Worship which though not contain'd in Scripture were us'd in the Primitive Church which is an Individium vagum which some confine to the Life-time of the Apostles some extend to the whole first three Centuries some even to this according to the Doctrine of Infallible Tradition Suppose for Example that in such Assemblies as are form'd with or without leave of the Civil Power the Sign of the Cross be used as a Symbol of dedicating to the Service of Christ those who are let into Catholick Communion and this they judg useful to the present and according to the Primitive Church it will be a Question Whether the retaining of this against a particular Interdict of the Civil Power which is supposable at least is to be justifi'd upon these Grounds Put this Argument into Form and you will find he has more or less in his Conclusion than in his Premises Rightly taken I conceive it lies thus If the Gospel contains a Divine Establishment of Publick Christian Service such Publick Christian Service as has therein Divine Establishment no Authority upon Earth hath any right to prohibit But the Gospel does contain a Divine Establishment of Publick Christian Service Therefore such Publick Christian Service as has therein Divine Establishment no Authority upon Earth has Power to prohibit This being taken for granted he proceeds What no Authority upon Earth has right to prohibit may be done or perform'd notwithstanding the Interdict of the Civil Power But such Service ut supra no Authority upon Earth hath right to prohibit therefore it may be perform'd notwithstanding the Interdict of the Civil Power But he concludes contrary to the Laws of Arguing That those Christians who rightly worship God in the True Catholick Communion according to the Apostolical and Primitive Church have a right to hold such Assemblies for the Christian Worship as appear useful for the Church's Good Now if hereby he means that they who worship God according to the Scriptures even though taking in the Practice of the Apostles have not this Right unless they do it in the manner us'd till or at the end of the first three hundred Years after Christ which is the modestest acceptation of Primitive Times Here by adding of Circumstances his Conclusion has really less than the Premises because it ties up them whom the Scripture has left free and takes from the Authority of Scripture where the Foundation was laid and undermines it by going to support it with the specious words of Apostolical and Primitive which still are of doubtful Acceptation Whereas some believe that no manner of Worship is to be term'd Primitive which was not truly Apostolical that is us'd by the Apostles themselves others call every thing within those three Centuries at least Primitive and therefore Apostolical But to be sure here is a very false way of Arguing if he uses any or else 't is gratis dictum But take it for an Argument and then to his purpose there is more in the Conclusion than in the Premises for the Premises are only of such Publick Service as is contain'd and establish'd in the Gospel and thence he would conclude that whatever has been practis'd in the Primitive Church in the Publick Service of God may be continued notwithstanding the Interdict Nay he would go farther That they may in their Assemblies practise according to their own Judgment of what is useful for the Church's Good If it be said that he means no more than that they may hold such Assemblies for Christian Worship as appear useful that is of Five besides a single Family 22 Car. 2. c. 1. or more as appears useful if he means not that they may assemble and worship in such a manner as appears useful he excludes the Worship out of the Assembly and then it may be a Silent Meeting if the Civil Power please and is less than his Premises warrant I must confess he seems to intend the amusing rather than satisfying his Readers by putting in the true Catholick Communion for he must mean either that what-ever Publick Service is according to the Apostolical and Primitive Church is in true Catholick Communion and so vice versa that what-ever is in true Catholick Communion is according to the Apostolical and Primitive Church so that the Church becomes the Rule to the supplanting of Scripture or else that to worship God rightly and warrantably notwithstanding a Civil Interdict 't is not enough to be according to the Apostolical and Primitive Church unless it be in the true Catholick Communion that is with such Terms of Communion as Christ himself or his Apostles made Catholick and universally obliging and indeed in this sense though he has not observ'd it he comes up fully to the Force of his Argument The great Sanderson whose Judgment where it was according to that lumen siccum the general want of which is to be deplored is of great Authority has gone about to split the Hair between two Extreams in relation to Ecclesiastical Jurisdiction and lays down what he says is most consentaneous to the Doctrine of the Church of England and moreover to the Laws of the Kingdom Sanderson de Obligatione Conscientiaa Pag. 209. Quod Doctrinae Ecclesiae Anglicanae Regni insimul Legibus maximè sit consentaneum Which by the way is an insinuation that the Church of England holds some Doctrine not consentaneous to Law and it may be the Canons of 1640 might be instanced in Now his Notion is that the jus condendi Leges Ecclesiasticas that is the Legislative Power in Ecclesiastical Affairs is in the Bishops Presbyters and other Persons duly elected by the Clergy of the whole Kingdom and duly assembled in a lawful Synod Upon this I would be bold to ask the Question Pag. 188. How this agrees with his Concession That the King is Supream Head and Governour over all Persons and Causes as well Ecclesiastical as Civil since his own Argument is That he who is Supream has the Power or Right to make Laws But the King is Supream wherefore P. 192. according to him the King and not the Clergy hath this Power This I think is the unforc'd Consequence from his other Assertion Potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esse potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hoc est jus ferendi leges quae obligant totam communitatem esse penes eum solum Pag. 186. sive sit is singularis persona ut in statu Regiminis Monarchici sive plures ut in aliis qui cum summâ potestate toti communitati praest Nay he argues that it must needs be so in reason Praecipuus actus gubernationis praecipuam requiret potestatem c. Est autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive legum latio actus gubernationis supremus praecipuus Non ergo potest exerceri nisia persona habente aut saltem in virtute ex authoritate habentis supremam authoritatem jurisdictionem in communitatem sibi
