TO proceed to the Reign of H. 3. who was Crown'd by a Faction at Glocester while Lewis was in possession of London the Metropolis of the Kingdom That he came not to the Crown as Successor in an Hereditary Monarchy but upon a plain Election and Compact with part of the Nation at least in the Name of the rest who would come in under those terms may be prov'd beyond contradiction For tho' in the Language of the Homilies King John were Natural Lord to the Subjects of England yet as Arthur who was the next in the Line to King John's Predecessor had the Right of Blood Mat. Par. f. 278. as far as that could operate before King John which he insisted on in the Fourth of that King's Reign even while he was his Prisoner the same right had Eleanor Arthur's Sister all the remainder of King John's time and for some years during the Reign of H. 3. 2. The Father came to the Crown by virtue of a Free Election of the People as the Archbishop of Canterbury told him at his Coronation wherefore his Election could not invest him with more than a Personal Right unless more were express'd at the time But the Archbishop Hubert Mat. Par. f. 264. 1 Johan Audite universi noverint discretio vestra quod nullus praevia ratione alii succedere habet in regnum nisi ab universitate regni unanimiter invocatâ spiritus gratiâ Electus secundum morum suorum eminentiam praeelectus who spake in the name of the Community was so far from giving the least Umbrage to a Right that might extend to Heirs that he affirm'd That no man is Intituled to succeed to the Crown upon any other account previous to the unanimous choice of the Kingdom except only the eminence of his Virtue And being afterwards ask'd why he took such freedom of Speech He declar'd That he foresaw and was assur'd by Ancient Prophecies That King John would corrupt the Kingdom and Crown of England and precipitate it into great confusion And he asserted That he ought to be minded of his coming to the Crown by * Ne haberet liberas habâ—nas hoc faciendi Election not by Hereditary Succession least he should take a liberty to act as he fear'd 3. Since therefore what the Archbishop fear'd came to pass and that Contract in virtue of which King John assum'd the Royal Scepter was notoriously broken How can it be thought that a Right devolv'd upon his Son H. 3. especially considering the interruption that was made by a Choice of Lewis tho' not Universal I must confess there is no Evidence occurring to me that Lewis was ever Crown'd here yet considering that the Coronation as is agreed by most is but a Ceremony the bare want of it would not the less argue a breach in the Succession since the sounder part of the people took the benefit of that Forfeiture which King John manifestly made and if nothing but an Universal Concurrence in this could justify withdrawing Allegiance from him then it is hardly possible for any resisting of Tyranny to be lawful at the begining and he who is forwardest in the Cause of his Country must be always a Criminal But being there is a deep silence as to Lewis his Coronation Mat. Par. Illico Coronandus tho he was promis'd by the Barons at London to be Crown'd immediately upon his coming over I take the reason of the silence in this matter to be That if he were Crown'd in form it was by the Laity alone because the Pope was fast to the side of King John and his Son and Lewis lay under a Papal Sentence of Excommunication so that the Clergy durst not Communicate with him in those Acts of Religious Worship which accompany Coronations But these Ceremonies being to be performed by Clergy-men 't is most probable that the Laity contented themselves with the Substance and left those Ceremonies for a more convenient time But that Lewis was in Possession of the Crown and the Regalia is to be believed as London with the Tower where they us'd to be lodg'd had not only been in the Possession of his Friends from the beginning but held so till the second Year after H. had been Crown'd as it is to be presum'd with a Crown made for that purpose Whether Lewis were Crown'd or no he was as fully received by them that had withdrawn their Allegiance from King John as if he had been Crown'd and reciprocal Oaths past between them And he was so far lookt on as King Mat. Par. that Alexander King of Scots swore Homage to him for the Lands he held of the Crown of England But certain it is as the Circumstances evince that there were at least three Express and Binding Contracts which H. 3. entred into with his People either beyond or rather explanatory of what is included in the Coronation-Oath and which H. 3. was bound to observe as he would be King of England and these besides several Confirmations of the Great Charter purchas'd with the Peoples Money and one of the Grants of Aid so particularly Conditional that Treasurers for it were appointed in Parliament and the Money was to be returned upon the King 's not performing the Conditions of the Grant 1. The First Contract which I shall observe was that which Lewis perhaps induc'd to it by the Money which he borrowed of the Londoners oblig'd H. to before he would quit his Pretensions So that one was plainly the Condition of the other and as the Civilians have it ran into the other by way of Mutual Consideration Vid. inf Lewis for the reasons which I before touch'd upon finding his Interest daily decline thought good to come to terms with Henry whereby Lewis oblig'd himself by Oath to withdraw from England Mat. Par. fol. 400. with all his Followers never to return and to use his endeavours that his Father might restore all the Rights of the Crown of England which he had seiz'd on beyond Sea In consideration of which Henry the Earl Marshal of England and the Pope's Legat F. 423. N a. Discord not Rebellion f. 431. swore to the restoring to the Barons of England and all others all their Rights and Liberties for which there had been Discord between King John and his Barons This Agreement with Lewis the Great Council of the Nation afterwards insisted on 7º H. 3. when they urg'd a Confirmation of the Great Charter which they obtain'd not till 9º of that King 2. The Second particular Contract was that of which the Great Council or Parliament 28º H. 3. mind him and of which they then after much strugling purchas'd a Confirmation According to this among other things 28 H. 3. referring to 20. f. 864. Four Great Men were to be chosen by Common Consent as Guardians of the Kingdom to be the standing Council about the King with a very large Trust reposed in them The Chancellor Treasurer and
cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive
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
Salus Populi the preservation of Three Kingdoms is concern'd and in danger If then an Alteration of the Course of Descent in case of Necessity is so far from a Change of the Constitution that 't is by vertue of the Chief Fundamental Law the Salus Populi I hope it will be allowed That the Representatives of the People have upon the Vacancy of the Throne from a former Possessor which he yields to have been in the Case in question a right to judge wherein their own Safety lies Otherwise they have a Law of which they can have no benefit And since our Representatives have made so wise a determination they that do not submit to it may well be lookt upon as Persons who abdicate themselves from the benefit of this Government Nay further the Doctor confesses that for his part he knows no Law against the possibility either of a Vacancy in the Throne or an Interregnum in extraordinary Cases such as himself yields ours was But the remaining Question is Whether the Convention shewed that they meant such a Vacancy as caus'd an Interregnum Their Words as he observes are these P. 38 King James the second having Abdicated the Government and the Throne being thereby vacant So far he is in the right That the Convention went upon the Supposition of a Vacancy but their supposition did not make one neither did it make an Abdication But 't is evident that the supposition of the Vacancy as Consequent upon the Abdication was the Ground of setling the Government as it is and that they look'd upon the Vacancy as more than a freedom from the last Possessor appears by their preferring His Majesty in the Settlement Which preference had been justifiable even according to what the Doctor receives tho this King had not been of the Blood-Royal But for a farther Evidence The Stat. 1 W. M. for reviving of Actions and Process lately depending in the Courts of Westminster and Discontinued by the not holding of Hillary Term and for supplying other defects relating to proceedings at Law Consid touching the Oath in the Title page that the Throne was absolutely Vacant in the eye of the Law and so judg'd and declar'd to all Men by the Convention and Their Majesties concurring in a Parliamentary Act The Doctor may please to consider the Statute for Supplying defects relating to proceedings at Law Which provides that for Crimes committed between the 11 th of December and the 13 th of February following Informations or Indictments shall have only the year of our Lord God instead of the year of the King's Reign And where Conclusions used to be contra pacem Domini Regis they shall conclude contra pacem Regni Let not Divines therefore go to argue us out of our Government but let them submit to that Rule which Dr. Whitby cites Optima regula quâ nulla est verior aut firmior in jure neminem oportet esse sapientiorem Legibus Object 2 'T is urged That the Hereditary Right contended for has not been interrupted by the Peoples Elections so often as it should seem by the Breaches in the Succession for that many who came in before them who stood next were Testamentary Heirs of the appointment of the Predecessor Which argues an Inheritance in him that Disposes And Dr. Brady thinks he produces an Example Brady's Hist of the Succession f. 8 9. where the Election of the People was bound and limited by the nomination of the Predecessor But if he had duely weighed the Presidents of this kind he might have understood That an Election without a Nomination had full effect while a bare Nomination had none And he might have learnt from Grotius That among the Germans from whom we descend Kingdoms did not use to pass by Wills and that Wills were but Recommendations to the Peoples Choice but not Dispositions Mezray in the Life of Clotair 2. And that thus it was in France appears by their Historian Mezray who shews That anciently the King 's of France were chosen out of the Royal Race But that Three Conditions were ordinarily requir'd 1. Birth for they were to be Legitimate 2. The Will of the Father 3. The Consent of the Great Men which commonly used to follow the other two Object 3 I find it urged That as anciently as the time of E. 3. the Realm declared Vid. Debates about Deposing That they would not consent to any thing in Parliament to the Disherison of the King and his Heirs or the Crown whereunto they were Sworn Answ If any colour of evidence can be produced that the Subjects of England so early as that Swore Allegiance to the King and his Heirs this were to the purpose Knighton f. 248. Indeed I find that before this 24 E. 1 a Foreign Prince the King of Scotland Feudatory to the Crown of England did Homage to the King and his Heirs but the like not being exacted of the Subjects of England till particular Acts whereby the Crown was setled it argues strongly as indeed appears from the Subject matter That the Homage paid by a Foreign Prince was due to none but the present King and his Successor to the Kingdom whoever was next of Blood And by parity of Reason the Disherison of the King and him her or them who succeeded to the Crown was all that could be referr'd to when they urged the Obligation of their Oath to the King and his Heirs or the Crown Which appears farther Leges Sancti Edwardi tit Greve Conjurati fratres ad defendendum Regnum c. honores illius omni fidelitate cum eo servare So Leges W. 1. tit De Fide obsequio erga Regem Quod Willielmo Domino suo fideles esse volunt honores illius c. defendere Bracton Lib. 2. Cap. 29. not only from the old Oath of Allegiance to which they must needs have reference whereby they are