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
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
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.
meintenir les establisments que sunt fet ou sunt a fere par la dit Conseil declaring That all things provided or to be provided by the King's Council and the greater part of them who were chosen by the King and the Community of his Realm should be held firm and established and requiring all men to swear to hold and maintain the Establishments made or to be made by the said Council Vid. Flet. Habet Rex Consilium suum in Parliamentis c. But upon farther consideration I find that Council was the King's Council in Parliament and those Knights who were the Inquisitors for the Counties were not only oblig'd to come to deliver in their Inquisitions but their Consent was requisite to what the King should ordain by his Council in Parliament which then were a select number chosen as abovesaid Claus 42. H. 3. m. 1. dorso Quia Robertus Cambhen socii sui de Comitatu Northumb. de precepto Regis venerunt ad Regem apud West c. pro quibusdam negotiis Communitatem totius Communitatis praed tangentibus Mandatum est Quod prefatis quatuor militibus de Communitate praed rationabiles expensas suas in eundo redeundo habere faciat In another of the same time to Huntingtonshire they are said to have appeared coram Consilio nostro apud Westm in Parliamento Vide of this at large in the 2 d part since as it should seem all the Lords Certain it is there are Writs upon Record for the Expences of those Four Knights for every County as since there have been for Two The observing of the above-mentioned Contracts will give light to that Judgment which may by us at this distance be past upon the Wars between H. 3. and his Barons and not to mention any small disturbances and the Violations of the Rights of particular men and what they did in defence of them I find H. 3. four times opposed by the People in Arms in Three Wars and a Fourth rising which wanted only Numbers on the King's side to make it a War all manag'd under Heads formally chosen or seeming to have claim to the Conduct by virtue of their Offices 1. The first was under Lewis the Dauphin of France whom the Barons at London had chosen for King in this there was one King against another both standing in truth upon the same title the choice of the People Lewis had the greater part of the Chief Nobility on his side how much soever the Pope's Thunder might have frightned the more ignorant Vulgar and prevailed upon their interested Guides 2. The Second was under the Conduct of the Earl of Chester named first as 't is to be suppos'd for the reason before shewn The occasion of the Insurrection began Ao 1223. 7o. of that King when he being Seventeen years old obtain'd a Bull from the Pope declaring him of full Age and enabling him to order the Affairs of the Kingdom chiefly by the Counsel of his Domesticks that is such as he should chuse turning out those Officers which either had Hereditary Rights or had been chosen in Parliament according to what was insisted on at his Coronation 20o. as matter of Right wherefore his assuming all the Power into his own hands and countenancing the Exorbitances of Hubert de Burgh Mat. Par. Addit Chief Justice of England who indeed as appears upon his Defence afterwards when he came to be impeach'd had been chosen in one of King John's Parliaments but was continued in by H. 3. against the sense of his own Parliament sowed the Seeds of Discontent tho they did not break out into a general Rising but all seem'd to be quieted by his Confirming the Great Charter Ao. 1224. Yet soon after when he was in truth of full Age he was resolv'd to act as one out of Wardship 11 H. 3. and in a Parliament at Oxford declared himself free and by the advice of Hubert de Burgh cancell'd the Great Charter of the Liberties of the Forest as of no validity because granted in his minority and forc'd many who had Ancient Grants of Liberties to purchase them a-new at such Rates as the Chief Justice impos'd Besides Hubert had advis'd the King to act Arbitrarily with his own Brother Richard Duke of Cornwal which drove him to shelter himself under the Publick-Cause and glad were the Great Men to find his resentment contribute to such a general demand of Justice Mat. Par. as forc'd the King to compliance in a Parliament at Northampton 3. But by the Seventeenth of H. 3. Peter Bishop of Winchester An. 1233. Mat. Par. f. 413. Adhuc sub custodiam Petri Winton who had succeeded to William Earl Marshal in the custody of the King during his minority having been supplanted by Hubert the Chief Justice at last put the Dice upon the less subtile Layman and resolving not to fall again for want of flattering his Prince advis'd him in order to become Absolute to remove his Natural Subjects from the Great Offices and put Foreigners in their Places who were brought over in great numbers and oppressed and plunder'd the Nobility upon false accusations and pretences seiz'd their Castles and enjoy'd the Wardships of their Children This occasion'd a general insurrection under Richard Earl Marshal who as a Roman Tribune of the people went to the King and in their name demanded a redress of Grievances but the Bishop of Winchester having given an haughty answer justifying the King's calling over what Strangers he thought fit to reduce his Proud and Rebellious Subjects as he call'd them to due obedience The Marshal and the rest of the Great Men who were Witnesses to that insolence Swore to stand by one another to the last extremity in the Cause of their Country But the Earl of Chester another Tribune here sold his Country for a Sum of Money The Marshal finding himself deserted was obliged to have recourse to Leolin Prince of Wales for aid Upon this the King Proclaim'd him Traytor 9º Octob. Ao. 1233. But in a Parliament held at Westminster at the latter end of that year tho' the Earl Marshal was absent and in Arms the Parliament advis'd the King not to Banish Spoil or Destroy his Subjects without Legal Process nor to call them Traytors who endeavour'd the Peace of the Kingdom Mat. Par. last Ed. f. 388. and by whose Counsels the Government ought to be managed Which was a full justification of the Arms taken by the Marshal Nay the Bishops proceeded so far as to Excommunicate the Bishop of Winchester and others the King's Ministers and to lay upon them the imputation of disturbing the Peace of the Kingdom The Marshal carried all before him with universal applause The Bp. of Winchester and his Accomplices were punished in a Parliament held at Candlemas The King having sent to treat of Peace with the Marshal and Prince Leolin the evil Counsellors which were the Marshals chief
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
the late Assembly would be conclusive to the Nation Neither Forty days Summons nor Writs nor yet Summons to a Parliament Essential And this confirmed not only by the President 12 Car. 2. but by two Presidents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves and of their own appointing The Objection of want of Form Answered out of the Civil-Law and its Reason applied to our Case Objections made by the Author of Elementa Politica considered The Conclusion THE Power having upon the Dissolution of the Contract between J. 2. and his former Subjects returned to the People of Legal Interests in the Government according to the Constitution there can be no doubt with unbiassed Men but this takes in them only who have Right of being in Person or by Representation in those Assemblies where is the highest Exercise of the Supream Power But there are two Extreams opposite to the late Election made by such an Assembly The First is of them who would have all things go on in the same Form as under a Monarch which was impossible and therefore the Supream-Law the Publick-Safety must needs supply the want of Form Nor can be justly controverted till the Lawfulness of the end is disprov'd For all Means necessary to such an End are allowable in Nature and by all Laws But if this should still be disputed all their Darling-Laws made by the Long-Parliament which met after that Convention Anno 1660. will fall to the ground according to the former application of the Statute above-mentioned 16 Car. 1. Vid. Sup. Nay the attempt of Repealing that Statute being in a Parliament which had been actually Dissolved before by that very Law which it went about to Repeal that Form which was usual before is in default of King and Officers supplied by another Provision for the Regular Meeting of Lords and Commons And what hinders but the people had as much Power to vary from the Common Form when there was no King and that Form could not be observ'd as when there was a King and a possibility of having that Form Here I may observe these two things 1. If as I have shewn at large the Right of Succession to the Crown was not fixed to the next in Blood neither before the reputed Conquest nor since if there have been several vacancies