Common Council to provide for the Indemnity of the Crown of the Kingdom and for repressing the Insolence of Malefactors for the benefit of the Kingdom which as appears from the words and subsequent as well as former Practice besides the Opinions of ancient Lawyers did not except the King himself whatever Care is taken of the Crown of the Kingdom However 't is certain the Parliament 12 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice Whereby if the King Knighton f. 2683. meaning the Case of E. 2. through a foolish Obstinacy Contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and laudable Ordinances made by the Council of the Lords and Great Men of the Realm but shall headily in his mad Counsels exercise his own Arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd Knighton f. 1752. This observ'd after me by the Author of the Answer to the Popular Objections p. 44. and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24 th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and razed to the great Prejudice of the People and Disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance More particularly in the Historian unmask'd by the same Author Mirror p. 9. The Mirror tells us That of Right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum Hornii orbis imperans p. 196. of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was written before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People Hornius p. 196. who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from Bracton seems to correct the Copy and has it si parcat Fleta lib. 1. cap. 17. If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere Bracton l. 3. c. 9. p. 107. that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains Ibid. when he says That no Justices or private Persons may dispute of the King's Charters and Acts Bracton l. 2. c. 16. p. 34. but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. Vid. Ryly Plac. Parl. f. 20. Fleta supra Superiores So Mirror p. 9. Ceux Compagnions sont ore appelles Comites in Latine Comitatus where he takes in all that come up to Parliament from the Counties where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King acts without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not be adjudg'd so by the Judges Commissaries or Commission'd Judges Vid. Mirror p. 209. He there says Suitors are Judges ordinary and 274. speaks of Counties les autres Suitors having Jurisdiction in Causes which the King cannot determine by himself or by his Judges So Judg Crook's Argument in Hampden's Case p. 59. Whatever is done to the Hurt or Wrong of the Subjects and against the Laws of the Land the Law imputeth that Honour and Justice to the King whose Throne is establish'd by Justice that it is not done by the King but it is done by some unsound and unjust Information and therefore void and not done by Prerogative which the Mirror uses in Contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least interfere with the Judicial Power of the High Court of Parliament and it may be a Question Whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of false Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions Chronica de Mailros f. 137. Anno 756. Bromt. f. 770. Cōgregati sunt Proceres Populus totius regni eum providâ deliberatione à regno unanimi consensu omnium expellebant was expell'd the Kingdom and Bromton shews that this was done in a judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament Lambart's Pref. to Archaionomia Northumbrorum Imperii magnitudo ea fuit quae nunc est Ehoracensis Dunelmensis Northumbriae Cumbriae Westmorlandiae Comitat. atque reliquam praeterea Lancastrensis Com. partem complectebantur Chron. Mailros f. 138. Anno 774. Sin Dunelm 106. 107. Consilio consensu omnium Regiae Familiae ac principium destitutus societate exilio Imperii mutavit Majestatem And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and
that Statute 't will appear beyond contradiction 1. That the rule of submitting to the judgment of the King's Court will be of no service to Mr. Falkner's purpose the Court which is presum'd to be intended if it relates to the Controversies between the King and his Barons being the Parliament where they would be Judges in their own cases which Mr. Falkner says they ought not to be 2. The Statute of Marlborough does not in the least condemn the Barons Wars For 1. The Subject of that Act is to remedy the abuses of Distresses which are matters within the Jurisdiction of the ordinary Courts of Justice and no way extends to the great questions of the Kingdom determinable only in the highest Court 2. The Statute does not call those Wars a time of Rebellion Vid. Stat. Marlb Fleta p. 25. but of Dissention and Troubles suitably to which even in the time of E. 1. among the Articles of the Crown in charge to the Justices in their Circuits one provides for enquiry after them who have substracted Suits of Shires c. after the War moved between King Henry the Third and his Barons Mat. Par. f. 373. 