bound to defend the Rights of the Crown but even from the Matter then in question which was not of the Right of Succession but of a Flower of the Crown Bracton puts this out of Dispute when he tells us That Inheritance comes not from an Heir but an Heir from Inheritance And that Inheritance is the Succession to all the Right which the Predecessor had by any sort of Acquisition Vid. Sir P. P. As Successors are Heirs so Dr. Brady tells us Gloss f. 18. That Prepossessor one that possessed the Land before the present possessor without any relation to Blood or Kindred is Ancestor in Doomsday and in the Writ de Morte Antecessoris Sir P. P's Obligation of Oaths f. 302. F. 298. F. 300. With Bracton agrees the Civil Law Haeredis significatione omnes significari successores credendum est etsi verbis non sint expressi By Heirs we are to believe all Successors to be signified altho' not expressed in words And again Nihil est aliud haereditas quam Successio in universum jus
not be thought that I in the least derogate from the Honour due to him when I observe matter of fact not falling within his notice The Author of a late Paper in relation to these Times has this passage not to be neglected A Letter to a Friend advising in this extraordinary Juncture All Power is originally or fundamentally in the People formally in the Parliament which is one Corporation made up of three Constituent essentiating Parts King Lords and Commons so it was with us in England When this Corporation is broken when any one essentiating Part is lost or gone there is a Dissolution of the Corporation the formal Seat of Power and that Power devolves on the People When it is impossible to have a Parliament the Power returns to them with whom it was originally Is it possible to have a Parliament It is not possible the Government therefore is Dissolv'd Hence he would argue a necessity of having a larger Representative of the People Vid. Pufend. de Interregnis p. 267. sup in Marg. that the Convention may be truly National But had this Ingenious Person observed Pufendorf's two distinct Contracts by the first of which a Provision was made for a Monarchy before any particular Person was setled in the Throne he would have found no such necessity But if immemorially the People of England have been Represented as they were for this Assembly and no needful form or circumstance has been wanting to make the Representation compleat all men who impartially weigh the former Proofs of Elections not without a Rightful Power must needs think the last duly made Dr. Brady indeed with some few that led him the Dance and others that follow will have the present Representation of the Commons of England to have been occasioned by Rebellion 49 H. 3. But I must do him the honour to own him to be the first who would make the Barons to have no Personal Right but what depends upon a King in being for he allows none to have Right of coming to Parliament Brady's first Ed. p. 227. See this prov'd upon him in the Pref. to Jus Anglorum ab antiquo but such only to whom the King has thought fit to direct Writs of Summons Yet I dare say no man of sense who has read that Controversie believes him But were his Assertions true it might be granted that the Barons would have no more personal Right to be of any Convention upon the total Absence or Abdication of a King than they would have of coming to Parliament without His Writ Yet since the Right of the People in person or Representation is indubitable in such a Case what hinders the validity of the late Choice considering how many Elections of Kings we have had and that never by the people diffusively since the first Institution of the Government And the Representations agreed on tho I take them to be earlier setled for Cities and Burroughs than for the Freeholders in the Counties have ever since their respective settlements been in the same manner as now at least none have since the first Institution ever come in their own persons or been Electors but what are now present personally or representatively and their own Consent takes away all pretence of Error If it be said That they ought to have been Summoned Forty days before the Assembly held That is only a Privilege from the King which they may wave and have more than once consented to be Represented upon less than Forty days Summons Prynne 's Animadversions on 4 Inst f. 10. Mr. Prynne gives several Instances as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and says he omits other Precedents of Parliaments Summoned within Fourty days after the Writs of Summons bear date upon extraordinary Occasions of publick safety and concernment which could not conveniently admit so long delay And Sir Robert Cotton being a strict Adherer to Form Vid. Rushw 1 Vol. f. 470. 3 Car. 1. upon an Emergency advised That the Writs should be Antedated which Trick could make no real difference To say however there ought to have been a Summons from or in the name of a King in being is absurd it being for the exercise of a lawful power which unless my Authorities fail the people had without a King or even against the consent of one in being Besides it appears That such Summons have not been essential to the Great Councils of the Nation Tacitus shews That the Germans Tacit. de Moribus German Coeunt nisi quid fortuitum subitum certis diebus c. V. Leges S. Ed. tit Greve In Capite Kal. Maij. Jus. Angl. c. 7. Vid. Append. from whom we descend had theirs at certain days unless when some extraordinary matter happened And by the Confessor's Laws received by W. 1. and continued downwards by the Coronaton Oaths requir'd to this very day the General Folcmot ought to be held annually without any formal Summons upon May-day By the time of E. 1. this custom to hold a Parliament upon May-day received a little alteration for the Pope having at the beginning of that King's Reign demanded eight years Arrears of an Annual payment which he claim'd for the Kingdom of England the King had put him off till the next Parliament which he said had us'd to be held in England about the Octaves of our Saviour's Resurrection This