And as anciently as the year 789. an Act was made in a General Convention of all England in Conventu Pananglico that their Kings should be Elected by the Clergy senioribus populi and Elders of the people that is such as were Members of their Great Councils or Witena Gemots Assemblies of Sage and Wise Men. This tho it was long before the reputed Conquest yet was never repealed or cut off by the Sword nay seems received with the Confessor's Laws as included in them 2. It appears by the several instances given in the fourth Chapter and the testimonies there both of Malmsbury and the Publisher of the life of King Alfred That no lineal Succession was observed here before the supposed Conquest 3. The Confessor's Law received by W. 1. Vid. Sup. and continued downwards as the noblest Transcript of the Common Law shews that the Kings of England were to be elected and the end for which they are chosen by the people After the same manner do the ancient Historians and Lawyers as well since that time as before commonly express accessions to the Throne and seem industriously to mind Kings of it that according to the caution given the Jewish Kings Deut. 17.20 their hearts be not lifted up above their Brethren 4. According to the usage from before the reputed Conquest downwards the People are asked Whether they are content to have such a Man King 5. The most absolute of the English Monarchs never believed Cambd. Brit. s 104. de W. 1 Neminem Anglici regi constituo Haredem sed a terno conditori cujus sum in cujus manu sunt omnia illud commendo non enim taâ—tum decus hereditario jure possedi c that then Children had a right to the Crown except the people consented that they should succeed as appears by King Alfred's Will and the Death-bed Declaration of William 1. And therefore some of our Kings against whom there has been no pretence of better Title in any particular Person or Family when they stood upon good Terms with their People have often prevail'd with them in their Lives-time to secure the Succession to their eldest Son and H. 2. to prevent hazarding the Succession endanger'd himself by getting his eldest Son Crown'd himself living But as the going no farther than the eldest argues that they looked on that as a Favour the pressing for a Settlement on their Issue in any manner argues That it was not look'd upon as a clear Point of Right without it Of later Times Settlements have been made in Tail which though they were occasion'd by Pretences to Titles are Records against an Hereditary Monarchy according to the common notion which is one that by the original Constitution descends to the next in the Line male or Female V. Leges W. 1. de Fide c. Statuimus etiam ut omnes liberi homines foedere sacramento affirment quod intra extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt c. Leges S. Edw. tit Greve Vid. Juramentum homagii facti Regi 6. The Oaths of Allegiance required of all the Subjects were never extended to Heirs but were barely Personal till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster and though H. 4. obtain'd in Parliament an Oath to himself the Prince and his Issue and to every one of his Sons successively and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York yet perhaps no Oath of Allegiance to the King and his Heirs can be shewn to have been requir'd of the Subjects in general till that 26 H. 8. according to the Limitations of the Statute 25. 7. Even where the People had setled the Crown they seem'd to intend no more than to give a preference before other Pretenders not but that as Ideocy Frenzy or the like might set such an one aside so upon other weighty Reasons they might alter the Settlement Pryn 's Signal Loyalty p. 274. Pol. Virgil. 1. 22. sub initio as appears by Polydore Virgil who was never thought to lie on the Peoples side whatever Evidences for them he may have conceal'd or destroy'd whose words of H. 5. to whom the Crown had been limited by Parliament may be thus rendred Nota Proceres may take in the Nobiles minores Prince Henry having buried his Father causes a Council of Nobles to be conven'd at Westminster in which while they according to the Custom of their Ancestors consulted about making a King behold on a sudden some of the Nobility of their own accord swear Allegiance to him which officious Good-will was never known to have been shewn to any before he was declared King William 2. was elected during the Life of his eldest Brother who was set aside by the English against whom he had discovered Ill-will in spite of the Normans So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive and H. 2. succeeded in her Life-time upon an Agreement made with Stephen by the Peoples Consent R. 1. as within King John crown'd in the Life-time of his eldest Brother's Son Prince Arthur So was his Son H. 3. in the Life-time of Eleanor Prince Arthur's Sister E. 1. as within E. 2. elected E. 3. set up by the People in his Father's Life-time which the Father took for a Favour R. 2. declared Successor by Parliament in the Life-time of his Grandfather H. 4. of the younger House came in by the Peoples Choice upon their deposing R. 2. H. 5 6. Son and Grandson to H. 4. came in upon a Settlement E. 4. of the elder House came in under an Agreement made in Parliament between his Father who liv'd not to have the benefit of it and H. 6. His Son E. 5. was never crown'd R. 3. who set him aside was of the younger House H. 7. who vanquish'd him could have no Right of Proximity for the Daughter of E. 4. and his own Mother were before him All that came in since enjoy'd the Crown either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest 8. As the Practice of the Kingdom is an Evidence of its Right numerous Instances might be produc'd of Choices since the supposed Conquest not only so called by Historians but appearing so in their own Natures wherein no regard has been had to Proximity but barely to Blood And I believe no Man can shew me any more than Two since the reputed Conquest of whom it can be affirm'd with any semblance of Truth that they came in otherwise than upon Election express'd by the Historians of the Time or imply'd as they had no other Title or else a late Settlement of the Crown either upon themselves immediately or in Remainder The Two upon which I will yield
