away all the evil Counsellors which the King perceiving again betook himself to the Tower But an agreement being made with some of the Barons by the Queens mediation the King having left the Tower in the Custody of one in whom he confided went a progress and found his Barons very quiet and peaceable but he soon discover'd that he was resolv'd to act without regard to the Provisions at Oxford Violently seiz'd several Castles and coming to Winchester displaced the Chief Justice and Chancellor which had been constituted by the Baronage F. 1335. the Barons met him at Winchester with a considerable Force upon which the King hastens again to the Tower of London The Barons one would have thought were now in a fair way of securing the performance of the last Contract made at Oxford but now the Clergy had their Game to play and acted it like Men who knew how to manage the Nation against its interest they keeping a correspondence with the Clergy of France were Authors of advice to the Barons That all things in difference should be referred to the Determination of the French King no doubt making the Barons believe that they had assurance of that King 's good Wishes for the Prosperity of England Both the King and Barons agreed upon the reference upon which as was to be expected the French King gave Sentence for the King against the Barons and for annulling the Statutes at Oxford with all Provisions Ordinances and Obligations thereunto belonging With this Exception that he intended not by that Sentence in the least to derogate from the Ancient Charter of King John granted to the Kingdom of England Qui habebant sensus exercitatos Which Exception says the Historian oblig'd the Earl of Leicester and others of sound Judgments to resolve firmly to keep the Statutes of Oxford which were founded upon that Charter And Matthew Paris condemns those as guilty of Perjury who upon this A fidelitate Comitis Leicestriae receded from their Faith to the Earl of Leicester who fought for Justice He grew so strong and so successful that the King came again to Terms with him and with the other Barons the Terms were these Mat. Par. f. 1327. That Henry his Brothers Son should be deliver'd out of Prison That all the Kings Castles throughout England should be put into the Custody of the Barons That the Provisions of Oxford should be inviolably observed That all Foreigners shall depart the Kingdom within a certain time excepting only them whose stay should be permitted by unanimous Consent as being faithful to the Kingdom Mat. Par. But notwithstanding all Pacts Promises and Oaths the King sends to have Windsor-Castle besieg'd but was disappointed by the Earl of Leicester After this a Parliament met at London in which several deserted the Earl and adher'd to the King so that he seem'd the strongest The Barons writ him a Submissive Letter declaring That they had no evil Intentions against his Person but complain of his Counsellors The King in his Answer justifies his Counsellors and says their Enemies are his The Barons on the King's side send a defiance to the others and particularly to the Earl of Liecester and to Gilbert de Clare Earl of Glocester and Hereford undertaking to prove them Traytors in the King's Court. Which Tryal the Barons thought they then had Reason to decline but the Barons offer the King 30000 l. for his Damage sustained by the War 1329. provided the Statute of Oxford may be observed but their Proposals not being accepted they came to a pitch'd Battel at Lewis wherein the King was totally routed and taken Prisoner and his Son Edward soon after yielded himself Upon which followed a form of Peace solemnly sworn to while the King and his Son were in Prison Pat. 48. H. 3. m. 6. dors but the Son making his Escape took the Advantage of a Difference between the Earls of Leicester and Glocester Vide Cave de Scriptoribus Eccles f. 716. His Character of that Bp. who animated the Barons Vir erat ut pietatem vitae Sanctimoniam reliquasque virtutes Christiano Praesule dignas praetermittam ingentis animi acris ingenii in re literariâ quantum ea ferebant tempora ad summum pen̄e apicem evectus totum encyclopediae circulum emensus in literis sacris pariter prophanis c. and over-powering Montfort gained an entire Victory at Evesham by the Death of that Earl who as Matthew Paris's Continuator tells us laid out himself for the Relief of the Poor the Assertion of Justice and the Right of the Kingdom and was incited to it by the Famous Grosthead Bishop of Lincoln who always affirmed that they who died in that Cause would be Martyrs The King being victorious no wonder that a Parliament called immediately upon it at Winchester condemned the Conquered for Rebels but it is evident that more Parliaments justified such as then were Rebels for being beaten Falkner's Christian Loyalty p. 349. and methinks Mr. Falkner does not argue with his usual fairness when he urges the unfortunate conclusion of the Barons Wars in the later end of H. 3. as sufficient evidence that if we look into the Records of the former ages we may thence discern that no Subjects whatsoever of this Realm had under any pretence an authority to bear arms against the King The Dictum de Kenelworth 51 H. 3. mentioned by him as an evidence of the sense of another Parliament besides that of Winchester is plainly an abatement of the rigours of that Parliament and was only a determination and award made after Simon Montfort the younger Vid. Brady's Hist f. 655. had submitted to any terms that should be imposed saving his Life and Limbs and excepting perpetual Imprisonment Mr. Falkner adds Anno 52. P. 351. The Statute of Marlbridge mentions it as a great and heavy mischief and evil that in the time of the late Troubles in England many Peers and others refused to receive Justice from the King and his Court as they ought to have done which is more expresly contained in the Original Latin than in the common English Translation Justitiam indignati fuerint recipere per dominum Regem curiam suam prout debuerunt consueverunt and did undertake to vindicate their own Causes of themselves P. 352. Now to declare that all Peers and all other Persons ought to have received Justice only from the King and his Courts and not to revenge themselves or be Judges in their own cases doth more especially condemn the entring into War its self which is an Undertaking founded upon a direct contrary Proceeding And thus we have a sufficient Censure in our English Laws upon that War against the King which those who have pleaded for the Lawfulness of Subjects taking Arms do account the most plausible Instance for their purpose as our Chronicles can furnish them with Answer But to any who consider
