Allegiance which I have promised by Oath to him cease though he hath the same right to it 2dly When we say a King out of Possession hath righ tto the Allegiance of his Subjects we mean not an immediate right but mediate i. e. our meaning is That first he hath right to Possession and actual Government and by that to Allegiance he therefore must be first in Possession before we can exert the Allegiance due to him Accordingly though Edward the Fourth is by Act of Parliament in the First Year of his eign declared to have been in Right See Bagot's Case 9 H. 4. Term Trin. from the Death of the Right Noble Prince Richard Duke of York very just King of the Realm of England yet because he only took upon him to use his Right and Title to the said Realm of England on the Fourth of March A. D. 1460. and entered only then into the Exercise of the Royal Estate Dignity Preheminence and Power of the same Crown and to the Governance of the said Realm of England by the amotion of Henry the Sixth till then King in Deed though not of Right therefore is he said by the Act of Parliament to have been only on the Fourth day of March in the lawful Possession of the same Realm with the Royal Power Preheminence Estate and Dignity belonging to the Crown thereof and then only to be lawfully seized and possessed of the Crown of England in his said Right and Title and of all Prerogatives belonging to it Now what is only thus of Right may be both promised and performed to another whilst this other is in Possession though he be not de jure so provided he be so according to the Course of Law or the accustomed Rights of giving and receiving Possession as is apparent in the Case of a Lord of a Manor who is thus in Possession of what is the Right of another who is by Fraud or corrupt Verdict or Judgment outed of his Right for the Homage due of Right to the true owner is here by Law as occasion offers it self to be sworn to the unjust Possessor Nay we read of divers Acts of Parliament continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only proclaiming him who had the right Title Heir apparent to the Crown as in the very Case of * In ipsa autem vigilia capta fuit conclusio differentiae hujusmodi viz. Quod Dux Filii sui Edvardus Comes Marchiae ac Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum jam decreverat addendo de ipsius Regis consensu quod quamprimum Rex ille in fata discesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Croyl Ed. Oxon. p. 550. Richard Duke of York and Henry the Sixth and in the Case of †Theobaldus Cantuariensis Utrosque demum ad concordiam emollivit in tantum quod Rex Juvenem Ducem in filium susceperit adoptivum juramenti attestatione Regni sui constituit Haeredem Regi tamen honorem debitum fidemque dum viveret Dux ipse promiserat se conservaturum Ibid p. 451. Vide Dunelm continuat p. 282. King Stephen and Henry Duke of Normandy Not to mention the Treaty of Peace made afterwards for the avoiding the shedding of Christian Blood ‖ Daniel 's Hist pag. 91. That Henry the First being invested with the Crown by the Act of the Kingdom should enjoy the same during his Life though the just Title was in Robert. This Assertion n. 17. Obj. 3. That actual Possession makes a Sovereign Lord the King for the time being destroys all Hereditary Successions in which the Heir is the power in being without farther Act done by him or passed by the People or others and without actual Possession Since it is certain that no person can now claim by a Paternal Authority uninterrupted from the beginning Answ 't is certain that all Kingdoms are now Hereditary by virtue of their own Consent and Compact or by their own Establishment that the Crown shall be continued in such a Line it therefore is Hereditary because they have consented and agreed it should be so If then all Parties concerned have consented also to a Law that a King in quiet Possession of this Government shall be looked upon for th etime being as the Heir that is shall be to all intents and purposes as much our Sovereign Lord the King as if he were so Cook 's Instit par 3. c. 1. p. 7. This Law can bear no Contradiction to such an Hereditary Succession but only be a wise Provision that in the interruptions of the Regular Succession Justice should never fail there being by the Law always a King in whose name the Laws are to be maintained and executed and therefore they who have the least acquaintance with our History must know that tho' our Kings de facto were more numerous before the Union of the two Houses than those de jure yet are they equally placed in the Catalogue of the Hereditary Kings of England and Allegiance was sworn to them by their subjects without any Scruple as well as to the Kings de jure 2dly That the Heir is of Right the Power without farther Act done by him than claiming of the Crown may be granted but that he is actually the Power in Being whilst he is uncapable by being out of Possession to exercise any Act belonging to the Supreme Power is denied For we find throughout the whole History of the Kings of England Vide Knighton Chron. l. 2 c. 5 8. That they who had the Right by Proximity of Blood but wanted Possession See the whole Pedegree of them in Bagot's Case 9 Ed. 4. Term. Trin. were never owned as Kings and Queens of England as is visible in the Case of Robert the Eldest Son of the Conqueror of Maud the Empress of Germany Prince Arthur and Elenor his Sister and of all the Issue of Lionel Duke of Clarence who by the Judgment of the High Court of Parliament in the Eighth of Richard the Second were declared Heirs Apparent to the Crown in case King Richard should die without Issue as he did On the other hand they who were Kings de facto and not of Right as unquestionably were King Stephen and King John Ed 4. 