other Tractates in that kind would be found unnecessary That Catholicon as he is pleas'd to call it would supersede the Divine Right of all Rulers even in Ecclesiastical Affairs other than Temporal Princes who prior to their Unction by which 't is suppos'd that the Spiritual Jurisdiction is convey'd are invested with all that Power that the Patriarchs had who according to our Prince of Politicians by Right in Nature and God's special Ordinance were absolute Priests and Princes Now one would wonder what Principle was receiv'd by King Edw. the 6 th more injurious to the Church than what the Doctor and his Followers eagerly embrace What was the Judgment of that King I have seen in a Manuscript worth Diamonds written by his own Hand and dedicated by him to his Uncle the Duke of Somerset in the Year 1549. when as I compute it he was but Twelve Years old entituled Petit Traité A léncontre de la Primaute du Pape Where amongst other things he discourses thus of the Power of the Keys This has been since translated by a Lady of great Quality Le second texte est que les clefz du ciel estoyent donnees non seulement à Pierre mais aussy aux autres Apostres par cest argument je repons qu'il n'estoit pas le Principal Galat. 2.9 car les autres recevoient la mesme authorité des clefz laquelle luy est commise Pour laquelle chose Paul appelle Pierre la Coulomne non pas le fondement de léglise son compagnon non pas son Gouverneur car quelles sont les clefz du ciel l'authorite de pardonner les pechez non mais le preschement de l'evangill de Dieu le pere ouy bien de Dieu non pas du Pape ou Diable Et tout ainsi que quand l'huys est ouvert quiconques veult peut entrer ainsy quand Dieu envoyoit son sincere Commandement son Evangile 2 Cor. 2.92 ' ils ouuroient la verité la quelle est la porte du ciel donnoient aux hommes à entendre la ecriture la quelle sillz suivent ilz seront saunez parquoy on peut entendre que ' l'evangile la verité de l'ecriture sont les seules portes qui conduisent l'homme au royaume de Dieu pour laquelle chose St. Paul dit Quiconque invoquera le nom de Dieu serra sauue Rom. 10.13 14 17. Comment invoquerent ils celuy auquel ilz ne croient pas Comment croyrent ilz en celuy du quel ilz non't pas ouy parler Comment orront ilz sans avoir un prescheur Et un peu apres il dit Foy vient par ouir ouyr de la parolle de Dieu Au quatriesme Chapitre aux Romans aussy il dit Rom. 4.5 à celuy qui naeuure pas mais croit en celuy qui justifie les meschans sa foy luy est imputee à justice Maintenant nous prouuerons que le preschement de l'evangile est la clef du ciel Rectiùs Dixiesme Au huitesme Chapitre aux Romans comme jay dessus dit Paul affirme que quiconque invoque le nom du Seigneur est sauue que le preschement de l'evangile est l'entree en linvocation de Dieu adonc il sensuit que le preschement de l'evangile est l'entre du salut D'avantage Paul affirme que foy justifie que le preschement de l'evangile fait la foy la quelle chose jay demonstree icy devant purtant il sensuit que le vray preschment est l'entree en justification car tout ainsi qu'un terre semee peut produire fruit porveu que la semence ne soit semee en terre plein de chardons brieres ou pierres Et encore s'elle est semeé en telle terre elle ferra la terre un peu meilleure ainsi si le Commandement de Dieu est semé à cueur de honestes gens ou de ceux qui ont un bon zele à la verité il les confirmera en toute bonte mais si aucuns sont obstinez opiniatres ilz ne peuent imputer la faute à l'ecriture veu quelle est en eux mesm Mat. 28.18 Pourtant nous nous devons efforcer que l'evangile soit preschee par tout le monde comme il est ecrit Tout povoir m'est donne en la terre au ciel Mark 16.15 pourtant allez preschez à toutez creatures les baptizans en mon nom Puis donc quil est prouue que les clefs du ciel sont l'authorite de prescher que l'authorite de prescher estoit donnee à chacun Apostre je ne puis voir comme par ce texte l'authorite estoit donnee à Pierre plus que aux autres c. Now in short here lies the Substance of these Principles the Danger of the improvement of which was happily prevented by Queen Mary's Reign The Power of the Keys or Church-Power is only Authority to preach the Gospel that was equally given to all the Apostles therefore all Apostles had equally the Power of the Keys and so were equal And by consequence will some say all Preachers after them that had only a general and ordinary Commission to preach are equal of the same Order to one another Order being taken for a Power to do a special Act as the Learned Bishop Andrews informs us Ep. Wynton Resp ad 3 Ep. Pet. Moline p. 192. Ordinem esse potestatem ad actum specialem non à me dico Schola hoc dicit tota Even the Authority to preach the Gospel which was in an especial manner committed to the Apostles and by Ordination by them practised conferr'd upon others and always continued in the Church some great Church-men will tell us ought to yield to the Civil Power so far that no Man forbidden by the Magistrate ought to preach without an immediate Commission from Heaven by working of Miracles Whereas others will say 't was enough that the Power was given at first and attested to by Miracles Something agreeably to which a Learned Church-man says Touching the Worship of God Since the Divine Establishment of the Publick Christian Service is contained in the Gospel Falkner 's Christian Loyalty p. 41. no Authority upon Earth hath any right to prohibit this And those Christians that rightly worship God in the true Catholick Communion according to the Apostolical and Primitive Church have a right to hold such Assemblies for the Christian Worship as appear useful for the Church's Good tho this should be against the Interdict of the Civil Power This is greatly opposite to the Judgment since deliver'd in the Case yet by adding false Terms he enervates his Argument for his Argument is taken from such Service its being contain'd in Scripture but upon that he would support those Modes of
to be thought but that the Floude of Bloode from which God defend thee that otherwise might be shedde doth continually flowe before her Highnes pitifull and most mercifull Eyes And that her Maiestie taryeth but some goode tyde most carefully to provyde for the same as may be possible Which it may please God to graunte vnto her Highnes for th'Honer of Him and the greate Benifyte of the whole Realme with most convenyent speede Amen 20. Martii 1565. God save Queene Elizabeth REFLECTIONS ON Bishop Overall's CONVOCATION-BOOK M.DC.VI CONCERNING THE GOVERNMENT OF GOD's CATHOLICK CHURCH AND OF THE Kingdoms of the Whole World LONDON Printed in the Year M.DC.XC Reflections on Bishop Overall's Convocation-Book 1606. c. IT having been my purpose to consider all Objections of any weight in themselves or from the Authority of Persons which should occur to me against the Right of Their Present Majesties and the Justice of their Undertaking our Deliverance I ought not to pass by Bishop Overall's Convocation-Book compos'd in the time of James I. Licensed by the late Bishop of Canterbury since his disowning this Government and Printed as it is to be presumed with a manifest Intention of undermining it for every Man may discern that the Scheme of Government there drawn for the whole World is contrary to the Foundation of our Present Settlement but tho the Hypothesis is laid together with much Subtilty nothing but Infallibility can give it Authority and to me it seems a piece of Presumption only short of that of the Romish Church For having made a Collection from Sacred and Prophane History and the Apocryphal Writings tho of the last they say P. 64. they mean not to attribute any Canonical Authority unto them nor to establish any Point of Doctrine they Canonically condemn of Errors all that agree not to their Inferences and Conclusions upon a state of Fact which at least may be false This single Observation might make it needless to consider more particularly what is there said especially when I add this further That it would make Scripture Examples under the Jewish State to have the force of Precepts now which if they have then the Examples of Jehu in killing wicked King Joram then his Subject and of Othniel P. 46. 2 Kings Judges and Ehud who rescued the Israelites the one from the King of Moab the other from the King of Mesopotamia who had brought them under Subjection may serve for Rules in the like Cases If they do not then to what purpose do they in other Instances bring Presidents of God's dealing with the Jews of his chusing and anointing their Kings and the like With these Antidotes we may venture upon a further tast of the Doctrines The Foundation of all is the Patriarchal Power of Adam which they suppose to have been absolutely Monarchical all the World over that Noah had the like Authority all his Life but that he divided the whole World among his Three Sons upon which they conclude P. 84. That if any Man affirm Can. 35. That God ever committed the Government of all the World after Adam 's and Noah 's times to any one Man to be the sole and visible Monarch of it he doth greatly err And another Error which they Canonically condemn is of them who hold that Christ doth not allow the distributing of this his one Vniversal Kingdom Lib 2. Can. 4. p. 147. into divers Principalities and Kingdoms to be Ruled by so many Kings and Absolute Princes under him Upon the whole the Fatherly Power was absolute in Adam then in Noah then in his Three Sons together and ever after in all the Princes in the World Can. 2. and as they affirm in relation to Adam's Monarchical Power that it rose not from any choice of the People neither say they is it deduced by their Consents naturally from them P. 3. Which is meant of the Powers which now are in the World And yet if I mistake not they elsewhere own that the Consent of the People may be requisite to the legitimating some Governments when they justify Mattathias P. 67. who being moved with the Monstrous Cruelty and Tyranny of Antiochus made open resistance the Government of that Tyrant being not then either generally received by Submission or setled by Continuance wherein the Consent or Submission of the People is owned to be material The consequence of which will reach a Prince that Exercises a Power beyond what has been submitted to or setled But admit their Notion of the Absolute Power of the Father should hold while the World was but one Family and the Father might be supposed to be the sole Proprietor I doubt they cannot advance one step further without meer Fictions of their own Imaginations or as vain and uncertain Tradition If we attend to the sacred Text freed from their imposing Comment Noah's Sons are by God himself made joynt Proprietors with him Gen. 9.1 2 For the Text says God blessed Noah and his Sons and said unto them Be fruitful and multiply and replenish the earth And the fear of you and the dread of you shall be upon every Beast of the earth and upon every fowl of the air upon all that moveth upon the earth and upon all the fishes of the sea into your hand are they delivered If this Donation had no effect as to the Sons in the life-time of the Father neither according to the Patriarchal Scheme could the younger Sons have any Benefit in the life-time of the Elder wherefore either here was a joynt Propriety in all and consequently the Distribution must proceed from an express or tacit Consent of the Proprietors or else they must be beholden to Jewish Tradition for the establishing their Christian Canon concerning Government For two things I must confess we are obliged to them 1. For pathetically describing the unhappiness of the Jews and how Religion went in those days P. 72. when the Priests had gotten the Reins into their own Hands 2. For observing That the Pharisees the most proud and stubborn of the Jewish Sects P. 79. were the only Men who refused to swear Allegiance to Herod and Caesar Can. 30. yet they say If any Man shall affirm that Jaddus the Jewish High Priest having sworn Allegiance to Darius might have lawfully born Arms against him he doth greatly err This is in a Canon which they raise from the Fact in Josephus of Jaddus's refusing to assist Alexander in his Wars and becoming Tributary to the Macedonians as he had been to the Persians and this after Alexander had overthrown Darius who escaped by Flight The Jewish High Priest seems to put words into the Mouth of our late Archbishop returning for answer That he might not yield thereto because he had taken an Oath of Allegiance to Darius which he might not lawfully violate whilst Darius lived Compare this with the next Canon according to the Analogy of their Doctrine and see