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 HAving sufficient Experience of the Consequences of being always on the Forlorn Hope tho in the noblest Cause I should yeild to the Justice of my Friend 's kind Rebuke for engaging in so many unprofitable Battels wherein they who have raised neither Envy nor Provocation are suffered to carry away the Prize by the Consent of Friends as well as Enemies were it not that he who is mercenary and fights for Pay or for Spoil can be no fit Votary to Truth which may sometimes be consistent with Mens Worldly Interest rarely advances it but can never vary with it while they who court Truth for the Dowry are often driven to Inconsistences with her and themselves and must be content to serve themselves of her thinnest Disguises Which I take to be the case of them who pretend to justify this Government upon any other bottom than that on which it really stands and may flourish in spite of open Enemies if it be duly arm'd against false Friends who ground it upon their own Fictions and flattering Schemes prepared in times with which they suited and were but like the Hypotheses of Philosophers to answer the then present Phaenomena Such Men valuing their own Reputation and Interest too much above the Publick expose it to the Contempt of the more subtile Adversaries Vid. Considerations offered for taking the Oath of Allegiance said to be Dr. Whitby's reflected upon in a Treatise call'd The Charity and Loyalty of some of our Clergy who cannot but smile to see Quietism prevail in Allegiance as well as in Devotion and them to pretend to discharge the Duty of Subjects and to deserve Protection from the Government who not only make resisting the late King damnable which implies a scrupling to defend that Government which protects them but broadly insinuate that no personal Assistance is due to keep the King and Queen in their Station even tho they have sworn Allegiance to them which shews what is to be thought of some Mens Promise constantly to pay that Fidelity and Allegiance which they have all sworn When the fit of Quietism is over and the opportunity inviting they may in the sense of some of the Brethren with a safe Conscience fight for their King de Jure Wherein it is evident that no Provision is made for the Safety of this Government but only for securing to themselves their Places of Profit under it yet no Man can believe that the Law which requires the Oath of Allegiance can give the least scope for so gross an Evasion so serviceable to that pretence of Title which it rejects Vid. The Doctrine of Non-resistance and Passive Obedience not concerning the Controversy Vid. the Preface Nor will the Jacobites be less thankful for their Doctrine who not only condemn all those whose active Zeal help'd to turn the Scale against them but allow no Title in our King unless it be by a real Conquest of the Nation or legal Succession in the Line The first of which the King not only disowns and the People would be loth to fight to maintain over themselves but according to the Objection in Elementa Politica Vid. Elementa Politica would have required a formal Denunciation of War And the last labours with such Difficulties as few can be able to resolve themselves or others in But as I am verily perswaded that our Government stands upon such a Rock as has been unmov'd for many Ages and has no need of a Lie for its Support I shall with the utmost Faithfulness address my self to its Defence wherein if I offend some of contrary Sentiments I must entreat them to answer me like Men with Reason and Authority and not in those Methods wherein they have hitherto been too successful All the Opposers of our present Settlement who pretend to talk Sense when press'd home grant that the Constitution of the English Government must be the Guide to their Consciences in this matter And tho I cannot commend those Justices of the Peace who permitted a Divine Thomas Lessey Rector of Laurence Lyddeard in Somersetshire Eminent in his Country and an Example to others to read a Protestation before his taking the Oath of Allegiance to King William and Queen Mary yet I ought not to reject his Testimony that Lawyers are the best Directers of Conscience in this case The words according to a Copy of his written Paper now in my hand transmitted from the Country were these I am assured by Learned Men in the Law whom I have consulted as the best Directers of my Conscience of this case This was at last Christmas-Sessions for the County Sir Edward Philips being Chair-man that by the Laws of this Nation the Allegiance of the Subject is due to a King in Fact or in Possession of the Government provided they have been recognized by the three Estates of the Kingdom in a Publick Convention I am fully convinced of the Truth of this And this is a Reason prevails with me to swear Allegiance to King William and Queen Mary The great Unhappiness of this Nation is that Divines not only set up for the greatest States-Men but will pretend to be the best Lawyers and Casuists in these Points of which the truest Friends to them and the Church have complained Thus the late Earl of Clarendon having in his excellent Book against Mr. Hobbs Lord Clarendon's Survey of the Leviathan p. 75. tax'd some Divines of malicious Endeavours to render Monarchy insupportable by the unlimited Affections and Humours and Pretences and Power of a single Person Says others of them believe as unreasonably that the Disposition Natures and Hearts of the People cannot be applied to the necessary Obedience towards their Princes nor their Reverence and Duty be so well fix'd and devoted to them as by thinking that THEY HAVE NOTHING OF THEIR OWN but whatever they enjoy they have only by the Bounty of the King who can take it from them when he pleases Whatever such Casuists hold of the absolute and inseparable Soveraignty of Princes if I prove that King William and Queen Mary are Rightful King and Queen according to the ancient Constitution of the English Government how much soever my Endeavours of real Service to the Croâ—… may be misrepresented by Men of another Allegiance I shall hope at least to be thought to have served my Country too much infected with wrong Notions or distracted with false Mediums and to have done Justice to our Great Deliverer and those English Worthies who invited or embraced the Deliverance and by their steady adhering to the Interest of their Country avoid that Forfeiture of Protection which too many have incurred To which end I shall shew 1. That the People of England had a rightful Power lodg'd with them for the
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
meintenir les establisments que sunt fet ou sunt a fere par la dit Conseil declaring That all things provided or to be provided by the King's Council and the greater part of them who were chosen by the King and the Community of his Realm should be held firm and established and requiring all men to swear to hold and maintain the Establishments made or to be made by the said Council Vid. Flet. Habet Rex Consilium suum in Parliamentis c. But upon farther consideration I find that Council was the King's Council in Parliament and those Knights who were the Inquisitors for the Counties were not only oblig'd to come to deliver in their Inquisitions but their Consent was requisite to what the King should ordain by his Council in Parliament which then were a select number chosen as abovesaid Claus 42. H. 3. m. 1. dorso Quia Robertus Cambhen socii sui de Comitatu Northumb. de precepto Regis venerunt ad Regem apud West c. pro quibusdam negotiis Communitatem totius Communitatis praed tangentibus Mandatum est Quod prefatis quatuor militibus de Communitate praed rationabiles expensas suas in eundo redeundo habere faciat In another of the same time to Huntingtonshire they are said to have appeared coram Consilio nostro apud Westm in Parliamento Vide of this at large in the 2 d part since as it should seem all the Lords Certain it is there are Writs upon Record for the Expences of those Four Knights for every County as since there have been for Two The observing of the above-mentioned Contracts will give light to that Judgment which may by us at this distance be past upon the Wars between H. 3. and his Barons and not to mention any small disturbances and the Violations of the Rights of particular men and what they did in defence of them I find H. 3. four times opposed by the People in Arms in Three Wars and a Fourth rising which wanted only Numbers on the King's side to make it a War all manag'd under Heads formally chosen or seeming to have claim to the Conduct by virtue of their Offices 1. The first was under Lewis the Dauphin of France whom the Barons at London had chosen for King in this there was one King against another both standing in truth upon the same title the choice of the People Lewis had the greater part of the Chief Nobility on his side how much soever the Pope's Thunder might have frightned the more ignorant Vulgar and prevailed upon their interested Guides 2. The Second was under the Conduct of the Earl of Chester named first as 't is to be suppos'd for the reason before shewn The occasion of the Insurrection began Ao 1223. 