3. Tho the Barons once threatned H. 3. That unless he would send away the Foreigners they would all by the Common-Council of the whole Realm drive Him and his wicked Councellors out of the Kingdom and would consider of making a new King yet it appears by the Circumstances and Events of the several Insurrections that their design was only to bring him to reason they still were for continuing him King and therefore it might not be improper for the Parliament at Marlborough to hold That for all matters of private differences even while Armies were in the Field the Course of ordinary Justice was to go on and that it was not to be look'd on as a state of War This may be enough to remove the Objections made by Mr. Falkner against the Barons Wars in the time of H. 3. which he supposes to be the most plausible Instance brought by them against whom he writes and I take it that the Reign even of E. 1. one of the most warlike of our Kings affords an Instance no less plausible Ao. 1297. Knighton f. 2510. Libratas In the twenty-first year of his Reign he summoned all who had twenty Pounds a Year â—… Land of whomsoever they held to attend him at London with Horse and Arms in order to go with him to Flanders When they met at London he was advised to be reconciled to some of the Great Men with whom he had been at variance He complied with the Advice excusing himself for former Exactions and desiring their farther Assistance since what he was engaged in was not his own private concern Mat. West f. 430. but the concern of the whole People as he was their Protector and Defender And he intreated them to pray for him which the Historian says very few did heartily But Humphrey Bohun Earl of Hereford and Essex High-Constable of England and Roger Bygot Earl Marshal withdrew from the King whereupon he discharged them of their Offices and gave them to others Yet the King found himself obliged to send some Persons to mediate between Him and Them To whom they declared That it was not their own Cause alone but the Cause of the whole Community which they undertook Knighton f. 2511. For not only They but the whole Community of the Land was agrieved with unjust Vexations Tallages and Levies and chiefly That they were not treated according to the Liberties in Magna Charta Wherefore they drew up a Remonstrance of their Grievances which if the King would command to be redressed they were ready to follow him to the Death Knighton f. 2512. The King gave a dilatory Answer excusing himself through the absence of some of his Council and having desired them not to do any thing to the prejudice of Him or his Kingdom passed the Seas notwithstanding the dissatisfaction that he left behind concluding 't is likely That that Success which commonly attended him in his Wars would gain him a more absolute ascendant over his People The King being gone the Constable and Marshal with their Adherents forbad the Chancellor and Barons of the Exchequer to issue out Process for levying the eighth Peny which had been granted the King in Parliament and which yet they said was granted without their Consent either as they had not due Summons or were upon just Cause absent They continuing together in Arms the King's Son who had been constituted Vicegerent found a necessity of giving them satisfaction To which end he calls a Parliament Knighton f. 2523. where through the mediation of the Arch-bishop whom Knighton blesses for it it was agreed That the King should confirm Magna Charta and the Charter of the Forrest That for the future Magnates he should not ask or take any Aid of the Clergy or People without the good will and assent of the Great Men. And that he should remit all Rancor to them and their Adherents In the Charter or Act of Parliament which then passed there are these Words Remisimus Humfredo de Bown Comiti Herfordiae Esekes Constabulario Angliae Rogero Bygot Comiti Norfork Mareschallo Angliae c. rancorem nostrum malam voluntatem quam ex causis praedictis erga eos habuimus etiam transgressiones si quas nobis vel nostris fecerint utque ad praesentis Cartae confectionem We have remitted to Humphrey de Bowne Earl of Herford and Essex Constable of England Roger Bygot Earl of Norfolk Marshal of England c. the rancour and ill-will which we had against them for the foresaid causes and also all Transgressions or Offences if they have committed any against us or ours to the making of this Charter Here was a quiet conclusion of an Insurrection managed under two Tribunes of the People whose Union had such an effect that what they did was not lookt on by the Parliament to be so much as a Misdemeanor 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 late Abdication omitted The Objections from the Oaths against taking Arms and from the Declaration against a Coercive Power over Kings removed by Sherringham and the Triennial Act 16 Car. 1. Pufendorf's Due Restraint of the Power of the People Instances of the like Power in other Nations particularly Denmark Sweedland and Norway when under the same King For France Hottoman Sesellius the Author of Les Soupirs de la France esclave Bodin explain'd and shewn to justify King William in his descent hither and the People of England in their asserting the true Constitution of the Government For the German Empire Bodin and Conringius An occasion taken from him to
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 FOR the Equity and reserv'd Cases I think it appears in the nature of the thing that they for whose benefit the Reservation is must be the Judges as in all Cases of Necessity he who is warranted by the Necessity must judg for himself before he acts tho whether he acts according to that Warrant or no may be referr'd to an higher Examen But where the last Resort is there must be the Judgment which of necessary Consequence in these Cases must needs be in the People the Question being of the Exercise of their Original Power and where they have by a general Concurrence past the final Sentence in this case their Voice is as the Voice of God and ought to be submitted to The late Earl of Clarendon Survey of the Leviathan p. 86. speaking even of a Contract wherein the absolute Power of a Man's Life is supposed to be submitted says He was not bound by the Command of his Soveraign to execute any dangerous or dishonourable Offices but in such cases Men are not to resort so much to the Words of the Submission as to the Intention which Distinction he will have applicable to all that monstrous Power which Mr. Hobbs gives his Governour to take away the Lives and Estates of his Subjects without any Cause or Reason upon an imaginary Contract which if never so real can never be supposed to be with the Intention of the Contractors