Parliament was held at the Octaves accordingly as the King acknowleges upon the Pope's second demand but pleads that it had been taken up with the great Affairs of the Nation till his want of Health occasion'd a Dissolution before they could consider oâ—… tt Matter which he promis'd should be brought before them at the next Parliament which he purposed to hold at Michaelmas then following The Statute 16 Car. 1. which our rigid Formalists must own to be in Force has wholly taken away the necessity of Writs of Summons from a King Stat. 12. Car. 2. c. 1. The Assembly of the Lords and Commons held Anno 1660. was summoned by the Keepers of the Liberties of England not by the Kings Writs yet when they came to Act in conjunction with the King they declare enact and adjudge where the Statute is manifestly declaratory of what was Law before That the Lords and Commons then sitting are and shall be the Two Houses of Parliament notwithstanding any want of the King 's Writ or Writs of Summons or any defect or alteration of or in any Writ of Summons c. Tho' this seems parallel to the present Case yet in truth ours is the strongest For the King then had been only King de jure no Authority could be received from Him nor could any Act of His be regarded in Law through defect either of Jurisdiction or Proof if not both Accordingly as not only the Reason of the thing but the Lord Coke shews 3 Inst f. 7. Sup. in Marg. a Pardon from one barely King de jure is of
Honour Nature and Dewtie an inordinate seditious and slaundres Act was made agayns the most famous Prince of blessed memory Kinge Herrie the Sixte his Vncle in the Parliament holden at Westminster the fourth day of November the first Year of the Reigne of Edward the Fourth late King of England whereby his said Vncle contrary to due Allegianee and all due Order was attainted of High Treason Wherefore our same Soveraigne Lord by the Advice and Assent of the Lords Spirituals and Temporals and Comines in this present Parliament assembled and by Auctoritie of the same ordeineth enacteth and establisheth that the said Act and all Acts of Attainder Forfaiture and Disablement made or had in the said Parliament or else in any other Parliament of the said late King Edward ayenst the said most blessed Prince King Herrie or against the right famous Princess Margaret late Queen of England his Wife or the right victorious Prince Edward late Prince of Wales Son of the same blessed King Herrie and Margarett Jasper Duke of Bedford late Earl of Pembroke or Herrie late Duke of Somerset the which Jasper and Herrie late Duke of Somerset for their true and faithful Allegiances and Services done to the same blessed King Herrie were attainted of High Treason or any of them by what Name or Names they or any of them be named in any of the said Acts be ayenst the said blessed King Herrie Queen Margaret Edward late Prince and the same Dukes and the Heirs of every of them void annulled repelled and of no Force ne Effect N. X. Vid. CAP. F. 103. SAnctissimo in Christo Patri Domino Claus 3. E. 1. m. 9. Cedula In a Letter to the Pope Domino G. divinâ providentiâ Sacro-sanctae Romanae Ecclesiae universalis Ecclesiae summo Pontifici Edwardus ejusdem gratiâ Rex Angliae Dominus Hiberniae Dux Aquitaniae Cum reverentiâ honore salutem pedum oscula beatorum Mandavit nobis olim per literas Apostolicas quas pronâ mentis devotione recepimus vestra sanctitas reverenda ut annuum censum in quo Sacrosanctae Rom. Ecclesiae ratione Regni Angl. pro octo praeteritis annis asseritis nos teneri venerabili vestro Magistro R. de Nogeriis Capellano vestro assignari liberaliter ac integrè nomine pred Rom. Ecclesiae faceremus Nuper autem alias literas vestras recepimus cum Reverentiâ continentes quod cum nos respons Relationis solutionis Censûs annui memorati quam nobis pred Capel vester exposuit vestrae Ecclesiae Romanae Nomine diligenter Deliberatione Consilii Procerum Regni nostri in Parliamento quod circa Octabas Resurrectionis Dominicae celebrari in Angliâ consuerit pro eo duximus reservand quod tempore receptionis pred lit vestrae noviter ejusdem Regni gubernacula sumpseramus nunc de hujusmodi censu sine ulteriori procrast impendi faceremus eidem satisfac plen Capellano Fatemur enim S. Pater Domine ad Parliament nostrum in Octabis Resurrectionis Dominicae prox pret Regni nostri Praelatos Proceres evocasse ibique multa statuisse divinâ gratiâ favente quae meliorationem statûs Ecclesiae Anglicanae reformationem Regni ejusdem respiciunt communes profectus populi capiant incrementa Set antequam eidem Parl. propter negotiorum multitud quae reformationis remedio indigebant finem imponere valeremus Eodem Capellano vestro responsionem debitam sibi fieri instanter postulante quaedam gravis nos invasit sicut Domino placuit infirmitas corporalis quae perfectionem multorum aliorum negot deliberationem Petitionis Censûs annui supardict de quo dolemus non modicum impedivit Sicque cum occatione infirmitatis hujusmodi à quâ per Dei gratiam cujus est perimere mederi incepimus convalescere Idem Parl. fuerit dissolutum super hoc nequiverimus super Petitione Censûs ejusdem deliberationem habere cum Praelatis Proceribus antedictis sine quorum communicato consilio sanctitatae vestrae super predictis non possumus respondere Et jurejurando in coronatione nostra prestit sumus astricti quod jura Regni nostri servabimus illibata nec aliquod quod Diadema tangat Regni ejusdem absque ipsorum requisito consilio faciemus Reverende Benignitati vestrae humiliter supplicamus pro dono petimus spirituali quatenus molestè non ferat sanctitas vestra si ad praesens super pred sicut vellemus non possumus respondere Imo patientia vestra paterna si placet nos super hoc habere dignetur excutatos Pro firmo scituri pie Pater Domine quod in alio Parliamento nostro quod ad festum Sancti Michaelis prox fut intendimus dante Domino celebrare habito communicato Consilio cum Praelat Proc. memoratis vobis super praem ipsorum Consilio dabimus responsionem Conservet vos Dominus Ecclesiae Sanctae suae per tempora longaeva Teste meipso apud Westm 19. die Junii Anno Regni