7o. of that King when he being Seventeen years old obtain'd a Bull from the Pope declaring him of full Age and enabling him to order the Affairs of the Kingdom chiefly by the Counsel of his Domesticks that is such as he should chuse turning out those Officers which either had Hereditary Rights or had been chosen in Parliament according to what was insisted on at his Coronation 20o. as matter of Right wherefore his assuming all the Power into his own hands and countenancing the Exorbitances of Hubert de Burgh Mat. Par. Addit Chief Justice of England who indeed as appears upon his Defence afterwards when he came to be impeach'd had been chosen in one of King John's Parliaments but was continued in by H. 3. against the sense of his own Parliament sowed the Seeds of Discontent tho they did not break out into a general Rising but all seem'd to be quieted by his Confirming the Great Charter Ao. 1224. Yet soon after when he was in truth of full Age he was resolv'd to act as one out of Wardship 11 H. 3. and in a Parliament at Oxford declared himself free and by the advice of Hubert de Burgh cancell'd the Great Charter of the Liberties of the Forest as of no validity because granted in his minority and forc'd many who had Ancient Grants of Liberties to purchase them a-new at such Rates as the Chief Justice impos'd Besides Hubert had advis'd the King to act Arbitrarily with his own Brother Richard Duke of Cornwal which drove him to shelter himself under the publick-Publick-Cause and glad were the Great Men to find his resentment contribute to such a general demand of Justice Mat. Par. as forc'd the King to compliance in a Parliament at Northampton 3. But by the Seventeenth of H. 3. Peter Bishop of Winchester An. 1233. Mat. Par. f. 413. Adhuc sub custodiam Petri Winton who had succeeded to William Earl Marshal in the custody of the King during his minority having been supplanted by Hubert the Chief Justice at last put the Dice upon the less subtile Layman and resolving not to fall again for want of flattering his Prince advis'd him in order to become Absolute to remove his Natural Subjects from the Great Offices and put Foreigners in their Places who were brought over in great numbers and oppressed and plunder'd the Nobility upon false accusations and pretences seiz'd their Castles and enjoy'd the Wardships of their Children This occasion'd a general insurrection under Richard Earl Marshal who as a Roman Tribune of the people went to the King and in their name demanded a redress of Grievances but the Bishop of Winchester having given an haughty answer justifying the King's calling over what Strangers he thought fit to reduce his Proud and Rebellious Subjects as he call'd them to due obedience The Marshal and the rest of the Great Men who were Witnesses to that insolence Swore to stand by one another to the last extremity in the Cause of their Country But the Earl of Chester another Tribune here sold his Country for a Sum of Money The Marshal finding himself deserted was obliged to have recourse to Leolin Prince of Wales for aid Upon this the King Proclaim'd him Traytor 9º Octob. Ao. 1233. But in a Parliament held at Westminster at the latter end of that year tho' the Earl Marshal was absent and in Arms the Parliament advis'd the King not to Banish Spoil or Destroy his Subjects without Legal Process nor to call them Traytors who endeavour'd the Peace of the Kingdom Mat. Par. last Ed. f. 388. and by whose Counsels the Government ought to be managed Which was a full justification of the Arms taken by the Marshal Nay the Bishops proceeded so far as to Excommunicate the Bishop of Winchester and others the King's Ministers and to lay upon them the imputation of disturbing the Peace of the Kingdom The Marshal carried all before him with universal applause The Bp. of Winchester and his Accomplices were punished in a Parliament held at Candlemas The King having sent to treat of Peace with the Marshal and Prince Leolin the evil Counsellors which were the Marshals chief
Peace when he judges it fitting notwithstanding Mens Oaths to defend all the Regal Priviledges they were not bound to defend this especially if the War were against Protestants in which case the Subject would take to himself the Judgment of the Justice or Expedience of the War as much as others do of the necessity of resisting Or suppose yet farther that the late King had discharged his Mercenaries and commanded the Militia by Law establish'd for the Defence of the Kingdom to march and fight against his present Majesty had not this been a legal Command The King 's legal Commands he agrees with me that we are bound to obey yet he with all agrees that it was unlawful to assist the late King against This before he was crown'd How then can the matter be adjusted without yeilding that the late King lost his Regal Power by assuming a Tyrannical one This may suffice to shew that they who resisted the late King did it not out of Principles either Anti-christian or Anti-monarchical and that they who are for the non-resisting Doctrine as it past for current in the last Reign and the foregoing and yet pretend a Zeal for the present Government do but daub with untempered Mortar and as they were not to contribute to the late Revolution so much as in their Prayers but on the contrary were to pray for the late King's Victory over all his Enemies and in effect that God would keep and strengthen him in his Kingdom as well as in that Worship which they could not but know not to be God's true Worship So if that misguided Prince should desert Ireland and return into their Arms for a Punishment of those Opinions which occasioned his Ruine their pretended Loyalty to this King if they prove true to their Principles must fall to the ground And the least puff of Wind adverse to us but prosperous to the Jacobites would blow up that Fire covered with deceitful Ashes to the extinguishing of which I shall readily devote my Service The Lay-Gentleman who has extorted my Reflections by his indecent Censure of the Subjects of this Monarchy who contributed towards the late Revolution thinks it clear that the Doctrine of Passive Obedience is no way concern'd in the Controversies now depending between the Friends and no Friends if not Enemies to their present Majesties having in his vain Imagination put it past question that the Williamites were neither good Subjects under the late Administration nor good Christians and true Members of the Church of England And that his good Christians and true Members are the only Persons whose Principles may be relied on now Yet since he will have the Sense of the Church to be known from the Cry of the Clergy and a Bishop supposed to be a Martyr for it may be presum'd to give the Sense of that Truth which he would be thought to attest to the last If this Gentleman will not hear me let him hear the Church for his