Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	judge_n	king_n	power_n	3,562	5	5.1146	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52522	Wonderful predictions of Nostredamus, Grebner, David Pareus, and Antonius Torquatus wherein the grandeur of Their present Majesties, the happiness of England, and downfall of France and Rome, are plainly delineated : with a large preface, shewing, that the crown of England has been not obscurely foretold to Their Majesties William III and Mary, late Prince and Princess of Orange, and that the people of this ancient monarchy have duly contributed thereunto, in the present assembly of Lords and Commons, notwithstanding the objections of men and different extremes.	Atwood, William, d. 1705?; Grebner, Ezekiel.; Nostradamus, 1503-1566.; Pareus, David, 1548-1622.; Torquato, Antonio, 15th cent.	1689 (1689)	Wing N1401; ESTC R261	72,982	73

was left at large How much soever he might have strain'd in this or other Matters I am sure he was far from acting so arbitrarily as some have industriously represented him I will not say on purpose to encourage such Actions in other Princes And it is yet more certain that whatever Right either he or any body under him enjoy'd came from the Compact not from the Breach of Faith. 3. If William 1. 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 required in his Laws 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 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 ●o perform unsworn Upon which account I will yield to Saravias 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 Predecessor 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 The Description which Samuel made of the exorbitant Power of Kings was rather to terrifie 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 reigned 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 Rigour his Father had exercis'd toward them the rash rejection of which contrary to the Advice of his wisest Counsellors cost him the greater part of his Dominions and when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself One of the Terms 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 Curtein carried before our Kings at their Coronations was in the time of H. 3. a known Emblem and Remembrancer of this But surely whoever us'd that or a Judicial Power in such Cases as above how much soever they continued their Allegiance to the King's Authority could not be said to retain it to his Person 2. There was and is an establish'd Judicature for the great Case in question as is imply'd by St. Edward's Laws which suppose some Judge or Judges in the Case and investing the Proceres with the Supreme Judicature with-holds not this from them However 't is certain the Parliament 9 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 thro' 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 the Statutes and laudable Ordinances made by the Council of the Lords and the Peers 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 and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and rased 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 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 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 wrote 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 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 him seems to correct the Copy and has it si parcat If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere 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 when he says That no Justices or private Persons may dispute of the King's Charters and Acts 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. 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 act 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 to be adjudg'd so by Judges Commissaries or Commission'd Judges which the Mirror uses in contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least

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 Confessor's Laws where they declare the Duty of the King. But the King because he is Vicar to the Supreme 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 ruine them which unless he does not so much as the Name of King will remain in him c. Hoveden shews how this was receiv'd by William 1. 