Peace when he judges it fitting notwithstanding Mens Oaths to defend all the Regal Priviledges they were not bound to defend this especially if the War were against Protestants in which case the Subject would take to himself the Judgment of the Justice or Expedience of the War as much as others do of the necessity of resisting Or suppose yet farther that the late King had discharged his Mercenaries and commanded the Militia by Law establish'd for the Defence of the Kingdom to march and fight against his present Majesty had not this been a legal Command The King 's legal Commands he agrees with me that we are bound to obey yet he with all agrees that it was unlawful to assist the late King against This before he was crown'd How then can the matter be adjusted without yeilding that the late King lost his Regal Power by assuming a Tyrannical one This may suffice to shew that they who resisted the late King did it not out of Principles either Anti-christian or Anti-monarchical and that they who are for the non-resisting Doctrine as it past for current in the last Reign and the foregoing and yet pretend a Zeal for the present Government do but daub with untempered Mortar and as they were not to contribute to the late Revolution so much as in their Prayers but on the contrary were to pray for the late King's Victory over all his Enemies and in effect that God would keep and strengthen him in his Kingdom as well as in that Worship which they could not but know not to be God's true Worship So if that misguided Prince should desert Ireland and return into their Arms for a Punishment of those Opinions which occasioned his Ruine their pretended Loyalty to this King if they prove true to their Principles must fall to the ground And the least puff of Wind adverse to us but prosperous to the Jacobites would blow up that Fire covered with deceitful Ashes to the extinguishing of which I shall readily devote my Service The Lay-Gentleman who has extorted my Reflections by his indecent Censure of the Subjects of this Monarchy who contributed towards the late Revolution thinks it clear that the Doctrine of Passive Obedience is no way concern'd in the Controversies now depending between the Friends and no Friends if not Enemies to their present Majesties having in his vain Imagination put it past question that the Williamites were neither good Subjects under the late Administration nor good Christians and true Members of the Church of England And that his good Christians and true Members are the only Persons whose Principles may be relied on now Yet since he will have the Sense of the Church to be known from the Cry of the Clergy and a Bishop supposed to be a Martyr for it may be presum'd to give the Sense of that Truth which he would be thought to attest to the last If this Gentleman will not hear me let him hear the Church for his Conviction in this matter The late Bishop of Chichester's Paper BEing called by a sick and I think a dying Bed and the good Hand of God upon me in it to take the last and best Viaticum the Sacrament of my dear Lord's Body and Blood I take my self obliged to make this short Recognition and Profession That whereas I was baptized into the Religion of the Church of England and sucked it in with my Milk I have constantly adhered to it through the whole course of my Life and now if so be the Will of God shall die in it and I had resolved through God's Grace assisting me to have dy'd so tho at a Stake And whereas that Religion of the Church of England taught me the Doctrine of Non-resistance and Passive-Obedience which I have accordingly inculcated upon others and which I took to be the distinguishing Character of the Church of England I adhere no less firmly and stedfastly to that and in consequence of it have incurred a Suspension from the Exercise of my Office and expected a Deprivation I find in so doing much inward Satisfaction and if the Oath had been tendred at the Peril of my Life I could only have obey'd by Suffering I desire you my worthy Friends and Brethren to bear Witness of this upon occasion and to believe it as the Words of a dying Man and who is now engaged in the most Sacred and Solemn Act of conversing with God in this World and may for ought he knows to the contrary appear with these very Words in his Mouth at the dreadful Tribunal Manu propriâ subscripsi Johannes Cicestrensis This Profession was read and subscribed by the Bishop in the Presence of Dr. Green the Parish Minister who administred Dr. Hicks Dean of Worcester Mr. Jenkin his Lordship's Chaplain Mr. Powell his Secretary Mr. Wilson his Amanuensis who all communicated with him Here 't is observable 1. That the Bishop as fallible as an inferior Clergy-man died in that Opinion which he had profess'd and inculcated in his Life-time so warmly and so often that himself believ'd it Tho it may be a Question Whether he would on his Death-bed have affirmed as he had done in his Pulpit where Mens Affirmations ought to be as solemn as at the last moments of Life Sermon at Tunbridg That they could not enter into Heaven without particular Repentance who in derision were called Ignoramus Jury-men because they would enquire into the Credibility of Witnesses and scorned to enslave themselves to the Directions of Judges or more powerful Influences from White-hall And tho it seems the Tower had not wean'd him from his fondness of Passive Obedience perhaps it did from that which he had express'd towards our then Court's firm League with France while he believ'd it design'd to curb none here but the Fanaticks Vid. the Defence of his Profession concerning Passive Obedience and the new Oaths Ed. Anno 1690. These severe Truths tho in proof beyond Contradiction I should gladly let lie buried with him were not his Ghost still kept walking to do Mischief And if the Authority of a Man's Person or Office shall without any other ground be set up to condemn the far greatest number of Persons of at least equal Credit and Station it is no more than requisite to shew that this Man is not more than others exempted from Errors and the common Incidents to Humanity 2. The Bishop shews that the Doctrine of Passive Obedience which he had inculcated as the Doctrine of the Church of England and which he found himself oblig'd to propagate at his Death is so far concern'd in the Controversies now depending that upon the account or in consequence of holding to it he had incurr'd Suspension and expected Deprivation for not taking the Oath of Allegiance to our present King and Queen wherein he abundantly confutes our Son of the Church And all the Authority which can be deriv'd from the Bishop's Dying-Declaration to prove the Doctrine of Passive Obedience
Determination of the others and such a Consent as God himself seem'd to direct and appoint Yet since he supposes what is said by Mr. Johnson of the Reciprocal Contract between Prince and People to be like his own Assertions Pag. 7. The Reciprocal Contract a begging the Question or at least an haughty Imposition of his own Sentiments without proof but admits that if this could be substantially prov'd it would go a great way towards a Conviction of those Ib. whose Consciences for want of Information IN THIS VERY POINT will not give them leave to take the new Oath I would entreat him to shew wherein I either falsify in the Authorities which I have formerly produc'd and here repeat with Additions to this very Point or make wrong Inferences from them Which till he does as a due Correction for his railing at Mr. Johnson whose Memory will flourish in after-Ages when he shall be no otherwise known than under the Character of his Reviler I may say that his refusing to swear Allegiance to our legal Government is Obstinacy and his distinguishing Faith Faction And if he should be call'd in Question for that impotent Libel and no other means of reducing him to Sobriety being effectual should according to his snarling Reflection upon the immortal Memory of the Lord Russel and other inferior Patriots be condemn'd to mount toward an Apotheosis for his meritorious Crime of Treason against that Power which has been ordain'd of God the most apparently of any Civil Government that has been known for at least many Centuries could he expect to be as much desir'd lamented and praised by all that are themselves worthy of Praise Should he as he went along tell the good People that he suffer'd for that Doctrine which shall know no end but when all things confess their Ashes Pag. 6. and that tho his Sins are strangely great yet he now pay'd his Head forfeited by the Letter of the Law for Treason against a King which that acknowledges where Mr. Johnson's is due by a true equitable Construction for Treason against one who is no King in the Eye of the Law would not Men be tempted to make the Poet's Observation upon such a spruce and finical Malefactor Crimina rasis Librat in antithetis doctas posuisse figuras Laudatur In smooth Antitheses his Crimes he weighs And his departing Figures force our Praise I well know that Men are as zealous for a false Religion and their own Superstructure of Hay and Stubble as for the true Foundation And they who expose their Additions are in danger if not of suffering as Hereticks of being censur'd as Atheists And tho false Doctrines like false Miracles impare the Credit of the true yet he that attacks them after they have spread and gained the Name of sacred not only hazards himself but while he untwines or roots up the Weeds may chance to shake some standing Corn. Which may excuse the early freedom which I have taken to prevent the speading of that new Law-Divinity in this Age which rose in the last upon the fall of good Archbishop Abbot was rear'd up by Bishop Laud's Canons upon which the Parliament which brought in Car. 2. put a sufficient mark of Dislike and was fatned with the Charters of well-fed Corporations and the Blood of its forwardest Opposers While I expose the Folly of some Mens Notions which fight as much against our present Settlement as against common Safety and shew the Obligation which lies upon Kings to keep their Compacts with the People I would not be thought to go about to loosen the Bond of due Subjection to the Powers vvhich are over us I am sure they vvho vvill acknowledg none but King James to be their rightful King have no colour to urge this against me and yet by means of such false Alarums they have made most dangerous Approaches towards the Destruction of this Government I vvould not be thought to revive the powerful Hereditary Offices of the Palatine of Chester the High-Steward and the Constable of England that Tribunitial Authority which they had vvould be very dangerous in most times and too great Incentives to ambitious Men to set up for themselves The Author of the Sighs of France enslav'd observes that Charles Martel Les soupirs de la France Esclave Mem. 9. p. 130. Mair du Palais or High-Steward made himself King of France and Pepin his Son caus'd himself to be chosen the Family of the Merovingians being rejected That Eudes Mair du Palais upon the declining of the House of Charlemain took the Crown and caus'd it to pass to Hugh Capet and that Hugh Capet and his Descendants wisely suppress'd this Office It has doubtless been no less the Wisdom of this Government to have the like Offices with us to be now only known in Story yet they at least are Evidences of the English Liberties Vid. Les soupirs de la France Esclave Mem. 9. p. 142. On doit recicillir que quelque changement qui soit arrive dans le Government a Pégard des noms des fonctions des Principaux Officiers Mairs du Palais Connestables Chanceliers Grande Cómbelloins c. a touts ceté sans aucun prejudice des Proits du Peuple les Officiers de la Cour don de la Couronne out en plus ou moius de pouvoir mais c ' est par rarpert au Royles Droits de la Nation sont toù jours demeures en leur entier nor are the Liberties the less or the less inviolable because the Subjects of this Monarchy have had greater Confidence in their Kings than to insist upon having such settled Officers who may represent their Grievances with the better Authority and unite them in the common Cause when the oppress'd Nation should want nothing but an Head under which they might become formidable to evil Ministers who either think that the former Injuries which they have done are too great to be forgotten and therefore seek for Security in the Ruin of them who had before smarted under them Or who next to setting up themselves have no other aim but to make way for their suppos'd King of Right Such Men pretend that tho they cannot swear or declare that King William and Queen Mary are Lawful and Rightful King and Queen yet they can act in the Service of them as King and Queen and that there can be no danger from them because of the harmless Doctrine of Passive Obedience Prayers and Tears alas are all their Weapons and with them they may sollicit Heaven and Earth Vid. The Form of Prayer and Humiliation Ed. An. 1690. p. 60. Pag. 39. That we may no longer be without King without Priest without God in the World pray to God to restore their Prince who they say for the Sins both of Priests and People is now kept out and encourage a Rebellion against him who in their very Prayers to God Almighty they will have to be no King
Domini Regis vel Regni So Fleta de Crimine Laesae Majestatis c. 21 Vid. 26 H. 8. c. 2. 28 H. 8. c. 18. Traitors against the King and Realm Fortescue f. 6. temp H. 6. or Treason against the People of England is evident not only by Glanvil who wrote in the time of H. 2. and Fleta of Edw. 1. but by two Statutes made in the time of H. 8. who was as jealous of the Rights of Soveraignty as any Prince before or after him And is plainly enough suppos'd in the Statute 25. Ed. 3. which shews that there may be Treason against the Government as well as against the King or any of the other Treasons of which ordinary Judges are permitted to judg But since this Majesty of the People may have been given as well as reserv'd or left I shall not urge this as an undeniable Argument of the derivation of Power from them Nor yet shall I transcribe the many Passages in Fortescue proving such Derivation because tho his Book is of great Authority in our Law yet it was written in a King's Reign which some may think to stand in need of such a Justification Neither shall I here urge how far this Monarchy has been Elective because the particular Consideration of that will follow this I only observe of it here that so far as the Monarchy shall prove to have been Elective so far will it appear that all Power not ascertain'd by the Law of God contain'd in Scripture or the Book of Nature is mediately or immediately derived from the People But I think I may be able to shew from one of those Passages which seem the most to imply the absolute Authority of our Kings that whatever it is Crompt his Jurisdic of Courts p. 60. it was derived from the Consent of the People and that the Peoples Consent is still requisite for the Exercise of an Absolute Power according to the memorable Speech of H. 8. in Parliament where he thought himself to stand in his highest Estate Royal. The Civil Law of the Romans says Quod Principi placuit Legis habet vigorem that which has pleased the Prince has the force of Law Glanvil 's Prologom Bracton lib. 3. c. 9. Fleta l. 1. c. 19. but take this according to the Opinion of Glanvil Bracton Fleta and ancient Civilians who wrote about Bracton's time who as Mr. Selden informs us wrote according to what they found in the Governments establish'd throughout Europe The Principi placuit was no more than the Le Roy le veut with us The Civil Law shews that whatever Authority the Emperors had the ground of it was Selden ad Fletam f. 469. that the People in eum Imperium Potestatem conferret conferr'd Empire and Power upon him as Odofred a Civilian coeval with Bracton has it tho the following Copies have it omne suum as if the People conferr'd all their Power This may signify no more than all that Power which the Emperors had yet perhaps the other Sense was intended and may well be imputed to the Servility of later Times Saravia de Imp. Author f. 278. especially if we consider not only what Saravia says who besides the Majesty of the People above-mentioned out of him tells us that the Roman Emperors acted under the Peoples Authority which he proves in that their Acquisitions were in the Name of the People Sanderson 's Lectures Ed. An. 1660. p. 149 150 151. And even Bishop Sanderson having approved of the restrain'd Sense of the Roman Lex Regia us'd by our ancient Lawyers adds I do affirm and it is the common receiv'd Opinion that the Laws propounded and instituted by a Prince or Head of a Commonalty do not oblige Subjects nor have the Power of a Law unless they be received by the Commonalty themselves and are allowed by the Customs and Suffrages of those that use them According to Demosthenes the Law is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the common Engagement of a City If peradventure his Authority be of less value because he lived in the Popular Common-wealth of the Athenians will you be pleased to hear the great Lawyer Julius who lived when the Roman Emperors had the fulness of Command his words in his 32 d Book De Legibus are these Ipsae Leges nullâ aliâ ex causâ nos tenent quà m quod judicio Populi receptae sunt The Laws do oblige for no other cause than that they are receiv'd by the Judgment of the People But if we observe how the Roman Emperors came by their Trust from the People and of what nature it was this I take in relation to the Legislation to which our Lawyers apply the Civil Law will appear to have been no more than the Tribunitial Authority The Tribunes of the People chosen by them were in their Name to deliver their placet or Consent to the Emperor or Senate nor did the greatest Emperors think it below them to court the Suffrages of the Populacy for this Before Julius Caesar arriv'd to an Imperial Power while the People of Rome govern'd all the Nations round about in all Emergencies they consulted Deputies Vid. Cic. in Catil Orat. 3. ut Comperi Legatos Allobrog belli transalpini tumultus Gallici excitandi causâ à P. Lentulo sollicitatos c. Tacitus Ed. Plant. p. 105. Tiberius vim Principatus sibi firmans Imaginem antiquitatis Senatui praebebat postulata Provinciarum ad disquisitionem patrum mittendo or Representatives of the several Provinces under them as appears in Cicero's third Oration against Catiline and after Julius even Tiberius then whom no Man could be more intent or more cunning to enslave his Subjects continued an Image of the ancient Usage by sending the Demands of the Provinces to the Disquisition of the Senate But the People of Rome were trick'd out of their Liberty by that artful Emperor by his removing the Comitia Tacitus in vitâ Tiberii Ed. Plant. p. 10. Tum primum è campo comitia ad patres translata sunt Nam ad eam diem etsi potissima arbitrio Principis quaedam tamen studiis Tribunorum fiebant neque populus ademtum jus questus est nisi inani rumore or Great Councils from the Fields where the Tribunes took their Directions from the People to the Senate-House where false Representations of the Sense of the People might be made behind their backs they vented their Resentments at this only in empty Murmurs and as the Satyrist has observed of them Qui dabat olim Juv. Imperium fasces legiones omnia nunc se Continet atque duas tantùm res anxius optat Panem Circenses They who their Laws and Magistracy chose Quietly gave up all for Bread and Shows Yet upon observing the steps by which the Emperors advanced to their Power with the People 't will be evident that it was but lodg'd as a Trust and Confidence that they would truly act according to
their Sense and Interest which before was to be faithfully represented by their Tribunes When Lepidus was to incite the People against Sylla Oratio Lepidi Salustii op Ed. Par. An. 1530. p. 134. Jus judiciumque omnium rerum penes se quod populo Romano fuit he found nothing more moving than to tell them that the Tribunitial Authority would be overturned by him he adds in Explanation of it that he would have the Power and Judicature with him which did belong to the People upon which he pathetically enlarges If these things are thought by you Peace and Concord approve of the greatest Disturbance and Destruction of the Common-wealth yield to Laws impos'd upon you take Quiet with Servitude and transmit to Posterity an Example of betraying the Common-wealth at the price of ones own Blood It appears by Salust that the great Power to which Julius Caesar arrived was by siding with the Populacy of Rome Salust ad G. Caesarem de Rep. Ordinandâ p. 147. In te ille animus est qui jam à principio nobilitatis factionem disturbavit plebem Romanam ex Gravi Servitute in libertatem restituit p. 145. whose Rights had been invaded by the Senate 't was his great Mind which he tells him at the beginning disturb'd the Faction of the Nobility and restored the Populacy of Rome to Liberty from grievous Slavery and he reckon'd that upon his setling Affairs after his Victory renovata plebs erit the Plebeians will be renewed or have a new Life accordingly he advises him to cultivate good Manners among tnem and as Salust had express'd himself to Caesar a little before Magistratum Populo non creditorem gerere magnitudinem animi in addendo non demendo Reip. ostendere To shew himself a Magistrate and not a Creditor to the People and to evidence the Greatness of his Mind by adding to the Common-wealth and not taking from it This may give some tolerable account how Caesar came to be murder'd in the Senate-House and may raise his Character even above Brutus who has pass'd for the Hero of Common-wealths-Men Marcelli Donati Dilucidationes Ed. An. 1605. p. 392. Praeterea Caesarum temporibus Patritios Senatorios viros non modo Tribunatum appetivisse sed illos Imperatores inquam Tribunos Plebis factos Tribunitiam potestatem occupasse manifestum est Si quidem Julius Caesar teste Tacito per initia lib. 1. Annal. Consulem ferens ad tuendam Plebem Tribunitiâ Potestate contentus fuit Et Augustus ex Appiano l. 5. perpetuus Plebis Tribunus à Romanis dilectus fuit Et Suet. illum Tribunitiam Potestatem perpetuam recipisse scribit Quod Dion in illius vitâ confirmat Tacitus lib. Annal. 1. describens Pompam funeris Augusti ait de illo continuatâ per. 37. annos Tribunitia Potestate Et lib. 3. de Tribunitiâ Potestate loquens inquit Id summum vestigii vocabulum Augustus reperit ne Regis aut Dictatoris nomen assumeret c. Marcellus Donatus in his Comment upon Tacitus puts it out of doubt that the chief Power which the Roman Emperors had was as Tribunes of the People his Authorities for which are numerous and that sometimes they were entrusted with it for Years sometimes for Life sometimes the Consent express'd sometimes tacit and implied as it was assumed by the Emperors and permitted by the People The Application therefore will be easy to any one who reads our ancient Lawyers where they transcribe and comment upon the Roman Lex Regia Glanvil Bracton and Fleta differ from one another in very few words all to the same Sense The words of Fleta are these speaking of the King of England Fleta lib. 1. c. 17. Et licet omnes potentiâ praecellat cor tamen ipsius in manu Dei esse debet ne potentia sua maneat irrefraenata fraenum imponat temperantiae lora moderantiae ne trahatur ad injuriam qui nihil aliud potest in terrâ nisi id quod de jure potest Nec obstat quod dicitur quod Principi placet legis habet potestatem quia sequitur cum lege Regiâ quae de ejus Imperio lata est Quod est non quicquid de voluntate Regis tantoperè presumptum est sed quod Magnatum suorum Consilio Rege authoritate praestante habitâ super hoc deliberatione tractatu rectè fuerit definitum And altho he excels all in Power yet his Heart ought to be in God's Hand and lest his Power should remain unbridled he ought to apply the Bridle of Temperance and the Reigns of Moderation lest he be drawn to Injustice who can do nothing else whatever but that only which he may do by Right Nor is it an Objection that it is said that which pleases the Prince has the force of Law Vid. Seldens Dissert ad Fletam f. 467. because it follows since by the Law of the King which was made concerning his Power as some render it with the Law of the King as others That is to say not whatever is only presumed of the King's Will but that which shall be in due manner determined by the Counsel of his Great Men the King giving them Authority thereto which seems to relate to the King's Counsel in Parliament advis'd with in drawing Bills in Points of Law and the like Vid. Conring p. 11. in verbis Taciti De minoribus rebus Principes consultant de majoribus omnes ita tamen ut ea quoque quorum penes plebem arbitrium est apud Principes pertactentur ubi tamen cum Hugone Grotio summo sane viro legendum forte praetractentur there being had upon it a Deliberation and Treaty Since in this our Lawyers receive the Civil Law and give the same reason for the Royal Power which the Roman Law does that it was conferr'd by the People it being contain'd in the Lex Regia what I have shewn to prove that the Roman Emperors deriv'd their Power from the People of Rome equally shews that our Lawyers besides what they say of Elections of our Kings believ'd that the Royal Authority here came from the People of England I need not therefore scruple to affirm that our Law agrees with (a) Grotius de Jure Belli Pacis l. 3. p. 52. summae Potestatis subjectum commune est Civitas So where the Statute says the People of the Counties shall chuse the Sheriff this is limited to Freeholders vid. 2. Inst upon the Statute Grotius who holds that the Civitas is the common Subject of Power This in the most restrained Sense is meant of People of Legal Interests in the Government yet if they are intitled to any sort of Magistracy they become part of his subjectum proprium the proper or particular Seat of Power which is narrower than the Civitas and therefore I take Plato's (c) Schelius de jure Imperii p. 32. Plato 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 definit
Mr. Lawson's Opinion Bp Bilson's whose Authority is confirm'd by the Objection made to it in the History of Passive Obedience To which is added the Divine Plato FOR the Equity and reserv'd Cases I think it appears in the nature of the thing that they for whose benefit the Reservation is must be the Judges as in all Cases of Necessity he who is warranted by the Necessity must judg for himself before he acts tho whether he acts according to that Warrant or no may be referr'd to an higher Examen But where the last Resort is there must be the Judgment which of necessary Consequence in these Cases must needs be in the People the Question being of the Exercise of their Original Power and where they have by a general Concurrence past the final Sentence in this case their Voice is as the Voice of God and ought to be submitted to The late Earl of Clarendon Survey of the Leviathan p. 86. speaking even of a Contract wherein the absolute Power of a Man's Life is supposed to be submitted says He was not bound by the Command of his Soveraign to execute any dangerous or dishonourable Offices but in such cases Men are not to resort so much to the Words of the Submission as to the Intention which Distinction he will have applicable to all that monstrous Power which Mr. Hobbs gives his Governour to take away the Lives and Estates of his Subjects without any Cause or Reason upon an imaginary Contract which if never so real can never be supposed to be with the Intention of the Contractors in such Cases * Cocceius de Principe p. 197. Leges fundamentales Regni vel Imperii quae vel disertè pactae sunt cum Principe antequam imperium ineat c. Cocceius holds the fundamental Laws of any Kingdom or Empire to be not only those for which there has been an express Contract with a Prince before or upon his assuming the Government but such also as seem tacitè inesse rei publicae to be implied as belonging to every Community or Civil Society For the direction of Mens Judgments in such Cases they need not consult voluminous Authors but may receive sufficient Light from those excellent Papers The Enquiry into the present State of Affairs The Grounds and Measures of Submission and The brief Justification of the Prince of Orange ' s Descent into England and of the Kingdom 's late Recourse to Arms. Which I shall here only confirm by some Authorities The first as being of most Credit among them who raise the greatest Dust Sanderson de Juramenti obligatione p. 41. shall be Bishop Sanderson Of the Obligation of an Oath who shews several Exceptions or Conditions which of Common Right are to be understood before an Oath can oblige in which I shall not confine my self to the Order in which he places them 1. If God permit because all things are subject to the Divine Providence and Will Nor is it in any Man's Power to provide against future Accidents Wherefore he who did what lay in him to perform what he promis'd has discharg'd his Oath 2. Things remaining as they now are Whence he who swore to marry any Woman is not oblig'd if he discovers that she is with Child by another These two Exceptions sufficiently warrant Submission to such Government as God in his Providence shall permit notwithstanding Oaths to a former King And if he cease to treat his People as Subjects the Obligation which was to a Legal King determines before his actual withdrawing from the Government 3. As far as we may as if one swear indefinitely to observe all the Statutes and Customs of any Community he is not oblig'd to observe them farther than they are lawful and honest 4. Saving the Power of a Superior Whence if a Son in his Father's Family swear to do a thing lawful in it self but the Father not knowing it commands another thing which hinders the doing that which is sworn he is not bound by his Oath because by the Divine Natural Law he is bound to obey his Father And he who has sworn not to go out of his House being cited to appear before a lawful Judg is bound to go out notwithstanding his Oath the Reason is because the Act of one ought not to prejudice the Right of another These two last Instances added to the Consideration of a Legal King Vid. Stat. 13. car 2. c. 1. will qualify the Oath declaring it not lawful upon any pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person or aginst those that are commissioned by him This I think I may say with warrant from Bishop Sanderson That no Man is bound by this Oath to act against Law Vid. infra p. under colour of the King's Commission Vid. Grounds and Measures of Submission Salus Populi suprema Lex nor to permit such Actions if it be in his Power to hinder them the common Fundamental Law being in this Case the Superior which he is to obey and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary To Bishop Sanderson I may add Grotius Vid. Johannis à Felde Annotata ad Grot. c. 3 4. who runs the Prerogative of Kings as far as any Man in reason can Yet he allows of reserved Cases in which Allegiance may be withdrawn tho there is no express Letter of Law for it As 1. Where the People being yet free Grot. de jure Belli Pacis c. 3. p. 60. Vid. Pufendorf Elementa Juris prud p. 256. Nemo alteri potest quid efficaciter injungere per modum praecepti in quem nihil potestatis legitimae habet Grot. c. 4. p. 86. habet pro derelicto command their future King by way of continuing Precept Whether there be any such with us can be no doubt to them who read the Coronation Oaths from time to time required and taken upon Elections of some Kings and the receiving others by reason of prior Elections and Stipulations with their Predecessors 2. If a King has abdicated or abandon'd his Authority or manifestly holds it as derelict indeed he says he is not to be thought to have done this who only manages his Affairs negligently But surely no Man can think but the Power of J. 2. is direlict And he cites three Cases wherein even Barclay the most zealous Asserter of Kingly Power allows Reservations to the People 1. If the King treats his People with outragious Cruelty 2. If with an hostile Mind he seek the Destruction of his People 3. If he alien his Kingdom This Grotius denies to have any effect and therefore will not admit among the reserved Cases Vid. Mat. Par. Addit f. 281. The King of France his Attorny General speaking of King John 's resigning his Crown to the Pope Etsi dare non potuit potuit tamen
have stood for the defence of their Liberties have served themselves How truly I esteem it hard for you and me to determine unless we were more throughly acquainted with the Laws and Customs of those Countries than I for my part am 1. Here his Interrogation strongly implies the Assertion that Subjects are not bound to give their Throats to be cut by their fellow Subjects or offer them without either humble Remonstrance or Flight to their Princes at their meer Wills against their own Laws and Edicts 2. The Argument from the Laws of Nature and Nations he represents with due strength and apparent marks of Favour All the Hesitance which he makes in pronouncing absolutely on their side is from his not being throughly acquainted with the Laws and Customs of those Countries Wherefore as he supposes not Christianity to lay any Obligation upon the Subjects beyond the Duty resulting from the particular Constitutions of the respective Governments so he does fully admit that the Laws ad Customs of some Countries may allow of Resistance in some Cases Hence it appears that no Man can truly say that he takes the Bishop's words by the wrong handle who would infer from him that it is neither unlawful nor impious for Subjects in some Countries and in some Cases to resist their Princes Nay without knowing the Constitution of France or of the Low-Countries he supposes that in such extraordinary Circumstances as the poor Protestants in both places lay under no Man can condemn them without approving of the barbarous Cruelty and Butchery of their Persecutors Page 446. Nay for Holland he particularly urges that the Kings of Spain were not absolute Lords there and says any reasonable Man may doubt Whether the Title of Earl to which they succeeded imported such a Power as they exercis'd which is as much as to say that since they assumed a greater Power than the Constitution warranted Arms against them were lawful and if thus much is not implied Bp Bedell p. 447. it must be own'd that the Bishop very impertinently affirms that the Kings of Spain were not absolute Lords in Holland No Man can doubt of his meaning thus much since he affirms positively that it is no hard matter to discern pretended Priviledges from true and Treason from Reason of State But says he to take Arms to change the Laws by the whole Estate established is Treason whatsoever the Cause or Colour be which may take in those that fight on the side of a King as well as those who fight against him Nor do I know what can well be said against what the judicious Mr. Lawson urges to this purpose Lawson's Politica sacra Civilis 362. last Edit Treason says he against Laws is more hainous than Treason against Persons and Treason against Fundamental Laws than Treason against Laws for Administration This Treason against the Fundamentals was charged upon the Earl of Strafford and the Personal Commands of the King could not excuse him yet it was not thought that the Judgment past upon him should be made a Precedent for Inferiour Courts because none but a Parliament could judg of and declare the Constitution and what is against it and what not Bishop of Christian Subjection Ed. 1586. p. 279 280. If says Bishop Bilson a Prince should go about to subject his Kingdom to a Foreign Realm or change the form of the Common-wealth from Impery to Tyranny or neglect the Laws establish'd by common Consent of Prince and People to execute his own Pleasure in these and other Cases which might be named if the Nobles and Commons joyn together to defend their ancient and accustomed Liberty Regiment and Laws they may not well be accounted Rebels And soon after he speaks of a Power for preserving the Foundation Freedom and Form of their Common-wealths which they fore-priz'd when they first consented to have a King Where his meaning cannot be restrain'd to express Provisions excluding such as may be equitably intended That which is offer'd in the History of Passive Obedience to qualify Bishop Bilson's Expressions History of Passive Obedience p. 27. I dare say will be a Confirmation of his Authority in the Judgment of any Man who impartially weighs the following Proofs of the nature of our Government At the time says the Historian when Bishop Bilson's Book was written Queen Elizabeth was assisting the Dutch against their and her common Enemy the Crown of Spain Now if in the Low Countries the Government was founded in Compact as many Learned Men say and that all their Priviledges Sacred and Civil contrary to that Agreement were invaded and the Inquisition introduced all their Petitions slighted and some hundred thousands barbarously murder'd this alters the Case while it can no ways hold good in Governments where there is no such Compact Passing by due Reflections upon the Impunity which he allows to the most barbarous Murders where the Government is not founded in Compact it will appear to be enough for us that where it is founded in Compact the Nobles and Commons may joyn in the Defence of their ancient and accustomed Liberty Regiment and Laws nor may they in such Case well be accounted Rebels And not to heap Authorities with this agrees the Divine Plato who after he had affirm'd that the highest degrees of Punishment belong to those who will misguide a Ship or prescribe a dangerous new way of Physick having brought in Socrates asking whether Magistrates ought not to be subject to the like Laws himself asks Platonis Politicus f. 299. Ed. Serrani 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What shall be determined if we require all things to be done according to a certain Form and set over the Laws themselves one either chosen by the Suffrages of the People or by Lot who slighting the Laws shall for the sake of Lucre or to gratify his Lust not knowing what is fit attempt to do things contrary to the Institutions This Man both he and Socrates condemn as a greater Criminal than those which he mention'd whose Crime he aggravates as 't is an acting against those Laws which through a long Experience had been ordain'd by their Counsel and Industry who had opportunely and duly weighed every thing and had prevail'd upon the People to submit to them CHAP. III. Five Heads of positive Law mention'd Vpon the first Head are produc'd the Confessor's Laws Bracton Fleta and the Mirror shewing the Original Contract with the Consequences of the King 's breaking his part Some Observations upon the Coronation Oath with the Opinions of Sir Henry Spelman Cujacius and Pufendorf of the Reciprocal Contract between Prince and People The Objection from the pretended Conquest answer'd in short with reference to the second part The Sense of Dr. Hicks and Saravia upon the Coronation-Oath receiv'd with a Limitation from Grotius The Curtana anciently carried before our Kings explaining the Mirror A Passage in Dr. Brady against the Fundamental Contract touch'd upon referring the
divested of his Soveraignty by the Counsel and Consent of all his Subjects (a) Ib. f. 108. Anno 779. Mailros Anno 794. f. 139. S. Dunelm f. 113. Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Milros f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem Ibid. 144 872. Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities F. 148 941. F. 148 947. but then they renounc'd the Allegiance sworn to King Edmond and chose Aulaf King of Norway for their King Aulaf had not reigned six Years when they drove him away and tho they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects Vid. Mirror sup Leges S. Edw. and that if he did not answer the End for which he had been chosen he was to lose the Name of King Indeed a very Learned Author Discourse concerning the Vnreasonableness of a new Separation on the account of the Oaths p. 15. in a Treatise for the most part unanswerable seems to set aside all the Precedents within the Kingdom of the Northumbers as if that were of no consequence to any other part of England I shall not says he meddle with the Kingdom of the Northumbers which alone was originally elective as appears by Matthew Westminster The words to which he refers are these Anno Gratiae 548 Regnum Northanhumbrorum exordium sumpsit Math. West f. 101. Cum enim Proceres Anglorum magnis Laboribus continuis patriam illam subjugassent Idam Juvenem nobilissimum sibi unanimiter praefecerunt In the Year of our Lord 548 Anno 548. the Kingdom of the Northumbers began For when the Great Men of England had with much and continual Labour subdued them they chose for King Ida a most Noble Young Man I cannot understand how the shewing the Foundation of one Kingdom in Election is any Argument against the Original Electiveness of others within the same Island Nay primâ facie without more of one side or other it gives ground to believe the others to have had the like Foundation and this Quotation particularly is so far from implying that this was the only Kingdom within the Isle Originally Elective that it supports the Authority of the Mirror which informs us that forty Princes at the beginning of the Monarchy chose one to reign over them Mirror sup for this speaks not of the English as then under one King or more in their respective Divisions but under several Proceres Great Men or Princes and that part of the Island seems to have been the first which chose a King but I know not by what Rule of Logick it can be gathered from this Passage in Matthew Westminster that other Kingdoms which chose their King afterwards were not equally Elective in their Foundation tho not so ancient or the time of the Commencement not so easily to be shewen Vid. inf Vid. Falkner p. 329. This called a Synod of all England 827.548.279 Malmsbury f. 13. Certain it is that the Council of Calcuth in the Year 789 which provides for the Election of Kings was Conventus Pananglicus and if it took not in the Northumbrian Kingdom as having been disjoin'd from the rest till the Reign of Egbert An. 827 being 279 Years it is to be presum'd that all England besides was included Nay this very Author produces Authorities which prove other Kingdoms here though their beginning is not so well known to have been as truly Elective as this which he waves 1. He shews Page 14. that Beornred being set aside by a Convention of the Nobility and People of the Kingdom of Mercia Offa was chosen King who was of the Royal Stem but not the next Heir And so says he William of Malmsbury observes in the West Saxon Kingdom after Ina that no Lineal Succession was then observ'd but still some of the Royal Line sat in the Throne and of Ina himself that he was rather put into the Throne for his Vertue than by Right of Succession Discourse sup p. 15. 2. He argues that if by the Fundamental Constitution Allegiance were indispensably due to the next rightful Heir in this Monarchy Athelstan whom he shews not to have stood next in the ordinary course of Descent would not have been chosen Magno Consensu Optimatum and gives several other Instances wherein he observes that Reason of State Page 17. and the publick Interest still over-ruled this matter 3. He shews that Reason of State and the Publick Interest over-ruled not only for Elections when the Throne was free from a Possessor but even for the removing Kings in Possession P. 13. An. 454. Vid. sup Anno. 756. P. 14. An. 758. An. 854 867. P. 16. An. 957. For which he cites the Cases of Vortigern under the British Government Sigebert King of the West Saxons Beornred of Mercia above-mentioned Aetheluph King of the West Saxons and the eldest Son of Edmund who was set aside because in Commisso regimine insipienter egit He acted foolishly in the Government committed to him After all he contends that ours is not only a true Original Monarchy but Hereditary where the Right of Succession and publick Good did not interfere and thus much I readily grant him but in restraining this to Cases where there was not a natural or moral Incapacity he plainly confines Reason of State and the Publick Good to narrower Limits than before he allowed for if these were to over-rule Page 17. as he before observ'd then the Question upon Competitions for the Crown between Persons of the Royal
Family was barely which of the Competitors all Circumstances being considered was most likely to advance the Publick Interest of which the People were to be Judges whereas according to his Limitation they were bound to take the Person who was next in the Line if he lay not under a natural or moral Incapacity directly contrary to what he shews out of Malmsbury of the West Saxon Kingdom in which after Ina no Lineal Succession was observed When Athelstan Page 15. of his own shewing was chosen King were his Brothers Edward and Edwin under any natural or moral Incapacity Or were the Sons of Edmond Iron-side either way uncapable when Edward the Confessor was elected For Confirmation of what himself produces upon this Head I take leave to add one Authority from the Writer of the Life of King Alfred Vita Aelfredi lib. 1. f. 19. Many Examples says he are found among the Saxon Kings of a Brother's succeeding to the Brother before his Son especially if the Son had any Impediment from the Infirmity of his Age or other Ineptitude for governing Nay OFTEN BY REASON OF LESS MERIT I must admit that for the deposing one actually invested with the Regal Authority the Author's Limitations were to be observ'd tho they were not strictly kept to and I cannot but think that this Author confounds himself for want of this Distinction Either the frequent Examples of setting Kings aside whom the Nation judg'd uncapable of the Government through some natural or moral Defect or Excess or rather the continual Engagements in war with Foreigners had such Effect that from the time of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957 to the time of W. 1. being 109 Years I find no like Instance but one Anno 1014 52 Years before the suppos'd Conquest which was the case of Etheldred who abdicated the Government and went into Normandy from whence the Nation agreed to receive him again upon Condition si vel rectiùs gubernaret Flor. Wigorn. An. 1014. vel mitiùs eos tractare vellet if he would either govern more according to Law or treat them more mildly Upon which he promiss'd omnia Rege Populo digna All things which become a King to his People For the most part during the Saxon Government a King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender Usage of his People Even Will. 1. notwithstanding the Pretence made in after-Ages of his having broken the English Spirit Vid. second Part. was not only oblig'd to keep within Bounds as the following Discourse will evince but to renew his Compact with the People more than once Their extraordinary Power had slept very few Years after the Death of this reputed Conqueror Ed. Lond. Mat. Par. f. 19. Rex Willielmus videns omnes pene regni proceres una rabie conspiratos Anglos fortitudine probitate insignes faciles Leges tributorum lenamen liberasque illis venationem promittendo sibi primo devinxit for the Sickness of his Son W. 2. giving the English Nobility an opportunity of consulting together they almost as one Man were for declaring against him which he timely prevented by fair Promises to them Nay tho his Brother H. 1. came in with the universal Applause of the Nation yet a great part of his Navy deserted him and declar'd for his Brother Robert not because he was the elder Brother but because Henry was unmindful of that Contract which gain'd him the Preference Quia Rex jam tyrannazaverit as the Historian has it because the King prov'd a Tyrant King Stephen his immediate Successor after Allegiance sworn to him had it a while withdrawn for Maud the Empress Daughter to H. 1. but the People soon return'd to it again rejecting her who was nighest in Blood because she deny'd them the benefit of St. Edward's Laws And Discourse p. 21. as the Author of the learned Discourse about the New Separation observes out of Manuscript written by Fortescue Chancellor to H. 6. Maud was set aside and the Reversion of the Crown entail'd on her Son altho she was living and this was done in Parliament Communi Consensu Procerum Communitatis Regni Angliae By the common Consent of the Peers and Commons of England for which Fortescue whose Skill and Integrity no Man can justly question appeals not only to the Cronicles but to the Proceedings of Parliament However this Author will have it that the Commons were not there but as represented by the Barons being misled by the general Expressions of the Historians whose Authority he opposes to the Rolls of Parliament Yet for the purpose here it is enough that this was done by a Parliament of that Time that the Agreement then made was confirm'd by the Oaths of the Great Men and that the Publick Good which was the Foundation of the Agreement was thought to be the measure of the Obligation of such Oaths Hen. 2. came to the Crown by virtue of an Agreement with King Stephen to which the Nation consented for ought appears he was a strict Observer of the Constitution of the Government but being render'd uneasy by the Refractoriness of the Clergy and desirous that his Son should enjoy that Kingdom which he found a desirable Possession to them who would keep the Laws he took his Son into a Partnership of the Care and Dignity this occasion'd a Competition for Power which the Admirers of the traiterous St. Becket improv'd into a War which divided the People Archbishop Parker's Antiquitates Britanicae f. 130. salvâ fide Regi patri quamdiu viveret ac regno praeesse vellet but this being between two Kings both in Possession I should not look on as any Precedent to our Point did I not find that the Allegiance sworn to the Son at the receiving him to the Succession was with a Salvo for that which was due to his Father as long as he should live or think fit to reign CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered THE Power lodg'd in the People for the publick Good to be sure was rous'd and justified by the Tyrannical Reign of King John who tho he had effectually abdicated or unking'd himself by his giving up his Crown as much as in him
an eighth in the last age Vid. Apud Cujacium de feudis 4. tom lib. 5. a. f. 602. ad 1627. Mat. Par. ed. Lond. f. 563. had without precedent brought in the Dignity of the Septemvires The other was the Arrogance and Usurpation of the Pope The Golden Bull of C. 4. who as Conringius will have it brought in the Authority of the Electors of the Empire provides who shall sit Judg or High Steward when the Emperor is impeach'd By that the Palatine of the Rhine has the like power with that of which Matthew Paris shews the Earl of Chester to have carried the sign or emblem at the Coronation of H. 3. 20 of his Reign Anno 1236. Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante in signum quod Comes est Palatinus Regem si oberret habeat de jure potestatem cohibendi The Earl of Chester carrying St. Edward's Sword called the Curtein as a sign that he is an Earl Palatine and has of Right power to correct the King if he go astray It appears that this was no new grant to the then Earl of Chester for Matthew Paris informs us that the Great Men at that Coronation exercis'd what belong'd to them by ancient Custom and ancient Right That this Palatine-jurisdiction was with us before the entrance of the Norman Duke may well be thought by them Vid. 2 d Part. who shall consider the Record which I shall afterwards produce proving that Hugh Lupus enjoyed the Earldom of Chester in the time of W. 1. as heir to Leofric Earl of in the Confessor's Reign and that W. 1. confirm'd it to Lupus to hold as freely by the Sword as himself held the Kingdom The Sword which the Earl of Chester carried in the time of H. 3. being expresly said to be St. Edward's is an evidence that it was the same which Leofric carried in that time by reason of his Earldom and not of any particular Lands agreeable to what I find in the time of H. 3. in Inquisitions after the death of Hugh de Veer Earl of Oxford to whose Barony the Office of Chamberlain to the King is found to belong But that it may not seem strange that I should find a Palatine here before the Conquest when few of the German Writers place it higher than the time of our H. 3. Mr. Selden shews out of an Ancient Chronicle a Comes Palatii in France as early as the Reign of Clothar 3. about the year 660. Vid. Titles of Honour Ed. 4. Anno 1614. p. 242. This with several other considerable passages omitted in the Ed. f. And he observes upon the passage which he cites That the King and other great Courtiers seem'd to sit sometime but the chief Authority Delegate and Judiciary was in the Count du Palais and before him as Chief Justice were all Suits determined Crimes examined the Crown Revenue accompted and whatsoever done which to so great jurisdiction was competent Neither was there it seems always one only in this Office but sometime more That the Jurisdiction of Palatines was known here in the time of H. 2. appears beyond contradiction from John of Salisbury Joh. Sarisbur Epist 263. sicut alii Praesules in partem solicitudinis a summo Pontifice evocantur ut spiritualem exerceant gladium sic a Principe in ensis materialis communionem Comites quidam quasi mundani juris Praesules asciscuntur Et quidam qui hoc Officii gerunt in Palacio Juris Authoritate Palatini sunt a Bishop at that time who in a Letter to Nicholas then Sheriff of Essex says As other Prelates are called by the Pope into part of the care to exercise the Spiritual Sword so some Earls are by the Prince taken into Partnership of the Material Sword as Prelates of Worldly Right And some who bear this Office in the Palace by the Authority of Law are Palatines This fully justifies Matthew Paris in speaking with reference to the known power of a Palatine in the year 1236. One hundred and twenty years before the Bull of Charles 4. that being in the year 1356. This shews that however it might have been as to the other Electors of the Empire the Power of the Palatine was prior to the Bull of Charles 4. The Bull it self has sicut ex consuetudine introductum dicitur as 't is said to have been introduced by Custom this Custom Conringius supposes to have begun in the time of Frederic 2. but holds that there was no express Law for it till that Bull. Yet Frederic having been coeval with our H. 3. whose Sister he Married it would seem very strange if this Power or Office which had been so early in France and England should have been no earlier in Germany Titles of Honour ed. Ao. 1631. f. 382. Mr. Selden shews one Otto an Earl Palatine in Germany in the year 1154. and an other Otho who slew the Emperour Philip Anno 1208. and in the Margin refers to Eginhart who wrote the Life of Charles the Great who was Emperor over the Francs and Germans for proof that one Anselm was Comes Palatii or Earl Palatine under him Anno 812. Freherus gives an instance of the Palatine's Power in the Empire Freheri Orig. Palat. f. 113 119 120. before the Bull of Charles 4. in the Case of King Albert threatned to be deposed for killing his Leige Lord Adolph to whom he succeeded Anno 1290. With Freherus agrees Gunterus in his Octoviratus who says Prideaux his Introd Gunteri Thulemarii Octovirat cap. 18. That the Palatine of the Rhine Major Domo to the Emperour is by Custom Judge of the Emperour himself or rather in the highest matters declares the sense of the Electoral College He cites several Authors to prove the like Office or Power to have been in divers Kingdoms and Principalities and names France England Arragon Spain Denmark Poland Bohemia c. For France Loyseau who wrote within this Century Loyseau du droit des Offices ed. Anno 1610. f. 409 410. shews this Power to have belonged to their Major du Palais for he owns the Power to have been greater than the Roman Prefect of the Palace had and yet he cites the words of the Emperour Trajan giving his Prefect a naked Sword which he enjoyn'd him to use against himself if he misgovern'd And Loyseau says That this dangerous Office was put down by the Kings of the Third Line that they might perpetuate the Crown in their Family But the Author of the Sighs of France Soupirs de France Esclave Mem. 7. p. 116. shews the first interruption to the exercise of this Office to have been put by the States of the Kingdom who when Clothair pressed them to consent to the choice of a Major du Palais in the place of Warnhier then lately deceased would not consent declaring that they would not have that charge fill'd Loyseau supposes this Office to have
one that Reigns to profess himself bound by the Laws Our own Authority does so depend upon the Authority of Law And in truth for the Governing Power to submit to Law is greater than Empire And by the Promulgation of this present Edict we make known to others what we will not allow our selves That J. 2. had before his Departure broken the Fundamental Laws and that now he not only ceases to protect but before the Judgment pass'd upon the Breach was in a Kingdom which foments and strengthens a Rebellion in Ireland part of the Dominions belonging to the English Crown I think no body will deny Nor till they can answer what I have shewn of the mutual Contract continued down from the first Erection of the Monarchy here ought they to deny that he thereby broke the Original Contract which bound the People to him and him to them What results from this Breach is now more particularly to be considered That it is a Discharge from all Allegiance to him requir'd by any Law and confirmed by any Oaths is evident not only from the former Authorities but from the Condition going along with such a mutual Contract as I have prov'd to be with us between Prince and People Or rather to use the Words of the Learned Pufendorf The Obligation is not so much dissolv'd as broken off Peufendorf de Officio Hominis Civis p. 201. by the perfidiousness of either Party for when one does not perform that which was agreed on neither is the other bound to performance For the Prior Heads of things to be perform'd in Contracts are in the subsequent by way of Condition As if it should be said I will perform if you will perform first This he more fully explains in another Book Pufend. Elementa Juris prudentiae p. 85 94. Vid. Puf Supr de Interregnis p. 274. where he distinguishes between an Obligation imperfectly mutual as he supposes it to be between an Absolute Prince and his Subjects and one perfectly mutual as he takes it to be where the People have conferr'd a Power on any Terms Of such Obligations he says These since they have a mutual respect to the things agreed on Pufend. Elementa Juris prud p. 94. and suppose mutual Faith it is evident That if one Party violate the Faith which he plighted the other is no more bound And therefore he is not perfidious who stands not to those Contracts which the other has broken For all the Heads of one and the same Contract run into each other by way of Condition c. In that Book of his which is counted the Standard of the Law of Nations Pufend. de Jure Gentium p. 1105. he asserts it to be lawful for Subjects to oppose their Prince by Force which is a sufficient departure from Allegiance if he goes about Modum habendi potestatem immutare V. Grot. de Jure Belli Pacis de summitatem habendi plenitudine p. 62. Dissertationes de Interreg p. 272. Supra i. e. to change that Manner in which he by the Contract enjoys the Power from less to more absolute And in his Tract de Interregnis cited above he allows of this If the King abdicate all Care of the Commonwealth becomes of an hostile mind towards his Subjects or manifestly departs from those Rules of Governing upon the observance of which as upon a Condition the Subjects have suspended their Obedience Nor is the German Author Knichin less plain whose Words are If the Magistrate have absolute and full Majesty due Subjection ought by no means to be denied him thô he be impious Rudolphi Godofredi Knichen opus polit f. 1226. Nor may he be cast out and another substituted in his room Much less can a new form of Government be introduced But if he were Constituted by the People under certain Pacts and Promises sworn to him by the People and therefore is bound to certain Rules of Laws and either to do or avoid any thing contain'd in those Contracts whether Fundamental Laws or things particularly concerted as for Example the Emperor in our Empire They not being observ'd but studiously enormously and obstinately violated the hopes of amendment after many of the Subjects Prayers and Admonitions plainly vanishing he may rightfully be removed by the States and People c. The Reason is because he was Promoted to the Government by such Agreement and that sworn to according to the Laws of the Agreement or Contract The Nature of which consists in this That if that Party for whose sake or cause they are Constituted violate them the other Party of very Right is freed from the Observance of those things which are granted by such Laws Philippi Paraei Vindicatio p. 50 and 51. Nor does Philip Paraeus come short of this in his Defence of his Father David where he speaks very particularly of the Effect of the mutual Compact Sir R. Poyntz his Vindication of Monarchy Ed. Anno. 1661. What is said by the Learned Knight Sir Robert Poyntz to disable such Authorities as I have Cited in truth confirms them The Doctrine of the Civilians concerning the nature of Contracts he handles with Judgment but if he fails in applying their Distinctions the Foundation of our Government being different from that which he goes upon then he will prove an Authority on my side P. 86. The Doctors of the Law says he are much perplexed in debating these two Rules in Law One is That in vain he requireth the performance of a promise or contract to whom he refuseth the performance of that which he ought on his part to perform The other is That a Man is not bound to perform his Oath if that be not performed in consideration whereof he did swear And unto these Rules they assign divers Exceptions and Limitations One is That regularly ubi contractus est perfectus c. and a mutual Obligation arises 't is not rescinded by the failure of either Party And that in contractibus innominatis Innominal Contracts such as are without any Condition expressed it is not lawful agere ad resolutionem Contractûs P. 86. to act towards the Dissolution of the Contract by reason of a Contravention on one side sed vel ad implementum contractûs vel ad interesse but either towards the compelling performance or the obtaining satisfaction for the breach The Contract between Prince and People he supposes to be both 1. A perfect Contract and 2. An innominal one Consequently indissoluble notwithstanding any Breach on the King's side But if it be look'd on barely as a perfect Contract without Consideration of its being without Condition expressed by the same Reason even the Rebellion of a Subject would not discharge the King's Duty to protect him any more than the King 's subverting the Constitution will discharge the Subjects Allegiance Which shews that this is meant only of Instances which are not of the Essence of the Contract
not be thought that I in the least derogate from the Honour due to him when I observe matter of fact not falling within his notice The Author of a late Paper in relation to these Times has this passage not to be neglected A Letter to a Friend advising in this extraordinary Juncture All Power is originally or fundamentally in the People formally in the Parliament which is one Corporation made up of three Constituent essentiating Parts King Lords and Commons so it was with us in England When this Corporation is broken when any one essentiating Part is lost or gone there is a Dissolution of the Corporation the formal Seat of Power and that Power devolves on the People When it is impossible to have a Parliament the Power returns to them with whom it was originally Is it possible to have a Parliament It is not possible the Government therefore is Dissolv'd Hence he would argue a necessity of having a larger Representative of the People Vid. Pufend. de Interregnis p. 267. sup in Marg. that the Convention may be truly National But had this Ingenious Person observed Pufendorf's two distinct Contracts by the first of which a Provision was made for a Monarchy before any particular Person was setled in the Throne he would have found no such necessity But if immemorially the People of England have been Represented as they were for this Assembly and no needful form or circumstance has been wanting to make the Representation compleat all men who impartially weigh the former Proofs of Elections not without a Rightful Power must needs think the last duly made Dr. Brady indeed with some few that led him the Dance and others that follow will have the present Representation of the Commons of England to have been occasioned by Rebellion 49 H. 3. But I must do him the honour to own him to be the first who would make the Barons to have no Personal Right but what depends upon a King in being for he allows none to have Right of coming to Parliament Brady's first Ed. p. 227. See this prov'd upon him in the Pref. to Jus Anglorum ab antiquo but such only to whom the King has thought fit to direct Writs of Summons Yet I dare say no man of sense who has read that Controversie believes him But were his Assertions true it might be granted that the Barons would have no more personal Right to be of any Convention upon the total Absence or Abdication of a King than they would have of coming to Parliament without His Writ Yet since the Right of the People in person or Representation is indubitable in such a Case what hinders the validity of the late Choice considering how many Elections of Kings we have had and that never by the people diffusively since the first Institution of the Government And the Representations agreed on tho I take them to be earlier setled for Cities and Burroughs than for the Freeholders in the Counties have ever since their respective settlements been in the same manner as now at least none have since the first Institution ever come in their own persons or been Electors but what are now present personally or representatively and their own Consent takes away all pretence of Error If it be said That they ought to have been Summoned Forty days before the Assembly held That is only a Privilege from the King which they may wave and have more than once consented to be Represented upon less than Forty days Summons Prynne 's Animadversions on 4 Inst f. 10. Mr. Prynne gives several Instances as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and says he omits other Precedents of Parliaments Summoned within Fourty days after the Writs of Summons bear date upon extraordinary Occasions of publick safety and concernment which could not conveniently admit so long delay And Sir Robert Cotton being a strict Adherer to Form Vid. Rushw 1 Vol. f. 470. 3 Car. 1. upon an Emergency advised That the Writs should be Antedated which Trick could make no real difference To say however there ought to have been a Summons from or in the name of a King in being is absurd it being for the exercise of a lawful power which unless my Authorities fail the people had without a King or even against the consent of one in being Besides it appears That such Summons have not been essential to the Great Councils of the Nation Tacitus shews That the Germans Tacit. de Moribus German Coeunt nisi quid fortuitum subitum certis diebus c. V. Leges S. Ed. tit Greve In Capite Kal. Maij. Jus. Angl. c. 7. Vid. Append. from whom we descend had theirs at certain days unless when some extraordinary matter happened And by the Confessor's Laws received by W. 1. and continued downwards by the Coronaton Oaths requir'd to this very day the General Folcmot ought to be held annually without any formal Summons upon May-day By the time of E. 1. this custom to hold a Parliament upon May-day received a little alteration for the Pope having at the beginning of that King's Reign demanded eight years Arrears of an Annual payment which he claim'd for the Kingdom of England the King had put him off till the next Parliament which he said had us'd to be held in England about the Octaves of our Saviour's Resurrection This Parliament was held at the Octaves accordingly as the King acknowleges upon the Pope's second demand but pleads that it had been taken up with the great Affairs of the Nation till his want of Health occasion'd a Dissolution before they could consider oâ—… tt Matter which he promis'd should be brought before them at the next Parliament which he purposed to hold at Michaelmas then following The Statute 16 Car. 1. which our rigid Formalists must own to be in Force has wholly taken away the necessity of Writs of Summons from a King Stat. 12. Car. 2. c. 1. The Assembly of the Lords and Commons held Anno 1660. was summoned by the Keepers of the Liberties of England not by the Kings Writs yet when they came to Act in conjunction with the King they declare enact and adjudge where the Statute is manifestly declaratory of what was Law before That the Lords and Commons then sitting are and shall be the Two Houses of Parliament notwithstanding any want of the King 's Writ or Writs of Summons or any defect or alteration of or in any Writ of Summons c. Tho' this seems parallel to the present Case yet in truth ours is the strongest For the King then had been only King de jure no Authority could be received from Him nor could any Act of His be regarded in Law through defect either of Jurisdiction or Proof if not both Accordingly as not only the Reason of the thing but the Lord Coke shews 3 Inst f. 7. Sup. in Marg. a Pardon from one barely King de jure is of
W. 2. for he resolving to go take the Pall at Rome 't was declared to him in Parliament that if he went it should be without any hopes of returning again Upon this the See of Canterbury became vacant agreeably to what afterwards hapned in the case of Becket tho he was not banish'd but fled away voluntarily yet the French King having press'd H. 2. to let Becket have the Profits of the Archbishoprick the King told him Antiquitates Britan. f. 135. Restituere se nihil ei posse qui sponte Ecclesiam deseruerit itaque cum e Regni consuetudine Regisque dignitate Cantuariensis Ecclesiae quam Thomas fugâ voluntariâ pro derelicta fecit fructus vacantes certis jam personis contulisset nolle se dixit ea quae prout jure Regni potuit contulisset in irritum dubiumve revocari That he cannot restore any thing to him who left his Church of his own accord since therefore according to the custom of the Kingdom and the Royal Dignity he had conferr'd upon certain persons the vacant Fruits of the Church of Canterbury which Thomas by his voluntary Flight had made derelict he said he would not make void or call in doubt those things which he had granted according to the Law of the Kingdom If there might be any doubt of a Vacancy of the See in Becket's case at least there was none in Anselm's who had in the time of W. 2. been banish'd by Parliament never to return and yet the Convention 1 H. 1. being become a Parliament not only recall'd him from banishment in which they set aside an Act of a former Parliament but they call'd him to fill the See of Canterbury after it had been vacant which was equally a Parliamentary Act in those days as appears by the choice of Lanfranc in the time of W. 1. of this very Anselm in W. the 2 d's and of Becket in the Reign of H. 2. Concerning the Election of Lanfranc Arcbishop Parker tells us Ibid. f. 110. Celeberrima est autem hujus prae caeteris electio consecratio Electus enim est a majoribus Cantuariensis ecclesiae tum accessit Procerum atque Praesulum totiusque populi quasi Populi consensus in Aula Regis quod sane est ad instar Senatus seu Parliamenti Anglicani But this Election and Consecration was with more Solemnity than any other For he was chosen by the Chief of the Church of Canterbury To which was added the consent of the Peers and Prelates and as it were of the whole People in the King's Court which in truth is of the nature of an English Senate or Parliament Tho he will have this Election to have been more solemn than any other and that it was not in a real Parliament but in an Assembly of the same nature yet what himself says of the Elections of Anselm and Becket explain'd by more Ancient Authors shews that the Elections of other Archbishops us'd to be as solemn and that both that of Lanfranc and of the others were in a full Parliament or Great Council of the Nation Himself says That both Peers and People were so much for Anselm's being made Archbishop that W. 2. would not openly contradict Antiq. Brit f. 116. W. 2. Proffered Anselm the Archbishoprick but underhand disswaded him from it Sed cum neque hâc suasione quicquam profecisset proque certo comperisset Proceres Populumque Angliae adversos aut minus fidos sibi Anselmo favere eumque ad Archiep. munus jam oblatum flagitare apertè contradicere noluit Eadmerus who was always by Anselm's side shews that W. 2. being taken ill in the seventh year of His Reign Omnes totius Regni Principes coeunt Episcopi Abbates quique Nobiles There gathered together all the Princes of the Kingdom the Bishops Abbots and all the Nobles This as appears was upon notice given among themselves to provide for their Common safety To that Assembly the King makes solemn promises of Governing better than he had done And Anselm being there named for Archbishop Concordi voce sequitur acclamatio omnium ' The acclamation of all followed as with ' one voice And Eadmerus says that he was made Archbishop Secundum totius Regni Electionem ' according to the Election of the whole ' Kingdom And another Monk of the time says Gondulfus Roff. Ep. Monac Bec. inter Anselmi Epist lib. 3. the King made him Archbishop Consilio Rogatu Principum Cleri quoque populi petitione electione By the Counsel and Advice of the Peers and the Petition and Election of the Clergy and People Archbishop Parker speaking of the Consecration of Becket An. Dom. 1162. 7 H. 2. in the 7th of H. 2. says Consecrationi huic tam illustri interfuit H. Rs filius Antiq. Brit. f. 130. cum plerisque Regni Proceribus quatuordecim Cantuariensis Provinciae Episcopis innumerâque Plebis multitudine atque copiâ There were present at this Consecration Henry the King's Son with most of the Nobility of the Kingdom and Fourteen Bishops of the Province of Canterbury and an innumerable multitude and throng of the common people The former Presidents shew that they were consenting as well as present nor could the absence of the Bishops of the other Diocesses make their Meeting the less a Parliament Sir Henry Spelman cites an Authority proving that the Clergy were not conven'd at the Council of Rochingham 9 W. 2. Spelman Concil vol. 2. f. 16. In quo fermè totius Regni Nobilitas praeter Episcopos Clerum Convenitur which must be meant of not being Summoned for it appears by Eadmerus that Anselm and other Bishops were there And Bishop Jewel observes that in the time of E. 1. Jewel contra Hard. f. 455. a Parliament was held from which the Clergy was excluded From these Authorities it appears That as Anselm was chosen Archbishop in one Parliament and Banished in another nay tho he had gone away voluntarily his See became derelict and admit the King might have pardon'd his Banishment out of Parliament he could not have restor'd him to the exercise of his Office but in a Council which was reputed to have the Authority of a Parliament and such Authority 't is plain that they in that time thought that Convention to have had in which H. 1. was Crown'd and which after his Coronation acted as a Parliament Malms f. 88. It appears by Malmsbury that Anselm was call'd back in the same Assembly wherein Ranulph was committed to Prison and Matthew Paris who is not so precise as to the time of Anselm's being sent for says Ranulph was Imprison'd communi Concilio Gentis Anglorum ' In a ' Common-Council of the English Nation And it appears by Matthew Paris Mat. Par. f. 78 79. That Anselm upon his return was look'd on and acted as Archbishop And if this is not sufficient evidence that that Convention was reputed a Parliament or one
subjectam The chief Act of Government requires the chief or Supream Power But the making of Laws is the Supream Act of Government Therefore it cannot be exercised but by a Person having or at least by Virtue and from the Authority of the Person having Supream Power and Jurisdiction over the Community subject unto him Now in this the Doctor seems to be uniform to himself since he grants that the Clergy cannot exercise this Power without the consent of the King and so they act by virtue of his Authority But it will be justly question'd whether the Power be not in the King the Authority being his For a Legislative Power where-ever plac'd is uncontroulable and self-sufficient and so the Doctor tells us Potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and if the Power the jus condendi Leges Ecclesiasticas be in the Clergy then that Power is self-sufficient 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by consequence their Act of Legislation made known obliges the Community Eodem omninò modo quo Princeps qui habet potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pag. 84. ferendo leges obligat subditos ad ipsarum observationem But perhaps we may be told that a Difference is here to be taken between jus condendi Leges and potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but then the Doctor must be allowed not to talk with coherence For he takes it for granted Posse de novo condi leges de ritibus rebus personis Ecclesiasticis omnibusque sacri cultûs externi circumstantiis ad ordinem honestatem edificationem spectantibus extra eas quae sunt à Christo ejus Apostolis in Sacris Literis traditae which is in short that there is somewhere a Legislative Power in Matters Ecclesiastical not determin'd in the Scriptures Now this very Power Jus condendi Leges Ecclesiasticas he places in Ecclesiastical Persons wherefore the Power which he ascribes to them in Ecclesiastical Affairs is a Legislative Power And some will question how much soever the Clergy complement the King whether they take not the Restraint which they submit to to be a Condescension nay that Power is by him ascrib'd to the Clergy in the very same Expressions wherein he expresses the King's Power Pag. 189. For as he says Jus condendarum Legum Pag. 209. is penes unum Regem so he tells us Jus condendi Leges Ecclesiasticas is penes Episcopos c. I would gladly see the Difference rightly stated upon these Principles The Clergy have the Power of making Laws or the Legislative Power in Ecclesiastical Matters yet the Exercise is restrainable by the King Jus condendi Leges Ecclesiasticas esse penes Episcopos Presbyteros aliasque personas à totius Regni Clero ritè electas legitimâ Synodo congregatas Ita tamen ut ejus juris exercitium in omni Republicâ Christianâ ex Authoritate Supremi Magistratûs politici pendere debeat Idque à parte ante à parte post The King has the Legislative Power in Civil Affairs yet the Exercise is restrainable by the People Cum dicimus penes unum Regem esse jus condendarum Legum Pag. 189. non id ità intelligendum quasi vellemus quicquam Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem aliaque non nulla ad Legem constituendam requiri mox ostendam Ergo Quere Whether Church-men are not Supream in Ecclesiastical Affairs as the King is in Civil It will be said Admit they are yet that Power may be very consistent with Monarchy for which purpose one need but transcribe with very little variation the Doctor 's words applying what he says of the Lawgiver in Temporal to the Ecclesiastical Law-givers Pag. 203. Posse duo haec Regis inquam consensum supremum ECCLESIASTICORVM in ferendis legibus potestatem simul amicè satis consistere praeterea quod in rebus ipsis nulla videtur esse repugnantia vel inde constare potest quod Angliae nostrae CLERICI quorum supremam potestatem in ECCLESIASTICIS ante infoelicissima haec tempora omnes hujus Regni incolae prolixissimè semper agnoverunt nunquam tamen legislativam suam potestatem ità exercuerunt ut sine Regum suorum consensu Leges aliquas condiderint Now whether the Doctor 's Reflections upon them that feign a Power coordinate with the King nay whether his imputation of Perjury upon them who deny the King a Legislative Power after having sworn that he is Supream Head and Governour over all Causes and Persons as well Ecclesiastical as Civil will not fall upon himself some will question Pag. 191. and they know not whether he were not one of them that believ'd Contradictoria posse simul esse vera And thus again they argue out of him Pag. 188. In statu Monarchico unius Regis personae inhaeret summa potestas In a Monarchy the Supream Power is inherent in the Person of the King only But ours is a Monarchy therefore the Supream Power is inherent in the Person of the King only Ibid. he is omnium personarum causarumque in suis Regnis Supremus imò solus supremus Moderator Making of Laws either in Ecclesiastical or Civil Matters is an Act of the Supream Power therefore the Right of making Laws Pag. 192. in the one as well 'tother is in the King in whom the Supream Power is inherent not in Church-men But if one may dispute the Authority of so great a Man one may be bold to ask what proof there is that what he asserts about Ecclesiastical Jurisdiction is consentaneous Doctrinae Ecclesiae Anglicanae Regni insimul legibus For take it in the largest sense not that the Clergy have the Legislative Power so qualified as aforesaid but that they and the King have a Power of making Laws in Ecclesiastical Matters which shall oblige the Community without any farther Consent or Ratification This some will say may for ought they know be agreeable to the Doctrine of the Church or Church-men but where is the Law to warrant it they are to seek And besides the several adjudg'd Cases that the Laity are not oblig'd by any Canons of the Clergy or Ecclesiastical Laws though made with all the Circumstances taken in by the Doctor They urge the Authority of this King in his Parliament where 't was enacted that the Canons made in the Year 1640 13 Car. 2. c. 12. This was written before that Parliament was dissolved should not be confirm'd which shews that they stood in need of Parliamentary Confirmation to become Laws And 't is to be observed that there had been the Royal Assent to that Exercise of Ecclesiastical Power both à parte ante and à parte post Some Men possibly may tax this Great Author with Deceit in giving the King a Legislative Power in general without excluding those Ecclesiastical Matters which the Great
Legislator left undetermin'd And yet afterwards when had he said enough to gain Credit stealing away a large share for the Clergy but yet he had given so much before that he could not leave any thing to the Clergy or the Laity either without manifest contradiction He tells us that in every Monarchy the Prince has Supream Power that this Supream Power is a Legislative Power and with us extends to Matters Ecclesiastical as well as Civil that a Legislative Power is Self-sufficient and Arbitrary and that that Prince who has a Legislative Power obliges his Subjects ferendo Leges by the exercise of this Power and that must be in what manner soever he exercises it otherwise 't is not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet in another place he says what the King commands has not the Force of a Law Pag. 189. that is does not oblige without some Consent of the People And whereas he places in the King the Sanction of Laws in general as being the principal Cause that introduces the Form and this he calls jus condendarum Legum this Right or Power he places in the Clergy for Matters Ecclesiastical and so wholly shuts out the King and Laity who have according to him neither the Proposing nor the Sanction And therefore that restraint of the Exercise which he yields to the Civil Power amounts to no more than a natural not moral Power Praelectio 7 ma de Obligatione legum humanarum ex parte causae efficientis And this appears farther in that this was under the Head of the efficient Cause of Humane Laws which he makes the Clergy to be in Matters Ecclesiastical and that without Aid of the Civil Power as he explains himself speaking of the Matter of Laws Prael 7 ma. p. 174. Leges autem Ecclesiasticas hìc intelligo non quae à personis Ecclesiasticis sine Magistratus civilis authoritate constitutae sunt quae schola non est hujus loci sed ad alterius generis causam efficientem scilicet pertinet c. I conceive he places the Authority of making Ecclesiastical Laws in the Clergy in the same manner that he does any Act of the Ministry the Power of which according to some Great Men remains though the Act may be restrain'd which some Men cannot understand for their Hearts for they suppose that one may always act according to a lawful Power But we are otherwise taught Ep. Wynton Resp ad 3 Ep. Pet. Moline p. 191. Post enim quà m dicunt degradationem manet potestas ad actum ordinis cujus potestatis usus prohiberi potest potestas ipsa tolli non potest To put an end to all these Disputes Doctor Heylin's perpetual Dictator in Politicks places a Power in Adam as Absolute and Arbitrary as all the Acts of his Will and does nothing if he goes not to prove that this his Power was to be obey'd in every Act of his Sovereign's Will relating to things Sacred as well as Civil for a right to Command without an Obligation upon others to obey is an empty insignificant Notion Well this being settled beyond dispute in Adam and in his Posterity by right of Fatherhood and in Cain by right of Birth though by the way he never was vested with such Power over his Brother Patriarcha p. 19. Patriarcha p. 12. Patriarcha p. 13. over whom we are told 't is promis'd for that Abel died in the Life-time of Adam though it were indivisible and of right an universal Monarchy settled upon the Eldest Parent yet it lawfully descended or came upon Sons in the Time of their Fathers as upon Judah who by virtue of his Patriarchal Power condemn'd Thamar to be burnt while his Father Jacob was in being Such as could set up for themselves in any of the divided Kingdoms of the Earth had in spight of contradiction just Shares in this still indivisible Monarchy and not only by consequence but expresly are we taught that Usurpers and Rebels have good Authority such as ought to be obey'd though the lawful Prince be alive But these besides many other Absurdities and Contradictions which Sir Robert is pleas'd to divert us with are but necessary Consequences upon the Supposition that every one who is Supream in Power Patriarcha p. 19. All Kings c. are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People however he come by it derives his Title to an indivisible Power that is all Power from Adam which holds not only as to all Power within any particular Division or Tract of Land but all over the World as it is suppos'd Adam's Power was If it be meant of the Father of the People within such a Tract of Land then he derives not his Title from the Eldest Parent and by Consequence entitles such an one only to a subordinate Power And therefore one would think that Sir Robert has heap'd together all the Absurdities flowing from such an Opinion with an intention to expose it to all Men of Judgment They that will say 't was otherwise surely are none of his Friends but expose him as they do themselves in contending so eagerly for the maintenance of what if he spoke his Judgment argues him to be none of the wisest if 't was not none of the honestest If as one of Sir Robert Filmer's pedantick Admirers flourishes Pref. to the Power of Kings All Readers are insensibly under his Command as if they were his Subjects and are his by right of natural Soveraignty and a Reason so far exalted above ours as his makes him appear like those Kings of old who were in Stature much superior to their Subjects and seem'd so far to over-top the rest as if Nature mark'd them out for Heads of all If still this exalted Genius be guilty of Self-contradictions and undermining his own Foundations what silly Creatures are they or what Slaves in their Understanding who are made Captives without Resistance and are Slaves by right of Conquest And if all Men fell under his Title either of natural Soveraignty or of Conquest how despicable were the Condition of Humane Nature But surely Contradictions will not down with all Men 't were in vain to shew such easy Wretches as are led captive by Sir Robert's false Reasonings wherein his Fallacies lie as in not distinguishing the Power whereby a Nation is govern'd from the Person or Persons invested with Power nor considering the Manner wherein it is enjoy'd whether Absolutely or with Limitation or whether the Administration or Exercise be according to the lawful manner which to them that are able to consider would evince to how little purpose 't is urg'd that Soveraignty is indivisible For an undivided Soveraignty may be in several in unequal manners and sometimes in equal As in the Roman Consuls or Decemvirs at least and that by Sir Robert's own confession The Law says he of the Twelve Tables affirms