in such Cases * Cocceius de Principe p. 197. Leges fundamentales Regni vel Imperii quae vel disertè pactae sunt cum Principe antequam imperium ineat c. Cocceius holds the fundamental Laws of any Kingdom or Empire to be not only those for which there has been an express Contract with a Prince before or upon his assuming the Government but such also as seem tacitè inesse rei publicae to be implied as belonging to every Community or Civil Society For the direction of Mens Judgments in such Cases they need not consult voluminous Authors but may receive sufficient Light from those excellent Papers The Enquiry into the present State of Affairs The Grounds and Measures of Submission and The brief Justification of the Prince of Orange ' s Descent into England and of the Kingdom 's late Recourse to Arms. Which I shall here only confirm by some Authorities The first as being of most Credit among them who raise the greatest Dust Sanderson de Juramenti obligatione p. 41. shall be Bishop Sanderson Of the Obligation of an Oath who shews several Exceptions or Conditions which of Common Right are to be understood before an Oath can oblige in which I shall not confine my self to the Order in which he places them 1. If God permit because all things are subject to the Divine Providence and Will Nor is it in any Man's Power to provide against future Accidents Wherefore he who did what lay in him to perform what he promis'd has discharg'd his Oath 2. Things remaining as they now are Whence he who swore to marry any Woman is not oblig'd if he discovers that she is with Child by another These two Exceptions sufficiently warrant Submission to such Government as God in his Providence shall permit notwithstanding Oaths to a former King And if he cease to treat his People as Subjects the Obligation which was to a Legal King determines before his actual withdrawing from the Government 3. As far as we may as if one swear indefinitely to observe all the Statutes and Customs of any Community he is not oblig'd to observe them farther than they are lawful and honest 4. Saving the Power of a Superior Whence if a Son in his Father's Family swear to do a thing lawful in it self but the Father not knowing it commands another thing which hinders the doing that which is sworn he is not bound by his Oath because by the Divine Natural Law he is bound to obey his Father And he who has sworn not to go out of his House being cited to appear before a lawful Judg is bound to go out notwithstanding his Oath the Reason is because the Act of one ought not to prejudice the Right of another These two last Instances added to the Consideration of a Legal King Vid. Stat. 13. car 2. c. 1. will qualify the Oath declaring it not lawful upon any pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person or aginst those that are commissioned by him This I think I may say with warrant from Bishop Sanderson That no Man is bound by this Oath to act against Law Vid. infra p. under colour of the King's Commission Vid. Grounds and Measures of Submission Salus Populi suprema Lex nor to permit such Actions if it be in his Power to hinder them the common Fundamental Law being in this Case the Superior which he is to obey and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary To Bishop Sanderson I may add Grotius Vid. Johannis à Felde Annotata ad Grot. c. 3 4. who runs the Prerogative of Kings as far as any Man in reason can Yet he allows of reserved Cases in which Allegiance may be withdrawn tho there is no express Letter of Law for it As 1. Where the People being yet free Grot. de jure Belli Pacis c. 3. p. 60. Vid. Pufendorf Elementa Juris prud p. 256. Nemo alteri potest quid efficaciter injungere per modum praecepti in quem nihil potestatis legitimae habet Grot. c. 4. p. 86. habet pro derelicto command their future King by way of continuing Precept Whether there be any such with us can be no doubt to them who read the Coronation Oaths from time to time required and taken upon Elections of some Kings and the receiving others by reason of prior Elections and Stipulations with their Predecessors 2. If a King has abdicated or abandon'd his Authority or manifestly holds it as derelict indeed he says he is not to be thought to have done this who only manages his Affairs negligently But surely no Man can think but the Power of J. 2. is direlict And he cites three Cases wherein even Barclay the most zealous Asserter of Kingly Power allows Reservations to the People 1. If the King treats his People with outragious Cruelty 2. If with an hostile Mind he seek the Destruction of his People 3. If he alien his Kingdom This Grotius denies to have any effect and therefore will not admit among the reserved Cases Vid. Mat. Par. Addit f. 281. The King of France his Attorny General speaking of King John 's resigning his Crown to the Pope Etsi dare non potuit potuit tamen
have stood for the defence of their Liberties have served themselves How truly I esteem it hard for you and me to determine unless we were more throughly acquainted with the Laws and Customs of those Countries than I for my part am 1. Here his Interrogation strongly implies the Assertion that Subjects are not bound to give their Throats to be cut by their fellow Subjects or offer them without either humble Remonstrance or Flight to their Princes at their meer Wills against their own Laws and Edicts 2. The Argument from the Laws of Nature and Nations he represents with due strength and apparent marks of Favour All the Hesitance which he makes in pronouncing absolutely on their side is from his not being throughly acquainted with the Laws and Customs of those Countries Wherefore as he supposes not Christianity to lay any Obligation upon the Subjects beyond the Duty resulting from the particular Constitutions of the respective Governments so he does fully admit that the Laws ad