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
especially till they leave off not only censuring but misrepresenting others who by a fair state of the Question are they alone who are directly contrary to them which himself is elsewhere sensible of when he says of the direct contraries in all probability one is true Pag. 35. but the direct contrary to what they hold is not that it is lawful for every Man to rebel when ever he thinks it necessary Pag. 2. much less when he pleases Pag. 37. Himself yeilds that non-assisting the late King was notoriously necessary for preservation of the Nation and what restrains others from judging when there is the like notoriety for resisting As he charges others with holding that they may resist when and whom they please they may say that he is for not assisting in the like latitude Pag. 37. and for cramping the Government if he has not the Courage to attempt against it We may resist when the Original Contract is notoriously broken and we must not resist when the Original Contract is notoriously broken are contrary and contradictory Propositions one of which I grant to be true But we must resist in no case and we may resist in any case Pag. 37. when every Man pleases or at least thinks it necessary are not Contraries Pag. 2. but Extreams and 't is odds but the Truth lies in the middle that we may resist in some case which cries aloud and justly stirs up a Nation as with the Voice of God This Gentleman does not observe that the Question is of one who ceases to be King according to that of Bracton non est Rex ubi dominatur voluntas non Lex which is not barely his Opinion but warranted by that noble Transcript of the Original Contract the Confessor's Law which shews that if a King does not answer the true end for which he was chosen he loses the Name or ceases to be King which was very vvell understood by J. 1. who told his Parliament Vid. J. 1. his Speech in Parl. March 21. Anno 1609. that every just King is bound to observe that Paction made vvith his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law And thus the Protestants in Germany vvho resisted the Emperor notwithstanding their Oaths of Fidelity to him Hornii orbis Polit. p. 18. pleaded that they resisted him not as Caesar but qua non fuit Caesar Our Author confesses that the late King notoriously subverted our Constitution Pag. 2. did not treat us like English-Men but Slaves and says all grant his design vvas certainly to extirpate the Protestant Religion Pag. 16. to enslave and consequently to extirpate the English Nation And I dare appeal to Dr. Falkner's Christian Loyalty to try ours by in such case Dr. Falkner's Christian Loyalty where there vvas a manifest Renunciation of the Government as an English King And surely no Man of Sense vvill say that such a liberty for resisting as this Lay-Gentleman imputes to the Williamites can be the Consequence of resisting such a Prince as he describes and of exploding that Sycophantry which did encourage and would support him or that the best of Princes can need the influence of that Doctrine vvhich hurried on the other to his Ruin the insinuation of this is the greatest Reflection which can be put not only upon the Friends of their present Majesties but upon their Majesties themselves Tho some would have been so ungrateful to have sent his Majesty back uncrowned after he had rescued them from their present Fright which might soon have been laid vvith a fevv flattering Caresses the English Nation abhors such a Reproach nor can their Majesties so far depart from their own Nature to violate that Constitution which they have restored nor yet can the confuting their slavish Doctrine of Passive Obedience Pag. 36. in the least derogate from that religious Awe and Reverence which is due to Crowned Heads tho it may remove that Bugbear and Mormo with which some would fright Mankind out of love with them Nor can any good Prince's Crown be unsecure by rejecting the deceitful Officiousness of others since nothing can hazard it but such extravagant Actions as a well-dispos'd Prince can never fall into and which by natural Consequence as well as Equity provoke a whole Nation The Laws make all Risings against the King punishable with Death and therefore single Persons or Companies in their sound Minds will not attempt them but when the Cause is so apparent that they who suffer them to stand alone in it do but invite and encourage Attempts upon the Lives and Liberties of all But if as often such there are hot Men over-valuing themselves or the Strength of their Adherents will endeavour to destroy a good Government to raise their Faction or accomplish some low Ends of their own the Prince has sufficient Security with the Laws and Hearts of his People on his side And how strict soever the Laws are 't is a vain thing to expect Safety from them alone when any part of that Authority from which they flow is render'd cheap or invaded with an high hand And they who think to get above all Law will find their open Violations to give the same Freedom to others which they take to themselves It ought says the Lord Clarendon Lord Clarendon's Survey of the Leviathan p. 48. prudently to be consider'd whether People may not be very naturally dispos'd to use that Force against him that declares himself to be absolv'd from all Oaths Covenants and Promises and whether any Obligation of Reason or Justice can establish the Government in him who founds it upon so unrighteous a Determination As a judicious Person has well observ'd The new Oath of Allegiance justified Edit An. 1689. sold by Ran. Taylor If single Persons or many together be injur'd by the Prince they are oblig'd to suffer quietly rather than disturb the Publick Peace and in this case Passive Obedience is a Christian Duty and is necessary to the Quiet of every Nation since the best Governours may by mistake injure some few and if they do so that doth not break the Compact because all the People collectively or representatively were but one Party in the Stipulation and therefore those Acts by which a King must forfeit are such as are likely to take away the Rights of the whole People or aim at changing the Form of the Government subverting the Laws In such case Passive Obedience is not the Duty of a Community who have Rights and Liberties secured by Law and for the whole People to stand by silent and see that done is the greatest Folly and the highest Treachery to their Country and Posterity Doctrine of Non-resistance p. 1. But as this Gentleman asks What can the Friends of their present Majesties pretend to palliate their
the Constitution Allegiance to our present King and Queen undertaken to be prov'd lawful both by the Equity and Letter of our Fundamental Law explain'd by the Practice of the Kingdom HAving sufficient Experience of the Consequences of being always on the Forlorn Hope tho in the noblest Cause I should yeild to the Justice of my Friend 's kind Rebuke for engaging in so many unprofitable Battels wherein they who have raised neither Envy nor Provocation are suffered to carry away the Prize by the Consent of Friends as well as Enemies were it not that he who is mercenary and fights for Pay or for Spoil can be no fit Votary to Truth which may sometimes be consistent with Mens Worldly Interest rarely advances it but can never vary with it while they who court Truth for the Dowry are often driven to Inconsistences with her and themselves and must be content to serve themselves of her thinnest Disguises Which I take to be the case of them who pretend to justify this Government upon any other bottom than that on which it really stands and may flourish in spite of open Enemies if it be duly arm'd against false Friends who ground it upon their own Fictions and flattering Schemes prepared in times with which they suited and were but like the Hypotheses of Philosophers to answer the then present Phaenomena Such Men valuing their own Reputation and Interest too much above the Publick expose it to the Contempt of the more subtile Adversaries Vid. Considerations offered for taking the Oath of Allegiance said to be Dr. Whitby's reflected upon in a Treatise call'd The Charity and Loyalty of some of our Clergy who cannot but smile to see Quietism prevail in Allegiance as well as in Devotion and them to pretend to discharge the Duty of Subjects and to deserve Protection from the Government who not only make resisting the late King damnable which implies a scrupling to defend that Government which protects them but broadly insinuate that no personal Assistance is due to keep the King and Queen in their Station even tho they have sworn Allegiance to them which shews what is to be thought of some Mens Promise constantly to pay that Fidelity and Allegiance which they have all sworn When the fit of Quietism is over and the opportunity inviting they may in the sense of some of the Brethren with a safe Conscience fight for their King de Jure Wherein it is evident that no Provision is made for the Safety of this Government but only for securing to themselves their Places of Profit under it yet no Man can believe that the Law which requires the Oath