Legislator left undetermin'd And yet afterwards when had he said enough to gain Credit stealing away a large share for the Clergy but yet he had given so much before that he could not leave any thing to the Clergy or the Laity either without manifest contradiction He tells us that in every Monarchy the Prince has Supream Power that this Supream Power is a Legislative Power and with us extends to Matters Ecclesiastical as well as Civil that a Legislative Power is Self-sufficient and Arbitrary and that that Prince who has a Legislative Power obliges his Subjects ferendo Leges by the exercise of this Power and that must be in what manner soever he exercises it otherwise 't is not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Yet in another place he says what the King commands has not the Force of a Law Pag. 189. that is does not oblige without some Consent of the People And whereas he places in the King the Sanction of Laws in general as being the principal Cause that introduces the Form and this he calls jus condendarum Legum this Right or Power he places in the Clergy for Matters Ecclesiastical and so wholly shuts out the King and Laity who have according to him neither the Proposing nor the Sanction And therefore that restraint of the Exercise which he yields to the Civil Power amounts to no more than a natural not moral Power Praelectio 7 ma de Obligatione legum humanarum ex parte causae efficientis And this appears farther in that this was under the Head of the efficient Cause of Humane Laws which he makes the Clergy to be in Matters Ecclesiastical and that without Aid of the Civil Power as he explains himself speaking of the Matter of Laws Prael 7 ma. p. 174. Leges autem Ecclesiasticas hìc intelligo non quae à personis Ecclesiasticis sine Magistratus civilis authoritate constitutae sunt quae schola non est hujus loci sed ad alterius generis causam efficientem scilicet pertinet c. I conceive he places the Authority of making Ecclesiastical Laws in the Clergy in the same manner that he does any Act of the Ministry the Power of which according to some Great Men remains though the Act may be restrain'd which some Men cannot understand for their Hearts for they suppose that one may always act according to a lawful Power But we are otherwise taught Ep. Wynton Resp ad 3 Ep. Pet. Moline p. 191. Post enim quà m dicunt degradationem manet potestas ad actum ordinis cujus potestatis usus prohiberi potest potestas ipsa tolli non potest To put an end to all these Disputes Doctor Heylin's perpetual Dictator in Politicks places a Power in Adam as Absolute and Arbitrary as all the Acts of his Will and does nothing if he goes not to prove that this his Power was to be obey'd in every Act of his Sovereign's Will relating to things Sacred as well as Civil for a right to Command without an Obligation upon others to obey is an empty insignificant Notion Well this being settled beyond dispute in Adam and in his Posterity by right of Fatherhood and in Cain by right of Birth though by the way he never was vested with such Power over his Brother Patriarcha p. 19. Patriarcha p. 12. Patriarcha p. 13. over whom we are told 't is promis'd for that Abel died in the Life-time of Adam though it were indivisible and of right an universal Monarchy settled upon the Eldest Parent yet it lawfully descended or came upon Sons in the Time of their Fathers as upon Judah who by virtue of his Patriarchal Power condemn'd Thamar to be burnt while his Father Jacob was in being Such as could set up for themselves in any of the divided Kingdoms of the Earth had in spight of contradiction just Shares in this still indivisible Monarchy and not only by consequence but expresly are we taught that Usurpers and Rebels have good Authority such as ought to be obey'd though the lawful Prince be alive But these besides many other Absurdities and Contradictions which Sir Robert is pleas'd to divert us with are but necessary Consequences upon the Supposition that every one who is Supream in Power Patriarcha p. 19. All Kings c. are to be reputed the next Heirs to those first Progenitors who were at first the natural Parents of the whole People however he come by it derives his Title to an indivisible Power that is all Power from Adam which holds not only as to all Power within any particular Division or Tract of Land but all over the World as it is suppos'd Adam's Power was If it be meant of the Father of the People within such a Tract of Land then he derives not his Title from the Eldest Parent and by Consequence entitles such an one only to a subordinate Power And therefore one would think that Sir Robert has heap'd together all the Absurdities flowing from such an Opinion with an intention to expose it to all Men of Judgment They that will say 't was otherwise surely are none of his Friends but expose him as they do themselves in contending so eagerly for the maintenance of what if he spoke his Judgment argues him to be none of the wisest if 't was not none of the honestest If as one of Sir Robert Filmer's pedantick Admirers flourishes Pref. to the Power of Kings All Readers are insensibly under his Command as if they were his Subjects and are his by right of natural Soveraignty and a Reason so far exalted above ours as his makes him appear like those Kings of old who were in Stature much superior to their Subjects and seem'd so far to over-top the rest as if Nature mark'd them out for Heads of all If still this exalted Genius be guilty of Self-contradictions and undermining his own Foundations what silly Creatures are they or what Slaves in their Understanding who are made Captives without Resistance and are Slaves by right of Conquest And if all Men fell under his Title either of natural Soveraignty or of Conquest how despicable were the Condition of Humane Nature But surely Contradictions will not down with all Men 't were in vain to shew such easy Wretches as are led captive by Sir Robert's false Reasonings wherein his Fallacies lie as in not distinguishing the Power whereby a Nation is govern'd from the Person or Persons invested with Power nor considering the Manner wherein it is enjoy'd whether Absolutely or with Limitation or whether the Administration or Exercise be according to the lawful manner which to them that are able to consider would evince to how little purpose 't is urg'd that Soveraignty is indivisible For an undivided Soveraignty may be in several in unequal manners and sometimes in equal As in the Roman Consuls or Decemvirs at least and that by Sir Robert's own confession The Law says he of the Twelve Tables affirms
Common Council to provide for the Indemnity of the Crown of the Kingdom and for repressing the Insolence of Malefactors for the benefit of the Kingdom which as appears from the words and subsequent as well as former Practice besides the Opinions of ancient Lawyers did not except the King himself whatever Care is taken of the Crown of the Kingdom However 't is certain the Parliament 12 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice Whereby if the King Knighton f. 2683. meaning the Case of E. 2. through a foolish Obstinacy Contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and laudable Ordinances made by the Council of the Lords and Great Men of the Realm but shall headily in his mad Counsels exercise his own Arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd Knighton f. 1752. This observ'd after me by the Author of the Answer to the Popular Objections p. 44. and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24 th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and razed to the great Prejudice of the People and Disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance More particularly in the Historian unmask'd by the same Author Mirror p. 9. The Mirror tells us That of Right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum Hornii orbis imperans p. 196. of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was written before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People Hornius p. 196. who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from Bracton seems to correct the Copy and has it si parcat Fleta lib. 1. cap. 17. If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere Bracton l. 3. c. 9. p. 107. that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains Ibid. when he says That no Justices or private Persons may dispute of the King's Charters and Acts Bracton l. 2. c. 16. p. 34. but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. Vid. Ryly Plac. Parl. f. 20. Fleta supra Superiores So Mirror p. 9. Ceux Compagnions sont ore appelles Comites in Latine Comitatus where he takes in all that come up to Parliament from the Counties where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King acts without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not be adjudg'd so by the Judges Commissaries or Commission'd Judges Vid. Mirror p. 209. He there says Suitors are Judges ordinary and 274. speaks of Counties les autres Suitors having Jurisdiction in Causes which the King cannot determine by himself or by his Judges So Judg Crook's Argument in Hampden's Case p. 59. Whatever is done to the Hurt or Wrong of the Subjects and against the Laws of the Land the Law imputeth that Honour and Justice to the King whose Throne is establish'd by Justice that it is not done by the King but it is done by some unsound and unjust Information and therefore void and not done by Prerogative which the Mirror uses in Contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least interfere with the Judicial Power of the High Court of Parliament and it may be a Question Whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of false Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions Chronica de Mailros f. 137. Anno 756. Bromt. f. 770. Cōgregati sunt Proceres Populus totius regni eum providâ deliberatione à regno unanimi consensu omnium expellebant was expell'd the Kingdom and Bromton shews that this was done in a judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament Lambart's Pref. to Archaionomia Northumbrorum Imperii magnitudo ea fuit quae nunc est Ehoracensis Dunelmensis Northumbriae Cumbriae Westmorlandiae Comitat. atque reliquam praeterea Lancastrensis Com. partem complectebantur Chron. Mailros f. 138. Anno 774. Sin Dunelm 106. 107. Consilio consensu omnium Regiae Familiae ac principium destitutus societate exilio Imperii mutavit Majestatem And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and
and correct and that in other matters they share with the King in every part of the Soveraignty He adds If we have need of farther proof the name Parliament which all our Ancient Histories give the Assembly of States may furnish us with one This is the name which the English give this Assembly which partakes of the Soveraignty with their King The French and the Ancient Britains had the same Laws and the same Language they Governed themselves by States gave the same name to their Assemblies And without doubt they had the same Authority Nay it is certain that the States had formerly in France the same Power that the Parliaments have in England As this Author makes the Liberties of the English Nation and the Power of its Parliament an Argument of the Right of the French Nation Bodin who wrote after their Parliament at Paris had taken the place of the Assembly of States makes England a parallel to France Turky Persia Muscovy Bodin de Repub lib. 2. c. 4. ed. A Lyon p. 302. Ib. Cap. 3. p. 286. This was H. 2. for the absolute Soveraignty of their Princes but that he was little acquainted with the History of the Govenment of England appears in that he supposes that Henry who procured his Son to be Crowned in his life time to have been the Son of W. 1. Bodin p. 300. Even where a Prince is the most absolute he admits That if he Govern Tyrannically he may be lawfully killed by a Foreign Prince and that it is a noble and magnificent action for a Prince to take Arms to rescue a people unjustly oppressed by the cruelty of a Tyrant as did the Great Hercules who went about the World exterminating the Monsters of Tyrants and for his high exploits has been Deified So did Dion Timoleon Aratus and other generous Princes who have bore the Title of Chastisers and Correcters of Tyrants This says he was the sole cause for which Tamerlain Prince of the Tartars denounced War against Bajazet King of the Turks And when he Besieged Constantinople said he came to chastise his Tyranny and deliver his afflicted people And in fact he vanquished him in a pitch'd Battel in the Plain of Mount-Stellian and having killed and put to flight Three Hundred Thousand Turks he kept the Tyrant in a Golden-Cage till he died Ib. p. 301. And in such case it matters not whether the Virtuous Prince proceed against the Tyrant with Force or Art or way of Justice True it is if the Virtuous Prince has taken the Tyrant he will have more Honour if he make his Process and punish him as a Murderer or Parricide or Robber rather than to make use of the Law of Nations against him This passage in Bodin shews beyond contradiction That if he were now alive and not of the Romish Superstition he would have extolled and justified the Heroick undertaking of King William for the delivery of this Nation But the ground of the justification is That even the most absolute Soveraign may injure his Subjects as no doubt but he would if he treated them contrary to natural equity and his own established Laws Jovian p. 226. whereas the Author of Jovian having set up an Imperial Power above all Political Constitutions says In this Realm the Sovereign cannot wrong or injure his Subjects but contrary to the Political Laws And by consequence not at all if the Political Laws are to give way to the Imperial Wherefore I wonder not to find him a Subscriber to the late Bishop of Chichester's Paper which condemns Swearing Allegiance to our present King and Queen But Bodin as he justifies our King William in freeing us from an oppressing Monarch no less clears the Subjects of England in joyning with him upon supposition that the Constitution of our Government is not rightly understood by him Bodin p. 301. But says he as to Subjects we ought to know whether the Prince be absolutely Soveraign or whether he is not absolutely Soveraign For if he is not absolutely Soveraign it is necessary that the Soveraignty be in the people or in the Lords In this case there is no doubt but it is lawful to proceed against the Tyrant by way of Justice if we can prevail against him or by way of Deeds and Force if we cannot have Reason otherwise as the Senate did against Nero in one case and against Maximin in another so that the Roman Emperors were nothing else but Princes of the Common-wealth that is to say the First and Chief the Soveraignty remaining with the people and the Senate As I have shewn this Common-wealth may be called a Principality Altho Seneca speaking in the person of his Scholar Nero says I alone among all Men living am elected and chosen to be God's Vicegerent on Earth I am Arbiter of Life and Death I am able at my pleasure to dispose of the estate and quality of any Man True it is that in fact he usurped this Power but of right the State was but a Principality where the people were Soveraign As also is that of the Venetians who condemned to death their Duke Falier and put to death others without form or figure of Process Insomuch that Venice is an Aristocratical Principality where the Duke is but Cheif and the Soveraignty remains with the States of the Venetian Noblemen And in the like Case the German Empire which also is but an Aristocratical Principality where the Emperor is chief and first the Power and Majesty of the Empire belongs to the States who in the year 1296. deposed the Emperor Adolph and after him Wenceslaus in the year 1400. in form of justice as having jurisdiction and power over them How much soever Bodin was mistaken in relation to the Government of England he seems herein less a Stranger to that of the German Empire The Learned Conringius in his account of the German Judicatures Hermanni Conringii Excercit De Judiciis p. 251. tells us 't is difficult to give an account of them for some Ages next after the time of the Francs But beginning with the Causes of Kings themselves whom he shews according to Ancient Custom to have been subject to some jurisdiction upon the account of their Government The Causes says he Ib. p. 252. of their Kings belonging to the administration of the Government as anciently so afterwards were frequently agitated in the Great Councils of the Kingdom So the Emperor H. 4. was accused in a Great Council and by its Authority divested of his Royal Dignity The same befel Otto 4. and * This about the year 1251. No new Emperor was chosen till Anno 1273. after Twenty two years vacancy Prideaux Introd p. 245. Frederic 2. But says he Two things sometimes hapned much differing from the ancient Usage One is That the Power of the Council of all the States began to pass to the Electors only after Charles 4. Novo more The Duke of Bavaria made
one that Reigns to profess himself bound by the Laws Our own Authority does so depend upon the Authority of Law And in truth for the Governing Power to submit to Law is greater than Empire And by the Promulgation of this present Edict we make known to others what we will not allow our selves That J. 2. had before his Departure broken the Fundamental Laws and that now he not only ceases to protect but before the Judgment pass'd upon the Breach was in a Kingdom which foments and strengthens a Rebellion in Ireland part of the Dominions belonging to the English Crown I think no body will deny Nor till they can answer what I have shewn of the mutual Contract continued down from the first Erection of the Monarchy here ought they to deny that he thereby broke the Original Contract which bound the People to him and him to them What results from this Breach is now more particularly to be considered That it is a Discharge from all Allegiance to him requir'd by any Law and confirmed by any Oaths is evident not only from the former Authorities but from the Condition going along with such a mutual Contract as I have prov'd to be with us between Prince and People Or rather to use the Words of the Learned Pufendorf The Obligation is not so much dissolv'd as broken off Peufendorf de Officio Hominis Civis p. 201. by the perfidiousness of either Party for when one does not perform that which was agreed on neither is the other bound to performance For the Prior Heads of things to be perform'd in Contracts are in the subsequent by way of Condition As if it should be said I will perform if you will perform first This he more fully explains in another Book Pufend. Elementa Juris prudentiae p. 85 94. Vid. Puf Supr de Interregnis p. 274. where he distinguishes between an Obligation imperfectly mutual as he supposes it to be between an Absolute Prince and his Subjects and one perfectly mutual as he takes it to be where the People have conferr'd a Power on any Terms Of such Obligations he says These since they have a mutual respect to the things agreed on Pufend. Elementa Juris prud p. 94. and suppose mutual Faith it is evident That if one Party violate the Faith which he plighted the other is no more bound And therefore he is not perfidious who stands not to those Contracts which the other has broken For all the Heads of one and the same Contract run into each other by way of Condition c. In that Book of his which is counted the Standard of the Law of Nations Pufend. de Jure Gentium p. 1105. he asserts it to be lawful for Subjects to oppose their Prince by Force which is a sufficient departure from Allegiance if he goes about Modum habendi potestatem immutare V. Grot. de Jure Belli Pacis de summitatem habendi plenitudine p. 62. Dissertationes de Interreg p. 272. Supra i. e. to change that Manner in which he by the Contract enjoys the Power from less to more absolute And in his Tract de Interregnis cited above he allows of this If the King abdicate all Care of the Commonwealth becomes of an hostile mind towards his Subjects or manifestly departs from those Rules of Governing upon the observance of which as upon a Condition the Subjects have suspended their Obedience Nor is the German Author Knichin less plain whose Words are If the Magistrate have absolute and full Majesty due Subjection ought by no means to be denied him thô he be impious Rudolphi Godofredi Knichen opus polit f. 1226. Nor may he be cast out and another substituted in his room Much less can a new form of Government be introduced But if he were Constituted by the People under certain Pacts and Promises sworn to him by the People and therefore is bound to certain Rules of Laws and either to do or avoid any thing contain'd in those Contracts whether Fundamental Laws or things particularly concerted as for Example the Emperor in our Empire They not being observ'd but studiously enormously and obstinately violated the hopes of amendment after many of the Subjects Prayers and Admonitions plainly vanishing he may rightfully be removed by the States and People c. The Reason is because he was Promoted to the Government by such Agreement and that sworn to according to the Laws of the Agreement or Contract The Nature of which consists in this That if that Party for whose sake or cause they are Constituted violate them the other Party of very Right is freed from the Observance of those things which are granted by such Laws Philippi Paraei Vindicatio p. 50 and 51. Nor does Philip Paraeus come short of this in his Defence of his Father David where he speaks very particularly of the Effect of the mutual Compact Sir R. Poyntz his Vindication of Monarchy Ed. Anno. 1661. What is said by the Learned Knight Sir Robert Poyntz to disable such Authorities as I have Cited in truth confirms them The Doctrine of the Civilians concerning the nature of Contracts he handles with Judgment but if he fails in applying their Distinctions the Foundation of our Government being different from that which he goes upon then he will prove an Authority on my side P. 86. The Doctors of the Law says he are much perplexed in debating these two Rules in Law One is That in vain he requireth the performance of a promise or contract to whom he refuseth the performance of that which he ought on his part to perform The other is That a Man is not bound to perform his Oath if that be not performed in consideration whereof he did swear And unto these Rules they assign divers Exceptions and Limitations One is That regularly ubi contractus est perfectus c. and a mutual Obligation arises 't is not rescinded by the failure of either Party And that in contractibus innominatis Innominal Contracts such as are without any Condition expressed it is not lawful agere ad resolutionem Contractûs P. 86. to act towards the Dissolution of the Contract by reason of a Contravention on one side sed vel ad implementum contractûs vel ad interesse but either towards the compelling performance or the obtaining satisfaction for the breach The Contract between Prince and People he supposes to be both 1. A perfect Contract and 2. An innominal one Consequently indissoluble notwithstanding any Breach on the King's side But if it be look'd on barely as a perfect Contract without Consideration of its being without Condition expressed by the same Reason even the Rebellion of a Subject would not discharge the King's Duty to protect him any more than the King 's subverting the Constitution will discharge the Subjects Allegiance Which shews that this is meant only of Instances which are not of the Essence of the Contract
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
Domini Regis vel Regni So Fleta de Crimine Laesae Majestatis c. 21 Vid. 26 H. 8. c. 2. 28 H. 8. c. 18. Traitors against the King and Realm Fortescue f. 6. temp H. 6. or Treason against the People of England is evident not only by Glanvil who wrote in the time of H. 2. and Fleta of Edw. 1. but by two Statutes made in the time of H. 8. who was as jealous of the Rights of Soveraignty as any Prince before or after him And is plainly enough suppos'd in the Statute 25. Ed. 3. which shews that there may be Treason against the Government as well as against the King or any of the other Treasons of which ordinary Judges are permitted to judg But since this Majesty of the People may have been given as well as reserv'd or left I shall not urge this as an undeniable Argument of the derivation of Power from them Nor yet shall I transcribe the many Passages in Fortescue proving such Derivation because tho his Book is of great Authority in our Law yet it was written in a King's Reign which some may think to stand in need of such a Justification Neither shall I here urge how far this Monarchy has been Elective because the particular Consideration of that will follow this I only observe of it here that so far as the Monarchy shall prove to have been Elective so far will it appear that all Power not ascertain'd by the Law of God contain'd in Scripture or the Book of Nature is mediately or immediately derived from the People But I think I may be able to shew from one of those Passages which seem the most to imply the absolute Authority of our Kings that whatever it is Crompt his Jurisdic of Courts p. 60. it was derived from the Consent of the People and that the Peoples Consent is still requisite for the Exercise of an Absolute Power according to the memorable Speech of H. 8. in Parliament where he thought himself to stand in his highest Estate Royal. The Civil Law of the Romans says Quod Principi placuit Legis habet vigorem that which has pleased the Prince has the force of Law Glanvil 's Prologom Bracton lib. 3. c. 9. Fleta l. 1. c. 19. but take this according to the Opinion of Glanvil Bracton Fleta and ancient Civilians who wrote about Bracton's time who as Mr. Selden informs us wrote according to what they found in the Governments establish'd throughout Europe The Principi placuit was no more than the Le Roy le veut with us The Civil Law shews that whatever Authority the Emperors had the ground of it was Selden ad Fletam f. 469. that the People in eum Imperium Potestatem conferret conferr'd Empire and Power upon him as Odofred a Civilian coeval with Bracton has it tho the following Copies have it omne suum as if the People conferr'd all their Power This may signify no more than all that Power which the Emperors had yet perhaps the other Sense was intended and may well be imputed to the Servility of later Times Saravia de Imp. Author f. 278. especially if we consider not only what Saravia says who besides the Majesty of the People above-mentioned out of him tells us that the Roman Emperors acted under the Peoples Authority which he proves in that their Acquisitions were in the Name of the People Sanderson 's Lectures Ed. An. 1660. p. 149 150 151. And even Bishop Sanderson having approved of the restrain'd Sense of the Roman Lex Regia us'd by our ancient Lawyers adds I do affirm and it is the common receiv'd Opinion that the Laws propounded and instituted by a Prince or Head of a Commonalty do not oblige Subjects nor have the Power of a Law unless they be received by the Commonalty themselves and are allowed by the Customs and Suffrages of those that use them According to Demosthenes the Law is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the common Engagement of a City If peradventure his Authority be of less value because he lived in the Popular Common-wealth of the Athenians will you be pleased to hear the great Lawyer Julius who lived when the Roman Emperors had the fulness of Command his words in his 32 d Book De Legibus are these Ipsae Leges nullâ aliâ ex causâ nos tenent quà m quod judicio Populi receptae sunt The Laws do oblige for no other cause than that they are receiv'd by the Judgment of the People But if we observe how the Roman Emperors came by their Trust from the People and of what nature it was this I take in relation to the Legislation to which our Lawyers apply the Civil Law will appear to have been no more than the Tribunitial Authority The Tribunes of the People chosen by them were in their Name to deliver their placet or Consent to the Emperor or Senate nor did the greatest Emperors think it below them to court the Suffrages of the Populacy for this Before Julius Caesar arriv'd to an Imperial Power while the People of Rome govern'd all the Nations round about in all Emergencies they consulted Deputies Vid. Cic. in Catil Orat. 3. ut Comperi Legatos Allobrog belli transalpini tumultus Gallici excitandi causâ à P. Lentulo sollicitatos c. Tacitus Ed. Plant. p. 105. Tiberius vim Principatus sibi firmans Imaginem antiquitatis Senatui praebebat postulata Provinciarum ad disquisitionem patrum mittendo or Representatives of the several Provinces under them as appears in Cicero's third Oration against Catiline and after Julius even Tiberius then whom no Man could be more intent or more cunning to enslave his Subjects continued an Image of the ancient Usage by sending the Demands of the Provinces to the Disquisition of the Senate But the People of Rome were trick'd out of their Liberty by that artful Emperor by his removing the Comitia Tacitus in vitâ Tiberii Ed. Plant. p. 10. Tum primum è campo comitia ad patres translata sunt Nam ad eam diem etsi potissima arbitrio Principis quaedam tamen studiis Tribunorum fiebant neque populus ademtum jus questus est nisi inani rumore or Great Councils from the Fields where the Tribunes took their Directions from the People to the Senate-House where false Representations of the Sense of the People might be made behind their backs they vented their Resentments at this only in empty Murmurs and as the Satyrist has observed of them Qui dabat olim Juv. Imperium fasces legiones omnia nunc se Continet atque duas tantùm res anxius optat Panem Circenses They who their Laws and Magistracy chose Quietly gave up all for Bread and Shows Yet upon observing the steps by which the Emperors advanced to their Power with the People 't will be evident that it was but lodg'd as a Trust and Confidence that they would truly act according to
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
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
Ordinary nor is not so to be receyvid but it must recyve a Tryal directly by th' Ordinary whose Certificate must proceede accordinge to such mater as may informe a Truthe or ells it must receyve the Tryall by a Jury of twelve Men according to the common usage of Tryalles And whoe can thinke if the cause of eny such separation stirred upon no just Motion but onely of corrupte or fleshly disposition shuld come now in question that either eny Ordinary or ells eny Jury in so playne and open Bastardy wold either so farre forgeete or hazard theimselfes or elles exceede the Bondes of their Dutyes to God their Countrey or all honest Reputation to the World to certify such Issues to be ligitimate wherby no Controversy shuld be decyded but rather dangerously encreased and the whole Government of such a Noble Realme therby brought unto a double Bastardy as the case now standith For touchinge th' Issues betweene the Duke and the French Queene yf question be askyd whether they be lawfull answer is made They are not because the Duke was first lawfully marryed to the Lady Mortymer and contynued with her aboue seven Yeres and that he was maryed after to the French Queene duringe the sayd Lady Mortymer's Lyfe whoe overlyved the byrth of all the French Queenes Children Which answer by our Law cleerly distroyeth the seconde Mariage and makith it voyde and so all the Issues cleerly Bastardes And this is th' absolute Judgementof our Lawe so as now th' Issues of the French Queene cannot eny way help theimselfes but they must first destroy the first maryage which our Lawe will never disallowe untill it be first disanulled And therfore yf the Duke of Suff. had had eny Issue by the L. Mortimer those Issues shuld haue ben allowed his Heyres by our Lawe notwithstandinge the Mariage after with the French Queene And therfore for that the French Queenes Issues rest dissabled in poynt of Common Lawe they must make theimselfes able by some such proofe as may satisfye the same Lawe before they can be receyvid And yf they seeke their relief by eny dispensation from Rome as is sayd it servith not although ther wer a Dyvorce to be proovyd by eny such Instrument And it is most true that they ar able to proove no lawfull Devorce within the Realme though by search it hath not onely ben perceyvid but is evidently to be provyd howe meny corrupte and subtile attemptes by sundry meanes hath ben taken in hande to cowntenance those matches with the French Queene and other as by a supposition of a Sute sued betweene one Anne Browne and the said Charles Brandon wherof shuld aryse the displeasure betweene the Lady Mortimer and the said Charles her Husband seven Yeres and more after their Mariage During which time the said A. B. God wotte never tooke it so earnestly as she once complaynid to the Lawe or ever thought of the Mater nor as it seemith wold ever haue done yf in this tyme the sayd Charles had not consumyd the sayd Lady Mortimers Welth and Lyvelyhoode and found her Yeres not answerable to his Yeouth and wanton Disposition for satisfyenge wherof this Acquayntance that Bely risinge and these Practises after hapt with the same Anne Wherof riseth now these feeble-groundid Histories this Speche and these Devices that she forsooth shuld be precontracted to him before and had a Childe which Childe eight Yeres after is knowen well inoghe was but two or three Yeres olde at the moste A strange case and yet she had it at seventeen or ninteen and was but twenty at the tyme of this supposed Divorce when the sayd Charles and she came togither Well I say no more for the Case is skant worth the speakinge of but yf this Mater wer to be shewid ye shuld see such a patron of a Divorce as they that faynest wold have it wold soonest be ashamyd to countenance their Title upon the same and yet these Passages thus hapt in these Dayes and in that Lyfe from better to worse advoutry upon advoutry and such other stuff But how vayne is it to wryte or to occupy yow with these Digressions as with what mought haue ben what is supposed to haue bene or such other vayne and frivolous practises or shifts as heerafter may be when it behoovith so much presently to consyder what in this case properly may and ought to be And therfore because it is one of the most assuryd wayes to understand what the Lawe willeth or is in eny question to admitte that the Mater were at present to be decided by dewe course of Lawe with all the Pollicies that on bothe partes may be used for their most avayle and purpose and so to bringe the same in Forme of Lawe to such a poynt as judgement may be therof gyven rightly Take heerin for Ensample that I. S. made a Gifte of Lande to Charles Duke of Suff. and the Frenche Queene after their Mariage and the Heires of their Bodyes and now the same I.S. bringith his Action of Forme-downe in reverter for the same Lande agaynst the Lady K. and her Sister and the resydue of that Lyne and supposeth that the Land ought to him to revert for lacke of Issue lawfully begotten betweene the Duke and the French Queene and they come and pleade by way of Barr the Mariage betweene the French Queene and the Duke and convey the Pedegree lineally Wherunto I. S. replieth and shewith a former Maryage with the Lady Mortimer and averrith her Lyfe after their Birth And the Lady K. and the rest cannot by Lawe maynteyne their Barr and destroy his Title unlesse they pleade a lawfull Divorce and yf they pleade eny such yet the same shall not be under the Pope's Bulle but by the Certificate of th' Ordinary and for that th' Ordinary hath no Recorde or other lawfull Proofe wherupon he can lay eny Foundation to certify any lawful Divorce therfore the Certificate cannot be avaylable And so to conclude ther is no doubt in the troth of the case and by lyke reason no doubt in Lawe if you will allowe the Proceedinges accordinge to troth but that the Bastardie remaynith and is not able to be purged And yf the Bulle shuld have ben to make the Children of the sayd Queene and Duke of Bastardes legitimat besydes the Reasons before alledgid which ar as effectuall in this purpose as in the other yet it is most true that such legitimation had ben of no more force or Vertue heere in this Realme of Englande then they be of in those Contreyes that ar at the Pope's Obedience And who soever is legitimated ther of the Pope is not to be understandid for all that to be legitimate to inherite but in the Lands that do belonge vnto the Churche (i) Imo in ca. per venerabilem qui filii sint legi And besydes who soever is legitimate and abled generally to eny Dignitie is not in that neither to be understandid legitimatid vnto
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
so happe as God forbidd but also it is so penall that if such ill Chaunce shuld unfortunately befall it makith Traytors of those that will clayme their Inheritance although their intent were but to try their Titles And it is a Learninge by the Common Lawes of England that longe hath ben so receyvid that in every such case as eny of these happen no Exposition is to be allowed but the Lawe willith us to cleve to the Letter without eny further wrestinge therof then the Letter naturally and strictly will reache unto So that if it be not a stricte observation of the Letter according to his natural entent in any of these cases the Common Lawe allowith it not And the rather the Lawe is precise herin for that it is a newe Statute which seldome ar taken by equite in eny point because they ar all pennyd at large As for Example I will remember one or twoe which may suffice to such as be Learnyd to search for other of lyke effect wherof ther ar not a few In Anno 1. of Kinge Edward the 6 th ther was a Statute made That if eny were condemnid for the stealinge of Horses and Mares they should lose their Clergy and because the words Horses and Mares were the plurall nombre it was taken not to extende to one Horse or to one Mare And so for that cause a new Statute was made Anno 2. of the same K. that made lyke Lawe for stealinge one Horse or one Mare And the chief cause of this was because it is a Penall Statute in takinge from a Man that wherby his Lyfe might be savid In K. Richard the 3 ds Tyme there was a Statute made to Auctorize Cest a que use to enter vpon his Feoffees and make Feoffementes And it was in question in Anno 9. of H. the 7 th yf he made a Letter of Atturney whether this were good by the Statute and lefte therfore a doubtfull question by reason the Statute gyveth auctoryte onely which must in all poyntes be observed And ther is a greate deale more coulour to make that Feoffement goode being by Letter of Atturney then to make this Will to this purpose goode not signed with the Kinges owne Hande For if eny other put his Hande therunto and not the Kinge himself then it is signed with an other Hande and not the Kinges Hande And yf I gyve Auctorytie to my Executors to sell my Landes and say no further then yf they sell the same by Wrytinge or without Wrytinge it is sufficient but if I adde these wordes That they shall sell my Landes so that they do it by Wrytinge signed with their proper Handes yf now they sell the same and th' one cause the Residue in all their presence to wryte all their Names as thoughe every one had severally subscrybed I hold it no question but this Sale is not good for they must pursue their Auctorytie strictlye and otherwyse it is of no effect And consyderinge as is partly before remembryd how greate a mater it was to committe such a Trust it were a greate lacke and slander to the whole Parliament to thinke that they wold condiscend to the committinge of so high and weightie a Confidence as wherof the whole Estate and Weale of the Realme shuld depend but that they did forsee that their doinges therein shuld not be blynded by a Wrytinge signed with a Stampe The same thing was urg'd by Lethington the Secretary of Scotland in a Letter to Sir Will. Cecil Appendix to the 2d Vol. of the Hist of the Ref. F. 269. which might be put vnto either when the Kinge was voyde of Memory or els when he was deceassid as indeed it after happenyd as most manifestly appeeryd by open declaration made in Parliament by the late L. Paget and others that King Henry did not signe it with his owne Hande as it is playne and probable inough by the Pardon obteynid for one William Clerke for puttinge the Stampe vnto the sayde Will after the Kinge was departid and who doubtith but yf his meaninge had ben such so to haue disposed of the Crowne but that he wold have put this mater out of doubte by signifyenge the same with his owne proper Hande And touchinge the two chief Examples that ar brought foorth the one of the 21 and 33 of K. H. th' Eight wherby K. H. was aucthorized to gyve his Royall Assent to Actes of Parliament by his Letters Patentes and so foorth and th' other for that Queene Mary omittyd the style that was apoyntid by Parliament in 35 of H. th' Eight in her Parliament Writts howe little they make to the matter every Man may judge For the Statutes of 21 and 33 of H. 8. were only made in affirmance of the Common Lawe and such a Royal Assent wold suffice by Letters Patents without eny assurance thereof by the Signe And this Statute was but to put such matter out of question for if the Common Law had ben such before there is no doubt but that he must haue signed every Patent with his proper Hande and so these Cases are no way lyke And touchinge the seconde yf the Statute that conteynith the King's Style be well consyderid there wold be made thereof no such Collection For the same apoyntith a punishment to such Subjects as of purpose depryve the K. of the Realm of that Stile But there is no doubt but the Writts that wantyd the Stile were in Lawe sufficyent and the Parties that made the same punishable So that these Examples cannot be wrestid to serve eny whit for the purpose And where ther is made a great mater by reason the Will was inrollid in the Chancery and Constats thereof made under the Broade Seale and the Legacyes thereof in all poyntes performyd To that may be answerd That all that is therein affirmed may easily be confessed and yet it proovith nothinge to th' intent applied for it was his Will is ever he condescendid thervnto though he did never signe it with his Stampe nor with his Hande and a goode and a perfect Will to all Entents and Purposes whereof he had by Common Lawe Authoritye to make his Will of But it is not or cannot be the more a perfect Will to this respect or purpose vnlesse he did execute the auctoritie apoyntid by the Statute of 35 of H. 8. as is before remembryd Since then the Duke had a Wyfe lyvinge when he maryd the Frenche Queene and by the Statute ther is nothinge to be Claymid onles K. Henry had passed eny things either by his Letters Patentes under the Broade Seal of Englande or ells by his last Will signed with his most gracious Hande And that it is trewe that he had a Wyfe lyvinge when he maryd the Frenche Queene that so if it were requisite or hereafter may be there mought be avouchid more then one with much other matter touchinge that poynt of Illegitimacion and Inhabilitie as well in