Authority was received from God who has not only in his Providence permitted but by a signal Interposition asserted that Original Constitution of our Government from whence our Laws and Allegiance are under God derived nor will it excuse his malicious as well as false Insinuation of no Title in our King not one Precedent to warrant it his being only King de facto and that those Inducements which mov'd the Compassion of our great Deliverer were Lies and Forgeries without which says he Pag. 21 they could never have driven their Master away Wherein tho he is more daring yet he is more cunning than the Gentleman who with Lay-simplicity yeilds the whole truth of the late King 's subverting the Constitution while the more subtile Clergy-man denies all and puts us to prove it after it has been found by the Grand Inquest of the Nation and confirm'd by the most Authoritative Judgment which is of less weight with him than the hastiest Church-Censure I would gladly know of him whether notwithstanding that Precept Touch not mine Anointed do my Prophets no harm he has not deliver'd or been ready to deliver many of God's chosen or anointed People over to Satan and the Secular Power without enquiring into the ground of the Sentence And whether the Unction of the Spirit is not as sacred as that which is us'd to Kings and the right to the Sacraments and Christian Assemblies from which he vvould not scruple to debar many in virtue of an Ecclesiastical Censure as Divine as a Right to a Crown But as he affirms that the late King was driven away by Lies and Forgeries he insinuates that this King's Government was founded upon them and stands in need of them for its support Pag. 21. than vvhich he may vvell say there cannot be a greater Evidence of a bad Cause yet nothing but assurance in some hidden support could make him thus insolent Pag. 5. and confident that his Tongue or Pen has not been too familiar with his Thoughts and it is very pleasant that he should still pretend to vvant Impunity for venting his lurking Scruples as if his bold Dogmatical Assertions directly against our present Government and in defiance of it were more safe than the proving matter of Fact contrary to what others alledg the falsifying their Quotations or shewing the weakness of their Inferences wherein he might with safety to himself expose his Adversary as he thinks he does Mr. Johnson for betraying that Cause which he pretends to serve But perhaps he believes that if he should be thus cautious he should lose his Reputation vvith his own Party and give the Government encouragement to punish him vvhich he may fancy that it dares not do vvhile he talks big and seems assur'd of being strongly back'd But it may not be amiss to take a nigher view of the Folly as well as Insolence of his Boast what feats he could do if the Law vvould stand Neuter for a while The Observator's ridiculous Challenge He promises in his own and believes he may in the Name of all his Brethren that are yet unsatisfy'd that their refusal to comply shall lie no longer hid in lurking Scruples and Reasons best known to themselves than till their Superiors shall be pleas'd with Indemnity to allow them to bring them forth Having as he thinks made this fair Challenge he concludes that it is Uncivility Rudeness and an ungentile Insolence to provoke them whose Hands are tied It seems they would be at liberty to condemn this Government as illegal and founded upon Injustice But if a Reason for this be demanded O Sir our Hands are tied provoke us not by asking vvhat is not in our Power we can rail and call you Rebels insinuate that your King has no Title your Laws no Authority but you are very uncivil not to allovv them vvho can give no Reason to rail on without it However this Man undertakes if he might have Indemnity in speaking out at the forfeiture of his Head vvhere he says Mr. Johnson's is due before Judges appointed by the Government to answer those Questions which he owns no Man dare be so bold as to answer and to back those Answers with such Reasons which shall ensure him the Priviledg of being for Mr. Johnson unanswerable Before the Judges have been appointed he concludes that Mr. Johnson's Head is due for writing against the late King's Title and vvith at least as much Equity we may say that his Head is due for writing against the Title of this But since he is willing to lose his Head if he cannot satisfy such Judges it is a pretty sort of Indemnity which he desires not to lose his Head for any thing which he may offer before the Judges when he consents to lose it if what he offers is not back'd with satisfactory Reasons Has he more to press or could he do it more cogently than Men of his Mind did in Parliament where there was full liberty of Speech Or is it to be suppos'd that there vvas not as good a Disposition in the Majority of them whose Votes carry'd our Settlement to listen to such unanswerable Reasons as he can expect from any appointed to be Judges of the Controversy but perhaps observing what Indulgence his Principle has met with he may hope that he or Men of the same Leven might influence the Nomination of the Judges and 't is evident that therein must lie the only colourable ground of his confident and ridiculous Challenge Tho there is no Reason to apprehend that Innuendoes should be now Innuendoes as they have been in those times which he justifies when they were admirable Engines to dive into the bottom of the Heart and fetch up those secret Intentions which no foregoing Discourse led to yet as one of the other Gown I should advise him for the future not to make his Pen so familiar with his Thoughts as he does vvhere speaking of Mr. Johnson's Assertion That King William is the rightfullest King that ever sat upon the English Throne Pag. 3. which he may very well be without supposition of coming to it in a manner different from all others since the Consent with which he was crown'd was the most universal that had been known in any Age he says he is content never to desire a greater advantage than to reduce an Adversary to the Absurdity of making no difference between a Title and no Title Wherein I fear he vvounds himself while he thinks to hit Mr. Johnson in the Eye for his due Application of the self-evident Distinction between Law and no Law and tho there is no Law to reach Mr. Johnson for his Reflections upon the late King and his Title this Writer may find a Law to punish him And if he would be at the pains to consult our Records Law-Books and old Historians he may find full warrant from the Constitution to make a good Title in our King upon the