Customs of some Countries may allow of Resistance in some Cases Hence it appears that no Man can truly say that he takes the Bishop's words by the wrong handle who would infer from him that it is neither unlawful nor impious for Subjects in some Countries and in some Cases to resist their Princes Nay without knowing the Constitution of France or of the Low-Countries he supposes that in such extraordinary Circumstances as the poor Protestants in both places lay under no Man can condemn them without approving of the barbarous Cruelty and Butchery of their Persecutors Page 446. Nay for Holland he particularly urges that the Kings of Spain were not absolute Lords there and says any reasonable Man may doubt Whether the Title of Earl to which they succeeded imported such a Power as they exercis'd which is as much as to say that since they assumed a greater Power than the Constitution warranted Arms against them were lawful and if thus much is not implied Bp Bedell p. 447. it must be own'd that the Bishop very impertinently affirms that the Kings of Spain were not absolute Lords in Holland No Man can doubt of his meaning thus much since he affirms positively that it is no hard matter to discern pretended Priviledges from true and Treason from Reason of State But says he to take Arms to change the Laws by the whole Estate established is Treason whatsoever the Cause or Colour be which may take in those that fight on the side of a King as well as those who fight against him Nor do I know what can well be said against what the judicious Mr. Lawson urges to this purpose Lawson's Politica sacra Civilis 362. last Edit Treason says he against Laws is more hainous than Treason against Persons and Treason against Fundamental Laws than Treason against Laws for Administration This Treason against the Fundamentals was charged upon the Earl of Strafford and the Personal Commands of the King could not excuse him yet it was not thought that the Judgment past upon him should be made a Precedent for Inferiour Courts because none but a Parliament could judg of and declare the Constitution and what is against it and what not Bishop of Christian Subjection Ed. 1586. p. 279 280. If says Bishop Bilson a Prince should go about to subject his Kingdom to a Foreign Realm or change the form of the Common-wealth from Impery to Tyranny or neglect the Laws establish'd by common Consent of Prince and People to execute his own Pleasure in these and other Cases which might be named if the Nobles and Commons joyn together to defend their ancient and accustomed Liberty Regiment and Laws they may not well be accounted Rebels And soon after he speaks of a Power for preserving the Foundation Freedom and Form of their Common-wealths which they fore-priz'd when they first consented to have a King Where his meaning cannot be restrain'd to express Provisions excluding such as may be equitably intended That which is offer'd in the History of Passive Obedience to qualify Bishop Bilson's Expressions History of Passive Obedience p. 27. I dare say will be a Confirmation of his Authority in the Judgment of any Man who impartially weighs the following Proofs of the nature of our Government At the time says the Historian when Bishop Bilson's Book was written Queen Elizabeth was assisting the Dutch against their and her common Enemy the Crown of Spain Now if in the Low Countries the Government was founded in Compact as many Learned Men say and that all their Priviledges Sacred and Civil contrary to that Agreement were invaded and the Inquisition introduced all their Petitions slighted and some hundred thousands barbarously murder'd this alters the Case while it can no ways hold good in Governments where there is no such Compact Passing by due Reflections upon the Impunity which he allows to the most barbarous Murders where the Government is not founded in Compact it will appear to be enough for us that where it is founded in Compact the Nobles and Commons may joyn in the Defence of their ancient and accustomed Liberty Regiment and Laws nor may they in such Case well be accounted Rebels And not to heap Authorities with this agrees the Divine Plato who after he had affirm'd that the highest degrees of Punishment belong to those who will misguide a Ship or prescribe a dangerous new way of Physick having brought in Socrates asking whether Magistrates ought not to be subject to the like Laws himself asks Platonis Politicus f. 299. Ed. Serrani 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What shall be determined if we require all things to be done according to a certain Form and set over the Laws themselves one either chosen by the Suffrages of the People or by Lot who slighting the Laws shall for the sake of Lucre or to gratify his Lust not knowing what is fit attempt to do things contrary to the Institutions This Man both he and Socrates condemn as a greater Criminal than those which he mention'd whose Crime he aggravates as 't is an acting against those Laws which through a long Experience had been ordain'd by their Counsel and Industry who had opportunely and duly weighed every thing and had prevail'd upon the People to submit to them 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
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