nostri 3o. The Present CONVENTION a Parliament N. XI Vid. CAP. 10. F. 111. I. THat the formality of the King 's Writ of Summons is not so essential to an English Parliament but that the Peers of the Realm and the Commons by their Representatives duly Elected may legally Act as the great Council and Representative Body of the Nation though not summon'd by the King especially when the Circumstances of the time are such that such Summons cannot be had will I hope appear by these following Observations First The Saxon Government was transplanted hither out of Germany where the meeting of the Saxons in such Assemblies was at certain fixed times viz. at the New and Full Moon But after their Transmigration hither Religion changing other things changed with it and the Times for their publick Assemblies in conformity to the great Solemnity celebrated by Christians came to be changed to the Feasts of Easter Pentecost and the Nativity The lower we come down in Story the seldomer we find these General Assemblies to have been held and sometimes even very anciently when upon extraordinary Occasions they met out of course a Precept an Edict or Sanction is mentioned to have issued from the King But the Times and the very Place of their ordinary Meeting having been certain and determined in the very first and eldest Times that we meet with any mention of such Assemblies which times are as ancient as any Memory of the Nation it self hence I inferr that no Summons from the King can be thought to have been necessary in those days because it was altogether needless Secondly The Succession to the Crown did not in those days nor till of late Years run in a course of Lineal Succession by right of Inheritance But upon the Death of a Prince those Persons of the Realm that Composed the then Parliament Assembled in order to the choosing of another That the Kingdom was then Elective though one or other of the Royal
Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the youngest Son of King William the First procur'd an Assembly of the Clergy and People of England to whom he made large promises of his good Government in case they would accept of him for their King and they agreeing That if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some Oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties pass'd the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Father Life-time to acknowledg her for their Sovereign after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the King's Brother to treat of the great and weighty Affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the King's Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3 d. died his Eldest Son Prince Edward was then in the Holy Land and came not Home till within the third Year of his Reign yet immediately upon the Father's Death all the Prelates and Nobles and four Knights for every Shire and four Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I inferr from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our Old Constitution Assemble together in a Parliamentary way without them to treat of and settle the Publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick Business whatsoever without a new Election they having as great Authority as the People of England can delegate to their Represantatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annull'd 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and Attainders thereupon were Repealed in a Parliament held Ann. 21. of that King which Parliament was procur'd by forc'd Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Parliament and those Persons were by the King's Writs to the Sheriffs commanded to be returned and yet they passed Acts and their Acts though never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd insomuch that it was debated in Queeen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential Considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authothority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the King 's Writ and yet they made Acts and the Royal Assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I Infer that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament ALLEGATIONS In behalf of the High and Mighty Princess THE LADY MARY NOW Queen of Scots Against the Opinions and Books set forth 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 London Printed by J. D. in the Year 1690. THE PUBLISHER TO THE READER I Thought it not improper to subjoin the following Treatise written by a Lawyer in Queen Elizabeth's Time whether ever printed or no I cannot say in favour of the Title of the Queen of Scots against the Pretences of the Lady Katherine descended from the
lay to hold in Vassallage of the Pope as well as by other his Exorbitances yet was not set aside till the Nation was necessitated to it by the Success of his Usurpations and Ravages to which as he was encouraged and enabled by the Influence of the Pope's Authority over the less honest or less discerning so he thereby lost all means of gaining Trust from his People for the future The Earls and Barons of England having without any Writ from the King given one another notice of meeting demonstrated that they engag'd not out of any Affectation of Change but meerly to secure those Liberties which were their due by the Constitution for they agreed to wage War Mat. Pa. f. 339. and renounce Allegiance to him only in case that he would not confirm those Liberties which were contain'd in the Laws of Hen. 1. and the ancient Laws of King Edward the Confessor That they might proceed with such Deliberation as became them they appointed another Meeting for a peremptory Demand declaring that if he then refus'd them they would compel him to Satisfaction by seizing his Castles nor were they worse than their words and their Resolutions had for a while their desir'd Effect in obtaining a Confirmation of their Liberties which tho they were as forceable in Law before and his Promise to maintain them as little to be credited as ever yet his open Violation of them after his own solemn acknowledging them