Conviction in this matter The late Bishop of Chichester's Paper BEing called by a sick and I think a dying Bed and the good Hand of God upon me in it to take the last and best Viaticum the Sacrament of my dear Lord's Body and Blood I take my self obliged to make this short Recognition and Profession That whereas I was baptized into the Religion of the Church of England and sucked it in with my Milk I have constantly adhered to it through the whole course of my Life and now if so be the Will of God shall die in it and I had resolved through God's Grace assisting me to have dy'd so tho at a Stake And whereas that Religion of the Church of England taught me the Doctrine of Non-resistance and Passive-Obedience which I have accordingly inculcated upon others and which I took to be the distinguishing Character of the Church of England I adhere no less firmly and stedfastly to that and in consequence of it have incurred a Suspension from the Exercise of my Office and expected a Deprivation I find in so doing much inward Satisfaction and if the Oath had been tendred at the Peril of my Life I could only have obey'd by Suffering I desire you my worthy Friends and Brethren to bear Witness of this upon occasion and to believe it as the Words of a dying Man and who is now engaged in the most Sacred and Solemn Act of conversing with God in this World and may for ought he knows to the contrary appear with these very Words in his Mouth at the dreadful Tribunal Manu propriâ subscripsi Johannes Cicestrensis This Profession was read and subscribed by the Bishop in the Presence of Dr. Green the Parish Minister who administred Dr. Hicks Dean of Worcester Mr. Jenkin his Lordship's Chaplain Mr. Powell his Secretary Mr. Wilson his Amanuensis who all communicated with him Here 't is observable 1. That the Bishop as fallible as an inferior Clergy-man died in that Opinion which he had profess'd and inculcated in his Life-time so warmly and so often that himself believ'd it Tho it may be a Question Whether he would on his Death-bed have affirmed as he had done in his Pulpit where Mens Affirmations ought to be as solemn as at the last moments of Life Sermon at Tunbridg That they could not enter into Heaven without particular Repentance who in derision were called Ignoramus Jury-men because they would enquire into the Credibility of Witnesses and scorned to enslave themselves to the Directions of Judges or more powerful Influences from White-hall And tho it seems the Tower had not wean'd him from his fondness of Passive Obedience perhaps it did from that which he had express'd towards our then Court's firm League with France while he believ'd it design'd to curb none here but the Fanaticks Vid. the Defence of his Profession concerning Passive Obedience and the new Oaths Ed. Anno 1690. These severe Truths tho in proof beyond Contradiction I should gladly let lie buried with him were not his Ghost still kept walking to do Mischief And if the Authority of a Man's Person or Office shall without any other ground be set up to condemn the far greatest number of Persons of at least equal Credit and Station it is no more than requisite to shew that this Man is not more than others exempted from Errors and the common Incidents to Humanity 2. The Bishop shews that the Doctrine of Passive Obedience which he had inculcated as the Doctrine of the Church of England and which he found himself oblig'd to propagate at his Death is so far concern'd in the Controversies now depending that upon the account or in consequence of holding to it he had incurr'd Suspension and expected Deprivation for not taking the Oath of Allegiance to our present King and Queen wherein he abundantly confutes our Son of the Church And all the Authority which can be deriv'd from the Bishop's Dying-Declaration to prove the Doctrine of Passive Obedience
Preservation of the Constitution in vertue of which they might declare King William and Queen Mary King and Queen of England and Ireland with all their Dependencies tho J. 2. was alive at the time of such Declaration 2. That this rightful Power was duly exercis'd in the late Assembly of Lords and Commons and afterwards regularly confirmed by the same Body in full Parliament 1. As to the Nations rightful Power I shall not go about to refute the fond Notion of an absolute Patriarchal Power descending from Adam to our Kings in an unaccountable way because tho if this were true there could be no more Compact between Princes and their People than is between Fathers and Children for establishing the Rights of Fatherhood Patriarcha non Monarcha Ed. An. 1681. Two Treatises of Government In the former the false Princeples and Foundation of Sir Robert Filmer and his Followers are detected and overthrown Ed. Anno 1690. Heylyn 's Certamen Epistolare p. 386 387. yet the difference between a Patriarchal and Monarchical Authority is so well stated and prov'd by my Learned Friend Mr. Tyrril that few besides the unknown Author of the two late Treatises of Government could have gained Reputation after him in exposing the false Principles and Foundation of Sir Robert Filmer and his Admirers one of which Dr. Heylyn in his Letter to Sir Edward Filmer the Son speaking of his Father says His eminent Abilities in these Political Disputes exemplified in his judicious Observations on Aristotle's Politicks as also in some Passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this Cause which I would not willingly should be betrayed by unskilful handling and had he pleased to have suffer'd his excellent Discourse called Patriarcha to appear in publick it would have given such Satisfaction to all our great Masters in the Schools of Polity that all other Tractates in that kind had been found unnecessary This he says might have serv'd for a Catholicon or general Answer to all Discourses of this kind Since Sir Robert Filmer and Dr. Heylin were our late Observator's Predecessors in guiding the Inferior Clergy 't is not to be expected that they should nicely enquire into the Errors and Contradictions of their Leaders but the Doctor 's scandalous Reflections upon the Reformation in England and the Misfortunes of Charles the First in some measure at least occasion'd by the Countenance given to Sybthorpism Manwarism and Filmerism may justly raise a Prejudice against these Men and their Doctrines in the thinking Laity and those who are not able to think of themselves may take every Morning some Pages of the two Treatises of Government for an effectual Catholicon against Nonsense and Absurdities which have nothing to recommend them but Stile and Names cried up among a Party Vid. Dr. Heylyn's Stumbling-Block of Disobedience and Rebellion Wherefore I may well think that I may pass over the Stumbling-Blocks which such Men lay in the way to my Proof that the Power whereby this Nation is govern'd is originally under God derived from the People and was never absolutely parted with Hooker 's Ecclesiastical Polity lib. 1. f. 10. Many have cited the Authority of the Judicious Hooker till it is thread-bare to prove that it is impossible there should be a lawful Kingly Power which is not mediately or immediately from the Consent of the People where 't is exercised The present Bishop of Worcester whose Name will undoubtedly be held in no less esteem in future Ages Irenicum p. 132. is as express in his Irenicum That all civil Societies are founded upon CONTRACTS and COVENANTS made between them which saith he is evident to any that consider that Men are not bound by the Law of Nature to associate themselves with any but who they shall