The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments
• Introduction William Penn: His Life, His Times, and His Work
• Notes On Texts and Annotations
• Chronology of Penn’s Life and Times
• {part I}: Foundations the Ancient Constitution and English Liberties
• 1.: The People’s Ancient and Just Liberties Asserted, In the Trial of William Penn and William Mead, At the Sessions Held At the Old-baily In London, the First, Third, Fourth and Fifth of September, 1670, Against the Most Arbitrary Procedur
• 2.: England ’s Present Interest Considered, With Honour to the Prince, and Safety to the People (1675)
• {part Ii}: Penn’s Argument For Religious Liberty
• 3.: The Great Case of Liberty of Conscience Once More Briefly Debated and Defended, By the Authority of Reason, Scripture, and Antiquity: Which May Serve the Place of a General Reply to Such Late Discourses; As Have Oppos’d a Toleration (1670) the a
• 4.: One Project For the Good of England That Is, Our Civil Union Is Our Civil Safety Humbly Dedicated to the Great Council, the Parliament of England (1679)
• 5.: An Address to Protestants of All Perswasions More Especially the Magistracy and Clergy, For the Promotion of Virtue and Charity (1679) In Two Parts. By W. P. a Protestant.
• 6.: A Brief Examination and State of Liberty Spiritual, Both With Respect to Persons In Their Private Capacity, and In Their Church Society and Communion (1681)
• 7.: A Perswasive to Moderation to Church-dissenters, In Prudence and Conscience: Humbly Submitted to the King and His Great Council (1686)
• 8.: Good Advice to the Church of England, Roman-catholick, and Protestant Dissenter: In Which It Is Endeavoured to Be Made Appear, That It Is Their Duty, Principle, and Interest, to Abolish the Penal Laws and Tests (1687)
• {part Iii}: General Principles and Specific Events
• 9.: The Proposed Comprehension Soberly, and Not Unseasonably, Consider’d (1672)
• 10.: England’s Great Interest, In the Choice of This New Parliament Dedicated to All Her Free-holders and Electors (1679)
• 11.: A Letter From a Gentleman In the Country, to His Friends In London, Upon the Subject of the Penal Laws and Tests (1687)
• {part Iv}: an Expanding Vision For the Future
• 12.: An Essay Towards the Present and Future Peace of Europe By the Establishment of an European Dyet, Parliament, Or Estates (1693)

2.

England’s Present Interest Considered, withHonour to thePrince,and Safety to thePeople (1675)

TheIntroduction.

THERE is no Law under Heaven, which hath its Rise from Nature or Grace, that forbids Men to deal Honestly and Plainly, with the Greatest, in Matters of Importance to their present and future Good: On the contrary, the Dictates of both enjoyn every Man that Office to his Neighbour; and from Charity among Private Persons, it becomes a Duty indispensible to the Publick. Nor do Worthy Minds think ever the less kindly of Honest and Humble Monitors; and God knows, that oft-times Princes are deceived, and Kingdoms languish for Want of them. How far the Posture of our Affairs will justify this Address, I shall submit to the Judgment, and Observation of every Intelligent Reader.

Certain it is, that there are few Kingdoms in the World more divided within themselves, and whose Religious Interests lye more seemingly cross to all Accommodation, than that we Live in; which renders the Magistrate’s Task hard, and giveth him a Difficulty next to invincible.

Your Endeavours for an Uniformity have been many; Your Acts not a few to enforce it; but the Consequence, whether you intended it or no, through the Barbarous Practices of those that have had their Execution, hath been the spoiling of several Thousands of the Free Born People of this Kingdom, of their Unforfeited Rights. Persons have been flung into Goals,2Gates and Trunks broke open, Goods distrained, till a Stool hath not been left to sit down on: Flocks of Cattle driven, whole Barns full of Corn seized, Thresh’d, and carried away: Parents left without their Children, Children without their Parents, both without Subsistence.

But that which aggravates the Cruelty, is, The Widow’s Mite hath not escaped their Hands; they have made her Cow the Forfeiture of her Conscience; not leaving her a Bed to lye on, nor a Blanket to cover her.3 And which is yet more Barbarous, and helps to make up this Tragedy, the Poor Helpless Orphan’s Milk, Boiling over the Fire, has been flung to the Dogs, and the Skillet made Part of their Prize: That, had not Nature in Neighbours been stronger than Cruelty in such Informers and Officers, to open her Bowels for their Relief and Subsistence, they must have utterly perish’d.

Nor can these inhuman Instruments plead Conscience or Duty to those Laws, who have abundantly transcended the severest Clause in them; for to see the imprison’d, has been Suspicion enough for a Goal; and to Visit the Sick, to make a Conventicle: Fining and Straining for Preaching, and being at a Meeting, where there hath been neither; and Forty Pound for Twenty, at Pick and Choose too, is a moderate Advance with some of them.

Others thinking this a Way too dull and troublesome, alter the Question, and turn, Have you met? Which the Act intends; to, Will you Swear? Which it intendeth not: So that in some Places it hath been sufficient to a Premunire, that Men have had Estates to lose; I mean such Men, who, through Tenderness, refuse the Oath; but by Principle like the Allegiance, not less than their Adversaries.4

Finding then by sad Experience, and a long Tract of Time, that the very Remedies applied to cure Dissension, increase it; and that the more Vigorously an Uniformity is Coercively Prosecuted, the wider Breaches grow, the more inflamed Persons are, and fix’d in their Resolutions to stand by their Principles, it should, methinks, put an End to the Attempt: For besides all other Inconveniences to those that give them Trouble, their very Sufferings beget that Compassion in the Multitude, which rarely misses of making many Friends, and proves often a Preparation for not a few Proselytes. So much more Reverend is Suffering, than making Men suffer for Religion, even of those that cannot suffer for their Religion, if yet they have any Religion to suffer for. Histories are full of Examples: The Persecution of the Christian Religion made it more illustrious than it’s Doctrine. Perhaps it will be denied to English Dissenters, that they rely upon so good a Cause, and therefore a Vanity in them to expect that Success. But Arrianism it self, once reputed the foulest Heresie by the Church, was by no Artifice of its Party so disseminated, as the severe Opposition of the Homoousians.5

Contests naturally draw Company, and the Vulgar are justified in their Curiosity, if not Pity, when they see so many Wiser Men busie themselves to suppress a People, by whom they see no other Ill, than that for Non-Conformity, in Matters of Religion, they bear Injuries and Indignities Patiently.

To be short; If all the Interruptions, Informations, Fines, Plunders, Imprisonments, Exiles and Blood, which the great Enemy of Nature, as well as Grace, hath excited Man to, in all Ages, about Matters of Faith and Worship, from Cain and Abel’s Time to ours, could furnish us with sufficient Presidents,6 that the Design proposed by the Inflictors of so much Severity, was ever Answered; that they have smother’d Opinions, and not inflamed, but extinguish’d Contest; it might perhaps, at least prudentially, give Check to our Expectations, and allay my just Confidence in this Address: But since such Attempts have ever been found Improsperous, as well as that they are too costly, and have always procured the Judgments of God, and the Hatred of Men: To the Sufferers, Misery; to their Countries, Decay of People and Trade; and to their own Consciences an extream Guilt; I fall to the Question, and then the Solution of it: In which, as I declare, I intend nothing that should in the least abate of that Love, Honour and Service that are due to you, so I beseech you, do me the Justice as to make the Fairest Interpretation of my Expressions: For the whole of my Plain and Honest Design is, To offer my Mite for the Increase of your True Honour, and my Dear Country’s Felicity.

The QUESTION.

WHAT is most Fit, Easie and Safe, at this Juncture of Affairs, to be done, for Composing, at least Quieting Differences; for allaying the Heat of contrary Interests, and making them Subservient to the Interest of the Government, and Consistent with the Prosperity of the Kingdom?

The ANSWER.

I. AN INVIOLABLE and Impartial Maintenance of English Rights.

II. Our Superiors Governing themselves upon a Ballance, as near as may be, towards the several Religious Interests.

III. A Sincere Promotion of General and Practical Religion.

I shall briefly discourse upon these Three Things, and endeavour to prove them a Sufficient, if not the Only Best Answer, that can be given to the Question propounded.

CHAP. I.

OfEnglish Rights.

I. Of English Rights, in the British, Saxon and Norman Times. Particularly of Liberty and Property. Of Legislation. Of Juries. That they are Fundamental to the Government, and but Repeated and Confirmed by the Great Charter. The Reverence paid them by Kings and Parliaments, and their Care to preserve them. The Curse and Punishment that attended the Violators. More General Considerations of Property, &c. The Uncertainty and Ruin of Interests, where is it not maintain’d: Divers Presidents: That it is the Prince’s Interest to preserve it inviolably: That it is not justly Forfeitable for Ecclesiastical Non-Conformity; and that where the Property is Sacrificed for it, the Government is chang’d from Civil to Ecclesiastical, from the Parliament-House to the Vestry.

THERE is no Government in the World, but it must either stand upon Will and Power, or Condition and Contract: 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 cannot well be any Thing more remote from Arbitrariness, and Zealous of preserving the Laws, by which it’s Rights are maintained.

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 Statutes, 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 Places of Trade, &c. which have ever stood, whilst the Reason of them was in Force; but when that Benefit, which did once redound, fell by fresh Accidents, they ended, according to that Old Maxim, Cessante ratione legis, cessat lex.7

By Fundamental Laws I do not only understand such as immediately spring from Synteresis (that Eternal Principle of Truth and Sapience)8 more or less 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 Confusion; to wit, Honestè vivere, Alterum non laedere, jus suum cuique 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 Englishmen, and may be reduced to these Three.

I. An Ownership, and Undisturbed Possession: That what they have, is Rightly theirs, and no Body’s else.

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

III. An Influence upon, and a Real Share in that Judicatory Power that must apply every such Law, which is the Ancient Necessary and Laudable Use of Juries: If not found among the Britains, 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 Englishmen, as Three great Roots, under whose Spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Government, I shall endeavour to prove.

I.

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 British Government are very much overgrown 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 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.9Beda and M. Westminster say as much.10

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.11 They lost nothing by Transporting of themselves hither; and doubtless found a greater Consistency between their Laws, than their Ambition. For the Learned Collector of the British Councils tells us, That Ethelston, the Saxon King, pleading with the People, told them, Seeing I, according to your Law, allow what is yours, do ye so with me.12 Whence Three Things are observable. First, That something was Theirs, that no Body else could dispose of. Secondly, That they had Property by their own Law, therefore they had a Share in making their own Laws. Thirdly, That the Law was Umpire between King and People; neither of them ought to infringe: This, Ina, the Great Saxon King, confirms. There is 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 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 Mirror of Justice, tells us, That 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.13

Nor did this Law end with the Saxon Race: William the Conqueror, as he is usually called, quitting all Claim by Conquest, gladly stooped 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 Power only. He therefore, at his Coronation, made a Solemn Covenant, to maintain the Good, Approved, and Ancient Laws of this Kingdom, and to Inhibit all Spoil and Unjust Judgment.

And this, Henry the First, his Third Son, among other his Titles, mentioned in his Charter, to make Ely a Bishoprick, calls himself, Son of William the Great, who by Hereditary Right, (not Conquest) succeeded King Edward (called the Confessor) in this Kingdom.

An Ancient Chronicle of Litchfield, speaks of a Council of Lords that advised 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.

