not to assume the Royal Dignity unless he firmly resolv'd to perform what he had sworn To which he answered That by God's help he would faithfully observe his Oath And Hoveden says That he was Crown'd by the Counsel and Assent of the Archbishops Bishops Earls Barons and a great number of Milites which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 8. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the Occasion of the Law to encourage the Service of H. 7. who had no Title but from his Subjects and there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which being built upon the Supposition That according to the Fundamental Law the People's Choice gives sufficient Title perhaps is not vain and illusory as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me The Maxim in Law That the King never dies or to use the Words of Finch The Perpetuity which the Law ascribes to him having perpetual Succession and he never dies for in Law it is called the Demise of the King. To which I answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd and that the Death is but a Demise or transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election tho' never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Interregnum as it was resolved by all the Judges 1 Eliz. of which the Words of Lord Dyer are The King who is Heir or Successor may write and begin his Reign the same day that his Progenitor or Predecessor dies with which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like 'T is urg'd That the Hereditary Right contended for has not been interrupted by the People's Elections so oft as it should seem by the Breaches in the Succession for that many who came in before them who stood next were Testamentary Heirs of the Appointment of the Predecessor which argues an Inheritance in him that disposes And Dr. Brady thinks he produces an Example where the Election of the People was bound and limited by the Nomination of the Predecessor But if he had duely weigh'd the Presidents of this kind he might have understood that an Election without a Nomination had full effect while a bare Nomination had none and he might have learnt from Grotius that among the Germans from whom we descend Kingdoms did not use to pass by Will and that Wills were but Recommendations to People's Choice but not Dispositions I find it urg'd That as anciently as the time of E. 3. the Realm declar'd That they would not consent to any thing in Parliament to the disherison of the King and his Heirs or the Crown whereunto they were sworn If any Colour of Evidence can be produc'd that the Subjects of England so early as that swore Allegiance to the King and his Heirs this were to the purpose Indeed I find that before this 24 E. 1. a Foreign Prince the King of Scotland Feudatory to the Crown of England did Homage to the King and his Heirs but the like not being exacted of the Subjects of England till particular Acts whereby the Crown was setled it argues strongly as indeed appears from the Subject Matter that the Homage paid by a Foreign Prince was due to none but the present King and his Successor to the Kingdom whoever was next of Blood And by parity of Reason the Disherison of the King and him her or them who succeeded to the Crown was all that could be referr'd to when they urge the Obligation of their Oath to the King and his Heirs or the Crown which appears farther not only from the old Oath of Allegiance to which they must needs have reference whereby they are bound to defend the Rights of tbe Crown but even from the Matter then in question which was not of the Right of Succession but of a Flower of the Crown Bracton puts this out of dispute when he tells us That Inheritance comes not from an Heir but an Heir from Inheritance and that Inheritance is the Succession to all the Right which the Predecessor had by any sort of Acquisition With Bracton agrees the Civil Law Haeredis significatione omnis significari Successores credendum est etsi verbis non sunt expressi By Heirs we are to believe all Successors to be signified altho' not exprest in Words And again Nihil est aliud haereditas quam successio in universum jus quod defunctus habuit Inheritance is nothing else but Succession to all the Right which the Deceased had Wherefore I cannot but wonder that so Learned a Man as Sir P. P. should cite this to prove that Allegiance is due to the Heirs and Successors in a Legal Course of Descent that is as he explains or receives it out of Mr. Prynne by proximity of Succession in regard of Line Nor is this Learned Man more fortunate in mentioning the Salvo which Littleton tells us is to be taken to the Oath of Homage to a Subject Salve la Foy que jeo doy a nostre Signior le Roy where there is not a word of Heirs but he tells us that Littleton cites Glanvil where the word Heirs is whereas 't is the Lord Cook who makes the Quotation as he does of Bracton whose Sense of the word Heirs we have seen and Littleton fully confirms it by leaving out the word Heirs as a Redundancy Allegiance being due to every one that becomes King and to no other But to put the extent of Heirs to a King out of Controversie we have the Resolution of all the
of a King than they would have of coming to Parliament without his Writ Yet since the Right of the People in Person or Representation is indubitable in such a Case what hinders the Validity of the late Choice considering how many Elections of Kings we have had and that never by the People diffusively since the first Institution of the Government And the Representations agreed on tho' I take them to be earlier settled for Cities and Burrough than for the Freeholders in the Counties yet have ever since their respective Settlements been in the same manner as now at least none have since the first Institution ever come in their own Persons or been Electors but what are present personally or representatively and their own Consent takes away all pretence of Error If it be said That they ought to have been summon'd Forty days before the Assembly held That is only a Privilege from the King which they may wave and have more than once consented to be represented upon less than Forty days Summons Mr. Prynne gives several Instances as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and says he omits other Precedents of Parliaments summon'd within Forty days after the Writs of Summons bear date upon extraordinary Occasions of Publick Safety and Concernment which could not conveniently admit so long delay And Sir Robert Cotton being a strict Adherer to Form upon an Emergency advis'd That the Writs should be antedated which Trick could make no real difference To say however there ought to have been a Summons from or in the Name of a King in being is absurd it being for the Exercise of a Lawful Power which unless my Authorities fail the People had without a King or even against the Consent of one in being Besides it appears That such Summons have not been essential to the Great Councils of the Nation Tacitus shews That the Germans from whom we descend had theirs at certain Days unless when some extraordinary Matter hapned And by the Confessor's Laws receiv'd by W. 1. and continu'd downwards by the Coronation-Oaths requir'd to this very day the general Folcmot ought to be held annually without any formal Summons upon May-day And the Statute 16 Car. 1. which our rigid Formallists must own to be in force has wholly taken away the necessity of Writs of Summons from a King. The Assembly of Lords and Commons held Anno 1660. was summon'd by the Keepers of the Liberties of England not by the King's Writs yet when they came to act in conjunction with the King they declare enact and adjudge where the Statute is manifestly declaratory of what was Law before That the Lords and Commons then sitting are and shall be the Two Houses of Parliament notwithstanding any want of the King 's Writ or Writs of Summons or any defect or alteration of or in any Writ of Summons c. Tho' this seems parallel to the present Case yet in truth ours is the strongest For the King then having been only King de jure no Authority could be receiv'd from him nor could any Act of his be regarded in Law thro' defect either of Jurisdiction or Proof if not both Accordingly as not only the Reason of the thing but the Lord Coke shews a Pardon from one barely King de jure is of no force Besides the Keepers were an upstart Power imposing themselves upon the People without any formal Consent at least not so fully receiv'd to the publick Administration as our present King was who at the Request of a very large Representative of the People pursu'd the late Method of calling a more Solemn Assembly If that Anno 1660. had Power acting with the King to declare it self a Parliament why had not this in defect of a King to declare or chuse one Sure I am prudent Antiquity regarded not so much the Person calling or the End for which a General Council was call'd as who were present that Notice which they comply'd with being always sufficiently formal Wherefore a General Ecclesiastical Council being summon'd in the Reign of H. 1. by William Archb. of Canterb. thither according to the known Law of those Times the Laity came I cannot say they sate there for the Numbers were so great as they commonly were at such Assemblies before the Free-holders agreed to Representations that happy was the Man whatever his Quality who could have a convenient Standing After the Ecclesiastical Matters were over in the Council I now speak of they fell upon Secular Some they determin'd some they adjourn'd some the Judges of the Poll or Voices could make nothing of by reason of the great Crowd and Din. And when the King heard their Determinations and confirm'd them they had full Legal Force But had there been no Warrant from former Times for the late manner of Proceeding the People of Legal Interests in the Government having been restor'd to their Original Right who can doubt but they had an absolute Power over Forms That they were not call'd to a Parliament I hope will not be an Objection since the Word is much less ancient than such Assemblies And since the Cives the Common Subject of the National Power have made their Determination this according to that Positive Law which I have shewn above ought to quiet the Debate and command a Submission And yet were there not positive Law on their side the equitable Reservations before observ'd might be sufficient Warrant Nor is the Civil Law wanting to enforce this Matter One Barbarius a run-away Servant not known to be so got in favour with Anthony at the time of the Triumvirate and by his means came to be Praetor upon this a great Question arose Whether what he did or was done before him during his Praetorship were valid Vlpian decides in the affirmative and Hottoman upon that Question says The Suffrages of the People have the force of a Law. The Reasons given for the Resolution as they are in Gotofred who best reconciles the various Readings will greatly strengthen our Case He tells us That tho' the Question there is only concerning a Servant the Reason of it reaches to Emperors and all Secular and Ecclesiastical Dignities The Reasons why Vlpian holds the Acts of such good are 1. In regard of Common Utility and the Inconvenience it would be to those who had business before him if it were otherwise 2. From the Power of the People to give a Servant this Honour Gotofred thinks If this may be done with certain knowledge that he was a Servant much more if thro' mistake for if the People who have the Supreme Power may with certain knowledge for the sake of the Publick Good not only design a Servant for Praetor but in this Case by a just Election take a Servant away from his Master how much more may it be done as in the Case propounded not to make a Servant wholly a true Praetor not to take
