Mr. Lawson's Opinion Bp Bilson's whose Authority is confirm'd by the Objection made to it in the History of Passive Obedience To which is added the Divine Plato FOR the Equity and reserv'd Cases I think it appears in the nature of the thing that they for whose benefit the Reservation is must be the Judges as in all Cases of Necessity he who is warranted by the Necessity must judg for himself before he acts tho whether he acts according to that Warrant or no may be referr'd to an higher Examen But where the last Resort is there must be the Judgment which of necessary Consequence in these Cases must needs be in the People the Question being of the Exercise of their Original Power and where they have by a general Concurrence past the final Sentence in this case their Voice is as the Voice of God and ought to be submitted to The late Earl of Clarendon Survey of the Leviathan p. 86. speaking even of a Contract wherein the absolute Power of a Man's Life is supposed to be submitted says He was not bound by the Command of his Soveraign to execute any dangerous or dishonourable Offices but in such cases Men are not to resort so much to the Words of the Submission as to the Intention which Distinction he will have applicable to all that monstrous Power which Mr. Hobbs gives his Governour to take away the Lives and Estates of his Subjects without any Cause or Reason upon an imaginary Contract which if never so real can never be supposed to be with the Intention of the Contractors in such Cases * Cocceius de Principe p. 197. Leges fundamentales Regni vel Imperii quae vel disertè pactae sunt cum Principe antequam imperium ineat c. Cocceius holds the fundamental Laws of any Kingdom or Empire to be not only those for which there has been an express Contract with a Prince before or upon his assuming the Government but such also as seem tacitè inesse rei publicae to be implied as belonging to every Community or Civil Society For the direction of Mens Judgments in such Cases they need not consult voluminous Authors but may receive sufficient Light from those excellent Papers The Enquiry into the present State of Affairs The Grounds and Measures of Submission and The brief Justification of the Prince of Orange ' s Descent into England and of the Kingdom 's late Recourse to Arms. Which I shall here only confirm by some Authorities The first as being of most Credit among them who raise the greatest Dust Sanderson de Juramenti obligatione p. 41. shall be Bishop Sanderson Of the Obligation of an Oath who shews several Exceptions or Conditions which of Common Right are to be understood before an Oath can oblige in which I shall not confine my self to the Order in which he places them 1. If God permit because all things are subject to the Divine Providence and Will Nor is it in any Man's Power to provide against future Accidents Wherefore he who did what lay in him to perform what he promis'd has discharg'd his Oath 2. Things remaining as they now are Whence he who swore to marry any Woman is not oblig'd if he discovers that she is with Child by another These two Exceptions sufficiently warrant Submission to such Government as God in his Providence shall permit notwithstanding Oaths to a former King And if he cease to treat his People as Subjects the Obligation which was to a Legal King determines before his actual withdrawing from the Government 3. As far as we may as if one swear indefinitely to observe all the Statutes and Customs of any Community he is not oblig'd to observe them farther than they are lawful and honest 4. Saving the Power of a Superior Whence if a Son in his Father's Family swear to do a thing lawful in it self but the Father not knowing it commands another thing which hinders the doing that which is sworn he is not bound by his Oath because by the Divine Natural Law he is bound to obey his Father And he who has sworn not to go out of his House being cited to appear before a lawful Judg is bound to go out notwithstanding his Oath the Reason is because the Act of one ought not to prejudice the Right of another These two last Instances added to the Consideration of a Legal King Vid. Stat. 13. car 2. c. 1. will qualify the Oath declaring it not lawful upon any pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person or aginst those that are commissioned by him This I think I may say with warrant from Bishop Sanderson That no Man is bound by this Oath to act against Law Vid. infra p. under colour of the King's Commission Vid. Grounds and Measures of Submission Salus Populi suprema Lex nor to permit such Actions if it be in his Power to hinder them the common Fundamental Law being in this Case the Superior which he is to obey and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary To Bishop Sanderson I may add Grotius Vid. Johannis à Felde Annotata ad Grot. c. 3 4. who runs the Prerogative of Kings as far as any Man in reason can Yet he allows of reserved Cases in which Allegiance may be withdrawn tho there is no express Letter of Law for it As 1. Where the People being yet free Grot. de jure Belli Pacis c. 3. p. 60. Vid. Pufendorf Elementa Juris prud p. 256. Nemo alteri potest quid efficaciter injungere per modum praecepti in quem nihil potestatis legitimae habet Grot. c. 4. p. 86. habet pro derelicto command their future King by way of continuing Precept Whether there be any such with us can be no doubt to them who read the Coronation Oaths from time to time required and taken upon Elections of some Kings and the receiving others by reason of prior Elections and Stipulations with their Predecessors 2. If a King has abdicated or abandon'd his Authority or manifestly holds it as derelict indeed he says he is not to be thought to have done this who only manages his Affairs negligently But surely no Man can think but the Power of J. 2. is direlict And he cites three Cases wherein even Barclay the most zealous Asserter of Kingly Power allows Reservations to the People 1. If the King treats his People with outragious Cruelty 2. If with an hostile Mind he seek the Destruction of his People 3. If he alien his Kingdom This Grotius denies to have any effect and therefore will not admit among the reserved Cases Vid. Mat. Par. Addit f. 281. The King of France his Attorny General speaking of King John 's resigning his Crown to the Pope Etsi dare non potuit potuit tamen
Regis Imperio Duo sunto iique Consules appellantur Let Two have Regal Power and let them be called Consuls Also the Judgment of Livy is that the Sovereign Power was translated from Consuls to Decemvirs as before from Kings to Consuls Yet in another Place our Learned Knight according to his usual Inconsistencies with himself tells us that but one of the Consuls had Regality for they govern'd by turns Which by his Favour I take it was only in the Wars which require but one General not at Rome However he confesses that all the Decemvirs had Regality for he pretends not that they govern'd by turns and he says they were chosen to make Laws and though some will question whether a Supream Gubernative implies a Legislative Power no Man will question but a Legislative takes in the other or at least may at the pleasure of him or them in whom it is vested But I would fain know which one of them had right to give Law to the rest or had the Soveraignty in him alone And for it to be in more than one Observ touching Forms of Gov. p. 47. is as we are inform'd by him quite contrary to the indivisible Nature of Soveraignty Yet he grants it may escheat to the Supream Heads of Families that is more than one within that which had been at least immediately before the same Community nay and that it may be exercised by many in other Acts besides the choice of one to head them which he owns in these words Ib. p. 60 61. Those Governments that seem to be popular are kinds of petty Monarchies which may thus appear Government is a Relation between the Governors and Governed the one cannot be without the other mutuò se ponunt auferunt Where a Command proceeds from a major part there those individual Persons that concurr'd in the Vote are the Governors because the Law is only their Will in particular Yet under correction though some of those alter their Wills and some which were against the Law become for it provided that the Ballance continue as 't was when the Law pass'd in this Case the Law cannot be chang'd by those very Persons which made it There can be no Obligation which takes state from the meer Will of him that promiseth the same Power of Kings Fol. 1. and therefore some things which receive Force from the meer Will of the Parties yet continue to oblige against their Wills and the Government is in the united Body not in those who made that Law for the Power cannot be derived from them who chang'd their Wills but out of the whole Body however no one of them were a Monarch and yet what hinders but that there was a Soveraign Power amongst them This Power it seems Sir Robert knows not how to distinguish from the Exercise or Act of Power The Supream Power being an indivisible Beam of Majesty he tells us cannot be divided or settled upon a Multitude God would have it fixt in one Person not sometimes in one part of the People and sometimes in another and sometimes and that for the most part no where as when the Assembly is Dissolv'd it must rest in the Air or in the Walls of the Chamber where they were assembled Agreeable to which he says elsewhere By this means one and the same Assembly may make at one Sitting several Forms of Common-Wealths So that he supposes the different Exercise to alter the form of Government and that it Dissolves when the Exercise ceases or is discontinued which Error is of kin to theirs whoever they are that make a Church barely to relate to Acts of Worship But to wave these Niceties as above their reach who cannot of themselves discern palpable Contradictions and wherein Sir Robert under pretence of Friendship serves them as Joab did Abner I shall take from his thoughts their artificial Dress and lay them open in their naked Deformity that every rational at least honest Man and good Subject may start from them the Devil cannot be so far transform'd into the shape of an Angel of Light but that his cloven Foot must appear Sure I am that he undermines the Right of all present Kings or Families and makes the Right of Succession as doubtful as the Event of War admitting none but Rebels within the possibility of Usurping and thereby yielding that any Foreign Prince may lawfully dispossess one in the Throne or interrupt the Succession And if any Subject can prosper in his Rebellion though the lawful Prince or Heir be alive and He that takes upon him the Power of a Superior sins sufficiently and to purpose Yet God's Providence having dispossess'd the former Anarchy p. 273. Many times by the Act of an Vsurper himself or of those that set him up the True Heir of the Crown is dispossest God using the Ministry of the wickedest Men for the removing and setting up of Kings in such Cases the Subjects Obedience to the Fatherly Power must go along with and wait upon God's Providence who only hath a Right to give and take away Kingdoms and to adopt the Subjects into the Obedience of another Fatherly Power and declar'd in favour of the Usurper the People if we believe him are adopted into the Obedience of another Fatherly Power and not having Right to cast off this Father rais'd up by God himself who only hath Right to give and take away Kingdoms By his Doctrine It was written Tempore Car. 2. all the Endeavours towards his Majesty's Restoration are condemn'd for that 't was against the Title made by the Almighty and any voluntary Act of the People being vain not obliging them any longer than they please as all the Force came from their own Wills Besides no Act of the People having any binding or moral Effect since they are to be meerly Passive they being always and unalterably as to Humane Causes under the Power of the Natural Fathers By these Principles the Usurping Powers would still have lawful Authority But to be sure For in Grants and Gifts that have their Original from God or Nature as the Power of the Father hath no inferior Power of Man can limit nor make any Law of Prescription against them Ibid. according to him any Prince had equal Right with the Ejected Monarch to try for the Kingdom For though Sir Robert in his Preface to his Observations on Mr. Hobbs asks the Question Power of Kings F. 1. How a Subject by Covenant can get a Right of Soveraignty by Conquest when neither he himself hath Right to Conquer or Subjects a Liberty to Submit Yet he has not one Objection against the Lawfulness of a Foreign Prince's conquering at any Time or with any Circumstances which shews that his Definition of Usurpation was intended to take in all unlawful usurpings of Power without which 't is very lame But thus it runs Vsurpation is the resisting and taking away the Power from him Directions for