Corporations the managing Juries and improving Religious and lawful Civil Assemblies into Riots nay Consults for Treason had not then been brought to Perfection And the Dispensing Power having been attempted but receded from he says The true Religion is established by our Laws Page 542. and no Law can be repealed or altered to the Prejudice of English Subjects by the Pleasure of any Prince alone and without the Consent of the Peers and the Representatives of the Commons of England And indeed the good Man takes a great deal of Pains from the Duty Honour and Interest of the Prince the danger to evil Instruments and the like to prove that it ought not to be presumed that any such Case as we have known will happen which at this time looks like a Philosophical Argument against Motion and deserves the like Confutation However Page 532. looking upon such Violations as but simply possible he maintains that the Declarataion against taking Arms ought to be in general Terms for that such extraordinary Cases as may be put fall not under Consideration Page 361. I may add till they happen for then they must be put and remembred to justify what they have render'd necessary Nay himself restrains the general Terms to a Subject's taking Arms without any Command from his Prince Page 360. against those who act by virtue and in pursuance of his Commission REGVLARLY granted to them Page 346. I will yield to him that it would be an high Reflection upon the Laws of our Realm if there were need of consulting skilful Lawyers for the general Rule of Duty and to whom Men ought to yeild Obedience and Submission Yet if learned Men will confound the plain Rule of Submission to the Powers which are in being by setting up a supposed inseparable Right in a Power which once had a being but is become a meer Shadow and Spectre 't will be requisite to have recourse to them who have taken some pains in enquiring into the Constitution of the Government to see what Remedy is thereby allowed in extraordinary Cases Christian Loyalty p. 521. And whereas speaking of Officers suppos'd by some to have Authority of resisting in such Cases he seems to know of none but by Charter or Commission having their Authority depending upon the King a little Skill in the Law or in Antiquity would have inform'd him of several others at least such as were not so dependent Vid. inf of the Earl Marshall c. Vid. The Act of Pacification between the English and the Scots Temp. Car. 1. which provides that it shall be lawful for the Subjects of either Nation to fall upon the Forces which shall come out of one into the other without the Consent of the Parliaments of both Kingdoms not only hereditary Great Officers and other Great Men of the Kingdom but other Officers chosen by the People the Heretochii or Lords Lieutenants and the Sheriffs anciently and the Officers in Boroughs by Prescription and Constables at this day I will be as ready as he to maintain that for the future such Supposals as he touches with great Fear and Tenderness will be very remote Possibilities and being look'd upon in our Law as vain in the Apprehension are thought not to stand in need of any particular Provision but he mentions three Cases in which upon yeilding the Suppositions Page 531. he grants the Answer given by Barclay to two of them and to all three by Grotius to be true To the general Question May there no Cases fall out in which the People by their Authority may take Arms against the King Page 515. Barclay answers Certainly none as long as he is King or unless ipso jure Rex esse desinat which is pregnant with the Affirmative that there may be some Case wherein he by Law or of Right ceases to be King And Barclay manifestly allows of two Grotius adds a third branch'd into a fourth in which Mr. Falkner concurs with him as well as with Barclay and Grotius in the other two Pag. 525 527. The first particular Case upon which he delivers his own Opinion Voluntary Resignation or Cession or Abdication without referring to Authorities is of a King 's voluntarily relinquishing and laying aside his Crown and Government of this several Examples are mentioned and among the rest nine of our Saxon Kings Page 426. and he rightly observes that if such Persons should act against the settled Government of their respective Kingdoms after they are fixed in the next Heir in an Hereditary Kingdom or in another King according to the Constitution of Elective Principalities the resisting any of them is not the taking Arms against the King but against him who now is a private Person If therefore the late King's Abdication were such a relinquishing as he means Vid. sup f. 13. which it must be if he receive Grotius or if he hold to the other Cases in which as it will appear he yields that he would be devested of Soveraignty in all such Cases every thing is lawful against the late King that would be lawful against any other private Person 2. The second Case agreed by all three and by Bishop Bilson Page 526. is of a Prince ' s undertaking to alienate his Kingdom Alienation of the Kingdom or to give it up to the Hands of another Soveraign Power against the Mind of his Subjects And he thinks Barclay Grotius and Bishop Bilson truly to assert that such an Act of Alienation or of acknowledged Subjection especially if obtained by evil Methods as was done in the Case of King John is null and void and therefore can neither give any Right of Soveraignty to another nor dispossess the King himself thereof But if any such Prince shall actually and forcibly undertake to bring his Subjects under a new Supream Power who have no Right thereto and shall deliver up his Kingdom to be thereby possess'd Grotius saith he doubteth not but he may be resisted in his undertaking but then says Mr. Falkner this Resolution must proceed upon this ground that this Action includeth his devesting himself of his Soveraignty together with his injurious proceeding against those who were his Subjects And Barclay who allows only two Cases in which a Prince may be devested of his Royal Dignity doth account this to be one of them Not to mention the notorious truckling to France and Pupilage under that bribing and imposing Monarch since the Kings of England are Supream in Ecclesiastical as well as Civil Affairs and the late King by Force and open Violation of the Laws against the universal Bent and Mind of his People renounc'd his own Supremacy in yielding to the Pope's and since the People might resist him therein but that which justified their resisting him devested him of his Soveraignty 't is evident that according to Mr. Falkner and the Learned Men whose Authority he receives the late King thereby ceas'd