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 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 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 thro' a miserable mistake in Chronology will have it that the Letter was wrote 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 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 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 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 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 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 Supreme 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. These Laws were not only receiv'd by William 1. and in the Codex of the Laws of H. 1. but were the Laws which in the early Contests which the Barons had with their encroaching Kings they always urg'd to have maintain'd and that their Sanction might not be question'd the Observance of them was made part of the Coronation-Oath till some Archbishops careful only of their Clerical Rights provided for no more of those Laws than concerned them By that Oath which is upon Record and in ancient Prints the King is to swear to grant keep and confirm among others especially the Laws Customs and Freedoms granted the Clergy and People by the most glorious and holy King Edward And even after the King 's taking this Oath they were to be ask'd if they would consent to have him their King and Leige-lord Which is the Peoples part of the Contract and thus the Contract becomes mutual To which purpose the Learned Sir Henry Spelman cites Cujacius the great Civilian to shew that Faith between a Lord and Vassal is reciprocal and gives an Instance in the Oath of one of our Saxon Kings Knute for the proof of its being so here between King and Subject And with Cujacius agrees the no less judicious Civilian Pufendorf When says he the Power is conferr'd upon a King there is a mutual Translation of Right and a reciprocal Promise If it be objected That tho' this was at the beginning a Contract with a Free People it ceas'd to be so from the time of the Conquest I answer 1. Till there be a Consent and Agreement to some Terms of Governing and Subjection 't will be difficult if possible to prove any Right in the Conqueror but what may be cast off as soon as there is an Opportunity 2. William 1. was not receiv'd as a Conqueror but upon a mutual Contract upon which old Historians say Foedus pepigit He made a League with the People which comes to the same thing with what the Holy Writ records of King David That the People made a League with him His Coronation-Oath was the same with that which was taken by his Saxon Predecessors except that the Circumstances of that time requir'd an additional Clause for keeping an equal Hand between English and French. 'T is not to be doubted but that the Norman Casuists inform'd him that this related only to Legal Justice but that in Matters of Grace and Favour he

Judges in B. R. in the time of Q. Eliz. on my side King R. 3. had granted certain Priviledges to the Burgesses of Glocester with a Saving to himself and his Heirs and it was agreed by all the Justices That altho' the Words are Saving to himself and his Heirs it shall be taken for a perpetual Saving which shall go to his Successors This therefore they adjudg'd to reach the Queen who 't is well known was not Heir to R. 3. The great Objection is That in the Contests for the Crown between the Families of York and Lancaster each Side pretended Title by Proximity of Blood and as either prevail'd their Right was acknowledg'd to be according to God's Law Man's Law and the Law of Nature To which I answer As appears in the very Objection this was apply'd to those who had no such Right of Proximity as well as those who had and thus 't was to R. 3. as well as to E. 4. And even the Election of H. 4. after the Deposing and Relinquishing of R. 2. with his own express Consent is by the same Parliament that says so much of the Title of E. 4. called an Usurpation upon R. 2. Wherefore if this Record be any way leading to our Judgments no Deposing or Resignation whatever be the Inducement can be of any force Whence 't is plain that all these are but Complements to the longest Sword however they neither set aside former Authorities nor establish any Right for the future at least not more for the Heirs of E. 4. than the Parliament of R. 3. did for his Heirs Yet whoever comes next by Right of Proximity according to any Settlement in being I will not deny that they enjoy the Crown according to God's Law Man's Law and the Law of Nature for as the Great Fortescue has it All Laws publish'd by Men have their Authority from God and upon which the Author of Jovian argues and supposes all Laws of Men to be the Laws and Ordinances of God Yet who can say but these Humane Creatures or Ordinances of Men may be altered as they were made And tho' it may seem strange to some yet I may with great Authority affirm That when the People had determin'd the Right on the Side of R. 3. he was King as much according to God's Law as E. 4. For Pufendorf holds That where the Question is what Degree or what Line is best the declared Will of the People determines the Controversie since every one is presum'd to understand his own Intention and the People that is now is to be thought the same with that by which the Order of Succession was constituted But let Men argue as nicely as they please for a Right or Sovereignty inseparable from the Person of the next in Blood to the last lawful King let this fall upon J. 2. the reputed Prince of Wales or any other Person of