I may add Flectere si nequeant superos Acheronta movebunt If neither Heav'n nor Earth afford them Aid They 'll try to fetch it from the Stygian Shade If such things as these do not shew that there was occasion for my gathering together those Precedents and Authorities which evince that in declaring for our present Soveraigns the Nation has proceeded according to their Inherent Power and in due form I at lest shall have the Satisfaction of having in my Capacity serv'd my Country and therein I shall have more than my Labour for my Pains which I may here close with that of Pliny to his Friend Tacitus C. Pliny Ep. lib. 9. Posteris an aliqua cura nostri nescio Nos certè meremur ut sit aliqua non dico ingenio id enim superbum sed studio sed labore reverentia posterûm Pergamus modò itinere instituto quod ut paucos in lucem famamque provexit ita multos è tenebris silentio protulit I know not whether they that come after will have any care of us we surely deserve from Posterity some Care and Esteem I do not say for Ingenuity for that would argue Pride but for Study and Labour Let us only go on in that way which we have enter'd upon which as it has rais'd some few Men to Splendor and Fame so it has drawn out many from Obscurity and Silence THE CONTENTS CHAP. I. THE Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to the Constitution Allegiance to our present King and Queen undertaken to be prov'd lawful both by the Equity and Letter of our Fundamental Law explain'd by the Practice of the Kingdom pag. 1. CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon the Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and his Quotation out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion Mr. Lawson's Opinion Bp Bilson's whose Authority is confirm'd by the Objection made to it in the History of Passive Obedience To which is added the Divine Plato pag. 11. CHAP. III. Five Heads of positive Law mention'd Vpon the first Head are produc'd the Confessor's Laws Bracton Fleta and the Mirror shewing the Original Contract with the Consequences of the King 's breaking his part Some Observations upon the Coronation-Oath with the Opinions of Sir Henry Spelman Cujacius and Pufendorf of the Reciprocal Contract between Prince and People The Objection from the pretended Conquest answer'd in short with reference to the second part The Sense of Dr. Hicks and Saravia upon the Coronation-Oath receiv'd with a Limitation from Grotius The Curtana anciently carried before our Kings explaining the Mirror A Passage in Dr. Brady against the Fundamental Contract touch'd upon referring the particular Consideration of him to the second Part. pag. 28. CHAP. IV. The second Head of Positive Law The establish'd Judicature for the Case in question implied if not express'd in the Confessor's Law and asserted in Parliament 12 R. 2. with an account why the Record then insisted on is not now to be found Our Mirror the foreign Speculum Saxonicum Bracton and Fleta explaining the same The Limitation of that Maxim The King can do no Wrong Precedents from Sigibert King of the West Saxons to the Barons Wars in the time of King John confirm'd by occasion of an Objection to the Instances in the Northumbrian Kingdom How far this Monarchy was reputed Hereditary or Elective before the time of W. 1. there touch'd upon Instances of the Peoples Claim of their Rights in the times of W. 1. W. 2. H. 1. King Stephen H. 2. pag. 34. CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered pag. 41. CHAP. VI. The Barons Wars in the time of H. 3. particularly considered H. 3. Crown'd by a Faction Had no right but from Election as his Father had That no Right could descend to him from his Father Lewis while here as much King as H. 3. Three express Contracts enter'd into by H. 3. besides the Confirmations of the Great Charter Those applied to the Consideration of the Wars Three of them under such as seem like the Roman Tribunes of the People Dr. Falkner's Objections against those Wars answer'd The Answer confirm'd by a full instance in the time of E. 1. pag. 46. CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The Power of the People manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the Instances from those Times to the Abdication
them Had English Men at that time known their Duty to their Prince Homilies the sixth Sermon against wilful Rebellion last Ed. 383. set forth in God's holy Word would English Subjects have sent for and receiv'd the Dauphin of France with a great Army of French-Men into the Realm of England would they have sworn Fidelity to the Dauphin of France breaking their Oath of Fidelity to their natural Lord the King of England and have stood under the Dauphin's Banner display'd against the King of England To which I answer 1. That our Church pretends not to Infallibility nor will it be any Imputation upon it to have err'd in relation to Fact or the Constitution of the Government without regard to which it is not to be suppos'd that the Fathers of our Church would apply the Duty of Subjects set forth in God's Word Pseudomartyr Chap. 6. p. 172. And I doubt not but Dr. Donne Dean of St. Paul's in the time of C. 1. very well understood the Scriptures and our Homilies and yet he tells us that some ancient Greek States are call'd Laconica because they were shortned and limited to certain Laws And some States in our time seem to have conditional and provisional Princes between whom and Subjects there are mutual and reciprocal Obligations which if one side break they fall on the other This he supposes to be where-ever there is not a Pambasilia in the hands of one Man that is as he explains it that Soveraignty which is a Power available to the main ends One of the main ends of Government must needs be making Laws and levying Taxes if that be not vested in any single Person he has not the Pambasilia and if he have not the Pambasilia according to him he is but a conditional or provisional Prince and if he be a conditional Prince the Obligations between him and his Subjects are mutual and reciprocal and the Subjects may take the advantage of a failure on the Prince's side History p. 40. This being taken from an Authority cited in the History of Passive Obedience since the Reformation shews what Limitations may be put upon those Passages in the Homilies which seem like the late King's Declaration to Scotland to require Obedience without reserve Vid. sup c. 2. Mr. Falkner as appears above had carried the Point as high as the Homilies have done and yet he admits that if those extraordinary Cases happen which as he contends ought not to be suppos'd in such Cases Subjects may resist notwithstanding Oaths for Passive Obedience without any such Exception in the words 2. Whatever Obligation may be upon the Clergy from their Assent and Consent none is given by the Laity and they may do all that is requisite to make them true Members of the Church of England without being concluded by the Opinion of Church-men about Civil Government 3. Even Clergy-men look upon the very Articles but as Articles of Peace that they may not disturb the Government by publick maintaining what is contrary to them but surely cannot think that they are oblig'd to disturb the Government for the sake of any matter meerly as it is contain'd in the Articles or Homilies 4. The Doctrinal matter contain'd in the Homily That a natural Lord is not to be resisted may be true and yet this may not in the least condemn resisting an unnatural Tyrant And the Application of their Doctrine to the Case of inviting and