which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 11 H. 7. c. 1. 9. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the occasion of the Law which was to encourage the service of H. 7. who had no Title but from his Subjects And there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which if it relates to Acts of Parliament being built upon the Supposition That according to the Fundamental Law the Peoples Choice gives sufficient Title perhaps is not vain and illusory Lord Bacon's Hist of H. 7. f. 145. as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy fundamentally Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute But I take it not to be evident that the Acts here mention'd must needs be Acts of Parliament For they might and by the word other seem to be such Acts as are of the nature of ordinary Process or whereon such Process is grounded as Ordinances of the Lords in Parliament Orders of the Privy Council Judgments or Decrees in Courts of Law or Equity and the like However admit this Clause should be vicious and insignificant My Lord Bacon I am sure gives no countenance to a certain Dissenting Bishop's Argument in publick Discourse who undertook from hence to prove That the Statute it self is of no force Yet such sort of Arguments are of great service to men resolv'd upon a Conclusion nor can better be expected from them To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me Object 1 The Maxim in Law That the King never dies Or to use the words of Finch ' The Perpetuity which the Law ascribes to him Finch's Description of the Common Law French Edit An. 1613. f. 20. b. 21. a. The same made use of in Reflections upon our late and present Proceedings p. 10. having ' perpetual Succession and he never dies For in Law it is call'd the Demise of the King Answer To which I Answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd And that the Death of a King is but a Demise transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election Dyer f. 165. Anderson f. 44. He has it Le Successeur le Heir Elsewhere Heir on Successeur ib. f. 45. tho never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Inter-regnum as it was resolved by all the Judges 1 Eliz. Of which the words of Lord Dyer are ' The King who is Heir or Successor may write and begin his Reign ' the same day that his Progenitor or Predecessor dies With which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural Vid. 1. E. 6. c. 7. 7 Rep. f. 30. appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like Agreement betwixt the present and former Government Suppos'd to be Doctor Fulwood's P. 42. A Learned Author that he may reconcile our present Settlement to this suppos'd Maxim which appears not to have any foundation in Antiquity will have it That by the Vacancy of the Throne no more was meant by the Convention than its being free from the former Possessor but that it was full of a Successor and that there was no Interregnum For says he such a Vacancy we have upon every Demise of the Crown And so there was a Vacancy of the Throne and no Vacancy at all For in ordinary Demises 't is manifest there is none Freedom from the last Possessor is not a Vacancy of the Throne Two Grounds this Doctor goes upon to justify his Equivocation in this for I can call it no better 1. That otherwise this would be inconsistent with the nature of our Ancient Hereditary Monarchy 2. That the Convention shew that they meant it no otherwise than in his Sense 1. As to the First It is observable 1. That the Notion which himself goes upon P. 40. is as inconsistent with the ordinary Rule For he makes the Heir to have only jus in re and to want Livery and Seisin And consequently till the Coronation there is an Interregnum Tho it may afterwards be supplied by relation to the Descent of the Right But herein the Doctor is certainly out For in ordinary Descents or Demises Hales's Pleas of the Crown p. 40. Treason may be committed against the Heir as in full possession before any Recognition or Coronation But since he will hardly affirm that it could have been so in our Case he must grant that there was a more absolute Vacancy than that for which he contends P. 54. It is his own Argument that our present Sovereigns are really King and Queen because Treason may be committed against them within the purview of the Statute 25 E. 3. And by the same Reason they were not King and Queen before they were declar'd so unless Treason could have been committed against them before such Declaration 2. But 2. The Doctor owns that though upon some extraordinary Revolution and some absolute necessary Reason of State for our common preservation a Stranger none of the Blood-Royal should be advanced to the Throne for one or more turns whilst that necessity continues the Constitution of the Government would not be alter'd And yet would suppose P. 56. V. p. 41. Where he speaks as his own Sense what in the other place is put by way of Objection that if our King and Queen come in otherwise than by Descent it would be a Design'd Alteration or Change of the Ancient Constitution of this Hereditary Monarchy And yet himself owns That by the Law of Nature Salus Populi is both the Supream and the first Law in Government and the scope and end of all other Laws and of Government it self Nay he yields That the Oath of Allegiance that Sign or Testimony between King and Subject is discharged or dispenced with when
to a qualified Choice I Think I have with due regard to all colourable Objections made it appear That Allegiance may in some Cases be withdrawn from one who had been King till the occasion of such Withdrawing or Judgment upon it And this I have done not only from the Equity and reserved Cases necessarily implied but from the express Original and continuing Contract between Prince and People which with the Legal Judicature impowered to determine concerning it I have likewise shewn and exemplified by the Custom of the Kingdom both before the reputed Conquest and since And have occasionally proved That tho Oaths of Allegiance may reach to Heirs according to special Limitations as was 26 Hen. 8. yet in common intendment by Heirs of a King or Crown no more is meant than such as succeed to it according to the Law positive or implied And that whoever comes to the Crown upon either Allegiance is as much due to him by the Law of God and Nature as it was to the nighest in Blood Sanderson de Obligatione Juramenti Lect. 4 Or to use