King I shall refer to Krantius Krantii Hist particularly in the remarkable Story of their King Eric who was Adopted Son of the Three Kingdoms Anno 1411. he having provoked his People by countenancing the outrages of his Officers and Common Soldiers was opposed with Force by one Engelbert a Danish Nobleman transmitted down to posterity with the fair Character of engaging in the Publick Cause neither out of Love of Rule nor greediness of gain but meer compassion to an oppressed people This generous undertaking was so justly popular that Eric not able to stem the Tide withdrew from Denmark where he usually resided to Sweedland Engelbert's Noble Cause found so few opposers there that the King as a pattern to James 2. privately ran away and recommended his Nephew to succeed him But they told him plainly he was made King by Adoption Ib. f. 188. and had no Right to surrogate another Himself there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have received upon terms but he refusing the three Kingdoms unanimously chose one of another Family For the Authority of the people even in France Hottomanni Francogallia c. 23. insisted on no longer since then the time of Lewis 11. Hottoman gives a large proof in his Franco Gallia And I meet with an excellent Treatise of the French Government written originally in that Language by an eminent French Lawyer Claudius Sesellius soon after the death of Lewis 12. and dedicated to his Successour Francis 1. This Treatise the Learned German Sleidan Sleidani Dedicatio Ed. sexto Anno 1548. f. 263. Vid. Tres Gallicarum Rerum Scriptores Nobiliss A Johanne Sleidano e Gallico in Lat. Serm. convers Ed. Francofurti Anno 1578. turned into Latin and Dedicated it to our King E. 6. Sesel f. 268. Qui tutorio nomine Rempublicam procurant f. 269. Sesellius at that time looked upon France as an Hereditary Monarchy in which he admits that there may be great inconveniencies through the folly vice or minority of a Successour to a good Prince or the wickedness of those who execute the Government during his minority yet says he There are remedies at hand by which we may restrain a King Reigning Arbitrarily and them who have the care of one who cannot Govern for want of fit Age so that the King may have the Dignity which belongs to him and yet it may not be lawful for him to do what he pleases but what is agreeable to Law and Equity Provision is made for this by the best Laws and most Sacred Establishments which may not be violated without great hazard although sometimes force is offered to them He tells us their Kings have as it were three Bridles with which their Soveraign Power is restrained Sesellius f. 269. 1. Religion And if the awe of that is not sufficiently impressed upon him yet the reverence of some Holy Man may prevail it being allowable for any Bishop or other Ecclesiastical person of an unblameable life and in esteem with the people to admonish him of his Duty nor can he use any severities to his Admonisher without danger of alienating the affections of his people 2. The Jurisdiction of the Senate or Parliament whose Power he says Ut decretis ipsorum Rex quoque pareat Vid. Les Soupirs De la France Esclave Memoire 8. Histoire de l'origine du Parlement de Paris Sesellius f. 270. is such that even the King obeys its Decrees And yet when he wrote the Parliament of Paris the meer shadow of the Assembly of the States of the Kingdom and which in its institution was but a Committee chosen out of them had through the Artifice and Usurpation of their Kings driven out the substance 3. The Polity or Laws of the Kingdom which temper the Regal Authority this he says is greatly to the Honour of their Kings For if they could do every thing they would be much more imperfect And as it does not derogate from God Almighty that he cannot sin but his perfection is the more illustrious and to be admired for this very reason so Kings when they obey their Laws deserve the greater praise and come nigher to perfection than if they could command all things at their will and pleasure Sleidan in giving an account of Sesellius his Book to E. 6. says Sleidani Dedicatio ad E. 6. Although these things seem written in a peculiar manner in relation to the King of France yet they equally belong to all Kings For all Kings are Monarchs very few excepted And as they acknowledg no Power over them so they deserve great praise when they keep themselves within the bounds of those Laws with which they Govern their People And these are those Offices which he treats of as becoming a King and Prince Which if he neglects and thinks himself not to be obliged by any Law he loses in the eyes of good Men all Splendor Reputation and Glory and the very name of King A modern French Author Les Soupirs de la France Esclave Qui aspire apres la Liberte Ed. Anno 1690. Memoire 6. p. 82. who has with great diligence collected the Evidences of the Ancient Government of France supposes all the descendants from the old Germans as the Francs and we were to have had the same sort of Government and resemblance of Constitutions Among his several Arguments to refute the pretensions of the Court of France to Arbitrary Power one is Memoire 7. That nothing of great importance ought to be done within the Realm P. 97. but with the advice and consent of the Estates insomuch says he That the Government of France is rather Arstocratical than Monarchical or at least it is a Monarchy temper'd by an Aristocracy exactly such an one as England is The sum of his Authorities upon this Head he reduces to these particulars 1. ' The Estates of the Kingdom may Chuse and Depose their Kings Ib. p. 110. ' and by consequence may Judge them 2. ' They may Judge between the People and the King 3. ' They may Judge between King and King when more than ' one aspire and pretend to the Crown 4. ' They Determine the Differences which Kings have with their ' Subjects 5. ' They give Tutors to Kings and Regents to the Realm 6. ' They dispose of the great Offices of State 7. ' They make Ordinances which alone have the Force of Law ' within the Realm 8. ' They regulate the Affairs of Money 9. ' They appoint Impositions and Levies of Taxes 10. ' They are to be consulted upon all great Affairs 11. ' In fine They are of right to Correct all defaults of Government ' even those of which their Kings are Authors By all these particulars says he it appears Soupirs Mem 7. p. 110. that in some respects the States are superiour to the King for example when they chuse depose judge
which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 11 H. 7. c. 1. 9. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the occasion of the Law which was to encourage the service of H. 7. who had no Title but from his Subjects And there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which if it relates to Acts of Parliament being built upon the Supposition That according to the Fundamental Law the Peoples Choice gives sufficient Title perhaps is not vain and illusory Lord Bacon's Hist of H. 7. f. 145. as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy fundamentally Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute But I take it not to be evident that the Acts here mention'd must needs be Acts of Parliament For they might and by the word other seem to be such Acts as are of the nature of ordinary Process or whereon such Process is grounded as Ordinances of the Lords in Parliament Orders of the Privy Council Judgments or Decrees in Courts of Law or Equity and the like However admit this Clause should be vicious and insignificant My Lord Bacon I am sure gives no countenance to a certain Dissenting Bishop's Argument in publick Discourse who undertook from hence to prove That the Statute it self is of no force Yet such sort of Arguments are of