joyning with Lewis may have been grounded upon a false State of the fact as if King John had done nothing whereby he truely ceased to be King And that they went upon a false state of the Fact is the rather to be believed because Archbishop Parker Antiquitates Brit. f. 148. by whom we may well gather the sense of these Fathers tho' he admits King John to have been an ill Man and to have joyn'd with the King of France against his Natural Lord and King R. 1. yet will have it that he was justifiable in his Actions against his Rebellious Subjects and excuses his very Abdication in resigning his Crown to the Pope as an act of mere necessity being compell'd to it by the Artifice and Turbulency of the Clergy Ib. f. 131. Eodem annno Alexander Papa Turonense Concilium celebravit cui Arch. Prelati Angliae Regis permissione licentiâ interfuerunt ac à dexâ—ris Papae Thomas cum suis suffraganeis a sinistris verò Ebor. Arch. cum solo Dunelm Episcopo sederunt ibi Capto de Ecclesiasticâ quadam super regiam libertate pertinaciter retinendâ concilio A Papâ ocyus dimissi in Angliam reversi sunt Post hoc Turonense concilium cum omnibus pene in rebus Clerus se a populo disjunxisset cepit in Angliâ de Regni atque sacerdotii authoritate atque vi multo varioque sermone disceptari factaque perturbatio gravis de prerogativâ atque privilegiis ordinis Clericalis which he observes to have carried on a separate Interest divided from the Nation ever since the Council of Tours in the year 1163. But Stephen Archbishop of Canterbury in King John's time is to be presum'd better acquainted with the Justice of the Arms on either side than Archbishop Parker or the Composers of the Homilies upon that King 's gathering Forces against his Barons the Archbishop tells him that he would break the Oath that he took at his Absolution si absque judicio Curiae suae contra quempiam bella moveret Mat. Par. f. 137. if he wag'd War against any body without the judgment of his Court referring it seems to that part of his Oath wherein he Swore That He would judge all his Men according to the just judgment of his Court Nay farther yet Mat. Par. f. 268. King John had brought over Forces against his Barons from Poictou Gascony and Flanders before they had recourse to any Foreigners 5. The Case of Swearing Allegiance to Lewis cannot be brought as a parallel to Swearing Allegiance to our present King and Queen because Lewis was never receiv'd by the whole Collective or Representative Body of the Nation the last of which has receiv'd and declar'd for King William and Queen Mary upon a solemn Judgment given by them the proper Judges of the Fact That the late King had broken the Original Contract and thereby ceased to be King CHAP. VI. The Barons Wars in the time of H. 3. particularly considered H. 3. Crown'd by a Faction Had no right but from Election as his Father had That no right could descend to him from his Father Lewis while here as much King as H. 3. Three express Contracts enter'd into by H. 3. besides the Confirmations of the Great Charter Those applied to the consideration of the Wars Three of them under such as seem like the Roman Tribunes of the People Dr. Falkner's Objection against those Wars answer'd The Answer confirm'd by a full instance in the time of E. 1.
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
the Philistins I conceive I have laid prostrate with a Pebble-stone a slight Weapon from a weak Hand and cut off the Head of his Argument with his own Sword In his Patriarcha he professes that he is not to question or quarrel at the Rights or Liberties of this or any other Nation his Task he says Patriarc p. 6. is chiefly to enquire from whom these first came not to dispute what or how many these are But besides his other Contradictions it may well be doubted whether in this he is reconcilable with himself in other places or with the Foundation of all his Discourses which lies thus It was God's Ordinance that Supremacy should be unlimited in Adam Anarc p. 245. and as large as all the Acts of his Will and as in him so in all others that have Supream Power in whatsoever manner they enjoy it Or take it in other words most of them his own Adam was the Father King and Lord over his Family a Son Preface to Obs touching Forms of Government a Subject and a Servant or Slave were one and the same thing at first But all Monarchs one way or other succeed to Adam's Power therefore a Monarch Son Subject and Servant or Slave are as to Right one and the same thing now And then what Rights or Liberties are there in this or any Nation distinct from what he supposes to be inherent in the Person of one But that I may be sure to please at the end Anarc p. 293. I shall conclude with Sir R's own words Thus have I picked out the Flowers out of his Doctrine about Monarchy and presented them with some brief Annotations It were a tedious work to collect all the learned Contradictions and ambiguous Expressions that occur in every Page of his Platonick Monarchy The PROVISIONS at Oxford 42 Hen. 3. Vid. cap. 6. F. 47. Anales Monast Burton F. 411. FUerunt etiam in eodem Parliamento apud Oxoniam xxiv electi videlicet xii ex parte Domini Regis totidem ex parte Communitatis quorum ordinationibus provisionibus Dominus Rex Dominus Edwardus Filius ejus sicut superius praenotatur se supposuerunt super statûs eorundem totius Regni Angliae correctione in melius reformatione Plura etiam fuerunt ibidem alibi percussa quae inferius continentur Provisio facta apud Oxoniam Provisum est quod de quolibet Comitatu eligantur quatuor discreti legales Milites qui quolibet die ubi tenetur Comitatus conveniant ad audiendum omnes querelas de quibuscunque transgressionibus injuriis quibuscunque personis illatis per Vicecomites Ballivos seu quoscumque alios ad faciendum tachiamenta quae ad dictas quaerelas pertinent usque ad primum adventum Capitalis Justiciarii in partes illas Ita quod sufficientes capiant plegios à conquerente de prosequendo similiter ab eo quo queritur veniendo juri parendo coram praefato Justiciario in primo adventu suo Et quod praedicti quatuor Milites irrotulari faciant omnes praedictas querelas cum suis attachiamentis ordinate serie scilicet de quolibet hundredo seperatim per se Ita quod praefatus Justiciarius in primo adventu suo possit audire terminare praefatas quaerelas sigillatim de quolibet hundredo Et scire faciant Vicecomiti quod venire faciat coram praefato Justiciario in proximo adventu suo ad dies loco quae eis scire faciat omnes hundredarios ballivos suos Ita quod quilibet hundredarius venire faciat omnes conquerentes defendentes de balliva sua successive secundum quod praefatus Justiciarius duxerit de praedicto hundredo placitare Et tot tales tam Milites quam alios liberos legales homines de Balliva sua per quos rei veritas melius convinci poterit ita quod omnes simul semel non vexentur sed tot veniant quod possunt una die placitari terminari Idem provisum