unclouded Birth and Fame and let them argue upon the Declaration 1 E. 4. That Allegiance is there due by God's Law Man's Law and the Law of Nature Certain it is that the Statute 11 H. 7. above-mention'd was not only made in an Age of greater Light but being a subsequent Law derogates from whatever is contrary in the former By this last it is declared to be against all Laws That Subjects should suffer for doing true Duty and Service of Allegiance to the King de facto which is as much as if 't were exprest to be against God's Law Man's Law and the Law of Nature By the necessary Consequence of which Allegiance is due to a King de facto according to all these Laws Wherefore whoever denies Allegiance to King William and Queen Mary or maintains a contrary one to J. 2. offends against God's Law Man's Law and the Law of Nature Nor whatever some imagine can the Proviso at the end of this Statute in the least impair its Force as to what I use it for The Proviso runs thus Provided always That no Person or Persons shall take any Benefit or Advantage by this Act which shall hereafter decline from his or their said Allegiance Where said Allegiance shews it to be meant of Allegiance to the King de facto whose Service is called true Duty and no Man surely can think the meaning to be that if after such Service they turn to the other Side or become Traytors to the present Power they shall suffer for the former Service as Traytors against him that had the Right either during the Reign of the King in being which would be an unlikely owning the ejected Power or hereafter if that should come to be restor'd which would be far from answering the apparent End of that Clause which is to keep Men in Obedience to him who has the Power of punishing the Disobedient Wherefore the plain meaning must be that no Man who departs from his Duty of Allegiance to the present King shall save himself by pleading that he had been in Arms or had done him any signal Service In short this was to be no Corban to answer for any following Departure from Duty 4. I think I have with due regard to all colourable Objections made it appear That Allegiance may in some Cases be withdrawn from one who had been King till the occasion of such Withdrawing or Judgment upon it And this I have done not only from the Equity and reserved Cases necessarily implied but from the express Original and continuing Contract between Prince and People which with the Legal Judicature impowred to determine concerning it I have likewise shewn and exemplified by the Custom of the Kingdom both before the reputed Conquest and since And have occasionally proved That tho' Oaths of Allegiance may reach to Heirs according to special Limitations as was 26 Hen. 8. yet in common intendment by Heirs of a King or Crown no more is meant than such as succeed to it according to the Law positive or implied And that whoever comes to the Crown upon either Allegiance is as much due to him by the Law of God and Nature as it was to the nighest in Blood Or to use the Words of Bishop Sanderson Dignity varies not with the change of Persons Whence if any Subject or Soldier swear Fidelity to his King or General the Oath is to be meant to be made unto them also who succeed to that Dignity And when the Crown continues in the Blood this especially by what I have above shewn puts the Obligation of Allegiance to the King in being out of controversie unless it can be made appear that the Right of the former King remains or that there is some Settlement of the Crown yet in force which ties it strictly to the next I come now to prove That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restored to that Latitude of Choice which I have shewn to be their Original

subditis c. a Nota Protection Bracton lib. 3. c. 9. Fleta lib. 1. c. 17. Mirror p. 8. Vid. Seld. Spicel ad Eadmerum f. 171. Dissert ad Fletam f. 519. Hoved f. 608. Leges H. 1. confirming St. Edward's Laws cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum Vid. Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates leges Regis Edwardi f. 244. partim in carta regis Henrici scripta sunt partimque ex legibus Regis Edwardi antiquis excerpta sunt Vid. Rushw 1. v. f. 200. Coronation of C. 1. Sir says the Archbishop Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs to them granted by the Kings of England your Lawful and Religious Predecessors namely the Laws Customs and Franchises granted to the Clergy by the glorious King St. Edward your Predecessor V. Rot. Claus 1 R. 2. n. 44. Magna Carta Ed. cum priv Anno 1558. Juramentum Regis quando coronatur Spelman's Glos tit Fidelitas f. 271. Sam. Puf. de Interregnis p. 274. Quando in regem confertur imperium est mutua juris translatio seu reciproca promissio Vid. Templum Pacis p. 767. Deditio est pactus quo belle inferior majoris mali evitandi ergo potestati alterius sese submittit in jura aliena transit Dividi potest in simplicem sive purum quando quis mero victoris arbitrio sese submittit compositum sive conditionatum quando alterius quidem potestati quis sese subjicit sed sub conditionibus quibus aut singuli sibi consulunt aut toti universitati So Textoris Synopsis jurifgentium p. 129. Victoria vel pactione restricta est vel absoluta specie priori non plus juris victor acquirit quam ei pacto fuit concessum Sim. Dunelm f. 195. Hoved. f. 450. 