and granting that Petition of Right was likely to cast the greater Load upon him and his Courtiers when they should act to the contrary and to take from their side numbers of well-meaning Men who otherwise might be cheated with a pretence of Prerogative The Pope as was to be expected soon absolv'd the King and encourag'd him to break those legal Fetters which was ipso facto an Absolution to the People of more effect in Conscience than the Pope's ipso facto Excommunications They being thus discharged the wiser and sounder part of them stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France Mat. Par. lib. Addit An. 1216. The Account in Matthew Paris of a Debate which the French King and his Advocate or Attourny-General held with the Pope's Nuncio who would have disswaded the Dauphin's Expedition against King John the Pope's sworn Vassal is so exactly parallel to the Case now in question that many who will allow us no Precedent of ancient Times will be ready to say that some words at least were foisted in since our present happy Settlement The French King as became a Monarch spake his mind in few words Si aliquando fuit verus Rex postea Regnum forisfecit per mortem Arthuri de quo facto damnatus fuit in Curiâ nostrâ Item nullus Rex vel Princeps potest dare regnum suum sine assensu Baronum suorum qui regnum illud tenentur defendere If ever he were King he afterwards forfeited his Kingdom by killing Arthur of which Fact he was condemned in our Court. Besides no King or Prince can give his Kingdom without the Assent of his Barons who are bound to defend it That is to preserve the Kingdom against the King who has parted with it or any Demisee as appears by his Advocate 's Enlargement to whom he left the rest after himself had granted all Kingly Power to have this implied Limitation Mat. Par. Addit f. 281. The Advocate goes on addressing himself to the King Domine Rex Res notissima c. May it please your Majesty It is a thing well known to all that John called King of England was condemned to death in your Court for his Treachery to his Nephew Arthur whom he slew with his own Hands And was afterwards by the Barons of England for his many Homicides and other Enormities there committed rejected from reigning over them Whereupon the Barons waged War against him Ne regnaret super eos reprobatus ut ipsum solio regni immutabiliter depellerent that they might drive him from the Throne of the Kingdom never to return Moreover the said King without the Assent of his great Men gave his Kingdom to the Pope and the Church of Rome to receive it again to be held under the yearly Tribute of a thousand Marks Dare non potuit potuit tamen dimittere eam And altho he could not give the Crown of England to any one without his Barons he might demise it or devest himself of it which as soon as he resign'd he ceased to be King and the Kingdom was vacant without a King Therefore the vacant Kingdom ought not to have been administred without the Lords What difference between the Kingdoms being vacant without a King and the Throne vacant Vacans itaque Regnum sine Baronibus ordinari non debuit unde Barones elegerunt Dominum Ludovicum ratione Uxoris suae c. By reason of which the Barons chose Lord Lewis upon the account of his Wife whose Mother the Queen of Castile was the only Survivor of all the King of England's Brothers and Sisters This was so true and so convincing that the most plausible Return which the Pope's Nuncio could make to it was that King John had been sign'd with the Cross for the Service of the Holy Land and that therefore by the Constitution of a General Council he ought to have Peace and be under the Pope's Protection for four Years And you may be sure that the French King would not interrupt him in his Journey thither but was well satisfied that his Son should supply his place in England Who tho he had been received not only as one that rescued the Nation from King John's enormous Tyranny but as one that was in the Right of his Wife entitled to the Priviledg of the English Blood Royal and so duly chosen according to the standing Law of this Monarchy as has been mentioned and will hereafter more fully appear Vid. sup inf Yet the Clergy and all who were so weak as to be led by them in Civil Affairs being against Lewis Mat. Par. f. 384. as he stood excommunicated by the Pope besides it having been made known by the Death-bed-Declaration of one of Lewis his Confidents that his Master had evil Designs against those very Men who were the chief Instruments in his Advancement and that he look'd upon them who fought for him as Traitors he through the uncertainty and indifference of his Friends more than the strength of his Enemies was oblig'd to quit the Kingdom to Hen. 3. Object This would lead me to the particular Consideration of the Barons Wars with H. 3. were it not needful first to remove an Objection against their Proceedings with his Father which tho not founded on the Histories of the same Age may seem to have weight from the Authority of Divines of later times The Homilies pass this Censure upon
guerrae emergat c. Vid. Append. When any doubt or difficult case of War or Peace happens in the Kingdom or without let that Case be referr'd and brought in Writing into full Parliament and let it be treated of and debated among the Peers of Parliament and if need be let it be enjoyn'd by the King or in his Name to every degree of the Peers That every degree act by its self and let the Case be delivered to their Clerks in Writing and in the said place let them cause the said Case to be recited before them so that they may consider among themselves how it may in the best manner and most justly be proceeded upon as they would answer before God for the Person of the King and their own proper persons and also the proper persons of them whom they represent And let them report in Writing their Answers and Advice that all their Answers Counsels and Advices on all sides being heard it may be proceeded upon according to the better and more wholesom Counsel But if the Peace of the Kingdom or the Nation People or Commonwealth be