judg fit That Dominion and Propriety were introduced by free Consent of Men and so there must be Laws and Bonds fit Agreement made and Submission acknowledged to these Laws else Men might plead their natural Right and Freedom still which would be destructive to the very Nature of those Societies When Men then did part with their natural Liberties two things were necessary in the most express Terms to be declared 1. A free and voluntary Consent to part with so much of their natural Rights as was not consistent with the well-being of Society 2. A free Submission to all such Laws as should be agreed upon at their entrance into Society or afterwards as they see Cause But when Societies were already entered into and Children born under them no such express Consent was required in them being bound by virtue of the Protection which they find from Authority to submit to it and an implicit Consent is suppos'd in all such as are born under that Authority The Account which the Learned Cragius gives of the first Institution of Kingly Government seems to deserve not to be omitted Quum multa iracundè multa libidinosè multa avarè fierent c. Cragius de Feudis f. 2. Vid. The like account in Sir Will. Temple 's admirable Treatise of Monarchy among his Miscellanies So Bracton Rex à regendo non à regnando Jus dicebant When many things were acted wrathfully many things lustfully many things avariciously the best Man of a Society was chosen who might take Cognizance of the Offence or Injury and determine what was equal among Neighbours Thus were Judges constituted in every City for the sake of distributing Justice These were call'd Kings for Kings at the beginning were no more than Judges having their Denomination from ruling Each presided over his own City that is administred Justice Hence that multitude of Kings in Holy Writ To descend from generals to the Romans in particular whose Emperors were suppos'd to have been the most absolute and that the Obedience to Higher Powers required in the Gospel is to be taken from the measures of Subjection due to them Dr. Hicks Dr. Hicks his Jovian the great Maintainer of the Absolute Power of Monarchs takes a great deal of Pains to shew that the Empire was not Hereditary and by Consequence that their Power was immediately vested in the particular Emperors by the Consent of the Legions or other People who set them up Saravia as careful of the Rights of Princes owns Saravia de Imp. Author f. 159. That by the Roman Law the Crime of Laesa Majestas or Treason is defin'd to be that which is committed against the People of Rome and its Security Where he confines it to Crimes against the People only Vid. Tacitus p. which indeed agrees with the dying Speech of an old Roman in Tiberius his time But that in the Eye of our Law there may be a Laesa Majestas Vid. Glanv p. 1 Crimen quod in legibus dicitur crimen Laesae Majestatis ut de nece vel seditione
particular Consideration of him to the second Part. TO proceed to positive Law I shall shew how the Contract between Prince and People stood and hath been taken both before the reputed Conquest and since Where 't will appear 1. That Allegiance might and may in some Cases be withdrawn in the Life-time of one who continued King until the occasion of such withdrawing or Judgment upon it 2. That there was and is an establish'd Judicature for this without need of recurring to that Equity which the People are suppos'd to have reserv'd 3. That there has been no absolute Hereditary Right to the Crown of England from the beginning of the Monarchy but that the People have had a Latitude for setting up whom of the Blood they pleas'd upon the Determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force 4. That they were lately restored to such Latitude 5. The People of England have duly exercis'd their Power in declaring for King William and Queen Mary and recognizing them to be Lawful and Rightful King and Queen 1. If the King not observing his Coronation-Oath in the main lose the Name of King then no Man can say that Allegiance continues But that so it was before the reputed Conquest appears by the Confessors Laws Vid. Leges Sancti Edwardi 17. de Regis Officio Nec nomen Regis in eo constabit where they declare the Duty of the King But the King because he is Vicar to the Supream King is constituted to this end that he should rule his Earthly Kingdom and the People of God and above all should reverence God's Holy Church and defend it from injurious Persons and pluck from it wrong Doers and destroy and wholly ruin them Vid. Bracton l. 2. c. 24. Est enim Corona Regis facere Justitiam Judicium tenere Pacem sine quibus non potest eā tenere which unless he does not so much as the Name of a King will remain in him c. To which Bracton seems to refer when he says The King cannot hold his Crown without maintaining Justice Judgment and Peace that therein consists his Crown or Royal Authority Hoveden shews how this Law was receiv'd by William 1. Hoveden f. 604. Rex atque Vicarius ejus Nota There was occasion for naming the Deputy by reason of the accession of Normandy requiring the King's Absence sometimes The King and his Deputy or Locum tenens in his Absence is constituted to this end c. in substance as above Which unless he does the true Name of King will not remain in him And as the Confessor's Laws have it in which there is some mistake in the Transcriber of Hoveden otherwise agreeing with them Pope John witnesses That he loses the Name of King who does not what belongs to a King which is no Evidence that this Doctrine is deriv'd from the Pope of Rome The Pope only confirms the Constitution or gives his Approbation of it Vid. The Case of Rehoboam inf in the Quotation out of Lord Clarendon f. 32. perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right And to shew that this is not only for violating the Rights of the Church the Confessor's Laws inform us that Pipin and Charles his Son not yet Kings but Princes under the French King foolishly wrote to the Pope asking him if the Kings of France ought to remain content with the bare Name of King Lambert Qui vigilanter defendunt regunt Ecclesiam Dei Populum ejus By whom it was answer'd They are to be called Kings who watch over defend and rule God's Church and his People c. Hoveden's Transcriber gives the same in substance but through a miserable mistake in Chronology will have it that the Letter was written by Pipin and his Son to W. 1. Lambart's Version of St. Edward's Laws goes on to Particulars among others That the King is to keep without diminution all the Lands Honours Dignities Rights and Liberties of the Crown Barones Majores Minores Vita Aelfredi f. 62. Ego tria promitto populo Christiano meisque subditis c. That he is to do all things in his Kingdom according to Law and by the Judgment of the Proceres or Barons of the Realm and these things he is to swear before he is crown'd By the Coronation-Oaths before the reputed Conquest and since all agreeing in Substance every King was to promise the People three things 1. That God's Church and all the People in the Kingdom shall enjoy true (a) Nota Protection Peace 2. That he will forbid Rapine and all Injustice in all Orders of Men. 3. That he will promise and command Justice and Mercy in all Judgments And 't is observable that Bracton Bracton lib. 3. c. 9. who wrote in the time of H. 3. transcribes that very formulary or rather Abridgment of the Oath which was taken by the Saxon Kings In Bracton's time 't is certain the Oath was more explicit tho reducible to those Heads and 't is observable that Bracton says The