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
vested to govern in Matters of Religion not as originally arising from their Christianity but from the general Right of Dominion and Soveraignty and says this includeth a Right of establishing by their Authority what is truly unblameable orderly useful and necessary with respect to Religion Accordingly he speaks of the Ecclesiastical Laws of Ina Page 153. and several other English Saxon Kings as if they were establish'd by them as having the Civil Power solely and absolutely in themselves And indeed if as Mr. Falkner has it elsewhere Page 41. the Soveraign Ruler hath a Right to promote God's Publick Worship and to establish it by a Civil Sanction it must follow either that these Kings were no Soveraigns or that they alone made those Ecclesiastical Laws giving them their Civil Sanction Yet that he denies even to the Emperor Constantine such a Power as he ascribeth to Kings and Princes and particularly to ours Pag. 172 173 174. is evident from his justifying Athanasius in his disobeying the Emperor's positive Command to restore Arius to his Church of Alexandria after a final Sâ—â—tence of Deprivation of the Council of Nice which Sentenc 〈…〉 g grounded upon his Heresy the Emperor might well think that subscribing and swearing to the Nicene Creed might render him a Person equally capable with any other to supply the Vacancy 2. Mr. Falkner's second Mistake in his first Part. Another Mistake Mr. Falkner seems to have been led into by thinking Ecclesiastical Canons to be of Authority in Points of Law or State Hence it is that he cites the second Canon 1 J. 1. which he says threatens Excommunication against them who shall affirm 2 Canon Vid. Christian Loyalty p. 50 51. that the King hath not the same Authority in Cases Ecclesiastical that the Godly Kings had among the Jews He might have observ'd that it excommunicates them ipso facto without admitting them to any Plea or Defence for themselves In which Comparison tho perhaps much was intended according to the Mos Regius described by Samuel I fear it proves too little nor would they who made those Canons have been willing to confine the Royal Power to that fundamental Law for it which we find in Deuteronomy Deut. 17. from ver 14. to the end where the Rule for the Election of Kings is stated that the Person whom they set over them should be no Stranger but one from among their Brethren and his Power is bounded within Moses his Law that his Heart be not lifted up above his Brethren And it is certain that the Stream of Learned Men are on the side of Petrus de Marca Falkner p. 89. who observes that they do not deserve well at the Hands of Christian Princes who would measure their Authority and Dignity from the Exercise of Royal Power under the Times of the Old Testament Ib. p. 75. Even Grotius will not allow the Government over the House of Israel to have been Monarchical Ib. p. 102 454. But leaving Mr. Falkner with his Canons to fight this out with De Marca Selden Grotius Schickard Bellarmine Baronius the greatest part of the Jewish Rabinnical Writers Blondel and even Josephus who says the King was not to act without the High Priest and the Consent of the Senators I shall but mention some Heads in which it will be difficult to disprove me 1. The Kings of Israel quatenus Kings had no Interest in the Legislative Power for that Government so far continued a Theocrasy that God who promised in an especial manner to dwell among them Exod. 29.45 was their sole Legislator and Mr. Falkner himself tells us Page 464. The Jewish Common-wealth was peculiarly order'd by God or as he has it elsewhere Page 438. peculiarly Theocratical 2. Where-ever any Alteration in the outward Administration or Circumstances of things appointed by God's Law delivered by Moses went under the Name of any King it will hardly be possible to prove that the King did not make it either as he himself was a Prophet or by the Direction of the chief Prophet or Seer whose Commission Jer. 1.10 if we may judg by that of Jeremiah's was very large being set over the Nations and over the Kingdoms to root out and to pull down and to build and to plant Orig. sacrae p. 150. The present Bishop of Worcester shews that God appointed a Succession of Prophets to make known his Mind to the Israelites and that there were Schools or Colledges of the Prophets which some think Samuel erected Pag. 154 164. where God Almighty ordinarily dispensed his Effusions Out of these the Kings had their Seers Gad was David's Seer and Jeduthun Josiah's after Israel and Judah were divided according to that Observation made by the Bishop neither were these Schools of the Prophets only in Israel but in Judah likewise was God known Page 463. 3. The Right of the Crown of Israel was not so fix'd to a Family but as Mr. Falkner owns God reserv'd to himself the Right of disposing the Soveraignty of that Kingdom By which as he would justify some Risings against Kings in Possession he must likewise admit that no Instances of Passive Obedience among the Jews can concern Governments more truly of Human Institution 4. For the Judicial Power it may be difficult to shew the King to have been more than the Head of the Sanhedrim and perhaps considering that the Law by which they were to judg was God's Law which the Priests Deut. 31.9 11. who bare the Ark of the Covenant of the Lord were to read to the People Exod. 28.29 30. the High Priest who was to bear the Judgment of the Children of Israel upon his Heart continually with his Vrim and Thummim the Breast-Plate of Judgment may bid fair for the chief Place in that Court And tho Moses their King Deut. 1.17 Vid. Dr. Heylin's Certamen Epistolare p. 290. Fortescue c. 1. p. 4. b. Moses call'd Dux Synagogae Orig. sacr p. 150. reserv'd to himself an Appeal from the Sanhedrim it will be difficult to shew that the Seer did not succeed him in that especially since he shews that his Right of being hearkened to or obey'd was as he was a Prophet and the present Bishop of Worcester holds that the Promise of a Prophet to be rais'd up to the People of Israel ought to be understood not only of Christ but also and more immediately of an Order or Succession of Prophets to be obey'd in all things 5. Whereas Mr. Falkner labours against Josephus Maimonides and Schickard to shew that the Kings of Israel might make Arbitrary War or War of choice without the Authority of the Sanhedrim he should have added or the Directions or allowance of any Prophet to have prov'd any thing to his purpose Falkner p. 97. and it will appear that the two Instances which he gives were from the Prophetical Power thus when he says Saul resolv'd upon War
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
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
Worship which though not contain'd in Scripture were us'd in the Primitive Church which is an Individium vagum which some confine to the Life-time of the Apostles some extend to the whole first three Centuries some even to this according to the Doctrine of Infallible Tradition Suppose for Example that in such Assemblies as are form'd with or without leave of the Civil Power the Sign of the Cross be used as a Symbol of dedicating to the Service of Christ those who are let into Catholick Communion and this they judg useful to the present and according to the Primitive Church it will be a Question Whether the retaining of this against a particular Interdict of the Civil Power which is supposable at least is to be justifi'd upon these Grounds Put this Argument into Form and you will find he has more or less in his Conclusion than in his Premises Rightly taken I conceive it lies thus If the Gospel contains a Divine Establishment of Publick Christian Service such Publick Christian Service as has therein Divine Establishment no Authority upon Earth hath any right to prohibit But the Gospel does contain a Divine Establishment of Publick Christian Service Therefore such Publick Christian Service as has therein Divine Establishment no Authority upon Earth has Power to prohibit This being taken for granted he proceeds What no Authority upon Earth has right to prohibit may be done or perform'd notwithstanding the Interdict of the Civil Power But such Service ut supra no Authority upon Earth hath right to prohibit therefore it may be perform'd notwithstanding the Interdict of the Civil Power But he concludes contrary to the Laws of Arguing That those Christians who 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 Now if hereby he means that they who worship God according to the Scriptures even though taking in the Practice of the Apostles have not this Right unless they do it in the manner us'd till or at the end of the first three hundred Years after Christ which is the modestest acceptation of Primitive Times Here by adding of Circumstances his Conclusion has really less than the Premises because it ties up them whom the Scripture has left free and takes from the Authority of Scripture where the Foundation was laid and undermines it by going to support it with the specious words of Apostolical and Primitive which still are of doubtful Acceptation Whereas some believe that no manner of Worship is to be term'd Primitive which was not truly Apostolical that is us'd by the Apostles themselves others call every thing within those three Centuries at least Primitive and therefore Apostolical But to be sure here is a very false way of Arguing if he uses any or else 't is gratis dictum But take it for an Argument and then to his purpose there is more in the Conclusion than in the Premises for the Premises are only of such Publick Service as is contain'd and establish'd in the Gospel and thence he would conclude that whatever has been practis'd in the Primitive Church in the Publick Service of God may be continued notwithstanding the Interdict Nay he would go farther That they may in their Assemblies practise according to their own Judgment of what is useful for the Church's Good If it be said that he means no more than that they may hold such Assemblies for Christian Worship as appear useful that is of Five besides a single Family 22 Car. 2. c. 1. or more as appears useful if he means not that they may assemble and worship in such a manner as appears useful he excludes the Worship out of the Assembly and then it may be a Silent Meeting if the Civil Power please and is less than his Premises warrant I must confess he seems to intend the amusing rather than satisfying his Readers by putting in the true Catholick Communion for he must mean either that what-ever Publick Service is according to the Apostolical and Primitive Church is in true Catholick Communion and so vice versa that what-ever is in true Catholick Communion is according to the Apostolical and Primitive Church so that the Church becomes the Rule to the supplanting of Scripture or else that to worship God rightly and warrantably notwithstanding a Civil Interdict 't is not enough to be according to the Apostolical and Primitive Church unless it be in the true Catholick Communion that is with such Terms of Communion as Christ himself or his Apostles made Catholick and universally obliging and indeed in this sense though he has not observ'd it he comes up fully to the Force of his Argument The great Sanderson whose Judgment where it was according to that lumen siccum the general want of which is to be deplored is of great Authority has gone about to split the Hair between two Extreams in relation to Ecclesiastical Jurisdiction and lays down what he says is most consentaneous to the Doctrine of the Church of England and moreover to the Laws of the Kingdom Sanderson de Obligatione Conscientiaa Pag. 209. Quod Doctrinae Ecclesiae Anglicanae Regni insimul Legibus maximè sit consentaneum Which by the way is an insinuation that the Church of England holds some Doctrine not consentaneous to Law and it may be the Canons of 1640 might be instanced in Now his Notion is that the jus condendi Leges Ecclesiasticas that is the Legislative Power in Ecclesiastical Affairs is in the Bishops Presbyters and other Persons duly elected by the Clergy of the whole Kingdom and duly assembled in a lawful Synod Upon this I would be bold to ask the Question Pag. 188. How this agrees with his Concession That the King is Supream Head and Governour over all Persons and Causes as well Ecclesiastical as Civil since his own Argument is That he who is Supream has the Power or Right to make Laws But the King is Supream wherefore P. 192. according to him the King and not the Clergy hath this Power This I think is the unforc'd Consequence from his other Assertion Potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esse potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hoc est jus ferendi leges quae obligant totam communitatem esse penes eum solum Pag. 186. sive sit is singularis persona ut in statu Regiminis Monarchici sive plures ut in aliis qui cum summâ potestate toti communitati praest Nay he argues that it must needs be so in reason Praecipuus actus gubernationis praecipuam requiret potestatem c. Est autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive legum latio actus gubernationis supremus praecipuus Non ergo potest exerceri nisia persona habente aut saltem in virtute ex authoritate habentis supremam authoritatem jurisdictionem in communitatem sibi