weakned by reason of discord between the King and other Great Men so that it seems to the King and his Council What that Council was vid. 2d Part that the matter should be treated of and amended by the consideration of all the Peers of his Kingdom or if the King and Kingdom are disturbed by War or if a difficult Case arise before the Chancellor of England or a difficult Judgment is to be given before the Justices and the like And if it happen that in such deliberations all N 2 a Remedy where equally divided or at least the greater part cannot agree then the Earl Steward Earl Constable and Earl Marshal or Two of them shall chuse Twenty five persons from all parts of the Kingdom viz. Two Bishops and Three Proxies of the Clergy Two Earls and Three Barons Five Knights of Shires Five Citizens and Five Burgesses who make Five and Twenty Et condescendere in eos and they Five and Twenty may chuse Twelve out of themselves and be concluded by what they do The Twelve may chuse Six and be concluded by them The Six Three and be concluded by them But the Three cannot be reduced to fewer without leave of the King And if the King consent the Three may be brought to Two and the Two to One and so at last their Ordinance shall bind the whole Parliament and so by coming from Twenty five to One if the greater number cannot agree to an establishment at last one Person as is said shall Ordain for all because he cannot disagree from himself saving to the King and his Council That they may examin and amend such Ordinances after they are written if they can and will Provided they do this upon the place in full Parliament and with the consent of the Parliament and not out of Parliament According to which the High Steward Constable and Marshal being looked on as Hereditary Officers were entrusted with a means of composing the differences of the Nation when they should happen to be equally divided I find the Authority of the High Steward and Constable more express in a Translation of another Modus tenendi Parl. agreeing in substance with that which I have cited The MS. which I have used seems to be of the time of H. 7. MS. penes Authorem MS. penes Authorem thô Mr. Elsing says That which is in Sir Robert Cotton's Library was written temp E. 2. The Translation of the other was Printed with Royal Privilege in King James his time as I take it It was done in a very pedantick stile by one Anthony Bustard of Lyons-Inn He that wrote the Latine in his Preface speaks of it as the Order setled by W. 1. Pref. That Modus places the Power of chusing the Twenty five in the Steward and Constable It adds That if any of the Ministers act contrary to their Duty the King the Steward and others of the Parliament may remove them from their Office And says particularly That the Steward of England with the Constable and Nobles of the Realm shall send to evil Counsellors willing them to desist from giving Counsel and entreat the King not to listen to them and if they regard not such advertisement they were to send to the King to put such away from him And if King and Counsellors neglect such wholsom Advice then for the safety of the Commonwealth it hath been thought fit and lawful for the Steward and Constable and Nobles and others of the Commons of England with the King's Banner displayed the King's name omitted the said Counsellors to take and keep in Custody till the next Parliament and Seize their Goods Vid. Append. Lands and Hereditaments until they receive Judgment by consideration of the whole Parliament Sir Robert Cotton Of the High Steward c. There is no more in this than is warranted by Sir Robert Cotton's Letters in the Herald's Office part of which seem to be taken from a MS. joyn'd to the Modus in his Library under the name of Fleetwood The High-Steward's Office as I have before observed was annex'd to Land 4 Inst f. 127. Dyer f. 285. b. Kelway f. 170. and so was the Constable's of England as appears by our Law-Books in the Case of the Duke of Buckingham 6 H. 8. who pleaded That Humphrey de Bohun formerly Earl of Hereford was seiz'd in Fee of the Mannors of Harefield Newnam and Whitenhurst in the County of Glocester and held them by the service to be Constable of England which the Judges allowed of as a good Plea Dyer Indeed they held that thô the King might compel him who had the Land at his pleasure to execute the Office so he might at his pleasure resuse to have it Executed But as to that this being an honorary and profitable tenure by Grand Serjeanty it is to be considered 12 Car. 2. c. 4. that the Stat. 12 Car. 2. when it took away those Tenures of the Crown which were burthensom to the Subject provided that it shall not take away the Honorary Services of Grand Serjeanty But H. 8. Dyer thought it sufficient that he disclaimed the Service and the Reason of the disclaimer was because it was very high and dangerous and very chargeable to the King in Fees the last part of which shewed the Subject's property concerned in the question Upon the Duke of Buckingham's claim to this Office Kelway f. 171◠Nevil says it has been a common saying That the Constable of England by virtue of his Office in some case may Arrest the King himself and therefore held it necessary that the King should be appriz'd what Authorities belong to his Office Fineux Chief Justice says We know of no such Authority to belong to any Officer within the Realm by the Common Law of the Land Which he afterwards explains for
