in these matters A. D. 1233. the King invites over the Poictovins and other Strangers who with the Bishop of Winton oppress the Nobles with all their power and cause great discord and complaints For judgments were committed saith M. Paris Judicia committuntur injustis leges exlegibus pax discordantibus justitia injuriosis p. 263. to the unjust the Laws to them who were Outlaw'd Peace to those who were given to Discord and Justice to the Injurious These things so exasperate the Nobility that they Combine for Defence of the publick and by Richard his Brother and the Earl Marshal humbly request of the King that he would speedily correct these excesses which tended to the subversion of his Crown and Kingdom Regem humiliter rogabat ut tales excessus corrigere festinet per quos Coronae suae Regni subversio imminebat affirmabat insuper quod si hoc emendare diffugeret ipse caeteri de Regno Magnates tamdiu se ab ipsius consilio subtraherent quamdiu alienigenarum consortio frueretur M. Paris p. 264. to the oppression of his natural People and of their Laws and Liberties and that if he would not reform them they would withdraw themselves from his Counsel Whereunto the Bishop of Winchester replys That it was lawful for the King to call what strangers he listed about him for Defence of his Crown and Kingdom thereby to compel his proud and rebellious Subjects to their Obedience with which Answer they were so incensed that they promised each other in this cause Firmiter promiserunt ad invicem quod pro hac causa quae omnes tangebat usque ad divisionem corporis animae viriliter decertarent Matth. Paris ibid. which concerned them all they would spend their lives Then the King Summons them to a Parliament at Oxford to which they would not come and after this to another at Westminster they sending him this Message That he should suddenly remove Peter Bishop of Winton and his Poictovins and that if he would not do this they all by the Common Counsel of the whole Kingdom would expel him with his evil Counsellors out of the Kingdom Sin autem nollet ipsi omnes de communi consilio totius Regni ipsum cum iniquis consiliariis suis à Regno depellerent de novo Rege creando contrectarent M. Paris p. 265. and consult about the creation of a new King A. D. 1234. A Parliament is Assembled at Westminster in which indeed the Bishop of Chester Excommunicates all them who were designing alium Regem creare to create another King M. Paris p. 271. yet doth the Archbishop Elect and his Suffragans roundly declare against the cruel and dangerous Practices of Peter Bishop of Winton and Peter de Rivalis First Because they suggested Vocantes eos proditores facientes omnes sic vocari qui melior est homo terrae vestrae p. 271. that the English were Traytors and alienated the Kings heart from the Marshal who was the best Man in the Land So that in their judgment they that fought and were then in Arms for their Laws and Liberties were so far from being Traytors that they were the best Men of the Nation Secondly That there was cause to fear the Ruine both of King and Kingdom since they had got such an Ascendent over him Timendum est tam de vobis quam de Regno cum videamini magis esse in eorum potestate quam ipsi in vestra Ibid. that he seemed rather to be under their power than they under his Which also seems to have been the case betwixt King James and his Jesuites Thirdly That they confounded and perverted the Law of the Land sworn to and confirmed and strenghned by Excommunication and with that all Justice by reason of which and many other grievances they humbly besought him to govern his People according to the example of other Nations by the sworn Natives of his Kingdom declaring that if he did not correct these miscarriages in a little time Item legem terrae juratam confirmatam atque per excommunicationem roboratam pariter justiâ—iam confundunt pervertunt Ibid. Nisi infra breve tempus ista correxeritis in vos in omnes alios contradictores per censuram Ecclesiasticam procedemus p. 272. they would proceed by Ecclesiastical Censure both against his Counsellors and himself Edmund Archbishop Elect of Canterbury being soon after consecrated comes to the King with his Bishops and Prelates relates again the same grievances declaring to him That if he would not correct and pacifically compose these things with his Liege People he with his Prelates would denounce the Sentence