of Allegiance can give the least scope for so gross an Evasion so serviceable to that pretence of Title which it rejects Vid. The Doctrine of Non-resistance and Passive Obedience not concerning the Controversy Vid. the Preface Nor will the Jacobites be less thankful for their Doctrine who not only condemn all those whose active Zeal help'd to turn the Scale against them but allow no Title in our King unless it be by a real Conquest of the Nation or legal Succession in the Line The first of which the King not only disowns and the People would be loth to fight to maintain over themselves but according to the Objection in Elementa Politica Vid. Elementa Politica would have required a formal Denunciation of War And the last labours with such Difficulties as few can be able to resolve themselves or others in But as I am verily perswaded that our Government stands upon such a Rock as has been unmov'd for many Ages and has no need of a Lie for its Support I shall with the utmost Faithfulness address my self to its Defence wherein if I offend some of contrary Sentiments I must entreat them to answer me like Men with Reason and Authority and not in those Methods wherein they have hitherto been too successful All the Opposers of our present Settlement who pretend to talk Sense when press'd home grant that the Constitution of the English Government must be the Guide to their Consciences in this matter And tho I cannot commend those Justices of the Peace who permitted a Divine Thomas Lessey Rector of Laurence Lyddeard in Somersetshire Eminent in his Country and an Example to others to read a Protestation before his taking the Oath of Allegiance to King William and Queen Mary yet I ought not to reject his Testimony that Lawyers are the best Directers of Conscience in this case The words according to a Copy of his written Paper now in my hand transmitted from the Country were these I am assured by Learned Men in the Law whom I have consulted as the best Directers of my Conscience of this case This was at last Christmas-Sessions for the County Sir Edward Philips being Chair-man that by the Laws of this Nation the Allegiance of the Subject is due to a King in Fact or in Possession of the Government provided they have been recognized by the three Estates of the Kingdom in a Publick Convention I am fully convinced of the Truth of this And this is a Reason prevails with me to swear Allegiance to King William and Queen Mary The great Unhappiness of this Nation is that Divines not only set up for the greatest States-Men but will pretend to be the best Lawyers and Casuists in these Points of which the truest Friends to them and the Church have complained Thus the late Earl of Clarendon having in his excellent Book against Mr. Hobbs Lord Clarendon's Survey of the Leviathan p. 75. tax'd some Divines of malicious Endeavours to render Monarchy insupportable by the unlimited Affections and Humours and Pretences and Power of a single Person Says others of them believe as unreasonably that the Disposition Natures and Hearts of the People cannot be applied to the necessary Obedience towards their Princes nor their Reverence and Duty be so well fix'd and devoted to them as by thinking that THEY HAVE NOTHING OF THEIR OWN but whatever they enjoy they have only by the Bounty of the King who can take it from them when he pleases Whatever such Casuists hold of the absolute and inseparable Soveraignty of Princes if I prove that King William and Queen Mary are Rightful King and Queen according to the ancient Constitution of the English Government how much soever my Endeavours of real Service to the Croâ—… may be misrepresented by Men of another Allegiance I shall hope at least to be thought to have served my Country too much infected with wrong Notions or distracted with false Mediums and to have done Justice to our Great Deliverer and those English Worthies who invited or embraced the Deliverance and by their steady adhering to the Interest of their Country avoid that Forfeiture of Protection which too many have incurred To which end I shall shew 1. That the People of England had a rightful Power lodg'd with them for the
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
THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN In Two Parts In the First is shewn The ORIGINAL CONTRACT with its Legal Consequences allowed of in former Ages In the Second All the Pretences to a Conquest of this Nation by Will 1. are fully examin'd and refuted With a large Account of the Antiquity of the English Laws Tenures Honours and Courts for Legislature and Justice And an Explanation of material Entries in Dooms-day-Book By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power Errat siquis existimat tutum ibi esse Regem ubi nihil à Rege tutum est securitas securitate mutuâ paciscenda est Sen. London Printed by J. D. for the Author 1690. To the Right honble AUBREY DE VERE Earl of Oxford Baron of Bolebec Sandford and Badlesnere Lieutenant General of their Majesties Forces Colonel of the Royal Regiment of Horse-Guards Lord Lieutenant for their Majesties in the County of Essex Knight of the most honourable Order of the Garter and one of His Majesty's most honourable Privy-Council My LORD THEY who observe what License has been given as well as taken to blemish the Instruments under God and our King in the greatest Deliverance with the most immediate appearance of God in it perhaps of any next to that of his chosen People of old would think the Nature of things to be inverted Triumph to belong to the Conquer'd and the most desir'd Deliverance to be worse than the deprecated Bondage or to lose its Nature because it was the return of Prayers and Tears and not purchas'd by Rivers of Blood And after-times I have seen an exact Pedegree o◠the Earl's Family from Syford a noble Norman Gothick Extraction Vid. Pref. who was eminent under Rollo who Anno 912 obtain'd Normandy by Treaty with Charles the Simple and marrying his Daughter This Syford made the like bargain with Arald the first Earl of Flanders from which Marriage the Earls of Flanders and the Veres Earls of Guisnes in Flanders descended Alberic or Aubrey de Vere or Ver as he stands enter'd in Dooms-day Book is suppos'd to have come into England with W. 1. 'T is certain at the time of the great Survey he was a Proprietor in several Counties particularly in Essex and Humphrey the Son of Alberic had at that time several Mannors in Norfolk and Suffolk 'T is probable that this Son of Alberic dy'd in his Father's Life-time I should take the Comes Albericus who is enter'd in Dooms-day Book in several Counties as a Proprietor from before the reputed Conquest to have been Alberic de Ver and the rather because otherwise he and his Descendents from that time are wholly lost and besides no place in England can be found of which any Alberic or Aubrey was Earl till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford But before that time the Office of High Chamberlain belonged to the Family and as appears by Records which I have seen in the Tower was annex'd to their Barony But that of Bolebec belong'd not to it till about the time of King John when Earl Robert married the eldest Daughter of the Lord of Bolebec the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3 with the eldest Sister and Co-heir of Bartholomew Lord Badlesmere in which your Lordship 's Great Name will flourish taking root downwards as it has spread upwards to the first Ages will treat their Memories with Contempt who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship and the Followers of so bright an Example Selden Dissert ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus c. eminentissimus erat pristini planè commatis juris sine ullâ Caesarci intermixtione peritus atque exercitatissimus apud nos Albericus de Ver. Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmix'd English Laws than your Lordship is and will be to Posterity for your generous Defence of them Certain it is how much soever some pretend to passive Valour they cannot bear the Reproach of such extraordinary Vertue and are forced to shut their weak Eyes at that shining Bravery with which your Lordship strugled with the Flatteries and Threats of Fortune and of Power Becoming in the Language of the Heathen Philosopher a Spectacle most pleasing to the Gods the Effects of which Pleasure your Lordship has felt in the admir'd Tranquillity of your own Mind and in the Glory permitted you of being signally accessary towards the present Happiness of your Country not only by your resolute Vndertaking but even by your Sufferings I must own the Sufferings of others to have contributed to it by accident as those things may well be said to be which happen contrary to the intention of the Agent and nature of the Action But the Nation was glad to find their private Resentments and self-Defence to carry them along with the Publick Interest which some of them had sacrificed to low Ends or stupidly neglected being as unconcern'd at publick Calamities as if their former Exemptions which they seem'd to aim at had made them of another distinct Community Such as these deservedly lost the Credit of their share in this Revolution not only as they had drawn their Sufferings upon themselves and others by tempting those whom they flattered to make Experiment of the force of their Doctrine but as their subsequent Carriage has demonstrated upon what narrow Principles they engag'd not in the Cause of their Country but their Own Their lowness of Spirit makes them resemble those fawning Creatures whom the least Gentleness raises to Familiarity but notwithstanding the Advantages which they enjoy under this Government 't is not to be presum'd that they are given them otherwise than to reclaim and wean them from Notions as destructive as they are useless to this equal Administration They who now pretend to merit by transplanting the Doctrine of the Bow-string into the Service of this Government would do well to consider whether in the late Reign it really profited any but themselves and whether they kept to it any longer than while they found their account in it As it is our Happiness to have a King born and acting for the Good of Mankind it is not to be fear'd that he should cherish what is contrary to their common Sense and Interest or that he will countenance Reflections upon those noble Patriots who ventur'd every thing dear to them in the same Cause with himself while Success was doubtful and whose Reputations next to his own facilitated that Revolution for which late Posterity shall praise those of this Generation One would think that such a Cause should not stand in
that our King does not claim as lawful Successor if lawful be confined to Succession in the Line not only as the Predecessor is alive and two are invested vvith the Soveraignty annexed to the Crown of this Realm which according to Dr. H. and others of that Notion Vid. Dr. H. his Preface to Jovian p. 41. is void and null but if Conquest which could be no Foundation for Hereditary Succession in the Conqueror be out of the question according to this Lay-Gentleman's Principle there could be no colour for the Succession but a bare Desertion or leaving the Kingdom without providing for the Government which whether voluntary or involuntary he matters not and consequently Pag. 6. as this might be forced and submitted to animo revertendi that alone could not devolve a Right upon a Successor Shall no Misgovernment whatever put an end to this Right yet shall a suppos'd faultless Desertion How could any upon this Principle excuse the Attempts for restoring King Charles the Second Men cannot reasonably hope to serve their Party with Notions which would condemn more of them than they can pretend to justify Besides effectually to set aside the invidious Suggestion of a real Conquest over the Nation and absur'd one of a legal lineal Succession in such Circumstances as attend this Case his Majesty cannot be presumed to claim the Crown but as he received it nor to have receiv'd it but as it was offered which was upon the Vacancy of the Throne through the others Violation of the Original Contract between Prince and People But if for the sake of an unreasonably disaffected Party Men shall be allowed to reflect Pag. 36. not only upon those who being duly discharged from their Allegiance to the late King assisted this from the beginning in settling the Kingdom but upon the Proceedings of our true Representatives and the Settlement it self for fear lest the exposing their Insolence and Folly should exasperate them it would argue that distrust of the Cause which would be a greater Justification of their Insolencies than they can derive from any other colour But if as our Representatives have judged and thereby concluded us the Contract was broken before they determined so what ought to have restrain'd them who were so inclin'd and had opportunity from meeting our Great Deliverer as the Jews did Alexander with an High-Priest or Bishop in the Van And they who leave wholly to Providence what may require their Co-operation deserve an Epicurean God like unto themselves meerly Passive or unactive while the World goes round Pag. 34. This Gentleman tells us that as we had no disloyal Exhortations from Press and Pulpit to perswade Men to fight against their Prince tho he might have met with many a strong innuendo enough to have stigmatized a poor Whig so neither had we any to persâ—ade us to fight for him but the thing was committed to God to determine as he thought fit and he says if it were unlawful to resist him Pag. 7. it was also as unlawful to assist him and enable to destroy the true Religion the English Liberties and Immunities nay the very Nation Now it is evident that if our present King had not receiv'd Incouragement from many in this Nation who had promised and were ready to assist him as occasion might serve the bare non-resisting the late King and his Army had enabled him to destroy the English Nation which 't is granted that he was bent upon and therefore assisting our present King was not only no Sin but a Duty by the same reason that it was a Duty not to assist the other But they who are of a contrary Opinion can by no means excuse themselves for not fighting for the late King or endeavouring to assist him when he stood in need and required it of them for if he continued their lawful King whom they were bound not to resist upon any account whatsoever according to this Advocate for the Non-assisters they were obliged to obey all his legal Commands Pag. 5. and they were certainly equally bound as they would be true to their Oaths to bear him Faith and true Allegiance and to their Power to assist and defend all Jurisdictions Privileges Preheminencies and Authorities granted or belonging to him as King or united and annexed to the Imperial Crown of this Realm This they were certainly bound to against a Foreign Force for Preservation of that Head of the Government which notwithstanding the most tyrannical Sway they will have still to be God's Ministers to them for good Vid. pag. 1. and which their Prayers and Tears joyn'd to temporal Arms might have rendred useful to their purposes Tho they were not obliged to assist him in the Execution of illegal Violences yet if they were to bear with him notwithstanding the utmost they were in other things to help him carry on the Government and their Sins of Omission must needs be as hainous as others of Commission Nor is this Gentleman more happy in appealing to Primitive Antiquity to justify the Non-assisting than he has been for the Non-resisting Doctrine For those Fathers who forbad a Souldier's Life did it not as 't was in the Service of Pagan Emperors but upon Supposition that the use of the Sword was unlawful for them to whom they gave the Precept to which end he that takes the Sword shall perish by the Sword was applied which yet was originally meant only of taking it up without a lawful Call But Tertullian on whose Authority our Non-resister relies agrees that they who had taken the Military Oath to Pagan Emperors before Baptism were bound to fight for them according to which they who had sworn Allegiance to King Charles the Second his Heirs and lawful Successors and to defend the Rights of the Crown nay all they who had sworn at any time before our Seers had their Eyes opened by their feeling the Effects of their own Doctrine were upon pain of Damnation to fight for the late King till the chance of War had decided the Controversy And whatever liberty of judging he charges as the Consequence of the resisting Doctrine will fall upon the non-assisting which is as truly a departure from Duty and as great a breach of the Oath of Allegiance while the Duty of Allegiance remains as the other Let him assign the time from whence it was a Duty not to assist and I shall not scruple to pronounce that from that very time Resistance was as warrantable and more honourable But suppose for once that the Primitive Fathers were against fighting for Pagan Emperors as they were Pagans and to bring it home to the late Case that the Protestant Jacobites were excusable from fighting for the late King as he was a Papist would not this be a virtual disabling him from being King of this Protestant Nation for otherwise as it is an undoubted Prerogative or Priviledg of this Imperial Crown for the King to make War and
