England's present interest discover'd with honour to the prince and safety to the people in answer to this one question, What is most fit ... at this juncture of affairs to be done for composing ... the heat of contrary interests & making them subservient to the interest of the government, and consistent with the prosperity of the kingdom? : presented and submitted to the consideration of superiours.

Of ENGLISH-RIGHT.

THere is no Government in the World but it musteither stand upon Will and Power, or Condition and Con∣tract: The one rules by Men; the other by Laws. And above all Kingdoms under Heaven it is England's Felicity to have her Constitution so impartially Just and Free, as there can∣not well be any thing more remote from Arbitrariness, and jealous of preserving her Laws, by which all Right is maintain'd.

These Laws are either Fundamental, and so immutable; or more Superficial and Temporary, and consequently alterable.

By Superficial Laws we understand such Acts, Laws or Sta∣tutes, as are suited to present Occurrences, and Emergencies of State; and which may as well be abrogated, as they were first made for the Good of the Kingdom: For Instance; Those Statutes that relate to Victuals, Cloaths, Times and Pla∣ces of Trade, &c. which have ever stood whilst the Reason of them was in Force; but when that Benefit, which once redoun∣ded, fell by fresh Accidents, they ended according to that old Maxim, Cessante ratione legis, cessat l••x.

By Fundamental Laws I do not only understand such as imme∣diately spring from Synteresis, that Eternal Principle of Truth and Sapience, more orless disseminated through Mankind, which are as the Corner Stones of Humane Structure, the Basis of reasonable Societies, without which all would run into Heaps, and Confusi∣on: namely, Honeste vivers, alterum non loedere, jus suum cui{que} tribuere; that is, To live Honestly, not to Hurt another, and to give every one their Right (Excellent Principles, and common to all Nations: Though that it self were sufficient to our present purpose) But those Rights and Priviledges, which I call English, and which are the proper Birth right of English men, may be reduced to these Three:

First, An Ownership, and Undisturbed Possession: That what they have, is rightly theirs, and no Body's else.

2dly, A Voting of every Law, that is made, whereby that Ownership or Propriety may be maintained.

3dly, An Influence upon, and a real Share in that Ju∣dicatory Power that must apply every such Law; which is the Ancient, Necessary and Landable Use of Juries, if not found among the Brittains, to be sure practised by the Saxons, and continued through the Normans to this very day.

That these have been the Ancient and Undoubted Rights of English men, as three great Roots, under whose spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Go∣vernment, I shall endeavour to prove.

1. An Ownership and Undisturbed Possession.

This relates both to Title and Security of Estate, and Liberty of Person, from the Violence of Arbitrary Power.

'Tis true, the Foot. Steps of the Brittish Government are very much over-grown by Time: There is scarcely any thing remarkable left us, but what we are beholden to Strangers for; either their own Unskilfulness in Letters, or their Depopulations and Conquests by Invaders, have deprived the World of a particular Story of their Laws * 1.1 and Customs in Peace or War: However, Caesar, Ta∣citus, and especially Dion, say enough to prove their Nature and their Government to be as far from Slavish, as their Breeding and Manners were remote from the Edu∣cation and greater Skill of the Romans. Beda and M. West minster say as much.

The Law of Property they observed, and made those Laws that concern'd the Preservation of it.

The Saxons brought no Alteration to these two Fun∣damentals of our English Government; for they were a Free People, govern'd by Laws; of which they them∣selves were the Makers; that is, There was no Law

made without the Consent of the People (de majoribus omnes) as Tacitus observeth of the Germans in general. They lost nothing by transporting of themselves hither; * 1.2 and doubtless found a greater Consistency between their Laws, then their Ambition: For the Learned Collector of the Brittish Councils tells us, That Ethelston, the Saxon * 1.3 King, pleading with the People, told them, Seeing I, according to your Law, allow what is yours, do ye so with me. Whence Three Things are observable, 1st, That some∣thing was theirs, that no Body else could dispose of. 2dly, That they have Property by their own Law; therefore they had a Share in making their own Laws. 3dly, That the Law was Umpier between King and People; nei∣ther of them ought to infringe; the Law limited them. This Ina, the Great Saxon King, confirms; There is * 1.4 no Great Man, saith he, nor any other in the whole King∣dom, that may abolish written Laws. It was also a great part of the Saxon Oath, administred to the Kings at their Entrance upon the Government, to Maintain and * 1.5 Rule according to the Laws of the Nation. Their Par∣liament they called Micklemote, or Wittangemote; it consisted of King, Lords and People, before the Clergy interwove themselves with the Civil Government. And Andrew Horn in his Miror of Justice, tells us, That * 1.6 the Grand Assembly of the Kingdom in the Saxon time, was to confer of the Government of God's People, how they might be kept from Sin in quiet, and have Right done them according to the Customs and Laws.

Nor did this Law end with the Saxon Race: William the Conqueror, as he is usually called, quitting all claim by Conquest, gladly stoopt to the Laws observed by the Saxon Kings, and so became a King by Leave, valu∣ing a Title by Election before that which is founded in * 1.7 Power only: He therefore at his Coronation made a so∣lemn Covenant to maintain the good, approv'd, and anci∣ent Laws of the Kingdom, and to inhibit all Spoil and un∣just Judgment.

And this, Henry the first, his third Son, amongst others his Titles mentioned in his Charter, to make Ely a Bi∣shoprick, calls himself Son of William the Great, who * 1.8 by Hereditary Right succeeded King Edward (call'd the Confessor) in this Kingdom. An ancient Chronicle of Leichfield speaks of a Council of Lords that advised * 1.9 William of Normandy, To call together all the Nobles and Wise Men throughout their Counties of England, that they might set down their own Laws and Customs; which was about the fourth year of his Reign: Which implies, that they had Fundamental Laws, and that he intended their Confirmation, as followeth. And one of the first Laws made by this King, which, as a notable Author saith, may be called the first Magna Charta in the Nor∣man Times, by which he reserved to himself nothing of the Free-men of this Kingdom, but their Free Service; in the Conclusion of it, saith, that The Lands of the Inhabi∣tants * 1.10 of this Kingdom were granted to them in Inheritance of the King, and by the Common Council of the whole Kingdom; which Law doth also provide, That they shall hold their Lands and Tenements well or quietly, and in Peace, from all unjust Tax and Tillage; which is further expounded in the Laws of Henry the first, ch. 4. That no Tribute or Tax should be taken, but what was due in Edward the Confessor's Time. So that the Norman Kings claim no other Right in the Lands and Possessions of any of their Subjects, then according to English Law and Right. And so tender were they of Property in those times, that when Justice it self became importunate in a Case, no Distress could issue without publick Warrant obtained; nor that neither, but upon Three Complaints first made: Nay, when Rape and Plunder was rife, and men seem'd to have no more Right to their own, then they had Power to maintain, even then was this law suffici∣ent Sanctuary to all Oppressed, by being publickly plea∣ded * 1.11 at the Bar against all Usurpations, though it were

under the Pretence of their Conqueror's Right it self, as * 1.12 by the Case of Edwin of Sharnbourn appears.

The like Obligation to maintain this Fundamental Law of Property, with the appendent Rights of the People, was taken by Rufus, Henry the 1st, Stephen, Henry the 2d, Richard the 1st, John, and Henry the 3d; which brings me to that Famous Law, called, Magna Charta, or The Great Charter of England, of which more anon; it being my Design to shew, That nothing of the Essential Rights of English men was thereby de novo granted, as in Civility to King Henry the third it is termed; but that they are therein only repeated and confirmed: Wherefore I shall return to antecedent Times tofetch down the remaining Rights.