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
that our King does not claim as lawful Successor if lawful be confined to Succession in the Line not only as the Predecessor is alive and two are invested vvith the Soveraignty annexed to the Crown of this Realm which according to Dr. H. and others of that Notion Vid. Dr. H. his Preface to Jovian p. 41. is void and null but if Conquest which could be no Foundation for Hereditary Succession in the Conqueror be out of the question according to this Lay-Gentleman's Principle there could be no colour for the Succession but a bare Desertion or leaving the Kingdom without providing for the Government which whether voluntary or involuntary he matters not and consequently Pag. 6. as this might be forced and submitted to animo revertendi that alone could not devolve a Right upon a Successor Shall no Misgovernment whatever put an end to this Right yet shall a suppos'd faultless Desertion How could any upon this Principle excuse the Attempts for restoring King Charles the Second Men cannot reasonably hope to serve their Party with Notions which would condemn more of them than they can pretend to justify Besides effectually to set aside the invidious Suggestion of a real Conquest over the Nation and absur'd one of a legal lineal Succession in such Circumstances as attend this Case his Majesty cannot be presumed to claim the Crown but as he received it nor to have receiv'd it but as it was offered which was upon the Vacancy of the Throne through the others Violation of the Original Contract between Prince and People But if for the sake of an unreasonably disaffected Party Men shall be allowed to reflect Pag. 36. not only upon those who being duly discharged from their Allegiance to the late King assisted this from the beginning in settling the Kingdom but upon the Proceedings of our true Representatives and the Settlement it self for fear lest the exposing their Insolence and Folly should exasperate them it would argue that distrust of the Cause which would be a greater Justification of their Insolencies than they can derive from any other colour But if as our Representatives have judged and thereby concluded us the Contract was broken before they determined so what ought to have restrain'd them who were so inclin'd and had opportunity from meeting our Great Deliverer as the Jews did Alexander with an High-Priest or Bishop in the Van And they who leave wholly to Providence what may require their Co-operation deserve an Epicurean God like unto themselves meerly Passive or unactive while the World goes round Pag. 34. This Gentleman tells us that as we had no disloyal Exhortations from Press and Pulpit to perswade Men to fight against their Prince tho he might have met with many a strong innuendo enough to have stigmatized a poor Whig so neither had we any to persâ—ade us to fight for him but the thing was committed to God to determine as he thought fit and he says if it were unlawful to resist him Pag. 7. it was also as unlawful to assist him and enable to destroy the true Religion the English Liberties and Immunities nay the very Nation Now it is evident that if our present King had not receiv'd Incouragement from many in this Nation who had promised and were ready to assist him as occasion might serve the bare non-resisting the late King and his Army had enabled him to destroy the English Nation which 't is granted that he was bent upon and therefore assisting our present King was not only no Sin but a Duty by the same reason that it was a Duty not to assist the other But they who are of a contrary Opinion can by no means excuse themselves for not fighting for the late King or endeavouring to assist him when he stood in need and required it of them for if he continued their lawful King whom they were bound not to resist upon any account whatsoever according to this Advocate for the Non-assisters they were obliged to obey all his legal Commands Pag. 5. and they were certainly equally bound as they would be true to their Oaths to bear him Faith and true Allegiance and to their Power to assist and defend all Jurisdictions Privileges Preheminencies and Authorities granted or belonging to him as King or united and annexed to the Imperial Crown of this Realm This they were certainly bound to against a Foreign Force for Preservation of that Head of the Government which notwithstanding the most tyrannical Sway they will have still to be God's Ministers to them for good Vid. pag. 1. and which their Prayers and Tears joyn'd to temporal Arms might have rendred useful to their purposes Tho they were not obliged to assist him in the Execution of illegal Violences yet if they were to bear with him notwithstanding the utmost they were in other things to help him carry on the Government and their Sins of Omission must needs be as hainous as others of Commission Nor is this Gentleman more happy in appealing to Primitive Antiquity to justify the Non-assisting than he has been for the Non-resisting Doctrine For those Fathers who forbad a Souldier's Life did it not as 't was in the Service of Pagan Emperors but upon Supposition that the use of the Sword was unlawful for them to whom they gave the Precept to which end he that takes the Sword shall perish by the Sword was applied which yet was originally meant only of taking it up without a lawful Call But Tertullian on whose Authority our Non-resister relies agrees that they who had taken the Military Oath to Pagan Emperors before Baptism were bound to fight for them according to which they who had sworn Allegiance to King Charles the Second his Heirs and lawful Successors and to defend the Rights of the Crown nay all they who had sworn at any time before our Seers had their Eyes opened by their feeling the Effects of their own Doctrine were upon pain of Damnation to fight for the late King till the chance of War had decided the Controversy And whatever liberty of judging he charges as the Consequence of the resisting Doctrine will fall upon the non-assisting which is as truly a departure from Duty and as great a breach of the Oath of Allegiance while the Duty of Allegiance remains as the other Let him assign the time from whence it was a Duty not to assist and I shall not scruple to pronounce that from that very time Resistance was as warrantable and more honourable But suppose for once that the Primitive Fathers were against fighting for Pagan Emperors as they were Pagans and to bring it home to the late Case that the Protestant Jacobites were excusable from fighting for the late King as he was a Papist would not this be a virtual disabling him from being King of this Protestant Nation for otherwise as it is an undoubted Prerogative or Priviledg of this Imperial Crown for the King to make War and
omitted The Objections from the Oath 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 Swedeland 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 shew the Antiquity and Power of a Palatine in Germany and England Gunterus used to shew that Office in several Countries Loyseau concerning it in France The Distinction in the Author of Les Soupirs between Officers of the King's House and Officers of the Crown The Antiquity and Authority of the Offices of Constable of England of the High Steward and the Earl Marshal which with the Earl of Chester have been as so many Tribunes of the People pag. 57. 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 An. 789. 2. From the Practice 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 pag. 72. CHAP. IX The Fourth Head of Positive Law A short Recapitulation of what has been prov'd An actual Discharge of Oaths of Allegiance to J. 2. shewn from the Authority of the Judgment past His usurping a Legislative Power leaving the Kingdom without providing for the Administration of Justice and going into France This confirmed by Rastal Lord Hobart Justinian's Digest The Rescript of Theodosius and Valentinian Pufendorf de Officio hominis civis His Elementa Juris prudentiae His Treatise de Jure Gentium Grotius Pufendorf de Inter-regnis Knichen's Opus Pol. Philip Paraeus A particular Consideration of what the Learned Knight Sir R. Pointz says seeming against these Authorities but shewn in truth to confirm them and to bring the Rules of the Civilians to our side That the Crown came not by Right of Descent to the next in Blood after the discharge of the Allegiance to J. 2. The Arguments for the People's being restor'd to the Liberty which they had before the Settlement of the Crown enforc'd from a particular Consideration of the State of the Settlement Where is it shewn how the word Heirs may be look'd on as restrain'd in the first Settlement on Heirs by Gomezius his Rule The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements and their Effects in relation to the Queen Mary and Elizabeth and J. 1. The Recognition to J. 1. not extending to his Heirs And question'd Whether the Recognition was not his best if not only Title With a modest Inference pag. 84. CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The use of the Triennial Act 16 Car. 1. against the necessity of common Form The Form and proceedings of the Convention assembled upon the Death of H. 3. The Dilemma used by the Formalists answer'd with a Distinction Pufendorf's Answer to Hobbs Another Passage of his applied to a Passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of the late Assembly would be conclusive to the Nation Neither forty days Summons nor Writs nor yet Summons to a Parliament Essential And this confirmed not only by the Precedent 12 Car. 2. but by two Precedents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves and of their own appointing The Objection of want of Form answered out of the Civil Law and its Reasons applied to our Case Objections made by the Author of Elimenta Politica considered The Conclusion pag. 98. APPENDIX Among other things SIR Robert Filmer and some of our Divines plaid against one another in relation to Ecclesiastical and Civil Power and Sir Robert against Himself pag. 1. Allegations in behalf of the High and Mighty Princess the Lady Mary now Queen of Scots against the Opinions and Books in the Part and Favour of the Lady Katherine and the rest of the Issues of the French Queen touching the Succession of the Crown Written in the time of Queen Elizabeth Reflections on Bishop Overal's Convocation-Book THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful King and Queen CHAP. I. The Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to