Authority was received from God who has not only in his Providence permitted but by a signal Interposition asserted that Original Constitution of our Government from whence our Laws and Allegiance are under God derived nor will it excuse his malicious as well as false Insinuation of no Title in our King not one Precedent to warrant it his being only King de facto and that those Inducements which mov'd the Compassion of our great Deliverer were Lies and Forgeries without which says he Pag. 21 they could never have driven their Master away Wherein tho he is more daring yet he is more cunning than the Gentleman who with Lay-simplicity yeilds the whole truth of the late King 's subverting the Constitution while the more subtile Clergy-man denies all and puts us to prove it after it has been found by the Grand Inquest of the Nation and confirm'd by the most Authoritative Judgment which is of less weight with him than the hastiest Church-Censure I would gladly know of him whether notwithstanding that Precept Touch not mine Anointed do my Prophets no harm he has not deliver'd or been ready to deliver many of God's chosen or anointed People over to Satan and the Secular Power without enquiring into the ground of the Sentence And whether the Unction of the Spirit is not as sacred as that which is us'd to Kings and the right to the Sacraments and Christian Assemblies from which he vvould not scruple to debar many in virtue of an Ecclesiastical Censure as Divine as a Right to a Crown But as he affirms that the late King was driven away by Lies and Forgeries he insinuates that this King's Government was founded upon them and stands in need of them for its support Pag. 21. than vvhich he may vvell say there cannot be a greater Evidence of a bad Cause yet nothing but assurance in some hidden support could make him thus insolent Pag. 5. and confident that his Tongue or Pen has not been too familiar with his Thoughts and it is very pleasant that he should still pretend to vvant Impunity for venting his lurking Scruples as if his bold Dogmatical Assertions directly against our present Government and in defiance of it were more safe than the proving matter of Fact contrary to what others alledg the falsifying their Quotations or shewing the weakness of their Inferences wherein he might with safety to himself expose his Adversary as he thinks he does Mr. Johnson for betraying that Cause which he pretends to serve But perhaps he believes that if he should be thus cautious he should lose his Reputation vvith his own Party and give the Government encouragement to punish him vvhich he may fancy that it dares not do vvhile he talks big and seems assur'd of being strongly back'd But it may not be amiss to take a nigher view of the Folly as well as Insolence of his Boast what feats he could do if the Law vvould stand Neuter for a while The Observator's ridiculous Challenge He promises in his own and believes he may in the Name of all his Brethren that are yet unsatisfy'd that their refusal to comply shall lie no longer hid in lurking Scruples and Reasons best known to themselves than till their Superiors shall be pleas'd with Indemnity to allow them to bring them forth Having as he thinks made this fair Challenge he concludes that it is Uncivility Rudeness and an ungentile Insolence to provoke them whose Hands are tied It seems they would be at liberty to condemn this Government as illegal and founded upon Injustice But if a Reason for this be demanded O Sir our Hands are tied provoke us not by asking vvhat is not in our Power we can rail and call you Rebels insinuate that your King has no Title your Laws no Authority but you are very uncivil not to allovv them vvho can give no Reason to rail on without it However this Man undertakes if he might have Indemnity in speaking out at the forfeiture of his Head vvhere he says Mr. Johnson's is due before Judges appointed by the Government to answer those Questions which he owns no Man dare be so bold as to answer and to back those Answers with such Reasons which shall ensure him the Priviledg of being for Mr. Johnson unanswerable Before the Judges have been appointed he concludes that Mr. Johnson's Head is due for writing against the late King's Title and vvith at least as much Equity we may say that his Head is due for writing against the Title of this But since he is willing to lose his Head if he cannot satisfy such Judges it is a pretty sort of Indemnity which he desires not to lose his Head for any thing which he may offer before the Judges when he consents to lose it if what he offers is not back'd with satisfactory Reasons Has he more to press or could he do it more cogently than Men of his Mind did in Parliament where there was full liberty of Speech Or is it to be suppos'd that there vvas not as good a Disposition in the Majority of them whose Votes carry'd our Settlement to listen to such unanswerable Reasons as he can expect from any appointed to be Judges of the Controversy but perhaps observing what Indulgence his Principle has met with he may hope that he or Men of the same Leven might influence the Nomination of the Judges and 't is evident that therein must lie the only colourable ground of his confident and ridiculous Challenge Tho there is no Reason to apprehend that Innuendoes should be now Innuendoes as they have been in those times which he justifies when they were admirable Engines to dive into the bottom of the Heart and fetch up those secret Intentions which no foregoing Discourse led to yet as one of the other Gown I should advise him for the future not to make his Pen so familiar with his Thoughts as he does vvhere speaking of Mr. Johnson's Assertion That King William is the rightfullest King that ever sat upon the English Throne Pag. 3. which he may very well be without supposition of coming to it in a manner different from all others since the Consent with which he was crown'd was the most universal that had been known in any Age he says he is content never to desire a greater advantage than to reduce an Adversary to the Absurdity of making no difference between a Title and no Title Wherein I fear he vvounds himself while he thinks to hit Mr. Johnson in the Eye for his due Application of the self-evident Distinction between Law and no Law and tho there is no Law to reach Mr. Johnson for his Reflections upon the late King and his Title this Writer may find a Law to punish him And if he would be at the pains to consult our Records Law-Books and old Historians he may find full warrant from the Constitution to make a good Title in our King upon the
Determination of the others and such a Consent as God himself seem'd to direct and appoint Yet since he supposes what is said by Mr. Johnson of the Reciprocal Contract between Prince and People to be like his own Assertions Pag. 7. The Reciprocal Contract a begging the Question or at least an haughty Imposition of his own Sentiments without proof but admits that if this could be substantially prov'd it would go a great way towards a Conviction of those Ib. whose Consciences for want of Information IN THIS VERY POINT will not give them leave to take the new Oath I would entreat him to shew wherein I either falsify in the Authorities which I have formerly produc'd and here repeat with Additions to this very Point or make wrong Inferences from them Which till he does as a due Correction for his railing at Mr. Johnson whose Memory will flourish in after-Ages when he shall be no otherwise known than under the Character of his Reviler I may say that his refusing to swear Allegiance to our legal Government is Obstinacy and his distinguishing Faith Faction And if he should be call'd in Question for that impotent Libel and no other means of reducing him to Sobriety being effectual should according to his snarling Reflection upon the immortal Memory of the Lord Russel and other inferior Patriots be condemn'd to mount toward an Apotheosis for his meritorious Crime of Treason against that Power which has been ordain'd of God the most apparently of any Civil Government that has been known for at least many Centuries could he expect to be as much desir'd lamented and praised by all that are themselves worthy of Praise Should he as he went along tell the good People that he suffer'd for that Doctrine which shall know no end but when all things confess their Ashes Pag. 6. and that tho his Sins are strangely great yet he now pay'd his Head forfeited by the Letter of the Law for Treason against a King which that acknowledges where Mr. Johnson's is due by a true equitable Construction for Treason against one who is no King in the Eye of the Law would not Men be tempted to make the Poet's Observation upon such a spruce and finical Malefactor Crimina rasis Librat in antithetis doctas posuisse figuras Laudatur In smooth Antitheses his Crimes he weighs And his departing Figures force our Praise I well know that Men are as zealous for a false Religion and their own Superstructure of Hay and Stubble as for the true Foundation And they who expose their Additions are in danger if not of suffering as Hereticks of being censur'd as Atheists And tho false Doctrines like false Miracles impare the Credit of the true yet he that attacks them after they have spread and gained the Name of sacred not only hazards himself but while he untwines or roots up the Weeds may chance to shake some standing Corn. Which may excuse the early freedom which I have taken to prevent the speading of that new Law-Divinity in this Age which rose in the last upon the fall of good Archbishop Abbot was rear'd up by Bishop Laud's Canons upon which the Parliament which brought in Car. 2. put a sufficient mark of Dislike and was fatned with the Charters of well-fed Corporations and the Blood of its forwardest Opposers While I expose the Folly of some Mens Notions which fight as much against our present Settlement as against common Safety and shew the Obligation which lies upon Kings to keep their Compacts with the People I would not be thought to go about to loosen the Bond of due Subjection to the