King is created and elected to this end that he should do Justice to all Where he manifestly shews the King's Oath to be his part of a binding Contract it being an Agreement with the People while they had Power to chuse With Bracton agrees Fleta and both inform us Fleta lib. 1. c. 17. that in their days there was no scruple in calling him a Tyrant and no King who oppresses his People violatâ dominatione as one has it or violentâ as the other either the Rule of Government being violated or with a violent Government both of which are of the like import Mirror p. 8. The Mirrour at least puts this Contract out of dispute shewing the very Institution of the Monarchy before a Right was vested in any single Family or Person When forty Princes who had the Supream Power here chose from among them a King to reign over them and govern the People of God and to maintain the holy Christian Faith and to defend their Persons and Goods in quiet by the Rules of Right And at the beginning they caused the King to swear That he will maintain the holy Christian Faith with all his Power and will rule his People justly without regard to any Person and shall be obedient to suffer Right or Justice as well as others his Subjects And what that Right and Justice was in the last result the Confessor's Laws explain when they shew that he may lose the Name of King Vid. Seld. spicil ad Ead. merum f. 171. Dissert ad Flet. f. 591. Hoved. f. 608. Leges H. 1. confirming St. Edward ' s Laws Cum illis emendationibus quibus Pater meus emendavit consilio Baronum suorum Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates Leges Regis Edwardi f.
in his Life-time who with the Consent of the Nation had sent a Solemn Embassy to the Norman Duke to assure him of the Succession Vid. inf Vid. Leges W. 1. de fide obsequio erga Regem 5. If William I. did gain the Right of a Conqueror it was personal and he never exacted this for his Heirs as appears not only by his Declaration when he came to die but by the Fealty or Oath of Allegiance which he requir'd in his Laws 6. If our Ancestors had made as absolute a Submission to Will I. as some pretend Lord Clarend Survey p. 51. in the Judgment of the Lord Clarendon it would not extend to us For says he if it can be suppos'd that any Nation can concur in such a Designation and devesting themselves of all their Right and Liberty it could only be in reason obligatory to the present Contractors Nor does it appear to us that their Posterity must be bound by so unthrifty a Concession of their Parents The King's Oath is the real Contract on his side and his accepting the Government as a Legal King the virtual one and so it is vice versâ in relation to the Allegiance due from the Subject Jovian p. 244. Thus far the Author of Jovian is in the right As in the Oath of Allegiance the People swear nothing to the King but what they are bound to perform unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound to perform unsworn Vid. Dr. Stillingfl Irenicum p. 132 133. Saravia de Imperii authoritate f. 221. Grotius de jure Belli Pacis p. 59. Successio non est titulus Imperii sed veteris continuatio Lord Clarendon's Survey p. 74. The Description which Samuel made of the exorbitant Power of Kings was rather to terrify them from pursuing their foolish Demand than to constitute such a Prerogative as the King should use whom God would appoint to go in and out before them which methinks is very manifest in that the worst of Kings that ever reign'd among them never challeng'd or assum'd those Prerogatives nor did the People conceive themselves liable to those Impositions as appears by the Application they made to Rehoboam on the Death of Solomon That he would abate some of that Rigor his Father had exercis'd toward them the rash Rejection of which contrary to the Advice of his wisest Counsellors lost him the greater part of his Dominion and when Rehoboam would by Arms have reduced them to Obedience God would not suffer him because he was in the fault himself Upon which account I will yield to Saravia That in Hereditary Kingdoms the Coronation-Oath confers no new Right and therefore there may be a King before his Coronation Yet we must attend to Grotius his Rule who rightly observes That Succession is only a continuance of that Power which the Predecssor had so that if the first Possessor comes into Power qualified by express Contract this binds the Successor and he is to be thought to come in upon those Terms Nay even Dr. Whitby Considerations humbly offer'd for taking the Oath Pref. who to save the Credit of some of his Brethren rather than the Reputation of the Government argues as if our King were barely King de facto yet says he does by no means condemn those Writings which plead for taking the impos'd Oath upon such grounds as do more fully justify the Title of our present Governours And himself in answer to them who laugh at the Notion of an Original Compact shews very particularly that W. 1. was received upon Compact and that the same Compact has continued and been renew'd by our succeeding Kings One of the Terms before the time of W. 1. as appears by the Mirrour was that the King should suffer Right or Justice as well as his Subjects And St. Edward's Sword called the Curtana Vid. inf carried before our Kings at their Coronation was in the time of H. 3. as will afterwards more particularly appear a known Emblem and Remembrancer of this of the same nature with that Boy ordered every Morning to put Philip of Macedon in mind of his Mortality But surely whoever was entitled to carry the Curtana or to use a judicial Power in such Cases as above how much soever they continued their Allegiance to the King's Authority could not well be said to retain it to his Person Dr. Brady indeed says There never was any Pact between King and People no Fundamental Terms of Government agreed between them nor indeed says he ever was there or is it possible for any such thing to be in any Nation of the World Matter of Fact so long as we have any Memorials of it in these Kingdoms shews to the contrary If the Matter of Fact here could shew it not possible in any other Kingdom his might pass for an universal History but if the Authorities in this first Part do not take off from the Doctor 's Credibility in this Point as far as relates to England Vid. inf second Part throughout I will undertake before I have done with him in the second where his Notions fall more directly under Consideration to shew Jani Angl. facies nova that he deserves little more Credit than when he made my Tract maintaining the Rights of the Commons of England to be represented in Parliament Dr. Brady's Introd to his compleat History an Evidence of my being in a Plot against the Government 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 Mirrour the foreign Speculum Saxonicum Bracton and Fletá 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 Claims of their Rights in the times of W. 1. W. 2. H. 1. King Stephen H. 2. Leges St. Edward sup vid. ib. Rex debet omnia rite facere in regno suo de judicio Procerum suorum THere was and is an establish'd Judicature for the great Case in question as is implied by that part of St. Edward's Laws above-mention'd which supposes some Judg or Judges in the case and those Laws investing the Proceres with the supream Judicature withholds not this from them And the same Laws declare that a Folcmot or an Assembly of the People of every County Leges St. Ed. Tit. Greve Vid. second Part. as it is there explain'd was to meet every first of May in a
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.