of the Throne and the People had right to chuse upon every such Vacancy then whatever they did in order to the choice must necessarily have been freed from the Forms which were required under a King 2. Even where the Kingdom has gone by descent there may have been a necessity for the people to take the Government upon them as if the present Possessor has turned Madman or he who stood next in the Succession were under age without any Guardian appointed in the Life-time of his Father or out of the land when his Father died which were the cases of R. 1. and of E. 1. the account of the last of which deserves particular notice The Annals of Waverly having mentioned the Death of H. 3. add Hoc anno scilicet post Festum S. Hillarii Annales Waverleiensis f. 227. factâ convocatione omnium Prel aliorum Magnatum Regni apud Westm postmortem illustris Regis H. convenerunt Arch. Ep. Com. Bar. Abbates Priores de quolibet Comitatu quatuor Milites de qualibet civitate quatuor qui omnes in presentiâ Dom. Will. scil Arch. Ebor. Rob. de mortuo Mari R. Burnet Cler. qui in loco Domini Regis Anglorum Edwardi praefuerunt Sacramentum eidem Domino Ed. tanquam terrae Principi susceperunt ubi Dominus W. de Mertone Cancellarius constitutus est ut moram trahat apud Westm tanquam in loco publico usque ad adventum Principis Et ibi provisum est quod nulli sint Justiciarii itinerantes usque ad adventum Principis sed in Banco Dominica prima Quadragesimae 4 Id. Martii consecratus fuit frater R. de Kilderlii in Arch. Cant. Item concessa est decima Ecclesiarum Religiosorum Domuum Domino Ed. ejus Germano ad supplicationem Domini Papae ut sit pro duobus Annis F. 228. In this year to wit after the Feast of St. Hillary all the Prelates and other great Men of the Kingdom being call'd together at Westminster after the Death of the Illustrious King Henry there met the Archbishops Bishops Earls and Barons Abbots and Priors and Four Knights from every County and Four from every City which all in the presence of William Archbishop of York Robert Mortimer and R. Burnet Clerk who presided in the stead of Edward their Lord and King of England took an Oath to the said Lord Edward as Governor of the Realm Where the Lord William of Merton is constituted Chancellor and that he should abide at Westminster as in a publick place till the Prince's coming And there it was provided that there should be no Justices itinerant before the Prince his coming but only in the Bench. The first week of the Quadragesima to wit on the Fourth of the Ides of March Father R. of Kilderly is consecrated Archbishop of Canterbury Matthew Westminster of the same time says Mat. West Rege igitur Supulto sicut mos est regibus sepeliri Gilbertus Johannes Comites Gloverniae Warenniae nec non Clerus Populus ad magnum Altare Ecclesiae Westm ' celeriter properarunt Ed. primogenito Regis fidelitatem jurantes qui si viveret penitus ignorarunt Agebat enim in partibus transmarinis contra Christi adversarios bellaturus Postmodum ad novum Templum Londini Nobiliores Regni pariter convenerunt Et facto sigillo novo constituerunt fideles ministros Custodes qui Thesaurum Regis Pacem Regni fideliter custodirent The King therefore being buried in that state in which Kings us'd to be buried Gilbert and John Earls of Gloster and Waren as also the Clergy and People as soon as might be hastned to the great Altar of Westminster-Church swearing Fealty to Edward the King 's eldest Son tho they were wholly ignorant whether he were alive or no for he was in Foreign Parts fighting against the Enemies of Christ After this the Nobility of the Kingdom likewise met and a new Seal being made they constituted faithful Ministers and Keepers who might faithfully keep the King's Treasure and the Peace of the Kingdom The Annals and Matthew Westminster differ in circumstances tho they agree in substance but it would seem as if the same Convention had been adjourn'd from Westminster to the Temple and therefore its Acts might have been said to have been at either of the places It at least appears from Matthew Westminster that prior to that Solemn Convention which the Annals mention there had been a great confluence of people headed by the Earls of Glocester and Waren at that meeting 't is
by a general binding Ordinance settled by God in him and his Posterity by Right of Fatherhood Wherefore being settled on the Posterity it must according to him descend to the Eldest and could not be otherwise dispos'd of by Adam himself so that his Grant or Permission or anothers Conquest would be invalid Patriarcha p. 19. for such Heirs are not only Lords of their own Children but also of their Brethren and all others that were subject to their Fathers and therefore we find that God told Cain of his brother Abel His desires shall be subject to thee and thou shalt rule over him Sir Robert tells us That all Kings that now are or ever were Anarchy p. 273. are or were either Fathers of their People or the Heirs of such Fathers or Vsurpers of the Right of such Fathers All it seems are with Title and yet in the very next Lines he says in effect That none have Title but one at a time and that is only the next Heir from Adam unless Adam can have several Heirs at the same time to his universal Monarchy Which since Nature hath not distinguish'd the habitable World into Kingdoms is to make several Monarchs within the same Community I would fain know how it can be shewn upon Sir Robert's grounds that the several Polities in distinct Kingdoms were lawfully erected since they ought all to be dependent upon One if he be in the Right nor can they prescribe to a Division for there can be no Prescription against the Right of the Universal Heir If Usurpation acquires a Right possibly the Great Turk stands fairest for it at this Day and having gotten so much natural Power all Princes not equal in Strength ought to yield him their Crowns upon his Summons Patriar p. 45. But this cannot prejudice the Right of the True Heir though it may hinder him in the use or exercise of his natural Rights yet thereby no Man loseth the Right it self Anarchy p. 273 Though this Right be in One over all yet says he it is a Truth undeniable that there cannot be any multitude of Men whatsoever either great or small though gathered together from the several Corners and remotest Regions of the World but that in the same multitude consider'd by it self there is one amongst them that in Nature hath Right to be King of all the rest as being the next Heir to Adam and all the others subject unto him That is in effect If there were but one Multitude in the World all would be under Adam's Heir as a natural Head but there being several the state of the Question is altered nay and that by Divine Right too for the Scripture says God hath determined the Bounds of their Habitation Acts 17.26 But admit Adam's Heir who has Right to be King resides with any particular multitude the Right cannot be in him and in another at the same time and therefore no other Title but that of a natural descent from Adam can be good He intimates as if no King could ever die without such Heir as the People are bound to obey nor by the same reason could Adam himself or they that claim in a natural descent from him and consequently the true Heir to the first Monarch and no other would have the Right Anarchy p. 272 Yet he grants That if a King could die without Heir the Kingly Power in that case shall escheat to the Supream Heads and Fathers of Families Patriarc p. 21. or as he explains it in his Patriarcha Independent Heads which he makes such as are Heads adopted by Princes but in effect grants more than any wise Man will contend for viz that it escheats to every Man within the Kingdom Freeman and Servants for that by his Principles of Confusion Nobility or adopted Headship depends upon the Grace of the Prince having no Foundation in Nature and that Grace with all its Effects determines at the Death of the Prince Free-holders Grand Inq. p. 39 Vid. Inf. F. 15. nay and all former Laws too are void till confirmed by the next Successor Wherefore Property and all Distinctions not settled by God or Nature dissolve and then all Men are equal as to Distinctions brought in by Humane Laws This I suppose is to make way for the natural Headship of Fathers in a strict sense and that he takes away too and places it in the Nobility and the Nobility expiring what becomes of it Why 't is in nubibus in Abeyance till they who have no Right to do any Act of Power part with the escheated Power by free Choice or yielding to a Conquerour speaking of the Case that the knowledg of that One in the World who is next Heir to Adam be lost Patriarc p. 21. This Ignorance of the People says he being admitted it doth not by any means follow that for want of Heirs the Supream Power is devolv'd to the Multitude and that they have Power to Rule and chuse what Rulers they please No the Kingly Power escheats in such Cases to the Princes and independent Heads of Families and every Kingdom is resolved into those Parts