dimittere But if no Act which is ineffectual in Law will justify the withdrawing Allegiance then none of the Instances will hold for to that purpose they are equally ineffectual Yet who doubts but the King doing what in him lies to alien his Kingdom gives pretence for Foreign Usurpations as King John did to the Pope's And whoever goes to restore the Authority of the See of Rome here be it only in Spirituals endeavours to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion Vid. Bellarm. how the Pope hooks in Temporals in ordine ad Spiritualia Nor can it be any great Question but the aliening any Kingdom or Country part of the Dominion of England will fall under the same Consideration which will bring the Case of Ireland up to this where the Protestants had been disarm'd and the Power which was arm'd for the Protection of the English there Vid. Leges S. Edwardi put into the Hands of the Native Papists nor is it now likely to be restor'd to its Settlement at home or dependance upon England without vast Expence of Blood and Treasure Even the Author of Jovian owns Dr. Hick 's his Jovian p. 280. Ib. p. 192 193. that the King's Law is his most Authoritative Command and he denies that the Roman Emperor had any Right to enslave the whole People by altering the Constitution of the Roman Government from a Civil into a Tyrannical Dominion or from a Government where the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. No Clergy-man of the last or foregoing Reign having treated of Civil Government with more Temper and Judgment and yet with greater Applause of the warmest Men of his own Gown Falkner 's Christian Loyalty Ed. An. 1679. than the Learned Mr. Falkner of Lyn I shall be the longer in giving an account of his Discourse of Christian Loyalty which will prove an Authority on my side beyond what could be hop'd for considering the time when his Book came out with License and a Dedication to the Archbishop of Canterbury it being when Mr. Johnson by way of Composition against a threatned Suspension was oblig'd to drink his Coffee at home lest he should inlighten his Brethren who fill'd all places of publick Resort with their Pulpit-Law and the Dictates of their Guide Sir Roger. I must own that Mr. Falkner was in some things carried away with that Tide which if any of that Cloth besides Mr. Johnson had the Courage to stemm they had at least the good fortune to be less observ'd but the shewing wherein the Author of Christian Loyalty gave too much way to the Fashion or the Noise may yield farther strength and light to that Truth which will arise out of those very Clouds with which he might think requisite to obscure it His Treatise is in two Parts in the first he vindicates and endeavours to explain the Oath of Supremacy 1. In relation to the Regal Power as it is receiv'd in our Church or at least by Church-men or as it is acknowledged by our Laws 2. As the Oath renounces all Foreign Jurisdiction the last of which falls no otherwise under Consideration here than as it shews the King's Duty to preserve his Ecclesiastical as well as Civil Supremacy and not to alienate either In the second part this Worthy Author considers the publick Declarations against Subjects taking Arms. Page 14. 1. In the first he rightly affirms That the asserting the Supremacy of Government is never design'd meaning I supppose by the Law in any wise to violate either Divine or Christian Institutions or to assert it lawful for any Prince to invade that Authority and Right which is made particular thereby whether in Matters Temporal or Spiritual Where by Christian Institutions Page 3. 't is plain that we are to understand the Ecclesiastical and Civil Laws of Christian States or the Laws of others not contrary to Christianity and thus he deservedly blames them who nourish false Conceptions and mistaken Opinions concerning the CIVIL POWER beyond due Bounds exalting it so high as not to reserve that Respect which belongeth to God and Christian Institutions Page 15. and rightly observes that the Supremacy does not exclude the Subject from a real Propriety in his own Estate And that there are some Kingdoms where without any Disparagement to the Supremacy of their Prince Page 11. they are govern'd by the fixed Rules of the Civil Law and others where other Laws established by their Predecessors are standing Rules Page 391. And particularly in relation to the People of this Realm he says in the second Part The English Constitution doth excellently and effectually provide against injurious Oppressions Of which more in its place 1 Canon An. 1640. However I cannot but here observe that even the Canons of 1640. which he receives as speaking the Sense of the Church of England own that the Subject has a Propriety but withal say that Tribute Custom and Aid and all manner of necessary Support and Supply are due to Kings from their Subjects by the Law of God Nature and Nations yet tho it is the Duty of Subjects to supply the King it is part of the Kingly Office to support his Subjects in the Propriety and Freedom of their Estates Still it seems subject to the King's Judgment of necessity which is right Sibthorpism and Manwarinism afterwards eccho'd to by the Courts at Westminster in the Resolution about Shipmoney and of late in that of the Dispensing Power I think in two things what Mr. Falkner writes upon the first Head lies open to Exception 1. That generally by Civil Power Page 356. he seems to mean the Person of the King and that not according to his own Definition of a King which he says doth denote the Royal Person who governs which himself owns to be according to the respective Limitations in those places where they govern many having the Title of a King Page 339. who had not such Royal Power as is allowed by our Constitution but he ascribes to a King generally speaking and particularly to ours such a Soveraignty as carries with it the absolute and arbitrary Exercise of that Civil Power whereby a Nation is govern'd Thus he asserts with St. Austin That Subjests may and ought to obey their Prince's Commands where they are certain Page 302. that what he commands is not against the Command of God And hence he attributes to the Kings of England even more Power than he allows to the Roman Christian Emperors as will soon appear And it appears that this is not only a casual dash with his Pen Page 123. for having before in one place spoken of the business of the Civil Power describ'd by St. Peter Page 131. in another he mentions the Authority with which he supposes Kings and Princes to be
against the Ammonites upon his present hearing the Cause of the Men of Jabish Gilead The Text says The Spirit of God came upon Saul 1 Sam. 11.6 And tho wicked Ahab would have engag'd Jehosaphet the King of Judah who was with him out of his own Country in a War against Syria without consulting the Order of Prophets in Israel 't is of his own shewing that Jehosaphet would not undertake it till the Prophets of Israel were consulted and had encouraged it However Jehosaphet having been King of Judah is not an Instance so directly to the Point But as Mr. Falkner notwithstanding his Mistakes in comparing our Polity to the Jewish shews a Propriety in the Subject Vid. Canon 1. 1640. beyond what they will allow who infer a contrary Right from that manner or way of Kings with which Samuel The Hebrew imports no more than ratio or mos the Chaldee Paraphrase Statutum Regis either would deter the People of Israel from choosing one or at least foretels what they would lose by quitting the Theocracy administred by Persons more immediately commissioned by God himself Mr. Falkner no less fully comes up to the case of putting the Kingdom under any other Head than that which the Law allows and says The Constitutions of this Realm oblige all the Subjects thereof to maintain the the Royalty of the Crown and further that it is a great and special Priviledg of a free-born People that they cannot Falk p. 234. according to the Condition of Slaves have the chief and principal Dominion over them translated from one to another according to the Pleasure of any Person whomsoever though it be their own natural Prince What was in his Judgment the due Consequence of such an Attempt will appear by considering his second part Mr. Falkner's second Part. where he speaks more directly to it and tho it be against the Subjects taking up Arms upon any pretence whatsoever yet it sufficiently justifies the late real Occasion for recourse to them ultimo necessitatis praesidio Vid. Inf. It must be understood that looking upon the Canons of 1640 as the Sense of our Church he thinks himself bound to assert the Divine Right of Kingship Page 419. in a more peculiar manner than any other Form of Government and having duly observ'd that in those States or Relations which are fixed by Divine Institution Page 422. there are some things so necessary and essential that they cannot be separated from them Page 423. he makes Irresistibleness to be one of those Essentials nor could he do less Vid. Stat. 13. Car. 2. cap. 12. which provides that it shall not be thought to extend to confirm the Canons made in the Year 1640. Page 419. Can. 1. 1640. seeing tho all the Canons of 1640 lie under a Censure of much greater Authority in our Church than that with which they were made he cites the first Canon as the Sense of our Church That the most high and sacred Order of Kings is of Divine Right being the Ordinance of God himself founded in the prime Laws of Nature and clearly established by the express Texts both of the Old and New Testaments upon this ground he might well suppose that the People in chusing a King which he allows often to have been where there hath been a Vacancy and none could claim a Right of Succession whatever Terms or Contract were made at the Choice Page 414. Page 420. stand obliged from the Nature of that Relation they thereby enter into Page 414. and the Laws which God hath established concerning it and not only from their own Intention And if the Rights of Princes or any of them are ascertain'd by God himself Page 423. not by the ancient Constitution of the Government or express Contract then indeed even in Elective Principalities those Divine Rights of Soveraingty as well as such as arise from the Original or more immediate Contract are invested in the Person elected thereto before the Coronation But to qualify this 't is to be consider'd that he contends that the Declaration against taking Arms relates particularly to the King not indefinitely to any King and can bare no other Construction than to condemn the English Subjects taking Arms against their natural Soveraign the King of England Page 338. and therefore tho the like Attempts against any other Kings who enjoy Soveraign Authority are equally blameable in their Subjects yet this Position says he does not assert the utter unlawfulness of taking Arms amongst any other Nations against him who hath the Title of King if he doth not therewith enjoy that Right of Supream Government which our Kings have and exercise So that notwithstanding the Canons of 1640 even in his Judgment the Laws of England must determine this Controversy And elsewhere he grants what shews that the Examples for Passive Obedience which he instances in from the Jews or Primitive Christians will not affect us Page 541. The Agreement saith he between the Condition of those Jews whom he mentions and the Primitive Christians under their Persecutions was so great that if the Laws of Nature would have allowed these Jews to resist it must also have been lawful for the Christians to have done the same which is contrary to their general Profession and universal Practice But then in relation to the Practice he says Page 501. The Result of all these Testimonies is that when the Authority Laws and Rules of Government they liv'd under did oppose the Christian Profession or the Truth and Purity of its Doctrine they thought it their Duty patiently to suffer and not in Opposition to those Laws which were then establish'd to take up Arms against their Governours And coming to Examples of Passive Obedience among the Jews when the Soveraign Power had undertaken to destroy a part of the People he says Forasmuch as the Soveraign Power in Judea Page 535 536 537 538. and many other Eastern Nations and also in the Roman Empire as their Laws declare had such an Authority that the particular Rescripts and Edicts of the Emperors were accounted Law and what they determined was a Legal Decision or Sentence and a judicial way of proceeding From these Considerations he supposes it was not lawful for any of the Persons in the Instances above-mentioned by him tho some of them were unjustly sentenced to have taken Arms in their own Defence But he tells us Page 539. The excellent Constitution of our English Government hath this advantage among others that it gives sufficient Security to the English Subjects that there is no way of judiciary or legal Proceeding by the King himself or any other against the Life or Property of any Person who lives peaceably and orderly but according to the establish'd Laws of the Land and upon a fair Trial of his Case Nor will our Laws allow any such general Sentence which may take in innocent Persons The destroying