of Excommunication against him and all the Enemies of this Concord Upon which the King is at last prevailed with to remand the Bishop of Winton to his Cure Denuntiavit etiam ipsi expresse quod nisi Clericus errorem demitteret cum fidelibus Regni sui pacificè componeret ipse cum omnibus Praelatis qui aderant in ipsum Regem sententiam ferret excommunicationis in omnes alios hujus pacis contradictores Ibid. to banish Peter de Rivalis from the Court and the Poictovins from the Kingdom One thing more is observable in this matter that as the War of the Marshal was generally thought just so the Marshal justifies himself to have been no Traytor as being always ready to stand to the judgment of his Peers and being exiled and deprived of his Offices and Lands against Law for which cause saith he I ceased to be the Kings Liege Man Unde homo suus non fui sed ab ipsius Homagio non per me sed per seipsum licenter absolvebar p. 273. and was absolved from my Homage not by my self but by the King A. D. 1237. A Parliament is held at London in which the King requests in regard of the great expence for his Sisters Marriage the thirtieth part of all Moveables both of the Clergy and the Laity After great opposition made to this demand and the recital of many supposed miscarriages the King disavowing and protesting against his former Revocation and freely granting the inviolable observation of the Liberties under pain of Excommunication hath yielded to him the thirtieth part of all moveables Spontanea promisit voluntate libertates M. Chartae suis fidelibus Regni sui ex tunc inviolabiliter observare c. Matth. Paris p. 298. In the year 1240. the Archbishops Bishops and many of the Nobles assembled at London grievously complain of divers Injuries Oppressions and Desolations which befell the Church by the evil Counsel of the King violating his Charters and his Oaths after he had so often sworn that he would preserve the Ecclesiastical Rights inviolated Reponentes querimoniam gravissimam coram Rege in curia sua super variis injuriis oppressionibus quotidianis desolationibus illatis Ecclesiae per iniquum Regis consilium
with our whole Power non do we nor will we permit our Lord the King though he were willing to attempt things so unusual undue and prejudicial to the Royal Dignity and this was Sealed by 104 Earls and Barons in the name of all the Commonalty of England What they affirm touching their Oaths to defend their Laws is an unquestionable truth for besides what hath been noted of this kind allready in the twenty fifth year of this King it was established by Act of Parliament 25. Ed. 1. c. 3. 42. Ed. 3. c. 1. that if any Statute were made contrary to Magna Charta or Charta de Forestis it should be holden for none and the Nobles and the great Officers were sworn to the Observation of them Yea Speed p. 583. by the Royal Command of Henry the Third Oaths were taken to tye all men to the strict Observation of them SECT IV. That we find throughout the History of our Kings that their Election or else their Compact with the People hath generally been conceived a thing proper to strengthen their Title to the Crown or at the least to satisfie their People 4ly IT may be farther worthy of our consideration that we find throughout the History of our Kings that their Election or else their Compact with the people hath generally been looked on as a thing proper to strengthen their Title to the Crown or at the least to satisfie the People For instance First Dunelm p. 195. Hoved. E. 258. Ab omnibus tam Normannorum quam Anglorum Proceribus Rex est electus Gemit de Ducibus Norm l. 6. c. 37. Walsing Hypod. Neust p. 436. Of the Conqueror S. Dunelmensis and Hoveden inform us that Foedus pepigit he made a Covenant with the people Gulielmus Gemiticensis and Walsingham say that he was chosen King by all the Nobles of England and Normandy Secondly Daniel p. 52. Polyd. Virg. Hist l. 10. p. 164. William the Second held the possession of the Crown of England by the Will of the Kingdom the Succession in Right of Primogeniture being none of his Volentibus omnium provincialium animis in Regem acceptus M. Par. p. 10. Chron. Joh. Brompt p. 983 984. The Historians say that the Nobles met in Council at Westminster and after long Consultation made him King that by the willing minds of all he was accepted for their King and the King himself declares quod ipsum in Regem creaverant