est quod nullus Miles de praedictis Comitatibus occasione quietanciae quod non ponatur in Juratis vel assisis per Chartam Domini Regis deferatur nec quietus sit quoad provisionem istam sic factam pro communi utilitate totius Regni Electi ex parte Domini Regis Dominus Londoniensis Episcopus Dominus Wintoniensis Electus Dominus H. Filius Regis Almaniae Dominus J. Comes Warennae Dominus Guido de Lysinan Dominus W. de Valentia Dominus J. Comes Warewici Dominus Johannes Mansell Fr. J. de Derlington Abbas Westmonasterii Dominus H. de Wengham Electi ex parte Comitum Baronum Dominus Wigornensis Episcopus Dominus Symon Comes Lycestrensis Dominus Richardus Comes Gloverniae Dominus Humfridus Comes Heref. Dominus Rogerus Mariscallus Dominus Rogerus de Mortuo Mari Dominus J. Filius Galfridi Dominus Hugo le Bigot Dominus Richardus de Gray Dominus W. Bardulf Dominus P. de Monteforti Dominus Hugo Dispensarius Et si contigat aliquem istorum necessitate interesse non posse reliqui istorum eligant quem voluerint scilicet alium necessarium loco absentis ad istud negotium prosequendum Ceo jura le Commun de Angletere à Oxenford Nus tels tels fesum à saver à tute gentz ke nus avum jure sur Seintes Evangeles è sumus tenuz ensemble par tel serment è premettuns en bonne fei ke chescun de nus è tuz ensemble nus entre eiderums è nus è les nos cuntre tute genz dreit fesante en rens pernant ke nus ne purrum sanz mef fere salve la fei le Rei è de la corune E premettuns sur meime le serment ke nus de nus ren ne prendra de tere ne de moeble par que cest serment purra estre desturbe u en nule ren Empyre E si nul fet en contre ceo nus le tendrums à Enemi mortel Ceo est le serment à vint è quatre Chescun jura sur seintes Evuangeles ke il al honur de Deu è à la fei le Rei è al profit de Reaume ordenera è tretera ovekes les avant dit jurres sur le refurmement è le amendement del Reaume E ke ne lerra pur dun ne pur premesse pur amur ne pur hange ne pur pour de nulli ne pur gain ne pur perte ke leaument ne face solum la tenur de la lettre ke le Rei ad sur ceo don et su◠fez eusement Ceo jura le haute Justice de Engletere Il jure ke ben leaument a sun poer fra ceo ke apent a la justicerie de dreiture tenir à tute gentz al prou le Rey è del Reaume solum la purveance fete a fere par les vint quatre par le cunseil
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
eum qui judiciorum particeps sit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and (d) Hermanni Conringii Exercitationes Acad. de Civibus Imperii p. 3. Ordines Imperii Incolae Conringius his Cives to be too restrain'd the first limiting it to them that have shares in the Judicature and Magistracy the other to the States and Orders of the Empire allowing no others to be more than Inhabitants or Strangers Whereas the Civitas must manifestly reach to that diffus'd Body who are either capable of being part of the Ordines or Great Council or of being represented in it for otherwise the common subject of Power must needs fail as often as there are Intermissions of the States or Great Council And 't is plain that Conringius his Reason why none but the Status vel Ordines Imperii are more than Inhabitants reaches farther Every Civis he says is a Companion of the Civil Society and it is the part of a Companion to give his Suffrage and Judgment of things belonging to the Society This certainly he does virtually who gives his Suffrage in the choice of them who conclude the rest and if this should not make a Citizen there could be no means of exerting any moral or lawful Power in any Society upon the determination of the Authority of those particular Persons who had constituted any dissolv'd Assembly of States unless the sole Power resided entirely and absolutely in the Person or Persons with whom they had lodg'd a Trust for summoning them together that is giving publick notice of the Time and Place for meeting Indeed if none but the Ordines were part of the Civitas Grotius his Distinction between the common 〈◊〉 proper or particular Seat of Power would be very vain wherefore I take his Cives to be the same with Pufendorf's Quorum coitione consensu primò Civitas coaluit aut qui in illorum locum successerunt nempe Patres familiâs Sam. Pufendorf de officio Hominis Civis p. 265. By whose Conjunction and Consent the Civil Society first came together or they who succeeded into their rooms to wit the Masters of Families Indeed if we consider it will appear that never any Empire or other Civil Society was founded but there was an Original Contract or Agreement among the People for the founding of it How was the most absolute Authority of a single Person ever rais'd or maintain'd but by the undisciplin'd Rabble or disciplin'd one of an Army and what could keep them together but a Contract or Promise of Pay or Spoil to the Leaders or Officers who were to be undertakers to the common People or the Souldiers I remember Mr. Hobbs in his History of the Civil Wars of England Hobbs his History of the Civil Wars blames King Charles the First for engaging in a War against the Parliament while at the same time he pretended to justify what he did by Law and to leave all that that assisted him to answer to the Law when he should have encouraged them to have been hearty on his side by hopes of the Spoil of the Nation but whatever may be the Inducements to fight for an Authority lawfully establish'd before surely no People ever submitted to any without a prior Obligation but where they had hopes or expectations of Advantage or Ease the obtaining of which if not made a Condition was ever implied Suppose a Colony of some hundreds of Men among which one is chosen General Head or Leader without any particular or express Contract and his Son suffered to succeed after him Is the Power either of Father or Son antecedent or obligatory before the free Consent of the rest has past Or is it to be imagined that either the Father or his Successor have this People as an Inheritance given them from above to dispose of their Lives and Fortunes without any regard to the Good of All The most sensible of them who utterly deny that any Power can be derived from the People as fighting against their fancied Divine Right of Kingship own that the People have a Right to design the Person Vid. Sacrosanct Regum Majest Potestas designativa personae vel collativa Potestatis tho not to confer the Power only these Men will have it that the extent of the Power of a King is ascertained by God himself which I must needs say I could never yet find prov'd with any colour But to avoid a Dispute needless here since the Question is not so much of the Extent of Power as of the Choice of Persons or Derivation of it Whether any Choice is allowable for us must be determined by the fundamental or subsequent Contract either voluntary or impos'd by Conquest and 't is this which must resolve us whether the Government shall continue Elective or Hereditary to