The second part of this first Fundamental is, Liberty of Person. The Saxons were so tender in the point of Imprisonment, that there was little or no use made of it; nor would they so punish their Bond-men, vinculis coercere rarum est: In case of Debt or Dammage, the Recovery thereof was either by a Delivery of the just Value in Goods, or upon the Sheriffs Sale of the Goods, in Money; and if that satisfied not, the Land was exten∣ded; * 1.13 and when all was gone, they were accustomed to make their last Seizure upon the Party's Arms, and then he was reputed an Undone Man, and cast upon the Cha∣rity of his Friends for Subsistence, but his Person never imprison'd for the D••bt, no, not in the King's Case: And to the Honour of King Alfred be it spoaken, He im∣prison'd * 1.14 one of his Judges for Imprisoning a Man in that Case. And we find among his Laws this Passage, Qui immerentem Paganum vin••ul••s 〈◊〉〈◊〉 stri••xer••t, dec••m solidis noxam sarcito: That if a Man should imprison a Pagan, or Heathen unjustly, his Purgation of that Offence should be no less then the Payment of Ten Shillings; a Sum very considerable in those dayes. Nor did the Revolution from Saxon to Norman drop this Priviledge;

for besides the general Confirmation of former Rights by William, surnamed the Conqueror, his Son Henry the * 1.15 first, particularly took such Care of continuing this part of Property inviolable, that in his Time no Person was to be imprison'd for committing of Mortal Crime it self, unless he were first attainted by the Verdict of Twelve Men.

Thus much for-the first of my Three Fundamentals, Right of Estate, and Liberty of Person; that is to say, I am no man's Bond-man, and what I possess is inviolably mine own.

2. A Voting of every Law that is made, whereby that Ownership or Propriety may be maintained.

That the second Fundamental of our English Govern∣ment was no Incroachment upon the Kings of more modern Ages, but extant long before the great Charter made in the Reign of Hen. 3. even as early as the Brit∣tains themselves; and that it continued to the time of Hen. 3. I shall prove by several Instances.

Caesar in his Commentaries tells us, That it was the * 1.16 Custom of the British Cities to Elect their General; and if in War, why not in Peace? Dion assures us in the Life of Severus the Emperor, That in Brittain the People held a Share in Power and Government; which is the modestest Construction his words will bear. And * 1.17 Tacitus saith, They had a Common Council; and that one great Reason of their Overthrow by the Romans was, their not Consulting with, and Relying upon their Com∣mon Council. Again, Both ad and Mat Westminster tell us, That the Brittains summon'd a Synod, chose their Moderator, and expell'd the Pelagian Creed: All which supposes popular assemblies, with Power to order Nati∣onal Affairs. And indeed, the learned Author of the Brit∣tish Councils gives some Hints to this Purpose, That they

had a Common Council, and call'd it, KYFR-Y-THEN.

The Saxons were not inferiour to the Brittains in this Point, and Story furnisheth us with more and plainer Proofs. They brought this Liberty along with them, and it was not likely they should loose it, by transport∣ing themselves into a Country where they also found it. Tacitus reports it to have been generally the German. Liberty, like unto the Concie of the Athenians and * 1.18 Lacedemonians. They call their Free-men Frilingi, and these had Votes in the Making and Executing the general Laws of the Kingdom. In Ethelbert's time, after Au∣stin's Insinuations had made his Followers a Part of the Government, the Commune Concilium was tam Cleri quam Populi. In Ina's time, Suasu & instituto Episcopo∣rum, * 1.19 omnium Senatorum & natu majorum sapientum populi. Alfred after him reform'd the former Laws consulto sa∣pientum. Likewise Matters of publick and general Charge, in case of War, &c. we have granted in the As∣sembly, Regi, Baronibus & Populo. And though the Sa∣xon Word properly imports the Meeting of Wise Men, * 1.20 yet all that would come might be present, and interpose their Like or Dislike of the present Proposition, as that of Ina, in magna servorum Dei frequentia. Again, Com∣mune Concilium seniorum & populorum totius regni, the Common Council of the Elders and People of the whole Kingdom. The Council of Winton, Ann. 855. is said to be in the Presence of the Great Men, aliorum{que} fidelium * 1.21 infinita multitudine; & an infinite multitude of other faith∣ful People, which was nigh Four Hundred Years before the Great Charter was made.

My last Instance of the Saxon Ages shall be out of the Glossery of the learned English Knight, H. Spelman: * 1.22 The Saxon Wittangemote or Parliament (saith he) is a Con∣vention of the Princes, as well Bishops as Magistrates, and the free People of the Kingdom; and that the said Wittan∣gemote consulted of the common Safety in Peace and War, and for the Promotion of the common Good. William of

Normandy chose rather to rely upon the Peoples Consent, then his own Power to obtain the Kingdom. He swore to them to maintain their old Laws and Priviledges; they to him Obe∣dience for his so governing of them: for, as a certain Author hath it, He bound himself to be Just, that he might be Great; * 1.23 and the People to submit to Justice, that they might be Free In his Laws, c. 55. We, by the Common Council of the whole Kingdom, have granted the Peoples Lands to them in Inheri∣tance, according to their ANCIENT Laws. Matters of general Charge upon the whole Body of the People, were setled by this grand Council, by the Commune Concilium, especially in the Charge of Arms imposed upon the Subject. * 1.24 The Law saith it to have been done by the common Council of the Kingdom. So W. Rufus and Henry the First, were received by the common Consent of the People. And Stephen's Words were, Ego Stephanus, Dei gratia, Assensu Cleri & Populi in Regno Angliae electus, &c. I Stephen, by the Grace of God, and Consent of the Clergy and People, chosen King of England, &c. So King John was chosen tam Cleri quam Populi unanimo consensu & favore, by the Fa∣vour and unanimous Consent of the Clergy and People: And his Queen is said to have been crown'd de communi consensu & concordi voluntate Archiepiscoporum, Comitum, Baronum, Cleri & Populi totius Regni, i. e. by the common Assent and unanimous Good-Will of the Arch-Bishops, Bishops, Counts, Barons, Clergy and People of the whole Kingdom. King Ed. 1 also desired Money of the commune Concilium or Parliament, as they have given in my time, and that of my Progenitors, Kings.

All which shows, that it was Antecedent to the Great Charter, not the Rights therein repeated and confirmed, but the Act it self.

And King John's Resignation of the Crown to the Pope, being questiond upon some Occasion in Edward the 3d's * 1.25 Time, it was agreed upon, that he had no Power to do it without the Consent of the Dukes, Prelates, Barrons and Commons.

And as paradoxal as any may please to think it, 'tis

the great Interest of a Prince, that the People should have a share in the making of their own Laws; where 'tis otherwise, they are no Kings of Free-men, but Slaves, and those their Enemies for making them so. Leges nulla alia causa nos tenent, quam quod judicio populi recepta sunt; The Laws (saith Ulpian) do therefore obliege the People, because they are allowed of by their Judgment. And Gratian, in Dec. distinct. 4. Tum demum humanae leges habent vim suam, cum fuerint non modo institutae, sed etiam firmatae Approbatione Communitatis: It is then (saith he) that human Laws have their due Force, when they shall not only be devised, but confirm'd by the Approbation of the People. 1. It makes Men diligent, and encreaseth Trade, which advances the Revenue; for where Men are not free, they will never seek to improve, because they are not sure of what they have. 2. It frees the Prince from the Jea∣lousie and Hate of his People; and consequently, the Troubles and Danger that follow; and makes his Province easie and safe. 3. If any Inconveniency attends the Exe∣cution of any Law, the Prince is not to be blam'd; 'tis their own Fault that made, at least consented to it.

I shall now proceed to the third Fundamental, and by plain Evidence prove it to have been a material part of the Government before the Great Charter was enacted.