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 Freemen of this Kingdom, but their Free-Service) in the Conclusion of it, saith, That the Lands of the Inhabitants 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 farther expounded in the Laws of Henry the First, Chap. 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, than 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 were Rife, and Men seem’d to have no more Right to their own, than they had Power to maintain, even then was this Law a sufficient Sanctuary to the Oppressed, by being publickly pleaded at the Bar against all Usurpation; though it were under the Pretence of their Conqueror’s Right it self; as by the Case of Edwin of Sharnbourn in Camden’s Britannia, plainly appears.14

The like Obligation to maintain this Fundamental Law of Property, with the appendent Rights of the People, was taken by William Rufus, Henry the First, Stephen, Henry the Second, Richard the First, John, and Henry the Third: 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 Englishmen was thereby, De Novo, granted, as in Civility to King Henry the Third it is termed; but that they were therein only Repeated and Confirmed. Wherefore I shall return to Antecedent Times, to fetch 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 Damage, 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: And when all was gone, they were accustomed to make their last Siezure 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 was never Imprison’d for the Debt: No, not in the King’s Case. And to the Honour of King Alfred be it spoken, He imprison’d one of his Judges for Imprisoning a Man in that Case.

We find among his Laws this Passage, Qui immerentem Paganum vinculis constrinxerit, decem solidis noxam sarcito: “That if a Man should Imprison his Vassal or Bondman Unjustly, his Purgation of that Offence should not be less than the Payment of Ten Shillings”; A Sum very considerable in those Days, more than Ten Pounds now.

Nor did the Revolution from Saxon to Norman drop this Priviledge: For besides the general Confirmation of former Rights by William, sirnamed the Conqueror, his Son Henry the 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; that is, a Jury, which was to be of the Neighbourhood.

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 Absolutely Mine Own.

II.

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

This 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. III. Even as early as the Britain’s themselves; and that it continued to the Time of Hen. 3. is evident from several Instances.

Caesar, in his Commentaries, tells us, That it was the Custom of the British Cities to elect their General, or Commander in Chief, in Case of War. Dion assures us, in the Life of Severus the Emperor, That in Britain the People held a Share in Power and Government; which is the modestest Construction his Words will bear. And Tacitus in the Life of Agrippa, says, 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.15 Again, Both Beda and Mat. Westminster tell us, That the Britain’s summoned a Synod, chose their Moderator, and expell’d the Pelagian Creed. All which supposes Popular Assemblies, with Power to order National Affairs.16

And indeed, the Learned Author of the British 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 Britain’s 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 lose 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 Concio of the Athenians and Lacedaemonians.17

They called their Free-men Frilingi, and These had Votes in the Making and Executing the General Laws of the Kingdom.

In Ethelbert’s Time, after the Monk Austin’s Insinuations had made his Followers a Part of the Government, the Commune Concilium was tam Cleri quam Populi, as well Clergy as People. In Ina’s Time, Suasu & instituto Episcoporum, omnium Senatorum & natu majorum Sapientum populi; Bishops, Lords, and Wise Men of the People. Alfred after him reform’d the former Laws, Consulto sapientum, by the Advice of the Sages of the Kingdom. Likewise Matters of Publick and General Charge, in Case of War, &c. we have granted in the Assembly, Rege, Baronibus & Populo. By the King, Barons and People. And though the Saxon Word properly imports the Meeting of Wise Men, yet All that would come might be present, and interpose their Like or Dislike of the present Proposition: As that of Ina, in magnâ servorum Dei frequentiâ. Again, Commune Concilium seniorum & populorum totius regni; “The Common Council of the Elders, or Nobles, and People of the whole Kingdom.’ The Council of Winton, Ann. 855. is said to be in the Presence of the Great Men, aliorumque fidelium infinitâ multitudine; “And 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 Glossary of the learned English Knight, H. Spelman: The Saxon Witangemote 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.18

William of Normandy chose rather to rely upon the People’s Consent, than 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; 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 People’s Lands to them in Inheritance, according to their Ancient Laws.”

Matters of general Expence upon the whole Body of the People, were settled by this Great Council, especially in the Charge of Arms imposed upon the Subject. The Law saith it to have been done by the Commune Concilium 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 quan Populi unanimi 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 Edw. I. also desired Money of the commune Concilium or Parliament, “as you have given in my Time, and that of my Progenitors, Kings, &c.”

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 question’d upon some Occasion in Edward III. Time, it was agreed upon, that he had no Power to do it, without the Consent of the Dukes, Prelates, Barons, 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 nullâ aliâ causâ nos tenent, quam quod judicio populi receptae sunt; “The Laws (saith Ulpian) do therefore oblige the People, because they are allowed of by their Judgment.”19 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 Humane Laws have their due Force, when they shall not only be devised, but confirm’d by the Approbation of the People.”20

I. It makes Men Diligent, and increaseth 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, and less of what they get.

II. 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.

III. If any Inconvenience attends the Execution of any Law, the Prince is not to be blam’d: It is their own Fault that made 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.

III.

The People have an Influence upon, and a Great Share in the 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 left it behind them, and in all Likelihood 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 this: This shall suffice me, that we find it early among the Saxons in this Country, and if they, a Free People in their own Country, settling 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, it self, 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, as ought not to be Violated. I would not be understood of the Number, but of the Way of Tryal: I mean, 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 fancies it came from the Grecians, who determin’d Controversies by the Suffrage of 34, or the major Part of them.21

Be it as it will, Juries the Saxons had; for in the Laws of King Etheldred, about Three Hundred Years before the Entrance of the Norman Duke, we find Enacted, in singulis Centuriis, &c. thus English’d, In every Hundred let there be a Court, and let Twelve Ancient Freemen, 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 Trial. More of his Justice might be mention’d even in this very Case.

There was also a Law made in the Time of Ætheldred, when the Brittains and Saxons began to grow tame to each other, and intercommon amicably, that faith, Let there be Twelve Men of Understanding, &c. Six English, and Six Welsh, and let them deal Justice, both to English and Welsh.

Also in those simple Times, if a Crime extended but to some Shameful Punishment, as Pillory or Whipping (the last whereof, as usual as it has been with us, was inflicted only upon their Bondmen) the Penance might be reduc’d to a Ransom, according to the Nature of the Fault; but it must be Assest in the Presence of the Judge, and by the Twelve, that is, the Jury of Frilingi, or Freemen.

Hitherto Stories tell us of Trials by Juries, and those to have consisted, in General Terms, of Freemen: But Per Pares, or by Equals, came after, occasion’d by the considerable Saxons, neglecting that Service, and leaving it to the inferiour People, who lost the Bench, Their Ancient Right, because they were not thought Company for a Judge or Sheriff: And also from the Growing Pride of the Danes, who slighted such a Rural Judicature, and despised the Fellowship of the mean Saxon Freemen in publick Service. The Wise Saxon King perceiving this, and the dangerous Consequence of submitting the Lives and Liberties of the Inferiour (but not less useful People) to the Dictates of any such Haughty Humour; and on the other Hand, of subjecting the Nobler Sort to the Suffrage of the Inferiour Rank, did, with the Advice of his Wittangemote, or Parliament, provide a third Way, more Equal and Grateful, and by Agreement with Gunthurn the Dane, settled 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, which might be brought to prove, that the Fundamental Priviledges, mentioned in the Great Charter, 9 of Hen. 3. were Before it. The Story is more at large deliver’d by our Learned Selden:22 But thus, William having given his Half Brother Odo, a large Territory in Kent, with the Earldom, and he taking Advantage at the King’s being displeased with the Archbishop of Canterbury, to possess himself of some of the Lands of that See, Landfrank, that succeeded the Archbishop, 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, where the Debate lasted three Days, before the Freemen of Kent, in the Presence of Lords and Bishops, and others Skilful in the Law, and the Judgment passed for the Archbishop, Upon the Votes of the Freemen.

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

1. That English Men have the alone Right of Possession and Disposition of what is theirs.

2. That they are Parties to the Laws of their Country, for the Maintenance thereof.

3. That they have an Influence upon, and a real Share in the Judicatory Power, that applys those Laws, have been the Ancient Rights of the Kingdom, and common Basis of the Government: That which Kings, under all 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 IIId. was not the Nativity, but Restoration of Ancient Priviledges from Abuses. No Grant of New Rights, but a New Grant, or Confirmation rather, of Ancient Laws and Liberties, violated by King John, and restored by his Successor, at the Expence of a long and bloody War; which shewed them as resolute to keep, as their Ancestors had been careful to make those excellent Laws.

And so I am come to the Great Charter, which is comprehensive 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 governed themselves in confirming and preserving of it.

“Henry by the Grace of God King of England, &c. To all Archbishops, Earls, Barons, Sheriffs, Provosts, Officers, unto all Bailiffs, 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 Archbishops, &c. and to all Freemen of this our Realm, these Liberties underwritten, to be holden and kept in this our Realm of England for evermore.”

Tho’ in Honour to the King, it is said to be out of his meer and free Will, as if it were his meer Favour, yet the Qualification of the Persons, he is said to grant the ensuing Liberties to, shews, that they are Terms of Formality, viz. To all Freemen of this Realm. Which supposes there were Freemen before this Grant; and that Character also implies they must have had Laws and Liberties: Consequently, this was not an Infranchising of them, but a confirming to Freemen their just Privileges they had before. The Words of the Charter are these:

I stand amazed, how any Man can have the Confidence to say, These Privileges were extorted by the Barons Wars, when the King declares, that what he did herein, was done freely: Or that they were new Privileges, when the very Tenour of the Word proves the contrary: For Freehold, Liberties, or Free Customs, are by the Charter it self supposed to be in the Possession of the Freemen at the making and publishing thereof. For observe, No Freeman shall be taken or imprison’d: Then he was free: This Liberty is his Right. Again, No Freeman shall be disseised of his Freehold, Liberties, or free Customs. Then certainly he was in Possession of them: And that great Doctor in the Laws of England, Chief Justice Cook, in his Proem to the 2d Part of his Institutes, tells us, that these Laws and Liberties were gathered and observed, amongst others, in an intire Volume, by King Edward the Confessor; confirmed by William, sirnamed the Conqueror; which were afterwards ratify’d by Henry the First; enlarged by Henry the Second, in his Constitutions at Clarendon; and after much Contest, and Blood spilt, between King John and the Barons concerning them, were solemnly established at Running-Mead by 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 provok’d 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 Englishmen, and their Heirs for ever: Ordaining, Quod contravenientes per dominum Regem, cum convicti fuerint, graviter puniantur, i.e. “That whosoever should act any thing contrary to these Laws, upon Conviction, should be grievously punished” by our Lord the King. And in the 22d Year of his Reign, it was confirmed by the Statute of Marleb, Chap. 5. And so venerable an Esteem have our Ancestors had for this Great Charter, and so indispensibly necessary have they thought it to their own and Posterities Felicity, that it hath been above Thirty Times ratified and commanded, under great Penalties, to be put in Execution.

Here are the three Fundamentals comprehended and express’d, to have been the Rights and Privileges of Englishmen.

I. Ownership, consisting of Liberty and Property. In that it supposes Englishmen to be free, there’s Liberty: Next, that they have Freeholds, there’s Property.

II. That they have the Voting of their own Laws: For that was an ancient free Custom, as I have already prov’d, and all such Customs are expresly confirmed by this Great Charter: Besides, the People help’d to make it.

III. An Influence upon, and a real Share in the Judicatory Power, in the Execution and Application thereof.

This is a substantial Part, thrice provided for in those sixteen Lines of the Great Charter before rehears’d: 1. That no Amercement shall be assessed, but by 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, in his Second Institutes, that per Legem Terrae; or by the Law of the Land, imports no more than a Tryal by Process, and Writ originally 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 signify the same Privilege to the People. So that it is the Judgment of the Freemen of England, which gives the Cast, and turns the Scale in English Justice.24

These being so evidently prov’d by long Use, and several Laws, to have been the First Principles or Fundamentals of the English Free Government, I take Leave to propose this Question: May the Free People of England be justly disseised of all, or any of these Fundamentals without their Consent Collectively?