them that stand next in the course of Nature guided to a certain Channel by the common Law of Descents or limited only to the Blood with a Liberty in the People to prefer which they think most convenient all Circumstances considered And if our Constitution warrants the last then we may cut the Gordian Knot and never trouble our selves with Difficulties about a Demise or Cession from the Government or Abdication of it for which way soever the Throne is free from the last Possessor the People will be at Liberty to set up the most deserving of the Family or whom they judg so unless there be subsequent Limitations by a Contract yet in force between Prince and People which being dissolv'd no Agreements take place but such as are or have been made among themselves Vid. infra cap. In which Case whatever ordinary Rule they have set themselves they may alter it upon weighty Considerations And that the People of England have lawfully and rightfully renounc'd their Allegiance sworn to J. 2. and transferr'd it to the most deserving of the Blood notwithstanding any Oaths or Recognitions taken or made by them I shall evince not only from the Equity of the Law and Reservations necessarily implied in their Submission to a King but from the very Letter explain'd by the Practice of the Kingdom both before the reputed Conquest and since CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon this Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and Quotations out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion
Chief Justice were to be chosen by the like Consent and neither any of the Council nor other Officers were to be amov'd but by Order of the Majority of the Council or in full Parliament This they insist on as sworn at a Coronation of that King Edmund Archbishop of Canterbury being Sponsor for the King's Performance This Contract was certainly 20º H. 3. at his Third Coronation when he was Crown'd with his Queen newly married and had the Curtein carried before him to admonish him of the Consequence of a Breach Vid. inf That this was 20º when he was Thirty years old and in as flourishing a condition as at any time of his Reign till the chance of War had subjected his Barons to a more imperious Sway appears in that the Ceremonies of his first Coronation were perform'd by the Bishop of Winchester and Bath and Wells The second by Archbishop Stephen Ao 1220. in the third year after Lewis his departure which it seems was the first time that he was publickly receiv'd for King with an universal consent special notice being taken that the Coronation was in the presence of the Clergy and People of the whole Kingdom Besides Edmund was not Consecrated till the year 1234. 18º H. 3. and the Historian is express That Archbishop Edmund perform'd the Ceremonies of the Coronation 20o. There is farther Evidence that the Charter mention'd 28º H. 3. was granted 20º for it appears that the great Officers were appointed 20º according to the Charter which the Parliament 28º insist on as granted at a Coronation where Archbishop Edmund was present and undertook for the King's performance Mat. Par. f. 563 Officium Cancellariae Angliae omnia officia ordinata sunt quae Regia sunt Assise in scaccario unde Cancellarius Camerarius Mareschallus Constabularius sibi ibidem sedem sumpserunt ratione Officii sicut Barones omnes in sui Creatione Fundamentum in Civitate Londinensi unde quilibet eorum suum ibi locum sortitur Vid. Flet. lib. 2. cap. 26. Matthew Paris writing of the Twentieth says The Office of the Chancery of England and all Offices belonging to the Regal State and Sittings in the Exchequer were setled Whereupon the Chancellor Chamberlain Marshal Constable took their Seats there by reason of their Offices as all Barons at their Creation had their Foundation in the City of London Vid. inf 2d part This Right of Places at London in which 't is plain Westminster was then included seems to imply a Reason why the Acts of the Barons at London past both at home and abroad for the Acts of the Baronage of the Kingdom Hence the King of France Lewis his Father lookt upon their Invitation of his Son as the Binding Act of all accordingly he both demanded and had Four and twenty de Nobilioribus Regni Mat. Par. f. 373 Implorantes Patrem ut filium mitteret in Angliâ regnaturum Filium ut veniret illico Coronandus ' of the Chief Nobility of the Kingdom as Hostages for their performing what they had promis'd his Son which was the Crowning him King of England 3. The Third particular Contract was contained in the Provisions at Oxford 42º H. 3. which Provisions are Printed at large in the Annals of Burton and referr'd to in many Records now in the Tower Vid. Annales Burtonenses f. 412. Rot. Par. 42. H. 3. m. 3. Mat. Par. but the Record of the Provisions has been imbezled since Mr. Selden's time whose Abridgment of them I have seen There had been a Parliament that year at London met on Hoke-Tuesday a fortnight after Easter at that Parliament the King demanded Money the Parliament a redress of Grievances but nothing being concluded on the Parliament was Adjourn'd to Oxford the Barons having promis'd to give the King Supplies if He would Reform the State of the Kingdom which condition the King accepted of promising that the State of the Kingdom should be Reform'd by Twelve faithful persons of his Council chosen in that Parliament at London and Twelve others to be chosen by the Barons The Parliament meeting at Oxford according to the Adjournment Twelve were chosen by the Earls and Barons to be added to the Twelve before chosen of Counsel with the King These Twenty four chose Four of their own Number who named Fifteen to be a standing Council to the King And among the Regulations besides the choice of Officers and the Custody of the King's Castles it was provided That there should be Three Parliaments every year the first at the Octaves of St. Michael the second in Candlemas week Ke Treis Parlements seint par An. the third the first day of June To these Parliaments Twelve prodes homes honest legal men were to come for sparing the cost of the Commons and at other times when the King sent for them upon occasion to treat of the business of the King and the Kingdom and the Community were to hold for establish'd what these Twelve should do These might seem not to have been Parliaments to make Laws but Ordinances or Provisions in the Intervals and for sparing the trouble of more numerous Assemblies that they were but such as were known in after days by the name of Great Councils distinguish'd from Parliaments would seem by a Record of the time which is a Commission to Four Knights chosen according to the Provisions then made 42 H. 3. m. 3. De Inquisitionibus faciendis per singulos Comitatus Rex Aluredo de Lancaster Joan. de Rochford Joan. de Stroda Willo. de Raymes de Com. Dors cum nuper in PARLIAMENTO nostro apud Oxon. Communiter fuerit ordinatum c. Et inquisit