to be King which sufficiently justifies that Vote of our Convention since confirm'd by the Parliament that a Popish King is inconsistent with this Protestant Kingdom 3. The last Question or rather part of a Question Page 527. which this learned Author takes notice of in the Resolution of which he agrees with Barclay and Grotius is Attempting to destroy the Kingdom or any considerable part of it Pag. 528 529. Whether if a Soveraign Prince should actually undertake to destroy his whole Kingdom or any considerable part thereof they may not in these Circumstances have liberty of defending themselves by taking up Arms Now we must allow him here to distinguish his Sentiments by inveighing against Junius Brutus Page 528. and other Subverters of Soveraign Power who start and urge this Question However it may not be amiss to take him into a Corner to know his Mind of the matter under the Rose Page 531. It must be remembred that he allowed of Barclay as a competent Judg in the Questions which he determines and as to a Soveraign Prince's undertaking to cut off Page 529. or to ruin and destroy the whole Body of his People he acknowledges that this is the other only Case in which Barclay esteemeth a Soveraign Prince to forfeit his Right of Government and that thereupon it may be lawful to resist him Tho as I observ'd before Grotius cites Barclay for a third Sup. f. 25. this which he receives as Barclay's second as he gathers from Barclay must not exceed the Bounds of meer Defence without any Attempts of invading or revenging yet it may be a Question how far this may be consistent with his yeilding that a former King in such case becomes a private Person And indeed I think he is in the right in allowing of no case to warrant Resistance till he who had been a King becomes a private Person Page 526. Accordingly neither Barclay nor he in the case of a King 's undertaking the Ruin of the Whole or in any other case will allow the taking Arms against the Soveraign Power because a Prince by such an undertaking as this loseth his Royal Authority and is no longer King se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desinit Page 530. And the Reason given by Grotius in the same case is irrefragable consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem Populi totius profitetur eo ipso abdicat Regnum A Will to govern and a Will to destroy cannot consist together wherefore he who professes himself an Enemy to his whole People in that very thing abdicates his Kingdom I cannot but observe that here is a Forfeiture own'd and an allowance of a Right in the People Page 529. or some of them at least to judg of the Forfeiture Barclay esteemeth a Soveraign to forfeit his Right c. Elsewhere Mr. Falkner says To assert that the People or Inferiors are of right Judges of the Cases in which they may resist their Superiors is as much as to say they are bound to Subjection only so far as themselves shall think fit and that they may claim an Authority over their Governours Page 365. and pass Judgment upon them and deprive them of their Dignity Authority and Life it self whensoever they shall think it requisite and needful Page 359. But this Inference here as well as his former Declaration shews that he speaks not of extraordinary Cases which as he has it we may well presume or hope may never be in act And if a judicial Power even in such extraordinary Cases sound harsh we may learn of him to soften it with the Terms in which he justifies the Exercise of a like Power over Kings in Spirituals Page 321. Tho says he all Christians upon manifest Evidence may in some cases see cause to disown a Soveraign Prince as was done in Julian from being any longer a Member of the Christian Society Page 322. yet in such Cases his Membership ceaseth and is forfeited by his own Act and not properly by a judicial Sentence and formal Process And some of the Romish Writers go much this way in giving an account how the Bishop of Rome whom they suppose to be Superior to all Men on Earth may by reason of Heresy or such Crimes be deprived of Christian Communion I must herein agree with Mr. Falkner that 't is not the Judgment which creates the Forfeiture but the Grounds of the Judgment which ought to be duly weighed Page 542. 4. The only thing which according to Mr. Falkner in this Case can farther be proposed is Whether if a Supream Governour should according to his own Pleasure and contrary to the established Laws and his Subjects Property actually engage upon the destroying and ruining a considerable part of his People they might not defend themselves by taking Arms This which he says is notional and speculative Page 543. has too sadly been reduced to Practice in Ireland especially After mentioning the Parisian Massacre he confesses that if ever any such strange Case as is propos'd really happen in the World Page 544. it would have great Difficulties Grotius says he thinks that in this utmost extremity the use of such Defence as a last Refuge ultimo necessitatis praesidio is not to be condemned provided the Care of the common Good be preserved And says Mr. Falkner if this be true it must be upon this ground that such Attempts of ruining do ipso facto enclude a disclaiming the governing those Persons as Subjects Page 545. and consequently of being their Prince or King And then the Expressions of our Publick Declaration and Acknowledgment would still be secur'd that it is not lawful upon any Pretence whatsoever to take Arms against the King In short Mr. Falkner's Judgment in these three or rather four Cases is this That these Cases are so extraordinary that they fall not under any Consideration as a pretence but will justify the Subjects taking Arms when they are real and that when any such Case happens the taking Arms is not so much authoriz'd by any Judicial Power in the People or their Representatives as by the Facts themselves whereby the King ipso facto without Sentence incurs a Forfeiture and ceases to be King And had he lived to apply his own Rules no Man can doubt but he would in Terms have justified our renouncing Allegiance to the late King Whether upon the account of the Forfeiture or the Judgment upon it or both is not very material especially considering that both Barclay and Grotius speak of an Absolute Prince not a Platonick Monarchy Vid. Pag. 398. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yok'd or coupled with Laws 'T is well known to have been Grotius his Opinion Page 348. That if the Supream Government be part in the People or Senate and
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
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
divested of his Soveraignty by the Counsel and Consent of all his Subjects (a) Ib. f. 108. Anno 779. Mailros Anno 794. f. 139. S. Dunelm f. 113. 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 Milros f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem Ibid. 144 872. 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 F. 148 941. F. 148 947. but then they renounc'd the Allegiance sworn to King Edmond 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 Vid. Mirror sup Leges S. Edw. and that if he did not answer the End for which he had been chosen he was to lose the Name of King Indeed a very Learned Author Discourse concerning the Vnreasonableness of a new Separation on the account of the Oaths p. 15. in a Treatise for the most part unanswerable seems to set aside all the Precedents within the Kingdom of the Northumbers as if that were of no consequence to any other part of England I shall not says he meddle with the Kingdom of the Northumbers which alone was originally elective as appears by Matthew Westminster The words to which he refers are these Anno Gratiae 548 Regnum Northanhumbrorum exordium sumpsit Math. West f. 101. Cum enim Proceres Anglorum magnis Laboribus continuis patriam illam subjugassent Idam Juvenem nobilissimum sibi unanimiter praefecerunt In the Year of our Lord 548 Anno 548. the Kingdom of the Northumbers began For when the Great Men of England had with much and continual Labour subdued them they chose for King Ida a most Noble Young Man I cannot understand how the shewing the Foundation of one Kingdom in Election is any Argument against the Original Electiveness of others within the same Island Nay primâ facie without more of one side or other it gives ground to believe the others to have had the like Foundation and this Quotation particularly is so far from implying that this was the only Kingdom within the Isle Originally Elective that it supports the Authority of the Mirror which informs us that forty Princes at the beginning of the Monarchy chose one to reign over them Mirror sup for this speaks not of the English as then under one King or more in their respective Divisions but under several Proceres Great Men or Princes and that part of the Island seems to have been the first which chose a King but I know not by what Rule of Logick it can be gathered from this Passage in Matthew Westminster that other Kingdoms which chose their King afterwards were not equally Elective in their Foundation tho not so ancient or the time of the Commencement not so easily to be shewen Vid. inf Vid. Falkner p. 329. This called a Synod of all England 827.548.279 Malmsbury f. 13. Certain it is that the Council of Calcuth in the Year 789 which provides for the Election of Kings was Conventus Pananglicus and if it took not in the Northumbrian Kingdom as having been disjoin'd from the rest till the Reign of Egbert An. 827 being 279 Years it is to be presum'd that all England besides was included Nay this very Author produces Authorities which prove other Kingdoms here though their beginning is not so well known to have been as truly Elective as this which he waves 1. He shews Page 14. that Beornred being set aside by a Convention of the Nobility and People of the Kingdom of Mercia Offa was chosen King who was of the Royal Stem but not the next Heir And so says he William of Malmsbury observes in the West Saxon Kingdom after Ina that no Lineal Succession was then observ'd but still some of the Royal Line sat in the Throne and of Ina himself that he was rather put into the Throne for his Vertue than by Right of Succession Discourse sup p. 15. 2. He argues that if by the Fundamental Constitution Allegiance were indispensably due to the next rightful Heir in this Monarchy Athelstan whom he shews not to have stood next in the ordinary course of Descent would not have been chosen Magno Consensu Optimatum and gives several other Instances wherein he observes that Reason of State Page 17. and the publick Interest still over-ruled this matter 3. He shews that Reason of State and the Publick Interest over-ruled not only for Elections when the Throne was free from a Possessor but even for the removing Kings in Possession P. 13. An. 454. Vid. sup Anno. 756. P. 14. An. 758. An. 854 867. P. 16. An. 957. For which he cites the Cases of Vortigern under the British Government Sigebert King of the West Saxons Beornred of Mercia above-mentioned Aetheluph King of the West Saxons and the eldest Son of Edmund who was set aside because in Commisso regimine insipienter egit He acted foolishly in the Government committed to him After all he contends that ours is not only a true Original Monarchy but Hereditary where the Right of Succession and publick Good did not interfere and thus much I readily grant him but in restraining this to Cases where there was not a natural or moral Incapacity he plainly confines Reason of State and the Publick Good to narrower Limits than before he allowed for if these were to over-rule Page 17. as he before observ'd then the Question upon Competitions for the Crown between Persons of the Royal
