service.

Therefore as to your Accusation, that my Notion is worse than that of the Rump-Parliament, that put the King to Death ; I deny it. For they supposed that there was no way of being rid of a Tyrannical King, but by making the People (and consequently the Parliament as their Representatives) his Superiors or Judges, to all him to an Account, and judge and punish him for his Tyranny. This I abhor as much as your self * for I grant that a King cannot be properly the Supreme, and at the fame Time own another Power above him, to punish or call him to an Account for his Miscarriages: But this Power that I insist on, is not (as I have all along told you) a Power of Punishment,but a Right of Resistance for Self-Defence,in the first Place; and of judging and declaring the King to have forfeited his Crown, or Right to govern, if he persist in his Tyranny, without any Amendment or Satisfaction given to the People.

Nor is this Doctrine of the People's thus judging for themselves, so dangerous as that of our late Commonwealth's-Men, who put this Right of judging when the King had thus forfeited his Power, in the Parliament, of which they thought themselves the only lawful or necessary Members; but indeed it was not so, for they still supposed him to be their King, and yet at the fame Time pretended to arraign him, as you may fee by the Title of the Charge, or Indictment they drew up against him i all which I grant to be altogether unjust and illegal. But it is not more, but far less dangerous, to put this Power of judging when the King has thus dissolved the Government, and forfeited his Crown, upon such notorious and wilfull Breaches of the Fundamental Laws, in the whole or diffusive Body of the People, rather than in the Parliament, or great Council of the Naion. For as to your Assertion, that the whole People are more fallible, and consequently more dangerous Judges in such a Case, than the great Council, I deny it; since all the Matters of Fact must be so evident and notorious to the Senses and Feeling of the greater Part of the People, that there caniie no

Doubt Doubt or Denial of it, by any reasonable and indifferent Judges. And the greatest Part of the People are willing to live in Peace, without making any Disturbance or Alteration in the Government, if it may be avoided. Whereas in any great Assembly or Council, there are many, and thole of the most eloquent and leading Men, who commonly carry the rest which way the please, who are governed by Faction, Ambition, or Self-interest ; and upon all, or some of these, fffc. may be desirous to raise Civil Wars, or to declare the King to have done Things that require Resistance, or to have forfeited his Crown, when indeed he has not. And for this the very long Parliament you mention is an evident Example, since you cannot but grant, that if the Differences between the King and that Parliament had been freely left to the Judgment of the whole People, there had never been a Civil War at all, nor . had the King ever been beheaded; since it is notoriously known, that before the Parliament stirr'd up the People to War, by seizing of the Militia, they were not at all inclined to it ; it being a restless, factious and ambitious Party of Men on both Sides, who brought on the late Civil War. Not but that I defer much to the Judgment of a free and unbyassed Parliament, who may confirm and declare what the diffusive Body of the People have already justly done, to be right and lawful-, which may be as great a Satisfaction to private Men's Consciences in Civil Disputes, as a general Council is in Spiritual Controversies about Matters of Religion •, wherein, tho' such a Council cannot make new Articles of Faith, yet we Protestants hold that it may declare what were anciently believed. But if the People have a Right of judging during the Intervals of Parliament, when the King has notoriously broke the Fundamentals Constitution, and ft may make Resistance accordingly, (as I have already proved they have) since otherwise the King may absolutely refuse ever to call any Parliament at all, or at least may not let them sit till all Grievances are redressed; so I cannot fee why they may not also judge when the King has so wholly broke his Original Contract, and so obstinately persisted in it, as to create a Forfeiture of his Crown; since the one is not harder to judge of than the other. Nor is your Parallel between our Opinion and that of the Jesuits at all true ; unless you could also prove, that I had put the fame Authority in the People to depose their Kings by a Right conferred on them by God, as the Jesuits do in the Pope by such a pretended Power, as superior to that of all the Monarchs in the World. But there is nothing like it in my Hypothesis. Since I do neither allow the.People to judge or depose the King, much less to put him to Death, tho' a Tyrant; but only to judge, and declare, when he has made such notorious Breaches on the Fundamental Constitution, as do necessarily imply a Forfeiture, or rather an implicit Abdication of his Royal Power, and thereby deposes himself

But to come to the Second Point, to prove, that our Kings were never absolute Monarchs, or had the sole and absolute Authority over the People of this Kingdom ; and if so, that there was somewhat still reserved by the People at the first Institution of the Government, and which the King by the Original Contract, when he or his Ancestors took the Crown, must be still supposed as bound * maintain. Now that there must have been such a Thing as an Original Contract (however light you please to make of it) I thus make out. You may remember that at our Fifth Meeting, I proved, that at the first Institution of Kingly Government in this Nation, it was not by Right of Inheritance, but Election. 2. That this Election was made either by the whole Body of the People in Person, or by their lawful Representatives in the great Councils, or My eel Synods of the English Saxons. 3. That this great Council did then reserve to themselves these material Parts of Government: First, A Right of meeting or assembling at stated Times of the Year, and that without any previous Summons from the King. Secondly, A Right of proposing, or at least of assenting to all Laws that should be made in all future Times. Thirdly, A Right of granting general Aids or Taxes for the People, and that without their Consent no Taxes could be imposed. Fourthly, and as subsequent to all these, a Right of agreeing to all Wars, and Treaties of Peace, to be made with Foreign Nations. But the first and last of these, tho' I could prove to have been constantly observed, during theSaxon Government, yet since the People have patted with'their Right in these Matters, I shall not now insist upon them, only that the People have still a Right to Parliaments, once in Three Years at least, and oftner if Necessity tequire.



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These then being the Original Constitutions of the Kingdom, the King must have either entred into a Compact With the People, for the maintenance and observation of these fundamental Rights, or else it must have been left to his Discretion, whether he would suffer the People to enjoy them or not. If the latter had been true, then I grant they had made him an Absolute Monarch, and had lest it Wholly at his Discretion, whether they should enjoy these fundamental Rights and Privileges or not. But it appears plainly so the contrary that they did not, for I can prove (if need be) that the Succession to the Crown was at first Elective, and not Hereditary. Now in all Elective Kihgdoms of the Gothick Model, it is very well known that their Kings were so far from being absolute, that the Assembly of Estates, or great Councils of those Kingdoms, reserved to themselves a Power of Deposing their Kings for Tyranny and Misgovernment ^ as I have already proved was frequently done, not only inEngland, but in all the Neighbouring Kingdoms, without any Imputation of Rebellion. And I have also given you a Quotation out of the ancient Mirror of Justices, which tells us, that upon the Election of the first King of this whole Ifland, " The Princes that chose him then caused him to 8*" swear, that he would maintain the Holy Christian Faith with all his Power, "should Rule his People justly without regard to any Person, and should be obe"dient to suffer Right or Justice, as well as others, his Subjects. And if this • were not an Original Contract, I know not else what to make of it.

And now that upon aTailure to perform these Things, a Forfeiture of the Crown would follow, and that thereupon he would cease to be King; Pray see those andent Laws in Lambard's Saxon Laws,and Sir H.Spelmari% Councils, which go under the Name of King Edward the Confessor's •, (though they were made asHovenden shews us, in the time of King Edgar his Grandfather) where among those Laws of King Edward that were confirmed by K. William I. this is one: Rex  autem qui est vicarius summi Regis ad hoc est constitutes, utRegnum terrenum, populum Domini, Vf super omnia JanBam veneretur Ecclefiam, & ab injuries deJendat, &malejkos ab ea evellat, & ptnitus disperdat, quod nifi jecerit nec nomen Regis in eo confiabit •, that is, not so much as the Title of King shall remain to him. And in the fame Sense BraBon is to be understood, iri his Second Book; Est enim Corona Regis facere Justitiam, Judicium, & pacem tenere, fine quibus consiflere non pot est, necteneri ;which may be thus render'd, That it is of the'Royal Office or Dignity, (for so I construe Corona Regis) to do Justice and Judgment, and to maintain Peace ; without the Observation of which, his Crown or Royal Dignity cannot hold nor consist. So that this is but an Explanation of my Sense of that other Passage I have already cited out of this Author, Ken est Rex ubi dominatur voluntas, & non Lex, i. e. He is not a King, (that is, ceases to be a King) when his Will, and sot the Law Governs •, and he gives the Reason for it in another Place, speaking of the King, Who was not then Hereditary, sor, ad hoc e/eBus est Rex, fcf constitutus, ut faciat Justitiam universis.

Therefore if he thus totally deviate from the End of his Creation, his Authority ceases, and is at an End. So that nothing is plainer, than that our Ancient Laws have declared the King to have lost the Title and Right of being King, in case of notorious Tyranny, and Breach of this Original Contract; and that the ancient Lawyers BraBonand Fleta, gave the fame Interpretation of this Law, is also as plain.

So that what you have laid to evade or misinterpret the Authority of these Authors, as to the Points of Non-Resistance and Forfeiture of the Regal Power, will signify nothing ; for as to what you fay of that Ciause of Resistance being left out in all subsequent Charters after this of K. John's, and therefore that it was no binding Law to his Successors, I do not deny the Matter of Fact, that it was so omitted -, yet that does not prove, that the whole Nation ever renounced their Right of" Resistance in the Cases mentioned ; since as they exercised it before that Charter was given, so also they continued to do it in the Reigns of his Successots •, ■ as I have shown in the History I have given you of this Resistance at our last Meeting. And therefore constant Practice is the best Interpreter of this Fundamental Law. As for my Evasion of that Place of BraBon, Non est Rex, iffc. I have sufficiently confirmed my Sense of it, by this Law of K. Edward, as also by other Passages out of this Author j and I will leave it to any Man to judge which is the most genuine Interpretation of this Place, He is not a King, ('that is, ceases to be so) when his Will, and not the Law Rules; or, That he does not ail as a King, as you interpret it. But you grant such a King is really a Tyrant, yet may not be resisted., nor can lose his Power. And why ? Because it is absolute and unconditional. This is to take that for granted which we deny \ for he that hath not the full and sole Power of making Laws, and imposing Taxes, is not absolute Monarch; but the King ofEngland has neither of these 5 Ergo, tfc. And if this be so, see what Grotius lays expresly of such a Prince (as high as he is for the Non-refistanec Lib. of Absolute Monarchs,) Si Rex partem haf>eat sumnii Imperil, partemalterant popuI us, aut fenatus, Regi in partem non suam involunti vis jujla opponi poterit, quid catenus Imperiumnon habet ; quod locum habere censeo, etiamfi diBum Jit, belli potestatem penes Regem fore id enim de Bellaexterno intelligendum est, earn alioqui quisquis imperil fummi partem habeat, non pojfet non jus habere earnpartem tuendi, quod ubi fa, poteft Rex etiam suam partem belli jure amittere: Where you fee, that the Opinion of this learned Author is, That a limited King may not only be resisted in Case he invade that Piirt of the Supreme Power that does not belong to him, but may also lose his own Share of the Empire by Right of War. Now further, that our ancient Lawyers believed, that our King had not the whole Power, or wCnnhei* in their Hands, appears by that Passage so often cited out of BraBon, Rex babet superiores, Ijegem per quam sa3us eft Rex, & curiamBaronumt &c. which you strive to evade, by supposing I know not what Moral Superiority, which the Court might only exercise towards the King by Remonstrance, or Petition, in setting forth his Deviations against a Law. But what if he had refused to hearken to them ? Why then, fay you, all the Remedy was expeSet Deum Ultorem >Now if this was all, then every private Subject had such a Moral Superiority •, for BraBon savs of them, locuserit Jupplicationi, ut faBum corrigat, & emendet, quod si non jecerit, i$c. then he was to look for God to revenge it. But BraSon and Fleta are more express in this Point, and fay, that this Curia Baronum were not only Socii butÆagiftri; for lay they, qui babet Socium, babet Magistrum: So that surely this Bridle must have been somewhat more than bare Prayers, Re- monstrances, or denial of Money5 nor is your Reason to the contrary cogent, fince it is only drawn from a Simile between Christ, the blessed Virgin, and the Law of Moses. Now you know very well that Similes are not Arguments, nor can any Argument be drawn from them. But indeed it plainly appears by what' follows in BraBon, that he supposed this Power to be somewhat more than meerly Moral for he there fays, that if the People cry to God for want of Justice against the King, he will send for a Foreign Nation, who shall come and destroy both them {viz. the Barons) and their King j which would have been a vain Threat, if He might have chosen whether he would be reformed by them or not.

And that King James the First, himself was satisfied of this Original Contract, may appear by his own Words, in a Speech to both Houses of Parliament, 1609 5 where he expresly tells them, that the King binds himself by a double Oath to the Observation of the fundamental Laws of his Kingdom; Tacitly, as being a King, and so bound to Protect, as well the People as the Laws of his Kingdom j and Expresty by his Oath at his Coronation \ so as every King in a settled Kingdom, is bound to observe that Faction made to his People by his Laws, in framing the Government as agreeable thereunto, according to that Paction which God made with Noab after the Deluge, &c.

To conclude •, if the first King of the Saxon Race took the Crown upon Condition to maintain the Fundamental Laws and Constitution of the Government, and that he was never invested with an absolute Despotick Power of making Laws, and raising Money at his Pleasure j but the People reserved to themselves their Share of •both, at the first Institution of the Monarchy all those Princes that claim by Virtue of their Right, are tied by this first Original Contract, whether they ever took any Coronation Oath, or not. Nor though the Crown is now become no more Elective, does it at all alter the Condition or the Limitation of his Ancestors, as long as the present King holds by, and under the fame Title, and by vertue of the lame Original Contract 5 fince, as it was by the Peoples Will that it was at first Elective, so it was also by their Will, that it became successive ; fince every Entail of the Crown upon Heirs, can only proceed from the People's Agteement or Consent to maintain it as a standing Law; or else every King might alter it it his Pleasure.

As for your next Reply, That if we resist the King, because when he turns Tyrant he acts not as God's Lieutenant, but the Devil's Minister •, for that tho' it is lawful to resist the Devil, yet we cannot use carnal Force against him,: This Assumption is precarious; since if we can suppose the Devil does ever use carnal Force, we may also repel the same by Force or else those famous Stories of Witches and Spirits being afraid of, and flying from naked Swords, are all false. I beg your Pardon for speaking so long, which I could not well contract: into less Compass, without passing by your Arguments and Answers to my Quotations.

M. You have indeed outdone me in making long Speeches ; but I have heard you patiently, because I cannot deny but that you have argu'd fairly, had it been upon a right Foundation ; but since it is not, pray give me Leave to set you right, and shew you, that notwithstanding all you have urged to the contrary, yet all. our Kings since the Conquest were absolute Monarchs ; and if se, not only irresistible upon any Breach of their Coronation-Oaths, but also have been invested with such an absolute, uncondition'd Power, as can never be lost or forfeited upon account of the highest Acts of Tyranny. But before I come to my Proofs, give me Leave to fay somewhat to those last Citations you have brought from King Edward's Laws, as also from BraBon and F/eta. First, As to that Law you have, cited, that passes under the Title of one of those confirmed by King William the Conqueror give me Leave to tell you, that I much question whether it be genuine, and not foisted in by some of the Monks that had the keeping of the Copies of those Laws in their Monasteries, after the Original it self was no more to be found. For in the first place, I must observe, it does not savour of that absolute Power that I take King William to have acquired by his Sword, to own his Royal Dignity forfeitable or that he could lose the Name of King upon any Account whatsoever; as this pretended Law seems to intimate, by these Words, nec nomen Regis in co constabit.Now that it strongly savours of the Ignorance of the Monks, I (hall shew you by the very Law it self, wherein the chief Points for which the King must lose his Royal Title, is not' only if he does not defend his Earthly Kingdom, but also the People of God, that is, the Clergy j and also shall fail to "reverence Holy Church, that is, the Bishops and Clergy •, of whom the Monks? looked upon themselves as the chief, and most considerable Part as also, if he fail to destroy Evil-doers, .(that is, Hereticks out of the ChurchX then, forsooth, not so much as the Name of King must remain to him. Now, pray see the Consequence of this, and whether you will own this to be a Fundamental Law of the Kingdom ; for then at this rate, Henry VIII. who suppressed Monasteries, and took away Abby-Lands, and let injurious Persons spoil the Church by Sacrilege'•, and also all other Princes who have not extirpated those, who, when this Law was supposed to have been made, would have passed for Hereticks, (that is, all Protestants,) must have all forfeited their Royal Dignities : And consequendy the Pope did Henry VIII. and Queen Elizabeth no Wrong, if in Pursuance of this Law, he excommunicated them, and declared they had forfeited their Crown; since this Law fays, that Pope John testify'd this Truth, quod nomen Regisperdet. But nothing makes, out more evidently to me the Forgery of this pretended Law, than the notorious Faults there are in the Chronology, where the Sentence of Pope John against King Childerick, is mention'd as an Evidence to make it good whereas indeed, it was not Pope John, but Zachary, who gave this Sentence. But in Hovenden's Copy of this Law, there is yet a more gross Error ^ for it makes Tepin, and his Son Charles, to have writ to King William the Bastard, upon their hearing this definitive Sentence so wisely given concerning the Title of a King •, all which is so notorious a Piece of Folly and Ignorance, that it needs no . "other Confutation. But granting that Part containing the Law it self, to be • genuine, it does not at ail set forth your Original Contract, or make it a Forfeiture in the King to do any of those things which you supposed to be main Parts of the Fundamental Constitution; only lays in general, 'That unless he defend

* his Earthly Kingdom, and the People of God, and reverence Holy Church, by ■

* defending it from injurious Persons, and removing Evil-doers from it, the Name of '' the King will not belong to him.' Now all this the most absolute Monarch in

Gmsiendom, even the King of France himself, will say he performs to a Tittle. , And therefoie there is no fear of a Forfeiture for any King, tho' never so Absolute and Tyrannical, upon these Terms, unless he will do that which I think he is too wise ever to go about, to destroy his People wilfully, or to fall upon the Church and Clergy. ^ In

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In Answer to your first Authority out of the Mirror, I think it of no Authority, since that Author writ in the Time of Edward I. and II. long after the Saxon Times? and besides, his Relation of Forty Princes chusing a King, sounds like a Fable, there being no such thing mention'd in the Saxon Chronicle, or any other ancient Historian. And as for the rest of the Places you have cited out of BraSon and F/era, to prove this Notion of a Forfeiture, I must steely tell you, that they do iiot seem to me to come up to the Point for which you bring them for as to that Place you have cited out of Bratton, Non est Rex, ©V. you and I differ about the Sense of it and I see no Reason why I may not. still keep my own Opinion. The other Place I confess seems more express, viz. ' That it is the Crown or Dig■ nity of the King to do Justice or Judgment, without which it cannot hold or * consist This also does reser only to such Justice and Judgment as the King is to give and distribute between Man arid Man, without any Relation to his own Actions towards his Subjects. And if a Prince will not do this, either by himself or Deputies, I grant, his Crown or Royal Dignity cannot long subsist to be maintains since this will bring all things to utter Confusion, so that Strangers will loon be encourag'd to invade the Kingdom ; nor will the People be at all coricern'd to assist such a King against them, since they can be in no worse a Condition under a Stranger than under him. But as for the ancient Superiority of the Law and Court of Barons, there mention'd, to be over the King, that still ferns to me to be only a Moral, and not a Coercive Power 5 since the Law alone is but a dead Letter, and can force no Man of it self, without the Power of Men to support it; and there can be no Interpreters of this Law but the King, and his Judges out of Parliament and the Parliament sitting, that alone, that is, not the House of Peers or Commons alone, or both together but the King, Lords, and Commons, jointly, that can interpret Laws. But let the Power of this Court of Barons have been anciently what it will, it seems to relate only to the Peers and Tenants in Capite, and not to the Commons at all, since none ever heard them called the King's Companions : And as for any Coercive Power in the Two Houses over the King, I have already shewed you, that the two first Parliaments of King Char/es II. have exprefly renounced it for themselves and the whole Nation 5 arid therefore I must still stick to my first Conclusion, That the King is not to be resisted upon any Terms whatsoever, neither can forfeit his Royal Dignity by certain general, antiquated Laws or by the forced Interpretations of some doubtful, obscure

Passages in our ancient Lawyers. But I shall now ptoceed to prove,

F. I pray give me Leave to reply to what you have now said, before you go to any new Head. First, In answer to what you have now objected against the Authority of that Ancient Law-Book, the Mirror, I think you have no Reason to object against it, since the Author is supposed by our Antiquaries, to have perused many ancient SaxonLaws, that are now lost 5 as you may see in those that relate to King Alfred's Proceedings against his corrupt Judges, and other things. Then as to what you object against the Genuineness of this Law of Edward the Confes sor's, it is certain, that it is found in these very Words, with very little Alteration, in all the Copies of K.Edward!% Laws-, only in Uovenden, instead^of Rex quia Vica* r 'ntssummit Regis, it is, Rex atque Vitarius ejus$ which is no great Difference, and may relate to the King's Lieutenant, in his Absence beyond the Sea, for which there was often occasion for our Kings, when Dukes of Normandy, after their Accession to the Crown. And therefore tho' I grant some Clergymen (they having then all the Learning of the Nation among them) might draw up this Law into the Form it was made, and so render it as advantageous for the Church as they could yet that this Clause was not the Addition of any ignorant Monk (as you soppose) will apftom this, That it is recorded byHovenden, who lived and wrote about a hunYears after it was thus confirmed: And we cannot soppose all the Copies of these Laws to be lost, and one single Copy to be left, and corrupted in so short a Time. And tho' it is true, this Law is not found among those set forth in the last Edition of Ingulfs}, yet does it not therefore follow, that there was no soch Law ever made or confirmed by King William; since those Laws in Jngulph seem to be more like an Epitome of the criminal and feudal Laws, confirmed or added by that King, than an exact Body of all the Laws of the Confessor$ those having been writ in Latin, and confirmed by King William'm the Fourth Year of his Reign ; whereas this Copy was published in French, for the Use of the King's Norman and FrenchSubjects, and that long after King Williams coming to the Crown for Ingulph

1 tells tells tss, 'That after Domesday-Book was made, he brought those Laws down 'frorfl London in theFrench Tongue, (in which they were put forth, lest he, ot * any of his Monks, should thro' Ignorance, happen to offend his Royal Majesty, 'by an \inwary Breach ot'them).' But as for the Faults in the Chronology in the Story ofCharles and Pepin, in all the best Copies of these Laws, this Letter is said to be written by them to the Pope, and not to King William at all ; and then it will be at most but a Misnomer, or Error of the Transcriber, putting in Pope John for Zachary. But if you will have my Opinion of this Matter, I do freely grant, that this Passage in the Law concerning these Princes writing to the Pope about the Deposition of King Childerick, might be an Addition ot those Monks who first transcribed those Laws, and madelhort Glosses upon them ; and yet the Law it self might be genuine notwithstanding ; and if the Law it self be so, it must be understood in a larger Sense than what you would put upon it: For sure by defending of his Kingdom, must be meant, not only the bare defending it against Foreign Enemies, but also against the Wrongs and Oppressions of his own Ministers and Officers ■, which if he suffer by a wilful Negligence, or on set Pucposes, he will as much offend against this Law, as if he had done it himself, and Ib will lie under the same Penalty. Much less will these Passages concerning defending the Clergy, and reverencing the Church, render this Law either void, ot impracticable ; for suppose you take Popu/us Dei, in the strictest Sense, to signify the same with Servus Dei, (which I grant always to signify the Clergy in our ancientSaxon Laws and Charters) yet all this does not make this Law void and impracticable •, since lure, maintaining the Worship of God is one Part of the Duty of a Christian King •, nor can this be well perform'd without some Men set apart for that Purpose, and that these Men cannot attend their Sacred Function, without be-' ing maintained in their just Rights and Liberties; neither is it any Consequence, :that these Clergy must always consist of the very fame Orders of Men, as when this Law was made. So that suppose the Monks were then held as a neceOary Part of this Clergy, Will it follow, that it was not lawful for the State to alter or take them away ? For then no Religious Order that was then in being, could have been suppressed afterwards; which no Papist will fay. So that the Meaning of this Clause in the Oath is no more, than that the King should from time to time defend all luch Clergymen, such as the Nation, (that is, the Legislative Power) should think useful and necessary for God's Service, without being tied to any certain Orders or Degrees of Men, provided those that are particularly ordain'd by Christ and his Apostles, for the Service of his Church, be inviolably maintained and preserved. So likewise for the Church it self, granting, (which may also be question'd) that at the Time when this Law was made or confirmed, Popery was come to its Height, and so was the establish'd Religion of the Nation; and consequently that by the Church here mention'd, was then to be understood the Romish Church or Religion, (as we now call it); yet does it not follow, that the King by this Law is to forfeit his Crown, if he ever alter it; for the Law only siys in general, that he shall reverence the Church of God, that is, That Profession of Christianity, or Way, which he and the great Council of the Nation shall, upon the most mature Judgment and Deliberation, think to be so. So that all that can be deduced from this Clause, is, That the King shall reverence Holy Church, that is, maintain the Profession of Religion, which shall be established by Law, andshill make no Alteration therein, without the general Consent of the whole Nation in their great Councils or Synods, consisting aswell of Ecclesiastical as Secular Members: And so likewise he shall defend it from all injurious Persons, that would invade the Rights of she Church and Clergy contrary to Law, and shall root out all Evil-doers, that is, all debauch'd and wicked Professors of Christianity ; for so Malesicos properly signifies, and not Hereticks, as you would render it, (who are not Evil-dcers, but false Believers) •, or if it should be interpreted for Hereticks, it is not those that then might be looked upon as such, but what the present Church shall so determine -, or else we must own the former Church to have been infallible in all her Determinations. So that I can see no Reason upon the whole Matter, why this Law should now become void or unprofitable by reason of any Alterations in Religion, or of those Men that were then to exercise the Functions of it, as long as all the necessary and material rartsot both are preferv'd, as they are to this Day, for otherwise this Law would have tied up the King and Nation from making any Reformation in Religion, tho' ne\er so much for the better 5 or tho' the National Church l*ad never so much required


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quired it, which I suppose no true Protestant will affirm. As for the Authority of that Ancient Law-Book, call'd,Tfc Mirror of Justices, I think I may very well insist upon it, notwithstanding any thing you have urg'd to the contrary..

But as for those Passages out of BraQon and F/eta, which I have brought to confirm and support our Sense of this Law, and which you labour to avoid, by putting too general and loose an Interpretation upon them; whereby you would make them only to signify, that the King is to maintain right Judgment and Justice, between Man and Man, without which his Royal Dignity cannot hold or subsist: But that he is not obliged upon any Penalty to observe the lame Things in respect of himself, or his own Officers or Ministers; this is all one, as if a Shepherd, who had a Flock of Sheep committed to his Charge by the Owner, having first fleeced", and then killed and destroyed them, and converted the Wool and Carcasses to his own private Use, should then tell the Owner, that he was indeed to desend the Flock from Thieves, Wolves and Foxes, but that it was no part of his Bargain to keep them fase untouch'd from himself, or his Servants, or so much as his own Dogs. But that the Sense of BraQonand F/era is quite otherwise, sufficiently appears by these Places I have now cited; and if those will not do, pray consider these that I shall here add. For BraQon also, in the same Chapter, tells us, Lii* Ad hoc creatus est [Rex]iff eleBus, ut Justitiam jaciat universis. And he also there recites the ancient Coronation Oath in these Words:Debet enim [Rex] in Coronatione fua nomine Jesu Christi h<ec tria promittere Popu/o Jibi subdito, Imprimis, seejse pracepturum, iff pro viribus opem tmpenfurum ut omni Popu/o Christian* ver a pax omni fuo temporeobservetur. 2. Ut rapacitates i3 omnes iniquitates inierdicat. 3. Ut in omnibus Judiciis tequitatem prœcipiat, iffmiser icordiam, ut indulgeat eisuam misericordiam clemens Deus. Now, how can a King observe this Oath, th3t robs the People of their Goods, and raises Taxes contrary to Law? Or how can he continue a King, who violates all the Ends of his Institution? From all which it appears, that by this Justice and Judgment must be meant, not only the King's own observing Justice towards his People, but also his prohibiting his inferior Ministers and Officers from spoiling and oppressing them. And that no Prerogative can justify him in the doing otherwise, is as evident from another Place in BraBon, where he tells us, That Regia potestat Juris est, nonlnjurix, iff nihil aliudyotest Rex nisi quod jure pot est. But F/eta is somewhat larger on this Head, tho to the fame Effect, when speaking of the King's Power or Prerogative, lie lays thus; Et licet omnes potentid prœceUat, cor tamen ipsius inmanu Dei ejfe debet, iff ne potenti a fua maneat infrœnata franum imponat temper antiœ, iff lor a moderantiœ; netrahetur ad injuriam, quia nihil aliud, hoc est in terra, nisi quod de Jure pot est: ncc obstat quod dicitur, quodPrincipi placet legis habet potestatem, quia jequitur cum lege Regia, qu£ de ejus Imperio lata est, non quicquidde voluntate Regis tantopere prxfumptum est, Jed quod Magnatumsuorum confilio Rege authoritatem pr<ejlante,iff habit a super hoc aeliberatione, iff traffatu reBe suerit defi niturn. Which not only shews, that our AncientEnglish Lawyers in this agreed with the Civil Law, and gave the fame Account of the Original of the Royal Power as that Law does, viz. that it was conferred by the People of Rome, on the Roman Emperor, by the RexRegia, mentioned in the old Civilians I have formerly cited and also shews, that our Ancient Lawyers sopposed that by a like Law among us, the Royal Authority was originally derived from the Consent of the People ofEngland; without whose Advice and Assent, included in that of their Representatives, here called ConsiliumMagnatum (Consilium being taken for Consent in this place, as I have prov'd it often signify'd) no Law can ever be made. Now, if the King will not be ruled by this Bridle of Moderation, this Author, as well as BraBon, tells us, That the King then hath his Superiors, the Law and his Court of Barons, who were as Masters to put this Bridle upon him. But admit, he will run away with this Bridle between his Teeth all this had signified nothing, if there be no other Remedy left us, besides bare Supplication or Remonstrances to the King of his Duty ; and hemight have dissolved the Parliament before ever it could have any Time to do either the one or the other.

To conclude •, That the King was at first elected and created for this End, thai he may do Justice to all Men •, and that this Justice does not only concern his\ maintaining Justice between his Subjects one towards another, but also in respect of \ himself, his Children and Subordinate Officers and Ministers that act by his Commission, appears by what follows in BraQon, after the King's Coronation-Oath;

U u u Potestat

(Jal. Regis) hafi Juris est non in]uris,p cum ipje sit Author Juris, non debet inde injuriarum nafcioccasio, C etiam qui ex officio Juo alios prohibere necejfe habet, id ipfum in propria persona committere nondebet. So that it is plain, that if he either command or permit these wilful Injuries generally all over his Kingdom, he fails to defend it according to King Edward's Laws^ and if he thus fail to defend it, he thereupon loses or forfeits his very Title or Office of a King, since he cannot keep or hold his Crown, or Royal Dignity; for without Justice it cannot subsist, and this by the Original Contract. Since upon whatever Terms the first King of this Race took the Crown, upon the fame Terms all his Posterity who succeed either by Election or Right of Blood, by virtue of that first Compact, are to hold it under the like Penalty of a Forfeiture, in Case of a wilful Neglect or Violation of their Duty.

M. I confess you have made a specious Proof of this Original Contract you Ib much talk of, and more than ever I thought could have been said for it: But let it be what it will, it is certain, in the first place, that whatever coercive Power the Two Houses of Parliament might pretend to when BraQon wrote, they have solemnly renounced it in Two successive Parliaments in the Reign of King Charles '■' the lid? therefore I shall not insist any longer upon Old Antiquated Laws, or Original Contracts, which are not directly expressed, but consequently deduced at best. But I must now tell you, that let the first Institution of this Government have been what it will in the Saxon Times, and what Original Contract soever you may please to fancy between them and their Subjects \yet this was all gone, and out of doors, by that absolute Conquest which King William the 1st made of this Kingdom for himself and his Heirs, who do not at all claim under the Title of the Saxon Kings. For since this Ancestor of our new Kings had no just Title to the Crown but by the Sword, and that he gain'd this Kingdom by the Conquest of King Harold, and the People ol: England, who had elected, and fought for him; as also by the subsequent Recognition of this Right by all the People of England, in their Oaths of Allegiance so often repeated to King William and his Successors, they have thereby acknowledged it to be as absolute a Monarchy by Conquest, as ever was instituted by any Prince in the World. And tho11 grant, that several of the Conquerors have been graciously pleased to grant divers Privileges to the People of this Nation, and some of them perhaps the fame they enjoyed in the Saxon Time i yet can they not enjoy it by vertue of that Original Contract you suppose to have been made between the first King of that Saxon Race, and the People of England: For, as I said but now, King WiUiam had no Right by any Title from King Edward the Confessor, but wholly by his Sword, as 1 shall prove by and by.

But however, these Concessions ought not at all to derogate from the Absoluteness of the Power, or theIndefeafiblenefs of our King's Title: For since these Lis . mitations of Absolute or Imperial Power did not proceed from any other Original,

. . p. an. t^an tjie jree an^ voiunrary Concessions of our Kings, and not from any Compact

with their People -, they do not at all derogate from the uncontrollable and unaccountable Sovereignty thereof: So that we may very well distinguish between the Being and Essence of Imperial or Sovereign Power, and the Exercise or Emanation thereof. As to the Being and Essence of it, it is in as full Perfection in the Limited, as in the Arbitrary Sovereign, tho' the Law confines and limits him in the Exercise thereof-, but to be confined in the Exercise doth not destroy the Being, nor diminish the Perfection of Sovereign Power: for then the Power of God himself could not be Sovereign, because there are certain immutable Rules of Truth and Justice, within which it is necessarily limited and confined; but God is nevertheless a perfect Imperial Sovereign over the Universe, tho' the Exercise of his Government over his Creatures be limited by the Eternal Laws of Truth and Equity. It is true, that this Limitation of Almighty God is intrinfical, and proceeds from the Perfection of his Righteous and Holy Nature •, but yet it shews, that the most perfect and absolute Imperial Power may, without a Contradiction, be confined within Boundp, and limited in the actual Exercise thereof; and that such Limitation of Absolute Imperial Power (proceeding wholly from it self) doth only qualify and, temper, but not destroy the Essence of it. And therefore Coke, in Cawdry's Cafe, faith, That by the Ancient Laws of this Realm, England is an Absolute Empire and Monarchy, and that the King is furnish3d with plenary and entire Power, Prerogative and Jurisdiction, and is Supreme Governor over all Persons within this Realm.



Therefore whoever will consider the Original of this Limitation of Sovereign Power, to have proceeded wholly; ab intrinsico, from the voluntary Grants of our first Monarchs after the Conquest; and will also distinguish the Essence from the Exercise of Sovereign Power, will find there is no Contradiction be-  tween the Fulness of Sovereign Power in the Root, or Efleijce of it, and a .Legal Limitation of the Use and Exercise thereof; and from hence it comes to pass, that the King of England, tho' he be thus limited in the Use and Exercise of his Power, yet he is still as much the Fountain of all Power and Jurisdiction within his Dominions, as if he were Arbitrary; he hath none to share with him in the Sovereignty, but all Power and Authority is derived from him, like Light from the Sun: In him alone it is radically and originally placed; he hath no Sharers or Copartners with him in the Sovereignty, none co-ordinate with him in the Government, none Equal, no Superior, but only God to whom alone he is subject. Hence faith Brafton, Omni* quidem sub eo, C tpse sub nuUo, fedtantum sub Deo, non est inferior Jibi subjetlis, ab-*• c- 8* nan far em nabet in regno fuo; and afterwards, Ipseautem Rex non debet ejje Jub homine, Jed JubDeo.

Therefore tho' I grant the King is obliged by his Coronation Oath, to keep to these Limitations,, which both he and his Predecessors'have sworn to$ yet if he any ways fail in the Performance: of it, this Failure'cannot give his People any Manner of Right to take up Arms against him, and to resist him in any such Case, much less can it cause a Forfeiture of his Royal Power; since being at first the sole Sovereign Power, he did not by putting this Limitation thereunto, intend to part with any Share of it to the gteat Council of the Kingdom, or Parliament, but only to take them into a Part of the Care and Trouble of the Government, and to limit his Prerogative from passing any Laws '• *»» or raising any Money without their Assent, unless in Cases of great Necessity; and then, if he is still Judge of this Necessity, as certainly he is in the Intervals of Parliament, it can never be supposed, that the first Prince, or his Successors, ', , . that parted with these Privileges to the People, ever intended to be so straitly tied to them, as that in no Case whatever, tho' never so pressing, they should not depart from them, much less that he should forfeit his Crown if he should wholly break them, nay should persist so to do, and resolve to turn this Limited into an Absolute Despotick Monarchy; since the Observation of these , Laws being but Concessions of his own, or his Predecessors, can never be looked upon as Conditions of his holding the Crown, nor of the Subjects Allegiance to it; there being, as you your self confess, no such Clause express 5d in either Part, neither in the King's Coronation Oath, nor yet in theirs of Allegiance to ... .-. him, as you your self cannot but acknowledge j and tho' it is true^ the King swears at his Coronation to keep and maintain the Laws, yet Grot'ws^fls'Vofc Lib. 1. cap. 3. That an Empire or Kingdom does not cease to be absolute, dltho" he who is to rulepromise some Things to God, or to his Subjetts, even such which may >■ appertain to the Manner os the Empire;and that not only concerning the Observation os the Natural or Divine Law,but os certain Rules to which withouta Promise he were not obliged. So that in all Promises of this kind, the Manner of the Obligation is not reciprocal, or of the fame Sort on both Sides. As for Example, it is only moral in respect of the King, and it is left wholly to God to judge between the King and his Subjects, and to punish him when he breaks his Part: But to the King as God's Lieutenant on Earth, it belongs not only to judge of his Subjects Breach of their Oath and Contract, but also to punish them for lb doing, and compel them to the Performance of it. And of this Judgment are all the modern Civilians. As for Boiin I have given you his Opinion in the Chapter I last cited, concerning this Matter, and he as well as Grotius is clearly of Opinion, that absolute Monarchs, such as he reckons the King ofEngland to be, are not to be called in Question or destroyed, let their Breach of Laws and Tyranny be never so notorious, much less can they forfeit their Royal Dignity for such Male-administration. And tho' Grotius is of Opinion, that in Cases of great and evident Dangers of Life, Subjects may have a Right of Resistance % tgainst absolute Princes, and those commissioned by them; What is this to the Case in Hand? viz. a Resistance against an absolute Monarch for Violation of those Privileges and Liberties that were granted by himself or his Ancestors, and • without which Subjects may very well live and subsist; as we see they do, under

the most absolute despotick Monarchies, where they enjoyno such Thing -, tho' perhaps they do not live ib well and freely as wedo. Nay, Tuffendors. the Author you so much make use of, in his Seventh Book, will not allow BSubjects to take up /..vjfcca.8. Arms, 6r resist absolute Princes, for too great Cruelty in Punishment, nor for $'<?. ' * "imposing too immoderate Taxes-, since the Presumption of Justice, and Necessity *' for the doing of these Things is always on the Prince's Side \ nay, if his Prou itiises are not kept, or Privileges formerly granted are taken away, if the "Prince be absolute, and will pretend any Fault, Necessity, or remarkable Be"nefit thereby to the Commonwealth, he shall be deemed to have acted by a u Right, of which the Faculty of judging is wholly wanting to the Subjects j "since all Privileges have this Exception, unless the Welfare, ot Necessity of the '* Commonweal forbid them to be observed.

F. Since your last Discourse consists of Two Parts -, Matter of Fast, and Matter of Right deducible from that Fact , I (hall speak to e^ch of them in Order. First as to the Matter of Fact, it is a great Mistake in you, and Dr.Brady, to maintain that King William I. was really a Conqueror, and by hisSword (without any other Title) obtained such an entire Victory over K.Harold and the whole Englijh Nation, as gave him an Hereditary Right for himself and his Heirs, to the absolute Allegiance of the whole Engstfh Nation, without any Reserve or Condition whatever: So that all our ancient Liberties and Privileges being thereby lost and forfeited, this Nation can claim nothing of that kind, but from the Grants and Concessions of that King or his Successors j every one of which Propositions contain many notorious •Mistakes in Matter of Fact: For in the first place,K. William never claimed the Crown by Conquest,but by the Adoption and Testament of K.Edvu. the Confessor-, and I defy you to (hew me any ancientLaw or Charter, either of his own, or any of his itnmedi_ ate Descendants, wherein he is stiled Conqueror: Tis true, in his Charter to

TlvffZt.j.the Abbev of Westminster, he fays, that by the Edge of the Sword he obtain'd m.26.rid. 'sei- the Kingdom by the Conquest of Harold, and his Accomplices, yet does not found den\ Review, his Right on that Victory alone, but on the Donation of King Edward his Coup-483- fin -, the Words are remarkable, in ore gladii adeptussumRegnum Anglorum, dtviBo Haroldo Rege, cumsuis Complicibm \ qui mibt Regnum divind providentid destinationfif beneficio concesttonU Domini cognati mei glorioji Regis Edwardi conceffum conaii funt auferre. And this Donation he calls an Hereditary Right in divers other Charters, as particularly in one also recorded by Injpeximus,beC*^'%t'/«-4' ginning thus, In nomine Patris C Filii & Spiriti fanBi, Amen. Ego Willielmus, fiexJ *" Rf*Anglorum htreditatio Jure faBus. So likewise his Son King Henry I. in his 'wdlseidcm ad Charter to the Abbot of£^, creating him a Bishop, calls himself the Son of William Eadmt r. note, tne Great,(not the Conqueror,) S&iiEdwardo Regi Hereditario jure fuccejjit in Regnum. iyc. Fol. au. ^n(j -m vertue 0f tj,iS Donation, he was after his Victory against Harold, by publick and full Consent of the whole Nation, or People of England, as also of theNormans he brought with him, EleBed or Crowned King, and at his Coronation took the fame Oath at the High-Altar at Westminster, which his Predecessors TGanW'aisttt ^ Saxon Kings had taken before him •, with this one Clausefarther, which was very Jnn'wu.**0 neceflary to be done at that time, viz. quod <equo Jure Anglos iffFrancos traBaMaims.' ret: So that let his Title by Conquest have been what it would, it was either by a just Right of War, to recover his Due, or by none at all \ if the former, he could only succeed to such Rights as KingEdward the Corifessor before exercised and enjoyed since he came hither only to take the Crown that was so bequeathed to him, and to hold it under that Title : But if he had no Title at all, hut his Sword, he then could obtain no just Right to the Crown of England, either for himself or his Successors. So that if they will only insist upon their Title by the Sword without any preceeding or subsequent Right, they may be as lawfully turned out again by the Sword since it is own d by allWriters on this Subject, that a Conqueror in an unjust War can obtain no Right over a free People.

So much for the Matter of Fact: I come in the next Place to the Point of Hight by the Laws oFNations. I grant indeed that a simple Oath, or Pact between an absolute Monarch and his Subjects, to do or perform such or such a Thing i or to let them enjoy such and such Privileges, does not immediately give the People * a Power to compel such a Monarch, and his Successors, by Force of Arms, to the strict Observance of them, in Case of a Violation on his Part. But our Case is / very different from this -, for here a Foreign Prince recovers a former Right to the

Kingdom, and that by Force; and is invested with the Ctown, in virtue of that
Right by which he claimed it, and is' also sworn to maintain the ancient

GovernGovernment and Laws * according to which the whole Legislative Power Was not in the King alone, but jointly, in the King, and the great Council os' the Nation, without Whole Grant, or Consent, he ought not to have laid any Taxes upon, or otherwise oppressed the whole* Nation, as I shall prove if there be occasion. Now all our Antient Rights being granted, and acknowledged by him, and a constant Common Council of the Kingdom appointed to meet, to fee them observed, as it did many Times in this King's Reign, as also in those of his Successors, they were not bare Privileges conferred of Favour, and which might be observed or broken at the Will of the Prince that granted them j but a Form or Rule of Government by Laws, confirmed and agreed upon in a standing Council, appointed not only to make them but also to see them observed : As appears by that Passage so often cited, wherein the King is expresly said to have a Superior, viz. the Law, and the. Court of Barons, who were to put a Bridle upon the King, in case of his governing without Law. And this farther appears, by the great Charters of Henry I. K. Stephen, and K. John, 8cc. in the first of which it is declared, that the Na* tion having been oppressed by unjust (i. e. illegal) Exactions, he therefore forbids all Common-Money, or Taxes, not taken through all Cities or Counties, in the time of K. Edward; and also confirms the Laws of his Father, whereby his Barons, and Tenants in Capite, should be free from all Taillage or Taxes j and he also thereby restored to them the Laws of K. Edward, with those Emendations which "his Father had made by the Common Council of his Barons. Now the great Charter of K. John was but an Addition, or rather Explanation of this Charter of K. UemyI. which was at first demanded by the Barons to be again con'firmed by this King, at the Instigation of StephenLangton Archbishop of Canter- p. bury, as Mat. Paris shews us at large.

Now since neither K. William the I. nor his Successors, ever changed the Fundamental Constitution of the Government, as to the Legislative Part of it, (as hath been already proved) and that those Breaches that had been made upon it, by taking Taillage or Taxes, without the Consent of the great Council, are all hereby expresly forbid ^ these are certainly more than such meer Privileges, which the King himself is the only Keeper of, and can dispense with at his Pleasure-, but are indeed such Fundamentals as concern the very constituent Form or Rule of Government 5 which, as I have also proved, was mix'd not limited, in the very first Institution. And though the learned Puffendorf agrees with you in the Case of Compacts between an absolute Monarch and his Subjects •, yet as to the Point in hand he is wholly of my Mind, as you may fee in his Academick Dissertations, in his Discourseae btterregnis \ where arguing against Mr. Hobbs, who will not P. allow of any Compacts between an Absolute Prince and his Subjects, he has this Passage, which I shall here read to you in English. "That though in Pacts, in * which a Submission on either Part is wanting, certain and defined Performances "may be set forth, to be observed on either Side, from an intrinfick Impulse of "Conscience ; when either of these refuse to perform them, nothing but War ot *' the Compulsion of a Superior Lord, common to both of them, remains ■> yet ■ in Pacts, by which one Parry is made subject to the other, it belongs to the "latter to define what ought to be performed by him, as also a Power over the "other, compelling him to the Performance whether he will or no-, which Power ** does not belong reciprocally to the other Party against the former. Hence the "Party commanding cannot be questioned for a Breach of Compact, unless he ei"ther wilfully abdicate all Care of the Commonwealth, or put on an hostile Mind "towards his Subjects -, or manifestly, or deceitfully, (in Latin, dolo ma/o) depart ** from the Rule of governing ; on whose Observance, as upon a subsequent Con"dition, the Subjects Allegiance depends, which is easily to be avoided by any ** Ruler j if he will consider, that not the highest of Mortals are free from the ** Laws of Human Chance. So that let the Power of your Conqueror have been never so great, or absolute; it is plain, he not only renounced it himself, but several of his Successors have done the lame for themselves, and their Heirs ; therefore make the most of it, they must still claim by vertue of the first Contract, to maintain the Constitution as they found it; or else resolve all their Right into rneer Force 5 and then vim vi pellere licit um eft.

M. It is no wonder that you and I differ in our Conclusions, since we also differ so much in the Premises \ and in the very Matter of Fast, concerning King William the Conqueror's coming to the Gown \ you laying, he came to it partly by


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the Sword, but founded on a Donation of Edwar,d the Confessor and .portly by the Consent and Election of the People of. England yet you your self cannot deny, but Force or Conquest had a great Share in th* Business, and indeed was all he had ; for as for that Donation of K. Edward it is either forged, or else K. William could claim nothing by . it, since England, was then either an Hereditary Kingdom or Elective ; and take it which way you will, this Donation of the Confessor's could signify nothing, either to the Prejudice of the People that were to Elect, or the nejct Heirs who were to succeed after K. Edward s Decease neither could he claim as Heir to him by Blood ; for the Relation between him and K. Edward was by his Mother Emma, Sister to Richard the Second Duke , of Normandy, this Williams Uncle; Ib that the Conqueror was no way descended from the Blood Royal ofEngland : Therefore his true Quarrel with Harold, (let his Pretence be what it will) was not, because he kept a Kingdom bequeathed to him * by K. Edward -t since some Writers relate this King named not him but Harold forp" his Successor s, tho' others fay, that he recommended Edgar to the good Will of >2. the English Nobility. So that the only true and just Cause Duke William hid of making War upon Harold, was his breaking the Promises and Oath he had not long before made him of securing the Kingdom of England for him upon the Death of K.Edward •, instead of doing which he had seized it for himself j and which is worse refused to restore jt, or so much as hold it of Duke William as his Homager. So that though for the strengthning of his own Title, he pretended to the Will or Donation of King Edward.; and to avoid the Envy of the Name, might out of Modesty, or to put a better Colour upon this Matter, refuse to take the Title of Conqueror, and to insist upon the Donation of King Edward yet nothing is plainer, than that he could claim by no other Title but the Sword. And that he looked upon himself as no other than an absolute Conqueror, may appear by these great and evident Instances: i. His Change of the Engli/h Laws, and introducing the Norman Customs in their Stead ; and also changing the Tenures of Lands, not only of the Laity but also of the Bishops and greater Abbeys. 2. By his debarring all those of the English Nation, from enjoying any Honour, Office, or Preferment, either in Church or State ; and also in taking away the Estates of all the Nobility and Gentry, not only of those Heirs that had been slain in the Battel ofHastings, but also of the rest y so that they had left them but what they could purchase of those Norman or FrenchNoblemen, to whom King William had given their Lands, as a Reward of their good Service. For the Proof of both which Assertions, I have so very good Authority on my Side, and rhat of Writers of 6r near those Times in which these Things were done, that 1 think no indifferent Man can have any Cause to doubt the Matter of Fact to have been as I relate it 5 nor did he by any After-Act ever renounce this Right of Conquest as you suppose, much less refer it to the Election of the Englijh or Normansj since the former :were not in a Condition to make any farther Resistance against him, the Clergy and great Men of the Kingdom having been forced to submit themselves to him without any other precedent Conditions or Stipulations, than for the saving of their Lives. And as for the Normans, they were his Subjects, and they conquered the Kingdom only for his Use and Benefit, as his Soldiers and Vassals; and it is not likely he would owe the Kingdom which he had thus acquired by the Sword, to their Votes or Election neither does any Author that I know of mention any Election before his Coronation ; when tho' it is true, he took such an Oath as you mention, yet it was in too general Terms to bind him to any Observation of the Ancient Englijh Laws, much less jo preserve their Rights and Privileges, farther than he thought fit, and therefore could never take the Crown upon your Conditions of Resistance or Forfeiture, in case of any Alteration in that which you call the Fundamental Constitution. ,... }

This being the true Matter of Fact without any Disguise, it is easy to answer all that you have said against K.Williams acquiring an Absolute, Hereditary Right to the Crown of England, for himself, and all his Descendants by the Sword. First then, As to the Justice of the War, and Conquest it self; I suppose you will not deny, but that Duke William had a good Cause of War against Harold for, the Breach of his Oath ; and if so, against all that took his Part at the Battel of HaRings ; so that upon the Conquest of Harold, and those that were in that Fight, he also acquired a Right by Conquest to all that they enjoyed ; and consequently had a Right to Harold's Crown, as Well as his other Estate ; as also to the Estates of all



those that were either flain, or escaped alive from that Battels and not only to these, but also to all the Lands of the whole Kingdom •, since the War was made not only against Harold's Person, but against the Kingdom ofEngland the People of which, according to their Allegiance, assisted him in that War, either with Men or Money. But admitting the War to have been in it self never so unjust, yet all Writers on this Subject (even Grptius andPuffendorf) grant, that Conquest even vid, Grot'.L 2. in an unjust War, with a thorough Settlement in the Conqueror and his. Succes- * 4fcrs, by the Non-claim, Dereliction, Submission, or Extinction of the next HeirsP"^M c,?m of the former Kings, together with a long uninterrupted Possession beyond all Time 1 § ? . of Memory, will confer a good Title especially when all these were confirmed by a constant Submission and Recognition of the People, testified not only at the first Conquest, but in all succeeding Times, by as absolute and unconditioned Oaths of Allegiance as can be invented, or that were ever taken to the most Absolute Monarch: And fiich Oaths are always to be interpreted in Favour of the Prince to whom they are sivorn, and as strictly against the People that take them; as all Writers also agree. Now, granting this to be the Case of King William the Conqueror, that by all or some of these Means he acquired a Right to the Crown, not only for himself, but his Heirs; this Power was Absolute, without any Conditions to be observed on their part: For the Oath of Allegiance is positive, without any Condition or Restriction. So that I can fee no manner of Pretence that the People of this Nation can have, of forcing their Kings to the Maintenance or Observation of those Rights and Privileges, which they, their Predecessors, or Ancestors have* so freely granted to them 5 as Puffendorf, whom you now cited, very rightly observes •, and consequently can have no Right to repel Force by Force since our Kings do not now hold their Crown by Force or mere Conquest, but by all other Things required by the Law of Nations to create a full and absolute Right, vis. a long uninterrupted Possession, and the Absolute Submission of the People for themselves, and all their Descendants. So that tho' I grant bare Conquest, considered as a Force, can give noJRight alone, yet it may often be the Mother of Right, and may at last grow to a sufficient Right, by the Means I have already mentioned.

F. Before I reply any thing farther to what you have now said to the Matter of Right acquired by your Conqueror and his Heirs, pray, in the first place, prove the Matter of Fact to have been as you lay it; and therefore produce your Quotations from the Authors you mention. But first give me leave to tell you, that Dr. B.and you are the first I have heard to make so light of this Testamentary Donation of Edward the Confessor, which the greatest part of the Writers nearest that Time, do suppose to have been really made on the behalf of DukeWilliam; and that notwithstanding this Bequest, Harold unjustly, and contrary to his own . Oath, did by Force set the Crown upon his own Head, without any precedent Election of the Clergy, Nobility and People, as was required at that time, since it was impossible for them to meet in so short a time. For King Edward dying on the Eve of Epiphany, was buried on Twelfth-day; and on the lame Day Harold took upon himself the Crown, by the Consent of some of the Bishops and Nobility of his Faction then at London: So that he was certainly no better than an Usurper. And therefore by the Conquest of Harold and his Party, your Conqueror could acquire no Right over all the Free People of England, since they never gave their Consents to place Harold on the Throne; and consequently King William could have no just Cause of making a Conquest upon the whole Nation, since neither 'did he ever in all his Reign (as I can find) all a Common Council of the Kingdom to recognize, or confirm his Title. And tho' it is true, Harold proving a Valiant and popular Prince, got the good Will of the common People by divers Acts of Grace, ( which he had lost by his violent taking the Crown from Edgar Atheling, the only remaining Male Heir of the Saxon Race ) and found very many who were willing to fight for him, not only against the King of Norway, who had a little before invaded the Kingdom, but also against Duke William $ yet all those in his Army could amount to nothing near the whole Nation, who never contributed to the War by any publick Vote or Taxj and therefore did not countenance it by giving Money, or raising of Men, as you suppose: So that Duke William could not pretend a Right of making War against any body, but only Harold aifd his Accomplices. But as for the Testamentary Donation of Edward the Con- p 6St £^., sector, tho' you make so light 9s it, yet Ingulph fays exprefly, that Edward the o%on.


Confessor, some Time before his Death, lent Robert Archbishop of Canterbury, as his Ambassador to DukeWilliam, to let him know, " That he had designed him "his Successor, not only by Right of Kindred, but by the Merit of his Virtue: And that after this, Harold coming into Nor/bandy, promised upon Oath to assist him in it. And Will. Malmesbury fays also, That Edward, the Father of* Edgar Atbeling, dying almost as soon as he came into England, King Edward his Cousin being dead, gave the Succession of this Kingdom to William Duke ofNormandy. 'With whom also agrees William of PoiBou, and most of the rest of the Historians of that Age, as wellEnglish as Kormans: Nor do I know any of them, except Simeon of Durham, and Roger Hovcden, who makeHarold to have been appointed Successor by King Edward.

But I confess your main Objection is still to be answered, viz. What precedent Right Duke William could have to the Crown of England by this Testament of King Edward, since it was then either an Elective, or else an Hereditary Kingdom, and so this Donation could confer no Right on this Duke, in Prejudice of the People's Right to elect, or else of the next Heir to succeed? In Answer to which, I must tell you that which perhaps you may have never considered, That the Crown was then neither properly Elective nor Successive, but a Mixture of both.

M. That seems a Kind of a Paradox, and what I never heard before: Pray explain your self, for I do not understand how it could be.

F. Why then, I will tell you: The Crown of England, in those Times, was • very like what the Crowns ofDenmark and Sweden were not long since, and as the Empire is at this Day in which tho' the Estates or Diet might chuse whom they pleased for King or Emperor, yet they still kept to the same Family or Line, as long as there were any Males left of it fit to succeed. Which Custom often gave the King in Being a Power, (which by degrees came to be looked upon as a Kind of Right) either upon his Death-bed, or else at any Time before, to nominate or recommend one of his Sons, or near Kinsmen, to be, his Successor, by his last Will or Testament; especially if he had no Sons of his owrFj as happen'd in the Case of King Edward the Confessor. Now this Nomination, tho' it did not alone confer a Right to the Crown, yet it made the Person so named the fairest Candidate for it j and was such a Recommendation to the Estates', or great Council of the Kingdom, as they never passed by or denied, as I can ever find by the best Enquiry 1 have made. And for Proof of this, I shall appeal to the Testament of KingAlfred, as you will find it Printed from an Ancient Manuscript, in the Second Appendix to his Life, in Latin,publish d at Oxford. Which begins thus: "Ego Alfredus divino munere, labore, ac studio Atbelredi Arcbiepiscopi,nec non "totius Westsaxoniæ Nobilitaris confcnsu, pariter tSf Affenfu, Occident alium Saxo' "num Rex ; quos inTestimonium tnex ultima voluntatis complement!, ut fint Advocati tc in difpone ndis pro salute anima met regalieleffione, conjv-mo, tarn de bt redit atet "quam Dew ac Principes, cum senior ib us Popu/i misericorditer acbenigne dede"runt; quam de bar-editate quam Pater met* Ætbelwu/sus Rex nobis tribus fra"tribus delegavit, viz.Ætbelbaldo, Ætbelredo, & mibi $ ita, quod qui nostrum "diutius foret fuperstes, ille totius Rcgni dominiocongauderet, Stc. From whence you may collect, first, That tho* this King, in the very Beginning of his Testament, ascribes his obtaining the Crown, not to any Hereditary Right, but the Consent and Assent of the Nobility of West-Saxony 5 yet he also here mentions the Entail of the Crown by his Father's Will, upon his Two Elder Brothers, and himself successively, before any of his Elder Brother's Sons, who were living at the Time of the making of this Testament of King Alfred's, as appears by the Will it selfj in which they are exprefly mentioned. Now how could this be, that he was King, as well by the Consent or Election of the Weft-SaxonNobility, as by his Father's Will, unless both these had been required to make him so? And Will, of Malmesburytells us of King Atbelstan, the Grandson of King Alfred, that Juffu Patris in Testament0, Ælhelstanus in Regem eftacclamatus: But in the Beginning of this Chapter he also tells us, that Ætbelstanus eleSus apud Regiam aulamquœ vocatur Kingston Coronatus est, quamvis quidam Alfredus cunt faffio/is suis obviare tentaffet; upon that Pretence that Atbelstan was a Bastard. So that you may see, that his Father's Testament was not sufficient without the Election of the Wittema Gcmot; who preferred him, tho' perhaps illegitimate, before this Alfred, tho' Son to King Alfred's Elder Brother, who was set up against him.



And I doubt not, if more of the Testaments of the English Saxon Kings were
now extant, that I could give you more Instances of this Nature. But that the
Person so nominated and elected, tho' not the nearest always of Blood, claimed
Jure Htreditario, is also as certain, since BraBon exprefly tells us, " That Here-
"ditamentum, or Inheritance, is not derived ab Htrede, but Heir from Inheri-
"tance; and that Inheritance is the Succession to all the Right which the Prede-
cessor had, by whatever Means acquir'd. With whom also the Civil Law
agrees, Heredis jignificatione omnessigniflcare succejsores credendum est, etji ver bis
nonfint exprejfi. Nor did this Custom, of thus recommending a Successor,, pre-
vail in England alone in those Times, but also was in Use among the French Kings
of the Race of Charlemain ; wherein the last Will or Adoption of the King, being
confirmed by the Election or Recognition of the Estates of France, gave a sufficient
Title to a Prince of the Blood Royal, tho' not Legitimate, nor the next Heir by
Blood, to succeed: But the Will of the Prince was not alone sufficient, as Mon- -
fieur. Mezeray has very well observed in his Chronological Abridgment of the
"History of France, in the Reign of King Clotair the Second.

So that to conclude •, If Duke William of Normandy was thus adopted, named by King Edward the Confessor for his Successor by his last Will and Testament; and this had been without any Blows confirmed by the Council of the Kingdom, by a subsequent Election and Coronation, and that he had received the Oaths and Recognitions of the English Subjects, which always followed that Solemnity; I doubt not but he would have had as good a Title to the Crown, as any of the Kings of the English Saxon Line: I am sure a much better than Harold, who I am not satisfied came in either by the Adoption of King Edward, or by the Election; of the People •, and therefore Duke William had a good Title against him, as an Usurper: And conquering him and those of his Party in the Battel, and being thereupon Elected, and Recognized, and Crowned by the general Consent both of theEnglish and Normans; I cannot see why his obtaining the Crown against Harold by Force of Arms, should extinguish his former Right, and create a new Title by Conquest, which he never claimed by or suppose his renouncing the Confessor's Will, which gave him a Right to be Elected King, according to the Custom of those Times; and to demand the Crown from an Usurper, who had solemnly sworn to assist him in his Right. But since you so positively affirm, that no Author whatever mentions Duke William's Election I doubt not but to shew it you from more than one Author, and those of or near those very Times.

I shall, in the first place, give the Account that a short History, printed at the End of Mr. Taylor's History osGavel-hnd, from an Ancient Manuscript in the Bodleian Library, gives us of this Affair, and who seems to be an Author that lived very near those Times. Londoniam Convehientibus Francis, & Anglis ( ad nativitatem Domini)illisqh omnibus concedentibus, coronam totius Anglite, & Dominationem Juscepit. And William of YoiBou, this King's Chaplain, in his History, re'lates it thus: Die ordinationi decfeto locutus ad Anglos concedentisermoneEboraci Archiepiscopus sapiens, bonus, elo'quens, an consentirent eum fibi Dominum Coronari inquistvit;protejtati sunt hilarem. consensum univerfi minime htefitantes, ac si c&litus ■una mente data, undq\ voce;Anglorum quam facillime Normanni confonuerunt sermocinato apud eos, ac sententiam prœcuntlatoriamConstantini Prxsule, Jtc EleBum consecravit Archiepiscopus, impofuit ei diadema, &c.

So likewise Ordoricus Vitalis, a Norman Author, who flourished not lone after ia his Son's Reign, relates it thus: Die natalis Domini Angli Londonia ad ordi- £• 3. p. 503. nandum Regem convenerunt, Us GufielmumDucem Normannorum in Regem Anglorum consecravit Archiepiscopus, (Sfc. And goes on to relate the Manner how, just as the nameless English Author had done before-, but then agrees with William of YoiBou in all the rest. Dum Aldredus Yrxsul Alloqueretur- Anglos, iff Godofredus Constantiniensis Normannos, an concederentGulielmum Regnare super se, & Universi consensum hilarem protestarentur una voce non unius Linguœ tocutione.With whom also agrees Will. Gemeticensis, in the History of the Dukes of Normandy, p „ who was also an Author that lived in, or very near the Times of this King. His Words are, Anno incarnat. Domini, ab omnibus tarnNormannorum, quam Anglorum proceribus Rex est eleBus, sacro oleo ab Episcopis Regni delibutus, atq-, regalidiadem ate Coronatus.

So that you see here are no less than Four Ancient Authors, of or very near that Time, who all agree upon the solemn Election of King William-, and yet your



Dr. has the Confidence to tell us? that Mr. Petyt only endeavours to prove this Election of King William out of some Fragments of Authors, who lived at some Distance of Time from his coming over hither.

M. I confess you have shew'd me more for this mix'd Right of King Williams by Testament and Succession, than ever I knew before. But you had dealt more fairly, if you had also added what Dr. B. takes notice of out ofGulielmus Pi8aviensis, concerning King William's being advanced to the Crown: For immediately after the Mention of Ms being Crowned, he concludes thus: Cujus Libert & nepotet

Anglorumfirmata, & Jure Belli ipje poffedit. So that here you fee he grounds a Title to him and his Posterity, not only on his Hereditaty Right, but the Oaths of the English, and the Right of War. But as for the Word EleUus,made use of by those Ancient Authors, Dr. B. hath made it very plain in his History of the Succession of the Crown of England, as also in his Glossary, that this Word does not there signify Elected, but Recognized and Acknowledged, that such a one is or ought to be King. And I very much doubt, whether this could be properly termed an Election or not, since the fame Historians also tell us, that Part of King William's Army kept Guard without the Church-Door, during his Coronation, by this good Token, that when they heard so great a Shout given upon the People's declaring their Assents, the Soldiers suspecting some Treason, set Fire to the Houses: So that I cannot fee how that could be properly an Election, when the People durst not refuse. And I know that even at this Day, the King is I hewn to the People on all the Four Sides of the Scaffold on which he is Crowned, and their Consent is formally asked, Whether they will have this Man to be their King? Yet no Man will fay that their Acclamations and crying, Yea, yea, will make our Kings Elective, any more than it could do it in the Cafe of King William, who had a Title by Conquest precedent to this pretended Election; tho1 I grant this Custom may have been in use ever since this Coronation of the Conqueror.

But that King William claimed indeed by Conquest, and by no other Title, let us not mind his specious colourable Pretences, but his Actions, which are the best Interpreters of the Thoughts of Princes; and we shall find, that through all his Reign he governed this Kingdom as a Conqueror: And this I shall prove, by making good the Three Instances I have already given, of his great Alterations of the Property, Laws, and Civil Liberties of the People of this Nation. To begin with the first of these.

For the Proof of which, I shall make use of the Authority of Gervace of 17/bury, a considerable Officer in the Exchequer, in the Time of Henry the lid. and who received his Information from Henry of Blois, Bishop ofWinchester, and Grandchild to the Conqueror, who is most full to that purpose; which he thus delivers in the Manuscript Treatise, ailed the Black Book of the Exchequer, which I shall read to you according to the Learned Dr. B. s Translation of it. 'After the Conquest of the Kingdom, and the just Subversion of the Rebels,

* when the King himself, and his great Men, had viewed and surveyed their new 'Acquests, there was a strict Enquiry made, who they were which had fought

* against the King, and secured themselves by Flight. From these and the Heirs 1 of such as were slain in the Field, all Hopes of possessing either Lands or Rents 'were cut off; for they counted it a great Favour to have their Lives given them: 'But such as were called and,sollicited to fight against King William, and did not; 'if by an humhle Submission they could jpin the Favour of their Lords and 'Masters, they then had the Liberty of possessing somewhat in their own Persons, 'but without any Right of leaving it to their Posterity, their Children enjoying 'it only at the Will of their Lord; to whom when they became unacceptable, 4 they were every way outed of their Estates, neither would any restore what they 1 had taken away.

'And when the miserable Natives represented their Grievances publickly to the 'King, informing him how they were spoiled os their Fortunes, and that with4 out Redress they must be forced to pass into other Countries-, at length, upon 'Consultation, it was ordered, that what they could obtain of their Lords by way 'of Desert or lawful Bargain, they should hold by unquestionable Right; but should 'not claim any thing from the Time the Nation was Conquered, under the Tide

* of Succession or Descent. Upon what great Consideration this was done, is manifest

* (foy&Gervaee;) for they being obliged to Compliance and Obedience, to purchase



{523}

 their Lords Favour therefore whoever of the conquered Nation possessed 'Lands, &c. obtained them not as if they were their Right by Succession or In1 hexitance, but as a Reward of their Service, or by seme intervening. Agree

* ment. ...

This alone were sufficient, coming from an Author of such Credit, and living so very near the Time* but besides this, I shall give you the Authority of divers other Authors to the fame Purpose; and particularly OrdcricusVitalis(whom y0u but now cited) tells us how William I. circumvented the two great Earls of Merck •, and that afterEdwin was stain, and Murcar imprisoned, then King William began to shew himself, and gave his Assistants the best and most considerable Counties in England, and made rich Colonels and Captains of very mean Normans :And that he thus disposed of whole Counties to divers great Men, appears by Domesday Book; wherein it is seen, that as the whole County of Chester was given by the Conqueror to Lupus, a Norman, so likewise the greatest Part of Shropshire Was given to Montgomery. ". ..

And further, he took away from the English their Estates, and gave them to his Normans ; and this he did from his first coming in: For Fitz Osborn was made Earl of Arundel and Hereford, at his first coming in, and was Lord of Bettivil in Normandy, and established the Laws of that Town at Hereford.- Alan Earl of Britain, had all EarlEdwins Lands given to him at the Siege of TorA, about three Years after his Arrival. To these I may add the 795 Mannors Robert Earl of Moreton in Normandy and Cornwal in England, had given to him by King William so likewise AlanHatl of Britain and Richmond had 442 Mannors, and Jejfery Bishop of Constance, had 2S0 Mannors given him by the Conqueror •, besides many other Lands of the Saxon Earls, Thanes, &c. were all given to theNormans, who took their Title from King Williams conquering Sword.

So that I think it is very evident, that this King had distributed most of the Lands of the Nation to his Normans,long before the famous Survey of Domes&y Book was begun j and by that infallible Record, it is clear, that he gave near all the Lands of the Nation to his Followers, and very little or none to the English, who held what they had by a new Title, and new Services from the Conqueror, or his great Lords; or became Tenants to, or Drudges upon their own Lands; as we also learn from BraQon and fleta. Here is enough to satisfy any unbyassed Person, that the Conqueror did not lay by his Sword after the Battel of Hastings.

F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry, it is so apparent in Matter of Fact, that it were a high Piece of Impudence to go about to deny it •, yet will it not therefore follow, that what he thus disposed of was near all the Lands ofEngland, as I shall shew you by and by: But in the mean time, to let you see that I am a fair Adversary, I will at present suppose, that King William took away all the Lands from the former Owners, and gave them to his Followers, who help'd him in his Conquest ; but these were not only the Normans, his Subjects, but French,Flemmings, Anjovins, Britons, Poiflovins, and People of other Nations, who made up a great Part of his Army, and came in ." with him under divers great and considerable Men, their Leaders •, and whom, your Doctor tells us, came not out of stark Love and Kindness, without any Con- Bt A% Pt p %. fideration of sharing with and under him in the Conquest. Now I desire to know by what Law or Act of theirs, they thus constituted King William an Absolute Monarch over them, and their Descendants? For, as for the Normans, tho* they were (it's true) his Subjects; yet they enjoyed divers considerable Rights and Privileges at home, and surely never intended to come over hither, to make themselves as great Slaves as the People they had conquer'd ; much less can it be supposed of these of other Nations, who were not Subjects to Duke William before he was made King. Nor can I see how their taking of Lands from him, could make him become an absolute and irresistible Monarch over them, and their Descendants. So that if upon your Supposition, all the Owners of Land in England at this Day, hold their Estates either by Descent or Purchase from those Ancient Normans, or French Proprietors, they must also succeed to the same Liberties and Privileges as those under whom they claim, did formerly enjoy; and therefore can no more than their Predecessors, be absolute Vassals by Right of Conquest. But before I conclude, I cannot but take Notice of what you have


said against my Proofs of the formal Election of King William for if the keeping of a Guard about the Place where the King is Elected and Crown'd, should void the Freedom of the Election, I doubt whether the Election of any elective Kings or Monarchs, even of the German Emperor himself, would hold good. As for the other Reason, that they could not chuse but elect him, that is yet more trivial •, for there being no more than one that stood to be chosen, they could indeed chuse no other: But if not having a Liberty to refuse, must void the Right of Election, pray consider (as I told you before.) Whether there be any Canonical Election of Bishops in the Church of England at this Day. Therefore I doubt not but that King W/W I. was as lawfully and freely elected, as King Edward the Confessor, his Predecessor, whom all Authors agree to have had no other Title; and WUHelmusGemeticenjis, in the Place I now cited, tells us, he was elected King as well of the Norman as English Nobles : J*nd if the Custom had not then been to elect the King before he was Crown'd, it is not likely that your Conqueror Would have introdue'd a new Custom to the Prejudice of his pretended Right by Conquest. But indeed there is not any more cogent Argument to prove that the CroWn was formerly elective, than the constant Usage (as you your self confess) ever since your pretended Conquest to this Day, of asking the People whether they are content to have such a one for their King. As for your Doctor's Quotation out of William of Poi3ou, pray take Notice, that he places your Conqueror's Hereditary Bequest, together with the Oaths of the Englijh, as his best Title, and the Right of War last $ by which this Author did not understand a Conquest of the People of England,but his prevailing against Harold.

M. I do own with the learned Dr. B. that the Descendants of those ancient 'Norman and French Earls and Barons that came in with the Conqueror, and their Posterity afterwards, feeling the Yoke of feudal Tenures, and other Prerogatives this King and his Descendants exercised over them, to press as hard upon them, as on the ancient English, were those that made such a Disturbance for their Right and Liberties in the Reign of King John,and Henry III. And tho* I grant their Ancestors were never conquer'd, and consequently could not be obliged to him, as to a Conqueror & yet I may, for all this, maintain, that they and their Posterity were as much bound to an absolute Subjection, without any Resistance, as the English whom they conquer'd for they were either his own Subjects in Normandy, before his coming over hither or else were such Voluntiers who followed him out of Hopes of Estates and Preferment. As for all those of the former sort, and who wete his Subjects before, they were tied not only by their own Oaths of Allegiance which they had taken in Normandy, but were also bound by the fame Obligation of Non-Resistance, as all other Subjects must always be, both in that and all other Governments. To all which was added another Obligation in respect of those who were not his Subjects before his Entrance ; since this whole Kingdom was by Conquest the Conqueror's, as appears in that he bestowed the greatest Part of it upon his Followers, (whose Blood runs at this Day in the Veins of most of our English Gentry and Nobility,) as a Reward for their Service and Assistance: Tho' he might leave some part to the English Natives and their Heirs;yet/o as that he altered the Tenure, and made it descend with such Burdens as he pleased to lay upon them. So that as well his ownCountrymen, Normans, as those of all other Nations, who thus became Subjects and Feudataries to him for all the Lands they possessed in England, (since he was the only DireSus Dominus, or Lord Paramount of the whole Kingdom) were also his Vassals and Subjects; for in case of Treason and Rebellion, or Death without Heir, those Lands were to return to him again, and to be at his Disposal. So that all Subjects, as well Normans as other Foreigners, who had Lands granted to them by the Conqueror, thus became his hominesLegei, Liegemen, and did owe Faith and true Allegiance to him, as their Supreme and Liege Lord, as the King is called in several Statutes j and the Definition of Liegeancy is set down in the grand Customary ofNe'rtnandy,X,igeantiaefi ex qua domino tenentur vasalli fui, &c. that is, Liegeancy is an Obligation upon all Subjects to take part With their Liege Lord against all Men living, to aid and assist him with their Bodies and Goods, and with their Advice and Power; not to lift up their Hands against him, nor to support in any wise those who oppose him. And tho' I grant, that the Supreme or Liege Lord is likewise bound so, govern and defend his Liege People,„ according to, the Rights,

Customs, Customs, and Laws of the Country ; yet is he not liable to Resistance, much left Forfeiture if he neglect it. For though if Subjects break their Covenants, and prove disloyal, all their Lands and other Rights are forfeited to the King ; yet, if the King or Supream Lord break his Oath, notwithstanding his failing therein, neither his Crown, nor any Rights belonging to his Royal Dignity are thereby forfeited. The Reason of this Inequality is because the King gave Laws to the People, but the People did not give Laws to him. So that it is plain, that however you state the Conqueror's Entrance, whether by the Sword, or (to avoid the Envy of the Title of a Conqueror) by a voluntary Submission of the English Nation to him, as to their Sovereign ; the Conclusion cannot vary, because the Duty of Nonresistance arises from their own Act, they taking an Oath of Allegiance to be his True and Loyal Subjects, with which Oath Resistance can by no means consist.

F. I must beg your Pardon if I cannot take what you have now said fora satisfactory Answer; since I doubt it will do you little Service, whether you make use of it either in respect of the Normans, or other Foreigners. For as to the former, it appears from the ancient Constitution of Normandy, that the Duke was no Absolute Monarch there, but a Feudatary to the King of France ; and farther, could make no Laws, nor impose Taxes in Normandy,without the Consent of the Estates of that Dutchy •, as appears by the Title to the Latin Customs of Normandy,which are at the End of the Old French Edition of the Consumer de Normandy, Printed at Roan, 1515 the Title of which is thus, Jura & Consuetudines Ducatus Nortnania. The Pr logue to which begins thus •, $Luoniam Leges CInstituta qua Normanorum Principes, ncn fine magna proviswnjs Industria Prœlatorum, Comitum, Baronum, necnon C c£terorum virorum prudentum confilio, C AJsen~ Ju ad salutem humani federis Statuerunr. Whereby it is apparent, that the Antient Laws of Normandy were made by the Advice and Consent of the Estates, for 1 the Preservation of that Covenant they had formerly made with their first Duke Rollo, when he had that Dutchy granted him by the King of France. And whoever will consult the antient Histories and Laws of that Dutchy, will find the Dukes of Normandy no xnore absolute Monarchs there than the Kings of Norway, from whence they came so that if their Duke should have gone about to take away their Estates, or enslave the Persons of theNorman Nobility and People, he might justly have been resisted by them. And therefore their taking Lands from K. William after his pretended Conquest here, must either have conferred an Estate upon them according to the Laws of England, or Normandy ; not according to the Former for you assert, that Tenures in Capite, and Knight's Service, were intro- , duced by his coming; so that if they were by the Norman's Law, (as you suppose) they were then no farther Subjects to their Duke by that Tenure, when made King of England, than they where whilst he was Duke of Normandy, viz. only according to the Laws and Customs by which they held these Estates: So that if their Duke was irresistible by them in Case of Tyranny in his own Country, so he . was also here by the fame Reason -, since whatever he did in respect of the English, he could acquire no new Right over them.

And that an Oath of Homage alone, doth not make the Person to whom it is taken irresistible, if he makes an unjust War upon his Vassals, appears by the Dukes of Normandy themselves, who though they held that Dutchy by Homage to the King of f ranee, and took the fame Oath to him upon every King's Accesli- , on to the Crown, of being his Liegeman, and to be True and Faithful to his Lord the King of France, for the said Dutchy ofNormandy-, yet might the Dukes of Normandy, without any Imputation of Rebellion, have resisted the King ofFrances • in case he made an unjust War upon them •, nor were ever those Dukes accused of Rebellion for so doing, in all the Wars that they had with the Kings of France. And therefore the holding of an Estate by Homage and Fealty, doth not suppose that the Lord of whom it is held was irresistible, nor doth the Word Allegiance signify any more than that Duty which the Liegemen, by the Old Norman Law, owed to their Supreme Xord of whom they held their Lands. And thereforo when the King or Supreme Lord of the Fee did not perform his Part of the Contract, but went about to turn them out of their Estates, or to invade any of their just Rights by Force, it was usual for the Tenants in those Times to defy VicL Speiman.f the Lords, and renounce their Homage to them ; for which they used the Barba- Glossary, sub rous Latin Word diffiiare, in French to defy, that is, to renounce that Faith and ver bo dijjuUrt. Allegiance, which before they owed them and the Supream Lords also often-


times defied their Tenants. Thus Mat. Yam tells in Anno 12??, that K. Henry the Third, by the Counsel of trfe Bishop os Winchestersdefied Richard the Earl Mareschal. And the Year following we find the Earl justifying himself in this manner (being then in Ireland); "First I answer, that I never acted Treasonably

K.d.f. 35*. "against the King, for he has unjustly spoil'd me of my Office of Mareschal, "without the Judgment of my Peers, aud has proclaimed me banifli'd. thorough "all England •, he has burnt my Houses, destroyed my Lands, &c. he has more "than once defied me, when I was-always ready to stand to the Judgment of my "Peers •, from which time (said he) I ceased to be the Kings Liegeman, and was \ M absolved from his Homage, not by my self, but by him. And whereas you lay, that the King, or Supreme Lord, cannot forfeit his Right, though he breaks his part of the Compact, because of the Inequality which there is between a King and a Subject: If so, then this Prerogative of Non-Refistance doth not belong to the King, as he is Supreme Lord of the Land, but as he is King, and giveth Law. to the Subjects •, which may have seme Colour of Truth in Absolute Monarchies, but was of no Force either in the Government of Normandy or England, where the Duke or King, without the Consent of. his Estates, never could alone make. Laws.1 But as I will not deny our Government to be a Monarchy^ so it is as certain, that it is limited in the very Constitution^ either by the Saxons or Normans^ begin where you please : And therefore my Conclusion still holds good j that. - if the Englijh have now succeeded to those very Lands and Privileges wbich^the.JVctrmans anciently enjoyed, then whatsoever Right or Liberty the English1 Proprietors of Estates do at this Day enjoy, they do not only hold them as the Successors and Descendants of those Normans andFrenchmen, but are also restored to them Jure poftliminii (as you Civilians term it) since they never submitted themselves, or took an Oath-of Allegiance to King William and his Heirs, but only to himself" Personally ; there being no such Clause in any Oath of Allegiance, till it was so ordained many Ages after in the Reign of KingHenry the Fourth ; nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror, but the lawful Successor of K. Edward the Confesses ■, and K. Williams actual taking away the Estates of a: great many of the English Nobility and Gentry, contrary to his own Oath, and without any just Cause, could no more give him a Right so to do, than if Henry the Fourth, or Henry the Seventh, both which came to the Crown _ by the Assistance of a Foreign Force, should upon a Pretence of being Conquerors have govern'd by an Army, and so have taken away whose Estates they pleased, and given them to their Followers that came over with them.^ •

M. I (hall not dispute this Matter with you any further v therefore pray proceed to the other Point you took upou you to prove, that King William did not take away so great a Share of the Lands of England, as the Dr. and those of our Opinion affirm.. .• -; «■ .... f'

F.-1 shall observe your Commands^ and therefore in the first Place I desire you to take notice, that according to the Doctor's own shewing, your Conqueror never took away the Lands of all the Bishops and Abbots ofEngland, much less those that belonged to Deans and Chapters, or to private Churches •, and if his Nobles or Followers had un justly disseized any Bishop or Abbot of their Estates, the King caused them to be restored again •, as appears by rnany Presidents of this Kind, which' are to be found in Ingulphus and Eadmerus. This being premised, let us isee in the next Place, what Proportion the Lands belonging to the Church, did in • '.those Days bear to the rest of the Lands in England. Now we find in Spross Chronicle, as also from the old Leiger-book, cited by Mr. Selden in his Titles of Honour, and particularly from that Secretum Abbatis (formerly belonging to the Abbey of Glajj'enbury, and now in the Library, of the University of Oxon) that there were not long after your Conquest, 60215 Knight's Fees in England, of which the Bishops, Abbots, and other Churchmen then enjoyed 28015, when . it is supposed this Account was taken. Then it vvlll follow, that in the Reign of your Conqueror there were above 28000 Knight's Fees, which belonged to the Church. And in these we do not any where find that K. William dispossessed their Tenants of their Estates, most of which were held in Fee under them, and those Tenants were great.and powerful Men in their Countries ; and hence we read in

■ the ancient Records and Leiger-Books, of the Barons and Knights, that held of

di vers Bishops and great Abbots; several Examples of which you willsind in Sir

'"• S4« Henry Spelmans Title Baro. Now it is certain that K. William could not turn all these Men out of their Estates, and give them to his Followers, without committing mitring Sacrilege, and invading the Rights of the Church, which that King durst not commonly do. So that the utmost you can suppose he could do, was to take the Forfeitures of all such Tenants of the Church, who had taken Part with King Harold, or had any ways committed Treason against himself, which were far from the whole Number of them : So that here goes off at once almost a Half of all the Lands held by Knights Service, which the King did never dispossess the ancient Owners of To these may also be added all Tenants iri ancient Demesne, all Tenants in Soccage, as also all Tenants in Gave/kind,which in those Days made at least Two Thirds of the Lands of Kent, which by the way was never conquer'd, but surrenders upon Terms, to lave their '» aucient Customs and Tenures, as Mr. Cambden himself acknowledges in his Description of this County •, besides what was held in other Counties by the fame Tenure •, as you will find in Mr. Taylors History of Gave/kind: All which not being Tenures in chief by Knight's Service, are not register'd in DoomsdayBook nor does it appear that the Owners were ever dispossessed of them. To which may also be added the Lands of divers of those smaller Thanes, or Officers of King Edward, whose Names are found inDomesday-Book, who held their Lands ratione officii.

To all these we may also add, all such Norman Noblemen and Gentlemen, who were many, that having come into England in Edward the Confessor's Time, vid. tetes and having Honours and Lands given them by him, had continued here ever Gutidmi* since: And these were so numerous, that it was' thought worth while by King /Wilftam to make a particular Law concerning them, that they should partake of alt the Customs, the Rights and Privileges of native Englishmen, and pay Scot and Lot as they did of these were the Earl of Morton, besides many others whose Names appear in Domesday-Book. And not only these Men but also divers Cities and Towns held Lands of King William by the fame Rents and Services,, as they had formerly paid in the Time of King Edwardthe Confessor, as Oxford for Example. But to give an Answer, to some of your Instances, as , D when you fay that King William gave away whole Counties, as all Cheshire to gM'k -mo!rftrd. Hugh Lupus, and the greatest Part ofShropshire to Roger de Montgomery, &c. shin.

It is a great Error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure^and that they turned out all the old Proprietors, which it is certain they did not; as I could prove to you by several Instances of ancient English Families who have held their Lands and enjoyed the fame Seats they had in the Conqueror's Time. So that you see there is a great deal of Difference between a Grant of all the Land of a County, and that of a whole County: What is meant by the former is plain, but as for the latter it generally implies no more than the Earldom or Government of that County. Thus whereas your Dr. would have it, that the greatest Part of Shropshire was given to 'A A*p*9Z' Roger de Montgomery, Domesday only fays, that he had the City of Shrewsbury,

totam Comitatum, and the whole County : But that is soon explained by what follows, & totum Dominium quodRex tpse tenebat; where it is plain that by Dominium is meant no more than that Power to govern it, and receive a Third Part of the Fines and other Profits to his own Use, which King Edward had; for otherwise the Grant oftotum Comitatum, had been sufficient.

M I confess this is more than ever I heard, or considered before, concerning this Matter •, but you do not give me any positive Proof that at the Time when Domesday Book was made, there were any Englishmen who held Earldoms, or Baronies, or other great Estates of the King, or any of his great Men; so that what you have laid hitherto, tho' it carries a great Shew of Probability, yet is no positive Proof against the Dr.'s Assertion.

F: I shall not go about to deny what William of Malmsbury, and Henry of Huntingtonib positively affirm, that for some time before the End of KingWiUiam's Reign, there was no ^Englishman a Bishop, Abbot, or Earl, inEngland j, yet does it not therefore follow, that it was thus through his whole Reign, or if it were so, will it therefore follow, that there were few Englishmen who, when DomesdayBook was made, possessed any Lands inEngland. But that in Part of King Williams Reign there were many English Earls and Barons, appears by above a dozen Charters cited by Sit William Dugdale, in the Saxon and Latin Tongues, in his Monast. Anglic, which are either directed by KhgWilliam to all his Earls or Thanes, or elseinLatin, OmnibusBaionibusfrancigenkwAnglis \ or else Omnibus Baronibus


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& Tidetibus fuis,Francis &Anglis salutem. The like Charters also appear of Hen.l. and the Empress Maud his Daughter. So that if Francigen'a and Francos signify a Frenchman, and Anglus an Englishman, arid ffFidelisdoes (as your Dr. wouli have it) signify a Tenant in Ctpift, then I think nothing is plainer than that there were, for great Part of King William's Reign, both Earls, Basons and Tenants in Capite of English Extraction.

But to come to particular Persons ; it will appear by many Saxon or English Names in Doomsday-Book, as also by several Recitals therein, that there were divers English Noblemen or Gentlemen, who held Lands in divers Counties of England,' at the Time when that Survey was made. And for Proof of this, since so short a Conversation as ours will not permit me to run into a long Bed-Roll of Names, I refef you to what the learned and ingenious Mx.Atwood in his Jus Anglorum ab antiquo, has observed out of Doomsday-hook upon this Subject -, where tho' he has gone over but Fifteen Counties of Thirty, that are surveyed in that Book, yet it will thereby sufficiently appear that your Dr. is much mistaken when he so positively affirms, that there were few {or noEnglijhmen that held Lands in England. But to give you a Taste of this, I shall run through as many Counties as Mr. Atwood has given us the Names of: To begin which Survey, (where besides the Earl of Morton above-mentioned, who tho' he was a Norman born, yet he was here before the Entrance of the Norman Duke, and heldEJlrehaw in Tenrige Hundred in the Time of King Edward) there was also Hugo de Fort, an Englishman, who was a very great Proprietor, as may be found under this Title in Doomsday-Book, Terra Hugonis de Fort. Many Manors he had, as thereby appears j in Hampshire he had at least Two Mannors, Cerdeford and Eschetune, from his Ancestors before King William's Entrance •, and besides this Gentleman, (and the Earl above-mentioned,) there are no less than Ten or .Eleven, who as it appears either by their English Names, or else by this Note which so frequently occurs, Idem tenuitT. R.'E. i.'e. tempore Edvcardi Regis, i.e. held the fame Lands they anji their Ancestors did in the Time of King Edward. The like I may fay for the other Counties there mentioned, asHampshire in the next Place, where besides Ralph de Mortimer who had several Lands, T. R. E. there are no less than above Thirty Freeholders more, who by their Saxon Names and want of Sir-Names, seem to be meerEnglish, divers of whom held the fame Thane-Lands, which themselves or their Fathers did in the Time of KingEdward. And tho' in Buckingham/hire and Berkshire indeed there are but Five or Six, who held the fame Lands which they or their Ancestors possessed in the Time of the Conqueror ; yet in Wiltshire and Dorsetshire, there appears between Twenty and Thirty English Proprietors, many of whom held whole Townships when this Survey was made. In Somersetshire, Devonshire, Staffordshire, Yorkshire and Gloucestershire, their does appear in most of them a Dozen or more English Saxon Names, who held whole Manors. 'Tis true that in Nottinghamshire,Lincolnshire and Herefordshire, there appear fewest English Names,

SolflodMiiay suffice for Do^psdayBook : And I doubt not ifany one will take the Pains to look" over the Titles of the rest of the Counties, he may find enough Ihftjuices of the like Nature, sufficient to prove that the Englishwere not wholly dispossessed os their Estates, at the latter End of King William's Reign, when this Survey was made. Not to mention Northumberland, Westmorland, and the Bishoprick of Durham ; all which are omitted.

But that the Number of English, which held the Lands in the Time of King

relating how the Norman Lords then in England, would have dethroned William Rusus and have set up his Brother Robert in his Place, who there also shews the Manner how that King prevented it. RexVidens Normannospene in unaRabie confpiratos, Anglos probos, &ffortes viros, qui adhuc residid er ant invitatoriis scriptis arcefftt -, quibus super injuriis suit ^jierimoniam faciens, bonafque Leges & Tribuforum levamcn Liberafque .venationespollicens, fidelitati fins, obligavit y where Residui must certainly be meant of the Residue or Remainder of thoseEnglish Gentry, whose Estates were still left; and hereinOrdericus Vitalk is more express, that King William as soon as he saw the Contrivance against him -^Lanfrancum Archie

[graphic]

William I. and II. was very considerable.

[graphic]
[graphic]

M. As for Mr. Amood\ Catalogue of English Names from Doomsday Book, I have not yet examined them; and thol grant there are, and may be divers who held the fame Lands that they, or their Fathers did, yet they are but a few in respect of the rest:: nor are we certain that all these were native English, and not Normans, who held those Lands as well then as before the Conquest, since the Norman and the English Names were often the fame. And as for the want of Sirnames, that is no Argument they must needs be English, since in those days very few, even of the Normans, but Persons of Quality and Estates, had any *, as Mr. Cambden (hews us in his Remains. But as for those Expressions in the Charters of King William and his Sons, wherein theEnglish, as well as the French Earls and Barons, are mentioned; those Charters might be made during the three or four first years of King William % Reign, when I grant the English were not wholly dispossessed of thtir Estates, ^ but that there were some of them that still held Earldoms and Baronies in their own Right; but when the fame Expressions occur after that time, the word Ang U, or Angligena^ must be understood in another sense, tho it seems*. A. A, to be put in opposition to Promt: for as by these last are to be understood such French or NormanBarons, who had Estates in England as well as in France; so by the former could be only meant such Frenchmenor Normans who had Estates in England only, or else tho French by Original, were Englishmen by Birth, and are here called Angli and Angligem, to distinguish them from such French Barons as are above-mentioned, or from such as were born in France. And for the truth of this, I desire you would consult Dr. £'s learned Glossary, at the end of the Folio Edition of his Answer to Mr. P. and his two Seconds, Tit. Angli and Angligena; where he tells us, that these Angli and Bar ones AnglU, mentioned in these Authors and antient Charters, were not Englifli butNormans, and those Men of no mean or ordinary Rank, but Carls or Barons; for they could never have met in such numbers, as were requisite for them to do, to protect and defend King William Rufus, had not they been headed by such, if they had either Power or Estates left, that depended not npon the Normans. And if you, or any Man, can shew me an Engltfh Saxon, that was then either Earl or Baron, or had any (hare in the Government, or any that had considerable Estates that did not hold them of the Normans, or had at that time any great Woods, Forests, or Privileges of hunting in them, then I will confess my self mistaken. As for W. Malmesbury's laying, these were Angli probi qui refidui trant, these were only the antifui & legit imi Bar ones, who, as Orderictu tells us, came in with his Father, and settled themselves here after the Conquest.

And as for your Quotations but of Witiam of Malmesbury, and Ordericus s. A. P. p.50. Vitalis, concerning theEnglipj assisting King William Rvftu against his Brother Robert, by using the common bait of Liberty, viz..promising that he would alleviate the rigid Laws of his Father, and give free liberty of hunting in his Forests; 'tis true, he thereupon raised an indifferent Army, consisting chiefly of EngUJh, who, as Matthew Paris tells us, were no better than mercenary or stipendiary Soldiers, and who had either no Estates, or else had been turned out of them before; so that this does not prove that they were Englishmen of any Fortunes who thus assisted WilliamRufus.

F. As for what you have now said against the Citations of the Names out of Doomsday-Book, it is not material; since if Englijh Names were then common to the Normans and them, then the Norman Names might be as well common to the English; and then many of those in England, whom by their Names we suppose to have beenNormans, might be native Englishmen. And as for what you urge against the express words of the Charters 1 have now cited, I think it is a downright wresting of the words Francis and Anglis, since no Author that I know of but your Doctor is of that Opinion: For that the word Franci or Francigena does signify such Frenchmen who held Baronies in England, is granted on all hands i but how Angli must also signify Frenchmen, seems a Paradox to me: for how could these Frenchmen or Normans be termed Englishmen, only because they held Estates here and not in Normandy i For if the having such and such Estates in England would have turned Frenchmen intoEnglishmen, there needed no such distinction to have been made between French and Emlifli Barons in these Charters j since* according to your * y y y Doctor's Doctor's Notion, the French Barons could be no otherwise mentioned here, but as they had Estates . here, and therefore could be only writ to in that Capacity, lince as mereFrenchmen they had nothing to do here: so that if this Epithet was in respect of the Tenure of their Lands, they would have been stiled Englifii Baroris as well as the other. Nor is your other Evasion more to the purpose, that by the Angli might be meant in the Charters of King Hentyh such Norman or French Barons, who because they were born in England, might therefore be called English: for who can believe that in so small a time, as from the beginning of the Reign of King William I. to that of King Henry I. which was but a little above thirty years, so many of the Norman Nobility were dead, as should make it necessary to use a new Distinction of French andEnglish^ Barons; since by their Tenures they were both alike Englifii? And indeed thus to make Angli signifyNormans, is to confound and make all words, tho ever so plain, uncertain and equivocal. And as for whatOrdericus fays of the old Norman Barons, it would have signified something, if you could have proved he had called them Englishmen, as' he does not: but if you carry it further to the time of the Empress Maud and KingStephen, when all the old Race of Normans were certainly dead, then there was much less need of this Distinction, when all that were born in England were English alike; and therefore the word French could only extend to those few Barons, who being born ia Normandy, had Estates here.

But since you are forced to confess, that for the first four or five years of King William l's Reign, there were bothEnglish Earls and Barons, till the King had by degrees rooted them out, there cannot be a better Argument against your pretended Right of Conquest ; since it is plain, King William could never pretend to take away their Honours and Estates as a Conqueror^ since by his Coronation-Oath he was sworn to restrain all Rapines and unjust Judgments^ and that he would behave himself mercifully toward his Subjects, and treat both the Englijh andFrench with equal Right: so that if he afterwards took away the Estates of Englijh Nobility or Gentry, it was either because they deserved it by rebelling against him, and then it was justly done, or else it was done without any cause at all, but only to oppress and root out the Englijh Proprietors; and if so, such Actions being contrary to his own Claim from Edward the Confessor, as also to his Coronation-Oath, could no more give him any such Right to rob or spoil Men of their Estates without any just cause, than it could give him a Right to rob the Churches and Monasteries of all the Plate, Mony, and Jewels which he found in them, even to the very Chalices and Shrines, as Matthew Paris and other Authors tell us he did in the fourth year of .his Reign; when likewise (according as you your self set forth) he began to (hew himself a Conqueror, or rather a Tyrant, in thus committing Sacrilege, and taking away the Estates of the Englifii without any just cause.

But however, the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor; forWilliam of PoiElou expresly tells us, who was Chaplain to this King, concerning his taking away the Estates of the Englifii, and giving them to the Normans, that nulli tamen Gallo datum est quod Anglo cuiquam injusth fueritablatum. And Ordericus Vitalis, speaking of his dealing with the Englifii at the beginning of his Reign, fays expresly, Nemincm, nisi quern non damnare iniquum for et, damnavit

I shall now conclude with a Reply to whit you have said, to evade the Authorities of those antient Authors 1 have brought to prove, that in the beginning of the Reign of King William the Second, there were many EnglifiiGentlemen left of considerable Estates, whom you and your Doctor would fain make to be no better than mere Mercenaries} which is expresly contrary to the Authority of Matthew Parisi whom you your self have cited in this Point, as also all other Authors who have wrote of this matter: for Matthew hds immediately before these words,Videns igitur Rex Willielmw, omnes penh Regni proceres utia rabie confpiratos, Anglos fortitudine & probitateinfignts, faciles leges & tributorum levamtn, illis venationes tiberasque promittendo jibi prifno devinxit; and almost makes use of the very words that Malmesbury had done before. Now 1 desire you or your Doctor would satisfy me, how Men, who were remarkable for their Valour and Honesty, and who were so considerable, as to be. sent for by Letters writ on purpose, and when they came, should be promised inised easier Laws, free Hunting, and a Relaxation of Taxes^ all which are Privileges belonging to Men of Estates, could be mere Soldiers of Fortune? And to make it plain that they were not the King's, but their own Woods they were to hunt in, RogerHoveden speaking of this ver} matter, tells us, Et conceflit omnibus fylvas [uas, & venationem: Sed quicquidpromifit pdrvo tempore custodivit, Angli turn fideliter eum juvabant. But that he did not keep his Promise as to hunting, as well as other things, appears by a Passage in Eadmerus, where he gives us as an Example of KingRufmh harm Nature, "That about fifty "Men of the antient English Gentry, who in those days enjoyed some Re•* mains of .Riches, were taken and accused, that they had killed the King's M Deer-," and having for this undergone the Trial of Fire and Water, he was in a great Rage about it: which is sufficient to shew you, that there were at this time many Englijh Gentlemen left of sufficient Estates to use Hunting, either in their own or the King's Woods. As for what you urge further against Mr. Ah Instances out of Doomsday Book, it is not considerable;since it is only an Exception against the Names of Persons there mentioned, that they were not native Englijh, butNormans, who either were born, or had Lands in England, or else had the same Names with the Englijh; both which arc gratis dicta: for Doomsday-Book plainly says, either that they or their Ancestors were here before your Conquest, or else their Names being wholly Engltjli-Saxon, it lies upon your side to prove, that they wereFrenchmen ot Normans by Original, which 1 believe is more than you or your Doctor is able to do.

F. I cannot blame you if you do what you can to evade this Testimony from Sharnborn's Book, which gives so exact an account of the Original of those Tenants who held of the King, as Sir H. Spelman tells us, per servitiumDren- Glossary, Tide garii; and* such Tenants were called Drenches or Drenges, as this Book of Sharn-Frenches, born tells us. But tho it is true, as this Book it self sets forth, Edwin of Sharnborn was never restored to all the Lands he held before the Conquest i yet it is plain, that be had the King's Mandate for his Restitution: and if he could not obtain it, by reason of the great power of the present Possessors* yet that is no Argument against his Right, or King William's Intention to restore him; since Jngulph tells us, that Ivo Talbois seized the Cell ofSpalding, and Hist. p. p, divers Lands belonging to the Monastery of Cropland, and kept them by force, 72> 95*Ed* notwithstanding a solemn Hearing before the King and Council. And if a great Man could do this with the Lands of the Church, it is no wonder that so powerful a Person as Earl Warren could, by his Power, or perhaps by the Connivance of King William himself, keep another Man's Estate, and make him contented with such a share as he would allow him, when he found he could have no other remedy against those that thus unjustly detained it.

But tho in the beginning of your Discourse you seem to allow a part of the Story, as it is related in Sharnborn'sManuscript, and produce the Testimony of Brail on and Fleta, to prove that divers antient Englijh Proprietors, who being thrown out of their Estates by powerful Men presently after the Conquest, were fain to take them again upon performing of Villain Services, tho they themselves remained free Men; yet your Doctor, from whom you borrow this, is very much out in his Application of those Passages he cites: for nei- . ther of those Authors do affirm this of all Owners of Lands whatsoever, but only there to give us the Original of Socage-Tenants on the King's Demesnes, as appears by-Brew's Title to that Chapter, from whence the Doctor cites this Passage, which is,De diverjis conditionibus perfonarum tenentium in Dominicis Domini Regis. And the first words of this Chapter make it yet plainer, beginning thus, In Dominico Domini Regis plura punt genera hominumt sunt ehim ibi servijive nativi, ante Conqueftum, in Conquestu, & post Conqueftum; and under these last ranges the Persons you mentioned. But Fleta is more * exact in his Chapter de Sokemannis, where he tells us, that these Men were Tenants of the King's antient Mannors in Demesne; Et quia hujufmodi cultores Regis dignoscuntur, provifa suitquies, ne setlas facerent ad Comitatum, vel Hundredum tamen pro terra, quorum congregationem tune socamappellarunt, hinc eftquod Soiemanni hodie dicuntur ejse. So that tho King William might permit his antient Tenants to be thus outed out of the Estates they held in his own Demesnes, yet does it not therefore follow, that he took away the Estates of

Y y y 2 the

the anticnt Owners all over England, of whatsoever Tenure they were, or oi whomsoever held. But as for your Quotation out of Matthew Parts, it proves no more than what I readily grant, that King William, after bis return out of Normandy, liberally rewarded his Followers with the Estates of the Engtijhi which might be only of such as sought against him at the Battle of Hastings } 3nd as for that little which was left them, which he lays was pot under the Yoke of a perpetual Servitude, he means no more by this Expression, than that new Tenure of Knight's Service which King William imposed upon them 5 as this Author in the very next Leaf observes, where he speaks of the Lands of the Bifliopricks and Abbies, which were held before free from all secular" Servitude, fib fervituttfiatvit militari. •• M- I will not undertake to prove that he quite altered the antient Laws of England, and brought in quite new ones; yet that he did so in great part, and that by his sole Authority, I think lean prove by sufficient Testimonies: and therefore I shall begin with that of Eadmer, a Monk of Canterbury, a CompaHist.Nov. nipn of Archbishop Lanfranc's, who tells us in his History, *' TYatWiiiam sol. 6. n. io, " designing to establish inEngland those Useges and Laws, which his Ancefao,jo. ,4 tors and he observed in Normandy, made such Persons Bishops, Abbots, and „ other principal Menj thro the whole Nation, who could not be thought so unworthy as to be guilty of any Rcluctaacy and Disobedience to them, "knowing by whom, and to what they were raised; all divine and human "things he ordered at his pleasure." And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop, he concludes thus: " But what he did in Secular Matters, I forbear to write, -be"cause it is not my purpose, and because also any one may, from what hath "been delivered, guess what he did in Seculars." From which I think no-, thing is plainer, than that King William did not only design to alter many, things in the Laws and Customs of England, but didalso actually do it; for to what end else did he make the Bishops, Abbots, and other principal Men, who were to be Judges in all Courts? Now that KingWilliam governed the Nation as Conqueror, and did so live and repute himself so to be, and as such brought in and imposed new Laws upon the People of this Nation, is clear, as I (hall prove from these Particulars, >,'1 '•

First, The Justiciaries, or chief Justices, the Chancellors, the Lawyers, the • Ministerial Officers and Under-Judges, Barb, Sheriffs, Bailiffs, Hundredaries^ were all Normans, from his first coming until above a hundred years after; as I can make it out by particular Instances and undeniable Reasons, were not the Catalogues too long to be here inserted. If therefore the Justiciaries, Chancellors, Earls, Sheriffs, Lords of Mannors, such as heard Causes, and gave Judgment, were Normans; if the Lawyers and Pleaders were also Nvfmanf, the Pleadings and Judgments in their several Courts must of necessity have been in that Language, and the Law also, I mean theNorman Law: otherwise they had said and done they knew not what, and judged they knew not how; especially when the Controversies were to be determined by military Men, as Earls, Sheriffs, Lords of Mannors, &t. that understood not the EngVfi Tongue or Law; or when the Chief Justiciary himself was a military Man, as it often happened, and understood only the Norman Language: and 'tis hardly to be believed these Men would gtvfe themselves the trouble of teaming and anderstanding the English Law and Language. »

Secondly, Tho we have many Laws and Customs from the Northern People, and North Parts of Germany, from whence both Saxons and Normans came; yet, after the Conquest, the Bulk and Main of oar Laws were bright hither from Normandy by the Conqueror, from whence we received the Tenures and Manner of holding our Estates in every respect, from whence also we have received the Customs incident to those Estates j and likewise the Quality of them, being most of them feudal, and enjoyed under several military Conditions and Services: so that of necessary consequence from thence we must receive the Laws also, by which these Tenures, and the Customs incident to them, were regulated, and by which every Man's Right in such Estates was secured, sr> cording to the nature of them. From Normandy (and brought in by the Conqueror) we received most, if not all our antient Tenures, and manner of holding and enjoying our Lands and Estates, as will appear by comparing our antient Tenures with theirs. F. I


{533}

F. I shall not deny but a great part of the matter of Fact is true, as you have now put it: yet tbo I grant, that the Bishops, Abbots, Chancellors, chief Justices, and other great Officers of she Crown, were all, or the greatest part of them Nora/ans, during the Reigns of the two first Kings of the Norman Race; it does,-not therefore follow, that these Men must have made a Change in the very substance of our Laws, tho in matters of Pleading, or judicial Proceedings, they might have introduc'd a great many Alterations: yet as to the Civil or Municipal Laws of this Kingdom, concerning the Descent and Conveyance of Estates, they continued the fame after the comingGianvilU, in of the Normans: and tho Lands held by Knights Service, descended to the Lib. 7. cap. 2. eldest Son; yet Lands in free Socage, and Gavel-hind, to all the Sons alike, as they had likewise done before your Conquest. There were also Estates Tail and Feesimple, as now; and there were also the like Customs of the Courtesy ofEngland^ Borough Englijh, &c. as there are also at this day, as I can prove to you by several passages out of ourEnglifi Saxon Laws. So likewise for Conveyance of Estates, those of the better sort of People call'd Bockland,were conveyed by Deeds, with Livery and Seisin, either with or without Warranty, as they are now •, but that which was call'd Fokland, held by the meaner fort, were only by Livery and Seisin without any Writing. And tho I grant that the Custom of sealing of Deeds is deriv'd from the Normans, yet that is an alteration only in matter of Form *, and as for Goods and Mony they were bequeathable by a Man's last Will, as well after, as before your Conquest. And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject, you will find it there sufficiently proved $ That Livery of Seisin, Licences, or Fines for Alienation, Daughters to inherit, Trials by Juries, Abjurations, Utlaries, Coroners, disposing of Lands by Will, Escheats, Goals, Writs, Wrecks, Warranties, Felons Goods, and many other parts of our Law, were here in being, long before the time of King William. This being so as to the Common-Law, let us fee what alterations there were made in the Criminal, or Crown^part of the Law. First, as to Treason and wilful Murder, they were punished with Death in the Saxon Times, as well as after 9 as were also Robbery and Burglary in the Night-time: butas for lesser Offences, such as Batteries, Maims, Robberies, and other Breaches of the Peace, they were punifh'd by Fine, as well before the Conquest as after: And as for the Law of Englejherie, which was, that if a Man were found murdered, it should be presumed he was an Alien or Frenchman, and the Town thereupon where the Body was found was to be fined, unless Englejherie was proved, i. e. that the Person was an Englishman; this Custom, tho it lasted to the Reign of Edward III. when it was taken away by a Statute made on purpose, tho it may seem a Badge of the Norman Conquest; yet was it indeed a Law first introduc'd by King Knute in behalf of his Danes,who being often found kill'd, and none could tell by whom, he obtain'd this Law to be made to prevent it j as you will see at large in Bra&on, and the Mirror of Justices. But as for Trial of all Offences, it was either by Juries, Fire, or Water Ordeal; or else by Witnesses, or Compurgatofs upon Oath, as well before as after King William'sentrance. So that I can find nothing material as to the alterations of the Laws, either in matters Criminal or Civil, from what they were in the Saxons time; and this being so, it is easily ansiver'd, how the Judges and Officers might be Normans, and yet the Laws continue English still: for first it is certain, that for four or five Years, in the beginning of King William's Reign, be made no great alteration in the Judges, and other great Officers of the Kingdom; and by that time those whom he was afterwards pleas'd to employ in the rooms of such as either died or were turned out, might very well come to understand the Laws of England, as far as they differ'd from those of Normandy, which was not in many Particulars; since, as your self very well observ'd, the Saxons and Normansbeing both Northern People, had many of the same Laws and Customs common to both, and the fame Persons might in three or four Years time have very well learn'd English enough to understand the Evidence that the Witnesses gave before them, without any Interpreter.

, But, fay you, all the Pleadings and Judgments were in French, and therefore the Lawyers aud Pleaders must beFrenchmen) this is likewise a false

'Consequence:

Consequence: for pray tell me, why might not the Englijli Lawyers have learnt French enough to plead in three or four Years time; which must necessarily be» required before so great an Alteration could be made, or Lawyers enough be brought out of Normandy, and sufficiently instructed in our Laws and Customs,) could be fitted for their Employments? Again, supposing all Pleadings and other Proceedings to have been in French, it does not follow that this Practicecould have obtained in all the Courts of England.- for tho I grant it so in the Vid. CokePro- Kings Courts at Westminster, where the Judges (as you fay) were for the most em" part Frenchmen, orNormans; yet this could only affect. either that great

Court, the Curia Regis, where the King often satin Person, together with his Chief Justiciary, and other Justices; or else the Court of CommonPleas, which followed the King's Courts till it was ordain'd otherwise by MagnaCharta; or else the Court of Exchequer, where in those days only matters concerning the King's Debts, Lands, and Revenues were chiefly heard and dispatched. But as for the Court of Chancery, it was not then used as a Court of Equity, nor long after, till the Reigns of Henry IV, V, and VI. whea it arose by degrees, as you will find at large in Sir William Dugdale'% Origines Juridiciales. , •

So that granting all the Proceedings in these Supreme Courts to have been in French, because the King himself, who fat there with the Chief justice, and the rest of the Judges, were either Normans or Frenchmen; yet was this of no great Importance, in comparison of the more numerous Suits and Causes which were first begun, and try'd in the inferior Courts in the Country, before ever they could be brought up to London, by Writ of Error, or Appeal; which could only be in Causes of great moment, or between the King's Tenants*^ Capite: So now to let you see that what I fay is true, we will survey all the inferior Courts of that time, beginning with the lowest, and going upto the highest of them. The first Court we find of this kind, was that of the Vid. spelmaiss free Borough or Tything, wherein by the Laws of King Edward the Confessors clo'f. Tit. the Tythingman or Headborough was the Judge-, who, as. that Law tells ns,* pribargus. determin'd all Suits and Differences arising among Neighbours of the fame • Tything, concerning petty Trespasses and Injuries* which if they could hot be there determin'd, might then be brought before the Court-Baron, which was incident to every Mannor, and wherein the Suitors, and not the Lord nor his Vid. 4. inst. Steward, were the Judges: And this, as Sir Edward Coke tells - us, was first cap. 55,56,57. instituted for the ease of the Tenants, and for the ending of Debts and Damages u-nder forty Shillings at home, as it were at their own doors: And let me Vid. spelmans tell you by the way, that forty Shillings was then near as much as forty Pound Gbs.Tit. is now. And if the Business could not be ended here, or was of too high a Hundredus fy nature, it was then brou^it into the Hundred-Court, where .the Hundreder Comitatus. together with the Suitors were Judges-, and if they had not Justice there, they might then remove it into the Court of Tything or Lathe, which;was not the smaller Court of the Tything mention'd, nor yet the Court-Leet, but a particular Court consisting of three or four Hundreds; which, tho now quite lost, was in being at the time of the Statute of Merton, as I shall shew you by and by: And if the Business could not be decided in the Tything, it was then removed to the Shire, or County-Court, as Mr. Lambert shews us from the Laws of King Edward; which was then held (as now) from Month to Month, and in which, as well as in the Hundred-Court, the Suitors alone were Judges. And tho it can now only hold Pleas (unless it be by Writ of Justices) of any Debt or Damage to the value of forty Shillings, or above j yet we find from antient Authors, that this Court was so considerable, that we have divers Examples of Causes between the greatest Persons of England, and that sor Lands of considerable Value, begun and determin'd in this Court. Thus EadVid.Hist.E4i. mertu relates the great Trial atPinnenden-heath, between Odo Bishop of Bayeux, Lib. pag. 8,9. half Brother to your Conqueror, and by him created Earl of Kent, and Lmfrank Archbishop of Canterbury, concerning divers Mannors in Kent, and other Counties, whereof Earl Odo had disseized the See of Canterbury, in the time of Archbishop Stigand his Predecessor: whereupon the Archbishop petition'd the King, that Justice might be done him, secundum LtgemTerra, and the King thereupon sends forth a Writ to summon a County-Court: The Debate lasted three Day?, before the Freemen of.the County of Kent, in the presence, of

many

i ...

many chief Men, Bishops and Lords, and others skilful in the Laws; and Judgment passed for the ArchbishopLanfranc by the Votes of the Freemen; or primorum, or proborum hominum, as the Historian calls them.

So that to conclude this Head, if no ;Suit could be begun in those Days, but what was first commenc'd in the Hundred-Court; no DiftringM could issue forth till three Demands were made in the Hundred, and from thence to be remov'd to the County-Court, where regularly all Civil Causes were try'd by the Suitors as the only Judges, as well as in the Hundred-Court, and Court-Baron: then it will necessarily follow, that, unless you can prove, (which I think is impossible) that all the English were at that time Slaves and Villains, and had no Freehold of any fort left them; I fay, it will follow that all Pleadings and Proceedings in any of those Courts, being before mereEnglishmen, must have been in English, and no other Language. So that after all this great Cry, not a twentieth part of the Suits in England, were brought to London: And as for Criminal Causes, unless in Cafes of Treason, all Murders, and other Felonies were try'd and judg'd In the Country; either within the particular Jurisdictions of Bishops, Abbots or great Lords, or else of such Cities and Towns who had the Privileges of Infangthief andOutfangthies, together with Fojsa and , Furca; that is, a Pit to drown, and a Gallows to hang Malefactors: and if the Offence was done in the Body of the County, they were then try'd and condemn'd in the County-Court; Justices Itinerant not being in use till Henry IPs Reign.

M. I must confess you have given me a great deal of Light in these matters, more than I had before: but as I shall not dispute whether in the lowest Courts, such as the Tythings and Court-Barons, the smaller EnglishFreeholders might not judge of petty Causes amongst themselves*, yet in those greater Causes, brought in the Hundred, and County-Courts, only the greater Freemen of the Hundred, or County, were Judges. Who these Freemen were, B. A. P. pag. Dr. S. hath sufficiently taught us in his Comments upon the Conqueror's Laws, 38,39* as also in his Glossary, viz.. That they were Tenants in Military Service, who in those times were the only great Freemen of the Kingdom, and qaite different frOm our ordinary Freeholders at this day. These were the Men, the only Legal Men, that named and chose Juries, and scrv'd on Juries themselves, both in the County and Hundred-Courts, and dispatch'd all Country Business under the great Officers. I do not deny but that there might be other lesser Gl»s. pag. Freemen in those Timesbut what their Quality was, farther than that their 3°» Persons and Blood were free i (that is, they were not Nativi, or Bondmen) it will give a knowing Man trouble to discover it to us. We find in every Leaf of Doomsday, 'Socmen & liberi homines, Possessors of small Parcels of Land i but what their Quality was, and of what Interest in the Nation, Die at Apollo, bo Man yet hath made it out, nor can it be done by the account we have of Ordinary Freemen, for a Century or two last past.

And for further Proof of this, That none but Tenants in Capite, or Military Tenants at least, could be Judges in the County-Court, it appears by the Laws of King Henry I. wherein it is exprelly said: Reps Judices BaronesComi- C*P> tatus qui lib eras in eis terras haberit, per quos debent causa singular um alterna proseiutionetrattari, &c. So that these Baronsof the County being certainly feudal Tenants, this Service of being Suitors to the County and Hundred-Courts, was a Service incident to their Tenures; and then it will also follow, that B.j.a.p.36. those Primores, and Probi Firi, who as you have now related, try'd this Cause between Earl Odo, and ArchbishopLansranc\ and who (let me tell you) were not only of the County of Kent, but of other Counties in England,where the Mannors and Lands lay, as Eadmerm shews us; and who were the Jurors in this great Cause, consisted of the great Military Tenants, that were not ■ Barons, and the less which were the Probi Viri: for it can be no ways probable, that the ordinary Freemen who made the greatest Number, and were all bound to their good Behaviour, could be the Probi & legates homines, who ferv'd upon, Juries. To conclude, if I have already proved, that King William took away the greatest part of the Lands of England, and gave them to Normans andFrenchmen, who were the only true Freemen or Freeholders of the Kingdom; and as such owed Suit and Service to the Hundred and CountyCourt, in which (as you your self set forth) all the considerable Actions as well Real as Personal were then commene'd and try'd; it will also follow, that the

Suitors,

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Suitors, who were the Judges in those Courts, being for the greatest part at least Frenchmen, all the Trials and Proceedings therein must have been in French, and not in English, which is contrary to what you have undertaken to prove.