1º c. 1. and as Henry IV V and VI. by Act of Parliament were declared to be were always reckoned as true Kings of England and Allegiance was sworn and paid to them as such An Inferior Magistrate is not to be obeyed or owned as our Superior in opposition to a Superior Magistrate's Command n. 18. Obj. 4. because in such things he hath no lawful Call Warrant or Commission and for the same
sunt quatenus permitteret sibi leges proprias consuetudines Antiquas habere in quibus vixerant Patres eorum ipsi in eis nati nutriti sunt scilicet leges Sancti Edwardi Et ex illo die magna Authoritate veneratae per universum Regnum corroboratae conservatae sunt prae caeteris Regni legibus leges R. Edwardi Chron. Eccl. Lichsield apud Seld. ibid. p. 171. Chronicle of Lichfield doth informus That the whole Community of England sued to the Conqueror that he would permit them to have the proper Laws and ancient Customs in which their Fathers had lived and under which they were born and educated viz. the Laws of St. Edward and that the King consented to their Petition 2dly When they had fought for the Empress Maud against King Stephen and placed her upon the Throne they (h) Interpellata est a civibus Londinensibus ut liceret eis uti legibus Sancti Edwardi non legibus Patris sui H. quia graves erant sed illa non adquievit inde populus commotus illam capere Statuit Chron. Job Brompton p. 1031. Chron. Gervas p. 1355. Henr. de Knyght p. 2387. requested her to Grant to them the Laws of King Edward and upon her denial of that request they again thrust her from the Throne and forced her out of the Kingdom 3dly (i) Cum autem haec Charta perlecta Baronibus audientibus intellecta fuisset gavisi sunt gaudio magno valde juraverunt omnes in praesentia Archiepiscopi saepe dicti quod viso tempore congruo pro his libertatibus si necesse fuerit decertarent usque ad mortem M. Paris p. 167. When the Archbishop of Canterbury in the days of King John produced the Charter of Henry the First by which He granted the ancient Liberties of the Kingdom of England according to the Laws of King Edward with those Emendations which his Father by the Counsel of the Barons did ratifie this Charter being read before the Barons they much rejoiced and swore in the presence of the Archbishop That for those Liberties they would if need required spend their blood And 4thly They made this one part of the (k) Sequitur forma juramenti soliti consueti praeftari per leges Angliae in eorum Coronatione quod Archiepiscopus Cantuariensis ab iisdem Regibus Exigere recipere consuevit Concedis justas leges consuetudines esse tenendas promittis per te esse protegendas ad Honorem Dei corroborandas quas vulgus elegerit Resp Concedo promitto Vid. Book of Oaths H. de Knyght p. 2746. Coronation Oath of the Kings of England That they should consent to the observation of the just Laws and Customs which the Community of the Realm had chosen and especially of the Laws of King Edward And in the time of Richard the 2d it is declared That the usual and customary Oath which the Kings of England took at their Coronation and which the Archbishop of Canterbury was wont to exact of them and receive from them was That they should grant that the just Laws and Customs which the Community had chosen should be observed and confirmed by them All which things put together seem to conclude an Original compact or establishment of Laws by which the Kings of England were to Govern and the Kingdom to be Governed and the Continuance and the Renewal of that Original Establishment by our succeeding Kings Add to this that Rule of Grotius That * Successio non est titulus imperii qui imperio formam assignet sed veteris continuatio jus enim ab Electione coeptum familiae succedendo continuatur quare quantum prima Electio tribuit tantum defert successio De jure Bell. l. 1. c. 3. §. 