whereof it at first was made by the uniting of great Families or petit Kingdoms as we find the Great Monarchies were at first erected and into such again as into the first Matter many times they return And because the dependency of Ancient Families is oft obscure or worn out of knowledg therefore the Wisdom of all or most Princes hath thought fit to adopt many times those for Heads of Families and Princes of Provinces whose Merits Abilities or Fortunes have enabled them or made fit or capable of such Regal Favours All such prime Heads and Fathers have Power to consent in the uniting or transferring their Fatherly Right of Soveraign Authority on whom they please 'T is to be observed that our worthy Knight never takes care for more than serving the present Occasions where he comes to shew that the House of Lords are not born Counsellors nor can claim to be so ex debito Justitiae having no Right in Nature Vid. sup F. 14. nor any Superiority but what depends on the Grace of the Prince and that as his last Essay explains it of the immediate Prince It was necessary to claw the Commons as standing fair for the Pretence of being natural Counsellors if they can make out their Representation of the People to be full and compleat But here when he talks of Independent or Supream Heads these were too big Epithets for Commoners and therefore these must be Lords Not considering that he makes them in another place cease to be so till their Dignity be reviv'd which cannot be by themselves Power of Kings p. 1. but it must be ratified by the express Consent or at least by Sufferance of the Prince following who had knowledg thereof The Reason of which he has given in another place Observ touching Forms of Government p. 149. Last
de secundis nuptiis But all this notwithstandinge lette us see what Reasons they be besydes that ar brought in the favour of the Lady K. One is forsooth that the Lady Mary the French Q. and the Duke of Suff. havinge lyved meny yeres togither as Man and Wyfe and their Matrimony celebrated publikly in the face of the Churche without eny thinge sayd agaynst theim duringe their lyves that therfore though he had twenty Wyves then lyvinge that yet the Children of the Queene and Duke are to be taken no other then as legitimate And th' other that it is sufficyent for the legitimation of their Children that the French Q. seemyd to have no knowledge that he had eny other Wyfe lyvinge To these greate Reasons and their Authority it is easy ynnough to answer For it is a Maxime in the Civill Lawe That that which from the beginninge is not good or lawfull cannot with eny Processe of tyme be betteryd (c) L. quod mitio ff de regu juris And therfore the Matrymony not beinge lawfull at the first no tyme is sufficyent or able to make it lawfull And yf that which is sayde of the long contynuance of the Matrymony without eny thinge sayd agaynst it had ben such to have comme in eny consideration it might have had some colour or shew of reason the rather yf the parsons agaynst whom eny such controversie shuld have rysen had ben of such degree or condition as eny might freely have proceedid against theim But they were Princes the Woman the Kinge's Syster and the Man a Duke and in greate favour with the Prince in such sorte that the greate and the iminent danger and perill that did depend therof was and is the aparaunt and manifest cause why no Man did or durst begin with theim or attempt eny such matter and specially in a thinge that touchid any whitte the displeasure or dishonour of the Kinge himselfe And therfore that long contynuance in Matrimony after that sort without controversy is not to be countyd for quiet and peaceable but rather injurious and violent (d) Arg. l. in fi C. de ann exe l. 1. §. si quis autem ff de iti act pri C. quia de conces pre l. §. 1. ff quod vi aut clam l. de pupillo §. si quis ff de ope noui nun cum ibi not per Bar. alios And such as cannot help eny thing to the legitimation of the Children born in Adultery To th' other touching the ignorance of the Queen although it were graunted that some ignorance in some sort might the rather shadow the illegitimation of the Children yet it is not therfore that every kynde or sorte of ignorance mought be acceptid to bolster forth such causes but a probable ignorance for the Lawe tendith to the favour of the vigilent and diligent in their own causes and not to the wilfull sloathfull or negligent And those that contractith with eny they ought to know and understand eche of the others State and Condition (e) l. qui cum alio contrahit ff de regu juris and not to understand that is commonly brutyd is to be attributed unto the Parties default (f) l. quod verba ff depon l. si ut certo §. nunc videndum ff commo cum ibi notatis And such a kind of ignorance is callid a Voluntary or ellis a dessembled Ignorance and helpith nothing to the ligitimation of the Children the Matrimony beinge contrary to the publike Lawe of Honesty even by the Canonicall and Civill Law (g) Cap. cum inhibitio de clan desp for synce Charles Brandon after Duke of Suff. had lyved with the first Wyfe so long being of such a callinge and she his Wyfe of such a House and such a Lyvinge and in the same Countrey It had ben very easy with eny never so little a diligence used to have come to the knowledge whether he had had eny other Wyfe lyvinge or no. And the Lawe entendith that one that either doth understand or ells is in abilitie easily to understand to be all one (h) l. pen. ff ad maced l. in bonorum in fine ff de bonorum poss Since then the French Q. yf she had lyked eny thinge to have herkened searched or demaundid moght easely have had intelligence whether the Duke had eny Wyfe lyving or no It is as much as if she had known it so doth it manifestly appeere that the Children born in such Matrimony cannot by eny meane be reputyd or taken for legitimate or able to eny Enheritance and much lesse of the Crowne synce that for the Honor and Dignitie of the Realme whosoever shuld be worthy or capable of the Crowne it is meete that not onely they shuld be free from eny stayne or spotte but also from all suspicion of eny As Julius Cesar sayd of his House when for the onely suspicion of Adultery he did put away his Wyfe sayenge That the House of Cesar ought not only to be without Vyce but also without all suspicion of eny Besydes if you should consent to put your selfes in subjection to such so unworthely born Behold and consyder I pray you by the way how farre off yow should shew your selfes inferior in consideration from the many and noble Examples left unto us by other Countreys as particulerly of later Memory by the Noble Nation of the Spayniardes Where a Daughter beinge borne of the Queene Wyfe to Hen. 3. Kinge of Câ—stile and most speache great presumptions and secreat murmuracion therof passinge that not the Kinge but an Adulterer shuld be the Father therof The Barons Earles and other Nobles of the Realme did assemble together and consydering what spotte and infamy it shuld be unto the whole Nation and Countrey yf in time cominge they shuld have their Q. a Woman thoght of and esteemyd but as a Bastard did not only deliberate not to acknowledge or not allowe of her as legitimat Heyre of the Realme after the death of the Kinge The Case of the putative Prince of Wales But wold without delay be dischargid and assurid from that gratte dishonor and infamy And therupon so became most humble Suters to the K. that as it apperteynid unto the Honour and Dignitie of him and of the whole Realme It moght so please him to repudiate the Q. as Adulteresse and declare that Daughter not to be his but borne in Adultery Shewing him besydes that yf he wuld not have regard unto his owne Honour and to do that that touched so much his Estate and the Dignytie of the whole Countrey that they for their partes could not nor would not so much forget their Duties to suffer it But rather determyned to depose him as a Man that made small compt either of his Callinge or Honour and therefore unworthy of the Crowne By which yow may see how farre such Occasions may sometymes cary Men past the termes of their Callinges wherof
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
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
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
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
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
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
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
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
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
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
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