mention had ben made it is lykely that the Parliament wold never have consentyd or agreid thervnto as at the makinge of the same Statute yf eny had gone about to have pennyd it in this sorte that such shuld succeede and enjoye the Crowne as K. Henry either by his Letters Patentes or elles by his last Wyll signed with his most gracious Hand had namyd what Parsonnes soever they had ben although they were infamous madde impious or such other before rehearsed it is not lykely that in this maner or forme the Parliament wolde have allowed or passed such a Statute And that that is not lykely they wold have consentyd vnto by wordes in such sorte specially expressid It is not to be thought or understandid that such Persons shuld be capable and fit for that Callinge omni exceptione majores And it is playne and notoryous as is before-sayd that to be borne in Adultery or of eny other unlawfull sorte or matche is reputid and taken a Spotte and that a greate one not onely by the Lawes of Man but also by the Lawes of God (p) Sapien. 3 4. Deut. 2 3. and so unworthy and unfitte ar such to be thought capable of the Crowne that in all States where they use to gyve or graunte eny Seigniories Titles or Liberties in Fee as Baronyes Erleshippes Markeshippes and such other the Bastardes ar never thought worthy to be admittid unto the Succession although that they be made legitimate But they must specially be ablyd vnto the succession of the Fee by the Prince (q) Bartol Bald. in l. eam quam C. de fidei com And yf they cannot inherite or be capable of their Titles and Honours which ar not nor cannot be comparyd vnto a Royall Dignitie how shuld they be thought worthie or capable of a Crowne And that that is sayde of Bastardes is to be understandid also of those that pretendith the Succession as Heires of Bastardes And synce this Realme makith no lesse esteme of the Honour and Dignity of the same then eny other Nation doth of theires it is not lykely that specially they would graunt unto the Kinge Power or Authoryte to gyve or leve the Crowne to eny Person not legitimately borne or to their Children or to eny such Person upon whose Birth and Proceedinges there might growe such stryfe dispute or contention accordinge to the saying of Cesar and example of other a litle before remembryd And since it is not lykely that the Parliament wold haue condiscendid specially unto it it followith and we must conclude that such a Graunt cannot be comprehendid by general words But though he had Power or Authority to dispose of the Crowne to the Heires of the Lady Francys and the Lady Eleanor it is trewe yet notwithstandinge he could not do that but with the Condition and Forme that by Power of the Parliament was gyven him that is either by his Letters Patentes vnder the Greate Seale of England or ells by his last Will signed with his most Gratious Hande By Letters Patentes without doubt he hath not done it and so of the Will is the Controversy But beinge able to make a sufficient and perfect Will to all other intentes and purposes either in puttinge to his Hand or ells in not puttinge to his Hand yet yf the Kinge have made his Will without puttinge unto his Hand as ther be Wittnesses sufficient and some of those that subscribed the same Testament in that behalf can so truely and plainly testify that he hath as there is no such Cause left therfore either of such doubt or elles of such conferringe or comparinge the Prothocall with the Signe or Stampe as those that haue sette foorthe these Books wold seeme to make then it is playne and manifest that he hath not done it to this purpose accordinge to the forme and maner prescribed vnto him by the Statute And every Acte or Deede that is done without the Forme prescribed by Lawe is insufficient (r) L. 1. in pr. ff de stipula l. traditionibus C. de pac l. 1. C. de pred cur lib. 10. as well accordinge to th' Exposition and Rules of the Civill Lawe as ells by th' Exposition and Rules of the Common Lawe of this Realme for accordinge to the Civill Lawe it is playne and so taken though the Matters they entreate of be in favourable Causes yet the lacke of Forme is no wayes borne withall or excused (s) L. cum hi. §. si pretor ff de transa Bal. cons 324. volu 20. And much lesse heerin consideringe the Forme requyrid by the Statute is compiled with so meny greate goode important and probable Reasons For the Succession of the Crowne beinge a Cause of such greate weight and in which ther was so greate occasion to doubt so many hassardes of indirect or subtile dealinge they had goode cause to prescribe such a Maner and Forme to make the Will by as wherby they had least occasion to feare or suspect eny counterfetinge confuse or sinister behavour in the same And so accordinge to the Civill Lawe in that Testament that they call a Solempne Testament in the which there is required meny Circumstances yf eny of those do lacke the Testament or Will is of no force or valour (t) Justin de testa lege jube C. ibidem Besydes accordinge to the same Lawe all Statutes or Agreements made that takith away or correctith eny thinge of or from the Course or Body of the Lawe is reputed and taken as odious and ought to be taken strictly even accordinge to the Letter as the worde standith And this Statute wherof we now speake is such a One For wher the Succession of the Crowne shuld have gone whither the Common Lawe had apoynted or directid it as vnto the next by the Statute of 35 of Henry the Eighth K. Henry had Auctority to leve it to whome he lysted And therfore this Statute is to be interpretid strictly and precisely as the worde gyveth That is that Kinge Henry onely by his Letters Patentes vnder the Great Seale of England or elles by his last Wyll signed with his most gratious Hand might name whome he would to the Succession of the Crowne and not otherwyse And lykewise by the Common Lawe of this Realme the Statute is most plainly a direct abridgement of the same by reason it takith from the Common Lawe the naturall limitation of th' Inheritance of the Crowne and appointith it owte of the Rule of the Lawe to the Order and Limitation of Kinge Henry beinge in this respect authorized but as a private Person And it is in some degree a Penal Lawe for it takith the Title of a Kingedome from those that by the Common Lawe have a Right and makith in poynt of execution a Subject of a Prince and contrarywyse a Prince of a Subject which is not onely penall as hauinge respect to the losse of their Title to the Crowne yf it shuld
so happe as God forbidd but also it is so penall that if such ill Chaunce shuld unfortunately befall it makith Traytors of those that will clayme their Inheritance although their intent were but to try their Titles And it is a Learninge by the Common Lawes of England that longe hath ben so receyvid that in every such case as eny of these happen no Exposition is to be allowed but the Lawe willith us to cleve to the Letter without eny further wrestinge therof then the Letter naturally and strictly will reache unto So that if it be not a stricte observation of the Letter according to his natural entent in any of these cases the Common Lawe allowith it not And the rather the Lawe is precise herin for that it is a newe Statute which seldome ar taken by equite in eny point because they ar all pennyd at large As for Example I will remember one or twoe which may suffice to such as be Learnyd to search for other of lyke effect wherof ther ar not a few In Anno 1. of Kinge Edward the 6 th ther was a Statute made That if eny were condemnid for the stealinge of Horses and Mares they should lose their Clergy and because the words Horses and Mares were the plurall nombre it was taken not to extende to one Horse or to one Mare And so for that cause a new Statute was made Anno 2. of the same K. that made lyke Lawe for stealinge one Horse or one Mare And the chief cause of this was because it is a Penall Statute in takinge from a Man that wherby his Lyfe might be savid In K. Richard the 3 ds Tyme there was a Statute made to Auctorize Cest a que use to enter vpon his Feoffees and make Feoffementes And it was in question in Anno 9. of H. the 7 th yf he made a Letter of Atturney whether this were good by the Statute and lefte therfore a doubtfull question by reason the Statute gyveth auctoryte onely which must in all poyntes be observed And ther is a greate deale more coulour to make that Feoffement goode being by Letter of Atturney then to make this Will to this purpose goode not signed with the Kinges owne Hande For if eny other put his Hande therunto and not the Kinge himself then it is signed with an other Hande and not the Kinges Hande And yf I gyve Auctorytie to my Executors to sell my Landes and say no further then yf they sell the same by Wrytinge or without Wrytinge it is sufficient but if I adde these wordes That they shall sell my Landes so that they do it by Wrytinge signed with their proper Handes yf now they sell the same and th' one cause the Residue in all their presence to wryte all their Names as thoughe every one had severally subscrybed I hold it no question but this Sale is not good for they must pursue their Auctorytie strictlye and otherwyse it is of no effect And consyderinge as is partly before remembryd how greate a mater it was to committe such a Trust it were a greate lacke and slander to the whole Parliament to thinke that they wold condiscend to the committinge of so high and weightie a Confidence as wherof the whole Estate and Weale of the Realme shuld depend but that they did forsee that their doinges therein shuld not be blynded by a Wrytinge signed with a Stampe The same thing was urg'd by Lethington the Secretary of Scotland in a Letter to Sir Will. Cecil Appendix to the 2d Vol. of the Hist of the Ref. F. 269. which might be put vnto either when the Kinge was voyde of Memory or els when he was deceassid as indeed it after happenyd as most manifestly appeeryd by open declaration made in Parliament by the late L. Paget and others that King Henry did not signe it with his owne Hande as it is playne and probable inough by the Pardon obteynid for one William Clerke for puttinge the Stampe vnto the sayde Will after the Kinge was departid and who doubtith but yf his meaninge had ben such so to haue disposed of the Crowne but that he wold have put this mater out of doubte by signifyenge the same with his owne proper Hande And touchinge the two chief Examples that ar brought foorth the one of the 21 and 33 of K. H. th' Eight wherby K. H. was aucthorized to gyve his Royall Assent to Actes of Parliament by his Letters Patentes and so foorth and th' other for that Queene Mary omittyd the style that was apoyntid by Parliament in 35 of H. th' Eight in her Parliament Writts howe little they make to the matter every Man may judge For the Statutes of 21 and 33 of H. 8. were only made in affirmance of the Common Lawe and such a Royal Assent wold suffice by Letters Patents without eny assurance thereof by the Signe And this Statute was but to put such matter out of question for if the Common Law had ben such before there is no doubt but that he must haue signed every Patent with his proper Hande and so these Cases are no way lyke And touchinge the seconde yf the Statute that conteynith the King's Style be well consyderid there wold be made thereof no such Collection For the same apoyntith a punishment to such Subjects as of purpose depryve the K. of the Realm of that Stile But there is no doubt but the Writts that wantyd the Stile were in Lawe sufficyent and the Parties that made the same punishable So that these Examples cannot be wrestid to serve eny whit for the purpose And where ther is made a great mater by reason the Will was inrollid in the Chancery and Constats thereof made under the Broade Seale and the Legacyes thereof in all poyntes performyd To that may be answerd That all that is therein affirmed may easily be confessed and yet it proovith nothinge to th' intent applied for it was his Will is ever he condescendid thervnto though he did never signe it with his Stampe nor with his Hande and a goode and a perfect Will to all Entents and Purposes whereof he had by Common Lawe Authoritye to make his Will of But it is not or cannot be the more a perfect Will to this respect or purpose vnlesse he did execute the auctoritie apoyntid by the Statute of 35 of H. 8. as is before remembryd Since then the Duke had a Wyfe lyvinge when he maryd the Frenche Queene and by the Statute ther is nothinge to be Claymid onles K. Henry had passed eny things either by his Letters Patentes under the Broade Seal of Englande or ells by his last Will signed with his most gracious Hande And that it is trewe that he had a Wyfe lyvinge when he maryd the Frenche Queene that so if it were requisite or hereafter may be there mought be avouchid more then one with much other matter touchinge that poynt of Illegitimacion and Inhabilitie as well in