that they had created him King Thirdly Henry the First was invested in the Crown by the Act of the Kingdom The Historians tell us that a Council of the whole Community rejected Robert Unanimi ascensu suo ipsum refutavêrunt pro Rege omninò recusavêrunt Henricum fratrem in Regem ere êrunt Knyght de Event Angl. p. 2374. In Regem electus est frater ejus Henricus consecratus est Rex Angl. M. Westm Hist. p. 235. In Regem electus est aliquantis tamen controversiis inter Procéres excitatis Sopitis W. Malmsb. l. 5. F. 88. J. Brompt Chron. p. 997. Walsing Hypod. Neust p. 446. Rich. Hagulst p. 310. the eldest Son of the Conqueror and would not have him for their King but with unanimous consent they advanced his Brother Henry to the Kingdom who was by all Elected and Consecrated King at Westminster after the death of William Rufus as being the first born of the Conqueror after he was King of England William of Malmsbury saith he was Consecrated within four days after his Brother's death lest the Rumour of Robert's coming to England should move the Nobles to repent of their Election Sciatis me Dei misericordia communi consilio Baronum Regni Angliae ejusdem Regni Regem esse coronatum M. Paris pag. 38. And in his Charters the King himself writes thus Know you that I was Crowned King of England by the Common Council of the Barons of the Kingdom And 't is observable that his Elder Brother Robert being absent at the Holy Wars they chose Henry King because they were affraid to be long without Government Fourthly Florence of Worcester William of Malmsbury R. Hoveden and R. Hagulstadensis do expressly say that Stephen was chosen King by the Primates of the Kingdom A Primoribus Regni cum favore Cleri Populi electus R. Hagulst p. 312. Flor. Wigorn. p. 665. Hoved. F. 215. Malm sb F. 101. B. with the favour of the Clergy and Laity and that he took upon him the Kingdom with their General consent A scensu Populi Cleri in Regem electus Malmsb Hist Nov. l. 1. F. 101. B. R. Hagulst p. 314. and his own Charters say the same thing as they had reason to do he having no Title at all but as one of the Bloud by mere Election advanced to the Crown Daniel p. 69. Fifthly Radulphus de Diceto Ab omnibus electus p. 529. Saith of Henry the Second That he was Elected by all and annointed by Theobald Arch-Bishop of Canterbury Sixthly And of Richard the First he saith Post tum Cleri Populi Solennem debitam Electionem p. 647. That being to be promoted to be King by right of Succession after the solemn and due Election both of the Clergy and Laity he took a Threefold Oath Hoveden adds that he was Consecrated and Crowned King of England F. 374. consilio assensu by the Council and assent of the Arch-Bishops Bishops Counts and Barons Seventhly P. 127. Archiepiscopus dixit quod nullus praevia ratione alij succedere habet Regnum nisi ab universitate Regni unanimiter Spiritus Sancti invocata gratia electus secundùm morum eminentiam praeelectus omnes hoc acceptabant ipsumque Comitem in Regem eligentes assumentes exclamant dicentes Vivat Rex Matth. Paris p. 138. King John received the Crown by way of Election as being chosen by the States saith Daniel Matthew Paris saith That all consented to the Speech of the Arch-Bishop that none ought to Succeed another in the Kingdom unless he were elected by the Community and thereupon they elected the Count and took him for their King Eightly In Regem eligitur p. 474. The History of Croyland saith That after the death of King John Henry his first born was elected King Ninthly Non tam jure haereditario quam unanimi assensu Procerum Magnatum Edward Franc. An. 1602. p. 95. The Succession of Edward the Second saith Walsingam Was not so much by right of Inheritance as by the unanimous consent of the Peers and great Men. Tenthly Edward the Third was elected with the Vniversal consent of the People upon his Father's Resignation Walsing Hist Angl. p. 126. Hypod. Neust p. 508.509 H. de Knyghton p. 2550. The Parliament then met at London declared by common consent That Edward the Second was unworthy of the Crown and for many Causes to be deposed and that his first born Son Edward