F. If this be all you have to object against what I have now said, that all Pleadings in the inferior Courts in the Country, must in the time of your Conqueror have been in French, and not in English; I hope I shall give you very good Satisfaction to the contrary, and (hall prove to you, that the very fame Persons who were the Suitors or Judges in the Hundred-Court, were also Suitors in that of the County, tho they were of ever so small Estates of Freehold: and that those who were thus Judges in the Hundred-Court, were also the fame Persons of which the lowest Court, viz.. that of the Headborough or Tythingman, did consist, appears by the very Definition of a Hundred} as Tit. Hundre- You may fee 11 ia ^r Sptlman's Glossary, Est nutcm Hundredm portio Comitattts, dus. quadim degehant centum pacts regitt Fidejujfores, uti Decuria qua decem, complextu

eft igitur Hundredm decem Defuriat, ut centenarius numertu decies dcnarium. Now that the County-Court consisted of the fame fort of Persons with that of the Hundred, is also certain, since alls ngland was then (as now) divided into , Counties, Hundreds, and Tythings: so that as the Hundred-Court consisted of a hundred Persons, who had all given Pledges to the King, so did the County-Court consist of all the Freeholders or Freemen of the several Hundreds of the County, who all owed Suit and Service to the County-Court; and as such were returnable upon Juries in all Trials in that Court, tho they had ever so small Estates of Freehold; for then there were no Laws that limited the Estates of Freeholders returnable to Juries, upon Assizes or Trials, to the yearly value of forty Shillings. But that these Suitors to the Hundred-Court, must cap. 58. bave been for the most part Englijh in all your Conqueror's Reign, your Doctor has given us a sufficient Testimony in his Answer to Mr. Ah JanusAnglorum, p. 35. where he tells us, the Jurors were antiently call'd Testes, and often ia Doomsday-Book it is thus found; ** Testatur Hundredth, Teste Hundreds the "Hundred witnesseth, that such Land is such a Man's; or by the witness of "the Hundred such Land is such a Man's." See the Claims iaTorkJhire, Lincolnshire, and Suffolk, at the end of that Book. Now the use that I shall make of these words of the Doctors, is this: That in many of these Claims the A. A. pag. Issue is, that such a one held the Land, die quo Rex Edwardm suit vivus &mor95, 201. tuus.Now I desire you to tell me, if the Freeholders of the Hundred were all Strangers and Normans at this time, as your Doctor supposes they all were that scrv'd on Juries in the Hundred and County-Court; how these Men could testify who held the Land at the time of King Edward's Death, and by what Services? And I desire you to be pleased to read and consider the Trial mention'd in Doomsday-Book, between Will, de Chornet, and Picot the Sheriffs where the Proof was by the best and most antient Men of the whole County and Hundred,- that this Land in question belong'd to Chornet per hareditatem fui Antecefforis. So that then the best and antientest Freeholders of the County • 1 . of Berks, were the fame who were so in the time of King Edward, or else how could they witness this Land to have been held by Chornet*s Ancestor?

But because you have two or three small Objections against this Truth, I shall endeavour to remove them. The first is, that those who try'd one another's Causes in the County-Court, are in the Law of King Henry I. (which you now cited) call'd Bar ones C omit at m qui liber at Ttrrat habent. Therefore you imagine that these BaronesComitatus must needs have been all Tenants in Capite, or by Knights Service at least, who by virtue of that Tenure ow'd Suit and Service to the County-Court: which is a great mistake; since every Freeholder of whatsoever Tenure, who was resident within the County, owed Suit and Service to that Court, and it was the twentieth of Henry VI. which limited that Service only to Freeholders of forty Shillings per annum, or above. Now that every Freeholder, tho of ever so small Estate, was antiently a Baron of the County; is also as certain in the antient and larger Acceptation of the word Baron, which did not originally signify only a Tenant in Capite, or by Knight Service, but any other Freeholder, who could be return'd upon a Jury concerning Freehold in the County-Court. Now that every LoTd of a Mannor, and Freeholder, was antiently call'd a Thane before the Conquest, apCap. 5 a. pears by this Law of King Knutt\ Et hah et omnis dominus familiam fuamin flegia sue '■>& fi accufetur in aliquo, respondent in Hundredo, ubi compellabitur sicut reft* Lex {it. Quod si accusetur, &sugiat, rtddat Dominvs ejus Regi Weram, i. f.. pretium nativitatis hominu illiut; & fi Dominus accufetur, quodejus confilio fugerit, adlegiet fe cum quinque Thanis, (id est Nobilibus) & idem fit fextus, fipurgatio frangat tiyrtddat ei (fcil. Regi) Weram fuam, & quifugerit, extra legem habeatur. I shall not trouble my self ipo translate this Law, since the Latin is plain enough \ only take notice that by this word adlegiet, is meant he (hall wage Law, or make Oath together with five Thanes, that is Noblemen or Gentlemen, & idem fit fextus, whereof he himself should be the sixth: wnereyou may see that every Freeholder, being Master of a Family, is here called a Tbane, who was to give Pledge or Security, that all his Family_Jhould answer the Law in the HundredCourt for any Offence they should colmit; and these Thanes were such as Mr. Lambert expresses by Afcitis fibi ingenuisquinque: for what he calls ingenuus, A> A- PErompton calls liber homo, that is, every Freeholder. So that you fee Thane, inge- j1'^^TM^.tiuusy and liber homo, signify all the fame thing; that is, the lower fort of Thane, "u e re or Freeholders who owed Suit and Service to the Hundred and County-Courts. And that these very Men were such as after your Conquest were call'd Earones Comitatus, appears in this, that those who before the Conquest were call'd Thanes, are afterwards call'd Barons of Counties, in all our antient Laws and Charters: and for this I shall give you the Authority of Sir H. Spelman in his Glossary, who tho he does chiefly understand by this word all fort of feudal Barons dwelling in each County, Proceres nempe & Maneriorum domini; yet Tit. Barones not only these, but necnon libtri quique Tenentes, hoc eft fundorum proprietary Comitatus> Anglke Freeholders, ut fuperimdictum est. So that take it in which Sense you will, this word cannot signify only Tenants in Capita or so much as Military Tenants, as you suppose; since a Man might hold a Mannor by other Tenures than Knights Service, as by grand or petty Serjeanty, or in Socage by a certain Rent j and so likewise might he hold any other lesser Estate of Freehold by the like Tenures: which if it were so, your Doctor's fancy of Tenants in Mi- 1 Jitary Service being then, the only Freemen of the Kingdom, and who were capable of serving upon Juries in the Hundred and County-Court, is a mere Chimera, without any ground, as I have already proved at our third Meeting \ when I shew'd you by the words liberi homines, so often mention'd in King William's Laws, are to be understood not only Tenants by Knights-Service, but any other Freemen or Freeholders, who held Lands or other Possessions: which may be also proved farther by the Statute of Merton, cap. 10. as appears by this Clause J Provifum estinfuper, quod quilibet liber homo qui settam debet ad Comitatum, Tithingum, Hundredum, <£• Wapentagium, velad Curiam Domini sui, libere poffit facere Attornatum fuum, ad seSias illas pro eo faciendas. Whereby you may see, that every Freeman, who was a Master of a Family, and not under the power of another, was then oblig'd to pay Suit and Service to the County, Ty thing and Hundred-Courts.

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But fay you, these Persons who were Jurors in this great Cause between Earl Ode and ArchbishopLanfranc, are there call'd Primores, and Prebi Viri, not only of the County of Kent, but other Counties where the Lands lay; and it is not probable that the ordinary Freemen, who made the greatest number, and were all bound to their good Behaviour, could be the Probi & Legates Homines, who serv'd upon thh Jury. Well, I grant it, that these Gentlemen you speak of, might be Lords of Mannors, and considerable for Quality and Estate, and who alone were impannelled upon Juries in this, and other such great Trials of Novel Disseisin; and yet for all that, those lesser Freemen, or Freeholders you mention, were Legates Homines, and as such were capable of trying all Causes, of what nature soever; since Sir H. Spelman tells us in his Glossary,Title," Legality That in Jure nostro de eo dicitur qui stat retlus in Curia, non exlex feu vtlegatus, nonexcommunicatus, vel infamis, .ejfc. fed qui & in lege postulat dr poftuletur. Hoc fenfu vulgare illud in formulisjuridicis, probi & legates homines. So that he does not make (as you do) that a Man's Legality must depend upon his Tenure, but upon his being reEtus in Curia. So that 'tis no more an Argument, that because in some great Trials in those Times, none but the chief and most considerable Men in the County were impannel'd upon Juries in the CountyCourt, therefore none but they could ever serve there upon Juries at all; than it would be now for a Man to affirm, that because in great Trials at the Af



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sizes, or at the Bar at Westminster, only Knights and Gentlemen are impannel'^ therefore none but they, and not any Yeomen, or Countrymen can ever sense upon Juries at all.

But let these Gentlemen you mention have been all Tenants in Capite, or by Knights-Service, if you please, yet will it not make good your Assertion, that they were only Normans or Frenchmen; who as the only Proprietors of Estates, serv'd upon this and other Juries at that time: for they must have certainly been such, who of their own knowledge knew the Lands in question,'and to whom B.a. J. p. 34. they did belong before King Williamhentrance into England. And your Doctor himself in his answer to Mr. Atwood's Janus, fully agrees to this Truth, as appears by this Passage, which I desire Jjou would read. "In Trials of Novel "Disseisin, and for the Possession of Brads, Customs, Services, &c the Juries "at the time of the Conquest, and in several of the Kings Reigns next sor"ceeding, were impannel'd out of the fame Town and Neighbourhood, of "such as did know the Land and things in question, and who had been possessed "of it, and for what time. And to this purpose in an Assize, if none of the "Jurors knew the right it self, or truth of the matter, and did testify so much *' to the Court upon Oath, recourse was then had to others, until such were u found who did khow the Truth; but if some did know the Truth, and others' "not, those that knew it not were put by, and others calPd into the Court, "until twelve at the least should be found to agree therein: and for this pur"pose it was that all Suitors to Hundred and County-Courts were bound to ap"pear there under great Penalties, that there might be a Jury of such as knew "whose the Land was:" And so far your Doctor is very much in the right. But then, that all the Gentlemen that serv'd upon this Jury must be Englishmen^ is as plain from the Reason he hath now given us: and if he had not told us tag. i97. so, we have 3n undeniable Authority for it; to wit, the antient MS. calPd Codex Rojfenfis, quoted by Mr. Selden in his Notes upon Eadmerus; where speaking of this Trial, Pracepit Rex Comitatum totum (viz.. of Kent) abfque mora,consider e, & homines Comitatus omnes Francigenas, & pracipue Anglos in ant1quit legibus & confuctudinibtapcritos, in mum convenire. But it also adds, & alii alt* orum Comitatum homines, and so confirms what Eadmerusfays. So that nothing is more evident by your Doctor's own (hewing, as also by the Testimony of this antient Author •, than that this great Cause was try'd either by Tenants in Capite, and other great Freeholders who were all Englishmen, or such Frenchmen as were here before your Conquest'. So that from this famous Trial we may draw two or three Conclusions directly contrary to your Assertions. First, That there were many great Proprietors not only in Kent, but in other Counties, as appears by Eadmerus, who were a sufficient number to try Causes in the County-Courts, a good while after your Conqueror's coming over. Secondly, That the Pleadings and Verdict in this Cause being before Englishmen^ and given by them, must have been all in English; and if it were so in this Cause, it will follow for the same reason in all other Counties all over England. Lastly, That these Gentlemen were well skijPd in the antient Laws and Customs of England, which had been iti vain if they had been alter'd as you suppose.

M. I will not deny but that in the beginning of the Conqueror's Reign, many Englishmen might have Estates left them, which might not be taken away till some Years after; and Mr. Selden in his Titles of Honour, places this Trial between Earl Odo and Archbishop Lanfranc, about the first Year of King William, and I suppose that it happen'd before the fifth Year of his Reign; when Matthew Paris tells us, " That the Earls Eadwin, Morcar andSiward, toge11 ther with Egelwin Bishop of Durham, as also many thousands of Clerks and "Laicks, not being able to bear the Severity of King William, fled into woody "and desart places, and from thence got into the Isle ofEly, where they ** fortify'd themselves; and whither King William follow'd them, and taking

the Island made them submit to Mercy." And then this Author tells us, that the King put the Bishop of Durham in Prison; and as for the rest, some of them hekill'd, some he put to ransom, and others he committed to perpetual Imprisonment: so that 1 reckon from this time, the King took away most of the EngHJhmens Estates, as not trusting them any more.

F. If this had all happen'd as you have put it, yet would it.not prove what you have maintain'd: for if thoseEnglishmen who had not been engag'd with Harold, or else had been pardon'd for it, still held their Estates, and as you fay forfeited them afterwards for Rebellion-, then it is certain King William did not proceed against theEnglish as a Conqueror: fince if he had, he would have taken away their Estates Jure belli; which fince, as you yourself confess, he did not, whatever Estates he took away afterwards, it was either for Treason committed by the English, or else wrongfully: if the former, he did it as a lawful King j if wrongfully, then as a Tyrant, and as such could obtain no just right against the English Nation by his unjust Proceedings.

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But indeed after all, you are quite out in your account concerning this matter: for as to the great Trial you now mention'd, it could not be in the first or second Year of King William's Reign, nor could happen sooner than the sixth or seventh of his Reign for Archbishop Stigand was not depos'd till the Year 1070. which was the fourth Year of King William; and in the next Year, being 1071. the Annals of Mailros, as also the Chronicle of Thomas Wicks, place Archbishop Lanfranc'sConsecration, and fetching of his Pall from Rome: so that it could not be until the Year after this Rebellion at the soonest, when Lanfranc was settled in his Bistioprick, that this Suit was commenced by him against Earl Odo; and therefore a great many of the English Nobility and Gentry had still Estates left them after this Rebellion.

And that they continu'd to have so some Years after this time, appears by those Writs of King William, which Mr.Atvoood hath given us in his Janus Anglorum, &c concerning the Restitution of the Lands belonging to the Church of Ely, which are also transcrib'd and allow'd by your Doctor in his Answer to it j and I desire you particularly to consider that Writ of King William's t directed to Archbishop Lanfranc, Roger Earl of Morton, andJeofry Bilhop of Confiance, commanding them to cause to be alsembled all those Shires who were present at the Plea had concerning the Lands of the Church of Ely, before the Queen went last into Normandy; the rest being most material to the Cause in hand, I shall give you in Latin: - Cum quibus etiam fint de Baronibtu meis quicompetenter adcffc poterunt & praditto placito interfuerunt, & qui terras ejufdem Ecclefia tenent, quibus 'in vnumcongregatis eligantur plures de illis Anglis qui fciunt quo modo terrx, jacebant prafatx, Ecclefia, die qua RexEdtvardus obiit, & quod inde dixerint ibidem jurando testentur. From whence we may also gather, that this Trial concerning the Lands which is here order'd, was to be in like manner, and by a Jury of the fame sort ofEnglishmen, who try'd the Gausc between Earl Odo, and Archbishop Lanfranc; that is, they were EnglishGentlemen of sufficient Estates, or Tenants in Capite. If you please, let us now look into the time when this happen'd, since the Writ doth not tell us when it was, only that it refers to a Plea held concerning the Church ofEly, before the Qneen's last going into Normandy; so that this Trial here mention'd could not happen till after the fourteenth Year of King William's Reign, which I prove thus: This Queen did not come-over into England, till the Year 1068. when the King return'd with his Queen out of Normandy after his Coronation, at which (he was not present after which King William went not into Normandy till the seventh Year of his Reign, when he went over and took Mans; and then whether he carried the Queen along with him is uncertain. But the Annals ofWaverly tell us, he went over again the next Year, and then he might carry the Queen with him, which might be the first time she return'd into Normandy: but it appears by the fame Annals, that the King went over the Year after; and staying but a little while, return'd into Normandy to fight against his rebellious Son Prince Robert;where staying not long, he return'd as soon as he had driven his Son out of Normandy. Nor do we find he went over again till the fourteenth Year of his Reign, being the Year 1080. and then I suppose since he stay'd there for some time, he carried the Queen with him; and to this last going over I suppose this Writ we have cited refers: for tho the Queen went over again after this, yet she return'd no more, because (he died in Normandy in the Year 1083. as lngulph, who was then alive, relates. The use I make of these Particulars is this, That long after the time you suppose the Englifi to have lost all their Estates, we here find a great Jury of Englishmen, summon'd out of several Shires in England, to try this great Cause, concerning the Lands which the Church of Ely had been unjustly disseised of. So that here you see, after

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the fourteenth Year of this Kiag, the English still continu'd to keep their Estates, and to serve upon Juries; and consequently the Pleadings before them, as well as their yerdict, must have been in English.

M- 1 (hall not insist upon this point any farther, yet this much you cannot deny, but that all the Pleadings and Proceedings at Westminster, as also the old Law-Books were all in French, as appears by the Mirror of Justice, and Britten, not to mention those of latter Days, as Littleton's Tenures, and othersi and so were also the antient Year-Books or Reports of Cafes, all written in Norman French, even in our own Age: so that since this proceeded from that great Alteration which the Conqueror made in our Laws, it is also a Badge of that Yoke which be imposed upon the Nation by his Conquest. And to make this yet more plain, that very Copy of King Edward the Confessor's Laws is in old Norman French, which (together with King W&am's Additions to them) Ingulph tells us, he brought down with him to his Monastery, and which he has inserted into his History, as you may find them in the last Edition printed at Oxford, and were before publiih'd by Mr. Selden in his Notes upon Eadmerus.

JF. 1 cannot deny but that some part of the matter of Fact is as you have here laid down yet it will not follow that this common use of the French Tongue in our Reports and Laws, did proceed from the Norman Conquest, or is any Badge of Conquest: For first, the most antient Laws of King W,Uiam, which we find in Sfelman andLambert's Collections, are in Latin, as they were before the pretended Conquest. 1 grant indeed those you mention in Ingulph are in French, but they being most of them Criminal or Penal Laws, or else concerning Tenures, it is no wonder they were publifh'd in the Language of his Country, that the Normans and other Frenchmen he brought over with him might understand them •, and tho they were written in French, yet they were proclaimed in the Englifi Tongue, that the English as well as Normans might take notice of them. Bat after these Laws, you will not find any antient Charter or Statute in French, till the Statute of Westm.V which was above 200 Years after your pretended Conquest; for all the Charters of this King William are in Latinox Saxon, as that particularly granted by him to the City of London; so likewise were all the antient Charters and Laws of the other succeeding Kings, as those of King William Rufus, Henry I. Henry If. King Stephen* and Richard I. in Latin or Saxon, and none of them in French, as appears by several of them still to be seen in the Archbishop's Library at Lambeth,and in Sir Robert Cotton's, and also Magna Charta, and all other Statutes and Charters of King John, and HenryIII. till the Statute of Westm. I. above mention'd: and therefore it is not likely that this Custom mould have taken its original from Normandy j for if it had, it would have been begun immediately after your Conquest. And as for our Law-Books, tho I grant those you mention'd to be written in French, yet is it not the Norman French^ since it differs very much from the Language in which King Edward's Laws are written, which are in Ingulph, theFrench of which is so obsolete and obscure, that he that understands our LAVt.-Frtnch very well, can scarcely make any sense of them; but our first Writers.concerning the Laws of England, writ in Latin, and not in French,as you may see by Ghrnvil, BraEton and Fleta, who writ before Horn's Mirror of Justice, or Britton's Treatise of the Laws of England.

As. for your Books and Reports, I grant they are in French; but that this Custom was not deriv'd fromNormandy, is also certain, since the first Reports we have begin with the first Year of Edward II. except some few Memorandums of Cases adjudg?d in the Exchequer in the Reign of his Father, above 200 Years after KingWilliam's coming in (as I but now noted ;) nor could they be writ in the Norman Dialect, since we bad then nothing to do in that Dutchy, which had been conquered by the French in the beginning of King John's Reign, above eighty Years before any Report or Law-Book was writ in French at all: and therefore we must ascribe the original of this Custom to some other Cause than the mere Will and Pleasure of your Conqueror, and for this we must go as high as the Reign of King Edward the Confeflor; who, as Ingulph tells us, "ha*c ving lived long inNormandy, and bringing over divers Normans with him, "the whole Nation began under this King to forsake theEnglijh Customs, and *< to imitate the Erenck Manners in many things so that all great Men looked

14 upon "upon it as a piece of good Breeding, to speak French in their Houses, and *« to make their Deeds and Charters after the French manner: so that it was very M easy for King William after his coming in, who (asIngulphalfo tells us) ab- ib. "hor'd the Englijh Tongue, to make the Laws of the Land to be pleaded in *4 theFrench Tongue, and to make the Boys to learn at School the first Rudi"ments of their Grammar in French \ and also the Saxon or English Hand to be 41 alter'd, and the French Hand to come in use in all Books and Writings." And tho I confess most of the Chief Justices and Judges were Frenchmen or Normans, during the three or four first Kings of that Racej yet that alone could not have caused this Tongue to be so generally used, not only in the King'sCourt, but also in all the Courts at Westminster, after Englishmen began again to sit there, had it not been for the tacit Consent not only of the King, and People of Quality, but also of the Lawyers themselves: for the Law-Terms being for the most part French, they did not only thereby make the Law the greater mystery to the Vulgar, but they also supposed that these Terms being French^ , could not be rendred into any other Language. Yet for all that, it had been impossible for this Tongue,-which was spoke by so small a number of Persons in respect of the whole Nation, to have prevailed so long among the better sort of People; had not our Kings for many Ages enjoy'd large Territories in France, which occasioning their frequent going over thither about Affairs of War or Peace, as also the French Gentry and Nobility's frequent coming over hither, it is no wonder if that Tongue being the Language of the Court, was generally understood and spoken by all Noblemen, Gentlemen and Lawyers. So that I have heard it from a very good Hand, a Person who is well versed in Antiquity, that a Gentleman being returned on a Jury in the Reign of EdveardW. was excepted against, because he did not understand French , and hence it is, that not only the Terms of our Law, but also those of Heraldry, Hawking and Hunting, are almost all French to this day: and tho by the Statute of Edward HI. which you but now mention'd, all Pleas should be in Englijh, and not in French j yet I desire you to take notice, that this did no way extend to any matters of Process upon which Suits are founded; but that the Writs, Declarations, and all other matters of Record were always entered and enrolled in Latin, from before the Conquest to this very Day, so that there was never any Alteration as to that point. These things being confider'd, it is no wonder if the Judges and Clerks of Parliament, who were in those Days entrusted with the drawing up of all Acts of Parliament, being greater Masters of the French than Latin Tongues, chose rather to draw them up in the former: and thus it continu'd until the Reign of Henry VII. when our Statutes began first to be drawn up, and enrolled in Englijh. j

M. 1 confess you have given me a greater light in this matter than I had before; yet I suppose you cannot deny that the Tenure of Knights-Service, with those clogs that belong to it of Wardship, Marriage, and Relief, were all derived from the Normans, as appears by the grand Customer of Normandy, which I have already mention'd: so that tho it be true that all these are now taken away by a late Statute of King Charles II. yet since this Tenure, and those Services are not found among the Saxon Laws, there cannot be a greater Proof of the antient Power of the Conqueror, or of the Servitude imposed upon the Nation by him', and therefore I look upon it as a very imprudent part of the late King Charles, to part with so great a tye, which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom.

F. 1 shall not take upon me to decide whether it were politickly done or not of King Charles II. to part with the Wardship, and Services of his Tenants by Knights-Service; but this much is certain, that considering the Abuses and Corruptions that had crept into that Tenure by degrees, since the first Institution, both by the unfit Marriages of the Heirs, as also by the waste that was often-times committed on the Ward's Estate during his Minority, it was certainly a very great grievance and burden to the Subject j and considering how many of those Wardships were begged by hungry Courtiers, they were of no considerable profit to the Crown: and tho I grant they were a very great tye (or rather clog) upon the Estates of the Nobility and Gentry of this Kingdom, yet it did not thereby produce any such Love or Obedience, as would retain

the Tenants better in their Duty before than since they were granted away. / For the Forfeitures for Treason and Felony, and also Fines for Alienations,

are reserved to the Crown now as they were before; and as for any love or re* spect which was antiently paid by the Heir, how could there be any such thing? lince the King granted away the Custody of the Heir, and his Lands, to Persons who for the most part made a, mere Prey of them; so that they were often, married against their Consents, and their Estates were delivered to them wasted and spoiled: besides also what was exacted from them for Reliefs, and Ouster lefmuines, we need not wonder if it were rather a Cause of secret discontent and hatred of the King's Prerogative than otherwise. And therefore I cannot think it was so unpolitickly done by the King, to render himself gracious and acceptable to his People upon his return to grant their Request, and pass that Act for taking awayWards and Liveries, and to accept of a Revenue by Excise of treble the Value instead of isk

But to come to the Original of Knights-Service it self, I do not think it was deriv'd from the Normans, since we are certain there were Thane-Lands in England which were held of the King; and that by Knights Service, before King Wil//Wscoming over, and there were also middle Thanes who held of those Lords above them by the like Service •, insomuch, that in the Laws of King Knute Cap. 69. there is one concerning the Heriots, which an Earl, the King's Thane, as well as inferior Thanes, were to pay not only to the King, but to other inferior Lords; which are almost the fame as were afterwards reserv'd by the Laws of King Edward the Confessor, confirm'd by KingWilliam, as you would find them in Jngulph; only there is no Gold reserved, but only Horses and Arms: whereas by the Law of Knute, each Earl was to pay two hundred Manenses of Gold, each King's Thane fifty, and each inferior Thane two Pounds. Only note, that he who iscall'd Earl in King Knuteh Laws, is call'd a Count in these ; the Thane a Baron, and the inferior Thane a Vavasor; and that which is there call'd a Heriot, is here termed a Relief.

And that this Tenure by Knights Service, which is now call'd Efcuage or SerCap. 35. p. vitium Scuti, was of antient time nam'd exftditio hominum cum feutis, and was 192. in use before the coming in of the Danes, is also as certain: for Sir E. Coke

in his fourth Inst, tells us of the Charter of King Kenulpb, who Anno Domini 821. granted to the Abbot ofAbingdon many Mannors and Lands; and reserved, quod expeditionem duodecim virorum cum tantis feutisexerceant, antiquos fontel &• arces renovent. And also he mentions a like Charter of King Ethelred to a Knight call'd Atbelweg, Anno Domini 995. So that you fee not only spiritual Persons, and great Thanes or Barons; but also Knights held Lands by the Service of so many Men before your Conqueror, and your Doctor also himself allows it; for in his Answer to Mr. P.. in all antient Charters in the Saxon times he translates the word Fideles by Tenants in Capite, or Military Service.

As. I will not deny that Military Fees were in use before the Conquest, and also that the feudal Law did obtain here in many things; and therefore I am so Pag. 3. far of the Doctor's Opinion, who in his Glossary, Tit. FeudalLaws, tells us;

41 The feudal Law obtain'd in most Nations of Europe, and in Normandy was "in its full Vigour at the time of the coming over of the Conqueror, but afrt terwards grew more mild and qualify'd, as also the Tenure it self; a perfect ** Description of which, with all its incidents of Homage, Relief, Ward, Mar"riage, Efcuage, Ayds, &c.are to be found in the Grand-Customer, Cap. 29, '* 33i 34, 35- Andaltho there were Military Fiefs, or Fees, herein the Saxon "times, yet not in such manner as after the Conquest establisiVd hereby Wil4t Ham the Conqueror, and according to the usage in Normandy; whenas it "appears by Doomsday-Book, in every County he divided most, if not all *' the Land of England, amongst his Normans and Followers." Now that this Custom of Wardships is wholly derived from the Norman Conquest, you shall Png. 193. find in Sir. Edw. Coke's fourth Inst,in the fame Chapter you last cited, as you may here read: "You have heard before de regali fervitio, before the Con"quest; but that regale fervitium (which was Knights Service) drew unto it "Relief, but neither Wardship of the Body or of the Land, as hath been said. "It is true, that the Conqueror, in respect of that Royal Service, as a badge of «' the Conquest, took the Wardship of the Land, and the Marriage of the "Heirs within Age of such Tenants; but this extended not to the Tenures of



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 the Sobjects by Knights Service, as it appeareth by BraVton, Dicitur Regale "fervitium, cjuia fpeflat addominum Regent & non alium, & secundum quod in "Conquestu suit adinventum, &c." Whereupon Sir E. C.notes (in the Margent) this Tenure (as before it appeareth) was not then invented, but the Fruits of this Tenure of the King, viz.. Wardship and Marriage, (which was BraBon's meanings these the Conqueror reserved for himself j but other Lords at the first by special Reservation, since the Conquest, reserved gifts of Lands for themselves jRegis adexemplum totus cornsonitur orbis: wherein that which we had from the Conqueror we freely confess. • ,

F. I (hall not dispute this matter, since it is doubtful whether this Custom of Wardship was Norman, or whether it was deriv'd from the Saxons, who possibly might have some respect to Orphans in such Cases, to train them up for the publick Service in point of War; especially being possessors of a known right of Relief. Thus Alfred theSaxon King did undertake this Work for the training of some particular Persons in Learning, for the Service of the Publick in time of Peace, and Civil Government: and tho Sir H. Spelman is of opinion in his Title de Wardis,that Wardship of the Heir came in with the Conqueror; yet Sir John his Son, (who was also a Learned Antiquary) in his Epilogue to his second Book of King Alfred?* Life, printed at Oxford, speaking of # Military Fees granted to the King's Thanes, has this Passage. Mac etiam Feoda £ag. H7» haredibtts sub Hertoti, five relevaminiscujufpiam quod hares in terra redemptionem Regi folvere tenebatur, conditione plerumque tranfibat; & fi haresminor natu a Patre moriente relinquebatur, Regi educatio ejus (utpote Regis Hominis) committebatur, inutilitatem etiam & commodum ipfius Regis. But whether the Wardship of the Body of the Heir, was in use in King William's time or before, is uncertain $ for the Land is in the Charter of Henry the first in Mat. Paris,granted either to the Widow or next Heir.

But let these Customs be deriv'd from whence you please, it is a plain Cafe it could be no badge of Conquest upon the People of this Nation, and that by the Doctor's own.shewing •, for were it a Norman Custom ever so much, if your Conqueror first of all imposed it upon those he brought over along with him, it could never be a Badge of Slavery upon the Englijh Nation, but rather upon the Normans, upon whom it was chiefly imposed: and if they afterwards granted Lands to the Englijh upon the fame Terms they held them themselves, they were no more Slaves to whom they were granted, than they were under whom they held them. But indeed this was so far from being look'd upon as any badge of Servitude, that if the Doctor himself is to be believ'd, "These were Glojfary.Tit. "the only Freemen, and their Services (Brafton fays) were so notoriously liberi homines. u free, that in Writs of Right it was never mention'd, because so well ** known; Notandum in fervitio Militari non dicitur per liberumfervitium, & "idea quod constat, quia tale Servitium liberum est." And however rigorous the feudal Law might be at the beginning, it was when your Conqueror came in so far mitigated as to the rigour of it, that the Tenants by Knight Service were not only free by King William's Law, from all arbitrary Taxes and Tallies, but also obtained a settled Inheritance to them and their Heirs, as appears by that Clause in King William's Charter already mention'd; and therefore in the Reign of Henry III. when William of Warren Earl of Surrey was question'd after the Statute of Quo Warranto by the King's Justices, by what Warrant he held his Lands, pulling out an old Sword, he answer'd to this Effect: " Beholfl, my vid. An ani

Lords, here is my Warranty, my Ancestors came into this Land with William tient Ms. in *' the Bastard, and obtained those Lands by the Sword, and I am resolv'd with thf Bodleian M this Sword to defend them against any whosoever shall go about to dispossess jf "me; for the King did not himself alone conquer the Land, but our Progeni- SLdakw "tors were Sharers with him and Assistants therein." Baronage of

As for what you fay, That the Laws in the Customary of Normandy, are the England,p.79. fame with the Laws of England; it is no more than what divers French Writers have taken notice of, but do not attribute their Agreement to their being Vid. Afr. borrow'd from the Normans, but quite contrary: for in the first place most whidockv of the Learned Men fay, That the first establishing of the Customary of Nor- C"TJJ^ mandy, was inHenry l's. time, and afterwards again about the beginning of printed in his Edward II's time, when Normandy was not under the King of England. And Memorials, Sequtrius a French Author relates, that King Henry I. establish'd the Englijh pag



Laws in Normandy, and with him do also agree Gulielmw Brito, Rutelariut and other Trench Writers, who mention also that the Laws in the Customary of Ntrmandy are the fame with the Laws collected by our EnglishKing Ed~ vid. Coke^ ward the Confcflbv: an additional Testimony hereof is out of William 4e RupresacetohisviHt dt Alenfon, who in his Latin Comment upon the Customary, proves and Resorts. demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation, either not long before or after Edward the Coafelfer's time.

In the Norman Customary, there isa Chapter of Natnpes or Distresses; and it is there decreed, that one should not bring his Action upon any Seisurer hut from the time of the Coronation of King Richard, and this must be oar King Richard I. because no King of France was ever of that Name ; and the words Nampes and Wirbernams wereSaxon words, taken out of the English Laws, signifying a Pawn or Distress, and in the fame fense are used in the Customary. But if you have nothing more to object against what I have now said, pray proceed to your last Head, and let me see how you will prove, that the English lost all their antient Liberties and Privileges which they enjoyM under the Engiffli Sttxon Kings. _ . •

 M. 1 never heard so much before concerning the original Use of the French Tongue in our Reports and Law-Books, bat yet this much I think you will not deny: First, that the Norman French was never used in our Courts of Justice, till afrer the Conqueror's Entrance. Secondly, That he did his endeaHist. ingulph. vour totally to root oat the English Tongue, by ordering all Children to learn the first Rudiments of their Grammar in French; and as for what yon have said concerning the Customary of Normandy being especially as to Tenures derived from theEnglijh Laws and Customs, I do not deny, but that it may be the opinion of some French Writers that it was so: but I mall believe ie, when they can prove that the Wardships and Marriage of the Heir of the Tenants by Knights Service, as also those Aids they were to pay the King, or any other Lord they held of, towards making his eldest Son a Knight, and marrying his eldest Daughter, were in use in England before the Conqueror came over.

But to observe your Commands, 1 (hall now proceed to (hew that by the Conquest, the Englijh for a long time lost all their antient Rights and Privileges, till they again obtained them either by their mixing with the Norman^so that all distinction between them and the Englijh were taken away, or else they were restor'd by the Charters of King Henry I. King John, and King Efenry III. I shall therefore divide the Privileges of Englishmen into these three Heads: First, Either such as concerned their Offices or Dignities: Or, Secondly, Such as concerned their Estates: Or lastly, Such as concern'd the Trial for their Lives: in every one of which, if I can prove the EnglijhNatives, as well of the Clergy as Nobility, suffered considerable Losses and Abridgment's of their antient Rights and Liberties which they formerly enjoy'd, I think 1 shall sufficiently prove the point in hand. As to the first Head, Ingulph tells us,

Pag- 70,7t« w That the Englijh were so hated by the Normans in his time, that how well

Edit. Oxon. « soever they descrv'd, they were driven from their Dignities; and Scran"gers> tho much left fit, of any Nation under Heaven were taken in their

PaS- 91- u plaices." And Malmesbury who liv'd and writ in the time of Henry I. fays, ** That England was then become the Habitation of Foreigners, and the Rute "and Government of Strangers; and that there was at that day no Englijh"man an Earl, Bishop, or Abbot; but that Strangers devoured the Riches, "and gnawed the Bowels ofEngland, neither is there any hope of ending this M Misery." So that it is plain they were now totally depriv'd of all Offices and Dignities in the Common-Weal, and consequently could have then no place in the Great-Councils the Parliament of the Nation, both for the raising of Taxes, and the making of Laws. And tho 1 grant Mr. Petytand your self suppose you

s.A. p.p. 36. found a Clause in the Conqueror's Magna Chart a, whereby you would proves that all the Freemen of this Kingdom should hold their Lands and Pofleffions well and in peace, free from all unjust Exactions and Taillage, so as nothing be exacted or taken unless free Services, which of right they ought and are bound toperform to us; and as it was appointed to them, and given and granted to them by us as a perpetual Right ofInheritance-, by the Common-Councit of



the whole Kingdom j yet this Common-Council will not help yon, for without doubt here were no Englishmen in it •, for certainly they would not grant away their own Lands to Strangers. These were the Saxon Lands whichWilliam had given in Fee to his Soldiers, to hold them under such Services as he had appointed them, and that by right of Succession or Inheritance.

We will now come to the second point, viz.. the Privileges the Englishmen lost as to their Estates: for whereas before the Conquest you affirm, the King could not make Laws, nor raise Taxes without the Common-Council of the Kingdom; it is certain King William, and his immediate Successors, did by their sole Authority exercise both these Prerogatives. As for his Legislative Power, it appears from the words of his Coronation-Oath, (as you your self have repeated it out of Florence of Worcester, and Roger Hoved.cn) the Conclusion of which Oath is \ feveUe r tit am legem statutre & tenere, Rapinas injustaque Judiciatenitus interdicere. Now the Legislative Power was then lodg'd in him, why else did he swear to appoint right Laws? For if the Constitution bad been settled as it is at present, the Parliament could have hinder'd him from making any other; and that he could do so, appears by that Yoke of Servitude, which Matthew Paris (as well as other Authors) tells us, "King William by his own Pag. "Authority imposed upon the Bishopricks and Abbies in England which held "Baronies, which they had hitherto enjoyed free from all secular Servitude: "he now, says he, put them under Military Service, felling all those Bifliopricks "and Abbies, according to his Pleasure, how many Knights or Soldiers each of "them should find to the King and his Successors: And putting the Rolls of « this Ecclesiastical Service in his Treasury, he caused to fly out of the King"dom many Ecclesialticks who opposed this wicked Constitution." Now if he could do this upon so powerful a Body, as the Bishops and Abbots were at this time, he might certainly as well raise what Taxes he pleased upon all the People of England; and therefore Henry of Humington tells us, that King Williamupon his return out of Normandy into England, Anglis importable trtb*tum impofuit. Lib. 3. p- 278. And that his Son William Ruftu imposed what Taxes he would upon the People, without consent of the Parliament, appears by that Passage of William of Malmesbury, which he relates in the Reign of this King, as also in his third Book deGeftie Pontificum, concerning Ranulf, whom from a very mean Clerk he made Bishop of Durham, and Lord Treasurer: the rest I will give you'in Latin; Isle, ft quando ediftum regium procejftffet ut nominatum trihutumAnglia penderet, duplum adjiciebat, fubinde ridente Rege ac dicente folum effe hominem, quifeiret sic agitareingenium; nec aliorvm curaret odium, dummodo cornplaceret dominum. So that you may here see that the King's Edict or Proclamation did not only itrtposc the Tax at his pleasure, but his Treasurer could double it when he had a mind to it, without Consent of the great Councilor Parliament, as we now call it: and this Prerogative was exercised by divers of his Successors, till the Statute de Tallagio non concedendo was made.

But to come to the last Head concerning the alteration of Trials for Mens Lives and Estates by the Conqueror, from what they were before; it is certain that whereas before the Conquest there were no other Trials for Mens Lives but by Juries, or else by Fire or Water Ordeal, which was brought in by the Danes j the Conqueror tho he did not take away these, yet also added the Law then in use in Normandy, of trying not only Criminal but Civil Causes by Duel or Combat: all the difference was, that in Criminal Cases where there was no other Proof, the Accuser and Accused fought with their Swords, and the Party vanquished was to lose his Eyes and Stones •, but in Civil Causes they only fought with Balloons headed with Horn and Bucklers, and he or his Champion who was overcome lost the Land that was contended for. From whence you may take notice also of a great alteration in the Law, not only concerning Trials, but capital Punishments: so that before the Conquest, all Crimes, even Manslaughter it self, were fineable according to the Quality of the Person, and the Rates set upon each Man's Weregyld, or price of his Head, as you will find, them set by the Laws of King Athelstan j after that time instead of Fines, capital or corporal Punishments became chiefly in use.

I shall not insist much upon divers lesser Things, which King William as a Conqueror imposed on the People ofEngland; as disarming them of all offensive Weapons, forbidding them to hunt or kill any Deer in his Chases or Fo. I A a a a tens, rests, under the Penalty of loss of Eyes and Members, as also keeping up and reinforcing the antient Laws of Decenaries or Tythings, whereby every ten Families were bound with their tenth Man or Tythingman, Body for Body, of each others good abearance; as also that Law forbidding all fitting up late at Night, or Assemblies after eight of the Clock, but that every one should go to Bed, and put out both Fire and Candle at tie ringing of the Coverfeu Bell; these things I think are very sufficient to prove that King William as a Conqueror did very much abridge, and in. some things wholly take away the antient privileges and Liberties of the English Nobility, Clergy and Commons, and did also make many and great Alterations, not only in the Forms of Pleadings, tout also in the very Substance of our Laws, both Criminal and Civil: and if be did not make more Alterations of this kind, it was wholly owing to his free Will and Pleasure; since, as Eadmtrtu telh us, he ordered all Divine and Secular things according to his. Pleasure.

F. That 1 may the better answer what1 you have said, 1 shall partly grant, and partly deny the mattersof Fact you have alledged; and also further prove that if they had been alias you have laid them, yet would not they prove your Conclusion, That King William by his own Arbitrary and Tyrannical Actions could create any Right by Conquest, either to himself or to his Successors. And therefore to begin with your first Head, viz.. the Privileges of the English Nobility as to Offices and Dignities, th6 I grant it was true, as the Authors you have cited relate, that scarce any Englishman was, when they writ, either a Bishop, Earl or Abbot, yet this is to be understood only of the latter end, and not the beginning of his Reign: for as to the Bishops and Abbots, I do notread of any more than Stigand Archbishop of Canterbury, and Egelnc Bishop of Durham, who being depriv'd of their Bifhojpricks, had Successors put into their rooms in their Life-times i and yet in the place of this last, not any Norman, but oneWatcher an Englishman was named by the King to succeed. And as for the Earls, of all those who had been against him and opposed his coming in, there was not one but he received into faTour, and continued in his Dignity and Estate, as in particular the Earls Eadtvin and Aforchar Brothers, together With Witltheof and Sivrard,and Edgar At holing, whom they had named King of England, who all kept their Earldoms and Estates till terrified by the King's severe and tyrannical Proceedings; the three first of these fled away as you have already shewn: tho I confess Prince Edgar bad for two or three Years before this, fled into Scotland; but yet was afterwards restor'd to the King's Favour and his Estate. Nor do 1 find any considerable Alteration in the King's manner of disposing of his Honours or'Preferments, either Ecclesiastical or Civile till Earl IValtbeof wasconvicted of being- in the Plot, with Rulfh de Waher Earl of Norfolk, and other Lords, as well English asNormans, to expel King tVMiam; and from that time (being the eighth Year of his Reign) I grant hechanged his whole course of Governments and put no more Englishmen, into any Places of Honour or Profit: tho W.Malmeihury endeavours to excuse the King's Severity in these words, fadefroso fit urn rogis fortajjls merit oexcufatur, ft aliquando durior in Anglos fuerit, quod.

Erie nullum eorvmfidelem inventrit: tho with this Author's good leave, the King id been the cause of this Conspiracy, by his own Tyranny and Breach of Oaths, as I shall shew you by and by.

So that either this King wasmovM by just Provocations thus to debar all Eng' liftmen from being preferM to Dignities or Offices, or he was not; if the former, and that he had just cause so to do, it was no more than what any other foreign Prince who had no Hereditary Right to the Crown, would have done in the like Cafe: But if the latter, it was not only contrary to Justice, but also to his own Coronation-Oath, one Clause of which, asMalmesbvry (hews us in his Lib. 3. pag. de Gtfiis Pontificum, WOS^ quod fe modiste orgafuhditoJageret, & aepojure Angles 221. & Francos traSiaret. So that this King's arbitrary and violent Proceedings, af

ter he had for some time govern'd as a lawful King, tho they might prove him a Tyrant, yet they could by no mean* make him a Conqueror. And as for x the latter part of your Argument, whereby you would prove that in his Reign

there Yikk ao Englishmeni\x the great Councils of the Kingdom, that can only be understood (in the strictest sense) of the times after the great Conspiracy 1 have- now mention'd; for before,' it is very evident that there were many



Bishops, Earls and Barons still letr, who must have been Members of the Great
Council. ISbr can you prove that the Law I have mention'd against the Ki g's
taking the Taillage or Taxes without their Consent, was made after that time;
but let it be made when it will, you shall never persuade me it was enacted wirhr
out any Englishmen being present, till you can prove to me that there were
Do English Tenants** Cafitt towards the end of his Reign, and that there were
then no Knights, Citizens or Burgefles that represented the Commons in the
Great Council •, and can give a better answer to those Arguments 1 have given
you to prove they were there; especially that remarkable Clause in the Con-
clusion of this King's Charter, to the Abbey of Westminster, which mentions
divers principal Persons, both Of the Clergy and Laity, to have been summon'd
to that famous'Synod or Great Council, when this Charter was granted.
- I come now to your next Head, whereby you would prove this King's A-
bridgment of EngUsti Privileges, as to their Estates and Properties, to begin
with that of the Legislative Power; which, as you fay, was then wholly in the
Kingi Admit it-were so, it will not prove that for which you urge it, viz.. that
it is a fign of the King's Absolute Conquest over the English: for if the Great
Council of the Kingdom had then lost its antient Right, it was his Nor-
mans and Frenchmen, as well as the English; that he bereaved of their antient
Privilege, of giving their 'Consent to Laws; since it is very certain that nei-
ther the King of Frames nor the Duke of Normandy could at that time make
any.-Laws without the Consent of therr Estates.

But the Truth is, that your Conqueror could not do it; for if the Normans he brought over with him j had, as yon suppose, the greatest share of all the Lands in England, they would have been too powerful a Body of Men to be thus made Slaves at his pleasure. Indeed his own Laws shew the contrary, for in that very Law it appears otherwise:".** Whereby au the Freemen of i.i.Guil.55 '» the Kingdom'were to holdtheir Lauds and Possessions free from all unjust "'Exactions and Taillage, and' that nothing should be exacted of them, but *l their free Service, which they were bound to do according as it is appointed 41 them by the King, and it is granted them by an Hereditary Right for ever* 41 by the Common Council orthe whole Kingdom." Whereby you may fee that they had their Lands and Liberties granted them, for an Hereditary Right, not only by the King, but by the Common-Council of the Kingdom, and that the King could not alter King Edward's Laws without their Consents The Charter of King Henry I. fays expresly; liegem Regis Edwardi vobis reddo, cum iUis emendationibm quibtu Paterearn emend Avit Concilia Baronum fuorum. Therefore: as for that Authority you have brought out of H.Huntington, that upon thisKing's return from Normandy, he impos'd a heavy Tax upon the English; this is either to be understood of such a Tax as they gave him voluntarily, tho perhaps they durst not do otherwise, as the States of Provence andL<i»gutdoc are fain to do to the King of France at this day, when he requires it; and yet hedoes not claim those Countries by right of Conquest: Or if King William] impos'd this Tribute without their .Consents, it was hot only contrary to the Law just now mention'd, but also to his own Coronation-Oath, whereby he swore to prohibit *all unjust-Rapines, and that he ssio'uld behave himself equitably "towards his Subjects; with which, certainly hi? taRing'away their Mony without their Consents, would by no means consist. But .to answer that pars of the Coronation-Oath which1 you think makes most, for you, thap whereby heswore only to make-right Laws, which itfust have fuppos'd the Power to have been in himself, because <the Parliament might have hindered him from doing otherwise; this is but a Cavil, for it is already prov'd that be was to make Laws, and raise Taxes by the Common-Council of the Kingdom : and therefore these words may very well bear another1Sense, and do only give she King a Negative Voice of passing fudh Laws as the' Great Codncil should offer to him, or else such as he might propose to them for their Consent. And 1 suppose you will not deny but that it is very possible, that either the King or the Parlia- • ment may proposefuch Laws as may not seem equitable, or just; and then certainly both the oneand the other have a negative Vote^ and ought not to give their Consents to them. '■ «'*'

Bat to answer your last Instance, whereby you would prove that this King as a Conqueror impos'd what Taxes and Services he pleased; not only upon the ■ -> Aaaa 1 Laity,


{548}

Laity, but the Clergy too; by making the Bilhopricks, and greater Abbies liable to Knights Service, which you suppose to have been done by his sole Authority, without any Consent of the Common-Council of the Kingdom: this is only gratit diclum, and is indeed altogether improbable. For if the King had done this by his sole Power, he would have impos'd this Service upoa all the Abbies in England, whose Lands might have been as well reduc'd to Knights Fees, as thole that were put under that Service \ and so might have been forc'd to find as many Soldiers as they had Fees, as well as the Bshopricks and greater Abbies. But indeed the Clergy were too powerful a Body to be thus arbitrarily imposed upon, and they would soon have complained to the Pope against the King for this new Servitude he had imposed upon them \ and therefore I think we may with much more safety conclude with Mr. Stlden in his Titles of Honour, that this Imposition of Knights Service upon the Bilhopricks and Abbies, was done by the Common-Council of the Kingdom, ft being too great a matter to be done without it. For it appears byEadmenu, that the King held a Council this very Year, tho the Laws and Proceeding* of it are all lostj and this is the more likely to be so, because this Imposition was not laid upon all the Abbies in England, but only upon the Bilhopricks, and such Abbies as were of Royal Foundation, and held immediately of the King before your Conquest, and were only such as enjoyed whole Baronies; asAfat. Paru there tells us. ■ •■ •> • ■

I (hall now come to your last Head, whereby you would prove that your Conqueror, by. bis sole Power, alter'd the Course of Trials, and introduced the Custom of Duel or single Combat, in Civil as well as Criminal Causes. The chief Argument you have for this, is, that there is no mention made of this Trial by Duel in our English,Saxon Laws before the Conquest: which is but a negative Argument at the best *, and you can shew me no antient Author that fays exprefly that King William introduced it: and tho I, grant it is first mention'd in his Laws, yet does it not therefore prove that it was not here Before, since it was certainly in use among the FrancsmiLongohards, who were German Nations as well as the Saxons. But admit it were first introduced by the Conqueror, this was, no Badge of Conquest, for the Norm*** as well: as

might not have been done by his sole Power, but by some Law made, in the Great Council of the Kingdom, tho it bet now . lost; as we have very few off the Laws that were made by this King now left us, besides, those which are called the Laws of King Edward, with this King's alteration of them .- all which was certainly done in the Common-Council. Xb* like I may lay concerning the alteration of Pnnilhme.nt for peej-stealing. andi other Crimes, which were either punishable by pecuniary Mulcts,, or else by: Death, before the coming in of theNormans; since those Alterations might be also made by the Consent of the Great Council: but that the same Forest-JUwfl were in use before the Conquest as after, you may fee in the Forest-Lawsj of King Kmte^ as you will find in Sir H. Sftlman\ Glossary, Title Forefia-^Qulf the Punishments are there Pecuniary, or else Loss of Liberty, which after your Conquest was changed into the Loss of Eyes and Members. j

But as for other lesser matters, as his disarming the Enetifb^ and forbidding Night-Meetings, if these things were done (as I do not find any. express Law) for them, for there is no such thing mention'd in the Law de tto&vmitCxjhddu)

their frequent Insurrections made him use ail the means he could to prevent it for the future', so that at the most they were but temporary Constitutions, and did' not last long: nor could this Law of the Coverfeu-Bell be any Badge of Slavery on the English, since We find the fame. Custom to have been us'd in, Scotland, which you will not fay is a conquer'd Nation j nor do I find the Normans after they came over, were, any more exempted from this Law than the Englijh Natives. But I much wonder you should reckon-the Laws of Decenaries or Tythings, among the Badges of Norman Slavery; since: if you have: read any thing in our Saxon Laws, you will find, asJngulph tells us, that King Alfred first appointed, vt omnis indtgena Itgalis, in aliqudhCtntvria & Dccima existtrie, & fieptis fufptftw dr aliquo latrtcimo per Juam Ctmuriam vei Dtcuriam condemnatns, f tenant demeritamincurreret. So that Whatever Other LaWS you find, either of our Saxon or Danish Kings* or else among those of KingW7/liam, concerning Triburghs and Tythings* it was only to confirm or reinforce this antient Constitution. But that not only the mfcanest fort of Freemen, but the greatest and best Nobility and Gentry were subject to this Law of Tythings, may appear by that Law I have already quoted of King Knutet whereby every Freeholder was " to have his Family in hisPledg, that is, was **■ bound to answer for them to the King; and if he were accused to have let



 them run away by bis Consent, he was to purge himself by his own Oath, M and also the Oaths of five other Thanes, that he was innocent." So likewise the Laws of King Edward, confirmed by King William, are very particular on this Subject* u That all Archbishops, Bilhops, Earls, and Barons, Vid* Mtvedtm tt should keep their Knights and Servants there mentioned in their Frithborg*

M that is, in their Franc Pledg, whereof the Lords themselves were to be the u Sureties, as appears by what follows* viz.. that if any of them offended* ** their Lords should be obliged to do Right in their Courts." And to the fame purpose is the 49th Law in Ingulptfs Copy of these Laws j the words are these: Echascun Seniour ait funferiant u fun siege, que fintle rtte que ait a dreit tl Hundr& y that is, that every Lord keep his Servant in his Pledg* that if he offend* Right may. be done in the ^undred. V

So that upoQ the whole matter, I can fed nothing considerable imposed by your Conqueror upon the free-bornEnglish Subjects, which they were "SQt tied to before the Conquest, or which did not reach all the Normans he brought^ over with him, as well as they.

M. 1 do confess I did not believe there was so much to be said to prove that William the Conqueror never altered the Law of England, in any of its ma* terial Parts: but since you have gone thus far, pray proceed to shew me, that Beany ways confirmed all the Laws of the Saxon Kings his Predecessors* Once, l> conceive; as a Conqueror, he might, justly have vacated what of them he would, and I dp not fee any thing in pis Coronation-Oath that could have hindred him from it. /",

 F. I doubt not bat to give you very good satisfaction in this Point: for not only your Conqueror's W411 was never declared, that the former Laws should be abrogated, and till such Declaration all Laws ought to remain in force, even

in the Conquest of Christians against Christians, according to Sir Edw. Coke's Pig. 17* Opinion in Calvin's Cafe * but indeed the antient and former Laws of the > Kingdom were so far from being abrogated, that they were all confirmed by him. For in his fourth year, by the Advice of his Baronage, he summoned to London, as the words are in the Book of Litchfield, Omnes Nobiles, Sapientes, & Lege fua ervditos, mt eorum Leges & Confuetudinetaudiret: Or as Hoveden relates it out of a Collection or Laws written by Glanvil, Fecit fummoniri set nniverfosconfulatus Anglia, Anglos Nobiles, & Sapientes, &c- And twelve were returned out of every County, who fliewed what the Customs of the Kingdom wertj which (ar Mr. Selien tells us in his History of Tythes) being written by^ she hands of Aldrid Archbishop of Torkl> and Hugo Bishop of London, were, with the request of the fame Barons, confirmed in that Assembly, which was a Parliament of that time. And then in Hoveden follow the Laws of Edward, the Confessor, so confirmed by King William, among which is that Law concerning the Office*of a King, which I have-now given you: And before this, at the very beginning of his Reign, he also confirmed the Privileges of the Ci,ty of London, as appears by his Charter in Saxon, which is to be seen at this day * whichMs also confirmed by Ordoricus Vtialis: Gulielmus Rex multa Lmdonia post- id, tib. IV. quam coronatm eft,prudenter, juste, clement er que difpofuit qua dam ad ipfiut Civi- sol. 505,50! tat is commoda, vel dignitatem, aliaqua genti proficerent universe; nonnulla quibut' tonfuleretur Ecclefiis Terra, Jura quacumque ditlavit, optimisrationibus fanxit, Judicium retJum nuBa persons nequicquam ab eo fostulavit. So that nothing is plainer, than that at the beginning of his Reign he strove to oblige all sort* of People* as well the Clergy as Laity, to a good liking of his Government.

M. But yet for all this yon your self have granted; that after the time of his Confirmation of these Laws of KingEdward, yon cannot deny, whether provoked by the frequent Insurrections of the Englijh, or else resolving to make i use of his Right, by Conquest,, be fell verj severely upon the English. Nobility 'and Gentry, ;andouted most of them of their Estates, and forced them to flee into foreign Countries ; io that it .seems he did not lay down his Sword, as soon as ever he came to the Crown, but used it as he pleased against whatsoever Englijh he thought might be dangerous to his Government: so that notwithstanding his Confirmation of King Edwardh Laws, he did not seem to renounce his Title by Conquest. And as for your Authority concerning the Conqueror's confirming thcse.Laws, the .main stress of the Question will lie,,.whether he admitted any of the EngLjh'mto his great Council, to consult of the weighty Affairs of the Kingdom, when he had once thorowly fettled himself on the Engliflt Throne, especially if it be considered that King William kept not all the Promises which he made at all times. Now as you your self allow, this,Grant was made in the fourth year of his Reign, but he had not then scu;led. himself so well as he would, nor had He then made an entire Conquest of the Nation \ that was not done until after the great appearance of the natural Englijh in Arms, and the. great meeting which Frederick Abbot ofSt. Alb an sy with others, headed at Berkhamstead, which was not until above four or five years after this Confirmation: so that your Testimony from the Litchfield Chronicle and Roger Hovedtn, being before he settled himself as he intended to ado, signifies nothing i and that it was from some time after this Transaction, thatMat.Paris reckons the thorow Conquest andftbduing the Nation,appears by this Note in the beginning of the Life of Abbot Paul, Successor to this Frederick, Hie primus Abbas bujus Ecclefa suit, jostquam Anglta Normannispenitus ftut subjugata. _ • _ . -; ,■■ ■ .

F. 1 will not deny the matter of Fact in great part to be as yon fay; but whether the Englijh were to blame to make these Insurrections, or whether, they were provoked to it by the King's unreasonable Severities^ I have notnpiy time to dispute, nor are we competent judges of it at so long a distance, ofj time: if it were their fau^t, he had no-doubt very good cause to ,do as,:be did, and to punish such as were guilty \ but it was altogether unjust and -ty^ rannical to punish the Innocent with the Guilty." Nor could, ne have any. Right to do it as a Conqueror, since by taking his Coronation.Oath to deal mercifully with his Subjects, and to treat both English and Frenchwith equal Right, he had renounced that Title. Arid that he looked upori himself as a •• r • "Tyrant, if be. Jjad governed without beiug crowned, or taking the fame Oath, 35 his Predecessors, I IhaU prove if.o ypujfrom;Abbot Bromton\Chronicle, the, Author of which lived in tpe time of King Richard f. who has t(co/. 962.); these yvprds; CumqueWtllelmusDux Normannorum, Conquefior Angli^ ifiyranpi nonse^ exhorresceret, & nomen legifyniPrincipis induere veilst, a Stigavdo Cant. Archif% piscopffin Rtgem petiit copjfcrariy &c, '\- ■ \ .- *n w. W,.- ».■»'■ ,v"

.., But your Reply, that he d^d not shew himself a perfect. Conqueror till he was thorowly fettled, is. very pleasant: as if being solemnly crowned* and taking an 6ath to gevern justly and according ,tb Law, after four year* quiet Possession, and a voluntary Confirmation 6f the Laws <stf\his Predecesg sors, were not-sufficient Sighs of his peaceable Settlement upoa the Throne; unless you will have a King jib be never settled, until he has, by the force ojt a Standing Army;, got sufficient power to do all he designs, that is, to tak)e, a-, way his Subjects Liberties , and Estates at his pleasure, contrary to his, own Oath, and the Laws he has agfeed to. If those be -Signs of « "thorow Settlement, pray consider, whether,the King that is gomVaway, was ever thorowly settled at this raje, ttio I confess he was in a very fair way to give us such-a, VI thorow Settlement,, But since you date this,thorow Settlement from that.great "Transaction pi Abbot Frederick. I am not afraid to appeal to MatthewParisr Vid.Mat.Pa- from whom you have borrowed this Relation, where he tells, u£thus: " ThaE ris. in vita « ^fterLanfranc was made Archbishop, the King being now strengthened witb^ Frederici Ab- uj bq£h Swords, began more/ severely arid manifestly to oppress, the ;1 ,s % who seeing it nearly concer-ned their yes y Lives, calling a great many toge-"

<V ibefi they made Edgar Afiiel{ng their Leader, in whom the Englifi placed, aft, "their hopes-,'but among rfft the English, Frederick Abbot of St.Albans was "the chief Promoter thereof, being a generous Man, and to be feared for his "Riches and Power : therefore the King began to be vehemently afraid lest he "should lose the whole Kingdom, which he had gained by the Effusion of so

? much 14 much Blood, aud also hazard of his Life; and therefore being luckily taught "by the Archbishop's Prudence, he began to act more mildly with the'ehief a Men of the Kingdom, humbly proposing Terms of Peace, and with a pleaM sant Countenance inviting them to a Treaty (tho deceitful, as the end at "last declared) therefore the said Engflj/l met him at Btrkhamfiead, thinking M no harm, under the leading of Abbot Frederick; where, after many Dis•* putes, Archbisliop Lanfranc being present, the King swore upon all the Reis* licks of the Church of St. Alb ans, as also upon the holy Evangelists, invio

lably to observe the good antient approved Laws of the Kingdom, which "the pious Kings of England, his Predecessors, and chiefly King Edward had • *' established: and so being pacified, they all returned home very well satis>** fied." So that you set this was the third time whereby he renounced all , Right of,Conquest (if ever he bad any) by swearing exprefly to observe all the antient Laws of the Kingdom, since they found his Coronation-Oath would not bind him, besides his so solemn Confirmation of King Edward's Laws, in the great Council of the Kingdom not long before.

M. But pray read a little farther,'iand fee how he resented this Force now put upon him, and whether at all he intended to keep what he had sworn, or •to divest himself of his Right df Conquest j and therefore give me now leave to read the rest out of this Author: " But the Kiog cunningly hiding his De!* signs, within a few days after stndied how to overcome and supplant those "dispersed and asunder, whom he could not, when joined and confederate 11 together •, which he performed by kiuing, disinheriting, and banishing many »* of them, and violating the above-mentioned Laws. And the English being "thus spoiled at pleasure, and impoverished, without any legal Judgment, he "therewith enriched his Normans, to: the great Provocation of his natural M EnglishSubjects, who had of their own accord thus exalted him." So that you see he never intended to keep his Oath that was thus forced upon him, for Conquerors do not love to be made Slaves to their words whether they will or no; and therefore I may give you anAnswÆB both ast« his Coronation- s. A. A- f. Oath, as also to this now mentioned, from an old Englijh Proverb, That there 289. vas never any Oath but was either broken or kept. More Conquerors than one have used fair Pretences, and made smooth Promises, and dealt cunningly with the People to carry on their Designs, and have at first taken plausible Oaths, and broken them afterwards; nay took them when they intended not to keep them, and knew they could not: And for Oath-breaking, Harold, in his Answer to DukeWilliam^ when he demanded the Kingdom of him, had given him a fair Example, that stultum Sacramentum estfrangendum. Many specious Oaths, Vows, and Covenants were contrived, and taken by crafty and defigning Men in the late times, and imposed upon the People, contrary -to the Oath of Allegiance they had before taken, for no other ends than to cheat them into Rebellion, and to make them Authors of their own Slavery; which was discovered too late, when they were Under the power of an Army, and could not help themselves, as I could prove at large would the time permit.

E, Before I give you a positive Answer to what you have said^ tho I do believ>e a great deal of the matter of Fact to be true, as Matthew Paris hath related it either from Tradition, or else from, the Legier^Book of his own Abbey; yet I very much doubt, whether out of Hatred to this King's severe Proceedings, they did not represent King William's Cruelty and Severity much greater than it was: for tho I grant, after this time, he turned a great many more of the English Nobility and Gentry out of their Estates, and put divers of them to death j yet whether he did.this without any colour of Law or legal, Process, is very much to be doubted,, since we find many Forfeitures mentioned in Doomsday-Book, which had been needless, if the King had seized all J-A. A. pag. theEnglish Estates without any legal Trial: As for example, in Ejfex in Barn- I00»,01/r<iW*-Hundred, In Bur* dt istisHidit est una dt hominibm sorts faclis erga Regem i and this was the way of Expression in the Active Voice. We find- in Norfolk, IBasYRalf held such Lands, Quando fe sorts ftcit; but more particularly in Cambridgeshire inWardune, Hardwin holds of Richard's Ancestors, but Rids Waders held it Die quo dtliquit contra Regem: all which Would never have baeni inferred, could this Kinghave taken away Mens Lives and Estates without any colour of Law or Justice. And therefore you may find in all the His:y!> . torian9

torians of his time, that after the great Plot wherein so many Norman ds well as English Lords were concern'd, and for which Roger Earl of Hertford, and Æd/pfcEarlof Norfolk and Suffolk, both Normans, had conspired with EaYl Waltheof, and other English Lords, to call in the Danes, and dispossess the King ; yet they were convicted by a legal Trial of their Peers, and suffered death for it. So that in this he distributed equal Justice to the Normansas well as the Englifli, who thereupon forfeited all their Estates; and yet notwithstanding this, there were some native Englijhmen still left, who tho they had been in Arms against the King, at the beginning of his Reign, yet were nevertheless rag. 636. reconciled to him, and restored to their Estates: As for example, "Edric, "sirnamed the Forester, who, as Florence of Worcester tells us, was reconciled "to King William, and accompanied him intoScotland soon after:" as also Htreward, the Son of Ltofric, Lord of Brunne, who haying lost his Estate, Pag.67,68. and being outlawed (as Ingulf h tells us) u took Arms against King William, "and joined himself with those in the Isle of Ely; and yet, after divers great "Battels, as well against the King as his Commanders, at length having "obtained his Inheritance by the King'? Allowance, he finished his days in J. A. A. 105." peace." And now here were two considerable Englisti Barons who stin ettjoyed their Estates, notwithstanding all King William'sSeverity; and yet I do believe it will puzzle your Doctor to shew me their Names in DoomsdayBook: so that that Book alone is not, it seems, a certain Ruld to discover what Englijhmen were then Barons or Tenants inCapitf. '1

But admit all this to be true, as you your self have represented it; can this King's Perjury to his Subjects, and Breach of all Laws, after'so many solemn Oaths, give him a Right as a Conqueror over the Lives and Estates of his Englijh Subjects; and that after he had solemnly renounced his Right of Conquest, by so many solemn Transactions with his Subjects, with whom you suppose he still made War, after he had for so many Years laid down his Arms? At this rate I cannot tell when Subjects may be safe. For suppose some Kings that come to a Crown by a mixt Title, partly by Force, and partly by Right, take ever so many Oaths to maintain the antient Constitution of the Government, together with the Rights and Privileges of the People-, 'tis but their saying afterwards when they have sufficient Power, that they were forc'd upon them, and that they never design'd to keep them., and thelJusiness is done, and they may then take away the Subjects Lives and Estates by this pretended Right of Conquest whenever they please. Nor does this only extend to the King himself alone, but to all his Heirs and Successors, who claim under that Title, let them take ever so many Coronation-Oaths, or make ever so many Declarations to the contrary; since they all claim under the fame divine Title of the Sword; that is, as you will have it, receive their Crowns immediately frx>m God, and then can never forfeit them, let them tyrannize to the utmost degree imaginable; for you have provided them with two easy and pleasant Excuses, that all Promises are either broken or kept, and stultum Sacrament um est frangendum- And I cannot but smile to see what an excellent excuse you have found out, for all the Breach of Oaths and Covenants of those engag'd in the late Civil Wars, since they might very well plead they had so many Royal Precedents for so doing, as sufficiently authoriz'd it; unless you will have that to be Perjury in Subjects, which must be a Divine Prerogative in Kings.

And therefore let me tell you, I am very glad for your own fake, that there is no body here but you and I, since all the Company would have cried out, and said, that this way of arguing were to make open War, not only upon all the Laws and Privileges of this Nation, but also to put the King and People in a state of War against each other: for if he once declares by such OvertActs as these of King William's, that he will not be tied, either by his Coronation-Oath, or by any Laws he has made, I doubt their Oaths of Allegiance will not long bind them neither;and they will be very ready to reply, that whatever Power began, and is continued by Force and Violence, may also be cast off by the like means: and when a King and his People are brought once into this State, it is easy to foretel what will be the Event; either he must turn out, or they must be all Slaves; and I wish it was not owing to such Jesuitical flattering Counsels as this, that the King first lost the Affections of his People, and then his Crown j since Father Peters himself, with the rest of the . Jesuits,


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Jesaits, and Arbitrary Ministers of the Cabal, could never have instill'd worse ^Principles than these; therefore I pray for the future either get better Reasons, or keep those to your self.

But God be thanked, both King James b and King Charles I. had much better Thoughts of the Laws and Liberties of the Nation, since the former hath solemnly declared in a Preamble to the second Act of Parliament, in the first Year of his Reign, "That not only the Royal Prerogative, but the Peoples i jacobi. 41 Security of their Lands, Livings and Privileges, were secur'd and maintain'd Cap. 2. Fol, •* by theantient fundamental Laws, Privileges and Customs of this Realm *, "S7* c( and that by the abolishing or altering of them, it was impossible but that upresent Confusion will fall upon the whole state and frame of this Kingdom." And his Son was of the fame Opinion in his first Declaration at the beginning ©f the late Wars: «■ The Law (fays he) is the Inheritance of every Subject, Pag, 28. ** and the only Security he can have for his Life and Estate j and the which being Mneglected, or disesteemed (under what specious shew soever) a great mea"sure of Infelicity, if not irreparable Confusion, must without doubt fall "upon them."

M. If I bad no Love at all for'the Government and Liberties of my Country (as I thank God I have a great Affection for both) yet should I not have the Impudence to contradict the Sense of two Kings and a Parliament; neither have I so little Value for those things which are the Foundations of our Happiness, as to desire they should be sacrisie'd to an arbitrary Power 5 nor on the other side have 1 so great a Value for them, as to endeavour their Preservation by Rebellion, and deposing the King, which since I look upon as altogether unlawful, we are then to follow the Apostle's Rule, and not do Evil that Good may come of it. But as for what I have urged in excuse of the Conqueror's Perjury, and Breach of Laws, I confess I have said more than the matter will well bear j but I hope you will excuse it, since I confess the Argument is none of mine, but the Doctor's from whom I borrowed it, and I did not consider the bad Consequences of it: yet this much I must still freely affirm, that neither KingWilliam the Conqueror, nor his present Majesty, who is his Heir by an Hereditary Right of Succession, either could then, or can now at this day be lawfully resisted, much less can be deposed, or can forfeit their Royal Dignity for any Male-Administration or Tyranny whatsoever. • V

F. Pray give me your Reason for that, since I think yon may be very well fctisfy'd, that thisKing's Title by Conquest from KinglViHiamt his Ancestor, can signify nothing, tho I should grant the utmost you can demand: and therefore tho I am as much against Rebellion and deposing of Princes as you can be, and doing of Evil that Good may come of it; yet the question remains still to be decided between us, whether that Resistance I maintain be Rebellion or not, and whether it be Treason to deny Obedience to a Prince, who hath done his utmost to lose the very name of King, by not observing those Conditions, on the performance of which he can only maintain his Royal Dignity. Now since I think I have fully proved the two Points 1 undertook, viz.. both that of the King's forfeiting the Crown in the Cafes I have put, as also the falsity of the matter of Fact, whereby you would maintain, that the King has an indefeasible Right to the Crown of this Realm-, as an absolute Monarch byConquest: since you decline arguing this Point any farther, because you find it is not to be maintained, pray let me know what other Reasons you have why yon cannot come over to my Opinion.

M. Tho I am not satisfied, but that a great deal more may be farther urg'd by those who are better vers'd in this Controversy, to prove that his Majesty hath an unforfeitable Right to our Allegiance by the Conquest of KingWilliam and his Predecessors \ yet I shall not now insist any longer upon that Title, which tho our Kings have by so many gracious Condescensions to the People of thhs Nation, seemed to wave, yet have they never renounced it as I know of: but since his Majesty was settled in the Throne as an absolute and lawful King, without any Competitor, by a long Series of an Hereditary Succession of above six Hundred Years standing, and confirmed by the Oaths of Allegiance of the People of this Nation both to him and his Ancestors, he is not only our King by the Laws of Man, but God also; to whom, and not to the People,


he owes his Crown; and can therefore neither forfeit it, nor be accountable to them for it: and when you can prove the contrary, you may then convince me to be of your Opinion.

F. We have already partly argued this Point at our third and fourth Discourses, concerning the Lawfulness of Resistance; but since perhaps you may have still somewhat farther to urge upon so important a Question, 1 desire to hear the utmost you can say, to prove that Kings owe their Power to none but God, and therefore ought never to be resisted, neither can forfeit their Crown upon any pretence whatsoever: and therefore pray appoint me some other time when I may wait on you again, and fully discuss this Point, since it is now very late.

M. I am sorry I cannot appoint you any certain time; for since I fee so great a Confusion reigns every where, and that there is like to be no Term, and consequently no Business for Men of my Profession, I am resolv'd to retire for two or three Months into the Country, till I fee things a little better settled than they are at present: and I heartily wish that the Convention (which I hear is like to meet in some time) may endeavour the Peace and Settlement of the Nation, by sending for the Ring and the Prince of Wales out of France; since I do not desire any more Conquests, nor the Government of a foreign Prince, as long as we have a lawful King of our own, who will govern us again if he might: but as soon as I return to Town, you shall be sure to know it; in the mean time I am your Servant.

F. I am yours, and wish you a good Journy.


DIALOGUE XI.

I. In what Sense all Civil Power is deriv'd from God, and in what Sense it may be also from the People.

II. Whether his Present Majesty King William, when Prince of Orange, had a just Cause of War against KingJames II.

III. Whether the Proceedings of his Present Majesty, before he was King, as also of the late Convention, in respect of the said King James, are justifiable by the Law of Nations, and the Constitution of our Government.

F. f^^^^^EAR Sir, you are welcome to Town, you have been absent a |f|f^n||if great while; and indeed I wonder how you could stay away so 111 ^ Hi *on£.' when such great things as the King's Abdication, and ^MBBM placing his Son and Daughter in the Throne, have been transiSSKESisS acted.

M. I thank you kindly, Sir, but yet I must tell you, that I have been so little satisfy'd with what your Convention has done in these matters, that the very hearing of it hath been a great Affliction to me; and it would have certainly been a much greater, had I been upon the place, and seen such horrid things as the Deposition of a King, the disinheriting of his right Heir, and the setting up the Prince and Princess of Orange, who certainly could have no right to the Crown as long as the King lives, nor yet after his Death as long as the Prince of Walesis in being.

F. I confess these are very high Charges if they would hold; but if you please to consider the Hypothesis I proposed at our last Meeting, That the King had by Breach of the Original Contract made between his Ancestors and Predecessors, and the People of this Nation, to observe the Fundamental Laws and Constitutions of the Kingdom, forfeited his Right to the Crown; all that hath been done in this great Affair, 1 suppose may be very well maintain'd and justify'd, from the necessity bf the thing, and of maintaining the Fundamental Constitution of the Government. And therefore pray give me leave to put you in mind how far I have proceeded in the Proof of this Assertion.

First, I have made out that the King of this Realm is not the sole supreme Power thereof, neither ever was so, from the very Institution of Kingly Government in this Ifland.

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Secondly, I have also prov'd that the King, not having the sole Power, must; hold that share thereof which he enjoys, upon this imply'd or tacit Condition, That if he usurp what does not belong to him, and the People do assert their Right by opposing his unjust Violence and Usurpations, and that he still obstinately persists in this Violation, he thereby loses and forfeits not only that part of the Power which he so unjustly usurped, but also his own too: and for this 1 gave you the Authority of the Learned GtotiM at our last Meeting.

Thirdly, 1 have also answer'd your main Argument of King William the Conqueror's obtaining by the Sword, and Conquest of King Harold, an absolute Right, and unlimited Power for himself and his Successors descended from him, over the People of this Kingdom; for I think 1 have sufficiently made out, that King William had no other Right to the Grown of England than by the Testament of King Edward the Confessor, and the Electiop and Recognition of the People: and this 1 have prov'd from the unexceptionable Authorities of the best Historians of that time. So that if he afterwards acted otherwise, and contrary to his Coronation-Oath, it was not as a lawful King, but as a Tyrant and an Usurper on the Rights and Liberties of the People, and he could not by his own unjust Act acquire any lawful Power so to govern this Kingdom; and therefore whatever Title King William or his Successors can pretend to, it must be by virtue of the Election of the first King of the Saxon Line, from whom all the Kings of England since Henry {• are descended, and consequently are oblig'd to hold the Crown under the same Conditions on which it was first confer'd. And tho I grant, that ever since the Reign of Edward I. the Crown has been no longer claim'd by Election, but by Succession of him that really was, or else was presum'd to be the Right Heir; yet this different way of acquiring the Crown does not at all alter the condition or manner of holding it, lince our Kings have always after that time, as before, been tied to the fame, or rather stricter Terms in their Coronation-Oaths, to observe and keep the Laws and Customs of this Realm; and also that the Power of the Great Council of the Kingdom or Parliament making Laws, raising Taxes, and redressing of Grievances arising from the unjust Exercise, and illegal Encroachments of the King's Prerogative, hath been exerted ever since the Crown became successive, as much as ever it was before.

Lastly, I think I have sufficiently made out that King James hath violated the fundamental Constitution of the Kingdom, in those several Instances 1 have already given, and am also ready farther to make it out if you require it; so that this being the Cafe, I can fee no reason to the contrary, why the Crown or Legal Authority should not become forfeited to the People, who at first confer'd this Power on the first King of the Weft-Saxons.

M. I must confess you have done your endeavour to prove those Assertions you have now laid down, but I am not yet satisfied that you truly have done it. But however, not to run into unneceflary Disputes and Repetitions of what has been already argued, and which I fee you are too obstinate to recede from, I shall now only oppose what you last asserted concerning the Crown's being forfeited to the People upon the King's pretended Breach of the Original Contract: for besides the absurdity of making the Crown forfeitable to the People, who are and ever were Subjects, and not Princes or Governours; whereas all Forfeitures still suppose a Right in the Persons who are to take it as superior to the Party forfeiting; there is also a greater Error and Mistake in your supposing all Civil and Legal Power to be deriv'd from the People, and by them confer'd upon their Kings or Governours: whereas the Scriptures plainly affirm, and all Divines so interpret them, that all Civil Power and Authority is wholly from God, and not from the People, who even in elective Kingdoms, tho they may name and design the Person whom they will have to be their King, yet is the Power wholly from God, who alone hath right to govern Mankind; and therefore as the People do not confer the Power, so neither can it be forfeitable to them from whom it was never deriv'd: and so much I told you at the Conclusion of our last Meeting, tho I had not then time fully to urge this Argument, as now I have. And this will press the more upon you, because you your self have already granted at several Meetings, that all Civil and Regal Power is deriv'd from God, and not from the People;

and and therefore your Notion of a Prince or Monarch's forfeiting to them, is wholly false and precarious.

F. If this be all that you have to object against our Assertion of the King's forfeiting his Royal Authority to the People, 1 think 1 can easily answer those Objections: for as to the first Absurdity which you lay to our charge, how an Authority can be forfeited by a King or Superior to his Subjects or Vassals, the Absurdity lies on your fide; for I do not suppose this Forfeiture to be made to the People as Subjects, but to them confider'd as a Community of Masters of Families, and Freemen; who as the Descendants and Representatives of those who made the first King upon a certain Contract or Condition, upon the Nonperformance of this Original Contract, do thereupon cease to be Subjects, as a Servant ceases to be so, and becomes againfui juris, upon his Master's Non-performance of the Bargain made between them: and so this Authority thus forfeited, returns to the Community of Masters of Families, and Freemen, who once confer'd it upon the first King. Nor needs this Forfeiture any more suppose a Superiority, in the Persons who are to take it, over the Prince that commits it, than when by the Law of England a Tenant for Life aliens in Fee, he in reversion may immediately enter upon the Estate as forfeited to him, tho the vid. Coke«/Person that iheld it was perhaps his own Father. on Littleton,

M. But is not this then to recede from your former Concession, whereby h 25 *• you grant that Civil Authority is derived from God, and not from the People at all? whereas you now suppose them the only Original or Fountain of Civil Authority, and from them to be derived to all Princes and Monarchs.

F. This Difficulty wholly proceeds from your not rightly understanding the manner of God's conferring Civil Power or Authority upon those that exercise it. For the better clearing of which Difficulty, let me ask you two or three Questions: First, pray tell me whether you are still of the opinion, that Monarchy is so much of Divine Institution, as that no Government but that may be lawfully instituted by Men?

M. I will not now affirm, that Monarchy is of Divine Right-, but this much I may safely aver, by what we can find in Scripture, that God instituted no sort of Government but that; and he did not make Saul or David to be only like those equivocal Kings, who might be deposable at the Will of the Estates, but conferred part of his own Divine Power upon them, without any Conditions or Limitations whatsoever: but as for those Governments called Commonwealths, tho without doubt they are not of Divine Institution, yet certainly the power of Life and Death, which they exercise, is wholly from God j since, as I have already said, a Man, not having power over his own Life, cannot confer that upon another which he had not in himself.

F. Well, I am glad we are so far agreed, that Commonwealths are endued with real Authority or Majesty as well as Monarchs, and that from no less Author than from God himself; so that whatever you have said concerning God's Institution of no other Government than Monarchy, is either not true, or not to the matter in hand : for in the first place, I have already proved at our third Meeting, that the first Government God instituted among the Jews, was an Aristocracy under Moses, Jojhua, and the Judges, reserving the Kingly Power over them to himself. And tho it is likewise true, that God divested himself of great part of this Kingly Power, when he anointed Saul King; yet God's Institution of Monarchy among the Jews does not render it unlawful for other Nations to institute such other sorts of Government, as may best sute with the Genius of the People, and the publick Good and Safety of the whole Community. But as for your Argument, whereby yon would prove the necessity of all Civil Powers being derived from God, because otherwise they could not be endued with the power of Life and Death over their Subjects, I have sufficiently taken oss that difficulty at our second Meeting, and shewn you, that a Man, in the State of Nature, has not only power over another Man's Life, but also over his own; not only to hazard it, but also to lay down or lose it for some greater publick Benefit to Mankind: which is also acknowledged by the Apostle Paul himself, For a good Man some would even dare to die.

But further, to shew you the Absurdity of this Principle, let me put you this Cafe: Suppose that a Kingdom or Commonwealth were so instituted at the first, that no Subject, or Freeman, should suffer death for any Crime, how



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great soever; which that I do not suppose as a thing impossible, it was for Vid.Grot. An-clivers Ages exercised in the Roman Commonwealth, wherein no Civil Maginot. in Mat. strate could lay any greater Punishment upon aRoman Citizen, than Banishp. 125. ment or Deportation. And if thatCopy we have of the Laws of King Williaml.be authentick, it is by the 67th Law in his Charter ordained, That no Vid. L. Li English or French Subject should suffer death for any Crime whatsoever, but onWll'. 1. ly be punished either by pecuniary Fines, Imprisonment, or else by loss of Eyes, Hands, Feet, or Members; which Law, tho I do not fay was ever observed, yet it shews it was then supposed to be both possible and lawful. Now if this could be so, there would be no necessity of supposing the Authority of the Commonwealth of Rome, or of King William I. to have been derived from God, since they had renounced and refused the great Character thereof, viz.. the inflicting capital Punishments; but if for all that, they still continued to be lawful Civil Governments, then it is evident that this power of Life and Death is not that which alone constitutes a Civil Power, and makes it owe its Original to God.

But to return to what your Notion concerning this power of Life and Death hath made me digress from, pray let me ask you another Question: After the Expulsion of King Tarquin, and before the Commonwealth of Rome•was formed, where was the supreme Authority lodged?

M. Why, in the same Body it was afterwards, the People of Rome, comprehended under the Patricians andPlebeians, that is, the Nobility and Commons; who yet retained the power of Life and Death over those of their own Children and Slaves, tho they communicated a great part of their Power to the Senate and Consuls.

F. Very well: Was this Authority they so conferred on the Senate and Consuls, the fame which they themselves could have exercised? Or was it any new Authority immediately derived from God, and created for that purpose?

M. I do not think it was any new created Authority, but only a part of their former Power, which they so made over to the Senate and Consuls, since . they reserved one great part of it, viz.. the Legislative Power, wholly ia themselves: but however this power which the Fathers of Families, and Freemen among the Romans had over the Lives of their Children and Slaves, as also over others who were declared publick Enemies, was derived wholly from God ; yet there arose likewise a new Power which these Fathers of Families were not invested with before,viz.. that of making Laws, as also of War and Peace: all which Powers were derived from God, for the common Good, and Defence of the whole People or Community.

F. Herein I also agree with you, but then mark what follows: it then plainly appears, that the natural Subject of Civil Authority was the Fathers of Families, and Freemen of Rome; and that what ssiare thereof was by them committed to the Senate and Consuls, it was wholly personal, and as their Representatives. This being so, pray answer me another Question: When the Senate and People of Rome did afterwards confer their whole Power upon the Roman Emperors by that Law (called in your Institutions, Lex Regia) was there then created or produced any new Authority from God to the first Emperor? Or was it the fame Authority or Majesty which the Senate and People were endued with before? For either it must be the fame, or else God must create a new parcel of this Royal Majesty or Authority wherewith to endue this first Emperor: which if you suppose, I can shew you a great many Difficulties and Absurdities that will follow from this Opinion; for then I might ask you, whether this Royal Majesty be like the Stoicks Anima Mundii whose Parts are distributed among all the Kings in the World? or whether each King has his particular Majesty to himself? or whether the King dying, liis Majesty also dies with him? or whether it exist without him, as the Soul does when separated from the Body, and by a certain kind of Metempsychosis, is transferred to the new Monarch?

M. Issiallnotstick at present to affirm, that this Authority or Majesty of the Roman Emperors was originally derived from God, tho not immediately, but by the Mediation of the People of Rome as his Instruments, especially ordain'd for the Derivation of this Imperial Power.


Well then, I see you and I are at last agreed; for I suppose all Civil Power to be so derived from God to the People, and by them, as an instrumental Cause, conveyed tp the Person whom they agree to make their King. But if this were so in the Roman Commonwealth, why are not all the rest of the Nations of the World indued with the like Privilege; so ttia$ no Man may justly make himself King over them without their Election, or Recognition at least?

M, Perhaps in those Nations where the People have, from the first Institution of the Government, retained the whole Civil Power in themselves, or else by the Extinction of the Royal Family they became possessed of it; this Power may afterwards by them be transferred or made over to one single Person or more: but this can by no means hold in divers other Cafes, where God immediately bestows a Civil Power or Authority without any Consent of the People, as it is in the case of Kingdoms acquired by Conquest in a just War, (for as to unjust Wars or Conquests, I freely own they confer no Right at all.) But since you will not, I suppose, deny that such a, rightful Conquest confers an absolute Power on the Conqueror, over the Lives and Estates of the Conquered, as also an Obligation in them to submit to and obey the Conqueror-, hence must arise a new Civil Power, without any Consent of the People intervening: which Authority, since no Man can confer it upon himself, must necessarily be immediately conferred by God; since, as I said before, the People are only passive, and have no hand at all in the conveying of it, And this is the more remarkable, because I suppose you will not deny, but that where one Kingdom or Empire has owed its beginning to the Election or Consent of the People, I could name ten that have begun from Conquest: So that it is evident, the People are never, or very rarely,. the efficient Causes of Civil Power.

F. Tho this Question concerning Conquest does not immediately concern our Kings, who, as I have already proved, do not owe their Regal Authority to Conquest, but to the Election and Consent of the People •, yet since the Title to a great part of our King's Dominions begun at first from Conquest, I (hall now fay something of it. First then, you grant that only Conquest in a just War can confer a Right to the People's Obedience; and therefore since the greatest part of the Governments have commenced from unjust Conquests, it will therefore follow that the Right of such Princes to those Kingdoms and Territories so unjustly acquired, could not owe its Original to Conquest, but either to a long Possession, or the Extinction, or at least the Dereliction of the right Heirs, together with the Consent of the People to confirm their Titles. So that it is not only my Opinion, but that of the most learned Writers in your own Faculty, such as Grotitu and Pufendorf; that Conquest alone, tho in the justest War, can confer no Right over a Free People without their Recognition or Consent: I have added of a Free Peofle,because 1 much doubt, upon the Conquest of a Kingdom or Territory (for example) where the People do own themselves mere Slaves to their Monarch ; whether their Con-* sents be at all necessary or not, since they fall to the Victor as the moveable Goods of the Prince conquered: but then the Power he has over them, is not properly a Civil Authority, but that of a Lord over his Slaves. And hence it is that in all Kingdoms and Territories, obtained by Conquest among us in Europe, Princes do not think themselves to have any Title to their Subjects .Allegiance, before they have acknowledged them for their lawful Sovereigns, by some publick Act either of the Estates or Representatives of the Kingdom, or else by the particular Oaths of all the chief Subjects or Inhabitants of those Places. ... ,}i;~.lt: .

M. I (hall not at present dispute this Point any farther with you, but yet there remains one great difficulty behind, concerning the manner of God's conferring this supreme Power upon Princes and States: For you your self have already granted, that the power of Fathers and Masters of Families is not of the kind, but somewhat specifically different from Civil Power or Authority; and if so, since they had not this Civil Power in themselves,\ cannot fee how they could confer it upon another, since nemo dat quod non habet: And therefore there still seems a necessity of God's conferring a new Power upon that Prince, or upon those Persons whom they shall pitch upon to rule over them. F. I V. t hope I shall as easily remove this Difficulty, if you will please to consider the manner how God confers this Civil Authority upon Men, Which is certainly by natural Means, and is to be found out by natural Reason, without any Divine Revelation j since Civil Government was instituted, and Men wet'e obliged to obey it, long before the Old Testament was written. But the true Vid. Puffen- Original of it is thus to be traced: First, It is certain, that right Reason dors de jure sufficiently taught Mankind when it began to multiply, and that they were senGemium, L 3. from the great wickedness and Corruptions of Mens Natures, that c"7' their common Peace and Safety could not be well maintained, unless Civil Go


vernments were instituted \ which could not subsist without a supreme Authority placed in some one or more Persons. This being a Dictate of the Law of Nature or right Reason, and so highly conducing to the Good of Mankind; it must needs owe its Original to God, the Author of all Truth, and the Giver of every good and perfect Gift. From whence it follows, that not only the Institution of Commonwealths themselves, but also the supreme Power with which they are indued, does not proceed merely from Men, but from God's Command, exprest by the Law of Nature or right Reason: So that the same Legislator, who first prescribed Civil Society, also prescribed the Peace and Order of that Society. Now a supreme Civil Authority, either in one or more Persons, is the Life and Soul thereof, without which it cannot live or subsist.

But it is certain that those things are not only said to proceed from God, which he immediately institutes, without any human Act intervening \ but those also which Men by the Conduct of right Reason, and according to their present Occasions and Necessities, have introduced to fulfil that Obligation that lay upon them, to promote the common Good and Safety of Mankind. And since in a promiscuous ungoverned multitude, that great Law of Nature, which prescribes the publick Peace and Concord of Mankind, cannot well be exercised sthe Unruliness of Mens Passions considered) nor be maintained without some supreme Civil Authority to keep Men in order ; it is plain that God, who enjoin'd Men this, does also command that Civil Societies should not be o.ily instituted, but their Authority also obeyed, as derived from himself* and as the necessary means of obtaining this great end of all the Laws of Nature, the Common Good and Safety of Mankind. And hence it is that he hath not any where prescribed or instituted any particular Form of Government, but leaves the choice of it to the particular Genius and Temper of each Nation and People.

This being settled, your Objection is easily answered, How Civil Powercau be conferred, without an immediate conferring of it from God, since the People in the State of Nature had it not before: which proceeds from your not considering, that this supreme Authority is not like the Soul of Man, an immaterial Form, that gives Knowlcdg and Understanding to the Body, and may be separated from it •, but is only a moral Quality, which may be produced by the mutual Consent of those that institute it, as the productive Cause thereof, tho they had it not formally in themselves before; just as from many Voices singing in Consort, tho in different Tones, there arises a Harmony, which was not in any single Voice alone. Therefore since Civil Authority proceeds from the Non-Resistance of the Subjects, and their Concession that the supreme Powers should freely dispose of their Bodies and Goods for the publick Safety, it plainly appears, that in each particular Master of a Family and Freeman there lay (tho hidden and disperft) the Seeds or Rudiments of supreme Power, which by mutual Compacts did afterwards grow into* a perfect Civil Authority. And thus not only many Masters of Families, and Freemen, may combine together for their mutual Safety to erect a Commonwealth, by appointing one or many Men to rule over them for their mutual Safety *, but it is not impossible, but that from the Government of a Master of a Family, having many Villages and Slaves under his power, there may arise a perfect Kingdom: for tho paternal Power does chiefly respect the Education of Children, and that of a Master, the Government of Servants, for his own advantage; yet is there not so great a distance between the Power of a Master of a Family and Civil Authority, that there can be no passing from one to the o* ther, without a new Authority immediately created by God for that purpose.



For suppose a Master of a Family, having a numerous Train of Children and Servants, should permit both of them, by way of Emancipation or Manumission, to enjoy such a Portion of Lands, or other Goods to their own use, as alse to govern their own private Families and Affairs as they sliall think fit, provided they will stilL obey him as their Head and Governor, and contribute the utmost; Assistance of their Lives and Fortunes for the publick Safety; I cannot see any thing that would be wanting to the making such a Master of a Family a lawful and absolute Prince, provided he was endued with such a Power as to be able to protect them: yet all this while, without supposing any new Divine Authority to be infused by God upon his Accession to this Dignity.

M. I confess you have given me a more exact account concerning your Sense of this matter than ever I had before ; and therefore 1 shall not further dispute this Point with you: only let me tell you, that upon this Hypothesis of yours is founded that desperate Opinion concerning the real Authority or Majesty of the People, which the Commonwealths-men suppose still to reside in the diffusive Body thereof, after the Government is instituted, and by virtue of which they suppose there still remains a power in them to call their Kings or Governours to an account, and to punish them for Tyranny, or any other supposed Faults, against the fundamental Constitution of the Government, or of the Original Contract, as those of your Party are pleas'd to term it.

F. Well then, to let you fee I am none of those Commonwealths-men who maintain any such desperate Doctrines, here I do freely own, that where the People have parted with their whole Power, either to a Monarch, or else to a supreme Council or Senate, from thenceforth they have nothing at all to do to call such Governours to an account, or to punish them for the highest Tyranny or Oppression they can commit. The utmost I have allowed as lawful to be done in this Cafe, in all the Conversations we have had, is no more than this; T hat the People, in cafe they fee themselves like to be destroyed and ruined jjoth in their Persons, Consciences, and Estates, may, even under the most absolute Governments* stand upon their own Defence, and prevent their being thus totally ruined and enslaved i and may also cast off all Allegiance to such Powers, in cafe they refuse to treat them with greater Justice and Moderation for the future. But as for such limited or mixt Governments as ours are, where the People have still retained a share in the Legislature, and also in the raising of publick Taxes j yet since the King is by Law exempted from Punishment, or rendring any account of his Actions either to the People or their Representatives, the utmost that I contend for, is, That since the King receives only a limited Power of ruling according to such and such Laws, and will usurp that share of the Government that does not belong to him; iu such Cases, if he refuse to amend, then they may resist his Officers and Ministers, nay himself in Person, in the execution of such violent and illegal Actions. And if he still persist, and refuse to amend, that then at last they may proceed to declare, that he hath forfeited his Crown or Regal Right of ruling over them ; ,andin such case I hold that it again devolves to the People, from whom it first proceeded. And that this is no new Doctrine, I have the Authority, of Forttscue on my side ^ who, in his Treatise De Laudibm Ltgum An- cap. rtoe, after, having shewn that all political or limited Governments proceeded at first from the Consent of the People, proceeds thus, addressing himself to Prince Henry, Son of King Henry V. ("for whom he composed this Work) Habes ex hocjam, Prittceps^ ipstimionis politics Regni formam, ex qua metiri poteris poteftatem, quam Rex ejus in Leges ipfiusam Subditos valeat exercere. Ad Tutelam namcjue Legis, ac Subditorum, eorum Corporum & Bonorum, Rexhujufmodi erectus eft, & ad bane Potestatemi Populo effluxam ipsehabet, quo et non licet potestate alia suoPopulo dominari. From whence we may observe, that he calls theGoVjernment of this,Kingdom, not Regnumsimply, but Regnum Politicum, that is, a politick or limited Kingdom, in opposition to Regnum Abfolmum. This he calls a Powet flowing or proceeding from the People j and if it thus proceeds from the People, it must certainly return to them again upon the failure of the Conditions;to be performed on the King's part. Nor does this suppose any realMfljgsty or Authority in them who take this Forfeiture, any more than it does suppose it in the People, according to your own Hypothesis, when fv;;t u.'i Ji.fi. > Cccc the

the Civil Authority does again devolve to them upon the death of a King without lawful Heirs.

M. I do now very well understand your Hypothesis, but I think Princes are not thereby in a better Condition by being thus accountable to, and unpunishable by the People, but that they are rather in a much worse \ since you fey they may resist, nay kill them, when they are once entered into a State of War against them. For where Princes are accountable to tbeir People or Senate, they may then be admitted to be heard to make their Defence, in cafe of" any Oppression or Misgovernment laid to their charge as the King of Poland may at this day, to the great Assembly of Estates or Dyet of the Nation: whereas in the cafe of the King, as you nave put it, tho he is not accountable to the Parliament, yet he Is still liable to that which is more dangerous, viz.. to be judged, censured, and declared forfeit by every inconsiderable Fellow of tbe Rabble, 6n pretence of violating this Original Contract, and having broken the fundamental Constitution of the Government, and so (hall be condemned unheard, and perhaps without any just Cause: so that 1 think a Man bad as good be a Bearward, as a King upon such Terms.

F. The Men of your Principles 1 see are not to be pleased, unless Princes may do whatever they have a mind to without controul, or any Man's judging or opposing the Illegality of their Actions: For if a Parliament takes upon it self to judge of the King's Actions, this is calling their Princes to an account, and a thing against the Laws of the Land, as also that of Nations; if the whole Body of the People take upon them to judge when he has violated the fundamental Laws of the Kingdom, and broken the Original Contract, and thereupon resist him, this is making the King liable to be judged and censured by every mean Fellow of the Rabble. But to let you see that both judging and disobeying the King's Commands, if contrary to Law, is not a thing of such dangerous Consequence as you would make it, appears by the late Petition of the seven Bishops, wherein they take upon them to judge, that the King's late Declaration of Liberty of Conscience being against several Acts of Parliament, they cannot with a safe Conscience publish it, or agree tp the reading of it in the Churches. Now 1 desire to know whether this be not a making the King's Actions liable to be judged and censured by every one of the Rabble, since these Bishops acted thus, neither as Privy Counsellors, nor as Peers in Parliament? For by the fame Right by which they took upon them to make this Declaration, by the fame Right, not only every Curate of a Parish, but also every Layman in England, was free to judg of the King's Breach of this Law, and consequently of denying Obedience thereunto; which Disobedience, if it once prove general, will quickly make the King's personal Commands wholly insignificant. So that it seems it is not the Peoples judging of the Illegality of the King's Actions and Commands, which is the thing you find fault with, since when these Bishops acted thus, all those of the Church of England highly commended it: So that it seems it is not the bare Censuring and Disobedience that makes it a Crime, but it is therefisting such violent and illegal Orders and Commands, and at last declaring that Power void and forfeited by which they were made, that stick* in your Stomach: which is as much as to fay, that this Judging and Disobedience in it self is no Crime \ but the pushing it home, and doing it in such a way as that it may be mended for the future; tho this is never lawful to be done, bos when things come to that extremity, that all milder Remedies are become ineffectual.

But tQ answer your Objections a little more closely, the Consequences of my Opinion are not so dangerous as you suppose them, if you will please to consider, what 1 have already laid down at our last Meetings As first, Tha* this Resistance is never to be made, but when the violentBreach of the Lawsbecomes evident and undeniable, not to the Rabble alone, but to the whole Nation, that is, all sorts and degrees of Men; and as long as there is any Question about it, I acknowledg it is by no means to be used. And lastly^1 A? to the declaring the Regal Power forfeited, this likewise is never to be: done, but when the King becomes so obstinately resolved to pursue those evil aqd il-egal Courses, as that he. is utterly irreclaimable, and refuses all Propositions and Terms of amending or redressing them. Aud as to what you fay,


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that th6King is hereby deprived of all means of justifying himself, or vindicating his Actions •, that is not so, fince if a War be once begun, he may do this either by Declarations, Messages, or Treaties, as King Charles I. did in his War with the Parliament ■, by which means he gained a great many both of the Nobility, Gentry, and Commonalty to his Party, Who were before absolutely set against him. But if you will needs have a Parliament to judg and examine the reality of this Forfeiture, I so far join with you, that tho every private Man may first judge thereof, yet is it not become absolute, and an Act of the whole People, till the Estates of the Kingdom, as their* Representatives, have by some solemn Vote or Declaration made it so.

M. Well, I see you do all you can to make the best of a bad Cause ; but tho 1 think nothing of what you have said can give Subjects any Right to refist, much less to cast off all Allegiance to their natural Prince, yet 1 mall not now dispute this Point any longer with you, but will proceed to the Merits of the Cause, and sliaU let you see, that even upon your own Principles, the King has not been dealt withal in this whole Transaction, either like an Ally by the States-General of the United Provinces, or like a near Relation or a Son-in-law by the Prince ofOrange, or like a King by his own Subjects. To begin with the States of Holland in the first place, it is apparent that they have acted treacherously with the King, and contrary to the last Treaty of Peace and Alliance, in furnishing the Prince of Orange, as their Captain-General and Stadtholder, both with Ships, Men and Mony, to make this late Expedition against England, without so much as ever declaring the Cause of their Quarrel, or demanding any Satisfaction, if any occasion of Difference had been given.

But the Prince of Orange's dealing with the King his Father-in-law, has been much less justifiable: for, in the first place, he is not only guilty of the fame fault with his Masters the Dutch, in beginning a War without ever declaring the Causes of it, or demanding any Satisfaction or Reparation if he had been injured, till it was too late to go back, and that his Fleet was ready, and the Army shipped for the Expedition ; but what was more unkind from a Ne* phew and a Son-in-law, who had reason to expect all the Satisfaction which a King, an Uncle, and a Father-in-law could give: tho indeed, to speak the truth, the whole War was, in my Opinion, altogether unjust on the Prince's fide, fince his chief Pretences were to redress Grievances, and to re-establish the Bishops and Church of England with the Colleges in their just Rights, and also restore the whole Nation to the just execution of the Laws, by a Free Parliament and Privileges. Now I desire to know what the Prince of Orange had to do, either as a Neighbour or a Son-in-law, to concern himself with the Misgovernment of Affairs in England, much less to countenance and take the part of those many Malecontents and Traitors, who, after the Duke of MonmouthhRebellion, went over into Holland? So that upon the whole matter, I can find but one thing which he had so much as a pretence of making war about, if it had been real, viz.. the pretended supposititious Birth of the Prince of Wales; and yet even for this he ought not to have made War, till such time as all reasonable satisfaction in this matter had been demanded and denied him; and that the next Parliament, which the King had before declared should meet in November last, had been either hindred from meddling in it, or that they had failed to make a due Enquiry into it. But if we look home

F. Pray, Sir, before you come to consider what has been done here, give me leave to justify the late Proceedings of the States-General, and the Prince of Orange in this matter. First, As to the States, it is a very great Mistake, that they made this War upon the King in their own Names, or furnished the Prince of Orangewith Ships or Men as their Stadtholder or General; they did it as he was a Free Independent Prince, whom they looked upon to have a good Cause of making War against the King of England, as one they had great cause to believe was so far engaged in the French Interest, as instead of standing neuter in this War with the Empire, they every day expected when he would join with France, and declare War against them, as they had reason to fear .by several angry Memorials which the French King's Envoy in Holland had not long before given them: so that indeed it was but according

Cccc 2 to to the Rules of Self-preservation to begin first, especially when it might be done without their appearing in it at all. But granting this War had been made in their own Names, it had been but a just return for what had been done to them before by the late King, who made actual War upon them, with*, out ever giving them the least notice, or demanding satisfaction for any Wrongs, or Damages received; and this was the more justifiable, because his present Majesty, when Duke of Tori, was looked upon to have a very great hand ia those Counsels which begun that unhappy War, in which he himself served as; Admiral. But as to the Prince of Orange,there is much more to be said ia his Justification: for, in the first place, tho in some respects he was a Subject, by living under, and enjoying divers Lands and Territories, and Commands within the Dominions of the United,Provinces; yet as he is Prince of Orange* he is a free independent Prince, and, as such, has a Right of making War and Peace: and if so, all that is to be further enquired into, is, whether the Prince had any just cause of making war upon the King or not. Therefore to answer your first Objection against the Prince's making war upon an Uncle and a Father-in-law, without first demanding satisfaction, and then denouncing Waif if he could not obtain it j I confess this were a good Objection, if you could once prove to me, that the Prince could have been sure to have had granted him whatever he could in reason demand, both in respect of the Church of England, the Security of the Protestant Religion, the Rights and Liberties of the Subjects of England, and his own particular Concerns in respect of the Prince of Wales. But whoever will impartially consider the Terms that the Prince and King were upon just before his coming over, will find that he was not obliged to give the King notice of his Intentions, by first demanding fatisfaction, and then denouncing War if it had been denied •, since the King might then, haye joined his own with the French Fleet, and sent for French Forces into England, and then all that the Prince could have done, in behalf of himself and the Nation, had been altogether in vain. And then tho 1 grant that such satisfaction ought to be demanded in most Cafes, yet will it not hold in this; where if the Prince had sooner discovered his Designs, the King might have easily prevented them. And how near this was to have been put ia execution, may appear by this, That Succours were actually offered by the French King, and if they were refused by ours, it was partly because it was too late for the French Fleet to be then put out, and partly out of a politick Consideration, that besides losing the Hearts of his Englifi Subjects, if might give the French such a footing here, that they would not be easily gotten out again. But indeed it seems as if the old formal way of making war was quite out of fashion; since Charlesll. made war against the Dutch, afld the King of France so lately against Spain, the Elector Palatine and the Emperor* without any Observation of those Formalities.

But if we consider the Grounds and Causes of this War, as they are set forth in the Prince's late Declaration, they may be reduced to these three Heads:

First, The Restoration of the Church of England, with the Bishops and Colleges to their just Privileges.

Secondly, The securing the Rights and Liberties of the Subject from the Dispensing Power, and those other Incroachments that had been made upon them by the partial Judgments of Popish or Corrupt Judges.

And, Lastly, The Enquiry into the Birth of the Prince of Wales. In all which the Prince was so reasonable, as to refer the Decision of these Differences to the Judgment of a Free Parliament.

Now as for the first of these, That the Prince as a Neighbour, and of the fame Religion with us, might justly secure the Interest of the Protestant Religion here, and also redeem the Clergy from the Persecution they lay under, is very evident; since it has always been held lawful for Princes to take the part and espouse the Interest of those of the same Religion with themselves, tho Subjects to another Prince. Thus Eufebitu makes it a good cause of, War by the Emperor Constantine against Licinitu, because he persecuted the Christians living under his Dominions: So likewise in later Ages, Queen Elizabeth assisted the Dutch Protestants of the United Provinces,and those of France,.a,gainst the Persecutions and Oppressions they suffered from their own Princes;

as

as to the French Protestants, King Charles I. sent a Fleet and an Army to their Assistance in 1627.

But as to the next Head, the Oppressions we lay under in respect of our Civil Liberties, the Prince had as great, or rather greater Right to vindicate these than the former. For Bodin and Barclay, tho they suppose it unlawful for Subjects to take up Arms against their Prince, tho ever so highly oppressed ; yet they count it not only lawful, but generous and heroick for a neighbouring Prince, to rescue injured and oppressed Subjects from the Tyranny of their Kings. So that if the King had by his dispensing Power, his levying of Tares without Law, and taking away the Freedom of Elections for Parliament-men, almost totally dissolved the Government, and brought it to the Condition of an Absolute Monarchy, it was high time for the Prince to put a stop to those Incroachments, both in respect of his own particular Interest, and also of the States, whose General and Stadtholder he is. Of the former, since if this Kingdom should once become of the Popish Religion, by the means of a Standing Army, and those other Methods that have been taken to make it so (granting the Prince of Wales to be truly born of the Queen) yet should he happen to die, the Popish Faction here in England would in aU likelihood debar the Prince and Princess of Orange from their lawful Succession to the Crown; or at least would never admit them but upon condition of establishing of Popery and arbitrary Government in England: the former of which is as contrary to their Consciences, as the latter is to their Principles and Inclinations.

So on the other side, if the Prince of Wales be not the Queen's true Son, the Prince and Princess of Orange had certainly a much greater Interest, as the presumptive Heirs of the Crown, to demand satisfaction in that great Point, which so nearly concerned their Right of Succession ; for then certainly they might justly demand satisfaction, especially when they desired no more but to have this Business left to the Inspection of the Estates of the Kingdom, as the only proper Judges of the fame. For as to the Privy Council, Wtio by the King's Command (tho without any Precedent) had taken upon them to hear and determine this matter, their Highnesses certainly had no reason to be satisfied with it; since, besides the incompetency of the Judges, the King him* Self appeared too partial and interested in the Affair, for them to sit dowrt by their Judgments. And as for what you fay, that the Prince ought first to have tried, whether the King and Parliament would give him that satisfaction he demanded; this was very dangerous for him to hazard: for suppose the King would never have permitted this Affair to have been impartially inquired into by them, or that the Parliament had been (as it was very likely to be) packed and made up of Papists, Fanaticks, and Time-servers, who either would noc, or else durst not have examined this matter as they ought: his Highness had been then to play an After-game the next year, and what might have happened in the mean time, God knows; and therefore he had all the reason■ in. the World, whilst theFrench King's Arms were imployed in Germany, to demand satisfaction with the Sword in his hand. This is what I have to lay in justification of his Highnefs's Arms, which if they are just on his side, 1 think I can as easily prove what has been done for his Assistance by the Mobility^ Gentry, and Commons of this Nation, to have been so too.

M. I shall not any longer dispute, whether the Dutch and the Prince of 0range may not make some fair Pretences for what they have done ; since making War for Security, and by way of Prevention, is no new thing: tho I confess what you fay, in respect of the Prince of Wales, had been a sufficient cause of War, had there been any true grounds for that Suspicion. But since there was no just cause given why his Highness should suspect his Birth not to be genuine, and that even in the present Convention it self there could be no proof made to the contrary •, I think it is now evident, that it was a wicked and unjust Calumny upon his Majesty and the Queen, since he himself, in the last Paper he left behind him at his going away, appeals to all that know him, nay even tothe Prince of Orange himself, that in their Consciences neither he or they can believe him in the least capable ofso unnatural a Fillany, nor of so little common Sense, to be imposed on ma thing of such a nature as that.

* But

But as for those Noblemen and Gentlemen, who have declar'd for the Prince of Orange since his Arrival, I think that they are no way to be justify'd; since granting them to have been satisfy'd, that the Prince's Demands were lawful and reasonable, yet sure they ought not to have taken up Arms on behalf of a foreign Prince, against their natural Sovereign: but if in their Consciences they had believed his Quarrel to have been just, the utmost they could have done had been to have stood Neuters, without concerning themselves either with the one or the other Party; and then if the Prince had gain'd his point either by Arms or Treaty, they might have enjoy'd the good Effects of it, without breaking in upon the Church of England's Principles of Passive-Obedience and Non-Resistance, and so many Acts of Parliament made to the fame purpose. But as for those Officers and Soldiers, who basely and perfidiously deserted the King at Salisbury, and ran over to the Prince's Army with their Commissions in their Pockets, they cannot possibly be justified either by the Law of the Land, or that of Nations; since certainly they acted contrary to both.

F. Before 1 speak any thing concerning the Business of the Prince of Wales, give me leave to fay something in justification of those Noblemen and Gentlemen you so highly accuse; and tho we discours'd 'something of this matter at our last Meeting, yet since you have again renew'd the Charge against them, I cannot but again vindicate them in what they have done. In the first place, pray call to mind, that it has sufficiently appear'd by the small Forces his Highness brought over with him, that he never intended to conquer this Kingdom, or impose any thing upon it, contrary to the known Laws and Customs thereof; and therefore, as appears by his Declaration, his chief hopes of Success against so numerous an Array, made up of the flower of three Nations, depended on that assurance he had of some considerable Assistance from the Nobility and Gentry of England, and perhaps from some of the Officers of the King's own Army; and that this was lawful in both of them, 1 thus prove: You may remember I made out at our last meeting but one, that when the Nation lay under any great intolerable Oppression, by reason of the Violation of their just Rights and Liberties j the Clergy, Nobility and Gentry thereof, did always look upon it as their Right and Duty to vindicate the fame by a vigorous Resistance, when no gentler means could suffice. Secondly, I have prov'd that it neither was, nor could be the intent of those Oaths and Decla. rations made in the two first Parliaments of King Charles II. to deliver up their Lives, Liberties and Estates wholly to the King's Mercy, let him use them as he pleased; and if they did not, it must neceflarily follow, that upon the King's Violation of their Religion, Liberties and Properties, they had still a Right left them to defend themselves from such Oppression and Tyranny. . Lastly, ** I have also prov'd (as the Convention also lately declar'd) that the "King by exercising his dispensing Power, by committing and prosecuting "the seven Bishops, by setting up an Ecclesiastical Commission contrary to Law, I** by levying Mony by his Prerogative, without or contrary to express Acts "of Parliament, and by raising and keeping up a standing Army in time of ** Peace, commanded by Officers who had never taken the Test appointed by *' the Statutes made for that purpose, and consisting of so many Popissi Sol"diers, who having never taken the Oaths of Supremacy and Allegiance, were "altogether uncapable of serving in his Majesty's Army j and by doing divers '* other things contrary to the known Laws, Statutes and Liberties of this M Realm, too long now to particularize; had broken the Fundamental Consti"tution of the Kingdom." This being the Cafe, I desire to know how it was possible for the Nation to have a firm and settled Redress of these Grievances, without a Free Parliament? Or how it was possible to obtain such a Parliament (the late taking away of Charters and Regulation of Corporations consider'd) unless those Obstacles had been first remov'd? And how they could be remov'd, without some Force proportionable to what the King had raised to hinder it, I cannot tell. And therefore it is a very vain Project of yours, to suppose that those Noblemen and Gentlemen ffiould have sat still, and not have declar'd themselves some way or other in this Quarrel •, which is all one, as to fay, they ought to sit still and see a generous Prince ruin'd, who had come in for their Redemption, and to have then expected a Remedy for all these illegal Violations and Oppressions, when the King had kill'd or destroy'd the Prince of

Orange

4br**ge -andios Army, by his Majesty's yielding to all the fame Conditions that the Prince had demanded. This indeed would have been not to be parallels any where but in a Romance.

But as For those Officers and Soldiers who yon fay deserted the King, and went over to the Prince fromSalisbury; tho I grant they make a great noise, yet were they not a Thousand Men, Soldiers, Officers and all, (as I am credibly inform'd) which was but a small Number, in comparison with tbe King's whole Army: and yet these may very well be defended upon the same Principles with the former; for if the Violations of our Liberties were so great and dangerous, as I have now set forth, those Gentlemen were certainly oblig'd to prefer the common Good of the Kingdom, in the Preservation of their Religion and Liberties, before any private Interests or Obligations whatsoever, tho it were to the King himself: therefore it was more hrs than their fault, if they deserted him. And as for their going away whilst they were his Soldiers, and with their Commissions in their Pockets; I suppose you cannot expect that the King should have ever given them leave to quit his Serrice, or have accepted of their Commissions, if they would have surrenders them, unless at the fame time he had clapt them up in Prison for offering of h: and if then they were persuaded that it was their Duty so to do, it is but a Punctilio of Honour, whether they went away with their Commissions ia their Pockets, or had left them behind them; since their going off was a Sur*': render of their Commissions, and a sufficient Declaration, that they could not with a safe Conscience serve the King any longer in this Quarrel. And you fee that the Desertion of these few Men had such a fatal Effect, that it cast such a panick Terror upon the King, and the whole Popissi Faction about him, as to make him run away to London without striking a stroke. But that the Prince of Denmark, with the Dukes ofGrafton and Ormond, and Lord Churchill, were con▼inc'd of the danger this Kingdom was in, both in respect of their Religion and Liberties, appears by their leaving the King, and going over to the Prince, where they could never expect to be put into higher Places of Honour or Trust, than what they enjoy'd- already under his Majesty: and therefore that Expression of the Lord Churchilfe, in his Letter to the King, is very remarkablej 44 That he ce-uld no longer join with self-interested Men, who had franfd Designs ** against his Majesty^'s true Interest and theProtestant Religion, to give a pretence *l to Conquest to bring them to ejfett". And one would be very much inclined to believe so, considering the great number of Irish and Scotijh Papists Who have been brought over and listed here j tho With the turning out and disbanding of a great many English Officers and Soldiers out of several Companies, v

But to come to the Business of the Prince of Wales, which yon fay was a mere Calumny, and an unjust Suspicion on the Prince's side r tho' I will notr affirm any thing positively in so nice a matter, since the Convention has n6t thought fit to meddle with it; I shall only say this much, that if there have* been any Jealousies or Suspicions raised about it, the King may thank those of his own Religion, who were intrusted with the management of the Queen's" Lying-in. For in the first place it look'd very suspicious to us Protestants^ who do not put much Faith in the' Miracles of the Romish Church, that immediately after the presenting of the Golden Angel to the Lady ofLoretto, and the King's Pilgrimage to St. Winifred** Well, the Queen after several Year3 Intermission, should again be with Child; and when she was so, fliould have two different Reckonings: which tho it may be forgiven young Women of their, first Children, yet those who have borne so many Children as her Majesty, arc commonly more experienced in these matters.