3. The People have an Influence upon, and a great Share in that Judicatory Power. &c.

That it was a Brittish Custom, I will not affirm, but have some Reason to suppose; for if the Saxons had brought it with them, they would also have lest it behind them, and in all likelyhood there would have been some Footsteps in Saxony of such a Law or Custom which we find not. I will not enter the Lists with any about it; This shall suffice, that we find it early among the Saxons in this Country; and if they, a free People in their own Country, setling them∣selves here as a new planted Colony, did supply what was defective in their own Government, or add some new

Freedom to themselves, as all Planters are wont to do; which are as those first and Corner Stones, their Posterity with all Care and Skill are to build upon, that will serve my turn, to prove it a Fundamental; that is, such a first Prin∣ciple in our English Government, by the Agreement of the People diffusively, that it ought not to be violated: I would not be understood of the Number, but of the Way of Tryal; that is to say, that Men were not to be condemned but by the Votes of the Freemen. N. Bacon thinks that in ruder times the multitude tryed all among themselves; and fancyes it came from Graecians, that determin'd Controversies by the Suffrage of 34 or the major part of them. Be it as it will, Juries the Saxons had; for in the Laws of King Aetheldred, about 300 Years before the Entrance of the Norman Duke, we * 1.26 find enacted, in singulis Centuriis, &c. thus Englisht, In every Hundred let there be a Court, and let twelve An∣cient Free-men, together with the Lord of the Hundred be sworn, that they will not condemn the Innocent, or acquit the Guilty: And so strict were they of those Ages in observing this fundamental Way of Judicature, that Alfred put one of his Judges to Death for passing Sentence upon a Verdict corruptly obtain'd, upon the Votes of the Jurors, three of twelve being in the Negative: If the Number was so sacred, what was the Constitution it self? The very same King ex∣ecuted another of his Judges for passing Sentence of Death upon an Ignoramus return'd by the Jury; and a third for condemning a Man upon an Inquest taken ex officio, when as the Delinquent had not put himself upon their Tryal. More of his Justice might be mention'd even in this very Case.

There was also a Law made in the time of Aetheldred, * 1.27 when the Brittains and Saxons began to grow tame to each other, and intercommon amicably, that saith, Let there be Twelve men of Understanding, &c. six English and six Welsh, and let them deal Justice, both to English and Welch.

Also in those simpler times, If a Crime extended but to * 1.28 some shameful Pennace, as Pillary or Whipping (the last whereof as usual as it may be with us, was inflicted only

upon their Bond-men) then might the Pennance be reduc'd to a Ransom, according to the Nature of the Fault; but it must be so assest in the Presence of the Judge, and by the Twelve, that is the Jury of Friling••, or Free-men.

Hitherto Stories tell us of Tryals by Juries, and those to have consisted in general Terms of Free-men, but PER PARES came after, occasion'd by the considerable Saxons, neglecting that Service, and leaving it to the inferior People (who lost the Bench, their ancient Right, because they were not thought Company for a Judge or Sherif) And from the growing Pride of the Danes, who slighted such a Rural Ju∣dicature, and despised the Fellowship of the mean Saxon Free-men in publick Service; for the wise Saxon King per∣ceiving the Dangerous Consequence of submitting the Lives and Liberties of the Inferiour (but not less useful People) to the Dictates of any such superb Humour; and on the other hand, of subjecting the Nobler Sort to the Suffrage of the Inferior Rank, with the Advice of his Wittagenmote provides a third Way, most Equal and Grateful, and by Agreement with Gunthurne the Dane, setled the Law of Peers, or Equals; which is the Envy of Nations, but the famous Priviledge of our English People, one of those three Pillars the Fabrick of this ancient and Free Government stands upon.

This Benefit gets Strength by Time, and is receiv'd by the Norman-Duke and his Successors; and not only con∣firm'd in the lump of other Priviledges, but in one notable Case for all, that might be brought to prove, that the fun∣damental Priviledges mention'd in the Great Charter, 9. Hen. 3. were before it. The Story is more at large deliver'd by our Learned Selden; But thus; The Norman Duke having * 1.29 given his half Brother Odo, a large Territory in Kent, with the Earldom; and he taking Advantage at the King's being * 1.30 displeased with the Arch-Bishop of Canterbury, to posses him∣self of some of the Lands of that See: Landfrank that suc∣ceeded the Arch-Bishop, inform'd hereof, petition'd the King for Justice secundum legem terrae, according to the Law of the Land; upon which the King summon'd a County-Court,

the Debate lasted three Dayes before the Free-men of Kent in the Presence of Lords and Bishops, and others skilful in the Law, and the Judgment passed for the Arch-Bishop UPON THE VOTES OF THE FREE-MEN.

By all which it is (I hope) sufficiently and inoffensively manifested, that these three Principles:

1. English men have individually the alone Right of Pos∣session and Disposition of what they have.

2. That they are Parties to the Laws of their Country, for the Maintenance of that great and just Law.

3. That they have an Influence upon, and a real Share in the Judicatory Power, that shall apply those Laws made, have been the ancient Rights of the Kingdom, and common Basis of the Government; that which Kings under the se∣veral Revolutions have sworn to maintain, and History affords us so many Presidents to confirm; So that the Great Charter made in the 9th of Henry the 3d, was not the Nativity, but Restoration of ancient Priviledges from Cap∣tivity; No Grant of New Rights, but a New Grant, or Confirmation rather of Ancient Laws & Liberties, violated by King John, and gain'd by his Successor, at the Expence of a long and bloody War, which shew'd them as resolute to keep, as their Ancestors had been careful to enact those excellent Laws.

And so I am come to the Great Charter, which is com∣prehensive and repetitious of what I have already been dis∣coursing, and which I shall briefly touch upon with those successive Statutes that have been made in Honour and Preservation of it.

I shall rehearse so much of it as falls within the Conside∣ration of the foregoing Matter, which is a great deal in a little; with something of the Formality of Grant and Curse, that this Age may see, with what Reverence and Circumspection our Ancestors govern'd themselves in Con∣firming and Preserving it.

Henry, by the Grace of God King of England, &c. * 2.1

To all Arch-Bishops, Earls, Barons, Sheriffs, Pro∣voses,

Officers, unto all Bailifs, and our faithful Subjects, who shall see this present Charter, Greeting.

Know ye, that we, unto the Honour of Almighty God, and for the Salvation of the Souls of our Pro∣genitors, and our Successors, Kings of England, to the Advancement of Holy Church, and A∣mendment of our Realm, of our meer and free Will have given and granted to all Arch-Bishops, &c. and to all Free-men of this our Realm, these Liberties underwritten, to be holden and kept in this our Realm of England for evermore.

Though in Honour to the King, it is said to be out of his meer and free Will, yet the Qualification of the Persons, he is said to grant the ensuing Liberties to, shew, that they are Terms of Formality, viz. To all Free-men of this Realm; for they must be free, because of these Laws and Liberties, since 'twas impossible they could be any Thing but Slaves without them; Consequently, this was not an Infranchising, but confirming to Free-men their just Privi∣ledges. The Words of the Charter are these:

* 2.2A Free-man shall not be amerced for a small Fault, but after the Quantity of the Fault; and for a great Fault, after the Manner thereof, sa∣ving to him his Contenements or Freehold: And a Merchant likewise shall be amerced, saving to him his Merchandize; and none of the said A∣mercements shall be assessed, but by the Oath of good and honest Men of the Vicinage.

* 2.3No Free-man shall be taken or imprison'd, nor be disseized of his free hold or Liberties, or free Cu∣stoms, or be outlaw'd or exiled, or any other wayes destroyed; nor we shall not pass upon him, nor condemn him, but by Lawful Judgment of

his Peers, or by the Law of the Land; we shall sell to no Man, we shall deny, or defer to no Man either Justice or Right.

I stand amazed, how any Man can have the Confidence to say, These Priviledges were extorted by the Barons Wars, when the King declares, that what he did herein, was freely or that they were New Priviledges, when the very Tenour of the Words prove the contrary; for Freehold, Liberties, or Free Customs are by the Charter it self supposed to be in the Possession of the Free-men at the making and publish∣ing thereof. No Free-man shall be taken or imprison'd; then he is free; this Liberty is his Right. Again, No Free-man shall be disseized of his Freehold, Liberties, or free Customs; then certainly he was in Possession of them. And that great Father in the Laws of England, Chief Justice Cook in his Proaem to the 2d Part of his Institutes, tells us, * 2.4 that th••se Laws and Liberties were gather'd and observ'd amongst others in an intire Volumn by King Edward the Con∣fessor, confirmed by William, sirnamed the Conqueror; which were afterwards ratified by Henry the first; enlar∣ged by Henry the second, in his Constitutions at Clarendon, and after much Contest and Blood split between King John and the Barons concerning them, were solemnly established at running-Mead near Stanes; and lastly, brought to their former Station, and publish'd by this King Henry the third, in the 9th Year of his Reign; And though Evil Counsellors would have provoakt him to void his Father's Act and his own, as if the first had been the Effect of Force, the other of Non-Age; yet it so pleased Almighty God, who hath ever been propitious to this Ungrateful Island, that in the 20th Year of his Reign, he did confirm and compleat this Charter, for a perpetual Establishment of Liberty to all free-born English Men and their Heirs forever, ordaining, Quod contravenientes per Dominum Regem cum convicti fuerint, graviter puniantur. i. e. but whosoever should act any Thing contrary to these Laws, upon Conviction should be grievously punished by our Lord the King. And in the 22 Year of his Reign, it was confirmed by the Statute of

Marleb. c. 5. and so venerable an Esteem have our Ancestors had for this great Charter and indispensibly necessary have * 2.5 they thought it to their own and Posterities Felicity, that it hath been above 30 Times ratified, and commanded under great Penalties, to be put in Execution.