should unanimously be chosen King then the Election is publickly declared in Westminster-hall some of both Houses are sent to Edward the Second qui nunciarent Electionem filij sui who should acquaint him with the Election of his Son and require him to resign the Crown Electioni consensit populus universus all the people consented to the Election so did all the Prelates and the Arch-Bishop who made an Oration on those words Vox populi vox Dei and exhorted all to pray for the King Elect. Eleventhly Richard the Second succeeded Edward by right of Succession H. de Knyght p. 2630. ac etiam voto communi singulorum and by the Common suffrage of all Twelfthly Henry the Fourth Fifth and Sixth were only Kings by Act of Parliament Thirteenthly Edward the Fourth at his entrance on the Government makes a solemn Declaration of his Right to the Crown of England challenging it to belong unto him by a double Right the first as Son and Heir to Richard Duke of York Trussel 179. the Rightfull Heir of the same the second as elected by the Authority of the Parliament upon King Henry's forfeit of it Fourteenthly The Parliament Roll published in Speed's Chronicle often saith p. 913 914. That they had chosen Richard the Third for their King and that the Crown belonged to him as well by Election as Succession Fifthteenthly And Henry the Seventh Bacon Hist of Hen. VII p. 12. to all his other Titles by Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament SECT V. That we find mention in History of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own confession had not the immediate Title to the Kingdom and only Proclaiming him who had the Right by Proximity of Bloud Heir Apparent to the Crown 5ly MOreover we read of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only Proclaiming him who had the Right by proximity of Bloud Heir apparent to the Crown For instance The Contest betwixt Robert the Eldest Son of the Conquerour Ad haec etiam inter se constituerunt ut si comes absque filio legali in Matrimonio genito moreretur haeres ejus esset Rex modoque per omnia simili si Regi contigisset mori haeres illius fieret Comes hanc conventionem 12 ex parte Regis 12 ex parte Comitis Barones Juramento firmaverunt Flor Wigorn. p. 644. and William Rufus his younger Brother ended thus That f Robert dyed without a Lawfull Son King William should be his Heir and if King William dyed without issue Robert should be his Heir and this was Sworn to by twelve Barons of each side In the contest betwixt the same Robert and his younger Brother Henry Principes M. Paris p. 40. Hen. Hunting F. 216. B. Joh. Bromp p. 998. the Princes say some of our Historians the wise men of our Kingdom say others Sapientiores utriusque partis Dunelm p. 226. Flor. Wigorn. p. 650. R. Hoveden F. 268. B. Daniel p. 61. made a Mutual and general League of Concord by their Pious and Wise Council That Henry the First Amiciutriusque foedus inter eos statuerunt sic quod Rex propter manifestum jus quod habuit ad Regnum possidendum Roberto singulis Annis tria millia Marcarum Argenti daret ab Anglia quis eorum diutius viveret Haeres esset alterius si absque filio moreretur M. Westm p. 236. Henr. Huntingd. Hist l. 7. F. 216. B. M. Par. p. 40. being invested with the Crown by Act of the Kingdom should enjoy the same during life and that by reason of the manifest Right which Robert had to the Kingdom Henry should pay him 3000 Marks yearly and that the longest liver should be Heir to the other if he died without a Son by which Acts if William Rufus or Henry had Sons they were to Reign though the manifest Right was in Robert and his Heirs And here it is observable Maxima pars Nobiliorum Normannorum favebat Roberto cupiens hunc sibi asciscere in Regem fratremque aut fratri tradere vivum aut Regno privare peremptum hujus execrandae rei principes extitêre Odo c. hoc execrabile factum clam tractaverunt in quadragesima Florent p. 642. Dunelm A. D. 1088. Hoved. par 1. F. 264 Radulph de Diceto p. 489. Proditores vocat H. Huntingd. Hist l. 7. F. 213. Perfides W. Malmsb. Hist l. 4. F. 68. Conjurationis perfidiae Socios Florent p. 643. Perjurij Reos Matth. Paris p. 10. that though the greatest part of the Nobles did upon some dislike to Rufus to whom they had sworn Allegiance favour his Brother Robert desiring to advance him to the Kingdom and to destroy William or deliver him alive to his Brother yet do all our Historians declare that they who sided with William were faithfull to their Earthly Lord and the other party were Traiterous Perfidious and Perjured Persons and that the thing it self was an excrable fact And in like manner they who stood for Henry against the same Robert L. 5. de Henr. primo F. 88. who had manifest right are said by W. of Malmsbury justas partes fovere to be of the right side and they who fought against him to be fidei Regi juratoe transfugoe violaters of their Oath and yet this Henry was advanced to the Throne not because he had Right during the life of his Elder Brother but because Robert being gone to the Wars at Jerusalem Quia ignorabant quid actum esset de Roberto fratre primogenito timuerunt diu sine Regimine vacillare Matth. Paris p. 38. they knew not what was become of him and were affraid to be long without Government But to proceed to other instances of this Nature from History In the contest between King Stephen and Henry Duke of Normandy the Son of the Empress Maud and the Right Heir of the Crown Theobald Arch-bishop of Canterbury and Henry Bishop of Winton Rich. Hagulst p. 330. H. Huntind l. 8. F. 228. Joh. Brompt Chron. p. 1037. Gervas Chron. p. 1375. Chron. de Mailros p. 167. made peace betwixt them upon these conditions That King Stephen from that time should entirely enjoy the Kingdom as lawfull Prince with the Glory and Honour of it and Henry should succeed him in the Kingdom as lawfull Heir This peace was thus made by the Counsel of the Wise Men and the intervention of the Nobles and Friends of both parties and was declar'd to be honest and profitable R. Stephanus Ducem Hen. cognovit in conventu Episcoporum aliorum Regni Optimatum quod jus Hereditarium in Regnum Angliae habebat Dux benignè concessit ut R. Stephanus tota vita
he ruleth them by Law and observes his promises and contracts If therefore that must be supposed as a tacit condition of an Oath without which it cannot in equity and reason be supposed that any reasonable man would or any honest man should take an Oath if it cannot rationally be supposed that any rational body would promise or swear to ruine and destroy themselves their lives and fortunes it cannot be supposed that they would consent to such an Oath of Allegiance as doth entirely oblige them to suffer themselves and their Constitution to be ruined and to be assistant to it and therefore the tacit condition of that Oath must be provided that the Commands of their Superiour be according to Law and he doth govern them by Law Again if according to Fortescue our Kings Rule not by Absolute but by Political Power and therefore cannot change their Laws or invade the properties of the Subject but by their consent if he be advanced to the Throne for the safety of his Subjects in their goods and bodies if this be the difference betwixt an absolute and a political King or King of England that the Will of the first is his Law but the Law is the Rule of the Will of the Second the first can change the Laws of his Kingdom without the peoples consent the second cannot the first may easily be a Tyrant the second cannot govern his people Tyrannically and if from hence it follows that a King ruling Arbitrarily and Fundamentally overturning the Laws is no such King as our Constitution owns or ever did admit of and therefore that no Allegiance can be due to him by Law whom the Law knows not nor ever did suppose but rather always did exclude Then he who being a Political King makes himself absolute requiring in one of his Kingdoms to be obeyed without reserve in another setting up Governors and Viceroys disabled by Law to be so in a third part of his Dominions virtually dissolving all the Laws against Popery by admitting a Pope's Nuncio dispensing with the Laws forbidding them the exercise of their Religion and the taking upon them Offices Civil and Military and by just consequence all the Laws of the Kingdom by claiming an unlimitted Power of Dispensing with them He who was entred into a League with a Potent Monarch to set up Popery and Arbitrary Power in England he who was bound by the Principles of his Religion to destroy the Church of England and to give up Protestants to suffer the punishment decreed against Hereticks by the Romish Church and had begun to dissolve her Colleges and silence her Bishops by an Illegal Arbitrary Commission and was so wholly given up to the will of the Jesuits that nothing else could be expected from him he certainly must be none of the Kings to which we swore Allegiance and by refusing to be a political King the only King our Laws will own he must have absolved his Subjects from that Allegiance which is due only to such a King If Rebus sic stantibus be as the Reverend Bishop Sanderson saith a condition of all Oaths if the matter of the Oath must be then judged to cease when things so change that if the change could have been foreseen the Oath would not have been taken then much more must the Obligation of it cease when so great a change is made as from a political to an absolute King from a King ruling by Law and protecting the Church to a King ruling against Law and subverting the Church against both his Oath and Law The same learned Bishop saith That if a Soldier swears obedience to a General or Commander of an Army when he ceaseth to be General his Oath ceaseth to oblige Si quis ergo miles juret Obsequium belli Imperatori finito demum bello cum ipse desierit effe Imperator non ultra tenetur ex juramento Obsequium ei praestare si Pater aliquis juraret se Testamentum in quo filium instituisset Haeredem nunquam mutaturum comperto tamen postea filium Haeredem institutum Patri venenum miscuisse Pater non ultra tenetur juramento Prael 7. §. 7. and if a Father swear never to change his Will in which he hath made such a Son his Heir he is absolved from that Oath if his Son afterward endeavour to poison him that an Oath to deliver a Sword binds not to deliver it to a mad man who may destroy himself or me with it And an Oath to marry a Woman binds not to do it if she prove with Child by another why therefore should an Oath of Allegiance made to a politick King ruling by Law bind us to pay that Allegiance to a King thus ruling Arbitrarily he ceasing as much to be that King we swore to as a General plainly going about to destroy his Army ceaseth to be their General and being as much different from his former self as a Woman pregnant from a Virgin and as like to be pernicious to the Government as a Son attempting to poison his Father would be to him or a Mad-man to them who should give him a Sword and all this seems plainly to be contained in those excellent words of King James Fourth Speech at Witehall A D. 1609. p. 530 531. that the King was lex loquens after a sort binding himself by a double Oath to the Observation of the Fundamental Laws of his Kingdom tacitly AS BY BEING A KING and so bound to protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation so as every just King in a setled Kingdom IS bound TO OBSERVE THAT PACTION MADE TO HIS PEOPLE BY HIS LAWS in framing his Government agreeably thereunto and therefore a King Governing in a setled Kingdom LEAVES TO BE KING AND DEGENERATES INTO A TYRANT as soon as he leaves off to rule according to his Laws Therefore all Kings that are not Tyrants or purjured will be glad to bound themselves within the Limits of their Laws and they that persuade them to the contrary are VIPERS and PESTS both against them and the Common-wealth Where it is granted 1. That there be Fundamental Laws of the Kingdom And 2ly That our Kings even by being Kings do tacitly bind themselves to protect the People and the Laws of their Kingdoms 3ly That the King makes a Paction with his People by his Laws which Paction he is bound to observe And 4ly That as soon as he leaves off to rule according to his Laws HE LAVES TO BE A KING and then certainly we must leave to be of right his Subjects or to owe him Allegience And though even in this case I cannot yet approve of Subjects taking up Offensive Arms against a King on this account because I know not what power of Avenging themselves they have or how the Sword is put into their hands to doe it nor who hath made them Judges in their own cause yet if Providence
is pleased to send a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 another Prince to free us from a King who hath thus violated his Compact and not only thus leaves to be King but doth it also by deserting us and so far abdicating the Government which is our present case then I am apt to think we may honestly accept of this deliverance as being formerly absolved de jure from our Allegiance to such a King And lastly let it be Observed that all our Kings if they were capable were Crowned soon after their coming to the Throne or the decease of their Predecessors the Ceremony till of late being only omitted in the case of Henry the Sixth a Child of nine months old that at their Coronation they generally took their Oaths to preserve their Peoples Rights and Liberties and govern them by their Old and good