divested of his Soveraignty by the Counsel and Consent of all his Subjects (a) Ib. f. 108. Anno 779. Mailros Anno 794. f. 139. S. Dunelm f. 113. Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Milros f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem Ibid. 144 872. Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities F. 148 941. F. 148 947. but then they renounc'd the Allegiance sworn to King Edmond and chose Aulaf King of Norway for their King Aulaf had not reigned six Years when they drove him away and tho they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects Vid. Mirror sup Leges S. Edw. and that if he did not answer the End for which he had been chosen he was to lose the Name of King Indeed a very Learned Author Discourse concerning the Vnreasonableness of a new Separation on the account of the Oaths p. 15. in a Treatise for the most part unanswerable seems to set aside all the Precedents within the Kingdom of the Northumbers as if that were of no consequence to any other part of England I shall not says he meddle with the Kingdom of the Northumbers which alone was originally elective as appears by Matthew Westminster The words to which he refers are these Anno Gratiae 548 Regnum Northanhumbrorum exordium sumpsit Math. West f. 101. Cum enim Proceres Anglorum magnis Laboribus continuis patriam illam subjugassent Idam Juvenem nobilissimum sibi unanimiter praefecerunt In the Year of our Lord 548 Anno 548. the Kingdom of the Northumbers began For when the Great Men of England had with much and continual Labour subdued them they chose for King Ida a most Noble Young Man I cannot understand how the shewing the Foundation of one Kingdom in Election is any Argument against the Original Electiveness of others within the same Island Nay primâ facie without more of one side or other it gives ground to believe the others to have had the like Foundation and this Quotation particularly is so far from implying that this was the only Kingdom within the Isle Originally Elective that it supports the Authority of the Mirror which informs us that forty Princes at the beginning of the Monarchy chose one to reign over them Mirror sup for this speaks not of the English as then under one King or more in their respective Divisions but under several Proceres Great Men or Princes and that part of the Island seems to have been the first which chose a King but I know not by what Rule of Logick it can be gathered from this Passage in Matthew Westminster that other Kingdoms which chose their King afterwards were not equally Elective in their Foundation tho not so ancient or the time of the Commencement not so easily to be shewen Vid. inf Vid. Falkner p. 329. This called a Synod of all England 827.548.279 Malmsbury f. 13. Certain it is that the Council of Calcuth in the Year 789 which provides for the Election of Kings was Conventus Pananglicus and if it took not in the Northumbrian Kingdom as having been disjoin'd from the rest till the Reign of Egbert An. 827 being 279 Years it is to be presum'd that all England besides was included Nay this very Author produces Authorities which prove other Kingdoms here though their beginning is not so well known to have been as truly Elective as this which he waves 1. He shews Page 14. that Beornred being set aside by a Convention of the Nobility and People of the Kingdom of Mercia Offa was chosen King who was of the Royal Stem but not the next Heir And so says he William of Malmsbury observes in the West Saxon Kingdom after Ina that no Lineal Succession was then observ'd but still some of the Royal Line sat in the Throne and of Ina himself that he was rather put into the Throne for his Vertue than by Right of Succession Discourse sup p. 15. 2. He argues that if by the Fundamental Constitution Allegiance were indispensably due to the next rightful Heir in this Monarchy Athelstan whom he shews not to have stood next in the ordinary course of Descent would not have been chosen Magno Consensu Optimatum and gives several other Instances wherein he observes that Reason of State Page 17. and the publick Interest still over-ruled this matter 3. He shews that Reason of State and the Publick Interest over-ruled not only for Elections when the Throne was free from a Possessor but even for the removing Kings in Possession P. 13. An. 454. Vid. sup Anno. 756. P. 14. An. 758. An. 854 867. P. 16. An. 957. For which he cites the Cases of Vortigern under the British Government Sigebert King of the West Saxons Beornred of Mercia above-mentioned Aetheluph King of the West Saxons and the eldest Son of Edmund who was set aside because in Commisso regimine insipienter egit He acted foolishly in the Government committed to him After all he contends that ours is not only a true Original Monarchy but Hereditary where the Right of Succession and publick Good did not interfere and thus much I readily grant him but in restraining this to Cases where there was not a natural or moral Incapacity he plainly confines Reason of State and the Publick Good to narrower Limits than before he allowed for if these were to over-rule Page 17. as he before observ'd then the Question upon Competitions for the Crown between Persons of the Royal
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
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
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
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
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
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 the General Councils of the Kingdom at least the Charter which he then granted as I before observed makes full proof of it Vid. Sup. f. 172 178. 'T is obvious that the Convention 1 H. 1. was far less solemn and had much less ground to be look'd on as a Parliament than ours and yet it being for removing a Vacancy and Setling the Government when the Nation was threatned with an Invasion from Duke Robert they thought the necessity of time would sufficiently excuse the absence of Form But had there been no Warrant from former times for the late manner of proceeding the people of Legal Interests in the Government having been restor'd to their Original Right Who can doubt but they had an absolute power over Forms That they were not call'd a Parliament I hope will not be an Objection since the Word is much less Ancient than such Assemblies Nay I find it us'd in the 25th of E. 1. for a Meeting of the People without the King Vid. Append. to consult for the Publick-Good of which Matthew of Westminster says Parliamentum suum statuerunt Vid. Sup. Cap. 1. Since the Cives the Common Subject of the National Power have made their determination in our Case this according to that Positive Law which I have shewn above ought to quiet the Debate and command a submission And yet were there not Positive Law on their side the equitable Reservations before observed might be sufficient Warrant Nor is the Civil-Law wanting to enforce this Matter One Barbarius a run-a-way Servant not known to be so got in favour with Anthony at the time of the Triumvirate and by his means came to be Praetor Upon this a great Question arose Whether what he did or was done before him during his Praetorship were valid Hottom Illust Quest 17. Vlpian decides in the affirmative and Hottoman upon that Question says ' The suffrages of the People have the force of a ' Law Gotofredus de Electione Magistratûs inhabilis per errorem factâ p. 6. The Reasons given for the Resolution as they are in Gotofred who best reconciles the various Readings will greatly strengthen our Case He tells us That tho the Question there is only concerning a Servant the Reason of it reaches to Emperors and all Secular and Ecclesiastical Dignities The Reasons why Vlpian holds the Acts of such good are 1. In regard of Common Utility and the Inconvenience it would be to those who had business before him if it were otherwise 2. From the Power of the People to give a Servant this Honour Gotofred thinks If this may be done with certain knowledg that he was a Servant much more through mistake for if the People who have the Supream Power may with certain knowledg for the sake of the Publick-Good not only design a Servant for Praetor but in this Case by a just Election take a Servant away from his Master How much more may it be done as in the Case propounded not to make a Servant wholly a true Praetor not to take him from his Master but only by a commodious interpretation to have what is done by him or with him sustain'd and that so long the Error of the People and Servitude of the Person chosen should not prejudice what is done Gotofred goes yet further and says of Magistrates and Judges constituted by Tyrants the manner of Judgments being kept Gotofred Sup. p. 25. the things done according to form of Law or Transacted according to their Wills have been held good Sponte transacta And yet in this Case the defect seems greater being the Power is collated by one inhabil and so a substantial form is wanting Wherefore in this Part there seems no difference between the inhability of the Elector or the Elected And if ever the Common Utility or Publick Good might warrant Actions out of the Common Course certainly this could never have been pleaded more forcibly than in the Case of this Nation which unless it had declared for King WILLIAM and Queen MARY which they did in the most regular way that the Nature of the thing would bear had in all likelyhood by Irish and French Forces by this time been reduc'd to the miserable condition of the poor Protestants in Ireland who are by no means beholden to the nice Observers of unnecessary and impracticable Forms However such Formalizers would do well to answer the French King's Advocate in the Case of King John who shews a Vacancy of a Throne and to whom in such Case the care of the Kingdom belongs And they being the Barones Regni I need not now stand to prove that in the Language of that time 't would comprehend all such as were Members of our late Assembly of Lords and Commons For admit it were to be restrain'd to the Lords only then at least the Commons now were but supernumerary And since the Lords Voted by themselves and not in the same House with the Commons for the majority of united Votes to carry it the Settlement Voted by the Lords were enough to conclude the Nation But for the farther conviction of those who still urge That to hold that there may be a Parliament without being summoned by the King 's Writ would be of pernicious consequence to the Constitution of the Legal Monarchy under King WILLIAM and Queen MARY I shall refer them to a Paper which came out not long since entituled Vid. Append. The Present Convention a Parliament which I have transcrib'd at large into the Appendix As that Paper gives an abstract of what might be prov'd by Authorities those which I have produced give confirfirmation to that Paper Part 1. Object Here I ought not to pass by some Objections of the Author of Elementa Politica in relation to the suppos'd want of due Form in proceeding to Judgment or of Actions leading to it which if they were unwarrantable the Judgment must have been so too being founded upon the belief that there was just occasion for those Actions The Substance of his Objections may be reduced to these Heads 1. Part of the Legislative Power is in the King Whence it follows Elementa Pol. p. 5. Since published with the Title of Vindiciae Juris Regii that the whole Body of the People is not the Supream Authority nor consequently can call their Prince to account without his own consent 2. That Part of the Legislative Power which is lodg'd in the People is not given at large to be exerted at their pleasure but depends upon stated Rules and Limitations and can only be exerted by their Representatives in Parliament Nay it is so precarious a Privilege that without the King's leave they can never make use of it For it is neither lawful for them to Convene themselves nor yet to sit any longer than the King pleases Which is in different words but the same with Mr. Hobbs his position Where there is already erected a
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
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
Cancellario Angliae emergat seu judicium difficile coram Justiciariis fuerit reddendum hujusmodi si forte in hujusmodi deliberationibus omnes vel saltem major pars concordare non valeant tunc Comes Senescallus Comes Constabularius Comes Marescallus vel duo illorum eligent viginti quinque personas de omnibus paribus Regni scilicet duos Episcopos tres Procuratores pro Clero duos Comites tres Barones quinque Milites Comitatuum quinque Cives quinque Burgenses qui faciunt viginti quinque Et illi viginti quinque possunt eligere ex seipsis duodecim condescendere in eis ipsi duodecim sex condescendere in eis ipsi sex ad tres condescendere in eis illi tres in paucioribus se condescendere non possunt nisi optentâ licentiâ à Domino Rege Et si Rex consenceat ipsis tres possunt in duos de illis duobus aliter poterit in alium descendere Et ita demum stabit sua ordinatio super totum Parliamentum ita condescendendo à viginti quinque personis usque unam solam personam nisi numerus major concordare valeat ordinare tandem una persona ut est dictum pro omnibus ordinabit quòd cum seipsâ discordare non potest Salvo Domino Regi ejus Consilio quod ipsi hujusmodi ordinationes postquam Scriptae fuerint examinare emendare valeant si hoc facere sciant velint Ita quod hoc faciant ibidem tunc in pleno Parliamento de consensu Parliamenti non retro Parliamentum N. VII Vid. CAP. 7. F. 70. SEneschallia Angliae pertinet ad Comitem Leicester pertinet ab Antiquo Et sciendum est Sir John Cotton 's Library Tit. Tiberius n. 8 De Officio Seneschalliae quod ejus officium est supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes ministros legum infra idem Regnum temporibus pacis guerrae c. Item officium Seneschalliae est quod si Rex habeat malos Consiliarios circa eum qui sibi dant Consilia ad faciend talia quae sunt apta prona ad dedecus suum aut exhaeredationem suam ad publicum malum destructionem populi sui tunc Seneschallus Angliae assumpto secum Constabulario aliis Magnatibus aliis de Communitate Regni Angliae mittent ad hujusmodi Consiliarium Regis quod ipsum Regem ita ducere consulere desistat de hujusmodi malis consiliis prius Regi factis mentionem faciend Quod ab eo ejus presentiâ recedat moram cum eo quod dedecus suum damnum publicum ut predictum est non faciat Quod si vero faciat tum mittent ad Regem quod ipsum ab eo amoveri faciat ejus consilium non audiat pro eo quod à toto populo malus Consiliarius inter Regem suum Populum praesumitur Quod si Rex non fecerit aliâs pluries mittent tam Regi quam ei Quod si demum non Rex nec hujusmodi Consiliarius de hujusmodi missionibus supplicationibus advertat sed ea potius facere neglexerit tum pro bono publico licebit Seneschallo Constabulario Angliae Magnatibus aliis de Communitate Regni capere corpus ejus salvum custodire usque ad proximum Parliamentum seisire res redditus omnes possessiones suas donec judicium suum attenderit subierit per considerationem istius rni in Parliamento N. VIII Vid. CAP. 7. F. 72. JOhannes Dei gratiâ c. sciatis nos concessisse presenti cartâ nostrâ confirmasse dilecto fideli nostro Willielmo Marescallo Comiti Pembroke haeredibus suis Magistratum Marescalciae Curiae nostrae quem Magistratum Gilbertus Marescallus H. Rs. avi patris nostri Johannes filius ipsius Gilberti disrationaverunt coram praed Rege H. in Curiâ suâ contra Rob. de Venoiz contra Willielmum de Hastings qui ipsum Magistratum calumpniabantur Et hoc judicium quia defecerunt se de recto ad diem quem eis inde constituerat Quare volumus firmiter precipimus quod predictus Willielmus heredes sui post eum habeant teneant pred Magistratum cum omnibus ad illum pertinen bene in pace liberè quietè integrè honorificè de nobis heredibus Testibus W. Lond. E. Elyens H. Sarum Ep. Dat. per manus H. Cant. Arch. N. IX Vid. CAP. 9. F. 93. Rot. Parl. 1. H. 7. Presentatio Praelocutoris SUbsequenterque idem dominus Rex prefatis communibus ore suo proprio eloquens ostendendo suum adventum ad jus Coronam Angliae fore tam per justum titulum haereditanciae quam per verum Dei Judicium in tribuendo sibi victoriam de inimico suo in Campo declaravit quod omnes subditi sui cujuscunque statûs gradûs seu conditionis fuerint haberent tenerent sibi haeredibus suis omnia terras tenementa redditus haereditamenta sua eisdemque gauderent exceptis talibus personis quales suam Majestatem Regiam ostenderunt qui juxta eorum demerita in presentis Parliamenti Curiâ aliter essent plectendi Titulus Regis Item Quaedam Billa exhibita fuit praefato Domino Regi in praesenti Parliamento per Communitates Regni Angliae in eodem Parliamento existentes hanc seriem verborum continens To the Pleasure of Almighty God the Wealth Prosperity and Suertie of this Realm of England to the singular comforth of all the King's Subjects of the same and in avoiding of all Ambiguities and Questions Be it ordeigned Stablished and Enacted by Auctoritee of this present Parliament that the Inheritance of the Crounes of the Realmes of England and of France with all the preeminence and dignitie Roiall to the same pertaining and all other Signeries to the King belonging beyond the See with th' Appurtenaunces thereto in eny wise due or perteineing be rest remaine and abide in the moost Roiall Personn of oure nowe Soveraigne Lord King Henrie the vii th and in the Heires of his Body lawfully comeing perpetually with the Grace of God so to endure and in none other Quà quidem Billâ in Parliamento praedicto lectâ auditâ maturâ deliberatione intellectâ eidem Billae de assensu Dominorum Spiritualium Temporalium in dicto Parliamento existen ad requisitionem Communitatis praedictae necnon authoritate ejusdem Parliamenti respondebat eidem in formâ sequenti Nostre Seigneur le Roy del assent des Seigneurs Espirituelx Temporelex esteaniz en cest Parlement a la request des Commens avantditz le voet en toutz poyntz The King our Soveraigne Lord remembering Restitutio Henrici Sexti 1. H. 7. n. 16. how ayenst all Rightwisnes
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
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
thinges paste as also in thinges present And that most certeynly there was never either eny such Letters Patentes past under the greate Seale of England nor yet eny such Will signed with his most gratious Hande as sufficient Witnesses yet lyvinge can well testify Theise two maters touchinge the legitimation and validitie of the Will in that behaulf of eny indifferent Person I trust may be acceptid as fully and truly answeryd And thus lovinge Reader have I vtteryd and layd before the theise cases as they ar And whome wold it not moove to commpassion to behould the state of these thinges or whose English Harte wold it not grieve even to every parte of it to fynde any such Bookes countenanced or accompt made of such Bastardie slippes as appeerith by those Opinions and Bookes spredde to enherite so noble a Realme our most deere and natural Countrey as though it wer either so infortunate so curs'd of God or else so farre from Mercy that such shuld be fitter for the same without eny colour of eny just Title to plague it with most infamous Dissention Warre and all other Confusion and so to bring it to vtter ruyne and destruction then those to whome of right it ought both by the Lawe of God and Man most iustly to belonge vnto What is he that esteemith or tendrith the prosperyte of the Countrie in the favour of God or the good fame or fortune of the Worlde that wold seeke to exalt vnto the Government therof such infamous and spottyd titles with which is lynked alwayes such wrathe of God and th'Effectes thereof with such continuall stryfe and contention before the vnstaynid true and perfect Inheritors apoynted by him and by his Lawes to sette forth his Glory and by whose Justice such ar alwayes prosperyd and defendid to their own honour and the great weale and safety of their Subjects as longe as they remayne in his feare and obedyent vnto his Lawes and Ordinances But what might be sayd further Yf those in greate face and shew of great zeale and iustice and in greate authoritie hath so much neglected their Duties and so much preferryd theire owne Ambitions and corrupte Desyres before the Honour and Service of the Realme as such have not sticked to further these spottyd and coulerid Titles and also to encourage other to fall vnto the same What a case is this that such so placyd shuld go aboute to extol such motions of Dishonour and ruyne of their naturall Countrey and yet remayne with their Callinge in so greate countenance of honour for their Good and faithful Service O England blame thow not the inferior sorte so much that doth but receyve these thinges as it is ministryd unto them by whose credyte and persuasion they may be easily abusd But seeke thou to decifer and discover such Abusers as have more regard to mainteyne theimselfes by whose overthrowe or what wronge so ever it be then to proceede dirertly to thy Service either to the Honour of God Author and Favorer of all Truth or els to thy Weale Prosperytie and quietnes And I exhorte the and exhorte the agayne not to suffer thy self to be ledde and caryd away with eny such foule iniurious Perswasion either of ambitious Abuser or such other corrupt or vnadvised Person For such foule iniurious and false persuasions ar apt to no other ende but to serve Sedition Discord and Dissention in the and overthrow also all those that dealith with theim And how hard and perilous it is to obteyne a Crowne by eny injust or sinister Title and how much harder the things gotten it hath ben to contynew and keepe the same we may daily see and learne in dyvers Historyes of sondry places by such lyke Fortunes and of the in that of K. H. 4. H. the 5. and H. the 6. who after they had withholden the Crowne by wronge with the losse of meny a Manne's Lyfe two discentes wherin passed forty Yeres and more at last were overthrowne and quite confoundid and it restoryd to Kinge Edward the Fourth that rightly requyrd and lawfully obteynid the same Compare these togither and consider what multitude of Friends such continuance in possession was lyke to make and of what fame and worthynesse the Princes were and yet that the 3 d. and last could not enioy the same all that notwithstandinge And it may be supposd that there is fewe so simple so farre from reason or so affectionate but may thinke that K. H. the 6 was much more abler to defend so longe a contynued Possession then the Lady K. or eny comminge of the French Queene is able both to gayne the lyke and afterwards to keep it By which and such other Examples we may call to mynde that God doth not favour those that doth vsurpe with eny injust or indirect Title agaynst his Will and Ordinance And what greater mishappe discomfort or Misery can happ to eny then after the liftinge up to such a degree or th' attaininge of eny such desire in a moment to lose all and to be cast downe to vtter confusion both they and all their Freendes for ever Consider for the love of God the Honour of your Countrey the Suretie and Quietnes of your Freendes and Neighbours Kynsemen and deere Country-folkes remember the Threttes pronouncyd of God against all Injustice and call to remembrance where aboute yow goe ye that study and endeavour your selfes to sette forth these false and deceyvable Titles in the parte or favour of eny and beholde that insteade of the shadow of your vndewe Desire to the greate hazard and perill of the tranquill and peaceable state of your most deere Friendes and natural Contrey that yow do but procure bothe to such as how wold seeme to favour and also vnto your selfes such danger grief and sorowe with such yll and adverse Fortune as your most bitter and dedly Enemyes could no way wysh yow greater And to conclude thus much is due to th'Answer of the Bookes abroade with th' advancement of the Lady Mary the French Queen's Issue and settinge foorth of these Cases of Bastady before yow that after these maters thus manifestyd there shuld insewe of such Errors the lesse inconvenience and that ye might thereby hereafter the better judge what were in these cases the fittest both for the honour of God and the Weale prosperyte and quyetnes of the whole Realme But thow O England ar by the Grace and greate Mercy of God vnder the Gouernment of our most Gracious and Prudent Queene who hath the same tender and lovinge care of the Weale-Publike that the most carefull and lovinge Mothers have not greater for the Weale Saufety of theire most deere and best-belovyd Chyldren of the which there may be daily seene most apparente and manifest Examples Her maiestie havinge governid thee with the noble assistance of her Counsell so meny Years without manifest Danger and greate perill of Civill Warre and most miserable slaghter as the case yet standith it is not
to be thought but that the Floude of Bloode from which God defend thee that otherwise might be shedde doth continually flowe before her Highnes pitifull and most mercifull Eyes And that her Maiestie taryeth but some goode tyde most carefully to provyde for the same as may be possible Which it may please God to graunte vnto her Highnes for th'Honer of Him and the greate Benifyte of the whole Realme with most convenyent speede Amen 20. Martii 1565. God save Queene Elizabeth REFLECTIONS ON Bishop Overall's CONVOCATION-BOOK M.DC.VI CONCERNING THE GOVERNMENT OF GOD's CATHOLICK CHURCH AND OF THE Kingdoms of the Whole World LONDON Printed in the Year M.DC.XC Reflections on Bishop Overall's Convocation-Book 1606. c. IT having been my purpose to consider all Objections of any weight in themselves or from the Authority of Persons which should occur to me against the Right of Their Present Majesties and the Justice of their Undertaking our Deliverance I ought not to pass by Bishop Overall's Convocation-Book compos'd in the time of James I. Licensed by the late Bishop of Canterbury since his disowning this Government and Printed as it is to be presumed with a manifest Intention of undermining it for every Man may discern that the Scheme of Government there drawn for the whole World is contrary to the Foundation of our Present Settlement but tho the Hypothesis is laid together with much Subtilty nothing but Infallibility can give it Authority and to me it seems a piece of Presumption only short of that of the Romish Church For having made a Collection from Sacred and Prophane History and the Apocryphal Writings tho of the last they say P. 64. they mean not to attribute any Canonical Authority unto them nor to establish any Point of Doctrine they Canonically condemn of Errors all that agree not to their Inferences and Conclusions upon a state of Fact which at least may be false This single Observation might make it needless to consider more particularly what is there said especially when I add this further That it would make Scripture Examples under the Jewish State to have the force of Precepts now which if they have then the Examples of Jehu in killing wicked King Joram then his Subject and of Othniel P. 46. 2 Kings Judges and Ehud who rescued the Israelites the one from the King of Moab the other from the King of Mesopotamia who had brought them under Subjection may serve for Rules in the like Cases If they do not then to what purpose do they in other Instances bring Presidents of God's dealing with the Jews of his chusing and anointing their Kings and the like With these Antidotes we may venture upon a further tast of the Doctrines The Foundation of all is the Patriarchal Power of Adam which they suppose to have been absolutely Monarchical all the World over that Noah had the like Authority all his Life but that he divided the whole World among his Three Sons upon which they conclude P. 84. That if any Man affirm Can. 35. That God ever committed the Government of all the World after Adam 's and Noah 's times to any one Man to be the sole and visible Monarch of it he doth greatly err And another Error which they Canonically condemn is of them who hold that Christ doth not allow the distributing of this his one Vniversal Kingdom Lib 2. Can. 4. p. 147. into divers Principalities and Kingdoms to be Ruled by so many Kings and Absolute Princes under him Upon the whole the Fatherly Power was absolute in Adam then in Noah then in his Three Sons together and ever after in all the Princes in the World Can. 2. and as they affirm in relation to Adam's Monarchical Power that it rose not from any choice of the People neither say they is it deduced by their Consents naturally from them P. 3. Which is meant of the Powers which now are in the World And yet if I mistake not they elsewhere own that the Consent of the People may be requisite to the legitimating some Governments when they justify Mattathias P. 67. who being moved with the Monstrous Cruelty and Tyranny of Antiochus made open resistance the Government of that Tyrant being not then either generally received by Submission or setled by Continuance wherein the Consent or Submission of the People is owned to be material The consequence of which will reach a Prince that Exercises a Power beyond what has been submitted to or setled But admit their Notion of the Absolute Power of the Father should hold while the World was but one Family and the Father might be supposed to be the sole Proprietor I doubt they cannot advance one step further without meer Fictions of their own Imaginations or as vain and uncertain Tradition If we attend to the sacred Text freed from their imposing Comment Noah's Sons are by God himself made joynt Proprietors with him Gen. 9.1 2 For the Text says God blessed Noah and his Sons and said unto them Be fruitful and multiply and replenish the earth And the fear of you and the dread of you shall be upon every Beast of the earth and upon every fowl of the air upon all that moveth upon the earth and upon all the fishes of the sea into your hand are they delivered If this Donation had no effect as to the Sons in the life-time of the Father neither according to the Patriarchal Scheme could the younger Sons have any Benefit in the life-time of the Elder wherefore either here was a joynt Propriety in all and consequently the Distribution must proceed from an express or tacit Consent of the Proprietors or else they must be beholden to Jewish Tradition for the establishing their Christian Canon concerning Government For two things I must confess we are obliged to them 1. For pathetically describing the unhappiness of the Jews and how Religion went in those days P. 72. when the Priests had gotten the Reins into their own Hands 2. For observing That the Pharisees the most proud and stubborn of the Jewish Sects P. 79. were the only Men who refused to swear Allegiance to Herod and Caesar Can. 30. yet they say If any Man shall affirm that Jaddus the Jewish High Priest having sworn Allegiance to Darius might have lawfully born Arms against him he doth greatly err This is in a Canon which they raise from the Fact in Josephus of Jaddus's refusing to assist Alexander in his Wars and becoming Tributary to the Macedonians as he had been to the Persians and this after Alexander had overthrown Darius who escaped by Flight The Jewish High Priest seems to put words into the Mouth of our late Archbishop returning for answer That he might not yield thereto because he had taken an Oath of Allegiance to Darius which he might not lawfully violate whilst Darius lived Compare this with the next Canon according to the Analogy of their Doctrine and see
how it provides for the Security of Princes and Obedience to their Governments Can. 31. If any Man therefore shall affirm either That the Jews generally both Priests and People were not the Subjects of Alexander after his Authority was setled amongst them as they had been before the Subjects of Babylon and Persia or that they were not all bound to pray for the long Life and Prosperity both of Alexander and his Empire as they had been bound before to pray for the Life and Prosperity of the other said Kings and their Kingdoms whilst they liv'd under their Subjection or consequently that they might lawfully upon any occasion whatsoever have offered Violence and Destruction either to their Persons or to their Kingdoms for the long continuance and Prosperity whereof they were bound to pray or that after the Jews were deliverred from their Servitude under the Kings of Syria and the Government over them was setled in Mattathias's Posterity it was lawful for the People upon any occasion to have Rebelled against them or to have offered Violence to their Persons He doth greatly err The Justice or Injustice of the War on either side between Darius and Alexander are made no part of the question but here are two Princes both suppos'd Absolute with all Adam's Power over their respective People staking their Kingdoms upon the chance of Battle one of them is conquered and runs away yet according to our Canonists the Conqueror is not entituled to the Fatherly or Patriarchal Power over the other's People but it is suspended at least during the Life of the King that was beaten and the Authority not setled all that while and if the Monarchy was Hereditary it may be yet more difficult when to fix the Settlement If it is admitted to be Setled in the life-time of the ejected and conquer'd Prince and that it is a duty to pray for the Life and Prosperity of the Conqueror and upon no occasion to offer any Violence to his Person or Kingdom yet according to these Canonists they were bound at least during the Life of the Conquered Prince to give no active Assistance to the other in Person or Contribution And thus it might be allowable to mock God Almighty while they pray for that to which they will not contribute the means in their Power or else their Prayers were to have such a mental Reservation as some have who pray for King James while they pray for The King But if they were to pray for Alexander's Prosperity without reserve one would think it was lawful at least to Fight for him against Darius notwithstanding the Oath of Allegiance taken to Darius by reason of the Authority which he had lost If any one shall say That this Convocation-Book was innocently published at this time let him read the following Canon If any Man therefore shall affirm Can. 28. either that the Subjects when they shake off the Yoke of their Obedience to their Sovereigns and set up a Form of Government among themselves after their own Humours do not therein very wickedly or that it is lawful for any Bordering Kings through Ambition and Malice to Invade their Neighbours Or that the Providence and Goodness of God in using of Rebellions and Oppressions to execute his Iustice against any King or Country doth mitigate or qualify the Offences of any such Rebels or Oppressing Kings or that when any such new Forms of Government begun by Rebellion are after thoroughly Setled the Authority in them is not of God or that any who live within the Territories of such new Governments are not bound to be Subject to God's Authority which is there executed but may Rebel against the same Or that the Jews either in Egypt or Babylon might lawfully for any Cause have taken Arms against any of those Kings or have offered any Violence to their Persons He doth greatly Err. If this be taken according to any rational or so much as probable Account of Government in General particularly applied to the English Constitution I see no danger in admitting that People ought not to throw off the Yoke of Obedience and set up a Form of Government after their own Humours and that it is not justifiable in any Bordering King or Prince through Ambition and Malice to Invade his Neighbours And yet this would not in the least condemn either the People of England in shaking off a former illegal and arbitary Yoak while yet they retain the ancient Form and Fundamental Rights of the Government or our Present Sovereign in his Heroical Undertaking our Deliverance But if all Princes are as Absolute as their Notion makes them the Nation had no Ground of complaint and His Present Majesty's Expedition would fall under the Imputation of Ambitition or Malice 't is certain that no just cause could be assign'd for it upon their Principles and yet these would as well condemn our Dissenting Bishops of Disobedience to the Late King in not complying with the Commands of a Prince whom this Book would make Absolute And of this the Archbishop would have done well to have bethought himself when he gave his License for the Church-Militant to put on this old rusty Armor which hung up without use for above eighty years Vid. Advertisement called Anno 1603. continued to 1610. had been full three if not not six Years in hammering out and was brought forth in this Critical Time to do Wonders for their suppos'd King of Divine Right of their making at least if not of God's Whilest the Clergy in that and following times Wrote and Preached for Preferments and Condemn'd all Notions which lay in their way to it it is to be feared that they incurr'd the Curse pronounced from more Divine Authority against him that removes his Neighbours Land-mark And he that would Model the English Government by those of the East of old set up and maintain'd by Confusion would do well to transplant his Family into Turky where he may find one of the truest Patterns of the fancied Patriarchal Government But if that or the Anticyrae to which an old Romam would have advised them be too far for them to Travel in their Canonical Habit they may take a step into France where its Monarch assumes and exercises a Power according to their Primitive Stamp Yet the latter part of the foregoing Canon tells you That you are bound to be subject to God's Authority even in those new Governments which are set up after the Humours of the People So that fully to maintain their Passive Character even in the Case of Usurpation and Introducing a new Form contrary to the Fundamental Constitution they are bound to sit still and never to Assist to Restore their Rightful Prince or ancient Form of Government but should trust Providence or rather tempt it to forsake them to their utter destruction But they who would be led by the Authority of these Canons to condemn our present Settlement I hope will learn even from thence to submit to it and attempt nothing against it and then I doubt not but there are brave English Men enough to defend it from all Foreign Force FINIS
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
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
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
upon the Innocent Prince E. 5. in whose Name he first took the Government upon him and either terrified or cheated the People into a Compliance with his Pretences Tho I have not the vanity to believe that any thing of my own can weigh with them who have thought otherwise before especially if they have listed themselves on a Side contrary to that which no Disadvantages can make me repent of Yet I cannot but hope that the Authorities which I have produc'd will occasion some consideration till they are either evaded or disprov'd And being all legal Objections are answered nor can any scruple of Conscience be here pretended without much less against Law What hinders but that we should exert our utmost in the Service of that Lawful Government from which we receive Protection and may expect Rewards for vertue at least the Defence of it if we do not madly quit the ground which we have gain'd from them who have hitherto made Vertue the greatest Crime Wherefore for us now to look back after we have set our hands to the Plow would be not only to distrust that Providence which has given such a wonderful Encouragement to Perseverance but were enough to tarnish all our Actions with the Imputation of making the publick Interest a Pretence for carrying on our own 'T is an happiness indeed when they are twisted and thrive together But the Cause is such as a man ought not to fear to dye nay to starve for it And how improsperous soever a man's endeavours for this may prove yet it may be a comfort to have sown that Seed which may grow up for the benefit of future Ages Nor ought he to repine because another man hath guilded over his Name by what he has got by the ruin of his Country or may have insinuated himself again into Opportunities to betray it Let it be enough for him how much soever slighted and contemn'd while he lives to embalm his Memory by a steddiness to Truth and the Interest of his Country not to be shaken by cross accidents to himself or the Publick Cause Let him still act uniformly while others live in perpetual Contradictions or Varieties their Actions and their Principles thwarting themselves or each other or varying with the State-weathercocks Let them violate the Laws out of Loyalty unchurch all Protestant Churches but their own out of Zeal against Popery narrow the Terms of Communion to spread the National Religion confine all advantages to that Communion for the Publick Good make their King the Head of a Party to strengthen his hands against his Enemies Deliver up Charters and Retake them gelt of their Noblest Priviledges in performance of their Oaths to preserve them fight against their King and yet urge the Obligation of Oaths requiring an unalterable Allegiance to his Person assert that the Power is inseparable from him and yet may in his Absence without his Consent be transferr'd to a Regent not to be Reassumed when he should think fit to return grant that he has broken the Contract yet contend that he retains that Power which he received from the Contract Or that tho the Contract be broken the Throne is not vacant Or if it be vacant yet an Heir has a Right and so it is vacant and not vacant at the same time Or that after one has broken a Condition upon which he took an Estate to himself and his Heirs in Fee-Simple or Tail another shall enjoy it as Heir to him and that in his Life-time invite a Deliverer yet reject the Deliverance Upon such Principles as these I find an Eminent English Prelate censur'd as a Deserter of his Church for going about Letter to the B. of L. according to his great Learning to justifie the Oaths taken to the present Government And thus the Cause of J. 2. is made the Cause of the Church of England Certain it is whatever is now pretended 't is more difficult to justifie the taking up or promoting Arms against a Deliverer than an Oppressor And if Arms against the last were lawful even with the prospect of involving Thousands in the Miseries of War much more are they in Defence of that Power which has restor'd those Liberties which the other Invaded and reassured the Publick Peace And whoever first engaged and now draw back not only brand themselves for Traitors but make it evident that Ambition Revenge or some ungenerous Design animated their Undertakings And as I doubt not but they will meet with their due Reward perhaps that Success which has attended the Heroical Actions of our present King may go further with such men to keep them to their Duty than the most demonstrative Proofs of Right which they generally measure by the Event And as no Cause or Action is just in their eyes which is not prosperous they in the language of the Poet are always on the side of the gods But few are in this Point such Philosophers as Cato Victrix causa Diis placuit sed victa Catoni FINIS APPENDIX N. I. Vid. sup CAP. I. F. 4. Thô those Authors which I have referr'd to in the Book have sufficiently expos'd Sir Robert Filmer's Notions yet the following Observations made by me some Years since upon the first applying of my Thoughts to such Studies may be more suited to meaner Capacities at least they who will not give themselves time to read those Elaborate Treatises may be diverted with this Summary of Inconsistencies which Numbers swallow down as blind Men do Flies Sir Robert Filmer and some of our Divines plaid against one another in relation to Ecclesiastical and Civil Power and Sir Robert against Himself SInce Sir Robert Filmer's Writings are recommended to the World by the Elogium of the Infallible Dr. Heylin Vid. Heylin 's Ep. to Sir Ed. Filmer Certamen Ep. p. 208. Ut sup Cap. 1. that Man that professed in print that he could not reckon the early Death of the Wonder of his and following Ages Edw. the 6 th for an Infelicity to the Church of England Pref. to Hist of Ref. You cannot but think that this his Monarch in Politicks whose Death he laments was not so ill principled in himself nor inclin'd to embrace such Counsels but that his Affections to the Church were as exemplary as his Books have manifested them to be to the State But me-thinks Dr. Heylin by subscribing to Sir Robert's Judgment in Politiques and consequently to his Anarchy of a mixt Monarchy does thereby confess that the Church is wholly subject to the Law of the State and that the Civil Power is comprehensive of the Ecclesiastical the dividing of the Power being utter Anarchy and Confusion Nay that excellent Discourse call'd Patriarcha Ep. to Sir Edw. Filmer which the Doctor by way of Prophesy for I am sure 't is not to be imagin'd in the way of Nature tells us would when publish'd give such satisfaction to all our great Masters in the Schools of Polity that all