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 Caeſar. Com. Tacit. in vit. Agric. Dion. l. 6. Beda. M. Weſt. an. 4 16. l. 1. c. 17 and Cuſtoms in Peace or War: However, Caeſar, Tacitus, 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 Education 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 Fundamentals of our Engliſh Government; for they were a Free People, govern'd by Laws; of which they themſelves 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; Hiſt. Germ. 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 Concil. Brit. p. 397. 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 ſomething 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; neither of them ought to infringe; the Law limited them. This Ina, the Great Saxon King, confirms; There is Ll. In • Lam. no Great Man, ſaith he, nor any other in the whole Kingdom, 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 Miror. c. 1. §. 2. Rule according to the Laws of the Nation. Their Parliament 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 Miror. Juſt. c. 1. §. 3. §. 2. c. 4. §. 11. 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, valuing a Title by Election before that which is founded in Hoven. Eadmur. Hiſtor. l. 1. p. 13. M. Paris, in vit. Gulielm. Power only: He therefore at his Coronation made a ſolemn Covenant to maintain the good, approv'd, and ancient Laws of the Kingdom, and to inhibit all Spoil and unjuſt Judgment.

And this, Henry the firſt, his third Son, amongſt others his Titles mentioned in his Charter, to make Ely a Biſhoprick, calls himſelf Son of William the Great, who Spicileg. 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 Chro. Leichf. 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 Norman 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 Inhabitants Ll. Gulielm. c. 55. 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 ſufficient Sanctuary to all Oppreſſed, by being publickly pleaded Ll. Gulielm. cap. 42, 45. Gloſſ. 227. at the Bar againſt all Uſurpations, though it were under the Pretence of their Conqueror's Right it ſelf, as Camb. Brit. Norf. 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 extended; Ll. Edw. 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 Charity 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 impriſon'd Ll. Alfr. c. 1. & 31. 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 Ll. Gulielm, c. 42, 45, 55 Ll. Henr. 1. cap. 5. 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 Government 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 Brittains 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 Caeſ. Comm. l 5, 6. Dion. in vit. Sever. 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 Tacit. in vit. Agric. c. 12. 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 Common 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 National Affairs. And indeed, the learned Author of the Brittiſh 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 tranſporting 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 Tacit. Hiſt. Germ. Plat. in vit. Sol. & Lyr. 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 Auſtin'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 Epiſcoporum, Concil. Brit. 162. Ll. Sax Lam. Cant ab. f. 1. Ibid. f. 22. omnium Senatorum & natu majorum ſapientum populi. Alfred after him reform'd the former Laws conſulto ſapientum. Likewiſe Matters of publick and general Charge, in case of War, &c. we have granted in the Aſſembly, Regi, Baronibus & Populo. And though the Saxon Word properly imports the Meeting of Wiſe Men, Ll. Ed. Lam. Cant. f. 139. 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, Commune 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 Ll. Sax. Lam p. 1. Concil. Brit. 19. Ingulph. infinita multitudine; & an infinite multitude of other faithful 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: Spelm. Gloſſ. Tit. Gemote, f. 261. The Saxon Wittangemote or Parliament (ſaith he) is a Convention of the Princes, as well Biſhops as Magiſtrates, and the free People of the Kingdom; and that the ſaid Wittangemote 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 Obedience for his ſo governing of them: for, as a certain Author hath it, He bound himſelf to be Juſt, that he might be Great; Ll. Gulielm. c. 55. 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 Inheritance, 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. Ll. Guliel. c. 58. Spicileg. W. Malmbs, Hiſt. p. 101. Cart. moder. foeder. magn. ſigil. ann. 1. Joh. ex vet. Reg in Arch. Cantuar. Archiepiſcop. Rot. Cart. ann. 5. Joh. Memb. 5 n. 29. Rot. Par. 24. Edw. I. n. 22. 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 Favour 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 Rot. Par. 40. Ed. 3. n. 78; 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 Jealouſie 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 Execution 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 themſelves 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 Principle 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 Ll. Sax. Lam ann. 675. find enacted, in ſingulis Centuriis, &c. thus Engliſht, In every Hundred let there be a Court, and let twelve Ancient 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 executed 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, Ll. Etheld c. 3. Lamb. 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 Ll. Inae. Ll. Canut. 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 Judicature, and deſpiſed the Fellowſhip of the mean Saxon Free-men in publick Service; for the wiſe Saxon King perceiving 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 confirm'd in the lump of other Priviledges, but in one notable Caſe for all, that might be brought to prove, that the fundamental 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 Spicil. 197. given his half Brother Odo, a large Territory in Kent, with the Earldom; and he taking Advantage at the King's being S • igand. diſpleaſed with the Arch-Biſhop of Canterbury, to poſſes himſelf of ſome of the Lands of that See: Landfrank that ſucceeded 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 Poſſeſſion 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 ſeveral 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 Captivity; 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 comprehenſive and repetitious of what I have already been diſcourſing, 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 Conſideration 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 Confirming and Preſerving it.