M. What is all this to the purpose? Was it ndt prbv'd by many credible Witnesses, and those of the Protestant Religion, before the Privy-Council, that they were not only present in the Room when the Queert was deliver'd,' biirl that they had seen Milk upon her Linen before her Delivery; and that they had' also felt her Belly immediately before iti and sound that her Majesty was big with Child, and ready to be deliver'd? and the Midwife swears that she actually dKUverM'heF. So that since every Person is to be presum?d to be the' troei Son of those Parents that own him for theirs; so nothing but a direct Proofcito theicwtfrary, and that by undeniable Evidence, ought to make any1 :ii'-'rnj- * - Man


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Man believe otherwise j much more in the concern of the Heir Apparent to the
Crown: and therefore 1 know not what you would have had done, which has
not been obscrv'd in this nice matter.
F. And, Sir, let me tell you, because it was so nice a matter, and concern'd

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reality of the Prince's Birth: lince they were all sufficiently sensible that there wanted nothing but a Male-Heir to entail Popery on us and our Posterity. And therefore there ought to have been present such Persons as had no dependance upon the Court, and who ought to have been delegated by the Prince and Princess of Orange, since the Princess of Denmark could not be there in Person j but instead of this, the only two Ladies who (as I aminform'd) were trusted by the Princess to be present at the Queen's Labour, were never sent for till she was brought to Bed and the Child dress'd. And as for the rest of the Witnesses, they were either Lords, or other Persons, who only swear they stood in the Room at a distance, and heard the Queen cry out; and immediately after the Child cry, some time before they saw it. And as for the Ladies, the greatest part of them swore no further than the Lords. So that notwithstanding all that they have sworn in this matter, there might have been a trick Siderfin'j R*- put upon them, and they never the wiser: since you may read in Sidersin's forts, Temp. Reports, of a Woman who pretended to have been deliver'd of a Child by a Car. 2. Fol. Midwife within the Bed;and yet many years after, this was prov'd to be a VheKmt a- supposititious Birth, by the Deposition of the Midwife, and the poor Woman gainst Buck- wno was the real Mother of the Child, and others that had been of the Conspiworth,Tudcee, racy. And what has been done once, may be done again. Gill, arc. 'Tis true, the King himself with one or two Ladies deposed something further as to Milk, and the feeling of the Child immediately before the Birth , but his Majesty, if it be an Imposture, is too deeply concern'd in it, to be admitted as a competent Witness. And as for the rest of the Ladies, they are likewise, as being the Queen's-Servants, and having an immediate dependence upon her, to be excepted against, and under too much awe, to speak the whole Truth. But it is very strange to me, tbat none of them deposed any thing concerning their seeing any Milk come from her Majesty's Breasts after {he was deliver'd. And perhaps there was good reason for it, for I have had it from good Hands, that flie had none afterwards, whatever she had before \ the reason of which deserves to be enquir'd into, since it is very rare. But as for the Midwife, her Deposition is equivocal \ That she took a Child from the Body ofthe Queen. She is also a Papist, and consequently a susptcted Witness, in this Cause. Whereas all this might have been prevented, had the Queen, (were see really with Child) been persuaded to be deliver'd not within the Bed, but upon a Pallate; where all the Persons whose Business and Concern it was to be present, might have seen the Child actually born: nor needed ;there to have any Men been by, tho I have heard that the late Queen of Francewas deliver'd of the present King, the Duke of Orleans not being only present in the Room, but an Eye-witness of the Birth. And so sure, if somewhat of this nature had been done, it might have sav'd a great deal of Dispute and Bloodseed which has already, or may hereafter happen about it. And therefore I do not at all wonder that the Prince of Orange mould not take this partial Evidence that has been given for sufficient Satisfaction; so that whether this Birth of the Queen's was real or not, I shall not now farther dispute. It is sufficient, that if .his Highness and his Princess had just and reasonable suspicions of an Imposture,, whilst they remain under them, they had also a just Cause of procuring a Free Parliament to examine this great Affair, and also to obtain it by Force, since it was to be got no other way.

M. I need not further dispute this Business of the Prince of Wales with you," since I durst appeal to your own Conscience, whether you are not satisfied, notwithstanding these suppose Indiscretions in the management of the Queen's Delivery, that he is really Son to the Queen: and 1 think it would puzzle you or I to prove the Legitimacy of our own Children by better Evidence than this has been. And I think all those of your Party may very well despair of producing any thing against it, since the Prince of Orange himself has thought it best to let it alone, as knowing very well there was nothing material could be

brought brought in Evidence against him: Bat I shall defer speaking further on this Read, till 1 come to consider of the Convention's settling the Crown upon the Prince and Princess of Orange. But before I come to this, I have many things further to observe upon the Prince's harsh and unjust Proceedings with his Majesty, and refusing all Terms of Accommodation with him, upon his last return to London.

In' the first place therefore I must appeal to your self, whether it were done like a Nephew, and a Son-in-law, when after the King was voluntarily returned to White-Hall, at the Persuasion of those Lords who went down to attend him at Feverstiam, before he had scarce time to rest him after his Journey, and the many Hardships he had endured since his-being seized in that Port; and when he had but newly sent my Lord Feverjham with a kind Message and Compliment to the Prince, inviting him to St. James's, together with some Overtures of Reconciliation, as I am informed; the Prince should make no better a return to all his Kindness, than to clap up the Messenger, contrary to the Law of Nations, as his Majesty observes in this late Paper I now mentioned: and should, without any Notice given to the King of it, order his Men to march, and displacing his#Majesty's Guards, to seize upon all the Posts about White-Hall, whereby his Majesty's Person became wholly in his power. And not content with this, he likewise dispatch'd three Lords (whose Names I need not mention) to carry the King a very rude and undutiful Message, desiring him no less than to depart, the next Morning, from his Palace, to a Private-House in the Country, altogether unfit for the Reception of his Majesty, and those Guards and Attendants that were necessary for his Security. Nor would these Lords stay till the Morning, but disturbing his Rest, delivered their Message at Twelve a Clock at Night; nor did they give him any longer time than till the next Morning to prepare himself to be gone: and then the King was carried away to Rochester under the Conduct, not of his own, but of the Prince's Dutch Guards; in whose Custody his Majesty continued, for those few days he thought fit to stay there, till his Escape from thence, in order to his Passage into France: by which means the Prince hath render'd the Breach irreconcileable between his Majesty and himself: For whereas, if he had come to St.James's,in pursuance of the King's Invitation, and had renewed the Treaty, which was unhappily broke off by the King's first going away, there might have been, in great probability, a happy and lasting Reconciliation made between them, upon such Terms as might have been a sufficient Security for the Church of England, as also for the Rights and Liberties of the Subjects which you so earnestly con* tend for; whereas, by the Convention's declaring the Throne vacant, and placing the Prince and Princess of Orange therein, they have entail'd a lasting War, not-only upon us, but our Posterity, as long as his Majesty lives, and the Prince of Wales, and his Issue (if he live to have any) are in being.

F. 1 confess you have made a very Tragical Relation of this Affair, and any that did not understand the Grounds of it would believe, that King7*ra« being quietly settled in his Throne, and the Prince of Orangerefusing all Terms of Reconciliation, had seized upon his Palace, and hurried him away Captive into a Prison; whereas indeed, there was nothing transacted in all this Affair, which may not be justified by the strictest Rules of Honour, and the Law of Nations: for the doing o,f which, it is necessary to look back, and consider the State of Affairs immediately after the King's leaving Salisbury, and coming to White-Hall, where one of the first things he did after he was arrived, was to issue out a Proclamation for the calling a New Parliament, which was received with great Satisfaction by the whole Nation; and immediately upon this, the King sent the Lords Hallifax,Nottingham, and Godolphin, to treat with his Highness upon those Proposals of Peace which he then sent by them, and to which the Prince return'd his Answer, the Heads of which are very reasonable, when he did not demand any other Security for himself, and his Army, than the putting of the Tmer, and Forts about London, into the Custody of that City. Now pray observe the Issue'of all those fair Hopes; before ever the Terms proposed by the Prince could be brought to Town, the King following the ill Advice of the Popish Faction, instead of suffering the Elections for Parliament-Men to proceed, as he had promised, and as was hoped for by us, all on a sudden he order'd the rest of the Writs for Elections, that were not sent , D d d d down, down, t& be burnt, and a Caveat to be entered against the making use of those that were sent already into the Country; and at the same time he sent Order to the Earl of Feverjham to disband the Army, and dismiss all the Soldiers with their Arms. But I hdd forgot to put you in mind, that }ust before this the King bad sent away the Queen, with the Prince, intoFrance, and that (he carried the Great-Seal of England along with her; whereby it was plain, the King intended to put it Wholly out of his power to issue out any Writs, or pass any publlck Act, wherein the Great-Seal should be used: and that this Seal was carried away, appears by its being not long since drawn up out of the ThuMesj by a Fisherman's Netj near Lambeth-Bridge, where it's supposed to have" been thrown in by the Queen, or some of her Attendants, in her Passage brer the Water: And farther, that the King Was then resolved wholly to quit tfW Government of this Kingdom, (at least for the present) appears by his so speedy following of the Queen, Within three Days after, stealing from his Palace by Night in a Boat to Gtdveftttd, and from thence in a small Vessel to F*vriftittk •, whtfii how he Was scit'd by the Mob of that Town, and afterwards returned to London^ as you have set forth, I need take no further notice.

stew this being a true and fair Narrative of the whole Matter, I shall only bffer two or three Questions to your Consideration, and desire you would give im* a fair and satisfactory Answer to them: First, Pray tell me whether it Was hbt the King's fault, that it was rendered impossible for the Parliament^teh to be elected, by burning of the Writs, and sending away the Great-Seal? ScdotdHy, Whethtt the King by first stealing away, did not plainly confess himself cbhqtftr'd by the Prince, and did thereby Abdicate the Government? Also hyffli obstinate refusal to redress the Grievances of the Nation, he forfeited iiis iGrbwn and all Allegiance from his Subjects, and was not after this to be fewfTd as King of England, either by the Prince of Orange, or any body else: a'rM thtt*efore, whatever Treatment he after this received from the Prince, it was riot to be lobked upon as done to a lawful King, but a conquered- Prince; *ft'd frft Highness might not only justly refuse to treat with him any more as a GtbwtiedHead, but might also have justified not only the taking him Prisoner, but fending Mm into fiotiavd. if he had pteas'd: but instead of this, he only defirM *Ts removal out oT Town, from that Conflux and Influence of those Multftsrflct of Papist* that flocked to him and by securing his Person, to put ft <oetfcf tbe^r powet to play any After-Game, and rally the late disbanded Afta% tof Whom tbete was at least Twenty Thousand of the Scots,lrijh, and E'nglijh\ Who Would have 'stood by the King till the last: And therefore the fcnglifc as well as the"Diltch, 'Gouncil about the Prince, did not think it safe for* him to come to Town, as long as the King had 'his Guards about him at Whitehkll, tfnce they might 'have been increased to an Army whenever he pleased.

And thotighl grant good -Breeding and Manners, especially to Kings, as also Respect from a Son4n-law to a Father, are-Duties incumbent upon Princes, as wall as privatfe'Men* yet when these lesser things stand in competition with fheir -owsi Welfare and Safety, as also of the whole Nation, for which the Print* Wds how engaged} if 'he might, for these Ends, justly require the removing and securing the King's Person, it was no great matter what time of Night "he Ited notice to remove: 'thoughthis was not done neither with any Design sto affront er'surprize him, but happened'indeed through pure Accident j for 'Whth it was resolved -that the Prince's Guards mould march to bWm yd secure Whitehall, xx. was also resolved that the King mould have notiee'to remove. 'Andfmce'it-was not thought fit to let him know it till the Posts "w^re all ftcur'd, the Ways being very deep and dirty between Windsor and London, the Dutch'Guards, commanded by Count Solmes, could not reach the Town till past Ten tit Night-, and after that it was near Twelve before tbeEnglffb Guards, *abchit:WhitebaIl, could be drawn off without fighting: and till that was done, !it was'ndt thought at all proper, or safe, to deliver to the King' the Prince's Message for'his departure. So that indeed it was not from any Design in either the Prince and his Council who ordered it, or of these Lords'(Who very wellwndeistand good Breeding) thus to deliver their Meslage to him at that'time of Night.

But

Bat thohc was in bed, yet that he was not asleep is very probable, since he had not been above half an hour in bed', and it is not very likely he should * be asleep, when he very well knew in the Evening before of the Arrival of the Prince's Troops about Whitehall, and therefore could not be without too much Concern about it, presently to compose himself to steepBut as for his Removal from London, it is plain that his Highness was so far from owning, or receiving the King in the same Capacity he was in before his Departure, that as soon as ever he heard be was at the Earl of Winchelfea\ and about to return to London, he sent away Monsieur Zultstein with a Letter to let him know, that he desired him not as yet to come to London, but to stay at Rochester till he himself should come to Town; but Monsieur Zulestein miffing of the King by the way, he came in the mean while to Whitehall:yet could not but know that his being there was not with the Prince's Consent, since the same Gentleman followed him thither, and there delivered him the Prince's Letter so that this second Message by these Lords could be no new thing, or Surprize to him. Yet that his Highness never intended the least: Violence towards tbe King's Person, may appear by this, that he left it to the King's Choice what place he would go to, as also what Guards or other Attendants he would take with him •, when the King refused to take his English Guards with him, tho they were offered him. And indeed these Dutch Guards that attended him, might, in his Majesty's Judgment, be very west trusted, they being (as well as their Officers) for the most part Papists j but that the Prince did not intend to detain his Majesty's Person as a Prisoner, may appear in. this, That whilst he remained at Rochester, none that would were debarred from access to him, and that the Officers and Soldiers of the Guards were ordered to be under his Command, and every night to take the word from him; and had it not been for the King's commanding a Centry to be drawn off from his usual Post, he could never have gone away without being discovered; and. if he would have gone away at noon-day, I know not who, unless the Rabble, would have hindred him. So that I think it is evident, that this was the civilest and mildest Usage that a vanquished Prince could expect from him that had so much the better of him, and in whose power he now was, and I doubt more than the King would have allowed the Prince, had it been his Fortune to have got him as much in his power : nay, the King was so far from being confined, that it is plain he had the liberty given him to go whither he pleased j not were these Guards placed so much about him for his Confinement, as to secure him from the Insults of the Rabble, who otherwise there, as weslas they did ztTeverjham, might have expressed too violent a Resentment against his Person.

M. I cannot deny but you have given a very fair,, and as far as 1 know, a true account of this Transaction, and have told me some things which I never fc^rd before j but however, 1 cannot depart from my sicst Opinion, that it was neither honestly nor wisely done of those, who took upon them to advise the Prince to push things to Extremities in this Conjuncture: and therefore J impute it chiefly to those EngUfa who supposing they had by taking Arms, and joining themselves to the Prince's Party, provoked the King beyond aU possibility of Pardon, were resolved to do their utmost to put it out of the King's power ever to call them to an account for it. And tho perhaps his first sending away the Queen and Prince, and then going away himself, in the middle of a Treaty with the Prince, and thereby leaving his Affairs in such Confusion, may seem to deserve Censure; yet certainly his Majesty is to be excused in a great measure for what be then did: for as he tells the Earl of Feversham, in his Letter to him to disband the Army, That things heing come to that extremity,, H. D. f. 97* that he was forced tofend away the Queen, and the Prince his Son, that they might •not fall into the Enemies hands, be was also constrained to do the fame thing "himself, and follow them, since the Troops of his Army were,not to be relied an; that it was not advisable for him to fight the Prince of Orange in the head of them, much less was 4t safe for him to trust himself in the Prince's power: and sore it was butreasonable thatPrinces, as weU as other Men, should pra■vide for their awn Security as west as they ,can.

But yet I can never believe that his Majesty's first going away was any Abdication of the Government, much less a Forfeiture of his Crown or Royal Dignity, any morethan the second: for in the first place it could be no Forfeiture,

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according to your own Principles, because he had already dissolved the Ecclesiastical Court, and restored the Cities and Corporations to their former Char

* ters and Freedom in Elections of Parliament-men, and put again in Com

, mission all Lords Lieutenants, and Justices of the Peace, who had been before

turned out: And if he could not give an entire Redress to all our Grievances by a Free Parliament, it was only because he durst not stay to hold it, since he thought he could have no Security for his Person, the whole Nation being in a manner poisoned and prepossessed against him, by those malicious Artifices

D. D. of a French League, and a supposititious Prince, and that his Majesty had so

many unfortunate Disappointments, and so surprizing and onparallel'd Accidents; part of his Army deserting him, and the rest proving unserviceable, when there were such terrible Disorders in the Kingdom, and all Places were either flaming, or about to take the fire of Rebellion.

So likewise could it not be properly any wilful Desertion or Abdication of the Government, since he was forced to quit it, like the Master of a Ship, who when the Vessel is like to sink, is forced to leave her, and escape in a Cock-boat. And that his Majesty did not act thus without an Intention to return, and again to vindicate his Right, when Opportunity served, appears likewise in that Passage in the above-mentioned Letter, wherein he desires both the Officers and Soldiers of his Army, then to be disbanded, to continue their Fidelity to him, and to keepthemselves from Associations, and such pernicious things. From whence it plainly appears, he went not away without a Prospect of returning to his Throne when time should serve: and if he left no Orders at all for the Government of the Kingdom in his absence, nor named any Commissioners or Lieutenants to represent him, it was because he thought it to no purpose i since besides that he could find nobody who durst undertake, so difficult an Employment, so they that had undertaken it, would have found no body who would obey them; the Generality of the People, and also of the King's Army, being more inclinable to the Prince of Orange than to himself.

Yet however you see, upon his return to Town, the King was so well persuaded of the Prince of Orange's kind Intentions towards himself and the Nation, that I verily believe his Majesty would have yielded to any thing that could in reason have been desired of him. And upon this ground I suppose he writ so kindly to the Prince, and invited him to come to St. James's with what Troops he should think fit for his Security; therefore I must -needs tell you again, I think it was a great Oversight of the Prince of Orange thus to let flip this Opportunity, by refusing all Terms of Accommodation with the King, and by clapping up my Lord Feverfliam, then seizing the King's Person, and sending him out of Town, to let all the World see he was resolved to treat no more with him. And this being the true State of the Cafe, it is not your saying that he had forfeited his Crown by going away, and consulting his own Safety, that will convince any unprejudiced Man: for as to your notion of a Forfeiture, that it was not then entred into the Thoughts of the Peers, and others of the Privy Council, appears by the Order they made for sending the Lords Feverjham, Ailshury, Yarmouth, and Middleton most humbly to intreat the King to return to Whitehall; so that he was received .very joyfully, and with great Acclamations of the common People, as he passed thro the City: and when he came to Whitehall, he called a Council, where he made an Order to stop the demolishing and plundering of Houses by the Rabble; so that he was not only received, but also acted as a King after his return to Town. This being the true State of the Cafe, I stall not dispute the Point, whether his Majesty and the Prince were in a state of War or Peace, after his return, or ■what the Prince might have done as an Enemy and a Stranger to the King's Person; but what might be expected from him as a generous Prince, a Nephew, and a Son-in-law, and one who was bound in Conscience and Honour to consult the lasting Peace and Happiness of the Nation more than his own private Interest, or the Ambition or wearing a Crown. '.'

F. You have made the utmost Defence that I suppose can be brought for the King's first going away; yet if it be better considered, I doubt it will not serve the turn. I see you are forced to lay the whole blame of the King's Departure in the midst of the Treaty with the Prince, and his refusing to call a Parliament according to his own Promise and Proclamation, upon his want of



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security for himself, theQjieen, and Prince, if he had staid; by reasonof the. failure of Fidelity in his Army, the general prejudice of the Nation against him, and the great Firmness and Resolution there was in the Prince's Army to adhere to him. Now I (hall shew you that every one of these were but Pretences, and that the real cause of his Departure was, because he feared to leave the Inquiry into the Birth of the Prince of Wales, and the free Examination and Redress of our Grievances, and those Violations he had committed upon the fundamental Constitution of the Government, to the impartial Judgment of a Free Parliament. For in the first place, as to want of Fidelity in his Army, there can be no just excuse for his deserting and disbanding them as he did, without any Pay; since he himself, in his said Letter to the Earl of Feverjham, expresly owns, *« That there were a great many brave Men, both Officers and ** Soldiers, among them:" And therefore, if he was satisfied of this, he ought to have first sent for all his Officers, both Colonels and Captains, and have examined them how far they would stand by him in the Defence of his Person and Cause against the Prince of Orange, and he might have also ordered those Officers to have examined every Regiment, Troop, and Company in his whole Army, how far they would engage in his Defence. And if he had proceeded thus at Salisbury, before he fled away in that Confusion toLondon, I have been credibly informed by divers Officers of that Army, that the King might have found above 20000 Men, that would have stood by him to the last Man, in his Quarrel against the Prince; and therefore I impute his going away, as he did from Salisbury, to some strange panick Fear that God had cast upon him, and all the Popish Faction about him, fince he has been known not to want sufficient Courage upon other Occasions. But tho he had omitted it there, yet he certainly ought to have tried this last Experiment after he came to London,rather than have quitted the Kingdom so dishonourably as he then did, and thereby giving the Prince of Orange'sFriends an Opportunity of seizing or getting • delivered into their power all the- Garisons and strong Places inEngland, be- 1 fides Portsmouth, in those three or four days time that he was not heard of} besides great part of the Army, that was not disbanded, had in that time gone into the Prince, in hopes of their Pay and future Preferment. Now that the King might with safety have resided with his Army somewhere about London, he himself grants, in his Proposals to the Prince, to this effect: " That in the H. D. /.90. "mean time, till all Matters were adjusted concerning the Freedom of Elec** tions, and a Security of their Sitting, the respective Armies may be re"tained within such Limits, and at such Distance from London, as may pre"vent all Apprehensions that the Parliament may be in any kind disturbed." Which Proposals being made not long after the King's Arrival atLondon, we may reasonably suppose, that he was then well enough satisfied with the Fidelity of the greatest part, at least of his own Army, to him; and if he were not, he might have been better satisfied if he pleased in the Word and Honour of the Prince. But as for the next Difficulty, the Nation's being poisoned and prepossessed against him j admit it were so, as long as he had a sufficient Army about him (as I suppose he might have had) he need not have feared any thing the People could do. But indeed this was a needless fear: for before the Parliament could sit, it was not the People's Interest to hinder it, or to fall upon the King or his Army when matters were in a fair way of Accommodation •, so after the Parliament fat, there would have been less cause of Fear, fince the Reverence of that Court would have kept them in awe. But as to the Firmness and Resolution of the Prince's Army, the fear of that was also needless, as long as the King's Army continued as firm to him; and if the Prince'* Army had been the first Aggressors, I doubt not but the People would have taken part with the King against them. But after all it was certainly (and you must grant it so) much more safe and honourable for the King to have treated with the Prince, and held a Parliament, with an Army about him, than to have yielded the same things (as you suppose him willing to have done) after his return to Town, when his Army was disbanded, and London had received the Prince, and had joined with him, and when almost all the strong places of England were in the Prince's power. So that upon the whole matter it evidently appears, that the King chose to trust his own Person, together with that of the Queen and Prince, to a foreign Monarch, rather than he would


rely upon the Justice or Fidelity of his own Nation. And notwithstanding all you have said concerning the King's Willingness, you fay in the next place, that nothing the King has done in all these Exorbitances he committed, can in any wife amount to a forfeiture, or Abdication of the Government; not to the former, because the King redressed all oar Grievances before he went away. 'Tis true, 1 grant he redressed some of them, by putting divers things in the fame state they were before •, yet for all this, the greatest still remain'd unredressed, viz.. the raising of Mony contrary to Law, and the Dispensing Power, both which (as I have already shewed you at our last Meeting) he never disclaimed, neither took any sufficient Course, by calling a Parliament, to » prevent its being exercised for the future •, besides his going away, without

giving the Prince and Nation any further satisfaction about the Birth of the
Prince of Walts. All which not being done, I must still affirm, that this wrought
a Forfeiture of the Crown, or an Abdication of it, at least by his refusal to
hold and govern it acoording to the fundamental Laws thereof; for he that
destroys the Law or Conditions by which he holds an Estate, does tacitly re-
nounce his Title to it, as I shewed you in the Case of a Tenant for Life, alien-
H.D. /.92, ihginFee. So that this being considered, as also that the City of London and
94« the whole Nation had surrendred themselves to the Prince of Orange; and that

even the Archbishops of Canterbury and Tork, together with the Bishops of
Winchester and £(y, with divers other Earls, Bishops, and Lords then in Town,
had sent an Address to the Prince, immediately upon the King's Departure,
and sent three Lords and one Bishop with it, desiring his Highness to come
speedily to London, and to take the Government upon him, having before de-
clared that they would, with their utmost Endeavours, assist his Highness for
the obtaining of a Free Parliament: the Prince had no reason, upon the
King's Return, to surrender that Power which the Nation, as far as it was able
to do without a Parliament, had put into his hands; and that to a King,
whom he had very little reason to believe, would use it any better than he had
done before.

But I see you wilfully decline entring into the Merits of the Cause, and ar-
guing the main Point in the Controversy, viz.. Whether the King was in a
State of War or Peace with the Prince upon his Return ; for if he were still in
a State of War, the Prince might certainly very well justify his clapping up
the Earl of Feverjham (his late Majesty's General) for offering to come within
the Limits of the Prince's Quarters without his leave, especially since he was
still answerable for doing his Endeavour to disband an Army (a great part of
Which consisted of Papists and Foreigners, with their Arms in their hands)
whereby they might have robbed and spoiled the Countries, or at least have
kept those Arms to renew the War again with the first Opportunity: so that
certainly it could not be so slight a thing as a bare Invitation to St. James's,
whither the Prince could have gone without his leave (being now Master of the
City) which could so far efface all the Prince's jtrst Resentments, and make him
so far confide in the King's Word, as to come to London, whilst he remained
there with hisGtfards, and all those Papists and Tories in and about London
ready to take his past, and rally again into a new Army upon the first Signal.

But as for any Proposals of Peace or Accommodation, which you fay the Lord Ftverfliam brooght with him, I neither know nor have heard of any such thing. 'Tis true, the King fays in the said Paper he left behind him, that he had writ to the Prince of Orange oy the Lord Feverjham, and also mentions some Instructions he had given him j but what they were, he does not tell us: but sure they were not Propositions of Peace, since it is to be supposed, that the King would not have sent any thing of that consequence, without first acquainting the Privy Council With it before it was sent. Bat since we hear of nothing concerning them, We may very well suppose there was no such thing; or if there were, his Highness was the fittest judge whether they were reasonable or not : and if tbeKing had any desire to propose any jdst or reasonable Terms, whereupon 'he might :have hoped to have been restored again to his Royal Dignity, he had a very fair Opportunity foT it, when a great Council of the Nobility weremet at'Sr. James% in order to sign an Association, to stand by the Prince in the casting'of a Tree Parliament: for the King might then, if he had pleased, have made his Proposals by such of the Lords and Bishops as


he could most confide in, and have conjured all tbe Peers there assembled to have interceded with the Prince of Orange to renew their Treaty with the Kiag, which had been before unhappily broken off; and then if either the Peers had refused to do this, or the Prince had refused tp hear them» the King might then (1 Arant) have h^d sufficient Reason to declare to all the World, that he was not fairly dealt with. But for him again to go away only upon a Pretence that his Person was under Restraint, when really it was not, plainly shewed, that he had no sincere Design of making an amicable end of those Differences, or really desired to be restored to bis Throne by the general Consent of the Nation \ but either hoped for it from those Civil Dissensions be expected we (hoqld fall into upon his Departure, or else to the Arms qf France. And this being the Cafe, I think pothing is, plainer, than that the King, both by his first and second Departure, hath obstinately refused all those raeaps whereby the Nation might have been seftjed, with a due Consideration of his Person and Authority whilst he Jived, and of the supposed Prince, when his legitimacy (hall be sufficiently prqved, and made out before a Free Parliament. So that since I have already proved that the King had, before the Pripce's Arrival, committed so many Viplatipas upon the whole Constitution of the Government, and that these Violations, if wilfully and obstinately persisted in* do at last produce an absolute Abdication and Forfeiture of the Crown it self-, I think the late King has done all that could be required to make it so.

But I have forgpt to answer one Objection you made, viz.. that the Peers andBistwps, when, they iqyited the King to return tq Whites, had no notion of this Forfeiture, nor tfje Peqple pf London, wbp, you fay, received him with great Joy and Acclamations j and that therefore it is wholly anew Invention. To this 1 answer, Thajt if the Lords you mention did fend this Meflige to the King, it might be because they were surprized with his unexpected Return, and had nqt well considered all the Circumstances of the Cafe, and (hereby did more than they could well justify, having before declared, they would stand by bis Highness in procuring a Free Parliament, which must certainly be without the King, since he was then gone away, and they had also invited him to come to London as web* as the City had ? and how that could consist with inviting jhe Kjng thither, without the Prince's Consent, 14o not well understand. But if seems they quickly altered their Sentiments, as appears by their presently aster si^seribjog a Paper, in the nature pf an Association, to) stand by the Prince, without taking any notice at all of the King: and the very day of the Kji&g's Departure they met to consider upon the Prince's Speech he had a day or two before made to them, desiring them to advise on the best: means how to pursue the ends of his Declaration, in facing a Free Parlia- i meat. And within two days after they presented the Prince with their Advice, to call a Convention on the 22d of January, which was also tbe next day agreed to by one hundred aud sixty Persons, who nad served as Knights, Citizens, and Burgesses in any of the ^Parliaments, in the time pf King Charles If with* out taking any notice at all of the King: for tho it was true be was then gpne away when the Commons and C^y, two pr three daysjifter, made their Addresses to the Prince ; yet when the Peers raet bpth the first and second time op; tbe 21st andaad of December, he was still here, for the King did not leave £ochtster until the 23d in the morning. $p it is plain, it was not their Design tp own, or take notice of him any more as King5 and that .which makes it more remarkable, is, that several of the 3Hhqps, viz.. the Arcbbilhop of 7cr*, together with the Bishop of St. Afafb, and' others, joined with the rest of the Peers in these Addresses •, which was a plain sign they a,tt looked upon the Kiftg'? Power to be.now at an end. Ifat as for the Acclamatiops of the People, or any great Joy in the City expressed upon the King's Return to Town, I doubt yon have had a false account of that matter j for I cannot hear that any pf the Citizens went out to meet him. or set any,Lights in their Windows, tho he came intoLondon after it was dark, or that any qf the better sort bid him, God-speed. I grant indeed there was a great many of what ypu call the Mob, but more Boys than Men, who followed his Coach, making Huzza's, whilst the rest of the People silently looked on.

M. I cannot deny but you may have given a true acepunt of these Matters, since ypu may have pbserved^bqjn better than I \ yet as ypu ypur self have re


latcd them, sure the King had sufficient cause to consult his own Safety, and make his Escape as soon as he could: for what could he expect when once the Prince had secured his Person under a Guard, and had refused to treat with him as King j and that also the Peers, and divers of the Bishops had made an Association to stand by the Prince of Orange, and had made- a fresh Address to him, without taking the least notice of him, as if there had been no such thing as a King in being? I fay, what could his Majesty now expect, but either a more close Confinement, or else being taken off privately by Poison, or some other ways, since he could not be forgetful of the King his Father's Saying, ffaat there is no great dijlance between the Prisons and the Graves of Princes? Or admit he had lived till this Convention-State, what could he have expected more, than retaining the bare Title of King, whilst the Prince of Orange, or some others appointed by him, had whoUy managed the Government at their pleasure ? Or else they might, according to your Doctrine, have either declared the Crown forfeited, or else that he had abdicated it by his going away. Or who can tell but they might have again renewed theVillany of 48, and have made him undergo the fame Fate with his Father?

F. 1 grant you have urged the utmost that can be to justify the King's second Departure; and as 1 would not deny but that he was the best Judge of his own Danger, so were the Prince, Peers, and Commons, together with the City, the best and only Judges we could then have of the true means of our Settlement and Safety: since after so many Breaches that the King had made upon his first Declaration and Coronation-Oath, as also his going from his late Promise of calling a Free Parliament; 1 cannot see what farther Security he could have given us that he would not repeat the fame things over again. H.D. p. no. Or admit the Prince had suffered him to continue atWhitehall, and to call a third Parliament, what assurance could he have given, that in the end of another forty days we should not have the same Trick plaid us? and then in March or April have been left in the fame State of Confusion we were in in December, to the certain Ruin of these three Kingdoms, and Holland into the bargain? And then by that time the French King might have got ready an Army and a Fleet, and under a pretence of redeeming his Majesty from the Constraint he lay under, and of restoring him to the free Exercise of his Regal Power, have invaded this Kingdom. And 1 suppose you cannot deny but the King would then have found Papists and High Tories enough to have joined with him in this pious Design: for certainly the Scruples of the High Churchmen would have been the fame they are now, the Obligations of the Oath of Allegiance the fame, and the supposed Sin of deposing a lawful King the same, tho he had utterly refused to give the Prince and Nation any sufficient Satisfaction. So that then if we had been forced to take Arms, and to declare he had forfeited his Right to the Crown, all these things would have given as ibid. p. in, great, or rather greater Scandal, than for the Nation to take him at his first Offer; and since he had thus rashly deserted the Throne by a needless Departure, to resolve he should ascend it no more.

But suppose (what might also as well have happened) that the Quarrel being renewed, the Prince and his Party had been killed, or expelled the Kingdom by the King, do you think he would have granted us then what he would not grant us now? Would he not, think you, have disbanded his Protestant Army, and have kept only Jrijh,Scotch, and French Forces in pay, and have every day increased them? What respect can we hope he would ever after this have shewn to our Laws, Religion, or Liberties, when he had now no longer any thing to fear? The memory of what happened after the Duke of Monmoutb's Defeat (tho effected only by those of the Church ofEngland) will certainly never be forgotten by others, whatever you Bigots of Loyalty may pretend or fay.

So that for my part 1 stand amazed to see you, and so many others, scruple submitting to the present King for if ever Man had a just cause of War, he had, and that creates a Right to the thing gained by it: the King by withdrawing, and disbanding his Army, yielded him the Throne; and if he had without any more Ceremony ascended it, he had done no more than several Princes formerly have done on the like occasions: for the Prince was no longer then bound to consider him as one that was, but as one that had been King of


England; yet in that Capacity he treated him with great Respect and Civility^ •how much soever the King complained of it, who did not enough consider ■what he had done to draw upon himself that Usage. But as for your Insinuation, that if he had staid, he might have run the fame Fate with his Father, I think it is fuller of Passion than Truth; for besides that the Lords and Commons would never have had the Impudence to have committed such a Villany, the Prince himself, as a Nephew and a Son-in-law, would never have suffered it.

M. Well, God only knows the Event of things, and we ought to judge char ritably, and still to hope, that if the King might have been restored upon Terms, he would have been the better for his Affliction, and have amended all those Errors he committed j since he had seen that neither the Nation, nor yet his Neighbours the Dutch, would permit him to make himself an Absolute Monarch. I believe he would have been too much afraid of the King ofFrance, ever to have made use of his Forces, to have settled Popery and arbitrary Government; and without his assistance, I suppose you will grant it could not have been done, since he plainly found that a Protestant Army would never have joined with him to act in such pernicious Designs: but however, let the worst have happened that could be, I think it had been much better for the Nation to have endured it with patience, than to have done that which was Evil, tho for the procuring of the greatest seeming Good, tho for the advantage of our Religion and Civil Liberties. And therefore it had been better for us, in this extremity, to have trusted God than Men, since he always promises to protect those that rely upon him, and strictly perform his Will. And admit the worst that could have happened, God would either have removed those Afflictions from us in due time, or have given us patience to have borne them -, since I suppose you will not deny, that God oftentimes brings Persecutions and Afflictions upon a sinful Church and Nation, either for a Punishment for their Sins, or else to give an occasion for those that are truly pious and sincere, to lhew their Courage and Constancy in suffering for the Truth, and by withstanding, not by Force, but Passive-Obedience, all the King's illegal and arbitrary Commands, if he mould, after his Re-establiftment in the Throne, have again renewed his former Courses. These are the only Remedies which we of •the Church of England, as obedient Subjects to the King and his Laws, must think could have been lawfully taken in this Case.

'F» I do not deny but what you fay is in the main very pious and honest, were the Case as you have put it ; but the greatest part of ydur Discourse depends wholly upon those old Principles and Prejudices, of the Unlawfulness of all Resistance of the Supreme Powers, and that the King is the only Supreme Power in this Kingdom: both which Propositions 1 have sufficiently confuted at our third, fourth, and fifth Meetings, and also at our last save one: in which I gave you a true account of the legal Sense of those Oaths and Statutes of King Charles II. concerning Resistance, as was also given by the best Lawyers, and most considering Men of the then Houses of Lords and Commons. So that if the means we have used are lawful, both by the Laws of God and Man, I think we are not bound to bring Afflictions upon our selves, but to avoid them all we canespecially when they come evidently attended with the utter Loss and Ruin of what ought to be most dear to us, our Religion, Civil Liberties, and Properties, and that not only for our selves, but our Posterity, who perhaps would never have regained them when they were once lost: of which the French Nation is an evident Example before onr eyes, who by not opposing the arbitrary Power of their Kings in due time, have fallen into a Government almost as despotick as that of Turkey. For when once the common Good of the Subjects ceases to be the main End of the Governours, the Government then ceasing to be God's Ordinance, degenerates into Tyranny: which I think may be always lawfully opposed by a freeborn People, who at first agTeed to be governed, not as Slaves but Subjects.

But as for the first part of your Speech, it needs not any long Answer, it first supposes the King might have been again restored upon Terms. Now since it is plain these Terms must have been imposed upon him against his Will, and as necessary Conditions of his Restoration, I would be glad to know who it was should undertake to impose them upon him, and to see them kept when they


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had been made, whether the Prince of Orange or the Parliament. If the former, I grant indeed he might have made such Conditions with the King, that the Church of England, as well as the whole Nation, should for the future enjoy their just Rights and Liberties; but then the Prince must either have trusted wholly to the King's Honour, or else he must have had some strong Places put into his hands for a Security, that the King would not again make the fame Violations upon our Laws, Religion, and Liberties, as he had done before.1 Vet 1 suppose you will not deny, but that the King might, if he had pleased, have broken them all again, so soon as ever the Prince's back had been turned, and that he had been once engaged in a War with France j which could not have been long avoided, considering the necessity there is at this juncture of time for the States of Holland (and consequently the Prince as their General) to engage with the Emperor and King of Spain, to drive the French out of the Empire, aud to hinder him from making himself TJniyersal Monarch of Europe; which it is plain is the thing he now drives ati But if the Prince should have kept any strong Places here as cautionary Towns, for the King's Performance of the Terms agreed upon, this must have been done either by English or foreign Forces: if by the former, this would have been looked upon as inconsistent with their Duty and Allegiance to the. King, if he should have commanded them to be delivered up into his hands; since you tell us, the King has the sole Command of the Militia, and consequently of all Garisons manned by his Subjects within his Dominions. But if the Forces that should have held these Places had been Dutchmen, or other Foreigners, it would never have been endured either by the King or Nation, that Foreigners should possess the strong Holds and Keys of the Kingdom;and the King might soon have wrought (by some Jealousies and Suspicions, which) he would not have failed to have raised) that the Nation it self should have , joined with him to drive them out, and then the King might have done what

he pleased without controul. But if you will place this Power in the whole People or Nation, or else their Representatives the Parliament, of holding the King to these Terms agreed upon, this could not have been done without their constant Sitting, and a power of resisting him, in case he infringed them ; and then either they must have given up all their Liberties to the King's Will, or, else farewelto the darling Doctrines of Passive-Obedience and Non-resistance.1 So that, take it which way you will, all imposing of Terms upon the King, either by the Prince of Orange, or the Nation, would in a short time have become either unpracticable or insignificant. Nor is your other Supposition anywhic truer, that the King would never have made use of the Forces of France, to subdue and keep under the People of England, for fear he should not be able to get the French out again. 'Tis true, this would be a very good Argument to a Prince who was no Bigot, and was not resolved to introduce his Religion by all the ways and means he could; but how near the French Forces were to be brought over into this Kingdom the last Summer, is very well known to those who were then in France, and saw them upon the Sea«Coast ready to imbark: nor was their coming over put off by any other Motives, than that the Earl of 5. and Lord G. two of the Cabinet-Council, represented to the King, that it would be the only means to make the whole Nation rife up against him, and join with the Prince of Orange as soon as he landed ; which I suppose was the only reason that hindred it, tor that the French King offered to fend them, is very certain: Yet it does not follow for all that, but the King might take an Opportunity of doing it another time, and bringing them over in their own Ships, if ours would not do the Business.

And tho I will not affirm that there is any private League with France, for the extirpation of the Protestant Religion \ yet this much I think may be sufficiently made out, that long ago the King was wholly in the Interest of France, as appears by Colemanh Letters (whilst he was his Secretary) when Duke of fork. The first Passage is to Sir William Throgmorton, Feb. i. 167 -»-. You well know that when the Duke comes to be Master of ourAffairs, the King of France will have reason to promise himself all things that he can desire. The next is to Fatherly Chaise, the French King's Confessor, in these words, That his Royal Highness was convinced, that hisInterest and the King of Frances was the fame. And whether the Duke, by his Accession to the Crown, has shewed any Alteration in his Inclinations clinations to France, either in respect of Religion or Interest, 1 appeal to the World.


Nos is your next Supposition less out of the way, that the King could have made use of no Forces but French to settle Popery and Arbitrary Government here, as if he had not Scotchand Irijh Papists enough in his Dominions for this occasion. And as for Arbitrary Government, we have found to our grief, that there are too many mercenary Soldiers in the King's Army, who fought only for Pay, and would have assisted the King to have raised Mony without the Parliament, nay to pull the very Parliament out of doors if he had bid them ; and if some of them were discontented when the Prince came over, I do not so much impute it to their honest Principles, as fear, lest they themselves would be cashiered, and Scotch and Irijh listed in their rooms. So that upon the whole matter, considering the Temper the King was in ever since bis last coming to Town, and that as soon as he arrived, the Priests and Jesuits stocked about him as thick as ever, that they and the FrenchEnvoy were bisepief (if not his only) Cabinet Counsellors, I cannot fee (unless he had taken new Measures) how we could have been secure, or could have relied on any thing he could have farther promised, nay swore to perform*, since no Oath could be more sacred than that at his Coronation, when he swore to maintain the Church ('that is, the Doctrine of the Church) of England, and the Laws of the Kingdom \ if that be a true account of the form of it, which we have in Print.

M. At this rate of arguing, I know not what to fay to you, since this Argument amounts to no more than this,That the King could upon no account be trusted, and therefore was not any more to be treated with. If this were so, to what purpose did the Prince of Orange declare, that he came not to conquer the Kingdom, but only to procure a free and legal Parliament, which could not be called without the King's Consent, and owning his Authority? Neither could they have done the least Act for the Amendment of our Grievances, without his Majesty's Consent. Or to what purpose did the Prince enter into a Treaty with the King's Commissioners atHungerford, if his Royal Word and Promises were not to be relied on ? But if his Majesty could ever be trusted, I fee no reason why he could not have been so, as well since his last coming to Town as before, since he came voluntarily \ and, as I have great reason to believe, with real Intentions, to grant and perform whatever the Nation could reasonably expect for the Redress of their Grievances •, and would have given any reasonable Secority of his performance for the future, without divesting himself of his Royal Power of making Laws, and protecting his Subjects.

But as for the former part of your Speech, whereby you would prove it lawful to resist the King, because you fay it conduced to the common Good and Interest of the Nation, both as to the Protestant Religion and Civil Liberties; this is no more than the old Commonwealth Maxim in other words: which I grant is true, rf the Safety and Preservation of the King or other supreme Powers of a Commonwealth (who, according to your own Principles, are the Representatives of the People, and consequently part of it) be likewise comprehended aud maintained (as they ought to be) in their due Power and Authority. For Bishop Sander{m, in his learned Lectures, bath very well proved, that those cannot be separated from each other, without destroying thrCivil Government, which is all the Security we have for our Civil Properties'and Liberties; and we see in those few days in which his Majesty's Person was withdrawn, when there was no Civil Government in being, that there was greater? rufringement of them, both by plundering and destroying of Ffoules, and spoiling of Parks and Forests in three or four days tithe, by ttte Violence and Fury orwe Mob, than have been committed by the most arbitrary Kings from the Conquest to this day.

- F. You very much mistake me, if you think I maintain that there was never aoy time after the Pr*nce*s Landing that the King might not have been treated withal^ and likewise trusted1 with the Admmistratron of the Government; but then it must have been upon such Terms, as lhouid have secured us for the future from bisecting the like, or worse things over again. As in the first place, he mould have renounced' his Dispensing Power, and that of taking the Excise without Act of Parliament, and levying Chimny-mony upon Cottages and


Ovens, directly contrary to Law. Next he should have disbanded his standing
Army, and kept up no Forces in time of Peace, besides the necessary Guards of
his Person, the number of which should have been agreed upon by Parlia-
ment, which should also have sat once every year, or two years at least. And
lastly, that in respect of the Church, as long as he or his Successors continued
of the Roman Catholick Religion,' the Nomination of all Bishops, Archbishops,
Deans, with other Ecclesiastical Preferments, which are not in the immediate
Disposal of the Lord Chancellor, should have been in the Archbishop and Bi-
shops of each Province; they chusing two, out of which his Majesty should have
chosen one, for to supply each Bishoprick, &c. as it became vacant.

And therefore, for my own part, I was so far from believing all Agreements
with the King to be unpracticable, that there was no body rejoiced more that!
1, when upon his Majesty's first return to London, he so far complied with the
Desires of the whole Nation, as to issue out his Proclamation for a Free Parlia-
ment, and that he sent down his Commissioners to treat with the Prince; and
1 had then great hopes of an Accommodation. But when, instead of this, the
King had burnt the Writs for the Election of Parliament-men, and had sent
away the Queen and Prince, together with the Great Seal, that no more Writs
might be issued, and that before ever the Commissioners could return to Lon-
don, or before any Answer to the Prince's Proposals was given by the King, he
had withdrawn himself, and done all he could to get away into a foreign King-
dom; it was then, and not till then, that 1 saw all hopes of Agreement abso-
lutely desperate. And tho you put a great stress upon the King's last Return,
to Town, which, you suppose, was with a Design to agree with the Prince in
every thing that could be in reason demanded, I can see no cause for your
drawing such a Consequence from it; for if he did not look upon himself as
safe here before his Army was disbanded, he could not think himself more so,
when it was either wholly dissolved, or else was gone over to the Prince. And
therefore I have much greater reason to believe, that his Return again to
Town was only to comply with the present Necessity, and to wait for a fitter
Opportunity to get away, there being never a Vessel then ready to transport
himi especially if that be true which I have heard, that the King declared to a
Person of Credit, That the Queen bad obtained from him a solemn Oath on the
Sacrament, on the Sunday, that if Jhe went for France on Monday, he would not
fail to follow her on Tuesday following. And if this were so, tho he was disap-
pointed in his intended Passage, yet still was he under the fame Obligation to 1
the Queen: nor do I fee any Transaction of his with the Prince of Orange, or
with those of the Church of England, that can persuade me to believe other-
wise; since his long Consultations with the French Envoy, and the Priests and
Jesuits, could only tend to the taking new Measures for his Departure, or else
how he might imbroil us further while he staid, by some faint hopes of new
Treaties and Agreements.

But as for the other part of your Answer, whereby you would confute my Notion of the Lawfulness of Resistance, for the Defence and Preservation of our Religion established by Law, as also of our Liberties and Properties; I Vid.Sand.de hope I shall let you see, that it is not I, but your self, who are mistaken in Oblig.Con-thiS matter. For first, all Writers on this Subject, and even Dr. Sanderson v.e§.', Kps himself, in his Lectures of the Obligation of Conscience, do acknowledge that lect. vil". §.4". flU Civil Government is principally ordained for the Good and Preservation of the People; and that the Good of the Governours is only to be considered secondarily, and in order to that: which if so, I pray tell me whether the Good and Preservation of the People ought not to be considered in the first place, since the End for which a thing is ordained, is always more worthy than the Means by which it is procured. And therefore I shall freely grant, that as long as the Safety and Interest of the King, and that of the People are all one, and can any ways consist together, and that he makes the Happiness and Preservation of the People to be the main end of his Government j I so far agree with you, that the Good or Preservation of the Prince or supreme Powers cannot (nay ought not) to be separated from that of the People: but when they once set up a separate Interest quite different from that of the People (as all Princes do, who turning Tyrants go about to inflave them) they then cease to be the true Heads of that political Body the Commonwealth-, and thereupon


the Community or People become free, and at liberty, either to oppose or remove these artificial Heads, and to set up new ones in their room. So that lince Similies are not Arguments, your Comparison between a Natural and. Political Body, hath only served to impose upon your Judgment in this matr ter •, and therefore I affirm that a Natural and Political Body do wholly differ in this point:. for in a natural Body, the real Good of the Head cannot be separated from that of the Body, nor the Good of the Body from that of the Head y nor yet can the Body alone judge of the proper means of its own Preservation, nor when it rs hurt or assaulted, but by the Head, which is the Principle of Sense and Motion. But in a Political Body it is quite otherwise: for first, the Supreme Powers of a Commonwealth, which you suppose to be Head of this Political Body, do often pursue and set up an Interest quite different from (nay contrary to) that of the Body or People, and that not only to their prejudice, but also sometimes to their destruction. And, secondly, when they do this, the Political Body, or the People will in evident and apparent Cafes judge for themselves, let this Political Head fay or declare what it will against it, and will wflen they are thus oppress'd and enflav'd by those that they have submitted to as their Political Heads, and in such cases of Extremity, endeavour to free themselves from the Severity of their Yoke.

M. Notwithstanding what you have now said, I am not yet convinced, that the King had no real Design to redress our Grievances, and to make a final Agreement with the Prince; for tho I do not deny but his Majesty did converse with some Priests, and others of his own Persuasion, as also with the French Envoy after his coming to Town, yet might this be for no ill Intent: and he did also converse with divers Reverend Bishops and Lords of our own Religion, to whom he still expressed a great Desire or making an end of all Differences between himself, the Prince, and the whole Nation. And this I suppose is the true reason why the Archbishop of Canterbury, (tho he sign'd the first and second Addresses to the Prince, upon his Majesty's first withdrawing himself, yet) has been ever since se sensible of that Mistake he then committed, that he has never appeared or acted in any Meeting of the Peers, nor yet in the Convention. And that his Majesty, even at Rochester., did not lay aside all thoughts of Agreement, and making up all Breaches between himself and his People, I could give you another Demonstration, which is not commonly known, and which I had from a particular Friend, viz.. That the King, during his Confinement there, sent a Lady I could name on a Message to two Reverend Prelates of our Church (together with an Emerald Ring from his Finger, as a Testimony of the Truth of her Commission) to this effect, That his Majesty, being sensible of the sad Condition the Church of England as well as himself was in, and that there was no way so likely for him to get out of it, as by granting his Subjects, and particularly the Church of England,such Securities for the Enjoyment of their just Rights and Liberties, as they could in reason demand; therefore he wholly left it to the Discretion of those Bishops, to . make to the Peers and Bishops that were then to meet suddenly, whatever Proposals they should think reasonable on his behalf, for the Satisfaction of the Church, and Safety of the Nation, and that he would be ready to grant and ratify them whensoever he should be required.

F. This is indeed more than I ever heard before, and can scarce believe: but did the Lady go and deliver her Message? And pray what Answer did those Bishops give to this fair Proposal?

M. Yes, the Lady did deliver her Message, and these Bishops answer'd both to the same effect, That they had a real Duty and Affection for his Majesty, and a great Desire to serve him; but that considering the great Power of the Prince or Orange, and his present Aversion to any Agreement with his Majesty, they very much feared that the Peers would not venture to give the Prince any such Advice, or to interpose with him on his Majesty's behalf: which in my opinion was very meanly and cowardly done of them, not considering their Duty to him as a King, and also those particular Obligations they owed him as their Benefactor, and who had been the greatest means of.their being raised to those Dignities in his Brother's Reign. Now I desire to know, if this Message had received its intended effect, what greater Demonstration his Majesty could have given to satisfy the World that he really intended to set all things Tight again, had he been permitted to do it

F. I wijl norfarther question the Troth of this Relation, tho perhaps I might have sufficient reason for it, since you say you had it from a Person of good Credit, and who was privy to this Transaction; nor yet will I be so inquisitive as to know the Names either of the Bishops, or of the Lady, since you make if a Secret: but yet notwithstanding, I do still very much question whether the King did ever really design to do what he then ofier'd, and did not intend to put a sham upon their Worships, to serve his present Occasion, and to fee if he could divide the Bishops and Peer* of the Church of England from the Prince of QrwgSs Interest: and so by making them offer such Proposals as the Prince should not think fit to agree to, might make them declare against his Proceedings•, which would have created great Divisions and Heart-burnings, between those of the High Cburchipkf ngland Party and the Prince j and thereby have involved us again in fresh Disturbances, of which no doubt tlje King and the Popish Faction were like to receive the greatest Advantage: for ypu know the old Saying,Pivide & itupera.

But to let you see that \ dp not speak without just Grounds for my Opinion, let us examine every Circumstance of this matter: First, if the King had, meant really, is It likely that he would have trusted a Business of that high moment tp a Woman, when he had then the Lords of jiilcibury and A*x*}t% besides other Protestant Gentlemen then waiting on him, and they were much fitter to be trusted than this Lady, let her be whom she will? Or can any one believe if the King had meant reaUy, that he wau\d not have sept his Proposals in Writing, sine? he very well knew from the Prince's Declaration, as well as the Bishops Petition and. Addresses to him, what t^hq whole Nation, and the Church of England in particular, required of him? But forsooth he must send a loose and uncertain Message, which it was in his power to disown whenever he pleased, by faying, the foolish Woman mistook his Meaning-, and.she also might be so much his Creature, as tp take the Fault wholly upon her feAf, whenever it should serve the King's turn so to do. And therefore \ think in was very wisely and honestly done of those Reverend* Prelates to refuse medling in such a ticklish Affair \ since it is plain by his not making any such Proposals to the Prince of Orange himself, or the Lords about him, that he was not to be made privy to }t, but rather it should be carried on, whether he woujd or no, and without giving him any satisfaction in his particular Concern as to the Prince of Wales. And lastly, 1 desire you farther to coofider, whether the King might not hereafter, whenever he had power, have made void whatever Agreements or Concessions he should have then granted either to the Church of England^ or to the Nation, by pleading afterwards, that they were obtain'd by Duress, whilst he was not fui jurit, but under the power of the Prince of Orange.

I have but one thing more to add, which I before omitted, which is to make some Reply to what you said concerning the mischief that the Mob has done upon Houses, Forests, and Parks, since, his Majesty's first Departure: aad therefore granting the Matter of Fact, that much Mischief and Spoil has been committed; yet I deny that it is more than has been done by the most Arbitrary Kings since the Conquest to this day, as yon are pleased to affirm: for I believe, you forget the thirty Parish-Churches, and Towns, which Put Historian tells us, your WiUiam the Conqueror, and his Son Æk/k/, destroyed,, where they enlarged new Forests, and therein acted contrary to their Oaths, like troe deipotick Tyrants. You likewise forget the miserable Spoil and Waste which King John and Henry III. made upon the Houses, Castles and Estates of the Barons and Gentry, of England who opposed them in their unjust and illegal Violations of Magna Chart a \ besides other Tyrannical Actions of the famerkiad. committed by King Edward and Richard II. tpq long here to relate. Bus; if these Mischiefs were done you speak of,, w.hom havei we to thank for it but the King-, who stealing away on a sodden, without leaving, any Orders; foe the Government of the Kingdom, all Persons in Commission* either Civil or Military, doubted, whether theii? Commissions" were not. at an end by, the. King^s deserting, the Government as. he did? Besides,, you very well know that the common People were so enraged against the Popish Faction, for so many insolent


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solent Actions they had committed in King James's Reign, and so many apparent Breaches and Contempts of all the Laws made against them, that you cannot wonder, if when they were rid of the Fear of the Irifli, and of KingJames's Army, they kept their Arms in their hands, and took that opportunity of revenging themselves upon those they looked upon as the Authors of all this Confusion. So that except the rifling of the House and Chappel of theSpanish Ambassador, which I grant was contrary to the Law of Nations^ there were very few Popish Houses plunder'd or spoil'd, but such as had before render'd themselves some ways or other obnoxious to the Laws, by their Apostacy and accepting of Commissions, which they Were utterly disabled by Law to take: and tho to my knowledg the Deputy Lieutenants, and Justices of the Peace, did their utmost in most Counties of England, to quell those Riots and Disorders, yet the Mobile were too much enraged, and too numerous to be commanded, when like a vicious Horse, whose Rider is cast off, they run away with the Bridle in their Teeth. . .

M. I confess you have made the best Apology for the Mob that the matter will bear •, and I cannot deny, in comparison of what has been done in other Nations on the like Occasions, it was a very civil Mob: but yet this may serve to let us fee the Danger of your Doctrine of Resistance, since by the fame Law, by which they then pull'd down and plunder'd the Popish Chappels, and Roman Catholick Houses, by the like Right they might have done the fame Violences upon any other Nobleman's or Gentleman's House in England, whether a Papist or Protestant, that they had a spleen to , since it was but \heir crying out that he was a Papist, or at least a Favourer of them, and then it had been enough to make them suffer, as if they really had been so: as I could tell you of my own knowledg, of a very honest Gentleman of my Acquaintance, who becairfe he. was a true Son of the Church, and had been always a Loyal Subject to his Majesty, and a great Enemy to the Whig Factiod in the Country, and had also put the Law severely in execution against the Dissenters, was like to have had his House plundered by the Fanatick Mob of a certain Town, from which this Gentleman's House was not far distant.

F. If you please to consider it, this is a very unjust Inference from our Doctrine •, for these Actions were not any Resistance of the Supreme Powers of the Nati6ri, but certain violent Actions or Revenges, which the Rabble thought they might take upon those whom they looked upon as publick Ene-» pjies, when there was no Civil or Military Power in being that was of sufficient Strength to keep them in order. But if you please to call to mind my Positions, I do by no means allow the Rabble or Mob of any Nation to take Arras against a Civil Government, but only the whole Community of the People of all Degrees and Orders, commanded by the Nobility and Gentry thereof. And tho I grant the People may be sometimes'mistaken in the Exercise of' this Right (as what is there, tho ever so lawful, that may not be abused ?) yet 1 think you will grant, that the bare Abuse of a lawful thing is no sufficient Ground for the taking away the Liberty of exercising it ^ and I think I have sufficiently proved, that the total Denial of this Liberty would be of far worse consequence to whole Nations and Kingdoms, nay to all Mankind, than the al* . lowing of it (as those of my Opinion do) only in cases of extreme Necessity^ and when no other Remedy will serve.

M. I will not renew this old Dispute again about Resistance; we sufficiently know one another's Minds about it, and are not, as 1 can see, like to bring over either of us to the other's Opinion. But since I know you have studied the Common Laws, and Histories of this Kingdom better than 1, 1 cannot forbear making divers just Reflections upon the late Proceedings of the Convention: for tho indeed they had no Legal Authority to assemble upon the Circular Letters of a Foreign Prince, yet since this was the greatest (if "not the only Liberty we had left us) and the only Means to procure a Settlement* if it had used that Power as it ought to have done, I will not quarrel or dispute the Legality of their Meeting; but then they must use it only for lawful Ends, and such as in their private Capacities they were obliged to pursee if they were able. Therefore when they. assembled, if they would have maintains the due Rights of Monarchy and Succession in this Kingdom, sore they ought, in the first place, to have enquired what was becone of the King,

where where he was, and who forced him to go away: And when they had knowti that, they ought then to have join'd in addressing to the Prince, that since he1 had declar'd that he came not to conquer this Nation, but only to free it from Arbitrary Government, and restore it to its just Laws, there could be no sure Enjoyment of these without the King, therefore he would join with them in sending to him, to desire him to return to the Government of these Kingdoms, and to govern them according to Law. But instead of this they not only neglected taking any notice of the King, as if he were not at all ia being, but have also refused to receive those gracious Letters he sent them, in which he promised to amend all former Error/, and to govern according to Law: which certainly deserved to be taken notice of, since coming from their Lawful Prince, they ought at least to have proposed some Terms to him, before they had proceeded to that rash and unparallel'd Vote, which I desire 1 may read to you word for word, because I intend to examine every Clause of it. Resolved,

that King James II. having endeavoured to subvert the Constitution of this King* dom, by breaking the OriginalContrail between King and People; and by the Ad~ vice of 'Jesuits and other wicked Persons^ having violated theFundamental Laws^ and having withdrawn himself out of this Kingdom} hath abdicated the Governments andthat the Throne is thereby vacant. I shall make bold to consider each of these Clauses, one after another: And therefore first pray take notice, that this Vote of the two Houses cost above a Week's Debate in the House of Lords, which past in the House of Commons in two or three days; because divers of the; Lords, as well Temporal as Spiritual, did with great Honour, Reason and Resolution oppose, and protested against it to the last: and it was carried at last by a very small Majority. But that we may examine each Clause in this Vote: first, it is here only said, That King James II. endeavoured to subvert the Constitution of this Kingdom j not that he really did it, which is as much lower than yon are pleased to put it, as endeavouring a thing falls short of actually doing it: and therefore it is very hard to declare a Prince to have forfeited, or abdicated his Kingdom, for bare designing and endeavouring; since those things that you bring to prove it, may bear a much more favourable Interpretation, especially with Subjects, who are no fit Judges of the private De- . signs of Princes, which may oftentimes tend to quite other Purposes than what we suppose. ,'

As for the next Clause, by breaking the Original Contract; I have heard that divers of the Lords and Bilhops, who were for the King against this new Invention of an Abdication, put the other side very hard to it, to make out this Original Contract, and desired them to shew in what part, either of our Common or Statute Law, it was to be found; for they knew no such Maxim in the Common Law, nor no such Clause in any Statute, antient or modern.

And tho I confess you have undertaken to prove to me, that there is such a thing, yet it has been only by far-fetch'd Consequences, and from the old Form of Government among the Saxons^ of above 600 Years standing; which if there were any such thing, it is now become so antiquated, and out of date, that neither the King himself, nor yet our Lords, Bilhops or Judges, except some few Lawyers of your Kidney, ever before now thought of any such thing. I pass by the next Clause, by the Advice of Jesuits,, &c. because I cannot say by whose Advice those things, which you call Breaches of the Fundamental Laws, were acted: but as for the next, wherein the Violation of these Fundamental Laws is laid to his charge, I confess you have given me a pretty large Catalogue of these Fundamentals at our ninth Meeting, which yet you. cannot fay are to be found together in any one Law \ but are to be picked up here and there out of Magna Chartay and divers other old Statutes. But since the King and Parliament have declared in the first Year of King James I. that there are such such things as Fundamental Laws and Privileges, 1 will not lay there are none; yet certainly any Breach of them by the King was never intended to create a Forfeiture of the Crown: for if it had, I think there would have been but few Kings or Queens ofEngland^ who would not have forfeited, for some one or more of these Breaches, committed in their Reigns, by the Advice of their Judges and Counsellors, as these were lately

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by the King: for I suppose you cannot expect that Princes Ihoold fee any otherwise in matters of Government than by other Mens Eyes, nor hear but by other Peoples Ears. And therefore if the wilful Breach of these Fundamentals must cause a Forfeiture or Abdication of Government (call it which you please) metbinks it had been reasonable for the Parliament to have given a List: of these Fundamentals in seme one Law, that the King might have been sure to have avoided the transgressing of them, and sear of losing both his Royal Dignity, and his Penalty ought also to have been declared.

Bat the next Clause deserves more particular Consideration, ( viz..) And having withdrawn himself out of theKingdom, hath abdicated the Government. Mow I mast confess, it is the first time that ever the King's going away, for fear of losing both bis Royal Dignity and his Life, and that with a declared Design and Intention to return again to the Exercise of the Government, whenever he might do it with safety, mould be judged a wilful Desertion or Abdication. D.D. f.\\7. I am sure these is nothing in our Common or Statute Laws, that can at all warrant this Motion j for Common Law is nothing but antient Usage and immemorial Custom. Now Custom supposes Precedents and parallel Cases; but it is granted on all hands, that the Crown of England was never judged to be abdicated, by the withdrawing of the Prince, before now: And therefore it follows, by undeniable Consequence, that this Opinion can have no Founda- \ tion in the Common Law, because there is not so much as one ruled Case to prove it by.

But if we come to those Precedents we have in our English History, I shall give you such of them as I can remember. We read in the Reign of Edward II. that when he fled from the Forces of his Wife and Son, who had seized the Kingdom by Force, the Kingheing deserted by his Soldiers and Followers, endeavoured to get into the Ifle of Ltmdy for safety j but not being able to make it, was driven back, and taken in disguise at the Abbey ofNeath in Wales. Mow it is certain, that King Edward went away without appointing any Governour of the Realm in his absence; and if this Motion of an Abdication bad been then taken for Law, the Parliament needed not to have been put to their shifts to find oat so many other matters for which to depose him. The next is the like case, of Edward IV. who when the Earl of Warwick had raised a great Army against him on a sudden, and forced him to sly with a few Followers to the Duke of Burgundy, his Brother-in-law, though Henry VI. was again pot into the Throne j yet was it not objected against King Edward, that he had lost his Title to it, or that it was become vacant by his deserting it. And if these two are not parallel Cases, and do not reach the matter in hand, I desire you to shew me wherein they differ from the present Case of the King. /

But 1 am come now to the last Clause of all, That the Throne is thereby become vacant, which seeming only to refer to the Clause of Abdication, 1 think I have said enough already against that Motion; therefore we will admit at present, for Discourse sake, that the King had really abdicated the Government, by deserting the Kingdom, and thereby wholly lost his Regal Power. Now according to the Fundamental Laws and Customs of this Realm, which is, you know, an Hereditary Monarchy, the eldest Son, or other next Heir, either Male or Female, immediately succeeds the King his Father, or other Predecessor, and that without any Interregnum at all; so that the Reign of the Successor immediately begins from the very moment the last King or Queen deceases. This being the settled Law, I cannot see any one step the Convention has made in their whole Proceeding that can be justify'd by the Fundamental Laws of the Land, or the Laws of Equity and justice; for Equity has no quirks in it, and never lies at a catch: Reason is always just and generous, lb. /. i49« it never makes Mens Misfortunes an Accusation, nor judges in favour of Violence \ for indeed what can be more unrighteous (tho in the Case of a private Person) than that any one should suffer yet worse for being injured, and be barred his Rights for the Injuries of others? If a Man should forfeit his House to those who set it on fire, only because he quitted it without giving some formal Directions to the Servants, or be obliged to lose his Estate for endeavouring to preserve his Life; I believe it would be thought a strange piece of Justice in any Law whatever: and if this be proved illegal, the Title of

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your present King and Qpeen being wholly founded upon the Validity of this Vote, will prove so likewise.

F. WeU, you have made a pretty long Discourse in defence of King James's Actions, as well as of his late Desertion, and I have heard you patiently, because I grant you have put a great deal of matter in a few words; and I think all that can be justly urged in your King's defence. I shall therefore begin with the first false step that you say the Convention made* in not inquiring after the Causes of the King's departure, whither he' was gone, and their not voting of an Address to the Prince, to desire his Return. As for the first of these, they were not at all oblig'd to do it, since a great many of the Peers and Bishops, and Members who were then in Town, very well knew the Causes of the King's Departure, and that he either went away voluntarily, or at least without any other necessity than what he had brought upon himself, by his own evil Government, or the ill Counsel of others;which may be easily prov'd by several Circumstances: for it is very well known, that above a Fortnight before the King

went away, the Lord D and Mr. Brent did not stick to declare that it was

necessary the King mould withdraw himself. So that it is plain the Popish Faction knew of it long before it was done, and that it proceeded wholly from their Advice appears further by a Letter to the King when he was atSalisbury, which can be yet produc'd: he was there told that it was the unanimous Advice of all the CatholicksatLondon, that he should come back from thence, and withdraw himself out of the Kingdom, and leave us inConfusion; assuring him, that within two years or less, we ssiould be in such Confusions, that he might return andhave his Ends of us. Now if the King was pleased to take such a desperate Counsellor's Advice, and thereupon do all he could to quit the Kingdom, the Cause of his going is too evident, as well as his design of returning, to havehis Ends of us (as they phrase it) that is, in plain English, to have both our Religion, Liberties, and Properties wholly at his disposal. Nor in the next place needed they inquire where he was, for every one knew he was gone into France, to the greatest Enemy of our Religion and Nation, as well as of the Prince; and therefore it had been altogether unsafe and indiscreet for them to have joined in an Address to the Prince for his return: for whilst he was in such hands, what hopes could we have of his returning to us with better (but rather worse) Affections towards the Church of England and this Nation, than what he carried with him?

But you fay they refus'd to receive his Letters; for my part I do not know that he ever sent any, at least to the House of Commons. 1 heard indeed, that one of the King's ordinary Servants was at the Door of the House with such a Letter, but that he was so inconsiderable, that no body would receive the Letter, or make any mention of it in the House: and it was very strange, that the King should have never a Friend there, who had so much Courage and Kindness for him, as would take the Letter and move for the Reading of it, tho he had run the risque of being committed for his pains: so that the House of Commons is not to be blamed for not receiving a Letter which was never osser'd them. But as for the House of Lords, I have been told it was mov'd to be read there, but it was carried in the Negative, because it was not brought by a Person of sufficient Credit; and therefore it was the King's fault if he would imploy such mean Persons in a matter of that great moment. And indeed if we may give credit to those Copies of these Letters which I have seen, they retain'd rather a Justification of his past Actions, than an Acknowledgment of those Violations he had committed upon our Laws: for as to his promising to govern by Law, there is nothing in that, for he never yet own'd that he govern'd otherwise. 'Tis true, there is in one of those Letters an Expression of his amending fast Errors; but those are general words, and may mean such Errors, as he had committed in the ill management of his Designs, which he would have mended, whenever he was to do the like things again. This may very well be the true Sense of a Letter, it is very likely, written with the Equivocation of the Jesuits, and Advice of a French Cabal.

But you would have him sent for, to return upon certain Terms: I wonder you ssiould be so undutiful, as to urge it j since if he is an absolute King, without any Conditions whatever, he ought certainly to be restored, as KingCharles 11. was, without any Terms or Conditions at all*, and rather so, than

with with them, since he cannot give us greater assurances for his keeping them than he has already broke, unless you can suppose, he would give us the Guaranty of the Pope and the King of France for their Performance: the former of whom believes, that there is no Faith to be kept with Hereticks; and for the latter, supposing the King and him to pass his word for the Performance of these Conditions, pray consider whether the Bond of two Bankrupts can ever pass for a'good Security. And so much for the Letters and Address.

I come now, in the next place, to consider your Exceptions against that Fundamental Vote of the House of Commons, concerning King James's Abdication bf the Government, and thereupon declaring the Throne vacant. To begin with your first Exception, I think it is a very small one, that because this Vote declares the King to have endeavour'd to subvert the Constitution of this Kingdom, that ic was very unjust to declare him to have abdicated the Government for a bare Endeavour, because we are ignorant of the true Ends of the Actions of Princes. To which I answer, that in this Cafe, a bare Endeavour ought to be sufficient; if it be so evident, that there can be no dispute about it: for if he had once actually subverted it, the two Houses could never have met to have made this Vote ^ and if in the cafe of Kings, the very . bare Design or Endeavour to destroy them be sufficient, tho it be never reduc'd into Act, I cannot see why by the same Rule the endeavours of Kings to destroy the fundamental Constitution of a mixt or limited Kingdom should not have the like Construction in respect of them: since according to the Maxim you but now cited (and which 1 have sufficiently justified) that in all such Go« vernments, the Safety and Preservation of the People (that is, of the Government they have eftablifh'd) is to be prefer'd before that of the King alone, when acting in a direct Opposition thereunto ^ or otherwise, it would be in the King's power to-destroy the Constitution whenever he pleas'd: since according to your Doctrine, the bare endeavouring it would be nothing; and after he had once brought it to pass, it would be then too late to retrieve it.

But that the King did really endeavour thus to subvert the fundamental Constitution, appears not only by his closeting and threatning Members to turn them out of their Places, if they would not submit to his Will in taking ossthe Penal Laws about Religion, whereby all Freedom of Voting would have been quite taken away: but when the King saw this would not do, he then fell a new modelling of Corporations, and by bringing Quo Warrantsagainst their Charters, to get it into his own power to nominate, or approve of allMayors^ Aldermen, and Common Council Men, who in those Corporations having the sole Elections of Parliament-Men, he would thereby have had the naming of them also in his power. Your next Exception is against their declaring him to have broke the Original Contract between the King and the People \ for that yon are not yet persuaded there was any such thing, because we cannot shew it you In any Common-Law or Statute-Book, written in express words. As for the Statute-Law, I grant there is no such express Contract to be found in any Statute \ yet doth it not therefore follow, that there is no such Contract by the antient Common-Law of the Kingdom. Now that our fundamental Laws are not all to be found in Writing is no wonder \ since it is a Maxim of our Common-Law, that it was not a Law, because it was written, but it was written because it was a Law •, for it was a Law when it was only in the Breast and Heads of the King and People of this Nation, without any writing at all: and you your self must grant, that if the Hereditary Succession to the Crown be a fundamental Constitution, it is notwithstanding no where to be found in Writings as I know of, but the contrary is asserted by divers Acts of Parliament. But that there is such a thing as an Original Contract, I (hall prove from such a necessary Consequence as 1 think cannot be denied: for as that Statute of King James I. sets forth (which I have now cited) and your self have already acknowledged, there are such things as fundamental Laws (that is, Laws that are as antient as the Constitution of the Government) there must have been also an implicit fundamental Covenant or Contract on the King's part, that he would maintain them without any Violation} and this is that we mean by an Original Contract. And if it were not so, it had been the most foolish and" unreasonable thing in the World to require every King to swear before he


was crown'd, that he would maintain the Rights of the Church, and the antient Laws and Customs of the Kingdom. And that this was antiently look'd upon as a renewal of this Original Contract, appears by all our antient Historians, who till the Reign of King Edw. L never give the next Heir the Title of King, but of Duke ofNormandy, till he was actually crown'd, and had taken his Coronation-Oath: and for this 1 desire you would consult all our antient Historians since your Conquest, beginning with Ingulf and Eadmerus, and ending with Tho.Walsingham.

But as for your Exception against his violating of the fundamental Law, it is yet more trivial: for you cannot deny that there are such things; and if so, surely a King may violate them if he pleases: and therefore your excuse for the King's Breach of them, because they are not to be foand together in any v one place, but are to be pick'd up here and there from Magna Charta, and other Statutes, makes nothing against the validity or the possibility of his knowing them: for as before they were reduc'd to Writing by those Statutes (which only declare and confirm the antient Common Laws and Liberties of England) they existed (as 1 said but now) in the Heads and Hearts of the King and People; so when divers Kings of England by their tyrannical and illegal Practices had made divers Violations of these fundamental Rights and Privileges, there then grew a necessity of new granting and confirming those Liberties, and consequently of reducing them into Writing, which there was not before. And that is the true Reason why Magna Charta, and other Statutes, made in the time of Henry HI. Edw. I. and divers others of their Successors, were made either for their Explanation, or Ratification, according as occasion requir'd\ and as several Princes had more or less violated these fundamental Laws of the Government: for before they had so done, there was no need of the Parliament's making, or declaring any Law about it. But if the King would have but read and considered the Articles exhibited in Parliament against Edward and Richard II. he might easily have seen the Laws all together, that will make a Prince to be declar'd by his Subjects to have forfeited his Crown.

But that King James had before his Desertion endeavour'd to extirpate the Protestant Religion, the Laws and Liberties of the Nation, appears by those . several Articles the Convention has given us in their late Declaration, which, they presented to King William upon their declaring him and his Princess King and Queen of England,and to which I shall refer you, since it is commonly to be had: you know it consists in the recital of divers things, the Violation of which has been always counted in all Kings Reigns a Breach of the Original Contract.

I come now to the last Clause save one you except against, viz.. * That ha* ving withdrawn himself out of the Kingdom, he hath abdicated the Govern4 ment.' Now your main Argument against it is, That the King's Desertion of the Government being only for fear of his Life, or of being depos'd from his Royal Dignity, he could not by his going away be said to abdicate or renounce the Crown, since he went away with an intention to return, and repossess it as soon as with safety he might. To which before I make any answer, I mult freely own, that were this the Case as you have put it, I think there would be no great dispute about it; since 1 grant that a King who is thus forc'd to fly for fear of his Life, ought not to have any such Injustice put upon him. But if you please better to consider it, the Case was quite otherwise: for I have already prov'd that when King James first went away, he had then an Army about him, was free, and in his own Palace, and was at that time in actual Treaty with the Prince;nor had London, nor any considerable strong Place in England then surrenders it self to the Prince: so that if there was any necessity for his Departure, but what he had brought upon himself by his refusing to call a Parliament, burning the Writs, and sending away the Queen - and Child, together with the main Instrument of Government, the Great Seal of England j this must certainly be look'd upon as a wilful Forfeiture or Abdication of the Government: and it is from this first going away, that I suppose the Convention dates his Abdication. And tho it is true, after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popissi Chappels, and Papists Houses; yet was it fign'd by very few of the Council, and almost only by those who had been in some Office or Place of Truest: so that tho he was then own'd by them, yet fince that Order did only serve to (hew his Zeal for the Popisli Party, and was never obeyed or taken notice of by those to whom it was directed; and that neither the Prince nor the City of London owned him afterwards, since it had already delivered it self up to the Prince, and had as well as the Peers invited him to repair to that City; I cannot fee that so flight an Act, as this Order of Council, should be counted a Return to, or a Re-establishment in the Throne: since the King had not only lost the Crown by his wilful Departure, without calling a Parliament, or giving the Prince any satisfaction in the great Business of the pretended Prince of Wales, or the Nation, by repairing those desperate Breaches he had made upon our fundamental Laws; but had also lost his Title to the Crown, by being conquer'd by the Prince in open War, as I (hall prove more at large another time. So that if you please better to consider this Vote of the Convention, you will find that these words, had abdicated theGovernment, do not only refer to the last Clause of his having withdrawn himself out of the Kingdom, but to every one of the foregoing Clauses, viz.. " His having endeavour'd to subvert the Constitution of this "Kingdom, his breaking the Original Contract, and his having violated the M fundamental Laws." So that it is plain, their notion of Abdication was not fixed only in the King's Desertion, or bare withdrawing himself out of the Kiagdom, but from his renouncing the legal Title by which he held the Crown, and setting himself upas a despotick Sovereign, and ruling by a mercenary Army: and therefore all that you have said about the King's quitting the Government with a design to return to it again, as soon as with safety he might, is altogether vain; for as he went away because he would not govern any longer as a King by Law, so hath he yet given us no satisfaction that he would not return again to govern worse than he did before, had he an opportunity so to do;that is (as the Letter I cited but now phrases it) to return, and have his Ends of us. So that this being indeed the Cafe, I think I can very well justify the last Clause in this Vote, that the Throne was thereby vacant.



M. Sir, you have spoke a considerable time, and I doubt more than I can distinctly remember to answer as I should: therefore before yon proceed to this last Clause of the Vacancy of the Throne, the Dispute about which I foresee may hold longer than upon any of the former -, pray give me leave to reply to what you have already said in justification of all the other Parts of this Vote. In the first place I will not deny, but that if the King had once got the power of making Mayors, Aldermen, and iother Officers in Corporations at his pleasure, it would have gone a great way towards the making the Majority of the Parliament-men; nay, I likewise grant, that by his dispensing Power he might have made what Papists, or other Persons he pleased, Sheriffs in any County, who might have made such return of Knights of Shires as he should have thought fit: yet I suppose this would not have been to the Subversion of the Constitution of the Kingdom, which I think I have proved to consist originally in the King alone, before any great Councils or Parliaments were instituted.

And as for those Violations of the fundamental Laws and Liberties of this Kingdom the Declaration instances in, 1 think several of them may very well be justified by antient Precedents and adjudged Cafes in Law; and therefore were so far from being Violations, that they are no more than the King's exercising of his due Prerogative. And tho at our ninth Meeting I had not time so well to consider these Matters, as also because I was not then prepared to defend the King's Proceedings, I shall therefore make bold to examine the most I considerable of those Articles, which the late Declaration supposes did so highly tend to subvert the Protestant Religion, and the Laws and Liberties of this Kingdom. I shall begin with the first, viz.. "His assuming and exercising a *' Power of dispensing with, and suspending the execution of Laws, without "Consent of Parliament." Which Power, let me tell you by the way, was not asserted to dispense with all Laws or Statutes whatsoever, but only such as the Subject has no particular Cause of Action in, and where the Damage that may arise by it doth not concern the publick Safety, of which the King is sole Judge, and not any particular Man's Interest. I suppose you cannot but have read that learned and short account of the Authorities in Law, upon which Judgment was given in Sir Edward Hales's Cafe, written by Sir Edward Herbert, Lord Chief Justice of the Common Pleas, in vindication of himself j wherein I think he proves beyond any possibility of a just Answer, that the Dispensation

^g. <?>7- granted to Sir Edward Hales to receive a Commission, and act as a Colonel of Foot, was good, notwithstanding his not having received the Sacrament, and taken the Oaths and Test appointed by the Statute of the 25th of

ch.ip. 2. Charles II. where he first proves from my Lord Code's Anthority, that it belongs to the King's Prerogative to dispense with all positive or penal Laws, the Penalty whereof is only popular and given to the King. And to Ihew you that my Lord Coke (who was never counted any great Friend to the King's Prero

FoL 1 J, 12. gative) was not single in this Opinion, he gives you also the Authority of the Year-Book of Henrythe Vlith, where it was owned by all the Judges, " That "the King can dispense with all things which are onlyMala Prohibita, and not '* Mala in fe, tho exprefly forbid by Act of Parliament; for tho (fays the "Year-Book) before the Statute, coining of Mony was lawful, but now it is "not so, yet the King can dispense with it." So that, say I, if he can dispense with that which is now made Treason by Edward III. he may certainly dispense with all other penal Statutes of a less nature.

But because I grant there is some Difference between common penal Laws, which barely prohibit the doing of some things under a Penalty j and this Act, in which there is also an express Clause of Non-obstante, that all Licences or Dispensations, contrary to this Act, are declared absolutely void: yet the said Lord Chief Justice likewise proves, that this Clause of Non-obstante is void; and he makes this out, not only from constant Practice in other Statutes of like nature, but also from the Opinions of Plowden, and the said Lord Coke.

Chap. 8. 1. As to the Statutes, " There is a Statute of the 23d of Henry VI. that no V Man shall be Sheriff for abov« a Year. 2. That all Letters Patents, made 44 for Years or Lives, lhall be void. 3. That no Non-obstante shall make them 44 good (which fliews that the Parliament thought the King could otherwise "have dispensed with this Act by a Non-obstante.) There is likewise in this "Act a Penalty of 200 /. and the Party is also disabled from bearing the Office "of Sheriff in any County of England, and also every Pardon for such Offence "shall be void." So that in all respects this Statute answers that of K. Charles the Second now in dispute, only in this the Penalty to the Prosecutor is higher, viz.. 500 /. and the Disability is not only from holding that Office, but any other whatsoever for the future.

vid. the rear- And yet it was resolved by all the Judges of England, in the second of Hen

X^m 2H'7' ry VII. in the Exchequer-Chamber, upon the King's Power of dispensing with this Statute of the 23d ofHenry VI. that the King's Dispensation with that Statute was good; and so it hath been held ever since: for it is very well known that the King hath not only exercised this Prerogative of dispensing with this Statute, for divers Sheriffs holding more than a Year, but hath also granted this Office for Life, as appears by the fame Cafe cited by Plowden (in his Commentaries) between Grendon and the Bilhop of Lincoln, where he exprefly Pag. 502. fays, *« That notwithstanding this Statute of Henry VI. the King's Grant to "the Earl of Northumberland to be Sheriff during Life, ought to have a 11 Clause of Non-obstante, because of the precise words of the Statute before"mentioned; and with such a Clause of Non-obstante the Patent to the Earl 44 was good."

Pag. 18. But yet my Lord Coke is more express in his Opinion concerning these Dispensations • for in his twelfth Report he has these words: "No Act can bind "the King from any Prerogative, which is sole and inseparable to his Person, 44 but that he may dispense with it by a Non-obstante, as a Sovereign Power to 44 command any of his Subjects to serve him for the publick Weal : and this tc solely and inseparably is annexed to his Person. And this Royal Power can44 not be restrained by any Act of Parliament, neither in Thefi, nor in Hyj>o44 thefi, but that the King by his Royal Prerogative may dispense with it j for 44 upon the Commandment of the King, and Obedience of the Subject, does his 44 Government consist." And therefore for this reason he allows this Judgment of all the Justices in England, in the 2d of Henry VII. to have been according to Law, that judged the King's Dispensation, with this Statute of Henry VI. to be good ; and he also instances in another Statute, in the 4th of

Ghap. 3i. Henry IV. in which it is ordained, 44 That no Wflstiman fiiould be Justice, Chamberlain, ** berlain, &cnor any other Officer whatsoever, in any part of Wales, not"withstanding any Patent made to the contrary, with Clause of Non-obstante "licet fttWÆcus natus:" and yet without question the King may now grant those Offices toWelshmen with aNon-obftante. And the said Lord Coke, in Calvin's Case, tells us, " That the fame was resolved by all the Judges of £»£-R.ep. VII. ?. "land, (viz.. in the 2d of Henry VII.) that every Subject is by his natural Al-14' "legiance bound to serve and obey his Sovereign, &c." And he then proceeds to recite the Statute of the 23d of Henry VI. and the Opinion of the Judges above-mentioned, and gives us this Reason for it, for that the Act could not bar the King of the Service of his Subject which the Law of Nature did give unto him. This is there reported as the Sense of all the Judges of England in King James's time; and therefore since this has been ever the Opinion of the Judges, and a constant Prerogative exercised by the King ever since, I desire you would fliew me any Difference, why the King's Dispensation to a Sheriff should be good for the holding of his Office for above a Year, notwithstanding the Statute of Henry VI. and yet a Dispensation for the taking or holding any Office or Command Civil or Military, without taking the Oaths and Tests appointed by the 25th of Charles II. should be declared a Breach of our fundamental Laws: for I can fee no manner of difference between them, since their Preambles set forth the Designs of the Law much to the fame purpose, viz.. ** That of making the Statute ofHenry VI. is the insupportable Damage of t{ the King and his People, Perjury, Manslaughter, and great Oppression." And in the Statute of King Charles 11. the Mischiefs recited are of a much less nature, viz.. '* For preventing Dangers which may happen from Popish ReM cusants, and quieting the Minds of his Majesty's good Subjects." So that the Subject of neither of these Acts being Mala in fe, but only Mala prohibit*., . if the King might dispense with the one, he may certainly do as much with the other for the fame reason.

Therefore if this be so, I need not fay much against the second Article in the Declaration of the Convention against the King's Proceedings, viz.. " His "committing and prosecuting divers worthy Prelates, for humbly petition** ing to be excused from concurring to the said assumed Power." For if by the Opinion of all, or most part of the then Judges, the King's Power of dispensing with this Statute of King Charles II. was good, it was certainly much more lawful in dispensing with all other Statutes against Papists ani Nonconformists, since they are no more than bare penal Statutes, without any Clauses of Non-obfiante. And tho I grant that King Charles'sDeclaration giving a Toleration to Papists and Dissenters, by dispensing with all the Acts against Masses and Conventicles, were declared illegal by the House of Commons in the 7 year 1672. and that the King, to get a good Sum of Mony, did recal that Declaration \ yet it was never declared by him to be illegal, only that it should not be drawn into consequence for the future: and you know an Address or Declaration of the House of Commons alone, was never looked upon as a Declaration of the whole Parliament. And the Opinion of the Judges hath ever been, that no Statute or Judgment of Parliament can bar the King of his lawful Prerogatives (of which this of dispensing with such penal Laws is one) so that.it was certainly very undutifully done of the Bishops, not only to deny distributing his Majesty's late Declaration for Liberty of Conscience in their several Diocesses, but also to have the Confidence to give him a Petition, wherein they desir'd him not to insist upon the Distribution and Reading of it, because it was against Law: tho admit it were, being no way contrary to the Law of God, they ought to have obeyed it, since their bare distributing of it had not rendered it the more lawful. So that it being a great Misdemeanor in these Bishops to deliver this Petition, their Commitment and Prosecution at Law for the same was also legal, and what the Privy Council told his Majesty he might well justify: so that if the King was too severe in this matter, they were to bear the blame, and not he.

F. I cannot deny but you have given a just account of the main Arguments made use of by the late Lord Chief Justice Herbert, in defence of the King's dispensing Power, and of giving his own Opinion for it j but I think, notwithstanding aU that Gentleman has written in defence of it, the King's Declaration of Indulgence, and his Dispensation grounded thereupon, to be both E.C.p. 33. of them void and contrary to Law: and for proof of this, I sliall first give h. 6. c. 14. y0U the opinion both of Divines and Civilians, concerning this matter. As Disp.i,2.c.2. first StfArtz.^ in his Learned Book de Ltgibtu, faith, "That he hath the ** Power of Dispensing, quiUgtm tulit, quia ab ejus voluntate & potentia pendat." But Vafquts another Learned Spanifli Casuist holds, that no Prince whatever hath a Power to dispense with his Laws according to his Pleasure, or because that they are his Laws: nay, he also denies such an unlawful Dispensation to be valid. But to come to those of your own Faculty,H.Grotim says De acquit. Ind. exprefly, Dijbenfare, hoc est, lege solvere, is solus pttefi qui ftrends, abrogandaquecap. 2. itgU petestatem habet. Puffindorf affirms, w That none can dispense with a De jure Nat.« LaW> Dat fucn 3Snave tne power of making it." And the very Reason of I u^T" I** tmng sufficiently shews it, for to dispense is to take away the Obligation of the Law in respect of them to whom it was granted and whoever takes it away, must have the power of laying it on, and there is no difference between the Dispensation of a Law, and the Abrogation of it: but a Dispensation is an Abrogation of it to particular Persons, while others are under the Force of it j and an Abrogation is a general Dispensation, that being no more than a Relaxation of the whole Law, to those Persons who were bound by it before. Therefore if the King have not the whole Legislative Power of this Kingdom (as 1 think I have already proved he has not) he neither can have the sole Power of dispensing with Laws.

But to answer your main Argument, that the constant Practice hath been otherwise for the space of above 200 Years, and that confirm'd by the Judgment and Opinions of all the judges, and most considerable Lawyers inEngland ever since that time: to answer this 1 fay, it is necessary, that I give you a o. E. J. pa". mort History of the dispensing Power, and the Original of Dispensations, 66. & dein.3 with Non-obstantes, which are so far from being as old as your Conquest, that vid. Mat.par. the first News we hear of them, is from Mat. Pariswho exprefly tells us, P- *IO» they were first introduc'd by the Pope, and were afterwards inserted into the 818 ibid-'p' KinS'SPatens and Protections, in imitation of them, by King Henry ill. so 854! '75' they were never made use of by any of our Kings to elude Acts of Parliament, till after the Statute of Mortmain, which was made in the seventh ofEdward f. Which first Attempt must needs be illegal, because contrary to Magna Chartat Ch. 36. which is the first Law which prohibits Alienations in Mortmain; and was not only sworn to when enacted, bat is also confirmed by many after Acts of Parliament, and order'd to be observ'd in all points: insomuch that when the Clergy petition'd King Edward I. for a Relaxation of this Statute of Mmmain, his answer was, that he could not doit, because it was enacted Com' Hen. Knigh- muni Confilio Magnatum fuorum, & fine eorum confilio non eratrevocandum. And ton, p. 2502. I grant that such was the misguided Devotion of those Times, that such Nonm Dec. Scnp. eyfiantes were Qften obtained, as appears by the Patent and Charter-Rolls in the Tower, from the eighth ofEdward I. downwards, abounding with special Licences to purchase and hold Lands, &c. Statute de terris &tenementis in manum mortuum non ponendis non obstante. And yet were not these Licences accounted legal, or the Clergy safe in purchasing such Lands, Rents, Advowsons, &c. by virtue of them, till it was enacted and ordained in Parliament in the eighth chap. 3. of Edward III. to this effect; "That if Prelates or other Religious People "have purchased Lands, and the fame have put to Mortmain, and be impeach'd "upon the fame before our Justices, and they shew our Charter of Licence, "and Process thereupon, by an Inquest of ad quod damnum, or of our Grace, "or by Fine, they (hall be freely left in peace, without being further im"peach'd for the fame Purchase,&c" Bat Non-obflantes with the Statute of Mortmain having been introduc'd, as aforesaid, tho undeniably illegal at first, and gaining afterwards a Countenance from this Act of Parliament, have I suppose given occasion to the dispensing with other Acts of Parliament also, tho at first they were very rare, and seldom occur in the old Books, but are more frequent in the new; and that our Judges and Courts of Justice have invented little Distinctions betwixt Malvm in fe, and Malum prohibitum, betwixt Laws made pro bono publico, and Laws of more private regard; betwixt Laws in which the King's Profit and Interest is concerned only, and Laws in which the Subjects have an Interest, and are intitled to an Action as the Party grieved: yet the Cases that have hitherto come before them judicially, have



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been Questions upon Dispenfations*granted to particular Persons, to exempt them, fro hie & nunc, from incurring the Penalty of such and such a Law j but a Dispensation and Suspension of so many Laws at a lump (as the late Declaration of Indulgence did take upon it to do) has been so far from receiving any countenance from Courts of Justice hitherto, that it has always been a fatal Objection against any particular Dispensation of it •, it was such as consequently eluded and frustrated the whole Law, for that such a Dispensation is in effect a Repeal of the Law it self: And therefore in that great Case of Thomas and Sorrel, in the Lord Vaughan's Reports, where Dispensations with penal Statutes are in some Cases allowed ; yet it was then agreed by all the Judges, that the King had no power to suspend a Law for ever.

But to let you see how jealous the Parliament, and in particular the House of Commons, have ever been of trusting the King with an unlimited power of dispensing with penal Statutes, with Non-obstantes, appears also by several other Laws of great moment, and in particular from the Statutes of Provifors and Pramwtire; and I could shew you from divers Records of Parliament, in the Reigns of Richard II. Henry IV. and Henry V. that they never intrusted the Crown with an absolute power of dispensing with those Statutes but only for a time, as till the next Parliament or longer, as they thought fit. But since I have not now so much time to give you so many Precedents at length, I shall only tell you, that as to the main Instance you rely upon, viz.. the King's dispensing with the Statute of Sheriffs, at first it was not taken for Law, as appears by several Acts of Parliament, as in the 28th ofHenry VI. whereby those Sheriffs that had held their Offices for more than a year are pardon'd: likewise in the Act of Edward IV. there is a like Statute pardoning those Sheriffs, "who by reason of the late Troubles in the Realm, had held for * above a year •," yet nevertheless it confirms all former Acts concerning Sheriffs for the time to come. And this held as far as the 6th of Henry VIII. which is long after the Judgment you mention in the Exchequer-Chamber, of all the Justices in England to the contrary: for there was then an Act made, 44 which, reciting all the former Statutes about Sheriffs as then in full force, it 41 enacts that the Sheriffs and Under-SherifFs of the City of Bristol, may con44 tinue to occupy their Offices, in like manner as the Under-Sheriffs, and o44 ther Sheriffs Officers in London do, without any Penalty or Forfeiture for 44 the fame, the said Acts or any other Acts to the contrary notwithstanding.'* From all which Statutes I think it sufficiently appears, that neither the Sherifts of those times, nor the City of Bristol, nor the whole Parliament, when that Act was made, did believe the King had power to dispense with the Act of the 25thof HenryWl. concerning Sheriffs*, for if they had, certainly it had been much easier and cheaper for them to have obtained the King's Dispensation, than to have got an Act of Parliament for it. *

M. I believe you may bave.cited these Statutes right enough, but yet I think they are not sufficient proof against so solemn an Opinion, as that of all the Judges in the Exchequer-Chamber, 2d of Henry VII. And whatever the Parliament might have declared in the case of this or that particular Statute, I confess carries some Authority with it •, yet ought it not to be countervaled by so solemn a Judgment as that of all the Judges and Lawyers ofEngland, together with the King's constant Exercise of this Prerogative, not only since, but before that time, and that without any Question or Dispute with the Parliament about it', as in the Cafe I have already put of the Statute, that forbids any Welshman being an Officer in Wales. To which I may add divers other Cafes of the like nature, such as the Statute against a Judg's going the Circuit in his own County, as also those Statutes that prohibit the King from granting Pardons to Persons convict, nay condemned for Murder, with several other penal Statutes I could name: for tho the King's hands are tied up by particular Clauses of Non-obstante, yet has his Majesty, and his Predecessors, at all times exercised their Prerogative of dispensing in all those Cases, notwithstanding those Acts of Parliament, with Non-obstantes to the contrary. And tho I grant you have given me several Precedents of the Parliament's sometimes restraining the King in this Exercise of the dispensing Power; yet they are all, or the greatest part of them, before the beginning of Henry VlFs Reign, when I grant the Law first began to be settled in this matter. And since the

•G g g g Judgment Judgment of all the Judges in the ExcheoiKr-Chamber is the only Rule of Law we can have in the Intervals of Parliament, and this Cafe of Dispensations being by them adjudged, and ever since settled and owned for Law, without the least Dispute, I can see no reason we have to question it now.

But as for the Statute of the 6th of Henry VIU. which you urge as a Prece-' dent to the contrary since the Reign ofHenry VII. I think it will not reach the Point in question: for the Act you now cited seems to me no more than a private Act for the Sheriffs of Bristol alone, who being it seems afraid to rely upon the King's Dispensations, because they thought them too, chargeable to be taken out as often as they should have need of them, did think it a great deal less Charge and Trouble to pass an Act of Parliament to indemnify themselves, which I grant put that matter beyond all dispute. But since this Act of Henry VIII. 1 find no Contest between the Parliament and the King about his Power of dispensing with penal Laws, till the Reign of King Charles II. when I grant the House of Commons did address his Majesty, that penal Statutes, in Matters Ecclesiastical, cannot be suspended but by Act of Parliament ^ as also the last Address of the House of Commons in 1685. against the Kind's dispensing with the Officers of the Army, their holding Employments without taking the Oaths and Test according to the Act, whereby they were appointed. But these being only against the King's Power of dispensing with Laws Ecclesiastical, as concerning Liberty of Conscience, can no ways be extended to their excepting against the King's Power of dispensing with divers other penal Laws (1 will not fay all) which have Non-obstantes in them.

F. Since I fee not only your Opinion, but also that of most of the Judges and Lawyers of England, concerning this matter of the King's Dispensations with penal Laws, has been chiefly (if not only) founded upon that Opinion of all the Judges in King Henry VII's time, give me leave to examine the validity of that Judgment; for if that can be proved not to have been according to Law, or else never given at all, I suppose you must grant that my LordCoke, and all others who have founded their Opinion upon this adjudged Cause of Henry VII. were mistaken. .43. Now pray give me leave to argue a little with you in point of Reason: If a Non-obfiante from the King be good, when by Act of Parliament a Non-obfiante is declared void, what doth an Act of Parliament signify in such a Case? Must we say it is a void Clause? But then to what purpose was it put in? Did the Lords and Commons, who drew this Act of the 23d of Henry VI. as also those Acts concerning Sheriffs, understand this Clause of Non-obfiante to be void when they put it in? If it were so, and contrary to the King's Prerogative, why did the King pass this Act without any Refusal or Protestation against it ? Certainly it was then thought otherwise, and if so, we have the Authority of the two Houses of Parliament against the Opinion of the Judges. But if it were not a void Clause then, how came it to be so afterwards? Pray fay what Alteration has been made in the Laws of England by Act of Parliament as to this Point, since the time that these Acts have been madej for if not, how comes a Clause that had force in 23 Henry VI. to have none in 2 HenryVII? Could the twelve Judges in the Exchequer-Chamber, by giving their Opinions, destroy the force of an Act of Parliament?

M. I do not fay they can, only I affirm with my Lord Coke, and all the Judges, " That no Act can bind the King from any Prerogative which is inse** parable from his Royal Person, but he may dispense with it by a newObfian"te, as a Sovereign Power to command any of his Subjects to serve him for M the piiblick Weal." Nor can this Royal Power be restrain'd by any Act of Parliament: And upon this ground it is that my Lord Coke, in the 12th Report (from whence I have taken this Conclusion) maintains, that such Dispensations made by Sheriffs are good ; and upon the fame ground the Dispensation lately granted by the King to Sir Edward Hales, and all other Popish Officers and Ministers, as well Civil as Military, must be also good.

F. But admit I shew you that there was never any such Judgment in the Exchequer-Chamber, in the 2d ofHenry VII. as my Lord Coke and late Lord Chief Justice Herbert suppose j will it not then follow, that all their Arguments, that are wholly founded upon this Statute, will faU to the ground?

M. Yes',

As. Yes, indeed, that will be something; but how will you prore that? Can you believe lo . many learned Judges should be mistaken in this matter, and those of your Opinion only should make this discovery ? ,.

. F. I do not desire you should believe me, but your -own,Eyes, and thore- Vid.2.H.vn; fore look upon the Year-Book it self. Here you see that it is indeed so far Ter. M. cast. true, that all the Justices were of Opinion* that the Grant of the Sherissdom 20 of the County of Northumberland, to the Earl of that County for Life, was good, but do not tell us all the Reasons whereon their Judgment was grounded i tho it seems to have been because the Sherissdom of that County had been commonly granted for Life, before this Statute of Henry VI. was made; as appears by these.words in the Year-Book: For it (viz.. a Sherissdom) is such a thing as may he well granted forTerm of Life, or Inheritance; as divers Counties have Sheriff's by Inheritance, which began by the King's Grant.Then was shewn a Resumption (/ suppose it meant an Aft of Resumption of the Shcrijfalty) as appears by the following words i and then was shewn a Proviso for it, Count.de N. and if so, the King had a Right to grant it only for Life again. Bat none save Radclif (one of the Barons of the Exchequer) cites the Statutes of the 28th and 42d of Edward III. against Sheriffs holding for above a year; but he doth not cite this Statute of the 23d of HenryVI. at all. Nor doth he, or any other of the Judges, nor the Court, ground their Opinion upon any Non-obstantesexpressed in the said Acts; for if you please to consult them, you will find there is no Clause of Non-obstahte in any of them, before the 23d of Henry VI. which is not at all mentioned here: therefore I wonder howFitz.-Herbert, in his Abridgment, comes to vary so far from the Year.Book, from whence he must have took it, as to make the Judgment to have been grounded npon the Nonobftante in that Statute of Henry VI. for none butRadclif speaks any thing of the Patent's being good with a Non-obstante to those Statutes; and the Court, in all the rest of the Cafe, agree the Patent to be good* by reason of the said Proviso in an Act of Resumption, and then fall into Debates concerning the other Point, how this Patent was to be understood.

M. I must confess if this be so, as it seems to be prim* facie, I wonder my laord Coke, and other learned Lawyers, have laid so great a stress upon, and drawn so many Arguments from this Judgment of the Judges •, tho I must needs also tell you, that tho only Radclif insists upon the Non-obstante, yet since the rest of the Judges did not contradict him, it seems to me that they all concurred with him; since, according to the Proverb, Silence oftengives Consent

But this much I suppose yon cannot deny, that ever since Henry VHIth's time at least, Sheriffs have been frequently continued for above a year, and the Judges have been also dispensed with to go to the Circuit in their own County 5 and Welshmen have been commonly made Judges and other Officers in Wales^ by Virtue of the King's Dispensations, notwithstanding the particular Clauses of Non-obstante, in the Statutes of Richard II. HenryIV. and Henry VI. by which they are expresty prohibited.

F. I do not deny what yon have now said as to matter of Fact, only let me tell you, I conceive that the Reason why the King has taken upon him to dispense with those Statutes you mention, was, because the Causes for which they were first made, have long since ceased. For when those Statutes against Judges going the Circuit in their own Counties, and Sheriffs holding for above a year were made, both the Judges and Sheriffs were found (the one by going their Circuits in their own Counties, where they had great Interest and Acquaintance) to have too much awed the common Juries; and the other (by their great Estates and Commands in the Country) to have made partial Returns of Juries, and also by their long Continuance in their Office, to have learnt a Trade of oppressing the People. So when by the stop that was put to those Abuses by these Statutes (you have mentioned) there was no need of a strict Observation of these Laws; and also when after the Civil Wars between Tork and Lancaster, and all things became settled under King Henry VII. (who was of a Welsh Family) there was then no more need of observing the Statute of Henry IV. against Weljhmens bearing Offices j especially after the St*» tute of the 27th of Henry VIII. when Wales became incorporated with England, and had by that Statute a Right conferred upon it, of sending Members

Gggg2 to

to Parliament, tho the Parliament might nos think fit, or at least forgot to repeal them r and yet finding that the Kingdom receiv'd no Prejudice, but rather Benefit by such Dispensations; and not caring to quarrel with their Kings, for sometimes using a Prerogative by which they were rather benefited, than grieved; those Dispensations have ever since passed, without any complaint in Parliament: which would certainly have been before this time, had they found the fame Grievances and Reasons to have still continued for the strict observance { of those Laws, as there were at first for the making of them. Tho if they will

have my private Opinion, I think it had been much better, for avoiding all Disputes between the King and Parliament, as also for preventing the evil use that has been made of those Precedents, to advance the King's Prerogative tp what height he pleased \ rather to have repeal'd all those obsolete Statutes, than to have suffer'd them still to continue, v But to let you see that the distinction of mala in set and m.iLi prohibits often fails, I think I can prove it to you by divers undeniable Instances: for there are divers things which are not mala in ft; that is, neither Natural nor Moral Evils, either by Common or Statute Law j and yet being declar'd common Nusances, are only mala politica & introdutlai which the King cannot dispense with at all, only because they are prohibited. Thus I the King cannot dispense with the least Nusance to the High-ways, as by laying

Dung in them, or the like; tho Men may very well pass through them for all that. So likewise by the Statute of the 18th of King Charles II. the bringing I over of IriJIj Cattel, is declar'd a publick Nusance, and therefore the King can

not dispense with it j yet no Man will say it was so before that Statute was Vaughan's) macje. anc| therefore it was well observ'd by the late Chief Justice Vaughan^ in 31». tnat Case of Thomas and Sorrel I now mention'd, that publick Nusances are not mala in fe, but mala politica & introduEla. And when a thing is said to be prohibited by the Common-Law, the meaning is no more, but that the antient Record of such a Prohibition is not to be found.

M. I grant indeed the Author you have now cited in that Cafe, very well restrains the King's Prerogative, as to things that concern the Right or Property of others; and therefore the King cannot pardon the Damage done to particu*• 333> 334- lar Persons, where the Suit is only the King's: but for the Benefit and Safety » of a third Person, if he dispenses with the Suit, it must be by the consent and

agreement of the Party concern'd. And again, penal Laws, the Breach whereof is to any Man's particular Damage, cannot be dispensed with; and the r* 2* Chief Justice Herbert himself owns, that the King cannot dispense with Laws which vest the least Right of Property in any of his Subjects.

F. Very well then, we fee the Prerogative is bounded where the Interest of particular Persons is concern'd: But doth the Law take more care of them, than of the publick Interest, and the Concernment of the whole Nation? And thisr Act against Papists holding Employments was certainly made pro bonopublico, to prevent the danger that may happen from Popilh Recusants, who were before prohibited by divers Statutes to hold any Offices or Employments, before they had taken the Oaths of Supremacy and Allegiance. Therefore I cannot see how such a Dispensation can be good, the Breach whereof must tend so much to the danger of the Commonwealth; if, according the Rule you have laid down but now, no Law can be dispensed withal, that is for the Benefit and Safety of a third Person, or where the Breach thereof is to other Men's particular Damage. Now certainly whatsoever is prejudicial to the publick safety of the Commonwealth, must be also prejudicial to the safety of every private Person, and the Breach thereof does tend to each Man's particular Damage in the Nation, if they are once generally dispensed with. • M. I grant this is the most natural Objection you have made, against the P. 341,342. King's Power of dispensing in this Case: but my Lord Chief Justice Vavghan in the Case already cited, answers this Objection very well: No offence, fays he, against a penal Law could be dispensed with, if the reason of not dispensing were because the Offence is contra bonum pubUcum; for all Offences against penal Laws are such: and tho such Laws are pro bono publico, they are not Laws pro bono fingulorum populi (which are the Laws which the King cannot dispense with) But pr<t bono populi complicate as the King in his discretion shall think fit to order them for the good of the whole. In this Nation the Estate of



every Tater-familias may be said to be pro bono communi of his Family, which yet is only at his discretion aud management} aud they have no Property in it, tho they have Benefit by it. And therefore it is but reasonable, that as to the bonum public umsingvlorum the King should not dispense, because every Man hath a particular Interest in it, and they are Judges of it themselves: whereas in those Acts that are pro bono populi complicity as these Acts of Sheriffs, and for taking the Oaths and Test arej the King is the sole Judg in what Cafes they concern the publick good of the Commonwealth, and where they do not.

F. I confess this is a subtle piece of Learning; but pray let us take it a little j. E out of these Latin Terms, and then the meaning of it is no more than this, That the King can do nothing to the prejudice of the People in their private Capacities, but he can do what he will with the Publick. 1 thought indeed a Prince had been in the first place bound to regard the Good of the Publick, and to take care of the salus populi complicati (as you call it) that is, as they are imbodied together, above the private Good or Interest of particular Men, which you call bonumfingulorum populi; which can never be preserved, but where the Laws and Statutes ordain'd for the publick benefit and security of the Commonwealth have been generally broken and violated by common and easy Dispensations, and have been abused to that degree, that we lately saw a Popish Lawyer, who was thought any thing fit to be a Judge, might fit upon the Bench, upon the Lives and Estates of Protestants i every Deputy Lieutenant, Justice of Peace, or other Officer, either Civil or Military, might be sure of being prefer'd, if he either was a Papist or Fanaflick; every Minister or Parson of a Parish, who would renounce the Orders of the Church ofEngland, might hold his Living without doing any of the Spiritual Functions \ and all this by virtue of these Dispensations, grounded upon the distinction of the publick Good of the whole People taken together, as different from that of the publick Good of each particular Person.

But it seems strange to me that our Ancestors should take such care of the ?. E. Laws concerning the Measures of Bread, Drink and Flesh, as that the King cannot dispense with them, because they respect the common Good of the whole People, and of every particular Person i but as to the Laws which concern the publick Good of the whole Nation in general, they were content to leave them to the sole Will aud Pleasure of their Prince. No one that reads the History of our Ancestors, and the Contest they had with their Kings to obtain these publick Liberties, could ever entertain such a thought concerning them. But that the Laws concerning the Oaths and Test, are not only for the publick Good of the Commonwealth, and that the King is not the sole Judge when they may be dispensed with, appears plainly by this, that the Law for taking the Oaths and Test, has given every particular Person a Right to prosecute any one that hath acted contrary to it, and the Penalty of 500 /. is given wholly to the Prosecutor: which shews plainly, that the Intent of the Law was to make it every Man's particular care as well as benefit to see it observed; and consequently since every particular Person has an Interest in it, it cannot be dispensed with by the King.

M. Since it grows late, I shall not further dispute this Point with you, of the King's Dispensing Power, tho I had a great deal more to urge in defence of it; for notwithstanding all you have said against it, it is now counted so inherent a Prerogative, and in many cafes so necessary for the Benefit of the Subjects, that the Convention it self, after a great deal of dispute about it, tho they had condemn'd the King for assuming and exercising a Power of dispensing with, and suspending of Laws without consent of Parliament \ yet in this very Declaration, when they assert their antient Rights and Liberties, they only declare, ** That the pretended Power of dispensing with Laws, or the Execuu tion of Laws, by Regal Authority, at it hath been assumed and exercised of "late, is illegal:" which shews that they do noE go so high as you, who seem to be absolutely against any such thing.

F. You very much mistake me if you say so: for tho I maintain that antiently, till about the middle of the Reign of King Henry the Third, there were no Dispensations at all, either because they were not thought necessary, or else that Penal Laws were not then multiplied to that degree they have been since; yet seeing they, have been now so long in use, and do (I grant)


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often tend not only to the Benefit of the Ring, but also of the Subject, I dor no ways condemn them, provided they are restrain'd within those due Limitd prescribed by the late Chief Justice Vaughan in the case above-mention'd j and that they do not tend to the common Mischief and Ruin of the Protestant Religion establifh'd by Law, and the Rights and Liberties of the Subject. Kay, 1 grant in times of necessity, as in the coming over of the Duke of Monmouth (for example) the King might perhaps justify the granting Commissions to Popish Officers, and therefore the Parliament did very well to offer the King to prepare an Act to indemnify them from the Penalties they had incurred by acting without taking the Test: So that when the King utterly refused this reasonable Proposition, and chose to dissolve the Parliament, rather than he would permit them in the least to question this usurped Power, what could be farther expected, than that he was resolved to execute that, as well as all other Dispensations, whether the Parliament would ot not, as we afterwards found he did?

But admitting he really had been endued with this Prerogative, yet Was it still under a Trust not to abuse it so notoriously as he did, by granting it to every Apostate PersoD, Officer, or Judge, that required it; and I doubt not but if he had govern'd a little longer, we might have found it granted to Bishops likewise, as soon as he had thought fit to make them of his own Religion: for tho the King (for example) has an undoubted Prerogative of pardoning Robbers and Highway-men, yet if he should so far abuse his Prerogative as to pardon every Robber that was taken, I leave it to you to consider, whether such a Government could long subsist. 1 shall not apply this Cafe to these Dispensations, because they fay Comparisons are odious.

These things being apparent, I think it would be very easy to vindicate that Clause in the Declaration concerning the Bishops, if the King's Declaration was unlawful (as certainly it was) not only by reason of the Dispen^ ling Power (we have been now disputing about) but also for one main Clause in it, which I have yet but lightly touched j which is this: " We do like44 wise declare, it is our Royal Will and Pleasure, that from henceforth the u Execution of all, and all manner of Penal Laws in matters Ecclesiastical, ** for not coming to Church, or not receiving the Sacrament, or for any other "Non-conformity to the Religion establifh'd, or for, or by reason of the Ex** ercise of Religion, in any manner whatsoever, be immediately suspended, and *f the farther Execution of the said Penal Laws, and every of them is hereby ** suspended." So that by this Clause in the Declaration, not only the Laws of our Reformation, but all the Laws for the Preservation of the Christian Religion in general were suspended, and become of no force •, since every Man might not only chuse whether he would come to Church or not, but also all Priests and Ministers were hereby indemnify'd from either praying or preaching in the Churches, as well as their Parishioners freed from hearing them: So that not only all the Laws of our Reformation, were at once suspended, but those of Christianity it self by these words, (or for, or by reason ofthe Exercise of Religion in any manner whatsoever) nor is it confined to the Christian Religion, but all other Religions (even Mahomet anifm it self) were thereby permitted.

But perhaps it may be urged, that the Execution of the Law is only hereby suspended, and not the Law it self. But this is a mere Evasion \ for what is the external Obligation of any Law, but its Execution in order to Obedience I which if it be once taken off, there can only then remain the naked internal Obligation in foroconfeientia; and with how few this is of any weight, you understand so well, I need not tell you.

So that by this Declaration the King took upon him to suspend above forty Statutes at once concerning our Religion j and if he could do so, 1 desire to know whether he might not the next Week have suspended forty more, even concerning our Civil Properties likewise j and so might have proceeded till he had suspended all the Laws in the Statute Book. Nor are those Laws suspended for any limited time, but during the King's Pleasure j and this not only a bare suspension for a time, but in effect a downright Abrogation of them: For what is an Abrogation of a Law, but the taking away the Force of these Statutes, without any time limited? And if this be not to usurp the sole Legislative


Power, I know not what is; and if this were once commonly put isl practice in effect in all Cafes, Acts of Parliament woi Id signify nothing, and the Legislature would be wholly in the King: this was so evident, that it was granted Mr. Justice by one of the Judges at the Trial of these Bishops. Powel.

This being the Truth of the Cafe, I cannot fee wherein the Bishops that presented this Petition to his Majesty acted at all undutifully towards him, as you suppose \ for being by the King's Order in Council commanded to distribute this Declaration to their inferior Clergy, which they knew in it self to be unlawful, their Distribution of it would not only have been looked upon as the owning of an unlawful thing, but would also have drawn the inferiour Clergy into the fame Snare; who if it were unlawful, ought not to have publifh'd to their Parishioners a Licence to act directly contrary to Law: and therefore the Bishops were not only under the Obligation of that dreadful Charge and Imprecation, express'd in the Statute of Uniformity, in the first Chap. 2. of Queen Elizabeth, if they did not endeavour the utmost execution thereof through all their Diocesses and Charges i but being also pressed upon to distribute it contrary to their Consciences, what could they do less in order to excuse themselves from this unlawful Command, than privately to tell the King the reason of their Disobedience; and also humbly to petition him not farther to insist upon it, either in respect of themselves or their inferiour Clergy? And you know that it was allow'd by your Civil Law for any Judge, or Prator, rescriberePrincipi, if he were by him commanded to act contrary to any former Law or Edict of the Emperor.

M. I will not deny that, but yet methinks the Bifliops in this cafe would have acted more respectfully and discreetly, if they had forbore petitioning j and though they had refused to obey the King's Declaration, yet needed they not to have declared against it till the Parliament met, when I grant they might freely and safely have done it: or else if they would have petition'd at all, it should have been in more dutiful and respectful Terms, than by telling the King that his Declaration was illegal, and that.they could not in Prudence, Honour or Conscience, so far make themselves Parties to it, as to distribute it: and it was this alone which was looked upon as seditious, and for which his Majesty thought fit to have them indicted in the King's Bench, as a matter of high Misdemeanour.

J7. I confess you have said in short the Sum of what was urged against them by the King's Council at their Tryal, but all this was very well answer'd by one of the Judges themselves; first, That it would have been too late to have stayed for a Parliament, because the Declaration was to have been distributed by such a time j neither could they have acquiesc'd under it and submitted, for that would have been to run into a contempt of the King's Command, unless they had also shewn the Reasons why they could not obey him: and since this could be done no other way than by Address or Petition, what other Reasons could they give, but that they thought it had been more than once declared illegal in Parliament j and therefore that they could not in Prudence, Honour andConscience obey it? Not in Prudence, because they were liable to answer it in Parliament j not in Honour, because it is unworthy the Character of Bishops and Lords of Parliament to act any thing that may make them look like Flatterers or Time-servers\ not in Conscience, because of the Imprecation they lay under by the Act of QueenElizabeth \ as also because no Man can with a safe Conscience give his Approbation to that which is contrary to Law.

And therefore I must needs tell you, that it was very severely and unjustly done in the King to give up this Petition (which was deliver'd him with all the Privacy imaginable) to the Privy Council, in order to have the Bishops prosecuted for it; but which made a great deal more noise and heart-burning against his Government, to commit them Prisoners to the Tower, and then to bring them to their Tryal, and prosecute them with the utmost Rigour \ where though they escaped Punishment, yet was it no thanks to the Prosecutors, but to the Directions of the Judges, two of whom (for their Honour) difser'd from the late Lord Chief Justice and his Popish Companion ;# as also to the Honesty of the Jury, who found them not guilty.

M. I cannot deny but you have given a pretty fair account of this matter,' and 1 cannot but own, that it was one of the worst-advis'd things that happen'd


under the King's Government; but I cannot impute this to his Majesty's innate Disposition, which was wont to act with greater Temper and Moderation to* wards those who differ'd from him in Judgment, and therefore must impute it wholly to the wicked Instigations of Father Peters, and the other Popilh Ministers.