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
cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive
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
been split into the Constable Chancellour Treasurer and the Grand Maistre du France or Count du Palais which he seems to resemble to an High-Steward with us The Author of the Sighs of France shews Les soupirs Mem. 7. p. 167. that when Childebert was chosen King they chose Grimoald for Maire du Palais And says he Through all our History we may always see a very clear distinction between the Officers of the King's House and those of the Crown This distinction remains to this day as a Monument of the Ancient Liberty of the French For we say the Great Master of the King's Houshold the Great Chamberlain c. But we say the Constable of France the Admiral of France the Chancellour of France And these last Charges do not dye with the King whereas the Officers of the King's House dye with the King and may be changed by his Successour The Reason of this difference comes from this That that which is given by one King may be taken away by another But the Officers of the Crown being made by the People and by the Realm cannot be turn'd out by the King alone And it is very remarkable that these Offices of the Crown which the States of the Kingdom may give and which they alone can take away may extend to the whole to the War to Justice and to the Finances or Treasury In a Book published in Queen Mary's Reign which at least went under the name of Bishop Poinet one of our Confessors History of Passive Obedience p. 38. who fled to Germany from the Marian Persecution such a Power as is above mentioned is affirmed to have belong'd to the High Constable of England Treatise of Politick Power Anno 1556. As God says the Author has ordained Magistrates to hear and determine private Matters and to punish their Vices so also will he that the Magistrates doings be call'd to account and reckoning and their Vices corrected and punished by the Body of the whole Congregation or Commonwealth As it is manifest by the meaning of the Ancient Office of High-Constable of England unto whose Authority it pertained not only to summon the King personally before the Parliament or other Courts of Justice to answer and receive according to Justice but also upon just occasion to commit him to Ward Theloal in his Digest of Writs Printed in the year 1579. 21 Eliz. Collects what is in the Year-Books concerning Summoning the King Theloal's Digest tit Roy. p 71. This was H. 3. Vid. 22. E. 3. f. 3. b. Trin. 24 E. 3. f. 55. b 43 E. 3.22 a. Wilby Justice Fuit dit H. 22 E. 3. que en temps le Roy Henry devant le Roy fuit impled come serroit autre home de people Mes Edward son fits ordein que home sueroit vers le Roy per petition Et issint dit suit T. 43. E. 3.22 que en temps le Roy Henry le Roy ne fuit mes come comune person car a ceo temps home averoit brief d'entre sur disseisin vers le Roy touts autres maners d'actions come vers auters persons c. Et Wilby dit T. 24. E. 3.23 que il avoit vieu tiel brief Precipe Henrico Regi Angliae c. En lieu de quel est ore done petition pur sa Prerogative It was says he held Hil. 22 E. 3. that in the time of King Henry and before the King was impleded as any other Man of his people but Edward his Son ordain'd That a Man shall sue to the King by Petition And so it was said Trin. 43 E. 3.22 That in the time of King Henry the King was but as a common person for at that time a Man might have a Writ of Entry upon Disseisin against the King and all other manner of Actions as against other persons c. And Wilby said Trin. 24 E. 3.23 That he had seen such a Writ Precipe Henrico Regi Angliae in lieu of which now a Petition is given for his Prerogative Sir Robert Cotton of the Constable of England MS. in the Herald's Office It may be difficult to distinguish between the Office of the Earl of Chester and the Constable of England who as Sir Robert Cotton held is Second to the King and has the Custody of his Sword the carrying which as appears by Matthew Paris belonged to the Earl of Chester by reason of his Palatinate and yet at the same time Humphrey de Bohun Earl of Hereford Constable of England was in full possession of his Office Dugdale 's Bar. 1. Vol. f. 180. 11 H. 3. he stood up with the Earl of Chester and others on the behalf of Richard the King's Brother and was alive and in England 20 H. 3. when the Earl of Chester carried the Sword as of Ancient Right so that one seemed to have the right to carry the other to keep the Sword The Office of Constable seems to have been no ancienter than the the time of W. 1. Vid. Patent to Earl Rivers Temp. E. 4. Vid. 2 d. Part. to which the Patents for the Office refer but the Earldom of Chester and its Rights were Ancienter Wherefore one would think that W. 1. erected the Office of Constable to ballance that of the Earl Palatine Sir Rob. Cotton Of Constable c. MS. sup The other Great Officers the High-Steward and Marshal are easily distinguishable from the Constable and as Sir Robert Cotton observes the Office of Constable was of Military that of the High-Steward of a Civil Jurisdiction The Marshal was in the nature of an High Sheriff Vid. Stat. 3. R. 2. Stat. 1. C. 2. Of the Constable and Marshal Flet. lib. 2. c. 60. Of the Steward and Marshal So Ryle 's Placita Parl. f. 126. 21 E. 1. Selden 's Bar. 2 d Part c. 5. f. 739 F. 743. to see to the Execution of the Process and Judgments of either and yet had a Judicial Power with both In some Cases all three acted with joynt authority as appears by the most Ancient Copies of the Modus tenendi Parliamenta which tho' it has been put into Latine since the Conquest and has the names of Things and Offices adapted to what was known and in use at the time of the Translation from the Saxon MS. yet certainly for substance gives a true account of what was before the Conquest Mr. Selden supposes it to have been no ancienter than about the time of E. 3. yet confesses that he had from Mr. Hackwel a Copy of an Inspeximus 12 H. 4. Exemplifying under the Great Seal most of the particulars that occur in the ordinary Modus for England fitted for Ireland as sent thither by H. 2. but it would have been very strange if there should have passed an exemplification under the Great Seal of what was a meer fiction The Modus says Modus tenendi Parl. Cum dubitatio vel casus difficilis pacis vel
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