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
Regis Imperio Duo sunto iique Consules appellantur Let Two have Regal Power and let them be called Consuls Also the Judgment of Livy is that the Sovereign Power was translated from Consuls to Decemvirs as before from Kings to Consuls Yet in another Place our Learned Knight according to his usual Inconsistencies with himself tells us that but one of the Consuls had Regality for they govern'd by turns Which by his Favour I take it was only in the Wars which require but one General not at Rome However he confesses that all the Decemvirs had Regality for he pretends not that they govern'd by turns and he says they were chosen to make Laws and though some will question whether a Supream Gubernative implies a Legislative Power no Man will question but a Legislative takes in the other or at least may at the pleasure of him or them in whom it is vested But I would fain know which one of them had right to give Law to the rest or had the Soveraignty in him alone And for it to be in more than one Observ touching Forms of Gov. p. 47. is as we are inform'd by him quite contrary to the indivisible Nature of Soveraignty Yet he grants it may escheat to the Supream Heads of Families that is more than one within that which had been at least immediately before the same Community nay and that it may be exercised by many in other Acts besides the choice of one to head them which he owns in these words Ib. p. 60 61. Those Governments that seem to be popular are kinds of petty Monarchies which may thus appear Government is a Relation between the Governors and Governed the one cannot be without the other mutuò se ponunt auferunt Where a Command proceeds from a major part there those individual Persons that concurr'd in the Vote are the Governors because the Law is only their Will in particular Yet under correction though some of those alter their Wills and some which were against the Law become for it provided that the Ballance continue as 't was when the Law pass'd in this Case the Law cannot be chang'd by those very Persons which made it There can be no Obligation which takes state from the meer Will of him that promiseth the same Power of Kings Fol. 1. and therefore some things which receive Force from the meer Will of the Parties yet continue to oblige against their Wills and the Government is in the united Body not in those who made that Law for the Power cannot be derived from them who chang'd their Wills but out of the whole Body however no one of them were a Monarch and yet what hinders but that there was a Soveraign Power amongst them This Power it seems Sir Robert knows not how to distinguish from the Exercise or Act of Power The Supream Power being an indivisible Beam of Majesty he tells us cannot be divided or settled upon a Multitude God would have it fixt in one Person not sometimes in one part of the People and sometimes in another and sometimes and that for the most part no where as when the Assembly is Dissolv'd it must rest in the Air or in the Walls of the Chamber where they were assembled Agreeable to which he says elsewhere By this means one and the same Assembly may make at one Sitting several Forms of Common-Wealths So that he supposes the different Exercise to alter the form of Government and that it Dissolves when the Exercise ceases or is discontinued which Error is of kin to theirs whoever they are that make a Church barely to relate to Acts of Worship But to wave these Niceties as above their reach who cannot of themselves discern palpable Contradictions and wherein Sir Robert under pretence of Friendship serves them as Joab did Abner I shall take from his thoughts their artificial Dress and lay them open in their naked Deformity that every rational at least honest Man and good Subject may start from them the Devil cannot be so far transform'd into the shape of an Angel of Light but that his cloven Foot must appear Sure I am that he undermines the Right of all present Kings or Families and makes the Right of Succession as doubtful as the Event of War admitting none but Rebels within the possibility of Usurping and thereby yielding that any Foreign Prince may lawfully dispossess one in the Throne or interrupt the Succession And if any Subject can prosper in his Rebellion though the lawful Prince or Heir be alive and He that takes upon him the Power of a Superior sins sufficiently and to purpose Yet God's Providence having dispossess'd the former Anarchy p. 273. Many times by the Act of an Vsurper himself or of those that set him up the True Heir of the Crown is dispossest God using the Ministry of the wickedest Men for the removing and setting up of Kings in such Cases the Subjects Obedience to the Fatherly Power must go along with and wait upon God's Providence who only hath a Right to give and take away Kingdoms and to adopt the Subjects into the Obedience of another Fatherly Power and declar'd in favour of the Usurper the People if we believe him are adopted into the Obedience of another Fatherly Power and not having Right to cast off this Father rais'd up by God himself who only hath Right to give and take away Kingdoms By his Doctrine It was written Tempore Car. 2. all the Endeavours towards his Majesty's Restoration are condemn'd for that 't was against the Title made by the Almighty and any voluntary Act of the People being vain not obliging them any longer than they please as all the Force came from their own Wills Besides no Act of the People having any binding or moral Effect since they are to be meerly Passive they being always and unalterably as to Humane Causes under the Power of the Natural Fathers By these Principles the Usurping Powers would still have lawful Authority But to be sure For in Grants and Gifts that have their Original from God or Nature as the Power of the Father hath no inferior Power of Man can limit nor make any Law of Prescription against them Ibid. according to him any Prince had equal Right with the Ejected Monarch to try for the Kingdom For though Sir Robert in his Preface to his Observations on Mr. Hobbs asks the Question Power of Kings F. 1. How a Subject by Covenant can get a Right of Soveraignty by Conquest when neither he himself hath Right to Conquer or Subjects a Liberty to Submit Yet he has not one Objection against the Lawfulness of a Foreign Prince's conquering at any Time or with any Circumstances which shews that his Definition of Usurpation was intended to take in all unlawful usurpings of Power without which 't is very lame But thus it runs Vsurpation is the resisting and taking away the Power from him Directions for
Act of Resumption For says he Power of Kings Fol. 1. impossible it is in Nature for to give a Law unto themselves no more than it is to command a Mans self in a Matter depending of his own Will there can be no Obligation which taketh state from the meer Will of him that promiseth the same And thus there can be no lasting Obligation at all for he tells us in effect that if there be any Circumstance which makes it not wholly spontaneous 't is voidable But if this Power was not vested in them as Fathers then it comes not to him who has the Kingly Power as a Fatherly Power but meerly as Kingly contradistinct from and superior to the Fatherly But how can the Supream Fathers Nobles or Free-holders transfer their Power According to Sir R. F. it cannot be done in Nature except every One not the major part only consent As to the Acts of the major part of a Multitude it is true says he Patr. p. 44. that by politick humane Constitutions it is oft ordained that the Voices of the most shall over-rule the rest and such Ordinances bind because where Men are assembled by an Humane Power that Power that doth assemble them can also limit and direct the manner of the execution of that Power and by such derivative Power made known by Law or Custom either the greater Part or two Thirds or three parts of Five or the like have Power to oversway the Liberty of their Opposits But in Assemblies that take their Authority from the Law of Nature it cannot be so for what Freedom or Liberty is due to any Man by the Law of Nature no inferior Power can alter limit or diminish The major part cannot in nature bind the rest No one Man or a Multitude can give away the natural Right of another The Law of Nature is unchangeable and howsoever one Man may hinder another in the use or exercise of his natural Right yet thereby no Man loseth the Right its self For the Right and the use of the Right may be distinguished as Right and Possession are oft distinct Therefore unless it can be proved by the Law of Nature that the Major or some other part have Power to over-rule the rest of the Multitude It must follow that the Acts of Multitudes not entire are not binding to all but only to such as consent unto them Hereby it appears that it being taken for granted that the major part have not by the Law of Nature Power to over-rule the rest it must follow that where Power is vested in several as Independent Fathers this can never be parted with without the joint Consent of every such Father But they must always be in Mr. Hobbs his State of War till all the Dissenters are reduc'd And when ever they have natural Power that is strength enough they may try for it again there being no moral Obligation to the contrary For what ever terms they submitted to by Deceit Fraud Error Force just Fear or some great hurt If they diminish that Majesty which was once in them they may vacate the Conditions at pleasure And what then becomes of all Title by Conquest To shew wherein Sir R. has deceiv'd himself and others would be superfluous to the judiciously Learned and thrown away upon them that are not so But I conceive that the meanest Capacity may by this be satisfi'd that he is guilty of many Absurdities and ill Assertions I must needs say by those strong Stroaks which in many places occur I conclude that he was far from being deceiv'd himself for he was Master of more Reason but possibly he practis'd upon the vulgar Understandings to try how easily he could make them swallow Contradictions If it was not with this End I am sure it was with a worse to loosen the Bonds of Government and make way for real Anarchy since he attempts to weaken all other Foundations of it but his own and yet takes away even that too I may reasonably hope that for the future no Man will justify him unless he first shew his Principles to be consistent with themselves and with the right of our present Monarchs few of which will insist upon being natural Fathers of their People or Heirs of such Fathers or Usurpers of the Right of such Fathers and Sir Robert acquaints us with no other Title The natural intendment at least the consequence of all his Writings is when rightly consider'd to encourage Rebellion and dethrone Lawful Kings upon pretence of natural Right and a supposititious Patriarchal Power to degrade the Ecclesiastical and Temporal Peers and herd them amongst the Commons upon the Supposition Free-holders Grand-Inquest p. 38. that the Power of the House of Commons may be founded on the Principles of Nature But that the House of Peers do not nor cannot make any such pretence since as he says there is no reason in Nature why amongst a company of Men who are all equal some few should be pluck'd out to be exalted above their Fellows and have Power to govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the Grace of the Prince And this Grace giving no Right but during the Life of that Prince upon his Death all Arch-Bishops Bishops Earls Barons dignify'd Clergy and others lose their Honours Preferments and whatsoever they deriv'd from the Grace of that Prince or of his Progenitors all falls into Anarchy and Confusion and all are equal in Dignity nor have they any Power to alter that equality unless every individual Plebean for so they all become now freely consent For as he teaches the Laws Ordinances Letters Patents Power of Kings p. 1. Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express Consent or at least by the Sufferance of the Prince following who had knowledg thereof If this be good Doctrine all those Lands and Possessions which the Piety and Devotion of former Princes dedicated to the Church are in a very unsettled condition For that any succeeding Prince may without Injustice take them back they being as much in him as they were in any of his Progenitors before they were granted out The Consequence of this me-thinks should alarm a Party best able if they list to expose him However I hope the abhorrence of such Principles so contrary to the Glory of the Prince and Honour of his Peers not to mention the Rights of Inferior Subjects This done since by the Author of the two Treatises above cited and by the Author of Patriarcha non Monarcha will draw on them a publick Censure at least that some Man of Learning whose Name may give Authority to the Truths he patronizes will more fully convince the unbelieving World of the Danger to the Government from such Goliahs defying the Armies of our Israel This Champion like that of