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 Judge 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 will qualifie 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 against 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 under colour of the King's Commission 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 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 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 derelict And he cites three Cases wherein even Barelay 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 But if no Act which is ineffectual in Law will justifie the withdrawing Allegiance then none of the other 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 endeavors to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion 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 are disarm'd and the Power which was arm'd for the Protection of the English there is put into the Hands of the Native Papists so that it is not likely to be restor'd to its Settlement at home or dependence upon England without great Expence of Blood and Treasure Even the Author of Jovian owns that the King's Law is his most authoritative Command and he denies that the Roman Emperour 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 wherein the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. Tho' by the Roman Lex Regia which himself takes notice of the People had transferred all their Power to the Emperor yet we see the highest Asserter of Imperial Power allows of Reservations If says Bishop Bilson a Prince should go about to subject his Kingdom to a Foreign Realm or change the Form of the Common-wealth from Imperie to Tyranny or neglect the Laws establish'd by Common Consent of Prince and People to execute his own Pleasure in these and other Cases which might be named if the Nobles and Commons join together to defend their ancient and accustomed Liberty Regiment and Laws they may not well be accounted Rebels And soon after he speaks of a Power for preserving the Foundation Freedom and Form of their Commonwealths which they forepriz'd when they first consented to have a King. Where his meaning cannot be restrain'd to express Provisions excluding such as may be equitably intended And not to heap Authorities with this agrees the Divine Plato who after he has affirm'd that the highest Degrees of Punishment belong to those who will misguide a Ship or prescribe a dangerous new way of Physick having brought in Socrates asking whether Magistrates ought not to be subject to the like Laws himself asks What shall be determined if we require all things to be done according to a certain Form and set over the Laws themselves one either chose by the Suffrages of the People or by Lot who slighting the Laws shall for the sake of Lucre or to gratifie his Lust not knowing what is fit attempt to do things contrary to the Institution This Man both he and Socrates condemn as a greater Criminal than those which he had mention'd whose Crime he aggravates as 't is an acting against those Laws which thro' a long Experience had been ordain'd by their Counsel and Industry who had opportunely and duly weighed every thing and had prevail'd upon the People to submit to them 2d 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 1. If the King not observing his Coronation-Oath
Lords took upon him the Charge of the Kingdom as forfeited to him by breach of the Covenant establish'd in Parliament Yet this gave him no sure Settlement for the Popularity of the Earl of Warwick drove him out of the Kingdom without striking a Stroke for it Upon which H. 6. was again restor'd to his Kingly Power and Edward was in Parliament declared a Traytor to the Country and an Vsurper of the Realm the Settlement upon R. and his Heirs revok'd and the Crown entail'd upon H. 6. and his Heirs Males with Remainders over to secure against Edward's coming to the Crown Yet the Death of the Earl of Warwick having in effect put an end to King Henry's Power he was soon taken Prisoner and put to death as his Son had been before and then Edward procures a Confirmation in Parliament of the Settlement under which he enjoy'd the Crown Thus as the Power of the People or Great ones of Interest with them turn'd the Scales from time to time so 't was their Consent which fixt them at last during the the Life of E. 4. It may be said That whatever the Law or Practice has been anciently neither can now be of any moment by reason of the Oath requir'd by several Statutes 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 And 2. The Clause in the Statute 12 Car. 2. whereby it is declar'd That by the undoubted and fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament or out of Parliament nor the People Collectively or Representatively nor any other Persons whatsoever had have hath or ought to have any Coercive Power over the Persons of the Kings of this Realm I shall not here insist in answer to the first on the necessity of a Commission and a King continuing Legal in the Exercise as well as Possession of Power nor the difference between the Traiterous Acts of single Persons and the Revolt of a Nation nor yet upon the Authority of the Common Law whereby a Constable or other Officer chose by the People may act without any Authority from the King. And for the latter as Coertion is restrain'd to the Person of the King the declaring against that is not contrary to the Authorities for discharging Allegiance by a Judicial Sentence or otherwise by vertue of equitable and supposed Reservations provided a tender Regard to the Person be still observ'd But if Proceedings to free our selves from his Authority fall under this Coertion then I shall offer something which may remove both this and the other from being Objections to what I have above shewn To keep to what may equally reach to both Authorities I shall not urge here That these Statutes being barely Declaratory and enacting no Law for the future introduce none so that if the Fundamental Laws shall appear to be otherwise the Declarations do not supplant them Nor yet to insist upon a Rule in the Civil Law That the Commonwealth is always a Minor and at liberty to renounce the Obligations which it has entred into against its Benefit which is the Supreme Law. But I shall stop their Mouths who object these Statutes and maintain That according to what themselves receive for Law the Parliaments which enacted these Declarations had no power so to do and then the Law must stand as it did For this let us first hear Mr. Sheringham whose Authority few of these Men dispute They that lay the first Foundation of a Commonwealth have Authority to make Laws that cannot be alter'd by Posterity in Matters that concern the Rights both of King and People For Foundations cannot be remov'd without the Ruine and Subversion of the whole Building Wherefore admit the Acts had been duly made according to him they would be void if the Fundamental Law were as I have shewn However I am sure I can irrefragably prove to them who will not have a Nation sav'd without strict Form of Law That the Parliament which made those Acts had no Power at the time of making them being by the express Words of a former Statute repeal'd The Triennial Act 16 Car. 1. provides in a way not easily to be defeated not only for holding a Parliament once within Three Years at least but that all Parliaments which shall be Prorogu'd or Adjourn'd or so continued by Prorogation or Adjournment until the Tenth of September which shall be in the third Year next after the last Day of the last Meeting and Sitting of the foregoing Parliament shall be thenceforth clearly and absolutely dissolv'd Now say I that Parliament which enacted these Laws had sat beyond that Time Ergo c. These were made in the Parliament next after the Convention which brought in the King which they I am sure will not call a Parliament Wherefore we must go back to the first Long Parliament which upon their own Rule Rex est caput finis Parliamenti was dissolv'd by the Death of C. 1. Anno 1648. notwithstanding the Act for making it Perpetual which indeed by the Words of it seems only to provide against any Act of the King to the contrary without their Consent But by the Death of the King that Parliament lost the Being which before it had as it was under him when it was Parliamentum nostrum the Parliament of Charles the First and so expired An. 1648. by Act in Law. And perhaps it s own breaking up in Confusion before was in Law an Adjournment sine die working a Dissolution by either of which that Parliament was dissolv'd more than three Years before the Parliament which made the Statute in question which Parliament assembled An. 1661. and was ipso facto dissolv'd when it attempted to make those Statutes it having been continued by Prorogation or Adjournment beyond the Tenth of September in the Third Year after the Dissolution of the last Parliament of Charles the First which was the next foregoing Legal Parliament according to strict Form for the Parliament which brought in C. 2. Anno 1660. was not summon'd by the King's Writs consequently the Parliament 1661. having no Power after it had continued as above whatever was the Ancient Law in this Matter remains as it did before those Laws If it be Objected That the Necessity of the Times had dispens'd with the Letter of the Triennial Act as to this Particular 1. They who would plead these Statutes cannot urge it since they will not allow of greater Necessity to authorize the Maintaining and Restoring the Constitution But surely however Necessity might support other Laws it shall not such as alter the Constitution but every Legal Advantage shall be taken for restoring it 2. The Necessity was not absolute for the First Parliament of Charles the Second might continue together as long
as they could sit without Prorogation or Adjournment and be good for a day at least time enough to have repealed the former Statute as to that part and to qualifie themselves for a longer Continuance In short They with whom our Dispute is are either for the Unalterableness of Fundamentals according to which what I have shewn remains notwithstanding all Efforts to the contrary or else all of a sudden they have a mighty Zeal for the strict Letter of the Law by which that Parliament which endeavour'd to alter the Fundamental Contract was ipso facto dissolv'd before such Attempt However since the Question is not about a Coercive Power over Kings but barely concerning Allegiance to them whenever he who was King ceases to be so either by the Act of God or the Law the Obligation of Allegiance necessarily determines as the subject Matter of it fails But lest the Liberty allow'd in extraordinary Cases be us'd as a cloak for maliciousness I shall restrain it with the Authority of the Learned Pufendorf In Contracts by which one is made subject to another this has the Right of Judging what the Subject is to perform and has also a Power conferr'd of compelling him to the Performance if he refuses which Coercive Power is by no means reciprocal Wherefore he who rules cannot be called in question for breaking his Contract unless he either wholly abdicate the Care of the Government or become of an hostile mind towards his People or manifestly with evil Intention depart from those Rules of Governing upon the Observance of which as upon a Condition the Subjects have suspended their Allegiance Which is very easie for any one who Governs always to shun if he will but consider that the Highest of Mortals are not free from the Laws of Humane Chance But that the Judicial Power of the People so qualified as above is not peculiar to England might appear by the Customs of most neighbouring Nations For Denmark Swedeland and Norway which had anciently three distinct Negatives in the Choice of a King I shall refer to Krantius particularly in the remarkable Story of their King Erick who was adopted Son of the Three Kingdoms Anno 1411. he having provok'd his People by the Outrages of his Officers and Soldiers he was oppos'd with Force by one Engelbert a Danish Nobleman transmitted down to Posterity with the fair Character of engaging in the Publick Cause neither out of love of Rule nor greediness of Gain but meer compassion to an opprest People This so generous an Undertaking was so justly Popular that Eric not able to stem the Tide withdrew from Denmark the Place of his usual Residence to Swedeland But Engelbert's Noble Cause found so few Opposers there also that the King as a Pattern to J. 2. privately ran away and recommended his Nephew in his stead but they told him plainly he was made King by Adoption and had no Right to surrogate another Him there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have receiv'd again upon Terms but he refusing the Three Kingdoms unanimously chose one of another Family For the Authority of the People even in France no longer since than the time of Lewis 11. Hottoman's Francogallia gives a large Proof Nor is the Emperor of Germany more exempt for the Golden Bull of C. 4. provides who shall sit as Judge or High-Steward when he comes to be Impeach'd And by that the Palatine of the Rhine has the like Power with that which Matthew Paris says the Earl of Chester had here as Count Palatine Nor is this in the Empire founded meerly upon that Bull for the Bull it self says Sicut ex consuetudine introductum dicitur As 't is said to have been introduc'd by Custom And Freherus gives an Instance of this before that Bull in the Case of King Albert whom they threatned to depose for killing his Leige-lord Adolphus With Freherus agrees Gunterus in his Octoviratus who says That the Palatine of the Rhine Major Domo to the Emperor is by Custom Judge of the Emperor himself or rather in the highest Matters declares the Sentence of the Electoral College And he cites several Authors to prove the like Office or Power to have been in divers Kingdoms and Principalities and names France England Arragon Spain Denmark Poland Bohemia c. And for France Loyseau in effect shews this Power to have belong'd to their Maior du Palais for he owns the Power to have been greater than the Roman Praefect of the Palace had and yet he cites the Words of the Emperor Trajan giving his Praefect a naked Sword which he enjoyn'd him to use against him if he misgoverned And Loyseau says That this dangerous Office was put down by the Kings of the Third Line that they might perpetuate the Crown in their Family This Office he supposes to have been split into the Conestable's Chancellor's Treasurer's and the Grand Maistre's du France or Count du Palais which he seems to resemble to an High Steward with us And I meet with an old English Author who affirms almost such a Power as is above-mention'd to have belonged to the High-Conestable of England His Words are these As God hath 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 reck'ning and their Vices corrected and punished by the Body of the whole Congregation or Common-wealth As it is manifest by the Memory 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 3. There has been no Hereditary Right to the Crown of England by Proximity of Blood from the Fundamental Contract but the People have had a Latitude for the 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 The Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any Consequence that the Dissolution of the Contract between the immediate Prince and People destroys the Form of Government for that depends upon a prior Contract which the People entred into among themselves And that by vertue of this to avoid endless Emulations Kings have generally from the first Erection of the English Monarchy been chosen out of the same Family appears beyond contradiction I know some talk of a Birthright and Inheritance in the Crown which is not founded in the Statutes but on the Original Custom and Constitution of the English Government which is an Hereditary Monarchy according to proximity of Blood. But I would
Right The Lords and Commons having a Judicial Power in this Matter as hath been prov'd at large their Exercise of this Power in the nature of the thing determines the Right unless an Appeal lies from them to some higher Court in this Nation But that no Power can legally question them or any of them in this Matter appears more particularly in that there is no Statute now in force nor was since the Death of Car. 2. which makes it Treason to conspire to Depose a King or actually to Depose him But this is of the Nature of those common-Common-Law Treasons which are left to the Judgment of Parliament And they who are the only Judges of their own Actions have a pretty large Liberty in them especially according to them who would infer the Absolute Power of Princes from the Supposition of no constituted Judges of their Actions Wherefore the Defence of their Proceedings might justly seem to be superseded were it not for an ungovernable sort of Men who either cannot or will not judge according to the Rules of right Reasoning but as they will hardly admit of any Doctrine as true for which they have not the Decision of some Father or Council will believe no Action not proceeding from their imperious Dictates justifiable even in Cases of the utmost necessity for the Preservation of the true Religion and just Laws for which they have no Warrant from the Examples of their Forefathers or Opinions of Men whose Books have past with their Allowance Which often drives me to the seeming Pedantry of Quotations to confirm the most obvious Considerations to which my own Thoughts led me The either open or more covert Matters of Fact inducing the Declaration of Lords and Commons That J. 2. has broken the Original Contract I need not now enquire into All People must own that 〈◊〉 if they in the least attend to the Constitution of our Governmeâ—â— and how apparently he by his general Dispensations usurp'd a Legislative Power for the Destruction of the Protestant Religion and Civil Rights which we were in a fair way of being Dragoon'd out of by a Standing Army by degrees to have been wholly under Popish or Complying Officers Yet if there were no more than his leaving the Kingdom without making any Provision for keeping up the Justice of it and going into France a Country from whence all Mischiefs have of late Years flow'd upon us and our Religion Who can deny but this alone would have been enough to set him aside The going out of the Realm without appointing a Custos was anciently in our Law a Discontinuance of Justice And the Lord Hobart gives it as a Maxim Cessa regnare si non vis judicare Cease to Reign if you will not Judge or maintain the Course of Justice Many I know upon these Questions rather regard the Civil Law and that I am sure gives a home-thrust in the Case of deserting one's Country and going into such an one as France is to our Nation tho' it has been in too strict Alliance with our Kings The Digests say A Deserter has no Right of being restor'd to his Country For he who left his Country with an evil and treacherous Mind is to be held as an Enemy c. But we are to take not only him for a Deserter who runs over to Enemies in time of War but also during a Truce Or who runs over to them with whom there is no Amity either after undertaking to be faithful to his Country or else undertaking to be faithful to the other Either of which Senses the Words will bear 'T is likely to be said That this out of the Civil Law is improperly applied to the Prince who according to that is exempt from all Laws But I would desire such to read the Rescript or Law of Theodosius and Valentinian wherein they thus declare 'T is an Expression suitatable to the Dignity of one that Reigns to profess himself bound by the Laws Our own Authority does so depend upon the Authority of Law. And in truth for the Governing Power to submit to Law is greater than Empire And by the Promulgation of this present Edict we make known to others what we will not allow to our selves That J. 2. had before his Departure broken the Fundamental Laws and that now he not only ceases to Protect but is in a Kingdom which foments and strengthens a Rebellion in Ireland part of the Dominions belonging to the English Crown I think no body will deny Nor till they can answer what I have shewn of the mutual Contract continued down from the first Erection of the Monarchy here ought they to deny that he has thereby broken the Original Contract which bound the People to him and him to them What results from this Breach is now more particularly to be considered That it is a Discharge from all Allegiance to him requir'd by any Law and confirm'd by any Oaths is evident not only from the former Authorities but from the Condition going along with such a mutual Contract as I have prov'd to be with us between Prince and People Or rather to use the Words of the Learned Pufendorf The Obligation is not so much dissolv'd as broken off by the Perfidiousness of either Party For when one does not perform that which was agreed on neither is the other bound to performance For the prior Heads of things to be perform'd in Contracts are in the Subsequent by way of Condition As if it should be said I will perform if you perform first This he more fully explains in another Book where he distinguishes between an Obligation imperfectly mutual as he supposes it to be between an Absolute Prince and his Subjects and one perfectly mutual as he takes it to be where the People have conferr'd a Power on any Terms Of such Obligations he says These since they have a mutual respect to the things agreed on and suppose mutual Faith it is evident that if one Party violate the Faith which he plighted the other is no more bound And therefore he is not perfidious who stands not to those Contracts which the other has broken For all the Heads of one and the same Contract run into each other by way of Condition c. And in that Book of his which is counted the Standard of the Law of Nations he asserts it to be lawful for Subjects to oppose their Prince by Force which is a sufficient departure from Allegiance if he goes about modum habendi potestatem immutare i. e. to change that Manner in which he by the Contract enjoys the Power from less to more Absolute And in his Tract de Interregnis cited above he allows of this If the King abdicate all Care of the Commonwealth becomes of an hostile Mind towards his Subjects or manifestly departs from those Rules of Governing upon the Observance of which as upon a Condition the
That alone will not authorise Endeavors to this End unless it can be done without Injustice to any For otherwise we should make God the Author of those Sins of Men which have often been foretold But in order to satisfie those who question what is their Duty at this time either for Acting or Acquiescing I shall shew that we have been Grateful without being Unjust and may chearfully act under the present Government in sure and certain hope that those great Things which are already come to pass according to plain Predictions are the happy Omens and Earnests of greater yet to come being equally promis'd For which end I shall consider 1. Whether we may not by comparing the following Predictions reasonably conclude That as the Crown of England has been destin'd for the late Prince of Orange the better to qualifie him for the executing God's Purposes for the Benefit of Mankind so it has been long since foretold 2. Whether the People of England have not a rightful Power to contribute towards their Accomplishment 4. Whether that Power has not been duly exercis'd in the present Assembly of Lords and Commons Many I know despise Prophesies and laugh at the Observers of those Hand-writings from above and others tho' they own that some Beams of Divine Light had visited the dark Ages of the World before the Sun of Righteousness appeared and that they were more frequent during its abode upon Earth and for the two or three first Centuries after Yet they will have it that ever since God has kept his Foreknowledge to himself without communicating any Notices of it to Mankind Be their Opinions as it will 't is not unlikely that many who have been doubtful what Course to steer in their Endeavours for the Publick will attend to these Divine Admonitions But that Nostredamus either thro' Judicial Astrology or Divine Inspiration or both as himself professes did foretel many things which have come to pass must not be denied by any body who reads him as where he says That the Senate of London that is the Parliament of England or those of it who usurp'd its Name should put to Death their King That London should be burnt in Thrice twenty and six that is Sixty six and that the Plague should not cease till the Fire Where according to what himself observes of some of his Predictions he limits the Place Times and prefixed Terms that Men coming after may see and know that those Accidents have come to pass as he marked What he says of the Bastard of England's being half receiv'd is not more obscure or less verified Nor does there seem a greater Veil upon what he says of the West's freeing England where he in very lively Characters represents the Event of the first and second Attempt there And as we find those things to have fallen out accordingly we have great ground to believe that what he speaks of his native Country France was from a certain Foresight Who can with-hold his Belief from all those Particulars in relation to it which he speaks not in the least mysteriously Or can any one doubt but that this present Juncture bodes it those Ills which he threatens The Fleet in the West and the great Appearance there with His Majesty's stupendious Progress not without cause made the French King think Danger approaching by Blay Nor can it be a question who is meant by the Chief of the British Isle or the Great Aemathien who is to lead the English to Glorious Enterprises Can it be other than the Celtique that is Belgick Prince of Trojan that is English Blood of a German Heart married to one of Trojan Blood and in safe Alliance with the Spaniard I will not be positive that a King's danger of drinking the Juyce of Orange unless he yield to an Accommodation must necessarily be intended of the late King and this tho' I am very confident no time can be shewn when this could be so properly applied I cannot but think that Nostredamus has foretold the Fate of James the Second the Question for the Kingdom between this Prince and the reputed brother-in-Brother-in-Law the carrying the Babe into France the Father 's not being able to make good the Title of his Blood and this Sham's being the occasion of the late Prince's accepting the Crown And who can doubt but this King is that Native of Friezland as one Part of a Country may be taken for the Whole or other Part of the Whole to be cbosen here upon another's having Death given him drop by drop by the Guards Nor can it be denied that J. 2. has received his Deaths-wounds or occasion of a lingring Death in a great measure from his own Guards Nor is the Crown more plainly foretold to His Majesty from an Election than it is to His Royal Consort by way of Succession which are both exactly fulfill'd in that happy Partnership in Dignity while the Regal Power is kept entire to accompany the Marital In two Particulars I have taken a Liberty with Nostredamus which I cannot but think allowable 1. Where his Words admit of different Senses if I have not left them in aequilibrio equally applicable to either I have determin'd them to that which best agrees with Events For if he has truly foretold any thing without ambiguity we are to believe that in others he or the Spirit which dictated to him intended what has fallen out if the Words will bear it 2. Whereas the Stanzas of his Predictions are scatter'd up and down like so many Sybilline Leaves I have gather'd and sorted them together according to past Occurrences or that relation to the future which they seem to bear and certain it is that God's Holy Spirit foresaw all things in their true Order I must own that the like Persons and Actions may come upon the Stage more than once wherefore of many every body is left to his own Conjecture but in others the Parallel is so exact between Nostredamus his Descriptions and what has come to pass in the whole or in part that where a Connection of Events seems to be pointed at 't will be as difficult not to entertain warm Expectations of the Accomplishment of the Whole as to deny that Part is fufilled And many Personal Characters tho' given in distant Stanzas have that mutual Resemblance that they look like several Parts or Lineaments at least of the same Face and may without blame be drawn together Grebner seems rather to give an Account of what he had liv'd to see than to foretel what lay in the Womb of Time Who can deny but that he pointed at the Misfortunes of Charles the First with the Occasion of them the Generalship of the Earl of Essex then of Sir Thomas Fairfax And it is not improbable that the Nullus coming next might be Nol. Nor can it be a question but the late Prince of Orange
in the main lose the Name of King then no Man can say that Allegiance continues But that so it was before the reputed Conquest appears by the Confessor's Laws where they declare the Duty of the King. But the King because he is Vicar to the Supreme King is constituted to this end that he should rule his earthly Kingdom and the People of God and above all should reverence God's Holy Church and defend it from injurious Persons and pluck from it Wrong-doers and destroy and wholly ruine them which unless he does not so much as the Name of King will remain in him c. Hoveden shews how this was receiv'd by William 1. The King and his Deputy or Locum tenens in his absence is constituted to this end c. in substance as above Which unless he does the true Name of King will not remain in him And as the Confessor's Laws have it in which there is some mistake in the Transcriber of Hoveden otherwise agreeing with them Pope John witnesses That he loses the Name of King who does not what belongs to a King which is no Evidence that this Doctrine is deriv'd from the Pope of Rome The Pope only confirms the Constitution or gives his Approbation of it perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right And to shew that this is not only for violating the Rights of the Church the Confessor's Laws inform us that Pipin and Charles his Son not yet Kings but Princes under the French King foolishly wrote to the Pope asking him if the Kings of France ought to remain content with the bare Name of King By whom it was answer'd They are to be called Kings who watch over defend and rule God's Church and his People c. Hoveden's Transcriber gives the same in substance but thro' a miserable mistake in Chronology will have it that the Letter was wrote by Pipin and his Son to W. 1. Lambart's Version of St. Edward's Laws goes on to Particulars among others That the King is to keep without diminution all the Lands Honours Dignities Rights and Liberties of the Crown That he is to do all things in his Kingdom according to Law and by the Judgment of the Proceres or Barons of the Realm and these things he is to swear before he is Crown'd By the Coronation-Oaths before the reputed Conquest and since all agreeing in Substance every King was to promise the People three things 1. That God's Church and all the People in the Kingdom shall enjoy true Peace 2. That he will forbid Rapine and all Injustice in all Orders of Men. 3. That he will promise and command Justice and Mercy in all Judgments And 't is observable That Bracton who wrote in the time of H. 3. transcribes that very Formulary or rather Abridgment of the Oath which was taken by the Saxon Kings In Bracton's time 't is certain the Oath was more explicit tho' reducible to those Heads and 't is observable that Bracton says The King is Created and Elected to this end that he should do Justice to all Where he manifestly shews the King's Oath to be his part of a binding Contract it being an Agreement with the People while they had power to chuse With Bracton agrees Fleta and both inform us that in their days there was no scruple in calling him a Tyrant and no King who oppresses his People violatâ dominatione as one has it or violentâ as the other either the Rule of Government being violated or with a violent Government both of which are of the like import The Mirrour at least puts this Contract out of dispute shewing the very Institution of the Monarchy before a Right was vested in any single Family or Person When forty Princes who had the Supreme Power here chose from among them a King to Reign over them and govern the People of God and to maintain the holy Christian Faith and to defend their Persons and Goods in quiet by the Rules of Right And at the beginning they caused the King to swear That he will maintain the holy Christian Faith with all his Power and will rule his People justly without regard to any Person and shall be obedient to suffer Right or Justice as well as others his Subjects And what that Right and Justice was in the last result the Confessor's Laws explain when they shew that he may lose the Name of King. These Laws were not only receiv'd by William 1. and in the Codex of the Laws of H. 1. but were the Laws which in the early Contests which the Barons had with their encroaching Kings they always urg'd to have maintain'd and that their Sanction might not be question'd the Observance of them was made part of the Coronation-Oath till some Archbishops careful only of their Clerical Rights provided for no more of those Laws than concerned them By that Oath which is upon Record and in ancient Prints the King is to swear to grant keep and confirm among others especially the Laws Customs and Freedoms granted the Clergy and People by the most glorious and holy King Edward And even after the King 's taking this Oath they were to be ask'd if they would consent to have him their King and Leige-lord Which is the Peoples part of the Contract and thus the Contract becomes mutual To which purpose the Learned Sir Henry Spelman cites Cujacius the great Civilian to shew that Faith between a Lord and Vassal is reciprocal and gives an Instance in the Oath of one of our Saxon Kings Knute for the proof of its being so here between King and Subject And with Cujacius agrees the no less judicious Civilian Pufendorf When says he the Power is conferr'd upon a King there is a mutual Translation of Right and a reciprocal Promise If it be objected That tho' this was at the beginning a Contract with a Free People it ceas'd to be so from the time of the Conquest I answer 1. Till there be a Consent and Agreement to some Terms of Governing and Subjection 't will be difficult if possible to prove any Right in the Conqueror but what may be cast off as soon as there is an Opportunity 2. William 1. was not receiv'd as a Conqueror but upon a mutual Contract upon which old Historians say Foedus pepigit He made a League with the People which comes to the same thing with what the Holy Writ records of King David That the People made a League with him His Coronation-Oath was the same with that which was taken by his Saxon Predecessors except that the Circumstances of that time requir'd an additional Clause for keeping an equal Hand between English and French. 'T is not to be doubted but that the Norman Casuists inform'd him that this related only to Legal Justice but that in Matters of Grace and Favour he
was left at large How much soever he might have strain'd in this or other Matters I am sure he was far from acting so arbitrarily as some have industriously represented him I will not say on purpose to encourage such Actions in other Princes And it is yet more certain that whatever Right either he or any body under him enjoy'd came from the Compact not from the Breach of Faith. 3. If William 1. did gain the Right of a Conqueror it was Personal and he never exacted this for his Heirs as appears not only by his Declaration when he came to die but by the Fealty or Oath of Allegiance which he required in his Laws The King's Oath is the real Contract on his side and his accepting the Government as a legal King the virtual one and so it is vice versâ in relation to the Allegiance due from the Subject Thus far the Author of Jovian is in the right As in the Oath of Allegiance the People swear nothing to the King but what they are bound to perform unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound â—o perform unsworn Upon which account I will yield to Saravias That in Hereditary Kingdoms the Coronation-Oath confers no new Right and therefore there may be a King before his Coronation Yet we must attend to Grotius his Rule who rightly observes That Succession is only a Continuance of that Power which the Predecessor had So that if the first Possessor comes into Power qualified by express Contract this binds the Successor and he is to be thought to come in upon those Terms The Description which Samuel made of the exorbitant Power of Kings was rather to terrifie them from pursuing their foolish Demand than to constitute such a Prerogative as the King should use whom God would appoint to go in and out before them Which methinks is very manifest in that the worst of Kings that ever reigned among them never challeng'd or assum'd those Prerogatives nor did the People conceive themselves liable to those Impositions as appears by the Application they made to Rehoboam on the Death of Solomon That he would abate some of that Rigour his Father had exercis'd toward them the rash rejection of which contrary to the Advice of his wisest Counsellors cost him the greater part of his Dominions and when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself One of the Terms as appears by the Mirrour was That the King should suffer Right or Justice as well as his Subjects And St. Edward's Sword called the Curtein carried before our Kings at their Coronations was in the time of H. 3. a known Emblem and Remembrancer of this But surely whoever us'd that or a Judicial Power in such Cases as above how much soever they continued their Allegiance to the King's Authority could not be said to retain it to his Person 2. There was and is an establish'd Judicature for the great Case in question as is imply'd by St. Edward's Laws which suppose some Judge or Judges in the Case and investing the Proceres with the Supreme Judicature with-holds not this from them However 't is certain the Parliament 9 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice whereby if the King thro' a foolish Obstinacy contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and the Statutes and laudable Ordinances made by the Council of the Lords and the Peers of the Realm but shall headily in his mad Counsels exercise his own arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and rased to the great prejudice of the People and disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance The Mirror tells us That of right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was wrote before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho' Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from him seems to correct the Copy and has it si parcat If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains when he says That no Justices or private Persons may dispute of the King's Charters and Acts but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King act without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not to be adjudg'd so by Judges Commissaries or Commission'd Judges which the Mirror uses in contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least
interfere with the Judicial Power of the High Court of Parliament and it may be a question whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of False Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions was expell'd the Kingdom and Bromton shews that this was done in a Judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and divested of his Soveraignty by the Counsel and Consent of all his Subjects Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities but then they renounc'd the Allegiance sworn to King Edmund and chose Aulaf King of Norway for their King. Aulaf had not reigned six Years when they drove him away and tho' they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects and that if he did not answer the Ends for which he had been chosen he was to lose the Name of King. Either these Examples or rather the continual Engagements in War with Foreigners had such effect that from this time to the Entrance of W. 1. excepting the Case of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957. I find nothing of the like nature A King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender usage of his People their extraordinary Power had slept but for few Years after the Death of the reputed Conqueror till the time of King Stephen the third Successor from W. 1. who after Allegiance sworn to him had it a while withdrawn for Maud the Empress but the People soon return'd to it again rejecting her who was nighest in Blood because she denied them the Benefit of St. Edward's Laws This Power of the People to be sure was rous'd by the extravagant Proceedings of King John upon which the Earls and Barons of England without the Formality of Summons from the King give one another notice of meeting and after a long private Debate they agreed to wage War against him and renounce his Allegiance if he would not confirm their Liberties and agreed upon another Meeting for a peremptory Demand declaring That if he then refus'd them they would compel him to Satisfaction by taking his Castles Nor were they worse than their words and their Resolutions had for a while their desir'd Effect in obtaining a Confirmation of their Liberties but the Pope soon absolv'd the King and encourag'd him to the violation of them till they stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France But the Dauphin assuming a Power not brook'd in the English Government upon the Death of King John they set up his Son H. 3. and without any solemn Deposing of Lewis compell'd him to renounce his Pretensions Henry treading in his Father's steps had many unhappy Contests with his Barons and having call'd in numbers of Foreigners they sent him a solemn Message That unless he would remove those troublesom Guests they would all by a Common Council of the whole Realm drive him and his wicked Counsellors out of the Kingdom and would consider of making a new King. Upon this both Sides had recourse to Arms and neither valued the others Judicial Sentence but for certain the Sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally depos'd in Parliament for his Misgovernment whose Case with his next Successor's but one R. 2. by what I have observ'd before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once H. 6. being a weak misled Prince gave occasion to Richard Duke of York whose Line was put by to cover his Designs for restoring the elder Family with the Pretence of Redressing Publick Grievances The Crown he was so far from pretending to at first that himself swore Allegiance to H. 6. in a very particular manner But having afterwards an Advantage given by the Divisions of them who had driven him out of the Land he in a fortunate Hour with lucky Omens as was believ'd challeng'd the Crown as his Right upon which there was an Agreement ratified in Parliament That H. 6. should enjoy it during his Life and R. and his Heirs after him And tho' Richard Duke of York and his Son Edward afterwards E. 4. had sworn That H. 6. should enjoy the Royal Dignity during Life without trouble from them or either of them yet Richard having been treacherously slain by the Queen's Army immediately after the solemn Pacification Edward at the Petition of some of the Bishops and Temporal
Judges in B. R. in the time of Q. Eliz. on my side King R. 3. had granted certain Priviledges to the Burgesses of Glocester with a Saving to himself and his Heirs and it was agreed by all the Justices That altho' the Words are Saving to himself and his Heirs it shall be taken for a perpetual Saving which shall go to his Successors This therefore they adjudg'd to reach the Queen who 't is well known was not Heir to R. 3. The great Objection is That in the Contests for the Crown between the Families of York and Lancaster each Side pretended Title by Proximity of Blood and as either prevail'd their Right was acknowledg'd to be according to God's Law Man's Law and the Law of Nature To which I answer As appears in the very Objection this was apply'd to those who had no such Right of Proximity as well as those who had and thus 't was to R. 3. as well as to E. 4. And even the Election of H. 4. after the Deposing and Relinquishing of R. 2. with his own express Consent is by the same Parliament that says so much of the Title of E. 4. called an Usurpation upon R. 2. Wherefore if this Record be any way leading to our Judgments no Deposing or Resignation whatever be the Inducement can be of any force Whence 't is plain that all these are but Complements to the longest Sword however they neither set aside former Authorities nor establish any Right for the future at least not more for the Heirs of E. 4. than the Parliament of R. 3. did for his Heirs Yet whoever comes next by Right of Proximity according to any Settlement in being I will not deny that they enjoy the Crown according to God's Law Man's Law and the Law of Nature for as the Great Fortescue has it All Laws publish'd by Men have their Authority from God and upon which the Author of Jovian argues and supposes all