Family was barely which of the Competitors all Circumstances being considered was most likely to advance the Publick Interest of which the People were to be Judges whereas according to his Limitation they were bound to take the Person who was next in the Line if he lay not under a natural or moral Incapacity directly contrary to what he shews out of Malmsbury of the West Saxon Kingdom in which after Ina no Lineal Succession was observed When Athelstan Page 15. of his own shewing was chosen King were his Brothers Edward and Edwin under any natural or moral Incapacity Or were the Sons of Edmond Iron-side either way uncapable when Edward the Confessor was elected For Confirmation of what himself produces upon this Head I take leave to add one Authority from the Writer of the Life of King Alfred Vita Aelfredi lib. 1. f. 19. Many Examples says he are found among the Saxon Kings of a Brother's succeeding to the Brother before his Son especially if the Son had any Impediment from the Infirmity of his Age or other Ineptitude for governing Nay OFTEN BY REASON OF LESS MERIT I must admit that for the deposing one actually invested with the Regal Authority the Author's Limitations were to be observ'd tho they were not strictly kept to and I cannot but think that this Author confounds himself for want of this Distinction Either the frequent Examples of setting Kings aside whom the Nation judg'd uncapable of the Government through some natural or moral Defect or Excess or rather the continual Engagements in war with Foreigners had such Effect that from the time of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957 to the time of W. 1. being 109 Years I find no like Instance but one Anno 1014 52 Years before the suppos'd Conquest which was the case of Etheldred who abdicated the Government and went into Normandy from whence the Nation agreed to receive him again upon Condition si vel rectiùs gubernaret Flor. Wigorn. An. 1014. vel mitiùs eos tractare vellet if he would either govern more according to Law or treat them more mildly Upon which he promiss'd omnia Rege Populo digna All things which become a King to his People For the most part during the Saxon Government 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 Even Will. 1. notwithstanding the Pretence made in after-Ages of his having broken the English Spirit Vid. second Part. was not only oblig'd to keep within Bounds as the following Discourse will evince but to renew his Compact with the People more than once Their extraordinary Power had slept very few Years after the Death of this reputed Conqueror Ed. Lond. Mat. Par. f. 19. Rex Willielmus videns omnes pene regni proceres una rabie conspiratos Anglos fortitudine probitate insignes faciles Leges tributorum lenamen liberasque illis venationem promittendo sibi primo devinxit for the Sickness of his Son W. 2. giving the English Nobility an opportunity of consulting together they almost as one Man were for declaring against him which he timely prevented by fair Promises to them Nay tho his Brother H. 1. came in with the universal Applause of the Nation yet a great part of his Navy deserted him and declar'd for his Brother Robert not because he was the elder Brother but because Henry was unmindful of that Contract which gain'd him the Preference Quia Rex jam tyrannazaverit as the Historian has it because the King prov'd a Tyrant King Stephen his immediate Successor after Allegiance sworn to him had it a while withdrawn for Maud the Empress Daughter to H. 1. but the People soon return'd to it again rejecting her who was nighest in Blood because she deny'd them the benefit of St. Edward's Laws And Discourse p. 21. as the Author of the learned Discourse about the New Separation observes out of Manuscript written by Fortescue Chancellor to H. 6. Maud was set aside and the Reversion of the Crown entail'd on her Son altho she was living and this was done in Parliament Communi Consensu Procerum Communitatis Regni Angliae By the common Consent of the Peers and Commons of England for which Fortescue whose Skill and Integrity no Man can justly question appeals not only to the Cronicles but to the Proceedings of Parliament However this Author will have it that the Commons were not there but as represented by the Barons being misled by the general Expressions of the Historians whose Authority he opposes to the Rolls of Parliament Yet for the purpose here it is enough that this was done by a Parliament of that Time that the Agreement then made was confirm'd by the Oaths of the Great Men and that the Publick Good which was the Foundation of the Agreement was thought to be the measure of the Obligation of such Oaths Hen. 2. came to the Crown by virtue of an Agreement with King Stephen to which the Nation consented for ought appears he was a strict Observer of the Constitution of the Government but being render'd uneasy by the Refractoriness of the Clergy and desirous that his Son should enjoy that Kingdom which he found a desirable Possession to them who would keep the Laws he took his Son into a Partnership of the Care and Dignity this occasion'd a Competition for Power which the Admirers of the traiterous St. Becket improv'd into a War which divided the People Archbishop Parker's Antiquitates Britanicae f. 130. salvâ fide Regi patri quamdiu viveret ac regno praeesse vellet but this being between two Kings both in Possession I should not look on as any Precedent to our Point did I not find that the Allegiance sworn to the Son at the receiving him to the Succession was with a Salvo for that which was due to his Father as long as he should live or think fit to reign CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered THE Power lodg'd in the People for the publick Good to be sure was rous'd and justified by the Tyrannical Reign of King John who tho he had effectually abdicated or unking'd himself by his giving up his Crown as much as in him
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
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
to a qualified Choice I Think I have with due regard to all colourable Objections made it appear That Allegiance may in some Cases be withdrawn from one who had been King till the occasion of such Withdrawing or Judgment upon it And this I have done not only from the Equity and reserved Cases necessarily implied but from the express Original and continuing Contract between Prince and People which with the Legal Judicature impowered to determine concerning it I have likewise shewn and exemplified by the Custom of the Kingdom both before the reputed Conquest and since And have occasionally proved That tho Oaths of Allegiance may reach to Heirs according to special Limitations as was 26 Hen. 8. yet in common intendment by Heirs of a King or Crown no more is meant than such as succeed to it according to the Law positive or implied And that whoever comes to the Crown upon either Allegiance is as much due to him by the Law of God and Nature as it was to the nighest in Blood Sanderson de Obligatione Juramenti Lect. 4 Or to use the words of Bishop Sanderson Dignity varies not with the change of Persons Whence if any Subject or Soldier swear Fealty to his King or General the Oath is to be meant to be made unto them also who succeed to that Dignity And when the Crown continues in the Blood this especially by what I have above-shewn puts the Obligation of Allegiance to the King in being out of Controversie unless it can be made appear that the Right of the former King remains or that there is some Settlement of the Crown yet in force which ties it strictly to the next I come now to prove That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restor'd to that Latitude of Choice which I have shewn to be their Original Right The Lords and Commons having a Judicial Power in this matter as hath been prov'd at large their Exercise of this Power in the nature of the Thing determines the Right unless an Appeal lies from them to some higher Court in this Nation But that no Power can legally question them or any of them in this matter appears more particularly in that there is no Statute now in force nor was since the Death of Car. 2. which makes it Treason to conspire to Depose a King or actually to Depose him Vid. Sir Rob. Atkins his Excellent Defence of the L. Russel f. 22 23. But this is of the Nature of those Common-Law-Treasons which are left to the Judgment of Parliament And they who are the only Judges of their own Actions have a pretty large liberty in them especially according to them who would infer the absolute Power of Princes from the supposition of no constituted Judges of their Actions Wherefore the Defence of their Proceedings might justly seem to be superseded were it not for an ungovernable sort of men who either cannot or will not judg according to the Rules of Right Reasoning but as they will hardly admit of any Doctrine as true for which they have not the Decision of some Father or Council will believe no Action not proceeding from their imperious Dictates justifiable even in Cases of the utmost necessity for the preservation of the true Religion and just Laws for which they have no warrant from the Examples of their Forefathers or Opinions of Men whose Books have past with their Allowance Which often drives me to the seeming Pedantry of Quotations to confirm the most obvious Considerations to which my own thoughts led me The either open or more covert Matters of Fact inducing the Declaration of Lords and Commons That J. 2. has broken the Original Contract I need not now inquire into All People must own that he has if they in the least attend to the Constitution of our Government and how apparently he by his general Dispensations usurp'd a Legislative Power for the Destruction of the Protestant Religion and Civil Rights which we were in a fair way of being Dragoon'd out of by a standing Army by degrees to have been totally under Popish or Complying Officers Yet if there were no more than his Leaving the Kingdom without making any Provision for keeping up the Justice of it and going into France a Country from whence all mischiefs have of late Years flow'd upon us and our Religion Who can deny but this alone would have been enough to set him aside Rastal's Entries tit Reattachment f. 544. b. Resum c. quia extra Regnum Angliae progres fecimus nullo locum tenente nostrum sive Custode Regni relicto c. The going out of the Realm without appointing a Custos was anciently in our Law a Discontinuance of Justice Hobart f. 155. And the Lord Hobart gives it as a Maxim Cessa Regnare si non vis Judicare ' Cease to Reign if you will not judg or maintain the ' Course of Justice Vid. Leges 12. Tab. de Magistrat Many I know upon these Questions rather regard the Civil Law and that I am sure gives a home thrust in the Case of deserting one's Country and going into such an one as France is to our Nation tho it has been in too strict Alliance with our Kings The Digests say Digest lib. 49. tit 15. De Captivis Postliminio Transfugae nullum postliminium est nam qui malo Consilio Proditoris animo patriam reliquit hostium numero habendus est c. transfuga autem non is solus accipiendus est qui aut ad hostes aut in bello transfugit sed ad eos cum quibus nulla amicitia est fide susceptâ transfugit A Deserter has no Right of being restored to his Countrey For he who left his Countrey with an evil and treacherous mind is to be held as an Enemy c. But we are to take not only him for a Deserter who runs over to Enemies in time of War but also during a Truce Or Who runs over to them with whom there is no Amity either after undertaking to be faithful to his Country or else undertaking to be faithful to the other Either of which senses the words will bear 'T is likely to be said That this out of the Civil Law is improperly applied to the Prince who according to that is exempt from all Laws Imp. Theod. Valentin Caes ad Volusianum Praefectum Proetorio Digna vox est Majestate Regnantis Legibus adligatum se Principem profiteri Adeo de auctoritate juris nostra pendet auctoritas re verâ majus imperio est submittere Legibus principatum Et oraculo praesentis Edicti quod nobis licere non patimur aliis indicamus But I would desire such besides what I have observed upon the Roman Lex Regia to read the Rescript of Theodosius and Valentinian wherein they thus declare 'T is an Expression suitable to the Dignity of
the late Assembly would be conclusive to the Nation Neither Forty days Summons nor Writs nor yet Summons to a Parliament Essential And this confirmed not only by the President 12 Car. 2. but by two Presidents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves and of their own appointing The Objection of want of Form Answered out of the Civil-Law and its Reason applied to our Case Objections made by the Author of Elementa Politica considered The Conclusion THE Power having upon the Dissolution of the Contract between J. 2. and his former Subjects returned to the People of Legal Interests in the Government according to the Constitution there can be no doubt with unbiassed Men but this takes in them only who have Right of being in Person or by Representation in those Assemblies where is the highest Exercise of the Supream Power But there are two Extreams opposite to the late Election made by such an Assembly The First is of them who would have all things go on in the same Form as under a Monarch which was impossible and therefore the Supream-Law the Publick-Safety must needs supply the want of Form Nor can be justly controverted till the Lawfulness of the end is disprov'd For all Means necessary to such an End are allowable in Nature and by all Laws But if this should still be disputed all their Darling-Laws made by the Long-Parliament which met after that Convention Anno 1660. will fall to the ground according to the former application of the Statute above-mentioned 16 Car. 1. Vid. Sup. Nay the attempt of Repealing that Statute being in a Parliament which had been actually Dissolved before by that very Law which it went about to Repeal that Form which was usual before is in default of King and Officers supplied by another Provision for the Regular Meeting of Lords and Commons And what hinders but the people had as much Power to vary from the Common Form when there was no King and that Form could not be observ'd as when there was a King and a possibility of having that Form Here I may observe these two things 1. If as I have shewn at large the Right of Succession to the Crown was not fixed to the next in Blood neither before the reputed Conquest nor since if there have been several vacancies of the Throne and the People had right to chuse upon every such Vacancy then whatever they did in order to the choice must necessarily have been freed from the Forms which were required under a King 2. Even where the Kingdom has gone by descent there may have been a necessity for the people to take the Government upon them as if the present Possessor has turned Madman or he who stood next in the Succession were under age without any Guardian appointed in the Life-time of his Father or out of the land when his Father died which were the cases of R. 1. and of E. 1. the account of the last of which deserves particular notice The Annals of Waverly having mentioned the Death of H. 3. add Hoc anno scilicet post Festum S. Hillarii Annales Waverleiensis f. 227. factâ convocatione omnium Prel aliorum Magnatum Regni apud Westm postmortem illustris Regis H. convenerunt Arch. Ep. Com. Bar. Abbates Priores de quolibet Comitatu quatuor Milites de qualibet civitate quatuor qui omnes in presentiâ Dom. Will. scil Arch. Ebor. Rob. de mortuo Mari R. Burnet Cler. qui in loco Domini Regis Anglorum Edwardi praefuerunt Sacramentum eidem Domino Ed. tanquam terrae Principi susceperunt ubi Dominus W. de Mertone Cancellarius constitutus est ut moram trahat apud Westm tanquam in loco publico usque ad adventum Principis Et ibi provisum est quod nulli sint Justiciarii itinerantes usque ad adventum Principis sed in Banco Dominica prima Quadragesimae 4 Id. Martii consecratus fuit frater R. de Kilderlii in Arch. Cant. Item concessa est decima Ecclesiarum Religiosorum Domuum Domino Ed. ejus Germano ad supplicationem Domini Papae ut sit pro duobus Annis F. 228. In this year to wit after the Feast of St. Hillary all the Prelates and other great Men of the Kingdom being call'd together at Westminster after the Death of the Illustrious King Henry there met the Archbishops Bishops Earls and Barons Abbots and Priors and Four Knights from every County and Four from every City which all in the presence of William Archbishop of York Robert Mortimer and R. Burnet Clerk who presided in the stead of Edward their Lord and King of England took an Oath to the said Lord Edward as Governor of the Realm Where the Lord William of Merton is constituted Chancellor and that he should abide at Westminster as in a publick place till the Prince's coming And there it was provided that there should be no Justices itinerant before the Prince his coming but only in the Bench. The first week of the Quadragesima to wit on the Fourth of the Ides of March Father R. of Kilderly is consecrated Archbishop of Canterbury Matthew Westminster of the same time says Mat. West Rege igitur Supulto sicut mos est regibus sepeliri Gilbertus Johannes Comites Gloverniae Warenniae nec non Clerus Populus ad magnum Altare Ecclesiae Westm ' celeriter properarunt Ed. primogenito Regis fidelitatem jurantes qui si viveret penitus ignorarunt Agebat enim in partibus transmarinis contra Christi adversarios bellaturus Postmodum ad novum Templum Londini Nobiliores Regni pariter convenerunt Et facto sigillo novo constituerunt fideles ministros Custodes qui Thesaurum Regis Pacem Regni fideliter custodirent The King therefore being buried in that state in which Kings us'd to be buried Gilbert and John Earls of Gloster and Waren as also the Clergy and People as soon as might be hastned to the great Altar of Westminster-Church swearing Fealty to Edward the King 's eldest Son tho they were wholly ignorant whether he were alive or no for he was in Foreign Parts fighting against the Enemies of Christ After this the Nobility of the Kingdom likewise met and a new Seal being made they constituted faithful Ministers and Keepers who might faithfully keep the King's Treasure and the Peace of the Kingdom The Annals and Matthew Westminster differ in circumstances tho they agree in substance but it would seem as if the same Convention had been adjourn'd from Westminster to the Temple and therefore its Acts might have been said to have been at either of the places It at least appears from Matthew Westminster that prior to that Solemn Convention which the Annals mention there had been a great confluence of people headed by the Earls of Glocester and Waren at that meeting 't is
exaltationem Sanctae Ecclesiae pacem populi tenendam concessit c. King William being dead the Great Men of England not knowing what was become of Robert Duke of Normandy So R. 1. was call'd but Duke of Normandy till he was chosen King of England the deceased King's Elder Brother who had been five years at the Holy-war were fearful of wavering long without a Government Which when Henry the youngest Brother a very wise young Man cunningly observ'd the Clergy of England and all the people being assembled He promised an amendment of those Laws with which England had been oppressed in the time of his Father and his Brother newly deceas'd that he might stir up the minds of all to his promotion and Love and that they might receive him for King and Patron To these things the Clergy answering and then the Great Men That if with a willing mind he would Grant and Confirm with His Charter those Liberties and ancient Customs which flourish'd in the Kingdom in the time of Holy King Edward they would consent to have him and would unanimously consecrate him King And Henry freely consenting to this and affirming with an Oath that he would perform He was Consecrated King on our Lady day by the Consent of Clergy and People upon whose Head the Crown was immediately set by Maurice Bishop of London and Thomas Archbishop of York As soon as he was Crown'd He granted the under-written liberties for the exaltation of Holy-Church and preserving the Peace of the Kingdom Then follows his Charter containing some Alterations of the Law which had before obtained not only in relation to the Rights of the Crown but of the Subjects particularly whereas the Relief had been Cart. H 1. Siquis Baronum meorum Comitum vel aliorum qui de me tenent mortuus fuerit as Fines now in most Copy-hold Mannors at the Will of the Lords they were reduced to what was just and lawful according to St. Edward's Laws for which as should seem by the Charters of King John and H. 3. declaratory of the Common-Law there were known Rates and H. 1. restored all the Common-Law with the Statutes made for the amendment of it in the time of W. 1. He seem'd in two particulars wisely to have ingratiated himself with the people the first was in gaining to his side the Directers of their Consciences by a concession to the benefit of Church-men which was wholly new and that was That an Archbishop or Bishop or Abbat being dead Vid. Cart. H. 1. he would take nothing of the demean of the Church nor of its tenents until the Successor was inducted which was a departure from that Prerogative which belonged to the Crown upon the Vacancies as appears by the affirmation of H. 2. Vid. Anti. Brit. inf f. 135. Carta Johannis Haec omnia observentur de custodiis Arch. Episcopatuum Abbat Prior Eccles Dignitat vacantium quae ad nos pertinent c. Prerog Regis 17 E. 2. c. 14. the Charter of King John and the Statute of the King's Prerogative 17 E. 2. This Indulgence to the Church without special Provision for keeping it up was withdrawn by the next general Confirmation of the Confessor's Laws and therefore 't is no wonder that it is left out of subsequent Charters If he was not popular in this at least he was in another Action which was his imprisoning Ranulph who had been the great Instrument of oppression in the former Reign Mat. Par. f. 76. and that it was with intention of punishing him severely appears by Ranulph's making his escape out of Prison by means of those great Treasures which he had heaped up from the Spoils of the People Ranulph no doubt could at a much cheaper rate have applied himself to such a Lawyer as the Author of the Magistracy vindicated if such an one could have been found in that Age of less corruption Vid. the last part of the Magistracy and Government vindicated p. 8. I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its Primitive State of nature all Power devolved into Individuals and the particulars only to provide for themselves by a new Contract for if so there 's no new consent for punishment of Acts done before the dissolution and consequently revenge for that is at an end Vid. ib. p. 2. who might have advised him to rest satisfied that it would not be consistent with the Wisdom and Justice of a Prince who came in upon a Vacancy of the Throne as H. 1. did not standing next in the Line to punish any Criminals of the foregoing Reign but Ranulph was wiser in running away and perhaps more modest than to think that for his useful parts employed in the pillaging and destroying innocent men he might pretend to merit under the Successor H. 1. having truly shewn a Fatherly care of the people no man then raised any foolish scruple upon