Powers vvhich are over us I am sure they vvho vvill acknowledg none but King James to be their rightful King have no colour to urge this against me and yet by means of such false Alarums they have made most dangerous Approaches towards the Destruction of this Government I vvould not be thought to revive the powerful Hereditary Offices of the Palatine of Chester the High-Steward and the Constable of England that Tribunitial Authority which they had vvould be very dangerous in most times and too great Incentives to ambitious Men to set up for themselves The Author of the Sighs of France enslav'd observes that Charles Martel Les soupirs de la France Esclave Mem. 9. p. 130. Mair du Palais or High-Steward made himself King of France and Pepin his Son caus'd himself to be chosen the Family of the Merovingians being rejected That Eudes Mair du Palais upon the declining of the House of Charlemain took the Crown and caus'd it to pass to Hugh Capet and that Hugh Capet and his Descendants wisely suppress'd this Office It has doubtless been no less the Wisdom of this Government to have the like Offices with us to be now only known in Story yet they at least are Evidences of the English Liberties Vid. Les soupirs de la France Esclave Mem. 9. p. 142. On doit recicillir que quelque changement qui soit arrive dans le Government a Pégard des noms des fonctions des Principaux Officiers Mairs du Palais Connestables Chanceliers Grande Cómbelloins c. a touts ceté sans aucun prejudice des Proits du Peuple les Officiers de la Cour don de la Couronne out en plus ou moius de pouvoir mais c ' est par rarpert au Royles Droits de la Nation sont toù jours demeures en leur entier nor are the Liberties the less or the less inviolable because the Subjects of this Monarchy have had greater Confidence in their Kings than to insist upon having such settled Officers who may represent their Grievances with the better Authority and unite them in the common Cause when the oppress'd Nation should want nothing but an Head under which they might become formidable to evil Ministers who either think that the former Injuries which they have done are too great to be forgotten and therefore seek for Security in the Ruin of them who had before smarted under them Or who next to setting up themselves have no other aim but to make way for their suppos'd King of Right Such Men pretend that tho they cannot swear or declare that King William and Queen Mary are Lawful and Rightful King and Queen yet they can act in the Service of them as King and Queen and that there can be no danger from them because of the harmless Doctrine of Passive Obedience Prayers and Tears alas are all their Weapons and with them they may sollicit Heaven and Earth Vid. The Form of Prayer and Humiliation Ed. An. 1690. p. 60. Pag. 39. That we may no longer be without King without Priest without God in the World pray to God to restore their Prince who they say for the Sins both of Priests and People is now kept out and encourage a Rebellion against him who in their very Prayers to God Almighty they will have to be no King
to be King which sufficiently justifies that Vote of our Convention since confirm'd by the Parliament that a Popish King is inconsistent with this Protestant Kingdom 3. The last Question or rather part of a Question Page 527. which this learned Author takes notice of in the Resolution of which he agrees with Barclay and Grotius is Attempting to destroy the Kingdom or any considerable part of it Pag. 528 529. Whether if a Soveraign Prince should actually undertake to destroy his whole Kingdom or any considerable part thereof they may not in these Circumstances have liberty of defending themselves by taking up Arms Now we must allow him here to distinguish his Sentiments by inveighing against Junius Brutus Page 528. and other Subverters of Soveraign Power who start and urge this Question However it may not be amiss to take him into a Corner to know his Mind of the matter under the Rose Page 531. It must be remembred that he allowed of Barclay as a competent Judg in the Questions which he determines and as to a Soveraign Prince's undertaking to cut off Page 529. or to ruin and destroy the whole Body of his People he acknowledges that this is the other only Case in which Barclay esteemeth a Soveraign Prince to forfeit his Right of Government and that thereupon it may be lawful to resist him Tho as I observ'd before Grotius cites Barclay for a third Sup. f. 25. this which he receives as Barclay's second as he gathers from Barclay must not exceed the Bounds of meer Defence without any Attempts of invading or revenging yet it may be a Question how far this may be consistent with his yeilding that a former King in such case becomes a private Person And indeed I think he is in the right in allowing of no case to warrant Resistance till he who had been a King becomes a private Person Page 526. Accordingly neither Barclay nor he in the case of a King 's undertaking the Ruin of the Whole or in any other case will allow the taking Arms against the Soveraign Power because a Prince by such an undertaking as this loseth his Royal Authority and is no longer King se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desinit Page 530. And the Reason given by Grotius in the same case is irrefragable consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem Populi totius profitetur eo ipso abdicat Regnum A Will to govern and a Will to destroy cannot consist together wherefore he who professes himself an Enemy to his whole People in that very thing abdicates his Kingdom I cannot but observe that here is a Forfeiture own'd and an allowance of a Right in the People Page 529. or some of them at least to judg of the Forfeiture Barclay esteemeth a Soveraign to forfeit his Right c. Elsewhere Mr. Falkner says To assert that the People or Inferiors are of right Judges of the Cases in which they may resist their Superiors is as much as to say they are bound to Subjection only so far as themselves shall think fit and that they may claim an Authority over their Governours Page 365. and pass Judgment upon them and deprive them of their Dignity Authority and Life it self whensoever they shall think it requisite and needful Page 359. But this Inference here as well as his former Declaration shews that he speaks not of extraordinary Cases which as he has it we may well presume or hope may never be in act And if a judicial Power even in such extraordinary Cases sound harsh we may learn of him to soften it with the Terms in which he justifies the Exercise of a like Power over Kings in Spirituals Page 321. Tho says he all Christians upon manifest Evidence may in some cases see cause to disown a Soveraign Prince as was done in Julian from being any longer a Member of the Christian Society Page 322. yet in such Cases his Membership ceaseth and is forfeited by his own Act and not properly by a judicial Sentence and formal Process And some of the Romish Writers go much this way in giving an account how the Bishop of Rome whom they suppose to be Superior to all Men on Earth may by reason of Heresy or such Crimes be deprived of Christian Communion I must herein agree with Mr. Falkner that 't is not the Judgment which creates the Forfeiture but the Grounds of the Judgment which ought to be duly weighed Page 542. 4. The only thing which according to Mr. Falkner in this Case can farther be proposed is Whether if a Supream Governour should according to his own Pleasure and contrary to the established Laws and his Subjects Property actually engage upon the destroying and ruining a considerable part of his People they might not defend themselves by taking Arms This which he says is notional and speculative Page 543. has too sadly been reduced to Practice in Ireland especially After mentioning the Parisian Massacre he confesses that if ever any such strange Case as is propos'd really happen in the World Page 544. it would have great Difficulties Grotius says he thinks that in this utmost extremity the use of such Defence as a last Refuge ultimo necessitatis praesidio is not to be condemned provided the Care of the common Good be preserved And says Mr. Falkner if this be true it must be upon this ground that such Attempts of ruining do ipso facto enclude a disclaiming the governing those Persons as Subjects Page 545. and consequently of being their Prince or King And then the Expressions of our Publick Declaration and Acknowledgment would still be secur'd that it is not lawful upon any Pretence whatsoever to take Arms against the King In short Mr. Falkner's Judgment in these three or rather four Cases is this That these Cases are so extraordinary that they fall not under any Consideration as a pretence but will justify the Subjects taking Arms when they are real and that when any such Case happens the taking Arms is not so much authoriz'd by any Judicial Power in the People or their Representatives as by the Facts themselves whereby the King ipso facto without Sentence incurs a Forfeiture and ceases to be King And had he lived to apply his own Rules no Man can doubt but he would in Terms have justified our renouncing Allegiance to the late King Whether upon the account of the Forfeiture or the Judgment upon it or both is not very material especially considering that both Barclay and Grotius speak of an Absolute Prince not a Platonick Monarchy Vid. Pag. 398. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 yok'd or coupled with Laws 'T is well known to have been Grotius his Opinion Page 348. That if the Supream Government be part in the People or Senate and