But as for divers other Articles mention'd in the Convention's Declaration j "Such as the issuing out, and causing to be executed a Commission under the "Great Seal, for erecting a Court, call'd The Court of Commiffion for Ecclesiasti"cal Affairs, and levying Mony for, and to the use of the Crown, by pretence "of Prerogative, for other time, and in other manner than the same was grants ted by Parliament:" with all the rest of the Articles in that Declaration relating to Civil Affairs; since they are to be looked upon as the sole Acts of the Judges, and not of the King, they, and not he, ought to sufier for the Illegality of them; since, as you your self have own'd, the King in his judicial Capacity can do no wrong, that Power being wholly committed to his Judges: and therefore it was very hardly, nay unjustly done, to lay this to his charge, which he is not to answer for; so that if any thing has been done amiss in this kind, they are to answer for it, and not to run such things up to a Forfeiture or an Abdication, as your Convention have done.

F. I need not fay much more to this Objection, because I have in great part answer'd it already, and prov'd that most of the things found fault withal, were the King's own Acts, as well as those of his Ministers and Judges; for as to the Commission for Ecclesiastical Affairs, which is directly contrary to the chip. H. Statute of King CW/« I. which took away the Court of High Commission, as Chap. 12. also to a Clause inserted in the Act of the 13th ofCbarletM. " wherein the "Act for taking away that Court is not only confirm'd, but also the erecting lt any other like Court by Commission is expresly forbid:" This being the case, the fault of the issuing out of this Commission cannot be laid upon the

Judges; who though some of them acted in it, yet was it never formally rought before them to determine whether it was illegal or not: and no Man can imagine, that unless the King had a passionate Desire for this Power, that he might thereby be able to suspend, deprive, and turn out whom he pleased of the Bishops and inferiour Clergy, with the Heads and Fellows of Colleges, whom he ssiould find the most irreconcilable Enemies to his Religion, or obstinate in refusing to obey his illegal Commands, as too plainly appear'd by the Suspension of the Bishop ofLondon, the turning out of the President and Fellows of Mardalen-CoWegc, and that Prosecution that was lately order'd against all those Bishops and inferiour Clergy who had refused to distribute or read the King's Declaration; though I confess there was a stop put to this, upon recalling this Commission, immediately before the Prince's Arrival.

So likewise for the other Article, of levying Mony contrary to Law, that was done also without any Opinion of the Judges at all demanded about it; for the illegal Collection of Chimney-Many, by making Cottages and Ovens pay, that were expresly exempted by the Acts concerning it; and also the illegal levying of Excise, by making Small-Beer pay the Duties of Strong; were all of them acted and done by particular Directions from the Treasury, or by the private Abuse of the Farmers of the Excise, without any Opinion of the Judges: and of these Orders his Majesty could not chuse but be the Author, or Approver at least, since 'tis very well known he constantly fate there when any great Business was to be transacted; and the Lord Treasurer, or Commisfioners of the Treasury, would certainly never have presumed to have issued out their Orders in a Case of so great moment, if they had not been very well satisfied that it was his Majesty's express Will and Pleasure to have it so.

And 1 my self have now by me a Copy of the Earl of R, then Lord Treasurer, his Directions to the Officers appointed for the levying of ChimneyMony» commanding them to levy it upon all Cottages and Ovens whatsoever, Which was done accordingly with the utmost Rigour: which though it was a very great Oppression, yet it chiefly concerned the poor and ordinary lort ot People, who had not Purses to go to law with the King; or else such oentlemen and others, - who though they were forced to pay for their poor ienants, yet did they not think it worth their while to bring it before the Barons ot the Exchequer, where, as things then went, they could not expect

I (hall not infift upon the King's taking the additional Customs contrary t6 the Act of Parliament, by which they were granted to the late King Charles only for Life: and though in his last Sickness there was a Contract for the new forming of them, by virtue of which, I grant the King might have justified the taking of them till the end of the Farm; yet since that Contract never passed the Seals during the King's life-time, it was certainly against Law for the King to take them before they were re-granted by Act of Parliament: I fay, I shall not insist upon this, since the Parliament were so easy as to pass it, by without declaring it to have been illegal j only it sufficiently lhows, that! from the very beginning of the King's Reign, he was resolv'd to govern arbi-i trarily, and to levy Mony upon the Subjects whether the Law gave him any' Authority to do it or not. I But as to what you fay concerning the Judges being wholly in fault, for all the unjust and illegal Proceedings exercised in their Courts, and that the King was wholly faultless; I should be of your mind, had I not seen that all those Judges who would not agree to the dispensing Power (and other illegal Judgments I could name) were turned out, and others, either Papists, or or less Consciences than Papists, were put in their places, which were not confer'd for any longer time, than durante beneplacito: and therefore no wonder if such Men were absolute Slaves to the King's Will and Pleasure.

M. I had much more to say in defence of the King's raising and keeping up a standing Army, and his disarming Protestants in, and after the Duke of Monmouttfs Rebellion, which are laid to his charge, as Endeavours to destroy the Rights and Liberties of the Kingdom.'

But since it grows late, 1 shall only now take notice of something which I forgot to insist upon, concerning your Notion of the King's abdicating the Crown by a wilful Breach of the Laws, which is quite different from the Sense in which this Word is taken in Roman Authors, as also in our Civil Laws for when Cicero uses the Expression, Itaque tutela me abdicare cogito, Brifon tells us his meaning was, fe nolle esti tutorem. ButPomponius, in his Book de Orig. Juris, L> gives us the true fense of this Phrase; Abdicare fe Magistrate est antetempm Magistratum deponere: which plainly shows the Romans had no notion of a tacit or imply'd Abdication of a Charge or Magistracy without a Man's express Consent. And therefore if the King's bare Desertion of the Kingdom was not an Abdication of the Throne (as you your self are forced to grant) I cannot imagine how the King's Violation of the Laws, or endeavouring to subvert the Government (both which you lay to his charge) can properly be calPd an Abdication of it. So that indeed the King hath not abdicated the Government, but your Convention hath abdicated him: and tho we often read in our Civil Law, That a Father may abdicare filium; yet I never read, or can you show me any Example, that a Son might abdicate a Father, or Subjects their Prince.

F. You discourse upon a wrong ground •, for I never affirm'd, That Subjects had any Authority to abdicate or depose their Prince; nor hath the Convention assum'd any such Power to themselves: what they have done in this Affair hath not been authoritative, or as taking upon them to call the King to an account for-his Actions, or to depose him for his Misgovernment} but only declarative, to pronounce and declare as the Representatives of the whole Nation, that by his endeavouring to extirpate the Protestant Religion, and to subvert the Fundamental Laws and Liberties of the Kingdom, he had wilfully (I do not fay willingly) abdicated the Government, that is, renounced to govern this Kingdom any longer as a lawful King; which I take to be a tacit or imply'd Abdication of it, as I have already proved. And I can shew you farther, that even Tully himself allows our fense of an imply'd Abdication, in his third Philippick, when he fays thus concerning Mark Antony, that by his offering a Crown toCafar, Eo die non modo consulate fed etiam libertate fe abdicavit, &c. where you fee Mark Antony is said to have abdicated the Consulship without any express Renunciation of it j for Cafar might have continued him in it after he had been declar'd Dictator.

M. I grant your Authority to be good, yet even in this fense this Abdication of the Consulship could only take its effect from Anthony's own Will j for offering a Crown to Cafar, if he did not exprefly, yet he effectually renounced his Consulship: for had Cafar accepted it, he could no longer have been the Consul



of a Popular State, but most thenceforth have acted by.Authority from Cafay, or not at all: But then this would not have agreed- with your Nation of Forfeiture, which always supposes a Crime, and a depriving the Party olfen^To ing from his Office or Dignity,, whether he will or not. So that if t>hie Conveay; tion have adjudged the King to have, abdicated, they must suppose it to h^ve? been by his own Consent, or not at all 5, but if they supposed! him to. haverfor-y feited, why did they not ddwnaright declare so, as 71 oVo^Sithe,Scotch.Convention-; had done? and then I could have told the better whit to-'have said to* them, ajyft have proved that only Subjects^ and not; Kings, are liahse to.Forfeiture* ;;, y.j F. 1 will not deny, but that the word forfeited had faeea mapeyproper tha^, abdicated in this Vbte of the Convention; but yet \ think I have .sufficient} proved, that there is no great difference between a Man's-abdicating an Estate by awilful disposing of it otherwise than the Law rexmlres, and a Forfeituceof it: for as I fliew'd yon, a Tenant for Life aliening in fee,- doth not only fosfoit; his Estate to him in reversion, but is also an Abdication of it, though perhaps, he had reserved to himself a Lease of the Estate for Years:. and this is called at Forfeiture of the Estate, though he committed no other .Crime, than the;wro,ng[ done to him in reversion; and therefoi-e (as I said before) this Forfeiture dptfo not always suppose any Crime fbr which the Party may be punifb'd, otherwise; than by the loss of the Estate} nor yet doth it suppose any supersour Powep ia the Party that takes it. :.! - * . r ,; Vk

But your Exception against my Authority from Tatfy, of Mark Anthony's im- . ply'd Abdication of the Consulstiip without any express Renunciation of it,vj^ very frivolous; for you your self own, that Antheny did not express but only, in effect renounce the Consulstiip, when he offered Cafar the Crown: and if he did not do it exprefly, then it seems Anthony could renounce the .Consulship without ever intending it, by doing.an Act that in.effect abrogated his.pwa Power; and why King James might not do so too with his Crown* I desire you Would shew me any sufficient reason. But that the Convention did also look - . , - upon this Abdication of King James as a Forfeiture, appears plainly by their, declaring the Throne vacant, without troubling themselves to hod out who, ptfft the next Heir to be placed therein. 1;: \ .■.

But to conclude: There might be a very good reason.why the Convention d«| not think fit to make use of the word Forfeiture, as the Parliament of Scotland, have done in the like case; for some of the most wary and prudent Members pjf the House of Commons, considering that this word Forfeiture might prove oi[ very hard digestion to a great part of the House, and also might give great qfo fence to divers of the Bishops and Lords in the House of Peers, they found on? this new word abdicated, as an Expedient to solve that Difficulty, and whiejj might not only express the King's wilful Desertion of the Government by hip first Departure, but also his Renunciation of it, upon those legal Conditions he was to hold it j since, as 1 have already obscrv'd, the word abditauJ, in their Vote refers not only to his having withdrawn himself out of the Kingdom* but to all the rest of the Clauses foregoing,, or else they would signify nothing jn that place, both the Abdication and the Vacancy of the Throne being grounded, upon ail of them alike. 1 should now proceed to your last Exception against this Vote of the Convention, That the Throne is thereby vacant\ b»t I see is now very late, and therefore it is best to defer the farther diseulEng of that matter till another opportunity, which I defuse I may havetas soon as you please.

M. Yea, and then we wist also consider that part of the Convention's Declaration, whereby they resolve that the Prince and Princess of Orange be declar'd King and Queen of England, &c. which if you can prove to me to be accordingt» the Laws of England, 1 will then acknowledge them to be lawful King and Quceji , of England ; but till I am convinced of it, 1 must beg their pardons.

F. Well, I will wait on you again two or three days hence, and then 1 hope I shall make out those Points as west or better than any I have done hitherto j and in the mean time I am your humble Servant.

M. I pray do it better if you can, or else you will not very, much edify me » but however I wish you good-night.


{603}

DIALOGUE XII.

I. Whether the Vote of the late Convention, wherein they declared the Throne to be vacant, can be justified from the antient Constitution, and Customs of this Kingdom.

II. Whether the said Convention, declaring King William and Queen Mary to be lawful and rightful King and Queen of England, may be justified by the said Constitution.

III. Whether the Act passed in the said Convention, after it became a Parliament, whereby Roman Catholick Princes are debarred from succeeding to the Crown, was according to Law.

Am glad, Sir, you are come, for I was wilhing for you; priy fit down, and let us begin where we left off. You may remember you promised me, when we last parted, that the next time I saw you, you would make out to me from undeniable

Proofs and Precedents from our antient Histories and Laws,

that the present Convention had done nothing in voting the Throne vacant, and then placing the Prince and Princess of Orange therein, but what may be justified by the fundamental Laws and Constitutions of the Kingdom; for I must still believe (till I am better instructed) that there can be no Interregnum in England, but that it hath been from the first Institution of the Government an Hereditary Monarchy, where the next Heir by Right of Blood (unless in some manifest Usurpations) has always succeeded to the last Predecessor: As also our best Lawyers with one Consent maintain in their Books of Reports, and the learned Finch, in his Description of the Common Law, lays it down as an undoubted Maxim, That the King never dies; and therefore it seems altogether new and unheard of before, for the Convention thus to declare the Throne vacant: for admitting that King James had never so justly forfeited or abdicated the Kingdom (term it which you please) yet certainly there could be no Vacancy of the Throne, since the next Heir by Blood ought immediately to have been declared King, or Queen, and so placed therein: whereas we heard in the Country, that there was almost ten days time before the Lords and Commons could agree whether the Crown should be declared vacant, or not •, and when it was so declared, it took up almost a Week's time more before they could agree who should be placed therein. Whereas it was a difficulty only of their own making: for sure the Prince of Walts (tho it is


true he is carried out of England) ought to have been immediately declared King, as was done in the Cafe ofEdward HI. who was so declared upon the Deposition or Resignation of King Edward II. >

F. Tho I grant, ever since the Crown has been claimed by Descent, the Law has gone as you have cited it, and that Finch's Law lays it down for a Maxim, 1 shall not deny; but from the Beginning or Original of Kingly Government, (whether we look before or after your Conquest) it will appear, that the Throne was often vacant, till such time as the Great Council of the Kingdom had agreed who should fill it. And to (hew you I do not speak without good Authority, pray tell me (if this Maxim had then obtained) why after < the Death of William I. his eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England, or at least have done it after the Death of WUOam Rustu? who, you know, was placed on the Throne not by Right of Inheritance, but by his Father's Testament confirmed and approved or (according to the antient Englijh-SaxonCustom of Succession) by the common Consent of the great Council of the whole Kingdom; and yet notwithstanding, after the Death of this William, Henry his younger Brother succeeded him by the free Election and Consent of the same Council, and yet that Duke Robert fhotld never in all his Life-time take upon him the Title of King. Pray tell me likewise (if this Maxim had been then known) why Maud the Empress, immediately upon the Death of her Father King Henry I. did not take (nor yet her Husband the Duke of Anjtu in her Right) the Title of King and Queen of England, tho she had had Homage paid her, and Fealty sworn to her in the Life-time of her Father, as the immediate Successor to the Crown; and yet notwithstanding, the utmost Title (he could assume was that of Domina Angltrum, Lady or Mistress (not Queen) of the Englijh; whilst Stephen, who had no other Title but the Election of the great Council of the Nation, held both the Crown and Title of King as long as he lived? As also why Arthur Duke of Britain, who, according to the now received Rules of Succession, was the next Heir to the Crown upon the Death of King Richard J.' never took upon him the Title of King, unless it were that he very well knew that his Uncle King John had been placed in the Throne by the common Consent and Election of the great Council of the Kingdom? So likewise after the Death of King John, why Henry his Son was not immediately proclaimed King, till such time as the great Council of the Clergy, Nobility, and People, had met and agreed to fend back Prince Lewis, whom they had chosen for their King (tho not being crowned, he never took upon himself that Title) and so chose Henry III. (then an Infant) for their King? Lastly, Why all these Princes, viz.. Henry II. Richard I. and Henry III. who according to your Notions were undoubted Heirs of the Crown, never took upon them the Title of Kings of England, nor are so stiled by any of our Historians, till after their Elections and Coronations, if it had not then been received for Law, that it was the Election of the People, and Coronation subsequent thereunto, that made them Kings; and till this was performed (tho they might look upon themselves as ever so lawful Successors) the Throne was notwithstanding esteemed in Law vacant?

Therefore as for your Instance of King Edward Ill's immediately succeeding upon the Resignation of his Father (if yoa please better to consider of it) that makes against you; for it is plain from Th.Walsingbam, and H. deKnyght*n, that Prince Edward succeeded not to the Crown by Succession, but the Election of the great Council or Parliament: the words are express, Huic EUBioni imiversu* Populus consensit. And this was also owned byEdward H. himself, who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him, yet in the midst of all his Sorrow he gave them Thanks, Quod FUium fumeEdwardum post se regnaturum eligijstnt i which plainly Ihews, that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition, for violating the fundamental Laws of the Kingdom, that the eldest Son and Successor could pretend no other Right to it (even in the Judgment of the late King himself) but what proceeded from their Election. M. I cannot deny but what you have now urged from matter of fact, may

appear very plausible to your self, and those of your Notions; yet if it be

,looked looked closer ihto, I doubt not but the known Laws then received, and the Notions the People had then of a lineal Succession by Right of Inheritance, will prove directly contrary to the matter of Fact: For you know very well, a fatto ad Jus turn valet consequentia; but that all the Princes you mentioned, except the three last, were really Usurpers, and not lawful Kings, I shall let you fee by evident Authorities from the Historians of those times. For, in the first place, tho I grant William Rufus succeeded to the Crown by his Father's last Will, which was certainly unlawful (as being contrary to the received Laws of Succession in Normandy as well as England)yet it was not by Election of the People, as you suppose, but by the Kindness of Archbishop Lanfranc bis Godfather, and the Favour of the greater part of the Norman Barons, who came over with his Father, as well as out of Hatred to Duke Robert his elder Brother, that he was thus made King. So that William Rufus claimed as a testa- B. H. s. fag. mentary Heir, and by reason of that Claim was advanced to the Throne by 3<58. the Assistance of Lanfranc's and the Bilhop's Faction, who then swayed the Nobility and People, but yet never owned any Election from them \ so that if you rightly consider this Story, you cannot call it an Election, but a Designation or Nomination by his Father William the Conqueror, and consented to by the major part of the Bishops and Lords of the Kingdom, but not by their Election or Decree as a Common Council, as you suppose.himself being a Bastard, had nb.better Title to the Dutchy of Normandy than his Bather's last Will, before: he went to the. Holy Land, which was not good without the Consent; of the Nobility of that Dutchy, as appears by the Historians of that time. So that the greatest Objection you have to make against King Henry's being elected in a true Common Council of all England, is this, that the time was To short between the Death of William Rusmand his Election, that it was impossible for. all the Parties that had Votes to be there present, whidiis auvery bold Assertion ^ for how can you or your Doctor tell, that at the time when King Wi//iamw,as kill'd, he might not then have held a great Counciiafi Winchester (where he; then lay-} who might immediately upon his Deatb./chuse his Brother Henry fortheir King? for it is certain the Election was there the Da#i before his1 Coronation at London *, and therefore it was very tastily done to affirm, that this Election was not in a Common Council of the Kingdom, when a!ll«hfci Historians, arief particularly W. iMalmesbvry tells us the L. V. p. 156. mannere-f it, and the Disputes! there were! about it^ vA.. that Henry was elected Kiiag as soon a* VXn^WMiam VFunerals were dtefc^AUquantistamen ante Cotttrovtrfiis intex■pAUires dgitktfs\'&c. And H. dt Knyghton reqtihg the Cause why DukeRokirt wis set aside,' because he had been always contrary and unnatural to the flagons o^Evgiand \ therefore quodplenario corifenfu. dr consilio 001.2374*... totim Communit^tk.R^g^^pfvem)ifefut(iV«rvnt^.& pro Rege omninorecusavervnt, & Hewihim\frdtrtmin Regem<~e\ex*runt: Which, plainly (hews, that it was the Opinion off all theramuent /Writers, out of whom Ktfjrgkton took this Passage, that this Election was made by the I free Consent, and'in a fuQ Council of all the wJiole Commumty?of< the Kingdom.' Nor does'the After*claim of Duke Roberttothe Crown at all alter the Gaserfdr the ReaTons already given, as also because the Agreement that was made between them1,'that he that survived ihould succeed the other, was never confirmed or agreed to by the great Council of the Kingdom; and therefoce those Norman Lords 'that joined with Duk,e Robert here in England^ avejustly taxed by William of Malmesbury, and the Saxon .Anno no**' Chronicle, with Infidelity and Rebellion. And tho-I grant thaf Matthew JW*V ■'■ (orrather Roger of Wendover^ whom he'transcribesY seems to condemn KingHenry's taking the Crpwn as unjust, and contrary to Right, and Chat he therefore feared the Justice of Gody eoquod ' fr-atri fuo p'rimogtnito, cui jtu .Rtgni. micrtifefii competebati temtrt ufitrfarido injuflk nimis abfculerat: yet this'Author writing about the middle of this Reign of "King Henryfist who had succeeded his Father by a pretended Right of Inheritance as well as Election, it is no wonder if he, who Writ near a hundred yeaps after this Transaction^ should give his Judgment in this matter according tO'the common Opinion and Prejudice qf that'Age, and mustcertainly- speak by guess j for how could he otherwise afin>BP (unless he had been acquainted with that King's Thoughts) as he doth jn the* sdme place, that he felt Confcientiam fuamin obuntu Regnicauteriatam? since no other Writer, either at that time^ or after, it, does thus blariie. King Henry ftr [taking tbe-Growh. .on s:nd •• / 3tJw uv.1.;coj svj A -m vti? r But as for che account you give why Duke Robert never took upon him the -Title of King, if thei Throne had not then been looked upon as vacant, r because of the Agreement which he made with his Brothers, by which he parted with his Right for a Pension during his Life, it is not at all satisfactory: for, in the first plactj neither of these Agreements wereimade till .above a yearafc.ter his pretended Title did- accrue to hrnvby the Death of-his", Father and Brother v and therefore he ought, if he had looked upon himself as true King, >to have immediately taken theTitle upon him, which he never did.. So likewise tie Agreement it self makes wholly against your Notion of any Hereditary Succession to the Crown 'to be then settled, since the main Clause in both these Agreements is, that the Survivor should be Heir to him that died first, unless he left Children of his own to succeed him: which plainly shews, that, in the Opinion of both those Princes, and of the great Men that swore on either side to see it observed, they knew of no such'settled Right of Succession in their Heirs, which they themselves could not part witB,~or else this Clause had been wholly in vain? since boch 'Ring William and King Henry's Children were to have succeeded to the1 Grown of England^ by virtue of both these Agreements, before the Sons of Duke <itj>crt, had his Son William (who was only Earl of Banders')survived him* >";s!1rr

But that for all this, Duke Robert his Brother, being assisted by Odo Bishop of Bayeux, and the Earl of Kent his Uncle, as also divers other Norman Lords, who, being satisfied of his Right, raised a War in England againstWilliam, and great mischief was done on both sides, till at last a Peace was made between them upon these Conditions, among others (as Matthew Westminster re- s. D. fag. j. latesit) That because of the manifest Right Duke Robert had to the Crown, F. 23$. he should have a yearly Pension of three thousand Marks out of the Revenue of England; and he. of the two Brothers, that survived the other, if he died without Children, mould be Heir to the Deceased. And so far were they from thinking this Agreement stood in need of the Ratification of a great Council, that there were but twelve of the principal Men on each side sworn to see. it duly observed.

But if we come to consider the next putting by of Duke Robert from his Right to the Crown, you will find it to have been done with a far less colour of Right than the former j for he being then absent in the Holy Land, at the time of Rufut'i Death, Henry his younger Brother laid hold of the Opportunity, and assembling divers of the great Men of the Kingdom, he promised S. D. fag. them to make a full Restitution of all their antient Laws and Liberties, and confirm them by his Charter, and abrogate such severe ones as his Father had made; thereupon they did unanimously consent to crown him King. Now I cannot see how this (managed with so much Artifice) Corruption can properly be called an Election, since that ought to be a deliberate sedate Action, and , at which all the Persons concerned ought to be present. But this could not possibly be; for King William was killed on the 2d of August, and buried the next day; and the day after, being Sunday, this pretended Election was made: And theSaxon Chronicle tells us, J* That those great Men, whp Anw u«o; "were near at hand, chose his Brother HenryKing." So that this looks more like the Combination of a Faction of some Bistiops, Lords, and great Men, than the free Election of a King; since it was impossible for all that were, or ought to be present from all Parts of the Kingdom, to have notice to assemble and dispatch that great Business in two days time.

But to let you sec that Duke Robert did not sit down contented with this Usurpation upon his Right -, as soon as ever he came from the Holy Land, he strait made war upon his Brother, and many great Men of the Normans took his part. And this War was eagerly carried on for some time, and Duke Robert landing in England with an Army, King Henry marched against him with all his Forces j but (as the Saxon Chronicle also tells us) some principal Ibid. Men going between them, brought them to an Agreement, upon condition that King Henry ssiould pay DukeRobert three thousand Marks Pension yearly, and that he of the Brothers who survived the other, ssiould be Heir of all England and Normandy, unless the Party deceased ssiould have Children of his own. So that tho I grant King Henry recites in his Charter in Matthew Paris, B. H.l fag 1 that 369'

that he was crowned King by the Common Council of the Barons of England;
yet his saying so could give him no Right, and he must say this or nothing,
for no other Pretence or Title he could have. And there never was any o-
ther Usurper in his Circumstances, but must fay that, or some such thing, to
make out a Title: and therefore to answer your Question, why Duke Robert
took not upon himself the Title of King, neither upon the Death of his Father,
nor after that of his elder Brother; I think this may serve for an Answer, that
he parting with his Right to both his Brothers successively, he then looked up-
on it as needless to take the Title of King upon him, as not looking upon
himself then to be so.

F. I confess you have from your Doctor, together with some Assistance of your own, made a very cunning Gloss upon these two great Instances of Vacan* cy and Election, to evade, if it were possible, that Right which the great Council of the Kingdom then challenged to themselves; and therefore I ssiall make bold strictly to examine what you have now said. , In the first place, as to the Title of King William Rusus, tho I grant it was founded upon his Father's Testament, yet yon fee that this was not good alone, without the Consent and Approbation of the Common Council of the Kingdom. I think I have sufficiently proved at our last Meeting but one, when we discoursed of the force of the like Testament made by King Edward the Confeflor to KingWilliamX. which according to the English-Saxon Law (that was still observed) was never valid, until confirmed by the Consent of the Wit ten a Gemot, or Council of the Wisemen; that he that had both these, whether next Heir by Blood or not, was always esteemed as lawful King, as 1 have also proved from the Testament of King Alfred.And tho you will take no notice of it, yet was this Testament of King William I. then produced and read in the Common Council of the Bishops, Earls, and Barons of the Kingdom, as appears by all the antient Historians who treat of this matter. I shall only give you a Pag. i^i. taste of them: Matthew Paris exprefly relates the Circumstances of it, in these words 'f Optimates frequentes ad Wefimonafierium in Concilium convenere, ubi locipost longam confultationem Gulielmum Rufum Regem fecere. And Abbot Brampton Col. 983. tells us, that it wai done in a full Council, convocatis Terra Magnatibus; so that here was nothing wanting to a full Election or Confirmation at least of King William's Title, and till this was done, it is plain the Throne was vacant.

But as for the Claim that Duke Robert made to the Crown, tho I do not deny but he might think himself to have a just Title to it, by a received Custom among divers Nations, by which the eldest Son is lookeJ upon to have a Right before the younger; yet that this is no Law of Nature, and consequently not Divine, I think 1 have sufficiently proved at our second Meeting. But that this Right of Succession of the eldest Son was no fundamental Law of this Kingdom, I think 1 can sufficiently prove from our English-Saxon Histories, as well as Laws. And as for what you fay concerning those Norman Lords and Bissiops who joined with Duke Roberts after his Brother was crown'd King, it is called no better than Treason by all the Writers of those times; for Florence of Worcester,and Sim. of Durham, both tell us, that the King thereupon called together the Englist, and opened unto them the Treason of the An.D. 1087. Normans ; and the Saxon Chronicler, who seemed to have lived about that time, compares the Treason of Bissiop Odo to that of Judas Isc ariot against our Lord. And tho 1 grant King Williammight make such an Agreement with his Brother Duke Robert., as you mention; yet as for the three thousand Marks Pension, which you fay he was to pay him, I very much doubt it; since no Historian but Matthew ofWestminster, who lived between two and three hundred years after, makes mention of it: and therefore I think it is to be referred to the following Agreement betwixt this Duke and his Brother King Henry, which the SaxonChronicle exprefly mentions.

Having now examined and cleared the Title of King William Rufus, I come next to justify that of King Henry I. to the Crown, notwithstanding all you have alledged against it, which yet is no more than what you said before, that Duke Robert had an Hereditary Right, and therefore he could not be put by, which is to beg the Question: for you cannot prove to me that he had this Right either by the Law of Nature, the Law of England, or the Law ofNormandy; not by the two former, as I have already proved; for your Conqueror



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But now, if you please, you may proceed with your other Exception* against the rest of the Instances I have here given you of the Vacancy of the Throne, till such time as the Common Council of the Kingdom had agreed whom to place therein. i

M. As to what you have said in defence of the Vacancy of the Throne, after the Death of King Henry I. it carries less (hew of Reason than what yon urged in the former Cafes; since all Writers agree that this was a manifest Usurpation in Stephen, who could pretend no sort of Title to the Crowa himself, as well as Perjury in the Bishops, Lords, 5nd great Men of England, who having sworn Fealty to King Henry's Daughter Maud in his Life-time, made Stephen Earl of Blois their King: therefore William of Malmesbury, and all the Writers of those times, accuse Stephen of downright Perjury and Usurpation j and likewise relate, that he was advanced to the Crown thro the power of the Londoners and Citizens of Winchester. But yet all these Endeavours had been in vain, unless he had been assisted by his Brother Henry Bishop of that City, and then the Pope's Legate inEngland, and favoured by the Archbilhop of Canterbury, who crowned him: And yet for all this there was but a very small Faction of the Bilhops and Lords who were for his CoroI- i. p. 178. nation; for W. Malmesbury tells us, Coronattts est ergo in Regem Anglia Stepbanus, tribus Epifcopis frafentibus, nullis Abbatibus, paucijfimisOptimalibns. '3

And many of the Nobility and great Men of England were so sensible of this, that being headed by Robert Earl of Gloucester (the Empress's base Brother) they raised a War against Stephen, which after her coming over hither was carried on with great Vigour. And tho I grant, that after divers Chan-* ges of Fortune the Empress was at last forced to quit the Kingdom, yet her Son Duke Henry did not fail to continue his Claim to the Crown in right of his Mother; and coming over into England, renewed the War against KingSf*phen, which was at last composed by an Agreement between them, which, as M.Par. /.8*. Matthew Paris and Matthew Westminster relate it, was thus:. " That Kiog SttM. West. 246. u y^en acknowledged, in an Assembly of Bishops and other great Men of the "Kingdom, that Duke Henry had an Hereditary Right to the Crown j and ** the Duke thereupon as kindly granted, that King Stephen should peaceably "possess it during his Life." So that it is certain, till this Agreement (evea by his own Acknowledgment) he had no Right to it: and tho I grant that the Empress Maud, for some Reasons we are not able to give a true account of, never took upon her the Title of Qyeen ; yet it is very certain- that (he acted as such during all the time (he was in England, receiving Homage aud Fealty from those Lords and others who came over to her side, and also grantiug Charters and conferring Honours by the Title of AnglorumDomina; which shews, flie looked upon her self to be the supreme Governess of the Kingdom, tho not under the Title of Queen. So that I think you can find nothing in this Transaction that can support yoyr Notion of Vacancy.

F. Pray give me leave to answer what you have now said before yon proceed farther: First, I cannot excuse either King Stephen for taking the Ci own, or theBilhops and great Men that set it on his Head, from Perjury and Injustice i since the Empress Maud had been before, in a Common Council of the whole Kingdom, declared the lawful Successor, and that Fealty had been sworn to Her as such. AU that I insist upon in this Affair, is this, thatQuod fieri non debet, fattum valet: And tho this ought not to have been done, yet when once done it did stand good; and if whilst the Throne was vacant, King Stephen, by the Election and Consent of the Bishops and great Men of England, was placed therein, he was therefore looked upon as true and lawful King as long as he lived. And this was indeed the Reason why the Empress never took upon her the Title of Queen of England, no not when flie had taken King Stephen Prisoner, and one would have thought might have justly done it as a Gonqueress: But yet she forbore it, because that Title was not then to be taken without the Consent of the great Council of the Kingdom, which leannot find flie ever held, her Party being not great enough to make one. And tho I cannot deny but that flie might in some Particulars exercise some Prerogatives of Royal Power, yet this was only upon a pretence of her being elected and stiled by this Title of Lady of the English, in a Synod of the Clergy at Winchester 1 by the Procurement of Henry the then Bisliop of that See, and



###
you pvctcnci Lu »iaiV ~— t'be Second, ^ow your pdly Argurpent to prove this, is, that tuugiw... thohis eldest Son alive,, was only called Duke of Normandy, and never King of England^ ,rttill after "hisj Coronation whoever will but consider the Circumstances of this matjte/^iwill find' that he was indeed owned for King of Englandbefor^ his pretended. Election or Coronation. For before his coming into England to be crowned, Roger Hovedentells us, u That every Freeman Pag. 373. of the whole Kingdo#ty. by, the Command of his Mother QueenEleanor, swore, 'Quod fidem portaht Regi J^pglU Richardo Regis ffen. filio which plainly shews, that he was then by common Intendment looked upon as King 'before his Coronation: Tho I confess that this very Author also relates, that

all the Estates of the Kingdom were assembled atLondon, by whose Counsel and Assent the said Duke was consecrated and crowned Kfrlg of England; and thoRalph de Diccto, then Dean of St. Paul's (who in the Vacancy of that Church then supplied the Office of the Bilhop at Ring Richard's Coronation) Col. 6tfi hath this Passage } Comes itaque Pitlavorum Richardus'H&rtditdrio Jure pramo

F. 1 desire I may reply to this before you proceed farther. I con what you fay about the Empress Maud's Surrender of her Right to her Sc. Duke Henry would be considerable, if you had any Authorities from bur aa> tient Historians to support it j but since you have not, Hook upon it as 09 better than a mere Surmise of those of your opinion, that the CrOwn was theji enjoyed by an Hereditary Right, without any Consent or Election of thfe People. And so likewise is your other fancy, that because Women were then looked upon as uncapable to govern, therefore the Bishops and great Men of the Kingdom supposed they had sufficiently performed their 0ath of Allegiance to her, by acknowledging her Son Duke Henry for the right Heir qf the Crown. Now if this had been so, pray tell me to what purpose Kiag Henry 1. (Father to the Empress) mould have made all the Estates of England swear Fealty to his Daughter, if a Woman had been then looked upon as uncapable to govern? Or to what purpose mould the Clergy, in the Council a| . /. io<5. Winchester, chuse this Empress, as the King's Daughter, Lady both of Englandand Normandy, as Wtttiam of Malmesbury tells us exprefly that they didL and that he was present at it? Or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to t&e Daughter, i& conferring the Allegiance that was due to her upon her Son? I am sure no Heiress of the Crown would look upon that as a good Performance of theit Oath at this day. When you can answer me these Queries, I shall be of you* Opinion in this Point, but tiH then I beg your pardon. v . • -- ^

But as to what you fay against the Vacancy of the Throne upon the Death 6f King Henry II. till King Richardwas elected and crowned, I desire no better Authority to the contrary than those very Authors you have now cited for your Opinion: For first Heveden, in the very place you have quoted him, fays, '« That the Duke was to be s_inLatin, in Regem} crowned King by the Coun

'* sel and Assent of all the Parties there present." Now if 1 understand anV thing of Grammar or Sense, he was not King before, and therefore needed their Assent to make him so. Likewise in the next Quotation from Ralphde Diceto, the Duke is said, Hareditario Jure fromovendm in Regem ', which words being in the Future Tense, shew he was not then, but was to be promoted to that Dignity. Now if his Hereditary Right alone could have done it, then to what purpose are all these words foregoing? So that tho this Right gave him a fair Pretence to succeed to the- Crown, yet it is plain from both the Authors you have quoted, that he did not till after the due Consent and Election of the Clergy and People : So that after all, your Questions (what.can this solemn and due Election signify? or what can it mean farther, than that Ri

senfus (which are the words of Hovidtn) and the words folemnis & dtbita Eleatio, ever signified an Owning or Recognition of an Hereditary Right.

I confess the only colour you have for your Interpretation of those words in Hoveden, which you have now cited, is Queen Eleanor's making every Freeman of the Kingdom swear Fealty to Richard King of England, as to their Liege Lord: from whence you would infer, that by common Intendment of Law. he was looked upon King of England before he was crowned, and consequently there could be no Vacancy of the Throne. Now admit that he was commonly called King before he was crowned, or that the Queen his Mothej would make the People swear to him as such; yet that could not make him si}, since the same Historians also tell us, that Hubert Archbishop ofCanterbury, ana William Earl Mareschal, made the People of England take a like Oath to Earl

John as their Lord (not King) immediately after the Death of King Rickard his Brother; and vet I suppose you will not affirm, that their swearing Fealty to him as their superiour Lord, made him King, or gave him a just Title toi the Crown. And I desire you,, or any indifferent Man, to tell me which was Hoveden\ Opinion, whether this swearing Fealty was a sufficient Declaration!1 of his being King, or else all those other Expressions which signify the contrary, when immediately before his Coronation he only calls it Ducerri Ricbardumi qui coronaridmerat in Regem; which I think is as p,laia a Distinction of his being a Duke before he was crowned, and a King afterwards, as words can make. 1

M. 1 fee it is in vain to urge this Point, any longer, and therefore 1 shall proceed to your next Instance of the Vacancy of the Throne, after the Death of King Richard, until King John was placed therein. Now tho it \i certain that this Prince was an Usurper ,upon his Nephew Duke Arthur, yet whether he was ever elected in a Common Council of, the Bishops, Earls, and Barons of the Kingdom, is very doubtful: But suppose he were^ it was done Wrongfully, and to the prejudice of Anhpr Duke of Britain, the right Heir to the Crown, who being young and a Strartger, it i§,no wonder if he were put by, and his Uncle, who was a Man, and better acquainted with England,having the Interest of the Archbifliop of Canterbury, and most of the great Men, got the Crown from him ; and yet for all that Hoveden, who was alive at this time, speaks not a word of his being elected, but only, that upon his coming into England, he was received by the Nobility, and .crowned by Hubert Archbishop of Canterbury. So that there is not one word there of any Election by, but only a Submission from, the Lords Spiritual and Temporal to King John, and a Recognition that he was their King. Nor indeed could he need it, if it be true what the fame Author tellsusV " That, when King Richard despaired of Life, Hoy. f. 449. "he devised to John his Brother the Kingdom of England, and all his other u Lands, and caused all those,that were present to do him Fealty." And this is related by Hoveden, in all probability an Eye-witness of these Transactions.

So. that the first Author we find to mention any thing of the Particulars of this pretended Election, is Matt he wParis, who has. given us the Speech which Matt. PariC the Archbifliop made at this*, supposed Election, and also recites the Arch-/. 197* bishops, Bishops, Earls, and Barons, and all others who ought to be at his Coronation. The Archbishop standing in the middle of them, said thus: ** Hear all of you, your Discretion shall know, that no Man hath Rjghf to ** succeed in this Kingdom, unless, after seeking God, he be unanimously choM sen by the University of the Kingdom(that is, those that are here said to meet at London.) The rest of the Speech needs no repeating, only he lays it down for Law (which I think was never heard of before) •* That if any of ** the Progeny of the dead King did excel others, they ought more readily to "consent to the Election of him.'* And so upon this Speech made in behalf of Earl John, and full of a great deal of fulsome Flattery, he was declared

King. . ':. •;'

But to let you see what a fort of Man this Archbishop Hubert was, take what the fame Author tells us in the fame place; that being asked afterward why he said these things, he answered, " That he guessed, and was ascertained by cer•* tain Prophecies, that John would bring the Kingdom and Crown into great ibid. w confusion-, and therefore lest he might, have too much liberty in doing it, "he affirmed, he ought to come in by Election, and not by Hereditary Succes"sion." Now tho this learned Doctrine of the Archbishop asserts a Right of Election in the Convention of Bishops, Earls, Barons, &c yet by his own Answer, when he was asked why he said these things, it clearly discovers it to be only a Design and Artifice in the Archbishop, to cause them to set up and make JohnKing, and in which also he denies any such Right of Election. But since Hoveden, nor any other of our antient Historians make mention of this Election, but only of his Coronation, and the Bishops, Earls, and Barons assisting at it, not giving their Consents to it, it may very well be, that that Story off an Election, and this Speech of Archbishop Hubert, might be only an Invention of Matthew Tariff or rather of Roger of Wendover, from whom he took, most of his History: but that this Doctrine of the Archbishop, concerning the Election of our Kings, if meant according to the modern understanding of it, was then new, Ctrvafe^ a Monk of Canterbury in'the year 1122.

who also speaks of the Coronation of Henry I. fays, it was manifest; and known almost to all Men, that the Kings of England were only obliged and bound to God for the Possession of the Kingdom, and to the Church of CanCol 1338. terbvry for their Coronation; Manifejhtm eft avrem & omnibus fere notum, RegesAnglia soli Deo obligari & tineri tx ipfius regni adoptionf, & Ecclefia Cantuarienfi ex Coronatione. "' !>

But that King John Was forked upon as an Usurper, is Very certain, since1 besides some of the honest EnglishNobility that took Duke Arthur's past, the King of France did also make war upon King John on his Nephew's account* because he looked upon hirtr £s true Heir to the Crown; and therefore' »frhen King John had privately made away hh said Nephew m Prison, the Rihgo'fl France summon'd him. as'.Duke of Normandy, and Peer ofFrartoi, to answer for the Murder in an Assembly of the Peers of France1 at Pare; where, for M* refusing to appear, he was condemri'd to death, aind his Dukedom of Normandy declared forfeited to the Kislg of France. '•'- '■' • •.- i:■!; 

F. I confess you have said « much as can be, to' prove that King John had W Hereditary Right to the CsownynOr Was so solemnly elected to ft (as Matthew Paris relates J but yet for all this, I think I may very justly oppose all thtft- ftte have now said upon this Head: for in1 t,he first place, it Was then very much disputed (as it hath been also since that time), if an elder Brother died, and left a Son a Minor, whether his younger Brother cjr Bis Sott should socceed.; For tho the People of Anjiu, and thole1 of Guienne, owh'd Duke Arthur for their Prince, yet the States of Normandy were df another mind, and by virtue of King Richard's Testament, he Was immediately after his Death invested with that Dukedom; nor was he then at all opposed in it fey the Ridg of France, tho supreme Lord of the Fee: add as for England, besides his Btotfier's Testament, whereby he left him Heir of all his Territories, it was also- then generally held in England As most consonant to the antient English-Saxon Law;' of Succession, that the Uncle mould succeed to the CroWn before the NepfeeWj Therefore it is ho wonder if DukeArthur found so small a Patty here j fler<ny Bishop, Earl or Baron (as I'read of) owning his Title: and as for the Ring of France, it is also as certain* that ft* did at first oWn Kirtg Jotot sot Lawful King of England, and Duke, of Normandy, andentted into a Treaty of Peace, and made a League with him as such} tho it is true that afterwards, When he had a mind to pick a quarrel With, that King, he then set up Duke Arthurs Title. And tho this Dake was made away in . the beginning of King JobnH Reign, yet did not the Ring or Peers of France eVer take any riotice of itf, tiff about twelve or thirteen Years after, when he had now unjustly conquered aft/formandy, and almost all that King's other Territories ih France \ and then Wanting a Title to keep them, he began this Prosecdtion you mention against him, arid upon his Non-appearance he was condemned unheard. But that the King Of Prahce himself, and all the great Men of that Kingdom, did look upon him td have been lawful King of England, appears by that Speech which Matthew Paris relates to have been made after Kirig John'sDeposition by the BarOris c4 England, by a Knight whom Prince Lewis of France had made hi* Procurator, f&treat with the Pope's Legate about his coming over hitfter: u where, when he had "recited that King John had bethcondemn'd by hfs Peers for the Death df hti w Nephew Arthur, and that fie had been also for his'great Crdelties and othe't M Wickedness deposed by the Batons of England'', Ana farthtfrredting'thftit'ihe' "said King, without the Assent of his Nobility: hatt resigned 1hft Kingdbnt t6' "the Pope to hold it of him at an annual Tribute'of a thousand Mark* ?n¥the rest I will give you in Latin, because you your self may translate If/)' J?#fC*± ronamAnglU sine Baronibus aticui dare ntn fotuit, fotuit tamest dithiHeri iani j ejuam statim cum refignaverit, Rex ejsedtfiit, & Regnum fine Rege vacaVit, -vatknt itaijue Regnum fine Baronibus or dinar i non deiuit, «C. So that you -may s& that by the Order of Prince -Lewis^ arid the Allowance'of the King of France himself, every one of our Opinions are maintain'd sot good;: First, That King John was, before the Resignation of his Crown to the Pope, true and laWfnl King. Secondly, That by tnat Resignation to the Pope, he did dismiss or abdicate his Right to it;(for so I suppose the Word dimitt'ere Regnum is here to be renders), Thirdly, That upon this Dismission of the Crown, the Throne became vacant. Fourthly, That upon this Vacancy the Kingdom eould


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not be confer'd without the Consent of the Barons, that is, the great Council of the Kingdom.

But let King Joint* Right to the Crown have been what it would, it is certain, that he could not take it upon him, until such time as this Great Council had both heard and allow'd his Title: and that this was in the nature of an Election, notwithstanding his Brother's Will, appears by that Account which Xoger Wtndovtr and Matthew Parishave given us of it j which tho Hoveden and c<her Writers have omitted, yet doth it not therefore follow, that this was all the pur» Invention of Roger of Wenioverr or Matthew Paris, since the former, living near that time, might writer from the Relation of some that were then present; and as for the latter, I look upon him, tho a Monk, as a Man of too great Integrity to invent any thing of his own head. And I confess the Account that ArchbishopHubert gives, why he put King John's Title rather upon Election than Succession, looks very suspicious j since the Archbishop must thereby have made himself a Knave and a Hypocrite, and seems also to contradict what MatthewParis had before said, viz.. "That all those that heard H his Speech, dared not so much as doubt of these things, knowing that the u Archbishop had not thus judged of this matter without cause." And therefore I grant that this part of the Relation, concerning the Archbishop's vindicating of himself for thus giving his Judgment, might be a Story commonly taken up, and being told'to this Author, was by him inserted in his History at a time, when I grant the Crown of England began to be thought successive, by reason that King Henry III. had succeeded as the eldest Son of his Father, tho he was not for all that admitted without Election, as I shall prove by and by. But that King John was made King by Election, tho he claim'd it from his Brother by Succession, likewise appears from his own Charter, still to be seen at this day in the Archbishop's Archives at Lambeth; wherein he re- Vid. Chart* cites, that he came to the Crown, Jure hareditario, & mediante tarn Cltri quam moderations fofvli unanimiconsenfu t$ swore. Where you fee plainly that he derives hisCe(^maSni Title from the Consent and Favour of the Clergy and People, as well as his own s Hereditary Right. t n-« ■ '' v'

. M. Notwithstanding what you have now said, I cannot agree with you, that by these Words you have cited from this Charter, is to be understood any formal Election of the Clergy and People j but that this unanimous Consent mention'd in it, was rather their Acknowledgment of his Title, and Submission to him, than any thing else: for according to Hoveden* Relation of his coming to the Crown (which I think the most exact extant) the whole Nation submitted, and swore Fealty to him against all Men, before he came over into England.

But at for his Son Henry III* it is much more plain that he succeeded by Succession, and not by Election, as being the eldest Son of the late King his Father, as appears by the Relation of his Coronation in* MatthewWestminster, who tells US thus: Henricttt Johannis primogenitttt in Regem inun&ns & folemniter coronatneFol.277. est. And tho from the Speech-which was made to the Clergy and Nobility that were then at Gloucesterby the Earl Marshall, 'tis pretended, that Henry S.d. f.13. was elected; yet I dare lay, if any one do but impartially consider the Tenour of it, he will find that the Design of it Was rather to persuade all those then to return to their Duty, and acknowledge him for their King, whom d Nature had design'd for that great Charge: for the Earl begins his Discourse to them thus, (as it is in Knighton) EeceRex vest er I (which certainly could not then be true, if an Election was necessary to make him such) but amongst the rest of bis Arguments, he urges this; Hunc igiturl$e4t Regem Col 2426. dicere, cui if sum Regnum debetur j Tou ought to chuse him, to whom the Kingdom is due;(which surety it can be to none, if it be not Hereditary.) And what puts all out of doubt, that the Kingdom was not then (and if not then, I am fuse never since) Elective, is the Answer of Hubert de Burgh to Lewis, when he summon'd him to deliver up Dover-Castle to him, since his Master, for whose use and service he held k\ was dead: but fee his Answer, *• If my old Master. ** says he, be dead, he haziest behind him Sons and Daughters to succeed him. A thing he never would have asserted, had he not thought there had been a >

Divine Right somewhere else than in the People.


F. Before I speak any thing to King Henry the Third's Election, give me leive to reply to what you have said against the express Words of King Johr?s Chaster; for if Favorand Consensus does not signify somewhat more than a bare Acknowledgment and Submission, 1 understand neither: English nor Latin* ,Nor is this any Answer to the express Testimony of Roger of WendoVet'aaA Mm. Paris to the contrary. And as for Roger Hovedem,be does not fey toe waveiot elected, but only omits the manner of it^ as divers other Historians do; 'Si that (at the best) this is but a negative Argument:;- and:yet that?.titveden hinTself did not look upon him as King even after the whole Nation had sworn Fealty to him before his Coronation, may appear from this Passage a little before his coming over: WiUielmtes Rex Scotorum mist nuncios ad Johatwim Due cm Normandia, &c. where you fee he calls him' no more than Duke of Normandy. ,■ •>.'.■ \•■ \\\ q<sfl:.'.."-t. Jc-mA r>dt

But to come to. the Election: of his Son Prince Henry; if this'be all yon hay* to prove a Divine Right of Succession in Henry 111. il doubt it wilVdb you bit little service; for according t» your own Principles. it most hdve ibee?\ lodged somewhere else than in this Prince: for when King^ain his Father died, Eleanor, the Sister of Duke>*«<w, was alive, and [died not till the ^th-TfieaY Mat. Paris, of King Heney\ Reign, a close Prisoner inErifttl-tGs&iCa as Maiihew Parir>T& /• 574* lates. So that it is apparent he could have no such "Bivine Hereditary Right as you suppose j and therefore perhaps his Father, to strengthen his J ule, and to recommend him the more to the jpeoples Favour^ appointed him bistinc* Mat. saris, cessor by his last Testament: and MatthewParis, and Matthew WtstminsterteVL f. 288. USj that when King John died, Henrictm Primtgenitum suum Rigniconstituh Mat. Westm. fagfa^ So ttv^t it seems there wasithen ho such plain Hereditary Right j fpf 7' if it had, what need had there been of this Testament? '• rs.)o-" mi molt , . - . But for all this Right,' 1 do not find that this poor Princess Eitantr had1 ans of the Bishops or great Lords to takeher partj but all the Dispute then-Was at this great Convention at Cloutester,- whether they should abjure Prince Lewis, whom most of them had before chosen for their Lard, and adhere to Prince p. 145. Henry, there present before them, as Matthew Paris tells us;}!£r*rautern  tempest ate inter Optimates Anglie ftuilmatio. maxima, ati, ft Rigttbmmitterttit Y$v* venine Henrico, anDomino Lvdovico? . Sa that it seems, by the Relation' oar Historians give us of this^atteri it was not fronuny greatdfense thatnthe Clergy and Nobility had of the Justness of Prince Htnry'% Titles 1 that made them agree to chuse him King but the Hatred they then bore to Prince Lewis, when they found he had broken his Contract with them, and put all the strong places of the Kingdom intp the hands oi Frenchmen, and treated the Englifi Nobility with Scorn and Contempt: and therefore no wonder if theyprerer'd an innocent young Prince of their ©WftMation»; wap had never'been guilty of his Father's Faults, before a Stranger, whose frftudulteut Dealing with them they had found not to answer their Expectations. And. therefore/J4/»s. Westminster tells us, thatorawwNohilts Terrain hrevi tpfi juvem Regt Henrtco, qui nihilCutf* versiu eos meruerat, fideliter -.adhtesermt.  .„! • '*'? !?»■ d r'!l >■'•'

. , But to prove farther, that this King came in by Election,, and not by Suc

cession, appears by what our Historians relate concerning the manner ofbic. CoL Henry de Knyghton, in his Chronicle, tells us, that on the Feast of St. Simon and

Jude, Henry, Son of King John, in Regem erigitur virib*r, & industria Gualonit
Papx Legatt; which plainly .shews that he was not King before: and I desire
no better an Authority than ypnr own Author, Matthew Westminster, who fays,
that he was in Regem inuntJfu, anointed to be King; which shews that'he
thought bim not so before his Coronation. And tho l grant Mat. Paris makes
the Earl Marshal to begin his Speech with those words, Ecce Rex vtster! as yoa
relate them; yet this was no more than an Allusion to that place in St. ftbn,
Chap 19. Behold your Kingi it being usual in those days to begin their Speeches
with a Text of Scripture. So that the Earl did not intend to be understood
literally tor then he should have in this Speech contradicted what he had said
oetore: tor tho to prepossess their Minds, he fays of the young Prince there
prelent, Behold your King! yet it is plain: that how much soever he thought the
Kingdom his Right, yet that it could not be conferred upon him without their
cnoice; as appears by these Words, which you your self have made use of,
Tou ought to chuse him, to whom the Kingdom is due. And it is evident by the

* Assent

LI. Assent which the whole Assembly gave to the Reasons declared by him in this Speech, that it was their Choice alone that made him King^ their Votes being given in these words, Fiat Rex; which had been altogether needless, had they looked upon him as King already. And therefore the Speech of Hubert de Burgh., wjvjch[ you mention, may very well be reconciled to this Hypothesis, of suppoling a Necessity of an Election and Coronation to confer a full and legal Right in. those times: for when he said, That the King, if dead, had yet left behind him Childrenwho ought to succeed hi.m 't this, if strictly taken, is altogether false' r for Eleanor, the true Heiress of the Crown (according to your Rule of Succession) was then alive :.but, if taken in a limited fense, is true, that is, the Chjldfen ought to succeed if the great Council of the Nation thought fit; Without whose Consent, tho they might have Jus ad rem, yet had they not Jtu ini'jkr*tljis Election and Coronation being then looked upon, as Livery, and Seisin at this daf is to an Estate in fee, without.which, tho the Writings are sealed and delivered, the Land will not pass.

T*6 conclude: i pray answer me that Question I have so long put, tho without, any Reply, vuu Why, before,this Election and Coronation was perform'd, po#e of those Priftces that came to the Crown by your supposed Right of Succession, are icali'd by any higher Titles than Dukes of Normandy, or Earl^s of pfiftoU? So that from what; has been here said, I think it plainly appears, t^aC 'op less thin seven of the eight Princes from your William the Conqueror (reckoning him for one) to King Henry ill. have owed their Title to the Crown, npt.ttP aay Right of Succession, but either; to the Election of the People alone, oF&Wi to the Will or Designation of the last King, confirm'd by the general Co$?nt of the. People given thereunto j and without which it would not have Tjeiefll'good, according to the anrient, Gastom of the English Saxons before your Coatjneft: where, besides the Testament of the King deceased, there was also retired the Consent or Election of the great Council. So that you see here was no alteration made in the Form Os' our chusing our Kings after your Conquest from what it was before, for no less than seyen or eight Descents: And when you can answer this, 1'ffiall then come over to your Opinion*

M. In answer to your Question, I shall not deny but that our Historians give all the Kings you mention no higher Titles than Dukes of Normandy, or Ea'rls of Poittop, before the"ir-Coronations: which tho I suppose they might do from a foolilb Superstition of that Age, which made them fancy that none were properly to be called Kings until they had been anointed, and solemnly crowed by a Bishop; yet that they looked upon them as Kings indeed, appears in that they ordered and disposed of all publick Affairs, conferred Offices and Bifhopricks, as if they were lawful Kitigs before your pretended Election, or the Ceremony of their Coronation; and also had Ambassadors sent to them from foreign Princes, as ajjipVars from' your own Quotation out of Hoveden, pf those that were sent by the King of Scots to King John before he was cfaSWned ; tho it is true he there stiles" him no more than Duke oi-Normandy. Al$ this also may further appear by that Passage I have cited out of the fame Author, that King Richard had Fealty sworn to him as King of England by all the^Freemen of' England before he was crowned, and you your self acknowledge" the fame Oath to be taken by the fame Persons to King Johnbefore he came over to take the Crown.

,And lastly, to make it yet plainer that there was no Vacancy or Interregnum in all these Successions you have mention'd, consult what Chronologer you please, or look into the most antient Tables of the Succession of our Kings of England, or into our old printed Statutes or Law-Books, and you will still find the Reign of the succeeding Prince to commence from the Death of his next Predi&cessor, without any Vacancy or Interregnum between; And these I think to. be a great deal surer Marks of their succeeding to their Royal Dignity, by a pretence at least of a Right of Inheritance from the Father or Brother, rather than this Fancy of yours that you lay so much stress upon< That because of their not being stiled Kings by our Historians till their pretended Election and Coronation was over, they were not so indeed. And I hope this may serve to satisfy this mighty Objection.

F, I must beg your pardon if I still declare my self not satisfied with your Answers: for tho I grant, thai if this Argument of the Historians not stiling ~J . - them them Kings, had stood'single, \vithout any thing else to support it, your Answers might have signified sorrtething; yet if.jou, please to consider it, you will find that none of these Princes (taking in William your; Conqueror) claimed, as your self must acknowledge, by ajiy Hereditary Rigtjt, but by the. Testament of the deceased Predecessor j and if so* where, was, your settled Right* of Succession by Right of Blorid? Secondly, it is likewise as, plain, that these four were never admitted pr" acted in EnglandasJawful Kings, till those Te'staments were confirm'd by the Election fafthe greijt Council, pefqre whom, they declared their Rights: and 'till this was done, 'n6~wJthe Throng could be otherwife than vacant, 1 cannot conceive." But as fprtwo of them"(whorfljVon call downright Usurpers) viz.. Hiniry Land Kifig Stephen, foljcertain they could have ho colour of a Title till their Electio^' and ir.pbt^tf .'tlienj ^jrna that neither your next Heir of the Crown,, nor^jjej?th'ey'th^i^eiyes tfOpk nppn. them the Title of Kings, 'was not'tnis a Vacancy of theTtypfeli'n^tliemem time? suppose that time.to.have beea\but for the space of thrpe'ot; four ^ays, as it was after the Death of King W&ifm Rufm. -^- . „" '^'nohvi •• jt Men of the Kingdom to swear Homage and Fealty to HenryDnke of Anjou, as his immediate Successor. So that you fee this swearing of Fealty was in those days often perform'd before the Persons that received it were Kings indeed ; and so I believe it was done in both those Instances yon now give me: for tho I grant that Hoveden (as you cite him) relates that Homage was made, and Fealty sworn to Richard I. by the Title of King, yet it is very much to be doubted whether this was not only by aTrolepsis, or perhaps a Dip of the Pen in this Author, since he writ this History long after KiagRichard's Death; and therefore unless we had the very words of this Oath, there is no certain Conclusion to be drawn from thence. And I think we may as well credit the Chronicle of Abbot Brompton, who likewise lived about the same time, and recites all this Assair almost in the fame words with those in Hoveden; but there the Oath doth not run exactly in the same words as in this Author, but thus: Quod unustjuisijue liberorum hominum totitu Regni juraret quod fidemport ar et Domino Richardo, Domino Anglia, filio Domini Regis Henrici, &c. ficut legio Domino sua contraomnes mortales. Where you fee the Oath is not made to King Richard as King, but only as Lord of England; and that there is a great deal of difference between those two Titles, not only in Name, but in Substance, I have already proved, when 1 spoke of the Empress Maud's stiling her self Domina, and not Regina AngUrum; tho she had Homage rendred, and Fealty sworn to her, not oaly in her Father's life-time, but also after her coming over again into England, in the Reign of King Stephen, by all that own'd her Title. And that Hoveden himself meant no more than this, appears by that Passage I have "already taken notice of, viz.. That Huberts Archbishop ofCanterbury, and Wil- p. Ham, the Earl Marjhal, being sent over to keep the Peace, made all the Men of the Kingdom, as well of Cities as Boroughs, with the Earls, Barons and Freeholders, Jurare fidelitatem & pacemJohanni Normannorum duci, filio Henrici Regis, filii Matildis Imperatricis, contra omnes homines: where yon fee the Oath is taken to him only as Duke of Normmiy, and not as King at all; and therefore yon are mistaken to fay that Hoveden mentions the like Oath to be taken to Duke John, as it was before to King Richard;

c In the next place pra'y consider,' that*. upon, thei^ath'. 'of't^tf one of** tifcfe Princes, we do not find the great Council of the/Rfngdom,.;jwb'if b still' aslembjet}

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But I come now to answer your last Argument, whereby yon would prove that there was no Vacancy or Interregnum in this Age; which is, because that , our Chronicles and Tables of Succession do still begin the Reign of each King, from the day of the Decease of his Predecessor, without any Vacancy or Interregnum between them. To which I reply, That none of our antient Chronicles or Historians reckon thus, as I know of, but rather acknowledge a Vacancy of the Throne to have been between each Succession; and as for the Tables of the Succession of our Kings, when you can mew me one more antient than the time from which I grant the Crown ofEngland began to be looked upon as a Successive, and not an Elective Kingdom^ I shall be of your opinion. But admit it were so, since the Succession to the Crown had been for the most part mixed, partly Elective, and partly Hereditary, our Kings might, to maintain the Honour of their Title, still reckon their coming to the Crown immediately from the Death of the last Predecessor, tho there have been oftentimes some Days and Weeks between the one and the other, as I have now proved, and (hall prove further by and by •, which being but small Fractions of Time, are not taken notice of in the whole Account, which may be notwithstanding very agreeable to Law; for both my Lords Dyer and Anderson in their Reports do agree, "That « the King, who is Heir or Successor, may write and begin his Reign the fame '" day that his Progenitor or Predecessor dies."

M. It will be to no purpose to dispute this Point with you any longer, since I mast confess that there were so many Usurpations in the Succession of most of those first Kings after the Conquest, that it is a difficult matter to prove any settled Rule of Succession to have been then observ'd in England; and therefore I only desire you to take notice, that tho it is true, King Henry III. was an Usurper for the first twenty five Years of his Reign, yet for all the rest of it, which was near thirty more, he was a true and lawful Prince: for Eleanor his Cousin being dead in Prison without Issue, and there being no more of that Line left, her Right wholly devolved upon King Henry,and he and his Children are to be from henceforth reckon'd to have a true Hereditary Right to the Crown without any Competitors.


{618}

And that this was so, will plainly appear from the Testament of King Henry 111. (a Copy of which I have by me) where, tho he bequeaths a great many of his Jewels to the Queen, and a great deal of Mony to charitable Uses, yet for this Kingdom, and other Territories in France and Ireland, he makes no> Bequest of them at all, either to Prince Edward his eldest, or to Edmund his youngest Son, tho his Father King John had bequeathed the Kingdom to him by his Will (as you have already shewed:) and what could be the reason of this? but that there being now no Title left to contest with his Son, there was no need of it. And therefore tho Prince Edward was absent in the Holy Land when his Father died, yet a great Council being call'd in his Name at London, he was there only recognized and acknowledged to be their natural Liege Lord, and Lawful Successor to bis Father's Throne. Pray read the words as they are in Walsingham's Life of this King; Edwardum abfentem Dominum [mmLegium recogmvtrunt, patemique fuccejforem honoris ordinavcrunt. We meet not here with any thing like Election, which no doubt we mould not fail to do, if there had been any such thing practised.

So likewise upon this King's Death, hh SonKiag Edward U. by the like Right succeeded as Heir to his Father;and tho this Prince, by suffering himself to be too much guided by his Minions, fell at length into such irregular Courses, as procured him the Hatred and Ill-will of his Subjects to that degree, that by the disloyal and ambitious Practices of his lascivious Queen, he being made a Prisoner, a Parliament was call'd in his Name, who took upon them to depose him for his Misgovernment, contrary to aU Law and Right: and tho his Son Prince Edward had hitherto join'd with his Mother against his Father, yet is he herein so far to be commended, that tho the Crown was offered him by Election of the Great Council, yet the fame Author tells us, he swore that without his Father's Consent he would never accept it. Whereupon divers Messengers or Delegates being dispatched from the Parliament to the King, then Prisoner at Kenelworth- Castle, who telling him what had been done and concluded of at London, required him to resign his Crown, and permit his Son to reign in his stead; which with some reluctance he at last agreed to: and thereupon Prince Edward took the Crown, not by Election, as you set forth, but by the Cession and Resignation of his Father, as appears by the account which this King gave of it to the Sheriffs of all the Counties of England within a few days after his taking upon him the Crown; which Writ or Letter is still to be seen among the Rolls in the Tower, and is also published in Walsingham as a Proclamation;which because it will give very great light in this matter, I pray 381. now read it at length: Rex, Vtcecom. Ebor.Salutem; Quia Dominus Edwardus nuu 1' per Rex Anglia pater nosier de communi confilio & ajfenfu Pralatorum,Com; Baron. &■ ^ ss aU or. Magnat. neenon Communicat. totius Regni pradiH. spontanea voluntate fe ang-movit a Regimine dull Regni volens & concedens, quod nos tanquam ipsius primage 26. nit us & hartsRegniguhernationem & regimen asiumamus, nofque ipsius patris nostri heneplacito in hoc parte de confilio &avifamento Prelator. Com. Baron. Magnat. &■ Communicat. prxdill. annuentes gubernacula suscepimus ditliRegni; & sidelitates Homagia ipforum Prelator. & Magnat. recepimvs, ut eft moris, tefte Regc apud Wefimonajh.29 J*tt. So that you here fee this King takes no notice of the Deposition of his Father, or the Election of himself, but only that by the common Counsel and Assent of the Prelates, Earls, Barons, &c the King his Father had, by his own free Will, removed himself from the Government of the Kingdom, and that therefore he had, by the Good-will of his said Father, and by the Counsel and Advice of the said Prelates, Earls, &c. taken the Government of the said Kingdom upon him.

But King Edward III. being dead, his Grandson Richard II. succeeded him, having been before recognized by Act of Parliament, as Heir apparent to the Crown in his Grandfather's life-time, immediately upon the Death of his Father Edward the Black Prince} so that he succeeded to the Crown, tho an Infant!, and had .great and powerful Uncles then alive: but by his ruling too arbitrarily, and being too rooch governed by Flatterers, he became hated of his Subj«cts, and thereupon gave occasion to Henry Duke of Lancaster (whom he had before banished) to come over and take the Kingdom from him without striking a stroke-, who having taken the King Prisoner, call'd a Parliament in his Name, who took upon them most unjustly to depose King Richards chard, tho 'tis true he also made a solemn Resignation of it by his own seeming Consent: but it is certain it was forced from him, for fear of worse Usage if he refused it.

F. Pray give me leave to answer what you have now said, before you proceed farther in this History of the Succession. In the first place, I (hall not deny but that from the Reign of King Edward I. the Crown has been always claimed (tbo not constantly enjoy'd) by Right of Blood; yet that the Custom was otherwise before, I think the Instances I have given from the time of your Conquest, are more than sufficient: it is likewise as certain that this Succession, by Right of Blood, was never settled by any positive Law, and therefore mult be puiely derived from that tacit Consent of the People called Custom. Secondly, That the two Houses of Parliament have often, notwithstanding this Claim, placed or fixed the Crown upon the Heads of those Princes, whom they very well knew could have no Hereditary Right to it. Thirdly, That such Princes have been always obey'd, and taken for Lawful Kings, all their Laws standing good at this day, without any Confirmation by their Successors, tho they pretended to a better Title. Now if I prove every one of these three Propositions, 1 think the case will be very plain, that tho the Crown has been claimed and often enjoyed by Right of Blood, yet hath it been held near as often otherwise since that time: so that the Succession to it hath been still declared to be under the Direction and Limitation of the present King and Parliament.

This being premised, I shall proceed, in the next place, to answer what you have said concerning King Edwardthe First's being only recognized, and not elected King by the Parliament. It is plain from thi« H;n-«-.. -1- (Vui^i o-:ir —


r, v. juugmg wno mould be his Successor, and that without any Summons from him: which will serve to justify (as do all the other Instances aforegoing) that the late Convention meeting, and settling the Crown without any Writs or Authority derived from King James, was no new thing; but that they have therein done no more than what hath been antiently practised in like cases: and tho ('tis true) the word in Walsingham is recognoverunt, yet there are also other words which seem to intimate, that it was then in the • power of the Great Council whom to declare for lawful Successor. The words are, Pattrnicfue Succcjsorem honoris ordinaverunt \ that is, they ordain'd or decreed him Successor of his Father's Dignity: which sure is somewhat more than a bare Declaration of an undoubted precedent Right. And what Power the Great Council was then looked upon to have in the ordering of this Kingdom, appears by that Writ ofBedimtu, for all Mens taking the Oaths of Allegiance in the Country; which is still to be seen in the close Rolls, and begins thus: Ovia dcfun&o jam Celebris memoria Domino Henrico fatrr ttostro, ad nos Regni Gubernaculumfuecejfione Hareditaria Procerum Regni voluntate & sidelitaxt nobis prasitit a sit devolutvm, &c. Where, besides the Hereditary Succession, the Goodwill and Fidelity of the Great Men is reckon'd as one of the means by which the Kingdom came to him. And that this Course was also observed upon the Accession of his Son Edward II. to the Crown, seems likewise as evident from the fame Author, who tells us in the beginning of the Life of this Prince, that he succeeded his Father King Edward, non tarn jure Hareditario, tptam unanimo confenfu Procerum& Magnatum: Which Observation had been altogether needless, had an unalterable Hereditary Right to the Crown been then settled.

But as to what you fay of King Edward the Third's Right, whilst his Father was living, that it, was wholly due to his Resignation, tho the place I cited out of Walsingham be express in this point j yet against this you urge a Writ or Declaration, as also a Proclamation of this King's, wherein he thus sets forth his Title, viz.. " That by the voluntary Resignation of King Ed' »« ward his Father, and by the Counsel and Advice of the Prelates, Earls, and ** Barons, &c. he had taken upon him the Government of the Kingdom:" and consequently tftat succeeding immediately upon his said Father's Resignation, there could be no Vacancy of the Throne. To which I answer, that I do not deny that after this King was once settled in the Throne, he might think it most to his Honoar, and the Independency of his Title, to rely wholly upon his Right of Succession as eldest Son and Heir, without taking

K k k k 2 any

any notice of the Parliament's Election of him •, tho this be also covertly expressed in these words, which are in this Writ and Proclamation, viz.. "That "consenting to his said Father's pleasure, he had taken the Government de"consilio & advisamento Pralator. Com. Baron. Magnat. & Communitat. pneditt." which tho you translate by the Counsel and Advice of the Prelates, Earls, Barons, and Commonalty, yet I do suppose that by Consilio is here meant not Counsel, but Consent, as 1 have already proved the word Consilium often signifies in our antient Statutes •, for otherwise if this word must here signify Counsel, it would be a plain Tautology, for Advice and Counsel are the same thing.

But to shew you also that there must needs have been a Vacancy of the Throne, either upon the Deposition or Resignation of Edward II. (take it which way you will) it appears from matter of Fact; for it is plain, that when Prince Edward refused the Crown upon the Parliament's electing him, unless his Father would willingly resign it, he did at their Request resign his Title to it, by certain Commissioners sent down to him to^»*/toerf/>Castle to take it. Now that Place being at least two days Journy from London, it is certain there must be as many days Vacancy of the Throne, if not more, before the ; \ said Commissioners could get to London, and that PrinceEdward had agreed to

take the Crown upon his Father's Resignation; for till then the Throne was vacant, since till the Prince had declared his Assent to take it, he might have chosen whether he would have accepted it or not, as not being satisfied whether his Father's Resignation was voluntary, and not by constraint. Now if there were a Vacancy of the Throne in this cafe, tho but for two or three days, it serves to prove the matter in question, as well as if it had been for two years.

So likewise let the Reign of King Henry IV- begin either from the Resignation or Deposition of King RichardII. (take it which way you please) there must have been a Vacancy of the Throne, as appears by the Parliament-Roll still extant: For it is there plain, that after the Instruments of King Richard's Resignation and Deposition were solemnly read, the Throne continued void for some space, till such time as Henry Duke of Lancaster stood up and made his Claim to it, in that form of words which stands to this day to be seen upon the Parliament-Roll;and that the Archbishop of Canterbury, taking the Duke by the hand, had led him to the Throne, and placed him thereon.

M. I cannot deny, but as you have set forth the matter of Fact, there must have been a Vacancy of the Throne in these two Cases; but since the Depositions of both these Kings were contrary to Law, and their Resignations extorted from them by constraint whilst they were in Prison, they are neither of them looked upon as valid, or to be urged as Precedents in future times. But however the Throne might seem then to be vacant in point of Fact, yet in Law it was otherwise; for Edmund Earl of March ought to have immediately succeeded upon the Death or Resignation of King Richard, as being lineally descended from Philips a, only Daughter "and Heir to LionelDuke of Clarence, third Son of King Edward III.'

But to let you see that Henry Duke of Lancaster (as much an Usurper as he was) was sensible that the Crown could not be then enjoyed by Election, but by Right of Blood; and that the Parliament also thought themselves in Duty bound to submit to him, to whom by Right of Blood the Crown did belong, will appear from this Duke's manner of laying Claim thereunto; which since you have not particularly mentioned, I will: For no sooner was the Throne vacant, by the pretended voluntary Resignation of King RiVid.Rot.Parl. chard, but Duke Henry, having fortified himself with the sign of the Cross, 10 Hen. 4.20.'stood up, and made his Demand of the Crown in his Mother-Tongue, in this form of words (as I have extracted them out of the Parliament-Roll.)

In the Name of the Father, Son, and Holy Ghost.

IHenry of Lancaster challenge ttygl Weatome Df Inglonde, ano tfic Cojone, tuitfa all the spemberg ano appurtenances; also that 31 am Descents Might itlne of the IBlooe, coming seo t&e guDe JLo?B Siing Henry the Chico: ana tljojghe flat -UtB&t, ttyit <©od of W #?ace Ijatlj sent me, pity t&e fcelp of nu> iium, ano of mt* JFrtenu3 to recover it: Zljz topics; Keafome toasi (H popnt to I»e Ulrtan fujDefault Of Governance and undoyng of the gude Laws.


And after which Challenge and Claim (fays the Record, which I render "out of Latin) as well the Lords Spiritual as Temporal, and all the States ** there present, being all severally interrogated, what they thought of the "aforesaid Challenge and Claim; she above-named States, with all the Comu monalty, without any Difficulty or Delay, unanimously agreed, that the "aforesaid Duke should reign over them." Where you may see, that this whole Parliament admits the Duke's Claim for good, without proceeding to any formal Election of him.

• And by virtue of this (ham Title, and claiming as Heir of Earl Edmund, (sirnamed Crouch-back) Brother to King Edward I. (whom he falsty pretended to have been the eldest Son to King Henry III. and put by for his Deformity) not only Henry IV. but also his Son Henry V. and his Grandson Henry VI. (tho Usurpers) did succeed as right Heirs to the Crown, till the 39th year of Henry VI. when Richard Duke of TVÆdidina full Parliament lay Claim thereunto in right of his Mother, being only Sister and Heir of Edmund Earl of March. And because the Judgment of the Parliament in this Cafe is very remarkable, pray read this part of it, as it stands recorded in the Parliament-Roll: "Whereupon consideration of the Answer, and Claim of the Duke of York, Vid.Rot.Parl. "it was concluded and agreed by all the Lords, that his Title could not be 3* Hen.6. "defeated \ and therefore for eschewing the great Inconveniences that may en- '1' "sue, a Mean was found to save the King's Honour and Estate, and to apw pease the said Duke if he would; which was, that the King (viz.. Henry "VI.) should enjoy the Crown during Life, the Duke to be declared the true "Heir, and to possess it after his Death, r>c." And note, that all this was done after a solemn Hearing of all that could be said on both sides.

F. I confess the matter of Fact, concerning King Henry the IVth's coming to the Crown, is truly recited by you from the Padiament-Roll; yet for all that it doth not follow, that the Parliament allowed this King's feigned and false Claim to be good, by their not contradicting it. For tho the Record says, "That upon the hearing of this Challenge or Claim, all the Estates «« of the Kingdom being then asked their Judgments severally, declared, "without any Difficulty or Delay, and unanimously agreed that the said "Duke should reign over them :" Yet considering the Duke's great Power, it was not safe telling him to his face, that he had no true Right by Inheritance; therefore they only declared in general words, without exprefly denying or affirming his said Claim,Tiiat he Jhould reign over them .- which words do rather amount to an Election of him to be King, without declaring what Title he had to be so. And this they thought they might very well justify, not only for his having delivered them from the Tyranny of King Richard, but also because they then looked upon it as their Right, not only to depose the King in cafe of an apparent Violation of the fundamental Laws of the Kingdom, but also to place in his stead any of the Blood Royal, tho not next Heir by Blood; according to the Message the whole Parliament had formerly sent to King Richard, in the beginning of his Reign, by the Archbishop of H. Knyghton,Canterbury, and his Uncle the Duke of Clocester, which I gave you at our ninth co1- 26SlMeeting (as I remember.) And pray take notice the words were, Et propinquiorem aliquim de ftirpe Regia, loco ejus in Regni foliosublimare j where observe:, that .the words were not the next of Blood, but some near Kinsman of the Blood Royal.

And tho it is true that King Henry V. and VI. might both seem to succeed to the Crown by Right of Blood, yet I do rather attribute their Right of Succession to an Act of Parliament made in the seventh, and confirmed in vid. 7 Hen.4. the eighth year of Henry IV. whereby the Crown was entailed upon all his Sons «p. 2. by name, and the right Heirs of their Bodies; by virtue of which Settlement, both Henry V. and VI. succeeded thereunto. For if he had thought his own feigned Hereditary Title to have been sufficient, he would never have troubled himself to have procured the Crown to be settled upon himself aud his Children by Act of Parliament.

M. AU

M. All this ljignifies nothing; for 1 have already sufficiently proved, that in the 39th year of Henry VI. upon a solemn hearing before the Parliament of the Claim of Richard Duke of York to the Crown, the said Act was set afide \ and it was there expresly declared, " That the said Duke's Title could "no ways be defeated." And this Agreement is still on Record, between Hen* ry, the then Possessor of the Crown, and the said Duke (whose Right it was) B. H. s. pag. and the Judgment of the Parliament was then given in behalf of Proximity of 3S<5. Blood, as to have always been the Foundation and Ground of Succession to the

Crown of England, and of taking it from the Son of Henry VI. and restoring it to the Duke of Tork and his Issue as right Heirs thereof: as appears by the Title and Pedegree of the said Duke, set down at large in the first Article of this Agreement, confirmed by Parliament; that is, by King Henry VI. himself, who was then King de Fablo,tho not de jure.

F. I will not deny the matter of Fact to be as you have set forth j yet if you will but please to consider the time when this Declaration and Agreement was obtained, and the manner how it was done, you will quickly find, that it was rather got by Force and Constraint upon that poor Prince Henry VI. than by any real Right the Duke ofYork had to the Crown, after its being settled for three Descents in the House of Lancafitr.

For the proof of which I desire you, in the first place, to take notice, that at this time the whole Kingdom was under general Discontent, not only for the loss of all our Conquests in front*, but also for the great Mismanagement of Affairs at home, by reason of the exorbitant power of the Queen, and her two Favourites, the Dukes of Somerset and Suffolk, who made the King a mere Cypher, aud1 had, without his Consent, made awayHumphry Duke of Glocefief (the King's only Uncle then living) contrary to Law. So that Affairs being in this ill Posture, it was very easy for the Duke of York and the Earl of Warwick to procure a sufficient Interest in the Nobility and great Men of the KingVid. Grasion'i dom, to raise an Army,, on pretence at first only of reforming the Grievances chromde. th{; Kingdom, and bringing the said Dukes to Justice i the Issue of which War was, that the Duke not being strong enough at first to oppose the King's Forces, was fo*cect to surrender himself \ and to obtain his Pardon, took a solemn Oath never to rebel against the King again- But being afterwards at. tainted at a Parliament held at Coventry for new Conspiracies he then again rebelled, together with the Earl of Warwick: and then King Henry being carried to head his Army, was by the Duke of York taken Prisoner in the Battle nearNorthampton; and being tbence by him brought up to London, a Parliament was called in the King's Name (tho without his Consent) wherein the Duke of York had the Confidence to seat himself in the Royal Throne, and to Vid. Record, make that Challenge of the Crown you have recited. And under how great a 39 H. 6. n. Terror all the Friends and Servants of this poor Prince were at that time, ap» ii) 12,13. pears plainly from this, that neither the King's Attorny, nor any of his Council durst undertake to plead his Cause before the Parliament, nor yet would the Judges give their Opinions in a matter of such great moment; but they all answered, *' That this Matter passed the Learning of the Justices, and also "that they durst not enter into any Communication concerning this Matter, "and besought all the Lords to have them excused for giving any Advice or "Counsel therein; but the Lords would not excuse them: and therefore, by "their Advice and Assistance,, it was concluded by all the Lords, that the Ar*' tides following should he objected against the Claim and Title of the Duke." So that you see from the Record it self, that the Judges were with much ado prevailed with to object any thing against the Duke's Title.

Therefore considering the Contempt the King's Person was then under by reason of his Weakness, and the great Hatred and Weariness the Nation had then of the evil Government of the Queen and her Favourites, it was no more difficult for the Dnke of York to procure this Judgment in Parliament in savour of his Title, than that HenryIV. should, after he had put Richard II. in Prison, get him deposed, and make his own Title to be allowed for good. And certainly if it were Rebellion for the Duke of Lancaster to take up Arms against King Richard H. and to depose him, I cannot see why (according to your own Principles) it should not be the same Crime in the Duke of York to take up Arras against King Henry VI. to whom he had more than once sworn Faith



{623}

and Allegiance; and having taken him Prisoner, to call a Parliament without
his Consent, whereby himself was declared Protector of the Kingdom, and
the Son of King Henry disinherited after a quiet possession in three Descents,
during the space of above sixty years: which if it will not give a thorow Setr ,
tlement, after two Acts of Parliament to confirm it, I know not what can.

M. 1 confess you have given me a more exact account of this Transaction than ever I yet had; and I should very much incline to be of your Opinion, were it not that I am satisfied that our Kings have a Right to the Grown by God's Law as well as Man's, as also by the Law of Nature. And that more than one Parliament have been of my Opinion in this Matter, I shall fliew you from several Statutes and Declarations of Parliament; which tho not printed, are yet to be seen at this day upon the Parliament-Rolls. For after that Henry VV or rather his Qpeen for him, had broken the aforesaid solemn Agreement made between this King and Duke in Parliament, whereby it was accorded, that if King Henry made war again upon the Duke of York, he Ihould then forfeit his present Right to the Kingdom during Life; Queen Margaret, and her Vid. Graston'i Son Prince Edward, who would not submit to this Agreement, renewed chronicle. the War, and fighting another Batrel at Wakefield, the said Duke was shin. But tho he did not live to enjoy his Right, yet his Son Edward Earl of March again recovered it; and having in the second Battle of St. Albans taken King Henry Prisoner, triumphantly marching to London, he there declared himself King. And having immediately called a Parliament, it was therein declared, ** That all the Proceedings against King Richard II. are repealed, and the tak- Pad.Rolls, 44 ing him Prisoner by Henry Earl of Derby was declared against his Faith iEdw.4.11.8, "and Allegiance, and that with Violence he had usurped upon the Royal Power 9> 10» M and Dignity, &c. and that he had by cruel Tyranny murdered and destroyed ^ S 8g. M the said King Richard, his Liege and Sovereign-Lord, against God's Law, *4 and his own Oath of Allegiance."

And then they proceed further to declare in these words: " That the Com-ibid. *' mons of this present Parliament having sufficient and evident Knowledg of *l the said unrightwise Usurpation and Intrusion by the said Henry,late Earl of ,'* Derby, upon the said Crown of England; knowing also certainly, without *l Doubt and Ambiguity, the Right and Title of our said Sovereign Lord (viz. ** King Edward IV ) thereunto true, and that by God's Law, Man's Law, and 41 the Law of Nature, he, and none other, is and ought to be their true, "rightwisc, and natural Liege and Sovereign Lord, and that he was in Right ** from the Death of the said noble and famous Prince his Father, very just M King of the said Realm of England, and will for ever take, accept, and re"pute the said KingEdward IV. their Sovereign and Liege Lord, and him M and his Heirs to be Kings of England, and none other, according to the « said Right and Title.

"And that the same Henry unrightwisely, against Law, Conscience, and the ibid./. 389. 44 Customs of the said Realm of England, usurped upon the said Crown; and «* that he, and also Henry, late called King Henry V. his Son, and Henry, late "called Henry VI. his Son, occupied the Realm of England and Lordship of "Ireland, and exercised the Governance thereof by Unrightwise, Intrusion, 41 Usurpation, and no otherwise: That the Amotion of Henry, late called "King Henry VI. from the Exercise, Occupation, Usurpation, Intrusion, "Reign and Governance of the said Realm and Lordship, done by our Sove"reign Lord King Edward IV. was and is right wise, lawful, according to the "Laws and Customs of the said Realm, and so ought to be taken, holden, 44 reputed and accepted."

I have been the larger on this Point, because it is a full and free Declaration of the whole Parliament, not only against all past as well as future Parliaments having any thing to do in the Disposal of the Crown, but is also as express a Declaration as words can make, against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me, if I have been a little too tedious in reciting these Records.

F. I cannot blame you for being very exact in this Point, because the whole strength of your Cause depends upon it: But yet I doubt not but to shew you, that this Parliament was as much awed by King Edwardys Power, being now Conqueror, as ever those Parliaments were that deposed Edward and Richard




the Second 5 for you your self have sufficiently set forth the manner of it,
that it was not till after a great Victory obtained against King HenryVl. And
I never found, in all my reading, that a victorious Prince ever wanted power
enough to get a Parliament called to settle himself in the Throne, and declare
his Competitor an Usurper, as I (hall shew you more fully by and by. But
this Act of Parliament, which thus positively declares Edward IV. to be
their Sovereign Lord, by God's Law, Man's Law, and the Law of Nature, I
think cast no ways coufist either with Scripture, Reason, or Matter of Fact.
For, in the first place, I think I have sufficiently proved, that there is no Di-
vine Right of Succession for the Heirs of Crowns, any more than of other
Inheritances, either by the Law of God, or that of Nature: and as for Man's
'Law, I think I have here also proved, that the Succession to the Crown, by
Right of Blood alone, was never established by any positive Law, nor yet set-
tled by any constant or uninterrupted Custom, when this Declaration was made;
for the Crown had then never descended from Father to Son for above two
Descents without a Deposition, or possessed by those who claimed by Right of
Blood, without any other Title. For as for the three Kings of the House of
Lancaster, I have already proved (and you your self must also own it) that
they could have no Title to the Crown, but from the Acts of Entail of the 7th
and 8th of Henry IV. above-mentioned; so that according to Man's Law (that
is, Custom) and also the Statute-Law of this Kingdom, the House of Lancaster
had all that time the better Title.

But to shew you what uncertain things Parliaments are, when King Edward IV. had reigned ten years, he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him, and in his absence he replaced King Henry VI. upon the Throne, who had been all this while kept in Prison. And Vid.jGraston'* the first Act this King did, after his Restoration, was to call a Parliament, chronicle. which revoked all the former Statutes and Declarations of the 39th of Henry VI.

and 1st of Edward IV. and then entailed the Crown anew upon the Issue of King Henry, the remainder to the Duke of Clarence, who then took part with King Henry against his own Brother.

'Tis true indeed, that King Edward IV. returning again not long after into England, and regaining the Crown from King Henry VI. the said King was not only murdered, together with his Son Prince Henry, but in the next Parliament was also attainted of Treason, with all others of his Party. And to let you fee that this very Act is now null and void against King Henry VI. and his Son Prince Edward, fee an Act of Parliament of the 1st of HenryVII. (not printed) which because it is not commonly known, I will read it almost verbatim: Rot.Par. 1 H." The King, our Sovereign, remembring how against all Rightwisenefs, Ho7. n. 16. Re-ci nonr,Nature, and Duty, an inordinate, seditious, and slanderous Act was made, stituao Henna « aga;nfl; tne most famous Prince of blessed Memory, King Henry VI. his Uncle, cx"' "at a Parliament holden ^.Westminster the 4th day of November, the 1st year of

"the Reign of Edward IV. late King of England, whereby his said Uncle, con"trary to the due Allegiance and all due Order, was attainted of High Trea'* son j wherefore our same Sovereign Lord, by the Advice and Assent of the w Lords Spiritual and Temporal, and Commons in this present Parliament as"sembled, and by Authoritys of the fame, ordaineth, enacteth, and esta«* blisheth, that the fame Act, and all Acts of Attainder, Forfailure, or Dis"ablement made or had in the said Parliament, or else in any other Parliau ment, of the said late King Edwardagainst the said most blessed Prince w King Henry, or against the right famous Princess Margaret, late Queen of "England, his Wife, or the right victorious Prince Edward, late Prince of tl Wales, Son of the fame blessed Prince King Henry and Margaret, Sec. are "void, annulled, and repealed, and of no force nor effect." So that by virtue of this Act, the Title of the House of Lancaster was again declared to be good.

But to conclude I cannot but take notice of one Mistake you have fallen into, by saying, that all Proceedings against King Richard II. are repealed by that Parliament of the 1st of Edward IV. which is not so: for tho I grant that the Dealings of Henry Euxloi Derby .(as he is there called) in imprisoning the said King, and usurping the Royal Power, is there expresly condemned, and his murdering of him said to be against God's Law, and his own Oath of

Allegiance Allegiance (as certainly it was; ) yet the Deposition of the said Kiflg Richard by Parliament is no ways repealed by this Act, for then all the Records thereof would have been quite cancelled and taken off the Rolls, whereas they still remain to be seen at this day. And you fee by this Act I have now recited, "That the Attainder of King Henry VI. is declared contrary to due Alle"giance and all due Order, and all Forfeitures and Disablements of the said "King and Prince are quite annulled and made void."

M- I must confess you have so staggered me with this Act, that I know not what to fay to it, but that it was made in the first Parliament of King Henry VII. and before he had married the Princess Elizabeth, and consequently had no good Title to the Crown himself; therefore till then I look upon him as an Usurper. But I ihall now proceed to lhew you, that that very King, nay even Richard III. himself, chiefly relied, not upon any Parliamentary Election, but upon their own pretended Title of being right Heirs by Blood: for after the Death ofEdward IV. his Son Edward V. was proclaimed King, and might have quietly enjoyed it, if his ambitious UncleRichard Duke of Glocester had not plotted to defeat him of it •, knowing well that he had no way to bring it about, but by inciting a corrupt Party of the Bishops and Lords, to- Vid. Giasion'j gether with the Lord Mayor ofLondon, and some of his Party in the City, to chromcle. set forth by way of Petition to the Duke, then Protector of the King and Realm, " That all the Children of King Edward IV. were Bastards, supposing "that King to have been contracted with a certain Lady called Eleanor Bote"ler, before he married Queen Elizabeth; moreover, that the Blood of his "elder Brother George Duke of Clarence deceased was attainted, so that none *« of the lineal Blood of Richard Duke of York could be found uncorrupted "but in himself." And there was, at the Conclusion of that Roll, an Address to him from the Lords and Commons of the Kingdom, that he would take the Government upon himself. This fine Artifice, assisted with his feigned Excuses, which induced the less-thinking fort of People to believe he desired not the Royalty ; and prompted on the other side with the fear of his power, procured his Accession to the Throne: so that at last he and his Wife Anne were solemnly crowned King and Queen atWestminster; and by these steps did that inhuman Prince, who had no Title to the Crown either by Descent or by Merit, ascend the English Throne. Now you see that not by Election, but by pretence of Blood, and by bastardizing and attainting his Nephews, he set himself up for the true Heir of- the Crown; and therefore in the Parliament he called immediately after his Coronation, when they had declared almost the very fame things as were before in the said Petition, they proceed further, *' to declare that the Right, Title, and Estate which KingRichard III. had to vid. cclUeiirn lt and in the Crown and Royal Dignity of the Realm of England, with all»/Records, "things thereunto, within the said Realm and without it, annexed and ap-1 R'«h«J3' "pertaining, was just and lawful, as grounded upon the Laws of God and *' Nature, and also upon the antient Laws and laudable Customs of this said *' Realm, as also taken and reputed by all such Persons as were learned in the ** abovelaid Laws and Customs." And they proceed farther thus: "ThereM fore at the Request, and by the Assent of the three Estates of this Realm (that "is to fay, the Lords Spiritual and Temporal, and Commons of this Land) "assembled in this present Parliament, and by the Authority of the same, it ** is pronounced, decreed, and declared, that our said Sovereign Lord the "King was and is the very undoubted King of this Realm of England, with "all things thereunto belonging within the laid Realm, and without it, uniM ted, annexed, and appertaining, as well by Right of Consanguinity, and «* Inheritance, as by lawful Election, Consecration and Coronation.".

So that you see tho they put in his Election, as also his Coronation, as means of obtaining the Crown; yetthe pretended Hereditary Right of Blood was the main ground of his Establishment. But as for King Henry VII. tho he could claim the Crown by no true Right of Inheritance, yet would he never own it to be an Election by Parliament: for as soon as King Richard was flain in the Battel of Bofworth, the Lord Stanley put his Crown uponHenry's Head; who imme- Vid.W Badiately stiling himself King, as well by Right of Conquest, as by being sole Heir * Male of the House of Lancaster, he as such, caused himself to be crown d f< i King: and tho he afterwards call'd a Parliament, in which he procured his

L 111 Tltle

Title to be recogniz'd; yet, as my Lord Bacon well observes, he was afraid £0 take the Crown (by his only true Title) in " right of the Lady Elizabeth his "Queen, for fear he should only be King by Courtesy, and must upon the "Queen's Death have refign'd it again} and should he take it by Election, *' he knew there was a very great difference between a King that holdeth his '* Crown by a Civil Act of the Estates, and one(w»W that) that holdeth it ori"ginally by the Law of Nature, and Descent of Blood: and therefore upon "these Considerations, he resolv'd to rest upon the Title of the House of Lanu caster as his main Right i and thereupon he caus'd an Act of Parliament to "pass, wherein his Title was acknowledg'd (as my Lord Bacon, there tells us) ** not by way of Declaration* or Recognition of Right, as on the other side '* he avoided to have it by a new Law of Ordinance, but chose rather a kind of "a middle way, by way of Establishment, and that under covert and indiffef rent words} that the Inheritance of the Crown should rest, remain, and "abide in the King, &cn which words might be equally applied, that the Crown should continue to him *, but whether as having former Right to it (which was doubtful) or having it then in Fact or Possession (which no Man denied) was left fair to Interpretation either way. I speak not this to justify all his Actions, but to let you fee that he chiefly insisted upon his Right of Inheritance, and absolutely disown'd any Title by Election from the People.

F. I cannot deny the matter of Fact concerning King Richard Ill's deposing Jjis Nephew, and usurping the Crown, to have been very wicked, and contrary to the receiv'd Law of England concerning the Succession at that time; and likewise that by bastardizing his Brother the late King's Issue without due course of Law, and by attainting the Blood of his other Brother the Duke of Clarence, he would have made the World believe that he was lawful Heir by Right of Blood: yet you cannot deny but that for all thtSj he was so seni.ble of tie weakness of his Title, that tho (it is true) his Right by Blood is dedar'd in the first place in that Act of Recognition, yet it is plain he would not rely upon that alone •, and therefore you fee the Parliament there also insists upon his Right by Election and Coronation, which they would never have done, had it not been that they look'd upon it for good Law, that whoever was crown'd King, and call'd a Parliament, and had his Title therein recogniz'd and confirm d, was thenceforth true and lawful King to all intents and purposes. Therefore tho you have omitted it, I shall proceed to shew you, what this Statute also farther declares: For after they had declar'd the said King's Title, as grounded upon the antient Laws, and laudable Customs of the Realm, according to the Judgment of all such Persons as were learned in them; they proceed thus: " Yet nevertheless, forasmuch as it is consider'd, that "the most part of the People is not sufficiently learned in the aforesaid Laws ** and Customs, whereby Truth and Right in his behalf, of likelihood may "be had, and not clearly known to all People, and thereupon put in doubt and tl question j and over this, how that the Court of Parliament is of such Au"thority, that a Declaration made by the Three Estates, and by the Authou rity of the fame, maketh before all other things most faithful and certain uquieting of Mens Minds, and removeth the occasion of Doubts, and seditions w Language j therefore they also declare that he was the undoubted King." Whence 'tis evident, that the Reason of this Law suppofeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of onr Kings depend, and that the best Satisfaction that the generality of the People can possibly have in those high Matters, was to rest on the Judgment and Determination of the Kingdom, declar'd by Act and Authority or Parliament, and therein to acquiesce for the preventing Sedition: therefore what 1 said before in the Case of King Stephen, is also true in this, quod fieri non debuit, fattum valet; and all the Acts made in the Reign of this King Richard, tho a horrid Usurper, were never repeal'd, but stand good at this day.

As to what you fay concerning the manner of King Henry VII's coming to the Crown, it is also true; but as for his Title to it by Right of Succession, that was certainly false: for his Mother the Countess of Richmond was then alive, by whom he claim'd the Crown, and liv'd divers Years after he was King. So Rot. Par!. that tho I grant that it is recited in the Parliament-Roll that he claim'd the 1 Hen. VII. Crown in Parliament, tamper juftum titulumhtreditanti*, qvam per verum Dei

judicium,

[graphic]
[graphic]

— .in i^uig Deiongin;

._„, „.ui me Appurtenances thereto in any wife due or pertain

** ing, be, rest, remain and abide in the most Royal Person of our now Sove** reign Lord King Henry the Vllth, and in the Heirs of his Body lawfully ** coming perpetually, with the Grace of God so to endure, and in none other."

Now this was done some time before he married with the Princess Elizabeth; for as soon as this Act was made, "the Commons requested the King to marry ** Elizabeth, the Daughter of King Edward the lVtb, that by God's Grace there "might be Issue of the Stock of their Kings," (as their own words were.) That this was rather to preserve the Blood-Royal, than to give any new Confirmation to his Title, appears from hence, that there was never any other Act after the Marriage to declare the Right of the r>«—■ and Our*" «• r' -'

[graphic]

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, , — »u His wire's, but in his own Right, since he held it after her Death by virtue of this Statute; which plainly lhows, that (in the Judgment of that Parliament) the House ofLancaster was looked upon to have the better Title. And tho it is true that the King procured the Pope's Bull, now in the Cotton Library, to strengthen his Title, threatning all those with Excommunication that should osier to rebel against him; yet even that Bull (tho his Right by Inheritance and Conquest be first mentioned) concludes with his Title B.H.S.^391. by the Election of the Prelates, Nobility, and People of England, and the Decree or Statute of the three Estates in their Convention, called the Parliament, as this Bull it self expresses it.

M- I must confess you have told me more of these matters than I ever heard of before, for I always thought that there had been no Act of Settlement upon King Henry the Vllth, until after his Marriage with the PrincessElizabeth; for till then I look upon him as an Usurper upon her Right, as he was also after her Death upon his Son's successively: so that if you will have my Opinion, I conceive that this Statute, being made before he had a lawful Right to the Ciown, is wholly void, as is also that of the Repeal of the Attainder of King Henry the Vlth, for the fame reason.

But let his Title be what it will, it is certain his Son, Ring Henry the VHIth, succeeded to the Crown, as Heir rather to his Mother than his Father, and so was in by Remitter •, but as for King Edward the Vlth, he was undoubted Heir by Right of Blood, as being the only Heir Male to his Father: and tho it is true, that King Henrymade divers Statutes, whereby healter'd the Succession of the Crown, as to his two Daughters Mary andElizabeth, sometimes declaring them both illegitimate, and then again giving them a Right; to succeed by Act of Parliament; yet these Acts of Succession were obtain'd purely by the B.H.S./.393. King's Sollicitation and Command. And tho at last he got himself impower'd to make a Will, whereby he might settle and entail the Crown on whom he pleased•, yet all these Acts of Parliament, as also this, signified just nothing after his Death: for tho his said Daughters, Queen Mary and Elizabeth, did one after another succeed his Son, King Edward the Vlth, yet was it not by virtue of any of these Acts of Parliament, or by the aforesaid Will, but by pure Right of Inheritance (or colour of it at least;) and therefore in the first of Queen Mary, there is an Act declaring " the Queen's Highness to have been 1 * "born in most just and faithful Matrimony, and also repealing all Acts of Par"liament, or Sentence of Divorce, made or had to the contrary."

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Now certainly the Intention of this Act was to declare her Succession to be Inheritance by Right of Blood} so likewise in the first of Elizabeth, the 44 Lords Spiritual and Temporal, and the Commons, do declare and confese 1 Eliz. c 1. « tnat Queen Elizabeth is in very Deed, and of mere Right, by the Laws of "God, and by the Laws and Statutes of this Realm, their most rightful and "lawful Sovereign Queen, and that she was rightly, lineally, and lawfully deil scended and come of the Blood-Royal of this Realm of England" All which (whether it.were true or not in her) yet the lineal and lawful Descent of Queen Elizabeth, was the ground upon*which she was declared to be their rightful and lawful Queen.

And tho I grant that King Henry the Vlllth had by his last Will and Testament postponed all the Issue of his SisterMargaret Queen of Scots, and preferred the Children of his younger Sister, the Queen Dowager of France (whom she had by Charles Duke of Suffolk) before them; yet was this Will afterward cancelled, and torn off from the Rolls in Chancery, where it was recorded,

B.H.S. 394." and that by order of Queen Mary (as is supposed.) So that James the Vlth, King of Scotland, was by Right of Blood declared and proclaimed King of England immediately upon the Death of Queen Elizabeth, as right Heir of the Crown: And in the first Parliament after his Coronation, his Title is by them particularly recognized in the words, which 1 desire you to read with me; "where after setting forth his Pedegree, as lineally descended from the Lady ** Margaret, eldest Daughter of King Henry the Vllth, and Queen Elizabeth his «* Wife, Daughter of King Edward the IVth, they farther acknowledge King »* James their Lawful and Rightful Liege Lord and Sovereign; and farther "fay, as being bound thereunto both by the Laws of God and Man, that they *' do recognize and acknowledge, that immediately upon the Dissolution and ** Decease of Elizabeth, late Queen of England, the Imperial Crown of the *' Realm of England, and all Kingdoms and Dominions belonging to the same^ ** did by inherent Birthright, and lawful and undoubted Succession, descend and "come to his most Excellent Majesty, being lineally, lawfully, and justly next tl and sole Heir of the Blood Royal of this Realm; and thereunto they do "most humbly and faithfully submit and oblige themselves, their Heirs and c< Posterities for ever, until the last drop of their Blood be spent." I have been the more particular in the Recital of this Act, because it stands not only as a perpetual Declaration of the fense of the Representatives of the whole Nation for an Hereditary Succession of the Crown, without any Vacancy or Election, but also because it contains their solemn Engagements for themselves and their Posterities for ever to King James and his Issue, and consequently to his right Heirs for ever. So that nothing can be more directly contrary than this Act to the late Proceedings of the Convention, first in declaring the Throne vacant, and then placing the Prince and Princess of Orange therein.

F. I will not deny but that King Henry the Vlllth, and Edward the Vlth, both succeeded by Right of Inheritance; but whether the former claimed it as Heir to his Mother or his Father, is much to be doubted, since being Heir to both of them, he never declared by what Title he held the Crown: but as for his two Daughters, Queen Mary and Queen Elizabeth, it is certain their best Titles were from these Acts of Parliament: for as to Queen Mary, it is plain, that at her coming to the Crown, she could not be looked upon as Heir by

chap. 22. Right of Blood, because by the Statute of the 25th of Henry the Vlllth, his Marriage with QueenCatherine her Mother was declared unlawful, and the Crown settled upon the King, and the Heirs of his Body lawfully begotten on Queen Annt Bullen: and besides all this, she was but Sister by the half Blood to KingEdward the Vlth, and so could not inherit as Heir to him. And tho in the first Year of her Reign, the Parliament ('tis true) took off her lllegitimation, and repeal'd the Acts of the 25th and 28th of Henry the Vlllth, whereby ssie was declared illegitimate; yet in this, the Parliament seems rather to provide for the Honour of her Descent, than (as you would have it) to declare her Succession to be Inheritance by Right of Blood ; because the Statute of the 35th of Henry the Vlllth, whereby the Crown was settled upon Prince Edward and the Heirs of his Body, the remainder upon ,the Ladys Mary and Elizabeths and whereby the King had also power given him of disposing the Crown by Letters Patents, or by Will, was not at all repealed: and for which a memorable rable Reason is given in both these Acts, " lest: if such Heirs should fail, and u np provision made in the King's Life who mould rule and govern this Realm ** for lack of such Heirs, that then this Realm should be destitute of a law** ful Governour;" Whereby it seems plain, that the Parliament then esteemed no Heirs to have a Right by Law farther than had been declaeed by these Statutes.

So likewise for Queen Elizabeth, her Title was more apparently by Act of Parliament: and that she looked upon her self sufficient to have succeeded by virtue of the Limitation of the Statute of the 35th of Henry the VHIth, last: mention'd, appears in that she never procured her Mother's Marriage to be declared good, and consequently her own Illegitimation to be taken ofT So that lake it which way you will, it is certain that either Queen Mary's or Queen Elizabeth's Title must have been only by Act of Parliament, since (he was born whilst Queen Catherine,King Henry's first Wife, was living: and therefore when the Parliament you mention, in the first Year of QueenElizabeth, declared, " That she was rightly, lawfully, and lineally descended, and come of *« the Blood Royal of this Realm;" these words can only be understood of such a lineal and lawful Descent as is here declared to be so by virtue of this, as well as the former Statute, and not according to any Hereditary Descent at Common Law, since it is very well known, that as long is the Pope's Dispensation for King Henry's Marriage with the PrincessCatherine, his Brother's Wife, was allowed for good, as it was till the latter end of Henry the Vllth's, and all the first twenty five Years of Henry the VHIth's Reign, the Princess Mary was looked upon as the only presumptive Heiress of the Crown. This I tell you, not to invalidate Queen Elizabeth's Title, but to let you fee that Acts of Parliament, if they declare that which is apparently false in matter of Law or Fact, are not to be credited, unless you will give them more power than God himself, who cannot (as all Divines agree) make that to have been done which was never done, or that not to have been done, which hath once come to pass.

I come now, in the last place, to examine the Act of Recognition of King James the First's Title to the Crown, which I will not deny to have been by Right of Blood, since none of the Descendants of King Henry the Vllth could have any Title before him: for tho it is true it was otherwise ordained by King Henry the Vlllth's Will, yet that (as you your self show) was not only cancelled in Queen Mary's time, but was also void in it self. For whereas by the Statute of the 35th of Henry the VHIth, there was a power given him to dispose of the Crown, either by his Letters Patents, or else by his last Will signed with his Hand; yet was this Power never legally executed: for those that have argued against this Will, have told us, that he never signed it in vid. Lethinghis life-time, but that a stamp of his Name was put thereunto after his De- to.a'l^!""' f? cease •, as manifestly appeared by open Declaration made in Parliament of this matter by the Lord Paget and others, that King Henry did never sign it with theid vol."of his own hand; as was also proved by the Pardon obtain'd for one William Clerke, the Historyof for putting the Stamp upon the said Will after the King was departed. So the **s°rmathat tho 1 grant that KingJames had a very good Title to the Crown of Eng- '""> fo1'26?' land by Inheritance, yet whether it was from KingHenry the Vllth alone, or from Queen Elizabeth his Wife, is not there declared; only that he was lawfully descended of Lady Margaret, eldest Daughter to Ring Henry the VHtb, and Queen Elizabeth his Wife, eldest Daughter of King Edward thelVth; and therefore, " that they are bound both by the Laws of God and Man to re'•' cognize his Majesty as sole Heir of the Blood Royal of this Realm." All which is so far true, if by the Laws of God, and Man's Law, you will thereby understand such Laws as God impowers the King and Parliament to makej for otherwise, there is no more heed to be taken of this Declaration, than that which was made before to Richardthe Third, which also declared him to have a good Title to the Crown by the Laws of God and Nature, and the Laws and Customs of this Realm. So that I fee nothing in all this Act of Recognition that at all contradicts my Notion, that King James's Title is wholly derived from the Act of Settlement made on King Henry the Vllth, from whom he was lineally descended; therefore tho his Pedegree be also derived from Queen Elizabeth, eldest Daughter to King Edward the iVth', yet this Was only ex abun*

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danti, to fiiow that he had every way a Title to the Crown; and if (he her self had any Title, it was wholly by virtue of those Acts of Parliament of the 39th of Henry the Vlth, and 1st of Edward the IVth, which Vested the Crown iit Richard Duke of Tori-, and King Edward the IVth, his Sen, and which last Act first declared that the three Henrys of the House of Lancaster were only Kings in Deed, and not of Right; for before that time 1 defy you to fiiow me in all our Histories or Law-Books any such Distinction. In all foregoing times, he that was solemnly anointed and crowned King in Deed, was also looked upon so to be in point of Right: and therefore let those Statutes you so much insist upon, talk ever so much of any King's being so, by any fundamental Hereditary Right, precedent to, and independent from the Power of the two Houses of Parliament j I am very well satisfied that such a Declaration must be void in it self, since I have already proved that there was no such Law of Succession ever settled by any general Custom, or Common Law, and it hath been near as often broken as observed: and as for any positive or Statute-Law, enacting any Hereditary Right of Succession, you do not so much as pretend to show it. So that 1 think I have sufficiently proved the three Propositions I laid down,viz.. That ever since the time" of Edward the First, tho the Crown has been claimed by Right of Blood, yet has it not been very often enjoyed by Princes who had no just pretence to that Title. Secondly, That the two Houses of Parliament have often, notwithstanding that Claim, placed, or at least fixed the Crown upon the Heads of those Princes, who they very well knew could have no Hereditary Right to it. Thirdly, That such Princes have been always taken for Lawful Kings, all their Laws standing good at this day, without any Confirmation by their Successors. So that all the modern Acts of Parliament for entailing the Crown, being made and ordained by the Counsel and Assent of the Lords and Commons, are so many plain Declarations, and evident Recognitions, what the fundamental Constitution of the English Government was in that grand Point.

M. 1 did not think that you, who were so great an Admirer of the two Houses of Parliament, mould now be so much against their Power, in joining with the King to declare what the true Right of Succession to the Crown is, and hath ever been from time beyond memory; but 1 fee Acts or Declarations of Parliament signify nothing with you if they are against your Hypothesis, or else you would never go about thus to expose those Acts of Parliament of King Edward the IVth, and King "James the First, whereby they are declared both by the Laws of God and Man undoubted Heirs of the Crown. And the last Act I cited, -viz.. that of King James the First, doth sufficiently confute your Notion of a Vacancy of the Throne; where it is exprefly declared, "That immediately upon the Decease of Queen Eliz.abeth, the Crown of Eng'* land, with all the Dominions belonging to the fame, did by inherent Birth*' right, and lawful and undoubted Succession, descend and come to his Ma"jesty King James" So that if there then were no Vacancy of the Throne, I cannot fee how there could be any such thing now, the next Heir to the Crown (be he who they will) being certainly not so far removed from King James I. as himself was from King Henry VII. under whom he claimed. • F. I must still confess my self to have a great Veneration for the solemn Declarations of King and Parliament, made by any Statute yet not so as to idolize them, or to look upon all their Declarations as infallible. I grant indeed, that whosoever is by them declared and recognized for King or Queen of England, is to be acknowledged and obeyed as such by all the Subjects of this Kingdom, without farther questioning his Title. But if not content with this, they will also take upon them to declare that such Kings or Queens have an undoubted Hereditary Right, by the Laws of God and Nature, when I plainly find from the Holy Scriptures, as well as the History of matter of Fact, and the Knowledge of our Laws, that they have no other Title than what the Laws of the Land have conferred upon them; they must excuse me, if I do not acquiesce in such Declaration. Nay, you your self cannot deny but that it was gross Flattery in the two Houses of Parliament to declare, that Richard the Third (for example) had a true and undoubted Right to the Crown, by the Laws of God and Nature, and also by the Laws and Customs of this Realm, when you know he was a notorious Usurper upon the Rights of his

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Brother, King Edward's Children. Now how can I be assured that the like Declaration made to King James the First, was not ^ikewise a piece of Courtship of the Representative of the Kingdom to this King, then newly settled in his Throne? fince we find the People of this Nation, when they are in a kind fit, never think they can fay or do too much for their Princes: And therefore I must freely tell you, that it is not the bare Declaration of a Parliament that this or that has been always the Law or Custom of this Realm, when we can find from History that it has never been so held for above four hundred Years at least, and therefore not beyond the Memory of Man (as yod suppose) since that must be before the Reign of Richard the First, as I have already proved to you at our Eighth Meeting.

But to answer your Objection against the Vacancy of the Throne, I do.freely grant, that as often as the Crown descends by lineal Succession, there can be no Vacancy of the Throne, as it did in the Cafe of King James the First; y£t doth it not therefore follow, that there can never be any such Vacancy in any Case whatsoever, fince certainly it may so happen, that all the Heirs Male of the Blood-Royal may fail, as it happen'd in the Case ofScotland, when John Baltol and Robert Bruce contended for the Crown, which not being to be decided by the Estates of the Kingdom, they were forced to refer it to our King Edward the First: and as also happen'd inFrance, when Philip of Falois, and our Edward the Third, both claimed the Crown, which was decided by a great Assembly of the States of France in the favour of the former, who claimed as Heir of the Male Line, against King Edward, who was descended by a Woman. And if King James's Abdication or Forfeiture (call it which you will) is good, pray give me a sufficient reason why the Convention of the Estates of England should not have as much Authority as those of France or Scotland; this being as much or more a limited Kingdom, than either of the other ever were.

M. I do not deny that, but pray shew me any sufficient Reason why the Convention should now vote a Vacancy of the Throne, since there was certainly an Heir apparent not long since in England, and 1 hope is now safe inFrance, who ought to fill it; or at least there should have been seme sufficient Cause alledged against him, to prove that he was not the true Son either of the King or Queen; and till this was done, they could not with any Right or good Conscience place any other Relation of his in the Throne, since every Person ought to be esteemed the Son of that Father and Mother that publickly own'd him for such: for it is a Maxim in our, as well as ydur Law, Filiatio non potefi probari.

F. How this could be performed without first declaring the Throde vacant,' I cannot apprehend; for you your self must grant, that there have been great Doubts and Suspicions of the Reality of this Prince of Wales • and therefore that being ope great reason of the Prince of Orange's coming over, the Truth of this Child j whether he was really born of the Body of the (Jueen, is first to be examined and determined, before he can be declared King of England in. the room of his supposed Father, whom we will also suppose civilly (tho not naturally) dead. And till this be done (unless you would have had him been declared King without ever examining the Truth of the matter) the Throne must have continued vacant till it could be decided* whether he, or his half Sister the Princess of Orange, were to fill it: and if so, while the Convention remain'd in this suspence, they could do no other than vote the Throne vacant, till they were sufficiently satisfied who had the best Right to it.

But to answer your Argument, that unless something could have been presently alledged against this Infant, to have proved him not to have been born of the Body of the Queen, he ought to have been declared King: The Maxim you mention may be well allowed in the case of common Inheritances, but not in that of Crowns; for in those we have read, that common and violent Presumptions have been looked upon as sufficient Proofs to set aside a supposed Heir of the Crown: as for example, something above two hundred Years since; Henry King ofCastile, called the Impotent (because he was not able to get his vid. Mariana'* Queen or any other Woman with Child) did out of hatred to his Sister ssa» History of bella, permit a Favourite of his to lie with his Queen, and get her with Child: sPainshe was brought to bed of a Daughter, but the Estates of the Kingdom would by no means admit her for Legitimate, because the Queen had before declared her Husband to be impotent; and therefore they did not only protest against

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her Legitimacy in the King's life-time, in an Assembly of the Estates, but also as soon as he died, they set this pretended Princess quite aside, and declared the Sister of the late King, Queen of Castile, who was married toFerdinand King of Arragon. Now though I will not fay, that either the Suspicions or Proofs against the present Prince of Wales are as pregnant as those against that Princess, yet certainly they were sufficient to debar him from being placed in the Throne, till such time as it shall be made apparent that he is really Son to the Queen.

M. If the Convention had gone this way to work, I grant there might have been some colour for what they have done: but then they ought, before they had placed any body else in the Throne, to have first examined the Truth of the Queen's being with Child, and her being truly delivered of this Prince, before ever they had declared the Prince and Princess of Orange King and Queen j and till this had been done, certainly the Throne should have still continued vacant: therefore I doubt your Convention have made more haste than good speed in this matter, which certainly required much more Deliberation.

JF. Come, I will for once admit that they ought, in the first place, to have examined your Prince's Title, but this is still to be understood, as far* as it was possible for them to do it, as it ought: now pray tell me how this could be done, when the Infant was not only carried away into a foreign Kingdom, but also the Midwife, the Nurse, and several other of the Queen's near Servants and Attendants went away along with him? who if they had been here, to have been cross-examined, might have declared the Imposture (if it be one.)

M. But pray, Sir, are there not Protestant Ladies enough left behind, who have already deposed before the Council (as appears by their Depositions published by the King's express Command, and enrolled in .Chancery, inverptuam Rei memoriam) not only that her Majesty was with Child, but that also fhe was really delivered of this Prince? so that the Prince of Orange and the Convention ought to have in the first place summoned those Witnesses you mention to be now in France, to have appeared before them, and if they had not come, then to have proceeded as the matter had required.

F. You must then grant that the Protestant Witnesses alone, who are now in England, were not sufficient; for if they should have deposed that this Child had been an Impostor, I suppose you would not have rested satisfied that they had spoke nothing but the Truth, since the Witnesses now in France (who best know the matter of Fact) might have sworn fhe contrary : but as for sending any Summons for them into France, it was altogether in vain, and that which the Convention were not at all obliged to do, because neither King James nor his Queen did ever own the Power of the Convention to hear or determine this Affair, and therefore would not have let the Witnesses come over. For after the Thrdne was declared vacant, the King must, by sending those Witnesses, have tacitly owned the Authority of the Convention, in declaring him-, self to have abdicated the Throne, as also that they might place his Son therein: so that any such Summons would certainly have been only rejected with Scorn, and we should have gained nothing but the loss of so much time, and hindred our present Settlement and Defence. Nor was the Convention obliged to do it, fince-the Parliament it self is not bound to take cognizance of any Person or Thing that is not within the Kingdom of England^ or the Territories belonging to it; and therefore it was not their business to enquire (unless it had been brought before them) what was become of this Infant, whether he was legitimate or not, or whether he was alive, or else had been cast away at Sea, or taken by Pirates any of which might very well have been. And therefore indeed this business could never have been decided, unless the Infant himself were actually present, and sufficient proof made, not only that this was the fame Child that was born of the Queen, but which was also carried away into Frame; all which could never have been examined as it ought, without the Child's personal Presence here, which I suppose you will grant that King Jamesand his Queen would never admit of, as things now stand. Therefore since a thorow Examination into this business was impossible to have been performed, the Convention have done no more than what Can be justified, in first declaring the Throne vacant, and then who should fill it.