the words of Bishop Sanderson Dignity varies not with the change of Persons Whence if any Subject or Soldier swear Fealty to his King or General the Oath is to be meant to be made unto them also who succeed to that Dignity And when the Crown continues in the Blood this especially by what I have above-shewn puts the Obligation of Allegiance to the King in being out of Controversie unless it can be made appear that the Right of the former King remains or that there is some Settlement of the Crown yet in force which ties it strictly to the next I come now to prove That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restor'd to that Latitude of Choice which I have shewn to be their Original Right The Lords and Commons having a Judicial Power in this matter as hath been prov'd at large their Exercise of this Power in the nature of the Thing determines the Right unless an Appeal lies from them to some higher Court in this Nation But that no Power can legally question them or any of them in this matter appears more particularly in that there is no Statute now in force nor was since the Death of Car. 2. which makes it Treason to conspire to Depose a King or actually to Depose him Vid. Sir Rob. Atkins his Excellent Defence of the L. Russel f. 22 23. But this is of the Nature of those Common-Law-Treasons which are left to the Judgment of Parliament And they who are the only Judges of their own Actions have a pretty large liberty in them especially according to them who would infer the absolute Power of Princes from the supposition of no constituted Judges of their Actions Wherefore the Defence of their Proceedings might justly seem to be superseded were it not for an ungovernable sort of men who either cannot or will not judg according to the Rules of Right Reasoning but as they will hardly admit of any Doctrine as true for which they have not the Decision of some Father or Council will believe no Action not proceeding from their imperious Dictates justifiable even in Cases of the utmost necessity for the preservation of the true Religion and just Laws for which they have no warrant from the Examples of their Forefathers or Opinions of Men whose Books have past with their Allowance Which often drives me to the seeming Pedantry of Quotations to confirm the most obvious Considerations to which my own thoughts led me The either open or more covert Matters of Fact inducing the Declaration of Lords and Commons That J. 2. has broken the Original Contract I need not now inquire into All People must own that he has if they in the least attend to the Constitution of our Government and how apparently he by his general Dispensations usurp'd a Legislative Power for the Destruction of the Protestant Religion and Civil Rights which we were in a fair way of being Dragoon'd out of by a standing Army by degrees to have been totally under Popish or Complying Officers Yet if there were no more than his Leaving the Kingdom without making any Provision for keeping up the Justice of it and going into France a Country from whence all mischiefs have of late Years flow'd upon us and our Religion Who can deny but this alone would have been enough to set him aside Rastal's Entries tit Reattachment f. 544. b. Resum c. quia extra Regnum Angliae progres fecimus nullo locum tenente nostrum sive Custode Regni relicto c. The going out of the Realm without appointing a Custos was anciently in our Law a Discontinuance of Justice Hobart f. 155. And the Lord Hobart gives it as a Maxim Cessa Regnare si non vis Judicare ' Cease to Reign if you will not judg or maintain the ' Course of Justice Vid. Leges 12. Tab. de Magistrat Many I know upon these Questions rather regard the Civil Law and that I am sure gives a home thrust in the Case of deserting one's Country and going into such an one as France is to our Nation tho it has been in too strict Alliance with our Kings The Digests say Digest lib. 49. tit 15. De Captivis Postliminio Transfugae nullum postliminium est nam qui malo Consilio Proditoris animo patriam reliquit hostium numero habendus est c. transfuga autem non is solus accipiendus est qui aut ad hostes aut in bello transfugit sed ad eos cum quibus nulla amicitia est fide susceptâ transfugit A Deserter has no Right of being restored to his Countrey For he who left his Countrey with an evil and treacherous mind is to be held as an Enemy c. But we are to take not only him for a Deserter who runs over to Enemies in time of War but also during a Truce Or Who runs over to them with whom there is no Amity either after undertaking to be faithful to his Country or else undertaking to be faithful to the other Either of which senses the words will bear 'T is likely to be said That this out of the Civil Law is improperly applied to the Prince who according to that is exempt from all Laws Imp. Theod. Valentin Caes ad Volusianum Praefectum Proetorio Digna vox est Majestate Regnantis Legibus adligatum se Principem profiteri Adeo de auctoritate juris nostra pendet auctoritas re verâ majus imperio est submittere Legibus principatum Et oraculo praesentis Edicti quod nobis licere non patimur aliis indicamus But I would desire such besides what I have observed upon the Roman Lex Regia to read the Rescript of Theodosius and Valentinian wherein they thus declare 'T is an Expression suitable to the Dignity of