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

I. Through the British, Saxon, and Norman Times, the People of this Island have been reputed and call’d Freemen by Kings, Parliaments, Records and Histories: And as a Son supposes a Father, so Freemen suppose Freedom. This Qualification imports an Absolute Right: Such a Right as none has Right to Disseise or Dispossess an Englishman of: Therefore an Unalterable Fundamental Part of the Government.

II. It can never be thought, that they intrusted any Representatives with these Capital Privileges, farther than to use their best Skill to secure and maintain them. They never so delegated or impower’d any Men, that de jure, they could deprive them of that Qualification? And a Facto ad Jus non valet Argumentum:25 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 Men’s Inheritances. No Owners deliver their Ship and Goods into any Man’s Hands to give them 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 that give them, and 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.

III. 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 Sinews that hold together this Free Body Politick, it follows, they are at least a Part of the Supreme Law; and therefore ought to be a Rule and Limit to all subsequent Legislation.

IV. 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 it’s Foundation; the Representative depends upon the People, as the Creature subsists by the Power of it’s Creator.

Every Representative may be call’d, the Creature of the People, because 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 than there is an absolute Transferring of a Title in a Letter of Attorney.

The very Term Representative is enough to the contrary; Wherefore as the House cannot stand without its Foundation, nor the Creature subsist without it’s 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 has not only a meer Trust to preserve Fundamentals, the People’s Inheritance; but that is a Representative that makes Laws, by Virtue of this Fundamental Law, viz. that the People have a Power in Legislation (the 2d Principle prov’d by me) can have a Right to remove or destroy that Fundamental? The Fundamental makes the People Free, this Free People makes a Representative; Can this Creature unqualify it’s Creator? What Spring ever rose higher than it’s 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 which gives to the People a Power of Legislation, be not nullable by that Representative, because it makes them what they are; much less can that Representative disseise Men of their Liberty and Property, the first Great Fundamental, that is, Parent of this Other; and which intitles to a Share in making Laws for the preserving of the first Inviolable.

Nor is the Third Fundamental other than 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 ever 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 a Share in the Application of the Law, 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 Prince’s Interest: For still the People are concerned in the Inconveniences with him, and he is freed from the Temptation of doing arbitrary Things, and their Importunities, that might else have some Pretence for such Addresses, as well as from the Mischiefs that might ensue such Actions. It might be enough to say, that there are above Fifty Statutes now in Print, besides it’s 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. II. 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 Arundels Case. Rot. Parl. 4. Edw. 3. N 13. Also in Sir John Alee’s Case 4. Edw. III. N. 2. Such was the Destruction committed on the Lord Hastings in the Tower of London, by Richard the III. But above all, the 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 authorized several Exactions, contrary to the free Customs of this Realm: Particularly in the Case of Juries, both Assessing and Punishing, by Justices of Assize, and of the Peace, without the Fining and Presentment of Twelve 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 first of Henry the 8th Ch. 6.

The Consequence is plain; that Fundamentals give Rule to Acts of Parliament, else why was the Statute of the 8th Edw. 4. Ch. 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 so generally esteem’d an Oracle of the Law, I shall in it’s proper Place present you with his Judgment upon the whole Matter.

V. These Fundamentals are unalterable by a Representative, which were the Result and Agreement of English Free-Men, collectively, the Ancienter Times not being acquainted with Representatives: For then the Free-Men met in their own Persons. In all the Saxon 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 Council of Winton, in 855, is reported to have been present, The great Men of the Kingdom, and an Infinite Multitude of other faithful People. Also that, of King Ina, the Common Council of the Elders and People of the whole Kingdom: That is, the most or generality of the Free-Men of the Kingdom; for all might come that pleased. It is not to be doubted but this continued after the Norman Times, and that at Running-Mead, by Stanes, the Free-Men of England were Personally present at the Confirmation of that great Charter, in the Reign of King John. But as the Ages grew more Humane, and free with Respect to Villains and Retainers, and that the Number of Free-Men encreased, there was a Necessity for a Representative; especially, since Fundamentals were long ago agreed upon, and those Capital Privileges put out of the Reach and Power of a little Number of Men to endanger. And so careful were the Representatives of the People, in the Time of Edward the Third, of suffering their Liberties and Free Customs to be infring’d, that in Matters of extraordinary Weight, they would not determine, till they had first returned to, and conferred with their several Counties or Boroughs that delegated them. Thus the Parl. Rolls of his Time.

Several Authorities in Confirmation of the Reasons before mentioned.

So indubitably are these Fundamentals, the People’s Right, and so necessary to be preserved, that Kings have successively known no other Safe or Legal Passage to their Crown and Dignity, than their Solemn Obligation inviolably to maintain them. “So Sacred were they reputed in the Days of Henry the III. That not to continue or confirm them, was to affront God, and to damn the Souls of his Progenitors and Successors; and to depress the Church, and deprave the Realm: That the great Charter comprehensive of them, should be allowed as the Common Law of the Land, by all 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 careful were they to preserve it, that they both confirm’d it by Thirty two several Acts, and enacted Copies to be taken and lodged in each Cathedral of the Realm, to be read four Times a Year publickly before the People: As if they would have them more obliged to their Ancestors, for Redeeming and Transmitting those Privileges, than for begetting them. And that twice every Year, the Bishops apparelled 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 farther Satisfaction, repeat the Excommunication or Curse, pronounced both in the Days 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; Humphrey, 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, A. of Rochester, T. of St. Davids, Bishops, apparelled in Pontificials, with Tapers burning, against the Breakers of the Churches Liberties, and of the Liberties and other Customs of this Realm of England, and namely these which are contained in the Charter of the common Liberties of England, and Charter of the Forest, 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 Apostles Peter and Paul, and of all Apostles, and of all Martyrs, of blessed Edward 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, and of the Forest, granted by our Lord the King, to Arch-Bishops, Bishops, and other Prelates of England, and likewise to the Earls, 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, and all those that shall presume to judge against them; and all and every such Person before mentioned, that wittingly shall commit any Thing of the Premises, let them well know, that they incurr the aforesaid Sentence, ipso Facto.”

The Sentence of the Clergy, against the Breakers of the ARTICLES before-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-written, Robert, Archbishop 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 Resist 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 Archbishops, 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 Times of Popery, they were not left without a Sense of Justice, and a Care of Freedom; and that even Papists, whom many think no Friends to Liberty and Property, under dreadful Penalties, enjoyn an inviolable Observance of this Great Charter, by which they are confirmed. And though I am no Roman Catholick, and as little value their other Curses pronounc’d upon Religious Dissenters, yet I declare ingeniously, 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 tear this Memorable Charter in Pieces, by Disseizing Freemen of England of their Freeholds, Liberties and Properties, without Juries, or meerly for the inoffensive Exercise of their Conscience to God in Matters of Religion, is a Civil Sort of Sacrilege.

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 abolish’d; and if one Part of the Great Charter may be repeal’d, or invalidated, why not the other?

But to this I answer, That the True Fundamentals in the Charter, are not the less firm or forceable, or inviolable for that; because they do not stand upon that Act, though it was 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 nevertheless in Force, it not being the Original Establishment, but a Declaration and Confirmation of that Establishment.26 But those Things that are abrogable, or abrogated in the Great Charter, were never a Part of the Fundamentals, but hedg’d in by the Clergy, and allowed by the Barons upon present Emergency. Besides, that which I have hitherto maintained to be the Common and Fundamental Law of the Land, is so reputed, and farther 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 retain the English Part of the Charter, without conforming to Rome, and yet now cancel the English Part it self to every Free-born Englishman 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 People’s Liberties, and Violaters of these Noble Laws, did not escape with bare Excommunications and Curses; for such was the Venerable Esteem our Ancestors had for these Great Privileges, and deep Sollicitude to preserve them from the Defacings of Time, or Usurpation of Power, that King Alfred executed Forty 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 the Speneers, 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 and Belknap: And as for Empson and Dudley, though Persons of Quality, in the Time of King Henry the Seventh, the most ignominious Death of our Country, such as belongs to Theft and Murder, was hardly Satisfaction enough to the Kingdom, for their Uncharterall Proceeding. I shall chuse to deliver it in the Words of Chief Justice Cook, a Man, whose Learning in Law hath, not without Reason, obtained him a Venerable Character of our English Nation.

There was (saith he) an Act of Parliament made in the 11th Year of King Henry the Seventh, which had a Fair Flattering Preamble, pretending to avoid divers Mischiefs, which were First, To the high Displeasure of Almighty God. Secondly, The Great Let of the Common Law. And, Thirdly, 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 henceforth, as well Justices of Assize, as Justices of the Peace, in every County, upon Information for the King, before them made, without any Finding or Presenting by Twelve Men, shall have full Power and Authority, by their Discretion, to hear and determine all Offences, as Riots, unlawful Assemblies, &c. committed and done against Act or Statute made, and not repeal’d, &c.

By Pretext of this Law, Empson and Dudley did commit upon the Subject 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. 8. chap. 6.

A good Caveat, says he, to Parliaments, to leave all Causes to be measur’d by the Golden and Strait Metwand of the Law, and not to the uncertain and crooked Cord of Discretion. He goes on,

It is almost incredible to foresee, when any Maxim, or Fundamental Law of this Realm is altered (as elsewhere hath been observed) what dangerous Inconveniences 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 authorized, committed most Grievous and Heavy Oppressions and 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 Trial by Jury, Being the Ancient Birthright of the Subject; but to hear and determine the same by their Discretions; inflicting such Penalty as the Statutes, 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 observed.

This Statute of the 11th of Hen. 7. we have recited, and shewed the just Inconveniences 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 vestigiis insistant, exitus perhorrescant. Thus much Chief Justice Cook.27

I am sure, there is nothing I have offer’d in Defence of English Law-Doctrine, that riseth higher than the Judgment and Language of this Great Man, the Preservation and Publication of whose Labours, 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 sat in this Land.

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

I. The Reason of the Alteration of the Law, ought to be the Discommodity of continuing it; but there can never be so much as the least Inconveniency in continuing That of Liberty and Property; therefore there can be no just Ground for infringing, much less abrogating the Laws that secure them.

II. No Man in England is born Slave to another; neither hath One Right to inherit the Sweat of the Others Brow, or Reap the Benefit of his Labour, but by Consent; therefore no Man should be deprived of his Property, unless he injure another Man’s, and then by Legal Judgment.

III. But certainly nothing is more unreasonable, than 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 and Civil Things. Religion, under any Modification, is no Part of the Old English Government. Honestè vivere, Alterum non laedere, jus suum cuique tribuere, are enough to entitle every Native to English Privileges.28 A Man may be a very good Englishman, and yet a very indifferent Churchman. Nigh Three Hundred Years before Austin set his Foot on English Ground, had the Inhabitants of this Island a Free Government.29 It is want of distinguishing between it and the Modes of Religion, which fills every clamorous Mouth with such impertinent Cries 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 Tenant; or a Presbyterian Tenant, to have an Episcopalian Landlord? Certainly, the Civil Affairs of all Governments in the World, may be peaceably transacted under the different Liveries, or 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 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 Privileges rising higher than the Date of Protestancy, can never justly be invalidated for Non-conformity to any Form of it. This were to Lose by the Reformation, which God forbid: I am sure ’twas to enjoy Property, with Conscience, that promoted it. Nor is there a much better Definition of Protestancy, than 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 Speech to the House of Lords: His Words are these:

I Acquiesce in, and Honour 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 had nothing to do with the Principle it self, what more can She pretend over the Actions of those Men, who Live that Good Life? Certainly, if Religion be an Inward Principle of Divine Life, exerting it self by Holy Living, and that, as such, it belongs not to the Commission of our Superiors, I do with Submission conceive, that there is very little else of Religion left 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 cannot reasonably be reputed a necessary Part of Religion; And, I believe he is too great a Divine and Lawyer, upon second Thoughts, to Repute that a Part of our Laws, a Part and 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 perplex’d Contests and Troublesome Interruptions, than 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 Superiors, 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 for Non-conformity) is a Maxim that belongs not to the Holy Law of God, or Common Law of the Land.