10. Succession is not a Title of Empire which gives the form to it but is only a continuation of the old Title the Right begun by the Election of the Family being continued by Succession and thence with him we reasonably may inferr That Succession only brings down to Kings what the first Election gave and makes them only Kings according to the Compact and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority To this Historical Account of the present subject I add these words in the preamble of the Statute made 25. of H. 8. to forbid Impositions paid to the See of Rome Cap. 21. Your Grace's Realm recognising no Superior under God but only your Grace hath been and is free from Subjection to any Man's Laws but only to such as have been devised made and obtain'd within the Realm for the Wealth of the same or to such other as by sufferance of your Grace and your Progenitors the People of this your Realm have taken at their free liberty by their own consent to be used among them and have bound themselves by long use and custom to the observance of the same not as to the Laws of any Foreign Prince Potentate or Prelate but as to the customed and ancient Laws of this Realm Originally Established as the Laws of the same by the said Sufferance Consent and Cisstom and none otherwise In which words 1. There seems to be a plain distinction between ancient and accustomed Laws of this Realm which the People enjoy by Susferance of our Kings or were induced into it by the said Sufferance Consent and Custom and Laws made devised and obtained within this Realm for the wealth of the same these latter being Statute-Laws Leges istae vocatae sunt leges Sancti Edvardi non quia ipsas primo invenerat sed quia quasi sub modio positae in oblivione derelictae a tempore R. Edgari avi sui qui primo manum suam misit ad ipsas inveniendas statuendas Henr. de Knyght de Event Ang'l l. 1. c. 15. Chron. Lichfield ubi supra Sir Robert Atkyns Enq. into the Disp Power p. 9. the other being Laws Originally Establish'd and Ancient Customs of the Realm which the People of this Realm have taken at their free liberty by their own consent to be used among them and our Kings finding thus established suffer'd them to enjoy And these the Histories and Records I have cited tell us were the Laws of St. Edward or rather of King Edgar renewed and confirmed by St. Edward which the Community of England desired of King William and his Successors that they might enjoy by his and their sufferance or permission and which accordingly He and they consented that they should enjoy as their proper Laws and ancient Customs swearing also at their Coronation to maintain protect and to corroborate them and which the Archbishop of Canter bury at his Coronation of them always exacted to be granted to the People To which may be added the Laws contained in Magna Charta which though they run in the stile of a Grant from the King
CONSIDERATIONS Humbly Offered for Taking the Oath of Allegiance TO KING WILLIAM AND Queen Mary Optima Regula qua nullae est verior aut firmior in Jure Neminem oportet esse sapientiorem legibus LONDON Printed by J. Leake for Awnsham Churchill at the Black Swan at Amen-Corner MDCLXXXIX THE PREFACE ALthough I have insisted chiefly on the following Argument because it seems most fully to take off that scandal from the Genuine Members of the Church of England which others seem not so to have regarded as the importance of the matter doth require yet do I by no means condemn those Writings which plead for taking the imposed Oath upon such Grounds as do more fully justifie the Title of our present Governors which as I never will dispute so I conceive my self unable by reason of my want of Knowledge in the Law to pass an exact judgment in that matter But yet in matters which chiefly do relate to History it may not be improper for one of my Profession to produce what He by reading of our Historians hath observed When by the Greatest Councils of our Nation an Original compact or establishment betwixt the King and People was asserted few can be ignorant with what disdain the Notion was received and how 't was represented as an imaginary notion without foundation either in History or Law or with what earnestness an evidence or prospect of such a contract was demanded Now in order to the satisfaction of such Enquirers be it observed 1. That Florence of Worcester Simeon of Durham and R. Hoveden do with one voice assert That (a) Ubi Aldredus Archiepiscopus Walffunus Wigornensis Episcopus Clito Eadgarus comites Eadwinus Morcarus de Lundonia quique Nobiliores cum multis aliis ad eum venerunt datis obsidibus illi deditionem fecerunt fidelitatemque juraverunt cum quibus ipse soedus pepigit c. Flor Wigorn p. 635. Dunelm p. 195. R. Hoved. Par. Pr. p. 258. William called the Conqueror made a League or Compact with the Archbishop Bishops Earls and Nobles of the Land who met him at Beorcham To this it is indeed replied by Dr. Brady That there was no Election no Consent of the People no Bargain strucken or Covenant made to observe and keep the Laws which were bonae approbatae leges Regni the good and approved Laws of the Kingdom but on the contrary here is the Submission of the People the Behaviour of a Conqueror Hostages taken Towns burnt Rapine committed Answ to Arg. Antinorm p. 251. and He himself made King by the influence of an Army To which I Answer 1. That Gulielmus Gemiticensis and Walsingham expresly say That William the Conqueror was (b) Ab omnibus tam Normannorum quam Anglorum proceribus Rex est Electus Gul. Gemit de ducibus Norm l. 6. c. 37. Walsingh