great service to men resolv'd upon a Conclusion nor can better be expected from them To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me Object 1 The Maxim in Law That the King never dies Or to use the words of Finch ' The Perpetuity which the Law ascribes to him Finch's Description of the Common Law French Edit An. 1613. f. 20. b. 21. a. The same made use of in Reflections upon our late and present Proceedings p. 10. having ' perpetual Succession and he never dies For in Law it is call'd the Demise of the King Answer To which I Answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd And that the Death of a King is but a Demise transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election Dyer f. 165. Anderson f. 44. He has it Le Successeur le Heir Elsewhere Heir on Successeur ib. f. 45. tho never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Inter-regnum as it was resolved by all the Judges 1 Eliz. Of which the words of Lord Dyer are ' The King who is Heir or Successor may write and begin his Reign ' the same day that his Progenitor or Predecessor dies With which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural Vid. 1. E. 6. c. 7. 7 Rep. f. 30. appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like Agreement betwixt the present and former Government Suppos'd to be Doctor Fulwood's P. 42. A Learned Author that he may reconcile our present Settlement to this suppos'd Maxim which appears not to have any foundation in Antiquity will have it That by the Vacancy of the Throne no more was meant by the Convention than its being free from the former Possessor but that it was full of a Successor and that there was no Interregnum For says he such a Vacancy we have upon every Demise of the Crown And so there was a Vacancy of the Throne and no Vacancy at all For in ordinary Demises 't is manifest there is none Freedom from the last Possessor is not a Vacancy of the Throne Two Grounds this Doctor goes upon to justify his Equivocation in this for I can call it no better 1. That otherwise this would be inconsistent with the nature of our Ancient Hereditary Monarchy 2. That the Convention shew that they meant it no otherwise than in his Sense 1. As to the First It is observable 1. That the Notion which himself goes upon P. 40. is as inconsistent with the ordinary Rule For he makes the Heir to have only jus in re and to want Livery and Seisin And consequently till the Coronation there is an Interregnum Tho it may afterwards be supplied by relation to the Descent of the Right But herein the Doctor is certainly out For in ordinary Descents or Demises Hales's Pleas of the Crown p. 40. Treason may be committed against the Heir as in full possession before any Recognition or Coronation But since he will hardly affirm that it could have been so in our Case he must grant that there was a more absolute Vacancy than that for which he contends P. 54. It is his own Argument that our present Sovereigns are really King and Queen because Treason may be committed against them within the purview of the Statute 25 E. 3. And by the same Reason they were not King and Queen before they were declar'd so unless Treason could have been committed against them before such Declaration 2. But 2. The Doctor owns that though upon some extraordinary Revolution and some absolute necessary Reason of State for our common preservation a Stranger none of the Blood-Royal should be advanced to the Throne for one or more turns whilst that necessity continues the Constitution of the Government would not be alter'd And yet would suppose P. 56. V. p. 41. Where he speaks as his own Sense what in the other place is put by way of Objection that if our King and Queen come in otherwise than by Descent it would be a Design'd Alteration or Change of the Ancient Constitution of this Hereditary Monarchy And yet himself owns That by the Law of Nature Salus Populi is both the Supream and the first Law in Government and the scope and end of all other Laws and of Government it self Nay he yields That the Oath of Allegiance that Sign or Testimony between King and Subject is discharged or dispenced with when
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
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
dimittere But if no Act which is ineffectual in Law will justify the withdrawing Allegiance then none of the Instances will hold for to that purpose they are equally ineffectual Yet who doubts but the King doing what in him lies to alien his Kingdom gives pretence for Foreign Usurpations as King John did to the Pope's And whoever goes to restore the Authority of the See of Rome here be it only in Spirituals endeavours to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion Vid. Bellarm. how the Pope hooks in Temporals in ordine ad Spiritualia Nor can it be any great Question but the aliening any Kingdom or Country part of the Dominion of England will fall under the same Consideration which will bring the Case of Ireland up to this where the Protestants had been disarm'd and the Power which was arm'd for the Protection of the English there Vid. Leges S. Edwardi put into the Hands of the Native Papists nor is it now likely to be restor'd to its Settlement at home or dependance upon England without vast Expence of Blood and Treasure Even the Author of Jovian owns Dr. Hick 's his Jovian p. 280. Ib. p. 192 193. that the King's Law is his most Authoritative Command and he denies that the Roman Emperor had any Right to enslave the whole People by altering the Constitution of the Roman Government from a Civil into a Tyrannical Dominion or from a Government where the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. No Clergy-man of the last or foregoing Reign having treated of Civil Government with more Temper and Judgment and yet with greater Applause of the warmest Men of his own Gown Falkner 's Christian Loyalty Ed. An. 1679. than the Learned Mr. Falkner of Lyn I shall be the longer in giving an account of his Discourse of Christian Loyalty which will prove an Authority on my side beyond what could be hop'd for considering the time when his Book came out with License and a Dedication to the Archbishop of Canterbury it being when Mr. Johnson by way of Composition against a threatned Suspension was oblig'd to drink his Coffee at home lest he should inlighten his Brethren who fill'd all places of publick Resort with their Pulpit-Law and the Dictates of their Guide Sir Roger. I must own that Mr. Falkner was in some things carried away with that Tide which if any of that Cloth besides Mr. Johnson had the Courage to stemm they had at least the good fortune to be less observ'd but the shewing wherein the Author of Christian Loyalty gave too much way to the Fashion or the Noise may yield farther strength and light to that Truth which will arise out of those very Clouds with which he might think requisite to obscure it His Treatise is in two Parts in the first he vindicates and endeavours to explain the Oath of Supremacy 1. In relation to the Regal Power as it is receiv'd in our Church or at least by Church-men or as it is acknowledged by our Laws 2. As the Oath renounces all Foreign Jurisdiction the last of which falls no otherwise under Consideration here than as it shews the King's Duty to preserve his Ecclesiastical as well as Civil Supremacy and not to alienate either In the second part this Worthy Author considers the publick Declarations against Subjects taking Arms. Page 14. 