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M. Well, but admit the Case were so as you have put it, the Kingdom ought however to have remain'd without a Ring, till the Succession had been duly settled j since according to the Act of Recognition to King I. « The Nation did "not only oblige themselves, but their Posterity (that is, we .that are now alive) *' to that King and his Right Heirs." And therefore till this Prince's Right had been determin'd, either the Convention should have govern'd, or else they ought to have made the Prince of Orange only Governour or Regent of the Kingdom, and not to have plac'd him and his Princess on the Throne, till the young Prince had died, or else had been prov'd to be an Impostor.

F. I doubt not but I can shew you not only the Unreasonableness, but also the unpracticableness of this Supposition. First, Its Unreasonableness, since you are very much mistaken to alledge that the whole Nation, by that Act of Recognition to King James, oblig'd themselves, and their Posterities, to him and his right Heirs by Blood. 'Tis true they there tell him, " That they made "that Recognition as the first Fruits of their Loyalty and Faith to him, and "his Royal Progeny and Posterity for ever: And also when they have acknow"ledg'd him to be justly and lawfully next and sole Heir of the Blood Royal "of this Realm, and that they thereunto submit and oblige themselves, their "Heirs and Posterities for ever: &c." there is no more meant or express'd in all this, than that the whole Nation did by their Representatives in Parliament oblige themselves and their Children to KingJames and his Posterity for ever. And I think that this part of the Recognition is sufficiently perform'd, by placing two of his Great Grandchildren in the Throne: for as to the words rightful or lawful Heirs, they are not to be found in all this Statute.

But as for your Notion of a Regency, it is plain it could signify nothing, either for our present Security, or future Settlement j not to the former, since this Regent (be he whom he would) must have govern'd in the Right of some body or other, since I never read of a Regency in England, during a Vacancy of the Throne; therefore I will at present admit that the Vote for King James'i Abdication had never been made, only that the Prince ofOrange had been declar'd Regent of the Kingdom, till such time as King James would have given the Nation sufficient Satisfaction of his reforming all past Miscarriages, and that his future Government should be according to Law. Now I would very fain know how it can be justify'd, according to your Notion of the King's absolute irresistible Power, to place a Regent over the Kingdom to govern in his stead, whether he will or not, when it is certain he is neither a Minor, an Idiot, nor a Lunatick: so that then he must have return'd again to the Government whenever he had pleas'd, or else the Convention must have been Judges whether the Security or Satisfaction he offer'd was sufficiently satisfactory or not; for if he himself was to be sole Judge in this Cafe, I suppose you will grant this Regency would quickly have been at an end. But on the other side, if this Right of judging had been left in the Convention, whether the King's Proposals were satisfactory or not, they might also have voted them not to be so j and till this was done, they might very well have justify'd their keeping him out of the Kingdom by Force. Now how that could have consisted with your Doctrine of the King's irresistible Power, I desire you would satisfy me if you can. So that by this Regency, the King must either have been depriv'd of his whole Power, or he must not \ if the former, that would have been as bad as deposing him from being King, and had left him no more than the bare Title: and whether this had not been a great deal worse (as more hypocritical) than the Convention's declaring him to have abdicated the Government, I leave it to any indifferent Person to judge.

But if you will suppose that this Regent must have govern'd in the name of your Prince of Wales, as being declar'd King, that would have been to have granted his Title to be good without hearing of it, and had been indeed to have given up the main Point in dispute.

M. I see you would fain find out any shifts for this pretended Vacancy, and placing those in the Throne to whom it doth not belong; yet tho I grant thae the word Right Heirs is not exprefly recited in this Act of Recognition to King James I. yet for all that, it is implied: for the Oath of Allegiance is enacted by Elizabeth 1. to be taken to the Queen, her Heirs, and lawful Successors-, and by the Oath of Supremacy (enacted in the lVth of King James) we



are likewise obliged to swear, that we will bear true Allegiance to his Majesty, his Heifs, and Successors. Now who these Heirs are, this very Act of Recognition doth sufficiently declare, nil. the next Heir by descent of Blood; for as. King Ja,m*s is hereby acknowledged to be Heir by inherent Birthright, so when they oblige themselves, and their posterities to King James, and bis Progeny, it is to be understood (by parity of Reason) that they oblige themselves and the Nation, for all future Generations, to him and his Issue in that fense; as that their Allegiance should be only due to him, or her, who should be lawful > Heir to their Father, Brother, or Uncle, according to those Rule* of Succession, that had been commonly receiv'd for above four hundred Years last past: that is to fay, the eldest Son, Brother, or paughter, being still to be prefer'd before the younger, and Sons before slaughters, and the fame Rule must also hold for their Descendants » fince upqn this ground it was, thet the Title of the House ofrork was prefer'd by Parliament wfore that of Latteaster; and the Tkle of the King of Scobs, who was defended from the eldest Sister, before that of the House of Suffolk, who, came fr°m the younger. And this being never aker'd by any subsequent Statute (or is it had, I think it would not have been good) the Convention ought either to have declar'd the Prince of Wales King immediately, ox at least to have contiuu'd the Throne vacant, let the Difficulties or Inconveniences that you suppose might have, soUow'd, be ever so great: and therefore it was their Duty to have fought out King James wherever he had been, and to have defir'd him to have soot over the Prince, together with the Witnesses that went away with him. And till this bad been absolutely refus'd, or else that upon a fair hearing this Prince had been prov'd an Impostor; 1 fay tift one of these had been done, the Throne ought still to have contiou'd vacant (if it were so atallj nor till this had been clear'd couW they have justified, the placing any body else upon the Throne, tho ever so neatly related t» the King; whom I will suppose for Discourse-sake, to have really abdicated the Kingdom.

F. I wist not deny that the legal and common course of Succession ought to be inviolately observ'd, according to the Rules, you have now laid down, whenever it may consist with the publick good and safety os the Kingdom; and yet for all that I cannat believe, that the King himself, much less any other, that only pretends as next Heir to him, can have such an absolute Right to the. Kingdom, as that no Considerations whatsoever can, make them lose or forfeit their Right thereunto: therefore I look u-pon, the Government of a icjxtg.dom not to be like that Interest which a private Man bath in an Estate, which is his.Right, let him be what he wills or left hjm, manage ift how he will. Whereas in the Right to,a Kingdom, I take UUftb^atrue Maxifli, That the Representatives of. a Nawan (as the Conyeat(ioB was) OO&Qt to, gave more regard to the Happiness and Safety of the whole People, or Commonwealth, than to the. Dignity or Authority of any particular Person wbpmsoever, ojq howsoever nearly related to the Crown; when it is evsidenk the advancement of such, a Person to the Throne, will prove destructive to our Religion, Civil kiberties and Properties.

Now give me leave to apply, what I have said to the Point in question: Let us therefore-afi present suppose, that your Prince of Walzs.'xs true and lawful Son toKing ^slwejand QjieenA/^; and: let me also farther suppose, that in his fate Passage ever Sea, bft had been taken by the Pirates of A\gieny or Tunis, and by them carried to one of those places, and bred up- in the Mahometan Religion; and after, he had been circumcised, and fully grounded in that abominable Superstition, the G-rand Signior, together with the Kings of Algiers and Tunis, should;send this Nation word, that if they would not admit him quietly for their King, and allow,- al) those Priests he should bring with him a free Exercise of their Religion in England., they would then make War. upon this Nation with ail the Forces they could raase. I ask you what we ought to do in thi&Case, whether we mould receive him sot) our King, or keep him out?

M. 1 must confess it is a. nice Question!; and since if U a thing that never did yet, nor 1 hope-ever will come to pass, I think I may freely answer you, Thaft supposing this Prince could be prov'd to be the very fame who was carried away so many ¥ear$ago, we ought, notwithstanding his false Belief, to receive him,;



especially if he Would solemnly swear, only to worship God ill private after his own way i and that he would swear not to violate our Religion, or invade our Liberties and Properties: add this being done, I think we ought then to admit him for our lawful Sovereign; since,-as yon your self have already acknowledge at our third Meeting, the supreme Powers are not to be resisted, because they are of a different Religion from that of the People Or Nation they govern.

F. Very well: But let me tell you, in this you are much more kind to Mahometan and Heretical Princes, than the Church of Rome, Who have decreed, Thit no Prince ought to be receiv'd as right Heir to a Crown, who is a Pagan, Turk, or Heretick; and upon this ground it was, that the States of France, during the time of the League, by the Pope's Decree, refus'd to own Henry King of Navarre for their Sovereign; and also, that the Papists of the Nuncio Party in Ireland during the late Rebellion, refus'd to own the late Duke of Ormond for Lord Lieutenant of that Kingdom, because the King was a Protestant.

But pray answer me a Question or two further: Suppose this Prince refus'd to promise these things, ot else if he did promise, and swear them; pray tell me how could we be asTur'd, that according to the Principles of that Religion he had been bred under, and those Arbitrary Notions he had learn'd concerning the absolute Power of Kings in Barbary, and which he would believe due to himself, as being as absolute a Monarch as any of them: I fay, how such a Prince ever cojld be trusted? Since if be had the whole Power of the Militia in his hands, fie might bring in what number of Turkish or Moorish Guards he should think sit, who might easily set up that Religion and Government too, in this Nation \ since, according to your Principles of Passive Obedience and Non-resistance, no Man ought to lift up so much as a Finger against him, tho he went about to make us all Turks and Slaves.

M. Well, supposing all this, as long as it is his Right he ought to have it, let the Consequencebe what it will.

F. You have said enough, I desire no more •, but I hope every true Protestant and Englishman will be of another mind if ever such a case should happen. But indeed it appears very strange to me, that a natural' Disability, such as Idiocy or Lunacy, should be esteem'd sufficient in all Kingdoms to debar the next Heir from the Government, and yet that a Moral or Religious Disability fliould not have the fame effect: and tho I grant that a King ought not to be rebelled against, or resisted, merely because he is of a different Religion from that of his Subjects, for 1 was never for resisting King James merely upon that score \ yet it is another thing when a Prince is not actually possessed of the Throne, but is to be admitted to it upon such Conditions as may appear safe for the Religion and Civil Constitution of a Kingdom. In this Cafe, is a Prince be certainly infected with such pernicious Principles, either in relation to Religion or Civil Government, it is much otherwise: as for example, That no1Faith is to be kept with Hereticks; That his own Religion is to be propagated by Arms, Blood, or Persecution j That no Government can be safe for the Prince, or in which he can appear Great or Glorious, but as an absolute Monarch: let such a Prince be either" a Christian or a Mahometan, I think it wouldi be a certain Ruin to a Kingdom to be oblig'd to receive such a Prince, when1 they were morally sure, that he; would not only subvert their Religion, but destroy the very Professors of it •, and not only those, but alter the Civil Constitution too, by turning it from a limited Kingdom, into an absolute despotick Tyranny.

To conclude, I shall only desire you to consider, into wh'at a Country your Prince of IVales is carry'd, and what Instructors b/e is like to have, and what Principles he will receive from them: and then pray tell me, if he continues there till he is a Man, what difference there will be between this young Prince' bred up in such a Religion, and such Principles, and the fame, if he had been carried away by pirates to Algiers, as I at first suppos'd?'

M. This is'a'; very invidious Comparison; for tho I do not approve of the RoWanCatholick Religion, yet sure there is a great deal of difference between that'which' professes all the Articles of our Creed, and in which we of our CfinrcIVown Salvatloff may be obtained, and the Mahometan Superstition, Which'

M m m m z denies denies that fundamental Article of our Creed, viz.. That Jesus Christ is th« Son of God. And as for Civil or Political Principles, I hope the King his Father will take care to have him instructed by some of those English Noblemen or Gentlemen who are now with him, in the Customs and Constitutions of the EnglishGovernment, and wherein it differs from the French; as we read ChanFortescue ceuor Fortescue did Prince Henry,Son to Henry V. and I hope he will come - nm'^i over again t0 practise them in his own Country before he comes to be infected 'with the Arbitrary Principles of the French Government. But as for those of not keeping Faith with Hereticks, and propagating his Religion by Persecution i 1 doubt not but the King his Father will take care not to commit his Education to any of those who are infected with such Principles: and I am the more inclin'd to believe it, because it is very well known that his Majesty's Tenderness and Moderation in matters of Religion, and not persecuting any body for the Belief or bare Profession of it, as it was the greatest Cause of his late Declaration of Indulgence, so it was the main Original of all his late Misfortunes. Not can 1 fee any reason why a King by being a Roman Catholick, must necessarily be a Tyrant and a Persecutor, since you cannot deny but that we have had many good and just Kings of that Religion, and it is from those Princes that professed it that we derive ourMagna Cbarta, and most of the Privileges we now enjoy.

F. Tho I would not be thought to affirm, that the Romifli Religion is every way worse than the Mahometan;yet this much 1 may safely affirm, that there is no Doctrine in all that Superstition, so absurd and contrary to Sense and Reason, as that of Transubstantiation, held by the Church of Rome, in which the far greatest part are certainly Idolaters, which can never be objected against the Turks: and therefore tho I will not deny but that aMan may be fav'd in the Communion of the Romish Church, yet it is not for being a Papist, but only as "far as he practises Christ's Precepts, and trusts in his Merits, that he can ever obtain that favour from God.

But as for those evil Principles both in Religion and? Civil Government, which you cannot deny but are now commonly believed and practised in France, and which you hope King James will take care that the Prince his Son shall be bred to avoid; I wifli it may prove as you fay: but if you will consider the Men that are like to be his Tutors and Instructors in matters of Religion, viz.. his 1 Father's and Mother's Confessors the Jesuits; and for Civil Government, those Popish Lords and Gentlemen of notorious Arbitrary Principles and Practices, who are gone over to King James ^ you will have small reason to believe, that there is ever a Fortescue now to be found among the Englishmen in France, or who is likely to instil into him those true English Principles you mention.

And tho I do not affirm, that every Popish Prince must needs be a Persecutor, yet since that wholly depends upon those Priests that have the management of their Consciences, shew me a Prince in Europe who has a Jesuit for his Confessor, and tell me, if he hath not deserv'd that Character.

But tho I am so much of your Opinion, that King James owes the greatest part of his Misfortunes to his Declaration for Liberty of Conscience; yet was it not so much to the thing it self, as to his arbitrary manner of doing it, by assuming a dispensing Power contrary to Law: and you maybe very well assur'd by the little opposition which the late Acts met with for taking off the Penalties against Conventicles, and not coming to Church, in respect of all Dissenters, except the Papists, that King James might have as easily obtain'd a like Act to pass in respect of those also, as to the free Profession of their Religion, and having Mass in their Houses; which is more than the Papists will allow the Protestants in any Country in Europe. And therefore I must beg your pardon if I still find great reason to doubt whether King James's Tenderness towards those that disser'd'from him in matters of Religion, and the Indulgence he gave them, were purely out of Consideration of tender Conscience?, and not rather thereby to destroy the Church of England establissi'd by Law; since the Dispute began between King James and his Parliament, was not about Liberty of Conscience, but those Offices and Commands which the King was resolv'd to bestow upon the Papists, whether the Parliament would or not. And certainly there is a great deal of difference between a Liberty for a Man to enjoy the free Profession of his own Religion, and the Power and Benefit of


having all the chief Imploymentsof Honour and Prosit in the ComtrtoriwealthY But that the Indulgence of Popish Princes towards those that dissent from then* in matters of Religion, may not always proceed from pure Tenderness and Compaflion, appears from a Manuscript Treatise of F. Parsons, (that great Jesuit in QueenElizabeth's time) which 1 have been told was found in King James's Closet after his Departure. This (if you can fee it) will shew you* that the subtle Jesuit doth there direct his Popish Successor, in order to the more quiet introducing the Roinan-Catholick Religion, to grant a general Toleration of all Religions; out of a like defign. Thus did Julian the Apostate long ago tolerate all the Sects and Heresies in the Christian Religion, because he thereby hoped utterly to confound and destroy it.

But as to what you alledge concerning Magna Cbarta's being granted by Popish Princes, and that there has been many good Kings Of that Persuasion j as I will not deny either the one or the other, so I desire you to remember with what struggling and great difficulties this Charter was at first obtain'd, and afterwards preserv'd, tho it was no more than a Declaration of most of those antient Rights and Liberties which the Nation had always enjoy'd. And you may also remember that they were Popish Princes, who more than once obtained the Pope's Dispensation to be discharged from, those solemn Oaths they bad taken to observe those Charters; and tho there have been divers good Princes before the Reformation, yet even the very best of them made the severest Laws against Protestants, and were the most cruel in their Persecutions; witness King Henry IV\ Henry V. and Queen Mary.And indeed, it is dangerous to rely upon the Faith of a Prince, who looks upon it as a piece of Merit to destroy all Religions but his own; and when he finds it cannot be done by Law, will not stick to use any arbitrary means to bring it about. To conclude, pray consider whether the strict observing or violation of Magna Charta and his Coronation-Oath, hath been the cause of King James's Abdication. Pardon this long Discourse, which your Vindication of the Opinion and Practices of Popilh Princes hath drawn from me.

M. pray, Sir, let us quit these invidious Subjects, which can do no good, since Princes must be ovvn'd and submitted to, let their Principles and Practices be ever so Tyrannical; and let us return again to the matter in hand. I will therefore at present suppose the Prince of Wales to have been either dead j or justly laid aside. Now make it out to me how you can justify the placing the Prince and Princess of Orange in the Throne, when the Crown is really her Right after the Prince of Wales, and not her Husband's *, as also the putting the Government solely into his hands: since this can no ways agree with the Act of Recognition to \Xvs\%James\. which you your self cannot deny but ought to be observ'c}, when it may be done without any apparent hazard or prejudice to the Protestant Religion, and the Constitution of our Government; which I think might have been as well, if not better secur'd, by letting it have gone in the right Line, than by placing the Crown upon the Head of a Prince; who, of the Blood-Royal by his Mother, yet being a Foreigner, is a mere Stranger to our Government and Laws, and has been bred up in Calvinifiical Principles; and upon that score is not like to have any good Intentions towards the Government and Ceremonies of the Church of England, as appears by his late agreeing to abolish Episcopacy in Scotland,upon his accepting that Crown from the Presbyterian Convention.

F. If these be all the Objections you have to make against placing King William and Queen Mary on the Throne, I hope they will not be of any great moment to your self, or any other considerate Man: for if upon the Abdication of King James, and the impossibility of determining your Prince of Wales'* Title (if it be one) a Regency was impracticable and unsafe for the Nation ac that Conjuncture oftime, when wewanted a King to hold a Parliament, as well to raise Mony to defend us against the Power of trance, as also to make new Laws for the Ease and Reformation of the Kingdom; all which a Regent's acting without Royal Authority could never do, by the Constitution of this Kingdom: then there was a necessity of placing some body in the Throne, for the common Good and Safety of the whole Commonwealth; and 1 think you your self cannot but acknowledge, that the Princess of Orangehad an Hereditary Right to the Crown j and if her Highness had, the Prince her Husband also ought to


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govern £he Kingdom in her Right during her Life. And those who deny King Henry \J\\. to be Lawful King before his Marriage with the Princess Elizabeth, will yet grant he was so in her Right after his Marriage: and this has not been only the Custom in England, but also in other Kingdoms of Europe, as I can give you several Instances- For upon this ground it was that Ferdinand King of uirragon, by marrying with Isabella Queen ofCastile, govern'd that Kingdom during his Life: so also Anthony Duke of Bourbon marrying with Jane Queen ofNavarre, did in her Right administer the Government of that part of it which was left unconquer'd by theSpaniards: and here at home Philip Prince of Spain, by his Marriage with Queen Mary, had certainly in her Right govern'd this Kingdom, and had enjoy'd something more than the bare Title of King, had he not by the Articles of Marriage, confirmed by Act of Parliament, been exprefly debar'd from it.

Ai. Admit all this to be true, yet this was only the Enjoyment of a bare Matrimonial Crown, and held no longer than during the Lives or Marriage with those Queens you mention. But pray tell me, how can the Convention, according to the antient Constitution of this Kingdom, justify the Settlement of the Crown, not only on KingWilliam during the Queen's Life, but for his own Life also, to the prejudice not only of hi^own Issue (if ever he have any by the Princess) hut also of the Princess of Denmark and her Heirs?

F. I doubt not but to shew you, that this may be easily justify'd by the Constitution of the Kingdom, and former Precedents of what hath been done in the like Cafes. First, As, to the Constitution, I have already prov'd that upon the Deposition of a King (which is all one with a Forfeiture of the Crown) the Great Council ot Parliament have taken upon them to elect or admit either the next Heir by Blood, or some Prince (thomore remote) of the Royal Family, to the Crown. Thus King Henry IV. upon the Deposition or Resignation of KingRichard H. was plac'd in the Throne by the Archbishop of Canterbury, after the two Houses had voted and consented he should reign over them; tbo 1 grant that by Right of Blood, Edmund Earl of March ought to have succeeded to it: but he being then a Child, was pase'd by unmention'd •, Duke Henry being then powerful, and having deliver'd the Kingdom from the Tyranny and evil Government of Richard II. I shall pass by Richard 11L because 1 own his Government to have begun by Usurpation, and to have been establilh'd by the Murder of his Nephews. But as for Henry VII, I have already shew'd you, that the1 Parliament before his Marriage with the Princess Elizabeth, settled the Crown upon him, and the Heirs of his Body,, by virtue of which he held it all his Reign: whereas there is no such thing done in the present Case of King William, since he hath only the Crown settled upon him during his own Life, with the remainder after his decease, without Issue by the Queen, to her, and nothis Right Heirs; and as for such Children as he may have by her, it is agreeable to Reason, that he should hold the Crown by that which we call the Courtesy of England during his Life, and not from a King become a Subject to his own Children, in cafe he should desire to live here after her Majesty's decease, winch I hope God will prevent.

M. I confess you have drest up a pretty plausible Title for King William; but yet all that you have said amounts to no more than this, Than because other Kings have been Usurpers, he may be so too: for as to all the Instances you have brought, they have been only from Depositions or manifest Usurpations, both which our Laws have condemn'd as absolutely unlawful; as I have shew'd you hath beendeclar'd by two Acts of Parliament, against the Title of Henry IV. and his Descendants. But since you will not insist upon the Right of RicljardlU. I pass to that Act of Henry VII. which, as I told you before, so l must repeat it again, that it was done upon his suppos'd Right by. Blood, as-Heir to the House of Lancaster, and upon that pretence he claimM the Crown as his Right, in. his Speech to the first Parliament he call'd: besides, the Princess Elizabeth, the Queen dt Jure, made no claim to the Crowji, and so did tacitly resign its, which srem'd to make him de Jure as well as de Fa&o King; and if it were done otherwise, I look upon that whole Act as void in it self, because made by him before his Marriage with that Princess, and whilst he was an Usurper upon her Right. So that certainly it is no Argument that since Parliaments have acted illegally, therefore your Convention may do so too j for it-is a known



Maxim io our Civil Law, a facto ad Jus non valet consequentia: therefore whatever they have done toward creating a good Title to King William in respect of the Queen his Wife, and h is Issue by her, yet this no way excuses the wrong done to the Princess of Denmark and her Issue, in cafe they survive your King.

F. 'Tis very wonderful to me, to fee how ingenious some Men are in finding faults with the present Settlement of things, tbo ever so much for the best, if not done exactly to suit with their Humour, or Hypothesis, when indeed there can no fault be justly found with it: for you agree that if the Queen hatb a Right, King William hath so also, during his Lifej and whether the Princess of Denmark and her Issue may survive the King, is yet uncertain: but if either she or they should happen to survive his Majesty, yet since she bath made no Claim or Protestation in the Convention, against the King's holding the Crown after the decease of the Queen, I cannot see why this would not pass for a tacit Resignation of her Right, as well as in the cafe of the Princess Elizabeth you but now mention'd.

But admit bis present Majesty, according to the late receiv'd Rules of Succession, hatb not a Title by Descent} yet according to those Principles I have already laid down, he certainly has a Right to the Grown, from that inherent Power which I suppose doth remain in the Estates of the Kingdom, as Representatives of the whole Nation, to bestow the Crown one very Abdication, or Forfeiture thereof, on such Prince of the Blood Royal, as they shall think best to deserve it: and upon this account I conceive there is none of the Blood, that can stand in competition with his present Majesty for Prudence, Valour, Moderation, and all other Royal Virtues; and therefore it is not at all to be wonder'd at, if the Convention hath in this Cafe exercised that Original Power, which the People referv'd to themselves, at the first Institution of Kingly Government in this Island.

Therefore I cannot but here take occasion to vindicate his present Ma jesty from those Exceptions you have made against his Country, and Civil as welt as Religious Principles. First, As to his Country, 'tis true he is a Foreigner; yet that can be no Exception against his admission to the Throne, since it was noise against his Great Grandfather King James: and I doubt not but his Majesty may understand as much, if not more of the EnglishConstitution and Government, than his said Grandfather did, when he first came to the Crown.

But as for his Principles in Religion, I cannot fee any reason to suspect him more inclinable to the Church-Government of Holland, than that of England, since he was bred up under a Mother, who was always firm to the Religion and Discipline of our Church \ and ever since he was married to the Princess, he hath always shew'd a very great Respect to its Liturgy and Ceremonies, by his so constant frequenting his Princess's Chappel. So that besides his Majesty's Interest to maintain Episcopacy, as most agreeable to the Monarchy and antient Constitution of this Kingdom; it is likewise (if he were able) not in his power to destroy the Church of England, since the main Body of the Clergy, Nobility, and Gentry of this Nation is so zealous for its Preservation; that if he had any such1 Inclinations, it would not be easy for him to effect it, and he is too wise a Prince to let others persuade him so visibly against his own Interest, and having so late an Example before his Eyes, that it was King James's Ruin to attempt it.

As for what you fay of Scotland; 'tis true, Presbytery isfov the-present set up there, but it is uncharitable to impute this to the King's Inclinations: for 'tis notorious, that of them who call themselves Episcopal in that Kingdom, the greater number did either out of prejudice to the Prince's Cause, or in contempt of his Power, refuse to be chosen Members of the Convention >, or else after they were chosen, did so far adhere to KingJamesTi Interest, as to desert it; as did my Lord Dundee, and many others, and by that means gave the Presbyterian Party an advantage to carry all things as they pleas'd: and this Party finding the King not well settled here, and the Irish in Ireland'm Armsagainst him, took hold of that opportunity to pnt the abolishing of Episcopacy into the very. Instrument of Government, and to press it upon him at a time when an unavoidable necessity and the obstinacy of too many of the Episcopal Party fore'd him to consent to it. Wherefore this noway (hews his Majesty's Inclinations to set up Presbytery even, in Scotland -y much less doth it prove he

would would set it up here, where the Circumstances are quite different: for here the main Body of the People hate that Government, and will be so far from desiring it, that they will never endure it. So that as to this, your fears of King William are as vain, as your hopes of King James.

I shall conclude with a few words in answer to your reply against those Examples, wherein I have Ihewnyou that the Crown hath always been under such a Disposition as the two Houses of Parliament (hall appoint; to which you have nothingelse to object, but that their Admission of Henry IV. to the Crown was condemn'd as unlawful by two Acts of Parliament, which I have already answer'd, by showing you that those Acts were obtain'd byRichard Duke of Tork, and Edward IV. his Son, by actual Rebellion, and by as great a force upon King HenryVI. as ever was used against King Richard II. by Henry IV. And as for the Statute of the first of Henry VII. you have found out a very easy way of answering if, by affirming that it was done whilst he was an Usurper, and before his Marriage, or that he had any right to be King. But by this way of arguing, no Act he ever palled would be good, since it is certain he did nevet take upon him to govern in right of his Queen, as all those that have writ his Life do acknowledge; and therefore if the Parliament would then settle the Crown upon him and his right Heirs, without any respect to his Queen, or her Issue or Sisters, in cafe flie should die childless, I cannot fee why the Convention may not as well now settle the Crown upon King William and Queen Mary and their Issue, with remainder to himself for Life: especially since he hath also another Title of his own to confirm it, viz. that of a Conqueror over King James, and our Deliverer from his Arbitrary Government.

M. I shall not go about to derogate from King William's personal Virtues, which you so highly extol •, only I wish I may not prove too true a Prophet, since that is not the main question between us. I shall only take upon me to answer in the first place what you have urged on the behalf of King William** pretence to the Crown as a Conqueror over King James, and Deliverer of the Nation } for whatsoever he may pretend to in respect of the latter, I am sure he cannot justly pretend to the former •, since sure he can never have any right by Conquest, who expresly sets forth in his first Declaration, that he only came to obtain a Free Parliament, and to redress our Grievances. Much left can he be properly call'd a Conqueror, who never overcame his Enemy in any pitch'd Battel, but by false Stories made the King's Army desert him; and then, when this was done, having fore'd the King to leave the Kingdom for fear, he has in the day of his Power by these means obtain'd the Crown: and as for a Deliverer, you must pardon me, if I cannot think him so, since I am not yet satisfied that the worst of KingJames's Oppressions ever deserved that the Prince of Orange should take the pains to come over to redress them.

And therefore your parallel between your King's Title, and that of Henry IV. and Henry VII. doth not at all agree, since both of them claim'd not so much by Conquest, or force of Arms, as by a pretended right of Inheritance, as you may fee by both their Claims. And as for Henry IV. 'tis plain, he look'd upon his Title by descent of Blood (having been allow'd in Parliament) to be so good, that for the first seven Years of his Reign, he never thought it worth while to pass an Act for the Settlement of the Crown upon himself, and his Issue: but for Richard III. andHenry W\\. they were so far from owning their Titles to any Act or Declaration of Parliament, that they first clap'd the Crown upon 'their own Heads, and after they had done it, they immediately call'd their Parliaments j which tho they recogniz'd their Titles, yet did not make them Kings, but found them so: whereas the Convention has by their sole Authority, made the Prince of Orange, and the Princess, King and Queen of England, to the prejudice of the right Heirs of the Crown.

F. 1 doubt not, but what I have already said, may very well be defended, notwithstanding the utmost you have now argued against it. In the first place, as to what you fay against King William's Title, as a Conqueror over King James, it is very trivial: for tho it is true, the Prince declar'd before he came over, that his coming was for no other end but to obtain a Free Parliament, redress Grievances, and to remove evil Counsellors from KingJames -y yet that is still to be understood, that the King would agree to those reasonable demands the Prince then made: for if by his own obstinacy he would bring things to



that pass, as that instead of redressing those Violations he had made upon out
fundamental Laws, he raised an Army to support himself in them ; and when
he thought this Army would not fight in his so bad a Cause, he then disbanded
it, and by that, as well as the Desertion of the Throne, owned himself van-
quished. Can any body deny the Prince of Orange a Right of making what ad-
vantage he could of his Successes? And therefore I doubt not but that the
Prince might, if he pleased, have taken upon him the Title of King immedi-
ately upon King James's first Departure, and have summoned a Parliament to
recognize his Title, as Henry Vll. did after his Victory at Bofaorth-Field \ nor
would this have made him a Conqueror over the Kingdom, since he never made
war against it, but came to deliver it from Tyranny and Oppression. Nor did
William the Conqueror himself, by his Victory over King Harold, ever pretend
to a Right by Conquest over the whole Kingdom, but only over the Estates and
Persons of those who had fought against him, as I have fully proved at our
tenth Meeting. Nor did Henry VII. in the first Speech he made to the Parlia-
ment after his taking upon him the Crown, claim a Right to it by Conquest over
the Kingdom, as his own words were in that Speech you mention to his first
Parliament, but only " by the just judgment of God in giving him the Vic-
* tory over his Enemy in the Field; * and he then farther declared, " That
"all his Subjects, of whatsoever State and Condition, should enjoy their Lands
'M and Goods to them and their Heirs as they did before, except such Persons
u who were to be attainted by Act of Parliament."

Nor is it any Objection against his Right by Conquest, that he obtained no Victory in a pitch'd Battel \ since I never heard or read, that to make a Prince a Conqueror, it is necessary that so many thousand Men should be killed upon the spot: for admit the adverse Prince against whom he fights will thro Cowardice desert his Army, or that his Army will desert him, either thro fear, or a sense of the greater Justice of the adverse Prince's Cause, or an Affection to his Person, so that it never comes to a Battel \ yet it has been in all Ages looked upon as all one with a' Victory, as I can show you from several Examples in History j and particularly in Plutarch, concerningPyrrhus King in vita Pyrrhi. of EpirHf, who making war against Demetrius then King of Macedon, and both Armies being incamped near each other, the Army of the latter forsook him and went over to Pyrrhus, as well out of hatred to him, as esteem for his Enemy: so that Demetrius being forced to steal away in disguise, Pyrrhusthereupon was immediately in the field proclaimed King of Macedon. And I doubt not but the Prince of Orangemight have done the fame, had it not been for his great Moderation, and lest it might give his Adversaries occasion to traduce him, that he came over for no other end than to drive the King out of his Kingdom; and therefore he chose rather to owe the Crown to the free Act of the Nation, than to his Right by Conquest over KingJames. But yet I do not think he hath at all lost that Right, tho he doth not think fit (for fear of giving offence) to insist upon it; and therefore certainly the Convention might very well justify the settling the Crown upon his Highness during his Life, not only as a Conqueror over King James, but a Deliverer of the Nation from his Oppression, tho the Prince was pleased to accept it upon those Terms expressed in the late Declaration of the Convention, and upon his free Promise to preserve our Religion, Laws, and Liberties, which he has since also confirmed by his Coronation-Oath.

But as to what you fay, that the Prince made the King's Army desert him, and wrought the People into Hatred of his Person by lying Stories and mean Arts, it is altogether untrue since I know of no Reports he made of the King, or his Government, but what are in his first Declaration: and that is certainly true in every part of it, as has been justified by the express Declaration of the Convention in every Particular, except that concerning the Prince of Wales, which I confess is still left undecided ; because (as I have already proved) it is impossible to give any certain judgment in it, unless the Witnesses as well as the Infant himself could be brought over hither. Nor doth the Prince in his said Declaration say any more concerning that Business, ** than that there are violent Suspicions that the pretended Prince of Wales "was not born of the Queen." But for the Report of the secret League withFrance^ for the Extirpation of the Protestant Religion, as there is no such

• Nona thing

thing in his Highness's Declaration, so the spreading of it cannot be laid to his charge, since he never gave it oat as I know of; yet there are certainly great Presumptions, and too much cause of Suspicion that It may be so, as I proved at our last Meeting. But tho you will not allow the Prince the Title of our Deliverer, yet 1 am sure the greatest part both of the Clergy and Laity of the Church of England were once of Opinion, that King James'sViolations both upon our Religion and Laws were so great, that nothing could preserve the Kingdom from a total Subversion in its established Religion and Civil Constitution, but his Highness's coming over; and most of the Bishops were of that Opinion, who, now the Government is settled, refuse to take the Oath of Allegiance to their present.Majesties.

But to answer what you say, that the manner of Henry'lV's, and Henry Vll's coming to the Crown, doth not at all agree with* the Case of King William, because they claimed by Right of Blood, which you say Kxh&WtMamcannot do; that is not so in respect of the Queen, who has certainly a Right to succeed her Father by Right of Blood, in case the Prince of Wales be not the true Son, of the Queen; and until he can be proved so, we must at present look upon him as if he were not so at all. So that the Convention hath done no more in settling the Crown upon the King during his Life, than what the Great Council of the Kingdom have frequently done before upon other Vacancies of the Throne, as 1 have proved from the Examples of William Rufttt and Henry I. King Stephen,King John, and Henry III. And it is Very hard to suppose the whole Nation to have been guilty of Perjury and Treason, upon their swearing to, and fighting for those Princes after they were so solemnly elected, crowned, and invested with the Royal PoWef. Bat as for Edward III. his first: and best Title was from the Election of the Great Council of the Kingdom, who I doubt not but if they had found him unworthy of the Royal Dignity, by reason of Folly or Madness, or tyrannical Principles, would have set him aside, and have made his younger Brother King; a Protector to govern in the King's Name, with Royal Power, having never been known in England tilt the Reign ofHenry VI. But as for Henry IV. notwithstanding his Claim b/ Right of Blood, 1 have already proved that the Parliament, by their placing him in the Throne, did not at all allow it; nor is any such Right recited in the Act of the 7th of Henry IV. which by the Crown is entailed upon thaC King and his four successive Sons. And tho it is true Henry VII. also claimed the Crown by Right of Inheritance, in his Speech in Parliament, yet they were so far from allowing it, that they do not so much as mention it in that Act of Settlement, which, as I have recited, they made of it upon that King and the Heirs of his Body. And therefore I think I may still maintain, that the Convention have done nothing in the present Settlement of the Crown, but what hath been formerly done upon every Vacancy of the Throne, either by Deposition or Resignation of the King, or Abdication, or Forfeiture of the Crown *, as in the present Case of King James, in which the Convention have done no more than exercised that Power which has always been supposed to reside in the great Council of the Kingdom, of settling the Crown upon such a Prince of the Blood Royal as they shall think best to deserve it.

Thus much I have said to preserve the antieslt Right of the Great Council of the Nation. But to put all this out of dispute, I have been credibly informed that the Princess of Denmark her self did, by some of her Servants in both Houses, as well of the Lords as Commons, declare, upon a great Debate that arose about securing her Highness's Right to the Crown immediately after her Sister the Qneen, that her Highness had desired them to assure the Convention^ that (he was willing to acquiesce in whatever they fliould determine concerning the Succession of the Crown, since it might tend to the present Settlement andSafety of the Nation; which I think is a better Cession of her Right to his present Majesty, than any you can prove that the Empress Maud made to her Son Henry II. or than the Countess of Richmond ever made to her Son Hen-, ry VII.

M. You have often talked of this Forfeiture, and extravagant Power of your Convention, by which you suppose they are not obliged to place the Crown upon the Head of the next Heir by Blood, which I shall prove to be a vain Notion; for if there be an absolute Forfeiture of the Crown, the Government



{643}

would have been absolutely dissolved: for since there is no legal Government without a King, if the Throne were really vacant, and that the People might place whom they pleased in it, yet the Convention can have no power to do it as their Representatives \ since upon your supposed Dissolution of the original Contract between the King and the People, there was an end of all Conven-' tions and Parliaments too. And therefore if a King could have been chosen at all, it ought to have been by the Votes of the whole Body of the Clergy, Nobility, and Commons, in their own. single Persons, and nbt by any Council or Convention to represent them since the Laws for restraining the Election of Parliament-men only to Freeholders, are, upon this supposed Dissolution of the Government, altogether void \ and if you say such a way of Election is now impossible, 1 shall do so too: but however, it plainly shews the Absurdity of supposing a King could ever now be fairly elected, were all the Blood Royal totally extinct.

As for what you say concerning that Cession which the Princess of Denmark made of her Right to the Crown, I never heard any thing of it before j but admit it were so, this could only serve in relation to her self, and she could not give up the Right of her Brother the Prince of Wales, no nor that of her own Children, if God should give her any.

F. This Objection concerningthe total Dissolution of the Government, proceeds from a want of your Consideration of what the antient Government of England was, not only before, but a good while after your pretended Conquest , which was not a settled hereditary Monarchy, but a testamentary or elective Kingdom, where the Kings, being often recommended by the Testament of the precedent King, were chosen out of the Royal Family* tho not according to the Rules of Succession now in use: and therefore in all such Governments, it is very well known, that there was, at the first Institution of Kingly Government among them, a great Council or Assembly of Estates of the whole Kingdom appointed, who upon the Death of the last King and Vacancy of the Throne, were still to meet of course to appoint a Successor, which was commonly one of the Sons of the last King, or at least some other Prince of the Royal Blood. Thus it was till of late years in Denmark and Sweden, and so it was antiently in France during the Succession of the first Race; as also in Spain during the Government of the sandals and Gothick Princes •, and so it likewise was in England during the whole Succession of ourEnglifo-Saxon Kings, and so I have also proved it continued till Edward I. And tho since his time that the Crown hath been claimed by Right of Inheritance, yet in all times precedent it is apparent, that the great Council of the Kingdom, upon the Death of every King, assembled by their own inherent Authority, to consider whom they should place on the Throne, which they then looked upon as vacant. And therefore tho I grant in the cafe ofEdward I. the Parliament did not only ordain him Successor to his Father, but also recognized his Right by Blood 5 yet for all this they still retained their antient power of meeting without Summons from the King, he being in the Holy Land, and they not knowing whether he was alive or dead. So that it is a false Assertion to affirm, that there can be no Civil Government without a King, since in all those Vacancies of the Throne, it is plain, the Government devolved of course upon the great Council of the Nation. And tho it is true there can be now no Parliament without a King, according to the present Notion and Acceptation of that Term, yet before that word was ever in use (which is no older than about the middle of the Reign of Henry III.) it is plain, that our great Councils often met by their own inherent Authority without any King, and preserved the Peace of the Kingdom till a new King was either chosen or declared. And tho 'tis true the Crown hath been long enjayed by those who have claimed by Inheritance, yet there is no reason for all that, if the like Cases should fall out as have done in former times, why the Government ssiould devolve to the mixed Multitude now, aay more than it did then , since it may be as well supposed, that the same tacit Contract still continues of maintaining the original Constitution of our great Councils, which I have proved to be as antient as Kingly Government it self. And tho perhaps the Form of chusing or sending these Representatives of the Nation may have been altered in divers Particulars by former Laws or received Customs, yet this is nothing to the purpose,

Nnnn 2 as as long as the thing it self remains the fame in substance as it was before for it can never bethought to have been the intent of the People who established this Form of Government, that upon the Extinction of the Royal Family, the Government should be so quite dissolved, as that it should be left to the Multitude to chuse what Form of Government they should think sit, or else fall into Anarchy and Confusion.

Therefore to conclude, I wish you would be persuaded to own this Government as it is now established, and to take the Oath of Allegiance which is enjoined by the Declaration of the Convention, who are the only proper and legal Judges we can now have of conferring the Rights of those to whom our Allegiance is due. And if in case of a Dispute about the right Heir of the Crown, the People of this Nation were not all obliged to stand to the Decision of this Assembly, we must necessarily fall together by the ears, and fight it out as they do in the East-Indies j where, upon the Death or Deposition of a King, he has still the Right who can conquer his Competitors in Battel.

Ms Well, I wish there were not something very like it practised here of late i for 1 think you will grant, that if the Prince of Orange's Party had not prevailed over the King's, the Convention would never have placed the Crown upon his Head.

But I must beg your pardon if I cannot agree to your Proposals of taking the new Oath of Allegiance to KingWilliam and Queen Mary, since I have already taken the Oaths of Supremacy and Allegiance to King James r and I do not believe that any Power on Earth can disengage me from that Oath as long as he and his Son the Prince ofWales are alive: For as to your Doctrine of Abdication or Forfeiture, they are too hard for my Reason to understand, or for my Conscience to comply with; and therefore it is all one to me whom your Convention places on the Throne, since I am very well satisfied that none but the King can have a-Right to it.

F. I wish I could see some better Reasons for this Opinion of yours, than those you have already given j for if you could convince me that the Nation hath done any thing in this Revolution, which cannot well be justified by the antient Customs and Constitution of the Kingdom, I should come over to your Opinion. But if King James has truly abdicated or forfeited the Crown (as I hope I have sufficiently made out) and that your supposed Prince ofWales either is not really, or else cannot now be proved to be the true Son of the Queen, by reason of those Obstacles and Impediments I have shewn you; I cannot see any thing to the contrary why you should not be wholly free, and discharged from your former Oath of Allegiance to King James: So that King William and Queen Mary being now placed on the Throne, your Allegiance to King James and the supposed Prince of Wales is lawfully determined. Pray tell me therefore why you cannot take this new Oath of Allegiance, since you have the Judgment and Declaration of the Convention, which is the Representative of the whole Nation, to justify you in so doing.

M. I must tell you once again, that I think Allegiance is not only due to the King by the Law of the Land, but also by the Laws of God and Nature, and consequently cannot be dissolved by any subsequent Judgment of a Convention, who are and always ought to be Subjects to him and his right Heirs, as long as they are in being \ and therefore I should not allow the Prince and Princess of Orange for such, were the King now actually dead. Nay, if King James himself had staid in England, and had been so over-awed by fear, as to have declared in Parliament, that the. Prince of Wales was not his true and lawful Son born of the Queen, and had thereupon settled the Crown upon the Princess of Orange as his Heir apparent \ I could never have thought my self obliged to swear Allegiance to her, OTto own her for my lawful Sovereign, as long as the Prince of Wales, or the Heirs of his Body, are in being: since I am very well satisfied, and that by unexceptionable Proofs, that he is really the Son of the King and Queen; for I think I have sufficiently made out by several Declarations of Parliament, that the Hereditary Right of the Crown can never be defeated nor altered by any Statute whatsoever, but according to the Act of Recognition of King James Vs Title (which I have already urged) the Crown ought to descend to the next Heir by Blood, according to the Rules of Descent I have now laid down.

r - T

F. 1 cannot but admire your Obstinacy in this matter, which proceeds from your old Error of believing, that there is a Natural or Divine Right of Succession to Crowns different or abstracted from the Civil and Political Laws and Constitutions of particular Kingdoms; which I think I have already confuted, by shewing you that there was no such thing in nature as a Patriarchal Right in Adam or Noah, or their Heirs, nor yet to any other King as their Assigns or Representatives. And therefore tho I grant that Allegiance to every lawful King is due by the Laws of God and Nature, yet who that King is, or who is to be his lawful Successor in limited or mixt Monarchies (as ours is) can only be determined by the Assembly of Estates of the whole Nation: for notwithstanding all you have said, there is a very great Difference between the legal Rights of Princes, and the natural Rights of Fathers and Husbands, which yet may cease and be dissolved in some Gases, as I have already sufficiently L.R.p. 27. proved. Yet I think it is evident, that not only a legal Title and legal Authority may be parted from each other, but that legal Titles and legal Authority may be rightfully separated from the Persons to whom they were once due, which natural Rights can never be. A King may cease to be a King, tho a Father can never cease to be a Father; for Laws have not the fame force and power that Nature has. Now all Men confess this Separation may be made by a voluntary Resignation, as also by Conquest in a just War; both which will divest such a Prince of all Right and Authority to govern j and if it may be done by either of these ways, his Right and Authority is not inseparable from his Person. Since then there is no natural inherent Property in Lands or Kingdoms, but what proceeds from the particular Laws of each Kingdom or Commonwealth i therefore whoever the supreme Power, appointed by the Constitution of such Kingdoms, shall judge or determine *to have a true and legal Right to the fame, are to be owned and esteemed as the true legal Owners and Possessors thereof, by all the Subjects: so that if a King can part with his Kingstrip, it is possible he may lose it too, since there are more ways than one of parting with that which may be parted with. If then a voluntary Resignation of a Crown, or Conquest in a just War, can give another Prince a just Title to it, I cannot fee why a tacit Abdication, or Forfeiture of a Crown, upon a limited King's total Breach of the fundamental Laws and Constitution of the Kingdom, should not as much discharge all the Subjects of their Allegiance to him, and also give the great Council, as the Representative of the Nation, a like Right of ordaining a Successor upon such a Vacancy of the Throne j and who being once placed therein, all the People of the Nation ought to pay the same Allegiance to him, as they did to his Predecessors.

But as for the latter part of your Supposition, that the right Heirs of the Crown by Blood must always necessarily succeed to it, that is likewise founded upon two very false Principles : first, That a lineal hereditary Succession to the Crown is established by the fundamental Laws and Customs of the Kingdom. Secondly, That the Succession to it cannot be limited by the Parliament or great Council of the Nation. The former of which Suppositions I have confuted at our last Meeting, and as for the other, you cannot deny but the Crown has been frequently settled and limited by Act of Parliament, contrary to the common Rules of Succession, as hath been sufficiently proved by the Statute above-mentioned of Henry VII. as also by those several Acts concerning the Succession in HenryVIU's time \ and so it continues at this day by the Statute of the 13th of Queen Elizabeth, whereby it is declared " Treason, during chap, u «' the Queen's Life, for any#Person to affirm that the Queen and Parliament ** had not power to make L'aws to limit and bind the Descent and Inheritance "of the Crown \ or that this Act was not of sufficient force to bind, limit, M and govern all Persons, their Rights and Titles, that in any way claim any InMterest or Possibility in or to the Crown of England in Possession, Remainder, M Succession, Inheritance, or otherwise howsoever } and every Person so hold"ing or affirming, after the Decease of the Queen, shall forfeit all his Goods "and Chattels." So that I can fee no just reason you can have to refuse swearing Allegiance to their present Majesties and their Successors, according to the Limitation in the said Act.

M. Well, I see it is in vain to argue these Points any longer with you, since it would only force me to repeat the fame things over again, which wiD neither ther edify you, nor my self i only give me leave to tell you thus much, that the last part of your Argument (which is the only thing that is new in all your Discourse) is founded upon a very wrong ground : for tho I should grant, as I do not (since I think this Act you last mentioned is expired) that the Crown may be limited or intailed by Act of Parliament, contrary to the due Rules of Succession ; yet even that will not hold in respect of the present Settlement thereof by the Convention, upon the Prince and Princess ofOrange for their two Lives: since you cannot but know that no Parliament yet was ever so presumptuous as to take upon them to settle or limit the Succession of the Crown, without the Consent of the King or Queen then in being. Whereas the present Settlement was first made by the Convention^ upon the making of the Prince and Princess King and Qjieen; tho I grant it was afterwards confirmed by another pretended Act, whereby all Princes that are or shall be Raman Catholicks when the Crown shall descend unto them, are debarred from their Right of Succession. This, tho I grant to be made after the Prince and Princess of Orange took upon them the Title of King and Queen; yet since that Statute was not made in a Parliament called by tho King's Writs, but in a Convention, who owe their meeting wholly to the Prince of Orange's Letters, it is not only void in respect of the Subject-matter, but also in the"manner of making it -j and therefore I cannot believe that the Throne was ever vacant. And I have as little reason to be satisfied that the Prince and Princess could be lawfully placed therein, or that all Roman Catholick Princes can ever be barred from their Right of Succession whenever it may fall to them.

F. If this be all you have farther to object, 1 think I can easily answer it; for in the first place, I have already told you, that the Convention did not take upon them to create or make any new Form of Succession to the Crown, bat only to declare that the Prshce and Princess of Orange are rightful and lawful King and Queen ofEngland: for upon supposition of King James's Abdication, of the Crown, and that the Prince of Wales cannot be taken for the lawful Son, of the King till he can be brought over, and that his Legitimacy be duly proved, it must till then certainly be their Right, and no others: and as for King William's holding the Crown during his own Life, I have already told you it was not done without the tacit Consent of the Princess of Denmark her self, tho 1 doubt not but it may also very well be justified upon those Suppositions of the Forfeiture of the Crown by King James,and the Conquest the Prince of Orange made over him \ which are sufficient in themselves to bar any legal Claim of those that either are or may pretend to be right Heirs.

But as for the other part of your Objection, whereby you will prove, that Popish Princes cannot be excluded from the Succession, because the Act was made not in a Parliament, but a Convention: This wholly proceeds from your want of Consideration, that at the first Institution of the Government, and long after, whilst the Kingdom continued Elective, there was no difference between a Great Council or Convention, and a Parliament j for pray call to mind the four first Great Councils after your Conquest, (reckoning that for one wherein King William I. was elected or declared King) whether it was possible for N those Councils to be summoned in the King's Name, before any body had taken upon themselves the Title of King. The like I may fay in the cafe of King John, andHenry III. and that this continued after the Succession was settled in the next Heir by Blood, appears by that Great Council that was summoned after the Death of Henry 111. which recognized or ordained his Son Prince Edwardto be his Successor. So likewise the Parliament that deposed King Edward II. sat both before and after his Deposition and Resignation, and elected his Son Edward III. to be King, and appointed his Reign to begin from the time of their Election, and not of his Father's Resignation of the Crown: fa also upon the Deposition of KingRichard II. the same Parliament that deposed vid. Rot. Parl. him, placed Henry IV. in the Throne j and tho the Writs of Summons were in i Henry IV. the Name of King Richard, and they were never re-summoned or new-elected in the Reign of Henry IV. yet did they still continue to sit, and made divers new Acts, and repealed several old ones; all which hold good to this day.

And that the Parliament are the only proper Judges of the Right of Succession even without the King, you your self must grant, or else how could they declare in 3jithof Henry VI. that the Claim which Richard Duke of remade

to to the Crown could no- way be defeated? And certainly if that unfortunate Prince, King Henry VI. had had sufficient Power or Interest in that Parliament, they might and would have adjudged the Duke of York's Claim to have been groundless, and contrary to Law, and then I believe it would searce have ever been heard of again.

Bet to make it out beyond exception, that a Convention may become a Lawful Parliament, tho never called by the King's Writs, when the King's Authority and Presence come once to be added to, and joined with it, appears by the first Parliament of King Charles the Second; which tho summoned in the Name of the Keepers of the Liberties of England, yet nevertheless continued to fit and make several Acts which hold good to this day: and I doubt not but they might have made the like Limitations of the Crown in respect of Roman Catholick Princes, as the Convention have now done, and that it would have held good at this day, since it is so much for the Security of our Religion, Liberties and Properties, that it should be so j since we have found by dearbought Experience in the Reigns of the four last Kings of the Scotijh Line, that still as they began to favour the Popish Religion and Interest in this Kingdom, so did the Protestant and true English Interest, in respect of our Religion, Liberties and Properties, still decline, till at last they were like to be totally ruined and extirpated: for that restless and dangerous Faction very well know, that there i9 no means possible for them to re-establish their Superstition among us by due and legal Methods, but only by introducing Arbitrary Power, taking away Parliaments, or else making them wholly to depend upon the King's Will, as we fee was laboured, and almost effected in the Reigns of the two last Kings. And therefore I cannot but believe that the present Parliament has not only acted wisely, but also legally, to eBact that for the future no Prince, who is actually a Roman Catholick, shall succeed to the Crown, tho he be next Heir by Blood.

M. I must still tell you, I am as little satisfied with your Suppositions of the Forfeiture of the Crown by KingJames, and fehe Conquest of the Prince of Orange, as I am with your Instances out of History concerning the Power of the Great Council's meeting and chusing a King by their own inherent Authority} since, besides that it was done by Usurpation in those rough and unsettled times, I believe if the antient Writs of Summons were now in being, you would find that they were called by those Usurpers, tho not by the Title of Kings. But I defy you to show me, since the Reign of Edward the First, any Parliament ever called without the King's Writs of Summons,and tho upon the Deposition of Edward and Richard the Second, the Parliaments you mention might continue to sit and transact publick Business, yet was it during a plain Usurpation upon those Princes, whom you your self must grant to have been unlawfully deposed: And therefore we find upon the Parliament-Roll of the 21st ofRichard the Second,, that an Act of the 1st of Edward the Third, confirming Rot. Parl. n. the Judgment given upon the two Spencers, was not only repealed in Parlia- 64. 21Rk.il. ment, but declared to be unlawful, becauseEdward the Second was living, and true King, being imprisoned by his Subjects at the time of that very Parliament of 1 Edward III. But as for your last Instance of a Convention's declaring it self a Parliament in the Reign of King Charles the Second, there is a great deal of difference between them and the present Convention, since they did not take upon them to declare or make a King (as this Convention has done) but only to recognize him to be their Lawful Sovereign; which (as 1 have already told you) being that which was their Duty to do, they might very well justify, though they were not summoned by the King's Writs: but however all their Acts were looked upon as made without Legal Authority, and therefore were confirmed in the first Legal Parliament of King Charles's Reign.

But as for the Authority of the Statute of the 13th of Elizabeth, whereby you would prove, that the Parliament has at this day power to alter or limit the Succession of the Crown; besides that such an Act being against the fundamental Rules of Succession, was void in it self; yet if you please to look upon the Act in Rastal's Statutes, you will there find it was only made to serve a present turn, and to keep the Queen of Scots and her Party from enterpriziBg any thing against Queen Elizabeth;1 and therefore it is there only declared to



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be Treason during the Queen's Life for any Persons to maintain, that the Qpeea could not, with the Authority of the Parliament, limit the Succession of the Crown: and as for the last Clause, that makes it Forfeiture of Goods and Chattels to maintain the contrary after her Decease-, this was made to strengB.H.S. p. 4°- then and confirm the former part of the Statute, which was a Provision and Security against such Pretences and Practices as had been lately made against her by the Papists, on the behalf of the Queen of Scots's Title. And this Clause could not take effect after her Death, but was added to preserve Queen EUz.a* beth's Memory from being defamed after her Decease, or being slanderously charged with the heinous Crime of usurping the Crown; which must have been the inevitable Consequence of affirming, that she and her Parliament could not limit the Succession. For to confess the truth, I think Queen Elizabeth's best Title was by Act of Parliament, since her Legitimacy might be justly questioned, by reason that her Mother's Marriage was declared unlawful by the 28th of Henry the VIHth, and she was as good as declared illegitimate by her Father in that very Act that settled the Crown upon her. But that this Statute of the 13th of Queen Elizabeth is now looked upon as expired, appears in Pulton's, and all other late Collections of the Statutes since her time} wherein the Title of the Statute is barely mentioned with EX P.immediately following it, to shew it is looked upon as expired. So that you are mistaken to affirm that the Convention has done nothing in the late Limitation of the Crown, but what may be justified from that Statute;therefore if it be not Law at this day, I think they had no Authority to alter the Succession of the Crown from the right-Line, let them be of what Religion they would.

F. I fee you do all you can to evade the Force of my Authorities from History and direct Matter of Fact; and therefore as to what you fay, that those were rough and unsettled Times, and therefore no Precedents to be drawn from thence, this is to beg the Question: for what could be the Law concerning the Succession of the Crown for the first hundred and fifty Years after the Conquest, but the constant Usage of the Great Council of the Nation, as low as the Reign of Henry the Third? And it is a bold Assertion to accuse the whole Nation of Perjury, and Rebellion against their Lawful Kings, during all those Successions I have now instanced in: nor have you any thing to fay against those Parliaments that rrfet in the 1st of King Edward III. and Charles LI. but that their Meeting was lawful, because it was only to recognize those Kings, and not to make them; which is indeed to beg the Question, since you cannot deny but those Parliaments are held for good, notwithstanding they were not called by the King's Writs. But as for making a King, the present Parliament have not taken upon them to do it, since they do not in the Act for the Succession elect King William and Queen Mary to be our Lawful King and Queen, but only declare or recognize them to be so, upon, supposition that the Prince of Wales is either an Impostor, or else his Legitimacy impossible to be tried and determined by them. Nor are your Objections material against the Authority of those Acts of Parliament which were made in the 1st of King Henry W. and Charles II. which were never summoned by those King's WritsFor as to the first of those Instances, most of those Acts of Henry IV. stand good at this day, without ever being confirmed by any subsequent Parliaments. And tho I grant that the publick Acts made in the first of King Charles II. were confirmed in the next Parliament of that King, yet this does not prove that they would have been void without it; since divers private Acts passed in that Parliament, which were never confirmed in any other, and yet are held for good: as particularly an Act of that Parliament for making the Church of St. Paul's Covent-Garden Parochial. And this Act, tho never confirmed, was yet adjudged to be in force by the Lord Chief Justice Hales, and the rest of the Justices of the King's Bench, in a cafe concerning Rate-Tythes between the Minister and some of the Parishioners of the said Parish. And that not only all the private Acts of that Parliament, but some publick ones also, tho never confirmed in the following Parliament of the 13th of King Charles II. are yet held good in Law, appears by these that follow, viz..

12 Car. II. 1. An Ail for Continuance of Process, and judicial Proceedings, continued, t. 3.


By which all Writs, Pleas, Indictments, &c. then depending, were ordered to stand and be proceeded on, notwithstanding want of Authority in the late Usurpers. And therein it was farther ordained, that Process and Proceedings in Courts of Justice should be in the English Tongue, and the general Issue be pleaded*, till August i. i 660. as if the Acts made during the Usurpation, for that purpose, had been good and effectual Laws.

And upon this foot only stand many Fines, Recoveries, Judgments, and other Proceedings at Law had and passed between April 25, 1660. and August 1. T66c.

2. An AB for conforming and, restoring of Ministers. 12 Car. H.

This Act is usually to this day set forth and pleaded in Quare impedits, tho c« l7it was said to be refused upon Debate to be confirmed in the House of Commons, 13th of Car. II. when divers other Acts of the fame time were confirmed; ll Czt-J1, yet both these Acts, having no other Authority but from that Convention (as Cm I7' ®*" you call it) have been judged and constantly allowed to be good Laws for above these thirty Years.

Nor is what you have now said true, to prove the Statute of the 13th of Queen Elizabeth (whereby the Crown is declared capable of being limited by Act of Par.iament) to be now expired; since it is plain, by the purport of the Act, that it is declaratory of the former Laws of England, made in King Henry Vllth and Vlllth's, and other Kings Reigns, whereby the Succession of the Crown had been frequently entailed upon those who were not the next Heirs by Blood: and tho the Queen be only mentioned in it, yet it certainly as much concerns her Successors and all future Parliaments, as the Oath of Allegiance, in which the Qpeen is only mentioned, does all future Kings and Queens; and it is not only made Treason during her Life, but also there is a loss of Goods and Chattels to be inflicted on all those who shall maintain after her Decease, that the Queen and Parliament had not power to limit the Succession. And 'if a Parliament in her Reign could do this, I desire to know whence it is that the present Parliament may not have the like Power?

As to what you alledge concerning the Judgment against the two Spencers being reversed in the#i2th of RichardII. because done whilst Edward II. was Itill alive; I desire you would take notice, that this Parliament of RichardII. ■was wholly made and past by King Richard after the Banissiment of the Dukts of Lancaster and Norfolk ;and that as well the Lords as Commons were in such fear of the Arbitrary Power he then exercised, that they past whatever he would* And in this Parliament ic was that the Proceedings against the Chief Justice Trestliait and his Fellow-Judges, who had been condemned and executed by Judgment in Parliament in the nth of this King, were reversed. And to prove the Illegality of this Parliament, you need but consult the Statute-Book in the 1st of HenryW. where you will find one of the first Statutes after his coming to the Crown, is to repeal all Acts and Proceedings made in that last Parliament of Richard II.

M. I doubt this will not do the business \ for we maintain, that Henry IV. as also his Son and Grandson, were Usurpers, and consequently all the Acts made in their Reigns were null and void.

F. I will grant you for once, that Henry IV. was an Usurper, and that Ed'ward III. was so also during his Father's life-time; but then it doth not follow, that all the Laws and Statutes made during those times were null and void, since you must needs know the contrary$ for even in that Parliament of the 21st of Richard U. tho 'tistrue that Judgment against the Spencers was reversed for the reason you have given, yet did that Repeal extend to no other Statutes but that, tho made in the fame Parliament of Edward III. whilst his Father was yet living: But they are all of them held for good at this day, as are also all the Statutes of those three Henrys, whom you suppose to be Usurpers, which have not been repealed by any subsequent Statutes, as I can assure you those of the first ofHenry IV. are not, and therefore are good Laws at this day. So that nothing can be a plainer Proof than this, that let the King's Title to the Crown have been what it would, yet Allegiance was due to them as long as they continued in the Throne.

Therefore to conclude, let me tell you, I think it behoves you, if you mean to keep that Office you hold under the Government, to take the Oath of Al


legiance to their present Majesties, since you owe*your Protection to their Government, which certainly deserves a temporary Allegiance as long as yon enjoy the Benefit of it. And indeed, the Oath it self is so loosely worded, that methinks any Man may take it without any scruple, since it doth no ways declare, that the present King and Queen have an Hereditary Right to the Crown, but only the Person swears to bear true Allegiance to their Majesties King William and Queen Mary; which I think even Strangers and Denizens are bound to take as long as they continue in the Kingdom.

M. I am sorry you should think me, after so long an Acquaintance, capable of doing any thing against my Conscience for any worldly Advantage whatsoever; and therefore 1 must freely tell you, that as for the Employment I hold, I will rather part with it, if it were ever so great, than do any thing against my Conscience, and that Reputation I have hitherto maintained in the World of being an honest Man.

And therefore I cannot take the Oath as a mere Denizen, that owes Protection to the present Government, not only because this Oath is inconsistent with that I have already taken, but also there is much more required of those that owe a Natural Allegiance to their rightful King, than can be required of Strangers, till they become naturalized by Act of Parliament: And therefore it


is, that when any War breaks out between neighbouring Princes, all such Denizens, who do not become absolute Subjects of this Kingdom by Naturalization, if they will act like honest Men, must look upon themselves as obliged either to quit the Kingdom in cafe a War be declared against their natural Prince, or at least are obliged not to act any thing to his prejudice, tho they may still inhabit and traffick here; which is a quite different cafe from those who are not only born the King's Subjects, but have also taken the Oath of Allegiance to him. And therefore I can by no means think it lawful to take this new Oath to King Williamand Queen Mary, tho it were required in no higher a fense than as King and Queen dt fathoy since it can no ways consist with that Oath which 1 have already taken to King James and his right Heirs, as I shall prove to you another time (since it is now very late) from the true Sense and Meaning of those words, / will be faithful, andbear true Alligiance^ &c. which can only be sworn to such Kings and Queens, who besides a bare Possession, have also a Legal and Hereditary Right to the Crown.

F. I shall be very glad to hear you farther upon this Question; for if that can be made out, I fear too many of the Clergy as well as Laity, by mistaking the true sense of this Oath, have been forsworn. But pray tell me when I shall wait on you, and hear what you have further to say upon this important Subject.

M. Pray let me see you two or three days hence, and then I shall be at leisure \ in the mean time 1 am your humble Servant. F. And I am yours.




D t A.LOG U F. XIII.

f;:vii<I ••;'«'/ MUt•' :.« laofL'i ^»tf< . J|,.-< . ■• T.

i.oWhethe* an Oath of Allegiance may be taken to a King Jot C^pcn.de fatlQy at for the time being. *'-j

U." Whatis the Obligation of such an Oath, whether to an, actual Defence of their Title against all Persons whatsoever, or only to a-bare Submission to their Power.

III. Whether the Bishops who refused to take the Oath of

;• '. Allegiance to their present Majesties, could be lawfully de; prived of their Bifhopricks.- '■

F. i^^p^ I R> 1 hope I do not interrupt you by coming too soon , for ||^fl|!f the troth is, since I intend that this shall be the last Dispute I Hi Hi ever ^ave wlt^ uPon Subject, I was very desirous ||g§BSj|| to have it dispatched as soon as I could, that when I have once E^wiffSHI discharged the Duty of an old Friend and Acquaintance, my Mind may be at rest, which side soever you take.

M. Dear Sir, I thank you, and t&o I intended to go abroad this Evening upon an Appointment, yet I will now put it off, that I may enjoy your better Conversation j therefore pray begin where you left off, and prove to me that I may lawfully take this new Oath of Allegiance to King William and Queen Mary.' i1 •:. .• .

F. I cannot fee any reason why you may not safely do it, since our best Common Lawyers are of this Opinion \for my Lord Coif, in his third Institutes, in his Notes upon the Statute of Treason, the 25th of Edward the Uld,gives it for Law, w That this Act is to be understood of a King in posses- p ** sion of the .Crown and Kingdom j for if there be a King Regnant in pos«* session, although he be Rex de Fatto, & mm de Jure, yet is he Seignior"Le Roy within the purview of that Statute, and the other that hath Right, «l and is out of Possession, is not within this Act," &c. And if it be Treason to levy War against him, or to conspire his Death as long as he continues King, it can only be so, because the Subjects Allegiance is then due to him, for that all Men have either taken the Oath of Allegiance, or else are supposed to have done it. . j i.,..

M. I must beg your pardon, if I cannot come over to your Opinion neither in point of Law or Reason \ for as long as I am persuaded in my Conscience that King Jam" is King dejure, so long must the Obligation of my former Oath last: and I suppose you will grant that it is as impossible to owe Al


legiance to two Kings at once, as it is to serve two Masters: and therefore you must.pardon me, if I suppose that my Lori Cake, depending too much upon the commonly received Sense of the Statute of the 1 ith of Henry the Vsttb, which he quotes in the Margin, may be mistaken in this great point, and may have also given an occasion to divers others of his Profession <o fall into the fame Error* " t':,' ■ . Z'.^V" .'.' ?J?.t'"''if:  ''■

F. I doubt not but my Lord Cole, and others of his Proieffior/, wlfo ;ffiairitain the fame Opinion, may very well be defended; as well fr6mr that"Statute is other Authorities 5 but to pass by that at presents I (ball 6*st<liscaoTfejwith you upon this point, of the Lawfulness of taking this Oath to their present Majesties KingWilliam and Queen Mary: and therefore you misunderstand me, if you believe that I think this Oath doth require from you the Performance of all those Duties-of Alfegwnce and SutyedicB^Mcli-l m$ self fm obliged to, who am fully satisfied of tfleir Title, ||d tMerefojik^^veni^fe.inv Life and Fortune in their Quarrel to the utmost of my power against all Persons whatsoever. But all that I think can be required of you, is, that whereas King Williamand . Queen Mary are actually in. possession.^ .the Regal. Power, faiaag as they continue thus possessed of it, you may, I think, swear that you will be so far true and faithful to them, as not to enterprize any thing against them, but that you wjjll pay them'tfiat Obedlericea'nTdSurjmifllon vj~hi<*5nay be lawfully paid to an actual Sovereign"; not engaging hereof tcrtpiftldNhem in the possession of the Throne against King James, and without debarring your self from exerting that Ailegiancei you have fwornto him upon any emergent lafe/Opportunity for the recovery of his Right., 1 o . .

M- I must beg your pardon, if I cannot assent'to'take this Oath in .this low and qualified sense that you would now put upon" ft, since besides, the Signification of the words themselves, 1 am very well satisfied that the Imposers of this Oath do intend something more than a bare negative Obedience to the present Power j since it is the only Oath which is requiretl'from 'those who take Imploymerits either Civil or Military, and from whomHcertalnly, not onlyaflastfve Obedience or Submission, but also.an active Obedience and Assistance is required, in defending the Crown and'Dignity of the present King and Queen de fafto with their Lives and Fortunes against all Persons whatsoever: .'Or else • how could the present Government ever trust them? And all this cannot be sworn to without a breach of that Oath they had formerly taken to King James; and therefore if I should take it in this sense (as the Oath it self seems to imply) I ftould be perjured. Besides, by these words of being true and faithful, I should look upon myself as obliged to reveal all Plots and Conspiracies wAich I may any ways happen to know of against King William and Queen Mary; which I think would be derogatory to my Allegiance to his Majesty, since I should thereby discover and accuse such of his good'Subjects as endeavoured to restore him, and should thereby hinder him, as much as in me lay, from being restored again to the Throne.^' /Vj! 1 ■ • ■ I Hi t: > •••••07-"'

But if we consider the word Allegiance it is yet more strict 5 and if I should perform it to King William and Queen Mary, according to the true Intent and legal Sense of that word, I think it could no ways consist with that Oath of Ailegiancei have already taken; since Allegiance is1 rtftua explained in the next following Words' of the Oath I have already taken i *<-' j4nd hi*i;i und them, viz. "the King and his Heirs, 1 will defend ■ tO' the utmost of my pewer against all "Conspiracies and Attempts Whatsoever that shall Be'triade against his or their "Persons, Crown and Dignities." Now what kind df Assistance is here meant by the word defend, may-be understood from air- the Writers Of our feudal Laws, who expound the jits Acfenforium., by telling"us'the word -protegere implies a Necessity of defending by Arms,14s doe iwnS -the Supreme Lord ot Sovereign; and further, that;Subjects are in the fame fense reciprocally bound to defend the Honour and Dignity of their Sovereign. , And tbese'words Allegiance, and the Defence that Jroows it,vmay'be likewise understood from our feudal Laws, whereby the Vassals were bound by their Oath of; Allegiance, as also by virtue of the Tenure^'df-their Lands, to a Military Defence of their Supreme Lord the King, from'whom all the Laws of England ate'1 held: and this is according toGUnvit, 'and all our old Lawyers. And tho 1 grant that

Military Tenures are all now taken away by a late Statuse, ye^ttm 1 still obliged


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ligej to the like Dafeace of the King a ad his Heirs, not only from the words of this Oith, b vt from the mmicipal Laws of this Kingdom also; which oblige all the Subjects that are capable to take up Arms for the Kin^ when need foall require. | • •

Which may be thus further proved; first, from the antient Laws of Edward Ib. p. 14. the Confessor an&WtBiamthe Conqueror: by both which, " all the People or Vid. Lambardi "Freemea of the Kingdom were to affirm upon their Faith and Oath, within K L-Edw?sdi> ** the whole Kingdom, and without, that they will be faithful to their Sove-^L L' "teigi Lord King William, and every where preserve his Lands and Honours c# 52' 44 with all Fidelity, and with him will defend them against all his Enemies." Stat' iu ,d# Tb-thfis succeeded that which the Lord Cokecalls Legal Ligeanc*, or the Com- calvin'j Case. man-Law Oath of Allegiance, which he cites out of Britton (who writ under Cowd'* inst. Edward I.) which all the Subjects were obliged to take at twelve Years of Age La. 4.3.5.14. at the Sheriff's Court, and at the Lees, without the taking of which, they had no warrant to abide in the Kingdom: and the form of it was to this effect; V'-Yob shall swear, that from this day forward you (hall be true and faithful «* to our Sovereign Lord the King and his Heirs, and Truth and Faith (hall f* bear of Life, and Member, and terrene Honour; and you shall neither know ^ndr heatf of iny 111 or Damage which you shall not offend (that is, oppose) » to-the utmost of your power/'

The!lfam'e ÆSthor also here informs us, that «* five things were observed by 44 all the Judge*from this Oath in the Debate of Calvin's Cafe: First, that for *« the time of i« Obligation, it W indefinite, and without limit. Secondly, * two excellent'Vitalities were required,' that is; to be true and faithful. 44 Thirdly, to whom; to our Sovereign Lord the King and his Heirs. Fourthly, ** itt what manilerfeand Faith and Troth shall bear bf Life and Member; that u is, until the letting out the last drop of our dearest Heart-blood. Fifthly, "where, and in what place; in all places whatsoever: for you (hall neither 44 know nor hear Of any 111 which you lhall not offend." Such is the Ligeance which the Law has prescribed in that antient Oath, which is- still in force; it is'neither circumscribed by Time nor Place; it is unconditionate and unreserved; it is not a lazy passive Allegiance, requiring nothing but pure Submission, but an active and Vigorous Loyalty, exacting all that is in the Sphere of moral Possibility, and engaging us to spend our dearest Blood in the Defence of our Sovereign's Person, and the Preservation of his Crown and Dignity.

For it is to be observed, that by the Law this Allegiance is due to the King's Person; so the fame Author fays it was then resolved by all the Judges, that 41 that Ligeance was due to the natural Person of the King (which is ever accompanied with the politick Capacity, and the politick Capacity as it were 44 appropriated to the natural) and not due to the politick Capacity only."

To conclude; if my former Oath of Allegiance to King James doth still con- , tinue (as I am satisfied in my Conscience it doth) I cannot take a new Oath of Allegiance to King William and Queen Mary, since I mould thereby be obliged by the force of these words in the Oath, me, / will be faithful, and bear true-Allegiance, to yield it as much to those that are not my lawful Sovereigns, as I am to those that are so; which will be contrary to my first Engagement: for tho I grant that there is no express Declaration of the Right of the present Possessors of-the Throne, and that I have heard that the word rightful (which was at first inserted into this Oath) was struck out, because as many as could be might be drawn in to take it; yet as song as the words that remain import the very fame thing, it is all one as if the word rightful were there: for tho the deliberate Omission of the word rightfuldoes necessarily infer, that we are not obliged in this Oath to a Recognition of their Right to the Crown, yet does it not infer, that we are not obliged to pay as high a degree of Allegiance as to any rightful King whatsoever. That Omission indeed is an Argument that the word King in the Oath doth not necessarily fig- D.a. p. 24. nify a Kingde jure; but it is no Argument that true Allegiance does not signify true Allegiance, that is an Obligation to adhere to the King against all his Enemies: far there was no Debate, that we know of, about the fense of the word Allegiance, neither is there the least intimation given that they designed to restrain it to at lower signification, tho it was plainly necessary to do it, if



they intended to alter the commonly receiv'd meaning of it: wherefore, at the striking out of the word rightfulwould not have prov'd, that they did not intend to oblige us to an active assistance of King William, against all Men living, if those words had been exprefly inserted in the Oath; so neither will it prove that the same Duty is not now requir'd of us, if the word Allegiance does, as I have prov'd, in terminis import it; and that as fully, as if it had:been

in express words requir'd in it.

And that this word Allegiance implies something more than a bare passive Submission or Neutrality from all Subjects, as well as Magistrates and Officers, appears by that Passage in the Statute of the nth of Henry VII. which you have now cited; where 'tis plainly and exprefly declar'd, "That every Sub"ject by the Duty of his Allegiance, is bound to serve and assist his Prince and u Sovereign Lord at all Seasons when need shall require." This is so express and authentick a Declaration of the true Duty of Allegiance, that no Arc or Sophistry can possibly evade it. ,.

F. 1 confess you have argued this point of taking this new Oath of Allegiance,' not only like a Civilian, but a Common Lawyer also; and 1 cannot deny the force of what you have said, that this Oath must extend to an active Obedience, and Defence of their present Majesties in their Right to the Throne, and not only to a bare fluggish Submission, or a lukewarm Neutrality. And therefore J cannot fay but you are justly scrupulous in not taking this new Oath, until you are satisfied of their Majesties Right as well as present Power: but if Job will please to observe the purport of this Act of the nth of Henry \\\. (which you now mention'd) you will there find it as good as exprefly declar'd, that Allegiance is due to him who is lawful Sovereign, and the King for the time being is still to be look'd upon as such; for the words Jn the Statute are,' *' that no Manlhall suffer for assisting the King forthe time beings' without spei cifyingby what Title he holds the Crown, whether by an Hereditary Right, or by Conquest, Election, or the solemn Recognition of his Title by all the Estates in Parliament, So that by this Act, all that Allegiance that was once due to the former King de jure, becomes thereby wholly transfer'd to the King deFaSo. , •

M. I grant what you now fay would go a great way to satisfy me, coold you once prove that this Statute is now in force, and is not cither abrogated or expired j or else (which 1 rather incline to believe) is not absolutely void in it self. In the first place therefore I hope to (hew you that this was not Law before this Statute was made, and therefore not declaratory of what was Law, but endeavours to make that to be Law, which was not so before: so that the King for the time being, there mention'd, must be a King de Jure, or at least one that was presumed such*, because at that time our Constitution knew ib. ii. no other: for that Possession alone was not a sufficient Title before the nth of H. 7. p. 2,3. tjenry VII. will evidently appear from these following Remarks. I: J (•'<

First, That all the Kings of the House of Lancaster are declar'd in the Statute of the first of Edward IV. to be Kings in Deed, hut not of Sight, and pretended Kings; and particularly Henry VI. is said to be rightfully amov'd from the Government, and his Reign affirm'd to be Intrusion and Usurpation, and himself attainted for being in Arms against Edward IV.; . ' ''

Secondly, All Patents of Honour, Charters, and Privileges, which were granted by the House of Lancaster; all Acts of Royal Authority which the Kings of England have a right to execute by virtue of their sole Prerogative (nay, Acts of Parliament themselves, particularly those relating to Shrewsbury, and some others, which by parity of Reason supposes the rest in the fame Condition) all Acts of this nature were confirm'd by the first of EdwardIV. which is a good Argument that this Parliament believ'd the Authority by which they were perform'd to be defective and illegal; for we never find any such general Confirmation as these pass upon the Grants of the Kingde Jure.

Thirdly, in the first Year of Henry VII. Richard III. was attainted of High Treason in Parliament, under the name of Duke of Gloucester; from whence 'tis plain, that as there was no Statute, so neither was there any Common Law to support the Title of a King defado: for Treason is an attempt against the King's Person, his Crown and Dignity, but no Man can commit Treason

against himself; therefore if Richard III. had been a King in the sense of this



Law, we may be sure he would not have had such an infamous Censure past upon him after his Death- Brad/haw,and his High Court of Justice, were the first that were so hardy as to pronounce a King of England guilty of Treason.

Fourthly, If this Notion of a King de fatto had been allow'd in the nth of Henry Vli- the principal Assistants ofRichard III. could not have been attainted: for Richard being actually in the Throne, he was, according to your modern way ibid. p. 4. of arguing, Rightful King; and consequently the People ought to own him as such, and defend him against all Opposers: and if so, certainly they ought not to be condemn'd as Traitors for doing their Duty, as we find many of those were who fought for King Richard.

Fifthly, At the end of this Parliament, Henry VII. granted a* general Pardon to the common People who had appeared against him in the behalf of Richard III. Now Pardon supposes a Fault, and the Breach of a Law, which they could not have been charg'd with, if the Plea of a King de fatlo had been warranted by the Constitution.

F. I must freely tell you, that yon do not argue so much like a Lawyer in this Argument as you did in your former •, and you have in that forgot to what end those Statutes you mention were made, and what is the purport of them, or else some body hath misinform'd you: for tho I grant that all those hard Expressions you mention, are given of the Kings of the Lancastrian Line in those Statutes of the 1st of Edward IV. yet do none of these Expressions prove, that they were not true and legal Kings in the Eye of the Law all the while they reign'd; since divers Persons were attainted for High Treason against them, whose Attainders were never revers'd, but stand good to this day; as in particular, the Attainder of the Earls of Kent, Salisbury, and of Huntingdon, who were all attainted by Act of Parliament in the zd of Henry IV. and also the Earl of of Northumberland, and his Son the Lord Piercy, attainted in the 5th of this King; all which Attainders were never revers'd. So likewise Richard Earl Of Cambridge was found guilty of Treason by his Peers, and his Attainder confirm'd by Act of Parliament in the second of Henry V. and tho it is true this Attainder was afterwards revers'd in the first of Edward IV. because the said Richard was not only his Grandfather, but was also conderan'd for endeavouring to make Edmund Earl ofMarch his Brother-in-law King of England, from whose Sister King Edward IV. claim'd the Crown-; yet the very reversing this Attainder by Act of Parliament, declares it to have been good until that Repeal, since, it wasnotdeclar'd void: all which are plain and evident Proofs, that Treason may be committed against the King defado, and consequently that Allegiance is also due to him, and not to the King de jure.

I have likewise prov'd that all those Statutes which were made by those Kings, and are not repeal'd, stajid good at this day without any Confirmation, by King Edward IV. and this you have no way to answer, but by instancing in Patents of Honour, or Charters of Privileges granted by those Kings, and confir m'd by Edward IV. from whence you will infer, that some other Acts of like nature were in the fame Condition; which let me tell you is no good Argument against them: for if you please to read that Statute of Edward IV. you mention,' you will thsre plainly see, that the Grants, Patents, and other things there confirm'd, are either judicial Proceedings in the Courts of Justice, or else such Charters, or Patents, which being thought to the prejudice of the Crown, were exabundant* cautela thought necessary to be confirm'd by those particular Persons, Religious Houses, and Corporations, who thought themselves concern'd; nor were all others of like nature which were not so confirm'd, thereby void, since they hold good at this day: and if you understand any thing of our Law, you cannot but know, that no Grants of the King can be made void by Implication. And to shew you farther, that the Letters Patent made by Henry VI. were look'd upon as good in the Reign of Edward IV. it appears from Bagot\ Case in the Year-Book of the ninth of that King \ where a Patent of Naturalization granted by Henry VI. tho it were not confirm'd by the Sta- pag, u 2 tuteof Edward W. was by the greatest part of the Judges held to be good, and the Reasons there given for it are very remarkable; since it was urg'd by the Counsel in behalf of the PlantifF, *' that King Henry was then King in Pos"session, and it behoves that the Realm should have a King, and that the

"Laws

I

"Laws should be kept and maintain'd ■, and therefore tho he was in only by *' Usurpation, nevertheless every judicial Act done by him, concerning Royal ** Jurisdiction, (hall hold good, and bind the King de jure when he returns, &c. "So likewise a Charter of Pardon of Felony, and Licences of Mortmain (hall w be good, and also the f>ing that now is shall have the Advantage of every , " Forfeiture made to the said King Henry, &c.'y And mark this farther, it is there also held, "that a Man (hall be arraign'd for Treason done against the '* said King Henry in compassing his Death; and the Reason is very remark"able, because the said King indeed wot not merely anUsurper, for the Crown was "intaiid upon him by Parliament; and this being not at all contradicted by ** the Court, is still taken for Law." And upon this Report, and not only upon the Statute of the nth of Henry VII. did my Lord Coke found his Opinion I now mention'd, That a King de fatto was within the Statute of the 25th ofEdward III. And ihonow it is true, that the farther arguing of this Cafe of Bagot was adjourn'd to a farther day, when the Justices did not argue, but the Serjeants and Apprentices at Law (that is*the Barristers, as we now call them) yet it seems to have been allow'd by the whole Court, that if King Edward who was then King, had made his Charter before he was declar'd so, ic should be void at that time;■for every one who (hill make a Charter of Pardon, ought to be King In Deed, at the time of the making thereof.

M. Pray, Sir, give me leave to reply to what you have now said against my first two Arguments, before you go on to answer the rest} for I confess the Authorities you bring seem so express against me, that if I cannot take them off, there will be no further need for answering the rest. I will not therefore deny, but that al) publick Acts and Proceedings at Law, which are for the publick good and safety of the Kingdom, do hold good tho made under Usurpers, and that for this Reason; because such Acts being for the publick Benefit, it is to be suppos'd that the King de ''sure did give his tacit consent to them: for (as it is well observ'd, in the Case you have now cited) it behoves the Realm, should have a King (that is, some Civil Government) and that the Laws should be kept and maintain'd \ but then those Laws can extend only to such things as are for the publick good, and do not tend to the disinheriting the King dejure9 or barring him or his Heirs of their Right, as did that Act of the 7th of Henry IV. whereby the Crown was intail'd upon himself and his Sons, which was declar'd to be void by the 39th of HenryVI. So likewise this Act is void for the ■fame Reason, since it would give a Right to the Subjects to defend the King for the time being, tho an Usurper, against the true and lawful King, who would be thereby not only defeated of his Right himself, but also his right Heirs would be so too*, which would be directly contrary not only to the Intent of the said Statutes of the 39th of Hen. VI. and 1st of Edw. IV. just now mention'd, but also tO the Act of Recognition of King James I's Title.

And therefore I must still maintain that my Lord Cole is mistaken in supposing a King de Facloto be within the Intent of the Statute of the 25th of Edw. III. for sure it would seem a very odd question for any one to ask touching the Laws that are made in any settled Monarchy for ithe defence of the King's Person, Crown and Dignity, who is meant by the King in those Laws; whether the Lawful and Rightful King of that Realm, or any one that gets into the Possession of the Throne, tho he be not a Rightful King but an Usurper.

So likewise as to that Clause in this Statute, which makes it Treason to conspire the Death of the King's eldest Son and Heir, it could be never intended for the Son of a King de FaOo, since that would be to own him for right Heir of the Crown for ever, and thereby intail it upon his Family, to the prejudice of the right Heir of the King de Jure; and therefore, tho I grant some of the Judges and Lawyers held the Law to be so as you have cited it in Bagoss Cafe; and that a King de Fafto may enjoy those Prerogatives in some respects, yet cannot this be extended to the prejudice of the King de Jure, and his Right Heirs. And tho I also grant that divers Acts of Parliament made by Kings de FaOo, have for the most part held good without being confirm'd by any subsequent Statute of the King de Jure, yet have they been also repeal'd sometimes j merely because made whilst the King deJure was alive, as 1 shall prove more ac large by and by.

F. I (hall also take the boldness to reply to these Answers of yours, before I proceed to answer the rest of your Arguments. In the first place, let me tell you that this Notion of a tacit Consent in the King de Jure, suppos'd to be given to all Statutes made for the publick good, is to serve upon all occasions, when those of your Party cannot tell how otherwise to answer the Arguments that are brought against them; and you may as well tell me that they do also give their tacit Consents to all other Acts that Usurpers may do: and I may as well suppose that QueenElizabeth the Wife of Henry VII. the lawful Heiress of the Crown, did in the Person of her Husband give her tacit Consent that this Act of the nth of Henry VII. should hold good for ever, since it is so much for the publick Good and Peace of the Nation •, "That the Statute declares it "should be against Law, Reason, and good Conscience, that Subjects (hould

suffer for fighting sor the King for the time being." But I very much wonder if this suppos'd tacit Consent were given to all Acts of Parliament by the Kings de Jure, why upon their return to the Government, they did not also express this Consent by confirming all the Acts made by their Predecessors the Kings de FaSo, or else declare them void: but since they neither did the one nor the other, it is plain it was because even they themselves look'd upon it as needless.

Nor is your Reason at all satisfactory, why a King de t'atlo cannot be intended by the Statute of the 25th ofEdward 111. because that maketb it Treason to conspire the Death of the King's eldest Son and Heir, which fay you can only be meant of the eldest Son of a King de Jure; which is to beg the Question: forthoitis true, this Clause in the Act was intended for the preservation of the King's eldest Son, yet it doth no where determine that this must be the eldest Son of a King dejure: for tho I own this Clause was made to preserve the Crown in the Right Line from Father to Son, yet does it make no difference between the Son and Heir of a King de FaOo, and one de Jure; nor have you yet answer'd the Authorities I have brought from the Acts of Attainder of those Lords, who conspired against the three Kings of the House of Lancaster, which stand unreverscd unto this day; and which also confirm the Opinion given in Bagoss Case, where it is said exprefly, That a Man may be arraign'd for Treason committed against the King de FaSo, by the King de Jure. And therefore I think my Lord Coke may very well be justified in bis Opinion, notwithstanding the question you put, whether the Statute could mean him who is lawful and rightful King, or any other who gets into possession of the Throne. Now this seems to me no such odd Question: for when the Law only mentions the King, and the Law-makers certainly knew that Kings without an Hereditary Right had often ascended the Thronej if they had intended to except all such Usurpers, they should have exprefly said so. But indeed that distinction of a King de FaSo, and a King de Jure, was not known till many Years after, being first heard of in the Reign of Edward IV. for a King de < Fatto (as the late Chief Justice rightly asserts; is Signior Le Roy within that Statute, and there is no other King bat he whilst he continues so. For King signifies that Person who has the supreme Government in the Nation *, and a King de Jure, is he who should have the Government, but has it not; that is, who of right should be King, but is not: and the Statute of Treason tells us what is Treason against him who is King, not against him who should be, but is not King: and Reason good it should be so *, for it is not merely a legal Title by descent, but a legal investitute, and recognition by Parliament, that makes a legal King, or a King in Law, as it makes a legal Magistrate; and then all E Kings deFaSo, who are plac'd in the Throne by a legal Authority, and with all legal and acustom'd Ceremonies, are legal Kings j and as such, may require a legal Allegiance: so that all those hard words in the Statute of the first ofEdward IV. that call those Kings of the House of Lancaster, Kings in Deed, and not of Right, or pretended Kings, mean no more than this, that they were Kings for the time being, and according to the Laws which had made them so, tho not according to that Hereditary Right of Succession which those Statutes require. If you have any thing to reply to this, tell me, or else I will proceed to answer your two other Arguments.

M. I will not at present fay more to this, and therefore yon may proceed.

F. Your two next Arguments are from the Attainders of Richard III. and his principal Assistants, which were by Act of Parliament. As to that Prince him


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self, as also his Adherents •, the Attainders of Kings dt fatlo, and their Assistants in After-Pat liaments, do not prove that Subjects cannot be guilty of Treason against a King in possession. Nor does the Statute of Treason relate to a King dt jure only, for tnat Statute was not made to secure Princes Titles, but the Quiet of their Government whilst they fat upon the Throne: for tho v a King, if he bean Usurper, whenever the rightful King regains the Possession of his Throne, if he were a Subject before, may be attainted of Treason for his Usurpation, as was Richard III. for Treason against his own NepheW King Edward V. yet this does no way prove thatRichard III. was no true King during his Usurpation, but only shews the Parliament's Abhorrence of his Treason j and to deter others from falling into the like, attainted him and several of his Accomplices who had assisted him rn his said Usurpation. For that they were not barely attainted for defending King Richard's Title, appears from this, that the Earl of Surrey, Son to the Duke of Norfolk^ and divers other Noblemen and Gentlemen who fought for King Richard at BofworthFitld, were never attainted at all. But as for the Pardon that you fay passed in that Parliament of the ist of Htnry VII. you are very much mistaken in the purport of it; for if you please to look upon it again, you will find that it vid. i H. 7. ** was not a general Pardon for the common People, who had fought on the cap.6. u behalf of Richard III. but of all those who had come over with Henry VII.

"himself, or who were with him in the Field against Richard III. for all man"ner of Murders, Spoils, and Trefpafles committed by them, in taking part M with King Henry against his Enemies." So that you fee the assisting of a King dt fatlo was not only justifiable, but those that had fought against him, thought themselves not safe till they had their Pardon.

May, farther, that Attainders passed in Parliament are no proof that the Princes against whom they were passed were not lawful King, appears from hence, That when Edward IV. was driven out of the Kingdom, and dispossessed of the Throne, the next Parliament under Henry VI. passed an Act of Attainder against him and his Adherents. But as for the Attainder of Henry VI. you are very much mistaken to suppose, that it was for any Treason committed against Edward IV. but it was for Breach of the Agreement made with his Father the Duke ofTork, and in making war again upon him ; for had he not done this, he had continued lawful King during his Life by the Duke of York's own Consent. For in the Parliament-Roll you your self have Rot. Parl. already cited, it is thus expressed: " That considering the Possession of the Edw.4- 39 H> 41 said Henry VI. and that he had before this time been named, taken, and re6. a. 18. it putedKingof England, and France, and Lord of Ireland; the said Duke is M content, agreeth, and conscntetb, that he be had, reputed, and taken for '* King of England, and ofFrance, with the Royal Estate, Dignity, and PreM heminence belonging thereto, and Lord of Ireland, during his Life natural; '* and for that time the said Duke, without hurt or prejudice of his said Right ** and Title, shall take, worship, and honour him for his Sovereign Lord." So that you fee that by the Judgment of the Parliament, and by the express Consent of the right Heir of the Crown, a King it fatlo was to be owned by this right Heir for his true and lawful Sovereign, and therefore could not be attainted for detaining the Crown from him, or his Son.

M. I will not dispute this Point any further; but yet, methinks, tho Treason might be committed against the King it fatlo whilst he continues King, yet this is not for any Allegiance due to him, but because such Treason being against the due Order of Government, and the common Peace of the Nation, such Actions are therefore Treason from the presumed or tacit Consent of the King dt jure.

c.A./.58,59. F. I^rant indeed that such Acts are against the Order of Government, and very destructive to it, which is the only reason why they are made Treason by Law: and this is as good a reason why the Law Ihould make them Treason against a King it fatlo, as against a King it jurt, for they are equally against the Order of Government, and destructive to it, whoever is King; and that is the only reason why they made it Treason at aU. Now this presumed or tacit Consent of the King dt jure is a very pretty Notion, and serves you for a great many good turns; it makes Laws, and it makes Treason, and gives Authority to the unauthoritative Acts of a King dtfatlo; that is to fay (or you

fay 'say nothing) that the presumed Consentof a King de jure, invests the King de fatto at the time with bis Authority: for if he hath no Authority of his own, unless what the presumed Consent of the King de jure gives him, that cannot make any treasonable Act done against him to be Treason ; for it cannot alter the nature of things, nor make a Man guilty of Treason against any Person to whom he owes no Duty of Allegiance. And if the presumed Consent of the Kingdk jure can invest the King de With his Authority, it must transfer the Allegiance of the Subjects too: and then Subjects are as safe in Conscience, as if the King de jure were on the Throne, for it seems there is his Authority and tacit Consent, tho not his Person.

But indeed this is all mere trifling j the King de satto has Authority* or else none of- his Acts of Government can have any; for that which is done by a Person who has no Authority, can lay no Obligation upon us: whence then has he this Authority, since he has no legal Right to the Throne? not / sure from the presumed Consent of the King de jure, which is Nonsense to suppose j but from the possession of the Throne, to which the Law it self, as well as the Principles of Reason, have annexed the Authority of the Government.

- M. I am so far'of Bishop Sanderson's Opinion in his Cafe concerning taking the Engagement, that when Usurpers or Kings, de faBo have taken upon them the Government, they are obliged to administer it for the common Good and Safety of the People j and as far as that comes to, we are also obliged to live peaceably under them, and to yield Obedience to them in things absolutely necessary for the upholding Civil Society within the Realm; such as are the Defence of the Nation against Foreigners, the Furtherance of publick Justice, the Maintenance of Trade and Commerce, and the like. But sure this is no Argument for transferring our Allegiance from the lawful King and his Heirs whilst they are alive; and therefore I must still suppose that this Statute of the i ith of Henry VIL can do no Service to the present Government, because it is virtually repealed by several Statutes. As By the 28th of Henry VIII. concerning the Succession of the Crown, wherein it is exprefly provided, that if any of his Children should usurp upon each other, or if any of those to whom he should bequeath the Crown by his last Will* or Letters Patent, should take the Crown in any other manner than what should be thereby limited, such Children or others should be guilty of Treason for so doing. Now it is plain such Treason must only have been committed against the right Heir* and consequently the Person so taking the Crown was not to be looked upon as King de fa&o. It is also virtually repealed 6y the Statute of primo Elijah. by which we are obliged to swear to be true to theQjeen, her Heirs, and lawful Successors (*'. e. those who have a Right to the Crown by Proximity of Blood) as also by the Oath of Supremacy, enacted in the 4th of King James, by which we are likewise sworn to bear true Allegiance to his Majesty, his Heirs, and Successors. From whicrTOaths! argue, (1.) That if we are sworn by Act of Parliament to pay Allegiance to the Heirs of a King de jure, who never were in possession, then a fortiori to a King de jure, who, besides the Legality of his 1 itle, had been actually recognized as Sovereign, and enjoyed an uncontested Administration of the Regal Power, (x.) If our Laws oblige us to swear Subjection to the Heirs, &c. of a rightful Prince, then by undeniable Consequence we are bound not to translate our Allegiance to those who are unjustly setup by the People; for without all question the words Heirsand Lawful Successors were made use of on purpose to secure the Hereditary Rights of the Monarchy, and to prevent all Usurpations upon the direct Line. And since by virtue of that Statute, which framed the Oath of Allegiance and Supremacy, we are not to acknowledge any pretended Governors, to the Prejudice or Disinherison of the Heirs of the King de jure, then most certainly we ought not to do this in opposition to the King de jurehimself; so that now we can have no pretence to make Right the necessary Consequence of mere possession of the Crown, any more than in private Estates.

F. In the first place, I agree with you in what you have said, that Kings de fatlo are to be obeyed in all things tending to the publick Good of Society; but then it will also follow, that Allegiance is due to them from that great Law of prosecuting the same publick Good: since it were much better that even

Pp pp 2 Kings Kings de jare should lose their Right, than that a Nation should be involved in a long and cruel War, to the weakning and impoverishing thereof, and to the destruction of so many thousands of ordinary as well as noble Families; as wafs seen in the long Civil Wars between the Families of Lancaster and York. So that I cannot but think it would have been much better for this Nation, if that Family had continued to govern us onto this day, rather than that Edward IV. should have obtained the Crown, with so great a Destruction of the People of this Nation, and so great Cruelty as was then exercised upon King Htnry VI. and the Prince his Son, and so many other Persons besides, as you may read in the History of those times.

But 1 come now to answer the rest of your Arguments, whereby you will prove this Statute of the nth of HtnryVII. to be virtually repealed. And here by the way I must tell you Gentlemen of this Opinion, that I cannot but admire your wondrous Sagacity in discovering this Act to be repealed, when my Lord Coke, and aH the reft of our Lawyers, do still suppose it to be in force. But indeed the reason you give for it is not urged like a Common Lawyer, and therefore I think it will signify little: for tho I grant that an Act of Parliament may be virtually repealed by a subsequent Act, yet it is only in snch Cases where they are absolutely contradictory, and inconsistent with each other ; but if they are not so, an Act of Parliament can never be said to be virtually repealed. And therefore I shall now show you, that notwithstanding the Statute of Henry VI.II. and the Oaths of Supremacy and Allegiance you have now mentioned, this Statute may very well continue in force and unrepealed. First, As to the Statute of Htnry VIII. whereby it was declared Treason for any one of his Children, upon whom the Crown was settled, to usurp upon each other , that part of the Statute, which makes this Treason, was > t Self, repealed by the istof Edward VI. and by the ist of Queen Mary. Or admit Chap. 12. it had not been so, yet this Clause in the Statute of HenryMYA. would have been absolutely void in it self against any such Usurper, when actually possessed of the Crown; since it was held by all the Judges in the Case of Henry VII. who at the time of his coming into England stood attainted by Act of Parliament, that this Attainder need not be reversed, since Possession of the Crown takes away all precedent Defects.

But as to the Statutes of the ist of Queen Elizabeth, and the 4th of King James, by which the Oaths of Allegiance and Supremacy were enacted ; 1 conceive neither of these Oaths can amount to a virtual Repeal of this Act: for • tho I grant one end of these Oaths may be to secure the Right of the King's

or Queen's Heirs by lineal Descent, yet it will not therefore follow, that a King de failt, or for the time being, may not be legally defended in the Throne 4 for as for that part of the Oath which was taken to King Jameshimself, it can hold no longer than whilst he continued King, if therefore the Estates of the Kingdom have adjudged him to have forfeited or abdicated the Crown, the whole Nation ought to take this as to have been legally done, since it was done by the judgment of the highest Authority in the Nation, when King James had deserted the Throne. The like I may also say for the other part of the Oath of Allegiance, whereby we are obliged to his Heirs and lawful Successors: for since there has been a Dispute concerning the Succession of the Crown, between the Princess of Orange and your Prince of Wales, if the Convention, who are the sole proper Judges in this Case, have thought fit, for the Reasons I have already given you at our last Meeting, to declare King Williamand Queen Mary the lawful King and Queen of England, all the Nation ought to accept them for such, since it was done by the highest Authority at that time extant in the Nation, and the only proper Judges of that Right; and if Disputes about legal Rights (of which certainly that of succeeding to the Crown is of the highest importance) ought to be decided by E.l.r. p. Law, and not by the Sword (which is not the decision of Civil Authority, but8.9- of Force) the Sentence of competent judges must end the Dispute. And if

the Estates of the Realm be not the proper and legal Judges of such Disputes that concern the Right to the Crown, there can be none; and if they be, Subjects must acquiesce in their Judgments, or it is all one as if there had been none: for if Men may pretend Conscience, and adhere to their own private Opinions as sole Judges, the Dispute must end in Blows j which is contrary to

the* the Reason and Nature of human Societies, which were instituted to prevent CSvil Wars, and to end all Controversies by a legal Judgment without the Sword.

And to Jet you see farther, that as to the Allegiance of the Subjects it is all one in respect of us who are Subjects, whether the Convention have judged Right or Wrong in this Cafe: Let us suppose a Person who has only a Pretence, but no true Right to an Estate, mould commence a Suit of Law for it, and at last obtain a Verdict of the Jury, and also a Judgment of the Court of Kiug's Bench for his Titles can any Man deny but that the Sheriff is, by virtue of this Verdict and Judgment, obliged to put this Abator into possession of this Estate, notwithstanding he may know of his own knowledge, that the Person who has obtained this Judgment has no true Right to the Estate? Or will any Lawyer doubt whether all the Tenants of the Mannor are not obliged to swear Homage and Fealty to this supposed Lord, if they are required by him so to do? Now tho the true Heir or Owner has the legal Right to the Estate, yet by the supreme Law of all Societies, which refers the Decision of all personal Rights to a legal Authority j he who by a legal Judgment is pos.11 sessed of it, has the legal Right in the Estate against all other Claims, and legal Authority must defend him in it, and all who will submit to Laws and legal Authority, most acquiesce in it.

And thus it must be with respect to the Rights of Princes as well as of Subjects: The Right to the Crown has been often disputed, as we all know; and to fay that when such Disputes happen, there is no Authority in the Nation to decide them, is to fay that Princes have no Right to their Crowns by the Laws of that Nation •, for there can be no Civil Rights, of which there neither are nor can be any Civil Judges : for no Man, no not a Prince, can be Judg in his own Cause; and if Princes have no legal Rights, they can lose no legal Rights when they lose their Crowns, and I doubt their natural Rights will affect the Consciences of very few Subjects. Therefore every independent Civil Society, which is not wholly governed by the Sword, must, from the nature of .such Societies, and the reason of their Institution, have Authority within it self to decide all Controversies which may arise about the Rights of every Member of that Society, and to preserve it self from falling into a State of War, which is a Dissolution of all Civil Government: and it there ought to be such an Authority in every civilized Nation, when this supreme Authority has given Sentence in such Disputes, this must also determine all the Subjects, and ought likewise to have the same effect upon the contending Princes themselves; and no Right, or pretence of Right, ought to affect the Conscience after such a final Judgment, unless Civil Rights can oblige Subjects to dissolve Civil Governments, and to dispute Civil Rights, not by the Law, but by the Sword; which is to overthrow all Civil Rights, and put an end to the Authority of Laws.

1 hope this may serve to stiew you how much yon are mistaken, to suppose that there can be no King in an Hereditary Monarchy, but the next lineal Heir. And tho I grant no Allegiance can be due or ought to be paid to him who is no King, yet will it not follow, that none can be due to any Prince if he be not the next Heir; for that no Obedience can be due to him who is no King, I readily grant, but yet he may be a legal King in this Kingdom, who is not the next Heir by Blood, as almost half of the Kings of England since the Conquest were not, and yet have been always owned and obeyed as legal Kings.

M. I confess what you fay would go a great way to satisfy me, could you prove that there was no Difference between the Succession to Crowns and private Inheritances, where I grant that the Judgment of the supreme Court of the Nation, is to determine not only the Possession, but the Right too, in respect of the Person who loses his Estate by an unjust Verdict, or illegal Judgment i whereas it is otherwise in the Title of Crowns, to which Princes have a Right as well by the Laws of God and Nature, as also by the received settled Laws and Customs of the Kingdom concerning the Succession by Descent; which is called, in the 13th of Queen Elizabeth, (in the Statute we have so much debated at our last Meeting) the common Laws of this Realm: and it is there declared, that it ought to direct the Right of the Crown of England, and it is there made Treason, daring the Queen's Life, to affirm the contrary. And this Course of lineal Succession at Common Law was also declared by solemn judgment in Parliament, in the Case (I have so often urged) of the Duke of TV A's Title to the Crown against Henry VI. that it could no way be defeated by Act of Parliament; and therefore 1 must still tell you, that you go upon a wrong ground, when you suppose that there can be now any Dispute who is rightful King of England^ fince I have often told you, that he can neither abdicate or forfeit his Right to the Crown, and that no Parliament whatever (much less a Convention) could have any power to declare he had abdicated the Government, and that thereby the Throne was become vacant. Forthol grant the Judgment of the Estates of the Kingdom, when legally assembled, ought to be received with great Submission and Respect; yet must it be only in such Matters which they have a legal Cognizance of, and which they are impowered by the Laws and Constitutions of the Kingdom to determine. But their voting him, whom you your self cannot deny to have been their lawful King, to have abdicated the Throne (when indeed he had not) and then not only to declare the Throne vacant, but also to place those therein whom you your self dare not affirm to be the next Heirs by Blood, arc things quite out of their Element, and beyond the Sphere of their Authority. And tho I grant that they may sometimes judge concerning the Succession of the Crown, and who is next Heir to it, yet is this only to be understood as far as they judge according to the common Laws of the Succession already laid down at our last Meeting, and not when they go quite contrary to them: and therefore tho I own the Parliament might justly declare Henry VI. to be aa Usurper, and consequently might be deposed; yet it doth not therefore follow that they had a like Right to declare EdwardIV. an Usurper, and to pass an Act of Attainder against him, as I confess they did after that Prince had held the Crown for ten years together, since that was beyond their power to enact or declare by the fundamental Constitution of the Government.

F. Iam sorry your Answer can assord nothing new, but only the Repetition of the same false Principles and Arguments that have been already so often answered in our former Conversations: for in the first place I have sufficiently proved, that neither the Laws of God nor Nature have ordained any such thing as a lineal Succession of Kings, or any irresistible or unforfeitable Power in them, which they can never fall from, let them act ever so tyrannically. For I think 1 have sufficiently proved, that not only in absolute Monarchies, but also in limited Kingdoms, where the King has not the whole supreme Power, a King may not only be resisted, but may be also declared to have abdicated or forfeited his Right to govern, in cafe of any apparent obstinate Violations of the fundamental Constitution, in those great Points that make that Government to differ from a defpotick Monarchy ;and that if they had not this Right, all their Liberties will signify nothing, and their Lives, Liberties, and Estates would lie wholly at the King's mercy, to be invaded and taken away whenever he pleased. I am forced to repeat this, to remind you of the Reasons upon which those Principles are founded; and therefore you do but fall into your old Mistake, when you affirm, that by the fundamental Constitution of the Government, the great Council of the Nation (which was but the fame with our late Convention) had no power to declare the King to have broken the original Contract between him and his People.

Therefore what you fay concerning the want of Authority in this great Council to declare the Throne vacant, is altogether precarious, unless you could also prove that it is against the fundamental Constitution so to do; whereas I have so far proved the contrary, that the Throne has been declared vacant no less than eight times since the Conquest, which makes up almost a third part of the Successions of all the Kings and Queens that have reigned since that time. So that if the Custom and Practice of great Councils or Conventions (and those not condemned by any subsequent Statutes) can be the only Rule or Guide for the Consciences of all the Subjects of this Nation, we have certainly had that as solemnly declared now, as in any other great Council or Convention that has been ever held in this Kingdom. But as to what you fay concerning the want of Power in those Councils, to declare or recognize who are the right Heirs to the Crown, but not to make them so, is very pleasant; since


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that were all one as if two Men, who contended for an Estate, should bring the matter before the House of Peers, and when that was done, and the Cafe solemnly heard by Counsel on both fides, that Party who had lost the Cause, should declare that this Court (though the highest in the Kingdom) had no power to judge in prejudice of himself, who had an undoubted Right to the Estate, which were to give the Lords a power to give Judgment only for one side; and why the other Party, if the Judgment had been given against him, mould not have made the like Plea, I cannot understand: so that such a Judgment would be altogether in vain.

Therefore to apply this to our purpose, tho-the Parliament, being prevailed upon by the Strength and Faction of the Duke of 7V*, did (as I granted at our last Meeting) declare thai his Title could in no wife he defeated; yetHenry the Vlth being then in the Throne, they might have certainly given a contrary Judgment if they had pleased, and then I suppose the Title of the House of York might have been so defeated^ as that the Nation had never been troubled with it again: and so also, when by the Power of Edward the IVtb, a Parliament met, and declared him to be lawful King from the time of his Father's Death, yet when the said King was driven out of the Kingdom by the Earl of Warwick, and King Henry the Vlth restored to the Throne, a Parliament was summoned in the 49th of this King, wherein Edward the IVth was declared an Usurper, and himself attainted; and to which Parliament the Duke Rot. Claus, of Clarence, Brother to King Edward the IVth, is first summoned, as well as 49 H. 6. m. the Archbishop of Canterbury, with all the other Bishops, Temporal Lords, and Judges (of whomLittleton, the Author of the Book of Tenures, was one:) so likewise upon King Edward's Recovery of the Crown the year following, King ib. n Edw. Henry was again deposed, and a Parliament called, wherein all the Dukes, Earls, m. 1. and Barons, with the Archbishops of Canterbury and fork, and most of the rest of the Bishops, swore to Prince Edward, after called Edward the Vth, as right Heir to the Crown.

Now I desire to know what other Law or Rule there was then for the Subjects Allegiance, but the solemn Judgment or Declaration of the Estates of the Kingdom assembled in Parliament, since their Acts and Judgments were in this Dispute directly contradictory to each other: so that it is evident from the constant Practice of those times, that the King de fafto was always owned as lawful Sovereign, and had Allegiance still paid him by all the People of this Kingdom, except those who being the Heads of one or the other Party, were either attainted, or forced to fly the Kingdom.

But as for all others, tho different and contrary Oaths of Allegiance were imposed upon the People, sometimes by the one, and sometimes by the other of those Kings, according as they got possession of the Throne; yet I can no where find, that ever any body suffered for barely swearing Allegiance to the King then in being: for it was always taken for Law, that Allegiance was due to the King de fafto, since ordinary Subjects are not supposed to understand the legal Right or Justice of the King's Title.

M. I must still fay, that there was some colour for the Peoples thus acting (as you fay they did) during the Contest for the Crown between the two Families of York and Lancaster, when I grant it was somewhat a difficult matter to judge which of the two had the best Right to the Crown, by reason that the House of Lancaster had held it for three Descents; as also from the Speciousness of their Title, since it was founded upon a pretended Claim by Right of Blood, upon supposing that Edmund, sirnamed Crouch-back (who was one of the Ancestors of this House of Lancaster) was the eldest Son to Henry the Third •, which had it been true, would have given Henry the Fourth a good Right to the Crown, not only against Richard the Second, but his own Grandfather Edward the Third likewise (had he been then alive:) and this Descent falling out long before the Memory of any Man then living, who could confute the Falsity of this pretended Pedegree? The People of England might very well be excused for owning an Usurper, and paying Allegiance to him, since they did not know but his Claim might have been right, especially since it was approved of in full Parliament without any Contradiction, as I have already shewn you at onr last Meeting.


But what is all this to the matter now in Debate between us, when the LU neal Succession of the Crown has been so often declared to be the only means of acquiring a just Title to it 5 and every one knows very well who was owned for lawful King of England within these three Months, and also who was prayed for in all our Churches as his Son and Heir apparent? and therefore I must still tell yon, that your Parallel between those Kingsde satlo of the House of Lancaster, and those Princes whom the Convention have now voted to fill the Throne, does not at all agree, since every Subject of this Kingdom, who has but fense enough to go to Market, can very well tell (if he will deal sincerely) to whom his Allegiance is due.

F. As to what you have now said, it is no more than a Repetition of what you have already urged to evade the Force of these clear Authorities; but indeed it was all one, when a Prince had been once recognized for lawful King by Act of Parliament, whether the People knew his Title not to be good by Right of Blood or not: And this I have plainly proved to you from the Instance of Richard the Third, who tho both his elder Brother's Children were then alive, and the eldest of them had been proclaimed King, and also owned for such by himself, and whose Title he had also sworn to maintain in his Mem. 1. Brother King Edward's life-time, as appears by the Clause-Roll of the 1 ith of Edward the Fourth; yet when he had once deposed him, and had called a Parliament which recognized his Title, his Acts and judicial Proceedings stand good at this day: and tho he himself was attainted, and declared a Tyrant and an Usurper, yet all the Subjects who acted under his Authority, and had taken an Oath of Allegiance to him, never needed an Act of Indemnity for so doing; whereas those that came over withHenry the Vllth were fain to have an Act of Pardon passed to indemnify them for sighting against Richard the Hid (as I have now shewed you.) And tho this Parliament of the first of Henry the Vllth agreed to repeal divers Acts which the King found fault with; yet as for all other Statutes, made in the Reign of King Richard the Hid (which have not been since repealed) they are still in force without any Confirmation. Likewise when Henry the Vllth had prevailed over Richard the Hid, and that be was slain in the Field, tho all the Nation very well knew that Henry the Vllth could not be Heir of the House of Lancaster, because his Mother was thea alive, and had never formally given up her Right, if she had any; as certainly she could have none, as being descended fromJohn Earl of Somerset, who was base Son to John of Gaunt Duke of Lancaster, by Catherine Swinford, whilst his Wife was alive; and tho I grant after his Marriage with the said Catherine, the Children born of that Bed were made Legitimate by Aft of Parliament in the 20th of Richard the Second, yet that Legitimation only respects such private Privileges and Inheritances which they might enjoy or succeed to as Subjects, vid. tht Act. and had no respect to the Crown; the Succession of which they were exprefly printedUt Urge declared uncapable of by that very Act of Legitimation, still to be seen upon m Buck", mst. tbe Parliament-Roll. But for all this, when Henry the Seventh had called a Parliament, and was therein recognized for their lawful Sovereign, and that the Crown was settled by Statute on him and the Heirs of his Body (without any mention of the Princess Elizabeth, who ought to have been Queen by Right of Blood) yet none of tbe Subjects of this Kingdom (as I can find) ever serapled to swear Allegiance to him, before ever he married that Princess; tho they as well knew that he could have no Right by Blood, as you can suppose that the Peopk at this day can know whether King James has abdicated or forfeited the Crown or not, or whether your Prince of Wales be bis true and bwful Son: for since they are both nice and difficult Points, and have been determined by the Convention, the Supreme Judges in this cafe, in favour of their present Majesties, and that they also recognized their Title after they became a Parliament; 1 can see no manner of reason why all the Subjects of this Kingdom may not as well justify their taking this new Oath of Allegiance to them, notwithstanding their former Oath of Allegiance to King James and bis right Heirs, as well as the People ofEngland could justify their taking an Oath of Allegiance to Henry the Seventh, notwithstanding their former Oath to Edward the Fourth and bis right Heirs, before ever Henry the Seventh bad married the Princess Elizabeth, the Heiress of the Crown; especially since this Act of the 11 th of Henry the Seventh (which we are now disputing about)


was made exprefly to secure and indemnify all those who should attend upon the King for the time being, and do him true and faithful service of Allegiance, &c. And therefore it lies upon you still to prove, that this Statute is either expired, or else-void in it self j otherwise (besides the constant Practice of former times) we have here an express Act of Parliament declaring it every Man's Duty to pay Allegiance to the King for the time being, and then certainly he is as much obliged to swear it too.

M. I doubt not but I Ihall prove to you, that this Statute expired with Henry the Seventh, from a Clause in the Act it self; for if you please to read im- Amediately after those words you have now cited, "That all those who do the' ** King for the time being true and lawful Allegiance, &c. |~it follows thus] ** shall be secured from all manner of Forfeitures and Molestations relating to ** their Persons or Estates \ (but mark) provided always that no Person or "Persons shall take any Benefit or Advantage by this Act, which (hall hereafter "decline from his or their said Allegiance." Now we know a Proviso is an Exception or Restraint upon the Latitude and Comprehensiveness of the Law, and that all Statutes are perfectly null so far as the Proviso reaches. Having premised this, 1 shall endeavour to prove that this Act was designed only for the Security of that Reign in which it was made, and cannot be stretched any farther. To make this appear, let us now suppose a Competition between the King de jure., and Henry the Seventh (that is, one dt fade) and that the Subject engages for the latter \ in this cafe, if the King de satto prevail, there is no need of the Assistance of this Statute: for we cannot imagine any Prince could be so-impolitick as to punissi those who have ventured their All to maintain him in his Government. This, besides the Ingratitude of the Action, would proclaim the Injustice of his Cause, and would serve only to ruin his Interest.

F. Notwithstanding this Objection you have now made, I doubt not but this Clause will bear a very fair and legal. Interpretation, and that not in respect of the Allegiance that might be due to the King de fatto, but to the King , dt jure; since if it were not for the Indemnity provided by this Statute, the King dt fafto would have been obliged to have punilhed them for opposing their lawful Prince.