Hypod. Neuslriae p. 436. Elected King by all the Nobles of England and Normandy 2. Florence of Worcester Simeon of Durham R. Hoveden Daniel p. 36. and John Brompton declare That as the Bishops and Barons of the Realm swore Fealty to him so He reciprocally (c) Cum quibus ipse foedus pepigit nihilominus exercitui suo villas cremare rapinas agere permisit Appropinquante igitur Nativitatis festivitate cum omni exercitu Lundoniam ut ibi in Regem sublimaretur adiit ipsa Nativitatis die ab Aldredo Eboracensium Archiepiscopo in Westmonasterio consecratus est honorifice prius ut idem Archipraesul ab eo exigebat ante Altare Sancti Petri Apoftoli coram clero populo jurejurando promittens se velle Dei Sanctas Ecclesias ac Rectores illarum defendere hec non cunctum populum sibi subjectum juste Regali providential regere rectam legem statuere tenere rapinas injustaque judicia penitus interdicere Flor. Wigorn p. 634 635. Dunelm p. 195. Hov p. 258. Ipsum Regem W. ad jura Ecclesiae Anglicanae tuenda conservanda populumque suum recte regendum leges rectas statuendum facramento solenniter adstrinxit Chron. Job Brompt p. 962. being required thereto by the Archbishop of York made his Personal Oath before the Altar of St. Peter to defend the Holy Church of God and the Rectors of the same to govern the Universal People subject to him justly to establish equal Law or Laws and to see them duly executed And when new Commotions were made by the Nobility and Clergy upon their Submission and Oath of Allegiance re-taken Ibid. p. 37. He himself takes again his Personal Oath (d) Occurrerunt igitur Angli memorati ubi post multas deceptationes praesente Archiepiscopo Lanfranco Rex pro bono pacis juravit tactis Sacrosanctis Evangeliis bonas approbatas antiquas Regni leges quas Sancti ac pii Angliae Reges ejus Antecessores maxime Rex Edvardus statuit inviolabiliter obhservare sic pacificati ad propria laeti recesserunt M. Paris in Vit. 23. Mon. p. 30. before Archbishop Lanfranc and the Lords for the Good of Peace NB. to observe the Ancient Laws of the Realm established by his Noble Predecessors the Kings of England and especially of Edward the Confessor 3. R. Hagulstadensis S. Dunelmensis R. Hoveden M. Paris Henry of Knyghton and W. of Malmsbury inform us That (e) Legem R. Edvardi vobis reddo cum illis emendationibus quibus Pater meus eas emendavit consilio Baronum suorum R. Hagustald p. 311. Dunelm p. 225 226. Fioveden part 1. p. 268. Mat. Paris p. 38. Henr. de Knyght p. 2374. W. Malmsbur l. 5. p 88. Henry the First granted to all the People the Laws of Edward with the Emendations which his Father had made of them strengthening them with his own Oath and the Oath of all his Nobles that they might not be eluded And W. Lambara in his Book of the Ancient Laws of England cites this as one of the Laws of William the Conqueror (f) Hoc quoque praecipimus ut omnes habeant teneant legem Edwardi Regis in omnibus rebus adauctis hiis quas constituimus ad utilitatem Anglorum Apud Seld. Annot ad Eadmer p. 192. This also we Command That All men have and keep the Law of King Edward with the Additions we have made to them for the benefit of the English-men All which things plainly shew in opposition to the Assertion of Dr. Brady That there was an Election of William the Conqueror a bargain strucken between him and his Subjects and that He did consent covenant and swear to observe the good and approved Laws of the Realm and in particular those of King Edward And whereas the same Dr. Brady saith P. 25. These Laws of King Edward were mostly penal or else of small moment our Forefathers were far from having such a slight opinion of them For 1. The (g) Sed postea ad preces communitatis Anglorum Rex adquievit qui deprecati
reason a King de facto is not to be owned or obeyed as our Superior in opposition to a King de jure because he cannot be supposed to have a lawful Call or Warrant to Exercise the Kingly Government If an Inferior Magistrate hath a Law to warrant his Commands Answ he is to obeyed even against the verbal commands of his Superior without law Now a King de facto in quiet Possession hath a Law to warrant his Acting as our Sovereign Lord the King and requiring our Faith and true Allegiance ot him for the time being he therefore is to be owned and obeyed as having a legal Call to the Government for the time being Secondly To give a satisfactory Answer to this and many Objections of the like nature it will be proper to consider what a Call or a Commission to be the Governor of any Nation doth import and for the Resolution of this Enquiry let it be noted 1. That God doth not now as in the Case of Saul and David by himself appoint and nominate the Person who shall sway the Sceptre in any Nation of the World. We see by plain Experience God doth not interpose in this extraordinary manner in the Election or Constitution of Superiors The Roman Emperors had no such Appointment but were Elected by the roman Armies or chosen and confirmed by the Senate whence it must follow That an immediate Appointment or Designation of the