1. In the first he rightly affirms That the asserting the Supremacy of Government is never design'd meaning I supppose by the Law in any wise to violate either Divine or Christian Institutions or to assert it lawful for any Prince to invade that Authority and Right which is made particular thereby whether in Matters Temporal or Spiritual Where by Christian Institutions Page 3. 't is plain that we are to understand the Ecclesiastical and Civil Laws of Christian States or the Laws of others not contrary to Christianity and thus he deservedly blames them who nourish false Conceptions and mistaken Opinions concerning the CIVIL POWER beyond due Bounds exalting it so high as not to reserve that Respect which belongeth to God and Christian Institutions Page 15. and rightly observes that the Supremacy does not exclude the Subject from a real Propriety in his own Estate And that there are some Kingdoms where without any Disparagement to the Supremacy of their Prince Page 11. they are govern'd by the fixed Rules of the Civil Law and others where other Laws established by their Predecessors are standing Rules Page 391. And particularly in relation to the People of this Realm he says in the second Part The English Constitution doth excellently and effectually provide against injurious Oppressions Of which more in its place 1 Canon An. 1640. However I cannot but here observe that even the Canons of 1640. which he receives as speaking the Sense of the Church of England own that the Subject has a Propriety but withal say that Tribute Custom and Aid and all manner of necessary Support and Supply are due to Kings from their Subjects by the Law of God Nature and Nations yet tho it is the Duty of Subjects to supply the King it is part of the Kingly Office to support his Subjects in the Propriety and Freedom of their Estates Still it seems subject to the King's Judgment of necessity which is right Sibthorpism and Manwarinism afterwards eccho'd to by the Courts at Westminster in the Resolution about Shipmoney and of late in that of the Dispensing Power I think in two things what Mr. Falkner writes upon the first Head lies open to Exception 1. That generally by Civil Power Page 356. he seems to mean the Person of the King and that not according to his own Definition of a King which he says doth denote the Royal Person who governs which himself owns to be according to the respective Limitations in those places where they govern many having the Title of a King Page 339. who had not such Royal Power as is allowed by our Constitution but he ascribes to a King generally speaking and particularly to ours such a Soveraignty as carries with it the absolute and arbitrary Exercise of that Civil Power whereby a Nation is govern'd Thus he asserts with St. Austin That Subjests may and ought to obey their Prince's Commands where they are certain Page 302. that what he commands is not against the Command of God And hence he attributes to the Kings of England even more Power than he allows to the Roman Christian Emperors as will soon appear And it appears that this is not only a casual dash with his Pen Page 123. for having before in one place spoken of the business of the Civil Power describ'd by St. Peter Page 131. in another he mentions the Authority with which he supposes Kings and Princes to be
to be King which sufficiently justifies that Vote of our Convention since confirm'd by the Parliament that a Popish King is inconsistent with this Protestant Kingdom 3. The last Question or rather part of a Question Page 527. which this learned Author takes notice of in the Resolution of which he agrees with Barclay and Grotius is Attempting to destroy the Kingdom or any considerable part of it Pag. 528 529. Whether if a Soveraign Prince should actually undertake to destroy his whole Kingdom or any considerable part thereof they may not in these Circumstances have liberty of defending themselves by taking up Arms Now we must allow him here to distinguish his Sentiments by inveighing against Junius Brutus Page 528. and other Subverters of Soveraign Power who start and urge this Question However it may not be amiss to take him into a Corner to know his Mind of the matter under the Rose Page 531. It must be remembred that he allowed of Barclay as a competent Judg in the Questions which he determines and as to a Soveraign Prince's undertaking to cut off Page 529. or to ruin and destroy the whole Body of his People he acknowledges that this is the other only Case in which Barclay esteemeth a Soveraign Prince to forfeit his Right of Government and that thereupon it may be lawful to resist him Tho as I observ'd before Grotius cites Barclay for a third Sup. f. 25. this which he receives as Barclay's second as he gathers from Barclay must not exceed the Bounds of meer Defence without any Attempts of invading or revenging yet it may be a Question how far this may be consistent with his yeilding that a former King in such case becomes a private Person And indeed I think he is in the right in allowing of no case to warrant Resistance till he who had been a King becomes a private Person Page 526. Accordingly neither Barclay nor he in the case of a King 's undertaking the Ruin of the Whole or in any other case will allow the taking Arms against the Soveraign Power because a Prince by such an undertaking as this loseth his Royal Authority and is no longer King se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desinit Page 530. And the Reason given by Grotius in the same case is irrefragable consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem Populi totius profitetur eo ipso abdicat Regnum A Will to govern and a Will to destroy cannot consist together wherefore he who professes himself an Enemy to his whole People in that very thing abdicates his Kingdom I cannot but observe that here is a Forfeiture own'd and an allowance of a Right in the People Page 529. or some of them at least to judg of the Forfeiture Barclay esteemeth a Soveraign to forfeit his Right c. Elsewhere Mr. Falkner says To assert that the People or Inferiors are of right Judges of the Cases in which they may resist their Superiors is as much as to say they are bound to Subjection only so far as themselves shall think fit and that they may claim an Authority over their Governours Page 365. and pass Judgment upon them and deprive them of their Dignity Authority and Life it self whensoever they shall think it requisite and needful Page 359. But this Inference here as well as his former Declaration shews that he speaks not of extraordinary Cases which as he has it we may well presume or hope may never be in act And if a judicial Power even in such extraordinary Cases sound harsh we may learn of him to soften it with the Terms in which he justifies the Exercise of a like Power over Kings in Spirituals Page 321. Tho says he all Christians upon manifest Evidence may in some cases see cause to disown a Soveraign Prince as was done in Julian from being any longer a Member of the Christian Society Page 322. yet in such Cases his Membership ceaseth and is forfeited by his own Act and not properly by a judicial Sentence and formal Process And some of the Romish Writers go much this way in giving an account how the Bishop of Rome whom they suppose to be Superior to all Men on Earth may by reason of Heresy or such Crimes be deprived of Christian Communion I must herein agree with Mr. Falkner that 't is not the Judgment which creates the Forfeiture but the Grounds of the Judgment which ought to be duly weighed Page 542. 