IV. If Liberty and Property must be the Forfeit of Conscience for Non-conformity to the Prince’s Religion, the Prince and his Religion shall only be Lov’d as the next best Accession to other Men’s Estates, and the Prince perpetually provok’d to expose many of his inoffensive People to Beggary, for what is no Fault at Common Law.

V. It is our Superiors Interest, that Property be preserved, because it is their own Case: None have more Property than Themselves. But if Property be exposed for Religion, the Civil Magistrate exposes both his Conscience and Property to the Church, and disarms himself of all Defence upon any Alteration of Judgment. This is plainly for the Prince to hold under the Prelate, and the State to suffer it self to be Rid by the Church.

VI. It obstructs all Improvement of Land and Trade; for who will Labour that hath no Property, 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 are to have an Eternal Propriety therein.

VII. This Sort of Procedure, hitherto opposed, on 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 Government to prevent: The Reigns of Henry 8. Edward 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. Comes Edw. 6. and Enacts Protestancy with an Oath to maintain it. 1 Q. Mary, Ch. 1. This is abrogated: Popery Solemnly Restored; and an Oath inforc’d to Defend it: And this Queen Repeals also all Laws Her Father made against the Pope, since the 12th of Hen. 8. Next, follows Q. Elizabeth, and Repeals Her Laws, calls back Protestancy, ordains a new Oath, to un-Oath Queen Mary’s Oath; and all this under the Penalty of losing Estate, Liberty, and sometimes Life it self; which, Thousands, to avoid, Lamentably Perjur’d themselves, four or five Times over, within the Space of Twenty Years. In which Sin, the Clergy Transcended: Not an Hundred for every Thousand, but left their Principles for their Parishes. Thus hath Conscience been Debauch’d by Force, and Property toss’d up and down by the Impetuous Blasts of Ignorant Zeal, or Sinister Design.

VIII. Where Liberty and Property are Violated; there must always 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 not Conscious to themselves of having done an ill Thing, They, to defend their Unforfeited Priviledges, chearfully Hazard all they have in this World. So very 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 to the Possessor. On the contrary, nothing can give greater Chearfulness, Confidence, Security and Honour to any Prince, than Ruling by Law; for it is a Conjunction of Title with Power, and Attracts Love as well as it Requires Duty.

Give me Leave, without 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; who, Despairing of Relief at home, called in the Spartans, 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, whetted by Despair, and the Prospect of greater Miseries, did, by the Athenians, deliver themselves from the Spartan Yoak.

Nor is there any other considerable Reason given for the Ruin of the Carthaginian State, than Avarice and Severity. More of this is to be found in Rawleigh’s History of the World, l. 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 Lyon, for the Oppression done in his Youth; being Pinch’d by the Wolf, Goar’d by the Bull, and kick’d also by the Ass: The Senseless Mobb.30

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 Syracusians, 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, than 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, The were not able to relieve them, and wish’d them to provide for their own Safety.31

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, than many Violent Acts of Hostility: Which makes good that Saying of Seneca, Mitius imperanti melius paretur, They are best obeyed, that Govern most mildly.32

IX. If these Ancient Fundamental Laws, so Agreeable with Nature, so suited to the Dispositions of our Nation, so often defended with Blood and Treasure, so Carefully and Frequently Ratified by our Ancestors, 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 Legislature; 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 Catholicks. It is one of our main Objections, that their Church assumes a Power of Imposing Religion, thereby denying Men the Liberty of walking by the Rules of their own Reason and Conscience, and Precepts of Holy Writ: To whom, we oppose both. We say, the Church is tyed to act nothing contrary to Reason; and that Holy Writ is the declar’d Law of Heaven, which to maintain, 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 to Common Right. 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 uncertain, one Thing to Day, and another to Morrow? 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 controuling 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 Privileges rather to depend upon Men, than Laws, as she doth upon Councils, not Scripture? If this be not Popery in Temporals, what is?

It is humbly beseech’d of Superiors, 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 Privileges for it; but, to Maintain the People’s Properties, according to the ancient Fundamental Laws of the Land, and to add such Statutes only, as were Consistent with, and Preservative of those Fundamental Laws.

Lastly, To conclude this Head; My plain and honest Drift has been, to show that Church Government is no Essential Part of the old English Government, and to disintangle Property from Opinion, the untoward Knot, the Clergy, for several Ages have tyed, which is not only the People’s Right, but our Superiors 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, than belongs to the Nature of Property; and the Reason of our Possession is not our Right by, and Obedience to, the Common Law, but Conformity to Church Law, or Laws for Church Conformity. A Thing dangerous to Civil Government, since ’tis an Alteration of old English Tenure, a suffering the Church to Trip up and supplant the State; and 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 Foe, 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, for all That: Behold, some Church Trophies made at the Conquest of a peaceable Dissenter!

This is that anxious Thing; May our Superiors 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 of their Legislation and Administration. Make Englishmen’s Rights as Inviolable, as English Church Rights, Disintangle and Distinguish them: And let no Man sustain Civil Punishments for Ecclesiastical Faults, but for Sins against the ancient, establish’d 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 Englishmen; whose Cry is, and the Cry of whose Laws hath ever been, Property rather than Opinion, Civil Rights not concern’d with Ecclesiastical Discipline, nor forfeitable for Religious Non-conformity.

But tho’ an inviolable Preservation of English Rights, of all Things, best secureth to our Superiors, the Love and Allegiance of the People; yet there is something farther, that, with Submission, I offer to their serious Consideration, which in the second Place concerns their Interest, and the People’s Felicity; and that is their Disagreement about Religion, notwithstanding their unanimous Cry for Property; a prudent Management of which, may turn to the great Quiet, Honour and Profit of the King and Kingdom.

CHAP. II.

Of our Superiors governing themselves upon a Ballance, as near as may be, towards the several Religious Interests.

II. Of a Ballance, respecting Religious Differences. Eight Prudential Reasons why the Civil Magistrate should embrace it. Three Objections Answer’d. A Comprehension consider’d, but a Toleration Preferr’d, upon Reason and Example.

TO PERFORM my Part, in this Point, being the second Branch of my Answer to the Question; I shall not, at this Time, make it my Business to manifest the Inconsistency that there is between the Christian Religion, and a forced Uniformity, not only because it hath been so often and excellently done by Men of Wit, Learning and Conscience, and that I have else-where largely deliver’d my Sense about it; but because every free and impartial Temper, hath, of a long Time, observ’d, that such Barbarous Attempts were so far from being indulg’d, that they were most severely Prohibited by Christ himself; who instructed his Disciples, to Love their Enemies, and not to persecute their Friends for every Difference in Opinion: That the Tares should grow with the Wheat: That his Kingdom is not of this World: That Faith is the Gift of God: That the Will and Understanding of Men are Faculties not to be work’d upon by any Corporal Penalties: That TRUTH is All-sufficient to her own Relief: That ERROR and ANGER go together: That Base Coyn only stands in need of Imposition to make it current, but that True Metal passeth for its own Intrinsick Value; with a great deal more of that Nature.33 I shall therefore chuse to oppose my self, at this Time, to any such Severity, upon meer Prudence; that such as have No Religion (and certainly they that Persecute for Religion, have as little as need to be) may be induced to Tolerate Them that have.

First, However Advisable it may be, in the Judgment of some Worldly Wise Men, to prevent, even by Force, the arising of any New Opinion, where a Kingdom is Universally of another Mind; especially if it be Odious to the People, and inconsistent with the Safety of the Government; it cannot be so, where a Kingdom is of Many Minds, unless some One Party hath all the Wisdom, Wealth, Number, Sober Life, Industry and Resolution of it’s side; which I am sure is not to be found in England. So that the Wind hath plainly shifted it’s Corner, and consequently obliges to another Course: I mean, England’s Circumstances are greatly changed, and they require new Expedients and another Sort of Application.

Physicians vary their Medicines according to the Revolution and the Mixture of Distempers. They that seek to tye the Government to absolute and inadequate Methods (supposing them once apt, which Cruelty in this Case never was) are not Friends to it’s Interest, whatever they may be to their own. If our Superiors should make it their Business so to prefer one Party, as to depress or deprive the rest, they insecure themselves, by making their Friends their Enemies, who before were one another’s. To be sure it createth Hatred between the Party advanced, and those deprest. Jacob’s preferring Joseph put his Brethren upon that Conspiracy against him.34

I will allow that they may have a more particular Favour for the Church Party, than for any other Perswasion, but not more than for all other Parties in England: That certainly would break the Ballance; the keeping up of which, will make every Party to owe its Tranquility to their Prudence and Goodness, which will never fail of Returns of Love and Loyalty. For since we see each Interest looks jealously upon the other, ’tis reasonable to believe, they had rather the Dominion should lodge where it is, while impartial in their Judgment, than to trust it with any one Sort of themselves.

Many inquisitive Men into Humane Affairs have thought, that the Concord of Discords hath not been the infirmest Basis Government can rise or stand upon: It hath been observed, that less Sedition and Disturbance attended Hannibal’s Army, that consisted of many Nations, than the Roman Legions, that were of one People. It is marvellous how the Wisdom of that General secured them to his Designs: Livy saith, That his Army for Thirteen Years, that had roved up and down the Roman Empire, made up of many Countries, divers Languages, Laws, Customs, Religions; under all their Successes of War and Peace, never mutined. Malvetzy, as well as Livy, ascribes it to that Variety, well managed by the General.35

By the like Prudence Jovianus and Theodosius Magnus brought Tranquility to their Empire, after much Rage and Blood for Religion.

In Nature we also see, all Heat consumes, all Cold kills; that three Degrees of Cold to two of Heat, allay the Heat, but introduce the contrary Quality, and over-cool by a Degree; but two Degrees of Cold, to two of Heat, make a Poyze in Elements, and a Ballance in Nature.

The like in Families: It is not probable that a Master should have his Work so well done, at least with that Love and Respect, who continually Smiles upon one Servant, and severely Frowns upon all the rest; on the contrary, ’tis apt to raise Feuds amongst Servants, and turn Duty into Revenge at least Contempt. In Fine, it is to make our Superior’s Dominion less than God made it, and to blind their Eyes, stop their Ears, and shut up their Breasts, from beholding the Miseries, hearing the Cries, and redressing the Grievances of a vast Number of People, under their Charge, vexed in this World, for their Belief and inoffensive Practice about the next.

Secondly, It is the Interest of Governours, to be put upon no thankless Offices; that is, to blow no Coals in their own Country, especially when it is to consume their People, and, it may be, themselves too: Not to be the Cat’s Foot, nor to make Work for themselves, or fill their own Hands with Trouble, or the Kingdom with Complaints. It is to forbid them the Use of Clemency, wherein they ought most of all to imitate God Almighty, whose Mercy is above all his Works; and renders them a sort of Extortioners to the People, the most remote from the End and Goodness of their Office. In short, it is the best Receipt that their Enemies can give, to make them uneasie to the Country.

Thirdly, It not only makes them Enemies, but there is no such Excitement to revenge, as a Rap’d Conscience. He that hath been forced to break his Peace, to gratifie the Humour of another, must have a great Share of Mercy and self-denial, to forgive that Injury, and forbid himself the Pleasure of Retribution upon the Authors of it: For Revenge, in other Cases condemnable of all, is here look’d upon by too many, to be the next way to Expiation. To be sure, whether the Grounds of their Dissent be rational in themselves, such Severity is unjustifiable with them; for this is a Maxim with Sufferers, whoever is in the Wrong, the Persecutor cannot be in the right. Men, not conscious to themselves of Evil, and harshly treated, not only resent it unkindly, but are bold to shew it.