2 Sam. 5. 3. Lord Clarendon's Survey of the Leviathan p. 109. 148 149. Aequo jure Vid. infr Vid. Leges W. 1. de fide obsequio erga regem Jovian p. 244. 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. Matth. Paris Edit Lond. f. 563. Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante in signum quod Comes est Palatinus regem si oberret habeat de jure potestatem cohibendi Knighton f. 2683. meaning the Case of E. 2. Knighton f. 1752. Mirror p. 9. Hornii orbis imperans p. 196. Hornius p. 196. Fleta lib. 1. cap. 17. Bracton lib. 3. c. 9. p. 107. Ibid. Bract. lib. 2. c. 16. p. 34. V. 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 Vid. Mirror p. 209. He there says Suitors are Judges ordinaries and 274. speaks of Counties les autres Suitors having Jurisdiction in Causes which the King cannot determine by himself or by his Judges So Judge Crook's Argument in Hampden's C. 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 Chronica de Mailros f. 137. Anno 756. Bromton f. 770. Congregati sunt Proceres Populus totius regni eum providâ deliberatione a regno unanimi consensu omnium expellebant Chron. Mailros f. 138. Anno 774. S. Dunelm 106. 107. Consilio consensu omnium regiae familiae ac principum destitutus societate exilio imperii mutavit Majestatem a Ib. f. 108. Anno 779. Mailros Anno 794. f. 139. S. Dunelm f. 113. Mailros f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem Ibid. 144. 872. F. 14● 941. F. 148. 947. Vid. Mirror Leges S. Edw. Vid. Knighton f. 2312. Bromton f. 1031. Mat. Par. Ed. Tig. f. 243. Anno 1214. Ib. f. 277 278. 288. Mat. Par. f. 373. Walsingham f. 107. Rex dignitate regali abdicatur filius substituitur Hollingshead f. 637. Ibid. f. 639 640. A Crown over a Branch of Lights in the House of Commons and another from the top of Dover-Castle falling about the same time Ibid. f. 657. 〈…〉 ●661 ●●●5 678. 693. Stat. 13 Car. 2. Stat. 2. c. 1. Stat. 13 14 Car. 2. c. 3. So c. 4. 15 Car. 2. c. 5. 12 Car. 2. c. 30. Vid. Justin Pandec l. 1. tit 3. Nulla juris ratio aut aequitatis benignitas patitur ut quae salubriter pro utilitate hominum introducuntur ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem Vid. Rot Parl. 39 H. 6. n 18. Vid. Cujacium tom 4. f. 154. Resp circumscripta in integrum restituitur perinde ac pupillus vel adolescens c. Vid. Cic. de Legibus Salus populi suprema lex esto Inter Leges 12 Tabularum of which Tacitus says Accitis quae usquam egregia compositae duodecim Tabulae finis aequi juris Tacitus Ed. Plant. p. 90. Sheringham of the King's Supremacy p. 41. 16 Car. 1. Nota There was no attempt to repeal this till 16 Car. 2. c. 1. Brook tit Commission n. 21. Ibid. tit Officer n. 25. Vid. Stat. 17 Car. 1. Every thing or things done or to be done for the Adjournment Proroguing or Dissolving of this Parliament contrary to this present Act shall be utterly void Anno 1647. Vid. Hist of the Civil Wars f. 207. Q●●m aufertur 〈◊〉 juramenti juramentum cessat ratione eventus qui c●sus est eorum qui juraverunt se obedituros Domino aut Principi alicui qui postea cessat esse talis Amesius de Juramento lib 4. c. 22. Sam. Pufendorf de Interregnis p. 272. Nota. omnem reipublic● cutam ab●●●averit 〈◊〉 malo 〈…〉 Krantius f. 188. Anno 1460. Hottoman Francogal c. 23. De memorabili auctoritate concilii in Regem Ludovicum 11. Mat. Par. sup f. 563. Freherus de Orig. Palatinarum f. 113 119 120. Gunteri Thulemarii Octovirat c. 18. Ibid. p. 251. Loyseau du droits des Offices Ed. Anno 1610. f. 409. Ibid. f. 410. Treatise of Politick Power Ed. Anno 1556. Vid. Sam. Pufendorf Dissertationes de Interregnis p. 267. Post decretum circa formam regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos regimen caetûs confertur Jovian p. 78. Ib. Preface At Calcuth Anno 789. Spel. Con. vol. 1. f. 291. Deut. 17. v. 20. Aelfredi Test Append. ad ejus Vitam f. 195. Et mecum tota