4. The only thing which according to Mr. Falkner in this Case can farther be proposed is Whether if a Supream Governour should according to his own Pleasure and contrary to the established Laws and his Subjects Property actually engage upon the destroying and ruining a considerable part of his People they might not defend themselves by taking Arms This which he says is notional and speculative Page 543. has too sadly been reduced to Practice in Ireland especially After mentioning the Parisian Massacre he confesses that if ever any such strange Case as is propos'd really happen in the World Page 544. it would have great Difficulties Grotius says he thinks that in this utmost extremity the use of such Defence as a last Refuge ultimo necessitatis praesidio is not to be condemned provided the Care of the common Good be preserved And says Mr. Falkner if this be true it must be upon this ground that such Attempts of ruining do ipso facto enclude a disclaiming the governing those Persons as Subjects Page 545. and consequently of being their Prince or King And then the Expressions of our Publick Declaration and Acknowledgment would still be secur'd that it is not lawful upon any Pretence whatsoever to take Arms against the King In short Mr. Falkner's Judgment in these three or rather four Cases is this That these Cases are so extraordinary that they fall not under any Consideration as a pretence but will justify the Subjects taking Arms when they are real and that when any such Case happens the taking Arms is not so much authoriz'd by any Judicial Power in the People or their Representatives as by the Facts themselves whereby the King ipso facto without Sentence incurs a Forfeiture and ceases to be King And had he lived to apply his own Rules no Man can doubt but he would in Terms have justified our renouncing Allegiance to the late King Whether upon the account of the Forfeiture or the Judgment upon it or both is not very material especially considering that both Barclay and Grotius speak of an Absolute Prince not a Platonick Monarchy Vid. Pag. 398. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yok'd or coupled with Laws 'T is well known to have been Grotius his Opinion Page 348. That if the Supream Government be part in the People or Senate and
divested of his Soveraignty by the Counsel and Consent of all his Subjects (a) Ib. f. 108. Anno 779. Mailros Anno 794. f. 139. S. Dunelm f. 113. Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Milros f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem Ibid. 144 872. Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities F. 148 941. F. 148 947. but then they renounc'd the Allegiance sworn to King Edmond and chose Aulaf King of Norway for their King Aulaf had not reigned six Years when they drove him away and tho they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects Vid. Mirror sup Leges S. Edw. and that if he did not answer the End for which he had been chosen he was to lose the Name of King Indeed a very Learned Author Discourse concerning the Vnreasonableness of a new Separation on the account of the Oaths p. 15. in a Treatise for the most part unanswerable seems to set aside all the Precedents within the Kingdom of the Northumbers as if that were of no consequence to any other part of England I shall not says he meddle with the Kingdom of the Northumbers which alone was originally elective as appears by Matthew Westminster The words to which he refers are these Anno Gratiae 548 Regnum Northanhumbrorum exordium sumpsit Math. West f. 101. Cum enim Proceres Anglorum magnis Laboribus continuis patriam illam subjugassent Idam Juvenem nobilissimum sibi unanimiter praefecerunt In the Year of our Lord 548 Anno 548. the Kingdom of the Northumbers began For when the Great Men of England had with much and continual Labour subdued them they chose for King Ida a most Noble Young Man I cannot understand how the shewing the Foundation of one Kingdom in Election is any Argument against the Original Electiveness of others within the same Island Nay primâ facie without more of one side or other it gives ground to believe the others to have had the like Foundation and this Quotation particularly is so far from implying that this was the only Kingdom within the Isle Originally Elective that it supports the Authority of the Mirror which informs us that forty Princes at the beginning of the Monarchy chose one to reign over them Mirror sup for this speaks not of the English as then under one King or more in their respective Divisions but under several Proceres Great Men or Princes and that part of the Island seems to have been the first which chose a King but I know not by what Rule of Logick it can be gathered from this Passage in Matthew Westminster that other Kingdoms which chose their King afterwards were not equally Elective in their Foundation tho not so ancient or the time of the Commencement not so easily to be shewen Vid. inf Vid. Falkner p. 329. This called a Synod of all England 827.548.279 Malmsbury f. 13. Certain it is that the Council of Calcuth in the Year 789 which provides for the Election of Kings was Conventus Pananglicus and if it took not in the Northumbrian Kingdom as having been disjoin'd from the rest till the Reign of Egbert An. 827 being 279 Years it is to be presum'd that all England besides was included Nay this very Author produces Authorities which prove other Kingdoms here though their beginning is not so well known to have been as truly Elective as this which he waves 1. He shews Page 14. that Beornred being set aside by a Convention of the Nobility and People of the Kingdom of Mercia Offa was chosen King who was of the Royal Stem but not the next Heir And so says he William of Malmsbury observes in the West Saxon Kingdom after Ina that no Lineal Succession was then observ'd but still some of the Royal Line sat in the Throne and of Ina himself that he was rather put into the Throne for his Vertue than by Right of Succession Discourse sup p. 15. 2. He argues that if by the Fundamental Constitution Allegiance were indispensably due to the next rightful Heir in this Monarchy Athelstan whom he shews not to have stood next in the ordinary course of Descent would not have been chosen Magno Consensu Optimatum and gives several other Instances wherein he observes that Reason of State Page 17. and the publick Interest still over-ruled this matter 3. He shews that Reason of State and the Publick Interest over-ruled not only for Elections when the Throne was free from a Possessor but even for the removing Kings in Possession P. 13. An. 454. Vid. sup Anno. 756. P. 14. An. 758. An. 854 867. P. 16. An. 957. For which he cites the Cases of Vortigern under the British Government Sigebert King of the West Saxons Beornred of Mercia above-mentioned Aetheluph King of the West Saxons and the eldest Son of Edmund who was set aside because in Commisso regimine insipienter egit He acted foolishly in the Government committed to him After all he contends that ours is not only a true Original Monarchy but Hereditary where the Right of Succession and publick Good did not interfere and thus much I readily grant him but in restraining this to Cases where there was not a natural or moral Incapacity he plainly confines Reason of State and the Publick Good to narrower Limits than before he allowed for if these were to over-rule Page 17. as he before observ'd then the Question upon Competitions for the Crown between Persons of the Royal
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 TO proceed to E. 2. Son to E. 1. 't is certain that the sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally Deposed in Parliament for his misgovernment Walsingham f. 107. Rex dignitate regali abdicatur filius substituitur His Case with his next Successor's but one R. 2. by what I have observed before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once Hollingshead f. 637. Ib. f. 639 640. H. 6. being a weak mis-led Prince gave occasion to Richard Duke of York whose Line was put by to cover his designs for restoring the elder Family with the pretence of redressing publick Grievances A Crown over a Branch of lights in the H. of Commons and another from the top of Dover-Castle falling about the same time ib. f. 659. The Crown he was so far from pretending to at first that himself swore Allegiance to H. 6. in a very particular manner But having afterwards an advantage given by the Divisions of them who had driven him out of the Land he in a fortunate hour with lucky Omens as was believed challeng'd the Crown as his Right upon which there was an agreement ratified in Parliament That H. 6. should enjoy it during his Life and Richard and his Heirs after him Tho Richard Duke of York and his Son Edward afterwards E. 4. had sworn that H. 6. should enjoy the Royal Dignity during life without trouble from them or either of them yet Richard having been treacherously slain by the Queen's Army immediately after the solemn Pacification Edward at the Petition of some of the Bishops and Temporal Lords Ib. f. 661. took upon him the charge of the Kingdom as forfeited to him by breach of the Covenant established in Parliament Yet this gave him no sure footing for the popularity of the Earl of Warwick drove him out of the Kingdom without striking a stroke for it Ib. f. 678. Upon which H. 6. was again restor'd to his Kingly Power and Edward was in Parliament declared a Traytor to the Country and an Vsurper of the Realm the Settlement upon Richard and his Heirs revok'd and the Crown entail'd upon H. 6. and his Heirs Males with remainders over to secure against Edward's coming to the Crown But the Death of the Earl of Warwick having in effect put an end to King Henry's Power he was soon taken Prisoner and put to death as his Son had been before and then Edward procures a Confirmation in Parliament Hollingshead f. 693. of the Settlement under which he enjoyed the Crown Thus the Parliament from time to time determined the Controversie according to the Inclination of the People or Reason of State And as the power of the People of England or of Great Men of interest with them turn'd the scales sometimes one way sometimes another so their consent fixt them at last during the Life of E. 4. I might following the light of History take in the most material Occurrences from the Reign of E. 4. to the last Revolution but tho the unanimity which appeared at the first casting off the former Yoke made me with chearfulness undertake the justification of those who have contributed to the Change yet I must needs say I am checkt in that freedom which otherwise I might have justly used in relation to late times and tho I labour against prejudice in what I bring from faithful Memorials of ancient days yet I hope the prejudice will be free from that heat and passion which mixes with mens own concerns or the concerns of them from whom they immediately descend in Blood or Parties Object Vid. 13 C. 2. Stat. 2. c. 1.13 14 C. 2. c. 3.14 C. 2. c. 3 4.15 C. 2. c. 5.12 C. 2. c. 30. It may be said That whatever the Law or Practice has been anciently neither can now be of any moment by reason of the Oath required by several Statutes 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 And 2. The Clause in the Statute 12 Car. 2. whereby it is declared That by the undoubted and fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament or out of Parliament nor the People Collectively or Representatively nor any other Persons whatsoever had have or ought to have any Coercive Power over the Persons of the Kings of this Realm What has before been observed from and upon Mr. Falkner's Answer Vid. Chap. 2. Christian Loyalty might make it needless to take notice of the Objection from either of these Clauses were it not that many either cannot or will not observe what lies at the least distance I shall not here insist in answer to the first part of the Objection on the necessity of a Commission and a King continuing legal in the Exercise as well as Possession of Power nor the difference between the Traiterous Acts of single Persons and the Revolt of a Nation nor yet upon the Authority of the Common Law whereby a Constable or other Officer chosen by the people Vid. Justin Pandec l. 1. tit 3. Nulla juris ratio aut aequitatis benignitas patitur ut quae salubriter pro utilitate hominum introducuntur ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem may act without any Authority from the King And for rhe latter part of the Objection as Coertion is restrained to the Person of the King the declaring against that is not contrary to the Authorities for discharging Allegiance by a judicial Sentence or otherwise by virtue of equitable and implied Reservations provided a tender regard to the Person be still observ'd But if proceedings to free our selves from his Authority fall under this Coertion then I shall offer something which may remove both this and the other from being objections to what I have above shewn To keep to what may equally reach to both Authorities I shall not urge here Vid. Rot. Parl. 39 H. 6. n. 18. That these Statutes being barely declaratotory and Enacting no Law for the future introduce none so that if the Fundamental Laws shall appear to be otherwise the Declarations do not supplant them Nor yet to insist upon a Rule in the Civil-Law That the Commonwealth is always a Minor Vid. Cujac
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
been split into the Constable Chancellour Treasurer and the Grand Maistre du France or Count du Palais which he seems to resemble to an High-Steward with us The Author of the Sighs of France shews Les soupirs Mem. 7. p. 167. that when Childebert was chosen King they chose Grimoald for Maire du Palais And says he Through all our History we may always see a very clear distinction between the Officers of the King's House and those of the Crown This distinction remains to this day as a Monument of the Ancient Liberty of the French For we say the Great Master of the King's Houshold the Great Chamberlain c. But we say the Constable of France the Admiral of France the Chancellour of France And these last Charges do not dye with the King whereas the Officers of the King's House dye with the King and may be changed by his Successour The Reason of this difference comes from this That that which is given by one King may be taken away by another But the Officers of the Crown being made by the People and by the Realm cannot be turn'd out by the King alone And it is very remarkable that these Offices of the Crown which the States of the Kingdom may give and which they alone can take away may extend to the whole to the War to Justice and to the Finances or Treasury In a Book published in Queen Mary's Reign which at least went under the name of Bishop Poinet one of our Confessors History of Passive Obedience p. 38. who fled to Germany from the Marian Persecution such a Power as is above mentioned is affirmed to have belong'd to the High Constable of England Treatise of Politick Power Anno 1556. As God says the Author has ordained Magistrates to hear and determine private Matters and to punish their Vices so also will he that the Magistrates doings be call'd to account and reckoning and their Vices corrected and punished by the Body of the whole Congregation or Commonwealth As it is manifest by the meaning of the Ancient Office of High-Constable of England unto whose Authority it pertained not only to summon the King personally before the Parliament or other Courts of Justice to answer and receive according to Justice but also upon just occasion to commit him to Ward Theloal in his Digest of Writs Printed in the year 1579. 21 Eliz. Collects what is in the Year-Books concerning Summoning the King Theloal's Digest tit Roy. p 71. This was H. 3. Vid. 22. E. 3. f. 3. b. Trin. 24 E. 3. f. 55. b 43 E. 3.22 a. Wilby Justice Fuit dit H. 22 E. 3. que en temps le Roy Henry devant le Roy fuit impled come serroit autre home de people Mes Edward son fits ordein que home sueroit vers le Roy per petition Et issint dit suit T. 43. E. 3.22 que en temps le Roy Henry le Roy ne fuit mes come comune person car a ceo temps home averoit brief d'entre sur disseisin vers le Roy touts autres maners d'actions come vers auters persons c. Et Wilby dit T. 24. E. 3.23 que il avoit vieu tiel brief Precipe Henrico Regi Angliae c. En lieu de quel est ore done petition pur sa Prerogative It was says he held Hil. 22 E. 3. that in the time of King Henry and before the King was impleded as any other Man of his people but Edward his Son ordain'd That a Man shall sue to the King by Petition And so it was said Trin. 43 E. 3.22 That in the time of King Henry the King was but as a common person for at that time a Man might have a Writ of Entry upon Disseisin against the King and all other manner of Actions as against other persons c. And Wilby said Trin. 24 E. 3.23 That he had seen such a Writ Precipe Henrico Regi Angliae in lieu of which now a Petition is given for his Prerogative Sir Robert Cotton of the Constable of England MS. in the Herald's Office It may be difficult to distinguish between the Office of the Earl of Chester and the Constable of England who as Sir Robert Cotton held is Second to the King and has the Custody of his Sword the carrying which as appears by Matthew Paris belonged to the Earl of Chester by reason of his Palatinate and yet at the same time Humphrey de Bohun Earl of Hereford Constable of England was in full possession of his Office Dugdale 's Bar. 1. Vol. f. 180. 11 H. 3. he stood up with the Earl of Chester and others on the behalf of Richard the King's Brother and was alive and in England 20 H. 3. when the Earl of Chester carried the Sword as of Ancient Right so that one seemed to have the right to carry the other to keep the Sword The Office of Constable seems to have been no ancienter than the the time of W. 1. Vid. Patent to Earl Rivers Temp. E. 4. Vid. 2 d. Part. to which the Patents for the Office refer but the Earldom of Chester and its Rights were Ancienter Wherefore one would think that W. 1. erected the Office of Constable to ballance that of the Earl Palatine Sir Rob. Cotton Of Constable c. MS. sup The other Great Officers the High-Steward and Marshal are easily distinguishable from the Constable and as Sir Robert Cotton observes the Office of Constable was of Military that of the High-Steward of a Civil Jurisdiction The Marshal was in the nature of an High Sheriff Vid. Stat. 3. R. 2. Stat. 1. C. 2. Of the Constable and Marshal Flet. lib. 2. c. 60. Of the Steward and Marshal So Ryle 's Placita Parl. f. 126. 21 E. 1. Selden 's Bar. 2 d Part c. 5. f. 739 F. 743. to see to the Execution of the Process and Judgments of either and yet had a Judicial Power with both In some Cases all three acted with joynt authority as appears by the most Ancient Copies of the Modus tenendi Parliamenta which tho' it has been put into Latine since the Conquest and has the names of Things and Offices adapted to what was known and in use at the time of the Translation from the Saxon MS. yet certainly for substance gives a true account of what was before the Conquest Mr. Selden supposes it to have been no ancienter than about the time of E. 3. yet confesses that he had from Mr. Hackwel a Copy of an Inspeximus 12 H. 4. Exemplifying under the Great Seal most of the particulars that occur in the ordinary Modus for England fitted for Ireland as sent thither by H. 2. but it would have been very strange if there should have passed an exemplification under the Great Seal of what was a meer fiction The Modus says Modus tenendi Parl. Cum dubitatio vel casus difficilis pacis vel
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis 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 Anno 789. 2. From the Practise 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 THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris
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
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