the manner of the Proceedings where the Substance was pleasing to all But that which has been done by them who could get together upon the intervals of Government has been held valid that the Vacancies might be as short as possible unless the general sense of the people has immediately appear'd against it and thus Harold having been Crown'd by surprize when the Friends of W. 1. were at the Confessors Buryal some Authors upon that very Account Vid. 2. part will have it that Harold was an Usurper But that it may be seen how little apt people are to dispute Forms when a King acts agreeably to the sense of a Nation I shall shew that H. 1. acted as King even before he was Crown'd immediately upon his Election for which Huntindon is my Author who having mentioned the death of W. 2. says Henricus frater ejus junior ibidem in Regem electus Hen. Huntin f. 216. b. de H. 1. dedit episcopatum Wincestriae W. Giffard pergensque Londoniam sacratus est ibi a Mauritio Londonensi Episcopo His younger Brother Henry being there chosen King gave the Bishoprick of Winchester to W. Giffard and going on to London was consecrated there by Maurice Bishop of London And I am much mistaken if what he did in relation to another Bishop Anselm who had been Archbishop of Canterbury in the time of W. 2. is not an additional evidence to what I have already produced that the Convention in which he was Crown'd was turn'd into a Parliament or acted as one Ordericus Vitalis says Anselmus enim Dorebornensis Archiep. exulabat Eadmerus f. 38 39 40. shews this was at a Council at Winchester ubi says he ex condicto venimus Mat. Far. f. 25. Trajacere quidem liberum esse sed inconsulte id facturum siquidem nullam revertendi spem in posterum ei futuram Eadmerus Anselm as appears by the circumstances of the story had been condemned to perpetual Banishment by Parliament in the time of
W. 2. for he resolving to go take the Pall at Rome 't was declared to him in Parliament that if he went it should be without any hopes of returning again Upon this the See of Canterbury became vacant agreeably to what afterwards hapned in the case of Becket tho he was not banish'd but fled away voluntarily yet the French King having press'd H. 2. to let Becket have the Profits of the Archbishoprick the King told him Antiquitates Britan. f. 135. Restituere se nihil ei posse qui sponte Ecclesiam deseruerit itaque cum e Regni consuetudine Regisque dignitate Cantuariensis Ecclesiae quam Thomas fugâ voluntariâ pro derelicta fecit fructus vacantes certis jam personis contulisset nolle se dixit ea quae prout jure Regni potuit contulisset in irritum dubiumve revocari That he cannot restore any thing to him who left his Church of his own accord since therefore according to the custom of the Kingdom and the Royal Dignity he had conferr'd upon certain persons the vacant Fruits of the Church of Canterbury which Thomas by his voluntary Flight had made derelict he said he would not make void or call in doubt those things which he had granted according to the Law of the Kingdom If there might be any doubt of a Vacancy of the See in Becket's case at least there was none in Anselm's who had in the time of W. 2. been banish'd by Parliament never to return and yet the Convention 1 H. 1. being become a Parliament not only recall'd him from banishment in which they set aside an Act of a former Parliament but they call'd him to fill the See of Canterbury after it had been vacant which was equally a Parliamentary Act in those days as appears by the choice of Lanfranc in the time of W. 1. of this very Anselm in W. the 2 d's and of Becket in the Reign of H. 2. Concerning the Election of Lanfranc Arcbishop Parker tells us Ibid. f. 110. Celeberrima est autem hujus prae caeteris electio consecratio Electus enim est a majoribus Cantuariensis ecclesiae tum accessit Procerum atque Praesulum totiusque populi quasi Populi consensus in Aula Regis quod sane est ad instar Senatus seu Parliamenti Anglicani But this Election and Consecration was with more Solemnity than any other For he was chosen by the Chief of the Church of Canterbury To which was added the consent of the Peers and Prelates and as it were of the whole People in the King's Court which in truth is of the nature of an English Senate or Parliament Tho he will have this Election to have been more solemn than any other and that it was not in a real Parliament but in an Assembly of the same nature yet what himself says of the Elections of Anselm and Becket explain'd by more Ancient Authors shews that the Elections of other Archbishops us'd to be as solemn and that both that of Lanfranc and of the others were in a full Parliament or Great Council of the Nation Himself says That both Peers and People were so much for Anselm's being made Archbishop that W. 2. would not openly contradict Antiq. Brit f. 116. W. 2. Proffered Anselm the Archbishoprick but underhand disswaded him from it Sed cum neque hâc suasione quicquam profecisset proque certo comperisset Proceres Populumque Angliae adversos aut minus fidos sibi Anselmo favere eumque ad Archiep. munus jam oblatum flagitare apertè contradicere noluit Eadmerus who was always by Anselm's side shews that W. 2. being taken ill in the seventh year of His Reign Omnes totius Regni Principes coeunt Episcopi Abbates quique Nobiles There gathered together all the Princes of the Kingdom the Bishops Abbots and all the Nobles This as appears was upon notice given among themselves to provide for their Common safety To that Assembly the King makes solemn promises of Governing better than he had done And Anselm being there named for Archbishop Concordi voce sequitur acclamatio omnium ' The acclamation of all followed as with ' one voice And Eadmerus says that he was made Archbishop Secundum totius Regni Electionem ' according to the Election of the whole ' Kingdom And another Monk of the time says Gondulfus Roff. Ep. Monac Bec. inter Anselmi Epist lib. 3. the King made him Archbishop Consilio Rogatu Principum Cleri quoque populi petitione electione By the Counsel and Advice of the Peers and the Petition and Election of the Clergy and People Archbishop Parker speaking of the Consecration of Becket An. Dom. 1162. 7 H. 2. in the 7th of H. 2. says Consecrationi huic tam illustri interfuit H. Rs filius Antiq. Brit. f. 130. cum plerisque Regni Proceribus quatuordecim Cantuariensis Provinciae Episcopis innumerâque Plebis multitudine atque copiâ There were present at this Consecration Henry the King's Son with most of the Nobility of the Kingdom and Fourteen Bishops of the Province of Canterbury and an innumerable multitude and throng of the common people The former Presidents shew that they were consenting as well as present nor could the absence of the Bishops of the other Diocesses make their Meeting the less a Parliament Sir Henry Spelman cites an Authority proving that the Clergy were not conven'd at the Council of Rochingham 9 W. 2. Spelman Concil vol. 2. f. 16. In quo fermè totius Regni Nobilitas praeter Episcopos Clerum Convenitur which must be meant of not being Summoned for it appears by Eadmerus that Anselm and other Bishops were there And Bishop Jewel observes that in the time of E. 1. Jewel contra Hard. f. 455. a Parliament was held from which the Clergy was excluded From these Authorities it appears That as Anselm was chosen Archbishop in one Parliament and Banished in another nay tho he had gone away voluntarily his See became derelict and admit the King might have pardon'd his Banishment out of Parliament he could not have restor'd him to the exercise of his Office but in a Council which was reputed to have the Authority of a Parliament and such Authority 't is plain that they in that time thought that Convention to have had in which H. 1. was Crown'd and which after his Coronation acted as a Parliament Malms f. 88. It appears by Malmsbury that Anselm was call'd back in the same Assembly wherein Ranulph was committed to Prison and Matthew Paris who is not so precise as to the time of Anselm's being sent for says Ranulph was Imprison'd communi Concilio Gentis Anglorum ' In a ' Common-Council of the English Nation And it appears by Matthew Paris Mat. Par. f. 78 79. That Anselm upon his return was look'd on and acted as Archbishop And if this is not sufficient evidence that that Convention was reputed a Parliament or one
Obedience to Governours p. 75. Last Ed. p. 165. who hath such a former Right to govern the Vsurper as cannot lawfully be taken away so that it cannot be just for an Vsurper to take advantage of his own unlawful Acts or create himself a Title by continuation of his own Injustice which aggravates and never extenuates his Crime and if it never can be an Act indifferent for the Vsurper himself to disobey his Lawful Soveraign much less can it be indifferent for him to command another to do that to which he hath no Right himself So that Usurpation is the unjust taking away or dispossessing another of Power and for it to be unjust it must be the Act of a Subject against a Lawful Prince wherefore none but a Rebel can usurp this Man by continuance of his Injustice can never gain a Title Yet in another place in express terms he contradicts himself Directions for Obed. p. 155. last Ed. and affirms that he may and does not so much as take in Prescription in a Man and his Heirs against the Party dispossess'd and his Heirs to strengthen it and indeed that could not well be urg'd by him because that Directions for Obedience p. 70. last Ed. p. 158. he tells us comes in by positive Humane Laws which can signify nothing against any Grants or Gifts which have their Original from God or Nature as the Power of Kings and Fathers has But let 's take his words and see whether any thing can be a more direct Contradiction Anarchy p. 275. last Ed. p. 253. Many times by the Act of an Vsurper himself or of those that set him up the true Heir of the Crown is dispossest God using the Ministery of the wicked'st Men for the removing and setting up of Kings in such Cases the Subjects Obedience to the Fatherly Power must go along and wait upon God's Providence who only hath right to give and take away Kingdoms and thereby to adopt Subjects into the Obedience of another Fatherly Power So that he makes a Government by wrongful Election or Conquest still to be the Fatherly Government and such as the People are bound to obey for he puts the case of the Usurpers being set up by others as well as his own Act. But the poor Prince it seems has in neither Case right to the Peoples Obedience and he avows the Conclusion which he condemns upon Mr. Hobbs his grounds Preface to Obs on Hobbs his Leviathan viz. The Rights of Soveraignty may be forfeited for the Subject cannot be at liberty to submit to a Conqueror unless his former Subjection be forfeited for want of Protection But he tells us the Subject is at liberty when the true Heir is dispossest Ergo. But he has a very fine Notion to evade the Consequence of Forfeiture and yet justify the Peoples Obedience to the Usurper Direct for Obed. to Government p. 72. If a Superiour cannot protect it is his part to desire to be able to do it which he cannot do in the future if in the present they be destroyed for want of Government therefore it is to be presum'd that the Superiour desires the preservation of them that should be subject to him and so likewise it may be presum'd that the Vsurper in general doth the Will of his Superiour by preserving the People by Government And it is not improper to say that in obeying an Vsurper we may obey primarily the true Superiour so long as our Obedience aims at the Preservation of those in subjection and not at the Destruction of the true Governour With this pious Intention and mental Reservation we may it seems obey an Usurper though the Prince have not forfeited his Right And yet he says The Subject cannot be at liberty to submit to a Conquerour unless his former Subjection be forfeited for want of Protection If by a Conquerour he means a