how it provides for the Security of Princes and Obedience to their Governments Can. 31. If any Man therefore shall affirm either That the Jews generally both Priests and People were not the Subjects of Alexander after his Authority was setled amongst them as they had been before the Subjects of Babylon and Persia or that they were not all bound to pray for the long Life and Prosperity both of Alexander and his Empire as they had been bound before to pray for the Life and Prosperity of the other said Kings and their Kingdoms whilst they liv'd under their Subjection or consequently that they might lawfully upon any occasion whatsoever have offered Violence and Destruction either to their Persons or to their Kingdoms for the long continuance and Prosperity whereof they were bound to pray or that after the Jews were deliverred from their Servitude under the Kings of Syria and the Government over them was setled in Mattathias's Posterity it was lawful for the People upon any occasion to have Rebelled against them or to have offered Violence to their Persons He doth greatly err The Justice or Injustice of the War on either side between Darius and Alexander are made no part of the question but here are two Princes both suppos'd Absolute with all Adam's Power over their respective People staking their Kingdoms upon the chance of Battle one of them is conquered and runs away yet according to our Canonists the Conqueror is not entituled to the Fatherly or Patriarchal Power over the other's People but it is suspended at least during the Life of the King that was beaten and the Authority not setled all that while and if the Monarchy was Hereditary it may be yet more difficult when to fix the Settlement If it is admitted to be Setled in the life-time of the ejected and conquer'd Prince and that it is a duty to pray for the Life and Prosperity of the Conqueror and upon no occasion to offer any Violence to his Person or Kingdom yet according to these Canonists they were bound at least during the Life of the Conquered Prince to give no active Assistance to the other in Person or Contribution And thus it might be allowable to mock God Almighty while they pray for that to which they will not contribute the means in their Power or else their Prayers were to have such a mental Reservation as some have who pray for King James while they pray for The King But if they were to pray for Alexander's Prosperity without reserve one would think it was lawful at least to Fight for him against Darius notwithstanding the Oath of Allegiance taken to Darius by reason of the Authority which he had lost If any one shall say That this Convocation-Book was innocently published at this time let him read the following Canon If any Man therefore shall affirm Can. 28. either that the Subjects when they shake off the Yoke of their Obedience to their Sovereigns and set up a Form of Government among themselves after their own Humours do not therein very wickedly or that it is lawful for any Bordering Kings through Ambition and Malice to Invade their Neighbours Or that the Providence and Goodness of God in using of Rebellions and Oppressions to execute his Iustice against any King or Country doth mitigate or qualify the Offences of any such Rebels or Oppressing Kings or that when any such new Forms of Government begun by Rebellion are after thoroughly Setled the Authority in them is not of God or that any who live within the Territories of such new Governments are not bound to be Subject to God's Authority which is there executed but may Rebel against the same Or that the Jews either in Egypt or Babylon might lawfully for any Cause have taken Arms against any of those Kings or have offered any Violence to their Persons He doth greatly Err. If this be taken according to any rational or so much as probable Account of Government in General particularly applied to the English Constitution I see no danger in admitting that People ought not to throw off the Yoke of Obedience and set up a Form of Government after their own Humours and that it is not justifiable in any Bordering King or Prince through Ambition and Malice to Invade his Neighbours And yet this would not in the least condemn either the People of England in shaking off a former illegal and arbitary Yoak while yet they retain the ancient Form and Fundamental Rights of the Government or our Present Sovereign in his Heroical Undertaking our Deliverance But if all Princes are as Absolute as their Notion makes them the Nation had no Ground of complaint and His Present Majesty's Expedition would fall under the Imputation of Ambitition or Malice 't is certain that no just cause could be assign'd for it upon their Principles and yet these would as well condemn our Dissenting Bishops of Disobedience to the Late King in not complying with the Commands of a Prince whom this Book would make Absolute And of this the Archbishop would have done well to have bethought himself when he gave his License for the Church-Militant to put on this old rusty Armor which hung up without use for above eighty years Vid. Advertisement called Anno 1603. continued to 1610. had been full three if not not six Years in hammering out and was brought forth in this Critical Time to do Wonders for their suppos'd King of Divine Right of their making at least if not of God's Whilest the Clergy in that and following times Wrote and Preached for Preferments and Condemn'd all Notions which lay in their way to it it is to be feared that they incurr'd the Curse pronounced from more Divine Authority against him that removes his Neighbours Land-mark And he that would Model the English Government by those of the East of old set up and maintain'd by Confusion would do well to transplant his Family into Turky where he may find one of the truest Patterns of the fancied Patriarchal Government But if that or the Anticyrae to which an old Romam would have advised them be too far for them to Travel in their Canonical Habit they may take a step into France where its Monarch assumes and exercises a Power according to their Primitive Stamp Yet the latter part of the foregoing Canon tells you That you are bound to be subject to God's Authority even in those new Governments which are set up after the Humours of the People So that fully to maintain their Passive Character even in the Case of Usurpation and Introducing a new Form contrary to the Fundamental Constitution they are bound to sit still and never to Assist to Restore their Rightful Prince or ancient Form of Government but should trust Providence or rather tempt it to forsake them to their utter destruction But they who would be led by the Authority of these Canons to condemn our present Settlement I hope will learn even from thence to submit to it and attempt nothing against it and then I doubt not but there are brave English Men enough to defend it from all Foreign Force FINIS
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
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective Sub modo 1. From the Saxon Pontifical and the Council of Calcuth Anno 789. 2. From the Practise till the supposed Conquest 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's consent at Coronations 5. The Opinion of Kings themselves 6. The Old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The claims of Right between Two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same Common Stock THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris