especially till they leave off not only censuring but misrepresenting others who by a fair state of the Question are they alone who are directly contrary to them which himself is elsewhere sensible of when he says of the direct contraries in all probability one is true Pag. 35. but the direct contrary to what they hold is not that it is lawful for every Man to rebel when ever he thinks it necessary Pag. 2. much less when he pleases Pag. 37. Himself yeilds that non-assisting the late King was notoriously necessary for preservation of the Nation and what restrains others from judging when there is the like notoriety for resisting As he charges others with holding that they may resist when and whom they please they may say that he is for not assisting in the like latitude Pag. 37. and for cramping the Government if he has not the Courage to attempt against it We may resist when the Original Contract is notoriously broken and we must not resist when the Original Contract is notoriously broken are contrary and contradictory Propositions one of which I grant to be true But we must resist in no case and we may resist in any case Pag. 37. when every Man pleases or at least thinks it necessary are not Contraries Pag. 2. but Extreams and 't is odds but the Truth lies in the middle that we may resist in some case which cries aloud and justly stirs up a Nation as with the Voice of God This Gentleman does not observe that the Question is of one who ceases to be King according to that of Bracton non est Rex ubi dominatur voluntas non Lex which is not barely his Opinion but warranted by that noble Transcript of the Original Contract the Confessor's Law which shews that if a King does not answer the true end for which he was chosen he loses the Name or ceases to be King which was very vvell understood by J. 1. who told his Parliament Vid. J. 1. his Speech in Parl. March 21. Anno 1609. that every just King is bound to observe that Paction made vvith his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law And thus the Protestants in Germany vvho resisted the Emperor notwithstanding their Oaths of Fidelity to him Hornii orbis Polit. p. 18. pleaded that they resisted him not as Caesar but qua non fuit Caesar Our Author confesses that the late King notoriously subverted our Constitution Pag. 2. did not treat us like English-Men but Slaves and says all grant his design vvas certainly to extirpate the Protestant Religion Pag. 16. to enslave and consequently to extirpate the English Nation And I dare appeal to Dr. Falkner's Christian Loyalty to try ours by in such case Dr. Falkner's Christian Loyalty where there vvas a manifest Renunciation of the Government as an English King And surely no Man of Sense vvill say that such a liberty for resisting as this Lay-Gentleman imputes to the Williamites can be the Consequence of resisting such a Prince as he describes and of exploding that Sycophantry which did encourage and would support him or that the best of Princes can need the influence of that Doctrine vvhich hurried on the other to his Ruin the insinuation of this is the greatest Reflection which can be put not only upon the Friends of their present Majesties but upon their Majesties themselves Tho some would have been so ungrateful to have sent his Majesty back uncrowned after he had rescued them from their present Fright which might soon have been laid vvith a fevv flattering Caresses the English Nation abhors such a Reproach nor can their Majesties so far depart from their own Nature to violate that Constitution which they have restored nor yet can the confuting their slavish Doctrine of Passive Obedience Pag. 36. in the least derogate from that religious Awe and Reverence which is due to Crowned Heads tho it may remove that Bugbear and Mormo with which some would fright Mankind out of love with them Nor can any good Prince's Crown be unsecure by rejecting the deceitful Officiousness of others since nothing can hazard it but such extravagant Actions as a well-dispos'd Prince can never fall into and which by natural Consequence as well as Equity provoke a whole Nation The Laws make all Risings against the King punishable with Death and therefore single Persons or Companies in their sound Minds will not attempt them but when the Cause is so apparent that they who suffer them to stand alone in it do but invite and encourage Attempts upon the Lives and Liberties of all But if as often such there are hot Men over-valuing themselves or the Strength of their Adherents will endeavour to destroy a good Government to raise their Faction or accomplish some low Ends of their own the Prince has sufficient Security with the Laws and Hearts of his People on his side And how strict soever the Laws are 't is a vain thing to expect Safety from them alone when any part of that Authority from which they flow is render'd cheap or invaded with an high hand And they who think to get above all Law will find their open Violations to give the same Freedom to others which they take to themselves It ought says the Lord Clarendon Lord Clarendon's Survey of the Leviathan p. 48. prudently to be consider'd whether People may not be very naturally dispos'd to use that Force against him that declares himself to be absolv'd from all Oaths Covenants and Promises and whether any Obligation of Reason or Justice can establish the Government in him who founds it upon so unrighteous a Determination As a judicious Person has well observ'd The new Oath of Allegiance justified Edit An. 1689. sold by Ran. Taylor If single Persons or many together be injur'd by the Prince they are oblig'd to suffer quietly rather than disturb the Publick Peace and in this case Passive Obedience is a Christian Duty and is necessary to the Quiet of every Nation since the best Governours may by mistake injure some few and if they do so that doth not break the Compact because all the People collectively or representatively were but one Party in the Stipulation and therefore those Acts by which a King must forfeit are such as are likely to take away the Rights of the whole People or aim at changing the Form of the Government subverting the Laws In such case Passive Obedience is not the Duty of a Community who have Rights and Liberties secured by Law and for the whole People to stand by silent and see that done is the greatest Folly and the highest Treachery to their Country and Posterity Doctrine of Non-resistance p. 1. But as this Gentleman asks What can the Friends of their present Majesties pretend to palliate their
Tom. 4. f. 154. Resp circumscripta in integrum restituitur perinde ac pupillus vel adolescens 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. and at liberty to renounce the obligations which it has entred into against its benefit which is the Supream 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 Sheringham of the King's Supremacy p. 41. have Authority to make Laws that cannot be altered by Posterity in the Matters that concern the Rights both of King and People For Foundations cannot be removed without the Ruin and Subversion of the whole Building Wherefore admit the Acts had been duely 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 repealed Triennial Act 16 Car. 1. Nota There was no attempt to repeal this till 16 Car. 2. 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 Prorogued or Adjourned 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 of the foregoing Parliament shall be thenceforth clearly and absolutely dissolved 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 Brook tit Commission N. 21. Ib. tit Officer n. 25. vid. Stat. 17. C. 1. Every thing or things done or to be done for the Adjournment Prorogueing or Dissolving of this Parliament contrary to this present Act shall be utterly void Anno 1647. Vid. Hist of the Civil-Wars f. 207. 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 Parliomenti 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 1. and so expired Anno. 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 Dissolved more than three years before the meeting of that Parliament which made the Statute in question which Parliament Assembled Anno 1661. and was ipso facto dissolved 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 Charles 2. Anno 1660. was not summoned by the King's Writs consequently the Parliament 1661. having according to them 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 dispensed with the Letter of the Triennial Act as to this Particular 1. They who would plead these Statutes cannot urge this since they will not allow of greater necessity to Authorize the Maintaining and Restoring the Constitution But surely however necessity might support our 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 have continued 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 qualify 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 endeavoured to alter the Fundamental Contract was ipso facto dissolved before such attempt However since the Question is not about a Coercive Power over Kings but barely concerning Allegiance to them Quum aufertur ratio juramenti juramentum cessat ratione eventus qui casus est eorum qui juraverunt se obedituros Domino aut Principi alicui qui postea cessat esse talis Amesius de Juramento lib. 4. c. 22. whenever he who was King ceases to be so either by the Act of God or the Law the Obligation of Allegiance necessarily determins as the subject matter of it fails But lest the Liberty allowed in extraordinary Cases be used 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 Sam. Pufendorf de Interregnis p. 272. this has the Right of Judging what the Subject is to perform and has also a Power conferr'd of compelling him to 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 Omnem Reipublicae curam abdicaverit dolo malo 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 observance of which as upon a Condition the Allegiance of the Subjects depends 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 Sweedland and Norway which had anciently three distinct Negatives in the Choice of a
and correct and that in other matters they share with the King in every part of the Soveraignty He adds If we have need of farther proof the name Parliament which all our Ancient Histories give the Assembly of States may furnish us with one This is the name which the English give this Assembly which partakes of the Soveraignty with their King The French and the Ancient Britains had the same Laws and the same Language they Governed themselves by States gave the same name to their Assemblies And without doubt they had the same Authority Nay it is certain that the States had formerly in France the same Power that the Parliaments have in England As this Author makes the Liberties of the English Nation and the Power of its Parliament an Argument of the Right of the French Nation Bodin who wrote after their Parliament at Paris had taken the place of the Assembly of States makes England a parallel to France Turky Persia Muscovy Bodin de Repub lib. 2. c. 4. ed. A Lyon p. 302. Ib. Cap. 3. p. 286. This was H. 2. for the absolute Soveraignty of their Princes but that he was little acquainted with the History of the Govenment of England appears in that he supposes that Henry who procured his Son to be Crowned in his life time to have been the Son of W. 1. Bodin p. 300. Even where a Prince is the most absolute he admits That if he Govern Tyrannically he may be lawfully killed by a Foreign Prince and that it is a noble and magnificent action for a Prince to take Arms to rescue a people unjustly oppressed by the cruelty of a Tyrant as did the Great Hercules who went about the World exterminating the Monsters of Tyrants and for his high exploits has been Deified So did Dion Timoleon Aratus and other generous Princes who have bore the Title of Chastisers and Correcters of Tyrants This says he was the sole cause for which Tamerlain Prince of the Tartars denounced War against Bajazet King of the Turks And when he Besieged Constantinople said he came to chastise his Tyranny and deliver his afflicted people And in fact he vanquished him in a pitch'd Battel in the Plain of Mount-Stellian and having killed and put to flight Three Hundred Thousand Turks he kept the Tyrant in a Golden-Cage till he died Ib. p. 301. And in such case it matters not whether the Virtuous Prince proceed against the Tyrant with Force or Art or way of Justice True it is if the Virtuous Prince has taken the Tyrant he will have more Honour if he make his Process and punish him as a Murderer or Parricide or Robber rather than to make use of the Law of Nations against him This passage in Bodin shews beyond contradiction That if he were now alive and not of the Romish Superstition he would have extolled and justified the Heroick undertaking of King William for the delivery of this Nation But the ground of the justification is That even the most absolute Soveraign may injure his Subjects as no doubt but he would if he treated them contrary to natural equity and his own established Laws Jovian p. 226. whereas the Author of Jovian having set up an Imperial Power above all Political Constitutions says In this Realm the Sovereign cannot wrong or injure his Subjects but contrary to the Political Laws And by consequence not at all if the Political Laws are to give way to the Imperial Wherefore I wonder not to find him a Subscriber to the late Bishop of Chichester's Paper which condemns Swearing Allegiance to our present King and Queen But Bodin as he justifies our King William in freeing us from an oppressing Monarch no less clears the Subjects of England in joyning with him upon supposition that the Constitution of our Government is not rightly understood by him Bodin p. 301. But says he as to Subjects we ought to know whether the Prince be absolutely Soveraign or whether he is not absolutely Soveraign For if he is not absolutely Soveraign it is necessary that the Soveraignty be in the people or in the Lords In this case there is no doubt but it is lawful to proceed against the Tyrant by way of Justice if we can prevail against him or by way of Deeds and Force if we cannot have Reason otherwise as the Senate did against Nero in one case and against Maximin in another so that the Roman Emperors were nothing else but Princes of the Common-wealth that is to say the First and Chief the Soveraignty remaining with the people and the Senate As I have shewn this Common-wealth may be called a Principality Altho Seneca speaking in the person of his Scholar Nero says I alone among all Men living am elected and chosen to be God's Vicegerent on Earth I am Arbiter of Life and Death I am able at my pleasure to dispose of the estate and quality of any Man True it is that in fact he usurped this Power but of right the State was but a Principality where the people were Soveraign As also is that of the Venetians who condemned to death their Duke Falier and put to death others without form or figure of Process Insomuch that Venice is an Aristocratical Principality where the Duke is but Cheif and the Soveraignty remains with the States of the Venetian Noblemen And in the like Case the German Empire which also is but an Aristocratical Principality where the Emperor is chief and first the Power and Majesty of the Empire belongs to the States who in the year 1296. deposed the Emperor Adolph and after him Wenceslaus in the year 1400. in form of justice as having jurisdiction and power over them How much soever Bodin was mistaken in relation to the Government of England he seems herein less a Stranger to that of the German Empire The Learned Conringius in his account of the German Judicatures Hermanni Conringii Excercit De Judiciis p. 251. tells us 't is difficult to give an account of them for some Ages next after the time of the Francs But beginning with the Causes of Kings themselves whom he shews according to Ancient Custom to have been subject to some jurisdiction upon the account of their Government The Causes says he Ib. p. 252. of their Kings belonging to the administration of the Government as anciently so afterwards were frequently agitated in the Great Councils of the Kingdom So the Emperor H. 4. was accused in a Great Council and by its Authority divested of his Royal Dignity The same befel Otto 4. and * This about the year 1251. No new Emperor was chosen till Anno 1273. after Twenty two years vacancy Prideaux Introd p. 245. Frederic 2. But says he Two things sometimes hapned much differing from the ancient Usage One is That the Power of the Council of all the States began to pass to the Electors only after Charles 4. Novo more The Duke of Bavaria made
Soveraign Power Leviathan f. 97. by which he means a single person in possession of Power There can be no other Representative of the same People but only to certain particular ends limited by the Soveraign If this were meant of Power in the abstract no Man neeed dispute the point with either of the Authors But to proceed with the Elements Elementa Pol. 3. The Liberties of the Subject were Acts of Grace from the Crown and since they had no Right to demand them by Force they must take them upon such Conditions as they are offer'd Nor is it to be suppos'd that Kings would forgo their Irresistible Power unless they had Sign'd it away in so many words 4. The Militia is by Law lodg'd in the King Most of the Nation is oblig'd to Declare against taking up Arms upon any pretence whatsoever against Him or any persons Commissioned by Him And the two Houses themselves swear Allegiance 5. That Clause for Resistance in King John's Charter contrary to this is of no force now and however is an Authority against the Deposing-Power there being an express Proviso for saving the King's Person and Royalty and His being obey'd as formerly upon Redress of Grievances Answ Not to observe the inconsequence from a qualified Legislative to a Judicial Power in which the Dernier Resort is with the Lords nor the mistake as if that Meeting and Sitting of Parliament which the Law has provided for within and till a certain time were wholly precarious Viz. Till all Petitions are Answer'd and that is certain which is reduceably to a Certainty Vid. Sup. Nor the former Objection against the Militia-Acts for want of a due Repeal of the Triennial 16 Car. 1. which this Author calls but a Proposal nor yet that the Allegiance sworn must be according to the Constitution For a full Answer to all it will appear even by his own confession That these Restrictions have no place but while the Constitution is preserv'd Himself admits That had the Legislative Power been invaded and the Constitution of Parliaments dissolv'd it would have superceded his Niceties But denies both because forsooth the Judgments against Charters were begun in a Protestant Reign and applauded by the loyal part of the Nation And the Dispensing Power was affirm'd by the Judges which is only a justifying Crimes by their Authors of which too many may say Pudet haec opprobria nobis Et dici potuisse non potuisse refelli Nor may it be impertinent here to observe Tacitus his Account of the steps by which Julius Caesar advanced himself to an arbitrary Power Leaving the Application to others When he had wheedled the Soldiers with large Pay the People with Freedom from Taxes all with the sweetness of Peace Tacit. ed. Plaut p. 1. and 2. Ubi militem donis populum annonâ cunctos dulcedine otii pellexit munia Senatus Magistratuum legum in se trahere nullo adversante cum feracissimi per acies aut proscriptione cecidissent ceteri Nobilium quanto quis Servitio promptior opibus honoribus extollerentur ac novis ex rebus aucti tuta presentia quam vetera periculosa mallent Neque Provinciae illum Statum abnuebant suspecto Senatûs Populique imperio ob certamina potentium avaritiam Magistratuum invalido legum auxilio quae vis ambitu postremo pecuniâ turbabuntur he rose by degrees to draw the Offices of the Senate Magistrates Laws to himself without opposition When the most fierce had faln in the Wars or were driven from their Country the rest of the Nobility being as any of them was the more forward for Servitude rais'd to Wealth and Honour and profited by the Change chose rather present Safety than the former State not to be retrieved without hazard Nor did the Provinces decline the Yoke the Government of the Senate and People becoming cheap through great mens quarrels and the Avarice of Magistrates the Law being enervated and its course interrupted by Force Solicitations and at last Bribery The Author of the Elements supposes that if the Government were subverted by the late King all Rights whatsoever are lost as well as his which I have shewn by no means to follow But particularly as to the Resisting-Clause in King John's Charter which he observes to be turn'd into an Excommunication in H. 3 d's 't is to be consider'd That as a King could not be thought to subvert the Constitution upon the first Breach of some particular Articles there that Clause was in this respect an Addition to the Constitution but being only in the Affirmative could not derogate from it Himself says If with reference to the present Case the Government is actually subverted then I grant the King's Authority is destroyed Elem Pol. part printed And if the Government as to the King's share in it is subverted and his Authority destroyed then there is no doubt but the People are freed from all those Forms to which his Presence or Consent were otherwise needful This Author yields in another place Print p. 13. that where the People are not forc'd into Submission but freely elect their Monarch there all remote inferences and doubtful cases ought to be interpreted in favour of the Subject because the Form of Government had its beginning from them and in this case Liberty proves its self This he admits supposing that he had prov'd a Conquest of the Nation by W. 1. which I shall examine in its place tho what I have said above might take off the Inference from his Hypothesis Vid. sup especially considering the broken Succession since W. 1. and what Authority the Constitution has given to the Peoples Choice which W. 1. as appears by his Death-bed Declaration and what followed immediately upon it left untouch'd CONCLUSION I Cannot think that I have followed Truth too nigh at the heels for my Safety in the present Government which I take to be built upon this staple Foundation and that Protestant fondly flatters himself who thinks to retain his Religion and Security upon any Terms at a return of the Former which some who were Instruments in setting up this seem madly to contend for But could men hope to find their private Accounts in such a Change yet surely the dismal Prospect of Common Calamities to ensue should induce them to sacrifice such low Ends to the Interest of their Religion and their Country I am not sensible that I have misrepresented any Fact or Authority tho I have not urg'd them with that strength which might have been by a better Pen. Perhaps what I have offer'd may give another Notion of the Succession than what many have imbib'd who will think I violate what is sacred I have not urg'd the Illegitimation of the Children of E. 4. by Richard the Third's Parliament because tho he was a King de facto if the Character fix'd on him be true he was a Tyrant as well as Usurper
subjectam The chief Act of Government requires the chief or Supream Power But the making of Laws is the Supream Act of Government Therefore it cannot be exercised but by a Person having or at least by Virtue and from the Authority of the Person having Supream Power and Jurisdiction over the Community subject unto him Now in this the Doctor seems to be uniform to himself since he grants that the Clergy cannot exercise this Power without the consent of the King and so they act by virtue of his Authority But it will be justly question'd whether the Power be not in the King the Authority being his For a Legislative Power where-ever plac'd is uncontroulable and self-sufficient and so the Doctor tells us Potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and if the Power the jus condendi Leges Ecclesiasticas be in the Clergy then that Power is self-sufficient 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by consequence their Act of Legislation made known obliges the Community Eodem omninò modo quo Princeps qui habet potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pag. 84. ferendo leges obligat subditos ad ipsarum observationem But perhaps we may be told that a Difference is here to be taken between jus condendi Leges and potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but then the Doctor must be allowed not to talk with coherence For he takes it for granted Posse de novo condi leges de ritibus rebus personis Ecclesiasticis omnibusque sacri cultûs externi circumstantiis ad ordinem honestatem edificationem spectantibus extra eas quae sunt à Christo ejus Apostolis in Sacris Literis traditae which is in short that there is somewhere a Legislative Power in Matters Ecclesiastical not determin'd in the Scriptures Now this very Power Jus condendi Leges Ecclesiasticas he places in Ecclesiastical Persons wherefore the Power which he ascribes to them in Ecclesiastical Affairs is a Legislative Power And some will question how much soever the Clergy complement the King whether they take not the Restraint which they submit to to be a Condescension nay that Power is by him ascrib'd to the Clergy in the very same Expressions wherein he expresses the King's Power Pag. 189. For as he says Jus condendarum Legum Pag. 209. is penes unum Regem so he tells us Jus condendi Leges Ecclesiasticas is penes Episcopos c. I would gladly see the Difference rightly stated upon these Principles The Clergy have the Power of making Laws or the Legislative Power in Ecclesiastical Matters yet the Exercise is restrainable by the King Jus condendi Leges Ecclesiasticas esse penes Episcopos Presbyteros aliasque personas à totius Regni Clero ritè electas legitimâ Synodo congregatas Ita tamen ut ejus juris exercitium in omni Republicâ Christianâ ex Authoritate Supremi Magistratûs politici pendere debeat Idque à parte ante à parte post The King has the Legislative Power in Civil Affairs yet the Exercise is restrainable by the People Cum dicimus penes unum Regem esse jus condendarum Legum Pag. 189. non id ità intelligendum quasi vellemus quicquam Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem aliaque non nulla ad Legem constituendam requiri mox ostendam Ergo Quere Whether Church-men are not Supream in Ecclesiastical Affairs as the King is in Civil It will be said Admit they are yet that Power may be very consistent with Monarchy for which purpose one need but transcribe with very little variation the Doctor 's words applying what he says of the Lawgiver in Temporal to the Ecclesiastical Law-givers Pag. 203. Posse duo haec Regis inquam consensum supremum ECCLESIASTICORVM in ferendis legibus potestatem simul amicè satis consistere praeterea quod in rebus ipsis nulla videtur esse repugnantia vel inde constare potest quod Angliae nostrae CLERICI quorum supremam potestatem in ECCLESIASTICIS ante infoelicissima haec tempora omnes hujus Regni incolae prolixissimè semper agnoverunt nunquam tamen legislativam suam potestatem ità exercuerunt ut sine Regum suorum consensu Leges aliquas condiderint Now whether the Doctor 's Reflections upon them that feign a Power coordinate with the King nay whether his imputation of Perjury upon them who deny the King a Legislative Power after having sworn that he is Supream Head and Governour over all Causes and Persons as well Ecclesiastical as Civil will not fall upon himself some will question Pag. 191. and they know not whether he were not one of them that believ'd Contradictoria posse simul esse vera And thus again they argue out of him Pag. 188. In statu Monarchico unius Regis personae inhaeret summa potestas In a Monarchy the Supream Power is inherent in the Person of the King only But ours is a Monarchy therefore the Supream Power is inherent in the Person of the King only Ibid. he is omnium personarum causarumque in suis Regnis Supremus imò solus supremus Moderator Making of Laws either in Ecclesiastical or Civil Matters is an Act of the Supream Power therefore the Right of making Laws Pag. 192. in the one as well 'tother is in the King in whom the Supream Power is inherent not in Church-men But if one may dispute the Authority of so great a Man one may be bold to ask what proof there is that what he asserts about Ecclesiastical Jurisdiction is consentaneous Doctrinae Ecclesiae Anglicanae Regni insimul legibus For take it in the largest sense not that the Clergy have the Legislative Power so qualified as aforesaid but that they and the King have a Power of making Laws in Ecclesiastical Matters which shall oblige the Community without any farther Consent or Ratification This some will say may for ought they know be agreeable to the Doctrine of the Church or Church-men but where is the Law to warrant it they are to seek And besides the several adjudg'd Cases that the Laity are not oblig'd by any Canons of the Clergy or Ecclesiastical Laws though made with all the Circumstances taken in by the Doctor They urge the Authority of this King in his Parliament where 't was enacted that the Canons made in the Year 1640 13 Car. 2. c. 12. This was written before that Parliament was dissolved should not be confirm'd which shews that they stood in need of Parliamentary Confirmation to become Laws And 't is to be observed that there had been the Royal Assent to that Exercise of Ecclesiastical Power both à parte ante and à parte post Some Men possibly may tax this Great Author with Deceit in giving the King a Legislative Power in general without excluding those Ecclesiastical Matters which the Great
their Sense and Interest which before was to be faithfully represented by their Tribunes When Lepidus was to incite the People against Sylla Oratio Lepidi Salustii op Ed. Par. An. 1530. p. 134. Jus judiciumque omnium rerum penes se quod populo Romano fuit he found nothing more moving than to tell them that the Tribunitial Authority would be overturned by him he adds in Explanation of it that he would have the Power and Judicature with him which did belong to the People upon which he pathetically enlarges If these things are thought by you Peace and Concord approve of the greatest Disturbance and Destruction of the Common-wealth yield to Laws impos'd upon you take Quiet with Servitude and transmit to Posterity an Example of betraying the Common-wealth at the price of ones own Blood It appears by Salust that the great Power to which Julius Caesar arrived was by siding with the Populacy of Rome Salust ad G. Caesarem de Rep. Ordinandâ p. 147. In te ille animus est qui jam à principio nobilitatis factionem disturbavit plebem Romanam ex Gravi Servitute in libertatem restituit p. 145. whose Rights had been invaded by the Senate 't was his great Mind which he tells him at the beginning disturb'd the Faction of the Nobility and restored the Populacy of Rome to Liberty from grievous Slavery and he reckon'd that upon his setling Affairs after his Victory renovata plebs erit the Plebeians will be renewed or have a new Life accordingly he advises him to cultivate good Manners among tnem and as Salust had express'd himself to Caesar a little before Magistratum Populo non creditorem gerere magnitudinem animi in addendo non demendo Reip. ostendere To shew himself a Magistrate and not a Creditor to the People and to evidence the Greatness of his Mind by adding to the Common-wealth and not taking from it This may give some tolerable account how Caesar came to be murder'd in the Senate-House and may raise his Character even above Brutus who has pass'd for the Hero of Common-wealths-Men Marcelli Donati Dilucidationes Ed. An. 1605. p. 392. Praeterea Caesarum temporibus Patritios Senatorios viros non modo Tribunatum appetivisse sed illos Imperatores inquam Tribunos Plebis factos Tribunitiam potestatem occupasse manifestum est Si quidem Julius Caesar teste Tacito per initia lib. 1. Annal. Consulem ferens ad tuendam Plebem Tribunitiâ Potestate contentus fuit Et Augustus ex Appiano l. 5. perpetuus Plebis Tribunus à Romanis dilectus fuit Et Suet. illum Tribunitiam Potestatem perpetuam recipisse scribit Quod Dion in illius vitâ confirmat Tacitus lib. Annal. 1. describens Pompam funeris Augusti ait de illo continuatâ per. 37. annos Tribunitia Potestate Et lib. 3. de Tribunitiâ Potestate loquens inquit Id summum vestigii vocabulum Augustus reperit ne Regis aut Dictatoris nomen assumeret c. Marcellus Donatus in his Comment upon Tacitus puts it out of doubt that the chief Power which the Roman Emperors had was as Tribunes of the People his Authorities for which are numerous and that sometimes they were entrusted with it for Years sometimes for Life sometimes the Consent express'd sometimes tacit and implied as it was assumed by the Emperors and permitted by the People The Application therefore will be easy to any one who reads our ancient Lawyers where they transcribe and comment upon the Roman Lex Regia Glanvil Bracton and Fleta differ from one another in very few words all to the same Sense The words of Fleta are these speaking of the King of England Fleta lib. 1. c. 17. Et licet omnes potentiâ praecellat cor tamen ipsius in manu Dei esse debet ne potentia sua maneat irrefraenata fraenum imponat temperantiae lora moderantiae ne trahatur ad injuriam qui nihil aliud potest in terrâ nisi id quod de jure potest Nec obstat quod dicitur quod Principi placet legis habet potestatem quia sequitur cum lege Regiâ quae de ejus Imperio lata est Quod est non quicquid de voluntate Regis tantoperè presumptum est sed quod Magnatum suorum Consilio Rege authoritate praestante habitâ super hoc deliberatione tractatu rectè fuerit definitum And altho he excels all in Power yet his Heart ought to be in God's Hand and lest his Power should remain unbridled he ought to apply the Bridle of Temperance and the Reigns of Moderation lest he be drawn to Injustice who can do nothing else whatever but that only which he may do by Right Nor is it an Objection that it is said that which pleases the Prince has the force of Law Vid. Seldens Dissert ad Fletam f. 467. because it follows since by the Law of the King which was made concerning his Power as some render it with the Law of the King as others That is to say not whatever is only presumed of the King's Will but that which shall be in due manner determined by the Counsel of his Great Men the King giving them Authority thereto which seems to relate to the King's Counsel in Parliament advis'd with in drawing Bills in Points of Law and the like Vid. Conring p. 11. in verbis Taciti De minoribus rebus Principes consultant de majoribus omnes ita tamen ut ea quoque quorum penes plebem arbitrium est apud Principes pertactentur ubi tamen cum Hugone Grotio summo sane viro legendum forte praetractentur there being had upon it a Deliberation and Treaty Since in this our Lawyers receive the Civil Law and give the same reason for the Royal Power which the Roman Law does that it was conferr'd by the People it being contain'd in the Lex Regia what I have shewn to prove that the Roman Emperors deriv'd their Power from the People of Rome equally shews that our Lawyers besides what they say of Elections of our Kings believ'd that the Royal Authority here came from the People of England I need not therefore scruple to affirm that our Law agrees with (a) Grotius de Jure Belli Pacis l. 3. p. 52. summae Potestatis subjectum commune est Civitas So where the Statute says the People of the Counties shall chuse the Sheriff this is limited to Freeholders vid. 2. Inst upon the Statute Grotius who holds that the Civitas is the common Subject of Power This in the most restrained Sense is meant of People of Legal Interests in the Government yet if they are intitled to any sort of Magistracy they become part of his subjectum proprium the proper or particular Seat of Power which is narrower than the Civitas and therefore I take Plato's (c) Schelius de jure Imperii p. 32. Plato 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 definit
eum qui judiciorum particeps sit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and (d) Hermanni Conringii Exercitationes Acad. de Civibus Imperii p. 3. Ordines Imperii Incolae Conringius his Cives to be too restrain'd the first limiting it to them that have shares in the Judicature and Magistracy the other to the States and Orders of the Empire allowing no others to be more than Inhabitants or Strangers Whereas the Civitas must manifestly reach to that diffus'd Body who are either capable of being part of the Ordines or Great Council or of being represented in it for otherwise the common subject of Power must needs fail as often as there are Intermissions of the States or Great Council And 't is plain that Conringius his Reason why none but the Status vel Ordines Imperii are more than Inhabitants reaches farther Every Civis he says is a Companion of the Civil Society and it is the part of a Companion to give his Suffrage and Judgment of things belonging to the Society This certainly he does virtually who gives his Suffrage in the choice of them who conclude the rest and if this should not make a Citizen there could be no means of exerting any moral or lawful Power in any Society upon the determination of the Authority of those particular Persons who had constituted any dissolv'd Assembly of States unless the sole Power resided entirely and absolutely in the Person or Persons with whom they had lodg'd a Trust for summoning them together that is giving publick notice of the Time and Place for meeting Indeed if none but the Ordines were part of the Civitas Grotius his Distinction between the common 〈◊〉 proper or particular Seat of Power would be very vain wherefore I take his Cives to be the same with Pufendorf's Quorum coitione consensu primò Civitas coaluit aut qui in illorum locum successerunt nempe Patres familiâs Sam. Pufendorf de officio Hominis Civis p. 265. By whose Conjunction and Consent the Civil Society first came together or they who succeeded into their rooms to wit the Masters of Families Indeed if we consider it will appear that never any Empire or other Civil Society was founded but there was an Original Contract or Agreement among the People for the founding of it How was the most absolute Authority of a single Person ever rais'd or maintain'd but by the undisciplin'd Rabble or disciplin'd one of an Army and what could keep them together but a Contract or Promise of Pay or Spoil to the Leaders or Officers who were to be undertakers to the common People or the Souldiers I remember Mr. Hobbs in his History of the Civil Wars of England Hobbs his History of the Civil Wars blames King Charles the First for engaging in a War against the Parliament while at the same time he pretended to justify what he did by Law and to leave all that that assisted him to answer to the Law when he should have encouraged them to have been hearty on his side by hopes of the Spoil of the Nation but whatever may be the Inducements to fight for an Authority lawfully establish'd before surely no People ever submitted to any without a prior Obligation but where they had hopes or expectations of Advantage or Ease the obtaining of which if not made a Condition was ever implied Suppose a Colony of some hundreds of Men among which one is chosen General Head or Leader without any particular or express Contract and his Son suffered to succeed after him Is the Power either of Father or Son antecedent or obligatory before the free Consent of the rest has past Or is it to be imagined that either the Father or his Successor have this People as an Inheritance given them from above to dispose of their Lives and Fortunes without any regard to the Good of All The most sensible of them who utterly deny that any Power can be derived from the People as fighting against their fancied Divine Right of Kingship own that the People have a Right to design the Person Vid. Sacrosanct Regum Majest Potestas designativa personae vel collativa Potestatis tho not to confer the Power only these Men will have it that the extent of the Power of a King is ascertained by God himself which I must needs say I could never yet find prov'd with any colour But to avoid a Dispute needless here since the Question is not so much of the Extent of Power as of the Choice of Persons or Derivation of it Whether any Choice is allowable for us must be determined by the fundamental or subsequent Contract either voluntary or impos'd by Conquest and 't is this which must resolve us whether the Government shall continue Elective or Hereditary to them that stand next in the course of Nature guided to a certain Channel by the common Law of Descents or limited only to the Blood with a Liberty in the People to prefer which they think most convenient all Circumstances considered And if our Constitution warrants the last then we may cut the Gordian Knot and never trouble our selves with Difficulties about a Demise or Cession from the Government or Abdication of it for which way soever the Throne is free from the last Possessor the People will be at Liberty to set up the most deserving of the Family or whom they judg so unless there be subsequent Limitations by a Contract yet in force between Prince and People which being dissolv'd no Agreements take place but such as are or have been made among themselves Vid. infra cap. In which Case whatever ordinary Rule they have set themselves they may alter it upon weighty Considerations And that the People of England have lawfully and rightfully renounc'd their Allegiance sworn to J. 2. and transferr'd it to the most deserving of the Blood notwithstanding any Oaths or Recognitions taken or made by them I shall evince not only from the Equity of the Law and Reservations necessarily implied in their Submission to a King but from the very Letter explain'd by the Practice of the Kingdom both before the reputed Conquest and since CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon this Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and Quotations out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion
Mr. Lawson's Opinion Bp Bilson's whose Authority is confirm'd by the Objection made to it in the History of Passive Obedience To which is added the Divine Plato FOR the Equity and reserv'd Cases I think it appears in the nature of the thing that they for whose benefit the Reservation is must be the Judges as in all Cases of Necessity he who is warranted by the Necessity must judg for himself before he acts tho whether he acts according to that Warrant or no may be referr'd to an higher Examen But where the last Resort is there must be the Judgment which of necessary Consequence in these Cases must needs be in the People the Question being of the Exercise of their Original Power and where they have by a general Concurrence past the final Sentence in this case their Voice is as the Voice of God and ought to be submitted to The late Earl of Clarendon Survey of the Leviathan p. 86. speaking even of a Contract wherein the absolute Power of a Man's Life is supposed to be submitted says He was not bound by the Command of his Soveraign to execute any dangerous or dishonourable Offices but in such cases Men are not to resort so much to the Words of the Submission as to the Intention which Distinction he will have applicable to all that monstrous Power which Mr. Hobbs gives his Governour to take away the Lives and Estates of his Subjects without any Cause or Reason upon an imaginary Contract which if never so real can never be supposed to be with the Intention of the Contractors in such Cases * Cocceius de Principe p. 197. Leges fundamentales Regni vel Imperii quae vel disertè pactae sunt cum Principe antequam imperium ineat c. Cocceius holds the fundamental Laws of any Kingdom or Empire to be not only those for which there has been an express Contract with a Prince before or upon his assuming the Government but such also as seem tacitè inesse rei publicae to be implied as belonging to every Community or Civil Society For the direction of Mens Judgments in such Cases they need not consult voluminous Authors but may receive sufficient Light from those excellent Papers The Enquiry into the present State of Affairs The Grounds and Measures of Submission and The brief Justification of the Prince of Orange ' s Descent into England and of the Kingdom 's late Recourse to Arms. Which I shall here only confirm by some Authorities The first as being of most Credit among them who raise the greatest Dust Sanderson de Juramenti obligatione p. 41. shall be Bishop Sanderson Of the Obligation of an Oath who shews several Exceptions or Conditions which of Common Right are to be understood before an Oath can oblige in which I shall not confine my self to the Order in which he places them 1. If God permit because all things are subject to the Divine Providence and Will Nor is it in any Man's Power to provide against future Accidents Wherefore he who did what lay in him to perform what he promis'd has discharg'd his Oath 2. Things remaining as they now are Whence he who swore to marry any Woman is not oblig'd if he discovers that she is with Child by another These two Exceptions sufficiently warrant Submission to such Government as God in his Providence shall permit notwithstanding Oaths to a former King And if he cease to treat his People as Subjects the Obligation which was to a Legal King determines before his actual withdrawing from the Government 3. As far as we may as if one swear indefinitely to observe all the Statutes and Customs of any Community he is not oblig'd to observe them farther than they are lawful and honest 4. Saving the Power of a Superior Whence if a Son in his Father's Family swear to do a thing lawful in it self but the Father not knowing it commands another thing which hinders the doing that which is sworn he is not bound by his Oath because by the Divine Natural Law he is bound to obey his Father And he who has sworn not to go out of his House being cited to appear before a lawful Judg is bound to go out notwithstanding his Oath the Reason is because the Act of one ought not to prejudice the Right of another These two last Instances added to the Consideration of a Legal King Vid. Stat. 13. car 2. c. 1. will qualify the Oath declaring it not lawful upon any pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person or aginst those that are commissioned by him This I think I may say with warrant from Bishop Sanderson That no Man is bound by this Oath to act against Law Vid. infra p. under colour of the King's Commission Vid. Grounds and Measures of Submission Salus Populi suprema Lex nor to permit such Actions if it be in his Power to hinder them the common Fundamental Law being in this Case the Superior which he is to obey and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary To Bishop Sanderson I may add Grotius Vid. Johannis à Felde Annotata ad Grot. c. 3 4. who runs the Prerogative of Kings as far as any Man in reason can Yet he allows of reserved Cases in which Allegiance may be withdrawn tho there is no express Letter of Law for it As 1. Where the People being yet free Grot. de jure Belli Pacis c. 3. p. 60. Vid. Pufendorf Elementa Juris prud p. 256. Nemo alteri potest quid efficaciter injungere per modum praecepti in quem nihil potestatis legitimae habet Grot. c. 4. p. 86. habet pro derelicto command their future King by way of continuing Precept Whether there be any such with us can be no doubt to them who read the Coronation Oaths from time to time required and taken upon Elections of some Kings and the receiving others by reason of prior Elections and Stipulations with their Predecessors 2. If a King has abdicated or abandon'd his Authority or manifestly holds it as derelict indeed he says he is not to be thought to have done this who only manages his Affairs negligently But surely no Man can think but the Power of J. 2. is direlict And he cites three Cases wherein even Barclay the most zealous Asserter of Kingly Power allows Reservations to the People 1. If the King treats his People with outragious Cruelty 2. If with an hostile Mind he seek the Destruction of his People 3. If he alien his Kingdom This Grotius denies to have any effect and therefore will not admit among the reserved Cases Vid. Mat. Par. Addit f. 281. The King of France his Attorny General speaking of King John 's resigning his Crown to the Pope Etsi dare non potuit potuit tamen
dimittere But if no Act which is ineffectual in Law will justify the withdrawing Allegiance then none of the Instances will hold for to that purpose they are equally ineffectual Yet who doubts but the King doing what in him lies to alien his Kingdom gives pretence for Foreign Usurpations as King John did to the Pope's And whoever goes to restore the Authority of the See of Rome here be it only in Spirituals endeavours to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion Vid. Bellarm. how the Pope hooks in Temporals in ordine ad Spiritualia Nor can it be any great Question but the aliening any Kingdom or Country part of the Dominion of England will fall under the same Consideration which will bring the Case of Ireland up to this where the Protestants had been disarm'd and the Power which was arm'd for the Protection of the English there Vid. Leges S. Edwardi put into the Hands of the Native Papists nor is it now likely to be restor'd to its Settlement at home or dependance upon England without vast Expence of Blood and Treasure Even the Author of Jovian owns Dr. Hick 's his Jovian p. 280. Ib. p. 192 193. that the King's Law is his most Authoritative Command and he denies that the Roman Emperor had any Right to enslave the whole People by altering the Constitution of the Roman Government from a Civil into a Tyrannical Dominion or from a Government where the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. No Clergy-man of the last or foregoing Reign having treated of Civil Government with more Temper and Judgment and yet with greater Applause of the warmest Men of his own Gown Falkner 's Christian Loyalty Ed. An. 1679. than the Learned Mr. Falkner of Lyn I shall be the longer in giving an account of his Discourse of Christian Loyalty which will prove an Authority on my side beyond what could be hop'd for considering the time when his Book came out with License and a Dedication to the Archbishop of Canterbury it being when Mr. Johnson by way of Composition against a threatned Suspension was oblig'd to drink his Coffee at home lest he should inlighten his Brethren who fill'd all places of publick Resort with their Pulpit-Law and the Dictates of their Guide Sir Roger. I must own that Mr. Falkner was in some things carried away with that Tide which if any of that Cloth besides Mr. Johnson had the Courage to stemm they had at least the good fortune to be less observ'd but the shewing wherein the Author of Christian Loyalty gave too much way to the Fashion or the Noise may yield farther strength and light to that Truth which will arise out of those very Clouds with which he might think requisite to obscure it His Treatise is in two Parts in the first he vindicates and endeavours to explain the Oath of Supremacy 1. In relation to the Regal Power as it is receiv'd in our Church or at least by Church-men or as it is acknowledged by our Laws 2. As the Oath renounces all Foreign Jurisdiction the last of which falls no otherwise under Consideration here than as it shews the King's Duty to preserve his Ecclesiastical as well as Civil Supremacy and not to alienate either In the second part this Worthy Author considers the publick Declarations against Subjects taking Arms. Page 14. 1. In the first he rightly affirms That the asserting the Supremacy of Government is never design'd meaning I supppose by the Law in any wise to violate either Divine or Christian Institutions or to assert it lawful for any Prince to invade that Authority and Right which is made particular thereby whether in Matters Temporal or Spiritual Where by Christian Institutions Page 3. 't is plain that we are to understand the Ecclesiastical and Civil Laws of Christian States or the Laws of others not contrary to Christianity and thus he deservedly blames them who nourish false Conceptions and mistaken Opinions concerning the CIVIL POWER beyond due Bounds exalting it so high as not to reserve that Respect which belongeth to God and Christian Institutions Page 15. and rightly observes that the Supremacy does not exclude the Subject from a real Propriety in his own Estate And that there are some Kingdoms where without any Disparagement to the Supremacy of their Prince Page 11. they are govern'd by the fixed Rules of the Civil Law and others where other Laws established by their Predecessors are standing Rules Page 391. And particularly in relation to the People of this Realm he says in the second Part The English Constitution doth excellently and effectually provide against injurious Oppressions Of which more in its place 1 Canon An. 1640. However I cannot but here observe that even the Canons of 1640. which he receives as speaking the Sense of the Church of England own that the Subject has a Propriety but withal say that Tribute Custom and Aid and all manner of necessary Support and Supply are due to Kings from their Subjects by the Law of God Nature and Nations yet tho it is the Duty of Subjects to supply the King it is part of the Kingly Office to support his Subjects in the Propriety and Freedom of their Estates Still it seems subject to the King's Judgment of necessity which is right Sibthorpism and Manwarinism afterwards eccho'd to by the Courts at Westminster in the Resolution about Shipmoney and of late in that of the Dispensing Power I think in two things what Mr. Falkner writes upon the first Head lies open to Exception 1. That generally by Civil Power Page 356. he seems to mean the Person of the King and that not according to his own Definition of a King which he says doth denote the Royal Person who governs which himself owns to be according to the respective Limitations in those places where they govern many having the Title of a King Page 339. who had not such Royal Power as is allowed by our Constitution but he ascribes to a King generally speaking and particularly to ours such a Soveraignty as carries with it the absolute and arbitrary Exercise of that Civil Power whereby a Nation is govern'd Thus he asserts with St. Austin That Subjests may and ought to obey their Prince's Commands where they are certain Page 302. that what he commands is not against the Command of God And hence he attributes to the Kings of England even more Power than he allows to the Roman Christian Emperors as will soon appear And it appears that this is not only a casual dash with his Pen Page 123. for having before in one place spoken of the business of the Civil Power describ'd by St. Peter Page 131. in another he mentions the Authority with which he supposes Kings and Princes to be
against the Ammonites upon his present hearing the Cause of the Men of Jabish Gilead The Text says The Spirit of God came upon Saul 1 Sam. 11.6 And tho wicked Ahab would have engag'd Jehosaphet the King of Judah who was with him out of his own Country in a War against Syria without consulting the Order of Prophets in Israel 't is of his own shewing that Jehosaphet would not undertake it till the Prophets of Israel were consulted and had encouraged it However Jehosaphet having been King of Judah is not an Instance so directly to the Point But as Mr. Falkner notwithstanding his Mistakes in comparing our Polity to the Jewish shews a Propriety in the Subject Vid. Canon 1. 1640. beyond what they will allow who infer a contrary Right from that manner or way of Kings with which Samuel The Hebrew imports no more than ratio or mos the Chaldee Paraphrase Statutum Regis either would deter the People of Israel from choosing one or at least foretels what they would lose by quitting the Theocracy administred by Persons more immediately commissioned by God himself Mr. Falkner no less fully comes up to the case of putting the Kingdom under any other Head than that which the Law allows and says The Constitutions of this Realm oblige all the Subjects thereof to maintain the the Royalty of the Crown and further that it is a great and special Priviledg of a free-born People that they cannot Falk p. 234. according to the Condition of Slaves have the chief and principal Dominion over them translated from one to another according to the Pleasure of any Person whomsoever though it be their own natural Prince What was in his Judgment the due Consequence of such an Attempt will appear by considering his second part Mr. Falkner's second Part. where he speaks more directly to it and tho it be against the Subjects taking up Arms upon any pretence whatsoever yet it sufficiently justifies the late real Occasion for recourse to them ultimo necessitatis praesidio Vid. Inf. It must be understood that looking upon the Canons of 1640 as the Sense of our Church he thinks himself bound to assert the Divine Right of Kingship Page 419. in a more peculiar manner than any other Form of Government and having duly observ'd that in those States or Relations which are fixed by Divine Institution Page 422. there are some things so necessary and essential that they cannot be separated from them Page 423. he makes Irresistibleness to be one of those Essentials nor could he do less Vid. Stat. 13. Car. 2. cap. 12. which provides that it shall not be thought to extend to confirm the Canons made in the Year 1640. Page 419. Can. 1. 1640. seeing tho all the Canons of 1640 lie under a Censure of much greater Authority in our Church than that with which they were made he cites the first Canon as the Sense of our Church That the most high and sacred Order of Kings is of Divine Right being the Ordinance of God himself founded in the prime Laws of Nature and clearly established by the express Texts both of the Old and New Testaments upon this ground he might well suppose that the People in chusing a King which he allows often to have been where there hath been a Vacancy and none could claim a Right of Succession whatever Terms or Contract were made at the Choice Page 414. Page 420. stand obliged from the Nature of that Relation they thereby enter into Page 414. and the Laws which God hath established concerning it and not only from their own Intention And if the Rights of Princes or any of them are ascertain'd by God himself Page 423. not by the ancient Constitution of the Government or express Contract then indeed even in Elective Principalities those Divine Rights of Soveraingty as well as such as arise from the Original or more immediate Contract are invested in the Person elected thereto before the Coronation But to qualify this 't is to be consider'd that he contends that the Declaration against taking Arms relates particularly to the King not indefinitely to any King and can bare no other Construction than to condemn the English Subjects taking Arms against their natural Soveraign the King of England Page 338. and therefore tho the like Attempts against any other Kings who enjoy Soveraign Authority are equally blameable in their Subjects yet this Position says he does not assert the utter unlawfulness of taking Arms amongst any other Nations against him who hath the Title of King if he doth not therewith enjoy that Right of Supream Government which our Kings have and exercise So that notwithstanding the Canons of 1640 even in his Judgment the Laws of England must determine this Controversy And elsewhere he grants what shews that the Examples for Passive Obedience which he instances in from the Jews or Primitive Christians will not affect us Page 541. The Agreement saith he between the Condition of those Jews whom he mentions and the Primitive Christians under their Persecutions was so great that if the Laws of Nature would have allowed these Jews to resist it must also have been lawful for the Christians to have done the same which is contrary to their general Profession and universal Practice But then in relation to the Practice he says Page 501. The Result of all these Testimonies is that when the Authority Laws and Rules of Government they liv'd under did oppose the Christian Profession or the Truth and Purity of its Doctrine they thought it their Duty patiently to suffer and not in Opposition to those Laws which were then establish'd to take up Arms against their Governours And coming to Examples of Passive Obedience among the Jews when the Soveraign Power had undertaken to destroy a part of the People he says Forasmuch as the Soveraign Power in Judea Page 535 536 537 538. and many other Eastern Nations and also in the Roman Empire as their Laws declare had such an Authority that the particular Rescripts and Edicts of the Emperors were accounted Law and what they determined was a Legal Decision or Sentence and a judicial way of proceeding From these Considerations he supposes it was not lawful for any of the Persons in the Instances above-mentioned by him tho some of them were unjustly sentenced to have taken Arms in their own Defence But he tells us Page 539. The excellent Constitution of our English Government hath this advantage among others that it gives sufficient Security to the English Subjects that there is no way of judiciary or legal Proceeding by the King himself or any other against the Life or Property of any Person who lives peaceably and orderly but according to the establish'd Laws of the Land and upon a fair Trial of his Case Nor will our Laws allow any such general Sentence which may take in innocent Persons The destroying
Corporations the managing Juries and improving Religious and lawful Civil Assemblies into Riots nay Consults for Treason had not then been brought to Perfection And the Dispensing Power having been attempted but receded from he says The true Religion is established by our Laws Page 542. and no Law can be repealed or altered to the Prejudice of English Subjects by the Pleasure of any Prince alone and without the Consent of the Peers and the Representatives of the Commons of England And indeed the good Man takes a great deal of Pains from the Duty Honour and Interest of the Prince the danger to evil Instruments and the like to prove that it ought not to be presumed that any such Case as we have known will happen which at this time looks like a Philosophical Argument against Motion and deserves the like Confutation However Page 532. looking upon such Violations as but simply possible he maintains that the Declarataion against taking Arms ought to be in general Terms for that such extraordinary Cases as may be put fall not under Consideration Page 361. I may add till they happen for then they must be put and remembred to justify what they have render'd necessary Nay himself restrains the general Terms to a Subject's taking Arms without any Command from his Prince Page 360. against those who act by virtue and in pursuance of his Commission REGVLARLY granted to them Page 346. I will yield to him that it would be an high Reflection upon the Laws of our Realm if there were need of consulting skilful Lawyers for the general Rule of Duty and to whom Men ought to yeild Obedience and Submission Yet if learned Men will confound the plain Rule of Submission to the Powers which are in being by setting up a supposed inseparable Right in a Power which once had a being but is become a meer Shadow and Spectre 't will be requisite to have recourse to them who have taken some pains in enquiring into the Constitution of the Government to see what Remedy is thereby allowed in extraordinary Cases Christian Loyalty p. 521. And whereas speaking of Officers suppos'd by some to have Authority of resisting in such Cases he seems to know of none but by Charter or Commission having their Authority depending upon the King a little Skill in the Law or in Antiquity would have inform'd him of several others at least such as were not so dependent Vid. inf of the Earl Marshall c. Vid. The Act of Pacification between the English and the Scots Temp. Car. 1. which provides that it shall be lawful for the Subjects of either Nation to fall upon the Forces which shall come out of one into the other without the Consent of the Parliaments of both Kingdoms not only hereditary Great Officers and other Great Men of the Kingdom but other Officers chosen by the People the Heretochii or Lords Lieutenants and the Sheriffs anciently and the Officers in Boroughs by Prescription and Constables at this day I will be as ready as he to maintain that for the future such Supposals as he touches with great Fear and Tenderness will be very remote Possibilities and being look'd upon in our Law as vain in the Apprehension are thought not to stand in need of any particular Provision but he mentions three Cases in which upon yeilding the Suppositions Page 531. he grants the Answer given by Barclay to two of them and to all three by Grotius to be true To the general Question May there no Cases fall out in which the People by their Authority may take Arms against the King Page 515. Barclay answers Certainly none as long as he is King or unless ipso jure Rex esse desinat which is pregnant with the Affirmative that there may be some Case wherein he by Law or of Right ceases to be King And Barclay manifestly allows of two Grotius adds a third branch'd into a fourth in which Mr. Falkner concurs with him as well as with Barclay and Grotius in the other two Pag. 525 527. The first particular Case upon which he delivers his own Opinion Voluntary Resignation or Cession or Abdication without referring to Authorities is of a King 's voluntarily relinquishing and laying aside his Crown and Government of this several Examples are mentioned and among the rest nine of our Saxon Kings Page 426. and he rightly observes that if such Persons should act against the settled Government of their respective Kingdoms after they are fixed in the next Heir in an Hereditary Kingdom or in another King according to the Constitution of Elective Principalities the resisting any of them is not the taking Arms against the King but against him who now is a private Person If therefore the late King's Abdication were such a relinquishing as he means Vid. sup f. 13. which it must be if he receive Grotius or if he hold to the other Cases in which as it will appear he yields that he would be devested of Soveraignty in all such Cases every thing is lawful against the late King that would be lawful against any other private Person 2. The second Case agreed by all three and by Bishop Bilson Page 526. is of a Prince ' s undertaking to alienate his Kingdom Alienation of the Kingdom or to give it up to the Hands of another Soveraign Power against the Mind of his Subjects And he thinks Barclay Grotius and Bishop Bilson truly to assert that such an Act of Alienation or of acknowledged Subjection especially if obtained by evil Methods as was done in the Case of King John is null and void and therefore can neither give any Right of Soveraignty to another nor dispossess the King himself thereof But if any such Prince shall actually and forcibly undertake to bring his Subjects under a new Supream Power who have no Right thereto and shall deliver up his Kingdom to be thereby possess'd Grotius saith he doubteth not but he may be resisted in his undertaking but then says Mr. Falkner this Resolution must proceed upon this ground that this Action includeth his devesting himself of his Soveraignty together with his injurious proceeding against those who were his Subjects And Barclay who allows only two Cases in which a Prince may be devested of his Royal Dignity doth account this to be one of them Not to mention the notorious truckling to France and Pupilage under that bribing and imposing Monarch since the Kings of England are Supream in Ecclesiastical as well as Civil Affairs and the late King by Force and open Violation of the Laws against the universal Bent and Mind of his People renounc'd his own Supremacy in yielding to the Pope's and since the People might resist him therein but that which justified their resisting him devested him of his Soveraignty 't is evident that according to Mr. Falkner and the Learned Men whose Authority he receives the late King thereby ceas'd
particular Consideration of him to the second Part. TO proceed to positive Law I shall shew how the Contract between Prince and People stood and hath been taken both before the reputed Conquest and since Where 't will appear 1. That Allegiance might and may in some Cases be withdrawn in the Life-time of one who continued King until the occasion of such withdrawing or Judgment upon it 2. That there was and is an establish'd Judicature for this without need of recurring to that Equity which the People are suppos'd to have reserv'd 3. That there has been no absolute Hereditary Right to the Crown of England from the beginning of the Monarchy but that the People have had a Latitude for setting up whom of the Blood they pleas'd upon the Determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force 4. That they were lately restored to such Latitude 5. The People of England have duly exercis'd their Power in declaring for King William and Queen Mary and recognizing them to be Lawful and Rightful King and Queen 1. If the King not observing his Coronation-Oath in the main lose the Name of King then no Man can say that Allegiance continues But that so it was before the reputed Conquest appears by the Confessors Laws Vid. Leges Sancti Edwardi 17. de Regis Officio Nec nomen Regis in eo constabit where they declare the Duty of the King But the King because he is Vicar to the Supream King is constituted to this end that he should rule his Earthly Kingdom and the People of God and above all should reverence God's Holy Church and defend it from injurious Persons and pluck from it wrong Doers and destroy and wholly ruin them Vid. Bracton l. 2. c. 24. Est enim Corona Regis facere Justitiam Judicium tenere Pacem sine quibus non potest eā tenere which unless he does not so much as the Name of a King will remain in him c. To which Bracton seems to refer when he says The King cannot hold his Crown without maintaining Justice Judgment and Peace that therein consists his Crown or Royal Authority Hoveden shews how this Law was receiv'd by William 1. Hoveden f. 604. Rex atque Vicarius ejus Nota There was occasion for naming the Deputy by reason of the accession of Normandy requiring the King's Absence sometimes The King and his Deputy or Locum tenens in his Absence is constituted to this end c. in substance as above Which unless he does the true Name of King will not remain in him And as the Confessor's Laws have it in which there is some mistake in the Transcriber of Hoveden otherwise agreeing with them Pope John witnesses That he loses the Name of King who does not what belongs to a King which is no Evidence that this Doctrine is deriv'd from the Pope of Rome The Pope only confirms the Constitution or gives his Approbation of it Vid. The Case of Rehoboam inf in the Quotation out of Lord Clarendon f. 32. perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right And to shew that this is not only for violating the Rights of the Church the Confessor's Laws inform us that Pipin and Charles his Son not yet Kings but Princes under the French King foolishly wrote to the Pope asking him if the Kings of France ought to remain content with the bare Name of King Lambert Qui vigilanter defendunt regunt Ecclesiam Dei Populum ejus By whom it was answer'd They are to be called Kings who watch over defend and rule God's Church and his People c. Hoveden's Transcriber gives the same in substance but through a miserable mistake in Chronology will have it that the Letter was written by Pipin and his Son to W. 1. Lambart's Version of St. Edward's Laws goes on to Particulars among others That the King is to keep without diminution all the Lands Honours Dignities Rights and Liberties of the Crown Barones Majores Minores Vita Aelfredi f. 62. Ego tria promitto populo Christiano meisque subditis c. That he is to do all things in his Kingdom according to Law and by the Judgment of the Proceres or Barons of the Realm and these things he is to swear before he is crown'd By the Coronation-Oaths before the reputed Conquest and since all agreeing in Substance every King was to promise the People three things 1. That God's Church and all the People in the Kingdom shall enjoy true (a) Nota Protection Peace 2. That he will forbid Rapine and all Injustice in all Orders of Men. 3. That he will promise and command Justice and Mercy in all Judgments And 't is observable that Bracton Bracton lib. 3. c. 9. who wrote in the time of H. 3. transcribes that very formulary or rather Abridgment of the Oath which was taken by the Saxon Kings In Bracton's time 't is certain the Oath was more explicit tho reducible to those Heads and 't is observable that Bracton says The King is created and elected to this end that he should do Justice to all Where he manifestly shews the King's Oath to be his part of a binding Contract it being an Agreement with the People while they had Power to chuse With Bracton agrees Fleta and both inform us Fleta lib. 1. c. 17. that in their days there was no scruple in calling him a Tyrant and no King who oppresses his People violatâ dominatione as one has it or violentâ as the other either the Rule of Government being violated or with a violent Government both of which are of the like import Mirror p. 8. The Mirrour at least puts this Contract out of dispute shewing the very Institution of the Monarchy before a Right was vested in any single Family or Person When forty Princes who had the Supream Power here chose from among them a King to reign over them and govern the People of God and to maintain the holy Christian Faith and to defend their Persons and Goods in quiet by the Rules of Right And at the beginning they caused the King to swear That he will maintain the holy Christian Faith with all his Power and will rule his People justly without regard to any Person and shall be obedient to suffer Right or Justice as well as others his Subjects And what that Right and Justice was in the last result the Confessor's Laws explain when they shew that he may lose the Name of King Vid. Seld. spicil ad Ead. merum f. 171. Dissert ad Flet. f. 591. Hoved. f. 608. Leges H. 1. confirming St. Edward ' s Laws Cum illis emendationibus quibus Pater meus emendavit consilio Baronum suorum Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates Leges Regis Edwardi f.
244. partim in cartâ Regis Henrici scripta sunt partim ex legibus Regis Edwardi antiquis excerpta sunt These Laws were not only received by W. 1. and in the Codex of the Laws of H. 1. but were the Laws which the Barons in their early Contests which they had with their encroaching Kings always press'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 Arch-bishops or others careful only of Clerical Rights provided for no more of those Laws than concerned them leaving out the People's share as if while the Clergies Rights and Power were kept up a Nation could never be in danger of suffering under Tyranny Vid. Appendix to Plain English Ed. An. 1690. Vid. Rushw 1 vol. f. 200. Coronation of C. 1. namely the Laws Customs and Franchises granted to the Clergy by the glorious King St. Edward Vid. Rot. claus 1. E. 3. Rot. claus 1. R. 2. n. 44. Magna Cart. Ed. cum Privilegio An. 1558. Juramentum Regis quando coronatur Spelman Glos tit Fidelitas By the 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 has taken his 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 * Vid. Cujac de feudis lib. 2. f. 512. Et quibus ex causis vassallus feudum amittit eisdem etiam fere Dominum proprietatem sine diminutionem feudi amittere eamque vassallo accedere 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 With Cujacius agrees the no less judicious Civilian Pufendorf one of the Ornaments of the present Age. When says he the Power is conferr'd upon a King there is a mutual Translation of Right or a reciprocal Promise †Sam. Pusend de Interregnis p. 274. Quando in Regem confertur Imperium est mutua juris translatio seu reciproca promissio Object If it to objected That tho there might have been such a Contract with a free People at the beginning it ceas'd to be so from the time of the Conquest I answer Answ 1. Till there be a Consent and Agreement to some Terms of Government and Subjection 't will be difficult if possible to prove any Right in a Conqueror but what may be cast off as soon as there is an opportunity Yeilding says a judicious Author Vid. Templum Pacis pag. 767. Deditio est pactus quo bello 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 Et compositum sive conditionatum quando alterius quidem potestati quis sese subjicit sed sub conditionibus quibus aut singuli sibi consulunt aut toti universitati is a Pact by which he that is overcome in War to avoid a greater Evil submits himself to anothers Power and takes new or strange Laws This says he may be divided into simple or pure when any one submits himself to the meer Will and Pleasure of the Conqueror And compound or conditional when indeed one submits to anothers Power but under Conditions whereby either every Man provides for himself or for the whole Community And to the same purpose Textor in his Synopsis of the Law of Nations Textoris Synopsis Juris gentium p. 129. Victory says he is either restrain'd by Compact or absolute in the first case the Conqueror acquires no more Right than was yielded to him by the Pact And the Lord Clarendon says Survey of the Leviathan p. 45. All Government so much depends upon the Consent of the People that without their Consent and Submission it must be dissolv'd The Author of the Temple of Peace makes the most Absolute Submission a Pact and as the ground of it is the avoiding a greater Evil it implies that tho no Terms are express'd the Inhumanity and Tyranny of a Conqueror may work a discharge however we have no need of following that Implication Gemetecensis de Ducibus Norm lib. 6. c. 37. Walsing Hypod. Neustriae f. 436. Sim. Dunelm f. 195. Hoveden f. 450. Flor. Wigorn. f. 634 635. 2 Sam. 5.3 the Contract between W. 1. and the People being as express and as conditional as can be desir'd For 2. Every Election of a King truly so call'd is an Evidence of a Compact but ancient Authors tell us that W. 1. was elected King nay they are express that he was receiv'd upon a mutual Contract and that Faedus 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 King William's Coronation-Oath was the same with that which was taken by his Saxon Predecessors Lord Clarendon 's Survey of the Leviathan pag. 109 148 149. aequo jure 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 Vid. inf second Part. 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 Prince under him enjoyed came from the Compact not from the breach of Faith Vid. inf 3. If the Compact were not sufficiently express'd at the first at least it was made so by his several Confirmations of the Confessor's Laws which he receiv'd with that very Clause which shews in what case he would cease to be King of England 4. He neither at the beginning nor in the course of his Reign pretended in the least to be a Conqueror but always insisted upon Title which as I shall shew was such as was not disputed in those days the Choice of the People and this before his Victory over Harold Vid. inf second Part. who was always look'd on as an Usurper not having been set up by a true Choice of the People but crown'd by a Surprize and contrary to that Election and Designation of a Successor to the Confessor made
lay to hold in Vassallage of the Pope as well as by other his Exorbitances yet was not set aside till the Nation was necessitated to it by the Success of his Usurpations and Ravages to which as he was encouraged and enabled by the Influence of the Pope's Authority over the less honest or less discerning so he thereby lost all means of gaining Trust from his People for the future The Earls and Barons of England having without any Writ from the King given one another notice of meeting demonstrated that they engag'd not out of any Affectation of Change but meerly to secure those Liberties which were their due by the Constitution for they agreed to wage War Mat. Pa. f. 339. and renounce Allegiance to him only in case that he would not confirm those Liberties which were contain'd in the Laws of Hen. 1. and the ancient Laws of King Edward the Confessor That they might proceed with such Deliberation as became them they appointed another Meeting for a peremptory Demand declaring that if he then refus'd them they would compel him to Satisfaction by seizing 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 which tho they were as forceable in Law before and his Promise to maintain them as little to be credited as ever yet his open Violation of them after his own solemn acknowledging them and granting that Petition of Right was likely to cast the greater Load upon him and his Courtiers when they should act to the contrary and to take from their side numbers of well-meaning Men who otherwise might be cheated with a pretence of Prerogative The Pope as was to be expected soon absolv'd the King and encourag'd him to break those legal Fetters which was ipso facto an Absolution to the People of more effect in Conscience than the Pope's ipso facto Excommunications They being thus discharged the wiser and sounder part of them stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France Mat. Par. lib. Addit An. 1216. The Account in Matthew Paris of a Debate which the French King and his Advocate or Attourny-General held with the Pope's Nuncio who would have disswaded the Dauphin's Expedition against King John the Pope's sworn Vassal is so exactly parallel to the Case now in question that many who will allow us no Precedent of ancient Times will be ready to say that some words at least were foisted in since our present happy Settlement The French King as became a Monarch spake his mind in few words Si aliquando fuit verus Rex postea Regnum forisfecit per mortem Arthuri de quo facto damnatus fuit in Curiâ nostrâ Item nullus Rex vel Princeps potest dare regnum suum sine assensu Baronum suorum qui regnum illud tenentur defendere If ever he were King he afterwards forfeited his Kingdom by killing Arthur of which Fact he was condemned in our Court. Besides no King or Prince can give his Kingdom without the Assent of his Barons who are bound to defend it That is to preserve the Kingdom against the King who has parted with it or any Demisee as appears by his Advocate 's Enlargement to whom he left the rest after himself had granted all Kingly Power to have this implied Limitation Mat. Par. Addit f. 281. The Advocate goes on addressing himself to the King Domine Rex Res notissima c. May it please your Majesty It is a thing well known to all that John called King of England was condemned to death in your Court for his Treachery to his Nephew Arthur whom he slew with his own Hands And was afterwards by the Barons of England for his many Homicides and other Enormities there committed rejected from reigning over them Whereupon the Barons waged War against him Ne regnaret super eos reprobatus ut ipsum solio regni immutabiliter depellerent that they might drive him from the Throne of the Kingdom never to return Moreover the said King without the Assent of his great Men gave his Kingdom to the Pope and the Church of Rome to receive it again to be held under the yearly Tribute of a thousand Marks Dare non potuit potuit tamen dimittere eam And altho he could not give the Crown of England to any one without his Barons he might demise it or devest himself of it which as soon as he resign'd he ceased to be King and the Kingdom was vacant without a King Therefore the vacant Kingdom ought not to have been administred without the Lords What difference between the Kingdoms being vacant without a King and the Throne vacant Vacans itaque Regnum sine Baronibus ordinari non debuit unde Barones elegerunt Dominum Ludovicum ratione Uxoris suae c. By reason of which the Barons chose Lord Lewis upon the account of his Wife whose Mother the Queen of Castile was the only Survivor of all the King of England's Brothers and Sisters This was so true and so convincing that the most plausible Return which the Pope's Nuncio could make to it was that King John had been sign'd with the Cross for the Service of the Holy Land and that therefore by the Constitution of a General Council he ought to have Peace and be under the Pope's Protection for four Years And you may be sure that the French King would not interrupt him in his Journey thither but was well satisfied that his Son should supply his place in England Who tho he had been received not only as one that rescued the Nation from King John's enormous Tyranny but as one that was in the Right of his Wife entitled to the Priviledg of the English Blood Royal and so duly chosen according to the standing Law of this Monarchy as has been mentioned and will hereafter more fully appear Vid. sup inf Yet the Clergy and all who were so weak as to be led by them in Civil Affairs being against Lewis Mat. Par. f. 384. as he stood excommunicated by the Pope besides it having been made known by the Death-bed-Declaration of one of Lewis his Confidents that his Master had evil Designs against those very Men who were the chief Instruments in his Advancement and that he look'd upon them who fought for him as Traitors he through the uncertainty and indifference of his Friends more than the strength of his Enemies was oblig'd to quit the Kingdom to Hen. 3. Object This would lead me to the particular Consideration of the Barons Wars with H. 3. were it not needful first to remove an Objection against their Proceedings with his Father which tho not founded on the Histories of the same Age may seem to have weight from the Authority of Divines of later times The Homilies pass this Censure upon
Chief Justice were to be chosen by the like Consent and neither any of the Council nor other Officers were to be amov'd but by Order of the Majority of the Council or in full Parliament This they insist on as sworn at a Coronation of that King Edmund Archbishop of Canterbury being Sponsor for the King's Performance This Contract was certainly 20º H. 3. at his Third Coronation when he was Crown'd with his Queen newly married and had the Curtein carried before him to admonish him of the Consequence of a Breach Vid. inf That this was 20º when he was Thirty years old and in as flourishing a condition as at any time of his Reign till the chance of War had subjected his Barons to a more imperious Sway appears in that the Ceremonies of his first Coronation were perform'd by the Bishop of Winchester and Bath and Wells The second by Archbishop Stephen Ao 1220. in the third year after Lewis his departure which it seems was the first time that he was publickly receiv'd for King with an universal consent special notice being taken that the Coronation was in the presence of the Clergy and People of the whole Kingdom Besides Edmund was not Consecrated till the year 1234. 18º H. 3. and the Historian is express That Archbishop Edmund perform'd the Ceremonies of the Coronation 20o. There is farther Evidence that the Charter mention'd 28º H. 3. was granted 20º for it appears that the great Officers were appointed 20º according to the Charter which the Parliament 28º insist on as granted at a Coronation where Archbishop Edmund was present and undertook for the King's performance Mat. Par. f. 563 Officium Cancellariae Angliae omnia officia ordinata sunt quae Regia sunt Assise in scaccario unde Cancellarius Camerarius Mareschallus Constabularius sibi ibidem sedem sumpserunt ratione Officii sicut Barones omnes in sui Creatione Fundamentum in Civitate Londinensi unde quilibet eorum suum ibi locum sortitur Vid. Flet. lib. 2. cap. 26. Matthew Paris writing of the Twentieth says The Office of the Chancery of England and all Offices belonging to the Regal State and Sittings in the Exchequer were setled Whereupon the Chancellor Chamberlain Marshal Constable took their Seats there by reason of their Offices as all Barons at their Creation had their Foundation in the City of London Vid. inf 2d part This Right of Places at London in which 't is plain Westminster was then included seems to imply a Reason why the Acts of the Barons at London past both at home and abroad for the Acts of the Baronage of the Kingdom Hence the King of France Lewis his Father lookt upon their Invitation of his Son as the Binding Act of all accordingly he both demanded and had Four and twenty de Nobilioribus Regni Mat. Par. f. 373 Implorantes Patrem ut filium mitteret in Angliâ regnaturum Filium ut veniret illico Coronandus ' of the Chief Nobility of the Kingdom as Hostages for their performing what they had promis'd his Son which was the Crowning him King of England 3. The Third particular Contract was contained in the Provisions at Oxford 42º H. 3. which Provisions are Printed at large in the Annals of Burton and referr'd to in many Records now in the Tower Vid. Annales Burtonenses f. 412. Rot. Par. 42. H. 3. m. 3. Mat. Par. but the Record of the Provisions has been imbezled since Mr. Selden's time whose Abridgment of them I have seen There had been a Parliament that year at London met on Hoke-Tuesday a fortnight after Easter at that Parliament the King demanded Money the Parliament a redress of Grievances but nothing being concluded on the Parliament was Adjourn'd to Oxford the Barons having promis'd to give the King Supplies if He would Reform the State of the Kingdom which condition the King accepted of promising that the State of the Kingdom should be Reform'd by Twelve faithful persons of his Council chosen in that Parliament at London and Twelve others to be chosen by the Barons The Parliament meeting at Oxford according to the Adjournment Twelve were chosen by the Earls and Barons to be added to the Twelve before chosen of Counsel with the King These Twenty four chose Four of their own Number who named Fifteen to be a standing Council to the King And among the Regulations besides the choice of Officers and the Custody of the King's Castles it was provided That there should be Three Parliaments every year the first at the Octaves of St. Michael the second in Candlemas week Ke Treis Parlements seint par An. the third the first day of June To these Parliaments Twelve prodes homes honest legal men were to come for sparing the cost of the Commons and at other times when the King sent for them upon occasion to treat of the business of the King and the Kingdom and the Community were to hold for establish'd what these Twelve should do These might seem not to have been Parliaments to make Laws but Ordinances or Provisions in the Intervals and for sparing the trouble of more numerous Assemblies that they were but such as were known in after days by the name of Great Councils distinguish'd from Parliaments would seem by a Record of the time which is a Commission to Four Knights chosen according to the Provisions then made 42 H. 3. m. 3. De Inquisitionibus faciendis per singulos Comitatus Rex Aluredo de Lancaster Joan. de Rochford Joan. de Stroda Willo. de Raymes de Com. Dors cum nuper in PARLIAMENTO nostro apud Oxon. Communiter fuerit ordinatum c. Et inquisit inde fact sub sigillis vestris sigillis eorum per quos facta fuerint deferatis apud Westm in Octavis S ◠Mich. in propriis personis vestris liberand Consilio nostro ib. by Juries duly returned to enquire into all Abuses Enormities and Transgressions within the County of Dorset in the same form with others in the respective Counties throughout England The Inquisitions were to be returned at the Octaves of St. Michael the first Parliament appointed by those Provisions and this was at that very time to be brought to Westminster as one would think to be delivered into Parliament but it is in the Record said only To be delivered to our Council And I find that Writs issued out after the Parliament at Oxford Rot. Par. 42 H. 3. m. 1. Nus volens otroiens kece ke nostre Consel la greignure partie de eus ki est esluz par nus la commune de nostre Roiaume a fet ou fera a honir de dieu nostre foi pur le profit de nostre Roiame sicum il ordenera seit ferm establi in touts choses a tuz jourz Commandous a tuz noz faus leaus en la fei kil nous devient kil fermement teignent jurent a tenir
King I shall refer to Krantius Krantii Hist particularly in the remarkable Story of their King Eric who was Adopted Son of the Three Kingdoms Anno 1411. he having provoked his People by countenancing the outrages of his Officers and Common Soldiers was opposed 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 oppressed people This generous undertaking was so justly popular that Eric not able to stem the Tide withdrew from Denmark where he usually resided to Sweedland Engelbert's Noble Cause found so few opposers there that the King as a pattern to James 2. privately ran away and recommended his Nephew to succeed him But they told him plainly he was made King by Adoption Ib. f. 188. and had no Right to surrogate another Himself there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have received upon terms but he refusing the three Kingdoms unanimously chose one of another Family For the Authority of the people even in France Hottomanni Francogallia c. 23. insisted on no longer since then the time of Lewis 11. Hottoman gives a large proof in his Franco Gallia And I meet with an excellent Treatise of the French Government written originally in that Language by an eminent French Lawyer Claudius Sesellius soon after the death of Lewis 12. and dedicated to his Successour Francis 1. This Treatise the Learned German Sleidan Sleidani Dedicatio Ed. sexto Anno 1548. f. 263. Vid. Tres Gallicarum Rerum Scriptores Nobiliss A Johanne Sleidano e Gallico in Lat. Serm. convers Ed. Francofurti Anno 1578. turned into Latin and Dedicated it to our King E. 6. Sesel f. 268. Qui tutorio nomine Rempublicam procurant f. 269. Sesellius at that time looked upon France as an Hereditary Monarchy in which he admits that there may be great inconveniencies through the folly vice or minority of a Successour to a good Prince or the wickedness of those who execute the Government during his minority yet says he There are remedies at hand by which we may restrain a King Reigning Arbitrarily and them who have the care of one who cannot Govern for want of fit Age so that the King may have the Dignity which belongs to him and yet it may not be lawful for him to do what he pleases but what is agreeable to Law and Equity Provision is made for this by the best Laws and most Sacred Establishments which may not be violated without great hazard although sometimes force is offered to them He tells us their Kings have as it were three Bridles with which their Soveraign Power is restrained Sesellius f. 269. 1. Religion And if the awe of that is not sufficiently impressed upon him yet the reverence of some Holy Man may prevail it being allowable for any Bishop or other Ecclesiastical person of an unblameable life and in esteem with the people to admonish him of his Duty nor can he use any severities to his Admonisher without danger of alienating the affections of his people 2. The Jurisdiction of the Senate or Parliament whose Power he says Ut decretis ipsorum Rex quoque pareat Vid. Les Soupirs De la France Esclave Memoire 8. Histoire de l'origine du Parlement de Paris Sesellius f. 270. is such that even the King obeys its Decrees And yet when he wrote the Parliament of Paris the meer shadow of the Assembly of the States of the Kingdom and which in its institution was but a Committee chosen out of them had through the Artifice and Usurpation of their Kings driven out the substance 3. The Polity or Laws of the Kingdom which temper the Regal Authority this he says is greatly to the Honour of their Kings For if they could do every thing they would be much more imperfect And as it does not derogate from God Almighty that he cannot sin but his perfection is the more illustrious and to be admired for this very reason so Kings when they obey their Laws deserve the greater praise and come nigher to perfection than if they could command all things at their will and pleasure Sleidan in giving an account of Sesellius his Book to E. 6. says Sleidani Dedicatio ad E. 6. Although these things seem written in a peculiar manner in relation to the King of France yet they equally belong to all Kings For all Kings are Monarchs very few excepted And as they acknowledg no Power over them so they deserve great praise when they keep themselves within the bounds of those Laws with which they Govern their People And these are those Offices which he treats of as becoming a King and Prince Which if he neglects and thinks himself not to be obliged by any Law he loses in the eyes of good Men all Splendor Reputation and Glory and the very name of King A modern French Author Les Soupirs de la France Esclave Qui aspire apres la Liberte Ed. Anno 1690. Memoire 6. p. 82. who has with great diligence collected the Evidences of the Ancient Government of France supposes all the descendants from the old Germans as the Francs and we were to have had the same sort of Government and resemblance of Constitutions Among his several Arguments to refute the pretensions of the Court of France to Arbitrary Power one is Memoire 7. That nothing of great importance ought to be done within the Realm P. 97. but with the advice and consent of the Estates insomuch says he That the Government of France is rather Arstocratical than Monarchical or at least it is a Monarchy temper'd by an Aristocracy exactly such an one as England is The sum of his Authorities upon this Head he reduces to these particulars 1. ' The Estates of the Kingdom may Chuse and Depose their Kings Ib. p. 110. ' and by consequence may Judge them 2. ' They may Judge between the People and the King 3. ' They may Judge between King and King when more than ' one aspire and pretend to the Crown 4. ' They Determine the Differences which Kings have with their ' Subjects 5. ' They give Tutors to Kings and Regents to the Realm 6. ' They dispose of the great Offices of State 7. ' They make Ordinances which alone have the Force of Law ' within the Realm 8. ' They regulate the Affairs of Money 9. ' They appoint Impositions and Levies of Taxes 10. ' They are to be consulted upon all great Affairs 11. ' In fine They are of right to Correct all defaults of Government ' even those of which their Kings are Authors By all these particulars says he it appears Soupirs Mem 7. p. 110. that in some respects the States are superiour to the King for example when they chuse depose judge
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. Prynn 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 Sir P. P. f. 297. Littleton tit Homage Sect. 85. 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 Controversy Popham 's Rep. f. 16 and 17. we have the resolution of all the Judges in B. R. in the time of Q. Eliz. on my side King R. 3. had granted certain Privileges to the Burgesses of Glocester with a saving to himself and his Heirs And it was agreed by all the Justices That although 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 adjudged to reach the Queen who 't is well known was not Heir to R. 3. Object 4 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 acknowledged 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 applied to those who had no Right of Proximity as well as to 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 what ever be the Inducement can be of any force Whence 't is plain that all those 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 Fortescue de laudibus legum Angliae c. 3. Jovian p. 253. as the great Fortescue has it All Laws published by Men have their Authority from God 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 Human Creatures or Ordinances of Men may be altered as they were made And thô it may seem strange to some yet I may with great Authority affirm That when the People had determined the Right on the side of R. 3. He was King as much according to God's Law as E. 4. For Peufendorf holds That where the Question is Peufendorf de Interregnis p. 288. Quod si dubitatur qui gradus aut quaelinea sitpotior declarata voluntas populi finem liti imponet c. What Degree or what Line is best The declared will of the People determines the Controversy 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 accordingly is due by God's Law Man's Law and the Law of Nature Certain it is That the Statute 11 H. 7. abovementioned 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 expressed to be against God's Law Vid. 3 Inst f. 7. upon the Stat. of Treason 25 E. 3. referring in the Margin to this Statute This is to be understood of a King n possession of the Crown and Kingdom For if there be a King Regnant in possession although he be Rex de facto and not de jure yet He is Seignior le Roy within the purview of this Statute and the other who hath the Right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto and after the King de jure come to the Crown he shall punish the Treason done to the King de facto And a Pardon granted by a King de jure that is not also de facto is void 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 11 H. 7. c. 1. 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 Traitors to the present Power they shall suffer for the former Service as Traitors 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 the Clause which is
exaltationem Sanctae Ecclesiae pacem populi tenendam concessit c. King William being dead the Great Men of England not knowing what was become of Robert Duke of Normandy So R. 1. was call'd but Duke of Normandy till he was chosen King of England the deceased King's Elder Brother who had been five years at the Holy-war were fearful of wavering long without a Government Which when Henry the youngest Brother a very wise young Man cunningly observ'd the Clergy of England and all the people being assembled He promised an amendment of those Laws with which England had been oppressed in the time of his Father and his Brother newly deceas'd that he might stir up the minds of all to his promotion and Love and that they might receive him for King and Patron To these things the Clergy answering and then the Great Men That if with a willing mind he would Grant and Confirm with His Charter those Liberties and ancient Customs which flourish'd in the Kingdom in the time of Holy King Edward they would consent to have him and would unanimously consecrate him King And Henry freely consenting to this and affirming with an Oath that he would perform He was Consecrated King on our Lady day by the Consent of Clergy and People upon whose Head the Crown was immediately set by Maurice Bishop of London and Thomas Archbishop of York As soon as he was Crown'd He granted the under-written liberties for the exaltation of Holy-Church and preserving the Peace of the Kingdom Then follows his Charter containing some Alterations of the Law which had before obtained not only in relation to the Rights of the Crown but of the Subjects particularly whereas the Relief had been Cart. H 1. Siquis Baronum meorum Comitum vel aliorum qui de me tenent mortuus fuerit as Fines now in most Copy-hold Mannors at the Will of the Lords they were reduced to what was just and lawful according to St. Edward's Laws for which as should seem by the Charters of King John and H. 3. declaratory of the common-Common-Law there were known Rates and H. 1. restored all the Common-Law with the Statutes made for the amendment of it in the time of W. 1. He seem'd in two particulars wisely to have ingratiated himself with the people the first was in gaining to his side the Directers of their Consciences by a concession to the benefit of Church-men which was wholly new and that was That an Archbishop or Bishop or Abbat being dead Vid. Cart. H. 1. he would take nothing of the demean of the Church nor of its tenents until the Successor was inducted which was a departure from that Prerogative which belonged to the Crown upon the Vacancies as appears by the affirmation of H. 2. Vid. Anti. Brit. inf f. 135. Carta Johannis Haec omnia observentur de custodiis Arch. Episcopatuum Abbat Prior Eccles Dignitat vacantium quae ad nos pertinent c. Prerog Regis 17 E. 2. c. 14. the Charter of King John and the Statute of the King's Prerogative 17 E. 2. This Indulgence to the Church without special Provision for keeping it up was withdrawn by the next general Confirmation of the Confessor's Laws and therefore 't is no wonder that it is left out of subsequent Charters If he was not popular in this at least he was in another Action which was his imprisoning Ranulph who had been the great Instrument of oppression in the former Reign Mat. Par. f. 76. and that it was with intention of punishing him severely appears by Ranulph's making his escape out of Prison by means of those great Treasures which he had heaped up from the Spoils of the People Ranulph no doubt could at a much cheaper rate have applied himself to such a Lawyer as the Author of the Magistracy vindicated if such an one could have been found in that Age of less corruption Vid. the last part of the Magistracy and Government vindicated p. 8. I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its Primitive State of nature all Power devolved into Individuals and the particulars only to provide for themselves by a new Contract for if so there 's no new consent for punishment of Acts done before the dissolution and consequently revenge for that is at an end Vid. ib. p. 2. who might have advised him to rest satisfied that it would not be consistent with the Wisdom and Justice of a Prince who came in upon a Vacancy of the Throne as H. 1. did not standing next in the Line to punish any Criminals of the foregoing Reign but Ranulph was wiser in running away and perhaps more modest than to think that for his useful parts employed in the pillaging and destroying innocent men he might pretend to merit under the Successor H. 1. having truly shewn a Fatherly care of the people no man then raised any foolish scruple upon the manner of the Proceedings where the Substance was pleasing to all But that which has been done by them who could get together upon the intervals of Government has been held valid that the Vacancies might be as short as possible unless the general sense of the people has immediately appear'd against it and thus Harold having been Crown'd by surprize when the Friends of W. 1. were at the Confessors Buryal some Authors upon that very Account Vid. 2. part will have it that Harold was an Usurper But that it may be seen how little apt people are to dispute Forms when a King acts agreeably to the sense of a Nation I shall shew that H. 1. acted as King even before he was Crown'd immediately upon his Election for which Huntindon is my Author who having mentioned the death of W. 2. says Henricus frater ejus junior ibidem in Regem electus Hen. Huntin f. 216. b. de H. 1. dedit episcopatum Wincestriae W. Giffard pergensque Londoniam sacratus est ibi a Mauritio Londonensi Episcopo His younger Brother Henry being there chosen King gave the Bishoprick of Winchester to W. Giffard and going on to London was consecrated there by Maurice Bishop of London And I am much mistaken if what he did in relation to another Bishop Anselm who had been Archbishop of Canterbury in the time of W. 2. is not an additional evidence to what I have already produced that the Convention in which he was Crown'd was turn'd into a Parliament or acted as one Ordericus Vitalis says Anselmus enim Dorebornensis Archiep. exulabat Eadmerus f. 38 39 40. shews this was at a Council at Winchester ubi says he ex condicto venimus Mat. Far. f. 25. Trajacere quidem liberum esse sed inconsulte id facturum siquidem nullam revertendi spem in posterum ei futuram Eadmerus Anselm as appears by the circumstances of the story had been condemned to perpetual Banishment by Parliament in the time of
Act of Resumption For says he Power of Kings Fol. 1. impossible it is in Nature for 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 promiseth the same And thus there can be no lasting Obligation at all for he tells us in effect that if there be any Circumstance which makes it not wholly spontaneous 't is voidable But if this Power was not vested in them as Fathers then it comes not to him who has the Kingly Power as a Fatherly Power but meerly as Kingly contradistinct from and superior to the Fatherly But how can the Supream Fathers Nobles or Free-holders transfer their Power According to Sir R. F. it cannot be done in Nature except every One not the major part only consent As to the Acts of the major part of a Multitude it is true says he Patr. p. 44. that by politick humane Constitutions it is oft ordained that the Voices of the most shall over-rule the rest and such Ordinances bind because where Men are assembled by an Humane Power that Power that doth assemble them can also limit and direct the manner of the execution of that Power and by such derivative Power made known by Law or Custom either the greater Part or two Thirds or three parts of Five or the like have Power to oversway the Liberty of their Opposits But in Assemblies that take their Authority from the Law of Nature it cannot be so for what Freedom or Liberty is due to any Man by the Law of Nature no inferior Power can alter limit or diminish The major part cannot in nature bind the rest No one Man or a Multitude can give away the natural Right of another The Law of Nature is unchangeable and howsoever one Man may hinder another in the use or exercise of his natural Right yet thereby no Man loseth the Right its self For the Right and the use of the Right may be distinguished as Right and Possession are oft distinct Therefore unless it can be proved by the Law of Nature that the Major or some other part have Power to over-rule the rest of the Multitude It must follow that the Acts of Multitudes not entire are not binding to all but only to such as consent unto them Hereby it appears that it being taken for granted that the major part have not by the Law of Nature Power to over-rule the rest it must follow that where Power is vested in several as Independent Fathers this can never be parted with without the joint Consent of every such Father But they must always be in Mr. Hobbs his State of War till all the Dissenters are reduc'd And when ever they have natural Power that is strength enough they may try for it again there being no moral Obligation to the contrary For what ever terms they submitted to by Deceit Fraud Error Force just Fear or some great hurt If they diminish that Majesty which was once in them they may vacate the Conditions at pleasure And what then becomes of all Title by Conquest To shew wherein Sir R. has deceiv'd himself and others would be superfluous to the judiciously Learned and thrown away upon them that are not so But I conceive that the meanest Capacity may by this be satisfi'd that he is guilty of many Absurdities and ill Assertions I must needs say by those strong Stroaks which in many places occur I conclude that he was far from being deceiv'd himself for he was Master of more Reason but possibly he practis'd upon the vulgar Understandings to try how easily he could make them swallow Contradictions If it was not with this End I am sure it was with a worse to loosen the Bonds of Government and make way for real Anarchy since he attempts to weaken all other Foundations of it but his own and yet takes away even that too I may reasonably hope that for the future no Man will justify him unless he first shew his Principles to be consistent with themselves and with the right of our present Monarchs few of which will insist upon being natural Fathers of their People or Heirs of such Fathers or Usurpers of the Right of such Fathers and Sir Robert acquaints us with no other Title The natural intendment at least the consequence of all his Writings is when rightly consider'd to encourage Rebellion and dethrone Lawful Kings upon pretence of natural Right and a supposititious Patriarchal Power to degrade the Ecclesiastical and Temporal Peers and herd them amongst the Commons upon the Supposition Free-holders Grand-Inquest p. 38. that the Power of the House of Commons may be founded on the Principles of Nature But that the House of Peers do not nor cannot make any such pretence since as he says there is no reason in Nature why amongst a company of Men who are all equal some few should be pluck'd out to be exalted above their Fellows and have Power to govern those who by Nature are their Companions The difference between a Peer and a Commoner is not by Nature but by the Grace of the Prince And this Grace giving no Right but during the Life of that Prince upon his Death all Arch-Bishops Bishops Earls Barons dignify'd Clergy and others lose their Honours Preferments and whatsoever they deriv'd from the Grace of that Prince or of his Progenitors all falls into Anarchy and Confusion and all are equal in Dignity nor have they any Power to alter that equality unless every individual Plebean for so they all become now freely consent For as he teaches the Laws Ordinances Letters Patents Power of Kings p. 1. Priviledges and Grants of Princes have no force but during their Life if they be not ratified by the express Consent or at least by the Sufferance of the Prince following who had knowledg thereof If this be good Doctrine all those Lands and Possessions which the Piety and Devotion of former Princes dedicated to the Church are in a very unsettled condition For that any succeeding Prince may without Injustice take them back they being as much in him as they were in any of his Progenitors before they were granted out The Consequence of this me-thinks should alarm a Party best able if they list to expose him However I hope the abhorrence of such Principles so contrary to the Glory of the Prince and Honour of his Peers not to mention the Rights of Inferior Subjects This done since by the Author of the two Treatises above cited and by the Author of Patriarcha non Monarcha will draw on them a publick Censure at least that some Man of Learning whose Name may give Authority to the Truths he patronizes will more fully convince the unbelieving World of the Danger to the Government from such Goliahs defying the Armies of our Israel This Champion like that of
Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the youngest Son of King William the First procur'd an Assembly of the Clergy and People of England to whom he made large promises of his good Government in case they would accept of him for their King and they agreeing That if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some Oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties pass'd the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Father Life-time to acknowledg her for their Sovereign after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the King's Brother to treat of the great and weighty Affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the King's Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3 d. died his Eldest Son Prince Edward was then in the Holy Land and came not Home till within the third Year of his Reign yet immediately upon the Father's Death all the Prelates and Nobles and four Knights for every Shire and four Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I inferr from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our Old Constitution Assemble together in a Parliamentary way without them to treat of and settle the Publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick Business whatsoever without a new Election they having as great Authority as the People of England can delegate to their Represantatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annull'd 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and Attainders thereupon were Repealed in a Parliament held Ann. 21. of that King which Parliament was procur'd by forc'd Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Parliament and those Persons were by the King's Writs to the Sheriffs commanded to be returned and yet they passed Acts and their Acts though never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd insomuch that it was debated in Queeen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential Considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authothority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the King 's Writ and yet they made Acts and the Royal Assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I Infer that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament ALLEGATIONS In behalf of the High and Mighty Princess THE LADY MARY NOW Queen of Scots Against the Opinions and Books set forth in the Part and Favour of the LADY KATHERINE And the rest of the Issues of the French Queen Touching the Succession of the Crown Written in the Time of QUEEN ELIZABETH London Printed by J. D. in the Year 1690. THE PUBLISHER TO THE READER I Thought it not improper to subjoin the following Treatise written by a Lawyer in Queen Elizabeth's Time whether ever printed or no I cannot say in favour of the Title of the Queen of Scots against the Pretences of the Lady Katherine descended from the
mention had ben made it is lykely that the Parliament wold never have consentyd or agreid thervnto as at the makinge of the same Statute yf eny had gone about to have pennyd it in this sorte that such shuld succeede and enjoye the Crowne as K. Henry either by his Letters Patentes or elles by his last Wyll signed with his most gracious Hand had namyd what Parsonnes soever they had ben although they were infamous madde impious or such other before rehearsed it is not lykely that in this maner or forme the Parliament wolde have allowed or passed such a Statute And that that is not lykely they wold have consentyd vnto by wordes in such sorte specially expressid It is not to be thought or understandid that such Persons shuld be capable and fit for that Callinge omni exceptione majores And it is playne and notoryous as is before-sayd that to be borne in Adultery or of eny other unlawfull sorte or matche is reputid and taken a Spotte and that a greate one not onely by the Lawes of Man but also by the Lawes of God (p) Sapien. 3 4. Deut. 2 3. and so unworthy and unfitte ar such to be thought capable of the Crowne that in all States where they use to gyve or graunte eny Seigniories Titles or Liberties in Fee as Baronyes Erleshippes Markeshippes and such other the Bastardes ar never thought worthy to be admittid unto the Succession although that they be made legitimate But they must specially be ablyd vnto the succession of the Fee by the Prince (q) Bartol Bald. in l. eam quam C. de fidei com And yf they cannot inherite or be capable of their Titles and Honours which ar not nor cannot be comparyd vnto a Royall Dignitie how shuld they be thought worthie or capable of a Crowne And that that is sayde of Bastardes is to be understandid also of those that pretendith the Succession as Heires of Bastardes And synce this Realme makith no lesse esteme of the Honour and Dignity of the same then eny other Nation doth of theires it is not lykely that specially they would graunt unto the Kinge Power or Authoryte to gyve or leve the Crowne to eny Person not legitimately borne or to their Children or to eny such Person upon whose Birth and Proceedinges there might growe such stryfe dispute or contention accordinge to the saying of Cesar and example of other a litle before remembryd And since it is not lykely that the Parliament wold haue condiscendid specially unto it it followith and we must conclude that such a Graunt cannot be comprehendid by general words But though he had Power or Authority to dispose of the Crowne to the Heires of the Lady Francys and the Lady Eleanor it is trewe yet notwithstandinge he could not do that but with the Condition and Forme that by Power of the Parliament was gyven him that is either by his Letters Patentes vnder the Greate Seale of England or ells by his last Will signed with his most Gratious Hande By Letters Patentes without doubt he hath not done it and so of the Will is the Controversy But beinge able to make a sufficient and perfect Will to all other intentes and purposes either in puttinge to his Hand or ells in not puttinge to his Hand yet yf the Kinge have made his Will without puttinge unto his Hand as ther be Wittnesses sufficient and some of those that subscribed the same Testament in that behalf can so truely and plainly testify that he hath as there is no such Cause left therfore either of such doubt or elles of such conferringe or comparinge the Prothocall with the Signe or Stampe as those that haue sette foorthe these Books wold seeme to make then it is playne and manifest that he hath not done it to this purpose accordinge to the forme and maner prescribed vnto him by the Statute And every Acte or Deede that is done without the Forme prescribed by Lawe is insufficient (r) L. 1. in pr. ff de stipula l. traditionibus C. de pac l. 1. C. de pred cur lib. 10. as well accordinge to th' Exposition and Rules of the Civill Lawe as ells by th' Exposition and Rules of the Common Lawe of this Realme for accordinge to the Civill Lawe it is playne and so taken though the Matters they entreate of be in favourable Causes yet the lacke of Forme is no wayes borne withall or excused (s) L. cum hi. §. si pretor ff de transa Bal. cons 324. volu 20. And much lesse heerin consideringe the Forme requyrid by the Statute is compiled with so meny greate goode important and probable Reasons For the Succession of the Crowne beinge a Cause of such greate weight and in which ther was so greate occasion to doubt so many hassardes of indirect or subtile dealinge they had goode cause to prescribe such a Maner and Forme to make the Will by as wherby they had least occasion to feare or suspect eny counterfetinge confuse or sinister behavour in the same And so accordinge to the Civill Lawe in that Testament that they call a Solempne Testament in the which there is required meny Circumstances yf eny of those do lacke the Testament or Will is of no force or valour (t) Justin de testa lege jube C. ibidem Besydes accordinge to the same Lawe all Statutes or Agreements made that takith away or correctith eny thinge of or from the Course or Body of the Lawe is reputed and taken as odious and ought to be taken strictly even accordinge to the Letter as the worde standith And this Statute wherof we now speake is such a One For wher the Succession of the Crowne shuld have gone whither the Common Lawe had apoynted or directid it as vnto the next by the Statute of 35 of Henry the Eighth K. Henry had Auctority to leve it to whome he lysted And therfore this Statute is to be interpretid strictly and precisely as the worde gyveth That is that Kinge Henry onely by his Letters Patentes vnder the Great Seale of England or elles by his last Wyll signed with his most gratious Hand might name whome he would to the Succession of the Crowne and not otherwyse And lykewise by the Common Lawe of this Realme the Statute is most plainly a direct abridgement of the same by reason it takith from the Common Lawe the naturall limitation of th' Inheritance of the Crowne and appointith it owte of the Rule of the Lawe to the Order and Limitation of Kinge Henry beinge in this respect authorized but as a private Person And it is in some degree a Penal Lawe for it takith the Title of a Kingedome from those that by the Common Lawe have a Right and makith in poynt of execution a Subject of a Prince and contrarywyse a Prince of a Subject which is not onely penall as hauinge respect to the losse of their Title to the Crowne yf it shuld
need of Advocates or they of Patrons yet when Men High in Titles and Pretences to the Service of Crowns range themselves on the other side and Reflections fly about and must fall some where 't is requisite for Men of my Mediocrity to be cloth'd with the Priviledges of them for whom they plead Vnder this Protection I may affirm that while your Lordship would have the Throne establish'd in Righteousness So Seneca represents the Epicureans justifying the Worship of a God Deus colitur propter Majestatem eximiam singularemque naturam Sen. de Beneficiis lib. 4. and the Crown not only to be easy to them that wear it but amiable to all Others out of folly or design would remove the very Foundation of this and all regular Governments hanging them by Geometry upon meer Air and render Kings like Indian Gods to be worshipped only for their Power to destroy not for the Beneficence of their Natures which eximious quality in their Majesties and in your Lordship absolutely disposes of My Lord Your Lordship 's most obliged and devoted humble Servant W. ATWOOD PREFACE THE following Collections in which I may say I have taken some Pains are but an Enlargement upon what I publish'd immediately after the Accession of their Majesties King William and Queen Mary to the Throne of this Kingdom I must needs say I was glad to find that the Effect of those Studies which had drawn upon me the weight of an Arbitrary Government might at least entitle me to the Protection of a Government which rose like the Phenix from the Ashes of the other and was founded in such a Consent as gives Establishment to our Laws Some may think I carry the Point too far and prove more than is fitting they at least for whose Conviction so much was needful that they may gain strength to their Party will represent all that oppose their Extream as embark'd in the other And as they were justly become odious to all People who had any love for the English Liberties they will be sure to run down others as Common-wealths Men not fit to live and breath in a Monarchy But to give the Objection its full weight The Doctrine of Non-resistance or Passive Obedience no way concern'd in the Controversy c. By a Lay-Gentleman I shall consider it as it has been managed by a Lay-Gentleman who contends that the Doctrine of the Bowstring was just to the late King and would be serviceable to this but that the contrary is dangerous to all Crowned Heads And while I vindicate them who expose the modern Notion of Passive Obedience I will shew that they who may be presumed best to understand their own Doctrine in effect condemn him for a Renegado This Lay-Gentleman absurdly labours to prove That they who would not assist their Prince to maintain that Power which they had beyond measure advanced and were both in Principle and Practice against contributing towards our present happy Settlement are for those very Reasons the only Persons fit to be trusted under it The greater his Abilities are and the larger his fore-sight of Consequences the more is he confounded in the Defence of those of our Clergy who have made the greatest Noise for that spurious Non-resisting Doctrine which he and they would impose upon our Church as its genuine Sense While he like a true Son of the Church takes the Rules of his Obedience and of judging in Civil Affairs not from the Laws and Legislative Power but from the Bishops upon which account alone he will have the Truth of our King's Declaration The Doctrine of Non-resistance c. p. 5. when he was Prince not to be questioned because forsooth all the same things in a manner are complain'd of in the Bishop's Proposals And thus if Matters of Fact or Points of Law are adopted by the Clergy 't is not for the profane Laity to enter upon this hallowed Ground without their License and for them to take it from the Church is such a sort of Sacriledg as Dr. Heylin and others charge upon our Reformers for alienating and clearing the Nurseries of Superstition Vid. Hist of Passive Obedience p. 97. speaking of Dr. Hicks his Jovian that elaborate Commentary on the Doct. of Passive Obedience P. 96. Dr. Sherlock's Book of Non-resistance is so strong and his Arguments from Scripture so cogint c. The Doctrine c. Pag. 2 38. Tho this Lay-Gentleman had not explain'd what he means by the Non-resisting Doctrine any Man who has read those Books which are still vouch'd as the Standards for it might easily understand that that which they who wish well to the present Government would have extirpated out of the World and he would keep up as having such Characters of Divinity as deserve Respect from us all as we are Christians is The not resisting the King or any commissioned by him but being wholly passive when our Constitution and Laws are notoriously violated and we are persecuted against Law Page 2. Wherein this Gentleman would have Obedience to continue when the Law which required and ascertain'd it is subverted in such a manner as there can be no question of it this he owns that the late King was guilty of Page 7. and that he would give us no assurance we could rely on to do otherwise for the future So that we were to expect that what he calls an arbitrary Page 3. tyrannical exorbitant Persecution would if not prevented have been entail'd on our Posterity And the truth of it is generally to avoid Suspicion he sufficiently loads the late King yet it is not without reason that the boldest Talkers have formerly been suspected to have secret Indulgence The Design of the Author of the Magistracy and Government vindicated but in this he is something more politick than the Author of the Vindication of the Magistracy and Government of England who would make his Court to this Government by justifying the last yet this Gentleman's Policy is no more than needful when he contends that to excuse them of the English Nation who have been instrumental towards the late Revolution Pag. 36. we must set up our selves against the Doctrine of Christianity Such a Liberty do some Men take with hopes of Impunity of branding those Men whom all Generations to come will praise for shaking off that Yoke which neither they nor their fore-Fathers were able to bear and must have entail'd Curses on their own Memories had they suffered it to be entail'd on their Posterity This zealous Gentleman need not wonder Pag. 1. or be impatient except as his Sores are rub'd at the bandying of this Non-resisting Doctrine to and fro in this distracted Kingdom Pag. 1. till the Broachers of it who first rais'd the Disturbance if they have not the Grace to repent at least have the Modesty not to boast of it and to stile themselves the only good Subjects Pag. 3. and good Christians
Contempt and Scorn of the current Doctrine of Passive Obedience Some would ask whether he does not exclude himself from the glorious number of Friends Nor will they be shy of affirming that he does so when they observe that he contends that they forgot their Duty both as good Christians Pag. 3. and good Subjects who declared for the Prince of Orange his now Majesty before the late King actually left the Nation Yet he seems not aware that while he blemishes these with setting up themselves against the Doctrines of Christianity he condemns Pag. 36. not only some of our Clergy but the Church of England for maintaining a Doctrine which he does not deny to be destructive to the Constitution of our Government and to Mankind by which one would be tempted to think that his business is to make Men not only out of love with Crowned Heads but with Christianity it self Pag. 36. As to particular Persons he confesses that the heat of Controversy has misled some of the Church of England to write too much in favour of wicked and tyrannical Princes even to the encouraging them to do worse than otherwise they would Where he taxes their Doctrine of Non-resistance with encouraging Tyranny and such excesses of it as the Tyrant would not otherwise presume upon Pag. 31. Nor does he less condemn the whole Church The Disloyalty says he of two other Parties have made the Church of England take into the contrary Extream and as a Jesuit wish'd it might do her much good in scorn So she had like to have pay'd too dear for the pretence and they who would now again sacrifice her to their Interest and Reputation are to speak softly none of her best Friends They pretend we have not suffered enough for our Religion to justify our Resistance Why according to their Principles we are never to resist whatever we suffer but to suffer on till there is not one left to resist Herein I confess he makes a true Representation of that Principle which himself runs into so naturally that he is not sensible of it But is not this by him judged to be an Extream to be avoided Does he not yeild that the Church of England has been made to take into this Extream out of abhorrence to the other Nay does he not in effect admit that himself and others sacrifice the Church to their own Interest and Reputation while that they may justify their Extream they condemn those who avoided both Scylla and Charibdis in Making to an happy Port along with our Caesar and his Fortune God forbid that it should still be Mens Interest to justify that Extream and let them enjoy the Reputation of never acknowledging an Error tho the most gross and pernicious But what a miserable Defender has our Church which must needs reject such Doctrines and Defences If Church-men are the Church States-men the State Truth may profane or lybel else the Great This Gentleman pretends to have the Scriptures Pag. 35. and all Primitive Antiquity on his side Vid. inf f. to which he would draw in the Church of England which upon a rational Construction cannot be thought to mean more than that we are bound to obey the King 's Legal Commands and not to resist him while he continues King nor has that any thing against the Supposition of a Civil as well as Natural Death And as to the two other Topicks it is to be considered 1. That the Scriptures meddle not with particular Constitutions but give a general Rule for Obedience which is more than bare Non-resistance according to those Constitutions which are God's Ordinance as he authorizes Human Laws in Civil Affairs not contrary to his own And 2. Pag. 3. This Gentleman himself sets aside all Primitve Antiquity when he confesses that in those times the Religion was contrary to the establish'd Laws and so Men could not be persecuted for it against Law at least not so as to come up to our case especially if we take in what he acknowledges farther The Roman Emperors says he under whom they liv'd So Jovian p. 85 86. Julian did persecute them legally vid. p. 91. were absolute independent Princes whose Will was the Law and the Constitution of the Empire differed vastly from that of England so that we are not under the same Obligation they were because our Princes have not the same legal Power as the Roman Emperors had but then I doubt not but we are as much bound to submit to the legal Commands of the King of England as the Primitive Christians to the legal Commands of their Princes But says he this was no part of the Controversy under the Reign of James 2. who had as little Law as Reason for what he did If this be not a giving up all Primitive Antiquity I shall never pretend to understand how words ought to be taken Since therefore neither the Scriptures Primitive Antiquity nor the Doctrine of the Church of England are against them who embrac'd and assisted in the Deliverance which his present Majesty vouchsaf'd us it became not this Gentleman who takes such pains to purge himself from having any hand in it to censure those Worthies who had as not behaving themselves like good Christians and good Subjects Pag. 3. Pag. 3. And to call them a few is almost an equal Reflection upon the honour of the Nation which has never been backward in freeing it self from Tyranny and vvas ready as a Man to act in this King's Service before they were so just as to lay the Crown at his Feet nay before Success had crown'd his glorious Enterprize which almost all were eager to evidence as they had opportunity and I may say of many with Mr. Cowley in his Description of Envy They envy even the Praise themselves bad won That the Body of the Nation were thus forward is manifest in their declaring by their Representatives that the late King had broken the Original Contract vvhich must have been before the Judgment pass'd upon it or ortherwise the Judgment were not warrantable Pag. 25. When the Gentleman vvill allow of no Title in his present Majesty but real Conquest over the Nation as vvell as the late King and lawful meaning lineal Succession either of vvhich Titles he supposes he may claim by he would do vvell to consider 1. That he reflects upon the great Representative of the Nation which founds it upon the others Misgovernment 2. He sets it all aside when he owns that this King does not claim by Conquest nor in truth could he be a Conqueror who was not only invited by those who had a just Ascendant over the Minds of the People but was pray'd for and receiv'd with open Arms by the Nation in general tho indeed such an universal Consent with such Inducements from Gratitude and the common Necessity ought to subdue all Scruples as much as the most real Conquest And this Gentleman must yeild
Peace when he judges it fitting notwithstanding Mens Oaths to defend all the Regal Priviledges they were not bound to defend this especially if the War were against Protestants in which case the Subject would take to himself the Judgment of the Justice or Expedience of the War as much as others do of the necessity of resisting Or suppose yet farther that the late King had discharged his Mercenaries and commanded the Militia by Law establish'd for the Defence of the Kingdom to march and fight against his present Majesty had not this been a legal Command The King 's legal Commands he agrees with me that we are bound to obey yet he with all agrees that it was unlawful to assist the late King against This before he was crown'd How then can the matter be adjusted without yeilding that the late King lost his Regal Power by assuming a Tyrannical one This may suffice to shew that they who resisted the late King did it not out of Principles either Anti-christian or Anti-monarchical and that they who are for the non-resisting Doctrine as it past for current in the last Reign and the foregoing and yet pretend a Zeal for the present Government do but daub with untempered Mortar and as they were not to contribute to the late Revolution so much as in their Prayers but on the contrary were to pray for the late King's Victory over all his Enemies and in effect that God would keep and strengthen him in his Kingdom as well as in that Worship which they could not but know not to be God's true Worship So if that misguided Prince should desert Ireland and return into their Arms for a Punishment of those Opinions which occasioned his Ruine their pretended Loyalty to this King if they prove true to their Principles must fall to the ground And the least puff of Wind adverse to us but prosperous to the Jacobites would blow up that Fire covered with deceitful Ashes to the extinguishing of which I shall readily devote my Service The Lay-Gentleman who has extorted my Reflections by his indecent Censure of the Subjects of this Monarchy who contributed towards the late Revolution thinks it clear that the Doctrine of Passive Obedience is no way concern'd in the Controversies now depending between the Friends and no Friends if not Enemies to their present Majesties having in his vain Imagination put it past question that the Williamites were neither good Subjects under the late Administration nor good Christians and true Members of the Church of England And that his good Christians and true Members are the only Persons whose Principles may be relied on now Yet since he will have the Sense of the Church to be known from the Cry of the Clergy and a Bishop supposed to be a Martyr for it may be presum'd to give the Sense of that Truth which he would be thought to attest to the last If this Gentleman will not hear me let him hear the Church for his Conviction in this matter The late Bishop of Chichester's Paper BEing called by a sick and I think a dying Bed and the good Hand of God upon me in it to take the last and best Viaticum the Sacrament of my dear Lord's Body and Blood I take my self obliged to make this short Recognition and Profession That whereas I was baptized into the Religion of the Church of England and sucked it in with my Milk I have constantly adhered to it through the whole course of my Life and now if so be the Will of God shall die in it and I had resolved through God's Grace assisting me to have dy'd so tho at a Stake And whereas that Religion of the Church of England taught me the Doctrine of Non-resistance and Passive-Obedience which I have accordingly inculcated upon others and which I took to be the distinguishing Character of the Church of England I adhere no less firmly and stedfastly to that and in consequence of it have incurred a Suspension from the Exercise of my Office and expected a Deprivation I find in so doing much inward Satisfaction and if the Oath had been tendred at the Peril of my Life I could only have obey'd by Suffering I desire you my worthy Friends and Brethren to bear Witness of this upon occasion and to believe it as the Words of a dying Man and who is now engaged in the most Sacred and Solemn Act of conversing with God in this World and may for ought he knows to the contrary appear with these very Words in his Mouth at the dreadful Tribunal Manu propriâ subscripsi Johannes Cicestrensis This Profession was read and subscribed by the Bishop in the Presence of Dr. Green the Parish Minister who administred Dr. Hicks Dean of Worcester Mr. Jenkin his Lordship's Chaplain Mr. Powell his Secretary Mr. Wilson his Amanuensis who all communicated with him Here 't is observable 1. That the Bishop as fallible as an inferior Clergy-man died in that Opinion which he had profess'd and inculcated in his Life-time so warmly and so often that himself believ'd it Tho it may be a Question Whether he would on his Death-bed have affirmed as he had done in his Pulpit where Mens Affirmations ought to be as solemn as at the last moments of Life Sermon at Tunbridg That they could not enter into Heaven without particular Repentance who in derision were called Ignoramus Jury-men because they would enquire into the Credibility of Witnesses and scorned to enslave themselves to the Directions of Judges or more powerful Influences from White-hall And tho it seems the Tower had not wean'd him from his fondness of Passive Obedience perhaps it did from that which he had express'd towards our then Court's firm League with France while he believ'd it design'd to curb none here but the Fanaticks Vid. the Defence of his Profession concerning Passive Obedience and the new Oaths Ed. Anno 1690. These severe Truths tho in proof beyond Contradiction I should gladly let lie buried with him were not his Ghost still kept walking to do Mischief And if the Authority of a Man's Person or Office shall without any other ground be set up to condemn the far greatest number of Persons of at least equal Credit and Station it is no more than requisite to shew that this Man is not more than others exempted from Errors and the common Incidents to Humanity 2. The Bishop shews that the Doctrine of Passive Obedience which he had inculcated as the Doctrine of the Church of England and which he found himself oblig'd to propagate at his Death is so far concern'd in the Controversies now depending that upon the account or in consequence of holding to it he had incurr'd Suspension and expected Deprivation for not taking the Oath of Allegiance to our present King and Queen wherein he abundantly confutes our Son of the Church And all the Authority which can be deriv'd from the Bishop's Dying-Declaration to prove the Doctrine of Passive Obedience
to be the Doctrine of the Church of England equally proves that this is essential to the Controversies depending between the Friends of the late Government and the happy Subjects of this As a just Corollary from which we may affirm that no Man who is true to the Doctrine of Non-resistance or Passive Obedience can bear Faith and true Allegiance to our King and Queen In consequence to which as I have above shewn such are bound to their Power to assist the late King and to maintain the Regal Rights which he still claims as King of England if they are entrusted with any of our King's Secrets to reveal them to the other and to employ all those Advantages which his Majesty's Favour may give them Preface to the Hist of Passive Obedience towards the advancing that Interest to which they believe themselves unalterably bound And tho our King with the Generosity of Alexander may trust himself with them of whose at least probable Designs he may have certain Information yet no Man need wonder that his Friends offer him the Notice and that they would have that Doctrine extirpated out of the World without vvhich it vvere impossible for him to have an Enemy in the English Nation but a Papist And even among them I dare say all but the bigotted Slaves to their Clergy are sensible of the benefit of his Protection and may encourage themselves in civil Obedience to him who is King over them from the Examples of St. Anselm with other holy Men and the generality of their Clergy who quietly obeyed the Power vvhich protected them without considering whether the Person who administred it stood next in the Line or no. And tho it may be excusable for a dying-Man to justify his own Sincerity to his private Friends yet when the matter vvhich he affirms is of such Consequence to the Peace of that Government which had rescued him and the Church in vvhich he had such a Trust from impending Ruin and afforded it and him sure Protection tho he had disabled himself from farther benefit he ought not certainly to have taken such Pains to transmit his Opinion to the knowledg of the unthinking Vulgar who vvere likely to be influenced by it unless he vvere certain beyond the least shaddow of doubt that this was not only a Truth but of such a nature that the Sin of Ignorance in others were damnable Or else that the Restoration of the late King were preferrable to Submission to this The last I hope his Admirers vvill not say and since the first evidently depends upon Points of Lavv tho ignorance of human Law cannot reasonably excuse before Men who know not the Heart and when the Plea ought to be allowed when not yet there is no doubt but it will before God But who would not be impatient to find our great Law-Casuist Dr. H. to justify his Disaffection to the Government under the Umbrage of the Bishop's Declaration and to boast himself a Confessor to this pretended Martyr vvithout producing more colour for it than a dying-Bishop's Belief that this is in Consequence of adhering to the Religion of the Church of England Had any one publish'd thus much in the Reign of Innuendoes when Dr. H. was the Trumpeter to the Imperial Power in Contradistinction to the Political one he vvould have met with Col. Sydney's Doom who suffered for publishing Hicksian Treason all over his own Study Jovian p. 236. And were Dr. H. to be judg'd by his own Law 't is certain he vvould be pronounc'd a Traitor if the Publication of this Paper vvere prov'd upon him For in his Jovian he says What tends to Treason is Traiterous The Lord Hollis his Book against the Bishop's voting in Capital Cases he says for the same Reason is an impious and treasonable Book because it abounds with Falsifications of Records c. and asserts that the King is one of the three Estates Pag. 237. And the Dialogue between the Tutor and Pulpit is a treasonable Piece because it misrepresents the English Government as if it were a Reciprocal Contract betwixt the King and the People and as if the Parliament ought whether or no the King pleas'd to sit till all Grievances were redress'd and Petitions answer'd By the last of which the Bishops were Traitors for their Proposals to King James And by the former Vid. the Bishops Proposals all those Passive-Obedience-Men are Traitors who publickly maintain an Opinion which necessarily implies that the Right of the last King could not be alter'd or diminish'd for any matter which induc'd King William to undertake our Deliverance If Men of the Doctor 's Opinion will be exasperated for being driven from their Coverts they should consider that they ought rather to be thankful that they are put to no further Mortification while they cease not to give jealousy to the Government by maintaining or patronizing what is inconsistent with that Peace vvhich they are bound to pray for But Dr. H. it should seem Jovian p. 104. now aims at the Glory of taking that boldness and liberty of speaking and acting vvhich he says was common among Confessors by which they shewed the greatness of their Zeal to suffer for God and how much they despis'd that Authority vvhich was over them in Competition with their Duty to God And this may be to retrieve his Reputation for not calling the late King an Idolater Ib. pag. 96 a Bread-worshipper a Goddess-worshipper a Creature-worshipper an Image-worshipper a Wafer-worshipper c. which we might have expected for the making good his Vapour before he came to the Trial. Did his then Silence agree with that supernaturul Courage Pag. 297. which he vvas fully perswaded God would inspire him with And does it not seem odd that the Inspiration should seize him to the Prejudice of that Government under which alone it can reasonably be expected that Protestancy can be supported but should be vvanting in a Popish Reign The Jews had a Divine Caution against receiving even those Prophets who vvrought Wonders if they labour'd to withdraw Men from the Worship of the true God And surely Protestants would not scruple to reject the Doctor 's Pretences to Inspiration Vid. Dr. H. his Raviliac Redivivus which some vvould be ready to ascribe to that Spirit vvhich himself had found out for the fluency of some Mens Prayers or rather to that lying Spirit in the Mouths of the Jewish Prophets which encouraged Ahab to go out to fight for what had formerly been in the Possession of the Crown of Israel 3. The Bishop will have this Doctrine of Passive Obedience to be the distinguishing Character of the Church of England and therein admits that she holds it in a manner differing from all other Protestant Churches And if this be so the acting or believing according to it can be incumbent only upon the unfeigned Assent and Consent-Men But we of the Laity vvho believe our selves to be
true Members of the Church of England may be allowed to act without any regard to that Principle which vvould distinguish us from all other Protestants And how much soever some may be concern'd to keep up the Distinction 't is to be hoped that we shall be more wise and more true to the Interest of the Church universal If as the Bishop says the Religion of the Church of England has taught this and this is the distinguishing Character of this Church vvill not Men say that he makes this Church to have a Religion as well as Ceremonies of its own The Mischief of Separation A Prelate more deservedly eminent tells us That the sign of the Cross is the Right of Admission into the Church of England as Baptism into the Catholick But according to this Bishop the Admission into our Church ought to be upon the Condition of subscribing this Doctrin Jovian p. 227. speaking of the Church of England and himself It is she that taught him to preach up Passive Obedience like a Parasite Sycophant and Murderer Poor Man he suck'd it in with his Mothers Milk which his God-fathers and God-mothers were to have promis'd and vow'd in his Name And then tho he had not like Dr. H. who perhaps herein played the Plagiary from Jovian suck'd in this Religion with his Milk he might well have been baptiz'd into it The Reasons of this Bishop's maintaining and endeavouring to propagate his Opinion to the Disturbance of our present Settlement next to his Obligations to the late King which the first misunderstanding was not to erace were apparently 1. The sourness of the Milk which he had suck'd in from his Nurse or Mother which is known to have a great influence upon the Constitution of the Body and that upon the Mind insomuch that Mr. Dreyden and some other such Philosophers have insinuated that the Soul is nothing else but the Temperament of the Body 2. The prejudice of his Education whereby he was taught to believe this to be part of his Baptismal Vow Which being the only Reason that he has thought fit to bless us with as judging it sufficient in following this Episcopal Authority he who was bred a Pagan ought to be a Pagan still And if we believe a topping Divine of the Church of England Vid. Warley's natural Fanatick dedicated to the then Chancellor of England F. the Pagans can produce better Reasons for their Infidelity not only than any we have yet had for this distinguishing Piece of Religion but than can be brought for Belief in the true God without having recourse to the Scriptures interpreted by the Church But the Church which he complemented being the Church of England the Popery of his Notion went down very glibly at that time as the Authority of this single Bishop does with many now 3. The Weakness of his Judgment which is obvious not only in the wording his dying-Paper in such a manner as either condemns his own Church of Singularity or all others of Corruption in departing from that Religion which she alone has the honour to profess but farther yet if he were in his sound Mind at the subscribing his own or Dr. H. his Confession of Faith he would have reflected that tho he might have done enough to quiet his own Mind he had not us'd due means for informing himself of what he ought to press upon others as a necessary matter of Belief having debated it either with Divines who are but second-hand Casuists for this or else with Lay-men of the Gentleman's Opinion who would maintain the Doctrine of Passive Obedience and yet exclude it out of the Controversy which it has rais'd and keeps up I speak not this without grounds for in debate with a Divine of our Church whose great Worth Learning Moderation and Integrity have justly rais'd him above all degrees in Station the Bishop did frankly confess that he believ'd the Question to issue in a Point of Law And for his Satisfaction he had discours'd with a certain eloquent Person whom he nam'd suppos'd to have suck'd in Law with his Milk as the Bishop did his new Divinity nurss'd up since Queen Elizabeth's days But this Person being one who has acted upon the same Principle and makes it his Glory not to have his Opinion alter'd by his place I think no Man who observes what lame work the Lay-Gentleman has made of endeavouring to reconcile the Doctrine of Passive Obedience with Submission to our present Government will wonder that he could not receive Satisfaction from one who held the same Premises with himself but denies the Conclusion This ground for the Bishop's Pertinaciousness I must own is not evident to all but his consulting Dr. H. is who I may well say is hardened and steel'd in his Profession beyond hopes of Conviction since by the Writer of this Vid. Letter to Jovian Ed. An. 1683. p. 14. he was long since admonish'd of having shamefully abus'd those Authorities on which he relied and of having by his Concessions and Contradictions fully set aside all that he would enforce and this at a time when this Writer ran the utmost hazard by exposing a Man thought so highly to have serv'd them who were in Power and called themselves the Government And when the Doctor by refuting the Objections might have had the Reward as vvell as boast of a Triumph Yet for the Comfort of them vvhom he then trampled upon he had disabled himself of his Sting vvhile he quitted the Authority of a Preacher of God's Law for a partial Reporter and Expounder of Man's His Errors or Perversions as far they concern our present Controversy and Government may be reduced to two Heads 1. The Estate in the Crown and Derivation of it 2. The Rights or Prerogatives of the Crown 1. For the first he says this Kingdom is originally hereditary Preface Pag. 13.11.9.78.5.53.60 Jov. p. 38. Pag. 25. Preface Pag. 55. in an inalienable indivisible lineal Succession by the Original Custom and Constitution of the English Government ty'd to the next of the Blood Or as he has it elsewhere fix'd in one Family and lineally descending in Proximity of Blood With this Hereditary Monarchy an Interregnum or Vacancy of the Throne is inconsistent as also its descending upon two Heirs at once The Succession vvhich he describes he says is from God alone who hath given it to the Royal Family for a perpetual Inheritance and hath by his Providence ordain'd that it should come to one of them after the Decease of another according to Birth-right and Proximity of Blood Pag. 58. But God's Providential Appointment of one to reign he grants not of it self to carry the Right beyond the Person in Possession by such Appointment Wherefore tho God's Providence had often given the Roman Empire to a Man and some of his lineal Descendants after him he contends Pag. 46. that the Roman Empire was not Hereditary but Elective by the Suffrage
of the Legions and the Consent of the Senate according to the Custom of the Empire And so was in his Sense a Republican sort of Monarchy Pag. 52. and Heirs says he among them is to be taken in the Sense it then had for chosen or constituted Heirs or Successors But the first rise of the Custom concurring with God's Providence to fix the Crown here Pref. p. 7. he makes to be the reputed Norman Conquest which first brought in this limited way of hereditary Succession unto one Line This I take to be a true and full Scheme of his Notion upon this Head whereby it appears That it wholly condemns our present Settlement Pref. p. 56. as against that absolute Right or Birth-right to exclude vvhich even in Reversion he says would be to oppose the Will of God And yet till he disprove what I shall offer against the belief of a Conquest made by W. 1. or shew either that Custom or Constitution which proves that the Crown of England has so much as since the supposed Conquest been strictly and indivisibly tied to him or her who either was in Possession or expected it as next of Blood I may affirm that according to his own Hypothesis God has not so given it in his Providence I vvould desire no greater scope to prove our Government to be fundamentally an Elective Monarcy keeping within a Family but not confin'd to the next of Blood than he takes to prove the Roman Empire to be Elective Nor vvould I desire any other Justification of the present Oath of Allegiance notwithstanding the former to the King his Heirs and Successors than what himself vvould allow of in the Roman Empire But if God has by his Providential Appointment transferred our Allegiance to our present Soveraigns Vid. the Preface to Predictions concerning this Government and no such Original Constitution or Custom as is pretended can be produced which I have formerly evinced and more at large in the following Treatise the Doctor 's Foundation of unalterable Allegiance to the last King failing 't is odds but an Agreement between a King with the Lords and a full Representative of the Commons of England will bid fairer for being according to the Original Constitution of our Government than the Doctor 's fancied Fundamental and indivisible Entail of the Crown If Conquest only without any Original Entail by the Conqueror or Consent of the Conquer'd has fix'd it to the next of Blood tho in truth the Providential Appointments till the Settlements occasioned by the Quarrels between the two Roses have generally been otherwise then 't is plain that this is such a Right as may be entirely lost by the conquer'd Possessor And as Will 1. conquer'd Harold tho he did not conquer the Kingdom Vid. inf having been design'd Successor in the Confessor's time and after invited by the Clergy chiefly and coming to a speedy Agreement with all in general So this King conquer'd the late for he who runs away without fighting is at least as much conquer'd as he who fights and is beaten nay in truth more absolutely for he that is beaten generally gets some Terms for himself whereas the other dares not stay to take them 2. As to the Rights or Prerogatives of the Crown by such an impious vvay of using Quotations as he unduly charges upon the Lord Hollis he goes about to prove that all that Soveraign Power by which the Nation is govern'd which must be equally absolute in all independent Governments in which sense all Crowns that are not Feudatory or any ways under a Foreign Power are Imperial is by our Constitution vested solely in the Person of the King In the English Government Pag. 240. says he tho the House of Commons bears the shew of a Democracy and the Peers look like an Aristocracy among us yet our Government is a perfect Monarchy because the Supream Power is as I have proved neither in the one nor in the other nor in both together but solely in the Person of the King Vid. Grot. de summâ potestate subjecto potestatis modo habendi potestatem Where he is not satisfied to have the Supream Power in the King in a supream manner so as neither Commons nor Lords nor both have it equally or co-ordinately but nothing less than the absolute manner will answer his Scheme as will appear farther I was the more willing says he to make this Observation that when I speak of Soveraign Princes Jov. p. 240. I may not be maliciously traduced as if I spoke of them exclusively of other Soveraigns as if Monarchy were of sole Divine Right For want of this Distinction other Writers have had this invidious Imputation laid upon them But this Reason of not resisting the Soveraign because he is God's Vicegerent and only subject to him is a common Reason of Passive Obedience to all Soveraigns as well as unto Kings and unto Kings as well as unto any other Soveraigns c. If the Government of Men as well as Angels be from God then it must follow That upon whomsoever God is understood to bestow the Soveraign Authority he must also be understood to bestow upon him all the essential Rights of Soveraignty 'T is manifest that this is upon Supposition that God has bestowed the Soveraignty absolutely for otherwise every one who has the Name of Soveraign would be equally entitled to all the Rights And where God has not bestowed all the Essential Rights 't is as evident that he has not bestowed the Soveraignty absolutely Accordingly himself owns Pag. 239. that the Soveraign must be always understood the real and compleat Soveraign because there are many seeming Soveraigns which are not really such and instances in the Kings of Sparta subject to the Ephori who being appointed by the People he says The People themselves were the real Soveraign next under God Upon which some may ask Whether if our Constitution in some case warrant taking up Arms without or against Command from the King that may not be done by the Authority vested in the People for preserving the Constitution without using the traiterous Position that the King's Authority may be turn'd against his Person And whether if there be such a real Soveraignty lodg'd with them to that end and the Constitution likewise in some Cases discharges Allegiance and makes the Person to whom it was sworn cease to be King this Right can be alter'd or diminish'd by the Declaration that it is not lawful to take up Arms against the King But to proceed with the Doctor Pag. 242. In all Soveraign Governments Subjects must be Slaves as to this particular they must trust their Lives and Liberties with their Soveraign Which with us he supposes he had prov'd to be the King according to all the Rights of absolute or compleat Soveraignty And having started up an Imperial Law or Common Law of Soveraignty Pag. 202. for the evacuating
the Political Constitutions of this Nation made in the compleat Exercise of the Soveraignty I am sure says he in this Realm the Soveraign cannot wrong nor injure his Subject Pag. 226. but contrary to the Political Laws where perhaps he may serve himself of Mr. Hobbs his Distinction Leviathan f. 98. that his Soveraign may commit Iniquity but not Injustice or Injury in the proper Signification And thus a King of England has Right to make his Subjects Slaves when he pleases Tho this naturally follows from the Doctor 's Tenets yet one would have thought that in Prudence this frightful Consequence should have been left for others to find out were it not that there was some reason to believe that by such Prints and Preachments the People had been sufficiently prepared for Slavery But here indeed the Doctor admirably distinguishes that this is with relation to particular Persons whom he may destroy one by one Pag. 192. or Company by Company yet he has no Right to enslave the whole People by altering the Constitution of the Government from a Civil into a Tyrannical Dominion c. Yet even in this Case he allows of no Resistance but that still being upon Supposition that the Power which was restrained in the Exercise a Power to act and not to act was vested absolutely in the Soveraign till he proves it so here all his Authorities from Scripture Homilies or elsewhere fall beside the Question which is of one assuming an absolute or imperial Power when the Constitution gave no more than Political one Vid. Fort. de laudibus Legum Angliae according to his own Quotation out of Fortescue explain'd by the whole course and design of that admirable Vindication of our Laws After all he owns the whole to be a Controversy of Law that all the Laws of Men are the Laws and Ordinances of God And so God's Law places the absolute Soveraignty where-ever Man's Law does Wherefore from the whole it follows 1. That Lawyers are the best Casuists in this Point 2. That if our Law requires true Allegiance to be paid to the King in Possession and allows of all Constitutions made by him with Consent of Lords and Commons duly represented then the new Oath of Allegiance is required by an Ordinance of God and they who refuse it fight against God For the not obeying lawful Authority is evidently more a resisting God than the forcibly opposing a pretence to Authority neither deriv'd from God nor Man This Inference I must own will not reach those Passive-Obedience-Men who believe that Monarchy is the only Govenment of Divine Right or that human Choice or Constitutions cannot intervene in the disposal of the Soveraignty nor yet Dr. H. his own Notion of the Original Entail of the Crown But till the Doctor has answer'd the Letter formerly address'd to him or rejoin'd to Mr. Johnson I should think this enough for his Conviction tho I do not expect that he will confess it For the keeping up a Reputation with a Party in hopes to become an Head is a probable means for making good Terms for ones self And then the Party may shift for themselves And this the Doctor may do the more honourably having dropp'd some Expressions which a Man of less Art and Subtilty than himself may easily turn to the Service of the Government that is uppermost In the mean while the poor Bishop either through the Prevalence of his Distemper the Weakness of his Judgment or Violence of the Doctor 's Importunity has been induced to subscribe a Paper which may do much harm among them to vvhom a Bishop's dying vvords concerning matters of vvhich he was no competent Judg are of more weight than the clearest Reasons The Censure of the Observations upon Mr. Johnson's Remarks P. 6. You have sign'd a kind of Post-humous Apology for your Judges and almost justified the Inhumanity of your Sentence and most undeniable Authorities Upon the Bishop's Principle of affected or acquired I am sure unnatural Religion the scurrilous Observator upon Mr. Johnson's Remarks chews the Cudd in repeating his delight in those Sufferings vvhich are more the Reproach of some of either Gown than Mr. Johnson's vvhich however this vain Writer if Humanity and the Consciousness of his own Deserts could give leave vvould justify ex post facto but out of his great Tenderness allows him the choice of Death as a gentle Commutation of Penance Upon this Principle he imputes to that extraordinary Person perfidious Apostacy from the Church of England and the abdicating his Religion together with his King threatens the Nation with Judgments because they have not kept their Master the Lord 's Anointed Vid. Tit. Page and charges all them who having sworn Allegiance to the late King swear now to this with Perjury Pag. 14. in swearing a direct Contradiction to what was lawfully sworn before as if we might not without danger of contradicting the former Oath go upon the Supposal that there may be a Civil as well as Natural Death of a King that an Oath sworn to a Person as legal King and in relation to the Laws has no force when the Law is either subverted or altered or that the Law may transfer Allegiance from the Person in Possession to a Successor legal by the Constitution of the Government without need of Absolution from any Power whatever Dr. H. would teach this younger Brother that paying Allegiance to such a Successor is part of the Oath tho indeed there is a Question between us what Succession the Constitution requires or warrants Jov. Pref. p. 53. The Doctor contends that Faith and Allegiance is promised to the possible Heirs according to the ordinary Rule of Succession the Original and Fundamental Custom of this Realm to which he gives the addition of Hereditary Vid. Pref. to Predictions of Nostredamus Grebner c. If therefore as I have formerly shewed at large and now in the following Treatise our Allegiance has been duly transferr'd according to the Original and Fundamental Custom of this Realm whether Hereditary or not or how far still being subject to that Custom then this removes all danger of Contradiction and necessity of Papal or other Absolution But the Spirit of Contradiction is a Disease which assimulates whatever comes in its way and it may be very dangerous to meet this Zealot in his Paroxisms lest he drive you to the Wall and force you to confess that a legal King and a Tyrant are but the same under different Names and that the maintaining Tyranny is imply'd in swearing to defend all the Rights of this Imperial Crown and Political not Despotical Monarchy I am not enough dispos'd for Sport to observe all the Follies of his Invective but I am sure the Government will not allow Mr. Johnson's sound Assertion Pag. 3. that no Man can authorize himself in Abatement of the Guilt of denying that Authority which made the Oath since that
Authority was received from God who has not only in his Providence permitted but by a signal Interposition asserted that Original Constitution of our Government from whence our Laws and Allegiance are under God derived nor will it excuse his malicious as well as false Insinuation of no Title in our King not one Precedent to warrant it his being only King de facto and that those Inducements which mov'd the Compassion of our great Deliverer were Lies and Forgeries without which says he Pag. 21 they could never have driven their Master away Wherein tho he is more daring yet he is more cunning than the Gentleman who with Lay-simplicity yeilds the whole truth of the late King 's subverting the Constitution while the more subtile Clergy-man denies all and puts us to prove it after it has been found by the Grand Inquest of the Nation and confirm'd by the most Authoritative Judgment which is of less weight with him than the hastiest Church-Censure I would gladly know of him whether notwithstanding that Precept Touch not mine Anointed do my Prophets no harm he has not deliver'd or been ready to deliver many of God's chosen or anointed People over to Satan and the Secular Power without enquiring into the ground of the Sentence And whether the Unction of the Spirit is not as sacred as that which is us'd to Kings and the right to the Sacraments and Christian Assemblies from which he vvould not scruple to debar many in virtue of an Ecclesiastical Censure as Divine as a Right to a Crown But as he affirms that the late King was driven away by Lies and Forgeries he insinuates that this King's Government was founded upon them and stands in need of them for its support Pag. 21. than vvhich he may vvell say there cannot be a greater Evidence of a bad Cause yet nothing but assurance in some hidden support could make him thus insolent Pag. 5. and confident that his Tongue or Pen has not been too familiar with his Thoughts and it is very pleasant that he should still pretend to vvant Impunity for venting his lurking Scruples as if his bold Dogmatical Assertions directly against our present Government and in defiance of it were more safe than the proving matter of Fact contrary to what others alledg the falsifying their Quotations or shewing the weakness of their Inferences wherein he might with safety to himself expose his Adversary as he thinks he does Mr. Johnson for betraying that Cause which he pretends to serve But perhaps he believes that if he should be thus cautious he should lose his Reputation vvith his own Party and give the Government encouragement to punish him vvhich he may fancy that it dares not do vvhile he talks big and seems assur'd of being strongly back'd But it may not be amiss to take a nigher view of the Folly as well as Insolence of his Boast what feats he could do if the Law vvould stand Neuter for a while The Observator's ridiculous Challenge He promises in his own and believes he may in the Name of all his Brethren that are yet unsatisfy'd that their refusal to comply shall lie no longer hid in lurking Scruples and Reasons best known to themselves than till their Superiors shall be pleas'd with Indemnity to allow them to bring them forth Having as he thinks made this fair Challenge he concludes that it is Uncivility Rudeness and an ungentile Insolence to provoke them whose Hands are tied It seems they would be at liberty to condemn this Government as illegal and founded upon Injustice But if a Reason for this be demanded O Sir our Hands are tied provoke us not by asking vvhat is not in our Power we can rail and call you Rebels insinuate that your King has no Title your Laws no Authority but you are very uncivil not to allovv them vvho can give no Reason to rail on without it However this Man undertakes if he might have Indemnity in speaking out at the forfeiture of his Head vvhere he says Mr. Johnson's is due before Judges appointed by the Government to answer those Questions which he owns no Man dare be so bold as to answer and to back those Answers with such Reasons which shall ensure him the Priviledg of being for Mr. Johnson unanswerable Before the Judges have been appointed he concludes that Mr. Johnson's Head is due for writing against the late King's Title and vvith at least as much Equity we may say that his Head is due for writing against the Title of this But since he is willing to lose his Head if he cannot satisfy such Judges it is a pretty sort of Indemnity which he desires not to lose his Head for any thing which he may offer before the Judges when he consents to lose it if what he offers is not back'd with satisfactory Reasons Has he more to press or could he do it more cogently than Men of his Mind did in Parliament where there was full liberty of Speech Or is it to be suppos'd that there vvas not as good a Disposition in the Majority of them whose Votes carry'd our Settlement to listen to such unanswerable Reasons as he can expect from any appointed to be Judges of the Controversy but perhaps observing what Indulgence his Principle has met with he may hope that he or Men of the same Leven might influence the Nomination of the Judges and 't is evident that therein must lie the only colourable ground of his confident and ridiculous Challenge Tho there is no Reason to apprehend that Innuendoes should be now Innuendoes as they have been in those times which he justifies when they were admirable Engines to dive into the bottom of the Heart and fetch up those secret Intentions which no foregoing Discourse led to yet as one of the other Gown I should advise him for the future not to make his Pen so familiar with his Thoughts as he does vvhere speaking of Mr. Johnson's Assertion That King William is the rightfullest King that ever sat upon the English Throne Pag. 3. which he may very well be without supposition of coming to it in a manner different from all others since the Consent with which he was crown'd was the most universal that had been known in any Age he says he is content never to desire a greater advantage than to reduce an Adversary to the Absurdity of making no difference between a Title and no Title Wherein I fear he vvounds himself while he thinks to hit Mr. Johnson in the Eye for his due Application of the self-evident Distinction between Law and no Law and tho there is no Law to reach Mr. Johnson for his Reflections upon the late King and his Title this Writer may find a Law to punish him And if he would be at the pains to consult our Records Law-Books and old Historians he may find full warrant from the Constitution to make a good Title in our King upon the
Determination of the others and such a Consent as God himself seem'd to direct and appoint Yet since he supposes what is said by Mr. Johnson of the Reciprocal Contract between Prince and People to be like his own Assertions Pag. 7. The Reciprocal Contract a begging the Question or at least an haughty Imposition of his own Sentiments without proof but admits that if this could be substantially prov'd it would go a great way towards a Conviction of those Ib. whose Consciences for want of Information IN THIS VERY POINT will not give them leave to take the new Oath I would entreat him to shew wherein I either falsify in the Authorities which I have formerly produc'd and here repeat with Additions to this very Point or make wrong Inferences from them Which till he does as a due Correction for his railing at Mr. Johnson whose Memory will flourish in after-Ages when he shall be no otherwise known than under the Character of his Reviler I may say that his refusing to swear Allegiance to our legal Government is Obstinacy and his distinguishing Faith Faction And if he should be call'd in Question for that impotent Libel and no other means of reducing him to Sobriety being effectual should according to his snarling Reflection upon the immortal Memory of the Lord Russel and other inferior Patriots be condemn'd to mount toward an Apotheosis for his meritorious Crime of Treason against that Power which has been ordain'd of God the most apparently of any Civil Government that has been known for at least many Centuries could he expect to be as much desir'd lamented and praised by all that are themselves worthy of Praise Should he as he went along tell the good People that he suffer'd for that Doctrine which shall know no end but when all things confess their Ashes Pag. 6. and that tho his Sins are strangely great yet he now pay'd his Head forfeited by the Letter of the Law for Treason against a King which that acknowledges where Mr. Johnson's is due by a true equitable Construction for Treason against one who is no King in the Eye of the Law would not Men be tempted to make the Poet's Observation upon such a spruce and finical Malefactor Crimina rasis Librat in antithetis doctas posuisse figuras Laudatur In smooth Antitheses his Crimes he weighs And his departing Figures force our Praise I well know that Men are as zealous for a false Religion and their own Superstructure of Hay and Stubble as for the true Foundation And they who expose their Additions are in danger if not of suffering as Hereticks of being censur'd as Atheists And tho false Doctrines like false Miracles impare the Credit of the true yet he that attacks them after they have spread and gained the Name of sacred not only hazards himself but while he untwines or roots up the Weeds may chance to shake some standing Corn. Which may excuse the early freedom which I have taken to prevent the speading of that new Law-Divinity in this Age which rose in the last upon the fall of good Archbishop Abbot was rear'd up by Bishop Laud's Canons upon which the Parliament which brought in Car. 2. put a sufficient mark of Dislike and was fatned with the Charters of well-fed Corporations and the Blood of its forwardest Opposers While I expose the Folly of some Mens Notions which fight as much against our present Settlement as against common Safety and shew the Obligation which lies upon Kings to keep their Compacts with the People I would not be thought to go about to loosen the Bond of due Subjection to the Powers vvhich are over us I am sure they vvho vvill acknowledg none but King James to be their rightful King have no colour to urge this against me and yet by means of such false Alarums they have made most dangerous Approaches towards the Destruction of this Government I vvould not be thought to revive the powerful Hereditary Offices of the Palatine of Chester the High-Steward and the Constable of England that Tribunitial Authority which they had vvould be very dangerous in most times and too great Incentives to ambitious Men to set up for themselves The Author of the Sighs of France enslav'd observes that Charles Martel Les soupirs de la France Esclave Mem. 9. p. 130. Mair du Palais or High-Steward made himself King of France and Pepin his Son caus'd himself to be chosen the Family of the Merovingians being rejected That Eudes Mair du Palais upon the declining of the House of Charlemain took the Crown and caus'd it to pass to Hugh Capet and that Hugh Capet and his Descendants wisely suppress'd this Office It has doubtless been no less the Wisdom of this Government to have the like Offices with us to be now only known in Story yet they at least are Evidences of the English Liberties Vid. Les soupirs de la France Esclave Mem. 9. p. 142. On doit recicillir que quelque changement qui soit arrive dans le Government a Pégard des noms des fonctions des Principaux Officiers Mairs du Palais Connestables Chanceliers Grande Cómbelloins c. a touts ceté sans aucun prejudice des Proits du Peuple les Officiers de la Cour don de la Couronne out en plus ou moius de pouvoir mais c ' est par rarpert au Royles Droits de la Nation sont toù jours demeures en leur entier nor are the Liberties the less or the less inviolable because the Subjects of this Monarchy have had greater Confidence in their Kings than to insist upon having such settled Officers who may represent their Grievances with the better Authority and unite them in the common Cause when the oppress'd Nation should want nothing but an Head under which they might become formidable to evil Ministers who either think that the former Injuries which they have done are too great to be forgotten and therefore seek for Security in the Ruin of them who had before smarted under them Or who next to setting up themselves have no other aim but to make way for their suppos'd King of Right Such Men pretend that tho they cannot swear or declare that King William and Queen Mary are Lawful and Rightful King and Queen yet they can act in the Service of them as King and Queen and that there can be no danger from them because of the harmless Doctrine of Passive Obedience Prayers and Tears alas are all their Weapons and with them they may sollicit Heaven and Earth Vid. The Form of Prayer and Humiliation Ed. An. 1690. p. 60. Pag. 39. That we may no longer be without King without Priest without God in the World pray to God to restore their Prince who they say for the Sins both of Priests and People is now kept out and encourage a Rebellion against him who in their very Prayers to God Almighty they will have to be no King
I may add Flectere si nequeant superos Acheronta movebunt If neither Heav'n nor Earth afford them Aid They 'll try to fetch it from the Stygian Shade If such things as these do not shew that there was occasion for my gathering together those Precedents and Authorities which evince that in declaring for our present Soveraigns the Nation has proceeded according to their Inherent Power and in due form I at lest shall have the Satisfaction of having in my Capacity serv'd my Country and therein I shall have more than my Labour for my Pains which I may here close with that of Pliny to his Friend Tacitus C. Pliny Ep. lib. 9. Posteris an aliqua cura nostri nescio Nos certè meremur ut sit aliqua non dico ingenio id enim superbum sed studio sed labore reverentia posterûm Pergamus modò itinere instituto quod ut paucos in lucem famamque provexit ita multos è tenebris silentio protulit I know not whether they that come after will have any care of us we surely deserve from Posterity some Care and Esteem I do not say for Ingenuity for that would argue Pride but for Study and Labour Let us only go on in that way which we have enter'd upon which as it has rais'd some few Men to Splendor and Fame so it has drawn out many from Obscurity and Silence THE CONTENTS CHAP. I. THE Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to the Constitution Allegiance to our present King and Queen undertaken to be prov'd lawful both by the Equity and Letter of our Fundamental Law explain'd by the Practice of the Kingdom pag. 1. CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon the Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and his Quotation out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion Mr. Lawson's Opinion Bp Bilson's whose Authority is confirm'd by the Objection made to it in the History of Passive Obedience To which is added the Divine Plato pag. 11. CHAP. III. Five Heads of positive Law mention'd Vpon the first Head are produc'd the Confessor's Laws Bracton Fleta and the Mirror shewing the Original Contract with the Consequences of the King 's breaking his part Some Observations upon the Coronation-Oath with the Opinions of Sir Henry Spelman Cujacius and Pufendorf of the Reciprocal Contract between Prince and People The Objection from the pretended Conquest answer'd in short with reference to the second part The Sense of Dr. Hicks and Saravia upon the Coronation-Oath receiv'd with a Limitation from Grotius The Curtana anciently carried before our Kings explaining the Mirror A Passage in Dr. Brady against the Fundamental Contract touch'd upon referring the particular Consideration of him to the second Part. pag. 28. CHAP. IV. The second Head of Positive Law The establish'd Judicature for the Case in question implied if not express'd in the Confessor's Law and asserted in Parliament 12 R. 2. with an account why the Record then insisted on is not now to be found Our Mirror the foreign Speculum Saxonicum Bracton and Fleta explaining the same The Limitation of that Maxim The King can do no Wrong Precedents from Sigibert King of the West Saxons to the Barons Wars in the time of King John confirm'd by occasion of an Objection to the Instances in the Northumbrian Kingdom How far this Monarchy was reputed Hereditary or Elective before the time of W. 1. there touch'd upon Instances of the Peoples Claim of their Rights in the times of W. 1. W. 2. H. 1. King Stephen H. 2. pag. 34. CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered pag. 41. CHAP. VI. The Barons Wars in the time of H. 3. particularly considered H. 3. Crown'd by a Faction Had no right but from Election as his Father had That no Right could descend to him from his Father Lewis while here as much King as H. 3. Three express Contracts enter'd into by H. 3. besides the Confirmations of the Great Charter Those applied to the Consideration of the Wars Three of them under such as seem like the Roman Tribunes of the People Dr. Falkner's Objections against those Wars answer'd The Answer confirm'd by a full instance in the time of E. 1. pag. 46. CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The Power of the People manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the Instances from those Times to the Abdication
omitted The Objections from the Oath against taking Arms and from the Declaration against a Coercive Power over Kings removed by Sherringham and the Triennial Act 16 Car. 1. Pufendorf's due Restraint of the Power of the People Instances of the like Power in other Nations particularly Denmark Swedeland and Norway when under the same King For France Hottoman Sesellius the Author of Les Soupirs de la France esclave Bodin explain'd and shewn to justify King William in his descent hither and the People of England in their asserting the true Constitution of the Government For the German Empire Bodin and Conringius An occasion taken from him to shew the Antiquity and Power of a Palatine in Germany and England Gunterus used to shew that Office in several Countries Loyseau concerning it in France The Distinction in the Author of Les Soupirs between Officers of the King's House and Officers of the Crown The Antiquity and Authority of the Offices of Constable of England of the High Steward and the Earl Marshal which with the Earl of Chester have been as so many Tribunes of the People pag. 57. CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective sub modo 1. From the Saxon Pontifical and the Council of Calcuth An. 789. 2. From the Practice till the supposed Conquest 3. From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's Consent at Coronations 5. The Opinion of Kings themselves 6. The old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The Claims of Right between two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same common Stock pag. 72. CHAP. IX The Fourth Head of Positive Law A short Recapitulation of what has been prov'd An actual Discharge of Oaths of Allegiance to J. 2. shewn from the Authority of the Judgment past His usurping a Legislative Power leaving the Kingdom without providing for the Administration of Justice and going into France This confirmed by Rastal Lord Hobart Justinian's Digest The Rescript of Theodosius and Valentinian Pufendorf de Officio hominis civis His Elementa Juris prudentiae His Treatise de Jure Gentium Grotius Pufendorf de Inter-regnis Knichen's Opus Pol. Philip Paraeus A particular Consideration of what the Learned Knight Sir R. Pointz says seeming against these Authorities but shewn in truth to confirm them and to bring the Rules of the Civilians to our side That the Crown came not by Right of Descent to the next in Blood after the discharge of the Allegiance to J. 2. The Arguments for the People's being restor'd to the Liberty which they had before the Settlement of the Crown enforc'd from a particular Consideration of the State of the Settlement Where is it shewn how the word Heirs may be look'd on as restrain'd in the first Settlement on Heirs by Gomezius his Rule The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements and their Effects in relation to the Queen Mary and Elizabeth and J. 1. The Recognition to J. 1. not extending to his Heirs And question'd Whether the Recognition was not his best if not only Title With a modest Inference pag. 84. CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The use of the Triennial Act 16 Car. 1. against the necessity of common Form The Form and proceedings of the Convention assembled upon the Death of H. 3. The Dilemma used by the Formalists answer'd with a Distinction Pufendorf's Answer to Hobbs Another Passage of his applied to a Passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of the late Assembly would be conclusive to the Nation Neither forty days Summons nor Writs nor yet Summons to a Parliament Essential And this confirmed not only by the Precedent 12 Car. 2. but by two Precedents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves and of their own appointing The Objection of want of Form answered out of the Civil Law and its Reasons applied to our Case Objections made by the Author of Elimenta Politica considered The Conclusion pag. 98. APPENDIX Among other things SIR Robert Filmer and some of our Divines plaid against one another in relation to Ecclesiastical and Civil Power and Sir Robert against Himself pag. 1. Allegations in behalf of the High and Mighty Princess the Lady Mary now Queen of Scots against the Opinions and Books in the Part and Favour of the Lady Katherine and the rest of the Issues of the French Queen touching the Succession of the Crown Written in the time of Queen Elizabeth Reflections on Bishop Overal's Convocation-Book THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful King and Queen CHAP. I. The Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to
the Constitution Allegiance to our present King and Queen undertaken to be prov'd lawful both by the Equity and Letter of our Fundamental Law explain'd by the Practice of the Kingdom HAving sufficient Experience of the Consequences of being always on the Forlorn Hope tho in the noblest Cause I should yeild to the Justice of my Friend 's kind Rebuke for engaging in so many unprofitable Battels wherein they who have raised neither Envy nor Provocation are suffered to carry away the Prize by the Consent of Friends as well as Enemies were it not that he who is mercenary and fights for Pay or for Spoil can be no fit Votary to Truth which may sometimes be consistent with Mens Worldly Interest rarely advances it but can never vary with it while they who court Truth for the Dowry are often driven to Inconsistences with her and themselves and must be content to serve themselves of her thinnest Disguises Which I take to be the case of them who pretend to justify this Government upon any other bottom than that on which it really stands and may flourish in spite of open Enemies if it be duly arm'd against false Friends who ground it upon their own Fictions and flattering Schemes prepared in times with which they suited and were but like the Hypotheses of Philosophers to answer the then present Phaenomena Such Men valuing their own Reputation and Interest too much above the Publick expose it to the Contempt of the more subtile Adversaries Vid. Considerations offered for taking the Oath of Allegiance said to be Dr. Whitby's reflected upon in a Treatise call'd The Charity and Loyalty of some of our Clergy who cannot but smile to see Quietism prevail in Allegiance as well as in Devotion and them to pretend to discharge the Duty of Subjects and to deserve Protection from the Government who not only make resisting the late King damnable which implies a scrupling to defend that Government which protects them but broadly insinuate that no personal Assistance is due to keep the King and Queen in their Station even tho they have sworn Allegiance to them which shews what is to be thought of some Mens Promise constantly to pay that Fidelity and Allegiance which they have all sworn When the fit of Quietism is over and the opportunity inviting they may in the sense of some of the Brethren with a safe Conscience fight for their King de Jure Wherein it is evident that no Provision is made for the Safety of this Government but only for securing to themselves their Places of Profit under it yet no Man can believe that the Law which requires the Oath of Allegiance can give the least scope for so gross an Evasion so serviceable to that pretence of Title which it rejects Vid. The Doctrine of Non-resistance and Passive Obedience not concerning the Controversy Vid. the Preface Nor will the Jacobites be less thankful for their Doctrine who not only condemn all those whose active Zeal help'd to turn the Scale against them but allow no Title in our King unless it be by a real Conquest of the Nation or legal Succession in the Line The first of which the King not only disowns and the People would be loth to fight to maintain over themselves but according to the Objection in Elementa Politica Vid. Elementa Politica would have required a formal Denunciation of War And the last labours with such Difficulties as few can be able to resolve themselves or others in But as I am verily perswaded that our Government stands upon such a Rock as has been unmov'd for many Ages and has no need of a Lie for its Support I shall with the utmost Faithfulness address my self to its Defence wherein if I offend some of contrary Sentiments I must entreat them to answer me like Men with Reason and Authority and not in those Methods wherein they have hitherto been too successful All the Opposers of our present Settlement who pretend to talk Sense when press'd home grant that the Constitution of the English Government must be the Guide to their Consciences in this matter And tho I cannot commend those Justices of the Peace who permitted a Divine Thomas Lessey Rector of Laurence Lyddeard in Somersetshire Eminent in his Country and an Example to others to read a Protestation before his taking the Oath of Allegiance to King William and Queen Mary yet I ought not to reject his Testimony that Lawyers are the best Directers of Conscience in this case The words according to a Copy of his written Paper now in my hand transmitted from the Country were these I am assured by Learned Men in the Law whom I have consulted as the best Directers of my Conscience of this case This was at last Christmas-Sessions for the County Sir Edward Philips being Chair-man that by the Laws of this Nation the Allegiance of the Subject is due to a King in Fact or in Possession of the Government provided they have been recognized by the three Estates of the Kingdom in a Publick Convention I am fully convinced of the Truth of this And this is a Reason prevails with me to swear Allegiance to King William and Queen Mary The great Unhappiness of this Nation is that Divines not only set up for the greatest States-Men but will pretend to be the best Lawyers and Casuists in these Points of which the truest Friends to them and the Church have complained Thus the late Earl of Clarendon having in his excellent Book against Mr. Hobbs Lord Clarendon's Survey of the Leviathan p. 75. tax'd some Divines of malicious Endeavours to render Monarchy insupportable by the unlimited Affections and Humours and Pretences and Power of a single Person Says others of them believe as unreasonably that the Disposition Natures and Hearts of the People cannot be applied to the necessary Obedience towards their Princes nor their Reverence and Duty be so well fix'd and devoted to them as by thinking that THEY HAVE NOTHING OF THEIR OWN but whatever they enjoy they have only by the Bounty of the King who can take it from them when he pleases Whatever such Casuists hold of the absolute and inseparable Soveraignty of Princes if I prove that King William and Queen Mary are Rightful King and Queen according to the ancient Constitution of the English Government how much soever my Endeavours of real Service to the Croâ—… may be misrepresented by Men of another Allegiance I shall hope at least to be thought to have served my Country too much infected with wrong Notions or distracted with false Mediums and to have done Justice to our Great Deliverer and those English Worthies who invited or embraced the Deliverance and by their steady adhering to the Interest of their Country avoid that Forfeiture of Protection which too many have incurred To which end I shall shew 1. That the People of England had a rightful Power lodg'd with them for the
Preservation of the Constitution in vertue of which they might declare King William and Queen Mary King and Queen of England and Ireland with all their Dependencies tho J. 2. was alive at the time of such Declaration 2. That this rightful Power was duly exercis'd in the late Assembly of Lords and Commons and afterwards regularly confirmed by the same Body in full Parliament 1. As to the Nations rightful Power I shall not go about to refute the fond Notion of an absolute Patriarchal Power descending from Adam to our Kings in an unaccountable way because tho if this were true there could be no more Compact between Princes and their People than is between Fathers and Children for establishing the Rights of Fatherhood Patriarcha non Monarcha Ed. An. 1681. Two Treatises of Government In the former the false Princeples and Foundation of Sir Robert Filmer and his Followers are detected and overthrown Ed. Anno 1690. Heylyn 's Certamen Epistolare p. 386 387. yet the difference between a Patriarchal and Monarchical Authority is so well stated and prov'd by my Learned Friend Mr. Tyrril that few besides the unknown Author of the two late Treatises of Government could have gained Reputation after him in exposing the false Principles and Foundation of Sir Robert Filmer and his Admirers one of which Dr. Heylyn in his Letter to Sir Edward Filmer the Son speaking of his Father says His eminent Abilities in these Political Disputes exemplified in his judicious Observations on Aristotle's Politicks as also in some Passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this Cause which I would not willingly should be betrayed by unskilful handling and had he pleased to have suffer'd his excellent Discourse called Patriarcha to appear in publick it would have given such Satisfaction to all our great Masters in the Schools of Polity that all other Tractates in that kind had been found unnecessary This he says might have serv'd for a Catholicon or general Answer to all Discourses of this kind Since Sir Robert Filmer and Dr. Heylin were our late Observator's Predecessors in guiding the Inferior Clergy 't is not to be expected that they should nicely enquire into the Errors and Contradictions of their Leaders but the Doctor 's scandalous Reflections upon the Reformation in England and the Misfortunes of Charles the First in some measure at least occasion'd by the Countenance given to Sybthorpism Manwarism and Filmerism may justly raise a Prejudice against these Men and their Doctrines in the thinking Laity and those who are not able to think of themselves may take every Morning some Pages of the two Treatises of Government for an effectual Catholicon against Nonsense and Absurdities which have nothing to recommend them but Stile and Names cried up among a Party Vid. Dr. Heylyn's Stumbling-Block of Disobedience and Rebellion Wherefore I may well think that I may pass over the Stumbling-Blocks which such Men lay in the way to my Proof that the Power whereby this Nation is govern'd is originally under God derived from the People and was never absolutely parted with Hooker 's Ecclesiastical Polity lib. 1. f. 10. Many have cited the Authority of the Judicious Hooker till it is thread-bare to prove that it is impossible there should be a lawful Kingly Power which is not mediately or immediately from the Consent of the People where 't is exercised The present Bishop of Worcester whose Name will undoubtedly be held in no less esteem in future Ages Irenicum p. 132. is as express in his Irenicum That all civil Societies are founded upon CONTRACTS and COVENANTS made between them which saith he is evident to any that consider that Men are not bound by the Law of Nature to associate themselves with any but who they shall judg fit That Dominion and Propriety were introduced by free Consent of Men and so there must be Laws and Bonds fit Agreement made and Submission acknowledged to these Laws else Men might plead their natural Right and Freedom still which would be destructive to the very Nature of those Societies When Men then did part with their natural Liberties two things were necessary in the most express Terms to be declared 1. A free and voluntary Consent to part with so much of their natural Rights as was not consistent with the well-being of Society 2. A free Submission to all such Laws as should be agreed upon at their entrance into Society or afterwards as they see Cause But when Societies were already entered into and Children born under them no such express Consent was required in them being bound by virtue of the Protection which they find from Authority to submit to it and an implicit Consent is suppos'd in all such as are born under that Authority The Account which the Learned Cragius gives of the first Institution of Kingly Government seems to deserve not to be omitted Quum multa iracundè multa libidinosè multa avarè fierent c. Cragius de Feudis f. 2. Vid. The like account in Sir Will. Temple 's admirable Treatise of Monarchy among his Miscellanies So Bracton Rex à regendo non à regnando Jus dicebant When many things were acted wrathfully many things lustfully many things avariciously the best Man of a Society was chosen who might take Cognizance of the Offence or Injury and determine what was equal among Neighbours Thus were Judges constituted in every City for the sake of distributing Justice These were call'd Kings for Kings at the beginning were no more than Judges having their Denomination from ruling Each presided over his own City that is administred Justice Hence that multitude of Kings in Holy Writ To descend from generals to the Romans in particular whose Emperors were suppos'd to have been the most absolute and that the Obedience to Higher Powers required in the Gospel is to be taken from the measures of Subjection due to them Dr. Hicks Dr. Hicks his Jovian the great Maintainer of the Absolute Power of Monarchs takes a great deal of Pains to shew that the Empire was not Hereditary and by Consequence that their Power was immediately vested in the particular Emperors by the Consent of the Legions or other People who set them up Saravia as careful of the Rights of Princes owns Saravia de Imp. Author f. 159. That by the Roman Law the Crime of Laesa Majestas or Treason is defin'd to be that which is committed against the People of Rome and its Security Where he confines it to Crimes against the People only Vid. Tacitus p. which indeed agrees with the dying Speech of an old Roman in Tiberius his time But that in the Eye of our Law there may be a Laesa Majestas Vid. Glanv p. 1 Crimen quod in legibus dicitur crimen Laesae Majestatis ut de nece vel seditione
vested to govern in Matters of Religion not as originally arising from their Christianity but from the general Right of Dominion and Soveraignty and says this includeth a Right of establishing by their Authority what is truly unblameable orderly useful and necessary with respect to Religion Accordingly he speaks of the Ecclesiastical Laws of Ina Page 153. and several other English Saxon Kings as if they were establish'd by them as having the Civil Power solely and absolutely in themselves And indeed if as Mr. Falkner has it elsewhere Page 41. the Soveraign Ruler hath a Right to promote God's Publick Worship and to establish it by a Civil Sanction it must follow either that these Kings were no Soveraigns or that they alone made those Ecclesiastical Laws giving them their Civil Sanction Yet that he denies even to the Emperor Constantine such a Power as he ascribeth to Kings and Princes and particularly to ours Pag. 172 173 174. is evident from his justifying Athanasius in his disobeying the Emperor's positive Command to restore Arius to his Church of Alexandria after a final Sâ—â—tence of Deprivation of the Council of Nice which Sentenc 〈…〉 g grounded upon his Heresy the Emperor might well think that subscribing and swearing to the Nicene Creed might render him a Person equally capable with any other to supply the Vacancy 2. Mr. Falkner's second Mistake in his first Part. Another Mistake Mr. Falkner seems to have been led into by thinking Ecclesiastical Canons to be of Authority in Points of Law or State Hence it is that he cites the second Canon 1 J. 1. which he says threatens Excommunication against them who shall affirm 2 Canon Vid. Christian Loyalty p. 50 51. that the King hath not the same Authority in Cases Ecclesiastical that the Godly Kings had among the Jews He might have observ'd that it excommunicates them ipso facto without admitting them to any Plea or Defence for themselves In which Comparison tho perhaps much was intended according to the Mos Regius described by Samuel I fear it proves too little nor would they who made those Canons have been willing to confine the Royal Power to that fundamental Law for it which we find in Deuteronomy Deut. 17. from ver 14. to the end where the Rule for the Election of Kings is stated that the Person whom they set over them should be no Stranger but one from among their Brethren and his Power is bounded within Moses his Law that his Heart be not lifted up above his Brethren And it is certain that the Stream of Learned Men are on the side of Petrus de Marca Falkner p. 89. who observes that they do not deserve well at the Hands of Christian Princes who would measure their Authority and Dignity from the Exercise of Royal Power under the Times of the Old Testament Ib. p. 75. Even Grotius will not allow the Government over the House of Israel to have been Monarchical Ib. p. 102 454. But leaving Mr. Falkner with his Canons to fight this out with De Marca Selden Grotius Schickard Bellarmine Baronius the greatest part of the Jewish Rabinnical Writers Blondel and even Josephus who says the King was not to act without the High Priest and the Consent of the Senators I shall but mention some Heads in which it will be difficult to disprove me 1. The Kings of Israel quatenus Kings had no Interest in the Legislative Power for that Government so far continued a Theocrasy that God who promised in an especial manner to dwell among them Exod. 29.45 was their sole Legislator and Mr. Falkner himself tells us Page 464. The Jewish Common-wealth was peculiarly order'd by God or as he has it elsewhere Page 438. peculiarly Theocratical 2. Where-ever any Alteration in the outward Administration or Circumstances of things appointed by God's Law delivered by Moses went under the Name of any King it will hardly be possible to prove that the King did not make it either as he himself was a Prophet or by the Direction of the chief Prophet or Seer whose Commission Jer. 1.10 if we may judg by that of Jeremiah's was very large being set over the Nations and over the Kingdoms to root out and to pull down and to build and to plant Orig. sacrae p. 150. The present Bishop of Worcester shews that God appointed a Succession of Prophets to make known his Mind to the Israelites and that there were Schools or Colledges of the Prophets which some think Samuel erected Pag. 154 164. where God Almighty ordinarily dispensed his Effusions Out of these the Kings had their Seers Gad was David's Seer and Jeduthun Josiah's after Israel and Judah were divided according to that Observation made by the Bishop neither were these Schools of the Prophets only in Israel but in Judah likewise was God known Page 463. 3. The Right of the Crown of Israel was not so fix'd to a Family but as Mr. Falkner owns God reserv'd to himself the Right of disposing the Soveraignty of that Kingdom By which as he would justify some Risings against Kings in Possession he must likewise admit that no Instances of Passive Obedience among the Jews can concern Governments more truly of Human Institution 4. For the Judicial Power it may be difficult to shew the King to have been more than the Head of the Sanhedrim and perhaps considering that the Law by which they were to judg was God's Law which the Priests Deut. 31.9 11. who bare the Ark of the Covenant of the Lord were to read to the People Exod. 28.29 30. the High Priest who was to bear the Judgment of the Children of Israel upon his Heart continually with his Vrim and Thummim the Breast-Plate of Judgment may bid fair for the chief Place in that Court And tho Moses their King Deut. 1.17 Vid. Dr. Heylin's Certamen Epistolare p. 290. Fortescue c. 1. p. 4. b. Moses call'd Dux Synagogae Orig. sacr p. 150. reserv'd to himself an Appeal from the Sanhedrim it will be difficult to shew that the Seer did not succeed him in that especially since he shews that his Right of being hearkened to or obey'd was as he was a Prophet and the present Bishop of Worcester holds that the Promise of a Prophet to be rais'd up to the People of Israel ought to be understood not only of Christ but also and more immediately of an Order or Succession of Prophets to be obey'd in all things 5. Whereas Mr. Falkner labours against Josephus Maimonides and Schickard to shew that the Kings of Israel might make Arbitrary War or War of choice without the Authority of the Sanhedrim he should have added or the Directions or allowance of any Prophet to have prov'd any thing to his purpose Falkner p. 97. and it will appear that the two Instances which he gives were from the Prophetical Power thus when he says Saul resolv'd upon War
to be King which sufficiently justifies that Vote of our Convention since confirm'd by the Parliament that a Popish King is inconsistent with this Protestant Kingdom 3. The last Question or rather part of a Question Page 527. which this learned Author takes notice of in the Resolution of which he agrees with Barclay and Grotius is Attempting to destroy the Kingdom or any considerable part of it Pag. 528 529. Whether if a Soveraign Prince should actually undertake to destroy his whole Kingdom or any considerable part thereof they may not in these Circumstances have liberty of defending themselves by taking up Arms Now we must allow him here to distinguish his Sentiments by inveighing against Junius Brutus Page 528. and other Subverters of Soveraign Power who start and urge this Question However it may not be amiss to take him into a Corner to know his Mind of the matter under the Rose Page 531. It must be remembred that he allowed of Barclay as a competent Judg in the Questions which he determines and as to a Soveraign Prince's undertaking to cut off Page 529. or to ruin and destroy the whole Body of his People he acknowledges that this is the other only Case in which Barclay esteemeth a Soveraign Prince to forfeit his Right of Government and that thereupon it may be lawful to resist him Tho as I observ'd before Grotius cites Barclay for a third Sup. f. 25. this which he receives as Barclay's second as he gathers from Barclay must not exceed the Bounds of meer Defence without any Attempts of invading or revenging yet it may be a Question how far this may be consistent with his yeilding that a former King in such case becomes a private Person And indeed I think he is in the right in allowing of no case to warrant Resistance till he who had been a King becomes a private Person Page 526. Accordingly neither Barclay nor he in the case of a King 's undertaking the Ruin of the Whole or in any other case will allow the taking Arms against the Soveraign Power because a Prince by such an undertaking as this loseth his Royal Authority and is no longer King se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desinit Page 530. And the Reason given by Grotius in the same case is irrefragable consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem Populi totius profitetur eo ipso abdicat Regnum A Will to govern and a Will to destroy cannot consist together wherefore he who professes himself an Enemy to his whole People in that very thing abdicates his Kingdom I cannot but observe that here is a Forfeiture own'd and an allowance of a Right in the People Page 529. or some of them at least to judg of the Forfeiture Barclay esteemeth a Soveraign to forfeit his Right c. Elsewhere Mr. Falkner says To assert that the People or Inferiors are of right Judges of the Cases in which they may resist their Superiors is as much as to say they are bound to Subjection only so far as themselves shall think fit and that they may claim an Authority over their Governours Page 365. and pass Judgment upon them and deprive them of their Dignity Authority and Life it self whensoever they shall think it requisite and needful Page 359. But this Inference here as well as his former Declaration shews that he speaks not of extraordinary Cases which as he has it we may well presume or hope may never be in act And if a judicial Power even in such extraordinary Cases sound harsh we may learn of him to soften it with the Terms in which he justifies the Exercise of a like Power over Kings in Spirituals Page 321. Tho says he all Christians upon manifest Evidence may in some cases see cause to disown a Soveraign Prince as was done in Julian from being any longer a Member of the Christian Society Page 322. yet in such Cases his Membership ceaseth and is forfeited by his own Act and not properly by a judicial Sentence and formal Process And some of the Romish Writers go much this way in giving an account how the Bishop of Rome whom they suppose to be Superior to all Men on Earth may by reason of Heresy or such Crimes be deprived of Christian Communion I must herein agree with Mr. Falkner that 't is not the Judgment which creates the Forfeiture but the Grounds of the Judgment which ought to be duly weighed Page 542. 4. The only thing which according to Mr. Falkner in this Case can farther be proposed is Whether if a Supream Governour should according to his own Pleasure and contrary to the established Laws and his Subjects Property actually engage upon the destroying and ruining a considerable part of his People they might not defend themselves by taking Arms This which he says is notional and speculative Page 543. has too sadly been reduced to Practice in Ireland especially After mentioning the Parisian Massacre he confesses that if ever any such strange Case as is propos'd really happen in the World Page 544. it would have great Difficulties Grotius says he thinks that in this utmost extremity the use of such Defence as a last Refuge ultimo necessitatis praesidio is not to be condemned provided the Care of the common Good be preserved And says Mr. Falkner if this be true it must be upon this ground that such Attempts of ruining do ipso facto enclude a disclaiming the governing those Persons as Subjects Page 545. and consequently of being their Prince or King And then the Expressions of our Publick Declaration and Acknowledgment would still be secur'd that it is not lawful upon any Pretence whatsoever to take Arms against the King In short Mr. Falkner's Judgment in these three or rather four Cases is this That these Cases are so extraordinary that they fall not under any Consideration as a pretence but will justify the Subjects taking Arms when they are real and that when any such Case happens the taking Arms is not so much authoriz'd by any Judicial Power in the People or their Representatives as by the Facts themselves whereby the King ipso facto without Sentence incurs a Forfeiture and ceases to be King And had he lived to apply his own Rules no Man can doubt but he would in Terms have justified our renouncing Allegiance to the late King Whether upon the account of the Forfeiture or the Judgment upon it or both is not very material especially considering that both Barclay and Grotius speak of an Absolute Prince not a Platonick Monarchy Vid. Pag. 398. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yok'd or coupled with Laws 'T is well known to have been Grotius his Opinion Page 348. That if the Supream Government be part in the People or Senate and
have stood for the defence of their Liberties have served themselves How truly I esteem it hard for you and me to determine unless we were more throughly acquainted with the Laws and Customs of those Countries than I for my part am 1. Here his Interrogation strongly implies the Assertion that Subjects are not bound to give their Throats to be cut by their fellow Subjects or offer them without either humble Remonstrance or Flight to their Princes at their meer Wills against their own Laws and Edicts 2. The Argument from the Laws of Nature and Nations he represents with due strength and apparent marks of Favour All the Hesitance which he makes in pronouncing absolutely on their side is from his not being throughly acquainted with the Laws and Customs of those Countries Wherefore as he supposes not Christianity to lay any Obligation upon the Subjects beyond the Duty resulting from the particular Constitutions of the respective Governments so he does fully admit that the Laws ad Customs of some Countries may allow of Resistance in some Cases Hence it appears that no Man can truly say that he takes the Bishop's words by the wrong handle who would infer from him that it is neither unlawful nor impious for Subjects in some Countries and in some Cases to resist their Princes Nay without knowing the Constitution of France or of the Low-Countries he supposes that in such extraordinary Circumstances as the poor Protestants in both places lay under no Man can condemn them without approving of the barbarous Cruelty and Butchery of their Persecutors Page 446. Nay for Holland he particularly urges that the Kings of Spain were not absolute Lords there and says any reasonable Man may doubt Whether the Title of Earl to which they succeeded imported such a Power as they exercis'd which is as much as to say that since they assumed a greater Power than the Constitution warranted Arms against them were lawful and if thus much is not implied Bp Bedell p. 447. it must be own'd that the Bishop very impertinently affirms that the Kings of Spain were not absolute Lords in Holland No Man can doubt of his meaning thus much since he affirms positively that it is no hard matter to discern pretended Priviledges from true and Treason from Reason of State But says he to take Arms to change the Laws by the whole Estate established is Treason whatsoever the Cause or Colour be which may take in those that fight on the side of a King as well as those who fight against him Nor do I know what can well be said against what the judicious Mr. Lawson urges to this purpose Lawson's Politica sacra Civilis 362. last Edit Treason says he against Laws is more hainous than Treason against Persons and Treason against Fundamental Laws than Treason against Laws for Administration This Treason against the Fundamentals was charged upon the Earl of Strafford and the Personal Commands of the King could not excuse him yet it was not thought that the Judgment past upon him should be made a Precedent for Inferiour Courts because none but a Parliament could judg of and declare the Constitution and what is against it and what not Bishop of Christian Subjection Ed. 1586. p. 279 280. If says Bishop Bilson a Prince should go about to subject his Kingdom to a Foreign Realm or change the form of the Common-wealth from Impery to Tyranny or neglect the Laws establish'd by common Consent of Prince and People to execute his own Pleasure in these and other Cases which might be named if the Nobles and Commons joyn together to defend their ancient and accustomed Liberty Regiment and Laws they may not well be accounted Rebels And soon after he speaks of a Power for preserving the Foundation Freedom and Form of their Common-wealths which they fore-priz'd when they first consented to have a King Where his meaning cannot be restrain'd to express Provisions excluding such as may be equitably intended That which is offer'd in the History of Passive Obedience to qualify Bishop Bilson's Expressions History of Passive Obedience p. 27. I dare say will be a Confirmation of his Authority in the Judgment of any Man who impartially weighs the following Proofs of the nature of our Government At the time says the Historian when Bishop Bilson's Book was written Queen Elizabeth was assisting the Dutch against their and her common Enemy the Crown of Spain Now if in the Low Countries the Government was founded in Compact as many Learned Men say and that all their Priviledges Sacred and Civil contrary to that Agreement were invaded and the Inquisition introduced all their Petitions slighted and some hundred thousands barbarously murder'd this alters the Case while it can no ways hold good in Governments where there is no such Compact Passing by due Reflections upon the Impunity which he allows to the most barbarous Murders where the Government is not founded in Compact it will appear to be enough for us that where it is founded in Compact the Nobles and Commons may joyn in the Defence of their ancient and accustomed Liberty Regiment and Laws nor may they in such Case well be accounted Rebels And not to heap Authorities with this agrees the Divine Plato who after he had affirm'd that the highest degrees of Punishment belong to those who will misguide a Ship or prescribe a dangerous new way of Physick having brought in Socrates asking whether Magistrates ought not to be subject to the like Laws himself asks Platonis Politicus f. 299. Ed. Serrani 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What shall be determined if we require all things to be done according to a certain Form and set over the Laws themselves one either chosen by the Suffrages of the People or by Lot who slighting the Laws shall for the sake of Lucre or to gratify his Lust not knowing what is fit attempt to do things contrary to the Institutions This Man both he and Socrates condemn as a greater Criminal than those which he mention'd whose Crime he aggravates as 't is an acting against those Laws which through a long Experience had been ordain'd by their Counsel and Industry who had opportunely and duly weighed every thing and had prevail'd upon the People to submit to them CHAP. III. Five Heads of positive Law mention'd Vpon the first Head are produc'd the Confessor's Laws Bracton Fleta and the Mirror shewing the Original Contract with the Consequences of the King 's breaking his part Some Observations upon the Coronation Oath with the Opinions of Sir Henry Spelman Cujacius and Pufendorf of the Reciprocal Contract between Prince and People The Objection from the pretended Conquest answer'd in short with reference to the second part The Sense of Dr. Hicks and Saravia upon the Coronation-Oath receiv'd with a Limitation from Grotius The Curtana anciently carried before our Kings explaining the Mirror A Passage in Dr. Brady against the Fundamental Contract touch'd upon referring the
Common Council to provide for the Indemnity of the Crown of the Kingdom and for repressing the Insolence of Malefactors for the benefit of the Kingdom which as appears from the words and subsequent as well as former Practice besides the Opinions of ancient Lawyers did not except the King himself whatever Care is taken of the Crown of the Kingdom However 't is certain the Parliament 12 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice Whereby if the King Knighton f. 2683. meaning the Case of E. 2. through a foolish Obstinacy Contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and laudable Ordinances made by the Council of the Lords and Great Men of the Realm but shall headily in his mad Counsels exercise his own Arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd Knighton f. 1752. This observ'd after me by the Author of the Answer to the Popular Objections p. 44. and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24 th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and razed to the great Prejudice of the People and Disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance More particularly in the Historian unmask'd by the same Author Mirror p. 9. The Mirror tells us That of Right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum Hornii orbis imperans p. 196. of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was written before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People Hornius p. 196. who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from Bracton seems to correct the Copy and has it si parcat Fleta lib. 1. cap. 17. If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere Bracton l. 3. c. 9. p. 107. that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains Ibid. when he says That no Justices or private Persons may dispute of the King's Charters and Acts Bracton l. 2. c. 16. p. 34. but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. Vid. Ryly Plac. Parl. f. 20. Fleta supra Superiores So Mirror p. 9. Ceux Compagnions sont ore appelles Comites in Latine Comitatus where he takes in all that come up to Parliament from the Counties where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King acts without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not be adjudg'd so by the Judges Commissaries or Commission'd Judges Vid. Mirror p. 209. He there says Suitors are Judges ordinary and 274. speaks of Counties les autres Suitors having Jurisdiction in Causes which the King cannot determine by himself or by his Judges So Judg Crook's Argument in Hampden's Case p. 59. Whatever is done to the Hurt or Wrong of the Subjects and against the Laws of the Land the Law imputeth that Honour and Justice to the King whose Throne is establish'd by Justice that it is not done by the King but it is done by some unsound and unjust Information and therefore void and not done by Prerogative which the Mirror uses in Contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least interfere with the Judicial Power of the High Court of Parliament and it may be a Question Whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of false Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions Chronica de Mailros f. 137. Anno 756. Bromt. f. 770. Cōgregati sunt Proceres Populus totius regni eum providâ deliberatione à regno unanimi consensu omnium expellebant was expell'd the Kingdom and Bromton shews that this was done in a judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament Lambart's Pref. to Archaionomia Northumbrorum Imperii magnitudo ea fuit quae nunc est Ehoracensis Dunelmensis Northumbriae Cumbriae Westmorlandiae Comitat. atque reliquam praeterea Lancastrensis Com. partem complectebantur Chron. Mailros f. 138. Anno 774. Sin Dunelm 106. 107. Consilio consensu omnium Regiae Familiae ac principium destitutus societate exilio Imperii mutavit Majestatem And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and
Family was barely which of the Competitors all Circumstances being considered was most likely to advance the Publick Interest of which the People were to be Judges whereas according to his Limitation they were bound to take the Person who was next in the Line if he lay not under a natural or moral Incapacity directly contrary to what he shews out of Malmsbury of the West Saxon Kingdom in which after Ina no Lineal Succession was observed When Athelstan Page 15. of his own shewing was chosen King were his Brothers Edward and Edwin under any natural or moral Incapacity Or were the Sons of Edmond Iron-side either way uncapable when Edward the Confessor was elected For Confirmation of what himself produces upon this Head I take leave to add one Authority from the Writer of the Life of King Alfred Vita Aelfredi lib. 1. f. 19. Many Examples says he are found among the Saxon Kings of a Brother's succeeding to the Brother before his Son especially if the Son had any Impediment from the Infirmity of his Age or other Ineptitude for governing Nay OFTEN BY REASON OF LESS MERIT I must admit that for the deposing one actually invested with the Regal Authority the Author's Limitations were to be observ'd tho they were not strictly kept to and I cannot but think that this Author confounds himself for want of this Distinction Either the frequent Examples of setting Kings aside whom the Nation judg'd uncapable of the Government through some natural or moral Defect or Excess or rather the continual Engagements in war with Foreigners had such Effect that from the time of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957 to the time of W. 1. being 109 Years I find no like Instance but one Anno 1014 52 Years before the suppos'd Conquest which was the case of Etheldred who abdicated the Government and went into Normandy from whence the Nation agreed to receive him again upon Condition si vel rectiùs gubernaret Flor. Wigorn. An. 1014. vel mitiùs eos tractare vellet if he would either govern more according to Law or treat them more mildly Upon which he promiss'd omnia Rege Populo digna All things which become a King to his People For the most part during the Saxon Government a King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender Usage of his People Even Will. 1. notwithstanding the Pretence made in after-Ages of his having broken the English Spirit Vid. second Part. was not only oblig'd to keep within Bounds as the following Discourse will evince but to renew his Compact with the People more than once Their extraordinary Power had slept very few Years after the Death of this reputed Conqueror Ed. Lond. Mat. Par. f. 19. Rex Willielmus videns omnes pene regni proceres una rabie conspiratos Anglos fortitudine probitate insignes faciles Leges tributorum lenamen liberasque illis venationem promittendo sibi primo devinxit for the Sickness of his Son W. 2. giving the English Nobility an opportunity of consulting together they almost as one Man were for declaring against him which he timely prevented by fair Promises to them Nay tho his Brother H. 1. came in with the universal Applause of the Nation yet a great part of his Navy deserted him and declar'd for his Brother Robert not because he was the elder Brother but because Henry was unmindful of that Contract which gain'd him the Preference Quia Rex jam tyrannazaverit as the Historian has it because the King prov'd a Tyrant King Stephen his immediate Successor after Allegiance sworn to him had it a while withdrawn for Maud the Empress Daughter to H. 1. but the People soon return'd to it again rejecting her who was nighest in Blood because she deny'd them the benefit of St. Edward's Laws And Discourse p. 21. as the Author of the learned Discourse about the New Separation observes out of Manuscript written by Fortescue Chancellor to H. 6. Maud was set aside and the Reversion of the Crown entail'd on her Son altho she was living and this was done in Parliament Communi Consensu Procerum Communitatis Regni Angliae By the common Consent of the Peers and Commons of England for which Fortescue whose Skill and Integrity no Man can justly question appeals not only to the Cronicles but to the Proceedings of Parliament However this Author will have it that the Commons were not there but as represented by the Barons being misled by the general Expressions of the Historians whose Authority he opposes to the Rolls of Parliament Yet for the purpose here it is enough that this was done by a Parliament of that Time that the Agreement then made was confirm'd by the Oaths of the Great Men and that the Publick Good which was the Foundation of the Agreement was thought to be the measure of the Obligation of such Oaths Hen. 2. came to the Crown by virtue of an Agreement with King Stephen to which the Nation consented for ought appears he was a strict Observer of the Constitution of the Government but being render'd uneasy by the Refractoriness of the Clergy and desirous that his Son should enjoy that Kingdom which he found a desirable Possession to them who would keep the Laws he took his Son into a Partnership of the Care and Dignity this occasion'd a Competition for Power which the Admirers of the traiterous St. Becket improv'd into a War which divided the People Archbishop Parker's Antiquitates Britanicae f. 130. salvâ fide Regi patri quamdiu viveret ac regno praeesse vellet but this being between two Kings both in Possession I should not look on as any Precedent to our Point did I not find that the Allegiance sworn to the Son at the receiving him to the Succession was with a Salvo for that which was due to his Father as long as he should live or think fit to reign CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered THE Power lodg'd in the People for the publick Good to be sure was rous'd and justified by the Tyrannical Reign of King John who tho he had effectually abdicated or unking'd himself by his giving up his Crown as much as in him
away all the evil Counsellors which the King perceiving again betook himself to the Tower But an agreement being made with some of the Barons by the Queens mediation the King having left the Tower in the Custody of one in whom he confided went a progress and found his Barons very quiet and peaceable but he soon discover'd that he was resolv'd to act without regard to the Provisions at Oxford Violently seiz'd several Castles and coming to Winchester displaced the Chief Justice and Chancellor which had been constituted by the Baronage F. 1335. the Barons met him at Winchester with a considerable Force upon which the King hastens again to the Tower of London The Barons one would have thought were now in a fair way of securing the performance of the last Contract made at Oxford but now the Clergy had their Game to play and acted it like Men who knew how to manage the Nation against its interest they keeping a correspondence with the Clergy of France were Authors of advice to the Barons That all things in difference should be referred to the Determination of the French King no doubt making the Barons believe that they had assurance of that King 's good Wishes for the Prosperity of England Both the King and Barons agreed upon the reference upon which as was to be expected the French King gave Sentence for the King against the Barons and for annulling the Statutes at Oxford with all Provisions Ordinances and Obligations thereunto belonging With this Exception that he intended not by that Sentence in the least to derogate from the Ancient Charter of King John granted to the Kingdom of England Qui habebant sensus exercitatos Which Exception says the Historian oblig'd the Earl of Leicester and others of sound Judgments to resolve firmly to keep the Statutes of Oxford which were founded upon that Charter And Matthew Paris condemns those as guilty of Perjury who upon this A fidelitate Comitis Leicestriae receded from their Faith to the Earl of Leicester who fought for Justice He grew so strong and so successful that the King came again to Terms with him and with the other Barons the Terms were these Mat. Par. f. 1327. That Henry his Brothers Son should be deliver'd out of Prison That all the Kings Castles throughout England should be put into the Custody of the Barons That the Provisions of Oxford should be inviolably observed That all Foreigners shall depart the Kingdom within a certain time excepting only them whose stay should be permitted by unanimous Consent as being faithful to the Kingdom Mat. Par. But notwithstanding all Pacts Promises and Oaths the King sends to have Windsor-Castle besieg'd but was disappointed by the Earl of Leicester After this a Parliament met at London in which several deserted the Earl and adher'd to the King so that he seem'd the strongest The Barons writ him a Submissive Letter declaring That they had no evil Intentions against his Person but complain of his Counsellors The King in his Answer justifies his Counsellors and says their Enemies are his The Barons on the King's side send a defiance to the others and particularly to the Earl of Liecester and to Gilbert de Clare Earl of Glocester and Hereford undertaking to prove them Traytors in the King's Court. Which Tryal the Barons thought they then had Reason to decline but the Barons offer the King 30000 l. for his Damage sustained by the War 1329. provided the Statute of Oxford may be observed but their Proposals not being accepted they came to a pitch'd Battel at Lewis wherein the King was totally routed and taken Prisoner and his Son Edward soon after yielded himself Upon which followed a form of Peace solemnly sworn to while the King and his Son were in Prison Pat. 48. H. 3. m. 6. dors but the Son making his Escape took the Advantage of a Difference between the Earls of Leicester and Glocester Vide Cave de Scriptoribus Eccles f. 716. His Character of that Bp. who animated the Barons Vir erat ut pietatem vitae Sanctimoniam reliquasque virtutes Christiano Praesule dignas praetermittam ingentis animi acris ingenii in re literariâ quantum ea ferebant tempora ad summum pen̄e apicem evectus totum encyclopediae circulum emensus in literis sacris pariter prophanis c. and over-powering Montfort gained an entire Victory at Evesham by the Death of that Earl who as Matthew Paris's Continuator tells us laid out himself for the Relief of the Poor the Assertion of Justice and the Right of the Kingdom and was incited to it by the Famous Grosthead Bishop of Lincoln who always affirmed that they who died in that Cause would be Martyrs The King being victorious no wonder that a Parliament called immediately upon it at Winchester condemned the Conquered for Rebels but it is evident that more Parliaments justified such as then were Rebels for being beaten Falkner's Christian Loyalty p. 349. and methinks Mr. Falkner does not argue with his usual fairness when he urges the unfortunate conclusion of the Barons Wars in the later end of H. 3. as sufficient evidence that if we look into the Records of the former ages we may thence discern that no Subjects whatsoever of this Realm had under any pretence an authority to bear arms against the King The Dictum de Kenelworth 51 H. 3. mentioned by him as an evidence of the sense of another Parliament besides that of Winchester is plainly an abatement of the rigours of that Parliament and was only a determination and award made after Simon Montfort the younger Vid. Brady's Hist f. 655. had submitted to any terms that should be imposed saving his Life and Limbs and excepting perpetual Imprisonment Mr. Falkner adds Anno 52. P. 351. The Statute of Marlbridge mentions it as a great and heavy mischief and evil that in the time of the late Troubles in England many Peers and others refused to receive Justice from the King and his Court as they ought to have done which is more expresly contained in the Original Latin than in the common English Translation Justitiam indignati fuerint recipere per dominum Regem curiam suam prout debuerunt consueverunt and did undertake to vindicate their own Causes of themselves P. 352. Now to declare that all Peers and all other Persons ought to have received Justice only from the King and his Courts and not to revenge themselves or be Judges in their own cases doth more especially condemn the entring into War its self which is an Undertaking founded upon a direct contrary Proceeding And thus we have a sufficient Censure in our English Laws upon that War against the King which those who have pleaded for the Lawfulness of Subjects taking Arms do account the most plausible Instance for their purpose as our Chronicles can furnish them with Answer But to any who consider
shew the Antiquity and Power of a Palatine in Germany and England Gunterus used to shew that Office in several Countries Loyseau concerning it in France The Distinction in the Author of Les Soupirs between Officers of the King's House and Officers of the Crown The Antiquity and Authority of the Offices of Constable of England of the High Steward and the Earl Marshal which with the Earl of Chester have been as so many Tribunes of the People TO proceed to E. 2. Son to E. 1. 't is certain that the sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally Deposed in Parliament for his misgovernment Walsingham f. 107. Rex dignitate regali abdicatur filius substituitur His Case with his next Successor's but one R. 2. by what I have observed before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once Hollingshead f. 637. Ib. f. 639 640. H. 6. being a weak mis-led 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 A Crown over a Branch of lights in the H. of Commons and another from the top of Dover-Castle falling about the same time ib. f. 659. 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 believed 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 Richard and his Heirs after him 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 Lords Ib. f. 661. took upon him the charge of the Kingdom as forfeited to him by breach of the Covenant established in Parliament Yet this gave him no sure footing for the popularity of the Earl of Warwick drove him out of the Kingdom without striking a stroke for it Ib. f. 678. 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 Richard 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 But 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 Hollingshead f. 693. of the Settlement under which he enjoyed the Crown Thus the Parliament from time to time determined the Controversie according to the Inclination of the People or Reason of State And as the power of the People of England or of Great Men of interest with them turn'd the scales sometimes one way sometimes another so their consent fixt them at last during the Life of E. 4. I might following the light of History take in the most material Occurrences from the Reign of E. 4. to the last Revolution but tho the unanimity which appeared at the first casting off the former Yoke made me with chearfulness undertake the justification of those who have contributed to the Change yet I must needs say I am checkt in that freedom which otherwise I might have justly used in relation to late times and tho I labour against prejudice in what I bring from faithful Memorials of ancient days yet I hope the prejudice will be free from that heat and passion which mixes with mens own concerns or the concerns of them from whom they immediately descend in Blood or Parties Object Vid. 13 C. 2. Stat. 2. c. 1.13 14 C. 2. c. 3.14 C. 2. c. 3 4.15 C. 2. c. 5.12 C. 2. c. 30. 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 required 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 declared 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 or ought to have any Coercive Power over the Persons of the Kings of this Realm What has before been observed from and upon Mr. Falkner's Answer Vid. Chap. 2. Christian Loyalty might make it needless to take notice of the Objection from either of these Clauses were it not that many either cannot or will not observe what lies at the least distance I shall not here insist in answer to the first part of the Objection 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 chosen by the people 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 may act without any Authority from the King And for rhe latter part of the Objection as Coertion is restrained 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 virtue of equitable and implied 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 Vid. Rot. Parl. 39 H. 6. n. 18. That these Statutes being barely declaratotory 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 Vid. Cujac
guerrae emergat c. Vid. Append. When any doubt or difficult case of War or Peace happens in the Kingdom or without let that Case be referr'd and brought in Writing into full Parliament and let it be treated of and debated among the Peers of Parliament and if need be let it be enjoyn'd by the King or in his Name to every degree of the Peers That every degree act by its self and let the Case be delivered to their Clerks in Writing and in the said place let them cause the said Case to be recited before them so that they may consider among themselves how it may in the best manner and most justly be proceeded upon as they would answer before God for the Person of the King and their own proper persons and also the proper persons of them whom they represent And let them report in Writing their Answers and Advice that all their Answers Counsels and Advices on all sides being heard it may be proceeded upon according to the better and more wholesom Counsel But if the Peace of the Kingdom or the Nation People or Commonwealth be weakned by reason of discord between the King and other Great Men so that it seems to the King and his Council What that Council was vid. 2d Part that the matter should be treated of and amended by the consideration of all the Peers of his Kingdom or if the King and Kingdom are disturbed by War or if a difficult Case arise before the Chancellor of England or a difficult Judgment is to be given before the Justices and the like And if it happen that in such deliberations all N 2 a Remedy where equally divided or at least the greater part cannot agree then the Earl Steward Earl Constable and Earl Marshal or Two of them shall chuse Twenty five persons from all parts of the Kingdom viz. Two Bishops and Three Proxies of the Clergy Two Earls and Three Barons Five Knights of Shires Five Citizens and Five Burgesses who make Five and Twenty Et condescendere in eos and they Five and Twenty may chuse Twelve out of themselves and be concluded by what they do The Twelve may chuse Six and be concluded by them The Six Three and be concluded by them But the Three cannot be reduced to fewer without leave of the King And if the King consent the Three may be brought to Two and the Two to One and so at last their Ordinance shall bind the whole Parliament and so by coming from Twenty five to One if the greater number cannot agree to an establishment at last one Person as is said shall Ordain for all because he cannot disagree from himself saving to the King and his Council That they may examin and amend such Ordinances after they are written if they can and will Provided they do this upon the place in full Parliament and with the consent of the Parliament and not out of Parliament According to which the High Steward Constable and Marshal being looked on as Hereditary Officers were entrusted with a means of composing the differences of the Nation when they should happen to be equally divided I find the Authority of the High Steward and Constable more express in a Translation of another Modus tenendi Parl. agreeing in substance with that which I have cited The MS. which I have used seems to be of the time of H. 7. MS. penes Authorem MS. penes Authorem thô Mr. Elsing says That which is in Sir Robert Cotton's Library was written temp E. 2. The Translation of the other was Printed with Royal Privilege in King James his time as I take it It was done in a very pedantick stile by one Anthony Bustard of Lyons-Inn He that wrote the Latine in his Preface speaks of it as the Order setled by W. 1. Pref. That Modus places the Power of chusing the Twenty five in the Steward and Constable It adds That if any of the Ministers act contrary to their Duty the King the Steward and others of the Parliament may remove them from their Office And says particularly That the Steward of England with the Constable and Nobles of the Realm shall send to evil Counsellors willing them to desist from giving Counsel and entreat the King not to listen to them and if they regard not such advertisement they were to send to the King to put such away from him And if King and Counsellors neglect such wholsom Advice then for the safety of the Commonwealth it hath been thought fit and lawful for the Steward and Constable and Nobles and others of the Commons of England with the King's Banner displayed the King's name omitted the said Counsellors to take and keep in Custody till the next Parliament and Seize their Goods Vid. Append. Lands and Hereditaments until they receive Judgment by consideration of the whole Parliament Sir Robert Cotton Of the High Steward c. There is no more in this than is warranted by Sir Robert Cotton's Letters in the Herald's Office part of which seem to be taken from a MS. joyn'd to the Modus in his Library under the name of Fleetwood The High-Steward's Office as I have before observed was annex'd to Land 4 Inst f. 127. Dyer f. 285. b. Kelway f. 170. and so was the Constable's of England as appears by our Law-Books in the Case of the Duke of Buckingham 6 H. 8. who pleaded That Humphrey de Bohun formerly Earl of Hereford was seiz'd in Fee of the Mannors of Harefield Newnam and Whitenhurst in the County of Glocester and held them by the service to be Constable of England which the Judges allowed of as a good Plea Dyer Indeed they held that thô the King might compel him who had the Land at his pleasure to execute the Office so he might at his pleasure resuse to have it Executed But as to that this being an honorary and profitable tenure by Grand Serjeanty it is to be considered 12 Car. 2. c. 4. that the Stat. 12 Car. 2. when it took away those Tenures of the Crown which were burthensom to the Subject provided that it shall not take away the Honorary Services of Grand Serjeanty But H. 8. Dyer thought it sufficient that he disclaimed the Service and the Reason of the disclaimer was because it was very high and dangerous and very chargeable to the King in Fees the last part of which shewed the Subject's property concerned in the question Upon the Duke of Buckingham's claim to this Office Kelway f. 171◠Nevil says it has been a common saying That the Constable of England by virtue of his Office in some case may Arrest the King himself and therefore held it necessary that the King should be appriz'd what Authorities belong to his Office Fineux Chief Justice says We know of no such Authority to belong to any Officer within the Realm by the Common Law of the Land Which he afterwards explains for
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective Sub modo 1. From the Saxon Pontifical and the Council of Calcuth Anno 789. 2. From the Practise till the supposed Conquest 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's consent at Coronations 5. The Opinion of Kings themselves 6. The Old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The claims of Right between Two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same Common Stock THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris
And as anciently as the year 789. an Act was made in a General Convention of all England in Conventu Pananglico that their Kings should be Elected by the Clergy senioribus populi and Elders of the people that is such as were Members of their Great Councils or Witena Gemots Assemblies of Sage and Wise Men. This tho it was long before the reputed Conquest yet was never repealed or cut off by the Sword nay seems received with the Confessor's Laws as included in them 2. It appears by the several instances given in the fourth Chapter and the testimonies there both of Malmsbury and the Publisher of the life of King Alfred That no lineal Succession was observed here before the supposed Conquest 3. The Confessor's Law received by W. 1. Vid. Sup. and continued downwards as the noblest Transcript of the Common Law shews that the Kings of England were to be elected and the end for which they are chosen by the people After the same manner do the ancient Historians and Lawyers as well since that time as before commonly express accessions to the Throne and seem industriously to mind Kings of it that according to the caution given the Jewish Kings Deut. 17.20 their hearts be not lifted up above their Brethren 4. According to the usage from before the reputed Conquest downwards the People are asked Whether they are content to have such a Man King 5. The most absolute of the English Monarchs never believed Cambd. Brit. s 104. de W. 1 Neminem Anglici regi constituo Haredem sed a terno conditori cujus sum in cujus manu sunt omnia illud commendo non enim taâ—tum decus hereditario jure possedi c that then Children had a right to the Crown except the people consented that they should succeed as appears by King Alfred's Will and the Death-bed Declaration of William 1. And therefore some of our Kings against whom there has been no pretence of better Title in any particular Person or Family when they stood upon good Terms with their People have often prevail'd with them in their Lives-time to secure the Succession to their eldest Son and H. 2. to prevent hazarding the Succession endanger'd himself by getting his eldest Son Crown'd himself living But as the going no farther than the eldest argues that they looked on that as a Favour the pressing for a Settlement on their Issue in any manner argues That it was not look'd upon as a clear Point of Right without it Of later Times Settlements have been made in Tail which though they were occasion'd by Pretences to Titles are Records against an Hereditary Monarchy according to the common notion which is one that by the original Constitution descends to the next in the Line male or Female V. Leges W. 1. de Fide c. Statuimus etiam ut omnes liberi homines foedere sacramento affirment quod intra extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt c. Leges S. Edw. tit Greve Vid. Juramentum homagii facti Regi 6. The Oaths of Allegiance required of all the Subjects were never extended to Heirs but were barely Personal till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster and though H. 4. obtain'd in Parliament an Oath to himself the Prince and his Issue and to every one of his Sons successively and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York yet perhaps no Oath of Allegiance to the King and his Heirs can be shewn to have been requir'd of the Subjects in general till that 26 H. 8. according to the Limitations of the Statute 25. 7. Even where the People had setled the Crown they seem'd to intend no more than to give a preference before other Pretenders not but that as Ideocy Frenzy or the like might set such an one aside so upon other weighty Reasons they might alter the Settlement Pryn 's Signal Loyalty p. 274. Pol. Virgil. 1. 22. sub initio as appears by Polydore Virgil who was never thought to lie on the Peoples side whatever Evidences for them he may have conceal'd or destroy'd whose words of H. 5. to whom the Crown had been limited by Parliament may be thus rendred Nota Proceres may take in the Nobiles minores Prince Henry having buried his Father causes a Council of Nobles to be conven'd at Westminster in which while they according to the Custom of their Ancestors consulted about making a King behold on a sudden some of the Nobility of their own accord swear Allegiance to him which officious Good-will was never known to have been shewn to any before he was declared King William 2. was elected during the Life of his eldest Brother who was set aside by the English against whom he had discovered Ill-will in spite of the Normans So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive and H. 2. succeeded in her Life-time upon an Agreement made with Stephen by the Peoples Consent R. 1. as within King John crown'd in the Life-time of his eldest Brother's Son Prince Arthur So was his Son H. 3. in the Life-time of Eleanor Prince Arthur's Sister E. 1. as within E. 2. elected E. 3. set up by the People in his Father's Life-time which the Father took for a Favour R. 2. declared Successor by Parliament in the Life-time of his Grandfather H. 4. of the younger House came in by the Peoples Choice upon their deposing R. 2. H. 5 6. Son and Grandson to H. 4. came in upon a Settlement E. 4. of the elder House came in under an Agreement made in Parliament between his Father who liv'd not to have the benefit of it and H. 6. His Son E. 5. was never crown'd R. 3. who set him aside was of the younger House H. 7. who vanquish'd him could have no Right of Proximity for the Daughter of E. 4. and his own Mother were before him All that came in since enjoy'd the Crown either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest 8. As the Practice of the Kingdom is an Evidence of its Right numerous Instances might be produc'd of Choices since the supposed Conquest not only so called by Historians but appearing so in their own Natures wherein no regard has been had to Proximity but barely to Blood And I believe no Man can shew me any more than Two since the reputed Conquest of whom it can be affirm'd with any semblance of Truth that they came in otherwise than upon Election express'd by the Historians of the Time or imply'd as they had no other Title or else a late Settlement of the Crown either upon themselves immediately or in Remainder The Two upon which I will yield
which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 11 H. 7. c. 1. 9. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the occasion of the Law which was to encourage the service of H. 7. who had no Title but from his Subjects And there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which if it relates to Acts of Parliament being built upon the Supposition That according to the Fundamental Law the Peoples Choice gives sufficient Title perhaps is not vain and illusory Lord Bacon's Hist of H. 7. f. 145. as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy fundamentally Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute But I take it not to be evident that the Acts here mention'd must needs be Acts of Parliament For they might and by the word other seem to be such Acts as are of the nature of ordinary Process or whereon such Process is grounded as Ordinances of the Lords in Parliament Orders of the Privy Council Judgments or Decrees in Courts of Law or Equity and the like However admit this Clause should be vicious and insignificant My Lord Bacon I am sure gives no countenance to a certain Dissenting Bishop's Argument in publick Discourse who undertook from hence to prove That the Statute it self is of no force Yet such sort of Arguments are of great service to men resolv'd upon a Conclusion nor can better be expected from them To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me Object 1 The Maxim in Law That the King never dies Or to use the words of Finch ' The Perpetuity which the Law ascribes to him Finch's Description of the Common Law French Edit An. 1613. f. 20. b. 21. a. The same made use of in Reflections upon our late and present Proceedings p. 10. having ' perpetual Succession and he never dies For in Law it is call'd the Demise of the King Answer To which I Answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd And that the Death of a King is but a Demise transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election Dyer f. 165. Anderson f. 44. He has it Le Successeur le Heir Elsewhere Heir on Successeur ib. f. 45. tho never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Inter-regnum as it was resolved by all the Judges 1 Eliz. Of which the words of Lord Dyer are ' The King who is Heir or Successor may write and begin his Reign ' the same day that his Progenitor or Predecessor dies With which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural Vid. 1. E. 6. c. 7. 7 Rep. f. 30. appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like Agreement betwixt the present and former Government Suppos'd to be Doctor Fulwood's P. 42. A Learned Author that he may reconcile our present Settlement to this suppos'd Maxim which appears not to have any foundation in Antiquity will have it That by the Vacancy of the Throne no more was meant by the Convention than its being free from the former Possessor but that it was full of a Successor and that there was no Interregnum For says he such a Vacancy we have upon every Demise of the Crown And so there was a Vacancy of the Throne and no Vacancy at all For in ordinary Demises 't is manifest there is none Freedom from the last Possessor is not a Vacancy of the Throne Two Grounds this Doctor goes upon to justify his Equivocation in this for I can call it no better 1. That otherwise this would be inconsistent with the nature of our Ancient Hereditary Monarchy 2. That the Convention shew that they meant it no otherwise than in his Sense 1. As to the First It is observable 1. That the Notion which himself goes upon P. 40. is as inconsistent with the ordinary Rule For he makes the Heir to have only jus in re and to want Livery and Seisin And consequently till the Coronation there is an Interregnum Tho it may afterwards be supplied by relation to the Descent of the Right But herein the Doctor is certainly out For in ordinary Descents or Demises Hales's Pleas of the Crown p. 40. Treason may be committed against the Heir as in full possession before any Recognition or Coronation But since he will hardly affirm that it could have been so in our Case he must grant that there was a more absolute Vacancy than that for which he contends P. 54. It is his own Argument that our present Sovereigns are really King and Queen because Treason may be committed against them within the purview of the Statute 25 E. 3. And by the same Reason they were not King and Queen before they were declar'd so unless Treason could have been committed against them before such Declaration 2. But 2. The Doctor owns that though upon some extraordinary Revolution and some absolute necessary Reason of State for our common preservation a Stranger none of the Blood-Royal should be advanced to the Throne for one or more turns whilst that necessity continues the Constitution of the Government would not be alter'd And yet would suppose P. 56. V. p. 41. Where he speaks as his own Sense what in the other place is put by way of Objection that if our King and Queen come in otherwise than by Descent it would be a Design'd Alteration or Change of the Ancient Constitution of this Hereditary Monarchy And yet himself owns That by the Law of Nature Salus Populi is both the Supream and the first Law in Government and the scope and end of all other Laws and of Government it self Nay he yields That the Oath of Allegiance that Sign or Testimony between King and Subject is discharged or dispenced with when
to keep Men in obedience to him who has the Power of punishing the disobedient Wherefore the meaning may 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 But as the body of the Act provides only for the Indemnity of them who pay due Allegiance to the King de facto this Proviso may be particularly for the Kings own Security in affirmance of the Common Law which makes all Resisting the Possessors of Crowns Treason in single persons And the sense may run thus Provided that whoever declines from Allegiance to the King in possession to help another to the Crown shall not if the first happen to be Restor'd plead that the other became King de facto However this does not in the least diminish the Obligation of Allegiance to the King who shall obtain possession by the Ousting another And I suppose by this time 't is pretty evident That both the Body of the Act and the Proviso relate only to a King de facto and endeavour to free the Nation from nice speculations about the Right to the Crown For confirmation of what I have shewn to prove that the English Monarchy has been Elective within the Royal Family it may not be improper to observe how it has been anciently in Germany and France See this distinction in Nauclerus Aimonius lib. 1. c. 4. Les Soupirs de la France esclave Mem. 6. p. 83. P. 84. or France Germanick from whence we came and France Gallick branch'd out from the Ancient Germans Aimonius says ' That the Francs chose a King and plac'd him upon the Throne in imitation of other Nations which the Author of the Sighs of France inslav'd renders the other Nations of the Gauls and Germans And that Author puts it by way of question implying the stronger affirmation Whether it does not appear throughout the whole History that the French have preserved to themselves the Right to chuse within the Royal Family him who appeared to them the most fit to Protect Defend and Govern them well The German Conringius Esse quid hoc dicam vivis quod fama negatur Conringius de Negotiis Conventuum Imperii p. 417. being an Author already possess'd of that Credit which may spring out of the French man's grave I shall transcribe Conringius to this Point more at large Altho says he some think that our Kings anciently came to their Power by Succession others by Election yet it seems fit to say that a middle way was in use That the Children of Kings or Emperors did not succeed unless approv'd of by the States and yet were not pass'd by if they were worthy of the Empire For they who were come from the Royal Stock were believed to tread in the steps of their Ancestors and that they would not only preserve but exceed the glory of their Progenitors according to that of Aristotle Aristot Rhet. lib. 2. c. 16. They who are of Noble Birth are desirous of Praise and Glory For it is the nature of men to desire to encrease not to diminish or lose the goods which they had before But when the Royal Family was extinct then it was permitted the States to raise to the Empire whomsoever they pleased by an Election in every respect free So the Caroline Family being extinct the Kingdom of the Western Francs was conferr'd upon Henry afterwards called Auceps by a most free Election of the Francs and Saxons of which Translation of Power Regino in his Chronicles of the year 920 says thus Duke Henry is chosen King by the Consent of the Francs Almains Bavarians Thuringians and Saxons when however he had no prior Right to the Empire before the other Princes In the same manner afterwards Lothair a Saxon Conrade 2. a Suede Otho 4. a Saxon and many more obtain'd the Empire of Germany in the right of pure Election as Onuphrius witnesses ' But whether they were of the Royal Family Onuph Panvin c. 5. de Comitiis Imp. or obtaind the Kingdom ' only and merely by Election they were chosen by the States and People in full Conventions For which he instances in the Elections of Sigebert the Son of Dagobert In plenis Comitiis Charles and Charlemain chosen together upon the death of their Father Pipin Of Charles upon the death of his Brother and Lewis the Pious after him This manner of Chusing within the Royal Family he observes to have remain'd in the Empire to the time of H. 4. but that it was interrupted by Pope Gregory 7. who under shew of advancing the Liberties of Germany made way for the Papal Influence and Tyranny Having observed the mischief of absolute Elections he adds Indeed I should not wholly prefer mere Succession Election being quite taken away but I think this manner of Election to be best where great account is had of Blood and no Son worthy to succeed his Father is put by That the way of constituting Kings mixt with Hereditary Succession and free Election was very suitable to the manner of Ancient Germany appears at least from hence that afrer that meer free Election had been introduc'd by Hildebrand all things in Germany were in Commotion and Disorder CHAP. IX The Fourth Head of Positive Law A short Recapitulation of what has been prov'd An actual Discharge of Oaths of Allegiance to J. 2. shewn from the Authority of the Judgment past His Vsurping a Legislative Power Leaving the Kingdom without providing for the Administration of Justice and going into France This confirmed by Rastal Lord Hobart Justinian's Digests The Rescript of Theodosius and Valentinian Pufendorf de Officio hominis civis His Elementa Juris prudentiae His Treatise de Jure Gentium Grotius Pufendorf de Inter-regnis Knichen's Opus Pol. Philip Paraeus A particular consideration of what the Learned Knight Sir R. Pointz says seeming against these Authorities but shewn in truth to confirm them and to bring the Rules of the Civilians to our side That the Crown came not by Right of Descent to the next in Blood after the discharge of the Allegiance to J. 2. The Arguments for the People's having been restor'd to that Liberty which they had before the Settlement of the Crown enforc'd from a particular Consideration of the State of the Settlement Where it is shewn how the word Heirs may be lookt on as restrain'd in the first Settlement on Heirs by Gomezius his Rule The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements and their effects in relation to the Queens Mary and Elizabeth and J. 1. The Recognition to J. 1. not extending to his Heirs And question'd Whether the Recognition was not his best if not only Title With a modest Inference That the People of England were lately restor'd
to a qualified Choice I Think I have with due regard to all colourable Objections made it appear That Allegiance may in some Cases be withdrawn from one who had been King till the occasion of such Withdrawing or Judgment upon it And this I have done not only from the Equity and reserved Cases necessarily implied but from the express Original and continuing Contract between Prince and People which with the Legal Judicature impowered to determine concerning it I have likewise shewn and exemplified by the Custom of the Kingdom both before the reputed Conquest and since And have occasionally proved That tho Oaths of Allegiance may reach to Heirs according to special Limitations as was 26 Hen. 8. yet in common intendment by Heirs of a King or Crown no more is meant than such as succeed to it according to the Law positive or implied And that whoever comes to the Crown upon either Allegiance is as much due to him by the Law of God and Nature as it was to the nighest in Blood Sanderson de Obligatione Juramenti Lect. 4 Or to use the words of Bishop Sanderson Dignity varies not with the change of Persons Whence if any Subject or Soldier swear Fealty to his King or General the Oath is to be meant to be made unto them also who succeed to that Dignity And when the Crown continues in the Blood this especially by what I have above-shewn puts the Obligation of Allegiance to the King in being out of Controversie unless it can be made appear that the Right of the former King remains or that there is some Settlement of the Crown yet in force which ties it strictly to the next I come now to prove That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restor'd to that Latitude of Choice which I have shewn to be their Original Right The Lords and Commons having a Judicial Power in this matter as hath been prov'd at large their Exercise of this Power in the nature of the Thing determines the Right unless an Appeal lies from them to some higher Court in this Nation But that no Power can legally question them or any of them in this matter appears more particularly in that there is no Statute now in force nor was since the Death of Car. 2. which makes it Treason to conspire to Depose a King or actually to Depose him Vid. Sir Rob. Atkins his Excellent Defence of the L. Russel f. 22 23. But this is of the Nature of those Common-Law-Treasons which are left to the Judgment of Parliament And they who are the only Judges of their own Actions have a pretty large liberty in them especially according to them who would infer the absolute Power of Princes from the supposition of no constituted Judges of their Actions Wherefore the Defence of their Proceedings might justly seem to be superseded were it not for an ungovernable sort of men who either cannot or will not judg according to the Rules of Right Reasoning but as they will hardly admit of any Doctrine as true for which they have not the Decision of some Father or Council will believe no Action not proceeding from their imperious Dictates justifiable even in Cases of the utmost necessity for the preservation of the true Religion and just Laws for which they have no warrant from the Examples of their Forefathers or Opinions of Men whose Books have past with their Allowance Which often drives me to the seeming Pedantry of Quotations to confirm the most obvious Considerations to which my own thoughts led me The either open or more covert Matters of Fact inducing the Declaration of Lords and Commons That J. 2. has broken the Original Contract I need not now inquire into All People must own that he has if they in the least attend to the Constitution of our Government and how apparently he by his general Dispensations usurp'd a Legislative Power for the Destruction of the Protestant Religion and Civil Rights which we were in a fair way of being Dragoon'd out of by a standing Army by degrees to have been totally under Popish or Complying Officers Yet if there were no more than his Leaving the Kingdom without making any Provision for keeping up the Justice of it and going into France a Country from whence all mischiefs have of late Years flow'd upon us and our Religion Who can deny but this alone would have been enough to set him aside Rastal's Entries tit Reattachment f. 544. b. Resum c. quia extra Regnum Angliae progres fecimus nullo locum tenente nostrum sive Custode Regni relicto c. The going out of the Realm without appointing a Custos was anciently in our Law a Discontinuance of Justice Hobart f. 155. And the Lord Hobart gives it as a Maxim Cessa Regnare si non vis Judicare ' Cease to Reign if you will not judg or maintain the ' Course of Justice Vid. Leges 12. Tab. de Magistrat Many I know upon these Questions rather regard the Civil Law and that I am sure gives a home thrust in the Case of deserting one's Country and going into such an one as France is to our Nation tho it has been in too strict Alliance with our Kings The Digests say Digest lib. 49. tit 15. De Captivis Postliminio Transfugae nullum postliminium est nam qui malo Consilio Proditoris animo patriam reliquit hostium numero habendus est c. transfuga autem non is solus accipiendus est qui aut ad hostes aut in bello transfugit sed ad eos cum quibus nulla amicitia est fide susceptâ transfugit A Deserter has no Right of being restored to his Countrey For he who left his Countrey with an evil and treacherous mind is to be held as an Enemy c. But we are to take not only him for a Deserter who runs over to Enemies in time of War but also during a Truce Or Who runs over to them with whom there is no Amity either after undertaking to be faithful to his Country or else undertaking to be faithful to the other Either of which senses the words will bear 'T is likely to be said That this out of the Civil Law is improperly applied to the Prince who according to that is exempt from all Laws Imp. Theod. Valentin Caes ad Volusianum Praefectum Proetorio Digna vox est Majestate Regnantis Legibus adligatum se Principem profiteri Adeo de auctoritate juris nostra pendet auctoritas re verâ majus imperio est submittere Legibus principatum Et oraculo praesentis Edicti quod nobis licere non patimur aliis indicamus But I would desire such besides what I have observed upon the Roman Lex Regia to read the Rescript of Theodosius and Valentinian wherein they thus declare 'T is an Expression suitable to the Dignity of
And this is implied in restraining the assertion with the word Regularly to Matters within the ordinarily Rule But consider these severally 1. By perfect Contracts must be meant such wherein the Obligations are fixed and compleated at the beginning or from the nature of the Relation entred into And he says notwithstanding The Distinctions and Limitations in Contracts and Obligations Civil all agree That in those Duties which are mutual by the Laws of God and Nature as between the Father and the Son the Husband and the Wife the Lord and his Vassal the Prince and his Subjects the breach of Duty in the one is no discharge unto the other Not to observe how extensive he makes that Law of God or Nature which ascertains the Lords right over his Vassal and the Princes over his Subjects I much question Whether all agree that his Rule holds in such Cases as destroy the very nature of the Relation as the Adultery of the Wife or the like However himself yields that there may be an Obligation superiour to these for having produced Examples of Passive Obedience P. 96. he says ' We cannot here ground an Argument ' for justifying obedience to all Tyrants and invaders of our Country Omnes enim omnium Charitates una Patria complexa supergressa est c. filius sine scelere Proditorem Patriae licet Pater sit occidit In omni tempore bellum gerendum sit pro Defensione suâ Patriae Legum Patriae For our Country alone comprehends and goes beyond all private affections A Son without sin kills a Traitor to his Country tho he be his Father At all times War may be waged in Defence of ones self ones Country and the Laws of ones Country He owns expresly that Obedience is so far from being due to a Tyrant that it is not justifiable And he could not but know that the Civilians whose Rules he receives and applies under this Apellation include as well one who (a) Vid. Comment de Regno aut quovis principatu rectè tranquillè Administrando Advers Machiavellum Ed. Ao. 1577. p. 248. Bartolus duas species tyrannorum Statuit quarum unam juris seu tituli alteram exercitii sive usûs vocat Tyrannus titulo is est inquit qui sine ullo jure aut iniquo minimè legitimo titulo Principatum invadit Tyrannus exercitio sive usu is est qui legitimum quidem jus ad principatum habet sed eum injustè contra Leges exercet Itaque demum Statuit ejusmodi Tyrannis obsequium non deberi Sed è Magistratu deturbandos esse Ib. f. 249. having a lawful Title to Power uses it unjustly as one who usurps Power without any Title or other than what is unjust and illegal Wherefore since he makes no Distinction of Tyrants 't is not to be doubted but he with the Civilians particularly the Learned Bartolus discharges all Obedience and consequently Allegiance the Legal tye of Duty to a Tyrant in the exercise of Power as well as in Title Of both these Bartolus as a Judicious Author represents his sense held That Obedience is not due to them but that they are to be thrust out of the Government And the deservedly esteemed Great Man Mornay du Plessis Tractatus de Eccles per Phil. Mornaeum p. 68. in his Treatise of the Church cites Zabarel Baldus and Bartolus for the same distinction of Tyrants Nay observes that these Lawyers thô Papists held that even Popes might be Tyrants in either of these respects 2. As to the innominal Contracts Sir Roger's Rule is That the Breach of one will not justify the other to proceed towards the dissolving of the Contract which comes not up to any Case which does ipso facto dissolve it Besides this notwithstanding there may be either a Dissolution of the Contract a compelling to perform or satisfaction taken According to which in all Cases wherein the two last are insufficient a Dissolution of the Contract ought or may follow But farther the fixt Obligation of the Subject whatever the King shall do contrary to the Contract is by him founded upon the supposition either that the People of England have transfer'd the Power of the Nation to their Kings as absolutely as he supposes that the People of Rome had done to their Emperors Vid. Sup. or rather that W. 1. made a Conquest of this Nation If says he we cannot find any Law or Reason Sir Roger Poyntz p. 123. that the Romans or any other People who had in them the Supream Power could after they had transferr'd this Power to Kings and elected them reassume this Power again and when it doth please them depose their Kings or limit and restrain their Power by vertue of an habitual Power still remaining in the People as is suppos'd then undoubtedly we can find no Right in the People Vid. the punishment which the Senate decreed against Nero More majorum or in any Societies or Communities of People to Depose Restrain or Limit Kings of hereditary Succession especially those who have not their Right from the People but by Conquest as in England From such Kings of Hereditary Succession and Right all Jurisdictions do proceed and in them reside and unto them they return say the Lawyers Rex est lex animata And his Office and Function is Indesinens consulatus All other Rights and Liberties whatsoever have been as in other Kingdoms at the Will and Mercy of the Conquerors of our Island the Romans Saxons Danes Normans Our Rights and Liberties contain'd in Magna Charta granted and confirmed by divers Kings after much effusion of Blood we nor our Ancestors did nor could ever claim by Virtue of any Reservation made by the People or any others when they were Conquer'd Neither by any Original Right inseparably inherent and vested in the People and from them deriv'd Here 't is observable 1. That thô Sir Roger will not have any Original Right to be inseparable from the People yet he owns that in some places they may have Elected Kings and have had Supream Power in them till they transferr'd it to their Kings Sherringham's Supremacy asserted Introduct p. 11. Contrary to Mr. Sherringham who to make his Court at the coming in of C. 2. held that all Authority is originally in Kings or other Supream Magistrates themselves immedidiately from God Tanquam in primo creato Subjecto as in the first created Subject 2. Sir Roger with that Divine holds that W. 1. obtain'd the Crown by Conquest Sher. p. 53. Vid. 2 d Part. Mr. Sherringham indeed owns that there was a composition and agreement but will have it that this was not till after a Victory as if the Victory over Harold made a Conquest of the Nation Of which more in its place 3. Sir Roger goes no more beyond our Case when he argues upon supposition of a total Translation of the Power whereby a People or Nation is
the Crown is settled subject to such Conditions as the King should make according to the Power there given first upon Prince Edward and the Heirs of his Body the Remainder in like manner upon the Ladies Mary and Elizabeth and the Heirs of their Bodies successively without taking off their Illegitimations And the same Power is given of disposing by Letters Patent Vid. 28 H. 8. sup 35 H. 8. or by Will as by the Statute 28. for which a memorable Reason is given in both Acts Lest if such Heirs should fail and no Provision made in the King's Life who should Rule and Govern this Realm for lack of such Heirs as in those Acts is mentioned that then this Realm should be destitute of a Lawful Governour E. 6. succeeded according to both those Acts After him Queen Mary by the last who at her coming to the Crown could not be looked on as of the Right Line because of the Acts which Illegitimated her and besides she was but of the Half-blood to E. 6. to whom she succeeded But in the first of her Reign the same Parliament takes off her Illegitimation and repeals the Acts 25 28 H. 8. And in this the Parliament seems rather to provide for the Honour of her Descent Hist of Succession f. 34. than as Dr. Brady would have it to declare the Succession to be in Inheritance by Right of Blood Whatever might be the secret Intention 1 2 P. M. c. 9. I am sure there is no such authoritative Declaration And the Acts 28 35 H. 8. seem to say quite the contrary 1 2 P. M. though there is no direct Settlement it is made Treason to compass the Deprivation or Destruction of K. P. during the Queen's Life 1 Eliz. c. 3. or of the Queen or of the Heirs of her Body lawfully begotten Queen Elizabeth succeeded by vertue of the Limitation 35 H. 8. And though Bastardiz'd by the Statutes 28 H. 8. and 1 M. and but of the Half-blood both to E. 6. and Queen Mary yet her first Parliament declares That she is Rightly Lineally and Lawfully descended and come of the Blood Royal of this Realm to whom and the Heirs of her Body the Royal Dignity c are and shall be united And Enacts That the Statute 35 H. 8. shall be the Law of the Kingdom for ever But the Fee of the Crown not having been disposed of according to the Power given by the Statute 28 and repeated 35 H. 8. And the 25 whereby it was limitted in Remainder to the Heirs of Henry the 8th being repealed upon the Death of Edward the 6th and the Queens Mary and Elizabeth without Issue there remaining no Heirs of the Body of H. 8 in the Judgment of two Parliaments the Realm was destitute of a Lawful Governour Indeed according to the Act of Recognition 1 J. 1. 1 Jac. 1. c. 1. the Crown came to him being lineally rightfully and lawfully descended of the Body of the most Excellent Lady Margaret the eldest Daughter of the most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife eldest Daughter of King Edward the Fourth The said Lady Margaret being eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England Thô this pompous Pedigree to avoid all Objections goes as high as E. 4. the Derivation of Title as appears above can be no higher than from the Settlement 1 H. 7. Nor does this Act 1 J. make any additional Provision but indeed seems to flatter the King into a Belief that there was no need of any telling him That they made that Recognition as the First-fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever But neither then or ever after till that in this present Parliament did the People make any Settlement of the Crown but it continued upon the same Foot as it did 1 H. 7. when it was entirely an Act of the People under no Obligation but from their own Wills Sir Robert Filmer's Power of Kings f. 1. And if we should use Sir Robert Filmer's Authority Impossible it is in Nature for Men to give a Law unto themselves no more than it is to command a Mans self in a Matter depending of his own Will There can be no Obligation which taketh State from the meer Will of him that promises the same Wherefore to apply this Rule Since the People that is now Vid. Pufend. de Interregn sup p. 288.289 in common presumption is the same with that which first settled the Succession and so are bound only by an Act of their own Will they have yet as arbitrary a Power in this Matter as Sir Robert and his Followers contend that the Prince has whatever Promises or Agreements he has entred into But not to lean upon such a broken Reed nor yet to make those many Inferences which this plain State of the Settlements of the Crown might afford Three things I shall observe 1. If the Settlement made 1 H. 7. who was an Usurper according to the Notion of Dr. Brady and his Set of Men was of no force then there being no Remainders since limited by any act but what are spent and no descendants of the whole Blood from Elizabeth Daughter to E. 4. and Wife to H. 7. but by Daughters the eldest of which was Married into Scotland If Acts of Settlement could not alter the Right of Descent of the Crown neither Queen Mary nor Queen Elizabeth had Right but after the death of E. 6. it belonged to the Scotch Family And if Acts of Settlement could dispose of the Crown and it should appear that from the time that the limitation came to a Foreigner not nam'd in the Settlement nor the immediate issue of a King or Queen of England it was spent in the eye of the Law then of necessity the People must have had Power of Chusing or there could have been no lawful Government since Queen Elizabeth's time when the last Settlement was spent except what is now made 2. The Declarations of two Parliaments 28 and 35 H. 8. fully ballance the Declaration 1 Jac. 1. if they do not turn the Scales considering that the Judges in the later Times seem to have had less Law or Integrity than they had in H. the Eighth's I will not take upon me to determine which was the Point of Two that they might go upon 1. That a Government shall not pass by Implication or by reason of a dormant Remainder But there having been so many Alterations since the Settlement 1 H. 7. and the whole Fee once disposed of nor ever any express Restitution of the Settlement 1 H. 7. the People were not to think themselves obliged to a Retrospect 'T is evident at least that they did not Or 2. Perhaps they might question whether they were oblig'd to receive for Kings the Issue
of Foreign Princes That this was a Question in Q. Elizabeth's time appears by a Letter from Lethington Secretary of Scotland to Cecil Secretary to Q. Eliz. Appendix to Vol. 2. of the Hist of the Ref. f. 269. This appears farther from the Treatise at the end of the Appendix which seems to admit That the Right to the Crown would have been in the issue of the younger Daughter being born in England if the Birth had been without blemish since there was no means of being sufficiently inform'd of the Circumstances of the Birth neither the Common or any 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 falsly Stat. 25. E. 3. 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 Vid. 1. Anderson f. 60 61. A Devise to the Wife after her Decease to the Children Vid. Wild 's C. 6. Rep. In Shelley 's C. 1. Rep. f. 103. A Gift to a Man semini suo or prolibus suis or liberis suis or exitibus suis or pueris suis de corpore 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 Vid. Sir James Dalrimple's Institutions of the Laws of Scotland f. 52. forisfamiliated by Marriage nay nor to 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 Vid. Dugdale 's Bar. 2. Vol. Beaumont who had been born beyond Sea and yet Henry was by the Mother's 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 Daughters Children were always look'd on as out of the Grandfather's Family Just Inst lib. 1. tit 9. So Bracton l. 1. c. 9. Greg. Tholos Syntagma juris universi f. 206. Spiegelius tit Liberi Non procedere in privilegiis quae generaliter publicae utilitati derogant Vid. Antonii Perezi Inst Imperiales p. 21. Vid. Cujac ad tit de verborum significatione p. 147 230. according to the Rule in the 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 propogated by her And Cujacius makes this difference betweene 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 3. 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 But if there is reason from what I have shewn to believe that even the limitations in Henry VII th's Settlement were all long since spent then at least it is not to be doubted but the interest of J. II. being determined the People of England might lawfully and rightfully declare for King William and Queen Mary as being the most deserving of the Blood Royal which if they were free to do not to submit to be Gover'n'd by Their present Majesties would have been the highest Ingratitude that could be CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The Vse of the Triennial-Act 16 Car. 1. against the necessity of Common Form The Form and proceedings of the Convention assembled upon the death of H. 3. The Dilemma used by the Formalists Answer'd with a Distinction Pufendorf's Answer to Hobbs Another passage of his applied to a passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of
not be thought that I in the least derogate from the Honour due to him when I observe matter of fact not falling within his notice The Author of a late Paper in relation to these Times has this passage not to be neglected A Letter to a Friend advising in this extraordinary Juncture 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 Vid. Pufend. de Interregnis p. 267. sup in Marg. that the Convention may be truly National But had this Ingenious Person observed Pufendorf's two distinct Contracts by the first of which a Provision was made for a Monarchy before any particular Person was setled 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 Rightful Power must needs think the last duly 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 occasioned 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 Brady's first Ed. p. 227. See this prov'd upon him in the Pref. to Jus Anglorum ab antiquo 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 Assertions 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 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 setled for Cities and Burroughs than for the Freeholders in the Counties 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 now present personally or representatively and their own Consent takes away all pretence of Error If it be said That they ought to have been Summoned 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 Prynne 's Animadversions on 4 Inst f. 10. 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 Summoned within Fourty 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 Vid. Rushw 1 Vol. f. 470. 3 Car. 1. upon an Emergency advised 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 Tacit. de Moribus German Coeunt nisi quid fortuitum subitum certis diebus c. V. Leges S. Ed. tit Greve In Capite Kal. Maij. Jus. Angl. c. 7. Vid. Append. from whom we descend had theirs at certain days unless when some extraordinary matter happened And by the Confessor's Laws received by W. 1. and continued downwards by the Coronaton Oaths requir'd to this very day the General Folcmot ought to be held annually without any formal Summons upon May-day By the time of E. 1. this custom to hold a Parliament upon May-day received a little alteration for the Pope having at the beginning of that King's Reign demanded eight years Arrears of an Annual payment which he claim'd for the Kingdom of England the King had put him off till the next Parliament which he said had us'd to be held in England about the Octaves of our Saviour's Resurrection This Parliament was held at the Octaves accordingly as the King acknowleges upon the Pope's second demand but pleads that it had been taken up with the great Affairs of the Nation till his want of Health occasion'd a Dissolution before they could consider oâ—… tt Matter which he promis'd should be brought before them at the next Parliament which he purposed to hold at Michaelmas then following The Statute 16 Car. 1. which our rigid Formalists must own to be in Force has wholly taken away the necessity of Writs of Summons from a King Stat. 12. Car. 2. c. 1. The Assembly of the Lords and Commons held Anno 1660. was summoned by the Keepers of the Liberties of England not by the Kings 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 had been only King de jure no Authority could be received from Him nor could any Act of His be regarded in Law through defect either of Jurisdiction or Proof if not both Accordingly as not only the Reason of the thing but the Lord Coke shews 3 Inst f. 7. Sup. in Marg. 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 received to the publick Administration as our present King was who at the request of a very large Representative of the People pursued 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 complied with being always sufficiently formal Anno 1127. Vid. Spelm. Con. 2 Vol. f. 1. De modo habendi Synodos in Angliâ primaevis temporibus Vid. Jan. Ang. fac nov and Jus. Ang. Flor. Wigorn f. 663. Confluxerant quoque illuc magnae multitudines Clericorum Laicorum tam divitum quam mediocrium factus est Conventus grandis inestimabilis Quaedam determinata quaedam dilata quaedam propter nimium aestuantis turbae tumultum ab audientiâ judicantium profligata c. Rex igitur cum inter haec Londoniae moraretur auditis Concilii gestis consensum praebuit confirmavit Statuta Concilii a Willielmo Cant. c. celebrati Wherefore a General Ecclesiastical Council being Summoned in the Reign of H. 1. by William Archbishop of Canterbury thither according to the known Laws 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 Freeholders agreed to Representations That happy was the Man whatever his Quality that could have a convenient standing After the Ecclesiastical Matters were over in the Council I now speak of they fell upon Secular Some they determined some they adjourned some the Judges of the Pole 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 The consideration of the time and circumstances of the Coronation of H. 1. and the Force which the things then agreed on were reputed to have at that time and some of them ever since till alter'd by subsequent Laws may abundantly prove that there is no need of strict form for the doing what is agreable to the sense of a Nation tho not formally express'd at the time H. 1. did not stand next in the Line his eldest Brother Robert who was set aside for W. 2. was then alive Nor was it possible for all people of legal interests to have been conven'd at that time Collectively or by a regular Representation it being within four days after the Death of his Brother W yet hear what Malmsbury says upon that occasion Occiso Rege Willielmo in Regem electus est Itaque edicto statim per Angliam misso injustitias a fratre Ranulpho institutas prohibuit pensionum Malms f. 88. de H. 1. vinculorum gratiam fecit effeminatas Curiâ propellens lucernarum usum noctibus in Curiâ restituit qui fuerat tempore fratris intermissus Aliquarum moderationem Legum revocavit in solitum Sacramento suo omnium procerum ne luderentur corroborans Laetus ergo dies visus est revirescere populis cum post tot anxietatum nubila Serenarum promissionum infulgebant lumina Et nequid profecto gaudio accumulato abesset Ranulpho nequitiarum faece tenebris ergastularibus incluso Anselmum pernicibus nunciis directum Quapropter certatim plausu Plebeio concrepante in Regem Coronatus Londoniae nonis Augusti quarto post obitum fratris die Haec eo studiosius celebrebantur ne mentes procerum electionis quassarentur poenitudine quod ferebatur rumor Robertum Comitem ex Apuliâ adventantem jamjamque affore King William being slain He was chosen King whereupon by Proclamation presently sent throughout England He forbad the Injustices set up by Father Ranulph he remitted Debts and Imprisonments driving effeminate persons from the Court He restor'd the use of Candles by Night in the Court which had been intermitted in the time of his Brother He moderated some Laws according to former usage corroborating them by His own Oath and the Oaths of all His Peers that they might not be eluded upon any account A joyful day to the people seem'd again to flourish since the Lights of Serene Promises shone upon them after so many Anxieties And that in truth nothing might be wanting to their accumulated Joy Ranulph the Dregs of Villanies being sent to Prison Messengers were immediately sent for Anselm Wherefore He was Crown'd King at London on the Nones of August the fourth day after His Brother's Death with the eager acclamations of throngs of the Common people These things were celebrated with the greater earnestness least the minds of the Great Men should be shaken with repenting of their choice because there was a Rumour that Earl Robert was coming out of Normandy and that he would be here immediately Hereby it appears that the Honest Mob urg'd on and secur'd this Election which otherwise some of the formal Nobility would have disputed at the beginning or soon have repented of upon expectation of making some particular terms for themselves not regarding the Publick Good for which H. 1. had so largely provided To set the proceedings of that time in a true light it may be requisite to transcribe part of what Matthew Paris took from the Historians of the time and particularly from Sigebert Defuncto itaque Rege Willielmo Mat. Par. 81. Sigisbertus Gemblacensis Monachus huc usque cronica sua satis eleganter digessit Mat. Par. f. 74. cum Magnates Angliae ignorarent quid actum esset de Roberto Duce Normanorum Regis defuncti fratre primogenito qui jam per quinquenneum in expeditione Hierosolymitanâ moram pertraxerat timuerunt diu sine regimine vacillare Quod fratrum ultimus juvenis sapientissimus cum callidè cognovisset congregato Londoniis Clero Angliae populo universo promisit emendationem legum quibus oppressa fuerat Anglia tempore patris sui fratris nuper defuncti ut animos omnium in sui promotionem accenderet amorem ut illum in Regem susciperent patronum Ad haec Clero respondente Magnatibus cunctis quod si animo volente ipsis vellet concedere chartâ suâ communire illas libertates consuetudines antiquas quae floruerunt in regno tempore SANCTI REGIS EDWARDI in ipsum consentirent in Regem unanimiter consecrarent Henrico autem hoc libenter annuente se id facturum cum juramento affirmante consecratus est in Regem apud Westmonasterium favente Clero populo cui continuo a Mauritio Londinensi Episcopo a Thomâ Eboracensi Archiepiscopo Corona capiti imponitur Cum fuerat diademate insignitus has libertates subscriptas in Regno ad
Worship which though not contain'd in Scripture were us'd in the Primitive Church which is an Individium vagum which some confine to the Life-time of the Apostles some extend to the whole first three Centuries some even to this according to the Doctrine of Infallible Tradition Suppose for Example that in such Assemblies as are form'd with or without leave of the Civil Power the Sign of the Cross be used as a Symbol of dedicating to the Service of Christ those who are let into Catholick Communion and this they judg useful to the present and according to the Primitive Church it will be a Question Whether the retaining of this against a particular Interdict of the Civil Power which is supposable at least is to be justifi'd upon these Grounds Put this Argument into Form and you will find he has more or less in his Conclusion than in his Premises Rightly taken I conceive it lies thus If the Gospel contains a Divine Establishment of Publick Christian Service such Publick Christian Service as has therein Divine Establishment no Authority upon Earth hath any right to prohibit But the Gospel does contain a Divine Establishment of Publick Christian Service Therefore such Publick Christian Service as has therein Divine Establishment no Authority upon Earth has Power to prohibit This being taken for granted he proceeds What no Authority upon Earth has right to prohibit may be done or perform'd notwithstanding the Interdict of the Civil Power But such Service ut supra no Authority upon Earth hath right to prohibit therefore it may be perform'd notwithstanding the Interdict of the Civil Power But he concludes contrary to the Laws of Arguing That those Christians who rightly worship God in the True Catholick Communion according to the Apostolical and Primitive Church have a right to hold such Assemblies for the Christian Worship as appear useful for the Church's Good Now if hereby he means that they who worship God according to the Scriptures even though taking in the Practice of the Apostles have not this Right unless they do it in the manner us'd till or at the end of the first three hundred Years after Christ which is the modestest acceptation of Primitive Times Here by adding of Circumstances his Conclusion has really less than the Premises because it ties up them whom the Scripture has left free and takes from the Authority of Scripture where the Foundation was laid and undermines it by going to support it with the specious words of Apostolical and Primitive which still are of doubtful Acceptation Whereas some believe that no manner of Worship is to be term'd Primitive which was not truly Apostolical that is us'd by the Apostles themselves others call every thing within those three Centuries at least Primitive and therefore Apostolical But to be sure here is a very false way of Arguing if he uses any or else 't is gratis dictum But take it for an Argument and then to his purpose there is more in the Conclusion than in the Premises for the Premises are only of such Publick Service as is contain'd and establish'd in the Gospel and thence he would conclude that whatever has been practis'd in the Primitive Church in the Publick Service of God may be continued notwithstanding the Interdict Nay he would go farther That they may in their Assemblies practise according to their own Judgment of what is useful for the Church's Good If it be said that he means no more than that they may hold such Assemblies for Christian Worship as appear useful that is of Five besides a single Family 22 Car. 2. c. 1. or more as appears useful if he means not that they may assemble and worship in such a manner as appears useful he excludes the Worship out of the Assembly and then it may be a Silent Meeting if the Civil Power please and is less than his Premises warrant I must confess he seems to intend the amusing rather than satisfying his Readers by putting in the true Catholick Communion for he must mean either that what-ever Publick Service is according to the Apostolical and Primitive Church is in true Catholick Communion and so vice versa that what-ever is in true Catholick Communion is according to the Apostolical and Primitive Church so that the Church becomes the Rule to the supplanting of Scripture or else that to worship God rightly and warrantably notwithstanding a Civil Interdict 't is not enough to be according to the Apostolical and Primitive Church unless it be in the true Catholick Communion that is with such Terms of Communion as Christ himself or his Apostles made Catholick and universally obliging and indeed in this sense though he has not observ'd it he comes up fully to the Force of his Argument The great Sanderson whose Judgment where it was according to that lumen siccum the general want of which is to be deplored is of great Authority has gone about to split the Hair between two Extreams in relation to Ecclesiastical Jurisdiction and lays down what he says is most consentaneous to the Doctrine of the Church of England and moreover to the Laws of the Kingdom Sanderson de Obligatione Conscientiaa Pag. 209. Quod Doctrinae Ecclesiae Anglicanae Regni insimul Legibus maximè sit consentaneum Which by the way is an insinuation that the Church of England holds some Doctrine not consentaneous to Law and it may be the Canons of 1640 might be instanced in Now his Notion is that the jus condendi Leges Ecclesiasticas that is the Legislative Power in Ecclesiastical Affairs is in the Bishops Presbyters and other Persons duly elected by the Clergy of the whole Kingdom and duly assembled in a lawful Synod Upon this I would be bold to ask the Question Pag. 188. How this agrees with his Concession That the King is Supream Head and Governour over all Persons and Causes as well Ecclesiastical as Civil since his own Argument is That he who is Supream has the Power or Right to make Laws But the King is Supream wherefore P. 192. according to him the King and not the Clergy hath this Power This I think is the unforc'd Consequence from his other Assertion Potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esse potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hoc est jus ferendi leges quae obligant totam communitatem esse penes eum solum Pag. 186. sive sit is singularis persona ut in statu Regiminis Monarchici sive plures ut in aliis qui cum summâ potestate toti communitati praest Nay he argues that it must needs be so in reason Praecipuus actus gubernationis praecipuam requiret potestatem c. Est autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive legum latio actus gubernationis supremus praecipuus Non ergo potest exerceri nisia persona habente aut saltem in virtute ex authoritate habentis supremam authoritatem jurisdictionem in communitatem sibi
Legislator left undetermin'd And yet afterwards when had he said enough to gain Credit stealing away a large share for the Clergy but yet he had given so much before that he could not leave any thing to the Clergy or the Laity either without manifest contradiction He tells us that in every Monarchy the Prince has Supream Power that this Supream Power is a Legislative Power and with us extends to Matters Ecclesiastical as well as Civil that a Legislative Power is Self-sufficient and Arbitrary and that that Prince who has a Legislative Power obliges his Subjects ferendo Leges by the exercise of this Power and that must be in what manner soever he exercises it otherwise 't is not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet in another place he says what the King commands has not the Force of a Law Pag. 189. that is does not oblige without some Consent of the People And whereas he places in the King the Sanction of Laws in general as being the principal Cause that introduces the Form and this he calls jus condendarum Legum this Right or Power he places in the Clergy for Matters Ecclesiastical and so wholly shuts out the King and Laity who have according to him neither the Proposing nor the Sanction And therefore that restraint of the Exercise which he yields to the Civil Power amounts to no more than a natural not moral Power Praelectio 7 ma de Obligatione legum humanarum ex parte causae efficientis And this appears farther in that this was under the Head of the efficient Cause of Humane Laws which he makes the Clergy to be in Matters Ecclesiastical and that without Aid of the Civil Power as he explains himself speaking of the Matter of Laws Prael 7 ma. p. 174. Leges autem Ecclesiasticas hìc intelligo non quae à personis Ecclesiasticis sine Magistratus civilis authoritate constitutae sunt quae schola non est hujus loci sed ad alterius generis causam efficientem scilicet pertinet c. I conceive he places the Authority of making Ecclesiastical Laws in the Clergy in the same manner that he does any Act of the Ministry the Power of which according to some Great Men remains though the Act may be restrain'd which some Men cannot understand for their Hearts for they suppose that one may always act according to a lawful Power But we are otherwise taught Ep. Wynton Resp ad 3 Ep. Pet. Moline p. 191. Post enim quà m dicunt degradationem manet potestas ad actum ordinis cujus potestatis usus prohiberi potest potestas ipsa tolli non potest To put an end to all these Disputes Doctor Heylin's perpetual Dictator in Politicks places a Power in Adam as Absolute and Arbitrary as all the Acts of his Will and does nothing if he goes not to prove that this his Power was to be obey'd in every Act of his Sovereign's Will relating to things Sacred as well as Civil for a right to Command without an Obligation upon others to obey is an empty insignificant Notion Well this being settled beyond dispute in Adam and in his Posterity by right of Fatherhood and in Cain by right of Birth though by the way he never was vested with such Power over his Brother Patriarcha p. 19. Patriarcha p. 12. Patriarcha p. 13. over whom we are told 't is promis'd for that Abel died in the Life-time of Adam though it were indivisible and of right an universal Monarchy settled upon the Eldest Parent yet it lawfully descended or came upon Sons in the Time of their Fathers as upon Judah who by virtue of his Patriarchal Power condemn'd Thamar to be burnt while his Father Jacob was in being Such as could set up for themselves in any of the divided Kingdoms of the Earth had in spight of contradiction just Shares in this still indivisible Monarchy and not only by consequence but expresly are we taught that Usurpers and Rebels have good Authority such as ought to be obey'd though the lawful Prince be alive But these besides many other Absurdities and Contradictions which Sir Robert is pleas'd to divert us with are but necessary Consequences upon the Supposition that every one who is Supream in Power Patriarcha p. 19. All Kings c. are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People however he come by it derives his Title to an indivisible Power that is all Power from Adam which holds not only as to all Power within any particular Division or Tract of Land but all over the World as it is suppos'd Adam's Power was If it be meant of the Father of the People within such a Tract of Land then he derives not his Title from the Eldest Parent and by Consequence entitles such an one only to a subordinate Power And therefore one would think that Sir Robert has heap'd together all the Absurdities flowing from such an Opinion with an intention to expose it to all Men of Judgment They that will say 't was otherwise surely are none of his Friends but expose him as they do themselves in contending so eagerly for the maintenance of what if he spoke his Judgment argues him to be none of the wisest if 't was not none of the honestest If as one of Sir Robert Filmer's pedantick Admirers flourishes Pref. to the Power of Kings All Readers are insensibly under his Command as if they were his Subjects and are his by right of natural Soveraignty and a Reason so far exalted above ours as his makes him appear like those Kings of old who were in Stature much superior to their Subjects and seem'd so far to over-top the rest as if Nature mark'd them out for Heads of all If still this exalted Genius be guilty of Self-contradictions and undermining his own Foundations what silly Creatures are they or what Slaves in their Understanding who are made Captives without Resistance and are Slaves by right of Conquest And if all Men fell under his Title either of natural Soveraignty or of Conquest how despicable were the Condition of Humane Nature But surely Contradictions will not down with all Men 't were in vain to shew such easy Wretches as are led captive by Sir Robert's false Reasonings wherein his Fallacies lie as in not distinguishing the Power whereby a Nation is govern'd from the Person or Persons invested with Power nor considering the Manner wherein it is enjoy'd whether Absolutely or with Limitation or whether the Administration or Exercise be according to the lawful manner which to them that are able to consider would evince to how little purpose 't is urg'd that Soveraignty is indivisible For an undivided Soveraignty may be in several in unequal manners and sometimes in equal As in the Roman Consuls or Decemvirs at least and that by Sir Robert's own confession The Law says he of the Twelve Tables affirms
Regis Imperio Duo sunto iique Consules appellantur Let Two have Regal Power and let them be called Consuls Also the Judgment of Livy is that the Sovereign Power was translated from Consuls to Decemvirs as before from Kings to Consuls Yet in another Place our Learned Knight according to his usual Inconsistencies with himself tells us that but one of the Consuls had Regality for they govern'd by turns Which by his Favour I take it was only in the Wars which require but one General not at Rome However he confesses that all the Decemvirs had Regality for he pretends not that they govern'd by turns and he says they were chosen to make Laws and though some will question whether a Supream Gubernative implies a Legislative Power no Man will question but a Legislative takes in the other or at least may at the pleasure of him or them in whom it is vested But I would fain know which one of them had right to give Law to the rest or had the Soveraignty in him alone And for it to be in more than one Observ touching Forms of Gov. p. 47. is as we are inform'd by him quite contrary to the indivisible Nature of Soveraignty Yet he grants it may escheat to the Supream Heads of Families that is more than one within that which had been at least immediately before the same Community nay and that it may be exercised by many in other Acts besides the choice of one to head them which he owns in these words Ib. p. 60 61. Those Governments that seem to be popular are kinds of petty Monarchies which may thus appear Government is a Relation between the Governors and Governed the one cannot be without the other mutuò se ponunt auferunt Where a Command proceeds from a major part there those individual Persons that concurr'd in the Vote are the Governors because the Law is only their Will in particular Yet under correction though some of those alter their Wills and some which were against the Law become for it provided that the Ballance continue as 't was when the Law pass'd in this Case the Law cannot be chang'd by those very Persons which made it There can be no Obligation which takes state from the meer Will of him that promiseth the same Power of Kings Fol. 1. and therefore some things which receive Force from the meer Will of the Parties yet continue to oblige against their Wills and the Government is in the united Body not in those who made that Law for the Power cannot be derived from them who chang'd their Wills but out of the whole Body however no one of them were a Monarch and yet what hinders but that there was a Soveraign Power amongst them This Power it seems Sir Robert knows not how to distinguish from the Exercise or Act of Power The Supream Power being an indivisible Beam of Majesty he tells us cannot be divided or settled upon a Multitude God would have it fixt in one Person not sometimes in one part of the People and sometimes in another and sometimes and that for the most part no where as when the Assembly is Dissolv'd it must rest in the Air or in the Walls of the Chamber where they were assembled Agreeable to which he says elsewhere By this means one and the same Assembly may make at one Sitting several Forms of Common-Wealths So that he supposes the different Exercise to alter the form of Government and that it Dissolves when the Exercise ceases or is discontinued which Error is of kin to theirs whoever they are that make a Church barely to relate to Acts of Worship But to wave these Niceties as above their reach who cannot of themselves discern palpable Contradictions and wherein Sir Robert under pretence of Friendship serves them as Joab did Abner I shall take from his thoughts their artificial Dress and lay them open in their naked Deformity that every rational at least honest Man and good Subject may start from them the Devil cannot be so far transform'd into the shape of an Angel of Light but that his cloven Foot must appear Sure I am that he undermines the Right of all present Kings or Families and makes the Right of Succession as doubtful as the Event of War admitting none but Rebels within the possibility of Usurping and thereby yielding that any Foreign Prince may lawfully dispossess one in the Throne or interrupt the Succession And if any Subject can prosper in his Rebellion though the lawful Prince or Heir be alive and He that takes upon him the Power of a Superior sins sufficiently and to purpose Yet God's Providence having dispossess'd the former Anarchy p. 273. Many times by the Act of an Vsurper himself or of those that set him up the True Heir of the Crown is dispossest God using the Ministry of the wickedest Men for the removing and setting up of Kings in such Cases the Subjects Obedience to the Fatherly Power must go along with and wait upon God's Providence who only hath a Right to give and take away Kingdoms and to adopt the Subjects into the Obedience of another Fatherly Power and declar'd in favour of the Usurper the People if we believe him are adopted into the Obedience of another Fatherly Power and not having Right to cast off this Father rais'd up by God himself who only hath Right to give and take away Kingdoms By his Doctrine It was written Tempore Car. 2. all the Endeavours towards his Majesty's Restoration are condemn'd for that 't was against the Title made by the Almighty and any voluntary Act of the People being vain not obliging them any longer than they please as all the Force came from their own Wills Besides no Act of the People having any binding or moral Effect since they are to be meerly Passive they being always and unalterably as to Humane Causes under the Power of the Natural Fathers By these Principles the Usurping Powers would still have lawful Authority But to be sure For in Grants and Gifts that have their Original from God or Nature as the Power of the Father hath no inferior Power of Man can limit nor make any Law of Prescription against them Ibid. according to him any Prince had equal Right with the Ejected Monarch to try for the Kingdom For though Sir Robert in his Preface to his Observations on Mr. Hobbs asks the Question Power of Kings F. 1. How a Subject by Covenant can get a Right of Soveraignty by Conquest when neither he himself hath Right to Conquer or Subjects a Liberty to Submit Yet he has not one Objection against the Lawfulness of a Foreign Prince's conquering at any Time or with any Circumstances which shews that his Definition of Usurpation was intended to take in all unlawful usurpings of Power without which 't is very lame But thus it runs Vsurpation is the resisting and taking away the Power from him Directions for
Ed. for every Law must always have some present known Person in being whose Will it must be to make it a Law for the present If the Independent Heads or Nobles are instead of One Prince to make choice of an Head which is a Law to that end then a Law may flow from the Will of many as well as from that of One. But take Sir Robert's Notion of Supream or Independent Heads and Fathers in the most sensible meaning that is of Natural Fathers these where there is no division into Tribes as was amongst the Jews will be numerous Yet all in the Case presuppos'd are allow'd by Sir Robert to be invested with Kingly Power and therefore the parting with it must be by their choice as he himself yields and yet according to his Principles they can never so part with it but they may resume it I must confess in this he doubly contradicts himself for the End of his Writings being to prove that the Government ought always to be in One absolutely here he yields it to be in many And when before he said That Civil Power not only in general Patriarc p. 12. is by Divine Constitution but even the Assignment of it specifically to the Eldest Parent here he acknowledges it to be in several Parents not in the Eldest only But that every such Parent as was at any time vested with this Power may resume it is the plain Inference from his Doctrine for he tells us Patriar p. 54. That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Those Laws which are the best or only means for the preservation of the Common-weal bind Princes Or so far forth as the general Law of the Safety of the Common-weal doth naturally bind him for in such sort only positive Laws may be said to bind the King not by being positive but as they are naturally the best or only Means for the preservation of the Common-weal Here still he opposes himself for he yields that Princes are bound to those Laws which are the best or only means for the preservation of the Common-weal and so asserts that exploded Sentence I will not call it Maxim Free-holders Grand Inq. p. 39 Anarchy p. 265 No Laws whatsoever bind Princes Salus Populi suprema Lex when at other times he tells us That 't was God's Ordinance that Supremacy should be unlimited in Adam and as large as all the Acts of his Will and as in him so in all others that have Supream Power That is as by Supream Power he means absolute every one that has Absolute Power ought to have Absolute Power But the Consequence from Adam's having had such Power is That the Right Heir from Adam in the natural course ought to inherit it But as he supposes several at the same time to be Heirs or to come into the stead of Adam's right Heir upon the Escheat of the Kingly Power these being so many Kings or at least making one King where however the Power is in many though they parted with their Power they might at any time resume it when they thought it for the Good of the Publick of which they as Princes should be Judges nay and their Heirs in Succession might Filmer's Power of Kings F. 2. And so Sir Robert's Maxim resteth That the Prince is not subject to his Laws nor the Laws of his Predecessors but well to his own just and reasonable Conventions Patriarc p. 97. Nay though they should swear to observe all the Laws of their Kingdoms yet no Man can think it Reason that Kings should be more bound by their voluntary Oaths than common Persons are by theirs I see not how upon his Principles an Answer can be given to his Question Patriarc p. 23. If Obedience to Parents be immediately due by a natural Law and Subjection to Princes but by mediation of an Humane Ordinance what Reason is there that the Laws of Nature should give place to the Laws of Men as we see the Power of the Father over his Child gives place and is subordinate to the Power of the Magistrate He affords no other Title to Princes than what Fathers have to be Princes each in his own Family nay he himself owns that the Kingly Power may escheat to all the Independent Fathers and that they may transfer it over to One. Now that 't is in this One not still in all or in some other must be of Humane Ordinance Upon which Grounds the answer to his Question is obvious which is that the Subjection due by Nature from Children to their Parents is not defeated by the Kingly Power 's being in One and therefore the Power of the Father over his Child does not give place to the Power of the Magistrate If it did this their natural Right the Parents may resume when 't is for the Good of their respective Families or thought so by them and indeed of one great Family they might resolve the Community into as many separate Governments as there are Families or Patres Familiâs at their Pleasures without any moral Obligation to the contrary If the Power whereby a Nation is govern'd were not wholly distinct from that whereby a private Family is and if both came by Nature since the true descent in Nature cannot now be made out for every Family to make a Kingdom by its self must be most natural and the only lawful Government unless Choice that is Humane Ordinance may warrantably cement them into one Government And this is very evident in the Case of Escheat and of any Translation of Kingly Power from Natural Fathers For the Kingly Power is in the Fathers before the transferring it over quatenus Fathers or it is not If it be in them quatenus Fathers then according to Sir Robert they may resume whatever is essential to the Soveraignty of Fathers being it was once lawfully vested in them at least they have a great deal of Latitude for their Claim because Power of Kings Fol. 2. Patriarcha p. 97. For the same Causes that a private Man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by Deceit or Fraud circumvented or induced thereunto by Error or Force or just Fear or by some great Hurt even for the same Causes the Prince or Princes may be restored in that which toucheth the diminishing of his or their Majesty It seems he grants that the Power once lawfully vested in any cannot be parted with but upon choice wholly free ex mero motu voluntate spontaneâ Yet being there was no Obligation upon them from God or Nature to devolve their Power upon one rather than another but purely what proceeded from their own wills this if he argues rightly they might resume when they list at least when they all agreed to the
French Queen Sister to H. 8. and married to Charles Brandon Duke of Suffolk The Author shews himself skill'd in the Civil as well as the Common Law and tho he had occasion to maintain a strict Right of Succession to the next in the Line according to which he will have it that H. 4. H. 5. H. 6. with-held the Crown by wrong Which I suppose proceeded from his not observing what Parliamentary Confirmations their Possessions had Yet himself says That we are all bound in Reason to have always more regard to the State and Dignity of the whole Weal Publick than of the private Preferment or Commodity of any particular Person Nay he says it appears from History that many Princes settled in their Kingdoms have been judged unworthy of their Callings for what would now be look'd on as a very slight Matter And many things he speaks with great Judgment which tend towards the justification of what has lately been done for the Publick-Weal and Preservation of the State and Dignity of this Realm THE AUTHOR TO THE READER AS every man may thinke it very necessary bothe for the greate weale and greate quyetnes of this State to know certenly to whome of right the Honour and Dignitie of this Imperiall State and Crowne of this Realme of England shuld fall or descend unto yf ought shuld happe to Queene Elizabeth our supreame and most graciouse Governour whome it may please God longe to prosper with longe Lyfe good Husband and meny Children to her Highnes contentation and the generall weale and reastfull dayes bothe of her Majestie and of the whole Realme So thinke I that none can lyke well that any with eny coloured or deceyueable meane or argument shuld go about to sette forth or perswade the naturall and lovinge Subjectes thereof that the Succession appertayned to those that in deede have no just Right Title or Interest to the same And therfore because some have endevored themselfes by wrytinge to shew that the Succession apperteyned unto the Lady K. Grey the which as may appeerr by no dyrect right or reason can pretend eny just Title or Clayme thereunto I have not thought it unfitt heerby to shew the state and troth therof more playnly to such that ells either by such practises or ells by such workes mought otherwyse rest deceyvid And that I shal be thus occasionyd to utter heerin neither is nor shal be with eny mynd or motion to offer eny injury or to stayne or spotte the Name or Honour of eny but onely to answer those Argumentes the which as they be grounded upon no truth ar so worthy of no favour And to answer therin without wrestinge or applyenge eny case otherwyse then the state of the mater doth most playnly and truely crave the pronunciation of the Law So that yf any thyng be sayd it is the very necessitie of the cause so necessarelie for this state and this tyme to be thus touched and the judgment of the Law towchinge the same that speakith or vtterith eny thinge and ells no other disposition And bicause our Bond and Duty is rather to haue regard of the State and Dignity of the whole Weale Publik and of the good successe prosperyte and quietnesse therof then of the undue title or interest of eny particuler person or persons I trust this travaile may the rather be acceptid and taken in better parte And so to the Matter First to the illegitimacion of the Lady K. and the reste of the Issues of the Frenche Q. And after of theyr Force or Interest by the Wyll Touchinge the First It is notorious and well inough knowne that when Charles Brandon Duke of Suff. maryed with the Lady Mary the Frenche Q. that he had then an other Wyfe lyvinge which was the Lady Margaret Mortimer with whome after mariage he lived dyvers yeres as lawfull Man and Wyfe and after upon certayn discorde betweene theim of his owne motion without any fourme or maner of lawfull judgement that he seperated him selfe from her and forsoke her And what rashnes or rather foly may it be comptid to reply or wryte against so manyfest a troth with conjectures as to say it is not likely that K. Henry wold ever have consented that his Sister should mary one which had an other Wyfe lyvinge Since that ther is yet so meny lyvely Wittnesses the which of certeyn knowledge can be Testes The saide Charles matchid with the Frenche Queene 1515. She died Anno. 1532. La. Mortimer died An. 1533. that Charles Brandon and the Lady Mortimer wer Man and Wyfe and have seene and did know the Lady Mortimer longe after the mariage yea and peradventure after the death of the said French Q. And touchinge the K. although it is to be thought that yf he had known that the Duke had had an other Wyfe lyving that he wold not have consentyd that his Sister shold have maryed him It might be notwithstanding full well and it is possible that yet he had one and that the Kinge mought not know thereof For as Princes have ben the greater or the mightier so much the lesse comonly have they ben wontyd to understand of the doinges in such maters of pryvate Persons But in this case ther be as perfecte Clerkes and of as goode understandinge as any were at th' advise of these Bookes abrode that ar of opinion certen that the French Q. and the Duke wer matchid before the Kinge was prevy thereof and some Pardon or Pardons obteyned for the same upon small search may happen to be founde that may testifye as much and of necessity we can no otherwyse thinke but that it was so Synce that as much as is sayd of the Lady Mortimer may be affirmyd by the sayd Witnesses as a thinge most certeyne and notorious The which beinge true then is it certeyn that the Lady Mary the said French Q. cold not be his lawfull Wyfe And that the said Charles Duke of Suff. could not lyve with her but in Adultery For the wordes of the Lorde be playne (a) Mat. 19. Marc. 10. Quicunque dimiserit uxorem nisi ob fornicationem aliam duxerit machatur Et qui dimissam duxerit maechatur Nowe that one borne in Adultery and notwithstanding is legitimate that cannot be And therefore the Lady K. beinge comme of one not legitimatly borne cannot inherite or be capable of the Crowne And heerin it is to litle purpose to cavill with Canons or Decretalles of the Pope against the playne and manifest Word of God from whose usurped Power as this Realme is most happely delyvered so hath his Lawes in the same loste their force and vigore But admitte that the Pope's Lawe had in England any Authoryte at least it shuld be an impious thing in what place soever it wer where the Worde of God is so cleere and certen to sticke rather to the Pope's Law then to the Lawe of God (b) Parnormi in ca. super illa
so happe as God forbidd but also it is so penall that if such ill Chaunce shuld unfortunately befall it makith Traytors of those that will clayme their Inheritance although their intent were but to try their Titles And it is a Learninge by the Common Lawes of England that longe hath ben so receyvid that in every such case as eny of these happen no Exposition is to be allowed but the Lawe willith us to cleve to the Letter without eny further wrestinge therof then the Letter naturally and strictly will reache unto So that if it be not a stricte observation of the Letter according to his natural entent in any of these cases the Common Lawe allowith it not And the rather the Lawe is precise herin for that it is a newe Statute which seldome ar taken by equite in eny point because they ar all pennyd at large As for Example I will remember one or twoe which may suffice to such as be Learnyd to search for other of lyke effect wherof ther ar not a few In Anno 1. of Kinge Edward the 6 th ther was a Statute made That if eny were condemnid for the stealinge of Horses and Mares they should lose their Clergy and because the words Horses and Mares were the plurall nombre it was taken not to extende to one Horse or to one Mare And so for that cause a new Statute was made Anno 2. of the same K. that made lyke Lawe for stealinge one Horse or one Mare And the chief cause of this was because it is a Penall Statute in takinge from a Man that wherby his Lyfe might be savid In K. Richard the 3 ds Tyme there was a Statute made to Auctorize Cest a que use to enter vpon his Feoffees and make Feoffementes And it was in question in Anno 9. of H. the 7 th yf he made a Letter of Atturney whether this were good by the Statute and lefte therfore a doubtfull question by reason the Statute gyveth auctoryte onely which must in all poyntes be observed And ther is a greate deale more coulour to make that Feoffement goode being by Letter of Atturney then to make this Will to this purpose goode not signed with the Kinges owne Hande For if eny other put his Hande therunto and not the Kinge himself then it is signed with an other Hande and not the Kinges Hande And yf I gyve Auctorytie to my Executors to sell my Landes and say no further then yf they sell the same by Wrytinge or without Wrytinge it is sufficient but if I adde these wordes That they shall sell my Landes so that they do it by Wrytinge signed with their proper Handes yf now they sell the same and th' one cause the Residue in all their presence to wryte all their Names as thoughe every one had severally subscrybed I hold it no question but this Sale is not good for they must pursue their Auctorytie strictlye and otherwyse it is of no effect And consyderinge as is partly before remembryd how greate a mater it was to committe such a Trust it were a greate lacke and slander to the whole Parliament to thinke that they wold condiscend to the committinge of so high and weightie a Confidence as wherof the whole Estate and Weale of the Realme shuld depend but that they did forsee that their doinges therein shuld not be blynded by a Wrytinge signed with a Stampe The same thing was urg'd by Lethington the Secretary of Scotland in a Letter to Sir Will. Cecil Appendix to the 2d Vol. of the Hist of the Ref. F. 269. which might be put vnto either when the Kinge was voyde of Memory or els when he was deceassid as indeed it after happenyd as most manifestly appeeryd by open declaration made in Parliament by the late L. Paget and others that King Henry did not signe it with his owne Hande as it is playne and probable inough by the Pardon obteynid for one William Clerke for puttinge the Stampe vnto the sayde Will after the Kinge was departid and who doubtith but yf his meaninge had ben such so to haue disposed of the Crowne but that he wold have put this mater out of doubte by signifyenge the same with his owne proper Hande And touchinge the two chief Examples that ar brought foorth the one of the 21 and 33 of K. H. th' Eight wherby K. H. was aucthorized to gyve his Royall Assent to Actes of Parliament by his Letters Patentes and so foorth and th' other for that Queene Mary omittyd the style that was apoyntid by Parliament in 35 of H. th' Eight in her Parliament Writts howe little they make to the matter every Man may judge For the Statutes of 21 and 33 of H. 8. were only made in affirmance of the Common Lawe and such a Royal Assent wold suffice by Letters Patents without eny assurance thereof by the Signe And this Statute was but to put such matter out of question for if the Common Law had ben such before there is no doubt but that he must haue signed every Patent with his proper Hande and so these Cases are no way lyke And touchinge the seconde yf the Statute that conteynith the King's Style be well consyderid there wold be made thereof no such Collection For the same apoyntith a punishment to such Subjects as of purpose depryve the K. of the Realm of that Stile But there is no doubt but the Writts that wantyd the Stile were in Lawe sufficyent and the Parties that made the same punishable So that these Examples cannot be wrestid to serve eny whit for the purpose And where ther is made a great mater by reason the Will was inrollid in the Chancery and Constats thereof made under the Broade Seale and the Legacyes thereof in all poyntes performyd To that may be answerd That all that is therein affirmed may easily be confessed and yet it proovith nothinge to th' intent applied for it was his Will is ever he condescendid thervnto though he did never signe it with his Stampe nor with his Hande and a goode and a perfect Will to all Entents and Purposes whereof he had by Common Lawe Authoritye to make his Will of But it is not or cannot be the more a perfect Will to this respect or purpose vnlesse he did execute the auctoritie apoyntid by the Statute of 35 of H. 8. as is before remembryd Since then the Duke had a Wyfe lyvinge when he maryd the Frenche Queene and by the Statute ther is nothinge to be Claymid onles K. Henry had passed eny things either by his Letters Patentes under the Broade Seal of Englande or ells by his last Will signed with his most gracious Hande And that it is trewe that he had a Wyfe lyvinge when he maryd the Frenche Queene that so if it were requisite or hereafter may be there mought be avouchid more then one with much other matter touchinge that poynt of Illegitimacion and Inhabilitie as well in
part in the King If the King invade what is not his Right Page 344. he may be oppos'd with just Force because he hath not so far any Supremacy Cited in Christian Loyalty pag. 348. and this he thinks must take place tho it be said that the Power of War is in the King for that saith he is only to be understood of Foreign War when whosoever hath any part in the Supream Power cannot but have a Right to defend that part Object Mr. Falkner indeed excepts against this as erecting two distinct Governments each of which have a Supream Power of judging and executing Answ 1 Yet he agrees that this is warrantable in the Empire 1. Because it is allowed by its Constitutions and Capitulations But then he says If we look into the Records of the former Ages Page 349. we may thence discern that no Subjects whatsoever of this Realm had under any pretence an Authority to bear Arms against the King How far he is right in this Assertion I submit to their Judgments who shall impartially weigh the following Authorities 2. His other Reason of a Difference between the State of the Empire and of England is That the Princes of the Empire in their own Territories enjoy u Right of peculiar Soveraignty which alters not the case in relation to the Emperor for both they and their People are Subjects to the Emperor and the mischief of a Judgment left in Subjects is either equal both in one and the other or if there be any difference 't is greater in the Empire because tho the Latitude for judging may be the same the Princes there have the greater Opportunities of gathering strength against the Soveraign and consequently more Temptations to it than where all is more immediately under the Inspection and Influence of the Supream Governour Answ 2 But still it appears by what I have shewn out of Mr. Falkner that what he says must relate only to an ordinary Judicial Power or in ordinary Cases for if he allows it in extraordinary Cases even where the Prince is more absolute than he agrees the Kings of England to be à fortiori is this allowable here in such Emergencies Pag. 344 345. Wherefore notwithstanding his charging the two Jesuits Lessius and Becanus with an high strain of Treason and unchristian Disloyalty bating what they say in justification of killing a Prince by private Persons for their self-defence even while he remaineth a Prince I see not any material difference between him and them And being our Dispute is chiefly with Papists with others but as they are their Friends out of Folly or Design it cannot be improper to transcribe part of his Quotation from the two learned Jesuits agreeing almost word for word in these Positions Page 344. That a Prince who hath a just Title becomes a Tyrant with respect to the Administration of the Government when he designs in his Government and aims at his private Advantage and not the Publick Good and burdens the Common-wealth with unjust Exactions sells the Offices and Places of Judges and makes Laws to his own Advantage and not the Publick That when this Tyrant is no longer fit to be born this Prince is first to be depos'd or to be declar'd an Enemy by the Common-wealth or the Chief Estates of the Kingdom or any other who hath Authority and then he thereby ceaseth to be a Prince and it becomes lawful to attempt any thing against his Person and Life It being made a Question What was Bishop Bedell's Opinion of Subjects taking Arms against their Prince in Extraordinary Cases he having been said barely to represent the Defence made by others without interposing any thing of his own and the Learned Writer of his Life having declar'd it unlawful and impious for a Subject to resist his Prince in any Case whatsoever which he says he observes for fear the Bishop's words should be taken by the wrong Handle As if the Bishop gave no Intimation of his Mind herein to countenance resisting in any case whatsoever Life of Bishop Bedell p. 442. I shall take leave to give an account of the Bishop's Answer to Mr. Wadsworth who charges the Hugonots and Guises of France and Holland with raising Civil Arms shedding of Blood occasioning Rebellion Rapine Desolations principally for their new Religion The Bishop says Page 443. these poor People having endur'd such barbarous Cruelties Massacres and Martyrdoms as scarce the like can be shewed in all Stories are now accused as the Authors of all they suffer'd No says the Bishop they be the Laws of the Roman Religion that are written in Blood and the perfidious Violation of the Edicts of Pacification that have set France and Flanders in combustion And afterwards having enlarg'd upon the Fact he adds And tell me in good sooth Mr. Waddesworth Page 444. Do you approve such barbarous Cruelty Do you allow the Butchery at Paris What is this less than to say that no Man can condemn these poor Protestants without approving the Cruelties exercis'd against them The Bishop proceeds in their Vindication Do you says he Page 445. think Subjects are bound to give their Throats to be cut by their fellow Subjects or to offer them without either humble Remonstrance or Flight to their Princes at their meer Wills against their own Laws and Edicts You would know quo jure the Protestants Wars in France and Holland are justified I interpose not my own Judgment not being throughly acquainted with the Laws and Customs of those Countries but I tell you what both they and the Papists also both in France and Italy have in such Cases alledged First the Law of Nature which they say not only alloweth but inclineth and enforceth every living thing to defend it self from Violence Secondly That of Nations which permitteth those that are in the Protection of others to whom they owe no more but an honourable Acknowledgment in case they go about to make themselves absolute Soveraigns and usurp their Liberty Added in the Margin to resist and stand for the same And if a lawful Prince which is not yet Lord of his Subjects Lives and Goods shall attempt to dispoil them of the same The Passage above is to be considered as a Relation not as the Author's Opinion But yet for fear of taking it by the wrong handle the Reader is desired to take notice that a Subject's resisting his Prince in any Cause whatsoever is unlawful and impious under colour of reducing them to his own Religion after all humble Remonstrance they may say they stand upon their own Guard and being assailed repel Force with Force as did the Maccabees under Antiochus In which case notwithstanding the Person of the Prince himself ought always to be sacred and inviolable These are the Rules of which the Protestants that have born Arms in France and Flanders and the Papists also both there and elsewhere as in Naples that
Salus Populi the preservation of Three Kingdoms is concern'd and in danger If then an Alteration of the Course of Descent in case of Necessity is so far from a Change of the Constitution that 't is by vertue of the Chief Fundamental Law the Salus Populi I hope it will be allowed That the Representatives of the People have upon the Vacancy of the Throne from a former Possessor which he yields to have been in the Case in question a right to judge wherein their own Safety lies Otherwise they have a Law of which they can have no benefit And since our Representatives have made so wise a determination they that do not submit to it may well be lookt upon as Persons who abdicate themselves from the benefit of this Government Nay further the Doctor confesses that for his part he knows no Law against the possibility either of a Vacancy in the Throne or an Interregnum in extraordinary Cases such as himself yields ours was But the remaining Question is Whether the Convention shewed that they meant such a Vacancy as caus'd an Interregnum Their Words as he observes are these P. 38 King James the second having Abdicated the Government and the Throne being thereby vacant So far he is in the right That the Convention went upon the Supposition of a Vacancy but their supposition did not make one neither did it make an Abdication But 't is evident that the supposition of the Vacancy as Consequent upon the Abdication was the Ground of setling the Government as it is and that they look'd upon the Vacancy as more than a freedom from the last Possessor appears by their preferring His Majesty in the Settlement Which preference had been justifiable even according to what the Doctor receives tho this King had not been of the Blood-Royal But for a farther Evidence The Stat. 1 W. M. for reviving of Actions and Process lately depending in the Courts of Westminster and Discontinued by the not holding of Hillary Term and for supplying other defects relating to proceedings at Law Consid touching the Oath in the Title page that the Throne was absolutely Vacant in the eye of the Law and so judg'd and declar'd to all Men by the Convention and Their Majesties concurring in a Parliamentary Act The Doctor may please to consider the Statute for Supplying defects relating to proceedings at Law Which provides that for Crimes committed between the 11 th of December and the 13 th of February following Informations or Indictments shall have only the year of our Lord God instead of the year of the King's Reign And where Conclusions used to be contra pacem Domini Regis they shall conclude contra pacem Regni Let not Divines therefore go to argue us out of our Government but let them submit to that Rule which Dr. Whitby cites Optima regula quâ nulla est verior aut firmior in jure neminem oportet esse sapientiorem Legibus Object 2 'T is urged That the Hereditary Right contended for has not been interrupted by the Peoples Elections so often 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 Brady's Hist of the Succession f. 8 9. where the Election of the People was bound and limited by the nomination of the Predecessor But if he had duely weighed 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 Wills and that Wills were but Recommendations to the Peoples Choice but not Dispositions Mezray in the Life of Clotair 2. And that thus it was in France appears by their Historian Mezray who shews That anciently the King 's of France were chosen out of the Royal Race But that Three Conditions were ordinarily requir'd 1. Birth for they were to be Legitimate 2. The Will of the Father 3. The Consent of the Great Men which commonly used to follow the other two Object 3 I find it urged That as anciently as the time of E. 3. the Realm declared Vid. Debates about Deposing 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 Answ If any colour of evidence can be produced that the Subjects of England so early as that Swore Allegiance to the King and his Heirs this were to the purpose Knighton f. 248. 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 urged the Obligation of their Oath to the King and his Heirs or the Crown Which appears farther Leges Sancti Edwardi tit Greve Conjurati fratres ad defendendum Regnum c. honores illius omni fidelitate cum eo servare So Leges W. 1. tit De Fide obsequio erga Regem Quod Willielmo Domino suo fideles esse volunt honores illius c. defendere Bracton Lib. 2. Cap. 29. not only from the old Oath of Allegiance to which they must needs have reference whereby they are bound to defend the Rights of the 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 Vid. Sir P. P. As Successors are Heirs so Dr. Brady tells us Gloss f. 18. That Prepossessor one that possessed the Land before the present possessor without any relation to Blood or Kindred is Ancestor in Doomsday and in the Writ de Morte Antecessoris Sir P. P's Obligation of Oaths f. 302. F. 298. F. 300. With Bracton agrees the Civil Law Haeredis significatione omnes significari successores credendum est etsi verbis non sint expressi By Heirs we are to believe all Successors to be signified altho' not expressed in words And again Nihil est aliud haereditas quam Successio in universum jus
Honour Nature and Dewtie an inordinate seditious and slaundres Act was made agayns the most famous Prince of blessed memory Kinge Herrie the Sixte his Vncle in the Parliament holden at Westminster the fourth day of November the first Year of the Reigne of Edward the Fourth late King of England whereby his said Vncle contrary to due Allegianee and all due Order was attainted of High Treason Wherefore our same Soveraigne Lord by the Advice and Assent of the Lords Spirituals and Temporals and Comines in this present Parliament assembled and by Auctoritie of the same ordeineth enacteth and establisheth that the said Act and all Acts of Attainder Forfaiture and Disablement made or had in the said Parliament or else in any other Parliament of the said late King Edward ayenst the said most blessed Prince King Herrie or against the right famous Princess Margaret late Queen of England his Wife or the right victorious Prince Edward late Prince of Wales Son of the same blessed King Herrie and Margarett Jasper Duke of Bedford late Earl of Pembroke or Herrie late Duke of Somerset the which Jasper and Herrie late Duke of Somerset for their true and faithful Allegiances and Services done to the same blessed King Herrie were attainted of High Treason or any of them by what Name or Names they or any of them be named in any of the said Acts be ayenst the said blessed King Herrie Queen Margaret Edward late Prince and the same Dukes and the Heirs of every of them void annulled repelled and of no Force ne Effect N. X. Vid. CAP. F. 103. SAnctissimo in Christo Patri Domino Claus 3. E. 1. m. 9. Cedula In a Letter to the Pope Domino G. divinâ providentiâ Sacro-sanctae Romanae Ecclesiae universalis Ecclesiae summo Pontifici Edwardus ejusdem gratiâ Rex Angliae Dominus Hiberniae Dux Aquitaniae Cum reverentiâ honore salutem pedum oscula beatorum Mandavit nobis olim per literas Apostolicas quas pronâ mentis devotione recepimus vestra sanctitas reverenda ut annuum censum in quo Sacrosanctae Rom. Ecclesiae ratione Regni Angl. pro octo praeteritis annis asseritis nos teneri venerabili vestro Magistro R. de Nogeriis Capellano vestro assignari liberaliter ac integrè nomine pred Rom. Ecclesiae faceremus Nuper autem alias literas vestras recepimus cum Reverentiâ continentes quod cum nos respons Relationis solutionis Censûs annui memorati quam nobis pred Capel vester exposuit vestrae Ecclesiae Romanae Nomine diligenter Deliberatione Consilii Procerum Regni nostri in Parliamento quod circa Octabas Resurrectionis Dominicae celebrari in Angliâ consuerit pro eo duximus reservand quod tempore receptionis pred lit vestrae noviter ejusdem Regni gubernacula sumpseramus nunc de hujusmodi censu sine ulteriori procrast impendi faceremus eidem satisfac plen Capellano Fatemur enim S. Pater Domine ad Parliament nostrum in Octabis Resurrectionis Dominicae prox pret Regni nostri Praelatos Proceres evocasse ibique multa statuisse divinâ gratiâ favente quae meliorationem statûs Ecclesiae Anglicanae reformationem Regni ejusdem respiciunt communes profectus populi capiant incrementa Set antequam eidem Parl. propter negotiorum multitud quae reformationis remedio indigebant finem imponere valeremus Eodem Capellano vestro responsionem debitam sibi fieri instanter postulante quaedam gravis nos invasit sicut Domino placuit infirmitas corporalis quae perfectionem multorum aliorum negot deliberationem Petitionis Censûs annui supardict de quo dolemus non modicum impedivit Sicque cum occatione infirmitatis hujusmodi à quâ per Dei gratiam cujus est perimere mederi incepimus convalescere Idem Parl. fuerit dissolutum super hoc nequiverimus super Petitione Censûs ejusdem deliberationem habere cum Praelatis Proceribus antedictis sine quorum communicato consilio sanctitatae vestrae super predictis non possumus respondere Et jurejurando in coronatione nostra prestit sumus astricti quod jura Regni nostri servabimus illibata nec aliquod quod Diadema tangat Regni ejusdem absque ipsorum requisito consilio faciemus Reverende Benignitati vestrae humiliter supplicamus pro dono petimus spirituali quatenus molestè non ferat sanctitas vestra si ad praesens super pred sicut vellemus non possumus respondere Imo patientia vestra paterna si placet nos super hoc habere dignetur excutatos Pro firmo scituri pie Pater Domine quod in alio Parliamento nostro quod ad festum Sancti Michaelis prox fut intendimus dante Domino celebrare habito communicato Consilio cum Praelat Proc. memoratis vobis super praem ipsorum Consilio dabimus responsionem Conservet vos Dominus Ecclesiae Sanctae suae per tempora longaeva Teste meipso apud Westm 19. die Junii Anno Regni nostri 3o. The Present CONVENTION a Parliament N. XI Vid. CAP. 10. F. 111. I. THat the formality of the King 's Writ of Summons is not so essential to an English Parliament but that the Peers of the Realm and the Commons by their Representatives duly Elected may legally Act as the great Council and Representative Body of the Nation though not summon'd by the King especially when the Circumstances of the time are such that such Summons cannot be had will I hope appear by these following Observations First The Saxon Government was transplanted hither out of Germany where the meeting of the Saxons in such Assemblies was at certain fixed times viz. at the New and Full Moon But after their Transmigration hither Religion changing other things changed with it and the Times for their publick Assemblies in conformity to the great Solemnity celebrated by Christians came to be changed to the Feasts of Easter Pentecost and the Nativity The lower we come down in Story the seldomer we find these General Assemblies to have been held and sometimes even very anciently when upon extraordinary Occasions they met out of course a Precept an Edict or Sanction is mentioned to have issued from the King But the Times and the very Place of their ordinary Meeting having been certain and determined in the very first and eldest Times that we meet with any mention of such Assemblies which times are as ancient as any Memory of the Nation it self hence I inferr that no Summons from the King can be thought to have been necessary in those days because it was altogether needless Secondly The Succession to the Crown did not in those days nor till of late Years run in a course of Lineal Succession by right of Inheritance But upon the Death of a Prince those Persons of the Realm that Composed the then Parliament Assembled in order to the choosing of another That the Kingdom was then Elective though one or other of the Royal