Here are the 3 Fundamentals comprehended & exprest, to have been the Rights and Priviledges of English Men.

1. Ownershp, consisting of Liberty and Property, in that it supposes English Men to be Free, there's Liberty; next, that they have Freeholds; there's Property.

2. That they have the Voting of their own Law; for that was an ancient free Custom, as I have already prov'd; and all such Costoms are expresly confirmed by this great Charter; Besides, the People helpt to make it.

3. An Influence upon, and a real Share in the Judicatory Power, in the Execution and Application of Law.

This is a substantial Part, thrice provided for in those sixteen Lines of the great Charter by us rehears'd: 1. That no Amercement shall be assessed, but by the Oath of good and honest Men of the Vicinage. 2. Nor we shall not pass upon him, nor condemn him, but by Lawful Judgment of his Peers. 3. Or by the Law of the Land, which is Synonymous, or a Saying of equal Signification with Lawful Judgment of Peers; for Law of the Land, and Lawful Judgment of Peers, are the Proprium quarto modo, or essential Qualities of these Chapters of our great Charter, being communi∣cable, Omni soli & semper, to all and every Clause thereof alike. Chief Justice Cook well observes, that per legem * 2.6 terrae, or by the Law of the Land, imports no more then a Tryal by Proces, and Writ original at common Law, which cannot be without the Lawful Judgment of Equals, or a common Jury; therefore per legale Judicium parium, by the Lawful Judgment of Peers, and per legem terrae, by the Law of the Land, plainly signifie the same Priviledge to the People: So that it is the Judgment of the Free-men of England, which gives the Cast, and turns the Scale of En∣glish Justice.

These Things being so evidently prov'd by long Use and several Laws, to have been the first Principles or

Fundamentals to the English free Government; I take leave to propose this Question; May the free People of England be justly disseized of all or any of these fundamental Principles, without their Individual Consent?

Answ. With Submission to better Skill, I conceive, Not; for which I shall produce first my Reasons; then Authorities.

1. Through the Brittish, Saxon and Norman Times, the People of this Island have been reputed and call'd Free-men by Kings, Parliaments, Records and Histories; and as a Son supposes a Father, so Free-men suppose Free∣dom. This Qualification imports a supream Right, such a Right as beyond which there is none on Earth to disfree them, or deprive them of it; therefore an unalterable fun∣damental Part of the Government.

2. It can never be thought, that they intrusted any Legislators with this Capital Priviledge further then to use their best Skill to secure and maintain it, that is, so far as they were a Part of the English Government; they never delegated or impower'd any Men, that de jure they could deprive them of that Qualification? and a Facto ad Jus non valet Argumentum, for the Question is not, What May be done? but what Ought to be done? Overseers and Stewards are impower'd, not to alienate, but preserve and improve other Mens Inheritances. No Owners deliver their Ship and Goods into any Man's Hands to give away, or run upon a Rock; neither do they consign their Affairs to Agents or Factors without Limitation. All Trusts suppose such a Fundamental Right in them for whom the Trusts are, as is altogether indissolvable by the Trustees: The Trust is the Liberty and Property of the People; the Limitation is, that it should not be invaded, but inviolably preserved according to the Law of the Land.

3. If Salus Populi be suprema lex; the Safety of the Peo∣ple the highest Law, as say several of our ancient famous Lawyers and Law-Books; then since the aforesaid Rights are as the Sinnews of this free Body politique, or that sove∣raign Cordial without which this free People must needs

consume and pine away into utter Bondage; it follows, they are the highest Law, and therefore ought to be a Rule and Limit to all subsequent Legislation.

4. The Estate goes before the Steward, the Foundation before the House, People before their Representatives, and the Creator before the Creature. The Steward lives by preserving the Estate; the House stands by Reason of its Foundation; the Representative depends upon the People, and the Creature subsists by the Power of its Cre∣ator. Every Representative in the World, is as the Cre∣ature of the People; for the People make them, and to them they owe their Being: Here is no Transessentiating or Transubstantiating of Being from People to Represen∣tative, no more then there is an absolute transferring of a Title in a Letter of Atorney; The very Term Represen∣tative is enough to the contrary: Wherefore as the House cannot stand without its Foundation, nor the Creature sub∣sist without its Creator; so can there be No Representative without a People, nor that People free, which all along is intended (as inherent to, and inseparable from the English People) without Freedom; nor can there be any Freedom without something be Fundamental. In short, I would fain know of any Man, how the Branches can cut up the Root of the Tree that bears them? How any Representa∣tive that is not only a meer Trust to preserve Fundamentals, the Peoples Inheritance; but, that is a Representative, that makes Laws, by Virtue of this Fundamental Law, that the People hath a Power in Legislation (the 2d Principle prov'd by me) can have Power to remove or destroy that Fundamental? The Fundamental makes the People free, this free People make a Representative; Can this Creature unqualifie its Creator? What Spring ever rose higher then its Head? The Representative is at best but a true Copy, an Exemplification; the free People are the Original, not cancellable by a Transcript: And if that Fundamental that gives to the People a Power of Legislation, be not annullable by that Representative, because it makes it what it is; much less can that Representative disseize Men of their Liberty and Property, the first Great Fundamental,

that is the Parent of this other, which intitles to a Share in making Laws for the Preservation of the first inviolably. Nor is the third other then the necessary Production of the two first, to intercept Arbitrary Designs, and make Power le∣gal; for where the People have not a Share in Judgment, that is, in the Application, as well as making of the Law; the other two are imperfect, open to daily Invasion, should it be our Infelicity to have a violent Prince: for as Property is every day expos'd, where those that have it are destitute of Power to hedge it about by Law-making; so those that have both, if they have not the Application of the Law, but the Creatures of another Part of the Government, how easily is that Hedge broken down? And indeed, as it is a most just and necessary, as well as ancient and honourable Custom, so it is the Princes Interest; for still the People are concern'd in the Inconveniencies with him, and he is freed from the Temptation of doing arbitrary Things, and their Importunities, that might else have some Pretence for such Adresses, as well as from the Mischiefs that might * 2.7 ensue such Actions. It might be enough to say, that here are above 50 Statutes now in Print, beside its venerable Anti∣quity, that warrant and confirm this Legale judicium parium suorum, or the Tryal of English Men by their Equals.