Fourthly, Suppose the Prince, by his Severity, conquers any into a Compliance, he can upon no prudent Ground assure himself of their Fidelity, whom he hath taught to be treacherous to their own Convictions. Wise Men rarely confide in those whom they have debauch’d from Trust to serve themselves: At best it resembleth but forced Marriages, that seldom prove happy to the Parties. In short, Force makes Hypocrites, ’tis Perswasion only that makes Converts.

Fifthly, This Partiality, of sacrificing the Liberty and Property of all Dissenters, to the Promotion of a single Party, be they good or ill Men, as it is the lively Representation of J. Calvin’s Horrendum Decretum;36 so the Consequences of the one belong unto the other; it being but that ill-natured Principle put into Practice. Men are put upon the same desperate Courses, either to have no Conscience at all, or to be hanged for having a Conscience not fashionable: For, let them be Virtuous, let them be Vicious, if they fall not in with that Mode of Religion, they must be reprobated to all Civil and Ecclesiastical Intents and Purposes. Strange! that Men must either deny their Faith and Reason, or be destroyed for acting according to them, be they otherwise never so peaceable. What Power is this, or rather what Principle? But that Men are to be protected upon Favour, not right or merit; and that no Merit out of the publick Church Dress should find Acceptance, is severe. We justly blame that Father, that narrows his Paternal Love to some one of his Children, though the rest be not one Jot less Virtuous than the Favourite: Such Injustice can never flow from a Soul acted by Reason, but a Mind govern’d by Fancy, and enslaved to Passions.

Sixthly, Consider Peace, Plenty, and Safety, the three great Inducements to any Country to Honour the Prince, and Love the Government, as well as the best Allurements to Foreigners to trade with it and transport themselves to it, are utterly lost by such Partialities: for instead of Peace, Love and good Neighbourhood, behold Animosity and Contest! One Neighbour watches another, and makes him an Offender for his Conscience; this divides them, their Families and Acquaintance: perhaps, with them the Towns and Villages where they live: And most commonly, the Sufferer hath the Pity, and the Persecutor the Odium of the Multitude. And truly when People see Cruelty practised upon their inoffensive Neighbours, by a troublesom sort of Men, and those countenanced by a Law, it breedeth ill Blood against the Government. Certainly, Haling People to Goals, breaking open their Houses, siezing of their Estates, and that without all Proportion; leaving Wives without their Husbands, and Children without their Parents, and their Families, Relations, Friends and Neighbours, under Amaze and Trouble, is almost as far from the Peace of a well-govern’d Kingdom, as it is from the Meekness of Christianity.

Plenty will be hereby exchanged for Poverty, by the Destruction of many thousand Families within this Realm, who are greatly instrumental for the carrying on of the most substantial Commerce therein: Men of Virtue, good Contrivance, Great Industry; whose Labours, not only keep the Parishes from the Trouble and Charge of maintaining them and theirs, but help to maintain the Poor, and are great Contributors to the King’s Revenue by their Traffick. This very Severity will make more Bankrupts in the Kingdom of England in seven Years, than have been in it upon all other Accounts in Seven Ages: which Consequence, how far it may consist with the Credit and Interest of the Government, I leave to better judgments.

This Sort of great Severity that hath been lately, and still is used amongst us, is like to prove a great Check to that Readiness, which otherwise we find in Foreigners to Trade with the Inhabitants of this Kingdom; for if Men cannot call any Thing their Own, under a different Exercise of Conscience from the National Way of Religion, their Correspondents may justly and prudently say, We will not further concern our selves with Men that stand upon such ticklish Terms: What know we but such Persons are ruin’d in their Estates, by Reason of their Non-Conformity, before such Time as we shall be reimburst for Money paid, or Goods deliver’d: Nay, we know not how soon those who are Conformists, may be Non-Conformists, or what Revolutions of Councils may happen, since the Fundamental Laws, so jealous of the People’s Property, are so little valued by some of their own Magistrates; for though we are told of very worthy and excellent Laws in England, for the Security of the People’s Rights, yet we are also told, that they all hang at the Church’s Girdle, insomuch as no Church-Conformity no Property; which is, No Churchman, No Englishman. So that in Effect the Rights of their Country depend upon the Rights of their Church; and those Churches have taken their Turns so often, that a Body knows not how to manage one’s self securely to one’s own Affairs, in a Correspondence with any of them. For in King Henry the Eighth’s Days, Popery was the only Orthodox Religion, and Zuinglius, Luther, Melancthon, Oecolampadius, &c. were great Hereticks. In Edward the Sixth’s Time, they were Saints, and Popery was Idolatry. A few Years after, Queen Mary makes the Papists Holy Church, and Protestancy Heresie. About Six Years compleats her Time, and Queen Elizabeth enters her Reign, in which Protestants are Good Christians, and the Church of Rome the Whore of Babylon. In Her Reign, and that of King James, and King Charles the First, sprung the Puritans, who divided themselves into Presbyterians, and Independents. The Bishops exclaimed against them for Schismaticks, and they against the Bishops for Papistical and Antichristian. In the Long Parliament’s Time, the Presbyterian drives out the Bishop; O. Cromwel defeating them, and sending the Presbyterian to keep Company with the Bishop, confers it mostly upon the Independent and Anabaptist, who kept it through the other Fractions of Government, till the Presbyter and Bishop got it from them: And the Bishop now from the Presbyter; But how long it will rest there, who knows? Thus a Foreigner may justly argue.

Nor is my Supposition idle or improbable, unless Moderation take Place of Severity, and Property the Room of Punishment for Opinion; for that must be the Lasting Security, as well as that it is the Fundamental Right of English People.

There is also a farther Consideration, and that is, the rendring just and very good Debts desperate, both at Home and Abroad, by giving Opportunity to the Debtors of Dissenters to detain their Dues. Indeed it seems a Natural Consequence with all, but Men of Mercy and Integrity: What should we pay them for, may they say, that are not in a Capacity to demand or receive it, at least to compel us? Nay, they may plead a sort of Kindness to their Creditors, and say, We had as good keep it, for if we pay it them, they will soon lose it; ’tis better to remain with us, than that they should be pillag’d of it by Informers; though Want should in the mean Time overtake the Right Owners and their Families.

Nor is it unworthy of the most deliberate Thoughts of our Superiors, that the Land already swarms with Beggars, and that there is hardly so ready a Course to increase their Number, as the severe Prosecution of Dissenters, both by making them such, and those that their Employs have kept from Begging all this While: So that though they immediately suffer, the Kingdom, in the End, must be the Loser. For besides a Decay of Trade, &c. this driving away of Flocks of Sheep, and Herds of Cattel, seizing of Barns full of Corn, breaking open of Doors and Chests, taking away the best Goods that those Instruments of Cruelty can find, sometimes All, even to a Bed, a Blanket, Wearing Apparel, and the very Tools of Trade, by which People honestly labour to get their Bread, till they leave Men, Women and Children, destitute of Subsistence, will necessitate an extream Advance of the Poor’s Rate in every Parish of England, or they must be Starv’d. O, that it would please them that are in Authority, to put a Stop to this inhumane Usage, lest the Vengeance of the Just GOD, break forth farther against this poor Land!

Safety, another Requisite to an Happy Government, must needs be at an End, where the Course oppugn’d is followed, by tempting People to irregular Methods to be easy, or to Quit the Land. And truly it is but some prudent Prince’s proclaiming Liberty of Conscience within his Territories, and a Door is opened for a Million of People to pass out of their Native Soil, which is not so extreamly improved, that it should not want Two or Three Hundred Thousand Families more than it hath, to advance it; especially at this Time of Day, when our Foreign Islands Yearly take off so many Inhabitants from us, who, from Necessity, are made unable to stay at Home: And as of Contraries there is the same Reason, so let the Government of England but give that Prudent Invitation to Foreigners, and She maketh Her self Mistress of the Arts and Manufactures of Europe. Nothing else hath preserv’d Holland from Truckling under the Spanish Yoak, and being Ruin’d above Threescore Years ago, and given her that Rise to Wealth and Glory.

Seventhly, Nor is this Severity only injurious to the Affairs of England, but the whole Protestant World: For besides that it calls the Sincerity of their Proceedings against the Papists into Question, it furnisheth them with this Sort of unanswerable Interrogatory: The Protestants exclaim against us for Persecutors, and are they now the Very Men themselves? Was Severity an Instance of Weakness in our Religion, and is it become a Valid Argument in theirs? Are not our Actions (once void of all Excuse with them) now defended by their own Practice? But if Men must be restrained upon Prudential Considerations from the Exercise of their Consciences in England, Why not the same in France and Germany, where Matters of State may equally be pleaded? Certainly whatever Shifts Protestants may use to palliate these Proceedings, they are thus far Condemnable upon the Foot of Prudence.

Eighthly, Such Procedure is a great Reflection upon the Justice of the Government, in that it Enacts Penalties inadequate to the Fault committed, viz. That I should lose my Liberty and Property, Fundamental Civil Privileges, for some Error in Judgment about Matters of Religion: As if I must not be a Man, because I am not such a Sort of Religious Man as the Government would have me; but must lose my Claim to all Natural Benefits, though I agree with them in Civil Affairs, because I fall not in with the Judgment of the Government in some Points of a Supernatural Import, tho’ no real Part of the Ancient Government. Perhaps instead of going to the Left Hand, I go to the Right: And whereas I am commanded to hear A. B. I rather chuse to hear C. D. my Reason for it, being the more Religious Influence the latter hath over me, than the former; and that I find by Experience, I am better affected, and more Religiously edified to Good Living. What Blemish is this to the Government? What Insecurity to the Civil Magistrate? Why may not this Man Sell, Buy, Plow, Pay his Rents, be as good a Subject, and as True an Englishman, as any Conformist in the Kingdom? Howbeit, Fines and Goals are very ill Arguments to convince Sober Men’s Understandings, and disswade them from the Continuance of so harmless a Practice.

Lastly, But there is yet another Inconvenience that will attend this Sort of Severity, that so naturally follows upon our Superiors making Conformity to the Doctrine and Worship of the Church of England, the Sine Quâ Non, or Inlet to all Property, and Ground of Claim to all English Civil Privileges, to wit, That they make a Rod, for ought they know, to Whip their own Posterity with; since it is impossible for them to secure their Children to the English Church: And if it happen that any of them are never so Conscientiously of another Perswasion, they are liable to all the Miseries that may attend the Execution of those Laws. Such a King must not be King, such Lords and Commons must not Sit in Parliament: Nay, they must not administer any Office, be it never so inferior within the Realm, and they never so Virtuous and capable to do it: Their very Patrimony becomes a Prey to a Pack of Lewd Informers, and their Persons exposed to the Abuse of Men, Poor or Malicious.

But there are Three Objections that some make against what I have urged, not unfit to be consider’d. The First is this: If the Liberty desired be granted, what know we but Dissenters may employ their Meetings to insinuate against the Government, inflame People into a Dislike of their Superiors, and thereby prepare them for Mischief?

Answ. This Objection may have some Force, so long as our Superiors continue Severity; because it doth not only sharpen and excite Dissenters, but it runs many of them into such Holes and Corners, that if they were disposed to any such Conspiracies, they have the securest Places and Opportunities to effect their Design. But what Dissenter can be so destitute of Reason, and of Love to common Safety, as to expose himself and Family, by Plotting against a Government that is Kind to them, and gives him the Liberty he desires, and that he could only be supposed, in common Sense, to Plot for.