Right The Lords and Commons having a Judicial Power in this Matter as hath been prov'd at large their Exercise of this Power in the nature of the thing determines the Right unless an Appeal lies from them to some higher Court in this Nation But that no Power can legally question them or any of them in this Matter appears more particularly in that there is no Statute now in force nor was since the Death of Car. 2. which makes it Treason to conspire to Depose a King or actually to Depose him But this is of the Nature of those Common-Law Treasons which are left to the Judgment of Parliament And they who are the only Judges of their own Actions have a pretty large Liberty in them especially according to them who would infer the Absolute Power of Princes from the Supposition of no constituted Judges of their Actions Wherefore the Defence of their Proceedings might justly seem to be superseded were it not for an ungovernable sort of Men who either cannot or will not judge according to the Rules of right Reasoning but as they will hardly admit of any Doctrine as true for which they have not the Decision of some Father or Council will believe no Action not proceeding from their imperious Dictates justifiable even in Cases of the utmost necessity for the Preservation of the true Religion and just Laws for which they have no Warrant from the Examples of their Forefathers or Opinions of Men whose Books have past with their Allowance Which often drives me to the seeming Pedantry of Quotations to confirm the most obvious Considerations to which my own Thoughts led me The either open or more covert Matters of Fact inducing the Declaration of Lords and Commons That J. 2. has broken the Original Contract I need not now enquire into All People must own that 〈◊〉 if they in the least attend to the Constitution of our Governme●● and how apparently he by his general Dispensations usurp'd a Legislative Power for the Destruction of the Protestant Religion and Civil Rights which we were in a fair way of being Dragoon'd out of by a Standing Army by degrees to have been wholly under Popish or Complying Officers Yet if there were no more than his leaving the Kingdom without making any Provision for keeping up the Justice of it and going into France a Country from whence all Mischiefs have of late Years flow'd upon us and our Religion Who can deny but this alone would have been enough to set him aside The going out of the Realm without appointing a Custos was anciently in our Law a Discontinuance of Justice And the Lord Hobart gives it as a Maxim Cessa regnare si non vis judicare Cease to Reign if you will not Judge or maintain the Course of Justice Many I know upon these Questions rather regard the Civil Law and that I am sure gives a home-thrust in the Case of deserting one's Country and going into such an one as France is to our Nation tho' it has been in too strict Alliance with our Kings The Digests say A Deserter has no Right of being restor'd to his Country For he who left his Country with an evil and treacherous Mind is to be held as an Enemy c. But we are to take not only him for a Deserter who runs over to Enemies in time of War but also during a Truce Or who runs over to them with whom there is no Amity either after undertaking to be faithful to his Country or else undertaking to be faithful to the other Either of which Senses the Words will bear 'T is likely to be said That this out of the Civil Law is improperly applied to the Prince who according to that is exempt from all Laws But I would desire such to read the Rescript or Law of Theodosius and Valentinian wherein they thus declare 'T is an Expression suitatable to the Dignity of one that Reigns to profess himself bound by the Laws Our own Authority does so depend upon the Authority of Law. And in truth for the Governing Power to submit to Law is greater than Empire And by the Promulgation of this present Edict we make known to others what we will not allow to our selves That J. 2. had before his Departure broken the Fundamental Laws and that now he not only ceases to Protect but is in a Kingdom which foments and strengthens a Rebellion in Ireland part of the Dominions belonging to the English Crown I think no body will deny Nor till they can answer what I have shewn of the mutual Contract continued down from the first Erection of the Monarchy here ought they to deny that he has thereby broken the Original Contract which bound the People to him and him to them What results from this Breach is now more particularly to be considered That it is a Discharge from all Allegiance to him requir'd by any Law and confirm'd by any Oaths is evident not only from the former Authorities but from the Condition going along with such a mutual Contract as I have prov'd to be with us between Prince and People Or rather to use the Words of the Learned Pufendorf The Obligation is not so much dissolv'd as broken off by the Perfidiousness of either Party For when one does not perform that which was agreed on neither is the other bound to performance For the prior Heads of things to be perform'd in Contracts are in the Subsequent by way of Condition As if it should be said I will perform if you perform first This he more fully explains in another Book where he distinguishes between an Obligation imperfectly mutual as he supposes it to be between an Absolute Prince and his Subjects and one perfectly mutual as he takes it to be where the People have conferr'd a Power on any Terms Of such Obligations he says These since they have a mutual respect to the things agreed on and suppose mutual Faith it