Laws of Men to be the Laws and Ordinances of God Yet who can say but these Humane Creatures or Ordinances of Men may be altered as they were made And tho' it may seem strange to some yet I may with great Authority affirm That when the People had determin'd the Right on the Side of R. 3. he was King as much according to God's Law as E. 4. For Pufendorf holds That where the Question is what Degree or what Line is best the declared Will of the People determines the Controversie since every one is presum'd to understand his own Intention and the People that is now is to be thought the same with that by which the Order of Succession was constituted But let Men argue as nicely as they please for a Right or Sovereignty inseparable from the Person of the next in Blood to the last lawful King let this fall upon J. 2. the reputed Prince of Wales or any other Person of unclouded Birth and Fame and let them argue upon the Declaration 1 E. 4. That Allegiance is there due by God's Law Man's Law and the Law of Nature Certain it is that the Statute 11 H. 7. above-mention'd was not only made in an Age of greater Light but being a subsequent Law derogates from whatever is contrary in the former By this last it is declared to be against all Laws That Subjects should suffer for doing true Duty and Service of Allegiance to the King de facto which is as much as if 't were exprest to be against God's Law Man's Law and the Law of Nature By the necessary Consequence of which Allegiance is due to a King de facto according to all these Laws Wherefore whoever denies Allegiance to King William and Queen Mary or maintains a contrary one to J. 2. offends against God's Law Man's Law and the Law of Nature Nor whatever some imagine can the Proviso at the end of this Statute in the least impair its Force as to what I use it for The Proviso runs thus Provided always That no Person or Persons shall take any Benefit or Advantage by this Act which shall hereafter decline from his or their said Allegiance Where said Allegiance shews it to be meant of Allegiance to the King de facto whose Service is called true Duty and no Man surely can think the meaning to be that if after such Service they turn to the other Side or become Traytors to the present Power they shall suffer for the former Service as Traytors against him that had the Right either during the Reign of the King in being which would be an unlikely owning the ejected Power or hereafter if that should come to be restor'd which would be far from answering the apparent End of that Clause which is to keep Men in Obedience to him who has the Power of punishing the Disobedient Wherefore the plain meaning must be that no Man who departs from his Duty of Allegiance to the present King shall save himself by pleading that he had been in Arms or had done him any signal Service In short this was to be no Corban to answer for any following Departure from Duty 4. I think I have with due regard to all colourable Objections made it appear That Allegiance may in some Cases be withdrawn from one who had been King till the occasion of such Withdrawing or Judgment upon it And this I have done not only from the Equity and reserved Cases necessarily implied but from the express Original and continuing Contract between Prince and People which with the Legal Judicature impowred to determine concerning it I have likewise shewn and exemplified by the Custom of the Kingdom both before the reputed Conquest and since And have occasionally proved That tho' Oaths of Allegiance may reach to Heirs according to special Limitations as was 26 Hen. 8. yet in common intendment by Heirs of a King or Crown no more is meant than such as succeed to it according to the Law positive or implied And that whoever comes to the Crown upon either Allegiance is as much due to him by the Law of God and Nature as it was to the nighest in Blood Or to use the Words of Bishop Sanderson Dignity varies not with the change of Persons Whence if any Subject or Soldier swear Fidelity to his King or General the Oath is to be meant to be made unto them also who succeed to that Dignity And when the Crown continues in the Blood this especially by what I have above shewn puts the Obligation of Allegiance to the King in being out of controversie unless it can be made appear that the Right of the former King remains or that there is some Settlement of the Crown yet in force which ties it strictly to the next I come now to prove That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restored to that Latitude of Choice which I have shewn to be their Original
Judgment of two Parliaments the Realm was destitute of a Lawful Governour Indeed according to the Act of Recognition 1 J. 1. the Crown came to him being lineally rightfully and lawfully descended of the Body of the most Excellent Lady Margaret the eldest Daughter of the most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife eldest Daughter of King Edward the Fourth The said Lady Margaret being eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England Tho' this pompous Pedigree to avoid all Objections goes as high as E. 4. the Derivation of Title as appears above can be no higher than from the Settlement 1 H. 7. Nor does this Act 1 J. make any additional Provision but indeed seems to flatter the King into a Belief that there was no need of any telling him That they made that Recognition as the First-fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever But neither then or ever after till that in this present Parliament did the People make any Settlement of the Crown but it continued upon the same Foot as it did 1 H. 7. when it was entirely an Act of the People under no Obligation but from their own Wills. And if we should use Sir Robert Filmer's Authority Impossible it is in Nature for Men to give a Law unto themselves no more than it is to command a Mans self in a Matter depending of his own Will. There can be no Obligation which taketh State from the meer Will of him that promises the same Wherefore to apply this Rule Since the People that is now in common presumption is the same with that which first settled the Succession and so are bound only by an Act of their own Will they have yet as arbitrary a Power in this Matter as Sir Robert and his Followers contend that the Prince has whatever Promises or Agreements he has entred into But not to lean upon such a broken Reed nor yet to make those many Inferences which this plain State of the Settlements of the Crown might afford Three things I shall observe 1. If the Settlement made 1 H. 7. who was an Usurper according to the Notion of Dr. Brady and his Set of Men was of no force then there being no Remainders since limited by any Act but what are spent of necessity the People must have had Power of Chusing or there could have been no lawful Government since Queen Elizabeth's time when was the last Settlement except what is now made 2. The Declarations of two Parliaments 28 and 35 H. 8. fully ballance the Declaration 1 Jac. 1. if they do not turn the Scales considering that the Judges in the later Times seem to have had less Law or Integrity than they had in H. the Eighth's I will not take upon me to determine which was the Point of Two that they might go upon 1. That a Government shall not pass by Implication or by reason of a dormant Remainder But there having been so many Alterations since the Settlement 1 H. 7. and the whole Fee once disposed of nor ever any express Restitution of the Settlement 1 H. 7. the People were not to think themselves obliged to a Retrospect 'T is evident at least that they did not Or 2. Perhaps they might question whether they were oblig'd to receive for Kings the Issue of Foreign Princes since there was no means of being sufficiently inform'd of the Circumstances of the Birth neither the Common or any statute-Statute-Law affording any Means of proving it as appears by the Statute 25 E. 3. which for the Children of Subjects only born out of the King's Allegiance in Cases wherein the Bishop has Conusance allows of a Certificate from the Bishop of the Place where the Land in question lies if the Mother pass'd the Seas by the King's License But if our Kings or Queens should upon any occasion be in Foreign Parts 't is to be presum'd that they would have with them a Retinue subject to our Laws who might attest the Birth of their Children and be punish'd if they swear flalsly Wherefore 25 E. 3. 't is declar'd to be the Law of the Crown That the Children of the Kings of England ENFANTZ DES ROYS as the Record has it in whatever Parts they be born be able and ought to bear the Inheritance after the Death of their Ancestors Yet this is most likely to be meant of those private Inheritances which any of the Kings had being no part of the Demeasns of the Crown since the Inheritance of the Crown was not mentioned nor as has been shewn was it such as the King's Children were absolutely entitled to in their Order The most common acceptation of Children is of a Man's immediate Issue As where Land is given to a Man and his Children who can think any remote Descendants entitled to it Nor could it extend farther in the Settlement of a Crown 37 E. 3. c. 10. a Sumptuary Law was made providing for the Habits of Men according to their Ranks and of their Wives and Children ENFANTZ as in the former Statute of the same Reign Now altho' this should extend to Childrens Children born in the same House it could never take-in the Children of Daughters forisfamiliated by Marriage nay nor those of such Sons as were educated in a distinct Calling from their Parents Farther the very Statute of which the Question is cuts off the Descendants from Females out of the number of a King's Children when among other Children not of the Royal Family it makes a particular Provision for Henry Son of John Beaumond who had been born beyond Sea and yet Henry was by the Mothers Side in the Fourth Degree from H. 3. for she was Daughter to Henry Earl of Lancaster Son of Edmund Son to H. 3. Had this Henry been counted among the Children of a King 't is certain there had not been a special Clause for him among other Children of Subjects Nor does the Civil Law differ from ours in this Matter for tho' under the name of Children are comprehended not only those who are in our Power but all who are in their own either of the Female Sex or descending from Females yet the Daughter's Children were always look'd on as out of the Grandfather's Family according to the Rule in Civil Law transcribed by our Bracton They who are born of your Daughter are not in your power And Privileges derogating from Publick Vtility were never thought to reach them as a Learned Civilian has it A Daughter is the End of the Family in which she was born because the Name of her Father's Family is not propagated by her And Cujacius makes this difference between Liberi and Liberi sui sui he says is a Legal Name the other Natural The former are only they who are in a Man's
Power or of his Family and Liberi strictly taken he will have to go no farther But in truth considering the Purview of the Statute which we are here upon Children in it seems to be restrain'd to Sons and Daughters without taking in the Descendants from either the Occasion of the Law being the Births of several ENFANTZ in Foreign Parts which could be but Sons or Daughters to the immediate Parents whether Kings or Private Persons 4. But however this may be enough for my purpose that there is no colour of any Settlement in force but that 1 H. 7. and admitting that to have continued till J. 2. had broken the Original Contract yet that being broken the present Assembly of Lords and Commons had full as much Authority to declare for King WILLIAM and Queen MARY as the Parliament 1 H. 7. had to settle the Crown For H. 7. could give them no Power but what he had received immediately from them Nor is it material to say He was Crown'd first since as I have shewn the Crown confers no Power distinct from what is deriv'd either from an immediate or prior Choice 3d. The Power having upon the Dissolution of the Contract between J. 2. and his former Subjects return'd to the People of Legal Interests in the Government according to the Constitution there can be no doubt with unbyass'd 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 Supreme Power But there are two Extremes opposite the to 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 Supreme 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 strict Application of the Statute above-mentioned 16 Car. 1. nay the Attempt of Repealing that Statute being in a Parliament which had been actually dissolv'd 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 Others suppose the Consequence of a Dissolution of this Contract to be a meer Commonwealth or absolute Anarchy wherein every body has an equal Share in the Government not only Landed Men and others with whom the Ballance of the Power has rested by the Constitution but Copy-holders Servants and the very Foeces Romuli which would not only make a quiet Election impracticable but bring in a deplorable Confusion But this Dilemma they think not to be answer'd Either the old Form as under a Monarch remains or it does not If it does the late Action of the Lords and Commons was irregular If it does not all the People are restor'd to their Original Rights and all the Laws which fetter'd them are gone Here we must distinguish upon the word Form for if it be taken of the Form of Proceedings or Administration 't is no Consequence that the Form of Government or Constitution should fail because we admit that the other does Mr. Hobbs indeed holds That when a Monarch for himself and his Children has left a Kingdom or renounces it the Subjects return to their absolute and natural Liberty Whom the Learned Pufendorf thus answers They who have once come together into a Civil Society and subjected themselves to a King since they have made that the Seat of their Fortunes cannot be presum'd to have been so slothful as to be willing to have their new Civil Society extinct upon the Death of a King and to return to their Natural State and Anarchy to the hazarding the Safety now settled Wherefore when the Power has not been conferr'd on a King by Right of Inheritance or that he may dispose of the Succession at pleasure it is to be understood to be at least tacitly agreed among them That presently upon the Death of a King they shall meet together and that in the Place where the King fix'd his Dwelling Nor can there well be wanting among any People some Persons of Eminence who for a while may keep the others in order and cause them as soon as may be to consult the Publick Good. The Author of a late Paper in relation to these Times has this Passage not to be neglected All Power is originally or fundamentally in the People formally in the Parliament which is one Corporation made up of three constituent essentiating Parts King Lords and Commons so it was with us in England When this Corporation is broken when any one essentiating Part is lost or gone there is a Dissolution of the Corporation the formal Seat of Power and that Power devolves on the People When it is impossible to have a Parliament the Power returns to them with whom it was originally Is it possible to have a Parliament It is not possible the Government therefore is dissolv'd Hence he would argue a necessity of having a larger Representative of the People that the Convention may be truly National But had this Ingenious Person observ'd Pufendorf's two distinct Contracts by the first of which a Provision was made for a Monarchy before any particular Person was settled in the Throne he would have found no such necessity But if immemorially the People of England have been represented as they were for this Assembly and no needful Form or Circumstance has been wanting to make the Representation compleat all Men who impartially weigh the former Proofs of Elections not without a righful Power must needs think the last duely made Dr. Brady indeed with some few that led him the Dance and others that follow will have the present Representation of the Commons of England to have been occasion'd by Rebellion 49 H. 3. But I must do him the Honour to own him to be the first who would make the Barons to have no Personal Right but what depends upon a King in being for he allows none to have Right of coming to Parliament but such only to whom the King has thought fit to direct Writs of Summons Yet I dare say no Man of sense who has read that Controversie believes him But were his Assertion true it might be granted that the Barons would have no more Personal Right to be of any Convention upon the total Absence or Abdication
Warriors bold Their Force not by the Guard to be controll'd Burdeaux Roan Rochel joyning all their Force Upon the spacious Ocean take their Course The English-Britans and the Flemings joyn'd Shall chase them up to Roan as Clouds with Wind. From farthest Westward of the English Soil Where is the Chief of the brave British Isle A Fleet into the Garonne comes by Blay France to hide Fire in Barrels shall essay Th' English shall pass by Rochel into Blay The Great Aemathien leading them the Way Not far from Agen he the French shall meet The Help from Narboun fails them by deceipt Th' Aemathien o're the Pyrenaeans goes Narboun in War dares not his Way oppose By Sea and Land he with such Pow'r shall ride The Cap shall want a Place where to abide Near Nancy a most bloody Conflict see Th' Aemathien says All shall submit to Me. The British Isle by Salt and Wine in doubt But Mets shan't long be able to hold out A quick Translation of the Empire see In a small Place the lofty Seat shall be A Place inferior of but mean Account Into the middle shall its Scepter mount England of Pow'r shall be the glorious Seat More than Three hundred Years continuing Great Large Forces thence shall pass through Land and Seas To the disquiet of the Portugees Thames Garone Rochel all engag'd in War Oh Trojan-Blood your Arrows fatal are The Scaling-Ladders shall the Fortress reach Fire on the Bridge and Slaughter in the Breach Roman High-Priest Take heed how you come nigh The City which two Rivers do supply The Blood of you and yours shall freely flow There in the Season when the Roses blow Great Changes France betide in luckless Hour In a strange Place shall be the Seat of Pow'r Quite diff'rent Laws and Manners it must take Part of its Mis'ry Roan and Chartres make When the Great Monarch bears away the Prize From those of Ausburgh and their firm Allies Cologne the Chief of Frankfort shall retake Their Way thro' Flanders into France they 'll make Tall Horse-men from the Celtique Gall shall ride With Men of divers Nations on their side Th' Agent for †Aquitain they will confine To make him pliable to their Design The River which does the young Celtique prove Shall in the Empire mighty Discord move For the young Prince the Clergy shall declare He takes the Scepter and the Crown shall wear The Celtique River shall new Channel take Cologne its Out-bound shall no longer make Except the Ancient Language all is new Saturn Mars Leo Cancer Spoils pursue Great Disappointments shall the Frenchmen find Their vain light Hearts puff't up with empty Wind Salt Wine and Bread Water and Beer shall fail The Great one cold and famish't in a Gaol The Blood of Churchmen shall be largely shed And like a mighty River it shall spread Long shall it be before the Slaughter ends Wo to the Clerk Ruine and Grief attends They 'd have the King by Force his Game retreive His Nephew since the Citizens receive son-in- The Pris'ner now to talk and act is free The King without keeps far from th' Enemy The King o' th' Isles shall be driv'n out by force For not consenting unto a Divorce From what 's soon own'd unfitting to have been One without Mark of King in 's Place is seen Such Expectation never shall be known In Europe rais'd Asia the Sight shall own One of the League of the Great Hermes's Line In Glory shall the Eastern Kings out-shine The King of Europe with the Northern Flow'r Shall like a Gryphon come in mighty Pow'r In Red and White a num'rous Force shall lead All join'd against the Babylonish Head. Grebner PEr idem tempus Rex quidam Borealis nomine CAROLUS MARIAM ex Papistica Religione sibi assumptam in Matrimonium conjunxerit ex quo evadet Regum infelicissimus Unde populus ejus ipso abdicato Comitem quendam perantiquae Familiae regno praeponet qui tres annos aut eo circiter durabit hoc quoque remoto Equitem quendam bellicosum in ejus locum assumet qui paulo ampliùs regnabit Posthunc eliget nullum Interea unus è stirpe Caroli in littore regni patris sui cum Gallicis Suevicis Danicis Hollandicis Burgundicis Germanicis auxiliis stabit omnes inimicos suos cruentissimo bello superabit postea Regnum suum felicissimè administrabit eritque Carolo magno major Sum Anglicus truculentus Leo modo rugens fremens immane saeviens animosus faelix Victoriosus contra omnes hostes Patriae meae fideliter auxilio venio praesidio ac clementi meae Reginae asporto pretiosum cimelion Margaritam dictam Belgicas Hispanicas dictiones unde Regina mea tempore vitae suae certo magnificè gloriosè Trumphat Terra Jubila Jubila canta exulta quod vidisti exoptatum diem Ruinae excidii Antichristi quod ductu auspicio faelici Anglorum Gallorum Danorum Germanicorum Scotorum Suecorum praesidio dextrae numinis altipotentis fiet Europae labes imbecilitas singulorum ejusdem Regnorum sedem mirabiliter struet Quintae Monarchiae quae sub tempus exitii Romani Imperii ad terrorem totius Mundi ex ruinis Germaniae refulgebit Haec triennii spatio caetera Europae regna aut vi praedomitabit aut belli metu ad Societatem propellet quo universalem Ligam unionem omnium Protestantium efficiet Hoc vexillum de fratribus quoque Uraniae Principis eorum posteris Illustrissimis intelligendum Leones nostri audaces in primâ acie fremunt unde nobis potentia crescit Gloria Fama augescit Grebner TO CHARLES a Northern King much Woe 't will breed To marry MARY of the Romish Creed The People casting off his luckless Sway Shall of an Ancient House an Earl obey Three Years or thereabout he them shall Head Then shall a Warlike Knight come in his stead He something longer shall maintain his Post After him Nol is chose to rule the Rost Of Charles his Lineage there shall One arise Who with French Germans Swedes Danes Dutch Supplies Upon the Shore of 's Father's Realm shall Land And Conquer all who dare his Arms withstand With great Prosperity he long shall Reign In Glory ev'n surpassing Charlemain An English Roaring Lion am I found My Rage and Courage with Successes Crown'd For Aid and Safeguard to my Country come I to my Queen bring a rich Treasure home Holland and Spain well call'd a Precious Stone Whence shall my Queen enjoy a happy Throne Rejoice O Earth Proclaim a Jubilee For you the Fall of Antichrist shall see With happy Conduct in auspicious Hour The English French Scotch Swedish Danish Flow'r Shall cast her down by the Almighty's Pow'r The Europaean Kingdoms