To be sure, Liberty to worship God, according to their several Professions, will be, as the People’s Satisfaction, so the Government’s greatest Security: For if Men enjoy their Property, and their Conscience, which is the Noblest Part of it, without Molestation, what should they object against, or Plot for? Mad Men only Burn their own Houses, Kill their own Children, and Murder themselves. Doth Kindness or Cruelty most take with Men that are themselves? H. Grotius, with Campanella, well observ’d, That a fierce and rugged Hand was very improper for Northern Countries. Englishmen are gain’d with Mildness, but inflamed by Severity.37 And many that do not suffer, are as apt to compassionate them that do. And if it will please our Superiors to make Trial of such an Indulgence, doubtless they will find Peace and Plenty to ensue. The Practice of other Nations, and the Trade, Tranquility, Power and Opulency that have attended it, is a Demonstration in the Case, and ought not to be slighted by them that aim at as High and Honourable Things for their Country. And if we had no other Instance than our own Intervals of Connivance, they were enough to satisfie Reasonable Men, how much more Moderation contributes to publick Good, than the Prosecution of People for their Religious Dissent; since the One hath ever produced Trade and Tranquility, the Other, Greater Poverty and Dissension.

The Second Objection, and by far the more Weighty, runs thus:

Object. The King and Parliament are Sworn to Maintain and Protect the Church of England, as Establish’d, &c. therefore to Tolerate other Opinions is against their Oath.

Answ. Were the Consequence True, as it is not, it were highly unreasonable to expect Impossibilities at their Hands. Kings and Parliaments can no more make Brick without Straw than Captives:38 They have not Sworn to do Things beyond their Ability; if they have, their Oaths are void. Had it been in His and their Time and Choice, when the Church of England had been first disturbed with Dissenting Opinions, it might have reflected more colourably a Kind of Neglect upon them: But since the Church of England was no sooner a Church, then She found some Sort of Dissenters, and that the utmost Policy and Severity of Queen Elizabeth, King James, and King Charles the First, were not Successful towards an Absolute Uniformity, Why should it reflect upon them, that the Church of England hath not yet rid Herself of Dissenting Parties? Besides, it is Notorious, that the late Wars gave that Opportunity to Differing Perswasions to spread, that it was utterly impossible for them to hinder, much less during the several Years of the King’s Exile; at what Time the present Parliament was no Parliament, nor the Generality of the Members of it scarce of any Authority.

Let it be considered, that ’twas the Study of the Age to make People Anti-Papistical and Anti-Episcopal, and that Power and Preferment went on that Side. Their Circumstances therefore, and their Ancestors, are not the same; they found the Kingdom divided into several Interests, and it seems a Difficulty insuperable to reduce them to any one Perswasion; wherefore to render themselves Masters of their Affections, they must necessarily Govern themselves towards them on a Ballance, as is before exprest; otherwise, they are put upon the greatest Hazards, and extreamest Difficulties to themselves and the Kingdom, and all to perform the Uncharitable Office of suppressing many Thousands of inoffensive Inhabitants, for the different Exercise of their Consciences to God: It is not to make them resemble Almighty God, the Goodness of whose Nature extends it self Universally, thus to narrow their Bowels, and confine their Clemency to one Single Party: It ought to be remembred, that Optimus went before Maximus of Old, and that Power without Goodness, is a Frightful Sort of a Thing.

But Secondly, I deny the Consequence, viz. That the King is therefore obliged to persecute Dissenters, because He or the Parliament hath taken an Oath to Maintain the Church of England: For it cannot be supposed or intended, that by maintaining Her, they are to destroy the Rest of the Inhabitants. Is it impossible to Protect Her without knocking all the rest on the Head? Do they allow any to supplant Her Clergy, Invade Her Livings, Possess Her Emoluments, Exercise Her Authority? What would She have? Is She not Church of England still, Invested with the same Power, Bearing the same Character? What Grandeur or Interest hath She lost by them? Are they not manifestly Her Protector? Is She not National Church still? And can any of Her Children be so insensible, as either to challenge her Superiors with Want of Integrity, because they had not performed Impossibilities? Or to excite them to that Harshness, which is not only Destructive of many Thousands of Inhabitants, but altogether injurious to their own Interest, and dishonourable to a Protestant Church? Suppose Dissenters not to be of the Visible Church, are they therefore unfit to live? Did the Jews treat Strangers so severely, that had so much more to say than Her self? Is not the King Lord of Wasts and Commons as well as Inclosures? Suppose God hath Elected some to Salvation, doth it therefore follow he hath Reprobated all the rest? And because he was God of the Jews, was He not therefore God of the Gentiles? Or were not the Gentiles his People, because the Jews were his peculiar People?

To be brief, they have answered their Obligation, and consented to Severe Laws, and commanded their Execution, and have not only preferr’d her above every Interest in England, but against them, to render her more Powerful and Universal; till they have good Reason to be Tired with the Lamentable Consequences of those Endeavours, and conclude, that the Uniformity thereby intended, is a Thing impracticable, as well as Mischievous.

And I wonder that these Men should so easily forget that Great Saying of KingCharlesthe First, (whom they pretend so often, and with so much Honour to remember) in his Advice to the present King, where he saith,

So that we have not only the King’s Circumstances, but his Father’s Counsel, upon Experience, who yet saw not the End of One Half of them, defending a Charitable Connivance, and Christian Toleration of Dissenters.

Obj. 3. But it may be further alledged, This makes Way for Popery or Presbytery, to undermine the Church of England, and mount the Chair of Preferment, which is more than a Prudential Indulgence of different Opinions.

And yet there is not any so probable an Expedient to vanish those Fears, and prevent any such Design, as keeping all Interests upon the Ballance; for so the Protestant makes at least Six Parties against Popery, and the Church of England at least Five against Presbytery: And how either of them should be able to turn the Scale against Five or Six, as Free and Thriving Interests, as either of them can pretend to be, I confess I cannot understand. But if One only Interest must be Tolerated, which implies a Resolution to suppress the Rest, plain it is, that the Church of England ventures Her Single Party against Six Growing Interests, and thereby gives Presbytery and Popery by far an easier Access to Supremacy; especially the latter, for that it is the Religion of those Parts of Europe, which neither want Inclination, nor Ability to prosper it. So that besides the Consistency of such an Indulgence with the Nature of a Christian Church, there can be nothing more in Prudence advisable for the Church of England, than to allow of the Ballance propounded: In the first, no Person of any real Worth, will ever the sooner decline her; on the contrary, it will give her a greater Reputation in a Country so hating Severity: And next, it gives her Opportunity to turn the Scale against any one Party that may aspire to her Pulpits and Endowments: And she never need to fear the Agreement of all of them to any such Design; Episcopacy being not more intolerable than Presbytery in Power, even to an Independency it self; and yet between them, lies the narrowest Difference that is among the Dissenting Interests in this Kingdom.

But this seems too large, and yielding, and therefore to find a Medium, something that may compass the Happy End of Good Correspondence and Tranquility, at least so to fortifie the Church of England, as that she may securely give Law to all other Religious Interests, I hear a Comprehension is pitch’d upon, and diligently pursued by both Episcopalians and Presbyterians, at least, some of each Party.

But if it becomes Wise Men to Look before they Leap; it will not be unadvisable for them to weigh the Consequences of such an Endeavour.

For, in the first Place, there is no People I know in England, that stands at a greater Distance from Her Doctrine, as it is maintain’d by her present Sons, then the Presbyterians, particularly about Absolute Reprobation, the Person of Christ, Satisfaction and Justification: And he must be a Stranger in the Religious Contests of our Times, that knows not this.

II. In the next Place, none have govern’d themselves with a plainer Denial, and more peremptory Contempt of Episcopacy, and the whole Discipline and Worship of the Church of England, than the Presbyterians have ever done: Let them put me to prove it if they please, even of their Most Reverend Fathers.

III. Who knows not that their Reciprocal Heats about these very Things, went a great Way towards our late Lamentable Civil Wars? Now if the same Principles remain with each Party, and that they are so far from repenting of their Tenaciousness, that on the contrary they justifie their Dissent from one another in these Matters, how can either Party have Faith enough to rely upon each other’s Kindness, or so much as attempt a Comprehension? What must become of the Labours of Bishop Whitgift, R. Hooker, Bishop Bancroft, Bishop Laud, &c. in Rebuke of the Presbyterian Separation, and the Names of those Leading Dissenters, as Cartwright, Dod, Bradshaw, Rutterford, Galaspee, &c. so Famous among the present Presbyterians, and that for their Opposition to the Church? This consider’d, what Reason can any render, why the Episcopalians should so singularly provide for, and confide in an Interest that hath already been so destructive to theirs? On the other Hand, With what Prudence may the Presbyterians embrace the other’s Offer, that to be sure, intend it not in stark Kindness to them, and who, they must needs think, cannot but owe Revenge, and retain deep Grudges for old Stories? But

IV. The very Reason given for a Comprehension, is the greatest that can be urged against it, namely, The Suppression of other Dissenting Persuasions. I will suppose a Comprehension, and the Consequences of it, to be an Eradication of all other Interests, the Thing desired: But if the Two remaining Parties shall fall out, as it is not likely that they will long agree, what can the Presbyterian have to Ballance himself against the Ruling Power of Episcopacy? Or the Episcopalian to secure himself against the Aspirings of Presbytery? They must either All become Episcopalians, or Presbyterians, else they will mix like Iron and Clay, which made ill Legs for the Image in Daniel:40 Nor is it to be thought, that their Legs should stand any better upon a Comprehension.

But some are ready to say, That their Difference is very Minute: Grant it; Are they ever the more deserving for that? Certainly, Forbearance should carry some Proportion with the Greatness of the Difference, by how much it is easier to comply in Small than Great Matters. He that dissents Fundamentally, is more excusable than those that Sacrifice the Peace and Concord of a Society about Little Circumstances; for there cannot be the same Inducement to suspect Men of Obstinacy in an Essential, as Circumstantial Non-Conformity.

Besides, How far can this Accommodation extend with Security to the Church of England? Or, on what better Terms will the Presbyterians Conform to Her Discipline and Formal Acts of Devotion, than those upon which Peter du Moulin offer’d to Preach the Gospel at Rome? viz. That if the Pope would give him Leave to Preach at Rome, he would be contented to Preach in a Fool’s Coat. I question if the Presbyterian can go so far, I am sure he could not; and as sure, that Peter du Moulin hop’d, by preaching there in a Fool’s Coat, to inculcate that Doctrine which should Un-Mitre the Pope, and alter his Church; the very Thing the Church of England Fears and Fences against. For Peter du Moulin intended to preach in a Fool’s Coat no longer, than till he had preach’d the People Wise enough to throw it off again. So the Presbyterians, they may Conform to certain Ceremonies (once as Sinful to them, as a Fool’s Coat could be Ridiculous to Peter du Moulin) that they may the better introduce their Alterations both in Doctrine and Discipline.

But that which ought to go a great Way with our Superiors, in their Judgment of this Matter, is not only the Benefit of a Ballance against the Presumption of any One Party, and the Probability, if not Certainty of their never being overdriven by any One Persuasion, whilst they have others that will more than Poize against the Growing Power of it: But the Conceit it self, if not altogether impracticable, is at least very difficult to the Promoters, and an Office as Thankless from the Parties concern’d.

This appears in the Endeavours used for a Comprehension of Arrians and Homoousians under One Orthodoxy, related not only in our common Ecclesiastical History, but more amply in the Writings of Hilary, an Enemy to the Arrians, and Mariana’s Spanish History.41 Their publick Tests, or comprehensive Creeds were many, Nice, Ariminum, Sirmium, &c. in order to reconcile both Parties, that neither might stigmatize the other with the odious Crime of Heresie: But the Consequence of all this Convocation and Prolix Debate was, that neither Party could be satisfied, each continuing their former Sentiments, and so grew up into stronger Factions, to the Division, Distraction, and almost Destruction of the whole Empire: Recover’d a little by the prudent Moderation of Jovianus, and much improved, not by a Comprehension, but Restauration of a Seasonable Liberty of Conscience, by Theodosius Magnus.