is evident that if one Party violate the Faith which he plighted the other is no more bound And therefore he is not perfidious who stands not to those Contracts which the other has broken For all the Heads of one and the same Contract run into each other by way of Condition c. And in that Book of his which is counted the Standard of the Law of Nations he asserts it to be lawful for Subjects to oppose their Prince by Force which is a sufficient departure from Allegiance if he goes about modum habendi potestatem immutare i. e. to change that Manner in which he by the Contract enjoys the Power from less to more Absolute And in his Tract de Interregnis cited above he allows of this If the King abdicate all Care of the Commonwealth becomes of an hostile Mind towards his Subjects or manifestly departs from those Rules of Governing upon the Observance of which as upon a Condition the

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 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 And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and divested of his Soveraignty by the Counsel and Consent of all his Subjects Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities but then they renounc'd the Allegiance sworn to King Edmund and chose Aulaf King of Norway for their King. Aulaf had not reigned six Years when they drove him away and tho' they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects and that if he did not answer the Ends for which he had been chosen he was to lose the Name of King. Either these Examples or rather the continual Engagements in War with Foreigners had such effect that from this time to the Entrance of W. 1. excepting the Case of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957. I find nothing of the like nature A King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender usage of his People their extraordinary Power had slept but for few Years after the Death of the reputed Conqueror till the time of King Stephen the third Successor from W. 1. who after Allegiance sworn to him had it a while withdrawn for Maud the Empress but the People soon return'd to it again rejecting her who was nighest in Blood because she denied them the Benefit of St. Edward's Laws This Power of the People to be sure was rous'd by the extravagant Proceedings of King John upon which the Earls and Barons of England without the Formality of Summons from the King give one another notice of meeting and after a long private Debate they agreed to wage War against him and renounce his Allegiance if he would not confirm their Liberties and agreed upon another Meeting for a peremptory Demand declaring That if he then refus'd them they would compel him to Satisfaction by taking his Castles Nor were they worse than their words and their Resolutions had for a while their desir'd Effect in obtaining a Confirmation of their Liberties but the Pope soon absolv'd the King and encourag'd him to the violation of them till they stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France But the Dauphin assuming a Power not brook'd in the English Government upon the Death of King John they set up his Son H. 3. and without any solemn Deposing of Lewis compell'd him to renounce his Pretensions Henry treading in his Father's steps had many unhappy Contests with his Barons and having call'd in numbers of Foreigners they sent him a solemn Message That unless he would remove those troublesom Guests they would all by a Common Council of the whole Realm drive him and his wicked Counsellors out of the Kingdom and would consider of making a new King. Upon this both Sides had recourse to Arms and neither valued the others Judicial Sentence but for certain the Sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally depos'd in Parliament for his Misgovernment whose Case with his next Successor's but one R. 2. by what I have observ'd before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once H. 6. being a weak misled Prince gave occasion to Richard Duke of York whose Line was put by to cover his Designs for restoring the elder Family with the Pretence of Redressing Publick Grievances The Crown he was so far from pretending to at first that himself swore Allegiance to H. 6. in a very particular manner But having afterwards an Advantage given by the Divisions of them who had driven him out of the Land he in a fortunate Hour with lucky Omens as was believ'd challeng'd the Crown as his Right upon which there was an Agreement ratified in Parliament That H. 6. should enjoy it during his Life and R. and his Heirs after him And tho' Richard Duke of York and his Son Edward afterwards E. 4. had sworn That H. 6. should enjoy the Royal Dignity during Life without trouble from them or either of them yet Richard having been treacherously slain by the Queen's Army immediately after the solemn Pacification Edward at the Petition of some of the Bishops and Temporal