true Members of the Church of England may be allowed to act without any regard to that Principle which vvould distinguish us from all other Protestants And how much soever some may be concern'd to keep up the Distinction 't is to be hoped that we shall be more wise and more true to the Interest of the Church universal If as the Bishop says the Religion of the Church of England has taught this and this is the distinguishing Character of this Church vvill not Men say that he makes this Church to have a Religion as well as Ceremonies of its own The Mischief of Separation A Prelate more deservedly eminent tells us That the sign of the Cross is the Right of Admission into the Church of England as Baptism into the Catholick But according to this Bishop the Admission into our Church ought to be upon the Condition of subscribing this Doctrin Jovian p. 227. speaking of the Church of England and himself It is she that taught him to preach up Passive Obedience like a Parasite Sycophant and Murderer Poor Man he suck'd it in with his Mothers Milk which his God-fathers and God-mothers were to have promis'd and vow'd in his Name And then tho he had not like Dr. H. who perhaps herein played the Plagiary from Jovian suck'd in this Religion with his Milk he might well have been baptiz'd into it The Reasons of this Bishop's maintaining and endeavouring to propagate his Opinion to the Disturbance of our present Settlement next to his Obligations to the late King which the first misunderstanding was not to erace were apparently 1. The sourness of the Milk which he had suck'd in from his Nurse or Mother which is known to have a great influence upon the Constitution of the Body and that upon the Mind insomuch that Mr. Dreyden and some other such Philosophers have insinuated that the Soul is nothing else but the Temperament of the Body 2. The prejudice of his Education whereby he was taught to believe this to be part of his Baptismal Vow Which being the only Reason that he has thought fit to bless us with as judging it sufficient in following this Episcopal Authority he who was bred a Pagan ought to be a Pagan still And if we believe a topping Divine of the Church of England Vid. Warley's natural Fanatick dedicated to the then Chancellor of England F. the Pagans can produce better Reasons for their Infidelity not only than any we have yet had for this distinguishing Piece of Religion but than can be brought for Belief in the true God without having recourse to the Scriptures interpreted by the Church But the Church which he complemented being the Church of England the Popery of his Notion went down very glibly at that time as the Authority of this single Bishop does with many now 3. The Weakness of his Judgment which is obvious not only in the wording his dying-Paper in such a manner as either condemns his own Church of Singularity or all others of Corruption in departing from that Religion which she alone has the honour to profess but farther yet if he were in his sound Mind at the subscribing his own or Dr. H. his Confession of Faith he would have reflected that tho he might have done enough to quiet his own Mind he had not us'd due means for informing himself of what he ought to press upon others as a necessary matter of Belief having debated it either with Divines who are but second-hand Casuists for this or else with Lay-men of the Gentleman's Opinion who would maintain the Doctrine of Passive Obedience and yet exclude it out of the Controversy which it has rais'd and keeps up I speak not this without grounds for in debate with a Divine of our Church whose great Worth Learning Moderation and Integrity have justly rais'd him above all degrees in Station the Bishop did frankly confess that he believ'd the Question to issue in a Point of Law And for his Satisfaction he had discours'd with a certain eloquent Person whom he nam'd suppos'd to have suck'd in Law with his Milk as the Bishop did his new Divinity nurss'd up since Queen Elizabeth's days But this Person being one who has acted upon the same Principle and makes it his Glory not to have his Opinion alter'd by his place I think no Man who observes what lame work the Lay-Gentleman has made of endeavouring to reconcile the Doctrine of Passive Obedience with Submission to our present Government will wonder that he could not receive Satisfaction from one who held the same Premises with himself but denies the Conclusion This ground for the Bishop's Pertinaciousness I must own is not evident to all but his consulting Dr. H. is who I may well say is hardened and steel'd in his Profession beyond hopes of Conviction since by the Writer of this Vid. Letter to Jovian Ed. An. 1683. p. 14. he was long since admonish'd of having shamefully abus'd those Authorities on which he relied and of having by his Concessions and Contradictions fully set aside all that he would enforce and this at a time when this Writer ran the utmost hazard by exposing a Man thought so highly to have serv'd them who were in Power and called themselves the Government And when the Doctor by refuting the Objections might have had the Reward as vvell as boast of a Triumph Yet for the Comfort of them vvhom he then trampled upon he had disabled himself of his Sting vvhile he quitted the Authority of a Preacher of God's Law for a partial Reporter and Expounder of Man's His Errors or Perversions as far they concern our present Controversy and Government may be reduced to two Heads 1. The Estate in the Crown and Derivation of it 2. The Rights or Prerogatives of the Crown 1. For the first he says this Kingdom is originally hereditary Preface Pag. 13.11.9.78.5.53.60 Jov. p. 38. Pag. 25. Preface Pag. 55. in an inalienable indivisible lineal Succession by the Original Custom and Constitution of the English Government ty'd to the next of the Blood Or as he has it elsewhere fix'd in one Family and lineally descending in Proximity of Blood With this Hereditary Monarchy an Interregnum or Vacancy of the Throne is inconsistent as also its descending upon two Heirs at once The Succession vvhich he describes he says is from God alone who hath given it to the Royal Family for a perpetual Inheritance and hath by his Providence ordain'd that it should come to one of them after the Decease of another according to Birth-right and Proximity of Blood Pag. 58. But God's Providential Appointment of one to reign he grants not of it self to carry the Right beyond the Person in Possession by such Appointment Wherefore tho God's Providence had often given the Roman Empire to a Man and some of his lineal Descendants after him he contends Pag. 46. that the Roman Empire was not Hereditary but Elective by the Suffrage
the Political Constitutions of this Nation made in the compleat Exercise of the Soveraignty I am sure says he in this Realm the Soveraign cannot wrong nor injure his Subject Pag. 226. but contrary to the Political Laws where perhaps he may serve himself of Mr. Hobbs his Distinction Leviathan f. 98. that his Soveraign may commit Iniquity but not Injustice or Injury in the proper Signification And thus a King of England has Right to make his Subjects Slaves when he pleases Tho this naturally follows from the Doctor 's Tenets yet one would have thought that in Prudence this frightful Consequence should have been left for others to find out were it not that there was some reason to believe that by such Prints and Preachments the People had been sufficiently prepared for Slavery But here indeed the Doctor admirably distinguishes that this is with relation to particular Persons whom he may destroy one by one Pag. 192. or Company by Company yet he has no Right to enslave the whole People by altering the Constitution of the Government from a Civil into a Tyrannical Dominion c. Yet even in this Case he allows of no Resistance but that still being upon Supposition that the Power which was restrained in the Exercise a Power to act and not to act was vested absolutely in the Soveraign till he proves it so here all his Authorities from Scripture Homilies or elsewhere fall beside the Question which is of one assuming an absolute or imperial Power when the Constitution gave no more than Political one Vid. Fort. de laudibus Legum Angliae according to his own Quotation out of Fortescue explain'd by the whole course and design of that admirable Vindication of our Laws After all he owns the whole to be a Controversy of Law that all the Laws of Men are the Laws and Ordinances of God And so God's Law places the absolute Soveraignty where-ever Man's Law does Wherefore from the whole it follows 1. That Lawyers are the best Casuists in this Point 2. That if our Law requires true Allegiance to be paid to the King in Possession and allows of all Constitutions made by him with Consent of Lords and Commons duly represented then the new Oath of Allegiance is required by an Ordinance of God and they who refuse it fight against God For the not obeying lawful Authority is evidently more a resisting God than the forcibly opposing a pretence to Authority neither deriv'd from God nor Man This Inference I must own will not reach those Passive-Obedience-Men who believe that Monarchy is the only Govenment of Divine Right or that human Choice or Constitutions cannot intervene in the disposal of the Soveraignty nor yet Dr. H. his own Notion of the Original Entail of the Crown But till the Doctor has answer'd the Letter formerly address'd to him or rejoin'd to Mr. Johnson I should think this enough for his Conviction tho I do not expect that he will confess it For the keeping up a Reputation with a Party in hopes to become an Head is a probable means for making good Terms for ones self And then the Party may shift for themselves And this the Doctor may do the more honourably having dropp'd some Expressions which a Man of less Art and Subtilty than himself may easily turn to the Service of the Government that is uppermost In the mean while the poor Bishop either through the Prevalence of his Distemper the Weakness of his Judgment or Violence of the Doctor 's Importunity has been induced to subscribe a Paper which may do much harm among them to vvhom a Bishop's dying vvords concerning matters of vvhich he was no competent Judg are of more weight than the clearest Reasons The Censure of the Observations upon Mr. Johnson's Remarks P. 6. You have sign'd a kind of Post-humous Apology for your Judges and almost justified the Inhumanity of your Sentence and most undeniable Authorities Upon the Bishop's Principle of affected or acquired I am sure unnatural Religion the scurrilous Observator upon Mr. Johnson's Remarks chews the Cudd in repeating his delight in those Sufferings vvhich are more the Reproach of some of either Gown than Mr. Johnson's vvhich however this vain Writer if Humanity and the Consciousness of his own Deserts could give leave vvould justify ex post facto but out of his great Tenderness allows him the choice of Death as a gentle Commutation of Penance Upon this Principle he imputes to that extraordinary Person perfidious Apostacy from the Church of England and the abdicating his Religion together with his King threatens the Nation with Judgments because they have not kept their Master the Lord 's Anointed Vid. Tit. Page and charges all them who having sworn Allegiance to the late King swear now to this with Perjury Pag. 14. in swearing a direct Contradiction to what was lawfully sworn before as if we might not without danger of contradicting the former Oath go upon the Supposal that there may be a Civil as well as Natural Death of a King that an Oath sworn to a Person as legal King and in relation to the Laws has no force when the Law is either subverted or altered or that the Law may transfer Allegiance from the Person in Possession to a Successor legal by the Constitution of the Government without need of Absolution from any Power whatever Dr. H. would teach this younger Brother that paying Allegiance to such a Successor is part of the Oath tho indeed there is a Question between us what Succession the Constitution requires or warrants Jov. Pref. p. 53. The Doctor contends that Faith and Allegiance is promised to the possible Heirs according to the ordinary Rule of Succession the Original and Fundamental Custom of this Realm to which he gives the addition of Hereditary Vid. Pref. to Predictions of Nostredamus Grebner c. If therefore as I have formerly shewed at large and now in the following Treatise our Allegiance has been duly transferr'd according to the Original and Fundamental Custom of this Realm whether Hereditary or not or how far still being subject to that Custom then this removes all danger of Contradiction and necessity of Papal or other Absolution But the Spirit of Contradiction is a Disease which assimulates whatever comes in its way and it may be very dangerous to meet this Zealot in his Paroxisms lest he drive you to the Wall and force you to confess that a legal King and a Tyrant are but the same under different Names and that the maintaining Tyranny is imply'd in swearing to defend all the Rights of this Imperial Crown and Political not Despotical Monarchy I am not enough dispos'd for Sport to observe all the Follies of his Invective but I am sure the Government will not allow Mr. Johnson's sound Assertion Pag. 3. that no Man can authorize himself in Abatement of the Guilt of denying that Authority which made the Oath since that
I may add Flectere si nequeant superos Acheronta movebunt If neither Heav'n nor Earth afford them Aid They 'll try to fetch it from the Stygian Shade If such things as these do not shew that there was occasion for my gathering together those Precedents and Authorities which evince that in declaring for our present Soveraigns the Nation has proceeded according to their Inherent Power and in due form I at lest shall have the Satisfaction of having in my Capacity serv'd my Country and therein I shall have more than my Labour for my Pains which I may here close with that of Pliny to his Friend Tacitus C. Pliny Ep. lib. 9. Posteris an aliqua cura nostri nescio Nos certè meremur ut sit aliqua non dico ingenio id enim superbum sed studio sed labore reverentia posterûm Pergamus modò itinere instituto quod ut paucos in lucem famamque provexit ita multos è tenebris silentio protulit I know not whether they that come after will have any care of us we surely deserve from Posterity some Care and Esteem I do not say for Ingenuity for that would argue Pride but for Study and Labour Let us only go on in that way which we have enter'd upon which as it has rais'd some few Men to Splendor and Fame so it has drawn out many from Obscurity and Silence THE CONTENTS CHAP. I. THE Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to the Constitution Allegiance to our present King and Queen undertaken to be prov'd lawful both by the Equity and Letter of our Fundamental Law explain'd by the Practice of the Kingdom pag. 1. CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon the Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and his Quotation out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion 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 pag. 11. 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 particular Consideration of him to the second Part. pag. 28. CHAP. IV. The second Head of Positive Law The establish'd Judicature for the Case in question implied if not express'd in the Confessor's Law and asserted in Parliament 12 R. 2. with an account why the Record then insisted on is not now to be found Our Mirror the foreign Speculum Saxonicum Bracton and Fleta explaining the same The Limitation of that Maxim The King can do no Wrong Precedents from Sigibert King of the West Saxons to the Barons Wars in the time of King John confirm'd by occasion of an Objection to the Instances in the Northumbrian Kingdom How far this Monarchy was reputed Hereditary or Elective before the time of W. 1. there touch'd upon Instances of the Peoples Claim of their Rights in the times of W. 1. W. 2. H. 1. King Stephen H. 2. pag. 34. 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 pag. 41. CHAP. VI. The Barons Wars in the time of H. 3. particularly considered H. 3. Crown'd by a Faction Had no right but from Election as his Father had That no Right could descend to him from his Father Lewis while here as much King as H. 3. Three express Contracts enter'd into by H. 3. besides the Confirmations of the Great Charter Those applied to the Consideration of the Wars Three of them under such as seem like the Roman Tribunes of the People Dr. Falkner's Objections against those Wars answer'd The Answer confirm'd by a full instance in the time of E. 1. pag. 46. CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The Power of the People manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the Instances from those Times to the Abdication
omitted The Objections from the Oath against taking Arms and from the Declaration against a Coercive Power over Kings removed by Sherringham and the Triennial Act 16 Car. 1. Pufendorf's due Restraint of the Power of the People Instances of the like Power in other Nations particularly Denmark Swedeland and Norway when under the same King For France Hottoman Sesellius the Author of Les Soupirs de la France esclave Bodin explain'd and shewn to justify King William in his descent hither and the People of England in their asserting the true Constitution of the Government For the German Empire Bodin and Conringius An occasion taken from him to shew the Antiquity and Power of a Palatine in Germany and England Gunterus used to shew that Office in several Countries Loyseau concerning it in France The Distinction in the Author of Les Soupirs between Officers of the King's House and Officers of the Crown The Antiquity and Authority of the Offices of Constable of England of the High Steward and the Earl Marshal which with the Earl of Chester have been as so many Tribunes of the People pag. 57. CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective sub modo 1. From the Saxon Pontifical and the Council of Calcuth An. 789. 2. From the Practice till the supposed Conquest 3. From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's Consent at Coronations 5. The Opinion of Kings themselves 6. The old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The Claims of Right between two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same common Stock pag. 72. CHAP. IX The Fourth Head of Positive Law A short Recapitulation of what has been prov'd An actual Discharge of Oaths of Allegiance to J. 2. shewn from the Authority of the Judgment past His usurping a Legislative Power leaving the Kingdom without providing for the Administration of Justice and going into France This confirmed by Rastal Lord Hobart Justinian's Digest The Rescript of Theodosius and Valentinian Pufendorf de Officio hominis civis His Elementa Juris prudentiae His Treatise de Jure Gentium Grotius Pufendorf de Inter-regnis Knichen's Opus Pol. Philip Paraeus A particular Consideration of what the Learned Knight Sir R. Pointz says seeming against these Authorities but shewn in truth to confirm them and to bring the Rules of the Civilians to our side That the Crown came not by Right of Descent to the next in Blood after the discharge of the Allegiance to J. 2. The Arguments for the People's being restor'd to the Liberty which they had before the Settlement of the Crown enforc'd from a particular Consideration of the State of the Settlement Where is it shewn how the word Heirs may be look'd on as restrain'd in the first Settlement on Heirs by Gomezius his Rule The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements and their Effects in relation to the Queen Mary and Elizabeth and J. 1. The Recognition to J. 1. not extending to his Heirs And question'd Whether the Recognition was not his best if not only Title With a modest Inference pag. 84. CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The use of the Triennial Act 16 Car. 1. against the necessity of common Form The Form and proceedings of the Convention assembled upon the Death of H. 3. The Dilemma used by the Formalists answer'd with a Distinction Pufendorf's Answer to Hobbs Another Passage of his applied to a Passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of the late Assembly would be conclusive to the Nation Neither forty days Summons nor Writs nor yet Summons to a Parliament Essential And this confirmed not only by the Precedent 12 Car. 2. but by two Precedents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves and of their own appointing The Objection of want of Form answered out of the Civil Law and its Reasons applied to our Case Objections made by the Author of Elimenta Politica considered The Conclusion pag. 98. APPENDIX Among other things SIR Robert Filmer and some of our Divines plaid against one another in relation to Ecclesiastical and Civil Power and Sir Robert against Himself pag. 1. Allegations in behalf of the High and Mighty Princess the Lady Mary now Queen of Scots against the Opinions and Books in the Part and Favour of the Lady Katherine and the rest of the Issues of the French Queen touching the Succession of the Crown Written in the time of Queen Elizabeth Reflections on Bishop Overal's Convocation-Book THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful King and Queen CHAP. I. The Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to
Preservation of the Constitution in vertue of which they might declare King William and Queen Mary King and Queen of England and Ireland with all their Dependencies tho J. 2. was alive at the time of such Declaration 2. That this rightful Power was duly exercis'd in the late Assembly of Lords and Commons and afterwards regularly confirmed by the same Body in full Parliament 1. As to the Nations rightful Power I shall not go about to refute the fond Notion of an absolute Patriarchal Power descending from Adam to our Kings in an unaccountable way because tho if this were true there could be no more Compact between Princes and their People than is between Fathers and Children for establishing the Rights of Fatherhood Patriarcha non Monarcha Ed. An. 1681. Two Treatises of Government In the former the false Princeples and Foundation of Sir Robert Filmer and his Followers are detected and overthrown Ed. Anno 1690. Heylyn 's Certamen Epistolare p. 386 387. yet the difference between a Patriarchal and Monarchical Authority is so well stated and prov'd by my Learned Friend Mr. Tyrril that few besides the unknown Author of the two late Treatises of Government could have gained Reputation after him in exposing the false Principles and Foundation of Sir Robert Filmer and his Admirers one of which Dr. Heylyn in his Letter to Sir Edward Filmer the Son speaking of his Father says His eminent Abilities in these Political Disputes exemplified in his judicious Observations on Aristotle's Politicks as also in some Passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this Cause which I would not willingly should be betrayed by unskilful handling and had he pleased to have suffer'd his excellent Discourse called Patriarcha to appear in publick it would have given such Satisfaction to all our great Masters in the Schools of Polity that all other Tractates in that kind had been found unnecessary This he says might have serv'd for a Catholicon or general Answer to all Discourses of this kind Since Sir Robert Filmer and Dr. Heylin were our late Observator's Predecessors in guiding the Inferior Clergy 't is not to be expected that they should nicely enquire into the Errors and Contradictions of their Leaders but the Doctor 's scandalous Reflections upon the Reformation in England and the Misfortunes of Charles the First in some measure at least occasion'd by the Countenance given to Sybthorpism Manwarism and Filmerism may justly raise a Prejudice against these Men and their Doctrines in the thinking Laity and those who are not able to think of themselves may take every Morning some Pages of the two Treatises of Government for an effectual Catholicon against Nonsense and Absurdities which have nothing to recommend them but Stile and Names cried up among a Party Vid. Dr. Heylyn's Stumbling-Block of Disobedience and Rebellion Wherefore I may well think that I may pass over the Stumbling-Blocks which such Men lay in the way to my Proof that the Power whereby this Nation is govern'd is originally under God derived from the People and was never absolutely parted with Hooker 's Ecclesiastical Polity lib. 1. f. 10. Many have cited the Authority of the Judicious Hooker till it is thread-bare to prove that it is impossible there should be a lawful Kingly Power which is not mediately or immediately from the Consent of the People where 't is exercised The present Bishop of Worcester whose Name will undoubtedly be held in no less esteem in future Ages Irenicum p. 132. is as express in his Irenicum That all civil Societies are founded upon CONTRACTS and COVENANTS made between them which saith he is evident to any that consider that Men are not bound by the Law of Nature to associate themselves with any but who they shall judg fit That Dominion and Propriety were introduced by free Consent of Men and so there must be Laws and Bonds fit Agreement made and Submission acknowledged to these Laws else Men might plead their natural Right and Freedom still which would be destructive to the very Nature of those Societies When Men then did part with their natural Liberties two things were necessary in the most express Terms to be declared 1. A free and voluntary Consent to part with so much of their natural Rights as was not consistent with the well-being of Society 2. A free Submission to all such Laws as should be agreed upon at their entrance into Society or afterwards as they see Cause But when Societies were already entered into and Children born under them no such express Consent was required in them being bound by virtue of the Protection which they find from Authority to submit to it and an implicit Consent is suppos'd in all such as are born under that Authority The Account which the Learned Cragius gives of the first Institution of Kingly Government seems to deserve not to be omitted Quum multa iracundè multa libidinosè multa avarè fierent c. Cragius de Feudis f. 2. Vid. The like account in Sir Will. Temple 's admirable Treatise of Monarchy among his Miscellanies So Bracton Rex à regendo non à regnando Jus dicebant When many things were acted wrathfully many things lustfully many things avariciously the best Man of a Society was chosen who might take Cognizance of the Offence or Injury and determine what was equal among Neighbours Thus were Judges constituted in every City for the sake of distributing Justice These were call'd Kings for Kings at the beginning were no more than Judges having their Denomination from ruling Each presided over his own City that is administred Justice Hence that multitude of Kings in Holy Writ To descend from generals to the Romans in particular whose Emperors were suppos'd to have been the most absolute and that the Obedience to Higher Powers required in the Gospel is to be taken from the measures of Subjection due to them Dr. Hicks Dr. Hicks his Jovian the great Maintainer of the Absolute Power of Monarchs takes a great deal of Pains to shew that the Empire was not Hereditary and by Consequence that their Power was immediately vested in the particular Emperors by the Consent of the Legions or other People who set them up Saravia as careful of the Rights of Princes owns Saravia de Imp. Author f. 159. That by the Roman Law the Crime of Laesa Majestas or Treason is defin'd to be that which is committed against the People of Rome and its Security Where he confines it to Crimes against the People only Vid. Tacitus p. which indeed agrees with the dying Speech of an old Roman in Tiberius his time But that in the Eye of our Law there may be a Laesa Majestas Vid. Glanv p. 1 Crimen quod in legibus dicitur crimen Laesae Majestatis ut de nece vel seditione
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
eum qui judiciorum particeps sit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and (d) Hermanni Conringii Exercitationes Acad. de Civibus Imperii p. 3. Ordines Imperii Incolae Conringius his Cives to be too restrain'd the first limiting it to them that have shares in the Judicature and Magistracy the other to the States and Orders of the Empire allowing no others to be more than Inhabitants or Strangers Whereas the Civitas must manifestly reach to that diffus'd Body who are either capable of being part of the Ordines or Great Council or of being represented in it for otherwise the common subject of Power must needs fail as often as there are Intermissions of the States or Great Council And 't is plain that Conringius his Reason why none but the Status vel Ordines Imperii are more than Inhabitants reaches farther Every Civis he says is a Companion of the Civil Society and it is the part of a Companion to give his Suffrage and Judgment of things belonging to the Society This certainly he does virtually who gives his Suffrage in the choice of them who conclude the rest and if this should not make a Citizen there could be no means of exerting any moral or lawful Power in any Society upon the determination of the Authority of those particular Persons who had constituted any dissolv'd Assembly of States unless the sole Power resided entirely and absolutely in the Person or Persons with whom they had lodg'd a Trust for summoning them together that is giving publick notice of the Time and Place for meeting Indeed if none but the Ordines were part of the Civitas Grotius his Distinction between the common 〈◊〉 proper or particular Seat of Power would be very vain wherefore I take his Cives to be the same with Pufendorf's Quorum coitione consensu primò Civitas coaluit aut qui in illorum locum successerunt nempe Patres familiâs Sam. Pufendorf de officio Hominis Civis p. 265. By whose Conjunction and Consent the Civil Society first came together or they who succeeded into their rooms to wit the Masters of Families Indeed if we consider it will appear that never any Empire or other Civil Society was founded but there was an Original Contract or Agreement among the People for the founding of it How was the most absolute Authority of a single Person ever rais'd or maintain'd but by the undisciplin'd Rabble or disciplin'd one of an Army and what could keep them together but a Contract or Promise of Pay or Spoil to the Leaders or Officers who were to be undertakers to the common People or the Souldiers I remember Mr. Hobbs in his History of the Civil Wars of England Hobbs his History of the Civil Wars blames King Charles the First for engaging in a War against the Parliament while at the same time he pretended to justify what he did by Law and to leave all that that assisted him to answer to the Law when he should have encouraged them to have been hearty on his side by hopes of the Spoil of the Nation but whatever may be the Inducements to fight for an Authority lawfully establish'd before surely no People ever submitted to any without a prior Obligation but where they had hopes or expectations of Advantage or Ease the obtaining of which if not made a Condition was ever implied Suppose a Colony of some hundreds of Men among which one is chosen General Head or Leader without any particular or express Contract and his Son suffered to succeed after him Is the Power either of Father or Son antecedent or obligatory before the free Consent of the rest has past Or is it to be imagined that either the Father or his Successor have this People as an Inheritance given them from above to dispose of their Lives and Fortunes without any regard to the Good of All The most sensible of them who utterly deny that any Power can be derived from the People as fighting against their fancied Divine Right of Kingship own that the People have a Right to design the Person Vid. Sacrosanct Regum Majest Potestas designativa personae vel collativa Potestatis tho not to confer the Power only these Men will have it that the extent of the Power of a King is ascertained by God himself which I must needs say I could never yet find prov'd with any colour But to avoid a Dispute needless here since the Question is not so much of the Extent of Power as of the Choice of Persons or Derivation of it Whether any Choice is allowable for us must be determined by the fundamental or subsequent Contract either voluntary or impos'd by Conquest and 't is this which must resolve us whether the Government shall continue Elective or Hereditary to them that stand next in the course of Nature guided to a certain Channel by the common Law of Descents or limited only to the Blood with a Liberty in the People to prefer which they think most convenient all Circumstances considered And if our Constitution warrants the last then we may cut the Gordian Knot and never trouble our selves with Difficulties about a Demise or Cession from the Government or Abdication of it for which way soever the Throne is free from the last Possessor the People will be at Liberty to set up the most deserving of the Family or whom they judg so unless there be subsequent Limitations by a Contract yet in force between Prince and People which being dissolv'd no Agreements take place but such as are or have been made among themselves Vid. infra cap. In which Case whatever ordinary Rule they have set themselves they may alter it upon weighty Considerations And that the People of England have lawfully and rightfully renounc'd their Allegiance sworn to J. 2. and transferr'd it to the most deserving of the Blood notwithstanding any Oaths or Recognitions taken or made by them I shall evince not only from the Equity of the Law and Reservations necessarily implied in their Submission to a King but from the very Letter explain'd by the Practice of the Kingdom both before the reputed Conquest and since CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon this Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and Quotations out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion
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
Tom. 4. f. 154. Resp circumscripta in integrum restituitur perinde ac pupillus vel adolescens Vid. Cic. de Legibus Salus populi Suprema Lex esto Inter Leges 12. Tabularum of which Tacitus says Accitis quae usquam egregia compositae duodecim Tabulae finis aequi juris Tacitus Ed. Plant. p. 90. and at liberty to renounce the obligations which it has entred into against its benefit which is the Supream Law But I shall stop their Mouths who object these Statutes and maintain That according to what themselves receive for Law the Parliaments which Enacted these Declarations had no power so to do and then the Law must stand as it did For this let us first hear Mr. Sheringham whose Authority few of these Men dispute They that lay the first foundation of a Commonwealth Sheringham of the King's Supremacy p. 41. have Authority to make Laws that cannot be altered by Posterity in the Matters that concern the Rights both of King and People For Foundations cannot be removed without the Ruin and Subversion of the whole Building Wherefore admit the Acts had been duely made according to him they would be void if the Fundamental Law were as I have shewn However I am sure I can irrefragably prove to them who will not have a Nation sav'd without strict form of Law That the Parliament which made those Acts had no Power at the time of making them being by the express words of a former Statute repealed Triennial Act 16 Car. 1. Nota There was no attempt to repeal this till 16 Car. 2. The Triennial Act 16 Car. 1. provides in a way not easily to be defeated not only for holding a Parliament once within three years at least but that all Parliaments which shall be Prorogued or Adjourned or so continued by Prorogation or Adjournment until the Tenth of September which shall be in the third year next after the last day of the last Meeting of the foregoing Parliament shall be thenceforth clearly and absolutely dissolved Now say I That Parliament which Enacted these Laws had sat beyond that time Ergo c. These were made in the Parliament next after the Convention which brought in the King Brook tit Commission N. 21. Ib. tit Officer n. 25. vid. Stat. 17. C. 1. Every thing or things done or to be done for the Adjournment Prorogueing or Dissolving of this Parliament contrary to this present Act shall be utterly void Anno 1647. Vid. Hist of the Civil-Wars f. 207. which they I am sure will not call a Parliament Wherefore we must go back to the first long Parliament which upon their own Rule Rex est caput finis Parliomenti was dissolv'd by the Death of C. 1. Anno 1648. notwithstanding the Act for making it perpetual which indeed by the words of it seems only to provide against any Act of the King to the contrary without their consent but by the Death of the King that Parliament lost the being which before it had as it was under him when it was Parliamentum nostrum the Parliament of Charles 1. and so expired Anno. 1648. by Act in Law And perhaps it s own breaking up in Confusion before was in Law an Adjournment sine die working a dissolution by either of which that Parliament was Dissolved more than three years before the meeting of that Parliament which made the Statute in question which Parliament Assembled Anno 1661. and was ipso facto dissolved when it attempted to make those Statutes it having been continued by Prorogation or Adjournment beyond the Tenth of September in the third year after the Dissolution of the last Parliament of Charles the first which was the next foregoing legal Parliament according to strict form For the Parliament which brought in Charles 2. Anno 1660. was not summoned by the King's Writs consequently the Parliament 1661. having according to them no power after it had continued as above whatever was the Ancient Law in this Matter remains as it did before those Laws If it be objected That the necessity of the times had dispensed with the Letter of the Triennial Act as to this Particular 1. They who would plead these Statutes cannot urge this since they will not allow of greater necessity to Authorize the Maintaining and Restoring the Constitution But surely however necessity might support our Laws it shall not such as alter the Constitution but every legal advantage shall be taken for restoring it 2. The necessity was not absolute for the first Parliament of Charles the Second might have continued together as long as they could sit without Prorogation or Adjournment and be good for a day at least time enough to have Repealed the former Statute as to that part and to qualify themselves for a longer continuance In short they with whom our Dispute is are either for the unalterableness of Fundamentals according to which what I have shewn remains notwithstanding all efforts to the contrary or else all of a sudden they have a mighty Zeal for the strict Letter of the Law by which that Parliament which endeavoured to alter the Fundamental Contract was ipso facto dissolved before such attempt However since the Question is not about a Coercive Power over Kings but barely concerning Allegiance to them Quum aufertur ratio juramenti juramentum cessat ratione eventus qui casus est eorum qui juraverunt se obedituros Domino aut Principi alicui qui postea cessat esse talis Amesius de Juramento lib. 4. c. 22. whenever he who was King ceases to be so either by the Act of God or the Law the Obligation of Allegiance necessarily determins as the subject matter of it fails But lest the Liberty allowed in extraordinary Cases be used as a Cloak for maliciousness I shall restrain it with the Authority of the Learned Pufendorf In Contracts by which one is made subject to Another Sam. Pufendorf de Interregnis p. 272. this has the Right of Judging what the Subject is to perform and has also a Power conferr'd of compelling him to performance if he refuses which Coercive Power is by no means reciprocal Wherefore he who Rules cannot be called in question for breaking his Contract Omnem Reipublicae curam abdicaverit dolo malo unless he either wholly Abdicate the Care of the Government or become of an Hostile mind towards his People or manifestly with evil Intention depart from those Rules of Governing upon observance of which as upon a Condition the Allegiance of the Subjects depends Which is very easie for any one who Governs always to shun if he will but consider that the highest of Mortals are not free from the Laws of Humane Chance But that the Judicial power of the people so qualified as above is not peculiar to England might appear by the Customs of most Neighbouring Nations For Denmark Sweedland and Norway which had anciently three distinct Negatives in the Choice of a
and correct and that in other matters they share with the King in every part of the Soveraignty He adds If we have need of farther proof the name Parliament which all our Ancient Histories give the Assembly of States may furnish us with one This is the name which the English give this Assembly which partakes of the Soveraignty with their King The French and the Ancient Britains had the same Laws and the same Language they Governed themselves by States gave the same name to their Assemblies And without doubt they had the same Authority Nay it is certain that the States had formerly in France the same Power that the Parliaments have in England As this Author makes the Liberties of the English Nation and the Power of its Parliament an Argument of the Right of the French Nation Bodin who wrote after their Parliament at Paris had taken the place of the Assembly of States makes England a parallel to France Turky Persia Muscovy Bodin de Repub lib. 2. c. 4. ed. A Lyon p. 302. Ib. Cap. 3. p. 286. This was H. 2. for the absolute Soveraignty of their Princes but that he was little acquainted with the History of the Govenment of England appears in that he supposes that Henry who procured his Son to be Crowned in his life time to have been the Son of W. 1. Bodin p. 300. Even where a Prince is the most absolute he admits That if he Govern Tyrannically he may be lawfully killed by a Foreign Prince and that it is a noble and magnificent action for a Prince to take Arms to rescue a people unjustly oppressed by the cruelty of a Tyrant as did the Great Hercules who went about the World exterminating the Monsters of Tyrants and for his high exploits has been Deified So did Dion Timoleon Aratus and other generous Princes who have bore the Title of Chastisers and Correcters of Tyrants This says he was the sole cause for which Tamerlain Prince of the Tartars denounced War against Bajazet King of the Turks And when he Besieged Constantinople said he came to chastise his Tyranny and deliver his afflicted people And in fact he vanquished him in a pitch'd Battel in the Plain of Mount-Stellian and having killed and put to flight Three Hundred Thousand Turks he kept the Tyrant in a Golden-Cage till he died Ib. p. 301. And in such case it matters not whether the Virtuous Prince proceed against the Tyrant with Force or Art or way of Justice True it is if the Virtuous Prince has taken the Tyrant he will have more Honour if he make his Process and punish him as a Murderer or Parricide or Robber rather than to make use of the Law of Nations against him This passage in Bodin shews beyond contradiction That if he were now alive and not of the Romish Superstition he would have extolled and justified the Heroick undertaking of King William for the delivery of this Nation But the ground of the justification is That even the most absolute Soveraign may injure his Subjects as no doubt but he would if he treated them contrary to natural equity and his own established Laws Jovian p. 226. whereas the Author of Jovian having set up an Imperial Power above all Political Constitutions says In this Realm the Sovereign cannot wrong or injure his Subjects but contrary to the Political Laws And by consequence not at all if the Political Laws are to give way to the Imperial Wherefore I wonder not to find him a Subscriber to the late Bishop of Chichester's Paper which condemns Swearing Allegiance to our present King and Queen But Bodin as he justifies our King William in freeing us from an oppressing Monarch no less clears the Subjects of England in joyning with him upon supposition that the Constitution of our Government is not rightly understood by him Bodin p. 301. But says he as to Subjects we ought to know whether the Prince be absolutely Soveraign or whether he is not absolutely Soveraign For if he is not absolutely Soveraign it is necessary that the Soveraignty be in the people or in the Lords In this case there is no doubt but it is lawful to proceed against the Tyrant by way of Justice if we can prevail against him or by way of Deeds and Force if we cannot have Reason otherwise as the Senate did against Nero in one case and against Maximin in another so that the Roman Emperors were nothing else but Princes of the Common-wealth that is to say the First and Chief the Soveraignty remaining with the people and the Senate As I have shewn this Common-wealth may be called a Principality Altho Seneca speaking in the person of his Scholar Nero says I alone among all Men living am elected and chosen to be God's Vicegerent on Earth I am Arbiter of Life and Death I am able at my pleasure to dispose of the estate and quality of any Man True it is that in fact he usurped this Power but of right the State was but a Principality where the people were Soveraign As also is that of the Venetians who condemned to death their Duke Falier and put to death others without form or figure of Process Insomuch that Venice is an Aristocratical Principality where the Duke is but Cheif and the Soveraignty remains with the States of the Venetian Noblemen And in the like Case the German Empire which also is but an Aristocratical Principality where the Emperor is chief and first the Power and Majesty of the Empire belongs to the States who in the year 1296. deposed the Emperor Adolph and after him Wenceslaus in the year 1400. in form of justice as having jurisdiction and power over them How much soever Bodin was mistaken in relation to the Government of England he seems herein less a Stranger to that of the German Empire The Learned Conringius in his account of the German Judicatures Hermanni Conringii Excercit De Judiciis p. 251. tells us 't is difficult to give an account of them for some Ages next after the time of the Francs But beginning with the Causes of Kings themselves whom he shews according to Ancient Custom to have been subject to some jurisdiction upon the account of their Government The Causes says he Ib. p. 252. of their Kings belonging to the administration of the Government as anciently so afterwards were frequently agitated in the Great Councils of the Kingdom So the Emperor H. 4. was accused in a Great Council and by its Authority divested of his Royal Dignity The same befel Otto 4. and * This about the year 1251. No new Emperor was chosen till Anno 1273. after Twenty two years vacancy Prideaux Introd p. 245. Frederic 2. But says he Two things sometimes hapned much differing from the ancient Usage One is That the Power of the Council of all the States began to pass to the Electors only after Charles 4. Novo more The Duke of Bavaria made
to keep Men in obedience to him who has the Power of punishing the disobedient Wherefore the meaning may be That no Man who departs from his Duty of Allegiance to the present King shall save himself by pleading that he had been in Arms or had done him any signal Service In short this was to be no Corban to Answer for any following departure from Duty But as the body of the Act provides only for the Indemnity of them who pay due Allegiance to the King de facto this Proviso may be particularly for the Kings own Security in affirmance of the Common Law which makes all Resisting the Possessors of Crowns Treason in single persons And the sense may run thus Provided that whoever declines from Allegiance to the King in possession to help another to the Crown shall not if the first happen to be Restor'd plead that the other became King de facto However this does not in the least diminish the Obligation of Allegiance to the King who shall obtain possession by the Ousting another And I suppose by this time 't is pretty evident That both the Body of the Act and the Proviso relate only to a King de facto and endeavour to free the Nation from nice speculations about the Right to the Crown For confirmation of what I have shewn to prove that the English Monarchy has been Elective within the Royal Family it may not be improper to observe how it has been anciently in Germany and France See this distinction in Nauclerus Aimonius lib. 1. c. 4. Les Soupirs de la France esclave Mem. 6. p. 83. P. 84. or France Germanick from whence we came and France Gallick branch'd out from the Ancient Germans Aimonius says ' That the Francs chose a King and plac'd him upon the Throne in imitation of other Nations which the Author of the Sighs of France inslav'd renders the other Nations of the Gauls and Germans And that Author puts it by way of question implying the stronger affirmation Whether it does not appear throughout the whole History that the French have preserved to themselves the Right to chuse within the Royal Family him who appeared to them the most fit to Protect Defend and Govern them well The German Conringius Esse quid hoc dicam vivis quod fama negatur Conringius de Negotiis Conventuum Imperii p. 417. being an Author already possess'd of that Credit which may spring out of the French man's grave I shall transcribe Conringius to this Point more at large Altho says he some think that our Kings anciently came to their Power by Succession others by Election yet it seems fit to say that a middle way was in use That the Children of Kings or Emperors did not succeed unless approv'd of by the States and yet were not pass'd by if they were worthy of the Empire For they who were come from the Royal Stock were believed to tread in the steps of their Ancestors and that they would not only preserve but exceed the glory of their Progenitors according to that of Aristotle Aristot Rhet. lib. 2. c. 16. They who are of Noble Birth are desirous of Praise and Glory For it is the nature of men to desire to encrease not to diminish or lose the goods which they had before But when the Royal Family was extinct then it was permitted the States to raise to the Empire whomsoever they pleased by an Election in every respect free So the Caroline Family being extinct the Kingdom of the Western Francs was conferr'd upon Henry afterwards called Auceps by a most free Election of the Francs and Saxons of which Translation of Power Regino in his Chronicles of the year 920 says thus Duke Henry is chosen King by the Consent of the Francs Almains Bavarians Thuringians and Saxons when however he had no prior Right to the Empire before the other Princes In the same manner afterwards Lothair a Saxon Conrade 2. a Suede Otho 4. a Saxon and many more obtain'd the Empire of Germany in the right of pure Election as Onuphrius witnesses ' But whether they were of the Royal Family Onuph Panvin c. 5. de Comitiis Imp. or obtaind the Kingdom ' only and merely by Election they were chosen by the States and People in full Conventions For which he instances in the Elections of Sigebert the Son of Dagobert In plenis Comitiis Charles and Charlemain chosen together upon the death of their Father Pipin Of Charles upon the death of his Brother and Lewis the Pious after him This manner of Chusing within the Royal Family he observes to have remain'd in the Empire to the time of H. 4. but that it was interrupted by Pope Gregory 7. who under shew of advancing the Liberties of Germany made way for the Papal Influence and Tyranny Having observed the mischief of absolute Elections he adds Indeed I should not wholly prefer mere Succession Election being quite taken away but I think this manner of Election to be best where great account is had of Blood and no Son worthy to succeed his Father is put by That the way of constituting Kings mixt with Hereditary Succession and free Election was very suitable to the manner of Ancient Germany appears at least from hence that afrer that meer free Election had been introduc'd by Hildebrand all things in Germany were in Commotion and Disorder CHAP. IX The Fourth Head of Positive Law A short Recapitulation of what has been prov'd An actual Discharge of Oaths of Allegiance to J. 2. shewn from the Authority of the Judgment past His Vsurping a Legislative Power Leaving the Kingdom without providing for the Administration of Justice and going into France This confirmed by Rastal Lord Hobart Justinian's Digests The Rescript of Theodosius and Valentinian Pufendorf de Officio hominis civis His Elementa Juris prudentiae His Treatise de Jure Gentium Grotius Pufendorf de Inter-regnis Knichen's Opus Pol. Philip Paraeus A particular consideration of what the Learned Knight Sir R. Pointz says seeming against these Authorities but shewn in truth to confirm them and to bring the Rules of the Civilians to our side That the Crown came not by Right of Descent to the next in Blood after the discharge of the Allegiance to J. 2. The Arguments for the People's having been restor'd to that Liberty which they had before the Settlement of the Crown enforc'd from a particular Consideration of the State of the Settlement Where it is shewn how the word Heirs may be lookt on as restrain'd in the first Settlement on Heirs by Gomezius his Rule The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements and their effects in relation to the Queens Mary and Elizabeth and J. 1. The Recognition to J. 1. not extending to his Heirs And question'd Whether the Recognition was not his best if not only Title With a modest Inference That the People of England were lately restor'd