Also in Germany, about the Time of the Reformation, nothing seemed more Sincere than the Design of Union between the Lutherans and Zuinglians: For Luther and Zuinglius themselves, by the Earnest Endeavours of the Landgrave of Hessen, came together; but the Success was so small, notwithstanding the Grave’s Mediation, that they parted scarcely Civil: To be sure, as far from Unity as Controversie is.

Luther and Cardinal Cajetan met for a Composure of the Breach betwixt the Protestants and the Pope, but it was too wide for those Conferences to reconcile: No Comprehension could be practicable. A second Essay to the same Purpose, was by Melancthon; Cassander and others; the Consequence of it was, that the Parties were displeased, and the Heads suspected, if not hated of their Followers. Nor had Bucer’s Meeting with Julius Pflugg any better Success.

And how fruitless their Endeavours have been, that with greatest Art and Industry, have, of a long Time, endeavoured a Reconciliation of Lutherans and Calvinists, is well known to those that are acquainted with the Affairs of Germany: And such as are not, may furnish themselves from the publick Relations given by those that are employed about that Accommodation: Where, besides a dull and heavy Progress, the Reader may be a Witness of their Complaint; not only that both Parties are too Tenacious, but that the Mediators suffer Detraction for their good Endeavours; each Side grudging every Tittle they yield; and murmuring as if they were to lose their Religion. And if Persons so disinterested, and worthy in their Attempts, have had no better Issue, I cannot see how those, who seem compell’d by Worldly Interest more than Conscience, to seek and propagate a Comprehension, especially, when it determines in the Persecution of the rejected Perswasions, can, with any Reason, expect from God, or Good Men, any better Success.

Lastly, There is nothing any Man, touched with Justice and Mercy, can alledge for a Comprehension, that may not much better be urged for a Toleration, For the Church is less in Danger, when she knows the worst, than where the Danger is hid. Five Enemies without Doors being not so mischievous as one within. But they are also Men, and Englishmen as well as those of other Perswasions: Their Faith is as Christian, they believe as sincerely, live as conscientiously, are as useful in the Kingdom, and manage their Dissent with as much Modesty and Prudence, the Church of England her self being in great Measure Judge, as those on whose Account a Comprehension may be desired: To be sure they are Englishmen, and have an Equal Claim to the Civil Rights of their Native Country, with any that live in it, whom to persecute, whilst others, and those no better Men in themselves are more than tolerated, is, as I have already said, The unreasonable and unmerciful Doctrine of Absolute Reprobation put in Practice in Civils: From which the Lord deliver us.

CHAP. III.

A sincere Promotion of General and Practical Religion.

III. Of General and Practical Religion, That the Promotion of it, is the only Way to take in, and stop the Mouth of all Perswasions, being the Center to which all Parties verbally tend, and therefore the Station for a prudent Magistrate, to meet every Interest in: The Neglect of it pernicious: Instances: That it is the unum Necessarium42to Felicity here and hereafter.

I AM NOW come to the last, which, to be sure, is not the least Part of my Answer to the Question propounded, viz. The sincere Promotion of general and practical Religion; by which I mean the Ten Commandments, or moral Law, and Christ’s Sermon upon the Mount, with other Heavenly Sayings, excellently improved, and earnestly recommended by several Passages in the Writings of his Disciples, which forbid Evil, not only in Deed but Thought; and enjoyn Purity and Holiness, as without which no Man, be his Pretences what they will, shall ever see God. In short, General, True and Requisite Religion, in the Apostle James’s Definition is, To visit the Widow and Fatherless, and to keep our selves, through the Universal Grace, unspotted of the World.43 This is the most easie and probable way, to fetch in all Men professing God and Religion: Since every Perswasion acknowledges this in Words, be their Lives never so disagreeable to their Confession. And this being the Unum Necessarium, that one Thing needful, to make Men happy here and hereafter, why, alas, should Men sacrifice their Accord in this great Point, for an Unity in minute or circumstantial Things, that perhaps is inobtainable, and if it were not, would signifie little or nothing, either to the Good of humane Society, or the particular Comfort of any, in the World which is to come?

No one Thing is more unaccountable and condemnable among Men, than their Uncharitable Contests about Religion, indeed about Words and Phrases; whilst they all verbally meet in the most, if not only necessary Part of Christian Religion: For nothing is more certain, than if Men would but live up to one half of what they know in their own Consciences they ought to practice, their Edge would be taken off, their Blood would be sweetned by Mercy and Truth, and this unnatural Sharpness qualified: They would quickly find Work enough at Home, each Man’s Hands would be full by the Unruliness of his own Passions, and in subjecting of his own Will, and instead of devouring one another’s good Name, Liberty, or Estate, Compassion would rise, and mutual Desires to be Assistant to each Other, in a better Sort of Living. O how decent, and how delightful would it be, to see Mankind (the Creation of one God, that hath upheld them to this Day) of One Accord, at least in the Weighty Things of God’s Holy Law!

’Tis Want of Practice, and too much Prate, that hath made Way for all the Incharity and ill Living that is in the World. No Matter what Men say, if the Devil keep the House. Let the Grace of God, the Principle of divine Life (as a great Man lately called it in his Speech) but be Heartily and Reverently entertained of Men, that teaches us to deny all Ungodliness, and converse soberly, righteously and godly, in this present evil World, and it is not to be doubted but Tranquility, at least a very Amicable Correspondence will follow.

Men are not to be reputed Good by their Opinions or Professions of Religion: Nor is it that which ought to engage the Government, but Practice; ’tis this that must save or damn. Christ in his Representation of the great Day, doth not tell us, that it shall be said to Men, Well said or Well talked, but Well done, Good and Faithful Servant: Neither is the Depart from me, directed to any, but the Workers of Iniquity;44Error is now translated from the Signification of an evil Life, to an unsound Proposition, as Philosophy is from the Mortification, and Well living, to an Unintelligible Way of Wrangling. And a Man is more bitterly harrass’d for a mistaken Notion, though the Party holding thinks it not so, and the Party charging it denies an Infallible Judgment (so that it may as well be true as false for all them) than for the most dissolute or immoralLife. And truly it is high Time, that Men should give better Testimony of their Christianity: For Cruelty hath no Share in Christ’s Religion, and Coercion upon Conscience, is utterly inconsistent with the very Nature of his Kingdom. He rebuked that Zeal which would have Fire come down from Heaven, to devour Dissenters, tho’ it came from his own Disciples; and forbad them to pluck up the Tares, though none had a more gentle or infallible Hand to do it with.45

He preferred Mercy before Sacrifice,46 and therefore we may well believe, that the unmerciful Sacrifices some Men now offer, I mean Imprisoning Persons, Spoiling of Goods, and leaving whole Families destitute of Subsistence, as well as disinheriting them of all civil Privileges in the Government, are far from being grateful to him, who therefore came into the World, and preach’d that Heavenly Doctrine of Forbearing, and Loving of Enemies, and laid down his most innocent Life for us, whilst we were Rebels, that by such peaceable Precepts, and so patient an Example, the World might be prevailed upon to leave those barbarous Courses. And doubtless, very lamentable will their Condition be, who at the Coming of the great Lord, shall be found Beaters of their Fellow-Servants.47

In vain do Men go to Church, pray, preach, and stile themselves Believers, Christians, Children of God, &c. Whilst such Acts of Severity are cherished among them; and any Disposition to molest harmless Neighbours for their Conscience, so much as countenanc’d by them. A Course quite repugnant to Christ’s Example and Command. In short, the Promoting of this General Religion, by a severe Reprehension and Punishment of Vice, and Encouragement of Virtue, is the Interest of our Superiors, several Ways.

1. In that it meets with, and takes in all the Religious Perswasions of the Kingdom, for all pretend to make this their Corner Stone. Let them be equally encouraged to square their Building by it. Penal Laws for Religion, is a Church with a Sting in her Tail; take that out, and there is no Fear of the People’s Love and Duty: And what better Obligation or Security can the civil Magistrate desire? Every Man owns the Text; ’tis the Comment that’s disputed. Let it but please him to make the Text only Sacred and Necessary, and leave Men to keep Company with their own Meanings or Consequences, and he does not only prudently take in all, but suppresseth nice Searches, Fixes Unity upon Materials, Quiets present Differences about Things of lesser Moment, retrieves Humanity, and Christian Clemency, and fills the Kingdom with Love and Respect to their Superiors.

2.Next, A Promotion of General Religion, which, being in it self practical; brings back ancient Virtue. Good Living will thrive in this Soil: Men will grow Honest, Trusty, and Temperate; we may expect Good Neighbourhood and cordial Friendship: One may then depend more upon a Word, than now upon an Oath. How lamentable is it to see People afraid of one another; Men made and provided for of one God, and that must be judged by that one Eternal God, yet full of Diffidence in what each other says, and most commonly interpret, as people read Hebrew, all Things backward.

3. The Third Benefit is, that Men will be more industrious; more diligent in their lawful Callings, which will encrease our Manufacture, set the Idle and Poor to work for their Lively-Hood, and enable the several Countries, with more Ease and Decency to maintain the Aged and impotent among them. Nor will this only help to make the Lazy conscientiously industrious, but the Industrious and Conscientious Man chearful at his Labour, when he is assured to keep what he works for, and that the Sweat of his Brows shall not be made a Forfeit for his Conscience.

4. It will render the Magistrates Province more facil, and Government a Safe as well as Easy Thing. For, as Tacitus says of Agricola’s instructing the Britains in Arts and Sciences, and using them with more Humanity than other Governors had done, that it made them fitter for Government;48 So if Practical Religion, and the Laws made to maintain it, were duly regarded, the very Natures of Men, now wild and froward, by a Prejudiced Education and Cross and Jealous Interests, would learn Moderation, and see it to be their greatest Interest to pursue a Sober and Amicable Conversation; which would Ease the Magistrate of much of his present Trouble, and increase the Number of Men fit to govern; of which the Parliament-Times are an undeniable Instance. And the Truth is, ’tis a Piece of Slavery to have the Regiment of Ignorants and Ruffians; but there is true Glory in having the Government of Men, instructed in the Justice and Prudence of their own Laws and Country.

Lastly, It is out of this Nursery of Virtue, Men should be drawn to be planted in the Government, not what is their Opinion, but what is their Manners and Capacity? Here the Field is large, and the Magistrate has Room to choose good Officers for the Publick Good. Heaven will prosper so natural, so noble, and so Christian an Essay; which ought not to be the least Consideration with a good Magistrate; and the rather, because the Neglect of this Practical Religion, hath been the Ruin of Kingdoms and Commonwealths, among Heathens, Jews and Christians. This laid Tarquin low, and his Race never rose more.49 How puissant were Lacedaemon and Athens of Greece, ’till Luxury had eaten out their Severity, and a Pompous Living, contrary to their Excellent Laws, render’d their Execution intolerable? And was not Hanibal’s Army a Prey to their own Idleness and Pleasure, which by effeminating their Natures, conquer’d them, when the whole Power of Rome could not do it? What else betray’d Rome to Caesar’s Ambition, and made Way for the After-rents and Divisions of the Empire, the Merit as well as Conquest and Inheritance of a well govern’d People for several Ages, as long as their Manners lasted? The Jews likewise were prosperous, while they kept the Judgments and Statutes of their God; but when they became Rebellious and Dissolute, the Almighty either visited them from Heaven, or exposed them to the Fury of their Neighbours. Nothing else sent Zedekiah to Babylon, and gave him and the People a Victim to Nebuchadnezzar and his Army.50

Neglect of Laws and Dissolute Living, Andrew Horn (that lived in the Time of Edward the First, as before cited) tells us, was the Cause of the Miserable Thraldom and Desolation the Britains sustained by Invaders and Conquerors.51 And pray, what else hath been the English of our Sweeping Pestilence, Dreadful Fires, and Outragious Factions of late Years? Hundreds of Examples might be brought in this Case; but their Frequency shall excuse me.