But I shall hint at a few Instances: The first is, The Earl of Lancaster in the 14th of Edw. 2. adjudged to dye with∣out Lawful Tryal of his Peers, and afterwards Henry Earl of Lancaster his Brother, was restored: the Reasons given were two; 1. Because the said Thomas was not arraign'd and put to Answer; 2. That he was put to Death without Answer, or Lawful Judgment of his Peers. The like Proceedings were in the Case of John of Gaunt, p. 39. coram Rege. And in the Earl of Arundel's Case, Rot. Parl. 4 Edw. 3. n. 13. And in Sr. John Alce's Case, 4 Edw. 3. n. 2. Such was the Destruction committed on the ••d. Hastings in the Tower of London by Richard the 3d. But above all, that Attainder of Thomas Cromwel, Earl of Essex, who was attainted of high Treason, as appears Rot. Parl, 32. Hen. 8. of which saith Chief Justice Cook, as I remem∣ber, Let Oblivion take away the Memory of so foul a

Fact, if it can; if not, however, let Silence cover it. 'Tis true, there was a Statute obtained in the 11th of Henry the 7th, in Defiance of the Great Charter, which authoriz'd several Exactions contrary to the free Customs of this Realm; particularly in the Case of Juries, both sessing and punishing by Justices of Assize and of the Peace, without the fining and Presentment of 12 Free-men; Empson and Dudley were the great Actors of those Oppressions, but they were hang'd for their Pains, and that illegal Statute repealed in the 1st of Henry the 8th c. 6. The Conse∣quence is plain; That Fundamentals give Rule to Acts of Parliament, else why was the Statute of the 8th Edw. 4. c. 2. of Liveries and Information by the Discretion of the Judges to stand as an Original; and this of the 11th of Henry the 7th repealed as illegal? for, therefore any Thing is unlawful, because it transgresseth a Law: But what Law can an Act of Parliament transgress, but that which is Fundamental? Therefore Tryal by Juries or Lawful Judgment of Equals, is by Acts of Parliament confest to be a Fundamental Part of our Government: And because Chief Justice Cook is generally esteem'd a great Oracle of Law, I shall in its proper Place present you with his Judgment upon the whole Matter.

5. These Fundamentals are unalterable by a Represen∣tative, which were the Result and Agreement of English Free-men individually, the ancienter Times not being ac∣quainted with Representatives; for then the Free-men met in their own Persons: In all the Saxons Story we find no Mention of any such Thing; for it was the King, Lords and Free-men, the Elders and People; and at the Counsel of Winton, in 855. is reported to have been present the Great Men of the Kingdom, and an INFINIT MULTI∣TUDE * 2.8 of other faithful People. Also that of King Ina, the common Council of the Elders & PEOPLE of the WHOLE Kingdom. It is not to be doubted but this continued after the Norman Times; and that at Running Mead by Sta••••s the Freemen of England were personally present at the Con∣firmation of that great Charter, in the Reign of King John.

But as the Ages grew more human, with respect to Vil∣lains and Retainers, and the Number of Free-men encreased, there was a Necessity for a Representative, especially, since Fundamentals were long ago agreed upon, and those Ca∣pital Priviledges put out of the Reach and Power of any litle Number of Men to endanger: And so careful were their Representatives in the time of Edward the Third, of * 2.9 suffering their Liberties and free Customs to be infring'd, that in Matters of extraordinary Weight they would not deter∣min, till they had first return'd and conferr'd with their se∣veral Counties or Burroughs that delegated them.

Several Authorities in Confirmation of the Reasons.

So indubitably are these Fundamentals the Peoples Right, and so necessary to be preserved, that Kings have successi∣vely known no other safe or legal Passage to their Crown & Dignity, then their solemn Obligation inviolably to main∣tain * 2.10 them. So sacred were they reputed in the Dayes of Henry the 3d, that not to continue or confirm them, were * 2.11 to affront God, and damn the Souls of his Progenitors and Successors; to Depress the Church, and Deprave the * 2.12 Realm: That the Great Charter comprehensive of them should be allow'd as the common Law of the Land, by all * 2.13 Officers of Justice; that is the lawful Inheritance of all Commoners: That all Statute-Laws or Judgments whatso∣ever, made in Opposition thereunto, should be null and void: That all the Ministers of State and Officers of the Realm, should constantly be sworn to the Observation thereof: and so deeply did after-Parliaments reverence it, and so care * 2.14 ful were they to preserve it, that they both confirm'd it by 32. several Acts, and enacted Copies to be taken and lodg'd in each Cathedral of the Realm, to be read four times a Year publickly before the People; as if they would have them more oblig'd to their Ancestors for redeeming and transmitting those Priviledges, then for begetting them: And that Twice every Year the Bishops, apparel'd in their Pontificials, with Tapers burning, and other Solemnities,

should pronounce the greater Excommunication against the Infrin∣gers of the Great Charter, though it were but in Word or Counsel; for so saith the Statute. I shall for further Satisfaction repeat the Ex∣communication or Curse pronounced both in the Dayes of Henry the Third, and Edward the First.

The Sentence of the Curse given by the Bishops, with the King's Consent, against the Breakers of the Great Charter.

IN the year of our Lord 1253. the third day of May, in the great Hall of the King at Westminster, in the Pre∣sence, and by the Consent of the Lord Henry, by the Grace of God King of England, and the Lord Richard, Earl of Cornwall, his Brother; Roger Bigot, Earl of Norfolk, Marshal of England; Humphry, Earl of Here∣ford; Henry, Earl of Oxford; John, Earl Warren; and other Estates of the Realm of England; We Boni∣face, by the Mercy of God, Arch-Bishop of Canterbury, Primate of England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of Excester, M. of Carlile, W. of Bath, E. of Rochester, T. of St. Davids, Bishop, apparell'd in Pontificials, with Tapers burning, against the Breakers of the Churches Liberties, and of the Liberties and other Customes of this Realm of England, and namely these which are contained in the Charter of the Common Liberties of England, and Char∣ter of the Forrest, have denounced Sentence of Excom∣munication in this Form, By the Authority of Almigh∣ty God, the Father, the Son, and the Holy Ghost, &c. of the blessed Apostle Peter and Paul, and of all Apostles, and of all Martyrs, of blessed Edw. King of England, and of all the Saints of Heaven, We Excommunicate and

Accurse, and from the Benefit of our Holy Mother, the Church, we sequester all those that hereafter willingly and maliciously deprive or spoil the Church of her Right; and all those that by any Craft or Willingness, do vio∣late, break, diminish, or change the Churches Liber∣ties, and free Customs contained in the Charters of the Common Liberties, & of the Forrest, granted by our Lord the King, to Arch-Bishops, Bishops, and other Prelates of England, and likewise to the Earls, Barons, Knights and other Free-holders of the Realm; and all that se∣cretly and openly, by Deed, Word or Counsel do make Statutes, or observe them being made, and that bring in Customs, to keep them, when they be brought in, a∣gainst the said Liberties, or any of them, & all those that shall presume to judge against them; and all and every such Person before-mention'd, that wittingly shall com∣mit any Thing of the Premises, let them well know that they incur the aforesaid Sentence, ipso facto.

The Sentence of the Clergy against the Breakers of the Articles above-mentioned.

IN the Name of the Father, the Son, and the Holy Ghost, Amen: Whereas our Soveraign Lord the King, to the Honour of God, and of holy Church, and for the common Profit of the Realm, hath granted for him, and his Heirs for ever these Articles above-xwriten, Robert Arch-Bishop of Canterbury, Primate of all England, admonished all his Province once, twice and thrice, because that Shortness will not suffer so much delay, as to give knowledge to all the People of England, of these Presents in writing: We therefore enjoyn all Persons, of what Estate soever they be, that they, and every of

them, as much as in them is, shall uphold and maintain these Articles granted by our Soveraign Lord the King, in all Points: And all those that in any Point do resist or break, or in any manner hereafter Procure, Counsel, or in any wise Assent to, Testifie or Break those Ordi∣nances, or go about it, by Word or Deed, openly or privily, by any manner of Pretence or Colour; we, the aforesaid Arch-Bishop, by our Authority in this Writing expressed, do Excommunicate and Accurse, and from the Body of our Lord Jesus Christ, and from all the Company of Heaven, and from all the Sacra∣ments of Holy Church do sequester and exclude.

We may here see, that in the obscurest Time of Popery they were not left without a Sence of Justice; and the Papists, whom many think no Friends to Liberty and Property, under dreadful Pe∣nalties injoyn an inviolable Observance of this great Charter, by which they are confirm'd. And though I am no Roman Catholick, and as little value their other Curses pronounc'd upon Religious Dissents, yet I declare ingenuously, I would not for the World incur this Curse, as every Man deservedly doth, that offers Vi∣olence to the Fundamental Freedoms thereby repeated and confir∣med: And that any Church or Church Officers in our Age, should have so little Reverence to Law, Excommunication or Curse, as to be the Men that either vote or countenance such Severities, as bid Defiance to the Curse, and rend this memorable Charter in pieces, by disseizing Free-men of England of their Freeholds, Lib••••∣ties & Properties, meerly for the Inoffensive Exercise of their Co••∣science to God in Matters of Worship, is a Civil sort of Sacriledge.

I know it is usually objected, That a great Part of the Charter is spent on the Behalf of the Roman Church, and other Things now abolisht; and if one Part of the great Charter may be repeal'd or invalidated, why not the other?

To which I answer; This renders nothing that is Fundamental in the Charter the less valuable; for they do not stand upon the Legs of that Act, though it was made in Honour of them, but the Ancient and primitive Institution of the Kingdom. If the Pe∣tition

of Right were repeal'd, the great Charter were never the less in Force, it being not the Original Establishment, but a Declara∣tion and Confirmation of that Establishment. But those Things that are abrogable or abrogated in the great Charter, were never a Part of Fundamentals, but hedg'd in then for present Emer∣gency or Conveniency. Besides, that which I have hitherto main∣tained to be the Common and Fundamental Law of the Land, is so reputed, and further ratified by the Petition of Right, 3 Car. 1. which was long since the Church of Rome lost her Share in the Great Charter. Nor did it relate to Matters of Faith and Worship, but-Temporalities only; the Civil Interest or Propriety of the Church But with what Pretence to Mercy or Justice, can the Protestant Church null the Romish, that she may retain the English Part with∣out conforming to Rome, and yet now cancel the English Part it self to every free-born English Man that will not conform to Her? But no more of this at this Time; only give me leave to remind a Sort of active Men in our Times, that the cruel Infringers of the Peoples Liberties, and Violaters of these Noble Laws, did not escape with bare Excommunications and Gurses; for such was the venerable Esteem our Ancestors had for these great Priviledges, and deep Sollicitude to preserve them from the Defacings of Time, or Usurpation of Power, that King Alfred executed 40 Judges for warping from the ancient Laws of the Realm. Hubert de Burgo, Chief Justice of England in the Time of Edw. 1. was sentenced by his Peers in open Parliament for advising the King against the Great Charter. Thus Spencers, both Father and Son for their Arbitrary Rule and Evil Counsel to Edw. 2. were exiled the Realm. No better Success had the Actions of Tresilian & Belknap: And as for Empson and Dudley, though Persons of some Quality in the Time of King Henry the 7th, the most ignominious Death of our Coun∣try, such as belongs to Theft and Murder, was scarce Satisfaction enough to the Kingdom for their Illegal Courses. I shall chuse to deliver it in the Words of Chief Justice Cook, a Man, whose Lear∣ning in Law hath not without Reason obtained a venerable Chara∣cter of our English Nation.

There was (saith he) an Act of Parliament, made in the 11th Year of King Hen. 7. which had a fair flattering Preamble, pretending to avoid divers Mischiefs, which were (1st) To the high Dispicasurs of

Almighty God. (2dly) The great Let of the Common Law. And (3dly) The great Let of the Wealth of this Land. And the Purven of that Act, tended in the Execution contrary, EX DIAMETRO, viz. To the high Displeasure of Almighty God, and the great Let, nay, the utter Subversion of the Common Law, and the great Let of the Wealth of this Land;—as hereafter shall appear, the Sub∣stance of which Act follows in these Words.

THat from thenceforth, as well Justices of Assizs, as Ju∣stices of the Peace, in every County, upon Information for the King, before them made, without any Finding or Presentment by Twelve Men, shall have full Power and Authority, by their Discretion; and to hear and determine all Offences, as Riots, unlawful Assemblies, &c. committed and done against any Act or Statute made, and not repeal'd, &c.

By Pretext of this Law, Empson and Dudley did commit upon the Subjects insufferable Pressure and Oppressions; and therefore this Statute was justly, soon after the Decease of Hen. 7. repealed at the next Parliament, by the Statute of 1 Hen. the 8. chap. 6.

A good Caveat to Parliaments to leave all Causes to be measur'd by the Golden and strait Metwand of the Law, and not to the in∣certain and crooked Cord of Discretion.

It is almost incredible to foresee, when any Maxim, or Fun∣damental Law of this Realm is altered (as elsewhere hath been ob∣served) what dangerous Inconveniencies do follow; which most expresly appears by this MOST UNJUST and strange Act of the 11th of Hen. 7. For hereby not only Empson and Dudley themselves, but such Justices of Peace (corrupt Men) as they caused to be authorised, committed most grievous and heavy Op∣pressions & Exactions, grinding the Faces of the poor Subjects by penal Laws (be they never so obsolete, or unfit for the Time) by Information only, without any Presentment or Tryal by Jery, be∣ing the ANCIENT BIRTH RIGHT of the Subject; but to hear and determine the same, by their Discretions, inflicting such Pe∣nalty as the Statute not repealed, imposed. These, and other like

Oppressions and Exactions by the Means of Empson and Dudley, and their Instruments, brought infinite Treasure to the King's Cof∣fers, whereof the King himself, at the End, with GREAT GRIEF and COMPUNCTION REPENTED, as in another Place we have observ'd.

This Statute of the 11th of Hen. 7. we have recited, and shewed the just Inconveniencies thereof, to the End that the like should NEVER hereafter be attempted in any Court of Parlia∣ment; and that others might avoid the FEARFUL END of those two Time-Servers, Empson and Dudley, Qui eorum v••••••igiis insistant, exitus perhorrescant.

I am sure, there is nothing I have offer'd in Defence of English-Law. Doctrine, that riseth higher then the Judgment and Language of this great Man, the Preservation and Publication of whose En∣deavours became the Care of a great Parliament. And it is said of no inconsiderable Lawyer, that he should thus express himself in our Occasion, viz. The Laws of England were never the Dictates of any Conqueror's Sword; or the Placita of any King of this Na∣tion; or (saith he) to speak impartially and freely, the Results of any Parliament that ever sate in this Land.

Thus much of the Nature of English Rights, and the Reason and Justice of their inviolable Maintenance. I shall now offer some more general Considerations for the Preservation of Property, and hint at some of those Mischiefs that follow spoiling it for Consci∣ence sake, both to Prince and People.

1. The Reason of the alteration of any Law, ought to be the Discommodity of Continuing it; but there can never be so much as the least Inconveniency in continuing of Liberty and Property; therefore there can be no just Ground for infringing, much less ab∣rogating the Law that gives and secures them.

2. No Man in these Parts is born Slave to another; neither hath one Right to inherit the Sweat of the others Brow, or reap the Be∣nefit of the others Labour, but by Consent; therefore no Man should be deprived of Property, unless he injure another Man's.

3. But certainly, nothing is more unreasonable then to sacrifice the Liberty and Property of any Man (being his Natural and Civil Rights) for Religion, where he is not found breaking any Law rela∣ting to Natural & Civil Things. Religion, under any Modification is

no Part of the old English Government; Honeste vivere, alterum non ladere, jus suum cui{que} tribeure, are enough to entitle every Na∣tive to English Priviledges: A Man may be a very good English Man, and yet a very indifferent Church-man. Nigh 300 Years before Austine set his Foot on English Ground, had the Inhabitants of this Island a free Government. It is Want of distinguishing be∣tween It and the Modes of Religion, which fills every Clamorous Mouth with such impertinent Cryes as this; Why do not you sub∣mit to the Government? as if the English Civil Government came in with Luther, or were to go out with Calvin: What Prejudice is it for a Popish Landlord to have a Protestant Tennant; or a Pres∣byterian Tennant to have a Protestant Landlord? Certainly, the Civil Affairs of all Governments in the World may be peaceably transacted under the different Trims of Religion, where Civil Rights are inviolably observ'd. Nor is there any Interest so inconsistent with Peace and Unity, as that which dare not solely rely upon the Power of Perswasion, but affects Superiority, and impatiently seeks after an Earthly Crown: This is not to act the Christian, but the Caesar; not to promote Property, but Party, and make a Nation Drudges to a Sect. Be it known to such Narrow Spirits, we are a Free People by the Creation of God, the Redemption of Christ and careful Provision of our (never to be forgotten) honourable Ance∣stors: So that our Claim to these English Priviledges rising higher then the Date of Protestancy, can never justly be invalidated for any Non-conformity to it. This were to loose by the Reformati∣on, which God forbid; I am sure 'twas-to enjoy Property with Con∣science that promoted it: Nor is there any better Definition of Protestancy, then protesting against Spoiling Property for Consci∣ence. I must therefore take Leave to say, that I know not how to reconcile what a Great Man lately deliver'd in his Eloquent Ha∣rangue to the House of Lords: His Words are these,

For when we consider Religion in Parliament, we are supposed to consider it as a Parliament should do, and as Parliaments in all Ages have done, that is, as it is a Part of our Laws, a Part, and a necessary Part of our Government: For as it works upon the Conscience, as it is an INWARD PRINCIPLE of the DIVINE LIFE, by which good Men do govern all their Actions,

the State hath nothing to do with it, it is a Thing which belongs to another kind of Commission, then that by which we sit here.

I acquiesce in the latter Part of this Distinction, taking it to be a venerable Truth, and would to God Mankind would believe it, and live it; but how to agree it with the former, I profess Igno∣rance; for if the Government hath nothing to do with the Princi∣ple it self, what more can she pretend over the Actions of those Men that live that good Life? Certainly, if Religion be this Princi∣ple of Divine Life, exerting it self by Holy Living, and that as such, it belongs not to the Commission of our Superiours, I do with Submission conceive, that there is very little else of Religion lest for them to have to do with; the rest merits not the Name of Reli∣gion, and less doth such a Formality deserve Persecution: I hope such Circumstances are no necessary Part of English Government, that can't reasonably be reputed a necessary part of Religion; and I dare believe, that he is too great a Lawyer, upon second Thoughts, to repute that a Part of our Laws, a Part & a necessary Part of our Government, that is such a Part of Religion as is neither the Di∣vine Principle, nor yet the Actions immediately flowing from it, since the Government was most compleat and prosperous many Ages without it, and hath never known more perplext Contests and troublesom Interruptions, then since it hath been receiv'd and va∣lu'd as a Part of the English Government; and God, I hope, will forbid it in the Hearts of our Superiours, that English Men should be deprived of their Civil Inheritance for their Non-conformity to Church-Formality: For no Property out of the Church; the plain English of publick Severity, is a Maxim that belongs not to the holy Law of God, nor Common Law of the Land.

4. If Liberty and Property must be the Forfeit of Conscience for Non conformity to the Princes Religion, the Prince and his Religion shall only be lov'd as the next best Accession to other Mens Estates, and the Prince perpetually provoakt to expose ma∣ny of his Inoffensive People to Beggary.

5. It is our Superiours Interest, that Property be preserved, be∣cause it is their own Case: None have more Property then them∣selves; But if Property be exposed for Religion, the Civil Magi∣strate exposes both his Conscience and his Property to the Church, and disarms himself of all Defence upon any Alteration of Judg∣ment.

This is for the Prince to fall down at the Prelate's F••••t, and the State to suffer it self to be rid by the Church.

6. It obstructs all Improvement of Land and Trade; for who will labour that hath no Propriety, or hath it exposed to an unrea∣sonable Sort of Men for the bare Exercise of his Conscience to God, and a poor Country can never make a Rich and Powerful Prince. Heaven is therefore Heaven to Good and Wise Men, be∣cause they have an Eternal Propriety therein.

7thly, This Sort of Procedure hitherto oppugn'd to the behalf of Property, puts the whole Nation upon miserable Uncertainties that are follow'd with great Disquiets and Distractions, which certainly it is the Interest of all Governments to prevent: The Reigns of Henry 8. Edw. 6. Q. Mary and Q. Eliz. both with re∣lation to the Marriages of the first, and the Religious Revolutions of the rest, are a plain Proof in the Case.

King Henry voids the Pope's Supremacy, and assumes it himself. Q. Mary his Daughter by his first Wife Katharine, repeals all those Acts made since the 12th of Henry 8. in Disfavour of the Pope; Oaths taken on both sides to maintain those Laws. Edw. 6. enacts Protestancy with an Oath to maintain it. 1 Q. Mary, c. 1. This is abrogated; Popery solemnly restored, and an Oath inforc'd to defend it. Comes Q. Elizabeth and repeals that Law, calls back Protestancy, ordains a new Oath to un-Oa••h Q. Mary's Oath. and all this under the Penalty of loosing Estate, Liberty, and sometimes Life it self; which Thousands to avoid, lamentably perjur'd themselves four or five times over within the space of 20. Years: in which Sin the Clergy transcended, not an Hundred for every Thousand but left their Principles for their Par••sh••s. Thus hath Conscience been debaucht by Force, and Property toss'd up & down by the impetuous Blasts of ignorant Zeal, or sinister Design.

8. Where Liberty & Property are violated, there must alwayes be a State of Force: And (though I pray God that we never need those Cruel Remedies, whose Calamitous Effects we have too lately felt) yet certainly, SELF-Preservation is of all Things dearest to Men, insomuch, that being conscious to themselves of not having done an ill thing to defend their unforfeited Privi∣ledges, they cheerfully hazard all they have in this World; so strangely vindictive are the Sons of Men in Maintenance of their Rights: And such are the Cares, Fears, Doubts and Insecurities

of that Administration, as render Empire a Slavery, and Domi∣nion the worst Sort of Bondage: on the contrary, nothing can give greater Cheerfulness, Confidence, Security and Honour to any Prince, then ruling by Law; for it is both a Conjunction of Title with Power, and attracts Love, as well as it requires Duty.

Give me Leave without any Offence, for I have God's Evi∣dence in my own Conscience, I intend nothing but a respectful Caution to my Superiours, to confirm this Reason with the Judg∣ment and Example of other Times. The Governours of the Ele∣ans held a strict Hand over the People, they being in Despair, call'd in the Spartans for Relief, and by their Help freed all their Cities from the sharp Bondage of their Natural Lords.

The State of Sparta was grown Powerful, and opprest the The∣bans, they, though but a weak People, yet whetted the Despair, and the Prospect of greater Miseries, by the Athenians deliver'd themselves from the Spartan Yoak.

Nor is there any other considerable Reason given for the Ruin of the Carthagenian State, then Avarice and Severity. More of this is to be found in W. Raileigh's History of the World, lib. 3. who hath this witty Expression in the same Story, l. 5. of a severe Conduct,

When a forced Government, saith he, shall decay in Strength, it will suffer, as did the old Lion, for the Oppression done in his Youth, being pintcht by the Wolf, goar'd by the Bull, and kickt also by the Ass.

This lost Caesar Borgia, his New and Great Conquests in Italy: No better Success attended the severe Hand held over the People of Naples by Alphonso and Ferdinand. 'Twas the undue Severity of the Sicilian Governours, that made the Syracusans, Leontines and Messenians so easie a Conquest to the Romans. An harsh An∣swer to a petitioning People lost Rehoboam Ten Tribes. On the contrary, in Livy, Dec. 1 l. 3. we find that Petilia, a City of the Brutians in Italy, chose rather to endure all Extremity of War from Hannibal, then upon any Condition to desert the Romans, who had govern'd them moderately, and by that gentle Conduct procur'd their Love, even then, when the Romans sent them Word, they were not able to relieve them, and wisht them to provide for their own Safety.

N. Machiavel, in his Discourses upon Livy, p. 542. tells us,

that one Act of Humanity was of more Force with the Conquer'd Falisci, then many violent Acts of Hostility; which makes good that Saying of Seneca, Mitius imperanti melius paretur, They are best obeyed, that govern most mildly.