Therde But because this without consideration of his Merits in rescuing them from R. 2. entituled him to the Crown no more than another of the Blood therefore the Lords and Commons drew up an Instrument purporting their Election Ib. n. 55. 4. But admit none of the foregoing Arguments were enough to shew That upon James the second 's Abdication or at least losing his Interest in the Government the People of England were restor'd to that Liberty which they had before the Settlement of the Crown which was in force till the Original Contract was broken by him yet I conceive the particular Consideration of the state of the Settlement might afford sufficient Argument Brady's Hist of the Succession f. 25. Henry the Fourth Fifth and Sixth if we believe Dr. Brady held the Crown by Usurpation Yet the earliest Settlement of the Crown farther than the first Son or Grandson was in the time of H. 4. Nor as I shall shew was the Crown enjoyed by J. 2. under better Title than they had H. 5. and 6. came in under an Entail of the Crown 7 H. 4. Vid. Rot. Parl. 8 H. 4. n. 60. confirm'd 8. The misgovernment of H. 6. having given occasion to Richard Duke of York of the Blood-Royal and Elder-house to assert the Peoples Rights not his own Henry and the Duke with the Consent of the Lords and Commons come to an agreement in Parliament That Richard and his Heirs should enjoy the Crown after the Death of Henry Tho here the word Heirs is mentioned without restraint yet considering that it is the first time that ever the Crown was setled so far Gomezius de Qualitatibus Contractuum f. 319. Hottomanni Com. de Verbis Juris usus-fructus est jus alienis rebus utendi fruendi salvâ rerumsubstantiâ Emphyteusis I know not whether it is not to be taken with Gomezius his Restriction of an Usufructuary or Emphyteutical Estate of the last of which much of the same nature with the other he says If it did not use to be granted to more than the first second or third Heirs the mention of Heirs simply ought to be restrain'd to those only because the Nature or Quality of the thing granted ought to be attended to After the Death of Richard Duke of York his Son Edward the Fourth as I before observ'd took the Government upon him as forfeited by breach of the Covenant estabish'd in Parliament However Vid. sup H. 6. being set up again ten Years after gets that Settlement by which E. 4. was to have benefit to be revok'd and the Crown to be entail'd on his Issue the Remainder to the Duke of Clarence younger Son to the Duke of York Afterwards E. 4. having success 13 E. 4. revives the Settlement 39 H. 6. Only that he attaints H. 6. Rot. Parl. 1 H. 7. n 16. Vid. Append. H. 7. Son to Edmund Earl of Richmond Brother by Mother's Side to H. 6. with others of his Party Which Attainder was remov'd 1 H. 7. and declar'd contrary to due Allegiance and all due Order And not only the Attainder but that Act of Parliament it self was revok'd So that hitherto there had been no Title in the Heirs of Richard Duke of York or of Edward the Fourth but what was deriv'd under the Settlement of Henry 6. call'd an Usurper and Edward the Fourth's Treason depriv'd him of the Benefit even of that Settlement H. 7. Indeed married the eldest Daughter of E. 4. But before that Marriage having conquer'd Rich. 3. he claimed the Crown as his Words in Parliament were Tam per justum titulum haereditantiae Rot. Parl. 1 H. 7. Vid. Append quam per verum Dei judicium in tribuendo sibi Victoriam de inimico suo As well by just Title of Inheritance as by the true Judgment of God in giving him the Victory over his Enemy If it be ask'd how he could have a Right of Inheritance when the Daughter of E. 4. and his own Mother were alive Vid. Rot. Parl. 1 H. 7. n. 16. supra it seems in the Judgment of that Parliament That E. 4. having acted contrary to his Allegiance due to H. 6. he and his had lost the Benefit of the Settlement reviv'd by his successful Treason and that this was lost even before the Revival was destroy'd by Parliament And then tho' H. 7. could not come in without an Election yet he as H. 4. before might have a sort of Inheritance according to a very witty Author Vindiciae contra Tyrânnos Ed. Amstelodami p. 110. who speaking of the Kingdom of Israel says Concludere licet regnum Israelis si stir pem spectas haereditarium certè fuisse at sanè si personas omnino electivum We may conclude That the Kingdom of Israel if you look at the Stock was certainly Hereditary but if at the Persons altogether Elective Be this as it will the Lords and Commons so far regarded King Henry's Claim that they not only receiv'd him for King but it was enacted by the Authority of the then Parliament Rot. Parl. 1 H. 7. That the Crowns of the Realms of England and France should rest in him and the Heirs of his Body lawfully coming perpetually and in NONE OTHER When they had thus done the Commons requested the King to Marry Elizabeth Daughter to E. 4. that by God's Grace there might be Issue of the Stock of their Kings So that this was only to preserve the Royal Blood not to give any new Countenance or Confirmation to his Title H. 8. enjoy'd the Crown not as Heir to his Mother but under the Settlement upon H. 7. Nor can it be said that he was in by Remitter since that Act under which his Mother should have deriv'd was Repeal'd And had it stood in force yet it would not have made the Title more Sacred unless it can be shewn that the Mother had a Title prior to the Act of Settlement 39 H. 6. the contrary to which appears by the former Account from Law and History H. 8. procur'd several Settlements of the Crown according as Love or Jealousie prevail'd in him 25 H. 8. c. 22. In the 25th of his Reign 't was settled upon Himself and the Heirs Male of his Body lawfully begotten on Queen Anne c. declaring the Marriage with Queen Katherine unlawful Remainder to the Lady Elizabeth Remainder to his own Right Heirs 26 H. 8. c. 2. 28 H. 8. c. 7. 26 H. 8. an Oath was enjoyn'd for that purpose 28 H. 8. the two former Acts 25 26 are Repeal'd the Illegitimation of Mary Daughter to Queen Katherine is confirmed the like declared of Elizabeth Daughter to Queen Anne and the Crown entail'd upon his Heirs Males by Queen Jane or any other Wife Remainder to Heirs Females by that Queen or any other lawful Wife Remainder to such Person or Persons and according to such Estates as he should appoint by Letters Patent or by Will 35.