of Foreign Princes That this was a Question in Q. Elizabeth's time appears by a Letter from Lethington Secretary of Scotland to Cecil Secretary to Q. Eliz. Appendix to Vol. 2. of the Hist of the Ref. f. 269. This appears farther from the Treatise at the end of the Appendix which seems to admit That the Right to the Crown would have been in the issue of the younger Daughter being born in England if the Birth had been without blemish since there was no means of being sufficiently inform'd of the Circumstances of the Birth neither the Common or any Statute-Law affording any Means of proving it as appears by the Statute 25 E. 3. which for the Children of Subjects only born out of the King's Allegiance in Cases wherein the Bishop has Conusance allows of a Certificate from the Bishop of the Place where the Land in question lies if the Mother pass'd the Seas by the King's License But if our Kings or Queens should upon any occasion be in Foreign Parts 't is to be presum'd that they would have with them a Retinue subject to our Laws who might attest the Birth of their Children and be punish'd if they swear falsly Stat. 25. E. 3. Wherefore 25 E. 3. 't is declar'd to be the Law of the Crown That the Children of the Kings of England ENFANTZ DES ROYS as the Record has it in whatever Parts they be born be able and ought to bear the Inheritance after the Death of their Ancestors Yet this is most likely to be meant of those private Inheritances which any of the Kings had being no part of the Demeasns of the Crown since the Inheritance of the Crown was not mentioned nor as has been shewn was it such as the King's Children were absolutely entitled to in their Order The most common acceptation of Children is of a Man's immediate Issue Vid. 1. Anderson f. 60 61. A Devise to the Wife after her Decease to the Children Vid. Wild 's C. 6. Rep. In Shelley 's C. 1. Rep. f. 103. A Gift to a Man semini suo or prolibus suis or liberis suis or exitibus suis or pueris suis de corpore As where Land is given to a Man and his Children Who can think any remote Descendants entitled to it Nor could it extend farther in the Settlement of a Crown 37 E. 3. c. 10. a Sumptuary Law was made providing for the Habits of Men according to their Ranks and of their Wives and Children ENFANTZ as in the former Statute of the same Reign Now altho' this should extend to Childrens Children born in the same House it could never take in the Children of Daughters Vid. Sir James Dalrimple's Institutions of the Laws of Scotland f. 52. forisfamiliated by Marriage nay nor to those of such Sons as were educated in a distinct Calling from their Parents Farther the very Statute of which the Question is cuts off the Descendants from Females out of the number of a King's Children when among other Children not of the Royal Family it makes a particular Provision for Henry Son of John Beaumond Vid. Dugdale 's Bar. 2. Vol. Beaumont who had been born beyond Sea and yet Henry was by the Mother's Side in the Fourth Degree from H. 3. for she was Daughter to Henry Earl of Lancaster Son of Edmund Son to H. 3. Had this Henry been counted among the Children of a King 't is certain there had not been a special Clause for him among other Children of Subjects Nor does the Civil Law differ from ours in this Matter for tho under the name of Children are comprehended not only those who are in our Power but all who are in their own either of the Female Sex or descending from Females yet the Daughters Children were always look'd on as out of the Grandfather's Family Just Inst lib. 1. tit 9. So Bracton l. 1. c. 9. Greg. Tholos Syntagma juris universi f. 206. Spiegelius tit Liberi Non procedere in privilegiis quae generaliter publicae utilitati derogant Vid. Antonii Perezi Inst Imperiales p. 21. Vid. Cujac ad tit de verborum significatione p. 147 230. according to the Rule in the Civil-Law transcribed by our Bracton They who are born of your Daughter are not in your power And Privileges derogating from Publick Vtility were never thought to reach them as a Learned Civilian has it A Daughter is the end of the Family in which she was born because the name of her Father's Family is not propogated by her And Cujacius makes this difference betweene Liberi and Liberi Sui Sui he says is a Legal Name the other Natural The former are only they who are in a Man's power or of his Family and Liberi strictly taken he will have to go no farther But in truth Considering the purview of the Statute which we are here upon Children in it seems to be restrain'd to Sons and Daughters without taking in the Descendants from either the occasion of the Law being the Births of several ENFANTZ in Foreign Parts which could be but Sons or Daughters to the immediate Parents whether Kings or Private Persons 3. But however this may be enough for my purpose That there is no colour of any Settlement in force but that 1 H. 7. And admitting that to have continued till J. 2. had broken the Original Contract yet that being broken the present Assembly of Lords and Commons had full as much Authority to declare for King WILLIAM and Queen MARY as the Parliament 1 H. 7. had to Settle the Crown For H. 7. could give them no Power but what he had received immediately from them Nor is it material to say He was Crown'd first since as I have shewn the Crown Confers no Power distinct from what is deriv'd either from an immediate or prior Choice But if there is reason from what I have shewn to believe that even the limitations in Henry VII th's Settlement were all long since spent then at least it is not to be doubted but the interest of J. II. being determined the People of England might lawfully and rightfully declare for King William and Queen Mary as being the most deserving of the Blood Royal which if they were free to do not to submit to be Gover'n'd by Their present Majesties would have been the highest Ingratitude that could be CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The Vse of the Triennial-Act 16 Car. 1. against the necessity of Common Form The Form and proceedings of the Convention assembled upon the death of H. 3. The Dilemma used by the Formalists Answer'd with a Distinction Pufendorf's Answer to Hobbs Another passage of his applied to a passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts 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
of the General Councils of the Kingdom at least the Charter which he then granted as I before observed makes full proof of it Vid. Sup. f. 172 178. 'T is obvious that the Convention 1 H. 1. was far less solemn and had much less ground to be look'd on as a Parliament than ours and yet it being for removing a Vacancy and Setling the Government when the Nation was threatned with an Invasion from Duke Robert they thought the necessity of time would sufficiently excuse the absence of Form But had there been no Warrant from former times for the late manner of proceeding the people of Legal Interests in the Government having been restor'd to their Original Right Who can doubt but they had an absolute power over Forms That they were not call'd a Parliament I hope will not be an Objection since the Word is much less Ancient than such Assemblies Nay I find it us'd in the 25th of E. 1. for a Meeting of the People without the King Vid. Append. to consult for the Publick-Good of which Matthew of Westminster says Parliamentum suum statuerunt Vid. Sup. Cap. 1. Since the Cives the Common Subject of the National Power have made their determination in our Case this according to that Positive Law which I have shewn above ought to quiet the Debate and command a submission And yet were there not Positive Law on their side the equitable Reservations before observed might be sufficient Warrant Nor is the Civil-Law wanting to enforce this Matter One Barbarius a run-a-way Servant not known to be so got in favour with Anthony at the time of the Triumvirate and by his means came to be Praetor Upon this a great Question arose Whether what he did or was done before him during his Praetorship were valid Hottom Illust Quest 17. Vlpian decides in the affirmative and Hottoman upon that Question says ' The suffrages of the People have the force of a ' Law Gotofredus de Electione Magistratûs inhabilis per errorem factâ p. 6. The Reasons given for the Resolution as they are in Gotofred who best reconciles the various Readings will greatly strengthen our Case He tells us That tho the Question there is only concerning a Servant the Reason of it reaches to Emperors and all Secular and Ecclesiastical Dignities The Reasons why Vlpian holds the Acts of such good are 1. In regard of Common Utility and the Inconvenience it would be to those who had business before him if it were otherwise 2. From the Power of the People to give a Servant this Honour Gotofred thinks If this may be done with certain knowledg that he was a Servant much more through mistake for if the People who have the Supream Power may with certain knowledg for the sake of the Publick-Good not only design a Servant for Praetor but in this Case by a just Election take a Servant away from his Master How much more may it be done as in the Case propounded not to make a Servant wholly a true Praetor not to take him from his Master but only by a commodious interpretation to have what is done by him or with him sustain'd and that so long the Error of the People and Servitude of the Person chosen should not prejudice what is done Gotofred goes yet further and says of Magistrates and Judges constituted by Tyrants the manner of Judgments being kept Gotofred Sup. p. 25. the things done according to form of Law or Transacted according to their Wills have been held good Sponte transacta And yet in this Case the defect seems greater being the Power is collated by one inhabil and so a substantial form is wanting Wherefore in this Part there seems no difference between the inhability of the Elector or the Elected And if ever the Common Utility or Publick Good might warrant Actions out of the Common Course certainly this could never have been pleaded more forcibly than in the Case of this Nation which unless it had declared for King WILLIAM and Queen MARY which they did in the most regular way that the Nature of the thing would bear had in all likelyhood by Irish and French Forces by this time been reduc'd to the miserable condition of the poor Protestants in Ireland who are by no means beholden to the nice Observers of unnecessary and impracticable Forms However such Formalizers would do well to answer the French King's Advocate in the Case of King John who shews a Vacancy of a Throne and to whom in such Case the care of the Kingdom belongs And they being the Barones Regni I need not now stand to prove that in the Language of that time 't would comprehend all such as were Members of our late Assembly of Lords and Commons For admit it were to be restrain'd to the Lords only then at least the Commons now were but supernumerary And since the Lords Voted by themselves and not in the same House with the Commons for the majority of united Votes to carry it the Settlement Voted by the Lords were enough to conclude the Nation But for the farther conviction of those who still urge That to hold that there may be a Parliament without being summoned by the King 's Writ would be of pernicious consequence to the Constitution of the Legal Monarchy under King WILLIAM and Queen MARY I shall refer them to a Paper which came out not long since entituled Vid. Append. The Present Convention a Parliament which I have transcrib'd at large into the Appendix As that Paper gives an abstract of what might be prov'd by Authorities those which I have produced give confirfirmation to that Paper Part 1. Object Here I ought not to pass by some Objections of the Author of Elementa Politica in relation to the suppos'd want of due Form in proceeding to Judgment or of Actions leading to it which if they were unwarrantable the Judgment must have been so too being founded upon the belief that there was just occasion for those Actions The Substance of his Objections may be reduced to these Heads 1. Part of the Legislative Power is in the King Whence it follows Elementa Pol. p. 5. Since published with the Title of Vindiciae Juris Regii that the whole Body of the People is not the Supream Authority nor consequently can call their Prince to account without his own consent 2. That Part of the Legislative Power which is lodg'd in the People is not given at large to be exerted at their pleasure but depends upon stated Rules and Limitations and can only be exerted by their Representatives in Parliament Nay it is so precarious a Privilege that without the King's leave they can never make use of it For it is neither lawful for them to Convene themselves nor yet to sit any longer than the King pleases Which is in different words but the same with Mr. Hobbs his position Where there is already erected a