TO proceed to the Reign of H. 3. who was Crown'd by a Faction at Glocester while Lewis was in possession of London the Metropolis of the Kingdom That he came not to the Crown as Successor in an Hereditary Monarchy but upon a plain Election and Compact with part of the Nation at least in the Name of the rest who would come in under those terms may be prov'd beyond contradiction For tho' in the Language of the Homilies King John were Natural Lord to the Subjects of England yet as Arthur who was the next in the Line to King John's Predecessor had the Right of Blood Mat. Par. f. 278. as far as that could operate before King John which he insisted on in the Fourth of that King's Reign even while he was his Prisoner the same right had Eleanor Arthur's Sister all the remainder of King John's time and for some years during the Reign of H. 3. 2. The Father came to the Crown by virtue of a Free Election of the People as the Archbishop of Canterbury told him at his Coronation wherefore his Election could not invest him with more than a Personal Right unless more were express'd at the time But the Archbishop Hubert Mat. Par. f. 264. 1 Johan Audite universi noverint discretio vestra quod nullus praevia ratione alii succedere habet in regnum nisi ab universitate regni unanimiter invocatâ spiritus gratiâ Electus secundum morum suorum eminentiam praeelectus who spake in the name of the Community was so far from giving the least Umbrage to a Right that might extend to Heirs that he affirm'd That no man is Intituled to succeed to the Crown upon any other account previous to the unanimous choice of the Kingdom except only the eminence of his Virtue And being afterwards ask'd why he took such freedom of Speech He declar'd That he foresaw and was assur'd by Ancient Prophecies That King John would corrupt the Kingdom and Crown of England and precipitate it into great confusion And he asserted That he ought to be minded of his coming to the Crown by * Ne haberet liberas habâ—nas hoc faciendi Election not by Hereditary Succession least he should take a liberty to act as he fear'd 3. Since therefore what the Archbishop fear'd came to pass and that Contract in virtue of which King John assum'd the Royal Scepter was notoriously broken How can it be thought that a Right devolv'd upon his Son H. 3. especially considering the interruption that was made by a Choice of Lewis tho' not Universal I must confess there is no Evidence occurring to me that Lewis was ever Crown'd here yet considering that the Coronation as is agreed by most is but a Ceremony the bare want of it would not the less argue a breach in the Succession since the sounder part of the people took the benefit of that Forfeiture which King John manifestly made and if nothing but an Universal Concurrence in this could justify withdrawing Allegiance from him then it is hardly possible for any resisting of Tyranny to be lawful at the begining and he who is forwardest in the Cause of his Country must be always a Criminal But being there is a deep silence as to Lewis his Coronation Mat. Par. Illico Coronandus tho he was promis'd by the Barons at London to be Crown'd immediately upon his coming over I take the reason of the silence in this matter to be That if he were Crown'd in form it was by the Laity alone because the Pope was fast to the side of King John and his Son and Lewis lay under a Papal Sentence of Excommunication so that the Clergy durst not Communicate with him in those Acts of Religious Worship which accompany Coronations But these Ceremonies being to be performed by Clergy-men 't is most probable that the Laity contented themselves with the Substance and left those Ceremonies for a more convenient time But that Lewis was in Possession of the Crown and the Regalia is to be believed as London with the Tower where they us'd to be lodg'd had not only been in the Possession of his Friends from the beginning but held so till the second Year after H. had been Crown'd as it is to be presum'd with a Crown made for that purpose Whether Lewis were Crown'd or no he was as fully received by them that had withdrawn their Allegiance from King John as if he had been Crown'd and reciprocal Oaths past between them And he was so far lookt on as King Mat. Par. that Alexander King of Scots swore Homage to him for the Lands he held of the Crown of England But certain it is as the Circumstances evince that there were at least three Express and Binding Contracts which H. 3. entred into with his People either beyond or rather explanatory of what is included in the Coronation-Oath and which H. 3. was bound to observe as he would be King of England and these besides several Confirmations of the Great Charter purchas'd with the Peoples Money and one of the Grants of Aid so particularly Conditional that Treasurers for it were appointed in Parliament and the Money was to be returned upon the King 's not performing the Conditions of the Grant 1. The First Contract which I shall observe was that which Lewis perhaps induc'd to it by the Money which he borrowed of the Londoners oblig'd H. to before he would quit his Pretensions So that one was plainly the Condition of the other and as the Civilians have it ran into the other by way of Mutual Consideration Vid. inf Lewis for the reasons which I before touch'd upon finding his Interest daily decline thought good to come to terms with Henry whereby Lewis oblig'd himself by Oath to withdraw from England Mat. Par. fol. 400. with all his Followers never to return and to use his endeavours that his Father might restore all the Rights of the Crown of England which he had seiz'd on beyond Sea In consideration of which Henry the Earl Marshal of England and the Pope's Legat F. 423. N a. Discord not Rebellion f. 431. swore to the restoring to the Barons of England and all others all their Rights and Liberties for which there had been Discord between King John and his Barons This Agreement with Lewis the Great Council of the Nation afterwards insisted on 7º H. 3. when they urg'd a Confirmation of the Great Charter which they obtain'd not till 9º of that King 2. The Second particular Contract was that of which the Great Council or Parliament 28º H. 3. mind him and of which they then after much strugling purchas'd a Confirmation According to this among other things 28 H. 3. referring to 20. f. 864. Four Great Men were to be chosen by Common Consent as Guardians of the Kingdom to be the standing Council about the King with a very large Trust reposed in them The Chancellor Treasurer and
meintenir les establisments que sunt fet ou sunt a fere par la dit Conseil declaring That all things provided or to be provided by the King's Council and the greater part of them who were chosen by the King and the Community of his Realm should be held firm and established and requiring all men to swear to hold and maintain the Establishments made or to be made by the said Council Vid. Flet. Habet Rex Consilium suum in Parliamentis c. But upon farther consideration I find that Council was the King's Council in Parliament and those Knights who were the Inquisitors for the Counties were not only oblig'd to come to deliver in their Inquisitions but their Consent was requisite to what the King should ordain by his Council in Parliament which then were a select number chosen as abovesaid Claus 42. H. 3. m. 1. dorso Quia Robertus Cambhen socii sui de Comitatu Northumb. de precepto Regis venerunt ad Regem apud West c. pro quibusdam negotiis Communitatem totius Communitatis praed tangentibus Mandatum est Quod prefatis quatuor militibus de Communitate praed rationabiles expensas suas in eundo redeundo habere faciat In another of the same time to Huntingtonshire they are said to have appeared coram Consilio nostro apud Westm in Parliamento Vide of this at large in the 2 d part since as it should seem all the Lords Certain it is there are Writs upon Record for the Expences of those Four Knights for every County as since there have been for Two The observing of the above-mentioned Contracts will give light to that Judgment which may by us at this distance be past upon the Wars between H. 3. and his Barons and not to mention any small disturbances and the Violations of the Rights of particular men and what they did in defence of them I find H. 3. four times opposed by the People in Arms in Three Wars and a Fourth rising which wanted only Numbers on the King's side to make it a War all manag'd under Heads formally chosen or seeming to have claim to the Conduct by virtue of their Offices 1. The first was under Lewis the Dauphin of France whom the Barons at London had chosen for King in this there was one King against another both standing in truth upon the same title the choice of the People Lewis had the greater part of the Chief Nobility on his side how much soever the Pope's Thunder might have frightned the more ignorant Vulgar and prevailed upon their interested Guides 2. The Second was under the Conduct of the Earl of Chester named first as 't is to be suppos'd for the reason before shewn The occasion of the Insurrection began Ao 1223. 