Henry, by the Grace of God King of England, &c. 9th. Hen. 3. To all Arch-Biſhops, Earls, Barons, Sheriffs, Provoſes, 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 Progenitors, and our Succeſſors, Kings of England, to the Advancement of Holy Church, and Amendment 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 Priviledges. The Words of the Charter are theſe:

Ch. 14.A 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, ſaving to him his Contenements or Freehold: And a Merchant likewiſe ſhall be amerced, ſaving to him his Merchandize; and none of the ſaid Amercements ſhall be aſſeſſed, but by the Oath of good and honeſt Men of the Vicinage.

Ch. 29.No Free-man ſhall be taken or impriſon'd, nor be diſſeized of his free hold or Liberties, or free Cuſtoms, 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 publiſhing 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, Cook, Proaem. Inſtit. part. 2. that th • ſe Laws and Liberties were gather'd and obſerv'd amongſt others in an intire Volumn by King Edward the Confeſſor, confirmed by William, ſirnamed the Conqueror; which were afterwards ratified by Henry the firſt; enlarged 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 52. Hen. 3. Stat. Marleb. 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 communicable, Omni ſoli & ſemper, to all and every Clauſe thereof alike. Chief Juſtice Cook well obſerves, that per legem Cook on c. 4. of 52. E. 3. Inſt. 2. p. 50. 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 Engliſh 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 Freedom. 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 fundamental 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 People 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 ſoveraign 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 Creator. Every Repreſentative in the World, is as the Creature 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 Repreſentative, no more then there is an abſolute transferring of a Title in a Letter of Atorney; The very Term Repreſentative is enough to the contrary: Wherefore as the Houſe cannot ſtand without its Foundation, nor the Creature ſubſiſt 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 Repreſentative 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 legal; 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 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. enſue ſuch Actions. It might be enough to ſay, that here are above 50 Statutes now in Print, beſide its venerable Antiquity, 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 without 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 remember, 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 Conſequence 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 Repreſentative, which were the Reſult and Agreement of Engliſh Free-men individually, the ancienter Times not being acquainted 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 MULTITUDE •• . Sax. Lam. Concil. Brit. 219. Ingulph. 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 Confirmation of that great Charter, in the Reign of King John. But as the Ages grew more human, with reſpect to Villains 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 Capital 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 Rot. Parl. 13. Ed 3. n. 8. Cook, 4. Inſt. fol. 14. n. 34. ſuffering their Liberties and free Cuſtoms to be infring'd, that in Matters of extraordinary Weight they would not determin, till they had firſt return'd and conferr'd with their ſeveral 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 ſucceſſively known no other ſafe or legal Paſſage to their Crown & Dignity, then their ſolemn Obligation inviolably to maintain Praeambl. 9. them. So ſacred were they reputed in the Dayes of Henry the 3d, that not to continue or confirm them, were Henr. 3. to affront God, and damn the Souls of his Progenitors and Succeſſors; to Depreſs the Church, and Deprave the 25. Ed. 1. c. 1. Realm: That the Great Charter comprehenſive of them ſhould be allow'd as the common Law of the Land, by all 42. Ed. 3. c. 1. Rot. Parl. 15. Edw. 3. n. 10, 37. Officers of Juſtice; that is the lawful Inheritance of all Commoners: That all Statute-Laws or Judgments whatſoever, 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 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. 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 Infringers of the Great Charter, though it were but in Word or Counſel; for ſo ſaith the Statute. I ſhall for further Satisfaction repeat the Excommunication 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 Preſence, 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 Hereford; Henry, Earl of Oxford; John, Earl Warren; and other Eſtates of the Realm of England; We Boniface, 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 Charter of the Forreſt, have denounced Sentence of Excommunication in this Form, By the Authority of Almighty 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 violate, break, diminiſh, or change the Churches Liberties, 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 ſecretly 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, againſt 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 commit 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 Ordinances, 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 Sacraments 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 Penalties 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 Violence to the Fundamental Freedoms thereby repeated and confirmed: 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 Petition of Right were repeal'd, the great Charter were never the leſs in Force, it being not the Original Eſtabliſhment, but a Declaration 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 Emergency or Conveniency. Beſides, that which I have hitherto maintained 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 without 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 Country, 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 Learning in Law hath not without Reaſon obtained a venerable Character 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 Subſtance of which Act follows in theſe Words.