Foreign Prince as by Usurper he means a Subject the Argument is much stronger that an Usurper ought not to be obey'd whereas he says he ought which cannot be unless the former Subjection be forfeited the first Vsurper he tells us has the best Title being in possession by the permission of God But if he be dispossest the second or last has a better than what continues with the first or his Heirs if the People are adopted into another fatherly Power Yet according to this substratum there can be no Title but what comes in a more natural way from Fatherhood Pref. to Observ on Arist for Adam being commanded to multiply and people the Earth and to subdue it and having dominion given him over all Creatures was thereby Monarch of the whole World none of his Posterity had any right to possess any thing but by his Grant or Permission or by Succession from him The Earth saith the Psalmist hath he given to the Children of Men. Which shews most plainly to one of sublimated reason that the Title comes from Fatherhood For it could not have been given to the Children diffusively unless they had a Father for if there had been no Father there could be no Child I must confess I know no Man who has a better faculty of arguing against himself I thought he was for the Absolute Power of every King within his own Dominion that is his drift if he be steady to any Design but Confusion yet he directly opposes it and is only for one King over all and therefore he says When we find Patriarcha p. 17. that in the time of Abraham which was about 300 Years after the Flood in a little Corner of Asia five Kings at once met in Battel most of which were but Kings of Cities a-piece c. We must conclude that these were but some petty Lords under One great King For since Nature hath not distinguish'd the habitable World into Kingdoms Anarchy p. 268 nor determin'd what part of a People shall belong to one Kingdom and what to another it follows that the Original Freedom of Mankind being suppos'd every Man is at liberty to be of what Kingdom he pleases and so every petty Company hath a right to make a Kingdom by it self and not only every City but every Village and every Family nay and every particular Man a liberty to chuse himself to be his own King if he please and he were a Mad-man that being by Nature free would chuse any Man but himself to be his own Governour Thus to avoid the having but of one King of the whole World we shall run into a liberty of having as many Kings as there are Men in the World His Argument if he makes any is this If Mankind were free by Nature there would be as many Kings as there are Men in the World but they are not free Therefore there is but One King of the whole World nor can it ever be otherwise Anarchy p. 266 For the Monarchical Power of Adam the Father of all Flesh was
Ed. for every Law must always have some present known Person in being whose Will it must be to make it a Law for the present If the Independent Heads or Nobles are instead of One Prince to make choice of an Head which is a Law to that end then a Law may flow from the Will of many as well as from that of One. But take Sir Robert's Notion of Supream or Independent Heads and Fathers in the most sensible meaning that is of Natural Fathers these where there is no division into Tribes as was amongst the Jews will be numerous Yet all in the Case presuppos'd are allow'd by Sir Robert to be invested with Kingly Power and therefore the parting with it must be by their choice as he himself yields and yet according to his Principles they can never so part with it but they may resume it I must confess in this he doubly contradicts himself for the End of his Writings being to prove that the Government ought always to be in One absolutely here he yields it to be in many And when before he said That Civil Power not only in general Patriarc p. 12. is by Divine Constitution but even the Assignment of it specifically to the Eldest Parent here he acknowledges it to be in several Parents not in the Eldest only But that every such Parent as was at any time vested with this Power may resume it is the plain Inference from his Doctrine for he tells us Patriar p. 54. That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Those Laws which are the best or only means for the preservation of the Common-weal bind Princes Or so far forth as the general Law of the Safety of the Common-weal doth naturally bind him for in such sort only positive Laws may be said to bind the King not by being positive but as they are naturally the best or only Means for the preservation of the Common-weal Here still he opposes himself for he yields that Princes are bound to those Laws which are the best or only means for the preservation of the Common-weal and so asserts that exploded Sentence I will not call it Maxim Free-holders Grand Inq. p. 39 Anarchy p. 265 No Laws whatsoever bind Princes Salus Populi suprema Lex when at other times he tells us That 't was God's Ordinance that Supremacy should be unlimited in Adam and as large as all the Acts of his Will and as in him so in all others that have Supream Power That is as by Supream Power he means absolute every one that has Absolute Power ought to have Absolute Power But the Consequence from Adam's having had such Power is That the Right Heir from Adam in the natural course ought to inherit it But as he supposes several at the same time to be Heirs or to come into the stead of Adam's right Heir upon the Escheat of the Kingly Power these being so many Kings or at least making one King where however the Power is in many though they parted with their Power they might at any time resume it when they thought it for the Good of the Publick of which they as Princes should be Judges nay and their Heirs in Succession might Filmer's Power of Kings F. 2. And so Sir Robert's Maxim resteth That the Prince is not subject to his Laws nor the Laws of his Predecessors but well to his own just and reasonable Conventions Patriarc p. 97. Nay though they should swear to observe all the Laws of their Kingdoms yet no Man can think it Reason that Kings should be more bound by their voluntary Oaths than common Persons are by theirs I see not how upon his Principles an Answer can be given to his Question Patriarc p. 23. If Obedience to Parents be immediately due by a natural Law and Subjection to Princes but by mediation of an Humane Ordinance what Reason is there that the Laws of Nature should give place to the Laws of Men as we see the Power of the Father over his Child gives place and is subordinate to the Power of the Magistrate He affords no other Title to Princes than what Fathers have to be Princes each in his own Family nay he himself owns that the Kingly Power may escheat to all the Independent Fathers and that they may transfer it over to One. Now that 't is in this One not still in all or in some other must be of Humane Ordinance Upon which Grounds the answer to his Question is obvious which is that the Subjection due by Nature from Children to their Parents is not defeated by the Kingly Power 's being in One and therefore the Power of the Father over his Child does not give place to the Power of the Magistrate If it did this their natural Right the Parents may resume when 't is for the Good of their respective Families or thought so by them and indeed of one great Family they might resolve the Community into as many separate Governments as there are Families or Patres Familiâs at their Pleasures without any moral Obligation to the contrary If the Power whereby a Nation is govern'd were not wholly distinct from that whereby a private Family is and if both came by Nature since the true descent in Nature cannot now be made out for every Family to make a Kingdom by its self must be most natural and the only lawful Government unless Choice that is Humane Ordinance may warrantably cement them into one Government And this is very evident in the Case of Escheat and of any Translation of Kingly Power from Natural Fathers For the Kingly Power is in the Fathers before the transferring it over quatenus Fathers or it is not If it be in them quatenus Fathers then according to Sir Robert they may resume whatever is essential to the Soveraignty of Fathers being it was once lawfully vested in them at least they have a great deal of Latitude for their Claim because Power of Kings Fol. 2. Patriarcha p. 97. For the same Causes that a private Man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by Deceit or Fraud circumvented or induced thereunto by Error or Force or just Fear or by some great Hurt even for the same Causes the Prince or Princes may be restored in that which toucheth the diminishing of his or their Majesty It seems he grants that the Power once lawfully vested in any cannot be parted with but upon choice wholly free ex mero motu voluntate spontaneâ Yet being there was no Obligation upon them from God or Nature to devolve their Power upon one rather than another but purely what proceeded from their own wills this if he argues rightly they might resume when they list at least when they all agreed to the
Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the youngest Son of King William the First procur'd an Assembly of the Clergy and People of England to whom he made large promises of his good Government in case they would accept of him for their King and they agreeing That if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some Oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties pass'd the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Father Life-time to acknowledg her for their Sovereign after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the King's Brother to treat of the great and weighty Affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the King's Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3 d. died his Eldest Son Prince Edward was then in the Holy Land and came not Home till within the third Year of his Reign yet immediately upon the Father's Death all the Prelates and Nobles and four Knights for every Shire and four Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I inferr from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our Old Constitution Assemble together in a Parliamentary way without them to treat of and settle the Publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick Business whatsoever without a new Election they having as great Authority as the People of England can delegate to their Represantatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annull'd 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and Attainders thereupon were Repealed in a Parliament held Ann. 21. of that King which Parliament was procur'd by forc'd Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Parliament and those Persons were by the King's Writs to the Sheriffs commanded to be returned and yet they passed Acts and their Acts though never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd insomuch that it was debated in Queeen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential Considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authothority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the King 's Writ and yet they made Acts and the Royal Assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I Infer that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament ALLEGATIONS In behalf of the High and Mighty Princess THE LADY MARY NOW Queen of Scots Against the Opinions and Books set forth in the Part and Favour of the LADY KATHERINE And the rest of the Issues of the French Queen Touching the Succession of the Crown Written in the Time of QUEEN ELIZABETH London Printed by J. D. in the Year 1690. THE PUBLISHER TO THE READER I Thought it not improper to subjoin the following Treatise written by a Lawyer in Queen Elizabeth's Time whether ever printed or no I cannot say in favour of the Title of the Queen of Scots against the Pretences of the Lady Katherine descended from the