to be the Doctrine of the Church of England equally proves that this is essential to the Controversies depending between the Friends of the late Government and the happy Subjects of this As a just Corollary from which we may affirm that no Man who is true to the Doctrine of Non-resistance or Passive Obedience can bear Faith and true Allegiance to our King and Queen In consequence to which as I have above shewn such are bound to their Power to assist the late King and to maintain the Regal Rights which he still claims as King of England if they are entrusted with any of our King's Secrets to reveal them to the other and to employ all those Advantages which his Majesty's Favour may give them Preface to the Hist of Passive Obedience towards the advancing that Interest to which they believe themselves unalterably bound And tho our King with the Generosity of Alexander may trust himself with them of whose at least probable Designs he may have certain Information yet no Man need wonder that his Friends offer him the Notice and that they would have that Doctrine extirpated out of the World without vvhich it vvere impossible for him to have an Enemy in the English Nation but a Papist And even among them I dare say all but the bigotted Slaves to their Clergy are sensible of the benefit of his Protection and may encourage themselves in civil Obedience to him who is King over them from the Examples of St. Anselm with other holy Men and the generality of their Clergy who quietly obeyed the Power vvhich protected them without considering whether the Person who administred it stood next in the Line or no. And tho it may be excusable for a dying-Man to justify his own Sincerity to his private Friends yet when the matter vvhich he affirms is of such Consequence to the Peace of that Government which had rescued him and the Church in vvhich he had such a Trust from impending Ruin and afforded it and him sure Protection tho he had disabled himself from farther benefit he ought not certainly to have taken such Pains to transmit his Opinion to the knowledg of the unthinking Vulgar who vvere likely to be influenced by it unless he vvere certain beyond the least shaddow of doubt that this was not only a Truth but of such a nature that the Sin of Ignorance in others were damnable Or else that the Restoration of the late King were preferrable to Submission to this The last I hope his Admirers vvill not say and since the first evidently depends upon Points of Lavv tho ignorance of human Law cannot reasonably excuse before Men who know not the Heart and when the Plea ought to be allowed when not yet there is no doubt but it will before God But who would not be impatient to find our great Law-Casuist Dr. H. to justify his Disaffection to the Government under the Umbrage of the Bishop's Declaration and to boast himself a Confessor to this pretended Martyr vvithout producing more colour for it than a dying-Bishop's Belief that this is in Consequence of adhering to the Religion of the Church of England Had any one publish'd thus much in the Reign of Innuendoes when Dr. H. was the Trumpeter to the Imperial Power in Contradistinction to the Political one he vvould have met with Col. Sydney's Doom who suffered for publishing Hicksian Treason all over his own Study Jovian p. 236. And were Dr. H. to be judg'd by his own Law 't is certain he vvould be pronounc'd a Traitor if the Publication of this Paper vvere prov'd upon him For in his Jovian he says What tends to Treason is Traiterous The Lord Hollis his Book against the Bishop's voting in Capital Cases he says for the same Reason is an impious and treasonable Book because it abounds with Falsifications of Records c. and asserts that the King is one of the three Estates Pag. 237. And the Dialogue between the Tutor and Pulpit is a treasonable Piece because it misrepresents the English Government as if it were a Reciprocal Contract betwixt the King and the People and as if the Parliament ought whether or no the King pleas'd to sit till all Grievances were redress'd and Petitions answer'd By the last of which the Bishops were Traitors for their Proposals to King James And by the former Vid. the Bishops Proposals all those Passive-Obedience-Men are Traitors who publickly maintain an Opinion which necessarily implies that the Right of the last King could not be alter'd or diminish'd for any matter which induc'd King William to undertake our Deliverance If Men of the Doctor 's Opinion will be exasperated for being driven from their Coverts they should consider that they ought rather to be thankful that they are put to no further Mortification while they cease not to give jealousy to the Government by maintaining or patronizing what is inconsistent with that Peace vvhich they are bound to pray for But Dr. H. it should seem Jovian p. 104. now aims at the Glory of taking that boldness and liberty of speaking and acting vvhich he says was common among Confessors by which they shewed the greatness of their Zeal to suffer for God and how much they despis'd that Authority vvhich was over them in Competition with their Duty to God And this may be to retrieve his Reputation for not calling the late King an Idolater Ib. pag. 96 a Bread-worshipper a Goddess-worshipper a Creature-worshipper an Image-worshipper a Wafer-worshipper c. which we might have expected for the making good his Vapour before he came to the Trial. Did his then Silence agree with that supernaturul Courage Pag. 297. which he vvas fully perswaded God would inspire him with And does it not seem odd that the Inspiration should seize him to the Prejudice of that Government under which alone it can reasonably be expected that Protestancy can be supported but should be vvanting in a Popish Reign The Jews had a Divine Caution against receiving even those Prophets who vvrought Wonders if they labour'd to withdraw Men from the Worship of the true God And surely Protestants would not scruple to reject the Doctor 's Pretences to Inspiration Vid. Dr. H. his Raviliac Redivivus which some vvould be ready to ascribe to that Spirit vvhich himself had found out for the fluency of some Mens Prayers or rather to that lying Spirit in the Mouths of the Jewish Prophets which encouraged Ahab to go out to fight for what had formerly been in the Possession of the Crown of Israel 3. The Bishop will have this Doctrine of Passive Obedience to be the distinguishing Character of the Church of England and therein admits that she holds it in a manner differing from all other Protestant Churches And if this be so the acting or believing according to it can be incumbent only upon the unfeigned Assent and Consent-Men But we of the Laity vvho believe our selves to be
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