M. This is easily answered, for pray do Kings dt fatto always perform that which the Law requires? if so, they never would have been Kings dt fatto, since they could not make themselves Masters of the Sovereign Power without dispossessing those who are supposed the right Owners of it. Secondly, the Possessor would not so much as seem obliged to punish his Adherents upon a competition, except he owned himself to be no more than an unjust Usurper: but we have neither example nor reason to expect such singular Concessions as these j for no Usurper will own himself in the wrong, so long as he intends to enjoy the Advantages of his Injustice. Upon supposition therefore, that the Victory had fallen on the side of a King dt satto, the Act would be wholly superfluous.

F. But why may we not also suppose that this Clause was inserted, not only to secure those who had assisted the King dt satto against your King dt jure, but also to debar all those who had fallen from their Allegiance to the King de fatto, from receiving any Benefit by this Act, if ever they ssiould plead it in their own Justification, after the King de jurt had prevailed, and was again settled in the Throne?

M. You may take it in this fense if yon please, but if you do, it will not at all mend the matter \ for tho those that stood by the King dt satto will ibid, have great occasion for an Act of Indemnity, yet this Act will be as helpless to them now, as it was needless before \ for either they must submit to the King dt jurt, or not: if they do not submit, it is easy to imagine the Consequences, how a victorious and irresistible Prince will treat the obstinate and rebellious Opposers of his just Title-, if they do submit (as of necessity they must) then they can claim no manner of Privilege and Indemnity from this Act: for they cannot come into the Party of the King dt jurt, without deserting that dt fatto; i. e. without declining their Allegiance to him, who was King when this Statute was made: by declining which Allegiance, the Proviso exprefly excludes them from all manner of Benefit or Advantage by

Q.qqq this

this Act. In this condition the Law would have left the de fa&a Party, if the Sovereignty had been disputed between Htnry the Seventh and the House of York, and that the Prince de jurt of the House of Tori had been successful: From whence it is undeniably plain, that neither the Design nor Words of this Statute can be drawn to such a monstrous Construction, as to enact bare Posset, lion to be a good Title, and make Might and Right the fame thing. The only Design of this Parliament was to continue the Crown to Henry the Se« venth during his life-time, which both by the Body and Proviso of the Act was as effectually done as in them lay, for divers Reasons that might then prevail with the two Houses to consent to a temporary Alteration of the Succession to the Crown: such as these, That tho Henry the Seventh had no just Title in bis own Right, yet in the Right of his Wife he had, which he did no way disavow by this Act. And you must also remember, that at this time Htnry the Seventh had several Children by his Queen, viz.. Prince Arthur, Henry, Sec. So that now the contending Families of Ytrk andLancaster being thus happily united, there was no reason to fear, that a Security (tho an unusual one) to the present Possessor, could be prejudicial to the right Line, especially since tha Force of that Act was confined to the Reign of that Prince, as has been already proved.

F. You may fancy if you please, that you have proved this Act to be expired, but I think if you better consider of it, you will find your self mistaken; for tho I may very well suppose that the King and Parliament, to deter Men from falling from their Allegiance to the King for the time being, might insert this Clause, upon a supposition that the next King, whoever he was, whether by Right of Blood, or only de faflo, would, out of a generous Aversion to Traitors and Deserters, hinder them by virtue of this Clause from enjoying any Benefit by this Act; yet I (hall not longer insist upon't, whether it be insignificant or not, and therefore will at present grant it to be so: but what then? Will a void Clause vitiate or render expired an Act of Parliament which is made indefinitely, without fixing it to any Time or Person? The words in the Act are, the King for the time being; which must certainly extend to any other King, as well as Henry the Seventh: for I suppose that an Act of Parliament and a Deed agree in this, that an unnecessary Clause can by no meant render the whole void.

But as for what you fay in relation to this Act's being a Security for the Title of the Queen and her Children (whom you suppose to be the right Heirs of the Crown) this rather serves to strengthen the Act than otherwise; for ts this King had a good Title in her Right, then it may be also very well supposed that (he gave her Assent to this Act in the Person of her Husband, and that not for the benefit, but to the prejudice of her own Issue: since it after her Death (which happened some years before his) her Son Prince Henry of Waits had set up his present Title to the Crown in the Right of his Mother, and so would have dethroned his Father as an Usurper, I suppose no reasonable Man will deny but that this Act would have indemnified all those who had taken up Arms in defence of King Henry the Seventh against his Son, tha (in your fense) King de jure: and if it would justify the Subjects then, I cannot see why it may not do the fame thing now in their swearing Allegiance, nay, fighting for the King in poslession, against him whom we will for the present suppose to be King de jure.

M. Well, however I think I can prove that this Act was no more than temporary, from the Judgment of the Judges in the Cafe of John Duke of NorthumA. ii H. 7. htrland; who when he was tried for Treason, for leading an Army against Queen Mary, to settle the Lady Jane Gray in the Throne, desired to be informed by the Judges, whether a Man acting by the Authority of the Great Seal, and the Order of the Privy Council (or Prince's Council, re Stow and Heytin word it) could become thereby guilty of Treasori: To which ail the Judges answered, that the Great Seal of one that was not lawful Queen, could give no Authority or Indemnity to those that acted by such a Warrant; upon which the Duke submitted: tho without question he did not want Lawyers to enforce his Plea with this Statute likewise, if his Cause would have borne it. From whence I infer against Sir Edward Coke, That Treason lies against a King de jure, tho out of possession; for it is plain by all our Historians, that Queen



Mary was so far from being possessed of the Crown when the Duke of Northumberland acted against her, that the Lady Jane was not only proclaimed Queen in London, and most of all the Cities and great Towns in England,but the Tower of London, with all the Forts and Naval Forces, were under her Commaad ; and (he had also Allegiance sworn to her by the Privy Council, and by the Lord Mayor and Aldermen: and (he had also the Seals in her power, by which all Patents and Commissions were granted and issued in her Name. And if all this be not sufficient to constitute her Qjieen de fatto, according to this Statute of Henry the Seventh, I know not what was.

F. Yet I can tell you what was yet wanting, which because she had not, she was certainly neither Queen de jure,nor de fatto, and that was a solemn Coronation and Recognition of her Right by Parliament; which legal Investiture since she never had, ihe was not the Queen for the time being, and consequently not intended within this Statute of the i ith of Henry the Seventh: for tho it is true, Ihe was appointed Successor of the Crown by the Letters Patent of King Edward the Sixth, yet since she could not claim by Right of Blood, there being so many before her, all the Kingdom looked upon it as an Usurpation, and an Artifice of the Duke of Northumberland(whose Son she had married) to get the Government of the Kingdom into his sole power: so that it was no wonder if the greater part of the People weft so averse to her Title, and that those of the Nobility who took her part, so quickly revolted from her, when once the fear they were in of the Duke of Northumberland's Power was removed; for had this Bequest of the Crown to the Lady Jane held good, this Kingdom, instead of being Hereditary, would have become wholly Testamentary, and disposable by the last Will or Letters Patent of the King or Queen for the time being, without the Consent of the Great Council of the Nation: which is contrary not only to the then received Laws of Succession, but also to the antient Constitution of the Kingdom, as well before as after the Conquest.

But notwithstanding all this, I doubt not if the Lady Jane had so far prevailed against Queen Mary, as to have been able to call a Parliament, and to have had her Title owned and recognized therein, as it was in the Case ofRichard the Third and Henry the Seventh, but that she would have been true and lawful Queen, according to the Intent of the Statute we are now discoursing of; and then the Duke of Northumberland must likewise (if he had fair play) have been indemnified for taking up Arms in her Defence against Queen Mary, since Queen Jane would have been then within the Letter of this Statute, as much as King Henry the Seventh.

M- You must pardon me if I cannot be of your Opinion in this matter, since if the bare Coronation and Recognition by Parliament could confer a legal Right to the Crown upon one who had no Hereditary Right to it before, the Consequence of it would be, that the Crown would be so far from being Elective (as you suppose it to have antiently been) that it would be in the power of every bold Usurper or Rebel, who had but the Confidence to call himself King, to gain a legal Title to be so, according to your Principles: and then if Oliver Cromwel could have found a Party strong enough in the Army to have declared him King, and had called a Parliament in his own Name, who had recognized him for their lawful Sovereign, he would then have had as much Right to our Allegiance as King Charles the Second; which certainly was not only contrary to the Settlement of the Crown upon King Henry the Seventh, and the Heirs of his Body, but also to that solemn Recognition of King James the Fiist's Title, as lineally descended as right Heir to the said King Henry, which I insisted on at our last Meeting.

And therefore if you will have my sense of this Act, it is either expired (for the Reasons I have already given) or else was void ah initio; since it is not only' contrary to the settled Course of Succession of the Crown according to the Laws of lineal Descent for divers hundred years past, but also to those of Justice and right Reason, for an Usurper not only to seize the Throne by force, but if he can once get himself solemnly crowned, and then recognized by an Act of Parliament of his own calling (which you your self cannot deny but to have been ever too obsequious to the Will and Power of Usurpers, as appears by those Instances you have given me in Henry the Fourth, Henry the Sixth, and


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Richard 111.) the Consequence will then be, that the whole Nation would not be only bound to swear Allegiance to him, but would be also oblig'd by this Act to defend him in his Tyranny and Usurpation to the utmost of their Power, and it would also indemnify them for so doing •, which would be to establish Iniquity by a Law, and would destroy all the settled Foundations of Right and Wrong, which I affirm God himself is not able to alter, without departing from those great Attributes of Immutability and Justice, so essential to his Divine Nature.

F. It will not be very difficult to reply to these Arguments, since they are grounded on such false Principles as are already answer'd. As first, that this Kingdom is by the fundamental Constitution of it an Hereditary Monarchy, and that consequently none but he who has a Right by Inheritance can require our Allegiance. But pray tell me where yon can find this fundamental Constitution? For I think I have sufficiently prov'd that there never was any such thing known in England, till between four and five hundred Years since., when King EdwardI. succeeded to his Father Henry III. without any Bequest of the Crown by his Testament, and before any Election or Coronation, he being then c. A. p. 57. in the Holy-Land. But suppose it now to be an Hereditary Monarchy, it doth not therefore follow, that the Monarchy should continue always in such a Family, for that may fail, or may bechang'd by Conquest or Usurpation, as has often been, and the Constitution continue. So that the most that can be said, is, that when any particular Family, by the Providence of God, and the Consent and Submission of the People, is plac'd in the Throne, of Right the Crown ought to descend to the Heir of that Family: but suppose it does not, must we pay Allegiance to no other Person, tho possessed of the Throne? Pray, Sir, shew me that fundamental Constitution; for its being an Hereditary Monarchy does not prove it, and according to the Judgment of the best Lawyers, the Laws ef the Land require the contrary, viz.. that we must pay our Allegiance to him who is actually King, not to him who ought to have been King, but is not: and to think to confute this, by pretending this fundamental Constitution of an Hereditary Monarchy, is to take that for granted, which is still to be prov'd.

And therefore I am not at all frighted at the dreadful Consequences which you suppose must follow if this Statute of Henry VII. should be Law, viz.. that it would be in the power of every Rebel and Usurper who could get himself crown'd, and then own'd to be King by a Parliament of his own calling, to have a legal Right to our Allegiance; and that Cromwell, if he could have got himself once crown'd, and recogniz'd, might have been defended in his unjust Usurpation against King Charles II. But admit this to have been so; yet it is still to be understood, that at this Coronation he had taken the Oath antiently taken by our Kings, and that the Parliament he had snmmon'd to recognize his Title, bad consisted of the antient Lords and Commons, consisting ef Knights, Citizens and Burgesses, which never wasobserv'd in any of those Mock-Parliaments which Cromwell call'd: Had all these Conditions been observ'd, 1 believe he would have been as legal a King within this Statute of HenryV11. as he himself ever was before he married with the Princess Elizabeth, which was not till near half a Year after he had the Crown settled upon him by Act of Parliament. So that tho upon every Translation of the Crown from one Family to another, the first Prince of that Family could have no Hereditary Right to it, yet we find such Princes to this day taken for lawful Kings. Thus your William the Conqueror, King Henry IV. and King HenryVII- are each of them look'd upon as true and lawful Kings (according to our Constitution) as if they had been right Heirs of the Crown by lineal Descent; and tho you may say, that as to William I. he had a good right by Conquest, that is only gratis diclum, since I have already prov'd that lie could be really no Conqueror. And if theEnglish Saxon Monarchy was Hereditary before the Conquest (as the Gentlemen of your opinion suppose) he could be no other than a Usurper upon Edgar Atheling^ the right Heir of the Crown by Blood. And as for HenryJV. and Henry VII. tho they both pretended a feign'd Title to the Crown as Heirs by Blood, yet it is plain by the very Acts of Recognition I have cited, that they durfc'not insist upon that Title; since I have already prov'd there is nofach thing mentioa'd in that Act of Parliament, wherein the Estates of the Kingdom


unanimously agreed that Henry Duke of Lancaster should reign over them; nor yet in the subsequent Act, whereby the Crown was intailM upon himself, and his four Sons successively. So likewise in the Statute of the first of Henry VII. it is only drawn in general Terms; u declaring that the Inheritance of the Cr6wn ** ofEngland, &c. (hall rest, remain, and abide in the Person of King Henry w VII. and the Heirs of his Body lawfully coming, &c." Nor is there indeed any Breach made upon this Statute (as you suppose) nor yet upon the Act of Recognition of King James, which you so much insist upon •, since the Crown is certainly settled upon two Princes, who are not only lineally descended from them, but who are also to be look'd upon as right Heirs unto them, since the Great Council of the Nation, who are the supreme Judges, have declar'd them to be so.

But as for the rest of your Speech, whereby you would prove that this Act must needs be void, because contrary to the Laws of Justice and right Reason; this also depends upon your former Error, in supposing that Princes have a Divine or Natural Right to their Crowns antecedent to the municipal Laws of their respective Kingdoms, which is already sufficiently confuted. So that tho I grant it is not in the power of God himself to alter the natural Foundations of Right and Wrong, Just and Unjust •, yet it is likewise as certain that the Civil Rights of Princes, as well as those of Subjects, can no ways be accounted for according to those Natural Laws; since all Civil Property, as well in Crowns as other Possessions, must depend upon the particular Laws and Constitutions of each Kingdom and Nation, as I have already sufficiently made out.

And therefore tho I grant that all legal Authority ought still to go according r. to just or rightful Titles, yet since God makes no Kings at this day, but those 25> *6' who are made Kings by some human Acts, and have a legal Right to Kingship by some human Laws; how can you prove from hence, that in England none can have a legal Right to govern, but those who have the rightful Title of a lineal Succession? For if the Title alone does not confer the Authority, but that the Law fays a legal Investiture by Coronation and Recognition by Parliament (hall also confer it, it is evident that an Hereditary Title, and a Legal Authority, may be separated, and yet the Authority continue Legal still: tor Legal Authority must be convey d in such manner, and by such forms as the Law has prescrib'd, or appoints to that purpose, for there is no other way of conveying it; and then that Authority which is so given in form of Law (and that only) is the legal Authority. If then the Estates of the Realm, who are the only proper Judges of such Disputes, have adjudg'd the Crown to one, whom we willat present suppose to have no antecedent legal Title to it, yet he thereby becomes legally possessed, not only of the external Force and Power, but of the legal Authority of the Government also *, and therefore he may challenge as his due, all legal Obedience, (which is the true notion of Allegiance, for nothing more than legal Obedience can be due to a mere legal Authority:) so that because he is invested with the legal Authority, the Crown is his legal Property, against all other Claims, and his Subjects must defend him in it; as the legal Properties of private Persons being once determin'd by Judgments of inferior Courts of Law, are also to be defended by the Civil Power against the force of him who perhaps may have the better Title to the Estate by Right of Blood. And if God makes Kings by human Acts, I hope it is no injustice in God to make him a King, whom the Law makes a King, and to enjoin our Obedience to a legal King; which legal Authority may be said to be annex'd to the legal Title, while there is no legal Judgment against it: which was not the Case of Queen Mary, and the Lady Jane her Competitor •, nor yet of King Charles II. and Oliver Cromwell: since neither the one or the other were ever crownM or acknowledg'd as lawful Queen, or King by Parliament, and therefore could obtain no legal Title against the right Heirs. But on the other side, when one is solemnly declar'd King or Ojieen, being crown'd or plac'd on the Throne by the Estates of the Realm, he is then legal King, and has the legal Authority, as the Royal Estate and Dignity was own'd to be inHenry VI. when the Dukeof York claim'd the Right to the Crown. . v

M. I am not yet convinc'd I am mistaken in this matter; for waving at present any natural or divine Rights of Princes, I think this Act of Henry,\\\. (if soppos'd to be now in force) is no ways to be reconcil'd with'the former declar'd



Laws and Statutes of the Kingdom •, much less can this last pretended Act of Recognition of King William and Queen Mary reverse the Statute of Recognition made to King James I. whereby the Parliament does not only own Him for true and lawful King by descent from Henry VII. and Edward IV. but also engage themselves and their Posterities to his Majesty, and his Royal Progeny for ever. And they do likewise conclude in these words, (I have not yet mention'd) "Which Act, if your Majesty shall be pleased (as an Argument of your gra"cious Acceptation) to adorn with your Majesty's Royal Assent (without ,l which it can neither be compleat and perfect, nor remain to all Posterity, *' according to our most humble desires, as a Memorial of your princely and "tender Affection towards us) we shall add this also to the rest of yourMa** jesty's unspeakable and inestimable Benefits". Here they plainly acknowledge these jwo things. First, That the Crown descends by Proximity of Blood, and that immediately, even before any Ceremony of Coronation, or otherwise; so that there can be no Interregnum, or Vacancy of the Throne j and accordingly it is a maxim in Law, that Rex non moritur. Secondly, That the Assent of the King is that which gives the Life, Being, and Vigour to the Laws, without which they are of no force: therefore 1 shall plainly prove these Acts to the contrary to be void. It is a Maxim in our Civil as well as your Common Law, that every Senatus-Consultum, or Decree of the Senate, as also every Statute or Act of Parliament, must be abrogated and repeal'd by the fame Authority by which it was made. Since therefore that Act of the first of Edward IV. whereby he wasdeclar'd to be lawful King, as descended from Lionel Duke of Clarence, third Son of Edward III. by Pbilippa his Daughter and Heir, and that Henry IV. and Henry VI. who had successively held the Crown, were Usurpers, and only pretended Kings i it would necessarily follow, that none can after this so solemn Law and Declaration, lawfully succeed to the Crown of this Realm, but such as have a true and just Right as Heirs by Blood, according to the course of descent allow'd of by the common Laws of this Kingdom: and therefore Henry VII. being an Usurper, and enjoying no more than a Matrimonial Crown, could not join with a Parliament in making any Law • contrary to that of the first of Edward IV. which had been so solemnly past, and settled in Parliament by a King whose Title was by descent indisputable.

So likewise in the matter now in dispute between us, I can never apprehend how a pretended Statute made in a Convention, and not in a lawful Parliament summon'd by the King, can first declare the Throne vacant, and then appoint those to fill it, who certainly can have no just 1 itle to it, according to that Act of Recognition of KingJames \ M which exprefly declares, that they "themselves could not have made that Act to be compleat and perfect to remain "to all Posterity, without his Royal Assent." Which being once past into a Law, by a King whose Title was indisputable, can never afterwards be alter'd (if ever it can be at all) but by a Parliament as legally call'd, and that by a King whose Title is also as legal as that of King James I. This Objection, tho I have often urg'd in other words, yet could 1 never yet obtain a satisfactory answer from you.'

F. Tho I have already in part answer'd this Objection at our last Meeting, and have also partly done it already in this; yet since I fee you so much insist upon it, and do also urge it again in other words, with a fresh addition of new Arguments; I hope you will not think me tedious, if I am also necessitated to repeat the same things again, and put you in mind of what I have already prov'd: which when I have done, I doubt not but this Argument of yours will signify very little. Your first mistake therefore is, that Henry VII. being an Usurper, had no power to alter the course of Hereditary Succession, settled by the Statute of the first of Edward IV. whereby he wasdeclar'd lawful King: in answer to which, I must put you in mind, that this was the first time that ever this Point was so settled, and that not till after a long War, and by subduing all those that held with the House of Lancaster, he had made such a perfect Conquest of all that oppos'd him, that there were no Lords or Commons in this Parliament, but what were intirely of his Party. Yet we fee that when Henry VI. got the upper hand again, his Party revers'd this Statute of Edward IV. and declar'd the Crown to belong to Henry VI. and his Heirs;



which Act was reversed again by the next Parliament, in the nth of Edward IV. when he again recovered the Crown by another Battel against Htnry VI. So evident it is, that whoever is once seated in the Thrcne, and is recognized by Act of Parliament, tho of his own summoning, all his Acts till they are repealed do hold good, tho he were declared an Usurper, and himself attainted by Act of Parliament. And therefore admitting that Htnry VII. was an Usurper at the time when this Act we now discourse of was made, yet would it not render this Act void as you suppose, since it was never yet repealed by any subsequent Statute.

But indeed Htnry VII. was no Usurper at the time when this Statute was made; for you your self have already granted, that he had a good Title in right of his Wife, which he never renounced or disavowed: and therefore we may very well suppose that stie, tho Queen dt jvre7 gave her tacit Consent to this Act in the Person of her HuBband j and if so, I cannot see any reason why it mould not stand good, not only against her self, and her own Children, but also against all others who should claim under her Title. But if you say she could not do this in prejudice of her own right Heirs, because the Crown had been already declared by Act of Parliament to be hereditary, and not to be acquired by Usurpation i this is to beg the Question, and to suppose an hereditary Descent to have been the fundamental Law, and constant Practice of the Succession of the Crown before that time: -whereas I have already proved, that till the Reign of Edward], the Crown was partly hereditary, and partly elective; and ever since that time, tho it has been still claimed as hereditary , yet has it been always believed to be the Right of the Parliament to declare who was lawful Kipg; and that whosoever was so declared and recognized, has beer) always looked upoq, in the eye of the Law, as the only rightful and legal King, to whom the Allegiance of the Subjects was due, and whose Statutes are obligatory at this day.

This being so (as it cannot be denied) your Argument from the Act of Recognition to King Jwts L may be easily answered; tho I should grant at present (for pifourse-sake) that their now Majesties King William and Queen Maryare only King and Queen de.failo: for if all the Statutes of these three Kings of the House of Lancaster, and ofRichard III. (nay even those Statutes by which themselves were declared to be lawful Kings, and the Crown settled upon them and their Issue) have at all times held good, till they were lawfully repealed j I desire you would shew me any sufficient reason why the late Act or Recognition of their present Majesties Title, and for the Settlement of the Crown upon their right Heirs of the Protestant Religion, should not have the like force and effect in respect of our Allegiance to them, as it had to all other Kings dt facto who have hitherto fat upon the Throne, tho perhaps it may derogate from the intent of that Statute of Recognition of King James I, nor does it make any Difference, tho we suppose that this Act was made by a King by Descent, and that we now discourse only of a King and Queen de fatto, and a Parliament called or owned by them; since the Law allows no Difference, as to their Legislative Power, between Acts made by a King de fac~ to, and one de jure.

And therefore tho I grant, fi.) That those Conclusions you draw from this Statute are true, that there is qo Interregnum or Vacancy of the Throne •■, and, (2.) That the Assent of the King is that which gives the Life, Being, and Vigour to the Laws: yet as for your first Conclusion, that there can be no Vacancy of the Throqe, it is only to be understood, that ordinarily, and accord* ing to the common Course of Succession, there can be none;and yet extraordinarily there may, as you your self must grant: since upon the Death of Queen Elizabeth there might have happened a Contest between King James and the then Earl of Hirtsord, as Heir to Mary the FrenchQueen, second Sister to King Henry \'\\[. upon whose Heirs the Crown was settled by Henry VllfsWill, as I have already mentioned at our last Meeting. And if it had been a Doubt whether this Will had bees rightly made or not, it could have been no otherwise decided but by War, or else the solemn Judgment and Recognition of Parliament of that Title they had judged to be best j and he who had been so declared, would certainly have been lawful King, and all the Nation had been obliged to swear Allegiance to him. Apply this to the present Case, admittingKing


James to have truly abdicated the Throne, and see whether it be not exactly
the same, supposing (for once) your Prince of Wales to have been indeed the
Son of the late King and Queen \ and tho it is true he is not yet declared an
Impostor, yet is he neither acknowledged as their right Heir, for the Reasons
I have already given.

But as for your next Conclusion, that it is the Assent of the lawful King that gives Force and Vigour to a Law;from whence you would infer, that the late Act of Recognition and Settlement is void, because not made by those who were lawful King and Queen at the time of the making this Act: this is also to beg the Question. For tho it is true the Act of Recognition to King James declares 'this Act could not be compleat without his Majesty's Royal Aflent, yet it is not there said, that no other King but he who claims by Descent (as King James did) could pass an Act that should be good in Law j since we fii>d by the whole Coarse both of Law and History, that the Statutes made by Kings de fatlo are as truly and as much Laws as those made by your Kings dt jure; and Attainders for Treason committed against them, have been so far from being declared void, that they could not be reversed by any other means than by particular Acts of Parliament made for that purpose, as I have already shewn you from divers Instances, both from History and Records. Nor is your Exception against the present Parliament's not being called by the King's Writ of any force: since I have already proved at our last Meeting, from the Example of the Great Council that assembled to recognize and ordain Edward the First to be King when he was in the Holy Land\ as also by the Parlia• ments of Edward and Rkhard the Second, by which they were deposed, and Edward the Third and Henry the Fourth declared to be their Successors •, That those Parliaments could not be summoned by those Princes whom they so recognized: and therefore tho they were called by the Writs of the former Kings, yet their Authority determined as the Parliament of that King that called them, upon his ceasing to be King*, and therefore must owe their fitting longer wholly to the Authority of him they had already declared King, whose Presence and Authority was then looked upon as sufficient to give them power to sit and make Laws with the succeeding King, tho they were never summoned by him. ,

To these Parliaments I may add that of the first of King Charles the Second, which called home the King, and after his Return made several Statutes both publickand private, which stand good to this day: so that to conclude, you have no reason either from Law fir History to maintain that there can be no Vacancy of the Throne, or that none can be declared King or Queen, but in a Parliament summoned by the Writs of that Prince, whose Title they are to recognize.

M. 1 shall not deny the Matters of Fact to have been as you lay them, as to the Great Councils or Parliaments you mention ■, but in answer to this you may remember, that as for those Parliaments, called in the Name ofEdward or Richard the Second, there is no Precedent to be drawn from them, because they served only to depose their lawful Kings, and to set up those who had no Right, at least as long as they lived: and you very well know, that any coercive Power in the two Houses of Parliament over the King, is exprefly renounced and declared against in the Parliament'of the thirteenth of K.Charles the Second, as I have already shewn you. But as for the Convention which was called in the first Year of that King, I have also given you my Judgment of it, that tho they might lawfully meet to vote the Return of their lawful Sovereign, and to recognize his Title, yet were they not for all that a lawful Parliament, as to the raising of Moneys, or making of Laws \ and therefore whatever they did to both these, was fain to be confirmed by the Parliament of the Thirteenth I now mentioned.

But indeed I cannot but admire at this mungrel hodge-podge Course of Succession, which you now suppose to take place in England j for you cannot deny but the Crown rs Hereditary, and has been always claimed as such for near 500 Years: and yet for all that, whenever an Usurper and a Parliament shall agree together, he to take the Crown by force, and they to recognize his Title as soon as he pleases to call them, he must then be looked upon as a lawful King; and the just and rightful Title of the true King, or lawful Heir of the Crown, shall be so far destroyed, as that Allegiance must be due to this Usurper,


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per, tho perhaps he obtained the Crown by the most horrid Villanies in the World: as the deposing and murdering of his lawful Sovereign, as Henry the Fourth did, and which would also have been the Cafe of Oliver Cromwel,had he ever taken upon him the Title of King. So that this is to set on foot at once two contrary legal Rights \ a legal Right and Title to the Crown by Descent of Blood, without a Right to exercise the Authority belonging to a King, and a legal Right to wear the Crown, and exercise the Authority belonging to it, without any antecedent legal Right to the Crown it self: which would indeed render the legal Authority in England, to be like the Right that Men have to those Creatures that are fer* nature which belong to him who can get them into his power -7 for as to the Consent or Recognition of Parliament, I look upon that as a mere bauble, since your self cannot shew me any Usurper since the Conquest, tho ever so wicked and notorious, who ever failed to have his Title so recognized and confirmed by Parliament, as you your self cannot deny i which methinks is a high Derogation from the Dignity of a true Hereditary Monarchy, such as ours is, or as least ought to be.

F. I shall reply but this once upon this Head, since I fee there can be nothing new said upon it \ and therefore yoa your self are forc'd to repeat what you have already urged at our last Meeting, only you strive to support it by fresh Authorities: therefore as to the Parliaments which deposed Kin&Edward and Richard the Second, I cannot blame you for denying them to be lawful Precedents, because they make directly against your Opinion j but you say nothing to that of the first Great Council or Parliament of Edward the First, which not only ordained he should be King, but also appointed all the Great Officers of the Kingdom which were to govern it in his absence. But you may deny the Authority of those Parliaments of the first of Edward the Third, and first of Henry the Fourth, as much as you please in a Chamber: but if you should do the like at Westminster-Hall against any Act of Parliament, because made whilst Edward or Richard the Second were living, you would soon be over-ruled, and told that those Laws still continued in force and unrepealed, and it did not belong to private Men to question those Acts that have been hitherto received for Law.

But as for what you have said against the Authority of the Acts of that Parliament that brought in the King, I have already proved that they were only confirmed ex abundanti cavtela \ and that they had been good without it, appears by this, that all their private Acts, tho never confirmed in the following Parliament, are still in force. But if the solemn Recognition of a King's Title by Parliament be such a bauble, and so easily obtained (as you suppose) I may say the same of that Act which recognized King James the First's Titse, that it was done merely out of Flattery upon his Accession to the Crown: nor can you reply that they might do this, because he was the only right Heir j this is to beg the Question, since if he had not been so, it would have been all one, as you your self confess.

As for the rest of your Arguments, which you draw from the different means which our Law allows for Princes succeeding to the Crown, which you call a mungrel hodge-podge Course of Succession, and that it derogates from the Dignity of a true Hereditary Monarchy 7 I shall only say, that if our Law has now established it so, no private Man ought to judge otherwise; for nemo debet ejfe fapientior legibtn, is a Maxim as old as true. But indeed tho our Laws do establish a legal Right in the present Possessor of the Crown, when once crowned, and recognized by Parliament, since they will not allow the Parliament to judge of, or examine the King's Title, or by what means he attain'd the Throne; yet this does not alter the ordinary Hereditary Course of Succession, for the Law still looks upon the Crown as Hereditary, and the Change of the Person or Royal Family does not make the Crown cease to be so. And therefore whoever has Possession of the Crown, has an Hereditary Crown, and as such, may leave it to his Heirs as long as they can keep it j as is plain from the Example of the three Henrys who succeeded each other, and who had not only Allegiance sworn to them, but they who acted contrary thereunto, were judged and executed as Traitors: so that the Law did all it could to maintain the Crown in the right Line of Succession. And if any Kings have gained it by Usurpation, tho the Parliament have owned the Authority of such an



Usurper, yet have they not thereby approved the Action: and yon your self must acknowledge a great difference between these two, since you have more than once acknowledged that an Usurper, or King in Possession, has a good Title to a Grown, in cafe all the right Heirs are extinct, or by their not claiming it for any long time, are supposed to have made a tacit Cession of their Right •, since it is not so much to the Person, as to the Authority (which we grant to be from God) that we pay our Obedience.

But let us also for once suppose that there may be a legal Title to a Crown without a Right to exercise the Authority belonging to it, and a legal Right to wear the Crown, and exercise the Authority belonging to it, without an antecedent legal Right to the Crown it self \ this is no such Absurdity as you • suppose, if you please to consider that allowed Distinction between jus ad rem9 and jm in re, with the reason of it: for 'tis an approved Distinction in Law, that one may have a Right to a thing, and another a Right in it} the one is a Right of a legal Claim, the other of a legal Possession: And that this may and must be in all Civil Governments, and mere legal Rights, appears from the different Laws and Customs on which such different Rights are founded. This I have hinted before, but must now explain it more particularly •, in all Civil Societies there must be particular Laws to determine personal and particular Rights, and whatever is due to any Man by such Laws, is his legal Right: But yet we know these Laws can determine no Controversy without a living Judge; for if every Man were to judge for himself, every Man will make the Law to be on his side, and then we had as good have no Laws at all. And therefore the fundamental Law of all Societies, which is superior to all particular Laws, is this, That the last and final Judgment of Authority shall be taken for Law, and that shall be every Man's Right as to all the Effects of Law, which is thus adjudged him. Whoever calmly considers these things, will find that it is impossible it should be otherwise, without overturning all Civil Governments: And this I have proved to you from the Example of a right Owner of an Estate, when outed of his Possession by a Verdict of a Jury and an unjust Judgment in one of the King's Courts, that no Man ought to restore him by Force to his Possession, till he has again reversed that unjust Judgment given against him.'

M. Tho I grant this is true in the Cafe of private Persons and their Inheritances, yet is it not so as to Princes, who hold their Crowns by a Title superior to the ordinary Municipal Laws, and therefore are not only Kings by Law, but by Divine Right, and the fundamental Constitution of the Government, and so cannot have their Title adjudged by Parliament, as you snppose: for our best Divines have unanimously concluded out of Scripture, that all lawful Kings and their Royal Power is from God by Divine Right, and is not from the People, no not in Elective Kingdoms (such as Poland for example j) for even there the conferring of the Royal Authority is from God, and not from any Law made by the People, and neither they nor their Representatives have any thing to do to judge of it: for I would gladly know who made that.Law which made the King; certainly the King did not make it, for that Law which made the King must of necessity precede and be before the King, who had his Royal Power and Kingly Office from that Law.

f. 1 fee you are very hard put to it, since you are again forced to fly back to your old Covert of a Divine Right in Kings, which is not to be derived from any Law made by the Consent of the People ; and if this be true, I desire you would show me how Kings can at this day owe their Crowns immediately to God, and not to the Law, since God does no longer confer Kingdoms by any express Designation of the Person, but by the ordinary Course of his Providence: and then pray tell me why all Princes whatsoever, when they are once seated in the Throne, let them come by it which way they will, must not derive their Power alike from God \ and consequently Kings, by an unjust Conquest or Usurpation, are as much from God as those who ascend the Throne by the Consent or Election of the People. For if the Peoples Consent do no more than design the Person, but that it is God alone who gives him his Authority, then which way soever he obtains this Power of the Sword, which is the only Sign of God's conferring this Authority, it will be also the Ordinance of God ■■, and consequently their present Majesties being once


seated on the Throne, are upon these Principles \% much to be obey'd as the Ordinance of God, as King James-,or any other Hereditary Monarch whatever.

But if you do not like this Doctrine, and tell me of a legal successive Right which King James and his right Heirs have to the Crown, according to the fundamental Constitution of . the Nation j this is plainly to own the King to be so by the Law of the Land, tho in words you deny it: for every Hereditary Right is either a continued Usurpation by Force, which can give no Right at all i or a Right by Law, which is by the Consent of the People to entail the Crown on such a Family: which certainly is to make a King by Law, that is, by the Consent of the People. But if you will suppose that it was the Authority of the first King alone who thus entail'd the Crown upon himself and his right Heirs, I desire you would sliow me how the Crown could be so entail'd without the Consent of the People, so as that his Successor may not alter it, and give it by his last Will and Testament to which of his Sons or Daughters he pleases i since Sir Robert Filmer himself acknowledges, that a Testamentary Heir to a Crown in an absolute Monarchy, is as much by Divine Right as if he had come in by Succession; as appears by the Instances he gives in Seth, who could have no Right to succeed his Father Adam in the Government of Mankind, while Cain his elder Brother was alive, by the Will of Adam his Father. The like I may fay of Solomon,who by his Father's crowning him King in his life-time, and thereby making him his Successor, gave him a Right to rule over Adonijah his elder Brother. So that I may very well ask you, if the present Law of the Land did not proceed from the free Consent of the People testified by long Custom, or express Declaration of the People by their Representatives in Parliament; I desire to know why the King of England cannot as well settle the Crown by his last Will upon which of the Blood-Royal he pleases, as that it should be lawful for the EnglijhSaxon Kings to exercise this Prerogative, as Dr. Brady supposes they did before the Conquest, without the Consent of the Great Council of the Nation? So that I think I may much better ask you what that Law was, and who made it, which you suppose to make Kings prior to, and independent from the Consent of the People , since if there be any such Law, it is either as yet unknown to Mankind, or else all those who are once possessed of Kingdoms, have an equal Title to them by Divine Right. But indeed it is only some Divines who were more scrupulous' than knowing in Politicks, who first started this Question, whereas indeed there is no such great Mystery in it: for that Law by which the first King of England for example was elected, was not in being before the King was made, nor yet was the King in being before thatj but when the first King was made so, by the Consent and Election of the People, the King* and the Law that made him so, began both together: that is, the People by chusing of him to govern upon certain Conditions, and he, by accepting the Crown upon those Conditions, was that Law by which he then took the Crown, and by which it has been held ever since that time. So that if the Crown ought to be enjoy'd according to a legal Right, and that there must be some Judges appointed of this Right, whenever any Disputes may happen about it, either every Pretender to the Crown must judge for himself, and then he will be both Judge and Party in his own Cause, or else it must be left to the Conscience of every individual Subject inEngland to side with what Party he pleases, that may thus pretend to it: and so there may be a dozen Competitors for the Crown at once, and all with equal Right, for ought that any body knows. Or lastly, this Right must be left to the Determination of some Civil Judges to judge whose Right it is \ and who can these Judges be, who shall thus judge what are the antient Laws of Succession, and Rules of Allegiance, but the Great Council of the Nation? Therefore if they have already declared and recognized King William and Queen Mary to be lawful King and Queen of this Realm, I think every Subject of the fame may very well justify their swearing Allegiance to them, not only by virtue of this Statute of the nth of Henry the Seventh, which requires Allegiance to be paid to the King in being, but also from the Equity and Reasonableness of the thing it self, to hinder the Nation from falling together by the ears, and entailing Civil Wars from Generation to Generation, if the Subjects were obliged by their former Oath of

Rrrr 2 AllsAllegiance to the King de jure, to endeavour to restore him by force of Arms. And therefore the Preamble to this Statute very well and truly sets forth, "That it is not reasonable, but against all Law, Reason, and good Conscience, M that the Subjects going with their Sovereign Lord to the Wars, any thing "should lose or forfeit for doing this their true Duty and Service of Allegiance "to the King for the time being."



M- But pray tell me, is not this very strange and unjust, and that by your own showing, that a Prince mould have a legal Right and Title to the Crown, without a Right to exercise the Authority belonging thereunto ? for they must now pay Allegiance to the King in being, let him be ever so great an Usurper. So that indeed the Preamble to this Act is exprefly false, since I think it is very unreasonable, nay against all Law, Reason, and good Conscience, to swear Allegiance to an Usurper \ for by that means not only all good Subjects would be put out of a Capacity of endeavouring to restore the King de jure to his Throne, tho ever so unjustly deposed or driven out, as in Duty they ought, but also those who were instrumental in this Rebellion, and in depriving the lawful Prince of his just Rights, may not themselves endeavour' to restore him; which would put them out of all possibility of making amends for the wrong they have done him, and of making restitution, by again restoring him to his Throne.

P. If this be all the difficulty that is left upon your Mind, I doubt not but to prove to you, not only from the Law of the Land, that Allegiance may be lawfully sworn in this cafe, but also that it is for the common Happiness and Peace of the Nation, which is the main End of all Government, that it should be so. And therefore I (hall first freely grant, that tho it is Rebellion unjustly to deprive a King and his right Heirs of the Crown, and that those who had a hand in it are bound in Conscience to endeavour to restore him or them to their just Rights again yet this must be done by no other Methods but what are consistent with the publick Peace and Safety of the Commonwealth : for if a King de faEto has once got possession of the Throne, and has been crowned and recognized by Parliament, from what has been already proved, I think it is very plain, that they ought to obey him not only from the very Letter of this Law, but also because 1 have now said all private Persons ought to submit their Judgments in this matter to that of their Representatives, who if they have judged falsely, are to bear the blame; but yet their Judgment for all that is to be held for good, till it be reversed in the same way in which it was given: since if after such a Recognition every private Person should still be E.o. p. 57. free to pay his Allegiance to him whom he supposed King de jure, it would certainly follow, that the Civil Society or Commonwealth must of necessity fall into Civil Wars; wh'ich is against the nature of Civil Societies, and inconfistent with the Duty of Self-preservation, which obligeth Men not to expose their Lives and Fortunes, but to obtain a greater Good than both those, which can only be the publick Good of the Community, and not the single Interest of any one Person or Family. And tho I grant it is a great Sin in those who are instrumental in raising Rebellion, and who are thereby guilty of a very enormous Crime } yet that which made it so, was not barely the Injury they committed against the Prince to whom (if alone considered) the Breach of an Oath (in withdrawing their Allegiance) could be no greater a Sin than the Breach of an Oath to another Person \ but indeed the fatal Mischief and irreparable Damage they did the Commonwealth, is that which aggravates the Sin. And if a new Commotion to restore the King dt jure would in all probability prove yet more destructive, and a Nation by being so much weakned by a former Civil War, be less able to bear a new Civil War, which may happen so far to the weakning of it, as to expose it to the Invasion and Conquest of a foreign Nation, who may be Enemies both to our Religion and Civil Constitution j in such a case I cannot think it our Duty to restore a Prince by force, tho ever so unjustly driven from his Throne. And therefore if I had been then a Man, tho I mould have been as much for bringing home King Charles as any body ought to be, yet I fliould have been only for it in the way in which it was brought about •, and mould never have desired it, if it could not have been done but; by an Army ofFrench or Irish Papists. And the like I fay now as to King Jam$s, feeing he is joined with the Interest of France,and is already gone

into Ireland on purpose to renew the War, by the Arms and Assistance of those, whose Fathers, as well as several of themselves, did all they could to destroy not only the Royal Power, but also the English Religion and Government in that Nation.

And therefore I must freely tell you, that if even Rebels have put it out of their power to make Reparation for all the Wrongs they may have done by rebelling against their lawful Prince, because he ip possession is too powerful to be driven out again without a violent Civil War, and a general Concussion of the whole Commonwealth; this Reparation to the injured Prince being not to be made, without a greater Evil than that they endeavoured to avoid, it ought to be omitted till it may be done with more Safety to the Nation, or else not at all: I say, if there be no other way to make Reparation to their injured King, but by engaging the Nation in fressi Civil Wars, they ought not to attempt it by such unlawful and destructive means.

M. I confess the Discourse you have now made carries the greatest appearance of Truth of any thing you have yet said } since it is drawn from the publick Good of the Nation, which 1 grant to be comprehended under the common Good of Mankind; and you have done well to own it to be Rebellion, to deprive a lawful Prince and his Heirs of the Crown : yet that it is unlawful to restore them again to it, if we think it cannot be brought about without a general Subversion of our Religion and Civil Liberties, may be a Question. I grant indeed, if we could be absolutely certain of this, there would be some colour for this Argument; but since future things are not capable of Demonstration, if the restoring our lawful Prince be a Duty incumbent upon every good Subject, we ought to endeavour it, tho with some Danger and Hazard of whatever is dear to us: for God will either protect us both in our Religion and Civil Liberties, for thus honestly performing our Duties (according as we are bound by our Allegiance) or if he has called us to suffer for the Truth, he will either find us Patience to bear it, or else provide us a way to •escape. This I speak in relation to the French and Irish, whose Conquest and Malice you are so much afraid of, in case the King should happen to be restored by their Assistance: But indeed I think this a needless fear, since I suppose the King will be too wise to bring over so many of either Nation, as shall be able to make an entire Conquest of this Kingdom, lest thereby both he and his Crown may lie wholly at their mercy when the Business is done. Nor do I think it either in the power of the French or Irish to perform these dangerous things: not of the former, because (as I now said) I suppose the King will never bring over more of them along with him, than what may serve to make a stand against the Prince of Orange's Forces, till his good and loyal Subjects can come in and join with them to his Assistance; and as for the Irijh, they are also the King's Subjects, and tho ignorant, they are very inveterate against the Protestant Religion, and the English Nation and Interest; yet they may be so governed and over-ruled by the King, as not to be able to do us any considerable Damage.

But as to the King of France, I do really believe he is far from intending to make an entire Conquest of this Kingdom for himself, much less desirous to make the King as absolute a Monarch here, as himself is in France:for as to the former, he has too much Consideration of his own Glory and Reputation in the World to seize upon the Kingdom of a near Kinsman and Ally of his own Religion, and who had been driven from his Throne chiefly for being too much in his Interest: And besides all this, he may very well fear, that if he went about any such thing as an entire Conquest of this Nation, all Parties may join against him as a common Enemy, and drive him out again, as the English Barons did Prince Lewis in the time of King Henry III. Nor can it be the French King's Interest to make our King absolute here; for then having the Persons and Purses of his Subjects wholly in his own power, King Lewis might justly fear, that either this King or his Successors may prove as dangerous Enemies to the Crown of France, as ever they have been in former times, if ever our Kings ssiould go about to revive their antient Pretensions to France or Normandy, or make war upon some other Quarrel: and therefore I think it will be more for the Interest of France to leave us our Laws, Liberties and Privileges, as we now enjoy them •, nay, to make an express Capitulation for



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them, and when he has done, to foment those Jealousies and Disputes, that are still like to arise between the King and us about them, thereby to hinder us from joining against him; than by rendring the King Absolute to take them quite away, and put the sole Power of the Purse as well as of the Sword wholly into his hands.

To conclude, You do also very much misrepresent the matter in supposing, that tho the King cannot now be restor'd without falling into a new Civil War, it does therefore follow, that such a War is not to be defir'd for the publick Good of the Nation: since we (hall thereby not only restore the Crown to its right Owner, and the Succession of it to the lawful Heir; but also (hall restore Episcopacy in Scotland, and prevent the Church ofEngland from falling into a dangerous Schism, by depriving the ABp of Canterbury, and as many other of the Bishops, who are so honest as not to take a new Oath, for standing out against it, by the Temporal Power of a pretended Parliament, without the Judgment of a lawful Convocation, who are the only proper and legal Judges.

You likewise as much mistake, in supposing that this War can no ways be finish'd, but by so great a Concussion as shall so much weaken the Kingdom, as to render it expos'd to the Invasions of foreign Enemies, in which you may be very much deceiv'd: for who can tell but the Hearts of this Nation may come to be so inclin'd to receive their lawful King, and his right Heir, and may be so weary of the present Usurpation, as upon his first appearance in England, with an Army sufficient to defend those who (hall come into him, so many of his Subjects will take this advantage, as will be more than enough to restore him with as little Blood-shed, as when he was driven out? And then I think no indifferent Man but will acknowledge that such a War would prove for the best, since it will not only settle the Government upon its antient Foundation of a lineal Succession, but will also extinguish those fatal causes of War, not only from among our selves, but also from foreign Princes, as long as the King, and the Prince of Wales, and his lawful Heirs, (hall continue in being; which I hope will be much longer than those upon whom your Convention has fettled the Crown, either in Present or Reversion.

F. I doubt not but to (hew you, that all you have now said, is either built upon false Principles, or else deduced by very uncertain Consequences; for fa the first place, tho you doubt my Principle, That the People of this Nation are not bound to restore King James to the Throne, if it cannot be done without the evident Destruction both of our Religion and Civil Liberties, it certainly is true, (granting it to be ever so much our Duty to restore him, when with Safety we may.) For if the Obligation of all Moral Duties whatsoever, is only to be judg'd of according as they more or less conduce to the Happiness or Destruction of the common good of Mankind, (whereof this particular Nation makes a part) it will necessarily follow, that this Duty of restoring King James, is not to be practised, if it cannot be brought about without the Destruction of our Religion and Civil Liberties, since it is only for the maintenance of those, that even Kings themselves were first ordain'd in this Nation; and it is evident, that this Kingdom may be sufficiently happy, and subsist in the State it is now in, tho neither KingJames nor your Prince of Wales be ever restor'd to reign over us.

So that then all the difficulty that remains, is, That since his Restoration is not otherwise to be brought about than with the assistance of great Numbers of French or Irish Forces, whether it be not only so small a hazard as you make it, but twenty to one, that his coming in upon these Terms will produce those dreadful Effects, which I fay will certainly happen from it? And tho I grant that future things, especially in the Revolutions of Government, are not so capable of Demonstration as Mathematical Propositions, yet if all the Circumstances of Time, and the Temper and Disposition of the King himself, and those who are to join with him in bringing him in again, be consider'd, it (hall appear, that morally speaking nothing less than the evident Destruction of our Religion and Civil Liberties will follow -, 1 think I may still positively affirm, that we are not oblig'd to restore him till this Temper of Mind be alter'd, and that he can be restor'd without these fatal Consequences I now mention. And if these Cautions are not observ'd, I deny that God hath any way promis'd to protect either our Religion or Civil Liberties, or that he is bound to provide us a way




to escape, as you.suppose; if to perform this suppos'd Duty of Allegiance thus unseasonably, we flight the only means God has ordain'd for our Preservation. But as for the patience under those Sufferings that may then happen, that is a very sorry reason to embrace them; since God may give us that Grace, if he pleases, as the only Comfort we can have left us, when by our own Folly and mistaken Notions of Duty, we have brought all those Evils upon our selves.

I shall therefore now proceed to (how you, that these Evils I speak of, must necessarily happen to us, in case King James be restor'd by the French or Irish Papists- In the first place therefore, it is very falfly suppos'd, that this Alteration can be brought about without an entire Subduing or Conquest, not only of their present Majesties, but the whole Nation \ as is apparent since none but the Papists and some few of the Clergy, Nobility and Gentry desire his Restoration, and who if they were put all together, will not I believe amount to the hundredth Man, who would be either willing or capable to come in to his Assistance with Men or Mony: and therefore it is a vain Supposition to believe (as you do) that this new Revolution can be brought about without any more Difficulty or Bloodshed than the last, as long as the present King and Queen continue to govern us according to the Declaration they subscrib'd upon their acceptance of the Crown, and the Coronation-Oath they have since taken; which I hope they will always do, since nothing but following King James's Example, as well as to Religion as Civil Liberties, can ever make this Nation willing to receive him, or your Prince qf Wales, with so little difficulty as you are pleased to imagine.

Since therefore the business must be wholly done by force, I (ball in the next place consider all those Suppositions you have laid down, as well in respect of the French as Irish, who are the only Hands that I see likely at present to do this Work. First, as to what you fay, that the King would be too wise then to bring over along with him so great numbers of the French and Irish Nations, as shall be able to make an entire Conquest of this Kingdom, lest thereby both he and his Crown may lie wholly at their mercy, when the Business is done; you have hereby granted as much as I desire. For if their Majesties are never like to be without an Army in England,of at least fifteen or twenty Thousand Men as long as this War lasts, and the Militia of this Nation, which are almost totally against King Jameses Interest, and do amount altogether to above a hundred thousand Men ; 1 think you your self will grant that King James cannot attempt coming over hither with an Army of sess than thirty or forty thousand Veteran Soldiers of the French and Irish Nations, tho you should reckon the Papists and others who should come in to bis Assistance at twenty thousand more; who if they should be all together able to beat not only King William's standing Army, but the Militia of the Kingdom to boot, I desire to know what shall hinder them from making as perfect a Conquest of this Nation, as ever Cromwell's Army did, either of England orScotland, and consequently of setting up what Religion or Government they please in this Kingdom \ which, that it will not be what is now exercis'd either in Church or State, I think any unprejudic'd Man will easily grant me.

But your next Suppositions are altogether as precarious, That it is not either the Design, or Interest of the FrenchKing, to make an entire Conquest of this Kingdom for himself, nor yet to make King James an absolute Monarch here. One of these I must needs believe will happen: for tho perhaps that King may at present stand so much upon his Glory, as not to seize the Kingdom of a Kinsman, and an Ally, wholly to his own use and benefit \ yet it is most likely, that he will retain French Garisons in all or most of the strong places of England, not only for the security of the Charges he will have been at to place King James on the Throne, but also as a tye upon us that we shall never endeavour to drive him out again, let him use us as he pleases- So that tho I grant, he may not make an absolute Conquest of us now, yet it may be in his or his Son's power to do it hereafter, if ever King James'sSon shall go about to shake off that Yoke, when once the present Obligation is forgot, or the near Relation between the two Kings (hall be farther remov'd. Nor is what you fay less precarious, that it will not be for KingLewis's Interest to destroy our Liberties, and make King James an absolute Monarch, because the Kingdom will be then weaker and more

divided divided than it is now, by those Jealousies and Disputes we (hall then maintain with the King about bur Civil Rights: which is indeed so far true, if he governs when he returns in the fame arbitrary manner as he did before; but if he govern according to Law (which no wife Man can expect) there needs be no more Divisions among us than were for a great while after King Charles ll's. coming in. But that the Fremb King should feat, if he once made the King of England aa absolute Monarch, and put the whole Power of the Parses as well as Swords of his Subjects in his hands, he might then become so formidable as to be an equal Match to Prance it self, and to be able to demand either the whole Kingdom, or any part of it, is yet more pleasant; since France is noW, in comparison with England, not only in respect of Men, but also the Revenues belonging to the king, as ten to one: arid I think 1 may very well maintain, that if England fhoulci once come to be goverst'd as France is, it would be so far from growing richer, or more powerful thereby* that from the intestine Grievances and Discontents that such a violent course of Government would cause in the minds of the People, of all Sorts and Conditions, by those excessive Taxes and Oppressions that Would follow from such an Arbitrary Government, the Kingdom would quickly diminish and decay, as well in People as Trade and Riches, and conscqueatly in Power too: which is but the product of both these, notwithstanding whatsoever the fair appearance of an outwardly magnificent Conrt, and a great standing Army may produce, in the minds of those that do not truly consider or understand the true Grandeur and Safety of the Prince, and Happiness of the People.

But granting all this to be as you suppose, pray tell me what shall become of our Religion and Civil Liberties, not only in respect of the French King, but of King James himself? Cart any one believe, that either of them will cease to be instigated by the Jesuits their Confessors to destroy the Northern Heresy (as they term our Religion) as Well in England, as it has been in France? No, the poor Paudovs in Savoy have been too recent an Example, that the King of France would carry the Persecution to the fame degree here, as he did there, and that King Jamesbeing wholly in his power, will not be able to withstand his Commands, as well as the constant Sollicitation of his Confessors of the fame Order and Principles as those of the French King, to which Holy fathers the Protestant Religion in France and Savoy does chiefly owe its Destruction.

To conclude, let us suppose that King James mall prevail in this War by the help of the Irish Army, now rais'd by the Earl of Tyrconnel; can we expect better Quarter if the King prevails by their Arms and Assistance, than if they were intirely French? For having once conquer'd this Nation, it will not be in the King's power to govern them so easily as you expect j but being inveterate Enemies to the English, they will not only possess what Estates they please of the English Nobility and Gentry in Ireland, but in England too, which will be declar'd forfeited by their Owners opposing of King James: and then I will leave it to your self to judge in what a Condition we shall be both as to our Religion and Civil Liberties, when the King (hall come to be mariag'd by Men who are declar'd Enemies to both , neither will it be in the power of those few moderate Men, either of the Popish or Protestant Religion, who take King James's part, to hinder it, since the other Party will by means of the Priests and Jesuits, and the Interest of France, run down all sober Counsels, and they will be look'd upon but as Trimmers (at best) that oppose it.

But as' for King James himself, I desire to know of yon what trust there can be put in him, or what assurance he cad give us for the maintenance of our Religion and Civil Liberty, more than the renewing of those Promises, and thatOath which he has already broken? This being most likely to be the Consequence of things, if King Jamesprevail, I shall leave it to your self, or any indifferent Person to judge, if what I have undertaken to prove, be not as clearly made out as future things are capable of, and sufficient to deter any Man that loves his Religion or Country, from joining in such pernicious Designs.

M- I confess yon have made a long and tragical Narration of the dreadful Consequences that may follow, both upon our Religion and Civil Liberties, if

. the the King prevail by the present assistance of the French or Irish Arms j and were I lure of all this, I should so far agree with you as to this point, as never to join with them for the King's return : and yet for all that I can never look upon my self as freed from that Allegiance I owe the King, as well by being

y born his Subject, as from the Oath I have already taken to him and his Heirs, as long as they are in being; for I think I have already prov'd as well from Law as Reason, First, That the Bond of Allegiance (whether sworn, or not sworn) is in the nature of it perpetual and indispensable. Secondly, That it is so inseparable from the relation of a Subject, that altho the exercise of it may be suspended by reason of a prevailing Force, whilst the Subject is under such Force, viz.. where it cannot be imagin'd how the endeavour of exercising it, can be effectually serviceable to restore the Sovereign Power to the right Owner, for the Establishment of that publick Justice and Peace wherein the happiness of Commonwealths consists; yet no outward Force can so absolutely take it away or remove it, but that still it remaineth virtually in the Subject, and obtigeth to a vigorous endeavour (whenever the Force that hindereth it is over) and to the actual exercise of it for the advantage of the Party, to whom of right it is due, and the advancement of the common Good thereby, upon all fit occasions. Thirdly, That no Subject ofEngland, that either hath by taking the Oaths of Supremacy or Allegiance acknowledg'd, or that not having taken either Oath, yet otherwise knoweth or believeth that the true Sovereign Power in England to whom natural Allegiance is due, is the King, his Heirs, and lawful Successors •, can without sinning against his Conscience, take any new Oath, or do any other Act whereby to transfer his Allegiance from the King or his Heirs, to any other Party who have no right to it, and thereby put himself into an incapacity of performing the Duties of his bounden Allegiance to his lawful Sovereign, when it may appear to be useful and serviceable to him. This is the express Opinion of the Learned Bishop Sanderson in his Cafe of Conscience concerning the lawfulness of taking the Engagement; which tho he did not think absolutely unlawful, because it might be interpreted in-a dubious and qualified Sense, without abjuring the King's lawful Right to the Crown; yet cannot this new Oath be taken in the like doubtful Sense, because (as I have already prov'd) the words in the Oath being to bear true Allegiance to King William and Queen Mary, would be indeed a transferring of our Allegiance from our lawful Prince toothers, which is absolutely unlawful.

F. I am somewhat pleas'd to fee you are so far come off from your Bigotry, as not to think your self bound to assist for the restoring King James, as long as it is no otherwise to be done but by the evident Destruction of our Religion and Civil Liberties; but yet you fay you cannot take the Oath, because it is Bishop Sanderson's Opinion, as well as that of our best Lawyers, that Allegiance is perpetual, and untransferrable to another, whilst the King or his Heirs are in being. Now let me tell you (speaking as a Lawyer) ic may be prov'd from this Statute, as well as from the constant practice before that time, that Allegiance was due to the King de fa&o, and that by the Judgment of all the Judges in the Reign of Edward IV. But to speak of this matter, either as a Civilian, or a Divine, I think we are freed from the former Oath both by the Law of Nations, as well as the Law of God- For as for natural Allegiance, by which you suppose a Man is indispensably subject to the King in whose Territories he is born, and that as long as he lives, I can by no means understand, that being born in a Country, makes one a Subject for all his Life to the Government of that Country; or why being, when born, in a Country, it should make one become a Subject, more than being in the same Country at another time. Besides, E. O. p. 4^. common Experience shews this to be false, because whoever is born in a Country, where his Parents are Foreigners, may (as it is allow'd by all.) leave that Country when he pleaseth: but perhaps it maybe said, he is a Subject to that Prince where his Parents were born •, but what if they were born under the fame Circumstances? Or suppose his Parents are of different Countries, as if a Dutch Woman, and an English Man have a Child in France, sinceFrance does not pretend to him, which of the Nations can claim him for their Subject, or must he be divided? So that I can see nothing at all in this notion of natural Allegiance, that can oblige any body in Conscience to observe it.

Ssss M. If

M. If then natural Allegiance signifies nothing, pray tell me is no body obliged to obey the King, or not to plot against him, until he has taken an Oath ot Allegiance to the contrary? This would make mad work indeed, and upon these Principles no Man were bound to obey the King or his Laws, and not to conspire against his Person or Government, until he had taken the Oath of Allegiance; so that three parts of four of the Kingdom would be absolutely free from this great Duty.

F. No, Sir, you are very much mistaken, fince I think I can found Allegiance to the King and Government upon a much firmer Foundation than that of being born his Subject •, that I am so far from supposing that our Obligation commences from our taking the Oath of Allegiance, that tho I think it may serve toinforce our former Obligation to our King and Country, yet does it not superinduce any new Obligation thereunto: for indeed .our Obligation to any particular Government may be made out from much surer Principles, viz. That every Person, tho he be born free, yet is he, for the fake of his own ibid. />. 49. Safety, obliged to part with his Liberty, and put himself under the Protection of some Government; nor can he be secure in what he enjoys but by it, nor can he have a Right in a Country (that is already possessed) to Property, but by owning the Government of that Country: and when by enjoying the Rights and Privileges of the Subjects of that Commonwealth, he has owned himself a Member of it, and a Subject to its Government, he is then bound to maintain this Government, and also the King that administers it, from a double Obligation: the one particular in respect of himself, and that Protection he receives from him; the other more universal, proceeding from that Duty, which is incumbent upon every particular Subject to maintain the Peace and Happiness of the Commonwealth, as long as he continues a Member thereof. So that he is bound never to disturb it, as long as the main ends of Government can be ■ had and enjoyed therein; and this is the only means that I know of, by which any Man (except by express Oaths and Promises) can consent to become subject to any single Person or Government. Now this tacit Consent of particular Persons being separately and singly given, unthinking People take no notice of it, and suppose they are as naturally Subjects as Men, and consequently that they have no more Right to free themselves from their Subjection, than from their human Nature; nay, must suffer themselves to be destroyed rather than endeavour it, let the Government oppress them ever so unmercifully: which is indeed to reduce Men to the Condition of brute Beasts, who belong to this or that Owner, because he either bought them with his Mony, or else because they happened to drop from their Dams upon his Ground.

From what has been here spoken, I think we may deduce this general Conclusion, That every ordinary Subject, who enjoys the common Benefits and Protection of any Government, is bound in Gratitude not only to obey it, but also to be true and faithful to it during the time be lives under it, and is bound likewise not to conspire against it: and therefore that Oaths do not alter the nature of Allegiance, or make it due where it was not before, or any ways extend it, but only add a new Tie to pay that Allegiance which is due upon the account of Protection. He that lives under a Government, tho he has not sworn to it, owes it the fame Allegiance as he that has; and if he should deny his Allegiance to it, would be equally guilty of Treason, tho not of Perjury. It is evident by the universal Practice of Mankind, thatno Subjects ever thought themselves obliged by those Oaths of Fidelity (which all Governments have constantly imposed on them) when they could not be protected by them, and that this failure of Protection did not proceed from any fault in the whole Nation, or People themselves. And this may be proved by the common and constant Practice of all the Subjects of Europe j for who does not knowthat the Subjects of the King of France's last Conquests in Flanders, have been forced to swear Allegiance to him, tho they were satisfied that his Title was unjust, and that their natural Sovereign the King of Spain, to whom they had formerly sworn Allegiance, is still living? We have had also a late Example of the Subjects of the Duke ofHolstein-Gottorp, who having both his Person taken Prisoner, and his Territories unjustly seized upon by the King of Den. mark, in time of Peace, the Subjects of the said Duke were forced to swear Allegiance to the King, notwithstanding their former Oath to their Master;



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hor 4o our modern Casuists, as I know of, blame them for so doing. And why the People of England should be tied to harder Terms than all the rest of Europe, I wish you could give me a sufficient Reason; since the Legiflative power of England (wherein it is certain the People have a (hare) are presumed to recede as little as possible from natural Equity, and therefore design, Ibid. />. 55. by imposing such Oaths, only the Good and Preservation of the Civil Society, whose Interest it is, that they who have the publick Administration of Affairs should not be disturbed : but it is not at all material to that end, whether this or that Man hath this Power, provided it be well managed; nor can it, without the greatest Absurdity, be supposed, that such numbers of Men as Societies are composed of, who are. by Nature equal, should oblige themselves, by the most solemn Ties, to become most miserable by living without Protection j nay to lose even their Lives, rather than own the Government that can and does protect them, for no other reason but such an extraordinary fondness to this or that Person, or Family, as to fancy the Government to be inseparable from b|m, not the Necessaries or real Conveniencies of Life, but only an Office (for Government is no other) which is but an imaginary Happiness. I grant therefore, that People should be true to those that have the present Administration of Civil Affairs, is all that Oaths of Fidelity require; and it is evident from the intent of it, that the late Oath of Allegiance required no more, and to excencUit farther than the King in being, is not reconcilable with the Reason, End, and Design of paying Obedience, which is the Peace and Happiness of the Civil Society; which can never be maintained, if People may, for the fake of a single Person, disturb him that has the Administration of their common Affairs \and it would require Impossibilities, because private Persons are incapable of paying Allegiance to a King, when out of possession of the Government.

M- Notwithstanding what you have said, I think I am able to convince you of divers great Mistakes you have now committed in this Discourse of natural Allegiance, as also in the Obligation we are under by the Oath of Allegiance to King James. For first, as to natural Allegiance, you are very bold to suppose there is no such thing, when all your Law-Books hold so exprefly that there is; I am sure this is to be guilty of the Fault for which you have D.a./. 15* already reproved me, of being wiser than the Laws. You are also much mistaken to suppose, that this natural Allegiance merely springs from hence, that the Persons obliged by it are only such as are born within the King's Dominions ; for Persons born without the Realm may be also his natural Subjects, as are the Children of Embassadors born beyond Sea, and the Children of Aliens born within the Kingdom, which are not therefore natural Subjects of the King: So that the mere Circumstance of Birth does not alone entitle any one to the Privileges of a natural Subject, nor consequently bind him to all the Duties of natural Allegiance. But it is therefore called natural in our Laws, because, as the best Lawyers have affirmed, it is founded upon the Law of Nature, which gives a Sovereign Power a Right to the Allegiance of every one who is born under the Jurisdiction of it. As every Son is born a Subject to his Parents, and is by the Law of Nature obliged to honour, obey, assist, and support; so also is he born a Member of the Body Politick, and by consequence a Subject to the Sovereign of it; and accordingly, by the same eternal Law, is bound to pay all faithful Service and Obedience to him, when he is in a capacity to perform them.

But your next Mistake is yet worse, when you confound that common Obligation of a Foreigner or mere Denizen to be true and faithful to the Commonwealth wherein he lives, with this natural Allegiance of everyEnglish Subject : for tho I grant the taking the Oath of Allegiance does- not inforce any new Obligation upon him that takes it, more than he was subject to before ; yet for all that, I think you will not deny, but that there is a great deal of difference between that common Obedience or Submission which such a Foreigner pays to the King and his Laws in a Country where he sojourns, and that more perfect Allegiance arising either-by Birth, or from such a Stranger's being naturalized, and by taking the Oath of Allegiance, becoming as ( tuie and perfect a Subject as a natural Engli/hmm. And hence it is, that in all Wars declared between neighbouring Princes, whatever Subjects of theirs shall


presume to stay and refide in each other's Dominions, after once they are recalled home, may be justly executed as Traitors whenever they (hall be taken. And therefore tho I grant that every Person now living in England, and of ripe Age, is obliged to obey your King and Queen de fatto, in all ordinary and lawful things, which tend to the publick Benefit and Defence of the Civil Society or Commonweal, and which being for the Benefit of the Kingde jure, and his Liege People, it is to be morally supposed they have his tacit Consent for what they do, as long as it tends only to this end: yet does it not therefore follow, that the bare Protection of this usurped Government, and the Enjoyment of the common Privileges of a Subject, should give such a King de fatto, or Government, a Right of exacting an Oath of Allegiance to them j since I have already proved, from the true signification of being true and faithful, as also from the legal signification of the word Allegiance, that no true Subject can lawfully take it, without renouncing his Allegiance to his natural Prince: seeing not only a bare Neutrality or Obedience in not transgressing the Laws is thereby required of them, but also an active Obedience and Duty in performing the Kingde fafto's Commands, and the defending him, whenever there is occasion, in his ill-gotten Power.

But the only Difficulty being, how a strict Observation of this Oath can consist with the Quiet and Happiness of the Subjects, whenever a new Oath of Allegiance comes to be imposed by the King de fatto, since the SuBjects may be all ruined that do not take it, if it be once offered to them ; this Difficulty might be easily removed, if the whole Nation would stick firmly to the Duty required by their former Oath of Allegiance, and resolve never to take a new one: for then the Numbers of the Refusers would be so great, as that they would be more than could be made to suffer for their refusing it. 1 speak S of such Subjects as are in our Cafe, and who are not forced by a Prince, who

either has the Right or Power of a Conqueror, to compel them by force; and therefore your Instances of the Subjects of the King of Spain, or of the Duke of Holstein, who were conquered, or else as good as conquered by the Power of France and Denmark, signify nothing: whereas we are only overawed by an inconsiderable number of Dutch and Germans, and might set our selves free, if we would give but a vigorous Effort towards it. For that K. William is a Conqueror w— over the whole Nation, I think you dare not affirm; and unless he were so, he

could challenge no Right to our Allegiance as such: and therefore I must still believe, that the Oath of Allegiance I have taken to King James and his Heirs is perpetual, unless you could show me that their Right is determined, which , you have not done by any thing you have yet said. I cannot therefore be of

your Opinion, that the bare Protection of an usurped Power can justify our swearing Allegiance to it, either in Law or Conscience; for then all Men had been obliged to pay as firm an Allegiance to fat Rums Parliament, and also to Oliver Cromwtl, as to King William and Queen Mary; since both the former pro. tested the People as much in their Religion, Civil Liberties, and Properties, as the latter I fear will ever do.

And that the bare Protection of a Government does not give it an absolute Right to the Allegiance of all those that enjoy their Protection, I think may be sufficiently proved from.the Instance of a Frenchman, or any other Foreigner; who tho by his living here, and enjoying the common Protection of the Government, I grant he is obliged to be obedient to its Laws, and is not to act or conspire against it; yet this does not discharge him from his natural Allegiance which he still owes to his former Prince, so as to do any thing which may prejudice that Allegiance he owes to him, either by conspiring or fighting against him. And this was solemnly declared to be Law by the Judges of the Kings-Bench, in the cafe of Dr. Story, in the 13th year of Queen Elizabeth: He being a violent Papist, fled over into Flanders to the Duke of Mva, and there conspiring with him to invade this Kingdom, and being afterwards taken and brought over Prisoner, was tried as a Subject of England, tho he refused to plead as such, because he said he had sworn Allegiance to the King of Spain; notwithstanding which Plea he was executed as a Traitor, as you will find at 13 Eli'z. p. large in my Lord Chief Justice Dorr's Reports: which Judgment is also con303. B. 1.2. firmed by the Lord Chief Justice Coke in Calvin's Cafe, where he exprefly asserts, «* That a Person born under the Dominion of the King of England, owes *f him perpetual Faith and Allegiance, and this by virtue of the Law of Na"tare, because Jura naturalia sum immutabilia." From whence will also appear the Falsity of your Conclusion, that Oaths of Allegiance extend no further than to the King in possession, or to that Government to which we do at present owe onr common Protection, and therefore that our Law has a much higher Consideration of this inherent Allegiance that belongs to a King de jure as to his particular Person, and his Heirs: So that it cannot be indifferently paid to any body else, who can, by seizing of the Government, force us to owe our Protection to them; which appears by what my Lord Coke hath also laid down, to have been agreed by all the Judges upon this Oath of Allegiance in Calvin's Cafe, as I cited it to you at the beginning of this Evening's Conversation. So that I confess I much wonder, considering what he has there said, how he can so positively maintain as he doth (in the place you have also quoted) that Allegiance is due to the King de fafto, and not to him de jure, whilst the former is possessed of the Crown: since it seems a flat Contradiction to me, how a Subject is to pay Allegiance, as long as he lives, to the King and his Heirs, of Life and Member; that is, until the letting out of the last Drop of our dearest Heart's Blood, and that in all places whatsoever •, and yet that this Obligation should last no longer* than whilst the King de jure is in actual possession of the Throne. And therefore 1 think I have very good reason to maintain, that we are still obliged by our former Oath of Allegiance to King James, so as not to take a new one to any other King, unless we had been constrained to it by an absolute Conquest, which you your self will not maintain to be our present Case.


F. 1 confess you have now argued this Point very stiffly, and I think what you have said carries with it the greatest appearance both of Law and Reason of any thing you have yet urged upon this Subject \ and therefore if I can fairly answer it, I hope you will come over to my Opinion, and take the Oath which is now required of you. In the first place therefore, I cannot deny, that all you have said concerning a natural Allegiance due by Birth to the King* is true according to our Laws; and I do my self allow the thing, viz.. That Allegiance is due to him, tho not for the Reasons upon which our Lawyers have founded it, but upon those I have already given. And therefore granting it was held to be Law in the Cafe of Dr. Story, that his Plea of becoming a Subject to the King of Spain was over-ruled by the Judges, and he refusing to make any other Plea, was condemned upon a nihil dicit; yet this being only a penal Law, 1 think obliges the Subject to the Penalty if he betaken, but does not oblige him in Conscience never to change his Prince or the Government he was born under without their Consent, let his Circumstances become ever so uneasy under it. And that this is so, 1 need go no further than the late Cafe of the French Refugees, who though they are strictly commanded by their King not to stir out of France,whatsoever Persecution they may suffer i yet I think no Man of Sense can blame them, if, being persecuted there, they remove themselves into other Countries, and become perfectly naturalized Subjects or Denizens, at least in that Government whereunto they remove. And this is so known a thing, that no Casuist, as I know of, thinks it a Sin in such Subjects of England, as finding it for their advantage, go over into another Country, to fettle and make their Fortunes, and are there naturalized, or made free Denizens in those Kingdoms or Commonwealths whereunto they remove •, nor are such Persons obliged in Conscience to return home upon the Command or Summons of that Prince, to whom you suppose them to be Subjects by Birth. Nor is your Argument at all convincing, because a Man owes a Duty to his Parents by the Law of Nature, and by being born their Child, that therefore the Subjection to the Prince, under whose Government he is born, must be alike perpetual, since the ground upon which you found this Consequence is altogether false; for I have already proved, at the first Meeting we had to discourse of these Matters, that a Man's being begotten, and bred up by his Parents, does not make him become their Subject or Servant in the State of Nature as long as he lives, so that he may never withdraw himself from their Subjection without their leave.

But in the next place, I think 1 am as little mistaken in my Notion of Allegiance, which 1 suppose svery Person, who is a true and perfect Subject of

the the Government, owe$ to the King or Sovereign Power thereof: for tho I grant there U a great deal of Difference between that imperfect Allegiance, or bare Submission, which every Foreigner owes the King or Government under which he resides, and that more perfect Allegiance which every Subject owes the King, who enjoys all the Rights and Privileges of a true Englishman; yet to Jet you fee that this Distinction proceeds not from the bare Protection of his Person and Goods by the Government under which he lives, but by his being naturalised, and becoming thereby a perfect Member of this Civil Society, it is plain from your own showing: and therefore whosoever not only enjoys the common protection of an Inhabitant, but also all the Rights and Privileges of a true English Subject, is bound to swear AllegiaDce, if required, to> the King or Queen de fatlo,without enquiring into their Right or Title: For if they are Strangers, or have never taken any Oath of Allegiance before, they cannot be, under any former Oath. And as for natural Allegiance, I have already proved it to be a mere legal Notion, and this Allegiance I have also proved to be due to the King and Queen de fatloy not only from the Opinion of the Judges in Bagot"% Cafe, but also from my Lord Cake's Interpretation of the Statute of Treason i which tho you suppose to be contradictory to what he had before laid down in Calvin's Case, yet if you please better to consider of it, you will find it not to be so: for tho it is true the Judges do there assert, f That the Obligation of the Oath of Allegiance is ia*' definite and without Limitation, as being made to the King and his right "Heirs; and also that it extends to the venturing of Life and Members, and *' to the letting out of the last Drop of our Blood :" yet is this still to be understood only of such a one and his Heirs, who still continues to be King in a legal Sense, which can be only he who is King for the time being, as he is, stiled in this Statute of the nth of Henry-VIb and only during the time that he continues in actual possession of the Throne. And therefore the word King, or Majesty being indefinite", and without having any respect to his Title, whether by Descent of Blood, or else by his being crowned and recognized by. Parliament, it is no Contradiction to suppose this Allegiance is only due to. the King in this limited sense, according to the Statute of Henry VIL Where pray take notice, that I have made this Allegiance to be only due to Kings and. Queens de fafto, because they only are within the Intent and Letter of this Statute, as also of that of Treason, according to the legal Government of this Nation by the fundamental Laws»thereof, andean no ways be extended to any other Powers under other Titles, such as the Rump Parliament under the Title of a Commonwealth, or Oliver Cromwel under that of a Protector i who tho they took upon them to protect the People after a sort in their Lives and Estates, yet since it was not according to the true Rights and Privileges.of the Subjects of this Nation, which they highly violated, and in some points quite deltroyed; and that they also took upou them this Protection without the free Consent of the lawful Representatives of the Nation assembled in a full and lawful Parliament j'J can by no means allow them to have given the People such a true and legal Protection as the Law requites to constitute a true and perfect Allegiance, or can make them to be the supreme Power of the Nation, and within the Statute of the 25th of Edward III. So that this Statute, and that of the 1 ith of Henry VII. must be our Rules in this Case.

But I cannot but smile at the Expedient you have found out to hinder the People of this Nation from being ruined, if they do not take the Oath of Allegiance to their Majesties, which, is by a general and absolute Refusal of if, and this you suppose, if unanimously agreed on, would hinder them from suffering any thing, by this their Refusal. And you think.they are also strong enough to oppose it, because the King has only a small Army of Foreigners, which he still maintains here } and this you think may lawfully be done, because their Majesties do not claim by Conquest, but by the Election of the Convention, and therefore that this Case does not come up to that of the Subjects of Flanders and Holstein: in which Argument I doubt not but to shew, that every one of your Suppositions are false. For tho the Nation is not conquered, yet it is certain that all private Subjects are under as great a Restraint by this legal change of the Government, as if they were in the power of a Conqueror : for to resist would be equally fatal to them in both Cases, and there is no visible Power nor Authority that can defend them against the present Power, in case they should go about to refuse this Oath when it is offered to them. And therefore tho I grant the King's standing Army of Foreigners Is but small, in comparison of the whole Nation, since he does not intend to keep us in subjection by force, but only to hinder any sudden Insurrection of those of your Party; yet besides all this, God be thanked, their Majesties have the main Body of the common People of the Nation on their fide, who are sufficiently able to destroy all those that shall go about, to make those vigorous Efforts you so much desire. So that you have nothing else to plead, but that which I hope never to see, that we are not under a Force, because we still entirely enjoy our Religion, Liberties, and Properties. And tho the King, out of his great Goodness and Modesty, did not think fit to insist upon his-Title by Conquest over King James and his Adherents •, yet I think I have already proved at our last Meeting, that he may as justly claim by Conquest, as his Namesake William I. since he came not over to conquer the Nation, but to vindicate his former Right; and after his Conquest of King Harolds could have no just Title to the Crown, till he had been solemnly elected and recognized for King, according to the Laws and Customs used at that time. And why the Nation might not do the same thing now for their Deliverer from King James's arbitrary Power, 1 should be glad if you could give me a sufficient Reason. But if the whole Nation should have been as peevish and discontented as those of your Principles, and should not look upon the King as their lawful Sovereign, because he does not claim by Conquest, it would be altogether as grateful and reasonable, as if a Woman having, by the assistance of an honest Gentleman, been rescued from being ravished, and he afterwards falling in love with her himself, should court her to marry her*, she should refuse him, because he had not ravished h«r when he might, or at least have forced her to marry him whether she would or no: apply this Comparison to the Case in dispute, and see if it does not hold. And therefore I must still maintain that the parallel Cafes of the Subjects of Flanders and Holstein are good as to those of your Opinion, who have no notion how Allegiance can be transferred, unless by perfect Force and Conquest since if you please to desire it, I'll undertake the Government shall seize upon your Estates, and imprison your Persons, till you do take the Oaths, as the Kings of France and Denmark did those who refused to swear Allegiance to them.

M. I have heard you a great while upon this Subject, and I wish I could fay I were fully satisfied with your Reasons , however, since it grows late, I will not dispute this Point any farther, but will take time to consider what you have now urged: only I must needs tell you thus much, I could wish that Princes could find some other way of securing themselves of their Subjects Fidelity, besides this Test of an Oath of Allegiance, which serves as a Snare to many pious and conscientious Men; whereas those of none, or at least of very loose Principles, will swallow any Oath that can be imposed upon them. And I am sorry to see so many of those, who I know are in their Hearts of my Principles, prevailed upon to take it, not out of Conscience, but mere worldly Interest and Advantage, and whom I am satisfied will never serve this Government the more heartily or sincerely for having taken it. And therefore to tell you the truth, I begin very much to incline to Grotius's Opinion, that promissory Oaths are absolutely unlawful: yet considering the several Changes and Turns of Government which we have seen in England for above forty years last past, I am so far for the Good and Happiness of my Country, as to think every true Englishman obliged so far to obey the Powers in being, as may tend to the common Good and Defence of the Nation, by the Administration of Justice between Man and Man, and in the Punishment of Offenders, and for Defence of the Nation against foreign Enemies. But sure, methinks, this might very well be done without the imposing any Oath at all, either upon Magistrates or Officers, and much less upon ordinary Subjects; since if they are persuaded in their Consciences that it is lawful to act under this present Government, let them do it if they will: but as for the common People, I confess they are so stupid, that they have seldom any other measures of the Justice or Lawfulness of any Government or Prince's Title, than the Ease or Advantage they find by it. And therefore upon the whole



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rnatter, I think it were much better for the Government, in the unsettled State it is in, to follow Cromwel\Example, and to impose no Oaths of Allegiance at all, since the Government may be as secure without it, as (for all that I can fee) they can be with it; and as it is now managed, I fee little it can serve for, but to distinguish and divide us one from another. And besides its being a Snare to the Consciences of so many that take it, it is like also to prove the Ruin of divers of our Bishops and other honest Men, both of the Clergy and Laity, who will certainly rather lose their Dignities and Imploymenis than ever take it } which will also cause a great Schism in the Church, as I doubt you will find when it is too late: whereas if these Men might have held their Bishopricks, and all other Preferments and Offices, without having this Oath imposed upon them, I doubt not but they would serve both the Church and State in their several Stations, according to their Duties, and as far as lawfully they could.

F. I cannot deny but you have spoken very honestly, and like a good EngHstjmun in many things you have now said, in case your Intentions towards the present Government were real, as your words are fair •, and therefore I cannot wonder that you who have been formerly a stiff Asserter of the Lawfulness and Necessity of the Oath of Allegiance, should now be for taking it quite away, since it grows too hard for your self, and those of your Opinion to digest: as if to oblige Subjects to defend their Governors, were a necessary Security for your rightful Princes, but were unnecessary for those whom you shall think fit to suppose to be Usurpers. And tho I confess 1 must very much pity the overnice Principles of those of your way, who are truly peaceable and conscientious, and are like to be ruined by their Refusal of it \ yet for all that, I very much doubt whether it would be for the best to take this Oath quite away, since it would make a strange, Alteration in the Government to admit all Persons into ordinary Charges, much less into Imployments of Trust and Profit, without taking any Oath at all. Your only Objections against it are these : (i.) That you doubt that it is unlawful to impose promissory Oaths; and the next is, that it will not perform the end for. which it is intended, viz.. to distinguish those who will serve the Government faithfully, and those that will not i since you confess that a great many, who are not ac all satisfied in their Consciences, will, for Interest, not only hold their old Imployments, but will also take new ones under it, which I grant is not to be avoided, if Men will venture to be damned. So likewise on the other side, 1 must tell you, that the quite taking away the Oath of Allegiance will not at all mend the matter, but make it much worse \since then, not only those whose Consciences will give them leave to take the Oaths, but also those who think they ought not to take them, will be alike capable of Imployments: and when they are in them, tho 1 grant they may be both alike free to act as they please against the present Government, and for restoring of King James, yet I must needs tell you for all that, that I am much more fearful of the Ill-will or Malice of those who think themselves obliged in Conscience to overthrow the present Settlement, and who continue stiff to their first Principles, than of those who will so far comply with this present Government and their own Interest, as to take the new Oath of Allegiance in whatever sense they please. For I am very well satisfied that such Men, tho they are not so right for the Government as I could wish them, yet either Fear of Punishment, or else the Consideration of their own Self-interest, will always make them desire to retain those Imployments they have already got, since they can never be assured of bettering their Condition under King James and a popish Government, should he ever return; whereas those that are bigotted to Principles, will always think it their Duty, by virtue of this Notion of a natural Allegiance, as well as their former Oath, to endeavour to restore him by all the ways and means that can ever lie in their power. But as for the Unlawfulness of a promissory Oath, since you your self speak doubtfully of it, and few Casuists, except Grotius, have been of that Opinion; I think it is not safe to quit our antient Laws, which particularly prescribe, that not only all Magistrates and Officers, but also all other of the King's Subjects, should take the old Oath of Fidelity or Allegiance (as we now stile it) in the Court-Leet, or Sheriffs Torne, when they come to the Age of fourteen years: which Oath (as appears by what we can find of it in Edward the Confessor's, and King WiManss Laws, which we have already recited j as also you may find it in Sir H. Sfelmanh Glossary,Tit. Fidelitas) was made to the Kingj as their Liege Lord, of Life and Limb, and which implies an active Obedience to defend him against all his Enemies, without any exception of such as may claim by Inheritance, or Right of Blood.

Now this being so, 1 cannot be persuaded that the Government ought to quit any lawful means whereby it may preserve it self, and distinguish those who would really serve it from those who will not; and tho perhaps the Government may find it self mistaken in its account in some Men, whose Consciences are large enough to swallow any Oath whatsoever \ yet I think 1 may still safely maintain, that it is in less danger from a few such Libertines, than from those of your Opinion, who would not only keep their Places under this Government, but will also continue in a perfect State of War against it, let them be treated ever so kindly. And therefore with respect to those dreadful Consequences of Schisms in the Church, and the lessening and dividing our Party ; as to the former, we must run the-hazard of it, since it was never heard of that the Bishops, who are in some respects temporal Barons, held their Bifliopricks under any King since the Conquest, without owning his Authority 'i and I can also shew you, that the King and Parliament have either actually deprived, or else declared such Bishops Traitors to the Government* So that if any such Schism be made, it will proceed from a Scandal unjustly taken by some scrupulous Men, and not by the Government. And as for the other Inconvenience, I think it is much safer for the Government to imploy fewer Men, than by not knowing who are Friends or Foes, to trust all promiscuously j tho perhaps, notwithstanding their utmost care, some Men of little or no Consciences will have Places in this as well as they have had formerly: which can by no other means be prevented, as I know of, but by chusing Men of honest Principles, and sober Morals, and of a quite different Interest to those imployed in the two last Reigns. And therefore I am so far from taking away the present Oath of Allegiance, that I rather wish that there Were a new one more strict and full than the present, ordained to be taken by all those who shall take Offices, and Employments of Trust or Profit, whereby they should not only declare their present Majesties to be true and lawful King and Queen of this Realm, but also that they will defend them against all their Enemies, KingJames himself not excepted. ^

M. I confess 1 cannot expect so great a Tenderness from this Government, Which has been introduced by so much Artifice, that they should absolutely take away all Oaths of Allegiance whatsoever, since I doubt not but it wiu assume to it self all those Advantages which any former usurped Power could pretend to \ yet this much I must needs tell you as a Friend, the depriving those Bishops and dignified Clergymen who shall refuse this new Oath, will be highly ungrateful, since many of them have been as violent Opposcrs of Popery and arbitrary Government as any Men in England, as appears by their late Petition to the King. If therefore the Archbishop ofCanterbury, and those other Bishops I know to be so averse to this Oath, should be deprived upon the refusal of it, since it will be done uncanonically, by the temporal Power of an Act of this Convention, without the Sentence of the two Houses of Convocation, I doubt that it will be -thought by many to be a sufficient Cause of departing from the present Church-Communion, and of setting up distinct Congregations by those who will be deprived, and turned out of their Livings for refusing this Oath ; and what the Consequence of that may prove, God knows.

But whereas you think this present new Oath not full enough, and therefore wish there were another made, declaring the present King and Queen to be lawfully and rightfully se, &c. since this would amount to as good as an Oath of Abjuration of King James and his Title, I doubt it were better let alone; for I do not think the present Government will get any thing by it, since the intent of the Oath you propose can only serve either to gain the present Government more new Friends, or else to fix the old ones faster to it, or else to discover secret Enemies. And if I can prove it will not serve for any of these three ends, I suppose you will grant that it were better to let it alone.

T 111 Now Now that it will be so far from gaining it more Friends, that it will rather serve to drive away a great many from it, is apparent; since many Men are now in Offices and Employments, who think they may lawfully take this new Oath of Allegiance, as long as the present King and Queen are not therein declared to be lawfully and rightfully so, and I believe may serve them faithfully enough in their several Stations; who if they should come to be put to it, to declare and swear that they were rightful and lawful King and Queen, would rather lose their places than take it. Neither will it fix those that are for this Government faster to it, since those that are zealous for it, will be so whether they took any Oath or not. And I have already proved, that by the word Allegiance in this Oath, it is implied, that the present King and Queen are to be defended as lawfully so by the Swearer to it; which is the main reason that I, and those of my Opinion, can by no means think it lawful to take it. Nor lastly, will it discover any secret Enemies to your Government, since those, who being rightly instructed in the true sense of this Oath, and what is thereby required, shall notwithstanding take it against their Conscience, will 1 doubt take any Oath whatever the Convention shall think fit to impose , and nothing but the fear of losing their present Employments, or else the desire of getting new ones, could have made them take the Oath as it is, and to my knowledge it hath been taken by many now in Places much against their own Judgment, and I doubt the Conviction of their Consciences too.

I speak this only in relation to some of loose Principles: but as to my self, and many more of my Acquaintance who refuse this Oath, we should be so far from taking any place of Trust under this Government, that we should not do it, tho no Oath were at all required of us •, since 1 think it not only wicked and dishonourable for any honest Man to serve a Party, only to watch an opportunity to betray it: but I also believe my self obliged by my former Oaths, as well as the Duty of a natural Allegiance which 1 owe the King and his right Heirs, not to serve those whom we look upon as Usurpers of their just Rights.

But if you would also have this new Oath to be an absolute Abjuration of the King and his Title, it will not only be unjust, but impossible; since who can tell but either by the Help of a foreign Force, or the general Consent of the Nation, tired out by a long expensive War, either his Majesty or the Prince of Wales may be again placed upon the Throne? and then sure, whenever they stall call a Parliament to recognize his Title, they will be, even according to your own Hypothesis, more lawful and rightful Kings than King William and Queen Mary,since they will not be only Kings dt fatlo, but dt jure too. And therefore I believe it was out of this Consideration, that in all those long and various Contests which so often happen'd between Competitors for the Crown, they never presumed to propose to the Parliament the passing any Act to impose an Oath to abjure the Title or Person of the rival Prince. Thus it was in all the long Wars between King Stephen and Mavd the Empress, as also between the two Houses of Tori and Lancaster; each of whom, as they prevailed in their turns, were very well contented to make the Subjects take the ordinary Oath of Fidelity to themselves, without abjuring each other's Title: and even in the later times of the Rump-Parliament, when the most violent and hot-headed Commonwealths-Men would have imposed an Oath of Abjuration of Charles Stuart, and all his Family, (as they then termed his late Majesty) the most wise and moderate Men among them, such as Lenthal their Speaker, and others, stiffly opposed it, saying it would be a fighting against Providence to take an Oath never to own his Majesty for their King, if once he stould come in again without their Assistance. And I think there is as much, if not more reason now against such an Oath of Abjuration, as ever there was then.

F. I cannot deny but you have spoken like an honest Man, in absolutely refusing to act under this Government, tho without an Oath, unless you could be satisfied of the Lawfulness of the Powers to whom it is taken: and I must acknowledge that you therein act with much more Sincerity and Honour than divers of your Party, who tho they have been, and, are of your Opinion as to the Justice of King Jamesh Title, yet think they may take this Oath well enough in that looser and more qualified Sense you grant they put upon it. And therefore to answer in the first place what you have said against the imposing

any more explicit or stricter Oath of Allegiance than what is already appointed,

~ i

tho I think I can very well answer all the Arguments you have now brought against iti yet to let you fee I ama fair Adversary, I will Ihew you how far 1 agree with you, and wherein I must differ from you.

In the first place therefore let me tell you, that you very much mistake me, ■if you believe that by this new Oath 1 propose, I do design an express Abjuratioa of King James., or the Prince of Wales, in cafe that King should ever happen to recover the Throne, and call a Parliament who shall again recognize him for lawful King, and the Prince for the right and undoubted Heir or the, Crown. 1 am too sensible of the frequent Alterations that have happen'd in this Nation, even to desire or propose any such thing, since a Man may as well abjure the having a Fever or the Small-Pox; Change of Government, and consequently our Submission to it whenever it happens, being no more in our power to prevent, than the having those Diseases. All therefore that 1 intend by-a stricter and more explicite Oath of Allegiance, is only for Men who shall undertake any Employments of Trust and Consequence, either Spiritual, Civil, or Military in the Commonwealth; since I grant the Oath, as it is now worded, may be sufficient for all ordinary Subjects, from whom a passive Submission and ttfue Obedience is a sufficient Performance of their Duty: but as for all others that either now have, or expect to enjoy Places of Trust, 1 could wish a stricter Oath were enjoiu'd, asserting their present Majesties to be lawful and rightful King and Queen of this Kingdom, and that the Taker will defend them in the present Possession of it, to the utmost of his power, against all Persons whatsoever, Kin; James and the Prince of Wales not excepted. And this I must think necessary, not only from that low and qualified fense of this Oath, which I gave at the beginning of this Night's Conversation, and in which sense you cannot deny but that many, if not the greater part of those who still hold such Employments, have lately taken it \ and as long as they do so, how they can ever think themselves obliged to defend their Majesties against King James, nay, or my French or Popish Forces that (hall act by his Commission, I cannot understand: for since they now look upon the present King and Queen to hive no pther Right to the Crown than what their bare Power and present Possession' of it gives them, no wonder if such Men take the first opportunity to revolt, and join with King James as soon as ever he lands with an Army, or appears upon Our Coasts with a Fleet formidable enough to oppose ours-, and they must also (if they are true to their Principles) in the mean time do all they can to protect and indemnify those, who, being of tender Consciences, cannot stretch itIts far as themselves, and who underhand do act as far as they dare for King James's Interest. And tho it is true you have very solidly proved, not only as a Civilian, but like a Lawyer, that the word AHegiance, inserted in this Oath, does of its own nature imply not only that the King or Queen to whom it is taken ought to be rightly and lawfully so, but that more than a bare Neutrality, viz.. a real and vigorous Defence of them and their Right against all their Enemies, is required and imply'd by it^ and that is one great reason why you fay you cannot take it. Now tho 1 confess the.Reasons you have given are ye)7 weighty and convincing, yet since the words are in themselves too general,' and doubtful for every Person that takes or holds such Offices or Employments of Trust, to understand it in that fense, I could be glad there were another more plain and explicite Oath to be administer'd to those who expect to keep or hold such Employments \ since the present Government cannot, well be' safe without it, as long as such Persons are employed,, who can take the Qa|h with a mental Reservation of serving KingJames, as soon as they safely may by virtue of that former Oath of Allegiance they have taken to him. .. I This being the case, I shall now answer all the Objections you have brought igainst it, which indeed are ratherframed to keep those Men in Places, that they may serve your Designs whenever they are able, than to do any service to. tender Consciences. First then 1 think I may maintain, that such an Oath wiU, notwithstanding what you have now said, have contrary Effects than what you are pleased to allow: for in the first place, it will gain the present Government more new Friends amongst these Neuters, who steer their Allegiance to it only from its present Settlement, and the hopes of its Continuance, when they find that none can be employed in places of publkk Trust, who will Hot take an Oath to acknowledge their present Majesties to be lawful aud righti \.i T 111 2 1 fulful King and Queen, and who will also swear to defend their just Right, which will for the most part put places of Trust into their hands, who will think themselves obliged faithfully to perform what they have dworn. Secondly, it will also fix the old Friends of this Government faster to it, when they see none but themselves, or those who will really come into the Government apoa their Principles, admitted to such Places of Profit and Trust} and whoever will take this Oath, are to be presumed to take it willingly and wittingly, and understanding what they do, since the words will be of themselves so plain and evident, that they will admit none of those loose and doubtful Senses in which so many have taken the present Oath of Allegiance. But your main Objection against this is, that a new Oath will not discover secret Enemies to the Government, because that most of the same Persons that have taken the former Oath, will take any other that can be required of them ■, which 1 suppose is not so, since you your self do grant that such an Oath would be a Snare to a great many, who if it were not for that, would serve this Government faith* fully enough, that is to fay, as long as there is no necessity of shewing their Good-will to King James, or no opportunity given of returning to their former Allegiance to him with safety to themselves: and you your self cannot deny but, according to their Principles, they must needs perform it whenever they think they may. Now certainly it were better to be rid of such false Friends (if it were possible to discover them) by such an Oath, than to keep them where they are, only to take an opportunity not only of doing a mil* chief, but of serving this Government very carelefly and lukewarmly, whilst they are in those places they enjoy; as also of favouring and assisting those that are the declared Assertors of King James's Right as far as they dare. So that then all the Dispute remains about those, who having Consciences large enough to swallow any Oath whatever, provided it will suit with their present Advantage i no Oath can tie them, or serve to discover their private Sentiments: as 1 cannot deny but that there are too many Men of such large Consciences as you describe, and could heartily wish they were fewer. Now tho I grant an Oath alone will not keep them out, yet it might be in great part prevented, if the King would take a true Character of the Men fit for publick Employ* jnent from those about him, of whose Worth and former Integrity he is already fully satisfied. But admitting some such Men ssiould get into places, and consequently when they are in, manage things for their own Advantage, (that isi vilely and corruptly j) yet even these will not prove half so fatal to the Government as those Men of half Consciences, who think they may take this Oath in their own sense, and for their own present advantage; and also believe it no Breach of it to assist King James whenever safely they may, because they* hold their present Oath to be only temporary, but their former to have a perpetual Obligation upon them: whereas those of no Principles never espouse any Interest longer than it serves their own turns. So that as long as they can make their Fortunes under this Government, they will never desire to change it for another, in which they cannot but expect a much less free Enjoyment of their Liberties and Properties, which are things that all Men (a* well those who have no Principles, as well as those that have) desire to enjoy; And lastly, some even of these Men that have been formerly notorious Allentors of and advanced in the Arbitrary Government of King James., out of shame as well as fear of the loss of their Credits with those of their own Party (which they are not assured but may again prevail) will stick to take this stricter Oath, tho they do not that which is now enjoined, since they cau find an Evasion for the one, but will scarce be" able to do it for the other. :/n.n

M. But .pray tell me, will not this new Oath, declaring King William and Queen Mary to be lawful and rightful King and Queen of this Realm, and that all Men that take it shall assist them , against their Enemies, prove sis imply'd Oath of Abjuration of King Jantesi, tho not in express Wwt ds? And you have not yet shewed me that such an Oath hath ever been administered during all the various Contests that have been for the Crown since the Conquest. >' « A . , ■ .

F. I allow that such an Oath would be a virtual ancfimplied Abjuration of King James's present Claim to the Crown, and would also oblige all Persons to fight against him, and hinder his regaining it j which tho I grant to be the de



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sign of it, yet would not such an Oath oblige us at all to abjure the obeying
King James, should he ever by an irresistible Providence be again set over as;
since it is not abjuring of a future, but a present Right, which I now contend
for. And that the antient Oath of Fidelity and Allegiance (as it is now
.called) was of the like nature, and taken in the fame sense with this I pro-
pose, I (hall Ihew you from the Form of the Oath of Fidelity, which all Free-
men were to take at fourteen Years of Age, as appears by King William the
First's Law, which I have so often cited j " Whereby all Freemen were to Cap. 5.

affirm upon Oath, that within the Realm and without, they will be true ft and faithful to King William their Lord, and preserve his Lands and Honour with all Fidelity, together with his Person, and defend them against all his "Enemies." So likewise in the antient Oath of Homage, which was taken by all the Earls, Barons, and Tenants incaste in England at the Coronation ,©f our Kings, were these words; " I N. N- become your Liegeman ofviLSpelæan'* *' Life and Limb, and earthly Honour, and Faith and Troth to you (hall bear 23. H. *l to live and die, so help me God." And in the latter Oath of Fidelity or Allegiance, which Sir H. Salmon gives us out of the Customary of Normandy, the words were much the fame, only the Person is there sworn to be true and faithful to the King and his Heirs (which they were not before Edward the First's timej) and also that they would hear of no Evil or Damage against them, which they would not hinder to their power. Now pray tell me, were not all these Oaths taken to the King for the time being, as lawful and rightful King? and since they were thereby to yield him Life and Limb, that is, were to defend him with their Lives against all his Enemies, then certainly all others who might pretend to, or claim the Crown, were included within this number. And tho it is true in these antient Oaths there is no swearing to the .present King, as lawful and rightful King, yet these words were needless in that Age, when Cas I have proved at our last Meeting) there was no difference between a King de jure, and one dcfafto; and whoever was crowned King, and selected or recognized by the Great Council of the Kingdom, was looked upon as lawful and rightful King, and as such, was to be defended against all his Enemies: so that till that Distinction was broached, that there might be V, %i,ag de fa&o different from the King de jure, (which I have proved was pot elder than Edward the Fourth's Reign) there was no need of any men* tion of such words in the Oath of Allegiance as lawful King, and lawful Heirs, which: are first found in the Oaths of Allegiance and Supremacy prescribed by the;Statuses of Queen Elizabeth and King James; in the latter of which (it is needless to recite itverbatim) it is first sworn, That the King's Majesty is law"iLajwjl rightful King; secondly, there is an express Abjuration of the preten.ed Authority of the Bishop of Rome; which flitws that the Abjuration of the [■pjiyporal, as. well as Spiritual Right of a foreign Prince (who claims it ever since King John's Resignation) is no new Invention: and lastly, there is an express, Abjuratioij.br Engagement to defend the King's Person to the utmost of t&e.Jiwearer's power against all Conspiracies and Attempts whatsoever. And ljiftyyjtfop fame words may not be inserted into this ,new Oath, as well as it V(as;4a those, I can see no reason, since they are only declarative, and pur{uao^o the late Act of the Convention, whereby after the Declaration of the. Rfg'hts and,liberties of the Subjects, King William and Queen Mary are dec^red, *' ^hat they were, and of right ought to be by the Mws of this "Realm, our .Sovereign Liege Lord and Lady, and King and Queen of Eng

-r^ Well, i|is late, and besides to no purpose to argue this point any longer, since it epneerns not me nor any of my Principles what new Oaths you make and impose upon those, whose Consciences will never permit them to take in^nv,. what J have said was only to shew you the Folly and Weakness of such Oaths, and consequently that they can be subservient to no other end than a ftej^ew^ and Aggravation of the Sin of Perjury among us, which God forgive #^>1 Nation, among the many crying Sins it now groans under. Yet give ipejeave still to mind you, that you have not given any Answer to the Obje^; tioa I have made concerning the Schism that is like to follow, from the de-. Driving of all such Bishops and Clergy that shall refuse to take the new Oath by such a time; which Deprivation being uncanonically ordained by the mere




Church-Communion with you, as soon as the Archbishop of Canterbury' those other Bishops shall happen to be deprived, and new ones put in their places \ finceall Church-Communion wholly depends upon the Lawfulness of the Bistiops, who are the supreme Pastors of our Church.

F. I forgot to fay any thing of this, because I said so much concerning the new Oath I proposed as fit to be taken by those in places of Trust •, bat since you desire it, I shall fay somewhat, tho not so large as I could speak upon this Subject. First, I must tell you, it is altogether a new Notion, and contrary to the Doctrine of the Church of England, whereby it is declared that the Kings of this Realm have the fame Power with Persons in the Church, as the Kings of Judah and Israel had among the Jews; therefore you must either depart from the Doctrine of this Canon, dr else the King and Parliament (who are certainly as much the supreme Power of the Nation, as the Kings of Jidab were to that of the. Jews) may as well deprive the Archbishop of Canterbury (for example) for Treason, or Disobedience to the Government, as Solomon did Abiathar for anointing his Brother Adonijah King. And besides this, 1 can (hew you ma/iy Examples of-the like Power exercised by the Roman and Creek Emperors, in depriving and banishing not only Bistiops, but Patriarchs, for Matters of State, without any Sentence or Judgment of a Synod, or General Council of other Bishops. If your Doctrine were true, the poor Creek Church would be in a fad Condition, and all her Members in a perpetual Schism for some Ages past, since there have been scarce any Canonical Elections or Deprivations of the Patriarchs of any of the great Sees, viz..Constantinople, Antiocht' and Alexandria, but they are all nominated, and put in and out at the Grand Signior's, nay Visier's will and pleasure-, as any Man, who will but peruseSir Paul Ricaut's Account of the Greek Church, may easily fee.

But indeed you fall into thig Error for want of considering the Original of Bisliopricks in England, and the true Meaning of this intended Deprivation: for pray take notice, that tho Episcopacy was fettled in England in the time of the Britons, yet all the Sees, and Jurisdiction of the Bishops of this Realm, in respect of such and such Diocestes, have been wholly owing to the Bounty of our Kings, and the Authority of our Great Councils, which were also confirmed by the Pope's Bulls; and since the Reformation, to the Authority of . the King and Parliament, as were all the Bishopricks'erected in Heyry the Eighth's Reign. So that the Bistiops mere Spiritual Power of Ordaining, Excommunicating, &c* may be derived immediately from Christ if you please-; yet the Exercise thereof, as limited and appointed to this or that Precinct or See, is as mere a temporal Institution as that of Parilhes, which was not introduced till long after Christianity was settled in this island. So that the Exercise of this Ecclesiastical Jurisdiction within the See of Canterbury (for example) being, a'Civil Institution, it hath antiently belonged to supreme Powers nbt only to confer this Power (as appears by their antient Investitures of our Bistiops per Batubum & Annulum) but also to take it away for Treason or Disobedience against'the State; since the King and Parliament do not pretend to deprive them of their Spiritual Character or Episcopal Orders, but only of their Right to exercise it within such Sees or Diocestes. Thus, although the" Archbishop oiTork, and .the Bistiops of London and Winchester, with the rest of the Popish Bistiops, 'were deprived by Act of Parliament in the first of Elizabeth for nottaking the Oath of Supremacy, the Queen and Parliament never took upon them to degrade those Bishops of their Episcopal Orders, but only to forbid their acting as Bistiops in their formes respective Dibcesses. And therefore Fdoubt not but notwithstandiag this Deprivation, those Bishops' might (if they had pleased) ■ have ordained Priests, and confirmed Children, and that such Ordinations and Confirmations would have been good even in our1 Protestant Church, if such Priests or Children had afterwards turned Protestants; since it is very:weli known that the Church of England owns the Orders of the Church of Rome to be valid, which is more than we do-for the Ordinations of mere Presbyters coming from those Protestant Countries where there are no Bishops at all: the like I may fay for their Confirmations too.


Bat pray, Sir, consider how upon your Principles this Schism can be so universal as to influence and involve allEngland in it; for if the Archbishop of York (for example) will rather take this Oath than suffer Deprivation, and that the rest of the Bishops of his Province should be of the same mind (as I am, credibly informed they will) pray tell me how the People of that Province (being a distinct Church, or Body Ecclesiastical, from that ofCanterbury, as to all spiritual Matters, as having a distinct Convocation of their own) can ever be involved in this Schism by the Deprivation of the Archbishop and Bishops of the Province of Canterbury?

And pray also tell me, in the next place, how all the Members of the two Universities can ever be involved in this intended Schism, since they owe no Canonical Obedience to the Archbishops of Canterbury or Tork, nor to any other Bishop, but only to their Chancellor, and the Vice Chancellor as his Deputy, who exercise all Ecclesiastical Jurisdiction within the said Universities; and therefore their Church-Communion cannot depend upon the Canonical or Uncanonical Deprivation of any Bishops in England. I desire you to consider these things as a Canon-Lawyer, and give me your Answer, if you can, against the next time we meet, and then tell me whether the Causes of this threatned Schism be so just and apparent, that it is like to iovolve so many of the wisest and most considerate of the Clergy and Laity into open Separation from the Church, as you suppose it will. Not but that I will grant there be ma y of the Clergy of this Opinion, who, as well out of Conscience as for their own Interest, will be contented to set up and encourage such a Separation, thereby to make themselves Heads of separate Congregations, when they shall be deprived of their present Bcntfices and Employments, upon their refusal of this Oath.

M. I must confess I uever heard so much said upon this Head before, and if you could make out to me all the Matters of Fact you have now instanced in, I know not but that 1 may come over to your Opinion; tho let me tell you, this is the first time that ever you could shew me that any Bishops were deprived in England by the mere Lay-Authority of the King, and a Great Council or Convention of the Laity^ whilst they continued of the fame ChurchCommunion with those Bishops: for as to your Instance of the Popish Bishops deprived by Parliament in the Reign of Queen Elizabeth, I doubt you will find it does not come up to the point in question, since the Queen and Parliament having then newly declared themselves Protestants, did not own them for true and Orthodox Bishops, and consequently thought they might justly depart from their Communion, and upon the fame account might deprive them, and the Queen might then nominate others of her own Religion in their places.

F. I cannot but differ from you in the Matter of Fact, as you now relate vld. if, for Queen Elizabeth and the Parliament were, when they made this Act, **** so far from being separated from the outward Communion of the Church ofthe 1 Rome, that Mass was then said, and the Romish Priests still continued in all the Parishes and Churches of England; and yet they still maintained an outward Communion, tho their Bishops were deprived by the Civil Power, and others ordained in their stead. So that it is plain the Papists themselves had then no Notion of this new Cause of Schism, by reason of their Bishops being uncanonically deprived; nor indeed can we well vindicate the Honour or Legality of our Reformation, if the Protestant Bishops who succeeded in the places of those who were thus deprived by Act of Parliament, could not be Canonical, because their Predecessors deprived by the Lay-Power were still alive.

And to shew you that the King and Parliament have deprived even Bishops of their own Communion, and that such Deprivations have been held good, and that the King hath nominated new Bishops upon the Vacancy, you may see in Dr. Burners History of the Reformation, and in the Apfcndn^lo it; where you P. 148. will find a memorable Act of Parliament of the 25th of Henry the Vlllth (be- 123. fore his Departure from his Obedience to the'See of Rome) whereby Cardinal Campegio, and Hieronimo de Ghinicci were deprived of the Bishopricks ofSalisbury and Worcester, which they had held for near twenty Years, and Campegio had without doubt been installed in it when he was in England.


The Act it self being so remarkable, I (hall give you some Passages out of it verbatim: First the Preamble sets forth, " That whereas before this time "the Church of England, by the King's most noble Progenitors, and tfaeNo« bles of the fame, hath been founded, ordained, and established in the Estate « and Degree of Prelacy, Dignities, and other Promotions spiritual, &c." (which sufficiently confirms what I but now asserted, that all the Bilhopricks were founded by our Kings, with the Consent of their Grand Councils ot Parliaments;) and then it proceeds to recite, That whereas all Persons promoted to Ecclesiastical Benefices ought to refide within the Realm, for preaching the Laws of Almighty God, and keeping Hospitality j and since these Prelates had not observed these things, but lived at Rom$, and carried the Revenues of their Bilhopricks out of the Kingdom, contrary to the Intention of the Founders, and to the great prejudice of the Realm, &c. in consideration, thereof, it is enacted by the Authority of this present Parliament, " That "the said two Sees, and Bilhopricks of Salisbury andWorcester, and either of ** them, henceforth shall be taken, reputed, and accounted in the Law to be "void, vacant, and utterly destitute of any Incumbent or Prelate." And then follows a Clause, enabling the King, his Heirs, and Successors, to nominate and appoint Successors (being the Natives of this Realm) to the said Sees, and the King did nominate Successors according to the said Act.

But admit this was the first time that ever it had been thus practised, yet if it were then reasonable, and done upon good grounds, I cannot fee but when the Necessity of the Church and State require it, and that the Clergy in Convocation are so wilful and wedded to seme old false Notions, as not to consult the Peace and Safety of the Church and Kingdom; why the King and Queen (who are acknowledged to be supreme over Ecclesiastical as well as Temporal Persons) may not, together with the two Houses of Parliament, make the like Law now, as was done in the first of Queen Elizabeths for a less matter: for none of those Popish Bishops, tho they believed QueenElizAetb to have no better than a Parliament-Title to the Crown, yet ever denied her to be their lawful and rightful Queen, only they would not own her Supremacy in spiritual Matters.

So leaving the farther Discussion1 of this Point to those who better understand it, I would gladly know of you what you intend to do, and what you would have us do, who are like to be made Deputy-Lieutenants and Justices of Peace: for if, as you your self allow, there be a necessity that some Civil Government be maintained during King James's Absence, I desire to know of you how it can be managed, and who snail manage it, in case all the Gentlemen of England were of your Principle, and should positively refuse the Oath of Allegiance to their present Majesties. For if King James be ever so much our lawful King, it is not now possible for us to be governed by him since he is gone, and God knows whether ever he may return again. Since then you cannot have him if you would, and that there is a necessity we should be governed by some body and since it is also as certain, that those who actually govern us will exact this or the like Oaths of Allegiance from us, as were due to their Predecessors, and that no Man must expect to enjoy or execute any Place or Office, not only of Profit, but of Burden and Charge, for the necessary execution of Justice, and the maintenance of Civil Government (without which we cannot live or subsist) without taking this new Oath of Allegiance, as the only means to qualify them for it: If then the end, viz.. Civil Government, be absolutely necessary, and the taking of this Oath is the only means allowed of to qualify Men for it j this seems as evident to me, that taking of this Oath is not only justifiable by Law, but by Reason and good Conscience, since it is done for the highest and noblest end, viz.. the publick Good of the whole Nation or Commonwealth, which you grant cannot subsist without some kind of Civil Government amongst us.

Ad. I will fay something in answer to what you have now alledged concerning the necessity of taking of the Oath, in order to the maintenance of some Civil Government, without which I grant the King's good Subjects cannot subsist till his return •■, since I confess this is the strongest Argument you have yet brought, all I can fay to it at present, is, that if all your Country Gentlemen, and all the Lawyers in England, would be so firm in their Loyalty to his Majesty, as unanimously to declare that they cannot take this Oath with a safe Conscience:, the Consequence then would be, that either the present usurped Power must; be forced to give up the Government to the right Owner, or else they must at least desist from pressing this Oath upon you.

F. You know well enough this is altogether a vain Supposition, since you cannot but be sensible that their Majesties have not only a sufficient Force both of native Englishmen and Foreigners on their side, who can force those, who should make any opposition, to the taking it \ but that there are also many Fanaticks and Commonwealthsmen, who not looking upon themselves at all obliged by your Notions, of natural Allegiance, and the Obligations of any former Oath of Allegiance, will get into all the Offices and lmployments of the Kingdom, to the great Prejudice and Destruction, not only pf the Church, but the Monarchy it self, which is as yet preserved, tho the Person that administred it is altered. So that it would condoce nothing to King James's Affairs, if all the Gentry and Lawyers of the Kingdom should go about to refuse this Oath; which, as I have already proved, they are also obliged to take by the Law of the Land, and also that greater Law of prosecuting the publick Good of the Nation, to the utmost of their power.

'M. Well, since I cannot expect so great firmness of Mind and Courage from your Country-Gentlemen, and especially the Lawyers, who have been always but too forward to comply with all Governments, how unlawful soever; and since you, who think that you may lawfully take this Oath, not only by the Law of the Land, which you have interpreted to countenance your Opinion, but also from a higher and nobler Law, viz.. that of the common Good of the Nation, or Civil Society j which I grant must be maintained during the King's Absence, since you say there is a necessity for it: tho I am not fully satisfied of the Lawfulness of it so far as to take it my self, yet will I not absolutely condemn you, or any other sincere and honest Men, who do only take it out of a good intent to maintain some Civil Government amongst us, and also to the keeping out the Fanaticks from having any mare in it: and I hope the Government will excuse me, if my Conscience will not give me leave to take it my self, since there are enough of you who are free to do it without us. So that if I cannot keep that small Imployment I have, without taking this new Oath, 1 will freely give it up, since I am not satisfied in my Conscience of the Lawfulness of it; and whatsoever is not of Faith, is Sin, as the Apostle has truly defined it.

F. 1 confess you speak very honestly and charitably in this matter, and I could wish all those of your Opinion had the like Moderation, and that they would not condemn of wilful Perjury so many good Bishops, Noblemen, Gentlemen, and others, both of the Clergy and Laity, who have been persuaded that they might take this Oath with a safe Conscience*, and therefore pray, however we differ in Opinion about these matters, let us maintain the fame Friendship for each other as we had before.

M. Sir, I readily embrace so fair and kind an Offer \ and as I hope you will do me what kind Offices you can whilst you continue to act under this Government, so will I promise to do the same for you, whenever the King shall come to be restored to his Throne again.

F. I willingly and thankfully accept the Proposal of the Continuance of your Friendssiip, since I look upon your dissenting from me, not to proceed from any Wilfulness or Obstinacy, but out of a tender Conscience, and too great and high a sense of your Duty, which I must still confess are Errors on the right hand: and therefore now taking my leave of you, shall only desire you to believe me your real Friend and humble Servant.

M, I hope you think I have the same Esteem for you, and therefore must always own my self yours.


{698}

DIALOGUE XIV.

That the Arraigning and Murder of King Charles I. can by no means be justified by the Proceedings of the Convention-Parliament against King James II. upon his Abdication 3 the Grounds and Manner thereof being wholly different. Proved by an exact Relation of the Beginning, Progress, and Issue of the late Civil War.

if Am come this Evening to discourse with you about somewhat that I have heard to-day, which has very much raised my Spleen against all the complying Clergy, who justify this Revolution j and it satisfies me, that most of them are no better than downright Hypocrites and Turncoats. F. Pray, Sir, be pleased to tell me what it is that has put you into this Ferment.