Laws and Customs and that they received Homage of their Subjects at the same time That the usual custom was and still is first That they take their Coronation Oath and then the Arch-Bishop ask the People whether they be willing to subject themselves and pay their due Allegiance to a King so sworn That if any of them at their Coronation refused to promise these things they endeavoured to hinder their Coronation till they had satisfaction in that point that sometimes the Bishops before their Coronation acquaint the People with the Constitution of the King and Kingdom how the King should behave himself to them and in what things they were to obey him on which the practice of the Bishops in the case of Magna Charta and Charta de Forestis gives us a sufficient Comment sometimes the Arch-Bishop at their Coronation adjures them by God not to take the Crown upon them unless they uprightly intended to Observe their Oaths Sometimes they promised Homage and Allegiance only conditionally provided that their Laws might be granted Of Hen. 1 M. Paris p. 38. Sub. rali igitur conventione supradisti Comites Barones juraverunt â—channi Duci Normanniae 〈◊〉 fideli servitium contra omnes homines Annal. Mon. Burton p. 257. M. Paris p. 1â—7 and that the King would be true to his engagements as in the case of Henry the first and of King John Sometimes upon the attempts of their King 's wholly to violate their Rights Liberties and Properties they give themback their Homage and resign it to them and declare themselves no longer obliged to it nor guilty if they do not pay it So that if there were no such evidence of a contract as we have given if the nature of a Political Government did not require and suppose it If * Liguntia est vinculum arctius inter subditum Regem utrosque invicem connectens hunc ad protectionem Justum Regimen illum adtribute Justum Subjectionem Glossar Sir H. Spelman had not so expresly said that the Oath of Allegiance is reciprocal betwixt King and Subject yet these things plainly seen to prove the Oath of Allegiance is or was at least by our Fore fathers thought to be reciprocal and if so then have the generallity of Casuists plainly determined that it must cease on the one part when the very substance of it is plainly and perseveringly violated on the other For both * Cum aliquid promiâ—â—um est ob causam quae subesse putubatur non subest ut si juraveris te facturum aliquid eo quod beneficium aliquod te in petraturum sperabas quod tamen non impetras tunc ad implendum promisum non teneris quia conditio illa tacitè in Juramento fuit inclusa si beneficium impetravero conditione autem non impletâ promissio ipsa licet jurata obligaâ—e 〈◊〉 Bâ—ldwin de Cas Consc l. 2. c. 9. Cas 17. Rivet explic Decal p. 131 Mr. Tombs leâ—â— 18. p. 123 124. Bp. Sanderson de juram praelect 4. § 8. p. 99. Papists and Protestants unanimously agree in this that when an Oath is reciprocal or conditional if one part break the Covenant and violate the condition the other is free from the Obligation of the Oath For as a conditional Proposition say Logicians puts nothing in being but when the condition is put it becomes absolute so a conditional Obligation becomes then only absolute when and whilst the condition is put and therefore ceaseth when it is removed Besides the Engagement on the one side would not have been without the engagement on the other and therefore the performance of it must depend on the performance of the other And 3ly Otherwise these Oaths would serve only for a snare to honest men as v. g. Put the case the Governors of two Armies mutually swear not to fight in so many days if one party breaking his Oath and fighting the other be obliged by his Oath not to fight it would be all one as if he had sworn to deliver up himself and his Army to be butchered which is contrary to the law of Nature So in like manner if a King hath so far violated his Oath as to set himself directly to overthrow those Laws and to destroy that Church he bound himself by Oath to defend If he hath not only engaged himself in a Religion which binds him upon pain of damnation to overthrow all the Laws made to keep it out and to give up all his Subjects to suffer all the punishments decreed by the Roman Church against Hereticks that is the loss of Goods and Life If he hath entred into a League with another potent Monarch to set up Popery and Arbitary Government in England