And the French King from him his Fate shall find B'ing slain or twice a Pris'ner but at last He surely by the Sword his Death shall taste His Kingdom lost Progeny prest with Woe And all his Captains meet an Overthrow Then Fortune adverse to the Frenchmen brings Their Praise to crowch under the Eagles Wings The King of England then may justly fear The like Calamities with France to bear He and his Party luckless Chance may try And with a mighty Slaughter prostrate lie For Madness 't is against the Fates to rise And yet The Stars are govern'd by the Wise FINIS Advertisement THere are lately Printed for Timothy Goodwin at the Maidenhead against St. Dunstan 's Church in Fleet-street these Three Books following I. An Enquiry into the Power of Dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales's Case II. The Power Jurisdiction and Priviledge of Parliament And the Antiquity of the House of Commons Asserted Occasioned by an Information in the King's-Bench by the Attorney-General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes III. A Defence of the Late Lord RVSSEL's Innocency By way of Answer or Confutation of a Libellous Pamphlet Intituled An Antidote against Poyson With Two Letters of the Author of this Book upon the Subject of his Lordship's Tryal Together with an Argument in the Great Case concerning Elections of Members to Parliament between Sir Samuel Barnardiston Plaintiff and Sir William Soames Sheriff of Suffolk Defendant In the Court of King's-Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber All Three Writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas Hi sunt qui trepidant ad omnia fulgura pallent Vid. the Lord Delamere and Sir Ro. Arkyns upon the Lord Russel's Trial and Mr. Hawles's Remarks upon that and others c. Sed quid Turba Romae sequitur fortunam ut semper odit Damnatos Nostredamus Natus Anno 1503. Denatus Anno 1566. The Edition here chiefly followed Anno 1568. Vid. his Preface to his Son. Cent. 9. 49. Cent. 2. 51 53. Vid. Nostredamus his Preface Cent. 3. 80. Cent. 1◠80. 82. 83. Cent. 6. 43. 3. 9. 3. 49. 6. 34. Cent. 5. 34. 9. 38. Gazet Dec. 6. Paris Dec. 8. Orders are given for the fortifying with all possible diligence the Town and Citadel of Blay on the Garonne a Cent. 9. 38. 9. 64. 10. 7. b Cent. 6. 2. c 5. 24. 5. 87. d Cent. 6. 7. 10. 56. 5. 18. 5. 4. 4. 22. 4. 75. 1. 13. 1. 35. 2. 78. 2. 38. 5. 4. e 8. 58. 10. 26. A MS. in Trinity-Colledge Library in Cambridge cited in the Future History of Europe Ed. An. 1650. and in the Northern Star. Nolo Nolle Nullus David Pareus natus Anno 1548. obiit Heidelbergae Anno 1622. postquam triennio ante per quietem vidisset totam urbem occulto incendio fumigantem c. Hoffmanni Lex Ant. Torquatus de eversione Europae Dedicated to Matthias King of Hungary Anno 1480. Edit Anno 1552. a See this excellently well done by my Learned Friend Mr. James Tyrrel in Patriarcha non Monarcha b Grot. l. 3. p. 52. Summae potestatis Subjectum Commune est Civitas Vid. Schellium de Jure Imperii p. 32. Plato 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 definit eum qui judiciorum magistratuum particeps sit Sam. Puffend de Officio hominis Civis p. 265. V. Sacrosanct regum Majest Potestas designativa personae collativa potestatis Nullus interritus est reipublicae naturalis ut hominis Cicero de Rep. Of equitable Reservations Vid. Earl of Clarenden's Survey of the Leviathan p. 86. speaking of a Contract whereby the absolute Power of Mens Lives shall be submitted c. He is not bound by the Command of his Sovereign 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 surely may be as applicable to all that monstrous Power which he 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 suppos'd to be with the Intention of the Contractor in such Cases V. Cocceium de Principe pag. 197. Leges fundamentales regni vel imperii quae vel disertè pact ae sunt cum Principe antequam imperium ineat ut fit hodie cum imperatore quamvis non ad eum modum jura Majestatis possideat quo olim Principes plerisque aliis in regnis vel sub ipso regimine a Principe populo vel ordinibus conduntur ut est aurea bulla Carol 4. alia quaedam in imperio Romano-germanico vel saltem tacitè reipublicae inesse videntur Sanderson de Juramenti obligatione p. 41. Vid. Stat. 13 car 2. c. 1. Vid. infra V. Grounds and Measures of Submission Salus populi suprema lex Vid. Johannis a Felde Annotata ad Grot. c. 3. 4. 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 Vid. Bellarmine how the Pope hooks in Temporals in ordine ad Spiritualia Vid. Leges S. Edwardi Jovian p. 280. Ib. p. 192 193. Jov. p. 87. Vid. Just Inst tit 2. Quum lege regiâ quae de imperio ejus lata est populus ei in eum omne imperium suum potestatem concedat Vid. Raevardum de Juris ambiguitatibus Lib 4. c. 12. de Jure publico Bilson of Christian Subjection Ed. 1586. p. 279. p. 280. Platonis Politicus f. 299. Ed. Serrani 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V. Leges Sancti Edwardi 17. de Regis Officio Nec nomen Regis in eo constabit Vid. Bracton l. 2. c. 24. Est enim corona regis facere justitiam judicium tenere pacem sine quibus corona consistere non potest nec tenere 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 Vid. the Case of Rehoboam inf in the Quotation out of Lord Clarendon Lambert Qui vigilanter defendunt regunt Ecclesiam Dei populum ejus Barones Majores Minores Vita Aelfredi f. 62. Ego tria promitto populo Christiano meisque
subditis c. a Nota Protection Bracton lib. 3. c. 9. Fleta lib. 1. c. 17. Mirror p. 8. Vid. Seld. Spicel ad Eadmerum f. 171. Dissert ad Fletam f. 519. Hoved f. 608. Leges H. 1. confirming St. Edward's Laws cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum Vid. Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates leges Regis Edwardi f. 244. partim in carta regis Henrici scripta sunt partimque ex legibus Regis Edwardi antiquis excerpta sunt Vid. Rushw 1. v. f. 200. Coronation of C. 1. Sir says the Archbishop Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs to them granted by the Kings of England your Lawful and Religious Predecessors namely the Laws Customs and Franchises granted to the Clergy by the glorious King St. Edward your Predecessor V. Rot. Claus 1 R. 2. n. 44. Magna Carta Ed. cum priv Anno 1558. Juramentum Regis quando coronatur Spelman's Glos tit Fidelitas f. 271. Sam. Puf. de Interregnis p. 274. Quando in regem confertur imperium est mutua juris translatio seu reciproca promissio Vid. Templum Pacis p. 767. Deditio est pactus quo belle inferior majoris mali evitandi ergo potestati alterius sese submittit in jura aliena transit Dividi potest in simplicem sive purum quando quis mero victoris arbitrio sese submittit compositum sive conditionatum quando alterius quidem potestati quis sese subjicit sed sub conditionibus quibus aut singuli sibi consulunt aut toti universitati So Textoris Synopsis jurifgentium p. 129. Victoria vel pactione restricta est vel absoluta specie priori non plus juris victor acquirit quam ei pacto fuit concessum Sim. Dunelm f. 195. Hoved. f. 450. 2 Sam. 5. 3. Lord Clarendon's Survey of the Leviathan p. 109. 148 149. Aequo jure Vid. infr Vid. Leges W. 1. de fide obsequio erga regem Jovian p. 244. Vid. Dr. Stillingfl Irenicum p. 132 133. Saravia de Imperii authoritate f. 221. Grotius de Jure Belli Pacis p. 59. Successio non est titulus imperii sed veteris continuatio Lord Clarendon's Survey p. 74. Matth. Paris Edit Lond. f. 563. Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante in signum quod Comes est Palatinus regem si oberret habeat de jure potestatem cohibendi Knighton f. 2683. meaning the Case of E. 2. Knighton f. 1752. Mirror p. 9. Hornii orbis imperans p. 196. Hornius p. 196. Fleta lib. 1. cap. 17. Bracton lib. 3. c. 9. p. 107. Ibid. Bract. lib. 2. c. 16. p. 34. V. Ryly Plac. Parl. f. 20. Fleta supra Superiores So Mirror p. 9. Ceux compagnions sont ore appelles Comites in Latine Comitatus where he takes in all that come up to Parliament from the Counties Vid. Mirror p. 209. He there says Suitors are Judges ordinaries and 274. speaks of Counties les autres Suitors having Jurisdiction in Causes which the King cannot determine by himself or by his Judges So Judge Crook's Argument in Hampden's C. p. 59. Whatever is done to the hurt or wrong of the Subjects and against the Laws of the Land the Law imputeth that Honour and Justice to the King whose Throne is establish'd by Justice that it is not done by the King but it is done by some unsound and unjust Information and therefore void and not done by Prerogative Chronica de Mailros f. 137. Anno 756. Bromton f. 770. Congregati sunt Proceres Populus totius regni eum providâ deliberatione a regno unanimi consensu omnium expellebant Chron. Mailros f. 138. Anno 774. S. Dunelm 106. 107. Consilio consensu omnium regiae familiae ac principum destitutus societate exilio imperii mutavit Majestatem a Ib. f. 108. Anno 779. Mailros Anno 794. f. 139. S. Dunelm f. 113. Mailros f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem Ibid. 144. 872. F. 14â— 941. F. 148. 947. Vid. Mirror Leges S. Edw. Vid. Knighton f. 2312. Bromton f. 1031. Mat. Par. Ed. Tig. f. 243. Anno 1214. Ib. f. 277 278. 288. Mat. Par. f. 373. Walsingham f. 107. Rex dignitate regali abdicatur filius substituitur Hollingshead f. 637. Ibid. f. 639 640. A Crown over a Branch of Lights in the House of Commons and another from the top of Dover-Castle falling about the same time Ibid. f. 657. 〈…〉 â—661 â—â—â—5 678. 693. Stat. 13 Car. 2. Stat. 2. c. 1. Stat. 13 14 Car. 2. c. 3. So c. 4. 15 Car. 2. c. 5. 12 Car. 2. c. 30. Vid. Justin Pandec l. 1. tit 3. Nulla juris ratio aut aequitatis benignitas patitur ut quae salubriter pro utilitate hominum introducuntur ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem Vid. Rot Parl. 39 H. 6. n 18. Vid. Cujacium tom 4. f. 154. Resp circumscripta in integrum restituitur perinde ac pupillus vel adolescens c. Vid. Cic. de Legibus Salus populi suprema lex esto Inter Leges 12 Tabularum of which Tacitus says Accitis quae usquam egregia compositae duodecim Tabulae finis aequi juris Tacitus Ed. Plant. p. 90. Sheringham of the King's Supremacy p. 41. 16 Car. 1. Nota There was no attempt to repeal this till 16 Car. 2. c. 1. Brook tit Commission n. 21. Ibid. tit Officer n. 25. Vid. Stat. 17 Car. 1. Every thing or things done or to be done for the Adjournment Proroguing or Dissolving of this Parliament contrary to this present Act shall be utterly void Anno 1647. Vid. Hist of the Civil Wars f. 207. Qâ—â—m aufertur 〈◊〉 juramenti juramentum cessat ratione eventus qui câ—sus est eorum qui juraverunt se obedituros Domino aut Principi alicui qui postea cessat esse talis Amesius de Juramento lib 4. c. 22. Sam. Pufendorf de Interregnis p. 272. Nota. omnem reipublicâ— cutam abâ—â—â—averit 〈◊〉 malo 〈…〉 Krantius f. 188. Anno 1460. Hottoman Francogal c. 23. De memorabili auctoritate concilii in Regem Ludovicum 11. Mat. Par. sup f. 563. Freherus de Orig. Palatinarum f. 113 119 120. Gunteri Thulemarii Octovirat c. 18. Ibid. p. 251. Loyseau du droits des Offices Ed. Anno 1610. f. 409. Ibid. f. 410. Treatise of Politick Power Ed. Anno 1556. Vid. Sam. Pufendorf Dissertationes de Interregnis p. 267. Post decretum circa formam regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos regimen caetûs confertur Jovian p. 78. Ib. Preface At Calcuth Anno 789. Spel. Con. vol. 1. f. 291. Deut. 17. v. 20. Aelfredi Test Append. ad ejus Vitam f. 195. Et mecum tota