M. I shall, and am glad to find you so willing to hear me. You must know then, that this being the 30th ofJanuary, the Anniversary of the Martyrdom of that great and pious Prince, who fell on this day by the bloody hands of his rebellious Subjects, I was resolved to go and hear one of cur celebrated Preachers in the City, to observe how he would manage his Point; (which I must tell you I thought was a nice and ticklish Subject) since 1 foresaw, that as he must neceflarily condemn that horrid and barbarous Fact, so he would likewise at the same time justify this Revolution, which was begun and carried on upon the fame.Principles, tho not by the fame Persons. And I was not deceived in my Expectations ; for my City-Doctor was fhreudly put to it, and like an Ass mumbling a Thistle, tho he condemned the Fact of this Day with great Warmth and Bitterness of Spirit, yet when he came to handle those /*' good old Church«of-Doctrines of Passive-Obedience and Non-Resistance, he touched them very gingerly, because he was afraid they would go near to prick his Chops: therefore being sensible that this Revolution was not to be justified upon those Terms, he fell into a strange fantastical Hypothesis, of God'sways in disposing of Kingdoms ; and that the Prince of Orange, by the wonderful Success of his Arms against King James, was, by a kind of mixed Right of Conquest and Election, become our King, and by God's Providence wonderfully declaring it self in his favour, he might, nay ought to be lawfully owned and recognized as such by all the Subjects of this Kingdom: but yet that it was still downright Rebellion before God for any private Persons to



conspire or make war against the King, which I thought very strange Doctrine: Since the Prince of Orange set forth in his Declaration (which we have no reason to disbelieve) that he was invited over by divers of the Bishops* Peers, and Gentlemen of the Kingdom } which was so far made good, that one of the first, and divers of the second and third Orders, either declared for him, or actually went in to him upon his Landing, besides those who came over with him in a military Posture. But how they could be justified by this Doctor's Principles, let those look to it whom it concerns.

But I am sure his whole Sermon was so far from edifying, that it gave great occasion of Scandal and Offence to all the honest and judicious part of his Auditory: for if God's Providence must be brought in to justify, at every turn, a Rebellion or Revolution (as it is now more softly worded) I cannot see why the Murder of King Charles I. may not also be justified upon those very Principles j it being sufficiently known to all that lived in those times, that Cromwcl and the Rums appealed to their strange and wonderful Successes and Victories over the King, and God's delivering him into their hands (all which in their Cant they called Providences) as an Indication that God had designed him to be taken off in the manner he was; and that their wicked, illegal, and tyrannical Power was that which was thereby sanctified and ordained by God, and to be submitted to and obeyed, according to the Apostle's Precept, Let every Soul be subject to the higher Powers, the Powers that be Rom. 13. r,1are ordained ofGod, &c. So that by such a plain and manifest wresting of Scripture, the most open and barefaced Rebellions and Usurpations, when they prove successful enough to carry the outward (hew of a Civil Government, must presently be owned as God's Ordinances: and if this must pass for sound Doctrine, 1 think it were better wholly to lay aside the Observance of this Day, tlio appointed by Act of Parliament, than thus to mock God, and at the fame time condemn an Action, when done by those we call by the hard names of Rumpers, Commonwealth/men, andFanatich; and yet in the fame breath justify the very like Practices of those who now call themselves Asserters of the Monarchy, and seeming Members of the Church of England, who have solemnly declared King James to have abdicated the Throne, upon the Breaches of 1 know not what original Contract, and fundamental Laws j and it thereby becoming vacant, have placed the Prince of Orange and his Princess on the Throne. And the long Parliament, after their execrable Murder of King Charles, might, with the like Right and Justice, have proclaimedCromwel (the chief of his Enemies and Judges) for lawful King, as he set up himself afterwards for Protector by the like providential Title.

And tho, I confess, the Prince of Orange hath not been so cruel to his Uncle and Father-in-law, as to imprison him and take away his Life, but gave him an opportunity to make his escape; yet whether that did not more proceed from Interest, than either Mercy or Good-nature, I may have some reason to doubt: because had the Prince either imprisoned him, or put him •to death, it would have proved disadvantageous to his Interest, and turned to his Prejudice, even among the common People of the Nation j and besides, would have prevented the notion of the King's voluntary Abdication of the Government, which has been since so greedily swallowed by an hypocritical, or at least an unthinking Party of the House of Commons. And how they would have proceeded against his Person (had he stay'd here) God knows: for they might with the fame Justice have taken away his Life, as declared him to have abdicated; that is, (as you your self confessed at our last Meeting) forfeited his Crown. So that to conclude, I see no Difference but the changing of the Names of the Persons, that can justify this Revolution from the fame Imputations of Treason and Rebellion, as the Murder of King Charles I. for . tho his Son is still (God be praised) alive in France, yet the Party you have so much vindicated have done all they can to destroy his politick Person, by declaring him actually deprived of all Sovereign or Regal Power as lawful King ofEngland.

F. You have made a sharp Discourse against the Murder of King Charles I. and Abdication of his Son KingJames II. in great part of which, as 1 shall not oppose you, so, I hope, the unwary and indiscreet handling of this Subject by some of our City-Preachers, will not prejudice you against the late



Revolution, and placing the Prince of Orange on the Throne, tor I agree with you, that a'temporal Success or Victory of any Party of Men, nay of a whole Nation against an Enemy, either foreign or domestick, ought not to be urged as an evident Token of God's approving the Cause they were engaged in *, being sensible, that this Argument has been made use of not only by Cromwel and his long Parliament, both before and after the King's Murder, and is indeed the common Topick and Refuge of all unjust Force and Violence committed in the World, and serves the Turks at this day for their main Argument of the Truth of their Religion, and the Justice of their Arms against the Christians: and therefore before ever we give a Judgment concerning God's Allowance of such Actions (tho ever so amazing and successful) we ought to distinguish between God's permissive, and his declared and express Will or Providence; without the former of which, no human Actions, Whether good or bad, could ever be brought about: since tho he has so wisely contrived all the Affairs of the World, that even the wicked Actions of Men do turn to his own Glory, and the common Good of Mankind, yet his direct and declared Will ought never to be made use of as an Argument, but where the Scriptures so declare it, or that the apparent Justice and Merits of the Cause may make us presume, that God, by his granting Success, does likewise allow the Justice of the Cause.

I have not therefore, in whatsoever I did or (hall say on this Subject, drawn any Argument for the present Government from that head, nor found their Majesties Right to the Throne on the fallacious Topick of Success. But as for your main Objection, and which so much scandalizes a prejudiced and inconsiderate Party of our Church, that this Revolution (if adhered to) will serve to justify the deposing and murdering of King Charles I- I utterly deny; since there are a great many, and those very material, Differences between that Fact, and the Abdication of the late King.

I lhall therefore proceed to shew you these grand Differences between those two Transactions; which I shall do, First, by enquiring into the Beginning and Original of the Disputes between King Charles and his Parliaments, and then comparing them with those which lately happened between the late King James II. and his Parliament, and his Proceedings after its Dissolution: So that if we look back upon the Actions of both these Princes, and the Proceedings of the Parliament and People of England in opposition to them, we lhall find them vastly different. First, As to the Original of them, King Charles was left involved in a War with Spain by his Father, and being not long after unluckily engaged in another with France, and denied any Assistance in three successiveParliaments, 1 grant he was forced, for the carrying on of these Wars, to take very illegal Courses by Loans, and^Privy Seals, and other ways to raise Mony i and being so often disappointed of his Expectations of receiving any Benefit by Parliaments, it' was no wonder if that Dislike was afterwards, by some evil Counsellors about him (who feared to be called to an account for what they had acted contrary to Law) heightned to a perfect Aversion to them, and he put upon to raise Ship-mony by the bare . Opinion of the major part of the Judges, contrary to Law. Yet to fay truth, this Mony was not vainly squandered away, but really laid out for the use of the Navy, in buying in of Naval Stores, and building of Men of War, the Royal Sovereign being made out of that Mony. But when the necessity of the King's Affairs, upon the breaking out of the Scotijh War, obliged him to call a Parliament, he then offered, if he might have a sufficient Assistance against them, to have redressed all those Grievances; and had certainly done it, had not the House of Commons, by denying the King that reasonable Aid he required, obliged him to dissolve them. Bat when the long Parliament in 1640. came to sit, the King having then, upon the Earl of Stratford's and Archbishop Laud's being impeached and committed to the Tower, and the Lord Keeper Finch and Secretary Windebank's withdrawing themselves beyond Sea, altered his Measures as well as his Counsellors, he condescended to pass whatever Laws the Parliament thought fit to offer, to secure the Nation against those just Fears of Popery ahd arbitrary Government, which then so much perplexed them: So that after all these unparallel'd Condescensions, they had no just reason longer to continue their Jealousies and Discontents, unless they could wrest from the

King the whole Power of the Militia, which gave the first occasion to that unhappy Civil War.

M. I grant what you say to be in great part true; and yet upon your Principles this will not do the business: for if the King, upon any wilful breach of the Original Contrast (as you call it) and obstinately persisting in it, may be refisted by the People, and declar'd to have abdicated the Government, upon such wilful Invasions of our fundamental Laws and Liberties; (King Charles I. having also knowingly persisted in those Violations after his granting the Petition of Right so solemnly, in his third Parliament -, and after many Petitions of divers of his Subjects against those Oppositions, yet they were still continued:) sure he might with as much Law and Justice have been resisted, and have had Arms taken up against him by the People of England, as have been lately against his Son: And upon King Charles's refusal to redress them, might also have been declar'd by the Parliament to have abdicated the Kingdom, by renouncing the lawful way of Government of it, according to your supposed fundamental Constitutions thereof. And yet for all that, the Long-Parliament itself, tho they declar'd that the King's setting up his Standard at Nottingham was an actual making War upon the People of England in their Representatives -, yet neither then, nor in the very heat of this War did they ever arrive to that degree of Impudence, as to declare the King to have broken his Original Controls, and thereby to have abdicated the Government *, but still continued their Addresses to him for Peace, if they might have had it upon their own Terms: nor yet when they bad voted no more Addresses to the King, did they ever declare that he had forfeitedthe Crown by his wilful Breach of the Laws, and making War upon his People. These things, I fay, were never done by them, till Cromwell and the Army, with the Independent Party in the House, first declar'd at St. Albans,That the King, by beginning a War upon the People, had committed Treason against them. But your Conventionhas quite outstrips the old Presbyterians, and have not only laid aside the King as they did, but have also taken from him the very Title of King, and have declar'd him to have abdicated the Government}. which Act, I doubt, can never be justified by your Notion of making him forfeit the Throne by a tyrannical Administration, and se to depose himself.

F. I am very sorry to see you so hard put to it, as to find no way to justify the late King's Miscarriages, but by comparing them with those of his Father's Reign; which tho I grant them to be very great, and in some things worse than those of his Son's, yet were they chiefly at the beginning of his Reign, and indeed before he had granted the Petition of Right, when he had in truth very much violated, the Laws of the Kingdom, by exactingillegal Loans, and Imprisoning those that refus'd to pay them; as also by levying Soldiers, and requiring the Counties to furnish the Charges of Coat and ConduS-Mony for them, contrary to Law. I grant also that his appointing Commissioners to try, condemn and execute Soldiers by Martial Law in time of Peace, was against the known Laws of the Land, as also quartering them in private Houses, whether the Owners would or not; and then his imprisoning divers People of Quality without any Cause shewn, or Time limited, and without suffering them to be delivered by Habeas Corpus, as by Law they ought. All which Grievances being briefly summed up in thePetition of Right, were (tho not without some difficulty) at last redress'd by the King, in that remarkable Answer, 1 have already cited. Soit Droit fait come il eft desire'. And altho there may be a great deal said by way of Excuse in the King's behalf, for those Illegal and Arbitrary Proceedings; as that he then found himself engag'd in a War with the Emperor and House of Austria about the Palatinate, and that at the desire of the Parliament; and notwithstanding when he could receive no assistance from them in the three first Parliaments of his Reign, he was forc'd to make use of those exorbitant Methods to raise Mony to carry on an unsuccessful War against Spam and the Emperor, in order to restore the Prince EleQor his Brother-in-law to his Inheritance: tho who were the Cause of this Necessity, whether the Kiug or the House of Commons, I shall not now dispute. But whoever was in the fault, it was sufficient that the King redress'd all those Grievances in the third Parliament of his Reign. And yet even before that time, I affirm there was no just Cause for the People to take op Arms, since (asi said at first) those



Oppressions were either but light, or else fell only upon some Trading Men; and I have already laid it down fora Rule, lt That it is never lawful to resist "the King's Commands by Force, but when they strike at the very Root of u the Constitution, and become not only general, but insupportable by the "Subjects, and that there arc no hopes left of redress by Parliament j which "1 do not fee was the Cafe at that time, seeing the King at last did remedy "all those Grievances by a Parliament."

M. I grant it might be as you fay •, but did not the Nation quickly fall into frelh Discontents by the King's exacting of Tonnage and Poundage from the Merchants, before those Duties had been new granted and confirmed by Act of Parliament? And also, by his clapping up divers of them for refusing to pay it? Nay, did he not also, some time after this, by the Opinions of almost all his Judges, and Advice of his Privy Council, levy Sbif-Monyupon the whole Kingdom by his own Proclamation, and committed divers Gentlemen to Prison * that refused to pay it, nor would admit of any Habem Corpus to release them? I shall omit divers other things of less moment, such as his dispensing with the Statutes against Popish Priests and Jesuits, and his releasing and pardoning of them, when they were condemn'd: as also his making several Popilhly inclin'd Lord Lieutenants, Deputy-Lieutenants, and Justices of the Peace; his turning out the Lord Chief-Justice Crew, because he declar'd himself against the Loan; and imprisoning the Refusers of it during pleasure ; and would also have turn'd out the Lord Chief Baron Walter upon the same account, had he not held his Place by Patent, Quamdiu bene fe gejferit; and yet nevertheless he was forbidden sitting in that Courc any more: which things are but the fame in effect, as theConvention have put into their late Declaration against the present King; and therefore 1 must say again, that the one is no more to be defended than the other. But if these things did not deserve any Resistance, or Abdication of the Father; why should the like, nay less, matters have that tragical effect upon the Son? ....

F. 1 should not have desir'd to enter upon this odious Comparison, or to rake into the Ashes of the Dead; yet, since you will put me upon it, give me leave to tell you my Opinion freely, of this part of the Reign of KingCharles I. that those Violations upon the Laws you mention, were so great and general, that had they been as obstinately persisted in, when the Parliaments met in 1640, and 41, I doubt not but they might have produe'd (and that lawfully) the like Effects, as his Son's Miscarriages have since brought upon him, by his going away, rather than he would suffer them to be redress'd by a Free Parliament. But his Father was better advis'd, and either redress'd those Grievances and Oppressions the Nation complain'd of before those Parliaments fat, or else yielded to the Parliament's Declarations against them, and gave up the Offenders to be punish'd according to Law. Thus for example, before the Parliament fat in 1640. he releas'd all those Gentlemen and Merchants that were in Prison, for not paying Sbip-AJony, Tonnage and Poundage, &c And as for •Ship-Atony, he acquiesced with the Judgment of both Houses, who condemn'd it as illegal ; and left all the Judges that gave their Opinions for it, to the Judgment of the Parliament- He also sign'd a Bill to take away Tonnage and Poundage; as also another to attaint the Earl of Strafford for endeavouring to introduce an Arbitrary Government, and subvert the Laws of the Kingdom. He also pass'd several other Acts for the taking away of the Star-Chamber, and High. CommissionCourts, and even for taking away the Votes of the Bishops in the House of Peers: And last of all, he pass'd that unparallel'd Act I now mention'd, of making the Parliament not capable of being adjourn'd, prorogu'd, ordiflblv'd, without their own Consents: so that he omitted nothing Cas I know of) that was desir'd of him for the redress of all those Grievances that the Nation then justly complain'd of-, those Persons who were accounted the Authors of them, being either executed, imprisoned and fined; or else sav'd themselves by Flight.

But as for what you fay about that King's pardoning Popish Priests, and suspending the Laws against RomanCatholicks, and turning out of Judges; the7 were nothing like what his Son King James hath lately done in that kind. For in the first place, his Father never did more in pardoning Priests, than what Queen Elizabeth, and KingJames I. had often done before; who seldom or


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never executed any, only for being Priests, unless they had also been found guilty of some other Treason: Nor do I know of any Law there then was in force against Roman Catholicks, the Execution whereof was openly suspended by any Proclamation; tho 1 confess those Justices of Peace, who were found most active in putting such Laws in execution against Papists, were commonly put out of Commission: but as for the turning out of Judges, you can instance only in one who was so turned out, because he would not agree to the Loan; and as for the other, you your self grant it was only offer'd at, but could not be done: But what is this to the turning out of three, or four, or five Judges at a time, because they would not consent to give their Opinions as the Court would have them, even in matters of the highest Importance j and then put* ting Papists, or else Men of the loosest Consciences, and least Law, in their Places, as was lately done? What is the pardoning of a few Priests, and the silent exempting some Roman Catholicks from the Penalties of the Laws made against them, in comparison of ageneral and avow1'd Suspension, not only of al! Laws against them, but also of all those concerning Religion whatsoever? This sure was never practis'd by any King of England before our Times.

To conclude: Let us now suppose that in the Year 1641. the King, instead of redressing all those Grievances and Violations of the Laws we have now mention'd, should have withdrawn himself into Ireland, and there have join'd himself with the In/A Rebels, and by the assistance of the King of France, had made war upon this Kingdom; declaring that he would never put up his Sword, till he had made himself absolute Master of all our Laws and Liberties: What think you the Parliament which was then sitting would have done in this Case? Can you believe they would have fat still, without pasting a Vote against the King's Arbitrary and Tyrannical Proceedings? No certainly, they would nerer have stopped, till they had declared him, by thus becoming a publick Enejy to his People, to have abdicated, or forfeited all his Right to the Government of this Kingdom; or else, I think, they could by no ways have secured the safety of it.

M. But Drav les

j  w] uu ways nave lecured

j -A It.

M. But pray let me ask you one Question more, before you proceed farther,-1 since you have not yet answer'd my Objection: Why did not the Parliament then do so, when the King did afterwards actually declare War against them? > ■

F. There were several good Reasons for that: As First, Because they could not but know in their own Consciences, that the King, before his departure from London, had already given them all the Security, against those Oppressions and Violations that had been formerly committed, as they themselves could desire. And Secondly, Because they knew what they insisted upon with so much heat, to wit, the disposing of the Militia of the Kingdom, had been in the King's and his Predecessors disposal, from time beyond Memory; so that there needed an express Act of Parliament to take it from him by Law, (as they themselves at first acknowledg'd :) And it was nothing but the Tumults that were raised in London by the Rabble's coming down to petition the two Houses, and by their violent insisting to have the whole Power of the Militia out of his hands (which was indeed to take from him the chief Regal Power, that of the Sword) could have thus forced him from the Parliament, and to take up Arms, when he had neither Men nor Mony to pay them, the Parliament having stopped his Revenues, ever since his going to Hull. And therefore, seeing they had no other Cause, but their own Fears and Jealousies to justify what they did; they had no way to do that, but by laying all the fault upon the King's evil Counsellors, who bad carried him away from his Parliament, to incite him to make war against it; to remove him from whom, and to bring him back to his Parliament, they made the chiefest pretence for the War: yet notwithstanding there were still left in the House a great many honest well-meaning Men, call'd Puritans (the Name of Presbyterianbeing not yet in fashion;) and who, tho they were against all Arbitrary Proceedings, yet nevertheless loved KinglyA Government, and did not desire his Majesty's Ruin, so long as there were any hopes left of coming to an Agreement With him, upon such Terms as they thought would best suit with the Presbyterian Discipline, and the Rights and Liberties of the People: and these were for ending all Differences by a fair Treaty, and afterwards voted the King's Concessions at the Jste of Wight to be

satisfactory j

satisfactory •, and being for this alone driven out of the House by Crommell, and bis Independent Faction, were call'd the excluded Members, and were the very Men, who being afterwards broughf again into the House by General Monk, join'd with him in voting for a Free Parliament, or Convention, which (you know) recaJl'xl and restor'd the King and Royal Family. 1

M. 1 cannot deny, but you have given me a fair Account of these Tsant actions j ye4Nnethinks, according to your Principles, I can fee no reason why the People might not have risen up in Arms against the King in that long Interval of Parliaments, when he levied Ship-Mony, and (as you own) did so many illegal things, and that to force him whether he would or not, to call a Parliament, to redress those Oppressions and Grievances the Nation then lay under: and yet you cannot (hew me any Man in England, who had either the Will or Interest to raise a Rebellion against the King, during those eleven Years that those things were transacted; so well were tbe People satisfied with his Majesty's Government, notwithstanding all the secret Murmurings and Discontents of some leading and factious Men against his Proceedings. And therefore, when the Scots first invaded England upon the account of the New Service-Book, I cannot find but the major part of our Nobility and Gentry were well enough satisfied with the King's Proceedings, and serv'd him with great Courage and Fidelity at his first Expedition against the Sats. .

F. If this be so, you your self have given me a sufficient Reason, why neither the People, nor any part of them, ought then to have taken up Arms against the King; for if the Major part were so well satisfied, as you make them to be, it was align that the Oppressions were either not general, or else but very' light, and easy to be borne y and therefore (no doubt) they ought to waic the King's time when he would call a Parliament, rather than involve the Nation, in a bloody Civil War, which I never suppose lawful, but as the last and only Remedy, (as our Cafe lately was.) And besides all this, you know very wel/, that SbipMtny (which was the chiefest and most illegal of these Oppressions) was dedar'd to be according to Law by all the Judges of England in the Exchequer-Chamber, except two, who I grant argued against it, with greater Law and Reason, than the Majority of them could produce on the other side, as appears by their Arguments, since printed in Dr. Franklin's Annals: yet, however, so long as the Judges are look'd upon as the Interpreters and Declarers of what is Law in doubtful Cafes in the Intervals of Parliament; I told you at our last Meeting, that whatever is done under such a Colour of Law, supported by their Determinations rightly given, ought not to be opposed or Telisted by the Subjects, till their Judgment be revers'd and declar'd illegal by Parliament.

But indeed you are somewhat mistaken in matter of Fact: for tho I admit that Ship-Many was a very light Tax in comparison of what we have felt since, and that most of those Imprisonments you complain of, fell only upon some particular Gentlemen and Merchants, who refus'd to pay Ship.Many, and Tonnage and Poundage, yet was the Nation very highly dissiatisfy'd for all that, when the Scots came in, especially after the Parliament (in 1640.) was disiblv'd, because they would not agree to the King's demands, of fifteen intire Subsidies for the Scoti/h War: and tho 'tis true, the Nobility and Gentry attended the King in the first Expedition against the Scots with a seeming Alacrity, as they were by their Tenures bound to do, and that there was also a mercenary Army raised upon Pay \ yet it is very plain, by the great unwillingness of the generality of the Soldiers, as well as Commanders, to fight against the Scots, as 'also by tbe Intercession of . the major part of the English Lords for Peace, and the mighty Joy which appeared at the Pacification I fay, it is very plain upon these Consideration?, that most of the English Nobility and Gentry were not well satisfied with that War, because they very weD knew, That when once tbe Scats were wholly subdued and brought under, the King might then take upon him to do even what he pleased with his English Subjects.

M. I (hall not farther dispute what you say concerning this matter; but desire you only to consider, That according to your own Argument, if the Opinion of the major part of the twelve Judges, in the Intervals of Parliament, be such a Declaration of Law to the People (how illegal soever it might be in it self) as they ought by no means to gainsay or resist , then by a parity

of

bf Reason, the taking up Arms by those Noblemen and Gentlemen who joined with the Prince of Orange is not to be justified, seeing that the King had the Judgment of most of his twelve Judges on his side for dispensing with the Act concerning the Oaths and Test.

F. I own what you have now said would have been close and home to the Case, bad this been so declared by their Judgments upon a solemn Argument of the point in the Exchequer-Chamber, as had been done in the Cafe ofShifMony: but it was so far otherwise in this, that you may very well remember • the King would not permit the Judges so much as to argue the Cafe, or give their Opinions in publick, but only in private in Serjeant's-Inn, and that too after they had been closetted by my Lord Chancellor; and those were turned out that would not be brought over to his Opinion, and such put into their places as promised to comply. And besides all this, the King's Declaration of Indulgence was not a Dispensation in one particular Case, or Act of Parliament alone, but an actual Suspension of above forty Penal Statutes at once concerning Matters of Religion, which (as I have already proved) was as good as a downright Abrogation of them; and such a Suspension had been before declared unlawful in the Case of Thomas and Sorrily in the Lord Chief Justice Vaughan's Reports, which I mentioned at our last Meeting. Now if you. can shew me any thing like this done by King Charles the First in the business ofShip-Mony, I grant your Objection to be good, otherwise not.

M. But pray give me leave to urge this matter a little farther concerning the Lawfulness of the War made by the Parliament against Charles the First, in defence (as they pretended) of their Religion and Civil Liberties, against the King's Usurpations upon both; for which they had a very specious pretence, since the King had left the Parliament, not upon any direct or open Force or Compulsion, but only upon a bare Surmise, follow'd by a Declaration, that he thought he could not be safe any longer at London, for fear of the Tumults of the Rabble. Now when the Parliament had upon this declared, That his Majesty's Departure and continuing from his Parliament, not- Rush. Hist, withstanding their humble Petitions for his Return, was an Obstruction to the 9°^'Par-3* Affairs of Ireland; and that those who advised him to go away were Enemies 0 * to the Peace of the Kingdom, and justly suspected to be Favourers of the Irijb Rebellion: and farther, upon his going to Hull, and his hostile Preparations against that place, the two Houses had in a Declaration, published for their Justification, that all that Sir John Hotham had acted in that Affair, had beenM-*■ P-^iu done by their Order\ and that the King's Proceedings were unsuitable to his Declarations of never having an intention to make war against the Parliament: And farther, upon his Majesty's issuing out his Commissions of Array, H. *5*« they voted them contrary to Law, and against the Liberty and Property of the Subject ; and that al) those that acted in putting those Commissions in execution, were Disturbers of the Peace of the Kingdom, &c. and farther declared it lawful to resist by force of Arms all those Noblemen and Gentlemen Mwho had endeavour'd to put it in execution: And lastly, his setting up his Standard at Nottingham, and marching with an Army towards London, was an Ib. 787. evident Declaration of his actual beginning a War against them; whom then could the Nation better believe in this case, than their Representatives in Parliament?

So that if you will suppose our present King James to have forfeited or abdicated the Kingdom, because the Convention hath lately declared so, you ought then to quit your old Cavalier Principles, and to own the late War against King Charles the First, being only defensive on the Parliament-side, to have been just and lawful by like parity of Reason, as you said; for surely a Declaration of both Houses of Parliament, called by the King's Writ, ought to be looked upon as of much greater Authority than that of a Convention, who have met and acted without any legal Authority to call them together.

F. You have indeed played the part of a stout Advocate for the Presbyterian Party in the Long Parliament, which I know you urge against me only as Argumentum ad hominem, whereby you would prove me an Apostate from my former Principles; but I hope, for all that, so far to vindicate the late Proceedings of the Convention, as to shew that they have done, and declared nothing in their Vote or Declaration concerning King James, bat what may very well be justified upon my old Cavalier Principles.

Xxxx , ■ In

In order to which, pray take notice, first of all, that I lay down as a ground of what I have to fay on this Subject, That the greatest part of the Nobility »nd Gentry, who took up Arms on the behalf of King Charlesagainst the Long Parliament, never believed any absolute irresistible Power in the King, or those commissioned by him, if they acted against the known Laws of the Land-, for this indeed is a new Doctrine, preached and set up since that time only to serve a tarn. Secondly, That the Nobility, Gentry, and People of England, who understood any thing of the Grounds of this Quarrel between the King and the two Houses, by fighting on the King's fide, and supporting his Cause, never intended thereby to make him an Arbitrary Monarch, and to give him a power over the Persons, Estates, and Liberties of the People of this Kingdom, but only (as his Majesty himself set forth in all his Declarations) to defend the King's just Rights, as also those of the Church of England established by Law; both which were then invaded by that Parliament. Thirdly, That no sober Man of the King's Party then did (any more than we do now) suppose the Judgment either of the whole, or major part of the Parliament, to be an infallible Rule of Law or Obedience, but only as far as it agreed with the antient and known Laws of the Kingdom: and hence it was that many Noblemen and Gentlemen, who were for the King, refused to yield Obedience to those commissioned by the Parliament, according to their Ordinance for settling the Militia. And therefore as they refused to own the Power of the Parliament when it was illegal, so I freely grant, that upon the same grounds both you and I, and any considering Man, have also the like Right to examine whether the late Votes and Declaration of the present Convention were according to the antient fundamental Constitution of the Kingdom, and the publick Good and Safety of the Commonwealth, or not; for otherwise all the Discourses that you and I have had upon this Subject are altogether in vain, and to nopurpose. • ■

M. But to urge this matter a little farther ; tho it be lawful (upon your Principles) for the Parliament, when sitting, to be Judge of its own and the Peoples Danger of losing their Religion and Civil Liberties, and of the King's Encroachments upon them; yet when the King came to the House of Commons, to demand and seize the five Members, and had failed in the Undertaking, they were never after that satisfied with his ceasing farther Prosecution, but judging themselves and the Nation in imminent danger, as long as the King had any power to hurt them, they would not be satisfied unless the Militia of the Kingdom were wholly put into Commissioners of their own Nomination; especially when after the breaking out of the hi[h Rebellion, &c. Sir Phelim Ontalc, their General, pretended to shew the King's Commission for what they had done. So that (to argue on the fame Principles) if the Nation were then in great danger, and that its Representative, the two Houses of Parliament, were the sole and proper Judges of this Danger, then upon the King's refusal to pass a Bill to settle the Militia out of his power into indifferent Hands, was certainly a Denial of granting all means necessary for the publick Peace and Safety of the Kingdom, and consequently the Parliament might upon the fame grounds justify their raising an Army to force it.

F. I confess you have urged all that ever was, or can well be said in Justification of the beginning of that unhappy Civil War by the Long Parliament: yet give me leave to tell you, that I think it will not do the business; for whenever the King and Parliament differ about the Exercise of any part of the Supreme Power, such as is that of the Militia, that great Power of the Sword, which when there is any Dispute about it, or even when it is feared the King will abuse that Power to enslave the Nation, ought to reside in King and Parliament jointly i whereas it became then divided, both the King and the Parliament separately claiming their Right to it. But at this presentRevolution, the King being gone away without leaving any Deputy or Vicegerent behind him, or calling a Parliament before his Departure, the Qaestion now arises, Whether by his Departure his Right to govern be lost or not? And tho the present Convention have determined that it is, yet I must still own, that neither you nor I are obliged to stand to their Judgment any farther than former Precedents from History, and Declarations of Parliament, and Statutes shall incline us; for we must not blindly take the ordinary Books ot

Reports I

Reports (which are bat the Opinions of private Judges) for Law in such great Cases: therefore fince nothing but the Justice and Reason of the thing ought to determine us in these matters, I shall endeavour to examine them to the bottom.

Therefore the Parliament is not infallible, and always in the right, nor the King always in the wrong; fince that may fall out either way, according as either of them, through an Excess of Ambition or Desire of Power on one side, or too much Encroachment upon the Prerogative on the other, may give the first occasion for a War. I shall now comply so far with you, as to grant, that the breaking out of the Rebellion in Ireland, and the Queen and those of her Party so notoriously favouring the Papists, and Sir Phelim 0ncale's pretending to have the King's Commission to raise Rebellion, and murder the Protestants in Ireland, together with the King's Attempt to seize the five Members, might then seem just Occasions for the two Houses of Parliament to desire to have the Militia settled in some hands that they could confide in. Yet truly to determine whether the King or Parliament were in the wrong, he in denying, and they still urging to have the Militia settled according to their own pleasure, will give us occasion to look back, and take a short View of the most material Transactions of those Times.

My next business therefore (hall be to shew you what great things the King had done to satisfy the Parliament and the whole Nation, that he did not intend to govern arbitrarily, but to make a general Reformation of whatever had been amiss in the former part of his Reign : for at the beginning of this Parliament, besides the declaring ofShip-Mony, Tonnage, and Poundage, with several Monopolies, to be illegal, he passed a Bill for TriennialParliaments j by which, in cafe of a failure of the issuing out of the King's Writs in due time, the Sheriffs were impower'd to issue out Precepts for the Choice of Members to serve in Parliament, who were required to meet accordingly. After this he passed that unparallel'd Act, which was indeed the main cause of all the Wars and Confusions that followed; whereby, under the pretence of giving the Parliament credit to take up Moneys to pay oss the Scotijh and English Army, the King tied up his own hands from proroguing, adjourning, or dissolving that Parliament without their own Consents: by which Act the Supreme Power became divided, and the Parliament was made wholly independent on the King; which indeed produced a great Alteration in the very Constitution of the Government it self. At the same time (tho with much difficulty) he.passed the Bill of Attainder against his late chief Minister the Earl of Strafford, for certain Crimes and Misdemeanors, which certainly were not High Treason at Common Law.

Then the better to satisfy his People, the King within less than two Months . after passed two Acts for taking away the Star-Chamber and High-Commission Court; and having done all these unparallel'd Acts of Grace, he adjourn'd the Parliament, and went into Scotland, in order to quiet the late Commotions of that Kingdom.

But to let you fee that nothing less than the depriving of the King of his antient and undoubted Prerogative would serve the turns of an unquiet Faction, you must know, that during the King's absence, this discontented Party in the Rush. ib. 437. House of Commons took a fresh occasion of aspersing his Majesty's Government, by contriving a Petition with a Declaration, called a Remonstrance of the State of the Kingdom; which being brought into the House of Commons at their re-sitting after their late Adjournment, was passed by a very "small Majority of Votes, notwithstanding Sir Edward Decring's, and divers other worthy Members arguing and protesting against it: so that the Debate lasting from three of the Clock in the Afternoon till ten the next Morning, it caused many ofwhitl( Menii the Members, through Weakness or Weariness, to leave the House before they p. 49! came to a Vote;which made Sir Benjamin Rudyard compare it to the forced KerdiEh of a starved Jury. This being presented to the King, contained an invidious Repetition of all the past Miscarriages and Grievances of his Reign, tho they had been all, or most of them, either, long since over, or already redressed, and taken away either by particular Acts, or Votes of Parliament. This Declaration and the Petition, tho they were answered by another published by the King for that purpose, and written with great Strength of Rea



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Dugdaie'f son \ yet their Paper had so far obtained the end for which it was published, flurtvkwjkc. as to render his Government and Ministers odious to a great many well-meanp. 78. See the - peopie wri0 gave entire credit to whatever their Representatives had Jbgmm sccforth

Rulh.ib.p.452. But indeed all this tended towards their main end of getting the Militia into their own hands, since they knew when they had that, they could easily accomplish whatever else they had a mind to; and for this purpose some of that Faction invented and spread abroad divers horrid Plots and ConspiId. p. 76,77. racies against the State, of which the House of Commons had several false Informations, and seemed to give credit to them; as that a great multitude of Papists and other M-attgnants were about to rife in Arms j also of great Forces to be sent out of Frame and Denmark to assist the King to enslave the Nation, and alter the Religion established: of which Reports there was not a word true, as the People were afterwards convinced of, when it was too late.

Yet at present these Stories had so far wrought the effect for which they were raised, that divers Apprentices, and others of the meaner sort of the City of id. p. 78. London, coming down in great multitudes to Whitehall andWestminster^ petiRusl1.1b.p462. tjoned against the Bishops, and demanded them to be excluded the House: id. p. 466. which Clamours, with other saucy reflecting Language against the Ring, so far provoked him, that he thereupon issued out his Proclamation against fuck tumultuous Assemblies, as contrary to Law and at the fame time, by the Advice of the Judges, he issued forth an Order to theSherisssof Middlesex, and Justices of Peace ofWestminster, for the setting of a Watch or a Guard aboaC the Hall and Parliament-Bouse: a* which, when it came to be put in execution, the House of Commons took offence, and having examined the Constau itJta?6' k*CT a°d Under-Sherisss that set the said Watch, they voted it a Breach of gd. Privisege to set Guards about their House wkhout their Coslsrwf, and thereupon sent their Serjeant to them to order their Discharge; and Mr. Long^ a Justice of Westminster who had signed the Warrant, was sent to the Tower, as having exceeded the Authority given him by the Writ, in sending down armed Men to. the Parliament-House, wkhout acquainting them with the fame. And yet, which was more strange, a few days after they thought themselves im such danger of a malignantParty (as they called them) that they addressed! Rusl1.ib.p471. to the King that they might have a Guard out of the City, to be commanded by the Earl of Effex; which Request being denyM, and civilly put off by Iris Majesty as unnecessary, they thereupon order'd Halberts to be provided and brought into the House for their better Security: But the truth was^ the Faction looked upon themselves in tut danger from that Party of the Mob that cried out against the Bishops, tho at the fame time they infidted both the King and the Lords that were not of their Party j whilst the fame Men pretended they were afraid of having their Throats cut by certain malignant Officers of the late disbanded Array. But this, was only a pretence in order to put the Nation into a posture of Defence under confiding Persons of their own Nomination, and to get the Militia, or whole Force of the Nation, into their own hands.

M. I think so far you are in the right 5 pray go on tojhew by what means they obtained it.

F. 1 shall proceed to do so in as few words as is possible, for the true Relation of so many and so various Transactions, as quickly followed each other. Dugd.ib.p.8i. When the King found that there was a malicious^ prejudiced, and turbulent Party in both Houses, who- made it their business, instead of healing the Breaches between the King and them, to make them wider y and the RingLeaders of this Faction were the Lord KymMitnin the House of Peers, and? in that of the Commons, Mr. Hambden, Mr. Fjm, and three others whom f need not particularly name, and who were also believed by his Majesty to have had a chief hand in exciting the Scots totake up Arms, and enter England as Rush ib. p. ^ done: he thought fit by his Attorney-General to-impeach those

473,474. Members at the Bar of both Hoofes of High Tueason, upon seven Articles then exhibited; and then for the better Prosecution of this Accafetion, he commanded their Chambers and Studies to be searched, and their Trunks with their Papers to be sealed up. This wan not only vowd a high Breach of Privilege by the House of Commons, but the Lords also thereupon order'd,


that they should be forthwith open'd and <leliver'd to their Owners. And when the King did by his Serjeant at Arms demand the said Members to be id. p. 476. taken into ctstody, they were so far from complying with that Demand, that the Speaker, by the Order of the House, commanded them to attend de die in diem, till the House should take farther order about it. So that tho Treason, Felony, and Breach of the Peace, have been at all times excepted out of .the Privileges of Parliament, yet it seems the Law was otherwise with them, and they declared that none of their Members were to be seized on any account whatever, without the Leave and Consent of the House of Commons. Wherefore, when the King found he was not like to obtain any thing by his Impeachment, unless these Members could be first secured, he was by the Queen, or some others near about him, put upon a rash and violent Action, which Was to go in Person to the House of Commons not only to demand, but seize the Per- ^hid. ib. p. sons of the five Members; which, being attended with his Guard of Penfio- 50. ners, and about two hundred other Courtiers and Gentlemen armed with Swords and Pistols, he endeavour'd to perform: but when the King came into the House of Commons, he found none of those Members he looked for, for they having notice of his coming, were withdrawn before he could get thither. But as I do not justify the King's Proceedings, in going to the House of Commons in Person to arrest those Members, since the King cannot in Person execute the Office of a Messenger, or other inferior Officer; for then there could be no Person left to whom the Subject might appeal: so thus much may be said in his excuse, that he did not take this Course till he found all other gentle Methods utterly desperate.

But to proceed: When upon the Votes of the House of Commons, that U. p. 479this Action of the King's, in coming to the House in a warlike manner to seize their Members, was a high Breach of Privilege; and when, upon the several Petitions froih the City and divers Counties in their behalf, they were brought by a Rabble of Watermen* and other desperate Fellows, as it were in tri- Dugd« p- 82. umph j then he found it in vain to prosecute his Impeachment against them any farther: and so he gave the Houses of Lords and Commons notice, That he would for the present not only wave his former Proceedings, but, as a far- Rush, p. 488. ther Testimony of his unfeigned Intentions towards his People for the better composing of this matter* and removing all their Fears and Jealousies, he offer'd to grant such a General Pardon to all his iovirig Subjects, as should be thought convenient by both Houses. But this was refused by the Commons, and nothing would serve to quiet their Minds: but being full of needless Feats and Jealousies, put into their heads by false Reports, and feigned Letters of strange Designs to seize on, artd murder the Members of Parliament \ they not Rush.Hist.Col. only ordered a Guard for their own safety, consisting of the City Trained-Par. 3. VoL 1. Bands, under the Command of ColonelSkipptn, but likewise ordered a Guard £.4?b9' to be set upon the Tower, that so no Ammunition nor Provisions should be car- 1 • P-49 • ried from thence without the Authority of Parliament: and also that Sir John Hothamshould take the Command of the Town of HuR^ and secure (that is, seize) the King's Magazine of Arms there, and should not deliver them without the King's Authority, signified to him by the two Houses of Parliament: which was indeed to take away the Command of the King's Arms and Stores, bought with his own Mony, without any just cause shewn, except, as 1 said before, their own causeless Jealousies. Bat the better to discover the steps this Faction took to get the Militia of the Kingdom into their own hands, I shall now look back to what was done a little before this: When the City and Nation were put in a strange Ferment by the above-mention'd false Reports, that fame Party in the two Houses excited underhand divers of the meaner fort of the City of London, and County of Middlesex, as well as other Counties, to petition the Parliament, that as) Papists should be disarmed, that all vid. A short Bishops and Popish Peers should be excluded out of the Lords House, and the view of the Kingdom speedily put in a posture of Defence^ and to this end, that the Mi- rrT '**■ litia should be committed to such hands as the Nation might most confide in. p' Now to quiet and satisfy the House of Commons and City, whose Minds were still much disturbed about the business of the five Members, the King on the twentieth of Januarysent the two Houses of Parliament a most gracious Message ia writing i wherein he proposed, "For the preventing the Distractions RuQub.p.$x6.


 that were now likely to ensue, that they (hould fall into a serious Confide"14 ration of such Particulars as they should judge necessaiy for the upholding ** and maintaining his Majesty's just and regal Authority, the settling of his 44 Revenue, and for the present and future Establishment of their Privileges, "the quiet and free Enjoyment of their Estates and Fortunes, the Liberties of "their Persons, the Security of the true Religion professed by the Church of "England, and appointing of Ceremonies in such a manner as may takeaway "all just Offence \ which when they (hall have composed and digested into one ** entire Body, that so his Majesty and themselves may be able to make the "clearer Judgment of them, it shall then appear, by what his Majesty shall M do, how far he hath been from intending those things which the great Fears "of some Persons seem to apprehend, and then how ready he shall be to ex41 ceed the greatest Examples of the most indulgent Princes: and it concludes, "that if the present Distractions, which apparently threaten the Ruin of this Kingdom, do not end in a happy Accommodation, his Majesty shall call M Heaven and Earth to witness, that it hath not failed on his part."

To this reasonable Proposal, the House of Commons alone return an Answer, by way of Petition, to this effect: "That to give them a sure Ground 44 of Safety and Confidence of what he would be pleased to do, he should "forthwith put the Tower of London, and other principal Ports, together K with the whole Militia of the Kingdom, into the hands of such Persons as *•* should be recommended to him by the Petitioners," (viz.. House of Com, mons.) But the King being unwilling to part with those Powers and Prerogatives, which his Predecessors from time immemorial constantly enjoyed, replied to this purpose, That he hoped his last gracious Message to both Houses would have produced a better effect. As to the Tower of London, his Masir John jesty did not expect, having preferred a * Person of known Fortune and un*on' questionable Reputation to that Trust, that he should be pressed to remove him without any particular Charge laid against him; yet if upon due examination it should appear, " That his Majesty was mistaken in his Opinion of "this Gentleman, he would make no scruple to discharge him, which other"wise he should be loth to do:. That as for the Forts and Castles of the "Kingdom, his Majesty is resolved they shall always be in the hands of such M Persons as the Parliament may confide in-, but the nomination of the Per"sons to those Places being a principal and inseparab1- Prerogative of the "Crown, derived from his Ancestors by the fundamental Laws of the King11 dom, &c. he will reserve to himself." And then proceeds, M That as for the ** Militia (which by Law is subject to no Command but that of his Maje44 sty, and of the Authority lawfully derived from him) when any parti"cular Course for the ordering the same (which his Majesty holds very neces"sary for the Peace and Security of his Kingdom) shall be proposed to him, 44 he will return such an Answer as shall be agreeable to his Honour, and the "Safety of his People; being resolved only to deny those things, the grant"ing of which would alter the fundamental Laws, and endanger the very "Foundation upon which the publick Happiness and Welfare of his People «« is founded and constituted, and would nourish a greater and more destruc** tive Jealousy between the Crown and the Subject, than any of those which "seem to be taken away by such a Satisfaction." And then further goes on, "That he found his having granted more than any King ever had done be** fore, encouraged his House of Commons to ask more of him than ever Sub'« jects had asked; yet, however, if they shall think fit to acquaint him with u the particular Grounds of their Doubts and Fears, he will very willingly M apply Remedies proportionable to those Fears; for his Majesty calls God w to witness, That the Preservation of the publick Peace, the Law and Li"berty of the Subject, is, and shall always be, as much his Majesty's Care and 44 Industry, as his own Life, or the Lives of his dearest Children." Then he concludes 14 with conjuring the House of Commons by all the Acts of "Favour they have received from him, as also by divers other Motives, that «l they would not be transported by Fears of impossible Dangers, to put "themselves or his Majesty into real and present Inconveniences; but that ** they would speedily pursue the way proposed by his Majesty's former Mes*4 sage, which in human Reason h the only means to compose the Distractions "" 4t of "of the Kingdom, and with God's Blessing to restore a great measure of Fe* "Hcity to King and People."

But the Faction in the Commons-House was not at all satisfied with this reasonable and moderate Answer, and not having as yet been able to procure the House of Peers to consent to join with them in their farther petitioning his Majesty for the Militia, they desisted from returning him any Reply for some time, till they were again backed and encouraged by several Petitions from Dugdale'* those of their Party in the City, and divers Counties ofEngland; and had byflortview, that, and several other Artifices, obtained a Majority in the House of Peers,p' 85" to join with them in another Petition for putting the Militia wholly out of his Majesty's power.

M. I should be glad to understand by what means there was so sudden and so great an Alteration wrought in so judicious and august a Body, as that of the House of Peers.

F. IshaH comply with your Desires, and to make you the better to understand it, you may please to take notice, That this could never have been brought about, had not several of that Great Council been clapt up in Prison, and divers of the Popish and other Lords frightned from coming to the House by the Tumults and Petitions of the Rabble. But as to the Bishops, you may remember, that they having been several times not only menaced, but also violently assaulted by a rude multitude of Apprentices and other ordinary Fellows, that came down in great numbers, armed with Staves and other Weapons, under pretence of petitioning against the Bishops and Popish Lords having their Votes in Parliament: the former thought it from thence-* forth not fase for them to come any more to the House, till the Cause of their just Fears were removed too. And twelve of the Bishops (of whom the Archbishop of York was the chief) presented a Petition and Protestation to the King and House of Peers, setting forth their undoubted Right to sit in Rush, ut suParliament, and demanding his Majesty's Protection for the fame, declared Fa> (' *66, their Hatred to Popery $ and that so long as they shall be thus menaced and assaulted, they cannot attend to perform their Services in the House: and' therefore protest against all Laws, Orders, and other Proceedings, that have or shall be passed in their Absence.

This Petition being delivered by the said Archbishop of York, and the other lb»/'4tf7« Bishops; and the House of Peers taking offence thereat, the House of Commons laid hold on that advantage, so as thereupon to impeach all those that had signed it of High Treason. And the Peers also too much resenting it, they were by their Order not long after (all except two, who were committed to the Black Rod) sent to the Tower, where they continued till such time as the King had passed the Bill for disabling them, and the rest of the Bishops, to sit and vote in Parliament, and then they were discharged: For the Faction having obtained the end for which they had accused them, they were prosecuted no further, but were all set at liberty except the Archbishop of Canterbury and Bishop of Norwich, who had been sometime before committed upon another account; and the former of these continued close Prisoner for near three years after, until he was beheaded, and the latter for near twenty years without ever being brought to Trial. But this by the by; only you may observe, that the rest of the Bishops and Lords, who looked upon themselves as obnoxious to the Faction, either forbore coming to the House at all, or else, if they came, durst not oppose the Designs that were then- so furiously driven on. < '■■ ■ •

Nor did the Party rest contented yet, till they had stirred up and procured several factious Petitions from the City of London, and the Counties of Essex, Dugd. p. 85, Hertford, Suffolk, Northampton, Kent, Oxford, Lincoln, andYork: some com- 8<5» 87i 88. plaining of the Loss and Deadness of Trade, and others that there was no Redress to be expected, unless the Bishops and the Popish Lords were put out of the House j whilst others desired that the Kingdom should be put into a Posture of War. And the Faction having laid such a Foundation for the carrying on their Designs, by ensnaring the People with their own Petitions, which were delivered Dy many thousands in Person; as also from several false Stories and Reports of dangerous Plots and Designs of the Papists in Lancashireand other Places, it struck such a Terror in the Lords that remained in


the House, that upon Mr. HoBis's again moving them at a Conference, Thai their Lordjhips would now join withthem, without any further delay y in petitioning bis Majesty., that the Kingdom Jhould be put into a Posture ofDefence: I say, *be Lords, who refused to join with them at first in their Petition of the 16th of January, were so far brought about, that the Majority of them at last consented to it, being presented to the King on the id ofFebruary, Which was to this effect:

Rusk /. 5 iSi 44 In the first place they set forth the present Evils and Calamities where44 with his Majesty's Kingdoms were most miserably entangled, and the imtc minent Dangers, which (as they pretended) threatned his Royal Person: M and tho they seemed to receive his Majesty's late Proposition of the 2cth 44 of January with great Thankfulness, and would with Earnestness of Af"section endeavour to pursue the same y yet for the Safety of his Royal Per44 son, preserving the Honour and Authority of his Crown, and removing 44 all Jealousies betwixt his Majesty and his People, suppressing the Rebellion "in Ireland, preventing the Fears and Dangers in this Kingdom, and the mis"chievous Designs of those who were Enemies to the Peace of it \ they still ** insisted, That for the accomplishing their Duties therein with more Com*' fort and Security, his Majesty would be pleased forthwith to put the Tower •* of London, and all other Forts, with the whole Militia of the Kingdom, 44 into the hands of such Persons as should be recommended unto his Majesty *' by both Houses of Parliament: and which they assure themselves would be 44 a hopeful Entrance into those Courses, which (thro God's Blessing) would be "effectual for the removing all Diffidence and Misapprehensions betwixt his 44 Majesty and his People, and (as they said) for establishing and enlarging 41 the Honour and Greatness of his Royal Posterity. And then conclude, that 14 they expected his Majesty's speedy and gracious Answer, the great Distrac"tions and Distempers of the Kingdom not admitting any delay."

The King being much surprized to find the House of Lords now brought over to the fame Sentiments with the Commons, and that his late so reasonable Proposals to both Houses had met with so unsutable a Return, seemed however not at all transported at it, but soon gave them a short, but very

id.519. handsome and reasonably Reply to this effect: 44 That having well considered M their Petition, and being desirous to express how willing he was to apply su"table Remedies, not only to their Dangers, but even to their Doubts and 44 Fears; he therefore returned an Answer, That when he should know the 41 Extent of the Power which was intended to be established in those Persons, *' whom they desired to be Commanders of the Militia in the several Coun44 ties, and likewise to what time it should be limited, that no Power should 44 be executed by his Majesty alone, without the Advice of his Parliament; ** then he would declare, That (for the securing them from all Dangers or 41 Jealousies) his Majesty would be content to put into all Places, both of his 44 Forts and Militia in the several Counties, such Persons as both the Houses 44 of Parliament should either approve of, or recommend to him •, so that they 4' declare before to his Majesty the Names of the Persons whom they should 44 approve of or recommend, unless such Persons should be named against 44 whom be should have just and unquestionable Exception."

id. ib. But to return again to the matter of Fact: So soon as the Faction saw it

self thus backed and encouraged in the two Houses, they then joined in an Ordinance to regulate the Militia of the City, which was the first Encroachment they made upon the King's Prerogative in this kind; and to second this, they again petitioned the King for settling the Militia of the several Counties on luch as they had nominated, giving him at the fame time a List of the Names of those whom they designed for Lords Lieutenants in the several Counties, being all of them of their own Party.

Rush, p. 820. The King respited his Answer till his Return from Dover, whither he had accompanied the Queen and his Daughter that were then going for Holland; and at the fame time they presented him with a Form of an Ordinance, whereby they would have settled the Militia of the Kingdom in the hands of those Lords they had already nominated. But when the King demurred to grant it, they pretended to be so transported with Fears and Jealousies, by certain feigned Reports of dangerous Plots designed by the Papists, to burn down divers


{713}

versos the chief Cities and Towns in the Kingdom, "That they thereupon id. p. i2u

"dispatched away another Petition to his Majesty (still at Dover) for ordering

"the Militia. To which they desired such a speedy Answer, as might raise in

"them a Confidence (to use their own words) that they should not be exposed to

"the Prailices of those, whose Endeavours were to kindle that Combustion in Eng

"land, which they had in so great a measure effeBed in Ireland, and which no

w thing could do (as they said) but the granting that Petition"

His Majesty's Answer thereunto was just and moderate, w That as for the id. ib. "City of London, and other Corporations, which by any antient Charters "had power of ordering the Militia, he conceived it unfit to alter their Go** vernment, but that he could not consent to the indefinite time propounded

for this Posture of Defence. On his Refusal they voted this Answer to be Dugd./. 88. <c unsatisfactory, and as good as a flat Denial, and that his Majesty's Advisers "thereto were Enemies to the State, and mischievous Projectors against the "Defence of the Kingdom; also that this Denial was of such dangerous con"sequence, that it would hazard the Peace and Safety of all his Kingdoms, ** unless some speedy Remedy were applied by the Parliament." And immediately they sent another Petition to his Majesty (who was then at Theobalds) wherein they protested, That if he did not speedily pass his Assent to the Satisfaction of their Desires, they should be necessitated to dispose thereof by Authority of both Houses, and that they did accordingly so resolve to do.

And they farther voted, That the Kingdom should be forthwith put into Id. p. 89. a Posture of Defence by the Authority of both Houses, * and that the Navy should be speedily rigged under an Admiral of their own Nomination, and that a Declaration of the Reasons of their just Fears and Jealousies mould be forthwith drawn up; declaring the Grounds of their former Votes, for putting the Kingdom into this Posture by Authority of both Houses, to secure them from the future from all Mistrusts and Jealousies.

And to carry on this under colour of the Peoples Desires, divers new Peti- id. ib.' tions were daily brought up from several Counties; as one from Staffordshire, pretending such Dread of Papists rising there, that every Man was constrained to stand upon his Guard, not daring to go to Church unarmed; others from Worcestershire,Berkshire, Norfolk', as also from Norwich, Lynne, Salop, &C. all of them earnestly desiring this Posture of Defence.

So that the Faction being highly encouraged by these Petitions, the Ordi- id. p. 89. nance for ordering the Militia of the Kingdom by Authority of both Houses, was the very Aext day assented to by the Lords; and thereupon new Lieutenants were by them nominated throughout all England and Wales, without his Majesty's Consent.

And having in a grand Committee, sitting at Merchant-Taylors-Hall, contrived the Declaration (mentioned in their Votes of March 2.) wherein they made a very great noise of a Design to alter the Religion in this Kingdom, and that the Wars with Scotland and Ireland were framed to that end; they Rulh./>. 523. presented the fame to his Majesty, first at Theobalds, and then again at Newmarket within a few days after: which being then denied, they voted the King's Commissions of Lieutenancies in the several Counties to be illegal, tho they had not been altered since this Dispute; as also that there was an urgent and inevitable necessity for putting his Majesty's Subjects into a Posture of Defence, and that the Ordinances of both Houses for the Militia, being obliging . to the People, ought to be obeyed by the fundamental Laws of this Kingdom: And, lastly, That the Earl of Warwick should be appointed Vice-Admiral of his Majesty's Ships, tho he did by no means approve of him.

M. But pray, Sir, tell me what were the Motives that persuaded his Majesty to leave London, and travel Northward, at a time when the grand Affairs of the Nation rather required his Presence with his Parliament, to compose the Differences that were now begun between them?

F. To do this, it will be requisite to look back a little, and give you a more exact Relation of these Transactions: That his Majesty some time before thinking his Person in danger, and his Authority exposed by these exorbitant Courses, as also by the frequent Tumults and Affronts from the Mob (as has been already related) did not think it safe to return any more to London after his going down to Dover with the Queen-, but coming no farther than Gren


wicb, he seat for the Prince and Duke of York from Hampton-Court to meet him there; and during his short stay at that Place, he sent the two Houses his Answer to their Petition concerning the Militia, shewing the Inconveniences add Breach of his Right to have it settled as they desired. From whence he went to Hieobalds,where he received that bold Petition of the two Houses abovementioned; and being removed from thence toNewmarket, on the 9th of March the Earls of Pembroke and Holland were sent thither to him, with that yet more bare-faced Declaration of the two Houses already mentioned \ setting forth the King's Misgovernment and unjustifiable Actions (as they called them) and in which they ripped up all that could be thought of to misrepresent his Person and Government, being to this effect:

1. By attempting to incense the late Northern Army against the Parliament, Jermin\ treasonable Actions, and Transportation by the King's Warrant.

2. The Petition delivered to Captain Leg by the King's own hand, and. signed C- R.

3. The Business of the Lord Kimbolton and the five Members, the suspicions Design of a Guard about the King's Person, the underhand promoting the Irijh Rebellion.

4. The ordering of Sir John Pennington to land the Lord Digby, thereby to alienate the King from his Parliament, and to procure foreign Assistance to the King. This appeared more credible, by his Removal fromLondon with the Prince, and the many Advertisements from Rome, Venice, Paris, and other Parts, of great foreign Aid to be given to the King, in reference to some grand Design against the Protestant Religion and the Parliament; tho (as it proved by the Event) there was no such thing ever designed or transacted abroad.

Then they desire the King to put away his wicked Counsellors, and to put his Trust in the Parliament; which if he would do, they would sacrifice their Lives, Fortunes, and utmost Endeavours to the Supportation of bis Sovereignty.

The Lords, that then attended his Majesty with this Petition, moved him to come nearer to the Parliament, but it was refused. And when they further urged, that the Militia might be granted, as was desired by the Parliament, for a time j his Majesty replied with an Oath, No, not for an hour: so jealous was he of that greac and important Power of the Sword, which no wife Prince can or ought altogether to trust out of his own hands. Then he told them in short, that as their Fears, Doubts, and Jealousies were such, as*he must take time to satisfy the whole World to be needless j so his own were not trivial, occasioned by so many scandalous Pamphlets, seditious Sermons, and sundry publick Tumults, hitherto unenquired into, and unpunished.

Then a few days after, so soon as his Majesty came to Huntingdon, he published a Declaration, for further Answer to theirs, to this effect:

1. That he had no evil Counsellors about him, but leaves such to their Censure where they should find them.

2. That he wished the Judgment of Heaven might be manifested upon those who had any Designs against the Protestant Religion •, and as to the Scotijh Disturbances, they were already silenced by the late Act of Oblivion.

3. That the charging him with any Inclinations to the Irijh Rebellion, was a high and caufless Injury.

• 4. That he never intended to exasperate the late Army, or to use them against the Parliament.

5. That he signed Captain Leg's Petition only to satisfy the Army, and Sir Jacob Jjhley was of his Opinion as to the Reasonableness of it.

6. That Digby and Jermin were not at Whitehall, nor had any Warrant from him after their Restraint.

7- That he had given sufficient Answers about Kimbolton and the five Members, enough to satisfy any reasonable and unprejudiced Persons.

8. That the care of his own Safety caused him to raise a Guard atWhitehall, and to receive the Tender of the Service of the Gentlemen of the Inns of Court; and that he looked upon those foreign Advertisements to the Parliament as false, idle, and incredible Stories.


Whilst the King continued at Huntington, he sent a Message to the two Houses, March 15. that he intended to make his Residence for some time at Tork, and desired them to hasten their Succours for Ireland, and not upon any pretence of an Ordinance, to which his Consent was not given, (as by Law it ought) to act against Law, which he himself was to observe, and his Subjects to obey.

Notwithstanding which, the Parliament voted their Ordinance for the De- Wh.tlock') fence of the Kingdom, not at all prejudicial to the Oath of Allegiance, but to Memoirs,?. be obeyed, as being agreeable to the fundamental Laws} and the King's Com- 56> jnands for the Lieutenancy over the respective Counties, to be illegal and void: which was indeed a downright forcible disseizing and ousting of his Majesty of his just Right and Prerogative in the Militia of the Kingdom, and necessary Defence of it, as well as his own Person and Authority.

M. I cannot deny but that you have given a fair account of all the considerable Transactions relating to this great Affair of the Militia, which was the chief Ground of that unhappy Quarrel between the King and the two Houses: yet give me leave to urge what 1 have heard several well-meaning Persons to observe concerning his Majesty's leaving London, and going to York; that it was a great wonder to all prudent Men that the King should leave the capital City, the Place of his and his Predecessors usual Residence, where most '■

of his Friends and Servants were about him, the Magazine of all Provisions both for War and Peace, the Seat of Intelligence and Supplies; and betake himself to the Country, where these things were scarce to be had: and by his leaving the Town, bring great Troubles and Disadvantages upon himself and his Affairs, unless he had fully resolved, before ever he had left the Town, to have begun a War against the two Houses.

And whereas you alledgthat his Majesty could not be safe at Wn ttka.ll, by reason of-the Tumults and Insults of the Mob j I pray tell me why he might Dot have secured himself sufficiently against them, either by continuing atHampton-Court, or else by removing to Windsor; which, besides the distance from London, isa Place of that competent Strength, that he might have continued safe enough there agaiust any Attempts, except a formal Siege, tho the Citizens and Apprentices should presume to come down thitherto petition him with Arms in their hands. Aud admit they had made any Assault upon the Place, they could have done him no prejudice; since at the worst, besides his own ordinary Guards, he might have ordered the Posse Comittttm of the adjacent Counties to come in, and suppress those tumultuous Forces. But instead of this, the King went away to York; and tho the two Houses, as well before he went, as after his An ival there, often petitioned him to return to them, yet he still refused to do it: and so the War began (as they said) by his raising a Guard of theGentry aud People of that County, for theSecurity of his Person, and going to seize the Ammunition at Hull, when no Army was as yet raised against him.

F. I confess what you now urge does carry a considerable shew of Reason with it, and was much argued/Vo andCon by the Politicians of those times; but if we may give the King the liberty (as every Man else ought to have) of judging of the Greatness of his own Danger, and since (as you your self confess) he could not be Me atWhitehall, by reason of the Tumults of the Rabble, it might have been as hazardous for him to have stay'd any where else so near the Town. For suppose the City-Rabble had come down with Arms in their hands toHampton-Court and Windsor, to petition him to grant the two Houses the Command of the Militia, or any thing else they had a mind to, the Pojse Comitatut, you mention, would I doubt have stood the King in little or no stead, and have hardly suppressed them ; since the common People of most of the adjacent Counties had (as appeared by their late Petitions) been as mucli poisoned and prepossessed against the King, as the People ofLondon: So that he might have been assaulted and imprisoned, nay taken in his own House, and / the Parliament might (for ought I know) have taken their parts that did it,' and declared, that they were not to be kept out, or denied those Petitions, which the two Houses had voted to be according to Law, as well as they had done before, when, after a great Concourse of the Rabble coming down to Westminster, they cried out, no Bishops, and gave saucy Language to the King him

Y y y y 2 self:

J£lf: Therefore for the better prevention of any more such dangerous Tulults and Uproars so near his own Palace, and the two Houses of Parliament, e bad directed his special Writ unto the Sheriffs of London to place 4 Guard at/eftjpipst.w. £ut the House of Commons presently voted it to be a Breach of their Privileges, and an Offence of an high nature; and thereupon not only ordered the said Watch to be discharged, but questioned and committed the justices far setting it, as hath been already related. Now what can be a more express Proofs that the prevailing Faction in the House of Commons were so far from suppressing, that they rather encouraged those Tumults, and thereby not only took away the Liberty and Safety of both Houses of Parliament) but also rend red it unsafe for the King's Person to remain in his own Palace?

But as for his Majesty's going down to York, and his farther Proceedings after he came thither, I shall, for his clearer Justification, give you a short account of them. As to the Business of Hull, and the King's taking a Guard at Tork for the Security of his Person, there will be, I hope, little need to doubt, whether the King might not very well justify his Actions at that timevand in so dangerous a Conjuncture: for he now plainly saw that the Parliament had already endeavoured to get the Militia of the Kingdom both by Sea and Land into their own hands, whereby 'they might, whenever they pleased, compel him to do what they had a mind to; it was sure then high time (if ever) to prevent them from seizing all the Magazines of the Kingdom, and to secure somewhat whereby he might be able to manage a defensive War, in case they "wuld proceed to extort the whole Power of the Militia by force. Therefore nee those Arms in Hull were his own proper Goods, being bought long since ar the War against the Scots, he might, 1 think, dispose of them to any use fie pleased, unless it were to make war upon bis People, which be always utterly disavowed and declared against. And therefore for Sir John Hotbam to presume to shut the King out of his own Town, tho he offered to enter it but with twenty Horse, was certainly an Act of downright Rebellion -, for he might as well have shut him out of any Other, nay all the Towns of Englandas that: so that this Act alone could be no Declaration of his Intention to make war against the Parliament, especially after Sir John Hotbam had also summoned the Trained Bands of the adjacent Country to come in to his assistance; besides those Forces that he had already brought with him from London, before the King had done any hostile Act upon that Place: AH which was as plain and open Declaration of War against the King as any could be, unless he had actually discharged the Cannon on the Town-Walls against his Majesty. Therefore upon these Proceedings the King might be very well justified, if he also raised all the MUitia of Torkjhirc to reduce that Place to his Obedience: For if the Parliament by their own Authority could keep the King out of his own Town by force, they might as well have appeared in Arms against him in the open Field, as they did not long after.

M. But I suppose you are sensible enough what they insisted on in their Justification of this Action, viz.. That tho Sir John Hotbam did first keep the King out of Hull by their Order; yet this (said they) was only done to prevent his beginning the War upon them, which they were very well satisfied he designed when he went into theNorth. And this (they fay) was evident by several of his Actions: For else to what purpose did he send the Queen into Hollands with the Princess her Daughter, together with the rich and antient Jewels of his Crown, and divers Pictures of great Value, which were there pawned or sold outright, and the Mony laid out to buy Arms and Ammunition, which she brought over with her not long after, when she landed at Burlington-Bay in Yorkshire sOr to what end else did the King leave his Parliament and go to Tork, and there, under the colour of a Guard for the Security of his Royal Person, raise Forces, which in a little time after increased to an Army? And admitting it to be true, that the Parliament first issued out Commissions for raising of Men, and mustering the Militia for their Service; Ruth. p. 6tf. yet it was not till the King had endeavoured to enter Hull, to seize tho Arms vid. May's that were laid up in that Place, and also till there had been divers Bickerings H'Ji'rj) &«• aQ(i skirmishes in several Counties between the Militia that bad been mustered and commanded by the King's Commissioners of Array, and the like People that were headed by those who were sent by the Parliament to muster and disci

pline them; so that what the Parliament did, they looked upon as done in their own Defence. And had they staid till he had actually raised an Army to have marched np to London, the King might then have surprized them, quite unprovided for their own Defence; so that they could have made no considerable Resistance, for the Safety and Preservation of the Parliament, and consequently of the Liberties of the Nation. And if this had been, as they themselves set forth, it puts a much better colour upon their Cause and subsequent Actions; since that makes it only a defensive Wat against the King, which is justifiable enough upon your own Principles.

F. I will not deny but that when the Queen, and her Daughter the Princess, went over into Holland, with the Jewels and Pictures you mention, it might be done with an intent to pawn them for Mony, incase a War could not be avoided *, but that there was none then designed by the King that Summer, appears plainly enough by the Queen's not coming over With these Arms till the Year following: since otherwise Ihe went early enough in the Spring to have bought those Arms, and sent them over to the King, or returned her self with them the fame Year. And as for your other Objection, That the King designed a War by his going into the North, and there raising a Guard, and endeavouring to seize the Town of Hull, it was the violent Proceedings of the Parliament that forced him to that Resolution for besides that he did not think himself safe any where near London, where the Militia of that City was commanded by its own Officers, regulated by the Parliament, they might, under the pretence of removing evil Counsellors, not only have seized them, but his own Person likewise. And when upon his first Departure from London to Theobalds, they so earnestly pressed him to settle the Militia of the Kingdom by Act of Parliament, in the hands of Commissioners of their own appointing •, what was it but to tell him in plain Terms, that the Forces thereof were no longer to be trusted in his power? For after he had so openly attempted to seize their Members, they no longer now looked upon him as their Friend, and scarcely as their King, any more than in Title j because when once they were possessed of the Sword, that rriain Prerogative of the Crown, they knew that he and all those that adhered to him, Were absolutely in their power: and therefore he had very good reason to tell the Commissioners, whom the Parliament had sent to him to Theobalds for his Assent to the Bill for the Militia, That he would* never trust that Power wholly out of hit own hands, Ho not for an hour*

M. 1 shall not insist farther as to this point \ but pray give me the rest of this Year's Transactions.

F. With all my heart, and I will do it as briefly as I can; but must first farther inform yon, That a little before this, the King himself ofser'd a very good Expedient to compose this Dispute, by a Bill for the Settlement of the Militia for a certain time; wherein he was content to name but one half of the Lords Lieutenants and other Officers, and so leave the rest to the Nomination of the Parliament. But neither would this satisfy them, unless they had the sole Power of it settled in Commissioners of their own Nomination, and that with- WhitLMem; out any time limited ; and to that end they refused the Bill the King had of- A 55fered, and drew up another (that 1 last mention'd) by which they put that great Trust wholly in certain Lords and Gentlemen, whom they look'd upon to be entirely in their Interests, quite excluding the King from having any more to do with it, than if he had been a Duke of Venice: and the unreasonable urging of this Bill proved that Rock of Offence, on which the common Peace of the Nation was not long after split.

As. But pray tell me, What did the King after he came to Tork?

F- I shall observe your Directions. You may remember, that after he had Whiti. ib. been denied entrance intoHull (which has been taken notice of by your self) Rulh./.5<57* be proclaimed Hotham a Traitor, and so returned to Tork, and from thence sent to the Parliament to have exemplary Justice against him, and that the Town, together with the Magazine, should be delivef'd to him but they were so fat from complying with his reasonable Demand (tho he sent more than once about it) that after some Messages which passed between the King and them, they issued out a Declaration, wherein they justified Sir John Hotham's late Action, and set forth the King's Design upon Hull as an Infringement of


{718}

the Liberties of the Subject, and a Breach of the Law of the Land (tho how,: or wherein, had been a hard matter to shew :,) and then they sent certain of their own Members down thither for the better securing of the Town.Hotham being thus backed by the Parliament, presently sent out Warrants in his own NaHlf| to summon the Trained-Bands of the adjacent Country to march in with their Arms for the Defence of that Place \ which being obey'd by several of them, he then pretended he had no present occasion for them: and so having disarmed them, turned them home again. Dugd. p. 94. A little before this, the two Houses not only passed their Ordinance for the Rusli./. 526. Militia, against his Majesty's Consent, and without letting him have any share in the Disposal of it; but also to reinforce it, ilsucd out a stiict Order, requiring all Persons, so authorized by themselves, immediately to put that Order Id. /. 53^. in execution: which was done, notwithstanding the King's Declaration to the contrary; wherein he set forth, that it was illegal, and commanded them not to obey it, since the two Houses had no lawful Authority to make any such Ordinance without his Consent. But this Declaration found no Obedience, for the Parliament-Commissioners had already mustei'd ic, and exercised theTiain'dBands in several Towns and Counties where they were able to do it; of the Success of which you shall hear farther by and by. Dugd. /. 92. Whereupon the King having hitherto had no Guards, but his Gentlemen Pensioners and his ordinary Yeomen, and knowing the Parliament had some time before raised a Guard for their own Security, he therefore issued out his Letters of Summons to the Gentry of Torkjbire to attend him at Tork \ who Rusti. ib. /. coming to him accordingly, he then acquainted them with the late illegal Pro622,624. ceedings of the Parliament; and that he looked upon his Person to be no longer in safety without a greater Guard, and therefore desired their Assistance for that purpose: and this being cheerfully complied with by most there present, they returned home to raise the Forces he told them were necessary for his present Service. And not many days after he farther signified to them by his Letters, that he should take it kindly if they would attend him so armed and provided as they should think fit, for he' apprehended himself in some danger.

This was readily obey'd, and many of them came in to him pursuant to his Summons. At this the Faction of the two Houses were so highly alarmed, that thereupon they immediately voted, that what the King had^done at TorkyWhitl. p. 57. in raising of a Guard, was a Preparation for a War against them, and a Col. 1. Breach of the Trust reposed in him by his People contrary to his Oath, and Dugd. p. 93. tending to the Dissolution of the Government; and that all such as served him therein, were Traitors to the Laws of the Kingdom.

Now by what Law they could judge it so, I am yet to seek, it being exprefly declared by the Statute of the 7th of Edward the First, That it belongs to the * TA* French Xing alone to * prohibit Force of Arms, and all otherForce, when it jhall please him, sendre" DC an^ t0 Pun'P} offenders which shall do contrary to Law \ and hereinevery Subject is to be aiding and assisting.

But to return to the matter in hand: Immediately after this the Faction at Westminster published another Declaration in the name of both Houses of Parliament, w forbidding all Men to attend his Majesty at his pleasure, except "such as were bound thereto by special Service; and that if the Trained"Bands, or any other his Majesty's Subjects, should upon any such Command M be drawn out in a warlike manner, they should be esteemed as Disturbers "of the publick Peace:" wherefore the Sheriff of each County was thereby ordered forthwith to raise the Power thereof to suppress the fame, and to keep his Majesty's Peace according to Law. Dugd. p. 93. And having already voted, that the Magazines of each respective County in England and Wales should be presently put into the power of such Lords Lieutenants, &c as the Parliament most confided in: They also published another Declaration, "highly reflecting on his Majesty's late gracious Messages, "Answers, and Declarations, taxing him with Breach of his Word and Pro"mifes; as also with continued Oppressions and Violations of the Laws, and "with an intent to bring up his Northern Army to awe the Parliament." id. ib. And having so done, they voted farther the next day, " That the King

M (seduced by wicked Counsel) designed to make war against his Parliament;



which (at they pretended) in all their Consultations and Actions, proposed]^ •* other end unto themselves but the Care of his Kingdom, and the Perform** ance of all Duty and Loyalty to his Person."

Nor was this all, but at the fame time they made as great Preparations for a War, as if it had been against a foreign Enemy. . , ^ *

Having managed their point thus far, they go on, and set forth anotmrr lar- Dugi Hist, ger Remonstrance in Justification of all their Proceedings; in which they had 9t> this bold Expression, That now they had broughttheir Work to such an height and degree os Success, that nothing seemed to be lest in their way able to hinder thefull Accomplishment os their Desires, unless God in his Justice should fend a grievous Curse upon them.

Then within three days after they sent a Petition to the King, in the Name u- /• 94* of both Houses, which was deliver'd to him at York; wherein they boldly blamed him for the Breach of his many fair Promises and Pretences, and desired him to disband his Guard, it being a cause of great Jealousy and Danger to the whole Kingdom: otherwise they told him, That they Ihould employ their Care and utmost Power to secure themselves aod future Parliaments, and to preserve the Peace and Quiet of the Realm. And shortly after they published a third Remonstrance, still justifying their former Actions, and farther blaming him for every thing he had done$ and challenging the Obligations of his Oath (upon that equivocal Construction of qua* P^lgtu elegerit) to pass all Bills which they should tender unto him. About this time also they removed the Magazine from Hull to the Tower bf London; and farther voted, That whosoever should lend or bring anyMony into this Kingdom upon the King's Jewels, &c. should be adjudged an Enemy to the State.

M. But had they not a plausible Defence to make for this^ if they were satisfied that the King had raised this Guard hot only upon pretence to secure his Person, but indeed to seize Hull, with the Magazine of Arms there, in order to make war against the Parliament? Arid were not the Crown-Jewels now ready to be pawn'd by the Queen in Hollands to buy Arms and Ammunition for the fame purpose?

F. 1 can easily take off this Objection j for sure it was high time for his Majesty to provide for his own Safety, when the Parliament had some time before began to borrow all the Mony and Plate they could upon the PublitkFaiths as they then called it: And in this the Citizens of London shewed themselves so zealous, that they not only brought in great Quantities of Plate, but their Wives deliver'd up their Caudle-Cups, Thimbles, and Bodkins, to maintain the good old Cause; which their Preachers so highly encouraged, that they denounced all those, who refused to contribute to it, accursed from God, cunningly applying that Text to their present purpose, Curse yeMeroz, &c. I suppose you know judg. t 2$. well enough what follows, without my repeating it.

And farther, as to his Majesty's Guard, was it not as lawful and necessary for him to have one, as the Parliament, who had raised one (as they pretended) for their own Security several Months before? But indeed the prevailing Faction in the two Houses represented every thing they did themselves as very just and lawful; but as if they had been the sole and supreme Power of the Nation, they declared the same thing, when done by the King, as illegal and arbitrary: for he (poor Gentleman) was wholly to submit to their dictates* and lie at their mercy; as appears about this time, by their seizing of Portsmouth, and all other strong places near London, into their hands, together with the Royal Navy, and then passing that strange Vote above-mention'd, upon his Majesty's raising but one Regiment of Foot, and a few Horse, for his own Security.

M. But pray, Sir, tell me what effect these violent Proceedings then wrought upon the Minds of the chief of the Nobility and Gentry of the Kingdom.

F. I thank you for minding me of it; and I must now take notice, that not long after bis Majesty's coming toYork, and continuing there, many of the chief Nobility, as likewise of the Members of the House of Commons, with other Gentlemen of Note and Estates, being satisfied in their Consciences of the Justice of his Cause, from his Majesty's Declarations, and the whole Progress indeed of Affairs, resorted to him at that City; and the Lord Keeper Littleton himself, tho at first he seemed inclinable to the Parliament in the business of the Militia, yet now, having deliver'd the Great Seal to one whom the King had sent for it, he presently after followed it himself, and then had it recommitted to him •, and his coming in at that time very much conduced to his Majesty's Service, as being a Man of great Courage, Parts, and Learning. Not long after his Arrival, upon his Majesty's Declaration that he would not require any ^bedience from such as attended him, but what was warranted by the known Laws of the Land; and that he would defend the Protestant Religion eltablilhed by Law, the Liberties of the Subject, and Privileges of Parliament, against which he would not engage them in any War, unless it were for his own necessary Defence: Thereupon the Lord Keeper, together with the Duke of Richmond, the Marquifs ofHertford, and divers other Earls and Lords, to the number of above forty, subscribed in Writing a Promise, whereby they engaged themselves not to obey any Orders or Commands whatsoever, not warrantable by the known Laws of the Land j and farther, engaged to defend his Majesty's Person, Crown and Dignity, together with his just and legal Prerogatives, against all Persons and Power whatsoever: as also to defend the true Protestant Religion, established by the Law of the Land, the legal Liberties of the Subjects of EngUnd, and just Privileges of his Majesty, and both his Houses of Parliament. And lastly, they engaged themselves not to obey any Rule, Order, or Ordinance whatsoever, concerning the Militia, that had not the Royal Assent. This was dated the 13th ofJune 1642.

M. These were indeed very fair Protestations from Persons of so great Worth and Honour; but pray what effect had these Proceedings upon the two Houses at Westminster ?  Dugd. /.95. F. Why, just none at all; for I cannot but. also observe, that a few days before this the two Houses, being flushed with their Success, and confident of their own Power, sent down to the King certain Proposals for a Peace and Agreement, which were called theNineteen Propositions; by which they not on--'.Jg demanded the whole Power of the Militia, but also in effect the whole Regal Authority into' their hands: unto which he soon after returned a full and clear Answer by theMarquiss of Hertford and Earl of Southampton. Rush. p. 551. To second these Propositions, within four days after they set forth another bold Declaration against his Proclamation of the 27th of May, whereby he had forbid all Obedience to the Parliament's Ordinances for the Militia: now (in opposition thereto) they declared it to be void in Law, requiring all Officers to muster, raise, match, and exercise according to their late Ordinance, assuring them, for so doing, of Protection from both Houses of Parliament. DugJ./>.96,97. "And within few days after this, they sent out an Order, in the name likewfid/. 57. wise of both Houses, with fresh Proposals for the bringing in of Mony and Plate; as also for providing Horses, Horsemen, and Arms, in pursuance of their " late solemn Vow and Protestation, for suppressing the traiterous At"tempts (as they called them) of those wicked and malignant Counsellors, ** who sought to engage the King in the War against his Parliament and "likewise with Instructions for the Deputy-Lieutenants to proceed therein, "themselves first making Subscriptions accordingly that very day:" And about the fame time they sent down divers of the most active Members to execute their Ordinance for the Militia, in the Counties of Leicester., Lincoln, Essex, Kent, &c. who infused into the People strange Apprehensions of very great Dangers, that so they might be ,the better prepared to take up Arms in their defence (as they pretended.) After this they borrowed Mony, Plate, and other things, of the Inhabitants of the City of London on the Publick Faith, for the buying of Arms, and raising of Men, under a pretence of a Guard for both Houses j notwithstanding the King had sent a Letter to the Lord Mayor, Aldermen, and Sheriffs of London,forbidding to give or lend any Monies, or provide any Horses or Arms; since it was only out of Malice given out, that he designed to make war upon the Parliament.

This 1 the more particularly take notice of, for you to observe ho& the two Houses were providing all things ready for a War themselves, whilst the King had as yet neither Men, Mony, nor Ammunition, and was hitherto attended with no more than his ordinary Retinue: So that all the effect his Majesty's Letter produced, was only an Order, in the name of both Houses, That the Deputy-Lieutenants throughout the Kingdom should tender Propositions to the


several Counties, for raising of Horse for the Service of the King and Parlia-
ment: and soon after that, a Declaration of both Houses was issued out,
whereby they justified their raising of Forces, alledging them to be for main-
tenance of the Protestant Religion, the King's Authority and Person, the free
Course of Justice, the Laws of the Land, Privilege of Parliament, &c. *for-
bidding any Officers whatsoever to spread that Paper, (for so they stiledv his
Majesty's Letter) justifying their former Votes, that the King intended to levy
War against his Parliament j intimating that neither his Majesty's Commands
nor Threats could withdraw or deter such as were well affected to the Publick,
from contributing their Mony, Horses, and Plate.
M.' But pray, Sir, what effect had these Declarations?

F. I'll tell you as fast as 1 can: in short, they fully answer'd their Expecta- Dugd. /. 97. tionsi for (having thus deluded the People) large Proportions were daily brought in, and the County of Ejsex alone contributed twenty seven thousand Pounds and upwards, and eight hundred Horse; Hertfirdfiire, eight thousand Pounds, and three hundred Horse, &c as appears by the Calculation thereof, made upon the 20th of August ensuing. The King therefore, taking these their violent Practices into Consideration, and that they had setup Lieutenants and Deputy-Lieutenants in all Counties, declaring his Commissions of Lieutenancy illegal i upon mature Deliberation and Advice (about this time) he issued out his Commissions of Array into all parts of the Realm \ which Course had been antiently used by his Royal Progenitors, for prevention of Invasions, or suppressing of any Insurrections, and approved by divers antient Statutes. And thereupon he set forth a Proclamation, informing all his loving Subjects of the Lawfulness and Use of them, commanding their Obedience thereunto; which Commissions, the Lord Strange., Son to the Earl of Derby\ in Lancashire and Cheshire, the Earl of Huntington, and Mr. HenryHastings his Son, (afterwards Rusti. />. 68o» Lord Loughborough) in Leicestershire, with others in those Counties, to whom they were directed, did first put in execution, but not without great opposition from the Commissioners of the Militia appointed by the late Ordinance of botfr Houses, as you will hear farther by and by.

But hereupon the Members at Westminster published a large Declaration, in Rusti. pi66ii the name of both Houses, representing those Commissions of Array to be con- ad 667* trary to the Laws of the Land, destructive to the Liberty and Property of the Subject; yea (if they might be believed) so full of Danger and Inconvenience, that it would bring a heavier Yoke of Bondage upon them, than any that had been taken away by this Parliament. Their factious Emissaries were in the mean while employ'd in sundry parts of the Realm, to persuade the People that those Commissions were to reduce the Estates of all the Yeomanry of England to ten Pounds per annum, and to enslave them beyond all expression: and lest those, who were thus seduced by these their subtle Illusions, ssiould receive any satisfaction from his Majesty's gracious Declarations, whereby the Uprightness of his Actions, and Candour of his Intentions, might any ways appear, they sent out Orders, strictly forbidding the publishing of them, promising Protection from the Parliament to those who ssiould refuse so to do.

But to make ftort of the rest of this Narrative of matter of fact; after both Houses bad set out two other long and specious Declarations, wherein Rufo. p. 691, they pretended their whole Endeavours to be for his Majesty's Honour and 757Safety, the regaining the antient Laws, Rights, and Liberties of the Kingdom, which had been so much invaded, the settling the Protestant Religion in Peace and Purity, &c. they at the same time tax'd the King with an Endeavour of a Change both in Religion and Government, as also with Breach of solemn Protestations-, and that he had already begun a War against them, being se-! duced by Popissi Counsels, and a malignant Party, who .had design'd nothing but Slavery and Confusion: and that this gave them a just occasion to raise Forces for the Defence of Religion and the Laws of the Land. To which, tho his Majesty publissied full and rational Answers,.yet the Party atWefiminster and the adjacent Counties were so prepossefled with Prejudice, that they had little or no effect. . t \

M. But what was the Issue of these Declarations?

F. Why, from Skirmissies in Paper, they proceeded by degrees to real Hostilities 5 for so soon as the Parliament had prevailed upon a great many Persons

Z z z z of

of the City of London, and eighty Miles about it, to bring in their Mony, Plate, and Horses upon the publick Faith (as they called it) they began therewith to, buy Ammunition, and to raise Men, tho they were not formed into an Army till some time after.

Id./.680,684, in the mean while the War was in a manner begun by divers petty Conflicts *85' in several Counties, between the Commissioners whom the Parliament had or

dered to muster and command the Militia, and those other Commissioners, wtyo acted for the fame purpose by virtue of the Kiug's Commissions of Array, grouslr ded on the Statute of the 5th of Henry the Fourth; which being by both Houses voted illegal, and against the Liberty of the Subject, thereupon happen'd many petty Engagements in several Counties between the Trained-Bands in, those places, which were divided into two different Parties, of the King, and the' Parliament, some of the Nobility and Gentry fiding with the one, and some May'i Hist, with the other, according to their different Interests and Principles: as parti/. 109. cularly inLancastiire, where the Lord Strange, Son to the Earl of Derby, having.

raised great part of the Militia of Lancashire, with au intent to seize Manchesterfor the King's Service, was repulsed by Sir Tho. Stanley, and others, with the loss of one Man on the Parliament's side, which is supposed to be the first Blood that was shed in this unhappy Quarrel; and not long after the. like Contests happen'd inOxfordshire, Dorsetshire, and Warwickshire, and that with various Success, and the loss of some Men on either part.

M. But you have not yet told me what the King hath been doing at HuB. all this while, which seems to have been the main business of this Summer.

F. I shall tell you as fast as I can; but I could not do it till 1 had given you an account of the Success of this great Affair of the Militia. Sir John Hothatu having now provided hisGarison of Hull with Men and Ammunition, the King about the middle of July resolved to besiege that place; and having raised a small Army of about three thousand Foot, and a thousand Horse, out of the M*h}'92,9l> Militia of Tortjhire, marched against the Town, tho but with ill Succese; for so soon as the Governour heard of their Approach, he immediately pulled up the Sluices, and laid all the low Grounds about the Town under Water:- & that all that could be afterwards done, was to block it up, and reduce it by Famine.

But the Garifon in Hull would not let it go so far, but boldly sallying out to the number of about five hundred Men, under the Command of Sir John Meldrum, they beat off the King's Forces, which consisting chiefly of the Country Trained-Bands, presently ran away; and the Horse being thus deserted by the Foot, quickly followed them towards Beverly: but upon the retiring of. the % Parliament-Party, the Siege was again renewed, but was some time after^quite

raised. When the Governour had received fresh Supplies from London, Sir John Mtldrum made another Sally, and killing about twenty Men, and taking about as many more Prisoners, and setting fire to the King's Magazine of ipuapower and other Ammunition, it so discouraged, him, that by. the Advice of a Council of War, he resolved to raise the Siege, and retire again to Tork \ and so the Summer passed, till the King, by a Reinforcement of his. Army, set up his Standard at Nottingham. _

M. But I forgot to ask you what became of the Fleet aTl this time; and how it came to pass that the King made no use of it to strengthen and block up the Town of Hull by Sea?

JF. I thank you for putting me in mind of this, and I will give you an/easy Answer to it. In short, the Parliament had now made themselves masters' of almost the whole Royal Navy, and putting out Sir JohnPemington, Admiral for the King, gave the Earl of Warwick the chief Command of it; who undertook it, notwithstanding the King's Commands to the contrary •, and im* mediately ftiling out with a strong Squadron of Men of War, easily reduced all such Ships-, whose Captains refused to obey his Orders: and in the Downs they seized upon a Man of War, then bound for Newcastle for his Majesty's Service, together with a small Vessel laden with Gunpowder j which, as it proved a great addition of Strength to the Parliament, so it was a great weakning aod disappointment to the King's Interest.


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M. This Action of my Lord of Warwick was indeed very bold and violent, and suitable to the Character of that Nobleman, who afterwards proved one of the greatest Enemies the King had. £ut pray, Sir, proceed.

F. Matters being arrived to this height between the King and the two Houses, they did not long continue in this uncertain State; but after a tedious Debate in the House of Commons, notwithstanding the Opposition of divers moderate Men of their own Party, it was at last voted on the 12th of July, and after- Whitl. />. 58. wards agreed to by the Lords, " That an Army mould be raised forthwith ^ustl* f* 753> "(as they pretended) for the Safety of the King's Person, the Defence of both

Houses of Parliament, and of those who hadobey'd their Orders and Com* "mands; and for preserving of the true Religion, the Laws, Liberty, and "Peace of the Kingdom:" And then they also voted, That the Earl of EJsexshould be General of it, with whom they declared they would live and die. All that in their Votes shewed of any Moderation, was, That they then also voted a Petition to be sent to his Majesty, to move him to a good accord with his Parliament, and to prevent a Civil War; but it was only to this effect, That he should dismiss his Forces from about Hull, Newcastle, and other places, and recal his Commissions at Array, and return nearer to his Parliament, and hearken to their Advice: And that they would then cease those Preparations they had made for their Defence, and would put the Town of Hull in the fame condition as it was before Sir John Hotham brought his Forces into it. But as for their Ordinance for the Militia, they insisted to have it settled by a Bill, in such a way as should be honourable and safe for his Majesty, most agreeable to the Parliament, and effectual for the Good of the Kingdom ■, which signified no more in general Terms than to tell the King, that the Militia ssiould be settled as they pleased themselves. This was not to be done neither, unless the King would leave all Delinquents (that is, all those who had obey'd his Orders) Rush. p. 601. wholly to their Justice, or rather Discretion.

But his Majesty having dispatched the day before, being the nth of July, a Message to them, upon his sending Forces to Hull, requiring that Place to be deliver'd to him, together with his Proclamation; wherein he set forth how ill Sir John Hotham had dealt with him by divers Hostilities committed in and from the said Town; and of the Ships under the Command of the Earl of Warwick, keeping that Port and Passage by Sea to it, in order to seize such Ships as were employ'd in his Service: he summons all his good Subjects in general to come into his Assistance, for the reducing it to his Obedience; and concludes with a Protestation, That he would continue to defend the true Protestant Religion, as it is by Law establissied in the Church of England, the Laws of the Land, the Rights and just Liberties of his Subjects, equally to and with his own just Prerogative; and other things, needless here to be repeated.

But before the receipt of this Message, the two Houses having already pre-id. ^.603. pared the above-mention'd Petition, they resolved to return no other Answer to it than the Petition it self; to which, being deliver'd by the Earl of Hoi' land, Sir John Holland, and Sir Philip Stapleton, the King immediately after returned a very reasonable and solid Answer; wherein he bids them remember, That (which all the world knows) his Majesty was driven from his Palace of Whitehall for the Safety of his Life, and that not till both Houses of Parlia-ld.z-.605. ment, upon their own Authority, raised a Guard to themselves (having gotten the Command of all the Trained-Bands of London for that purpose) without the least colour or ssiadow of Dangers That they usurped a Power by their pretended Ordinance (against all Principles of Law) over the whole Militia of the Kingdom, without, and against his Majesty's Consent; That they took possession of his Town, Fort, and Magazine of Hull, and committed the fame to Sir John Hotham, who had shut the Gates against his Majesty, and by force of Arms deny'd Entrance thither to his Person; That they justify'd this Act, and took Sir John Hotham into their Protection for whatsoever he had done or should do against him: And all this while his Majesty had no other Attendants than his own menial Servants.

That as for his Forces, he ssiould not dismiss them till Hull was again reduc'd to his Obedience j and as for the Commissions of Array, he insisted that they were legal, and which he promises to prove so by a Declaration to be ftortly


publish'd. As to his coming nearer to his Parliament, he said, he hath express'd himself so fully as io his several Messages, Answers, and Declarations, and so particularly avow'd a real Fear of his Safety, upon such Instances as cannot be answer'd, that he hath reason to take himself to be somewhat neglected. He says, he is also sorry, that since upon such manifest Reasons it is not safe for his Majesty to come to'them, both his Houses will not come nearer to his Majesty, or to such a place where the Freedom" and Dignity of Parliament might be preserv'd. And as for the Tumults that had driven him front London, he should be glad to hear of some Examples of the punilhing the Authors of them ; which he knows not how to expect; since the House of Commons had already declar'd, that'they knew not of any such Tumults, tho the Peers had desired, both for the Dignity and Freedom of Parliament, that the House of Commons would join with them in a Declaration against them, which they refused: and notwithstanding the Complaints that he himself had made of things of that nature, yet they had neglected to enquire out the Authors of divers seditious Actions, Speeches, and Writings. Then he proceeds, That as for the leaving Delinquents to the due Course of Justice, his Majesty is well assured he hath given no shelter to any such: But if by Delinquents, such are understood, who refuse to submit to the pretended Ordinance of the Militia, and that of the Navy, or to any other which his Majesty hath not consented to, or those who had published his Proclamations, or had read his Messages and Declarations, (as divers Ministers about London and elsewhere had done) or such as had lent his Majesty Mony in the Universities, or any other places •, his Majesty declares to all the World, That he will protect all such with his utmost Power and Strength, it being no less his Duty to protect those who are innocent, than to bring the guilty to condign Punishment, of both which the Law is to be Judge. And then concludes with (hewing, that much greater Delinquents act on their fide} yet agrees that all Delinquents shall be proceeded against according to the known and unquestionable Rules of the Law.

Having said thus much of the Particulars of their Petition, he then proceeds to complain, that since the sending thereof they had beaten their Drums for Soldiers against him, armed their own General with a Power destructive to the Law and Liberty of the Subject, and chosen a General of their Horse; That Sir John Hotham, besides his burning and drowning the Country, had seized his Wine and other Provisions for his House; and therefore demands, That the Town of Hull, with its Magazines, be forthwith deliver'd into the hands of such as he shall appoint-, That his Navy be forthwith deliver'd into such hands as he hath directed for the Government thereof;the detaining of it, after his Majesty's Directions publilh'd and receiv'd to the contrary, and employing his Ships against him in such manner as they are now used, being notorious High Treason in the Commanders of those Ships: And then concludes with a Demand, That all Arms, Levies, and Provisions for a War, made by Order of both Houses (by whose Example his Majesty hath been forced to make some Preparations) be immediately laid down, and the pretended Ordinance for the Militia, and all Power of imposing Laws upon the Subject, without his Majesty's Consent, be disavowedwithout which the same Pretence will remain to produce the same Mischiefs.

These things being done, and the Parliament adjourn'd to a fase and secure place, his Majesty promises in the Presence of God, and binds himself in all Confidence and Assurance on the Affections of his People, that then he will instantly and most chearfully lay down all the Forces he hath raised, and discharge all his future and intended Levies, that there may be a general face of Peace over the whole Kingdom; and then he will repair to them, and desires all Differences may be freely debated in a Parliamentary way, whereby the Law may recover its due Reverence, the Subject his just Liberty, and Parliaments themselves their'full Vigour and Estimation; and so the whole Kingdom a blessed Peace, Quiet, and Prosperity.

And if these Propositions should be rejected, his Majesty doubts not of the Protection and Assistance of Almighty God, and the ready Concurrence of bis good Subjects, who can have no hope left them of enjoying their own long, it their King must be oppress'd and spoil'd, and must 'be remediless: And tho his Towns, his Ships, his Arms, and his Mony be gotten and taken from bim, he hath a good Cause left, and the Hearts of his faithful People, which, with God's Blessing, he doubts not will recover all the rest. And then his Majesty concludes, That he expects a full and positive Answer by Wednesday the 27th of this Instant July; till then he would not make any Attempt of Force upon Hull, hoping in the Affection* Duty, and Loyalty of the Petitioners; and that in the mean time no Supply of Men be put into Hull, or any of his Majesty's Goods taken from thence.

M. These Offers appear very fair and reasonable; but what Return did the two Houses make to them?

F. I'll tell you presently: To this Answer the Lords and Commons a few days after sent the King a Replication by the Earl of Holland; the effect of ■which was, to let him know that they could not agree to his Majesty's Demands for the Delivery of Hull-, and the Magazine, together with the Navy, or the recalling the Ordinance of the Militia; the laying down of all Arms raised by Authority of the two Houses of Parliament, and adjourning themselves to some other place: because the reason wherefore they took the Town of Hull, with the Magazine and Navy, into their custody; and why they passed the Ordinance of the Militia, and made Preparations of Arms; was only for the Security of Religion, the Safety of his Majesty's Person, Kingdom, and Parliament: all which they did see in evident and imminent Danger. From which, when they shall be secured, and the Forces of the Kingdom shall not be used for the Destruction thereof, they shall then be ready to withdraw the Garison of Hull, to deliver the Magazine and Navy, and settle the Militia by Bill in such a way as shall be honourable and safe for his Majesty, most agreeable to the Duty of Parliament, and effectual for the Good of the Kingdom, as they have professed in their late Petition. And for adjourning the Parliament, they apprehend no reason for his Majesty to require it, nor Security for themselves to consent to it: And then conclude, That his Majesty need not fear returning to London, considering the Loyalty and Fidelity of that City to his Majesty. And as for laying down of Arms, they excuse it, till the Causes that had moved them to take them up shall be removed; and then they say, when this is done, they shall be willing to forbear making any farther Preparations, &c. But of all this they make themselves the sole Judges.

But I cannot here omit, that tho both the King and Parliament commanded these their Declarations, Messages, and Petitions to be printed and published, and also to be read in Churches; yet the latter either mistrusting the Justness of their Cause, or fearing lest the People should receive any due Information concerning the Justness of the King's Cause, and the Sincerity of his Intentions, straitly forbid any Ministers or other Officers from reading or publishing any Declarations, Messages, or Answers sent them by the King; and those that refused to obey, were committed to Prison: as in particular they dealt with Sir Richard Gurney, Lord Mayor of London, who for publishing the King's Commission of Array, was not only deposed from his Office, but also committed to the Tower, where he lay a longtime. .

I have given you the more particular Account of this Petition, and the King's Answer, with tbeir Replication thereto, that you may the better observe how things stood between the King and the two Houses, and who were most in the fault, that they could by no means come to a better Understanding. I shall therefore now proceed further to shew you how they daily grew into greater Acts of Hostility, till it came to that height as engaged the whole Nation in a Civil War, which ended in the Ruin of the Royal Party, the Murder of the King, and the enslaving of the whole Nation.

M. But pray, Sir, before you go on farther, tell me whether, according to your and their Principles, the Parliament had not a fair colour for what they did i for who, said they, can or ought to judge when the Kingdom is in danger, or that the King goes about to destroy the Liberties of the People, and to make War upon the Parliament, hut themselves, the Representatives of the Nation, and sole Judges and Interpreters of what k Law?Now when they had thus solemnly declared their own sincere Intentions, that they did not design to begin any War against the King, but only to take him from his evil Counsellors, and therefore still earnestly besceched him to return again to his Parliament at London; and he refused to do it, but staid in the North, providing Arms, andraising Men for his Guard} why should it be supposed that this was for any other end than to make war upon the Parliament?

F. I grant that this was the Effect, and indeed chief, if not only Reason, ia all their Declarations and Remonstrances, why the Nation should put full Trust and Confidence in whatever they said \ yet the King did not fail in his Messages to them, as also in his printed Declarations, in answer to whatever could be urged upon this Head, to set forth, that the Parliament were not the sole Judges and Interpreters of the Law without himself: for upon that ground (unless the two Houses should be supposed infallible, and not capable of judging or acting any thing amiss) they might engross all the Power of the Kingdom to themselves, and so leave him the empty Title and bare Name of a King, as they had in effect done by their Ordinance concerning the Militia; over which they asserted, that he had no more Authority but as it- was declared, and issued by a,nd from themselves. Now granting it to be according to their own Allegation, that the King was one of the three Estates of the Kingdom (whereas he is indeed the Head of the whole Body Politick) yet even upon this Supposition they could not, nor ought to judge and declare what was Law without him. For supposing him to be but equal with them, it is a known Maxim among Equals, that Par in parent nuUam habet potestatcm, and that in distinct Persons and Powers each of them must be endued with an independent Right to act and judge for themselves: Therefore since they had made the King's stay in or near London unsafe for him, by the Tumults raised and fomented by the Faction in both Houses, could any but himself judge when his Person was in danger, and what were the best means for his own Security? If therefore they thought it convenient several months before to have a Guard assigned them for their Defence against a malignant Party, might not the King have a like Right to a Guard for his Defence, against those that had now got all his Fleet and naval Stores, with his Magazines of Arms in theToiprrand at //«//, into their own hands, whether he would or not? And had by thus violently invading his Prerogative without his Consent, not only put themselves into a Posture of War, but indeed actually begun it, by the Commissions they had issued out for mustering the Militia of the Kingdom, before the King's Commissions of Array were actually put in execution for the fame purpose; but especially after they had avowed and justifiedHotham's shutting him out of Hull, and thereby treated the King as if he had been a publick Enemy to the Nation?

To conclude: If they had their Fears and Jealousies of his Proceedings, why'might they not be mutual, and he likewise have the same of theirs? For when once Men cease treating each other like Equals, by Reason and Persuasion, and come to Force, they are then discharged of all Civil Obligations, and in that state it is lawful,vimvi repellere, to repel Force by Force. Therefore since neither the King nor Parliament could agree upon these Points, and that neither of them were infallible, all they could do was to appeal to the People which side they would take and adhere to: tho as their Condition was very unhappy, whilst they knew not which of these contending Powers to follow or obey, yet certainly those that took part with the King had the Law on their side; since by the Statute of the nth of Henry VII. none can be called in question for assisting the King in his Wars against his Enemies, whether foreign or domestick.

M. But pray, Sir, tell me then why you have not hitherto called the two Houses, and all that assisted them, downright Rebels and Traitors, as certainly they were (according to our old C\\\irch-of-England Principles) notwithstanding they were at first chosen for the Representatives of the Nation? And if the Cavaliers had (as you fay) the Law on their side, then the other Party acting against Law, must deserve that Title by your own shewing.

F. I do not at present concern my self with what they were indeed, but shall decline giving them or their Adherents those hard Names of Rebels and Traitors, for several Reasons: As first, Because I am now to declare my self directly of no Party, but to shew wherein the King and Parliament were both to blame, as certainly they were, as well in the beginning, as carrying on of that unhappy Civil War. And in the next place, I forbear calling them plain Rebels, because the King having made the two Houses, by his own Act, not

subject subject to, any Dissolution or Prorogation, otherwise than by their own Consent, had so far made them independent upon himself, and had given them thereby a Power of looking into and censuring his Actions, whether he would or not; especially since they put such a specious Gloss upon all they did, that it was hard for many well-meaning and prudent Men of the Long Robe among them to believe their Party in the wrong, but that they acted in defence of the Protestant Religion, and the Liberties and Privileges of the Nation, :. ■•' with an Acknowledgment of a Submission to the King's Authority, as far as they thought it according to Law. I shall not call them direct Traitors for ■what they at first did, till the Independent Party in the House of Commons having got the ascendant of the Presbyterians, and also beaten the King in the Field, and had his Person delivered to them by the Scots, not only kept him in Prison, but voted no more Addresses Ihould be made to him, and took the whole Power both Civil and Military into their own hands; and from that Period of Time I shall not stick to call them Traitors: Since noMsn can justify the imprisoning of the King, without committing Treason, by the Act of the 25th of Edwardlll. wherein 1 find no Exception, whether it be done by one or both of the Houses of Parliament, or by any other Persons whatsoever; since they are all the King's Subjects, as well in their politick as private Capacities.

1 shall now return from whence I have digressed, and proceed with the Nar- Rush. ib./, rative of what remains of this unhappy Civil War, till the Murder of the 7<S?« King. The Parliament having raised a powerful Army under the Command of the Earl of Efex (as you have already heard) the King thereupon issued a Proclamation, whereby that Earl and all his Adherents were declared Traitors, yet with Pardon to such as should return to their Obedience within lix days. But this gracious Offer was so much contemned, that so soon as it came to their notice, the two Houses published a Declaration in their Names, con- Id. f. 771. taining many shameful Invectives against his Majesty, declaring all such to be Traitors that were Contrivers or Coontenancers of this last Proclamation of August 9. and that if his Majesty would disband his Forces, abandon those wicked Counsellors, and hearken to the wholesome Advice of his Great Council, they would endeavour then to make him and his Posterity as greai and . rich as any Prince that ever swayed the Scepter. But these were but specious Pretences: for they had already taken the Town of Portsmouth by Siege, toge- V*f* Hifither with Dover-Castle by Surprize; and having now borrowed an hundred &c' IO?* thousand Pounds of that Mony that had been raised for the Service ofIreland (with which the King not long after taxed them in a particular Message) they proceeded to raise fresh Forces, till they had compleated an Army of above thirty thousand Horse and Foot; whilst the King's Forces were as yet weak and inconsiderable, for want of Mony to pay them: till going down into the Borders of Wales, as far as Shrewsbury, and there haviug some Mony lent him, and good store of Plate brought in from divers of the loyal Nobility and Gentry of those- Parts, he therewith raised so considerable a Force, that he was some time after able to give the Earl of Essex Battle, as he was marching in pursoit of him towards London.

But I ought to have first told you, that on the 25th of August preceding, the King had erected his Standard of War at Nottingham, tho he then wanted a compleat Army to encounter the Parliament, till he found means to recruit it, as I have now related: which Particular deserves your notice, since the Parliament declared that this was ^the beginniflg of a War against them ; whereas indeed the War was actually begun some months before on their side, by Hotham's seizing upon and keeping the King out of Hull, and by their reducing all other Towns and Places of Strength into their power, and by their Ordinance for the Militia, and seizing the Forces of the Kingdom into their own hands, ordering a vigorous Resistance to be made against all such as Ihould dare to oppose them, by virtue of the King's Commission of Array, as hath Rush./. 784. been already mentioned. But I cannot omit taking notice, that immediately upon his Majesty's Arrival at Nottingham, he sent the two Houses a gracious Message, wherein he told them, that confidering the many Mistakes •which had arisen by the Messages, Petitions, and Answers, that had passed between him and the two Houses of Parliament, and which might be prevented



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hy some other and nearer way of Treaty; he therefore proposed, that fit . Persons should be enabled on either fide to treat of and conclude all Differences between them, for the publick Peace of the Kingdom, and farther promised all Safety and Encouragement to those that should be so appointed by . the Parliament j and concludes, That if this Proposition should be by them

rejected, God mould absolve him from the Guilt os the Blood which must be spilt.

id. p. 785. To which the two Houses returned a very high and positive Answer, wherein they refused to enter into any Treaty till the King had recalled his Declarations, whereby the Earl of Essex, and both Houses of Parliament, with all their Adherents and Assistants, had been declared Traitors, and that his Majesty take down his Standard; since whilst they remained in that state, they cannot (as they said) by their fundamental Privileges of Parliament, give

Id. p.7%6. him any other Answer. To this the King however soon returned a short and fair Reply: First he protested that he never intended to declare both his Houses of Parliament Traitors, or set up his Standard against them 5. and therefore to remove all Scruples which might hinder the Treaty he so much desired, he promised, so that a Day were appointed by them for revoking their Declarations against all Persons as Traitors for assisting him, he would then, on the fame day, willingly recal all his Proclamations and Declarations, and would also take down his Standard in order to a Treaty. ■ '5

Id. ib. But all that he could obtain from the two Houses, was, That th6y could

not recede from their former Answer 3 and positively insisted, that the King should first recal his Declarations, and take down bis Standard, and leaving his Forces, return to his Parliament, without any thing to be done or yielded to at all on their side; saying, they would not allow themselves to be set in equal Ballance with those Persons, whose Counsels had still prevailed to hinder the Relief of Ireland: and immediately published a Declaration, that the Arms they were forced to take up for the Preservation of the Laws and Liber* ties of the Kingdom, could not be laid down, until the King should withdraw his Protection from such Persons as had been voted Delinquents by both Houses, and leave them to the Justice of the Parliament. *;

May's Hist. y0 this the King, within a few days after, made another Reply; the Sub

p. 128. stance of which was, That he could neither do nor offer any more than he had done already, and that he shopld think himself clear and innocent from any Blood that might be spilt in this Quarrel, praying God so to deal with him and his Posterity, as he desired to preserve Religion, Law, and the Liberty of the Subject, and Privilege of Parliament. The two Houses Return to this was in effect no more than to repeat their former Answer, That whilst the King thinks himself bound iithonour to protect such Delinquents, in whose Preservation the Kingdom cannot be safe, nor the Rights of parliament at all maintained; they cannot enter int&jany farther Treaty with his Majesty^ besides other reflecting Language; too long to be here repeated." .;And I have been the more particular in relating these; last Petitions, with their Answers, • since it will from thence plainly appear, how unwilling the. King was to enter into a State of War with the prevailing Faction .in the two Houses, who would come to no other Terms with his Majesty than an Indemnity for themi selves, and a Power to inflict what Penalties they pleased on .all such ;as had any ways assisted him in this Quarrel.; which, was ,utterly to diseourage and deter all Persons, that mould .go about, for the future to aid or; protect him from their Insults and unjust Invasions .of his knOwn Prerogatives. Thus did they sacrifice the publick Peace of tn% Nation to their, own private Malice and Revenge. • ••:.. ritrr „V. . i

I shall now draw to a Conclusion, and shall but lightly mention the particular Actions of this unhappy War, and what followed thereupon; as the Battels of Edge-Bill-, Marfion-Moor, and Nose by,: and other Places, in most of which the Parliament-Army obtained compleat Victories, under the fortu■>. . nate Conduct of their two Generals, the Lord Fairsaxaui Oliver Cromwel; ttil at last the King, being reduced to the lowest Ebb of Fortunes was forcedto quit Oxford, and fly to the Scotijh Army for .Succour: By whom he being some time after given up to the Parliament, upon such Terms as had been, agreed between them, he was by them confined to some of his own Houses, and upon his Refusal to pass such Bills as they offered, to him, which were in effect to



divest himself of all his Regal Power, they thereupon voted, That no more Addresses should be made to him in any kind \ which was in effect to disown him for their lawful King. And tho during the War, as well as after it was ended, there were several Treaties set on foot for the Accommodation of those unhappy Differences between the King and the two Houses :, yet they still proved abortive, through the predominant Humour of some leading and factious Men, either of the one or the1 other Party, who not desiring to see an end of the War, still insisted upon higher and more exorbitant Conditions than were fit either for the King or Parliament to grant, with any Honour or Safety to themselves j as happen'd particularly at the Treaties of Oxford and Vk-> bridge, at the latter of which nothing would serve the prevailing Parties of both Houses, but the King's absolute yielding up the Power of the Militia, and the total Abolition of Episcopacy, and the Book of Common Prayer, and giving up all those that had adher'd to him, and assisted him in the present War, to be fin'd and imprison'd, and punish'd at their discretion.

But when the Presbyterian Faction in the House of Commons was overpower'd by that of the Independent, which was back'd by Cromwel, and the major part of the Army, by whom no less than eleven Members were forced to quit the House at once, and most of them to fly beyond Sea •, after this, and that the King had been frightned from Hampton-Court, where Cromwel and the Officers of the Army had for a time treated him with all seeming; Freedom and Honour, till he lied to the Isle of Wight in disguise, and there was for some Months kept a close Prisoner: but at last, whilst Cromwel and his Army were gone into Scotland, to reduce the more moderate Kirk-Party there, which under the Conduct of Duke Hamilton had raised an Army (tho with rll Success) to set the King at liberty; then the major or prevailing Party of the Presbyterians in both Houses seeing their. Error, and finding their Cause desperate, resolved to take.this opportunity of treating and making a full and final Agreement with the King upon certain Conditions, which however hard and nnequal in themselves, yet since they were somewhat more tolerable than those that had been before offer'd him, and considering in what desperate Circumstances his Affairs then were, he was obliged to submit to: and had he done so at first, he might have, by a speedy coming upto London, and joining his Interest with that of the Parliament and City, raised an Army sufficient to cope with that which Cromwel was bringing out of Scotland, which he had now reduced. But whilst they were insisting too long upon several unnecessary Punctilio's, the General with his Independent Army, march'd up to London, and soon put an end to the Treaty by a forcible Exclusion of the major part of the House of Commons, which bad voted the King's Concessions satisfactory •, and then the remaining part (not being sixty in all) upon the House of Lords refusing to join with them, not only voted them useless and dangerous, but also kept them from meeting any more. After which it was very easy for them to pass an Ordinance for the Trial of the King, by certain Judges appointed for that purpose, who both condemn'd him, tho he utterly denied their Power, and likewise order'd him (beyond what can be parallel'd in History) to be executed at the Gates of his own Palace: all which he suffer'd (besides many other Indignities) with the highest Patience and Christian Courage, as became the Greatness of the Character he bore.

Now I durst appeal to your self, whether there be any thing in all the Convention's late Proceedings against KingJames that came near this, either in the Original of the Quarrel, the Means of the Prosecution, or lastly^ in the Issue and Consequence of the whole Affair.

M- I must confess you have given a just Account of the Beginnings Progress and Catastrophe of that unhappy Rebellion, which ended (as most of them do when they prove successful) with the Deposition and Murder of the King. And tho 1 do not deny but there is some difference between that and the late Expulsion of his Majesty from the Throne, yet it is not so much as to make it a quite different Case, since you your self cannot but confess, that the Issue of both their Votes have been much the fame \ viz.. the Deposition, or (as you word it) Abdication of the King, and the total Abrogation of his Royal Authority; All the difference I can find between them, is, That in the Case of King Charles I. this waj done when his Royal Person was in their power*, but in that of

A a a a a the the King his Son, it was not voted till after his Departure, or rather his being driven away, since he could no longer stay here with Honour or Safety to his Person; and what they would ha\œ done had he continued here, I cannot without Horrour imagine: but it is well it proved no worse, and that they had not the opportunity of expressing their Malice against his Person as well as his Government. Therefore I desire you would now show me (since you undertake to justify all that the Convention has done in relation to the King) why they might not as well have condemn'd him to death (as the Rump Faction did his Father) as have passed that Vote, That by his Br$ach of the Original Contrail between the King and People, and by hit deserting theKingdom, he had abdicated the Governments and that the Throne was thereby become vacant: since I always thought, that it had been sufficiently declared for Law by the Statute of the 12th of Charles the Second, which attainted the Regicides of his Father,1 That neither the Peers, nor Commons separately, nor yet both of themtogether in Par-' liament, nor the People coXettively or representatively, have any coercive Power over the Personos the King. And certainly this was a fundamental Law of the Land from the very beginning of Kingly Government in this Island, notwithstanding the contrary had been preached up, and writ for, by the Leaders of the Commonwealth Faction; and much the like Doctrines have been also spread abroad, and justified of late in seditious Pamphlets and Sermons, tho veil'd over with? subtle Distinctions to blind the Eyes of the People. Therefore pray let me fee how you can defend this part of the Controversy.

F. I shall observe your Commands; but first give me leave to premise, that tho I will not justify the Deposition of Princes, yet I very muck doubt the Truth of what you fay, that it was always a fundamental Law of England^that the Estates of the Kingdom, or Parliament, had no coercive Power over the Persons of their Kings, or couldpass any Judgment on their Attiens: for that it was not a fundamental Law from the first Institution of the Government, 1 think I have already given you several Proofs from Bratlon, and the Mirror of Justices, and shewn what was looked upon in those Times to be the Power of the Estates of the Kingdom, as to the restraining thearbitrary and illegal Aftions of the King himself, his Queen, Children, and great Officers of the Crown; and what the Englifh+SaMons Witttna Gemots did in relation to their Kings, upon any notorious Breaches of the fundamental Laws of the Government, or a general Violation of the Liberties and Properties of the People contrary to Law; a* you may remember formerly i-n the Instances of King Sigebert, and Edwy, and? others in theSaxon Times: and that the fame was held lawful,, and put rn practice after the Norman Conquest (as you call it) is as plain from what twa several Parliaments did in the cafe of two-Kings, viz.. Edward and Richard the Second} which Proceedings were also justifyM and confirm'd by the next subsequent Parliaments (as you may find in our Statute-Book) by the Acts thereto be seen in the first Year of Edward the Third, and first of Henry the Fourth; tho I will not justify those Actions neither, nor affirm that Parliaments have the fame Power at this day, it having been by them disclaim'd by so many subsequent Statutes.

M. I cannot deny that there are such Statutes as those you mention; but if you please more nearly to consider them, you will find that they were rather made to excuse and indemnify the Persons-that had a hand in rebelling against*, and deposing those Princes, than at all-to justify the Actions themselves; for in that Statute of- the first of Edward the Third, you will read it is only there enacted and declared, lt That none that came over with the King that now is-, ** and the Queen his Mother, or none other that went with the said King, in "aid of themj to pursue their Enemies, in which Pursuit the King his Father M wot taken, and put in ward, and ytt remaineth inward, shall be impeached, *' molested, or grieved* in. Person) or in Goods, in the King's, or in any other **i Court, for the said Facts* nor for the Death of any Man, &c. from the Day "of the Arrival of the present King, to the Day of his Coronation." And much to the fame effect is that Act of Indemnity pasted in the first ot Henry, the Fourth, " That none shall be impeached or punished that assisted that King "to pursue and take Richard the Second and his Adherents." So that these Acts were only Pardons to such Offenders, but do no way declare those Actions to be legal, or any ways justifiable by the known Laws of the Land, or fundamental damental Constitution of the Government. And as for tha Law at present, you know it is exprefly declared by the Act df the 12th of Charles the Second, That not only the Command of the Militia of the Kingdom is his Majesty's undoubtedEighty but that neither of the two Houses cart pretend to the fame \ nor can levy any War, offensive or defensive,against his Majesty. So that I think nothing can be more plain and express, than that the late Proceedings against his Majesty have been altogether unjustifiable, and contrary to Law.