7o. of that King when he being Seventeen years old obtain'd a Bull from the Pope declaring him of full Age and enabling him to order the Affairs of the Kingdom chiefly by the Counsel of his Domesticks that is such as he should chuse turning out those Officers which either had Hereditary Rights or had been chosen in Parliament according to what was insisted on at his Coronation 20o. as matter of Right wherefore his assuming all the Power into his own hands and countenancing the Exorbitances of Hubert de Burgh Mat. Par. Addit Chief Justice of England who indeed as appears upon his Defence afterwards when he came to be impeach'd had been chosen in one of King John's Parliaments but was continued in by H. 3. against the sense of his own Parliament sowed the Seeds of Discontent tho they did not break out into a general Rising but all seem'd to be quieted by his Confirming the Great Charter Ao. 1224. Yet soon after when he was in truth of full Age he was resolv'd to act as one out of Wardship 11 H. 3. and in a Parliament at Oxford declared himself free and by the advice of Hubert de Burgh cancell'd the Great Charter of the Liberties of the Forest as of no validity because granted in his minority and forc'd many who had Ancient Grants of Liberties to purchase them a-new at such Rates as the Chief Justice impos'd Besides Hubert had advis'd the King to act Arbitrarily with his own Brother Richard Duke of Cornwal which drove him to shelter himself under the publick-Publick-Cause and glad were the Great Men to find his resentment contribute to such a general demand of Justice Mat. Par. as forc'd the King to compliance in a Parliament at Northampton 3. But by the Seventeenth of H. 3. Peter Bishop of Winchester An. 1233. Mat. Par. f. 413. Adhuc sub custodiam Petri Winton who had succeeded to William Earl Marshal in the custody of the King during his minority having been supplanted by Hubert the Chief Justice at last put the Dice upon the less subtile Layman and resolving not to fall again for want of flattering his Prince advis'd him in order to become Absolute to remove his Natural Subjects from the Great Offices and put Foreigners in their Places who were brought over in great numbers and oppressed and plunder'd the Nobility upon false accusations and pretences seiz'd their Castles and enjoy'd the Wardships of their Children This occasion'd a general insurrection under Richard Earl Marshal who as a Roman Tribune of the people went to the King and in their name demanded a redress of Grievances but the Bishop of Winchester having given an haughty answer justifying the King's calling over what Strangers he thought fit to reduce his Proud and Rebellious Subjects as he call'd them to due obedience The Marshal and the rest of the Great Men who were Witnesses to that insolence Swore to stand by one another to the last extremity in the Cause of their Country But the Earl of Chester another Tribune here sold his Country for a Sum of Money The Marshal finding himself deserted was obliged to have recourse to Leolin Prince of Wales for aid Upon this the King Proclaim'd him Traytor 9º Octob. Ao. 1233. But in a Parliament held at Westminster at the latter end of that year tho' the Earl Marshal was absent and in Arms the Parliament advis'd the King not to Banish Spoil or Destroy his Subjects without Legal Process nor to call them Traytors who endeavour'd the Peace of the Kingdom Mat. Par. last Ed. f. 388. and by whose Counsels the Government ought to be managed Which was a full justification of the Arms taken by the Marshal Nay the Bishops proceeded so far as to Excommunicate the Bishop of Winchester and others the King's Ministers and to lay upon them the imputation of disturbing the Peace of the Kingdom The Marshal carried all before him with universal applause The Bp. of Winchester and his Accomplices were punished in a Parliament held at Candlemas The King having sent to treat of Peace with the Marshal and Prince Leolin the evil Counsellors which were the Marshals chief
that Statute 't will appear beyond contradiction 1. That the rule of submitting to the judgment of the King's Court will be of no service to Mr. Falkner's purpose the Court which is presum'd to be intended if it relates to the Controversies between the King and his Barons being the Parliament where they would be Judges in their own cases which Mr. Falkner says they ought not to be 2. The Statute of Marlborough does not in the least condemn the Barons Wars For 1. The Subject of that Act is to remedy the abuses of Distresses which are matters within the Jurisdiction of the ordinary Courts of Justice and no way extends to the great questions of the Kingdom determinable only in the highest Court 2. The Statute does not call those Wars a time of Rebellion Vid. Stat. Marlb Fleta p. 25. but of Dissention and Troubles suitably to which even in the time of E. 1. among the Articles of the Crown in charge to the Justices in their Circuits one provides for enquiry after them who have substracted Suits of Shires c. after the War moved between King Henry the Third and his Barons Mat. Par. f. 373. 3. Tho the Barons once threatned H. 3. That unless he would send away the Foreigners they would all by the Common-Council of the whole Realm drive Him and his wicked Councellors out of the Kingdom and would consider of making a new King yet it appears by the Circumstances and Events of the several Insurrections that their design was only to bring him to reason they still were for continuing him King and therefore it might not be improper for the Parliament at Marlborough to hold That for all matters of private differences even while Armies were in the Field the Course of ordinary Justice was to go on and that it was not to be look'd on as a state of War This may be enough to remove the Objections made by Mr. Falkner against the Barons Wars in the time of H. 3. which he supposes to be the most plausible Instance brought by them against whom he writes and I take it that the Reign even of E. 1. one of the most warlike of our Kings affords an Instance no less plausible Ao. 1297. Knighton f. 2510. Libratas In the twenty-first year of his Reign he summoned all who had twenty Pounds a Year â—… Land of whomsoever they held to attend him at London with Horse and Arms in order to go with him to Flanders When they met at London he was advised to be reconciled to some of the Great Men with whom he had been at variance He complied with the Advice excusing himself for former Exactions and desiring their farther Assistance since what he was engaged in was not his own private concern Mat. West f. 430. but the concern of the whole People as he was their Protector and Defender And he intreated them to pray for him which the Historian says very few did heartily But Humphrey Bohun Earl of Hereford and Essex High-Constable of England and Roger Bygot Earl Marshal withdrew from the King whereupon he discharged them of their Offices and gave them to others Yet the King found himself obliged to send some Persons to mediate between Him and Them To whom they declared That it was not their own Cause alone but the Cause of the whole Community which they undertook Knighton f. 2511. For not only They but the whole Community of the Land was agrieved with unjust Vexations Tallages and Levies and chiefly That they were not treated according to the Liberties in Magna Charta Wherefore they drew up a Remonstrance of their Grievances which if the King would command to be redressed they were ready to follow him to the Death Knighton f. 2512. The King gave a dilatory Answer excusing himself through the absence of some of his Council and having desired them not to do any thing to the prejudice of Him or his Kingdom passed the Seas notwithstanding the dissatisfaction that he left behind concluding 't is likely That that Success which commonly attended him in his Wars would gain him a more absolute ascendant over his People The King being gone the Constable and Marshal with their Adherents forbad the Chancellor and Barons of the Exchequer to issue out Process for levying the eighth Peny which had been granted the King in Parliament and which yet they said was granted without their Consent either as they had not due Summons or were upon just Cause absent They continuing together in Arms the King's Son who had been constituted Vicegerent found a necessity of giving them satisfaction To which end he calls a Parliament Knighton f. 2523. where through the mediation of the Arch-bishop whom Knighton blesses for it it was agreed That the King should confirm Magna Charta and the Charter of the Forrest That for the future Magnates he should not ask or take any Aid of the Clergy or People without the good will and assent of the Great Men. And that