sua si velle Regnum pacifice possideret M. Paris p. 61 M. Westm p. 246. and saith M. Paris it was concluded in a publick Convention of the Bishops and Nobles of the Kingdom Fourthly Thus was it also in the Case of Richard Duke of York and Henry the Sixth for though Richard was the Right Heir to the Kingdom Quod Dux filij sui Edvardus Comes Marchiae 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 decreverat addendo de ipsius Regis consensu quod quamprimum Rex ipse in fata decesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Coryl Ed. Oxon. p. 550. yet the Parliament held A. D. 1460. decreed that Henry the Sixth should reign and be King during his Life and that the remainder should rest in Richard Duke of York and the lawfull Heirs of his Body in general tail SECT VI. The Inferences from the Resolutions of the best Casuists to prove that the Oath of Allegiance and of the Coronation are reciprocal and consequently that the obligation of the Oath of Allegiance doth cease when the Original Compact is Fundamentally violated NOw the Inferences which naturally flow from this Historical Account of the Kings of England and their Government are these First That the Kings of England were Kings by virtue of an Original Compact made between them and the People this is apparent by the Contract made by the Conquerour with the Barons and the Nobility and Commonalty of England and the so frequent repetition of that or a like Contract by the following Princes of this Realm by the Oaths they took at their Coronation to preserve to the People their Ancient Rights and Liberties their Original Customs and Laws and by the continual claim the people made to the Laws of their Country the Laws of King Edward and the Magna Charta as their Right Accordingly the Lord Chancellour Fortescue Chap. 9.13 having declared that our Kings are Political Kings who received their Power from the People he adds That Chap. 14. p. 34. non alio pacto by no other Contract did ever any Nation willingly incorporate it self into a Kingdom but that they by that means might more safely than before enjoy Themselves and their Goods of which intent that Nation would be defrauded if having thus submitted to the Government of a King he might spoil them of their Goods which before it was not Lawfull for any man to do Secondly That this Compact was That the King should govern them according to the Tenor of such Ancient Laws and Original Customes as were received among them according to the Good Approved and Ancient Laws of the Kingdom saith M. Paris the Liberties in which the Nobles confided saith M. of Westminster the Laws of their Country saith W. of Malmsbury the Laws of King Edward say the forementioned Authours the Proper Laws and Ancient Customs in which their Fathers lived say Hoveden Stat. Merton c. 9.25 H. 8. c. 21. and the Chronicle of Lichfield the Laws of England the Ancient Laws of this Realm originally established say our Statutes the Laws of the Land the good Laws of the Land saith the Oath of Richard the Second the Charters of the Liberties of England the Common Liberty say the contenders for them with King John and Henry the Third the fundamental Laws of the Kingdom saith King James Let it be observed First Out of Fortescue That our Kings rule not by Royal only Ch. 9. p. 25 26. Ch. 13. p. 32. that is Absolute but by Political Power and that therefore a King of England cannot change the Laws of the Body nor invade their Properties but as they do consent Ch. 13. p. 32. c. 14. p. 34. that he is advanced to the Throne for the safety of the Law and his Subjects in their Goods and Bodies and derives even this Power from the People and therefore cannot Lawfully Rule over them otherwise Secondly That this is the difference betwixt a King Governing Absolutely and by Political Power that the first can change the Laws of his Kingdom F. 25. B. 26. A. impose Taxes and other burthens without consent of his Subjects whereas a King who Rules Politically over his People can neither change the Laws without consent of his Subjects nor charge them with strange impositions against their Wills That a King ruling only by Power Royal may easily become a Tyrant but whilst the Kingly Power is restrained by the Political Law F. 26. B. he cannot govern his People Tyrannically That the Contract made with a King governing Absolutely F. 35. A. is that his Will shall be the Law whereas a Political King cannot govern his People by any other Power than that of the Laws And from these Principles it clearly follows That a King Ruling Arbitrarily and Fundamentally overturning the Laws is no such King as our Constitution knows or ever did admit of That therefore no Obedience or Allegiance can be due to him by Law nor be intended in any Legal Oath unless we can suppose men at the same time intended to preserve their Constitution and yet designed to engage themselves and others to be assistant to subvert it Thirdly Let us consider the Rules laid down by the exactest Casuists touching the Cases in which the obligation of an Oath ceaseth and apply them to the present Case Thus then they say First That when the Matter of an Oath ceaseth the Obligation of it ceaseth also and that the Matter of it must then be judged to cease Tunc enim cessasse materiam censendum est cum rerum status inter tempus jurandi tempus adimplendi ita immutatus est ut si quo tempore jurabatur praevideri potuisset is qui postea insecutus est rerum status non omnino juratum fuisset San. de Juramento Prael 7. § 7. when the state of things betwixt the time of Swearing and of fulfilling the Oath is so changed that if it could have been foreseen by him who took the Oath at the time of his Swearing he would not have taken the Oath When the Root of the Obligation is taken away Quia Radice obligation is sublatâ tollitur unà pullulans inde obligatio fuit autem materia quae causam dedit jurationi Radix ejus obligationis quae ex illa juratione insecuta est Ibid. the Obligation thence arising must be taken away with it now that which gave the ground for taking the Oath is the Root of the Obligation which followed upon the Oath Among the conditions which are de jure communi to be understood in all Oaths though they be not expressed this saith the Reverend Bishop Sanderson Subingtelligendum quarto rebus scstantibus i. e. si res in eodem statu
contra Chartas suas juramenta temere veniendo cum ipse Rex toties juraverat se jura Ecclesiastica illibata conservare ipsomet audiente Candelam tenonte quod omnes Episcopi in violatores libertatum Ecclesiasticarum simul sententiam fulminabant in cujus sententiae consummatione Rex ut alii suam Candelam extinxit inclinando M. Paris p. 354. and himself held a Candle when the Bishops in his hearing pronounced the Sentence of Excommunication against all the Violaters of the Ecclesiastical Libertie he then extinguishing his Candle with the rest In the year 1242. the King requests farther Supplies of his Parliament held at Westminster for his intended expedition into France Et praeterea concessit eis tunc quod omnes libertates contentae in M. Charta ex tunc in antea plenius tenerentur per totum Regnum suum inde fecit eis quandam parvam Chartam quam adhuc habent in quâ eaedem continentur quia dominus Rex nunquam post tricesimam datam Chartam suam de libertatibus tenuit Ibid. p. 394. But they resolutely deny to give him any for that in order to the obtaining former grants of Money he had promised and granted to them that all the Liberties contained in Magna Charta should from thence be fully observed through the Kingdom and had given them a little Charter in which they were contained and yet after all he never was true to his word but oppressed them still more In the year 1244. he desires new Supplies which for a time they refuse pleading that the Charter of Liberties which the King had granted Et quia Charta libertatum quas dominus Rex olim concesserat pro cujus conservatione Archiepiscopus Cant Edmundus juraverat fide-jusicrat certissime pro Rege promiserat nondum existit observata Matth. Paris p. 432. and the Archbishop had upan Oath in the King's name promised to them was not observed Though at last upon the King 's faithful Promise to keep and observe the Liberties unto which he had sworn at his Coronation and whereof he had granted his Charter and upon the appointment of four Noble Men to be of the King's Council who should be conservatores libertatum Keepers of their Liberties they grant him new Supplies the King then promising himself to observe them and requesting that for the defence of their Liberties all the Bishops in their Diocesses should pronounce Sentence against him and all who violated the said Liberties in any Article of them Rex tam in propria persona tum per internuntios solennes promisit se libertates quas juraverat in Coronatione sua super quibus Chartam fecerat integerrime servaturum ad quarum etiam tuitionem rogavit ut singuli Episcopi in Dicecesibus suis sententiam ferrent in ipsum omnes qui contra memoratas libertates venirent in aliquo Articulo M. Paris p. 435. And thus they agreed to grant him a Supply In the year 1252. he holds a Parliament at London and requires more Money and they after some consultation answer that though the King had much oppressed both Church and Kingdom they would doe their utmost to satisfie his desires provided that as he had often promised he would now at last inviolably observe the Charter of their Liberties so often covenanted and sworn to Other things they demanded then which the King would by no means agree to swearing horribly that whilst he lived * quantumcunque Ecclesiam Anglicanam Regnum suum Angliae oppreserit afflixerit quod postulat à nobis adhuc impendemus desiderio suo pro posse obsecundabimur si quodmultoties promisit vellt Chartam toties pactam totiesque debitam Libertatum nobis juratarum inviolabiliter posthac observare p. 568. Nunquam in talem mergeretur Servitutem Ibid. p. 570. he never would be reduced into such slavery And so the Assembly breaks up producing nothing but the King 's Wrath. In the Year 1253. was assembled a very great Parliament in which the Arch-Bishop and some Bishops are sent to induce the King to permit H. Church to enjoy her Liberties as he had oft promised upon Oath and declaring that if he would correct this and other of his miscarriages according to the Tenor of M. Charta they would incline to his Petition Quod si hunc alios errores secundùm M. Chartae de Libertatibus confectae tenorem emendaret ipsi usque ad gravamen magnum Petitionibus suis inclinarent c. p. 579. how burthensome soever it might be to them This the King promiseth to doe and desires them to assist him in it so the Clergy grant him à Tenth and the Knights Scutage viz three Marks of every Knights Fee for that year Rex bonà fide sine aliqua cavilatione promisit se Chartam Magnam omnes ejus Articulos fideliter observaturum quam Rex Johannes tenere juravit similiter qui praesens est in susceptione Coronae poste◠multoties Ibid. and the King promiseth faithfully and without cavil to ratifie Magna Charta and faithfully to observe all the Articles of it which King John and he at his Coronation and often since had sworn to observe And this is done in the most solemn and ceremonial manner that could be devised for the King with all the great Nobility of England all the Bishops and chief Prelates in their Ornaments with burning Candles in their hands assemble to hear the terrible sentence of Excommunication upon all the Infringers of the same and at the lighting of those Candles the King having one in his hand gives it to one of the Prelates saying It becomes not me Nondecet meCandelam talem tenere sum non enim Sacerdos Cor autemmajus perhibet Testimonium ex tunc tenuit manum expansam ad Pectus donec tota sententia finiretur p. 580. who am no Priest to hold this Candle my Heart shall be a greater testimony and withall laid his hand on his Breast the whole time the sentence was read which was thus pronounced In the name of the Omnipotent God c. Which done he caused the Charter of King John his Father to be read In the end having thrown away their Candles they cried out So let them who incurr this sentence be extinct and stink in Hell And the King with a loud voice said * Dixit ipse Rex Sic me Deus adjuvet haec ommia illibata observabo fideliter sicut sum homo sicut sum Christianus sicut sum miles sicut sum Rex Coronatus Inunctus c. M. Paris p. 580. Idem Rex consiliis malignorum praeventus easdem infringendo contra venire non formidavit credens pro-munere absolvi à trangressione p. 597. As God help me I will as a Man a Christian a Knight a King Crowned and Annointed inviolably observe all these things But notwithstanding all this in the very
atque Ecclesiae Sanctae in die Coronationis suae concesserat Matth. Paris p. 51. promiseth a Melioration of their Laws according to their minds Our Historians tell us That on the day of his Coronation he made a Compact with his Church and People which afterwards at Oxford he swore to observe And one of the terms of this Compact was That he would observe good Laws and ancient and just Customs in Hundreds and Pleas and other Causes Henry the Second follows him at the beginning of his Reign establishing Peace in his Kingdom and commanding the Laws of Henry the First Ipse pacem stabilivit in Regno leges Henr. Avi sui praecepit per totum Regnum suum inviolabiliter teneri Hoved. par 2. F. 281. B. his Grand-father to be inviolably observed throughout his Kingdom Richard the first succeeds him and promiseth upon Oath at his Coronation these three things viz. 1. That he would give Peace Honour Juravit quod ipse omnibus diebus vitae suae pacem honorem Reverentiam Deo Sanctae Ecclesiae ejus ordinatis portaret 2o. Quod rectam justitiam aequitatem exerceret in populo sibi commisso 3o. Quod malas leges consuetudines perversas si quae in Regno suo inductae sunt deleret bonas leges conderet sine fraude malo ingenio eas custodiret Hoveden F. 374. A. M. Paris p. 108. Rad. de Diceto Imag. Hist p. 647. Chron. Joh. Brompt p. 1157. and Reverence to God and the Church and her Clergy all the days of his life 2ly That he would exercise true Justice and Equity to the People committed to his Government 3ly That he would put away all evil Laws and perverse Customs which were introduced into his Kingdom and would make good Laws and maintain them without fraud and evil inclination Conjuratus est ab Archiepiscopo ex parte Dei prohibitus ne hunc honorem acciperet nisi in mente habeat Sacramenta tenere quae fecit ipse respondit se per auxilium Dei bona fide observaturum omnia supra dicta Ibid. Then the Archbishop of Canterbury conjures him by God not to take upon him this Honour unless he uprightly intended to perform what he had sworn and when he answered That by the help of God he intended so to do the Archbishop puts the Crown upon his Head King John at his entrance on the Government took the same Oaths for substance which his predecessor Richard had done swearing to preserve the Church and her Dignities from harm to abolish unjust Laws and to establish Good and to exercise right Justice and he was also by the Archbishop conjured not to take upon him the Kingly Honour In coronatione suâ R. Johannes triplici involutus est Sacramento viz. quod Sanctam Ecclesiam ejus ordinatos diligeret quod perversis legibus destructis bonas constituerer rectam justitiam in Regno Angliae exerceret deinde adjuratus est ab Archiepiscopo ex parte Dei districtè prohibitus ne honorem hunc accipere praesumeret nisi in mente habuit opere quod juraverat adimplere Chron. Burton p. 256. R. Hoveden F. 450. M. Paris p. 138. Audistis quomodo ipse apud Wintoniam Regem absolvi ipsum jurare compulerim quod leges iniquas destrueret leges bonas viz. leges Edvardi revocaret in Regno faceret ab omnibus observari M. Paris p. 166 167. unless he really intended to perform his Oath When he was absolved from his Excommunication by the Archbishop at Winchester he was by him compelled to swear That he would destroy all unjust Laws and would restore good Laws viz. The Laws of King Edward and cause them to be observed of all throughout his Kingdom King Henry the Third was but nine years old when he succeeded King John Annales Mon. Burton p. 271 276. and in the ninth year of his Reign he granted to all his Clergy his Nobles and his People his Magna Charta and his Charter of the Liberties of the Forest and by these Charters he confirms to them libertates liberas consuetudines quas prius habuerant the Liberties and free Customs which they had before M. Paris saith Pag. 274. That he exacted the fifteenth part of the Moveables both of the Clergy and of the Laity and that they promised to grant them si illi diu petitas Libertates concedere voluisset Pag. 223. provided he would give them the Liberties they had so long desired And that accordingly he gave them these two Charters which were the same that had been granted by King John A. D. 1223. Speed p. 581. The Barons requiring a confirmation of these Liberties from the King William Briwere one of the King's Council answered That the Liberties which they demanded were not to be observed because they were violently extorted the King replied All of us have sworn to these Liberties and that which we have sworn all of us are bound to observe and the truth is at the conclusion of the Peace with Lewis the King Speed p. 578. the Legate and Earl Marshal sware that the King should restore to the Barons and others all their Rights and Inheritances with all the Liberties formerly demanded of his Father Speed p. 583 And in the year 1225. the King again drawn with the desire of Mony grants those his Charters under his Seal and Oaths were taken by Royal commandment to tye all Men to the observation of the said grants Edward the first was declared King and Successor of his Father when absent in Palestine and returning into England is Crowned in the Second year of his Reign and in the Third calls a Parliament at Westminster where he hears the complaints of the ill Government of the Realm and the Church and makes that wholsome Statute to relieve them which is called the first Statute of Westminster At the Coronation of Edward the Second the Earls and Barons of the Kingdom of England treated of the State of the Kingdom requesting the Banishment of Peter of Gaveston from the Kingdom and that Baronum suorum vellet consiliis tractare Regni negotia Hypadygm Neustr p. 500. he would transact the business of the Kingdom by the Councils of his Barons which the King denying to grant Rex noluit consentire idcirco proposuerunt comites Coronationem Regiam impedire quod Rex intelligens promisit bona fide se facturum illis in proximo Parliamento quicquid peterent tantum ne Coronatio differatur Walfingh Hist Angl. p. 96. the Nobles endeavoured to hinder his Coronation which the King understanding promised faithfully in the next Parliament to do that which they desired At the Coronation of Richard the Second one of the Bishops makes an Oration to the People concerning the Constitution of the King and Kingdom Tunc Episcopus Sermonem fecit de materiâ Regis Regni ad