... E. I do not deny that what you now fay is in a great part true, and our written Laws do'no ways allow any Resistance, or Imprisonment of the King) bat however, there are divers Actions, which, tho ,not justifiable by the strict Letter of the Law, yet being for the publick Good, and Preservation of the Government, and original Constitution thereof, and in cases of extreme Necessity, when done indeed, ought to be justify'd and pardon'd by subsequent Parliaments, as 1 have already sufficiently made out: But since we have so fully discoursed of, and, as I thought, sufficiently settled that point at our ninth Meeting, I fliaU say no more on that Subject now. And as to .what you fay ift "relation to the late Proceedings of the Convention against the King, I have likewise so fully answer'd all that you could alledge to the contrary at our eleventh Conversation, that I need not here make repetition ) only give me leave to add, That if the two Houses of Parliament have no power to censure* and pass Judgment. Upon the notorious illegal Actions of the King and his Ministers, the Institutions of those great Councils are altogether in vain i since it was acknowledged by King Charles the First, in his Answer to the Nineteen

Propositions already mentioned, That Parliaments had sufficient Power to restrain Kings from Xyranny: but this is always to be thus understood, provided they efxercise this Power rightly, and as they ought, for due and weighty Causes, and not vent their own private Resentments and Revenge upon the King or his Ministers, for slight and trivial Occasions. -1^:1. 'v M. Admit 1 should grantit, yet you and your Party would gain little by that, since the Law still supposes the King can do no wrong i and all Acts thac are illegal' are not to be iobked upon-as his, but those evil Counsellors and Ministers that pfefumed'tb'xlb them,' and who are alone to suffer for them,; the Person of the King being always'faffed and unpunishable: and if it hath at some times bappen'd otherwise in point of fact, it is by no means to be justify'd, or drawn into example. But indeed this Revolution is'.in one thing viry singular, and without any Example, viz.. That whereas in all former Depositions of Princes, the Indignation of the People has fallen more severely on the publick Ministers and Officers, by whom any Actions, supposed to be illegal and arbitrary, -had been done, than on the Person of the King himself; as any one that reads the Histories of Henry the Third, Edward the Second, atfdj'Richard the Second, may observe: while in this Revolution that has lately bappen'd, the King himself hath been almost the only Sufferer; and his evil Counsellors, and corrupt Ministers and Judges, have all escaped, so much as any publick Sentence or Punishment: which either shews, that what they had done was justifiable' according to Law, or else that'the Convention was very partial to those Offenders^- ■■-»»-■■_ .... i , «.':

But' to conclude, and return to the point in question: If the Long Parliament-could not legally call King Charlesto any account for what he had done contrary to Law (as your self seems to grant) 1 desire you to shew me any sufficient Reasons; why it should be treasonable for theLong Parliament to pass a'Vote, That the King's raising a Guard at Yorky was in order to make war upon' the Parliament, and'a' Breach of the Trust reposed in him, contrary to bis"Coronation-Oath, and^Tieiiding to the Dissolution of the Government: and yet that the Convention's To ting, That King James the Second, by the Breach of the Original Contract between him and his People, and by withdrawing himself out of the Kingdom, had abdicated the Government, should be looked on as legal, and according to the just Power of Parliaments. So that you must acknowledge, that tfte Long Parliament were invested with a Power of censuring the'King and his Actions, and calling him to an account for them j and if they had; then the Case of King Charles the First, and King James his Sqh^will be much alike. But if the Long Parliament had not that Power, neither ought the Convention to have exercised it over the Actions of the pre

, Aaaaa 2 sent sent King. And pray, Sir, tell me why the Rump Parliament should be guilty of Treason, for appointing Judges to try and condemn King Charles j and the Convention should be innocent, who have as good as deposed King James, by declaring him to have abdicated the Governments and that the Thr.ont is therebybecome vacant: since I suppose, that this Convention, tho of all the Estates of the Kingdom, meeting and acting yvitbout the King's Writ, hath no rnore (if so much) Authority as that fag-end of a Parliament which murder'd King Charles, and yet met at first by his W&J . ,.'

F. 1 hope, Sir, then, if I can give a satisfactory Answer to these your lat Questions and Objections, you will comp bver to my Opinion, la the first place 1 own, and 1 think you your self must grant, that Parli^rfe^ts have a Fewer of impeaching and punishing such evil and corrupt Ministers, as sliafl presume to act any thing contrary toM^gna Chart*, and °xhe)known Liberties' and Privileges of the Nation, tho they did it by the King's express Commandsi since they are presum'd to know the Law, and either ffiouldhave refused to accept their places upon unjust and unwarrantable Conditions, or else have, resign'd them, rather than obey'd t*. King's illegal Orders..! Bat it is yes a' higher Aggravation of the OfTeuce, as (as some of ©un Judges pf late) they accept of those Offices on condition to give their Judgment in point of Law, ohty

as the — '«--« J:—■ C'* thp AiPEprftire herween n< barely lies in thn

[graphic]

true Ser

or if he do any in me v^,... . .. ..,

grant indeed, That if the King never, executes any Function of the Government in his own Person, he cannot be said to do any wrong, but only shaft His Ministers and inferior Officers that act by such.Orders: yet what if the King himself will act ministerially, and will take upon him in Person, to seize those that are innocent of every thing but bisarbitrary Designs; or what if he will himself put the Broad Seal to a Pardon of ;a notorious Enemy tom Government, that stands impeach'd by the Commons of England; cananyene' lay that this is not a doing wrong in his own Person? wW,if rhe will tarn his Chancellor, Chief Justices, and other judges out of their Places, and will not admit of any new ones, but such, as will sacrifice their Consciences, • and blindly promise to act and give Judgments according to whatever he [hall please to set up for Law? Qr>luppose he do in his own Person ign and issue-out Orders for a standing Army in a time of Peace, not to defend and preserve, but to enslave the Nation: or suppose that bVing petitioned to, and desired by some of his Peers, who are Confiliorii Nati, to abstafn from making Tush notorious Breaches upon the Constitution, he should immediately order,,under his own hand the Petitioners to be clapt qp in the Tower.5 can tne Governors ftf that place judge whether the fault those'Lords stand committed for be Tfeafon, or only High Misdemeanor? Or lastly, suppose the King ihail either refuse to call a Parliament to redress these Grievances j or if he goes about to do it, (hall evidently in his own Person closet and.corrupt the intended-j^enibers of it, what must be done in such .cases, when ill other Remedies, fall? And how many of these Acts and Breaches uponthe'Law the'iate King.',ftas4p his own Person guilty of, I shall not now particularly enquire into, having-jlready spoke'sufficiently tfpon these Points ?, And l-wifh you,! or any body efle, could excuse him from thesejpersonal Violations. .1 would farther ask yop,,yv!hal is to be done when he will hearken to no Advice -and Remonstrances that!ttaD be offer'd to him, to make him sensible that soch Proceedings strike at the very fundamental Constitution of the Government? I fay, what Course ffifdl f&e •whole Nation, or Parliament, as its Representative!, take in such cafes, where the King will remain incorrigible, and will not retract what lie hath dpae,-» wpair those Breaches he hath made' upon the Law's? r' -> „

M. 1 know no other Remedy, but still to -apply themselves to him by Pehtion i and if Prayers and Tears will not do, then to observerJr^w's Rulf, Ti*£ if she King' will not be amended, 'txpe&et L>eum ultorem- 'fj;i. I

F. Truly I expected some such sort of Answer from you to these Quests Bat pray tell me, -whaitrif the King isresolved frill to .prove inexorable,, a<¥ openly to declare by all his Words and Action?, that he will [govern .arbitra~ily by a standing Army, and.doth pat it in practice accordingly.; do^ou^l■sow the People no Remedy in that cafe,. out on}y. Flyers .and Tears?


{733}

What satisfaction is it to me, my Prince's expecting the Vengeance of God for the Breach of his Coronation-Oath? Will that prove any Alleviation of the Subjects Misery, that their Prince will be damned in another World, when perhaps he himself may not believe any such thiqg as a Life after this? For he may be told by his,Priests and Jesuits, that it is a commendable and meritorious Action jn him \a make himself absolute* and to trample all the Laws of his kingdom under his feet; since otherwise he can never set up the Romish Religion, which upon their Principles is the only way to Salvation, and that it is lawful for him to use any means to compass it. So that unless you will suppose all Governments ought to be absolute and arbitrary, at the Will of the Iking, I do not see any means left the Subjects bow to secure themselves from ibe 'rankest Tyranny. . j • , ,,

flf. To deal jplajflly wish youj it is still my firm and steady Opinion, That if £hp worst Cafe which yon have here put Ihould happen, it is better for the jpeop^e to rely upon God's Providence, what shall become of their Persons, Re&gjon, and Liberties, than to provoke his Wrath by any Rebellion, or Resistance of the King or his Officers: since I do not think that even the Defence fifber of our ftejigion, or of those Liberties and Privileges which have been granted by our former Kings to the Subjects of this Nation, can ever be counterbalanced by a Rebellion and long Civil War j for besides the present Calamities which it .certainly brings along with it, it commonly ends in the Destruction of thfb King's Person, if not the Expulsion of the Royal Line and Family i as we hay* seen lately in the Flight of the Queen with the Infant Prince, ^hic^was follow'd with that, of the King: rather than which I think any things •even Persecution it self for Religion, were better to be endured by us, than a Rejipedy worse than the Disease. .•.-,

 , F'.i. am sorry yjOUjand t-hfljve discoursed so long, a$d so often about these matters, without being able to make each other any whit wiser, and that you ,«f$-dall so lobstinajte id your first Opinions \ 1 must therefore beg your pardoja jthjaÆ (iTcajinqtibe of yoatMJMnd, since our Principles are so different j you supposing that no Resistance of a tyrannical illegal Power, if carried on under the Kame and Authority of a King, can be in any safe lawful for the People or Subject*, Jet what wiU be the Consequence j whilst 1 (who believe the People HW^re1^pt made qr ordain'd by God only for Kings tp use them as their Slaves, .or jmeiie Urut;es^ ,am persuaded, that for the Preservation of their natural and ,ciy§l}Libei}tjes ,a;ud Properties,, confee'd on them by the very Constitution of the Government, not by the mere Grace and Bounty of former Kings, as some wo£ yoiir Party affirm .(and therefore of which the whole People can be the pnly j>j;op§r Judges tbey may not only take up Arms, but drive but such a Tyraat ,that,sp invades them, if they are able of themselves to do it4 ox else may beg ;ih,e instance of a#y other neighbouring Prince, that: will be so generous as to,«n4e^%ke their,Ganse. Otherwise 1 can see. no Rejngdy, but that all Kings, howii^|t^4 soever, may make thpmjelve.s not;only absoiqte Monarch?;, but their People pas absolnfie $la,ves as (tbqse in Turk} or Mvscwy,- And 1 am so much a Pa.^ronLos J^ibe^, ,^haj; Tltfannoit think any'of ;the iConsequences you mention, Jpfai/f a, long^Cjivjil'. War,,;pr the Expulsion of .a tyraanipl Pjtiince, can be -Morif than §on-(latit Slavery, Ignorance, and Poverty, which are the certain ^Q»n^q|iieslcesAofi.your jiypothefis, of leaving all Brinces to dilpoft of th.e jfotes, LiAfesjjapd Libpr#es of all their Subjects afcytheir pleasure. And thfcul cown^at W>q-r,; and jtbe,:lpss of thousands of iLivjes, may happen in ithe.dejfeaqe of them, yet this State 4s.tiather sometimes, tflibe prefer'd (if ic cannot .berpvqjded) jpap,the otberi as any Man, I think,,jwpuld, if .it were put itto 3hi%^hqice,,r3^jir have a Fever .qnce in se*en Years,;and ,come off with Life, n^han jaqguishjttfldfr an AgufiW Cpn,foropoion for the like spacepf Time, and 3dift a^Jast^ singe; that Sajting.pf the.Bqettis very, true, Nan tstH*tre, fed v«* ifaflnK And now thisParallel .seems very just, j without makiog .any partitas ^pplicatip a 10s ,|t- jt^-.u ■■ ...;{:•«: -.'morL-o \ •nLir.i.t ■ .,,,^tTo!retqrn,sio,thematter in band.5 to which, ;wbat .1 ,baye.ii»st now laid* L,J^srb^fip paly. ^tieiiminary i l.flullas freely owaon *the ottvr jide, that it may .^hpppen, thatja whole Peqple, or the major; past istf, them, pr,the .Estates of . ^hen^tngdom, .or(Parliament, or at kast.the,rna)pn part of ,them» may enteri$»tP unjust Prejudices against the King i and by pasting too hard a Censure on sal bU his Actions, may, by the Artifices of factious and ill Men, be drawn into Re* bellion, and to take up Arms against him without any just Cause: and in this cafe, since there is no superior Power between him and his People, he only can be Judge, and the Appeal must then be made to God, and the Consciences of all his good Subjects, that remain still untainted, and will be ready to assist in maintaining his just Rights * or he may also in such cafes implore the Assistance of some neighbour Prince, provided he take care that the Auxiliaries he shall afford him may not prove so powerful as to make themselves Masters of the whole Kingdom and Nation•* as we often find in History to have been the Event of such foreign Assistances.

These things being premised, I think it not 'at all difficult to answer your Queries: As first, why the two Houses of Parliament could not justly or legally call King Charles to an account for what he had done contrary to Law } and secondly, why it should be treasonable for them to pass a Vote, that the King's raising a Guard at Tork was in order to make war upon the Parliament, ia breach of his Coronation-Oath, and contrary to the Trust reposed in him. And yet that the Convention's voting that King James the Second, by the Breach of the Original Contrail,and by withdrawing himself out of this Kingdom, had abdicated the Government. ';

Now to answer your Queries in order, I shall let you know, that, in the first place, 1 utterly disavow all coerciveTower in one Of both Houses of Parliament, to call the King to an account for any Actions committed by himself, or his subordinate Ministers or Officers, and therefore all the Proceedings of the Rump-Parliament against KingCharles were absolutely void and illegal* not only from the Incompetency of the Authority, they being but the fag^efld and remainder of the Members of that Parliament, and without any concurrence'Of the third Estate, or Peers of England-, who (tho at that time excluded- by force, yet) have always had a joint Power with, if not superior to that of the Commons, in all such cases of the highest importance: but indeed because both Houses are the King's Subjects, and call'd by his Writ, and have sworn Allegiance to him, therefore they could not pass Judgment upon him as a Criminal, since he was still their Sovereign j neither could they proceed against him as an Enemy, because by the whole Narrative of these Transactions it appears, that he was unwillingly drawn into that unhappy War, and acted only-upon the Defensive, in maintenance of his just Right of the Militia, and other Prerogatives of the Crown, which a prevailing Faction in both Houses would'then have deprived him of against his Consent. ,ki:v Itivjlj .

This being so, the other part of the Question is easily answer'd, why the -Convention's Proceedings against KingJames should be justifiable, and not those of the Rump-Parliament against his Father* since the Instances are by no means parallel* for the Convention did in no wife take upon them to judge <x pa& Sentence upon the King, as one accountable to them for his Actions: for "they only gave their Vote or Censure upon what he had done, a~s that which bad already divested him of all Right to the Crown, and in effect imply'd ^' absolute Abdication of the Government. And I have already proved in our former Conversation, that when a King plainly declares by his Actions, tha'rP'fie will no longer govern by Law, and refuses to amend the Breaches that have been made by his subordinate Ministers he thereby himself becomes answerable for those Miscarriages. And tho I grant his Person is still unaccountable and unpunishable, for want of a superior Power to condemn him ,c yet he may so • carry himself towards his People, in visibly going about by force to subvert the Religion and Laws, that upon his obstinate Refusal, or wilful putting himself out of a Capacity to amend those Breaches he himself-hath made, Witleast his inferior Ministers by his Order, he may thereby forfeit arid lose5 t/he very Crown it self, and all Right to govern any longer: but still (as T hive - formerly said) this wholly proceeds from his own exorbitant Actions, and not from any coercive Authority the Parliament can.pretend to Over his Person. Thus for example, if in the State of Nature, a Husband carry himself so cruelly towards his Wife, as that she can no longer live in safety with bid,-she may lawfully quit his Bed and Family, and provide for her own safety somewhere else * after which, 1 doubt not but in that state the Bond of Matriniony is thereupon dissolved: and this not from any Authority the Wife has over

the the Person of her Husband, but from the great Law of Nature, of Self-Preservation; or else it would lie in the power of any Husband to tyrannize, nay to murder his Wife whenever he pleased, and (he could have no Remedy left to provide for her own Safety. The case is so plain between the People and a tyrannical prince, that I think it needs no farther insisting upon, than to apply what I have now said in general to King James himself in particular: And I shall but lightly touch upon this Head, having at our eleventh Conversation fully proved, that the King's late Actions and Proceedings, mention'd in the Prince of Orange's Declarations, especially that of his assuming to himself a Power of dispensing with all Laws, were Breaches of the Original Contrail between the King and his People : and*that there is such a Contract, I think I have sufficiently proved at our tenth Meeting \and if so, what the King hath done tended to a Dissolution of the Government, and not being redressed, gave the People a Right of Resistance by Force to such illegal Judgments and Commands. And tho I grant, so long as there are any hopes left that the King would desist from, and redress those Violations, he ought not to suffer either in his Person or Dignity, but only those that assisted him in those exorbitant Actions, since the King's Person should always be sacred and unpunishable \ yet when he plainly declares, that he will not redress them, and puts himself out of a Capacity of doing it, by leaving the Kingdom without offering any Satisfaction for'what he has done, nay, doing his utmost to leave the Nation in a state of Anarchy and Confusion: if this be not an implicitAbdication of the Government, when the King thus absolutely refuses to govern any longer upon those Terms and Conditions on whkh he has received the Crown, I know not what can be reckoned one, unless you would have an express Abdication or Renunciation of it, ■which I suppose cannot be expected in this cafe. And if the Convention of Lords and Commons upon their Meeting have passed their Votes that it was so, it does not therefore follow that their bare voting so, can make it so, if it were not so before. However, you must own that it is a solemn Declaration of the Sense of the Representatives of all the Estates of the Kingdom, and ought to be acquiesced in, and submitted to by all the Subjects of it, unless you can (hew me better Reasons to the contrary than you have hitherto done. So* that after all your aggravating Expressioasj this Vote of theirs did not at all touch the Person of the late King, nor yet deprive him of his legal Authority, fince be had already done sufficient to forfeit and divest himself of it: And if Se hath happen'd to be the greatest Sufferer in this Revolution, and that his evil Counsellors, corrupt Ministers and Judges, with other inferior Officers* Save escaped Censure and Punishment, this hath fallen out from the Iniquity of the Times, and the great multitude of Offenders who have been engaged in- the fame bad Cause, and partook of the fame Guilt with the Papists themselves: And you know very well in what manner, by the tacit Consent of two prevailing Factions, those Offenders came to escape. Bat 1 hope the Votes of the Convention will however stand as a perpetual Landmark and Boundary, towarn all subordinate Officers for the future not to break in upon the Liberties and Privileges of the Nation, lest a worse thing befal them.

But to come to your last Objection: The Incompetency of Authority in the Convention to censure the King's Actions, which because they did not meet upon the King's Writ, you will needs fancy that they had no more Right to sic or act than the Rump-Parliament, when all the rest of the Members were secluded, and the House of Lords voted useless. This is indeed a great mistake, and which you could not have fallen into, had you consider'd as you ought, that the People and their Representatives, the Estates of the Kingdom, were before Kings in this Nation, who often owed their Crowns to their Election, as 1 have already proved at our fifth and twelfth Conversations j to all which I did not find you had any thing considerable to return by way of Answer: and that upon all manner of Emergencies and Revolutions of Government, the Estates of the Kingdom, or Parliament, have always exerted their Authority, either without any Writ or Summons from the King, or else have fat after the Kings who call'd them had resign'd their Crowns, and abdicated the Government. And to give you Instances of this> I shall begin with the great Council of Parliament at Running-Mead, consisting of all the Nobility and People of England, in which MagnaCharta was first granted: and tho it was not call'd by King John, yet it was by him acknowledged for a lawful Assembly of the Estate* of the Kingdom, as you may fee in Matt. Paris: and pray also consultMatthew of Westminster, and Walsingham s Chronicle \ and you will there find, that upon the Decease of KingHenry the Third, the Estates of the Kingdom met in a Great Council at Westminster, by their own Power and Authority, and there solemnly recognized his Son Edward the First (who was then, as they supposed, in the Holy Land) his Title to the Crown, and order'd him to be proclaim'd King, when as yet they knew not certainly whether he was alive or dead. And when his Son Edward the Second was deposed in Parliament, and had also solemnly resign'd his Crown to his Son Edward the Third, the fame Parliament that had deposed the former King, sat and acted without any frelh Summons under the new one, and there passed several Statutes, as you find inRastal or Keeble. And the like happen'd upon the Deposition and Resignation of Richard the Second; the same Parliament that deposed him sat some time after under Henry the Fourth, and there were divers Statutes passed (as there were also in the first Parliament of Edward the Third) which are accounted good Laws at this day, without the Confirmation of any subsequent Parliaments, as you may fee likewise in the Statute-Book, and Parliament-Rolls themselves. So that when our Great Council have once met on such absolutely necessary Occasions, it is not the Authority that calls them, but their own inherent Right and Power from, the Constitution of the Government, that gives sufficient Sanction to their Proceedings. 1 did, as I remember, at our last Meeting but one, slightly mention these two last Instances upon another Occasion; but since they now serve for roy present purpose, pray pardon me if I take the liberty to put you in mind of them again.

M. I confess you have given divers specious Instances of the independent Power of Parliaments upon any great Emergencies and Revolutions of Government; but yet I have very much to except against most of them. As for the first Instance, of the Great Council at Running-Mead, I have long since told you my Opinion of it, that it was a riotous and unlawful Assembly, met there against the King's will; and tho I am not for abrogating the GreatCharter, since it has been so often confirm'd by the voluntary Sanctions of so many succeeding Kings, yet I must freely tell you, I think it was obtain'd by mere Force and Rebellion at first. Indeed your next Instance of the Assembly of Estates that met to recognize Edward the First, is more to your purpose; but then I pray consider, that this was in a case of absolute Necessity, in the absence of the King, and for the publick Peace and Quiet of the Nation, to settle the Government in good hands till his Majesty's Return. And admit I should grant such a way of proceeding may be good for the doing of a necessary and lawful Act; yet it does not therefore follow that a Convention shall have power to make Laws Without a King, much less to censure his Actions, and actually depose him. Therefore give me leave to tell you, as you your self cannot justify the two Houses of Parliament in their deposing King Edward and Richard the Second, so neither can their sitting and acting under their Successors be defended, according to the strict Rules and Customs of Parliament; because they were summon'd by their Writs to meet, consult, and all: with the King that call'd them, and none other; and when he either resign'd the Crown, or deceased, their Authority was likewise at an end.

F. I shall not only answer the Objections you have now brought against my Instances from matter of fact, but shall, I hope, confirm them with such fresh ones as you will not be able to answer. First then, as to what you object against the Validity of the Great Council at Running-Mead, I think it will not answer the end for which you bring it; since I have already, in our ninth Conversation, sufficiently vindicated the Legality of that Assembly: And give me leave now to add, that both the Legality of that, and the Charter then granted, were sufficiently asserted by King Henry the Third's confirming, or rather new granting of it in the first Year of his Reign, by the Advice of his Uncle William the Mareschal, Earl of Pembroke, and Guallo the Pope's Legate; who plainly found, that even those Noblemen and Gentlemen that took part with the young King against Prince Lewisof France, would never be contented till it was done. And tho the fame King Henry often confirm'd this Charter, as did also his Son Edward the First, yet it was not because their first Confirmations tions were not valid and sufficient, but from the want of their being observed as they ought to have been, by reason of the frequent Breaches that had been made upon it, either by those Kings themselves/ or their evil Counsellors and corrupt Ministers; from whence, upon every notorious Violation of it, the Estates of the Kingdom were not satisfied till they had, by giving the King fresh Subsidies (as you will find mention'd at the end of those Charters) procured new Confirmations of that Charter, as also of that of Forests; and those often fortified with dreadful Excommunications denounced by the Bishops against all those that should for the future presume to infringe them: yet all this was scarce sufficients so prevalent were evil Counsellors in those days (as well as ours) over our Kings, and so great Temptations did they find often to violate them.

As for what you fay in mitigation of my Instance of the Great Council that met without any Summons from the King, to recognize King Edward the First, you have granted as much as I would have which is, That such an Assembly is justifiable, when the publick Necejsity and Peace os the Nation require it: Nor do I my self maintain or desire any more; but then I do not give the Estates of the Kingdom a Power upon every turn to meet, whether the King will or not. Yet certainly, upon such great and extraordinary Occasions, they had, and still have such a Power to assemble, and act as a Parliament, and to make Laws too, notwithstanding they were never call'd by the King's Writ at first. Besides the Precedents of the first of Edward the Third, and first of Henry the Fourth, already mention'd; and against which you have nothing to urge, but the Law and Custom of Parliaments at this day } which does not hold neither, since even in our«own Memory (as I told you once before) the Convention that recall'd KiagCha/les the Second, passed the Act of Oblivion, and made many other Statutes. And tho it is true that they were confirm'd by the following Parliament, yet that those Acts had been gopd without any such Confirmation, appears by several private Acts which were then passed, without ever being confirm'd at all, and yet are still acknowledged to be good Statutes at this day.

And that this independent Power of the Great Council of the Estates of the Nation, is not peculiar to England, but has also formerly been in use in other neighbouring Kingdoms, whose Princes are now looked upon as absolute Monarchs; I have already proved * from several Instances both in France, Spain, * Vid and other Countries: as in particular that Great Assembly which met upon the loZm Death of King Charles the Fair, to determine to whom the Right of the Crown then belonged, whether to our Edward the Third, or Philip Count of Valo\s, who both laid claim to it j and upon solemn hearing of the Commit miffioners of both the Competitors, the Estates adjudged the Crown to the latter as right Heir, by virtue of the Salique Law, tho further removed in Blood than King Edward from the King that last deceased. The like Decision 1 also told you the Estates of the Kingdom ofCastile made between the pretended Daughter of Henry the Impotent, King of Castile, and his Sister Isabella,who was afterwards married to Ferdinand King of Aragon; when upon a solemn hearing of the whole matter, the Estates adjudged the Crown to the Princess Isabella, and set aside a Daughter the Queen had by a Favourite, as illegitimate. And I have again mention'd this piece of History, because it comes nearest to the present Case, concerning the Prince of Wales; for who shall judge of his Legitimacy, if there appear any thing sufficient against the Reality of his being born of the late Queen, but the Parliament, or Great Council of the Nation? which I am sure you cannot as yet accuse of any Partiality in this Assair.

M. I am satisfied, from the Authorities you have brought, as well as the Reason of the thing, That in case the Title to the Crown is any way disputable, that the Great Council of Estates ought to judge of it, in all Kingdoms where there are any such Assemblies. But 1 think the Cafe of this young Prince's Legitimacy to be so clear and indisputable, that there can be no just occasion for any such Trial. However, if there should appear any such Necessity, I suppose,the King and Queen, his Parents, would not be against the putting the Decision of this Matter to a Free Parliament, consisting of those of the true Church of England, and not of Whigs and Fanaticks. And as for the Power of the Estates to meet on other necessary Occasions, such as recognizing theif lawful Prince,, I shall not oppose that neither; tho I do not thereby allow them



{738}

an anlimited Power of deposing Kings, or of patting the Crown on What Head they please, to the prejudice or the right Heirs by Blood.

F. I am glad you and I are so far agreed in the main; tho I cannot but ob* serve, that you are under a very great Mistake, in limiting the Power of the Estates of any Kingdom, only to the bestowing of the Crown on those you call the Right Heirs: for pray tell me, who can better judge of this than they? And might not the Estates ofFrance, if they had so pleased, have adjudged the Crown to King Edward, as well as to Philip of Valois; and had not then all the Subjects of that Kingdom been obliged to acknowledge him, notwithstanding their pretendedSalique Law? But the Estates of the Kingdom, or Parliament in England, have a higher Power; for it is enacted by the Statute of the nth of Henry the Seventh (which I have already cited, tho on another account) That no onewhatever, who shall serve the King for the time being in his Person, or JhaS yield him true Allegiance for thefame, either by serving him in his Wars, or elsewhere, Jhaii suffer any Attainder or Forfeiture for so doing. Where you may easily take notice, that the Intent of this Statute is to indemnify the Subjects of England, who shall assist aud serve the King for the time being (let his Title be what it will.) Now how can the Subjects of this Kingdom distinguish or judge who is lawful King, or has the best Title to the Crown, but by the Judgmentand Recognition of their Representatives, the Estates of the Kingdom? Nor is there any difference in this Cafe between an Act made by a King de Jure, and one that is only so de Fa&o; for you can't deny that King Henry VII. before his Marriage with the Princess Elizabeth, was any other, and after her Death he could be no better: and upon your Principles likewise, Queen Elizabeth her self had no more than a Parliamentary Title; and yet (he made an Act in the thirteenth year of her Reign, That the King or Queen, with the Consent and Authority of Parliament, might limit and alter the Succession of the "Crown as they thought fit; which Act I have prov'd to you, at our last Meeting but one, to be still in force: and 1 now repeat it, to refresh your Memory, and let you see that this Revolution, and the present Limitation of the Crown, is justify'd by both those Statutes; and does not only differ in the Original and Prosecution of the Quarrel, from the Civil War begun and carry'don by the Long Parliament, but also in the Issue of it; that ending, not only with the Deposition and Murder of the King, and the setting up of a Commonwealth, but with the Expulsion of the whole Royal Line, and the Destruction of the Church and Episcopal Government; whereas it is now (God be tbank'd) quite otherwise: for tho King James be declar'd uncapable to govern, yet the Convention has thought fit to place the Crown on the Heads of his Son-in-law and Daughter, whom they look'd upon to have most Right to it. And as for the Church of England, all things remain in the fame State as they were in King Charles's Reign, and 1 hope will continue so, or rather be reform'd for the better: and therefore I think 1 have sufficiently justify'd the present Revolution from your Objections, and shewn you, That an old Cavalier^ or true Son of the Church of England, may very well approve and comply with this present Change and yet at the same time keep the 30th of January without any Hypocrisy; and may also still maintain, that the cutting off King Charles's Head was a horrid Murder and Treason in those that were guilty of it.

M. As for the Conclusion of your Speech, I wholly agree with you, but not in the Premises : for tho the Crimes the Nation is guilty of in one Cafe, are not so horridly cruel and barbarous as in the other -, yet certainly no good Subject can justify the taking up Arms against the King upon any pretence whatsoever, much less presume to declare, That he hath violated (I how mt what) Original Contrail, and that the Throne thereby is become vacant;and then placing any one therein, but him whose Right it is: since I look upon the Oath of Allegiance of perpetual Obligation upon all those that have taken it, not only to his present Majesty, but the Heirs of his Body begotten; so that you may keep the Thirtieth of January as much as you please: yet I doubt you cannot excuse those of your Party that have been the Contrivers and Abettors of this Revolution, from much the like (tho I will not fay the very fame) Crime, with that of the Rump-Parliament. And as to what you fay concerning the present flourishing Condition of the Church, and your Hopes ot the farther Reformation of it, 1 wish 1 could see it; tho I cannot now expect i*. as things are like to go; since some of her Members have, by the taking up Arms, and joining with the Prince of Orange., given the Enemies of our Religion a great advantage over them. And what will become of the Church, when the Archbishop of Canterbury, and all other conscientious Bishops and Clergymen, shall be deprived for not taking the Oath to the present Government, I dread to think j for I can foresee nothing but a most fearful Schism, like to be the Consequence of that Act.

F. 1 thought I had sufficiently proved in our former Cdnversations, that taking up Arms in defence of our Religion and Civil Liberties, when no other Remedy could prevail, was not unlawful, according to our Constitution. Secondly^ That there is such a thing as an Original Contrail, however ignorant you are pleased to make your self of it. Thirdly* That by the Abdication, or Forfeiture of King James (call it which you please) the Throne did really become vacant; and that it is legally filled by their present Majesties* That the Oath of Allegiance is of perpetual Obligation, I also grant} but it is still on condition, that the King shall likewise truly keep and perform that part of the Contract contain'd in his Coronation-Oath, without going about to alter and invade our Religion and Civil Liberties by an armed Force, and arbitrary Power: and if this were not so, we should owe it wholly to the King's mere Favour and Goodwill, if he did not make us all Papists, nay Turks attdSlaves, Whenever he had a mind to it. These are indeed the Principles 1 have all along maintains, and I hope I shall never have occasion to be ashamed of them; therefore since it now grows late, and that I find it impossible to make a Convert of you, and bring you over to my Opinion, I will bid you good-night, and part as much your Friend as before: for I am satisfy'd of your Sincerity, and that it is only Prejudice, or a mistaken Zeal, and too scrupulous a Conscience, that hinders you from coming over to our side.

M. I thank you for your kind Thoughts of me; and in Return can only tell you, that I think your Error proceeds from much the fame Causes as you suppose mine does, only I wish I could add that of a too scrupulous Conscience: however 1 am obliged to you for the Benefit of this Evening's Conversation, in which I must own I have received a great deal of light in many things which I was before ignorant of \ and so I take my leave, and shall continue your real Friend and Servant.

FINIS


An Alphabetical
INDEX
OF THE

Chief Matters containd in this 

BOOK; which also, explaining the Old 
Terms relating to our Constitution, may serve 
instead of a Glossary. 

A. 

ABbesses represented m Parlia- 
ment. p. 280,327 

Abbot, Archbishop against 
Arbitrary Power. 5

Abbots, horn chosen antiently. 257 
How their Numbers in Parliament came 
to be le fieri d. 397 
Bound to appear in Parliament by their 
Tenures, tho they held not in Capite. 

402,438 

Abdication of King James II. \ustifsd, 

570, &c. 

The different Senses of the Word, and 
the Convention's Sense of it at volun- 
* tary in him, justify'd. 601 

It devolved the Government upon the 
Nation's Representatives. 645 
Abel'i Desire to Cain, Gen. 4. 7. not 
meant of Cain's Absolute Power over 
him. 13, &c. 

Nor of his Hereditary Right to Govern- 
ment. 53,54 

1%e place wrong translated. ib. 
Abjuration-Oath debated. <s89,&c. 

Abjur'd the present, but not the suture 
Right of the Rival to the King in be- 
ing. 603 

Abraham made War and Pedce, as 
Master of an independent Family. 

26 

Absolute Monarchs don't treat their Sub- 
jetls like Children. 81,83,85,0:0. 
Are only Masters of Slaves, or great 
Work-Houses. i25,&c. 
Adam not universal Monarch. 9, &c. 
His Power Oeconomial. ib. & 10,11, 

12,14»i5i34 
Why he did not punish Cain for mur~ 
dering Abel. 15,29 
Adam'* Marital and Paternal Power, not 
the Origin of Civil Government; the 
Absurdities of the Affirmative. 17, 

i8,&c 

His Commission for Dominion, not pe- 
culiar to himself, but in general to 
Mankind. 28,29 
Other Arguments for his absolute Power 
answer'd. ib. &. 55,&c. 

Alfred'* Laws made by Consent of Parlia- 
ment. 2f3 
Hts Will about the Succe/ston. 520 
Aldermen of several sorts antiently. 258, 
266, &c 287 

Alii de Regno, who. „ 207,404 
Alii Incolæ, who. 399 
Alii Laid, who. 321,335 

Alii 

Alii Universi, who. 35*7373 
Allegiance, what. 652,60:. 
Due to a King de facto, and is reci- 
procal with ProteGion. 681 —688 
Allegiance, natural, what, and whether 
it has any Tie upon Conscience, ib. 
Alodarii, who. ^59^7^ 
Ambition and turbulent Humours of pri- 
vate Men, not so dangerous to a 
Nation as Tyranny. 132, &c 

St. Ambrose defended by the People a- 
gainst the Emperor. 202 
Angli, from whence. 250 
Av6gc«rivn K-nV/s, 1 Pet. 2. 13,14. what. 

179 

Antiquiores Regni, who. 311 

Arbitrary Power encouraged, when. 4,$ 
Not God's Ordinance. 77,116 

Mischievous. ib. 
Archbishop of Canterbury and other 
Bishops antiently chosen in Parlia- 
ment. 410,411 
Desire the Prince of Orange to take the 
Government upon him. 574 
Aragon, its Laws of Succession. 6.8 
Its Kings limited. 504 
Aristocracy among the Jews before Kings. 

69,70 

Aristotle's King. 92 
Arms defensive justify'd. 7,8,460, 461, 

&c. 

Arnisæus for Resistance of Kings, and in 
what Cafes. 499 

Arthur Duke of Britany not made King 
of England, tbo next Heir. 604, 
605—612 

Murder'd by his Uncle King John. 612 
Articles of the Church of England not 
for Passive Obedience. 204 
Association by Lords and Bishops at Lon- 
don, to stand by the Prince of O- 
range. 575 
Athanasius for defensive Arms. 201 
Attainders in Parliament against Here- 
ditary Kings. 658 
Augustus made absolute by the Romans. 

92 

Authority, legal, given and taken away 
by Law. 669

B.

Baronagium Angliæ, Regis, suura, ter- 
ra; suæ, What?' 310,31 i^oS 

Barones Comitatus not Tenants in ca- 
pite. 53<£ 
Minores, What? 3* ',312,319,354 

Barones here before the Normans. 275 
What they were. 284—^—310 

Barons by Writ, their Origin. 329 

Barons, Peers, when calPd to Parliament. 

367,&c. 

Baron-Court. 534 
Birth, a supposititious one. 568 
Birthright did not entitle to Civil Go- 
vernment, but to Priesthood, among 
the Patriarchs. ■«-;*- 6^,63 
Bishops fit in Parliament by Right of their 
Baronies. 377 
They and Abbots obliged to do Knights 
Service by William I. 53 1,532 
Formerly deprived by King and Parlia- 
ment, from whom they derive their 
Sees and Jurisdictions. 689,694, 
yV" 695, Ccc 

This Deprivation allow'd by Canon 2. 
■ . ;, ib. 

Some of them judged of, and dtsobeyd 
James lid'* Commands. 462^ &c. 

562 

This justify'd. $99 
They did not think him the sole Legis- 
lator. 4.67 
Some of them treacherous to K. W. III. 

642 

Bilhopricks, their Origin in England. 

694,695- 

Bishops Sees, not capable antiently, as 
such, of sending Members to Parlia- 
ment. 429 

Blessing given to Jacob was only a double 
Portion of his Father's Estate. 62 

Bockland, what. 533 

Bodin, his wrong Notion of filial Obe- 
dience. 38 
And of our Constitution. 49j> 

Bodies Natural and Political, bow they 
differ. 5 81 

Boors in Sweden had their Deputys in 
Parliament. 439* 

Boroughs had Representatives in our Saxon 
Councils. 270, &c. 

And since, even tbo they did not hold 
in capite. 415—422 

How many antiently sent Members to 
Parliament; Reasons why so many 
new ones made in one Reign, and so 
few in another. 27 
Their sending Members did not depend 
on the Sheriff's Writs, for they were 
sent to their own Magistrates. Such 
as were maliciously charged by She. 
riffs, had Redress in Parliament. 

Some


{743}

Some great ones obtain'd temporary 
Exemptions; others sent Members 
by Prescription. Mr. Prynn'f mis- 
takes about this matter. 428—435 
Bracton and Fleta not for the Absolute 
Power of our Kings. 215 

Their Definition of our Laws. 2i7,&c. 
Own the Peoples share in the Legislature. 

. 218,233 

The Maxim, Quod Prineipi placer, 
Legis habet vigorem, explained, ib. 
Their Opinion of the King's Power and 
Resistance to him. 500— 5 op 

Their true Meaning vindicated by other 
Quotations from them. 513 

Brill, a small Tmn in the Netherlands, 
first revolted from the Spaniards. 

114,483 

Burgesses, none eleQed but such as were 
free of, or aftually resided in Bo- 
roughs or Cities, before Henry the 
Vlllth's time. 433 

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CAin forfeited hvs Right of Succession j 
his Sons no Hereditary Monarchs. 

5M2 

Calvin not for Passive Obedience 209 
Canterbury Province, a distinQ Eccle- 
siastical Body from that of York. 

695 

Caraealla'* Tyranny. 114 
Castile, its Laws of Succession. 67 
Castles and Forts in England antiently 

defended by Tenures. 460 
Cavaliers were not for making Charles U 

arbitrary. 706 
King Charles I. misled by false Principles. 

90 

Cbarg'd by the Parliament with first be- 
ginning the War, 484 

His Violation of the Laws so great, that 
had he persisted, he might have been 
dethroned, but be redressed Griev- 
ances. 701,707 

Hot so favourable to Papists as J. II. 

703 

Parliament demands the Militia from 
him. ib. 

'Presbyterians not for ruining him and 
the Monarchy. ib. 

Those who took^ Arms for him did not 
believe him to be irresistible, nor de- 
sign to make him arbitrary. 706 

Controversy betwixt him and the Par- 
liament, differ d from that betwixt 
James H. and the Convention. 706 

Remonstrance of the Commons. 707 

Parliament's Proceedings upon the Talk 
of bis Design to bring in foreign 
Troops. 708 

His Attempt to seize the five Members ', 
with their Proceedings and his upon 
it. 708—710 

Bishops and Popish Lords withdraw from 
the House; then the Lords join'd the 
Commons in demanding the Militia. 

Bishops protest against the Proceedings 
of the House, and are imprison'd for 
it. ib. 

Petitions from the Country against them 
and the Popish Lords. ib. 

Lords and Commons petition the King 
about the Militia of the Tower; bis 
Answer, and their Proceedings upon 
it. 712 

He accompanys the Queen and his 
Daughter in their way to Holland. 

ib. 

Refuses the Parliament's Petitions for 
fettling the Militia 5 upon which they 
vote the Kingdom to be put in a pos- 
ture of Defence. 713 

Petitions from the Country about the 
Danger from Popery and Slavery, ib. 

The Parliament's Declaration to the 
fame purpose, with their Demands, 
and his Answer and Declaration; 
with his Reasons for going to York. 

713—•710' 

His Message to both Houses. 71 $ 

The Parliament vote their Ordinance 
for defence of the King to be accord- 
ing to Law, and the King's Com- 
mands for the Lieutenancy to be il-' 
legal. ib. 

He raises Guards at York, and de- 
mands Hull, but was refus'd. 710" 

His Designs in that Demand. ib. 

His ConduS in that matter debated, 
with his Proposals about settling the 
Militia. ib. 

Proclaims Hotham a Traitor, for de- 
nying him Entrance into Hull, and 
demands Justice of the Parliament. 

ib. 

They justify Hothara, command their 
Ordinance about the Militia to be 
put in execution, tho the King de- 
clar'd against it; Upon which he rai- 
sed more Guards at York, which the 
Parliament condemn'd. 718 

They rested on the King's Message, pre- 
pare for War, sent him a Petition, 
charge him with Breach of Promise, 
and publish a third Remonstrance. 

719 

Many of the chief Nobility and Gentry 
went to him at York. The Par- 
liament sent him nineteen Proposi- 
tions, and go on with their Prepata- 
tionsforWar. 720,711 

TbS 

The King sends out Commissions of Ar- 
ray. The Parliament declares them 

 illegal. 721 

And issues several Declarations. ib. 

Skirmishes betwixt the King's Parties 
and theirs. 7*2. 

He miscarries in the Design to besiege 
Hull, and the Parliament make them- 
selves Masters of the Fleet, andseiz.e 
some os the King's Ships. ib. 

Vote the raising of an Army. 723 

Petition the King to return, which be 
refuses. 724 

the King answers their Petition, and 
makes new Offers, which they rejetJ. 

ib. & 725 

Papers publish''d on both fides. 726 
The Parliament can't be call'd Rebels 
or Traitors, tho the King declared 'em 

so. 72<S,727 
They publish a counter Declaration, and 
take several Places. The King ends 
bis Standard at Nottingham, fends 
a Message to the Houses for a Treaty, 
which they refus'd, unless he would 
recal his Declarations, which made 
them Traitors, and return to the Par- 
liament, which be refus'd. 727,728 
Treaties with him miscarry, and why. 

. 729 

King Charles I. own'd our Government to 

be atnix'd Monarchy. 241 
That the Parliament has a Power to 

restrain Tyranny. 4% I 

That the Law was the Measure os his 

Power. 465 
And that bis Power of the Militia was 

from the Law. 466 
Relation of the Beginning, Progress, 

and Issue os the War against him. 

693,&C. 

Proceedings against him not justify'd by 
* those of the Convention against J. II. 

ib. 

King Charles II. by his Aft of Oblivion, 
pardon'd those that.fought by bit Fa- 
ther's and b'vs own Commission, as 
well as those that fought against them. 

453 

The Atts of the 1 $th of his Reign, Cap. 

. 6. and of the 14s h, Cap. 3. about 
the Militia, and the Unlawfulness 
of Resistance in any Cases whatever, 
never intended to set up an Arbitrary 
Power. 456 

Tho those Ails renounce coercive, they 
did not renounce defensive Power. 

473 

The fame Parliament oppos'd bis dis- 
pensing Power and standing Army. 

474 

Charters, those call'd Great not the King's 
Concessions, but affirmative of the 
Common Law, and were ratiffd by 
the Suffrages of the People, therefore 
caU'd Statutes. 136,328 
That of Henry I. 5'7>547 
And those of Stephen and King John £ 
confirmed the Peoples Liberties, ^vj* 
Chester, County Palatine, had a Parlia- 
ment of its own, which tax'd them. 

360,370 

Children not under absolute SubjeUion to 
Parents. 33,&c. 
May use Self-defence against them. 

39,&C. 

Objecliont answer''d. 42,&c. 
Their, stavish State by some of the Ro- 
man Laws. S8,&c. 
Chimney-Mony illegally coUeSed by James 
II. and Lord Rochester's arbitrary 
Orders.  600 

Chrestus mentioned by Sueton in the Reign 
of Claudius, not meant of our Sa- 
viour. 180 
Christ did not alter the Nature of Civil 
Government, nor tale away the Peo- 
ples Right of Self-defence. 157 
His InjuncJions to Sovereigns and Sub- 
jeSs, no Warrant for Tyranny and 
Arbitrary Power. 1 5 8,15 9 
Ht* ordering Tribute to be paid to Cx- 
far, no Warrant for such a Power. 

160,161 

His commanding Peter to put up bis 
Sword, no Argument against Resis- 
tance. 162,itfj 
True Reasons of that Rebuke, ib. & 164 
How far his Sufferings are a Pattern 
for Imitation. 167,&c 
Christianity not the only establish'd Reli- 
gion in Constantine'j time. 170 
St. Chrysostom defended by the People 
against the Emperor. 202 
His Opinion of Non-Resistance. i82,&c. 
Lord Churchil'i Letter why be left King 
James. 567 
Cities and Boroughs bad Representatives 
in our Saxon Councils. 27o,&c. * 
Those in foreign parts that did not bold 
in capite, sent Members to Dyets. 

439 

Civil Government defin'd. . 125 
Inconsistent with Tyranny. ib. 
Civil Power ordain d ly God for the Peo- 
ples Good. 104 
In what fense deriv'd from God, and 
in what from the People. 555, &c. 

~*r - . 5S9 

Not now confer'd by God on Princes im- 
mediately, but by the People. 560 

Clarendon. 

Clarendon, Earl of. his Opinion of the Those by colour of Law, or Opinion 6f 

Reason why Princes gave good Laws the Judges, vastly different. 469 

and Privileges to their Subje&s. 84 Commissions, Military, to dispossess a 

Confuted. \ . "> 85 Man illegally, may be resisted, tho 

His .Opinion of I Sam. 8. 18. 126 headed by the King. 471 

Claudius, an Account of his Government. Common. Council was among the Jews, 

,<•".»• 180 - when Judges were wanting. 72, &C. 

Clergy's quitting their DoSrines of Pas- Commons of England by Knights, Ci- 

five-Obedience and Non-Resistance, tizens, and Burgesses, whether one 

one of the Causes of King James'x . of the three Estates before the 49/6 

going away. 2, & 3 . of Henry ///. or the iSth of Ed- 

Clergy succeeded to Heathen Priests in 'ward I. from p< 265. to the endof 

our Parliaments. 256,393, &c. the eighth Dialogue. 273, 275, &c. 

Clergy inferiour, oppressed by James //. Before and after the Conquest. 282 

600 285,293, 296—^-298, 302, 6cc. 

Their Temporaries seized, and their 3'3> 337>&c. 341——351,380, 

Persons put out of the King's Pro- 399. 403, &c. 407,41-0—M-415, 

teSion. • ., 402 „ 417 i.435, 438, &c. 

Clergy inferiour, antiently in Parliament. Commons, in King John'j.Parliament at 

397 — 399>40' Marlbridge. r-. 378, ote. 

But not these three or four hundred Have always been Members of Parli- 

Tears. . -^ 398 ament since the Conquest as well as 

Not taxable by the King or Pope without before. . i.JV. •■. 390 

their own Consent. 398 Their Antiquity in Parliament. 391 

Never tax'd without the Consent of their . Have a Right by Prescription to be 

Procurators in Convocationf till the summits d to Parliament. 414, 

timeof Charles II. , ib. <. v.rW-n &c. 

Since which they have had Votes for They petition'd Henry V. asserting their 

Knights of Shires; Difference be- vl J antient Right, that no Law be made 

twixt their Summons to Convocation without them. \  «j 419 

and Parliament. .. 4°° The fame allow'd by the King and 

Agreed that the King should be excom- - Lords. :■• i \' 420 

tnunicated, if be broke the Charter. v A like Petition to Edward II. agreed 

. 1 ,' .•.*>. 505 - to by the King and Lordt. ibid. 

Clergy inferiour, bow they lost their . Their Protestation to Edward III. Ri- 

Rigbt of coming to Parliament. 400, chard //. and Heary/P". 420 

&c. iCommonwealths, the Oppression in them 

Clerici terras habentes. 322,324 >v not comparable to that in absolute 

Clerus in Parliament, who. 310, 312, ( Monarchies. . . 82 

1 393, 39774°3i &Q- Their Origin. 97 

Close-Rolls in the Reign of King John | Commonwealths may be destroyed by 

and King Henry III- most of them their own Subjetts, if Kings only be 

t4£. . .. 372 Jure Divino. ' S 99 

Coercive Power disowned by the nth of They, as wiU as Kings, derive their 

 Charles II. how to be understood. Authority from God. 557 

s \\' , 459 Commune Concilium, what. 3»2>3i6 

Lord Coke'i Definition of a Parlia- Communitas Anglix, or Populus, the 

ment, and a Legistative Power. whole Parliament. 274, &c. 287, 

c}^ 2l8 . 29O 298 

1 Approves the resisting of Edward 1. Sometimes means the Commons only, 

}' > .., . ■ . 449 i'. from 298 303 

Colloquium, and not a Parliament in Communitas, La Commune, and La 
the 12th of Edward /. 382, &c. Comraunalte taken differently. 340 
The like that of. Edward ///■ at Wind- But when mentioned after Comites, Ba- 
cs. 1 for. 387 >-.r rones, or Proceres, always stgni- 
Several Councils of this kind in that fiesthe Commons. 341—351, 379, 
Reign. 388 -1-411, &c. 
Comites, Peers^in what„fenfe the King's Conge d' Elire to chuse a Bishop, can't be 
Companions. .:>■ . ... 246,254 - . refus'd* ,\   . • " ■ 411 

Commendatii, who. 276 Conquest unjust, gives; no Right to the 

Commissions Illegal are mid and may be Conqueror. :%t . 87,552 

resisted. 460,464,473 ..... . ..V- 

C c c c c Coa- 

Conquest, tbo just, over a free People, 
gives no Right without their Cort' 
sent. 559 
Conquests in Europe, few of them by ab- 
solute Monatcbs. 124 
How Conquests were divided in England. 

270 

Unjust; when they may be lawfully en- 
joy* d by the Conqueror's Heirs. 519 
Conspiracy against William J. by Nor- 
mans and English- 552 
Constables may resist the King's Officers, 
when they exceed their Commission. 

470 

Convention and Parliament did not differ 
at first, and settled the Crown with- 
out Summons from Kings. 64.6 
May become lawful Parliaments, tbo 
not summon'd by King's Writs. 647 
Convention at the Revolution in 1688. 
justify'd. 583»73S 
Debates m it. 584 
Had no reason to enquire what was be- 
come of King James, nor to receive 
h'vs Letters. 585 

Their Declarations justify^ 597,600 
And their Meeting without the King's 
Summons. 619 
'they neither could nor were obliged to 
enquire into the Pretender's Birth. 

63* 

"shew voting the Throne vacant, ju&i- 
f/d. 6^1,6^ 
They exercifd no more sower in crown- 
ing King William and gueen Ma- 
ry, than others had done. 642 
Convocations of several forts. 393 
That of 1610. for Divine Right of 
Monarchy and arbitrary Power. 5 
That of 1640. condemned by Parlia- 
ment. 6, 204 
Their Decrees not binding till confirm d 
by King and Parliament, and even 
then don't bind but at agreeable to 
Scripture. 6 
Copyholders, antiently Viliani. 369 
Cornwal, most of its Boroughs hold of 
its Earl, yet fend Members to Par- 
liament. 416 
Coronation-Oath made void by Film er. 

The anUent one explain'd. 514 
Councils, great, caU'd by Kings to do 
Parliamentary Business, a Stretch of 
Prerogative. 235 
Councils, great, two forts of them. 313, 

^ 315, 33i,33*>334> 335> 339 
That m the 9th of William I. a Par- 
liament, and not a Synod. 407 
Concilium, or Curia Regis, what. 316, 
3»75 320, &c. 332, &c. 
The dttferent stile of them. ib. 

Councils of Tenants in capite, ?only 
sometimes call'd on occasion of IVar^ 
&c. 397 

Councils, General or Provincial, none 
met without the States of the Realm 
till after Henry /• - 204 

Councils, Great and Privy, confouided 
by Writers. 234 

County-Court, formerly considerable. 534 

Court of Tything or Lath. > -■ 5 34. 

Contfcmier, or customary Laws of Nor- 
mandy derived from England. 543, 

&c. 

Cowel'i Interpreter for arbitrary Power. 

Crown of England does not surge all 
DefcGs. - > ••': 51 

Was partly Hereditary, partly Elec- 
tive, till Edward /. and even since 
it has been in the power of the Par- 
liament to declare who was lawful 
King. 671 

Hereditary, the it don't go always to 
the next in Blood. 673 
Tbo not now Elective, vs stiU held by 
the Original ContraO. 509,514 

Crimes, not punifh'd by Death in Rome, 
nor in England for a time. 558) 

Cruelty and Tyranny, no part of a Fa- 
ther's or Prince's Prerogative. 35 

Curia Baronum, or Parliament, may 
curb the King, 21$ 

Curia Regis, what. 256,257 

Customs, illegally exafied by James //. 

(for 

D. 

DAnes and Swedes till of late reserved 
to themselves a Power to tied Kings 
and dethrone Tyrants. 443 
David did not think a defensive War a- 
gainst Saul unlawful. T45, &c. 
Decennaries, or Tytbings, a Danish and 
Saxon Law. 548, Sec. 

Declarations of Kings in Council for re 
info: ting Laws, 'mistaken for mak- 
ing Laws by their own Authority. 

233 

Declarations against Resistance m- 14 

Car. II. cap. 3. explain'd. 457, 
460, &c 474 
Declaration for Liberty of Conscience by 

James //, illegal. 598 
The Design of it. 636 
Declaration by the Prince of Orange 

justify'd. 640, &c.' 

Deeds, sealing of them deriv'd from 

the Normans. 533 
Denmark, its Kings formerly deposabte 

for Tyranny, k 215 

Desp> 

Despotical Power, what. 78 
Not the Rule of Government. ib. 
Not safe for Pr'mcesy nor lov'd by 
SubjeCls. 87 
Dethronement of Princes, when lawful. 

53i 

That of Edward 11 and Richard Ik 
never condemned by Parliament. 

445 

Diets, German, how constituted. 166 
Dispensing Power taught by Filmer a- 
gaintt Law. 90,91,485,589,590, 

&c. 

Instances of it in the Cafe of Sheriffs 
and Judges, && answer'd. 595 

* • 600 

Dissimulation taught by Filmer. 94 
Divine Right pretended to, shakes the 
Thrones of aU Kings. 94 
Division of the Earth after the Dispersion 
at Babel, no Plea for Hereditary 
-  Monarchs, or Patriarchal Govern- 
ment. 57, &c. 
Difference of Chronologers about the 
time of that Dispersion. ib. 
. The Peoples following Leaders of their 
awn Language then, no Argument 
(-  for Hereditary Princes, or paternal 
Rule, which it broke into pieces. 59, 

&c. 

Divites Plebis, Parliament-men. 294 
Dominion not founded on Birth-Right. 

61 

Domitian, hit may of governing. 180 
Doomsday-Book proves, that a great 

Edward /. allows the Parliament''s Dedfr 
ration to the Pope, that they would not 
suffer him to comply with the De- 
mands of the See of Rome. 44$ 
His Parliament would not meet at bis 
Summons till be confirmed Magna 
Charta, and confefs'd his Mijma- 
nagement with Tears; and the Lords 
would not suffer the Taxes to be le- 
vy' d, because imposed without their 
Consent. 448,0:0 
Edward ]/. when Lieutenant to bis Fa- 
ther, was forced by Arms to call 
a Parliament, and confirm Magna 
Charta, &c. 449 
Chosen after his Father's Death. 619 
Forfeited by Parliament. 449,604,518, 

&c. 

A Vacancy at his Death. 620 
Edward III. chosen by Parliament. 604 
He intended to repeal the 1$tb and lotb 
of bis Reign without a Parliament, 
but could not. 235 
Edward IV. Earl of March, his yiQory 
and claiming the Crown. 613 
His Articles against Henry VI. ib. 
Overaw'd the Parliament. ib. 
. Dethroned and restored. 624. 
His Marriage declared void, and bis 
Children Bastards.' .61% 
Edward V. how ruined. 625 
Egbert the West Saxon King, not abso- 
lute, but left the other Kingdoms 
their own Laws. 252 
His Oath at his Ele&im. 254 

many English retained their Honours Elder Brothers have no Divine Hereditary 

and Estates after the Conquest. 517, 

&c. 

Drencher, or Drenger, a fort of Te- 
nants. .\ 531 

Durham, County Palatine, bad its own 
Parliament that tax'd 'em. 360,370 

"\ . , «•; , . 

EArldoms, Hereditary, none before 
William/. 1 - 258 
They had place in Parliament virtnte 
Officti. ib. 
East-Angles, their Kingdom continued till 
after the Danes. 252 
Ecclesiastical Matters treated of in great 
Councils or Parliaments in the Saxons 
time. The King could confirm no 
Canons till so approved.  394 
Edelingi, Noblemen. • - * . 275 

^Edward the Confessor's Law for limiting English, why disarmed by William 1. 
Kings. 508 •'• 548 

Vindicated to -be genuine. $n,&c. Why they rebelled against him. 550 
Edward the First's Title own'd by Parlia- .Englisll have always asserted their Right 
ment in his absence. 6"i8 to resist Tyrants. » ■ 443,8^. 

EleSed. 619 

English 

Right. 52 
Eleanor, Hereditary Princess of England, 
set a fide. 614 
Elections of Parliament Men, when treat- 
ing for them began. 4J3 
Emperor, that Title no sign of absolute 
Power. 2i4,&C 
Good ones own'd themselves to be bound 
by Lav- 92 
England, so named in King Egbert'* 
time by consent of Parliament. 252 
EngleOierie, what. * 533 

lntro*duc'd by the Danes. ib. 
English Earls, Barons, and Gentlemen of 
Estates, continued after the Conquest* 
528,530,531 
They were so many, that William Rn- 
fus defeated the Plots of the Nor- 
mans against him by their Assistance.



{748}

t6g\ifh Constitution, what. $61 
The Titles of their antient Kings no 
froof of Absolute Power. 21 5 

English Hation not willing to male war 
against the Scots for Charles I. 704 
Equals may limit one another. 241 

Estates, three, very antient in other Coun- 
tries, . ■: •„■ 437,&c. 
In some places there are four, and in 
others five. 438 
Eve, a Sharer in Adam*J Commission for 
Dominion. ... 28,&c. 
She must, in cafe of bis Death, have 
been universal Queen, if Generation 
gives Title to Civil Government, j 1 
'EfaoiK, Rom. 13. what. 172 
How it differs from Avvxfxv;. ib. & 

I73,&c. 

It ought to be tendred Authorities. 172 
Tyrants can't be the isexi {famoit here 

Freeholders not the Tenants in capste 
only first after the Conqutst, but such 
as had a free Estate of Inheritance. 

307 

Most of "em held not of the King. 318, 

327 

Freeholders came all to the Parliament 
in the. Saxons times, .but being too 
numerous, were afterwards represen- 
•; ted by Knights of the Shires. 369 
AU of [em, Eletlors, till restrain d to 
405. freehold per aim. by the Sta- 
tutes of Henrys if. & VI. AU of 
{; ■> *em Suitors to the County Courts in 
the time of William the Conqueror, 
and tiU'restrain'd by the said Statutes, 
. were, also catt'd- Barons and Ibanet 
befote tp* Conquest.  15 36" 

Freemen in William the First's time, not 
all Normans of French. 53 ^Stc. 

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just Authorities or Powers. 173-
F.

.182 ... v a_ >. 496 
French, our Law-Booh being writ in that 
Language, no Badge of the Conquest 
the French Tongue common among 
those of Quality, and m Deeds and 
Charters in the Confessor's time, who 
bad been long in Normandy. 540, 

tVW :, ..% &C. 

French Gentry had Votes in Parliament 
tho. they did not bold of the King. 

'.. , 1 ;*■ . 1 -• 439 

Frilings, or Freemen, who. 537 
Q 'Members of the Great Council or Par- 

266 

FAthers, Filmer makes them absolute 
Tyrants over their Children' 88 
Feodal Laws, what. V.. •. $42 

Fideles, Commons in Parliament. 278,&c. 

"\' ;>".s> V322,&C. 
Fifth Command Mo Plea for Monarchy. 

80 

Filial Obedience and Subjeftion, what. 

io,&c.i8 

Particularly among the Jews and Ro- 
mans. —• - IQ,&C. 
rAnd other Nations, ib. & 23—36,&c 
Filmer, Sir Robert, his Paternal or Pa' 
, iriarchal Scheme males Kings Ty- 
rants, and People Slaves. 88,&c. 
His Inconsistencies. 94>&c- 
Shakes the Titles of all Kings now in 
being. ib. 
Folckland, what. . » 533 

Forfeiture bad been a more proper Word Glanville, Lord Chief Justice, bis Defi- 

GAvel-kind, aSoccage-Tenure., 301 
Gentleman and Nobleman, an- 
tiently who. w: 259 

St. Germain, in his Doff or and Student, 
asterts the People1 s share in the Le- 
gistaturc* 218 

for King James than Abdication; 
Reasons why the Commons chose the 
latter. 602 
Fortescue'j Description of a Tyrant. 2 \ 6 
He asserts the Peoples share in the Le- 
gislature, ^fe-v 218 
France, in respeS of Men and the King's 
Revenue, exceeds England ten to 
one. . , ■ <k- 1. «. <58o 
Frank Almoign, most of the Clergy held 
by it. 395 
Freeborough, or Tytbing-Court. , 534 
Freeholders, by any Tenure, antiently ca- 
pable of elecling, or being eletled 
Parliament-Men. <•. c 305 
Who they were. ib. 306,&369 

nition of our Laws. .'217 
Asserts the Peoples share in our Legis- 
-.■<(■ i lature. \ . . 238 

Gnosticks against Government. 98,139 
Government, Civil, proceeded from A- 
dam's Fast, being needless before. 8 
v It was at first in Fathers and Masters of 
;•:«•: Families, and afterwards by Agree- 
u< !■ went lodged in one or more hands. 9 
r Whether Aristocracy or Monarchy was 

« " 1 firfti not easy t0 known. ib. 
The End of it design d by God. ib.& 

Its essential Properties.
Its Origin.

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Government, its Difference from natural 
Government. 47,&c« 
If doubtful, yet to be submitted to, ac- 
cording to Filmer. 94 
Why call'd an human Ordinance. 98 
When it becomes Tyranny. 577,580 
Governors cease to be such when they ex- 
ceed the lawful Bounds of their Power. 

 

May lose their Power without any AH 
of the Party governed. 506 

Grants may be defended against the Gran- 
ter, Royal as well as others. 458 

Grantz, Grandees or Magnates, inclu- 
ded Commoners. 313,348 

Grotius'i Opinion of filial Obedience. 37 
Of Resistance. 108,509 

Guards, none in England till Henry VII. 
got the Teomen establifh'd by AH of 
Parliament. 459 

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Arold, King, usurped the Crown. 

Dr. Harsnet'j Sermon for Arbitrary Power. 

4 

Headborough, what. 534 
Heirs fuppos'd to a Crown, set aside for 
violent Presumptions of Imposture. 

631 

Heirs successive did not take the Title of 
Kings till crown'd. 604 

Hengist the Saxon not made King till 
eight Tears after hvs Arrival in Eng- 
land. 249,251 

Henry 1. succeeded by Parliamentary Au- 
thority. 227,604,&C. 

Henry II. declared Heir by Parliament 
preferably to hvs Mother, tbo she did 
not surrender to him. 6op,&c. 
Hit Charter granted in Parliament. 

127 

'Agreed that his Barons might resist him 
if he did not keep the Peace with Phi- 
lip of France. 444 
The Throne vacant after his Death, till 
King Richard was eletled. 61 o 
Henry III. not proclaimed immediately 
after bis father's Death, and why. 

604 

Came to the Crown by EleQion. 613 
Had no Hereditary Right. 614 
His illegal Taxes blam'd by himself. 

358 

Tardon'd by Statute those who tool Arms 
for him, as well as those who resisted 
him. 453 

The Prefaces to bis Charter and Laws 
no proof of bis being the sole Legis- 
lator. 228,&C. 

His Will. 613 

Henry the IVth's Claim to the Crown. 616 
Elected by Parliament. 621 

Henry V. and VI. succeeded by an AB 
of Parliament made in Henry IVth'i 
time. 621 
Henry VI. made a Cypher by his Queen 
and her Favourites. 621 
The Causes of bis Misfortunes. 451, 

612 

Dethroned. 623 
Restored. 624 
Dethroned again and murder'd. ib. 
Attainted. 658 
The Ail attainting him after his Death 
repeaPd by Hertry VII- ib. 
Henry V llth'i Claim. 62 5,&c. 

Had no Hereditary, but a Parliamen- 
tary Right to him and his Heirs, be- 
fore be marry"d Lady Elizabeth. 

627,654 

The wth of bis Reign about Allegiance 
to a King in possession, still in force. 

<554,&r. 

His Mother had no Right of Succession. 

ib. 

Pardons those who took Arms with him 
against the Usurper. 653 
Henry VUIth'f S«cce^». 627 
He alters the Laws of it several times. 

ib. 

Hit WM, to set aside the Scots Line, 
void. 619 
He owns the Parliament's share in the 
Legistature. 239 
Heptarchy, their first Kings chosen and 
depos d by the People. 251 
Hæredes and Hæreditamentum, what. 

521 

Hereditary Right no fundamental Law 
of England. 606,607,619,630, 

668 

Hereditary Right in the Saxons time, 
and in France, what. 531 
Hereditary Right, tbo claimed since Ed- 
ward I. yet parliaments chose whom 
they pleas'd. 619 
First settled here by Edward the IVth'f 
Parliament, and reversed by that of 
Henry VI. 670 
Is derived only from Law. 467 
The Dangers and Absurdities of it in 
the Pretender's Cafe. ^34,^3 5 

Church of Rome against it in cafe of a 
different Religion. 635 
Hereditary Title and Legal Authority 
may be separated. 669 
Hereditary Title to our Crown came by 
Law \ the first King, and the Law 
that made him so, began together. 

675 

Heretoches and Thanes chose by the 
County Court. 269 
D d d d d Hero- 
. Herodian's Tyranny. 114 

High-Commission by James II. illegal. 

600 

Homage and Fealty sworn to a Prince does 
not make him immediately King, for 
it was sworn to the next Heir for- 
merly before the Death of the Pos- 
sessor. 6i6,&c. 
And before Ekftion they were only caWd 
Dominus, or Domina Angliæ, or 
Dux Normanniæ; as appears by 
Richard 1. and Maud, and John 
Duke of Normandy. 617 

Homily of Obedience, and against wil- 
ful Rebellion, not for Non-Resistance 
in all Cases. 206,207 
How those Homilies are to be understood 
and valued- ( ib. 

Homines sui, what. 3oq,&c. 

Hooker'* Opinion of Government. 96 

Hugh Le Spencer banish'd by King and 
Parliament. 404 

Hundred-Court, what. 534,536,549 

Husband's Power over the Wife in an in- 
dependent Family. 5 

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JAcob'j Blessing, Gen. 27. 29. no Ar- 
gument for Monarchy. 61 Ac- 
James I. his Title. 628,&c 
How said to be by the Law of God, and 
yet Parliamentary. ib. & 63 o 

His Atl «}? Recognition 633 
He and hvs Parliament own, that our 
Fundamental Laws support Preroga- 
tive and Property. 481 
James II. bis Reasons for retiring into 
France. 2 
Why deserted by his Relations. ib. 
Few of hvs Army deserted. ib. 
Number of his and the Prince of O- 
range'i Armies. ib. 
Provocations given by him to the People 
of England and the Prince of O- 
range. 3,5>&553 
Reasons that disgusted bis Army. ib. 
His League with France, ib. &563,&c. 
Difference betwixt his Cafe and that of 
Charles I. 732,&c. 
Reasons why he refused the French King's 
Offers of Assistance. $64,578 

His Tyranny. 566 580 

His ill Condudf after he left his Army. 

569,570,^.579 
His own Abdication. 570 
His Removal from London, and Re- 
turn. 571 
His Retreat from Rochester. ib. 
His sending away the Oueen and Pre- 
tender, and bis Orders to disband the 
Army. ib. 

James II. the real Cause of bis Retreat 
from Salisbury, and leaving Eng- 
land. ?73 

He chose rather to trust France than his 
own People. 574 

He had an Opportunity to treat with the 
Prince of Orange. 575">57° 

His Perjury and Treachery. 576 

No Treaty with him to be depended on. 

578,582 

Had been long embatVd in the Interests 
of France. ib. 

He promised on Oath to follow the Queen 
to France. 580 

He withdrew by Advice of the Papists^ 
that he might return with a Force to 
conquer us. 586 

His Promises in his Letters. 587 

He endeavour d to subvert our Consti- 
tution, ib. & 588 

His modelling Corporations, and his dis- 
pensing Power. 589—593,&c. 

He was Author of most of the Grie- 
vances complained of by the Conven- 
tion. 600 

The resisting and dethroning of him jus- 
tify'd, and ObjeiJions against it an- 
swer'd. 44c,&c. 

The Danger that must have attended 
his Restoration by French and Irish. 

&78,&c. 

The just Causes the Nation bad to resist 
bis dispensing Power. 485 ,&c. 

His High-Commission. 487 
His ere&ing Mass-Houses, proteOmg 
Priests, making Jesuits Privy. Coun- 
sellors, turning out Protestant Judges 
and Justices, and putting in Poptsh. 

• 448,&c: 

His turning out Magistrates that would 
not agree to repeal the Penal Laws, 
and bis bindring free Ele&ions of Par- 
liament-Men. ib. 

His revoking Charters of Corporations. 

490 

His Male-Administration greater than 
that of Charles II. ib. & 491 

His turning out Protestants, and put- 
ting in Papists in Ireland. ib. 

His illegal Toleration in Scotland, ib. 

Apologies for him answered. 492,80:. 

His standing Army with Popish Ofsi~ 
cers to maintain bis Male-Admini- 
stration. 493 

These things could not be redressed bus 
by Arms. ib. 

His Design to model both Houses to bis 
mind. 494 

His Cruelty. ib. 

His Tyranny. 495 

Encouraged by the DoBrine of Passive 
Obedience. ib. 

James 

James II. forfeited bis Crown. ib. 

Jane Grey, Queen, never recognized by 
Parliament., therefore those who took 
fart with her could not have the Benefit 
of the nth of Henry VII. in favour 
of a King deftcto. 673 

Jews might have resisted those ordered to 
cut them off, withont Ahasuerus'x 
Decree to empower them to resist. 

^ 15' 

Imperial Laws for Non-Resistance, an- 
swered. 106,107 
Imployments, publics ought to be con- 
feid on none but those who are known 
to be true Friends to the Government. 

689 

And that swear to its being lawful. 

691,&c. 

ftldblæ, in Parliament, who. 405 
Indemnity, i Ads of it in Henry III. Ed- 
ward!. Edward III. and Henry 
IV7s time, did never call Resistance 
made to those Princes, Rebellion or 
Treason. 452 
Ingennus, a Freeman or Freeholder, 369, 

. . 537 
Ingulphus, his Edition of our antient Laws 
only a Compend. 511 

Injury, private, done by the Prince, must 
not be resisted to the Damage of the 
Publick. 112,127 
King John's Charter granted in Parlia- 
ment. 227 
Reasons why 'tis said to be of his mere 
Goodwill. ib. 
It confirmed most of our antient Laws. 

228 

He resigned hit Crown to the Pope in 
a great Council of Tenants in capite: 

334 

His arbitrary Taxes and Perfidiousness. 

358 

He and his Son taken by Simon Mont- 
fort, and the Barons are obliged to 
agree to their Terms. 313,31% 

He Woa elecJed by Parliament. 604, 

612,513 

He allowed the People to resist and dis- 
tress him if he broke the Charter. 

445 Ac 

The like Agreement was approved by the 
King of France, and Henry 111. of 
England. 447 

Objeftions against it answered. 448 

"Tie Parliament approved it. ib. 

HY is condemned in France for the 
Murder of his Nephew Arthur, and 
dethroned in England for bis Tyranny. 

445,701,612 

He abdicated his Right, and the Throne 
was vacant after bis Death, 6\z 

Josephus'i Authority for the Government 
before the Flood, not warranted by 
Moses. 54" 
His of the Patriarchs explained. 

54 

Isaac, his not resisting Abraham, when 
be vent to sacrifice him, considered. 

40 

Israelites, the reason why Jeremy, Cap. 
29. ver. 7. orders them to pray for 
and seek for the Peace nf the Land 
whither they were carried. i49,&c. 

Judah'f reason for condemning bit Daugb- 
ter.in-law Thamar to death. 25,840 

Judge, one certain and infallible, not 
more necessary in Controversies of 
State than of Religion. 130,194 

Judges of the Israelites not irresistible. 

140 

The Reasons of the stritl Obedience paid 
to them. ib. 
Judges among the Saxons had no Vote in 
making Laws. 268 
Judges, their unjust Judgments may be 
disobeyed, tbo not resisted. 469 
They themselves mty be punish'd, and 
their Judgments revers d. ib. 
Judges, their Opinion about the dispensing 
Power in Henry Vllth's time, consi- 
der'd. 594 
Judges, Coke and Herbert, mistaken. 

ib. 

Judges, honest ones turnd out by King 
James II. and otbers-put in durante 
beneplacito. 60 r 

Difference betwixt the Opinion of Judges 
about Sbip-Mony in Charles the I It's 
time, and of those about the dispen- 
sing Power in James the I Id's time. 

705 

Judgments, moral as well as natural, 
may be removed by human Means. 

187 

Julian the Apostate, supposed to be kill d 
by a Christian, who is commended for 
it by Sozomen. 201 

Jura Sanguinis nullo delicto dirimi pos- 
sunt, that Maxim explained. 39,&c. 

Jurisdiction, Spiritual and Temporal, how 
derived from the King. 246 

Juries of Engliihmen to try Titles to 
Estates after the Conquest. 5 38,6cc. 

Jus ad rem, and Jus in re, the Diffe- 
rence betwixt them. < 674 

K. 

Kingdoms, Patrimonial, Hereditary, 
and Testamentary, what. 63,65 
None of them preferib'd by the Laws of 
God or Nature. ib. 

King- 

Kingdom?, Patrimonial, may be aliena- 
ted by the Prince, but others mt. 

128 

Kingdoms derived from Goths and Ger- 
mans, founded on Compacts with 
their Kings. 124 

Kings (of Israel) not irresistible. 142 
None can derive Title or Power from 
Adam or Noah. 75 
Nor from God now, but mediante Po- 
pulo. 242,674 
The Absurdities of the contrary Doc- 
trine, ib. & 675 
Kings of England, none had that Title 
before they took the Coronation-Oath 
till Edward I. 588,615 
And tho they ailed in publicl Affairs, 
did not do it as Sovereigns. 6i6,&c. 
Kings of England not absolute, but for- 
feitable. 498,5oi,&c 
How they may forfeit their Authority. 

557,5*' 

Had no Power to call to Parliament such 
Commons as they pleased, nor of for- 
bidding whom they pleased to be cbo' 
sen. 387,&c. 

Half of our Kings almost since the 
Conquest not next in Blood, yet owWd 
to be lawful. 661,668 
Kings de Facto and de Jure, when that 
Distinction first began. 630,657 

They who had a Parliamentary Title 
always judged lawful. 630,656 

AU the Kings of the House of Lancaster 
declared Kings de Facto, yet their 
Tttles, Laws and Grants good, and 
Treason against them punishable. 65 5, 

&c. 672 

Kings de Facto can have no Authority 
from the tacit Consent of the Kings 
de Jure, but from Possession, other- 
wise we transfer the Allegiance of 
the Subje&, and make Obedience 
to Kings de Facto lawful, which is 
contrary to Tory Principles. 6j8,&c. 
Kings, the Maxim that they can do no 
Wrong, explain d. 732 
They have no Authority antecedent to, 
or superior to Law. 467 
In what cafes they may be dethroned. 

498,50s 

And in which the People may be Judges, 
according to Royalists. 500 

Our good Kings own'd themselves bound 
by Law. 92,&c. 

Contrary to Filmer'i DoOrine, who 
makes them both Judges aud Parties. 

89,&c. 

Kings not the sole supreme Legislative 
Power. 214—237 

Their illegal Commands may be judged 
of, and difobefd by the People. 562 

Kings liable to Law as weB as others. 

Could condemn no great Man without 
a Legal Try al in Parliament. 117 

Their Power originally from the People? 
but the Power of inferior Courts from 
the Prince. 246 

Their taking Arms against their Sub- 
jells, and the Subjects taking Arms 
against them, equally contrary to Law. 

Instances of their barbarous Z?sage of 
Loyal SubjeiJs. 461 

They have no Authority against Law 
themselves, and can give none to 
others. 464 

If as single Persons, they may be re- 
sisted, as Royalists own, in Robberies? 
Rapes and Murders; they may be as 
well resisted when heading Numbers 
to do such things. 470 

Instances of it approved by Kings and 
Parliaments. ib. 
Kings, tho unjustly dethroned, ought not 
to be restored, if the restoring them 
hazard the Nation more than the 
want of them, or tend to subvert Re- 
ligion and Liberty. 676 
King's Council in Parliament confounded 
with the House of Lords. 255 
1 Kings 16. 7. translated wrong, for Baa- 
flu did not kill Jeroboam, but Na- 
dab his Son by God's Command. 
1 Kings 15. 29. 149 
Knights Fee, what. 288 

Number of them in England about the 
time of the Conquest 60215. of which 
the Church had 28015. 526 
Knights Service, what. 355,542 

William I. did not grant aU the Lands 
of England to bold by that Tenure. 

301 

It was here before the Conquest by the 
Danes or Normans. 542; 
No stavish Tenure. 543 
Knights of Shires, often caWd Magnates. 

301 

EleSed by Prescription. 43 5 

L. 

LAdy said to be sent with a Message 
by King James II. to some Bishops 
for an Accommodation, but they re- 
fund it. 58^ 
Lambard asserts the People's share in the 
Legistature. 236 
Lands dijpos'd of by the Prince after Con- 
quest, mayn't be taken away by him, 
much less those possessed by a free 
People, iaij&c.


{753}

Lanfrank, Archbishop, chosen in Parlia- 
ment. 410 
Laud, Arcbbisijop, for Arbitrary Power. 

Law of God and Nature, the only Rule os 
human Attions. 2i,&c. 
Law of Nations what. . 2o,&c. 
Cannot oblige contrary to Scripture, Na- 
ture and Reason. ib. 
Law of Nature and Nations, different. 

63,&c. 

Law, Mistakes about it, and acJing con. 
trary to it, very different. 466 

Laws that take away Life for Crimes 
which do not deserve it by the Law 
of Nature, justify it." 4<S,&c. 

Laws, Filtner teaches Kings bow to elude 
or annul them, and sets Kings above 
Laws. 5>o,&c. 

Laws, the Substance of ours not alter'd 
by William I. tho the way of plead- 
ing and judicial Proceedings was 
much cbang'd. 533 
His first Laws were in Latin, and bis 
Penal Laws in French, that his 
French and Norman Subjeds might 
btow them; but they were first pro- 
claims in English, and bis Charters 
were in Latin or Saxon. 540 
Hit Laws made by Authority of Par- 
liament. That of Coverfew no 
Badge of Slavery. 548 

Laws, why they run in the King's Name. 

226,252 

Nvne made without Parliaments. ib. 
People have as good a Right to them as 
to their common Air. 482 
They who place Kings above them, are 
Traitors, Pipers, and Pests. ib. 
Laws in force made by Parliaments, tho 
not summoned by Kings Writs. 648, 

&c. 673 

Laws still in force, tho made by the Par- 
liaments of such Kings as are call'd 
Usurpers.' 649,671 
Lazzi, Slaves. 276 
Legales homincs, who. 537 

Legibus solutus, how to be understood of 
Emperors. 92 
Legislative Power declar'd by King, Lords 
and Commons, to be in the Prince and 
Parliament, and that they are pint 
Legistators. 220 
Lewis XIV. of France, his Memorial to 
the Pope, that he design*d to extir- 
pate Heresy in England, Holland, 
&c. '' 3 

His League with King James If. for that 
end. ib. & 641 ,&c. 

Lex Regia, what. 513 
Liberi Homines, who. 308,322, & 

3*9, 537 

Liberi tenentes, Freeholders. 300,352^ 

354,3<*9 

Liberty and Property due to Subjecls by 
the Law of Nature. 84 
Liberties and Rights fundamental, that 
may be defended by Arms. 479,6cC. 
Ligeance, legal, what. 524 
Wbtre and by whom to be taken. 653, 

688 

Limitations of Royal Power not by the 
mere Grace of our Kings. 463 
Limited Monarchy the best Government. 

Not inconsistent with the King's being 
supreme. 242 
Lollards, an A& against them without 
Consent of the Commons, annulled. 

420' 

London and other Cities arbitrarily tax'd 
by the King. 355>357 
They oppose it. 359 
Its Bishop suspended illegally by James, 
II. 600 

Lords and Commons, their Assent to Laws 
much older than the Reigns of Henry 
VI. and VII. 236 

Lucifer, Bishop of Cagliari, thought that 
an Apostate Emperor might be put to 
death. 200 

M. 

MAccabees, their Resistance justify'd. 
140,151,&c. 
They did mt d3 by particular Precept 
or Revelation. 1 53,&C. 

Macedonius, the Bishop, oppos'd by the 
Orthodox, tho supported by the Em- 
peror. 202 
Magdalen-College in Oxon oppress'd by 
James II. 600 
Magna Charta made by King and Par- 
liament. 398 
Only declaratory of our fundamental 
Laws. 223, &c. 468 

Those of Edward I. and Henry III. 

materially the fame, m-tia-9 
Not extorted from King John by force. 

136 

Dispense with by Popes. 637 
Magnates signify not only great Lords, but 
Gentlemen; 267 
And Commons in Parliament. 282,&c. 
And Citizens and Magistrates. 284 
And the whole Parliament. 292, &c. 

3H,379.403 
Malcolm Canmore never Proprietor of 
all the Lands in Scotland. 124 
Malefici, other evil Doers besides Here- 
ticks. 512 
Mantinenm, the Orthodox there resist the' 
Asian Emperor's Soldiers. 202 
E e e e e Man- 

Manwaring'* Sermon for Arbitrary Power, 

4 

Masters os independent Families, their 
Power. 24,&C 
They are the only Governours in a State 
of Nature.  
When they may be lawfully resisted. 

3i,&c. 

Maud, the Empress did not take the Title 
of Queen of England, and why. 

604,608 

Maximus assisted against Gratian the 
Emperor by the British Christians. 201 
Meicatores, Burgesses in Parliament. 

404 

Mercia, a Kingdom, continued till the 
coming in of the Danes. 254 
Milites, Knights of Shires, &c. 30o,&c. 

35^*554 

Militia not reduced into standing Troops 
till the Spanish Invasion. 459 
Mingrelia, Tyranny of its King. 119 
Mirror of Justices limits the Power of 
Kings. 502,508 
The Book vindicated. j 11 

Milbpat, or the Manner of the King, 
1 Sam. 8. 6,19, 20. explained. 141, 

Sic. 

Mobs at the Revolution. 582 
Modus tenendi Parliaraentum, its Anti- 
quity. 270,406 
Monarchy not the only Government ap- 
pointed by God. I7»i9 
"Arguments for it confuted. 50, &c. 

96, &c. 

Its long Continuance in the World, no 
Argument. 60 
Not founded on Paternal Power. 50— 

87 

Monarchy, universal, Filmer for it. 93 
Shakes the Titles of all Princes, ib. 

&94 

Monarchies, mix^d, Titles to them de- 
terminable only by Parliament. 645 
Instances of them. 241 
Nature of them. 242,01c. 
Moral Duties, the Obligations of them 
to be judged of at they more or less 
conduce to the Hurt or Happiness of 
Mankind. 678 
Moses, Jolhua, and the Judges not pro- 
perly Kings. 69 
Nor arbitrary Rulers, according to their 
own pleasure. 7o,&c 
Murder first punishable by any of the Kin- 
dred of the Persons stain, Gen. 4.14. 
and first restrained to the Magistrate, 
by Gen. 9. 6. 15,27 

Punishable by the Law os Nature. 46 
Mycele Synods, what. 271 

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NAtural Power differs fr^m Civil. 
47,&c 

Negative Voice, the Parliament has it 
upon Bills proposed by the King. 236 
Nero, an Account of his Government. 

18o,&c 

Nerva'j Government. 180 

New Testament Instances for Monarchy 

confuted. 97>&c. 
Noah'j seven Precepts. 27,&C. 
fie was not made Universal Monarch; 

the Blessing granted, Gen. 9. 1,2. 

common to him with his Children. 

54>&c- 

Hvs thru Sons of equal Power. 56 
The Rabbin'* Story of hvs Distribution 
of Government among hvs Sons, fa- 
bulous. 16, & 57 
Nobilitas Angliæ, the whole Parliament. 

299,316 

Nobility and Gentry in other Countries 
are reckoned but as one Estate. 439 

Nobles in foreign Countries, and among 
our Saxon Ancestors, included aU 
Gentlemen and chief Magistrates.' 

266,276 

And Commons in Parliament. 263, 

330,337 

Non-Resistance DoOrine does not better 
the Condition of Sub j efts, 87 
Not the Doftrinc of the Gospel, or of 
the Primitive Church, nor the constant 
DoQrine of the Reformed Church of 
England. 156 

No essential Right of Sovereign Power. 

161 

Normans, many Noblemen and Gentle- 
men in England before the Conquest, 
and aUow'd the Privileges of Eng- 
lilhmen by William I. 527 

Nullum tempus occurrit Regi, how ex- 
plained by Filmer. 94 

O. 

OAth to the King and bis Heirs, first 
in Edward lst's time. 94 
Oath of ABegiance sworn only to the King, 
and not to his Heirs till the time of 
Henry IV. 526 
How it binds. 244 
That to K. William and g. Mary very 
modest. 650,655 
Oath of Fidelity in William lst's time. 

693 

Antitnt Oath of Homage. ib. 

paths, 

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Oaths, Filmer'j Doctrine how to elude 
them. 91 ,&c. 

They may be lawfully taken to a King 
in possession. 65 1,652,554 

Objeclton from the prior Oath of Al- 
legiance to King James II. and his 
Heirs, anfwer'd. ib. 653,&c664, 
681 688 

Oaths to lawful Kings and lawful Heirs 
first made in the times of Queen Eli- 
zabeth and King James I. 693 
Oaths to the State, their Expediency. 6%-j 
And their Antiquity here. 658,&c. 
Omnes de Regno in Parliament, who? 

... , . 35M54 

Omnes alu de Regno. ib. 355,376, 

397 

Opti mates signifies not only Lords, but 
Gentlemen. 267 
Commons in Parliament, Magistrates 
and Citizens. 283 
Orange, Prince, his ConduO, and that of 
the Dutch towards James II. justify'd. 
563,&c.5<S5,569,&c.j7**576}&c. 
Heads of his Declaration. 564 
His Demands of the King. 569 
He and Princess Mary justly placed on 
the Throne. 637 
Parallel Instances. 638 
Deliverer of the Nation. 642 
Original Contract between King and Peo- 
ple, proved. 507,80:. 514,587,6^. 
Bishop Overall'* Convocation-Book for Di- 
vine Right of Monarchy and Arbitrary 
Power. ^ 
Hot appointed by King or Parliament. 

6 

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PAlatine, a Magistrate appointed to 
curb Kings. 255 
Pardons may be rejected, tbo not altered 
by Parliament. 236 
Pardons granted by Kings to those who 
fought for, as well as against them. 

453,6-53 

Parliaments the King's Creatures, and he 
makes Laws without them, according 
to Filmer. 92 
Can't alter fundamental Laws. 132 
King can't call what Commoners be 
pleases. 367 
The Peoples Right to them. 507 
Not fubjeS to the sting in matters of 
Legistature. 238 
Have a Power to determine what shall 
he Treason, besides what is specify*d 
in the iyb of Edward III. 239 
Why the time of its Meeting was ascer- 
tain'd. 243,245 

Parliaments met originally without the 
King's Summons. 245,Sec 

Said to be antiently only the King's 
Court-Baron. 286 

Deny'd. 292,367 

AU the Estates meant by the Words Co- 
mites and Barones, and sometimes 
by Magnates. 29I 

Mention'd as making Laws, tho the 
King be not named. 236 

As old as our Government, and not the 
Grants of our Saxon Kings; the like 
in other Nations. 254,&c.436,&c. 

Inferior Clergy antiently present in them; 

393Ac 

Met without Convocations, and vice 
versa. 396 

Believed the resisting and dethroning of 
Kings lawful in cafe of Tyranny. 

455 

Assembled at the Death of Kings to 
determine the Succession, without Sum- 
mons from the Successors. 619 

Assert their Power of Eletfion and De- 
position. 621,626 

Their Declaration of Edward IVth's 
Right, fore'd and unjust. 624 

And repeal'd by another Parliament. 

624 

Their Declarations, when contrary to 
Scripture, the Law of Nature, and 
to History, not to be regarded. 630, 

631 

FiWd the Throne upon Depositions, and 
Forfeitures, and Deaths, as they plea- 
sed, without Regard to Hereditary 
Right. 638,643 

Their Power not dijfolv'd at the Revo- 
lution, tbo King James the lid's was. 

643,&c 

They are the only proper Judges of Suc- 
cession without Kings. 6^6,&c.66ot 

675,689 

They are good, tbo not caU'd by the 
King's Writ. 648,672,&c.73 5 

They must be submitted to, tho they judge 
wrong. 661,669 

Instances of their different Determina- 
tions submitted to. 663,dec. 

Their Coercive Power over Kings\ 730, 

&c. 

Their Power to impeach Ministers. 732, 

&c. 

They are a fundamental part of Go- 
vernment, and not from the Conces- 
sions of Kings. 214 
Parliaments held ezcluso Clero, and 
why. 402 
CaU'd Synodns magna. 409 
Not antiently caWd, or dijfolv'd at the 
pleasure of Kings. 445 

ParlS- 

Parliaments in Charles lid's time declare 
against all armed Force in time of 
Peace, except tie Militia. 459 
They cant give away the Pedples Rights. 

473 

Parliament, the last of Richard II. de- 
clared illegal, 649 
Parliament's Proceedings against. King 
Charles 1. 702—729 

Partus sequiturVentrenv.x/>/<»«»'d. 11,16" 
Quicquid ex me, & uxore mea nas- 
citur, in potestate mea est, the like. 

ib. & 33 

Philip the Fair* King of France, allowed 
the Declaration of his Estates, that 
they would resist him if he comply'd 
with the Pope's Usurpations. 448 
Pleas and Judgments in French db not 
prove that all our Lawyers and Judges 
were French. 533 
That Language only uCd in the Courts 
at Westminster-Hall. 534 
Where not a twentieth part of Causes 
were try*d. 53 5> 5 38,540 

Plebs in Parliament, who. 395,402, 

4°4, &c. 

Passive Obedience and Non- Resistance, Poland, King of it accountable to the 
Texts urgd for it out of the New States. 562 

Testament, explained and answered. 

159—»83 

Out of tbeOldTestament. 138—152, 

ipo,&c. 

'th aQual Disobedience. 455 
Not the antient Doclrint. of the Church 

of England. -. 4 

Wrong founded. 211 

Condemned by Parliaments Bilson and 

Hooker. ib. 
Tin first Mamtaincrs of that DoQrine. 

4,&c. 

'7m mere Nonsense. 31 

Encourag'd James lid's Tyranny. 137 
Condemned those who refus'd to read his 
Declaration. , itfi 

Paternal and Patriarchal Power not abso- 
lute. 1 o,&c. 
The Nature of it. I2,&c.24 
Ceases when Children set up other Fa- 
milies* 15 
Nature of it in independent Families. 

24,&C 

Depofable for Tyranny. 215,504 
Pope, Letter to him from the Baronage 
of England against his Exatlions. 

• 292,&C. 

His contradiSory Bulls in cafe of King 
John and the Barons. • 445 

The abjuration of his Temporal and 
Spiritual Right over England, as old 
as since King John'* time. 693 

Forbids the Clergy's paying Taxes to
Temporal Princes without his Consent.

402 

Popilh Princes inconsistent with the End 
of our Constitution. 635,&c.6"47 
Populus, who. 393 
Populus signifies Lords as well as Com- 
mons. 30i,335,&c. 
Sometimes the Government only. 3 51, 

403,&c. 

And at other times both. 406 
Populus in the Saxon and Roman Coun- 
cil and Parliaments, what. 273— 

300 

The Absurdity of making it perpetual. Portugal, King of, dethroned for Rapes 
6o,&C74,&c. and Murders. 459 

Paternal-, Masterly, and Regal Power, Portuguese Succession. 69 
not the same Terms. 75 96 Portuguese and Sicilians speedily rescued 

Patriarchs not Monarchs. 54 
Peerage, its Rife. 259 
People, the ObjeMon that they must not 
be both Judge and Party, answered. 

112— i30,&c 
People have a Right to defend themselves 
against Arbitrary Power, as well as 
Princes have to defend themselves a- 
gainst Rebellion. 457 
. May judge without a Parliament when 
. : their Rights are violated. 5o6",&c. 
People not made for Kingt, but Kings 
. for the People. 472 

themselves from Tyranny. 1 po 
Power of Life and Death, &c. not de- 
rived to Sovereigns from Gods Com- 
mission to Adam and Noah, as uni- 
versal Monarchs, from Gen. 1.27,28. 
and Gen. 9. 6. 2<J,27,28,45 
In what cafes a Man has Power over his 
own Life. 45,&c. 
Power, Natural and Civil, different. 47 
Power, Oeconomick and Civil, how they 
differ. 188 
Power, none irresistible but that »f God. 

48 

They may be without Kings, but Kings Powers in being ought to be submitted to. 

can't be without them. ib. 97,&c. 

They are capable to judge when Liberty Prerogative advanced above Law by Fil- 

is invaded.  482 mer. 91 

\Ttt not more unjust in them to be Judge Owtfd by King James and King Charles 

and Party both, than for the King. ib. to be supported by Law. 553 

i . Presby- 
Presbyterians not for ruining Charles I. Property not divided by Noah'* Autho- 

and the Monarchy. 703 ,&c. 

Concur'd with Monk to restore Ch. II. 

, 704 

Prescription, what. 421,Sec. 
Pretender, Causes of fufpeSing his Birth. 

5<J7,&c. 631 
Witnesses of his Birth insufficient. 568 
Instances of the like Cafes in supposed 
Heirs to Crowns. 631 

rity, or that of h'vs Sons an Monarchs. 

99,&c. 

Not distinguish'd in some parts of Ame- 
rica and Africa. 48 
Ceas'd with the Proprietor in the State 
of Nature. 63 
Divided into Natural and Civil. 101 
Not to be taken away by Kings. 116, 

120— 125 

fjht Birth could not be enquir'd into by Property in Crowns and other Possessions 

defends upon the Laws of Countries, 
io: - and not on the Law of God and Na- 
y  sure. *\ . 4 , - 669 
Provincia, what. 409 
jPnffendorf '* Opinion of Resistance. 1oS, 

Of a limited King, , ib. 

.« Q, 

KJpj&cipy, - 

fiOcylfTYUeen Elizabeth, ijtib of her 
Instances of t^tir Resistance. 199—v^/ cap. 1, still good, and im- 

202 ^"powers the Sovereign and Parliament 
for i to fettle and limit the Succession. 
.62  649 

Passage* from (Jreek and Roman His- Queen Elizabeths Queen Mary** for/J 

ZVf/ej 6/ AS of Parliament. 628, 
■ &c. 648 

tbe Convention, nor were they or 
-Kmg William obliged to it. 632, 

. . J. '•  * y "< v. . ,' : - (S41 
Primates signifies Commons as well as 
Lordsi...^<: . 282,394 

Primitive Christians not the better us'd
^Tyrants for disclaiming Resistance.

- -137 

The Difference betwixt their Cafe and 
mrs, at to Resistance. 

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199. 

Primogeniture not a Divine Title 
;, ^iwernment. 57. 

tory, &c. answered. 63,&c 
Prince'* Person not to be prefers to the 
Safety of the Nation. 472 
Princeps and Prhicipe* signify not only 
Princes, but other chief Men, as Al- 
dermen,Parliament-Men,and Thanes. 

268,281,&C.394 
princes of the Tribes not petty Kings. 72 
Princes and Masters, bow they differ. 115 
Have no Commission from God to per- 
secute. 168 
His Person and Power distinguished. 

'.■-*»■' • 174 

Princes may defend those of their own
Religion that are subjetl to others.

564 

And likewise the Subje&s of other Prin* 
. . . . .ees when oppressd. • 565 

They may be limited by the Original 
Constitution. » ~ 241 

Principes diversi & univerG, & nniversi 
ordinis, who. 407,&c. 

^Ebellion against William I. 538 
Regency proposed by James the lid's 
Friends at the Revolution., inconsis- 
tent, unsafe, and impracticable. 633, 

&c. 

Regnum absolutum & politicum, how 
they differ. v 561 

Religion establish'd, Alteration of it by 
absolute Power, a good Cause of Re- 
. . sistance. 117,127 
May be defended, tho not propagated 
by Force. 167 
Can't be propagated by suffering Go- 
vernors to root it out when settled by 
. . Law, otherwise Christ's Laws bad 
■--Itoen more burdensome than those of 
\t f-Moses. 168 

Principi quod placet, Legis habet po- Resistance, the true Sense of the Oaths and 

testatem, explain'd. 513 
Proccres signifies not only Lords, but Ma- 
gistrates of Cities. 267 
So that when we find Proceres, Opti- 
mates, & Principes, in our Great 
Councils, it vs not meant that aU 
were Princes, Lords, or great Men, 

ib. 

But also Parliament-Men. 282, &c. 

3io,324, 339,353,394»403 
Property, the Defence of it one of the 
chief Ends of Civil Government. 48


{758}

Resistance, the supposed Jnconveniencies of Richard Duke of York, his Perjury and 

it anfwer'd. i3o,&c. iJ5,&c.i89, 

&c,i94 

Resistance of insupportable 'Tyranny pre- 
serves the End of Government better 
than Non-Reststame. 159 

Resistance, or shutting up of mad Prin- 
ces, justif/d by the Law of Nature, 
tbo there be no municipal Law for it. 

174,&c. 

Instances of it in France and Portugal. 

ib. 

Difference betwixt that of a Nation or 
Majority, and private Persons. 182, 

212,483 

Resistance for Self-defence a Right of 
Nature, and not forbid, but aUow'd 
by Scripture. I95,&c. 
Dr. Falkner'j Opinion about it. 21 o 
It has not always ended in the Murder 
and Deposition of Kings, but oftner 
to the contrary. 455 
Resistance thought lawful by Parliament, 
notwithstanding the z$tb of Edw. III. 

46-3 

Lawful in defence of the Constitution. 

471,473 

By what Numbers. ib. 
Revolt from Jeroboam justify*d. 142, 

&c. 

Revolution justif/d. 4,565,010576 

_ •". 258 

King Richard I. 'bvs illegal Taxes opposed. Salique Law made by Consent of the 

Rebellion. ib, 
KiWd. 623 
Rights, legal, may be separated from the 
Persons, but natural Rights not. 645 
Robbery by Order of the King as unlaw- 
ful as by others. 469 
Robert Duke of Normandy, why he did 
not call himself King of England. 

604,607 

He claim'd the Crown, but as some say 
accepted a Pension instead of it from 
William Rnfus. 605,6c c. 

Reasons why be was rejeded by the Eng- 
lish^ 1: : » t 607 
Romans put none to death without a fair 
Try al. '\ ... 1.64 

Romans, chap* 13. explain*d. 97, &c. 

170 182 

Roman Senate's Declaration against Nero 
and Maximus, to be Enemies to 
Mankind. 107 
Running-Mead, the Assembly there of 
Common Council of all the Freemen 
of England, and tmCd to be a law- 
- ful Parliament. .:«. 316,736 
Magna Charta ratify'd there. 327 

S. 

A C and Soc, what. 

358 

Not overPd to be King tiU crowned. 

6io,&c. 

The Throne vacant at his Death. ib. 
King Richard II. does by Statute justify 
those who took Arms against him for 
the Safety of the Realm. 453 
Took the Proceedings against Edward 
II. out of the Parliament-Rolls, fear- 

Peopk. 68 
Sanderson, Bishop, for Arbitrary Power. 

--" . 5 
His Arguments answered. 7 
His Opinion of the End of Government. 

16,580 

How far he is for submitting to, and 
concurring with a King de Facto. 

659 

ing it would be bis own Cafe. 45 5 Sapientes,^ W'ites,signifies wife, discreet 

Destroy d an antient Law, allowing the Men, Senators, and Members of the 

Resistance of Tyrants, and several House of Commons- 268 

other Records touching the Govern- Saxoti Great Councils, of whom made up. 

ment. ib. 
Articles against him. . 48 r 

He was resisted. 450,&c 
His Arbitrary Reign. 481,649 
His Deposition. 620,&O 
Proceedings against him not repeal'd by 
1 Edward IV. 624 
King Richard HI. how he came to the 
Crown, Parliament declares bvs Right. 

625,&C. 

EleQed. ib. 
Why attainted. 658 
His Laws still in force. 664. 
Richard Duke of York, bis Claim against 
Henry VI. L 621 

Parliament forced to own it. 622 
The Terms. 658 

26$ 

Saxon Laws confirm'd by William I. 549, 

7" . "■' • i 551 

Saxon and Gothick Princes, nbt absolute^ 
but limited. The first Saxon Gene- 
rals here not Kings when they 'came. 
• 248,&e. 
- ■ And when made so, bad great Councils 
or Parliaments. ib. 
Their way of living. ib. 
Saxons, when first mentioned. 249 
Their way oj Government still among 
us. 250,258 
Their Princes here not absolute. 251 
Who were qualify'd to be Members of 
their Great Councils. 259 

Saxons 

Saxons reserved to themselves the Power 
of elefting and dethroning Kings in 
aU the Heptarchy. 443 

Schism occaston'd by depriving the Non- 
jurant Si/hops, consider7d. 6"95,&C 

Scotland, Letters to the Pope from the 
Parliament of England, about the 
Homage claimed for it. 2P5,&c. 

Scots Laws of Succession. 67, &c. 

Scots Parliaments formerly of the fame 

.A Constitution with that of England. 

36i~$66, 402, 406 

Scotifli Line, Favourers of Popery and 
..^Tyranny. • 647 

Scutum, or Knights Fee. , 298 

Scutage or Escuage. 315 
How levy'd.~. . &31* 

Selden'* wrong Notion of Adam'* Power. 
A A 29 
He asserts the People's Share in the Le- 
gislature. 233 

Self-pefence refervd by the People in all 
limited Monarchies^ otherwise there's 
m Difference of Monarchies. 473 

Senate of Rome had no power when St: 
Paul wrote. 98 

Senators included Nobles and Commons. 

'" i' • .'" •. *7* 
Seneca's Opinion of Property. m 

Seniores, Commoners. 311 
Serjeantry, Grand and Petit. 255,317, 
.y . .&c. 
Sermons for arbitrary Power burnt by Or- 
der of Parliament. 4 
Servientes, .whd^ i 308 
Servus Dei, in our antient Laws, signifies 
the Clergy. . . 512 
Sheriff's may resist the King's Officers 
a&ing beyond their Commission. 

47o 

Sibthorp'i Sermon for arbitrary Power. 

-V !" 4 

Sigebert, King of the West-Saxons, de- 
throned for Tyranny by the Great 
Councils. 442 

Sirnames, few uid at the time of the 
Conquestt but by Normans of Qua- 
lity, v A W'L 529 

Slaves, or Servants, their obedience en- 
join'd. by Peter, 1 Pet. 2.18. and 
Paul, Eph. 6. 5. and Col. 3.22. 

; .r ^ II4, &C. H9, &C 

The Difference betwixt them and Sub- 
jetts. . . ^ 115, 181 

Soc, Soccage and Socna, such as held of 
Lords. .-.. 288,290,301 
Socmen, Freeholders, ib. 302,307, 531 
Society s, Independents have a power of 
. . determining, all Civil Controversies 
fitbin themselves. 669,674. 

Spencers* their Male-Administration and 
Punishment. 450 
Stephen, defied King by Parliament. 

6*04,609 

He and his Party perjUr'd. 608 
His Agreement with Henry II. 609 
Subjects, their Happiness preferable to the 
Honour and Advantage of the Prince. 

i 6 

Succession, different Determinations a- 
bout it in Parliament. 67 r 

Succession, Testamentary, not valid, till 
confirmed by Parliament. 504,606, 

615, &c. 

Frequently alterydby Henry VIII. 627 
Always regulated by Parliament. 630 
And subjett to their Limitations. 64 $■ 
JVo Succession to Crowns by Divine Right 
from the Law of God or Nature. 

 

Succession, testamentary, of the Saxon 
Kings, what. 520 
Succession, not so certain by Testament 
as by Inheritance. 65 
Succession, municipal of the Jews, no 
Rule for Government. 66 
Hereditary far from being certain, ib, 

& 67 

Different Customs about it. ib. 
Succession of Daughters, much disputed. 

67 

Succession, the Laws of it not made mere- 
ly by the Will of the Prince, but by 
the Consent of the People. 68, &c 
279, &c. 649 
Ours at first Eledive. 508 
Suitors to the Hundred and County- 
Courts, aU Englishmen in William 
Vs time. 535 
Superiour Lords, not irresistible or abso- 
lute over their Homagers. 3 61 
And may forfeit. 525, &e. 
Supremacy recovered by Henry VIII. the 
antient Right of the Crown. 205 
Supreme Power convey'd now by the Peo- 
ple's Consent. 104 
Can't be arbitrary or irresistible, be- 
;' cause God never gave such Power. 

Swedes, formerly reserved a Power to ele& 
and dethrone Kings. . 443 
Synods, Earls and Barons vote in them. 

408 

 T. 

TAxes, the imposing of them when a 
Cause of Resistance, and when not. 

', 118,119,14+ 

{ l ''''' Taxes, 

Taxes, mt to be impos'd but by Parlia- 
ment. 3*o, 330, 339, $$6, 357, 

370 

Taxes, illegal, occasion'd the Revolt of 
the Barons. 357 
Tenants Mesne. 356 
Not taxable by those in capite. 319 
Feudatory. 328 
Tenants of the King's antient Demesne, 
formerly tax'd by himself, and there- 
fore not by Parliament; but when 
opprefs'd by the King, were reliev'd 
by Parliament. 358, &c. 

Tenants in capite could not tax those 
who held of them. 560 
When they ceas'd to make a distinS 
Council. 

The Force and Strength of t\e Ndfton 
lay not in their bands. 370 

Not the only Freemen in William the 
1*8 time. s 37 

Their Number then. 396 
Tenants in Capite, others in Parliament 
besides them. 285, 337. 

Lesser ones, when caWd to it. ib. 

How many in William the First's time. 

287 

Of several forts. . 290 
Some of them not Tenants in capite, 
yet were in Parliament. 291, 312, 

34* 

Tenants that hold of some Honour or 
Casth. 318,328 
Of antient Demesne 318 

Tenure in capite, introduced by William 
the Norman. 438 
Test against Rest/lance, and altering no- 
thing in Church or State, refused 
by the Lords in Charles ll's Parlia- 
ment. 474 
Testaments, none in the State of Nature, 
and why. 65 
Thanes, what ; several forts. 258, &c. 

267 

Some of them Members of the House of 
Commons. ib. 
Inferior fort. 271, 289, 536" 

Thæbean Legion, their Story suspicions, 
but if true, no Argument for Non- 
Resistance. 198 

Throne often vacant, tiU filTd by Par- 
liament. 604,616 
Suppos'd to be vacant by our Law till 
the next Successor was eletled and 
crowrid. 604,517 
Instances in England, Scotland, and 
France. 631,543 
That of England declard eight times 
 vacant since the Conquest. 661 
Tiberius subverted the Roman Common- 
wealth. 98 

Time beyond Memory, what. 4i5,&c 

Tories ready to join the French and Pa- 
pists for Jame;s IF, 576 

Treason against the Realm as well as a- 
gainst the King. 239 
The Form of Indi&ments for it m 
Proof to the contrary. ib. 

Treasonable Ailions, in striSntfs of 
Law, receive Pardon of course, if 
done for the Nation's Security. 452, 

&c. 

Tribes of Israel chose Leaders and Kings. 

*'«.. J "'*> . ' ?2'74 
Tnnoda Neceflitas, what, 307 

Troops that deserted King James H. at 

Sarum justify'd. i&j 

Troops . Standing, the King cout& 'foep 

none atttiently, except against a h- 

beliion, Invasion, or for foreign War. 

459 

Those for foreign Wars were to embark 
X." in a Month after their first Muster. 

460 

Trnst lodg'd in a Prince does not take a- 
way the People's Right of Appeal lit 
\.c.*ft Of Tyranny. \ iop,&c. 
Absolute and arbitrary Trust destroys 
Society, and therefore never suppos'd 
to be given. No'Man has poverty 
murder himself or another, and there- 
r fore can't convey any Trust to'a 
Prince, but what Nature gavejbe 
Conveyer for the Preservation of 
himself and others. '' ~~ HO, 8(C. 
Trial Ay Combats, no Badge of Norman 
Slavery. J48 
Tyranny, not God's Ordinance. 35 
Overturned the first Monarchies. 97 
Tyranny of Caligula, Heto,andaKing 
o/Pegu. 105, &c. 

Tyranny dissolves Government, and males 
the People free. 110,212,501 
'Tw Robbery. i2J,'»3* 
Worse than a War to recover Liberty. 

475, &c- 

Tyrants, little Difference betwixt tbtm, 
Madmen and Fools, so that they 
are equally unfit for Government. 

7 - ': 'W 

And the one is as easy to be judged of m 
the other.' ..' »7* 
Tyrant, King James's Definition of one. 

 . fyM 
Gives the People a Rule to judge by. 

 -A .«.__. .r.*. ■: 21 

A foreign'one- preferable to a dome^kk 
one,' .'"Y" I3*2£ 

Tyrauts, resisting of them not resifH 
the Ordinance of God, even'.tho frit 
by him as Plagues. 1&5,&C' 

U. 

"rAcancy of the Throne, the Conven- 
tion's Declaration of it juftify'd. 

Valentioian, afterwards Emperor, struck 
Julian'* Heathen Priest. 201 

'278 

VassaJli, who. - 
Vavasor,' what.  210, 271, 289,328 
Villani. i.'- ..„;»>•;•. 3*3j&C. 
Vindiciæ contra Ty rannos quoted. 106 
.Unaccountable, not the farm- with Irre- 
sistible. - , 464 
Uncle, according to the Saxon Law, com- 
.n- ") rrionly succeeded to Government be- 
v.fore the Nephew. •'. tf'i 
Universities independent of all Ecclesiaf- 
-•; 1 *ica/ Jurifdi&ion, but that of their 
~ ■" ,. Chancellor and VicechanceHor. 695 
Universitas Angliæ, r/je Parliament. 287 
Baronagii. 292, &c. 297, 337, &c. 
Voluntiers have a Right in their Princes 
x. Conquests. i • - 123 
Urbs rfirf wof it/lMft fcere signify a Bishop's 

See. '. 1 -408 , 

tlflier, Archbishop, against Resistance. 5, 

cha- 
ssis Objections answered. 7 
Usurpers, Filmer w»fl baw <i>«ji /«&- 
:mitied to as father Si 94 
Grotius /ap* they have d good Title a- 
gainst the right Heirs after the third 
Generation. 95 
Haw as good a Title at the best of 
Kings, if the Titles of the latter be 
not derived from Law. 4.67 
Vulgus, in great Councils, who. 403, 

405, &c. 

W. 

WAges for Knights of Shires, how 
antient. 423, &c. 

Wall'd Towns did not 06 such fend Mem- 
bers to Parliament. 4*9 
Wales, some of its Princes condemn'd in 
Parliament. 414 
War and Peace advis'd by Parliament. 

4i3,5i7 

War caustefs, by the Prince and his Sub- 
jeils, dissolves Government. 111 

Wardships here before the Conquest, tho 
with some Difference, but no Badge 
of Slavery. 543 

Westminster- Abby, its Charter confirm'd 
by William I. in Parliament. 394 

William I. renounced bis Conquest by his 
Coronation-Oath. 4<$7,&c. 5i6",&c. 

SSO 

And by confirming the Saxon Laws. 

551,&c. 

7t 

William I. the many Forfeitures in hit 
time prove that he ailed by Law. 5 51, 

&c. 

He nor his Successors never alter'd the 
Legistative Power.' 517 
He did not divide most of the stands of 
... - England to Le kid of him in ca pit e. 
■ ,' 3'8 

Could not without legal Trial tale away
English Mens Honours and Estates.

v If be did, it was contrary to his Coro- 
nation Oath. \ ib. 
Proofs for his supposed Conquests an- 
- fwer'd. 518—524 
His Claim from Edward the Confef- 
•... -for'slVia. . '519,&c. 

HewaseleOed. 52i,&C. 
His outlandish Followers did not make 
him absolute; or themselves, and the 
English who purchased from them, 
or held under them, Slaves. 523 
He took away the Lands of a great ma- 
ny of the English Nobility and Gen- 
try, ib; 
Not absolute in Normandy. 525 
. Oath never taken to him by the English 
V 1 as a Conqueror, but as Heir to the 
Confessor. 52* 
He did not take away so many Estates 
1 .. from the English, as is commonly 
■\ u said; many English Earls and Ba- 
rons in his time. 527 
And particularly when Doomsday-Bool 
was made. 528 
Counties said to be given by him to 
Normans, means only the Lieu- 
tenancy or Government of them. 

5*7 

He did not turn out the Tenants of 
Cburcbmen,wbowere Barons, Knights, 
&c. tho the Church bad then near 
half the Knights Fees in England. 

526,&c. 

His Testament for the Succession ap- 
proved by Parliament. 606 
Had his Title to Normandy from the 
Consent of the States. 627 
He and bis Successors had not the sole 
Legistative Power. 2 2 5, &c. 

Whether be acquired an absolute Power 
sir himself and bit Heirs. 498 
Prov'd be did not. 516 

He was eleOed. ib. 517, 5 21 

Call'd a Tyrant by some, but a just Prince 
by others; his Severity to the Eng- 
lish proceeded from their Rebellions. 

'Si°, 539, 5+5 
Or his own Tyranny. ib; 
Endeavoured to extirpate the English 
Tongue. 544 

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WiDUm I. A Clause in his Magna Charta, freeing the People from arbitrary Taxes. ib.

Instances alledg,dofhis arbitrary Power.

54f, 546, 547

iVo Proofs of his being a Conqueror, but of his Perjury to the Normans as veil as English- Conspiracy againsthim the Cause os not putting English in Posts afterwards, tbo obliged by his Oath to treat them as well as theFrench. 516,546'

He had not the sole Legiflative Power, nor Right to tax the People at pleasure. 223, &c 547 William Rufas didnot succeed by Inheritance, but by Authority of Parliament. 604,606, &o William III. ObjeSions against hisCountry and Religion anfwer'd. 639

James ll's Obstinacy forc'd him to accept the Crown. 640

King William'* Modesty in not taking it by virtue of his Conquest over King James and his Party, as William theConqueror, and Henry'AMi. &c. did, when they fubdWd their Enemies. 641 - 646,687

Objeclions against his Title from the prior Right of the Princesses Mary and Anne, and from the Oath ofAllegiance to King James and his Heirs ; from want of the Consent of the King in being, and from the Alt ofRecognition of K. James I.

644 <S73

William Bishop of Ely, Richard ft Vicegerent, depos'd for Tyranny.

444,&c.

William Warren, Earl of Surrey, his brave Answer against arbitrary Taxes.

5+3

Wites and Wittena signify Wist Men, Senators, or Members of the House of Commons. 261,268, &c.

Wittena Gemoots, what. 1' ■ Tv: 271 Wives,; their Subjtffion neither absolute

 nor irrevocable.ivT v < •sin.:;jg Wiv« and Children may judge of the

Commands of Husbands and fathers, and tn some Cases disobey, b ,\u. 30

Woman's Desire to her Husband; Gen. 3. 16. not to be understood of bis D'tfpotical Power over her. 11, &C.

World at first given to Mankind in cmmon* • • 'H" 1' • xOi,&c.

Writs of Summons and Parliament-Mt

 \fM .she i^d or z%tb if Edward L • iofc and those produc'i'by Dr. Brady

in the 6th and 8tb of King John, jutiy\\Summons to a great Council of Tenants in capite. .r..Z 371

YEomen peculiar: to England, their Privilege^ .: -1 1 ■ 439 York, its Province a distinQ Ecclesiastical Bodyfrom that of Canterbury.

6j>y,&c.

FIN I S.



{763}

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A Dissertation concerning the Punishment of Ambassadors, who transgress the Laws of the Countries where they reside; founded upon the Judgment of the celebrated Hugo Grotius; clear'd from many Objections, and exemplify'd with various Arguments and Authorities, both Antient and Modern. Written originally in Latin by the learned Dr. Richard Zoitch, sometime Professor of the Civil Law in the University of Oxford. Done into English, with the Addition of a Preface, concerning the Occasion of writing this Treatise. By X>. jr. Gent.

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