the Crown is settled subject to such Conditions as the King should make according to the Power there given first upon Prince Edward and the Heirs of his Body the Remainder in like manner upon the Ladies Mary and Elizabeth and the Heirs of their Bodies successively without taking off their Illegitimations And the same Power is given of disposing by Letters Patent Vid. 28 H. 8. sup 35 H. 8. or by Will as by the Statute 28. for which a memorable Reason is given in both Acts Lest if such Heirs should fail and no Provision made in the King's Life who should Rule and Govern this Realm for lack of such Heirs as in those Acts is mentioned that then this Realm should be destitute of a Lawful Governour E. 6. succeeded according to both those Acts After him Queen Mary by the last who at her coming to the Crown could not be looked on as of the Right Line because of the Acts which Illegitimated her and besides she was but of the Half-blood to E. 6. to whom she succeeded But in the first of her Reign the same Parliament takes off her Illegitimation and repeals the Acts 25 28 H. 8. And in this the Parliament seems rather to provide for the Honour of her Descent Hist of Succession f. 34. than as Dr. Brady would have it to declare the Succession to be in Inheritance by Right of Blood Whatever might be the secret Intention 1 2 P. M. c. 9. I am sure there is no such authoritative Declaration And the Acts 28 35 H. 8. seem to say quite the contrary 1 2 P. M. though there is no direct Settlement it is made Treason to compass the Deprivation or Destruction of K. P. during the Queen's Life 1 Eliz. c. 3. or of the Queen or of the Heirs of her Body lawfully begotten Queen Elizabeth succeeded by vertue of the Limitation 35 H. 8. And though Bastardiz'd by the Statutes 28 H. 8. and 1 M. and but of the Half-blood both to E. 6. and Queen Mary yet her first Parliament declares That she is Rightly Lineally and Lawfully descended and come of the Blood Royal of this Realm to whom and the Heirs of her Body the Royal Dignity c are and shall be united And Enacts That the Statute 35 H. 8. shall be the Law of the Kingdom for ever But the Fee of the Crown not having been disposed of according to the Power given by the Statute 28 and repeated 35 H. 8. And the 25 whereby it was limitted in Remainder to the Heirs of Henry the 8th being repealed upon the Death of Edward the 6th and the Queens Mary and Elizabeth without Issue there remaining no Heirs of the Body of H. 8 in the Judgment of two Parliaments the Realm was destitute of a Lawful Governour Indeed according to the Act of Recognition 1 J. 1. 1 Jac. 1. c. 1. the Crown came to him being lineally rightfully and lawfully descended of the Body of the most Excellent Lady Margaret the eldest Daughter of the most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife eldest Daughter of King Edward the Fourth The said Lady Margaret being eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England Thô this pompous Pedigree to avoid all Objections goes as high as E. 4. the Derivation of Title as appears above can be no higher than from the Settlement 1 H. 7. Nor does this Act 1 J. make any additional Provision but indeed seems to flatter the King into a Belief that there was no need of any telling him That they made that Recognition as the First-fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever But neither then or ever after till that in this present Parliament did the People make any Settlement of the Crown but it continued upon the same Foot as it did 1 H. 7. when it was entirely an Act of the People under no Obligation but from their own Wills Sir Robert Filmer's Power of Kings f. 1. And if we should use Sir Robert Filmer's Authority Impossible it is in Nature for Men to give a Law unto themselves no more than it is to command a Mans self in a Matter depending of his own Will There can be no Obligation which taketh State from the meer Will of him that promises the same Wherefore to apply this Rule Since the People that is now Vid. Pufend. de Interregn sup p. 288.289 in common presumption is the same with that which first settled the Succession and so are bound only by an Act of their own Will they have yet as arbitrary a Power in this Matter as Sir Robert and his Followers contend that the Prince has whatever Promises or Agreements he has entred into But not to lean upon such a broken Reed nor yet to make those many Inferences which this plain State of the Settlements of the Crown might afford Three things I shall observe 1. If the Settlement made 1 H. 7. who was an Usurper according to the Notion of Dr. Brady and his Set of Men was of no force then there being no Remainders since limited by any act but what are spent and no descendants of the whole Blood from Elizabeth Daughter to E. 4. and Wife to H. 7. but by Daughters the eldest of which was Married into Scotland If Acts of Settlement could not alter the Right of Descent of the Crown neither Queen Mary nor Queen Elizabeth had Right but after the death of E. 6. it belonged to the Scotch Family And if Acts of Settlement could dispose of the Crown and it should appear that from the time that the limitation came to a Foreigner not nam'd in the Settlement nor the immediate issue of a King or Queen of England it was spent in the eye of the Law then of necessity the People must have had Power of Chusing or there could have been no lawful Government since Queen Elizabeth's time when the last Settlement was spent except what is now made 2. The Declarations of two Parliaments 28 and 35 H. 8. fully ballance the Declaration 1 Jac. 1. if they do not turn the Scales considering that the Judges in the later Times seem to have had less Law or Integrity than they had in H. the Eighth's I will not take upon me to determine which was the Point of Two that they might go upon 1. That a Government shall not pass by Implication or by reason of a dormant Remainder But there having been so many Alterations since the Settlement 1 H. 7. and the whole Fee once disposed of nor ever any express Restitution of the Settlement 1 H. 7. the People were not to think themselves obliged to a Retrospect 'T is evident at least that they did not Or 2. Perhaps they might question whether they were oblig'd to receive for Kings the Issue