Thus have I honestly and plainly clear’d my Conscience for my Country, and answer’d, I hope, modestly, and tho’ briefly, yet fully, the Import of the Question propounded, with Honour to the Magistrate and Safety to the People, by an happy Conjunction of their Interests. I shall conclude,

That as Greater Honour and Wisdom cannot well be attributed to any Sort of Men, than for our Superiors, under their Circumstances, to be sought to by all Perswasions, confided in by all Perswasions, and obey’d by all Perswasions; and to make those Perswasions know, that it is their Interest so to do, as well as that it is the Interest of our Superiors, they should, and to which the Expedients proposed naturally tend; So, for a farther Inducement to embrace it, let them be constantly remembred, that the Interest of our English Governors is like to stand longer upon the Legs of the English People, than of the English Church: Since the one takes in the Strength of all Interests, and the other leaves out all but her own: And it may happen that the English Church may fail, or go travel again, but it is not probable that the English People should do either; especially while Property is preserv’d, a Ballance kept, General Religion propagated, and the World continues.

May all this prevail with our Superiors to make the best Use of their little Time; Remembring, in the midst of all their Power and Grandeur, that they carry Mortality about them, and are equally liable to the Scrutiny and Judgment of the Last Day, with the poorest Peasant; and that they have a great Stewardship to account for: So that Moderation and Virtue being their Course, they, for the future, shall steer; after having faithfully discharged that great Trust reposed in them, by God and this Free People, they may, with Comfort to their Souls, and Honour to their Names and Actions, safely anchor in the Haven of Eternal Blessedness: So prays, with much Sincerity,

An English-Christian-Man,
And Their True Friend,

William Penn.

A COROLLARY.

THAT the People are under a great Dissatisfaction. That the Way to Quiet Differences, and render contrary Interests Subservient to the Interest of the Government, is,

First, To maintain inviolably the Rights of it, viz. Liberty and Property, Legislation and Juries, without Neglect. That, Slighting and Infringing them hath been the Injury of Prince and People, and early or late the Ruin of the Contrivers of so ill Designs; and when all has been done, the only Expedient has been, to come back again to English Law. This takes in all, pleases all, because it secures and profits all. Sacrificing Privileges for the Sake of Conformity, makes a Breach upon the Civil Government, alienates the People’s Affections from their Prince, lodges Property in the Church, so as none can come at it, but through Obedience to her Rites, for she at this Rate has the Keeping of it; a Thing unknown, as well as unsafe to the Ancient English Government.

2dly. That the Prince govern himself upon a Ballance towards all Religious Interests: That this best poizes Parties to his Security, renders him Master of an Universal Affection, and makes him truly and safely Prince of all his Country: But the contrary Course narrows his Justice and Mercy, makes the Government to shine but upon one Part of the Kingdom; to be just but to one Party, and disinherit the rest from their Birth-right: That this Course ends in great Disadvantage to the Peace, Plenty, and Safety of Prince and People.

3dly. And Lastly, Instead of being Uncharitable, Severe and Cruel for Modifications, let the Debate about them Sleep, and General and Practical Religion be promoted, that which receives an Amen in every Man’s Conscience, from the Principle of Divine Life (as the Lord Keeper well called it) in every Breast, That all agree in the most weighty Doctrines; and that nothing will sooner sweeten Men’s Blood, and mollify their Natures, than employing that Time and Pains they bestow on fruitless Contests, in living up to what they both know, believe and accord in: That this leaves Men to keep Company with their own Comments, and makes the Text only Sacred, and Holy Living Necessary, not only to Heavenly, but Earthly Places, I mean Preferments: Whence Virtue becomes the Door to Favour, and Conscience (now smother’d in the Crowd of Sinister Interests) the Noble Rule of Living.

God Almighty, if it please him, beget Noble Resolutions in the Hearts of our Superiors to use these Plain and Safe Expedients, that Charity may supplant Cruelty, Contest yield to Good Life, and present Distances meet in a just and kind Neighbourhood.

Great and Honourable is that Prince, and Free and Happy that People, where these Things take Place.

William Penn.

{PART II}

Penn’s Argument for Religious Liberty

[1. ]Law is reason without passion.

[2. ]Here and hereafter, read “jails” for “goals.”

[3. ]See Mark 12:42; and Luke 21:2.

[4. ]On the Quaker attitude toward oaths, see Penn’s A Treatise of Oaths (London, 1675).

[5. ]The Arian controversy focused on the nature of Christ’s divinity. Arians emphasized Christ’s created nature, whereas their opponents stressed his eternal coexistence with the Father. The Council of Nicaea (325), in a setback for Arians, established a creed referring to Christ as “of one essence” (homoousian) with the Father. Constantine later planned to reinstate Arius (and exiled his opponent Athanasius), but Arius died before this could be carried out. Penn refers to the Arian disputes repeatedly throughout this volume.

[6. ]Here and hereafter, read “precedents.”

[7. ]When the reason for a law ceases, the law ceases.

[8. ]Synderesis (or synteresis) refers to the inherent moral knowledge possessed by all individuals (see Thomas Aquinas, Summa Theologica, pt. 1, qu. 79, a. 12); for the three principles of Roman law, see the opening passages to Justinian’s Institutes.

[9. ]Caesar, Commentaries on the Gallic War, bk. 4; Tacitus, Life of Agricola, chs. 10–13; and Dio, Roman History, bk. 39, chs. 51–53.

[10. ]These two references appear to refer to Penn’s more specific comments about the relation between British and Roman manners and education. See Bede’s Ecclesiastical History, bk. I, ch. 17; and the historical collection Flowers of History (fourteenth century; formerly attributed to Matthew Westminster, currently attributed to Roger of Wendover or Matthew Paris), entry for the year 416. Flowers of History has recently been republished as Roger of Wendover’s Flowers of History: Formerly Attributed to Matthew of Paris, trans. J. A. Giles (Felinfach, 1994).

[11. ]Tacitus, Germany and Its Tribes, ch. 11.

[12. ]Sir Henry Spelman, Concilia, decreta, leges, constitutiones, in re ecclesiarum orbis Brittanici (London, 1639), p. 397.

[13. ]Andrew Horn (d. 1328), Mirror of Justices, bk. 1, ch. 2. Horn was a London fishmonger, city chamberlain, and legal archivist. His Mirror of Justices appears as volume 7 of the Publications of the Selden Society, ed. William Joseph Whittaker (London, 1893).

[14. ]William Camden, Britannia: Britain, or, A chorographicall description of the most flourishing kingdoms (London, 1637), p. 480.

[15. ]Caesar, Commentaries, bk. 1, ch. 16; bk. 7, ch. 63; Dio, Roman History, bk. 77, ch. 12; and Tacitus, Agricola, ch. 12.

[16. ]Bede, Ecclesiastical History, bk. I, ch. 17; and Flowers of History (entry for 404) notes the rise of Pelagianism, but Penn’s specific reference to popular assemblies is unclear.

[17. ]Tacitus, Germany and Its Tribes, chs. 28–45, esp. 28, 37.

[18. ]Sir Henry Spelman, Glossarium archaiologicum (London, 1664), p. 261.

[19. ]Ulpian, Roman jurist (d. 228).

[20. ]Gratian, Decretum Gratiani (ca. 1140).

[21. ]Nathaniel Bacon, An historicall discourse on the unity of the government of England: The first part (London, 1647), ch. 4.

[22. ]John Selden (1584–1654), English jurist and scholar.

[23. ]9 Henry III c. 14, 29. This is the standard format for notation of English legislation. For a comprehensive, chronological outline of English legislation, see The statutes of the realm . . . From original records and authentic manuscripts in “Notes on Texts and Annotations,” above.

[24. ]Coke, Second part of the Institutes, ch. 29.

[25. ]An argument moving from the deed to the law is not valid.

[26. ]The Petition of Right was addressed by Parliament to Charles II in 1628. See J. P. Kenyon, Stuart Constitution: Documents and Commentary, 2d ed. (Cambridge, 1986), doc. 24, pp. 68–71.

[27. ]Sir Edward Coke, Fourth part of the Institutes (London, 1644), ch. 1. Edmund Dudley and Richard Empson served Henry VII and were executed by Henry VIII.

[28. ]See note 8.

[29. ]Augustine of Canterbury (d. ca. 605), Italian missionary and first archbishop of Canterbury.

[30. ]Sir Walter Raleigh, History of the World (London, 1652).

[31. ]Livy, History of Rome, bk. 23, ch. 20.

[32. ]Niccolò Machiavelli, Discourses on the First Ten Books of Livy, bk. 3, ch. 20; and Seneca (ca. 60 b.c.e.–37 c.e.), Stoic philosopher. Bouvier’s law dictionary (John Bouvier, A Law dictionary Adapted to the constitution and laws of the United States of America and of the several states of the American union [6th ed., Philadelphia, 1856]) traces this quotation to Coke’s Third part of the Institutes, ch. 2, which is likely Penn’s source.

[33. ]See the following: on loving enemies, Matthew 5:44, Luke 6:27, 35; on the tares and wheat, Matthew 13:24–30; on Christ’s kingdom not of this world, John 18:36; on faith, Ephesians 2:8; on the truth, John 8:22, 16:13; and on anger, Matthew 5:21–22.

[34. ]Genesis 37.

[35. ]Livy, History of Rome, bk. 28, ch. 12; and Virgilio Malvezzi, Discourses upon Cornelius Tacitus, trans. Sir Richard Baker (London, 1642), discourse 49, pp. 475–77.

[36. ]“Dreaded decree”; a reference to John Calvin’s theory of predestination and election. Calvin (1509–64) takes the election of the saints as part of God’s providential ordering of the world. See Calvin’s Institutes of the Christian Religion, passim, esp. bk. 3.

[37. ]Hugo Grotius, Politick maxims and observations (London, 1654), pp. 43–45.

[38. ]Exodus 5:18.

[39. ]Charles I, Eikon Basilike, The portraiture of His Sacred Majestie in his solitude and sufferings (London, 1649), ch. 27.

[40. ]Daniel 2:31–35.

[41. ]Bede, Ecclesiastical History, bk. 1, ch. 8; bk. 4, ch. 17; Hilary of Poitiers (ca. 301–68), Contra Auxentium Arrianum; and Juan Mariana, General history of Spain (1592), bk. 4, ch. 6.

[42. ]One necessary thing.

[43. ]James 1:27.

[44. ]Matthew 25:21–23; Luke 19:17; Matthew 7:23; and Luke 13:27.

[45. ]Luke 9:51–56; Matthew 13:24–30.

[46. ]Matthew 9:13, 12:7; see also Hosea 6:6.

[47. ]Matthew 18:21–35.

[48. ]Tacitus, Agricola, chs. 19–22.

[49. ]According to Roman legend, Lucius Tarquinius Priscus gained the throne in Rome ca. 600 b.c.e. His son murdered his own father-in-law to get the throne, and his grandson, Sextus Tarquinius, raped Brutus’s wife Lucretia, precipitating the founding of the Republic ca. 500 b.c.e.

[50. ]2 Kings 24–25; and Jeremiah 21.

[51. ]Horn, Mirror of Justices, bk. 1, ch. 2.