and yet his Subjects must be obliged to bear Allegiance to him by virtue of their Oaths then must they be ensnared so far by them as to deliver up their Laws and Church to be destroyed if not to assist their Prince in doing of it I am not ignorant that Bishop Sanderson puts the case thus Rex aliquis simpliciter citra respectum ad fidelitatem subditorum jurat se Regnum administraturum justè secundùm Leges subdui alio tempore simpliciter citra respectùm ad Principis Officium jurant se ei debitam fidelitatem obedientiam praestituros utrique obligantur quod sui est Officii fideliter facere etsi defecerit altera pars à suo Officio ita ut neque Rex solutus sit suo juramento si subditi debitum Obsequium non praestiterent nec subditi suo si Rex à justitiae tramite deflexerit De juramento prael 4. §. 8. p. 100. A King one time swears simply and without respect to the fidelity of his Subjects to govern the Kingdom justly and according to the Laws the Subjects at another time simply AND WITHOUT RESPECT TO THE PRINCE'S DVTY swear to yield him due Fidelity and Obedience they are both obliged faithfully to doe what is their duty though the other party fail of his so that neither is the King absolved from his Oath if the Subjects do not yield him their due obedience nor are the Subjects absolved from their duty though the King deviate from the way of Justice By this decision I was a long time diverted from ever thinking that the Oath of Allegiance was Reciprocal or made by the Subject with respect to the Duty or the Oath of the King or the nature of our Kingly Government though upon perusal of our Histories I find that all our Ancestors thought otherwise or at least acted as if they really believed the Oath was reciprocal and made with respect to the Obligation which was upon their Sovereign tacitly as by being a King and expresly by his Oath at his Coronation to protect as well as the People as the Laws of the Kingdom Nor is there any thing in these words besides the Authority of that great man to shew the contrary For 1. When the King swears to protect his People this sure doth not oblige him to protect an Out-Law or a Rebel 't is therefore plain that this part of the Oath respecteth the fidelity of his People 2. Whereas he saith the King simply and without respect to the fidelity of his Subjects swears to govern the Kingdom justly and according to the Laws 't is very reasonable he should do so because he is a King only by and according to the Laws and because the Laws have provided him a remedy against the undultifulness of any of his Subjects If any particular Subject offend against his Government he can punish him by Law if any number of them prove Rebels he can cut them off by Law if all of them prove so when he hath power sufficient he hath them all at his mercy by Law and they have forfeited both Lives and Fortunes to him and what could he desire more Whereas if the Subject be bound to yield Allegiance to the King though he deviate never so much from the way of Justice though he usurps as much upon their Lives and Fortunes without their violation of the Law as if they were the worst of Rebels they are left in a very deplorable condition nor is it any advantage to them that they have fundamental Laws by which they ought to be governed or that the Government is Political and tyed to the observance of the Laws and not absolute or that the Governor is sworn to rule according to Law seeing upon his Sup osition they are as much enslaved by their Oath of Allegiance as they could be were their King absolute tied to no Oaths or Laws but free to deal with them at his pleasure Nor doth it alter the case at all that the King swears to govern by Law at one time and many of them swear Allegiance at another For besides what I have shewed that the custom antiently was and still is at the very time of his taking his Coronation Oath for the Subjects to declare their acceptation of him thereupon as their King and for some of all Orders to doe him immediate Homage in the name of the Rest which seem to be evident marks of Stipulation and Mutual Engagement I say besides this it seems not at all material to the business when the Oath is taken provided that the Ground Reason and Foundation or chief Motive of it whensoever it be taken is the aforesaid contract of the King to govern them by Law either already made or at his Coronation to be made FINIS