THat from thenceforth, as well Juſtices of Aſſizs, as Juſtices 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 incertain and crooked Cord of Diſcretion.

It is almoſt incredible to foreſee, when any Maxim, or Fundamental Law of this Realm is altered (as elſewhere hath been obſerved) 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 Oppreſſions & 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, being the ANCIENT BIRTH RIGHT of the Subject; but to hear and determine the ſame, by their Diſcretions, inflicting ſuch Penalty 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 Coffers, 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 Parliament; 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 Endeavours 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 Nation; 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 Conſcience 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 abrogating 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 Benefit 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 relating 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 Native 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 between It and the Modes of Religion, which fills every Clamorous Mouth with ſuch impertinent Cryes as this; Why do not you ſubmit 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 Preſbyterian 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 Anceſtors: 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 Reformation, which God forbid; I am ſure 'twas-to enjoy Property with Conſcience that promoted it: Nor is there any better Definition of Proteſtancy, then proteſting againſt Spoiling Property for Conſcience. I muſt therefore take Leave to ſay, that I know not how to reconcile what a Great Man lately deliver'd in his Eloquent Harangue 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 Ignorance; for if the Government hath nothing to do with the Principle it ſelf, what more can ſhe pretend over the Actions of thoſe Men that live that good Life? Certainly, if Religion be this Principle 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 Religion, 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 Divine 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 valu'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 many of his Inoffenſive People to Beggary.

5. It is our Superiours Intereſt, that Property be preſerved, becauſe it is their own Caſe: None have more Property then themſelves; But if Property be expoſed for Religion, the Civil Magiſtrate expoſes both his Conſcience and his Property to the Church, and diſarms himſelf of all Defence upon any Alteration of Judgment. 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 unreaſonable 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, becauſe 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 relation 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 Priviledges, 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 Dominion 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 Evidence in my own Conſcience, I intend nothing but a reſpectful Caution to my Superiours, to confirm this Reaſon with the Judgment and Example of other Times. The Governours of the Eleans 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 Thebans, 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 Anſwer 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 ratified, 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 Legiſlators, 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 Romaniſts ſay, Believe as the Church Believes; Do not the Proteſtants, and which is harder, Legiſlators ſay ſo too,? Do we ſay to the Romaniſts, at this rate, Your Obedience is blind, and your Ignorance 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 Rivers, 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 Variation 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 Delegations, 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 Government is no real Part of the old Engliſh Government; and to diſintangle 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 People 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 Government; 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 Superiours 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 inviolable 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 Dignity 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 Diſcipline, 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 concerns their Interest, and the Peoples Felicity; and that is their Diſcord about Religion, notwithſtanding their unanimous Cry for Property, a prudent Mannagement of which may return to the great Quiet, Honour and Profit of the Kingdom.