inde fact sub sigillis vestris sigillis eorum per quos facta fuerint deferatis apud Westm in Octavis S ◠Mich. in propriis personis vestris liberand Consilio nostro ib. by Juries duly returned to enquire into all Abuses Enormities and Transgressions within the County of Dorset in the same form with others in the respective Counties throughout England The Inquisitions were to be returned at the Octaves of St. Michael the first Parliament appointed by those Provisions and this was at that very time to be brought to Westminster as one would think to be delivered into Parliament but it is in the Record said only To be delivered to our Council And I find that Writs issued out after the Parliament at Oxford Rot. Par. 42 H. 3. m. 1. Nus volens otroiens kece ke nostre Consel la greignure partie de eus ki est esluz par nus la commune de nostre Roiaume a fet ou fera a honir de dieu nostre foi pur le profit de nostre Roiame sicum il ordenera seit ferm establi in touts choses a tuz jourz Commandous a tuz noz faus leaus en la fei kil nous devient kil fermement teignent jurent a tenir
some colour are R. 1. and E. 1. which singular Instances will be so far from turning the Stream of Precedents that unless the Form or Manner of Recognising their Rights as Hereditary be produc'd the Presumption is strong that the Declarations of the Conventions of those Days or the Peoples acquiescing upon the Question Whether they would consent to the King in nomination or both made even their Cases to be plain Elections And of these two Instances Walsingham f. 1. perhaps one may be struck off For tho Walsingham says of E. 1. They recogniz'd him for their Liege-Lord that does not necessarily imply a Recognition from a Title prior to their Declaration for which way soever a King comes in duly he becomes a Liege-Lord and is so to be recogniz'd or acknowledg'd and that the Title was not by this Author suppos'd prior to the Recognition appears in that he says Walsing ib. Paterni honoris successorem ordinaverunt They ordain'd or appointed him Successor of his Father's Honour And yet his Father Sir P. P. Obligation of Oaths f. 295. to secure the Succession to him had soon after his Birth issued out Writs to all the Sheriffs of England requiring all Persons above Twelve Years old to swear to be faithful to the Son with a Salvo for the Homage and Fealty due to himself Indeed of R. 1. the Historian says Walsingham Ypod Neustriae f. 45. He was to be promoted to the Kingdom by Right of Inheritance yet the very Word promoted shews something that he was to be rais'd to higher than that Right alone would carry him which he fully expresses in the Succession of E. 2. Walfing f. 68. which he says was not so much by Right of Inheritance as by the unanimous Assent of the Peers and Great Men. Which shews that ordinarily they respectively who stood next in Blood might look for the Crown before another till the People had by their Choice determin'd against them This appears very fully by the Commissions issued out for the taking the Oath of Allegiance to E. 1. both in England and Ireland after the People of England had agreed in his absence to receive him for their King The Commission or Dedimus for Ireland Claus 1. E. 1. m. 20. De conservatione pacis in Hibern runs thus Cum Angliae Gubernaculum terrae Hiberniae dominium successione hereditariâ nobis pertineant ob quod Praelati Comites Proceres ac Communitas regni nobis tanquam domino suo ligio regi fidelitatis juramenta omnia alia quae nobis ratione Coronae dignitatis regiae ab ipsis fieri aut praestari nobis in absentiâ nostrâ potuerunt plenariè sine omissione aliquâ prompto libenti animo praestiterunt ac vos tanquam Regi Domino vestro ligio consimile Sacramentum fidelitatis praestare teneamini c. Dat. 7. Decemb. Here the Lords and Commons by whose direction the Commission was sent to Ireland in the King's absence acted without staying for Powers from him they own indeed his coming to the Crown by Hereditary Succession and that by reason of that Inheritance or his standing next to his Father they had sworn Allegiance to him yet they say they had done it prompto libenti animo voluntarily which tho it does not necessarily imply a free choice leaves room for the admission of it And he that observes the Dedimus for England may see that this ordinary Right of Inheritance was not lookt on as enough to constitute him King without the consent of the Proceres Regni which in the Language of that time took in the Commons Vid. Jan. Ang. fa. Nov. Jus Anglorum ab Antiquo Vid. etiam 2 part inf as I have elsewhere shewn and appears not only by the enumeration in the record for Ireland of the Parties who received and swore to him as their King But even by the Dedimus for England which says the Magnates Fideles caus'd his Peace to be Proclaim'd So much of the Record as is material here follows Claus 1. E. 1. m. 11. Quia defuncto jam celebris memoriae Domino H. Patre nostro ad nos regni Gubernaculum Successione hereditaria ac procerum regni voluntate ffdelitate nobis praestita sit devolutum per quod nomine nostro qui in exhibitione justitiae pacis conservatione omnibus singulis de ipso regno sumus ex nunc debitores pacem nostram dicti Magnates Fideles fecerunt proclamari Here the said Proceres are brancht into Magnates Fideles Lords and Commons and their Consent and Swearing Allegiance is join'd with the Succession as the per quod or ground of the King 's becoming a Debtor for exhibiting Justice and preserving the Peace as King of England What I have here shewn of E. 1. with that under the Sixth Observation giving an account of the Peoples forwardness in swearing Allegiance to H. 5. abundantly confutes the Inference from the Allegiance sworn to those two Kings Elementa Politica p. 12. made by the Author of Elementa Politica in these words We may observe that the Kings of England are in full Possession of the Crown immediately upon the Death of their Predecessors and therefore King Edward 1. and H. 5. had Allegiance sworn to them before their Coronation whence says he it follows that as swearing does not make them Kings so neither can Perjury tho truly objected unmake them again He instances also in King John but surely cannot pretend that he had any Right before the Peoples immediate Choice to which the Arch-bishop told him that he ow'd his Crown And if the People swore first yet 't is certain it was not till he had been received as King of England which implies the terms exprest in the Oath Bromton f. 1155. So Hoveden f. 656. But to return to R. 1. 't is observable That he was not called King here but only Duke of Normandy till he was Crown'd which next to the People's Choice was in great measure owing to his Mother's Diligence For he being absent at the Death of his Father his Mother who had been releas'd out of Prison by his means to secure the Succession to him went about with her Court from City to City and from Castle to Castle and sent Clergy-men and others of Reputation with the People into the several Counties by whose Industry she obtain'd Oaths of Allegiance to her Son and her self from the People in the County Courts Bromton f. 1159. as it should seem notwithstanding which the Arch-bishop charg'd him at his Coronation not to assume the Royal Dignity unless he firmly resolv'd to perform what he had sworn To which he answered That by God's help he would faithfully observe his Oath Hoveden f. 656. And Hoveden says That he was Crown'd by the Counsel and Assent of the Archbishops Bishops Earls Barons and a great number of Milites