Person by God cannot be necessary to render any Prince God's Ordinance 2. By virtue of God's general Appointment or Ordinance that all Nations shall have some Government placed over them no Individual Person can claim a Right to be the Higher Power in any Nation moe than Others nor are the People tied to yield Subjection by it to this Man rather than to that As then the former Designation was more so this is less than reasonably can be required to make a Man the Individual Person who is God's Civil Ordinance in reference to such a Nation 3. It cannot be said of any Person or Family at present in the World That he or it claimeth or holdeth the Throne in any Nation by a Right of Fatherhood or Primogeniture derived from Adam I know no Prince on Earth who thus pretendeth to derive his Pedigree and am perswaded that if any hath the Vanity to make such an Extravagant pretence he cannot thus make out his Title It remains therefore 4. That Government be conveyed to this or that Individual Person or Family by Compact or Consent and Choice of the Persons governed that such a Person or Family shall Exercise the Government over such a Nation it therefore must be that Choice Consent or Contract of the Persons to be governed which renders any person the Ordinance of God to such a Nation that is it must be granted that all the present Governors of any Nation become God's Ordinance to them by the Consent of the Community Where therefore any person is invested with the Supemacy by them to whom God hath committed the Choice of a Superior or by their consent to have such Persons for their Superiors there is the Ordinance of God. And if they do admit that person to the Government who by Constitutions and antecedent Compacts hath a right to be so he is to them the Ordinance of God de jure If in this Choice they deviate substantially from these Constitutions he only is the Ordinance of God de facto but yet he truly is the Ordinance of God because he is so by the only means which God hath left for the Investing any Individual Person with that Office. Hence do we find throughout the History of our Kings that the Election of or else a Compact with the People hath generally been looked upon as a thing proper either to satisfie the People or to strengthen their Title to the Crown thus v. g. Of the Conqueror Dunelm p. 195. Hoved. par 1. p. 258. Simeon Dunelmensis and Hoveden inform us That Foedus pepigit he made a Covenant with his People and at his Coronation took an Oath to defend the Holy Church f God and the Rectors of the same to govern the Vniversal People Subject to him justly to establish equal Laws and see them duly executed Daniel p. 36. William the Second held the Possession of the Crown of England by the Will of the Kingdom Ibid. p. 52. the Succession in Right of Primogeniture being none of his * Dan. p. 61. Rich. Hugust p. 310. Henry the First was invested in the Crown by the Act of the Kingdom concilio Communi Baronum Regni Angliae saith the King. King Stephen declares himself to be chosen King †Assensu populi Cleri in Regem electum Malmesb. Hist Nov. l. 1. f. 101. b. Rich. Hugust p. 314. by the consent of the People and the clergy as he had good reason to do having no title at all saith Daniel but as one of the Blood by meer Election advanced to the Crown p. 69. King John received the Crown by way of Election as being chosen by the States saith Daniel The Succession of Edward the Second saith 1 Pag. 127. Non tam jure haereditario quam unanimi assensu procerum Magnatum Ed. Franc. 1602. P 95. Walsingham was not so much by Right of Inheritance as by the unanimous Assent of the peers and Great Men. Edward the Third was Elected 2 Dan. p. 217. Cui electioni consensit populus universus id p. 126. with the Vniversal consent of the People upon his Fathers Resignation Edward the Fourth on his entrance on the Government makes a solemn declaration 3 TRussel p. 179. of his Right to the Crown of England challenging it to belong to him by a double Right The first as Son and Heir to Richard Duke of York the Rightful Heir of the same The second as Elected by Authority of Parliament upon King Henry 's forfeit thereof And Henry the Seventh to all his other Titles by 4 Lord Bac. Hist of H. 7. p. 12. Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament This Principle makes Authority and Supreme Power inseparable from Actual Regency n. 19. Obj. 5. or Command investing him with the Supreme Power who hath it for the time being and making him incapable of being the Higher Power who is out of Possession whilst he so continues which seems clear contrary to the decision of the Holy Scriptures for though all Israel chose Absalom to be their King 2 Sam. xix 10. and anointed him over them though he had for the time the Kingdom in possession and David fled out of the Land leaving no Governor behind him yet the Power was in David he was even then the Supreme Governor and Higher Power to whom Subjection was due 2 Sam. xx 2. 2 Chr. xxij 12. So he was also when all Israel followed Sheba And though Athaliah possessed the