Soveraign Power Leviathan f. 97. by which he means a single person in possession of Power There can be no other Representative of the same People but only to certain particular ends limited by the Soveraign If this were meant of Power in the abstract no Man neeed dispute the point with either of the Authors But to proceed with the Elements Elementa Pol. 3. The Liberties of the Subject were Acts of Grace from the Crown and since they had no Right to demand them by Force they must take them upon such Conditions as they are offer'd Nor is it to be suppos'd that Kings would forgo their Irresistible Power unless they had Sign'd it away in so many words 4. The Militia is by Law lodg'd in the King Most of the Nation is oblig'd to Declare against taking up Arms upon any pretence whatsoever against Him or any persons Commissioned by Him And the two Houses themselves swear Allegiance 5. That Clause for Resistance in King John's Charter contrary to this is of no force now and however is an Authority against the deposing-Deposing-Power there being an express Proviso for saving the King's Person and Royalty and His being obey'd as formerly upon Redress of Grievances Answ Not to observe the inconsequence from a qualified Legislative to a Judicial Power in which the Dernier Resort is with the Lords nor the mistake as if that Meeting and Sitting of Parliament which the Law has provided for within and till a certain time were wholly precarious Viz. Till all Petitions are Answer'd and that is certain which is reduceably to a Certainty Vid. Sup. Nor the former Objection against the Militia-Acts for want of a due Repeal of the Triennial 16 Car. 1. which this Author calls but a Proposal nor yet that the Allegiance sworn must be according to the Constitution For a full Answer to all it will appear even by his own confession That these Restrictions have no place but while the Constitution is preserv'd Himself admits That had the Legislative Power been invaded and the Constitution of Parliaments dissolv'd it would have superceded his Niceties But denies both because forsooth the Judgments against Charters were begun in a Protestant Reign and applauded by the loyal part of the Nation And the Dispensing Power was affirm'd by the Judges which is only a justifying Crimes by their Authors of which too many may say Pudet haec opprobria nobis Et dici potuisse non potuisse refelli Nor may it be impertinent here to observe Tacitus his Account of the steps by which Julius Caesar advanced himself to an arbitrary Power Leaving the Application to others When he had wheedled the Soldiers with large Pay the People with Freedom from Taxes all with the sweetness of Peace Tacit. ed. Plaut p. 1. and 2. Ubi militem donis populum annonâ cunctos dulcedine otii pellexit munia Senatus Magistratuum legum in se trahere nullo adversante cum feracissimi per acies aut proscriptione cecidissent ceteri Nobilium quanto quis Servitio promptior opibus honoribus extollerentur ac novis ex rebus aucti tuta presentia quam vetera periculosa mallent Neque Provinciae illum Statum abnuebant suspecto Senatûs Populique imperio ob certamina potentium avaritiam Magistratuum invalido legum auxilio quae vis ambitu postremo pecuniâ turbabuntur he rose by degrees to draw the Offices of the Senate Magistrates Laws to himself without opposition When the most fierce had faln in the Wars or were driven from their Country the rest of the Nobility being as any of them was the more forward for Servitude rais'd to Wealth and Honour and profited by the Change chose rather present Safety than the former State not to be retrieved without hazard Nor did the Provinces decline the Yoke the Government of the Senate and People becoming cheap through great mens quarrels and the Avarice of Magistrates the Law being enervated and its course interrupted by Force Solicitations and at last Bribery The Author of the Elements supposes that if the Government were subverted by the late King all Rights whatsoever are lost as well as his which I have shewn by no means to follow But particularly as to the Resisting-Clause in King John's Charter which he observes to be turn'd into an Excommunication in H. 3 d's 't is to be consider'd That as a King could not be thought to subvert the Constitution upon the first Breach of some particular Articles there that Clause was in this respect an Addition to the Constitution but being only in the Affirmative could not derogate from it Himself says If with reference to the present Case the Government is actually subverted then I grant the King's Authority is destroyed Elem Pol. part printed And if the Government as to the King's share in it is subverted and his Authority destroyed then there is no doubt but the People are freed from all those Forms to which his Presence or Consent were otherwise needful This Author yields in another place Print p. 13. that where the People are not forc'd into Submission but freely elect their Monarch there all remote inferences and doubtful cases ought to be interpreted in favour of the Subject because the Form of Government had its beginning from them and in this case Liberty proves its self This he admits supposing that he had prov'd a Conquest of the Nation by W. 1. which I shall examine in its place tho what I have said above might take off the Inference from his Hypothesis Vid. sup especially considering the broken Succession since W. 1. and what Authority the Constitution has given to the Peoples Choice which W. 1. as appears by his Death-bed Declaration and what followed immediately upon it left untouch'd CONCLUSION I Cannot think that I have followed Truth too nigh at the heels for my Safety in the present Government which I take to be built upon this staple Foundation and that Protestant fondly flatters himself who thinks to retain his Religion and Security upon any Terms at a return of the Former which some who were Instruments in setting up this seem madly to contend for But could men hope to find their private Accounts in such a Change yet surely the dismal Prospect of Common Calamities to ensue should induce them to sacrifice such low Ends to the Interest of their Religion and their Country I am not sensible that I have misrepresented any Fact or Authority tho I have not urg'd them with that strength which might have been by a better Pen. Perhaps what I have offer'd may give another Notion of the Succession than what many have imbib'd who will think I violate what is sacred I have not urg'd the Illegitimation of the Children of E. 4. by Richard the Third's Parliament because tho he was a King de facto if the Character fix'd on him be true he was a Tyrant as well as Usurper
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
a Royall Dignitie (k) Barthol Bal. in l. eam quam C. de fide con And the Reason is that whosoever is borne Bastard though he be after made legitimate is ever reputyd notwithstandinge as infamous (l) Bal. in lege generaliter §. cum autem C. de inst substi sub condi factis Alexan in 3. ff de il post And these Reasons may serve also to the Allegations before sayd of the innocency of the Queene and the contynuance of the Matrimony without controversy for they do declare playnly that although the Lawes where they entreate of eny other Enheritance shuld make as legitimate the Children so borne the which indeede they no ways can do as we have partly proovyd notwithstanding that the same Laws could never be alledgid in case of Succession to eny great Dignite and chiefly vnto a Royal Dignitie in the which the whole state of the Common Wealth hath interest And besydes touching the dooble Bastardy before remembryd though we shuld admitte that of the legitimacion of the Lady K. there wer no doubt or question yet such hath ben her Life and Behavour and so much hath she stayned her self and issue as she is to be thought unworthy of the Crown for she was maryed as ye know to the Lord Herberd The Mariage was perfected by all necessary Circumstances ther was consent of the Parties consent of the Parentes open solemnizinge contynuance after till lawfull Years of consent and in the mean time carnall Copulation all which save the last are commonly knowne by dyuers that sawe theim and the last which to all other might be most doubtfull is known by the confession of them both and so made the more lykely to be true bicause she her self though in such thinges that Sexe be most covert and shamefast hath yet earnestly acknowledgid the same after which Consummacion every Man knowith that albeit the Matrimony had been before for lacke of Years not vaylable that yet thereby it commith and is made perfect and of full force and valor In sorte that the Divorce and Sentence that was so dryven procured and practised by the means of the Erle of Penbroke in Queen Maryes Reign for respects then well ynough knowne agyinst both the Parties Wills as most manifestly appeeryd not onely by their greate unwillignesse unto it then but also by their affectionate and willinge manner of lyving continent meny Years after continuing in mutuall Love testified by sondrey means meny Tokens Messingers and other signes of the same cannot be of eny force to breake the sayd Matrimony nisi de facto (m) De sponsal cap. 30. is qui fidem But during this delay she by daliance fell to carnall company with th' Erle of Herforde which was not descryed till the bignesse of her Belly bewrayd her yll happ In which what was commityd on both theire behalfes while he th' Erle unlawfullie companyed with the Wyfe of an other Man and she the Wife of one Man did gyve her Body to be used of an other Man unlawfully ye may easely judge But this done the L. Herbert seeinge himself thus deceyvid by his Wyfe did as he might lawfully joyne himselfe in Marying with an other Woman and that Lyfe and Usage betweene the Lady K. and the Erle beinge confirmid by dooble Issue as it was utterly unlawfull before God so was it founde unlawfull before such Bishoppes and other Commissioners as had the heeringe of the same and their Issue bastardid wherupon doth fall out as ye see greate wickednes and lashnes of Life in the Mother and bastardy in the Children And it is not unknowne to those conversant in the Historyes that meny Princes settlid in their Kingdomes have ben judged unworthy of their Callinge for lyving in Whoredom And how can she be countyd worthy to come to a Kingdome which as her Case standith cannot but lyve in lyke manner Surely yf she were the next Heire of the Bloud Royal her Fault is much the greater so fowlie to have spottyd the same For as by this Whordome she hath deservyd grevous Punishment in disparaginge and disablinge the Bloud so hath she by vyolatinge Maryage cut off all hope of havinge lawfull Issue by her to succeede and possesse the Crowne heerafter For by the Law that God gyveth (n) Deut. 23. Deut. 23. A Bastard and unlawfull borne Person may not beare Rule in the Church or Common-Weale He is counted a Stranger as the Hebrewe word importith and to the perpetuall detestation of Whoredome was this Lawe made to punishe the Parentes Faultes justly in their Children The Civil Lawe lykewyse doth not onely punishe such Personnes as make such unlawfull Matches but removith the Issue so borne from the Inheritance or takinge by Legacy eny thinge of the Parentes (o) Co. de incest inut nup. And thus do yow see by the way thus much of this double Bastardie and what Stay Comfort or Consolacion is lykely to come to this Realme of England by the L. K. and such Issue as she now hath or is lykely to haue heerafter though she her self were by her Parentes free from Bastardy as by the Proces and Allegacions before alledgid doth playnly appeere she is not Wherfore to retourne to the Mater before in hand and to conclude therof Since eny Spotte or suspicion of eny is sufficient barre from th' Inheritance of a Crowne much more cause is this playne and open Bastardy for we ar all bounde in reason to haue alwayes more regard to the State and Dignitie of the whole Weale Publique then of the pryvate Preferment or Commodyte of eny particuler Person And so doth it appeere that by no way neither by the Divine Lawe nor by the Common Lawe of this Realme nor yet by the Canon or Civill that the Children descendid of the sayd Queene and Duke can be capable of the Crowne by their Birth But touchinge the other Parte they alledge in favour of the Lady Katheryne Kinge Henry the Eight his Will by which they say she is lefte as Heire Which may be as playnly and easely answerid For it is as certeyn that Kinge Henry shuld have had no Auctoritie or Power to dispose of the Crowne by Will yf by Parliament it had not ben gyven him And therfore as much as the Force and Autorytie of the Parliament dothe extend unto so much might he do and no more And the words of the same Statute though they be generall they may not for all that be so largely taken or understandid as they may be stretched vnto For who will say that by those wordes there is Power or Facultie gyven to appoynt or gyve the Crowne to eny Person that accordinge to the Lawe and Dignitie of this Realme is not meete or capable of the same As vnto a Turke ☜ an Infidele an infamous or opprobrious Person to a Foole a Madde-man or generally to eny kynde of such Person as of the which if special
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
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