And this is implied in restraining the assertion with the word Regularly to Matters within the ordinarily Rule But consider these severally 1. By perfect Contracts must be meant such wherein the Obligations are fixed and compleated at the beginning or from the nature of the Relation entred into And he says notwithstanding The Distinctions and Limitations in Contracts and Obligations Civil all agree That in those Duties which are mutual by the Laws of God and Nature as between the Father and the Son the Husband and the Wife the Lord and his Vassal the Prince and his Subjects the breach of Duty in the one is no discharge unto the other Not to observe how extensive he makes that Law of God or Nature which ascertains the Lords right over his Vassal and the Princes over his Subjects I much question Whether all agree that his Rule holds in such Cases as destroy the very nature of the Relation as the Adultery of the Wife or the like However himself yields that there may be an Obligation superiour to these for having produced Examples of Passive Obedience P. 96. he says ' We cannot here ground an Argument ' for justifying obedience to all Tyrants and invaders of our Country Omnes enim omnium Charitates una Patria complexa supergressa est c. filius sine scelere Proditorem Patriae licet Pater sit occidit In omni tempore bellum gerendum sit pro Defensione suâ Patriae Legum Patriae For our Country alone comprehends and goes beyond all private affections A Son without sin kills a Traitor to his Country tho he be his Father At all times War may be waged in Defence of ones self ones Country and the Laws of ones Country He owns expresly that Obedience is so far from being due to a Tyrant that it is not justifiable And he could not but know that the Civilians whose Rules he receives and applies under this Apellation include as well one who (a) Vid. Comment de Regno aut quovis principatu rectè tranquillè Administrando Advers Machiavellum Ed. Ao. 1577. p. 248. Bartolus duas species tyrannorum Statuit quarum unam juris seu tituli alteram exercitii sive usûs vocat Tyrannus titulo is est inquit qui sine ullo jure aut iniquo minimè legitimo titulo Principatum invadit Tyrannus exercitio sive usu is est qui legitimum quidem jus ad principatum habet sed eum injustè contra Leges exercet Itaque demum Statuit ejusmodi Tyrannis obsequium non deberi Sed è Magistratu deturbandos esse Ib. f. 249. having a lawful Title to Power uses it unjustly as one who usurps Power without any Title or other than what is unjust and illegal Wherefore since he makes no Distinction of Tyrants 't is not to be doubted but he with the Civilians particularly the Learned Bartolus discharges all Obedience and consequently Allegiance the Legal tye of Duty to a Tyrant in the exercise of Power as well as in Title Of both these Bartolus as a Judicious Author represents his sense held That Obedience is not due to them but that they are to be thrust out of the Government And the deservedly esteemed Great Man Mornay du Plessis Tractatus de Eccles per Phil. Mornaeum p. 68. in his Treatise of the Church cites Zabarel Baldus and Bartolus for the same distinction of Tyrants Nay observes that these Lawyers thô Papists held that even Popes might be Tyrants in either of these respects 2. As to the innominal Contracts Sir Roger's Rule is That the Breach of one will not justify the other to proceed towards the dissolving of the Contract which comes not up to any Case which does ipso facto dissolve it Besides this notwithstanding there may be either a Dissolution of the Contract a compelling to perform or satisfaction taken According to which in all Cases wherein the two last are insufficient a Dissolution of the Contract ought or may follow But farther the fixt Obligation of the Subject whatever the King shall do contrary to the Contract is by him founded upon the supposition either that the People of England have transfer'd the Power of the Nation to their Kings as absolutely as he supposes that the People of Rome had done to their Emperors Vid. Sup. or rather that W. 1. made a Conquest of this Nation If says he we cannot find any Law or Reason Sir Roger Poyntz p. 123. that the Romans or any other People who had in them the Supream Power could after they had transferr'd this Power to Kings and elected them reassume this Power again and when it doth please them depose their Kings or limit and restrain their Power by vertue of an habitual Power still remaining in the People as is suppos'd then undoubtedly we can find no Right in the People Vid. the punishment which the Senate decreed against Nero More majorum or in any Societies or Communities of People to Depose Restrain or Limit Kings of hereditary Succession especially those who have not their Right from the People but by Conquest as in England From such Kings of Hereditary Succession and Right all Jurisdictions do proceed and in them reside and unto them they return say the Lawyers Rex est lex animata And his Office and Function is Indesinens consulatus All other Rights and Liberties whatsoever have been as in other Kingdoms at the Will and Mercy of the Conquerors of our Island the Romans Saxons Danes Normans Our Rights and Liberties contain'd in Magna Charta granted and confirmed by divers Kings after much effusion of Blood we nor our Ancestors did nor could ever claim by Virtue of any Reservation made by the People or any others when they were Conquer'd Neither by any Original Right inseparably inherent and vested in the People and from them deriv'd Here 't is observable 1. That thô Sir Roger will not have any Original Right to be inseparable from the People yet he owns that in some places they may have Elected Kings and have had Supream Power in them till they transferr'd it to their Kings Sherringham's Supremacy asserted Introduct p. 11. Contrary to Mr. Sherringham who to make his Court at the coming in of C. 2. held that all Authority is originally in Kings or other Supream Magistrates themselves immedidiately from God Tanquam in primo creato Subjecto as in the first created Subject 2. Sir Roger with that Divine holds that W. 1. obtain'd the Crown by Conquest Sher. p. 53. Vid. 2 d Part. Mr. Sherringham indeed owns that there was a composition and agreement but will have it that this was not till after a Victory as if the Victory over Harold made a Conquest of the Nation Of which more in its place 3. Sir Roger goes no more beyond our Case when he argues upon supposition of a total Translation of the Power whereby a People or Nation is
to be thought but that the Floude of Bloode from which God defend thee that otherwise might be shedde doth continually flowe before her Highnes pitifull and most mercifull Eyes And that her Maiestie taryeth but some goode tyde most carefully to provyde for the same as may be possible Which it may please God to graunte vnto her Highnes for th'Honer of Him and the greate Benifyte of the whole Realme with most convenyent speede Amen 20. Martii 1565. God save Queene Elizabeth REFLECTIONS ON Bishop Overall's CONVOCATION-BOOK M.DC.VI CONCERNING THE GOVERNMENT OF GOD's CATHOLICK CHURCH AND OF THE Kingdoms of the Whole World LONDON Printed in the Year M.DC.XC Reflections on Bishop Overall's Convocation-Book 1606. c. IT having been my purpose to consider all Objections of any weight in themselves or from the Authority of Persons which should occur to me against the Right of Their Present Majesties and the Justice of their Undertaking our Deliverance I ought not to pass by Bishop Overall's Convocation-Book compos'd in the time of James I. Licensed by the late Bishop of Canterbury since his disowning this Government and Printed as it is to be presumed with a manifest Intention of undermining it for every Man may discern that the Scheme of Government there drawn for the whole World is contrary to the Foundation of our Present Settlement but tho the Hypothesis is laid together with much Subtilty nothing but Infallibility can give it Authority and to me it seems a piece of Presumption only short of that of the Romish Church For having made a Collection from Sacred and Prophane History and the Apocryphal Writings tho of the last they say P. 64. they mean not to attribute any Canonical Authority unto them nor to establish any Point of Doctrine they Canonically condemn of Errors all that agree not to their Inferences and Conclusions upon a state of Fact which at least may be false This single Observation might make it needless to consider more particularly what is there said especially when I add this further That it would make Scripture Examples under the Jewish State to have the force of Precepts now which if they have then the Examples of Jehu in killing wicked King Joram then his Subject and of Othniel P. 46. 2 Kings Judges and Ehud who rescued the Israelites the one from the King of Moab the other from the King of Mesopotamia who had brought them under Subjection may serve for Rules in the like Cases If they do not then to what purpose do they in other Instances bring Presidents of God's dealing with the Jews of his chusing and anointing their Kings and the like With these Antidotes we may venture upon a further tast of the Doctrines The Foundation of all is the Patriarchal Power of Adam which they suppose to have been absolutely Monarchical all the World over that Noah had the like Authority all his Life but that he divided the whole World among his Three Sons upon which they conclude P. 84. That if any Man affirm Can. 35. That God ever committed the Government of all the World after Adam 's and Noah 's times to any one Man to be the sole and visible Monarch of it he doth greatly err And another Error which they Canonically condemn is of them who hold that Christ doth not allow the distributing of this his one Vniversal Kingdom Lib 2. Can. 4. p. 147. into divers Principalities and Kingdoms to be Ruled by so many Kings and Absolute Princes under him Upon the whole the Fatherly Power was absolute in Adam then in Noah then in his Three Sons together and ever after in all the Princes in the World Can. 2. and as they affirm in relation to Adam's Monarchical Power that it rose not from any choice of the People neither say they is it deduced by their Consents naturally from them P. 3. Which is meant of the Powers which now are in the World And yet if I mistake not they elsewhere own that the Consent of the People may be requisite to the legitimating some Governments when they justify Mattathias P. 67. who being moved with the Monstrous Cruelty and Tyranny of Antiochus made open resistance the Government of that Tyrant being not then either generally received by Submission or setled by Continuance wherein the Consent or Submission of the People is owned to be material The consequence of which will reach a Prince that Exercises a Power beyond what has been submitted to or setled But admit their Notion of the Absolute Power of the Father should hold while the World was but one Family and the Father might be supposed to be the sole Proprietor I doubt they cannot advance one step further without meer Fictions of their own Imaginations or as vain and uncertain Tradition If we attend to the sacred Text freed from their imposing Comment Noah's Sons are by God himself made joynt Proprietors with him Gen. 9.1 2 For the Text says God blessed Noah and his Sons and said unto them Be fruitful and multiply and replenish the earth And the fear of you and the dread of you shall be upon every Beast of the earth and upon every fowl of the air upon all that moveth upon the earth and upon all the fishes of the sea into your hand are they delivered If this Donation had no effect as to the Sons in the life-time of the Father neither according to the Patriarchal Scheme could the younger Sons have any Benefit in the life-time of the Elder wherefore either here was a joynt Propriety in all and consequently the Distribution must proceed from an express or tacit Consent of the Proprietors or else they must be beholden to Jewish Tradition for the establishing their Christian Canon concerning Government For two things I must confess we are obliged to them 1. For pathetically describing the unhappiness of the Jews and how Religion went in those days P. 72. when the Priests had gotten the Reins into their own Hands 2. For observing That the Pharisees the most proud and stubborn of the Jewish Sects P. 79. were the only Men who refused to swear Allegiance to Herod and Caesar Can. 30. yet they say If any Man shall affirm that Jaddus the Jewish High Priest having sworn Allegiance to Darius might have lawfully born Arms against him he doth greatly err This is in a Canon which they raise from the Fact in Josephus of Jaddus's refusing to assist Alexander in his Wars and becoming Tributary to the Macedonians as he had been to the Persians and this after Alexander had overthrown Darius who escaped by Flight The Jewish High Priest seems to put words into the Mouth of our late Archbishop returning for answer That he might not yield thereto because he had taken an Oath of Allegiance to Darius which he might not lawfully violate whilst Darius lived Compare this with the next Canon according to the Analogy of their Doctrine and see