than they are lawful and honest 4. Saving the Power of a Superior Whence if a Son in his Father's Family swear to do a Thing lawful in it self but the Father not knowing it commands another thing which hinders the doing that which is sworn he is not bound by his Oath because by the Divine Natural Law he is bound to obey his Father And he who has sworn not to go out of his House being cited to appear before a Lawful Judge is bound to go out notwithstanding his Oath the Reason is because the Act of one ought not to prejudice the Right of another These two last Instances added to the Consideration of a Legal King will qualifie the Oath declaring it not lawful upon any pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person or against those that are Commissioned by him This I think I may say with warrant from Bishop Sanderson That no Man is bound by this Oath to act against Law under colour of the King's Commission nor to permit such Actions if it be in his power to hinder them the Common Fundamental Law being in this Case the Superior which he is to obey and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary To Bishop Sanderson I may add Grotius who runs the Prerogative of Kings as far as any Man in reason can Yet he allows of reserved Cases in which Allegiance may be withdrawn tho' there is no express Letter of Law for it As 1. Where the People being yet free command their future King by way of continuing Precept Whether there be any such with us can be no doubt to them who read the Coronation Oaths from time to time required and taken upon Elections of some Kings and the receiving others by reason of prior Elections and Stipulations with their Predecessors 2. If a King has abdicated or abandon'd his Authority or manifestly holds it as derelict indeed he says he is not to be thought to have done this who only manages his Affairs negligently But surely no Man can think but the Power of J. 2. is derelict And he cites three Cases wherein even Barelay the most zealous Asserter of Kingly Power allows Reservations to the People 1. If the King treats his People with outragious Cruelty 2. If with an hostile Mind he seek the Destruction of his People 3. If he alien his Kingdom This Grotius denies to have any effect and therefore will not admit among the reserved Cases But if no Act which is ineffectual in Law will justifie the withdrawing Allegiance then none of the other Instances will hold for to that purpose they are equally ineffectual Yet who doubts but the King doing what in him lies to alien his Kingdom gives Pretence for Foreign Usurpations as King John did to the Pope's And whoever goes to restore the Authority of the See of Rome here be it only in Spirituals endeavors to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion Nor can it be any great Question but the aliening any Kingdom or Country part of the Dominion of England will fall under the same Consideration which will bring the Case of Ireland up to this where the Protestants are disarm'd and the Power which was arm'd for the Protection of the English there is put into the Hands of the Native Papists so that it is not likely to be restor'd to its Settlement at home or dependence upon England without great Expence of Blood and Treasure Even the Author of Jovian owns that the King's Law is his most authoritative Command and he denies that the Roman Emperour had any Right to enslave the whole People by altering the Constitution of the Roman Government from a Civil into a Tyrannical Dominion or from a Government wherein the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. Tho' by the Roman Lex Regia which himself takes notice of the People had transferred all their Power to the Emperor yet we see the highest Asserter of Imperial Power allows of Reservations If says Bishop Bilson a Prince should go about to subject his Kingdom to a Foreign Realm or change the Form of the Common-wealth from Imperie to Tyranny or neglect the Laws establish'd by Common Consent of Prince and People to execute his own Pleasure in these and other Cases which might be named if the Nobles and Commons join together to defend their ancient and accustomed Liberty Regiment and Laws they may not well be accounted Rebels And soon after he speaks of a Power for preserving the Foundation Freedom and Form of their Commonwealths which they forepriz'd when they first consented to have a King. Where his meaning cannot be restrain'd to express Provisions excluding such as may be equitably intended And not to heap Authorities with this agrees the Divine Plato who after he has affirm'd that the highest Degrees of Punishment belong to those who will misguide a Ship or prescribe a dangerous new way of Physick having brought in Socrates asking whether Magistrates ought not to be subject to the like Laws himself asks What shall be determined if we require all things to be done according to a certain Form and set over the Laws themselves one either chose by the Suffrages of the People or by Lot who slighting the Laws shall for the sake of Lucre or to gratifie his Lust not knowing what is fit attempt to do things contrary to the Institution This Man both he and Socrates condemn as a greater Criminal than those which he had mention'd whose Crime he aggravates as 't is an acting against those Laws which thro' a long Experience had been ordain'd by their Counsel and Industry who had opportunely and duly weighed every thing and had prevail'd upon the People to submit to them 2d To proceed to Positive Law I shall shew how the Contract between Prince and People stood and hath been taken both before the reputed Conquest and since Where 't will appear 1. That Allegiance might and may in some Cases be withdrawn in the Life-time of one who continued King until the occasion of such withdrawing or Judgment upon it 2. That there was and is an establish'd Judicature for this without need of recurring to that Equity which the People are suppos'd to have reserv'd 3. That there has been no absolute Hereditary Right to the Crown of England from the beginning of the Monarchy but that the People have had a Latitude for setting up whom of the Blood they pleas'd upon the determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force 4. That they were lately restored to such Latitude 1. If the King not observing his Coronation-Oath
Lords took upon him the Charge of the Kingdom as forfeited to him by breach of the Covenant establish'd in Parliament Yet this gave him no sure Settlement for the Popularity of the Earl of Warwick drove him out of the Kingdom without striking a Stroke for it Upon which H. 6. was again restor'd to his Kingly Power and Edward was in Parliament declared a Traytor to the Country and an Vsurper of the Realm the Settlement upon R. and his Heirs revok'd and the Crown entail'd upon H. 6. and his Heirs Males with Remainders over to secure against Edward's coming to the Crown Yet the Death of the Earl of Warwick having in effect put an end to King Henry's Power he was soon taken Prisoner and put to death as his Son had been before and then Edward procures a Confirmation in Parliament of the Settlement under which he enjoy'd the Crown Thus as the Power of the People or Great ones of Interest with them turn'd the Scales from time to time so 't was their Consent which fixt them at last during the the Life of E. 4. It may be said That whatever the Law or Practice has been anciently neither can now be of any moment by reason of the Oath requir'd by several Statutes declaring it not lawful upon any Pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person And 2. The Clause in the Statute 12 Car. 2. whereby it is declar'd That by the undoubted and fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament or out of Parliament nor the People Collectively or Representatively nor any other Persons whatsoever had have hath or ought to have any Coercive Power over the Persons of the Kings of this Realm I shall not here insist in answer to the first on the necessity of a Commission and a King continuing Legal in the Exercise as well as Possession of Power nor the difference between the Traiterous Acts of single Persons and the Revolt of a Nation nor yet upon the Authority of the Common Law whereby a Constable or other Officer chose by the People may act without any Authority from the King. And for the latter as Coertion is restrain'd to the Person of the King the declaring against that is not contrary to the Authorities for discharging Allegiance by a Judicial Sentence or otherwise by vertue of equitable and supposed Reservations provided a tender Regard to the Person be still observ'd But if Proceedings to free our selves from his Authority fall under this Coertion then I shall offer something which may remove both this and the other from being Objections to what I have above shewn To keep to what may equally reach to both Authorities I shall not urge here That these Statutes being barely Declaratory and enacting no Law for the future introduce none so that if the Fundamental Laws shall appear to be otherwise the Declarations do not supplant them Nor yet to insist upon a Rule in the Civil Law That the Commonwealth is always a Minor and at liberty to renounce the Obligations which it has entred into against its Benefit which is the Supreme Law. But I shall stop their Mouths who object these Statutes and maintain That according to what themselves receive for Law the Parliaments which enacted these Declarations had no power so to do and then the Law must stand as it did For this let us first hear Mr. Sheringham whose Authority few of these Men dispute They that lay the first Foundation of a Commonwealth have Authority to make Laws that cannot be alter'd by Posterity in Matters that concern the Rights both of King and People For Foundations cannot be remov'd without the Ruine and Subversion of the whole Building Wherefore admit the Acts had been duly made according to him they would be void if the Fundamental Law were as I have shewn However I am sure I can irrefragably prove to them who will not have a Nation sav'd without strict Form of Law That the Parliament which made those Acts had no Power at the time of making them being by the express Words of a former Statute repeal'd The Triennial Act 16 Car. 1. provides in a way not easily to be defeated not only for holding a Parliament once within Three Years at least but that all Parliaments which shall be Prorogu'd or Adjourn'd or so continued by Prorogation or Adjournment until the Tenth of September which shall be in the third Year next after the last Day of the last Meeting and Sitting of the foregoing Parliament shall be thenceforth clearly and absolutely dissolv'd Now say I that Parliament which enacted these Laws had sat beyond that Time Ergo c. These were made in the Parliament next after the Convention which brought in the King which they I am sure will not call a Parliament Wherefore we must go back to the first Long Parliament which upon their own Rule Rex est caput finis Parliamenti was dissolv'd by the Death of C. 1. Anno 1648. notwithstanding the Act for making it Perpetual which indeed by the Words of it seems only to provide against any Act of the King to the contrary without their Consent But by the Death of the King that Parliament lost the Being which before it had as it was under him when it was Parliamentum nostrum the Parliament of Charles the First and so expired An. 1648. by Act in Law. And perhaps it s own breaking up in Confusion before was in Law an Adjournment sine die working a Dissolution by either of which that Parliament was dissolv'd more than three Years before the Parliament which made the Statute in question which Parliament assembled An. 1661. and was ipso facto dissolv'd when it attempted to make those Statutes it having been continued by Prorogation or Adjournment beyond the Tenth of September in the Third Year after the Dissolution of the last Parliament of Charles the First which was the next foregoing Legal Parliament according to strict Form for the Parliament which brought in C. 2. Anno 1660. was not summon'd by the King's Writs consequently the Parliament 1661. having no Power after it had continued as above whatever was the Ancient Law in this Matter remains as it did before those Laws If it be Objected That the Necessity of the Times had dispens'd with the Letter of the Triennial Act as to this Particular 1. They who would plead these Statutes cannot urge it since they will not allow of greater Necessity to authorize the Maintaining and Restoring the Constitution But surely however Necessity might support other Laws it shall not such as alter the Constitution but every Legal Advantage shall be taken for restoring it 2. The Necessity was not absolute for the First Parliament of Charles the Second might continue together as long
as they could sit without Prorogation or Adjournment and be good for a day at least time enough to have repealed the former Statute as to that part and to qualifie themselves for a longer Continuance In short They with whom our Dispute is are either for the Unalterableness of Fundamentals according to which what I have shewn remains notwithstanding all Efforts to the contrary or else all of a sudden they have a mighty Zeal for the strict Letter of the Law by which that Parliament which endeavour'd to alter the Fundamental Contract was ipso facto dissolv'd before such Attempt However since the Question is not about a Coercive Power over Kings but barely concerning Allegiance to them whenever he who was King ceases to be so either by the Act of God or the Law the Obligation of Allegiance necessarily determines as the subject Matter of it fails But lest the Liberty allow'd in extraordinary Cases be us'd as a cloak for maliciousness I shall restrain it with the Authority of the Learned Pufendorf In Contracts by which one is made subject to another this has the Right of Judging what the Subject is to perform and has also a Power conferr'd of compelling him to the Performance if he refuses which Coercive Power is by no means reciprocal Wherefore he who rules cannot be called in question for breaking his Contract unless he either wholly abdicate the Care of the Government or become of an hostile mind towards his People or manifestly with evil Intention depart from those Rules of Governing upon the Observance of which as upon a Condition the Subjects have suspended their Allegiance Which is very easie for any one who Governs always to shun if he will but consider that the Highest of Mortals are not free from the Laws of Humane Chance But that the Judicial Power of the People so qualified as above is not peculiar to England might appear by the Customs of most neighbouring Nations For Denmark Swedeland and Norway which had anciently three distinct Negatives in the Choice of a King I shall refer to Krantius particularly in the remarkable Story of their King Erick who was adopted Son of the Three Kingdoms Anno 1411. he having provok'd his People by the Outrages of his Officers and Soldiers he was oppos'd with Force by one Engelbert a Danish Nobleman transmitted down to Posterity with the fair Character of engaging in the Publick Cause neither out of love of Rule nor greediness of Gain but meer compassion to an opprest People This so generous an Undertaking was so justly Popular that Eric not able to stem the Tide withdrew from Denmark the Place of his usual Residence to Swedeland But Engelbert's Noble Cause found so few Opposers there also that the King as a Pattern to J. 2. privately ran away and recommended his Nephew in his stead but they told him plainly he was made King by Adoption and had no Right to surrogate another Him there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have receiv'd again upon Terms but he refusing the Three Kingdoms unanimously chose one of another Family For the Authority of the People even in France no longer since than the time of Lewis 11. Hottoman's Francogallia gives a large Proof Nor is the Emperor of Germany more exempt for the Golden Bull of C. 4. provides who shall sit as Judge or High-Steward when he comes to be Impeach'd And by that the Palatine of the Rhine has the like Power with that which Matthew Paris says the Earl of Chester had here as Count Palatine Nor is this in the Empire founded meerly upon that Bull for the Bull it self says Sicut ex consuetudine introductum dicitur As 't is said to have been introduc'd by Custom And Freherus gives an Instance of this before that Bull in the Case of King Albert whom they threatned to depose for killing his Leige-lord Adolphus With Freherus agrees Gunterus in his Octoviratus who says That the Palatine of the Rhine Major Domo to the Emperor is by Custom Judge of the Emperor himself or rather in the highest Matters declares the Sentence of the Electoral College And he cites several Authors to prove the like Office or Power to have been in divers Kingdoms and Principalities and names France England Arragon Spain Denmark Poland Bohemia c. And for France Loyseau in effect shews this Power to have belong'd to their Maior du Palais for he owns the Power to have been greater than the Roman Praefect of the Palace had and yet he cites the Words of the Emperor Trajan giving his Praefect a naked Sword which he enjoyn'd him to use against him if he misgoverned And Loyseau says That this dangerous Office was put down by the Kings of the Third Line that they might perpetuate the Crown in their Family This Office he supposes to have been split into the Conestable's Chancellor's Treasurer's and the Grand Maistre's du France or Count du Palais which he seems to resemble to an High Steward with us And I meet with an old English Author who affirms almost such a Power as is above-mention'd to have belonged to the High-Conestable of England His Words are these As God hath ordained Magistrates to hear and determine private Matters and to punish their Vices so also will he that the Magistrates Doings be call'd to account and reck'ning and their Vices corrected and punished by the Body of the whole Congregation or Common-wealth As it is manifest by the Memory of the ancient Office of High-Constable of England unto whose Authority it pertained not only to summon the King personally before the Parliament or other Courts of Justice to answer and receive according to Justice but also upon just occasion to commit him to Ward 3. There has been no Hereditary Right to the Crown of England by Proximity of Blood from the Fundamental Contract but the People have had a Latitude for the setting up whom of the Blood they pleas'd upon the determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force The Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any Consequence that the Dissolution of the Contract between the immediate Prince and People destroys the Form of Government for that depends upon a prior Contract which the People entred into among themselves And that by vertue of this to avoid endless Emulations Kings have generally from the first Erection of the English Monarchy been chosen out of the same Family appears beyond contradiction I know some talk of a Birthright and Inheritance in the Crown which is not founded in the Statutes but on the Original Custom and Constitution of the English Government which is an Hereditary Monarchy according to proximity of Blood. But I would
first second or third Heirs the mention of Heirs simply ought to be restrain'd to those only because the Nature or Quality of the thing granted ought to be attended to After the Death of Richard Duke of York his Son Edward the Fourth as I before observ'd took the Government upon him as forfeited by breach of the Covenant establish'd in Parliament However H. 6. being set up again ten Years after gets that Settlement by which E. 4. was to have benefit to be revok'd and the Crown to be entail'd on his Issue the Remainder to the Duke of Clarence younger Son to the Duke of York Afterwards E. 4. having success revives the Settlement 39 H. 6. Only that he attaints H. 6. with others of his Party Which Attainder was remov'd 1 H. 7. and declar'd contrary to due Allegiance and all due Order And not only the Attainder but that Act of Parliament it self was revok'd So that hitherto there had been no Title in the Heirs of Richard Duke of York or of Edward the Fourth but what was deriv'd under the Settlement of Henry 6. call'd an Usurper and Edward the Fourth's Treason depriv'd him of the Benefit even of that Settlement H. 7. indeed married the eldest Daughter of E. 4. But before that Marriage having conquer'd Rich. 3. he claim'd the Crown As his Words in Parliament were Tam per justum titulum haereditantiae quà m per verum Dei judicium in tribuendo sibi victoriam de inimico suo As well by just Title of Inheritance as by the true Judgment of God in giving him the Victory over his Enemy If it be ask'd how he could have a Right of Inheritance when the Daughter of E. 4. and his own Mother were alive It seems in the Judgment of that Parliament that E. 4. having acted contrary to his Allegiance due to H. 6. he and his had lost the Benefit of the Settlement reviv'd by his successful Treason and that this was lost even before the Revival was destroy'd by Parliament And then tho' H. 7. could not come in without an Election yet he as H. 4. before might have a sort of Inheritance according to a very witty Author who speaking of the Kingdom of Israel says Concludere licet regnum Israelis si stirpem spectas haereditarium certè fuisse at sanè si personas omnino electivum We may conclude that the Kingdom of Israel if you look at the Stock was certainly Hereditary but if at the Persons altogether Elective Be this as it will the Lords and Commons so far regarded King Henry's Claim that they not only receiv'd him for King but it was enacted by the Authority of the then Parliament That the Crowns of the Realms of England and France should rest in him and the Heirs of his Body lawfully coming perpetually and in NONE OTHER When they had thus done the Commons requested the King to Marry Elizabeth Daughter to E. 4. that by God's Grace there might be Issue of the Stock of their Kings So that this was only to preserve the Royal Blood not to give any new Countenance or Confirmation to his Title H. 8. enjoy'd the Crown not as Heir to his Mother but under the Settlement upon H. 7. Nor can it be said that he was in by Remitter since that Act under which his Mother should have deriv'd was Repeal'd And had it stood in force yet it would not have made the Title more Sacred unless it can be shewn that the Mother had a Title prior to the Act of Settlement 39 H. 6. the contrary to which appears by the former Account from Law and History H. 8. procur'd several Settlements of the Crown according as Love or Jealousie prevail'd in him In the 25th of his Reign 't was settled upon himself and his Heirs Males of his Body lawfully begotten on Queen Anne c. declaring the Marriage with Queen Katherin unlawful Remainder to the Lady Elizabeth Remainder to his own Right Heirs 26 H. 8. an Oath was enjoyn'd for that purpose 28 H. 8. the two former Acts 25 26. are Repeal'd the Illegitimation of Mary Daughter to Queen Katherine is confirmed the like declared of Elizabeth Daughter to Queen Anne and the Crown entail'd upon his Heirs Males by Queen Jane or any other Wife Remainder to Heirs Females by that Queen or any other lawful Wife Remainder to such Person or Persons and according to such Estates as he should appoint by Letters Patent or by Will. 35 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 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 mention'd 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 look'd on as of the Right Line because of the Acts which Illegitimated her 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 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 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. tho' there is no direct Settlement it is made Treason to compass the Deprivation or Destruction of K. P. during the Queen's Life 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 tho Bastardiz'd by the Statutes 28 H. 8. and 1 M. yet her first Parliament declare 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 dispos'd of according to the Power given by the Statute 28 and repeated 35 H. 8. And the 25 whereby 't was limited in Remainder to the Heirs of H. 8. being repeal'd upon the Deaths of E. 6. and the Queens Mary and Elizabeth without Issue there remaining no Heirs of the Body of H. 8. in the
was left at large How much soever he might have strain'd in this or other Matters I am sure he was far from acting so arbitrarily as some have industriously represented him I will not say on purpose to encourage such Actions in other Princes And it is yet more certain that whatever Right either he or any body under him enjoy'd came from the Compact not from the Breach of Faith. 3. If William 1. did gain the Right of a Conqueror it was Personal and he never exacted this for his Heirs as appears not only by his Declaration when he came to die but by the Fealty or Oath of Allegiance which he required in his Laws The King's Oath is the real Contract on his side and his accepting the Government as a legal King the virtual one and so it is vice versâ in relation to the Allegiance due from the Subject Thus far the Author of Jovian is in the right As in the Oath of Allegiance the People swear nothing to the King but what they are bound to perform unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound â—o perform unsworn Upon which account I will yield to Saravias That in Hereditary Kingdoms the Coronation-Oath confers no new Right and therefore there may be a King before his Coronation Yet we must attend to Grotius his Rule who rightly observes That Succession is only a Continuance of that Power which the Predecessor had So that if the first Possessor comes into Power qualified by express Contract this binds the Successor and he is to be thought to come in upon those Terms The Description which Samuel made of the exorbitant Power of Kings was rather to terrifie them from pursuing their foolish Demand than to constitute such a Prerogative as the King should use whom God would appoint to go in and out before them Which methinks is very manifest in that the worst of Kings that ever reigned among them never challeng'd or assum'd those Prerogatives nor did the People conceive themselves liable to those Impositions as appears by the Application they made to Rehoboam on the Death of Solomon That he would abate some of that Rigour his Father had exercis'd toward them the rash rejection of which contrary to the Advice of his wisest Counsellors cost him the greater part of his Dominions and when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself One of the Terms as appears by the Mirrour was That the King should suffer Right or Justice as well as his Subjects And St. Edward's Sword called the Curtein carried before our Kings at their Coronations was in the time of H. 3. a known Emblem and Remembrancer of this But surely whoever us'd that or a Judicial Power in such Cases as above how much soever they continued their Allegiance to the King's Authority could not be said to retain it to his Person 2. There was and is an establish'd Judicature for the great Case in question as is imply'd by St. Edward's Laws which suppose some Judge or Judges in the Case and investing the Proceres with the Supreme Judicature with-holds not this from them However 't is certain the Parliament 9 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice whereby if the King thro' a foolish Obstinacy contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and the Statutes and laudable Ordinances made by the Council of the Lords and the Peers of the Realm but shall headily in his mad Counsels exercise his own arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and rased to the great prejudice of the People and disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance The Mirror tells us That of right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was wrote before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho' Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from him seems to correct the Copy and has it si parcat If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains when he says That no Justices or private Persons may dispute of the King's Charters and Acts but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King act without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not to be adjudg'd so by Judges Commissaries or Commission'd Judges which the Mirror uses in contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least
interfere with the Judicial Power of the High Court of Parliament and it may be a question whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of False Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions was expell'd the Kingdom and Bromton shews that this was done in a Judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and divested of his Soveraignty by the Counsel and Consent of all his Subjects Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities but then they renounc'd the Allegiance sworn to King Edmund and chose Aulaf King of Norway for their King. Aulaf had not reigned six Years when they drove him away and tho' they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects and that if he did not answer the Ends for which he had been chosen he was to lose the Name of King. Either these Examples or rather the continual Engagements in War with Foreigners had such effect that from this time to the Entrance of W. 1. excepting the Case of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957. I find nothing of the like nature A King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender usage of his People their extraordinary Power had slept but for few Years after the Death of the reputed Conqueror till the time of King Stephen the third Successor from W. 1. who after Allegiance sworn to him had it a while withdrawn for Maud the Empress but the People soon return'd to it again rejecting her who was nighest in Blood because she denied them the Benefit of St. Edward's Laws This Power of the People to be sure was rous'd by the extravagant Proceedings of King John upon which the Earls and Barons of England without the Formality of Summons from the King give one another notice of meeting and after a long private Debate they agreed to wage War against him and renounce his Allegiance if he would not confirm their Liberties and agreed upon another Meeting for a peremptory Demand declaring That if he then refus'd them they would compel him to Satisfaction by taking his Castles Nor were they worse than their words and their Resolutions had for a while their desir'd Effect in obtaining a Confirmation of their Liberties but the Pope soon absolv'd the King and encourag'd him to the violation of them till they stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France But the Dauphin assuming a Power not brook'd in the English Government upon the Death of King John they set up his Son H. 3. and without any solemn Deposing of Lewis compell'd him to renounce his Pretensions Henry treading in his Father's steps had many unhappy Contests with his Barons and having call'd in numbers of Foreigners they sent him a solemn Message That unless he would remove those troublesom Guests they would all by a Common Council of the whole Realm drive him and his wicked Counsellors out of the Kingdom and would consider of making a new King. Upon this both Sides had recourse to Arms and neither valued the others Judicial Sentence but for certain the Sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally depos'd in Parliament for his Misgovernment whose Case with his next Successor's but one R. 2. by what I have observ'd before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once H. 6. being a weak misled Prince gave occasion to Richard Duke of York whose Line was put by to cover his Designs for restoring the elder Family with the Pretence of Redressing Publick Grievances The Crown he was so far from pretending to at first that himself swore Allegiance to H. 6. in a very particular manner But having afterwards an Advantage given by the Divisions of them who had driven him out of the Land he in a fortunate Hour with lucky Omens as was believ'd challeng'd the Crown as his Right upon which there was an Agreement ratified in Parliament That H. 6. should enjoy it during his Life and R. and his Heirs after him And tho' Richard Duke of York and his Son Edward afterwards E. 4. had sworn That H. 6. should enjoy the Royal Dignity during Life without trouble from them or either of them yet Richard having been treacherously slain by the Queen's Army immediately after the solemn Pacification Edward at the Petition of some of the Bishops and Temporal
not to assume the Royal Dignity unless he firmly resolv'd to perform what he had sworn To which he answered That by God's help he would faithfully observe his Oath And Hoveden says That he was Crown'd by the Counsel and Assent of the Archbishops Bishops Earls Barons and a great number of Milites which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 8. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the Occasion of the Law to encourage the Service of H. 7. who had no Title but from his Subjects and there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which being built upon the Supposition That according to the Fundamental Law the People's Choice gives sufficient Title perhaps is not vain and illusory as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me The Maxim in Law That the King never dies or to use the Words of Finch The Perpetuity which the Law ascribes to him having perpetual Succession and he never dies for in Law it is called the Demise of the King. To which I answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd and that the Death is but a Demise or transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election tho' never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Interregnum as it was resolved by all the Judges 1 Eliz. of which the Words of Lord Dyer are The King who is Heir or Successor may write and begin his Reign the same day that his Progenitor or Predecessor dies with which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like 'T is urg'd That the Hereditary Right contended for has not been interrupted by the People's Elections so oft as it should seem by the Breaches in the Succession for that many who came in before them who stood next were Testamentary Heirs of the Appointment of the Predecessor which argues an Inheritance in him that disposes And Dr. Brady thinks he produces an Example where the Election of the People was bound and limited by the Nomination of the Predecessor But if he had duely weigh'd the Presidents of this kind he might have understood that an Election without a Nomination had full effect while a bare Nomination had none and he might have learnt from Grotius that among the Germans from whom we descend Kingdoms did not use to pass by Will and that Wills were but Recommendations to People's Choice but not Dispositions I find it urg'd That as anciently as the time of E. 3. the Realm declar'd That they would not consent to any thing in Parliament to the disherison of the King and his Heirs or the Crown whereunto they were sworn If any Colour of Evidence can be produc'd that the Subjects of England so early as that swore Allegiance to the King and his Heirs this were to the purpose Indeed I find that before this 24 E. 1. a Foreign Prince the King of Scotland Feudatory to the Crown of England did Homage to the King and his Heirs but the like not being exacted of the Subjects of England till particular Acts whereby the Crown was setled it argues strongly as indeed appears from the Subject Matter that the Homage paid by a Foreign Prince was due to none but the present King and his Successor to the Kingdom whoever was next of Blood And by parity of Reason the Disherison of the King and him her or them who succeeded to the Crown was all that could be referr'd to when they urge the Obligation of their Oath to the King and his Heirs or the Crown which appears farther not only from the old Oath of Allegiance to which they must needs have reference whereby they are bound to defend the Rights of tbe Crown but even from the Matter then in question which was not of the Right of Succession but of a Flower of the Crown Bracton puts this out of dispute when he tells us That Inheritance comes not from an Heir but an Heir from Inheritance and that Inheritance is the Succession to all the Right which the Predecessor had by any sort of Acquisition With Bracton agrees the Civil Law Haeredis significatione omnis significari Successores credendum est etsi verbis non sunt expressi By Heirs we are to believe all Successors to be signified altho' not exprest in Words And again Nihil est aliud haereditas quam successio in universum jus quod defunctus habuit Inheritance is nothing else but Succession to all the Right which the Deceased had Wherefore I cannot but wonder that so Learned a Man as Sir P. P. should cite this to prove that Allegiance is due to the Heirs and Successors in a Legal Course of Descent that is as he explains or receives it out of Mr. Prynne by proximity of Succession in regard of Line Nor is this Learned Man more fortunate in mentioning the Salvo which Littleton tells us is to be taken to the Oath of Homage to a Subject Salve la Foy que jeo doy a nostre Signior le Roy where there is not a word of Heirs but he tells us that Littleton cites Glanvil where the word Heirs is whereas 't is the Lord Cook who makes the Quotation as he does of Bracton whose Sense of the word Heirs we have seen and Littleton fully confirms it by leaving out the word Heirs as a Redundancy Allegiance being due to every one that becomes King and to no other But to put the extent of Heirs to a King out of Controversie we have the Resolution of all the
of a King than they would have of coming to Parliament without his Writ Yet since the Right of the People in Person or Representation is indubitable in such a Case what hinders the Validity of the late Choice considering how many Elections of Kings we have had and that never by the People diffusively since the first Institution of the Government And the Representations agreed on tho' I take them to be earlier settled for Cities and Burrough than for the Freeholders in the Counties yet have ever since their respective Settlements been in the same manner as now at least none have since the first Institution ever come in their own Persons or been Electors but what are present personally or representatively and their own Consent takes away all pretence of Error If it be said That they ought to have been summon'd Forty days before the Assembly held That is only a Privilege from the King which they may wave and have more than once consented to be represented upon less than Forty days Summons Mr. Prynne gives several Instances as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and says he omits other Precedents of Parliaments summon'd within Forty days after the Writs of Summons bear date upon extraordinary Occasions of Publick Safety and Concernment which could not conveniently admit so long delay And Sir Robert Cotton being a strict Adherer to Form upon an Emergency advis'd That the Writs should be antedated which Trick could make no real difference To say however there ought to have been a Summons from or in the Name of a King in being is absurd it being for the Exercise of a Lawful Power which unless my Authorities fail the People had without a King or even against the Consent of one in being Besides it appears That such Summons have not been essential to the Great Councils of the Nation Tacitus shews That the Germans from whom we descend had theirs at certain Days unless when some extraordinary Matter hapned And by the Confessor's Laws receiv'd by W. 1. and continu'd downwards by the Coronation-Oaths requir'd to this very day the general Folcmot ought to be held annually without any formal Summons upon May-day And the Statute 16 Car. 1. which our rigid Formallists must own to be in force has wholly taken away the necessity of Writs of Summons from a King. The Assembly of Lords and Commons held Anno 1660. was summon'd by the Keepers of the Liberties of England not by the King's Writs yet when they came to act in conjunction with the King they declare enact and adjudge where the Statute is manifestly declaratory of what was Law before That the Lords and Commons then sitting are and shall be the Two Houses of Parliament notwithstanding any want of the King 's Writ or Writs of Summons or any defect or alteration of or in any Writ of Summons c. Tho' this seems parallel to the present Case yet in truth ours is the strongest For the King then having been only King de jure no Authority could be receiv'd from him nor could any Act of his be regarded in Law thro' defect either of Jurisdiction or Proof if not both Accordingly as not only the Reason of the thing but the Lord Coke shews a Pardon from one barely King de jure is of no force Besides the Keepers were an upstart Power imposing themselves upon the People without any formal Consent at least not so fully receiv'd to the publick Administration as our present King was who at the Request of a very large Representative of the People pursu'd the late Method of calling a more Solemn Assembly If that Anno 1660. had Power acting with the King to declare it self a Parliament why had not this in defect of a King to declare or chuse one Sure I am prudent Antiquity regarded not so much the Person calling or the End for which a General Council was call'd as who were present that Notice which they comply'd with being always sufficiently formal Wherefore a General Ecclesiastical Council being summon'd in the Reign of H. 1. by William Archb. of Canterb. thither according to the known Law of those Times the Laity came I cannot say they sate there for the Numbers were so great as they commonly were at such Assemblies before the Free-holders agreed to Representations that happy was the Man whatever his Quality who could have a convenient Standing After the Ecclesiastical Matters were over in the Council I now speak of they fell upon Secular Some they determin'd some they adjourn'd some the Judges of the Poll or Voices could make nothing of by reason of the great Crowd and Din. And when the King heard their Determinations and confirm'd them they had full Legal Force But had there been no Warrant from former Times for the late manner of Proceeding the People of Legal Interests in the Government having been restor'd to their Original Right who can doubt but they had an absolute Power over Forms That they were not call'd to a Parliament I hope will not be an Objection since the Word is much less ancient than such Assemblies And since the Cives the Common Subject of the National Power have made their Determination this according to that Positive Law which I have shewn above ought to quiet the Debate and command a Submission And yet were there not positive Law on their side the equitable Reservations before observ'd might be sufficient Warrant Nor is the Civil Law wanting to enforce this Matter One Barbarius a run-away Servant not known to be so got in favour with Anthony at the time of the Triumvirate and by his means came to be Praetor upon this a great Question arose Whether what he did or was done before him during his Praetorship were valid Vlpian decides in the affirmative and Hottoman upon that Question says The Suffrages of the People have the force of a Law. The Reasons given for the Resolution as they are in Gotofred who best reconciles the various Readings will greatly strengthen our Case He tells us That tho' the Question there is only concerning a Servant the Reason of it reaches to Emperors and all Secular and Ecclesiastical Dignities The Reasons why Vlpian holds the Acts of such good are 1. In regard of Common Utility and the Inconvenience it would be to those who had business before him if it were otherwise 2. From the Power of the People to give a Servant this Honour Gotofred thinks If this may be done with certain knowledge that he was a Servant much more if thro' mistake for if the People who have the Supreme Power may with certain knowledge for the sake of the Publick Good not only design a Servant for Praetor but in this Case by a just Election take a Servant away from his Master how much more may it be done as in the Case propounded not to make a Servant wholly a true Praetor not to take
Warriors bold Their Force not by the Guard to be controll'd Burdeaux Roan Rochel joyning all their Force Upon the spacious Ocean take their Course The English-Britans and the Flemings joyn'd Shall chase them up to Roan as Clouds with Wind. From farthest Westward of the English Soil Where is the Chief of the brave British Isle A Fleet into the Garonne comes by Blay France to hide Fire in Barrels shall essay Th' English shall pass by Rochel into Blay The Great Aemathien leading them the Way Not far from Agen he the French shall meet The Help from Narboun fails them by deceipt Th' Aemathien o're the Pyrenaeans goes Narboun in War dares not his Way oppose By Sea and Land he with such Pow'r shall ride The Cap shall want a Place where to abide Near Nancy a most bloody Conflict see Th' Aemathien says All shall submit to Me. The British Isle by Salt and Wine in doubt But Mets shan't long be able to hold out A quick Translation of the Empire see In a small Place the lofty Seat shall be A Place inferior of but mean Account Into the middle shall its Scepter mount England of Pow'r shall be the glorious Seat More than Three hundred Years continuing Great Large Forces thence shall pass through Land and Seas To the disquiet of the Portugees Thames Garone Rochel all engag'd in War Oh Trojan-Blood your Arrows fatal are The Scaling-Ladders shall the Fortress reach Fire on the Bridge and Slaughter in the Breach Roman High-Priest Take heed how you come nigh The City which two Rivers do supply The Blood of you and yours shall freely flow There in the Season when the Roses blow Great Changes France betide in luckless Hour In a strange Place shall be the Seat of Pow'r Quite diff'rent Laws and Manners it must take Part of its Mis'ry Roan and Chartres make When the Great Monarch bears away the Prize From those of Ausburgh and their firm Allies Cologne the Chief of Frankfort shall retake Their Way thro' Flanders into France they 'll make Tall Horse-men from the Celtique Gall shall ride With Men of divers Nations on their side Th' Agent for †Aquitain they will confine To make him pliable to their Design The River which does the young Celtique prove Shall in the Empire mighty Discord move For the young Prince the Clergy shall declare He takes the Scepter and the Crown shall wear The Celtique River shall new Channel take Cologne its Out-bound shall no longer make Except the Ancient Language all is new Saturn Mars Leo Cancer Spoils pursue Great Disappointments shall the Frenchmen find Their vain light Hearts puff't up with empty Wind Salt Wine and Bread Water and Beer shall fail The Great one cold and famish't in a Gaol The Blood of Churchmen shall be largely shed And like a mighty River it shall spread Long shall it be before the Slaughter ends Wo to the Clerk Ruine and Grief attends They 'd have the King by Force his Game retreive His Nephew since the Citizens receive The Pris'ner now to talk and act is free The King without keeps far from th' Enemy The King o' th' Isles shall be driv'n out by force For not consenting unto a Divorce From what 's soon own'd unfitting to have been One without Mark of King in 's Place is seen Such Expectation never shall be known In Europe rais'd Asia the Sight shall own One of the League of the Great Hermes's Line In Glory shall the Eastern Kings out-shine The King of Europe with the Northern Flow'r Shall like a Gryphon come in mighty Pow'r In Red and White a num'rous Force shall lead All join'd against the Babylonish Head. Grebner PEr idem tempus Rex quidam Borealis nomine CAROLUS MARIAM ex Papistica Religione sibi assumptam in Matrimonium conjunxerit ex quo evadet Regum infelicissimus Unde populus ejus ipso abdicato Comitem quendam perantiquae Familiae regno praeponet qui tres annos aut eo circiter durabit hoc quoque remoto Equitem quendam bellicosum in ejus locum assumet qui paulo ampliùs regnabit Posthunc eliget nullum Interea unus è stirpe Caroli in littore regni patris sui cum Gallicis Suevicis Danicis Hollandicis Burgundicis Germanicis auxiliis stabit omnes inimicos suos cruentissimo bello superabit postea Regnum suum felicissimè administrabit eritque Carolo magno major Sum Anglicus truculentus Leo modo rugens fremens immane saeviens animosus faelix Victoriosus contra omnes hostes Patriae meae fideliter auxilio venio praesidio ac clementi meae Reginae asporto pretiosum cimelion Margaritam dictam Belgicas Hispanicas dictiones unde Regina mea tempore vitae suae certo magnificè gloriosè Trumphat Terra Jubila Jubila canta exulta quod vidisti exoptatum diem Ruinae excidii Antichristi quod ductu auspicio faelici Anglorum Gallorum Danorum Germanicorum Scotorum Suecorum praesidio dextrae numinis altipotentis fiet Europae labes imbecilitas singulorum ejusdem Regnorum sedem mirabiliter struet Quintae Monarchiae quae sub tempus exitii Romani Imperii ad terrorem totius Mundi ex ruinis Germaniae refulgebit Haec triennii spatio caetera Europae regna aut vi praedomitabit aut belli metu ad Societatem propellet quo universalem Ligam unionem omnium Protestantium efficiet Hoc vexillum de fratribus quoque Uraniae Principis eorum posteris Illustrissimis intelligendum Leones nostri audaces in primâ acie fremunt unde nobis potentia crescit Gloria Fama augescit Grebner TO CHARLES a Northern King much Woe 't will breed To marry MARY of the Romish Creed The People casting off his luckless Sway Shall of an Ancient House an Earl obey Three Years or thereabout he them shall Head Then shall a Warlike Knight come in his stead He something longer shall maintain his Post After him Nol is chose to rule the Rost Of Charles his Lineage there shall One arise Who with French Germans Swedes Danes Dutch Supplies Upon the Shore of 's Father's Realm shall Land And Conquer all who dare his Arms withstand With great Prosperity he long shall Reign In Glory ev'n surpassing Charlemain An English Roaring Lion am I found My Rage and Courage with Successes Crown'd For Aid and Safeguard to my Country come I to my Queen bring a rich Treasure home Holland and Spain well call'd a Precious Stone Whence shall my Queen enjoy a happy Throne Rejoice O Earth Proclaim a Jubilee For you the Fall of Antichrist shall see With happy Conduct in auspicious Hour The English French Scotch Swedish Danish Flow'r Shall cast her down by the Almighty's Pow'r The Europaean Kingdoms
nobilitas West-Saxonicae gentis consentiunt quod me opertet dimittere eos ita liberos sicut in homine cogitatio ipsius consistit Camd. Brit. f. 104. de W. 1. Neminem Anglici regni constituo Hâ—redem sed aterno conditori cujus sum in cujus manu sunt omnia illud commendo non enim tantum decus haereditario jure possedi c. 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 Prynne's Signal Loialty p. 274. Poll. Virgil. l. 22. sub initio Nota Proceres may take in the Nobiles minores 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 People's 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 Elenor 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 People's 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 camâ— 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 Walsingham f. 1. Walsingham ib. Sir P. P. Obligation of Oaths f. 295. Walsingham Ypod Neustriae f. 45. Walsingham f. 68. Bromton f. 1155. So Hoveden f. 656. Bromton f. 1159. Hoveden f. 656. 11 H. 7. c. 1. Lord Bacon's Hist of H. 7. f. 145. Object 1. Finch's Description of the Common-Law French Ed. An. 1613. f. 20. b. 21. a. The same made use of Reflections upon our late and present Proceeding p. 10. Answ Dyer f 165. Anderson f. 44. He has it Le Successeur le Heir elsewhere 't is Heir ou Successeur Ib. f. 45. v. 1 E. 6. c. 7. v. 7. Rep. f. 30. Object 2. Brady's Hist of the Succession f. 8 9. Answ Grotius de jure Belli Pacis lib. 1. p. 60. Object 3. Vid. Debates about Deposing Answ Knighton f. 2482. Leges Sancti Edwardi tit Greve Conjurati fratres ad defendendum regnum c. honores illius omni fidelitare 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. Vid. Sir P. P. As Successors are Heirs so Dr. Brady tells us Gloss f. 18. That Prepossessor one that possest 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. Obligation of Oaths f. 302. Fol. 298. Fol. 300. Sir P. P. f. 297. Littleton tit Homage sect 85. Popham's Rep. f. 16. 17. Object 4. Rot. Parl. 1 E. 4. Answ Fortescue de laudibus Legum Angl. c. 3. Jovian p. 253. Pufendorf de Interregnis p. 288. Quod si dubitatur qui gradus aut quae linea sit potior declarata voluntas populi finem liti imponet c. 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 in possession of the Crown and Kingdom for if there be a King regnant in possession altho he be Rex de facto and not de jure yet he is Seignior le Roy within the Purview of this Stature 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 Kind de jure that is not also de facto is void 11 H. 7. c. 1. That the People of England were lately restor'd to a qualified Choice Sanderson de Obligatione Juramenti Lect. 4. Vid. Sir Robert Atkins his excellent Defence of the Lord Russel f. 22 23. Rastal's Entries tit Reattachment f. 544. b. Resum ' c. quia extra Regnum Angliae Progres fecimus nullo locum tenente nostrum sive Custode Regni relicto e. Hobart f. 155. Ved Leges 12 Tab. de Magistrat Digest lib. 49. tit 15. de Captivis Postliliminio 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 Imp. Theod. Valentin Caes ad Volusianum Praefectum Praetorio Digna vox est Majestate regnantis Legibus ad ligatum se principem profiteri Adeo de auctoritate juris nostra pendet auctoritas reverâ majus imperio est submittere Legibus principatum Et oraculo praesentis Edicti quod nobis licere non patimur aliis indicamus Pufendorf de Officio Hominis Civis p. 201. Pufend. Elementa Jurisprudentiae p. 85. 94. Vid. Puf. supr de Interregnis p. 274. Pufend. Elementa Jurisprud p. 94. Pufend. de Jure Gentium p. 1105. V. Grot. de Jure Belli Pacis de summitatem habendi plenitudine p. 62. Dissertationes de Interreg p. 272. supra Rudolphi Godofredi Knichen opus polit f. 1226. Philippi parei Vindicatio p. 50 51. Vid. Brook tit Condition n. 67. Vid. Lit. c. 5. Estates sur Condition V. L. Clarendon cited above in the Margin his Survey of the Leviathan p. 86. Grot de Jure Belli Pacis l. 1. c 3. p. 60. Grot. sup p. 64. Fortescue Vid. 11 H. 6. f. 12. b. Rolls Abr. tit Remainder f. 415. V. sup Knighton f. 2683. Nota Not proximum Rot. Parl. 1 H. 4. n. 54. Ib-n 55. Brady's Hist of the Succession f. 25. Vid.