9. And lastly, If these ancient Fundamental Laws so agreeable with Nature, so suited to the Disposition of our Nation, so often defended with Blood and Treasure, so carefully and frequently ra∣tified, shall not be to our great Pilots, as Stars or Compass for them to steer the Vessel of this Kingdom by, or Limits to their Legislation, no Man can tell how long he shall be secure of his Coat, enjoy his House, have Bread to give his Children, Liberty to work for Bread, and Life to eat it: Truly, this is to justifie what we condemn in Roman-Catholiks. It is one of our main Objections, that their Church assumes a Power of assuring People what is Religion, thereby denying Men the Liberty of walking by the Rules of their own Reason, or Precepts of Holy Writ. To which we oppose both: We say, the Church is tyed to act nothing contrary to Reason; and that Holy Writ is the declar'd fundamental Law of Heaven, to maintain, and not to usurp upon which, Power is given to the true Church. Now let us apply this Argument to our Civil Affairs, and it will certainly end in a reasonable Limitation of our Legisla∣tors, that they should not impose that upon our Understandings, which is inconsistent with them to embrace; nor offer any the least Violation upon the Fundamental Law of the Land, from whence they derive their Power, to prosper such Attempts: Do the Ro∣manists say, Believe as the Church Believes; Do not the Prote∣stants, and which is harder, Legislators say so too,? Do we say to the Romanists, at this rate, Your Obedience is blind, and your Ig∣norance is the Mother of Devotion; Is it not also true of our selves? Do we object to them; This makes your Religion sluid as the Ri∣vers, one Thing to Day, and another to morrow, any Thing the Church saith or doth? Doth not our own Case submit us to the like Variati∣on in Civils? Have we not long told them, that under Pretence of obeying the Church, and not controling her Power, she hath raised a Superstructure inconsistent with that Foundation she pretends to build upon? And are not we the Men in Civils, that make our grand Priviledges to depend upon Men, not Laws, as she doth upon Councils, not Scripture? If this be not Popery in Temporals, what is?

It is humbly beseecht of those Superiours, that it would please them to consider what Reflection such severity justly brings upon their Proceedings; and remember, that in their ancient Delega∣tions, it was not to define, resolve and impose Matters of Religion, and sacrifice Civil Priviledges for it; but, to maintain the Peoples Properties, according to the ancient Fundamental Laws of the Land, and to super-add such Statutes only, as were consistent with, and preservative of those Fundamental Laws.

To conclude this Head; My plain and honest Drift has all along been neither more nor less then this, to show that Church Govern∣ment is no real Part of the old English Government; and to disin∣tangle Property from Opinion, the untoward Knot the Clergy for several Ages have tyed; the which, it is not only the Peoples Right, but our Superiours Interest to undo: for it gauls both Peo∣ple and Prince. For, where Property is subjected to Opinion, the Church interposes, and makes something else requisite to enjoy Property, then belongs to the Nature of Property; and the Reason of our Possession is not our Right by & Obedience to the common Law, but Conformity to Church-Law; a thing dangerous to Civil Go∣vernment; for 'tis an Alteration of old English Tenure, a suffering the Church to trip up & supplant the State, & a making People to owe their Protection not to the Civil, but Ecclesiastical Authority.: For let the Church be my Friend, and all is well; make her my Foc, and I am made her Prey; Let Magna Charta say what she will for me, my Horses, Cows, Sheep, Corn, Goods go first, my Person to Goal next; and here's some Church Trophys made at the Conquest of a peaceable Dissenter: This is that anxious Thing; May our Superi∣ours please to weigh it in the equal Scale of Doing as they would be done by. Let those Common Laws that fix and preserve Property be the Rule and Standard. Make English Men's Rights as inviola∣ble as English Church Rights: Disintangle and distinguish them; And let not Men sustain Civil Punishments for Ecclesiastical Faults, but for Sins against the ancient establisht Civil Government only, that the Natures of Acts and Rewards may not be confounded; so shall the Civil Magistrate preserve Law, secure his Civil Digni∣ty and Empire, and make himself Belov'd of English Men, whose Cry is, and the Cry of whose Laws has ever been, Property more sacred then Opinion, Civil Right not concerned with Ecclesiastical Disci∣pline, nor forfeitable for Religious Non-conformity.

But though an inviolable Preservation of English Rights of all things best secureth to our Superiours the Love and Allegiance of the People; yet there is something further, that with Submission I offer to their serious Consideration, which in the second place con∣cerns their Interest, and the Peoples Felicity; and that is their Dis∣cord about Religion, notwithstanding their unanimous Cry for Pro∣perty, a prudent Mannagement of which may return to the great Quiet, Honour and Profit of the Kingdom.

Notes

• * 1.1

  Caesar. Com. Tacit. in vit. Agric. Dion. l. 6. Beda. M. West. an. 4 16. l. 1. c. 17
• * 1.2

  Hist. Germ.
• * 1.3

  Concil. Brit. p. 397.
• * 1.4

  Ll. In•• Lam.
• * 1.5

  Miror. c. 1. §. 2.
• * 1.6

  Miror. Just. c. 1. §. 3. §. 2. c. 4. §. 11.
• * 1.7

  Hoven. Ead∣mur. Histor. l. 1. p. 13. M. Paris, in vit. Gulielm.
• * 1.8

  Spicileg.
• * 1.9

  Chro. Leichf.
• * 1.10

  Ll. Gulielm. c. 55.
• * 1.11

  Ll. Gulielm. cap. 42, 45. Gloss. 227.
• * 1.12

  Camb. Brit. Norf.
• * 1.13

  Ll. Edw.
• * 1.14

  Ll. Alfr. c. 1. & 31.
• * 1.15

  Ll. Gulielm, c. 42, 45, 55 Ll. Henr. 1. cap. 5.
• * 1.16

  Caes. Comm. l 5, 6. Dion. in vit. Sever.
• * 1.17

  Tacit. in vit. Agric. c. 12.
• * 1.18

  Tacit. Hist. Germ. Plat. in vit. Sol. & Lyr.
• * 1.19

  Concil. Brit. 162. Ll. Sax Lam. Cant ab. f. 1. Ibid. f. 22.
• * 1.20

  Ll. Ed. Lam. Cant. f. 139.
• * 1.21

  Ll. Sax. Lam p. 1. Concil. Brit. 19. Ingulph.
• * 1.22

  Spelm. Gloss. Tit. Gemote, f. 261.
• * 1.23

  Ll. Gulielm. c. 55.
• * 1.24

  Ll. Guliel. c. 58. Spicileg. W. Malmbs, Hist. p. 101. Cart. moder. foeder. magn. sigil. ann. 1. Joh. ex vet. Reg in Arch. Cantuar. Ar∣chiepiscop. Rot. Cart. ann. 5. Joh. Memb. 5 n. 29. Rot. Par. 24. Edw. I. n. 22.
• * 1.25

  Rot. Par. 40. Ed. 3. n. 78;
• * 1.26

  Ll. Sax. Lam ann. 675.
• * 1.27

  Ll. Etheld c. 3. Lamb.
• * 1.28

  Ll. Inae. Ll. Canut.
• * 1.29

  Spicil. 197.
• * 1.30

  S••igand.
• * 2.1

  9th. Hen. 3.
• * 2.2

  Ch. 14.
• * 2.3

  Ch. 29.
• * 2.4

  Cook, Pro∣aem. Instit. part. 2.
• * 2.5

  52. Hen. 3. Stat. Marleb.
• * 2.6

  Cook on c. 4. of 52. E. 3. Inst. 2. p. 50.
• * 2.7

  5. Ed. 3. c. ••. 25. Ed. 3. c. 4. 17. R. c. 6. Rot. Parl. 42. Ed. 3. c. 3. Cook, 2. Inst. 43. Stamf. pl. cor. p. 150.
• * 2.8

  ••••. Sax. Lam. Concil. Brit. 219. Ingulph.
• * 2.9

  Rot. Parl. 13. Ed 3. n. 8. Cook, 4. Inst. fol. 14. n. 34.
• * 2.10

  Praeambl. 9.
• * 2.11

  Henr. 3.
• * 2.12

  25. Ed. 1. c. 1.
• * 2.13

  42. Ed. 3. c. 1. Rot. Parl. 15. Edw. 3. n. 10, 37.
• * 2.14

  Cook, 1. Inst. f. 81. Cook, 2. Inst. f. 525 526. 25. Edw. 1. c. 3. 28 Edw. 1. c. 1. 25. Edw. 1. c. 4.