he should remit all Rancor to them and their Adherents In the Charter or Act of Parliament which then passed there are these Words Remisimus Humfredo de Bown Comiti Herfordiae Esekes Constabulario Angliae Rogero Bygot Comiti Norfork Mareschallo Angliae c. rancorem nostrum malam voluntatem quam ex causis praedictis erga eos habuimus etiam transgressiones si quas nobis vel nostris fecerint utque ad praesentis Cartae confectionem We have remitted to Humphrey de Bowne Earl of Herford and Essex Constable of England Roger Bygot Earl of Norfolk Marshal of England c. the rancour and ill-will which we had against them for the foresaid causes and also all Transgressions or Offences if they have committed any against us or ours to the making of this Charter Here was a quiet conclusion of an Insurrection managed under two Tribunes of the People whose Union had such an effect that what they did was not lookt on by the Parliament to be so much as a Misdemeanor CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The power of the people manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the instances from those times to the late Abdication omitted The Objections from the Oaths against taking Arms and from the Declaration against a Coercive Power over Kings removed by Sherringham and the Triennial Act 16 Car. 1. Pufendorf's Due Restraint of the Power of the People Instances of the like Power in other Nations particularly Denmark Sweedland and Norway when under the same King For France Hottoman Sesellius the Author of Les Soupirs de la France esclave Bodin explain'd and shewn to justify King William in his descent hither and the People of England in their asserting the true Constitution of the Government For the German Empire Bodin and Conringius An occasion taken from him to
King I shall refer to Krantius Krantii Hist particularly in the remarkable Story of their King Eric who was Adopted Son of the Three Kingdoms Anno 1411. he having provoked his People by countenancing the outrages of his Officers and Common Soldiers was opposed with Force by one Engelbert a Danish Nobleman transmitted down to posterity with the fair Character of engaging in the Publick Cause neither out of Love of Rule nor greediness of gain but meer compassion to an oppressed people This generous undertaking was so justly popular that Eric not able to stem the Tide withdrew from Denmark where he usually resided to Sweedland Engelbert's Noble Cause found so few opposers there that the King as a pattern to James 2. privately ran away and recommended his Nephew to succeed him But they told him plainly he was made King by Adoption Ib. f. 188. and had no Right to surrogate another Himself there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have received upon terms but he refusing the three Kingdoms unanimously chose one of another Family For the Authority of the people even in France Hottomanni Francogallia c. 23. insisted on no longer since then the time of Lewis 11. Hottoman gives a large proof in his Franco Gallia And I meet with an excellent Treatise of the French Government written originally in that Language by an eminent French Lawyer Claudius Sesellius soon after the death of Lewis 12. and dedicated to his Successour Francis 1. This Treatise the Learned German Sleidan Sleidani Dedicatio Ed. sexto Anno 1548. f. 263. Vid. Tres Gallicarum Rerum Scriptores Nobiliss A Johanne Sleidano e Gallico in Lat. Serm. convers Ed. Francofurti Anno 1578. turned into Latin and Dedicated it to our King E. 6. Sesel f. 268. Qui tutorio nomine Rempublicam procurant f. 269. Sesellius at that time looked upon France as an Hereditary Monarchy in which he admits that there may be great inconveniencies through the folly vice or minority of a Successour to a good Prince or the wickedness of those who execute the Government during his minority yet says he There are remedies at hand by which we may restrain a King Reigning Arbitrarily and them who have the care of one who cannot Govern for want of fit Age so that the King may have the Dignity which belongs to him and yet it may not be lawful for him to do what he pleases but what is agreeable to Law and Equity Provision is made for this by the best Laws and most Sacred Establishments which may not be violated without great hazard although sometimes force is offered to them He tells us their Kings have as it were three Bridles with which their Soveraign Power is restrained Sesellius f. 269. 1. Religion And if the awe of that is not sufficiently impressed upon him yet the reverence of some Holy Man may prevail it being allowable for any Bishop or other Ecclesiastical person of an unblameable life and in esteem with the people to admonish him of his Duty nor can he use any severities to his Admonisher without danger of alienating the affections of his people 2. The Jurisdiction of the Senate or Parliament whose Power he says Ut decretis ipsorum Rex quoque pareat Vid. Les Soupirs De la France Esclave Memoire 8. Histoire de l'origine du Parlement de Paris Sesellius f. 270. is such that even the King obeys its Decrees And yet when he wrote the Parliament of Paris the meer shadow of the Assembly of the States of the Kingdom and which in its institution was but a Committee chosen out of them had through the Artifice and Usurpation of their Kings driven out the substance 3. The Polity or Laws of the Kingdom which temper the Regal Authority this he says is greatly to the Honour of their Kings For if they could do every thing they would be much more imperfect And as it does not derogate from God Almighty that he cannot sin but his perfection is the more illustrious and to be admired for this very reason so Kings when they obey their Laws deserve the greater praise and come nigher to perfection than if they could command all things at their will and pleasure Sleidan in giving an account of Sesellius his Book to E. 6. says Sleidani Dedicatio ad E. 6. Although these things seem written in a peculiar manner in relation to the King of France yet they equally belong to all Kings For all Kings are Monarchs very few excepted And as they acknowledg no Power over them so they deserve great praise when they keep themselves within the bounds of those Laws with which they Govern their People And these are those Offices which he treats of as becoming a King and Prince Which if he neglects and thinks himself not to be obliged by any Law he loses in the eyes of good Men all Splendor Reputation and Glory and the very name of King A modern French Author Les Soupirs de la France Esclave Qui aspire apres la Liberte Ed. Anno 1690. Memoire 6. p. 82. who has with great diligence collected the Evidences of the Ancient Government of France supposes all the descendants from the old Germans as the Francs and we were to have had the same sort of Government and resemblance of Constitutions Among his several Arguments to refute the pretensions of the Court of France to Arbitrary Power one is Memoire 7. That nothing of great importance ought to be done within the Realm P. 97. but with the advice and consent of the Estates insomuch says he That the Government of France is rather Arstocratical than Monarchical or at least it is a Monarchy temper'd by an Aristocracy exactly such an one as England is The sum of his Authorities upon this Head he reduces to these particulars 1. ' The Estates of the Kingdom may Chuse and Depose their Kings Ib. p. 110. ' and by consequence may Judge them 2. ' They may Judge between the People and the King 3. ' They may Judge between King and King when more than ' one aspire and pretend to the Crown 4. ' They Determine the Differences which Kings have with their ' Subjects 5. ' They give Tutors to Kings and Regents to the Realm 6. ' They dispose of the great Offices of State 7. ' They make Ordinances which alone have the Force of Law ' within the Realm 8. ' They regulate the Affairs of Money 9. ' They appoint Impositions and Levies of Taxes 10. ' They are to be consulted upon all great Affairs 11. ' In fine They are of right to Correct all defaults of Government ' even those of which their Kings are Authors By all these particulars says he it appears Soupirs Mem 7. p. 110. that in some respects the States are superiour to the King for example when they chuse depose judge
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
which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 11 H. 7. c. 1. 9. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the occasion of the Law which was to encourage the service of H. 7. who had no Title but from his Subjects And there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which if it relates to Acts of Parliament being built upon the Supposition That according to the Fundamental Law the Peoples Choice gives sufficient Title perhaps is not vain and illusory Lord Bacon's Hist of H. 7. f. 145. as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy fundamentally Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute But I take it not to be evident that the Acts here mention'd must needs be Acts of Parliament For they might and by the word other seem to be such Acts as are of the nature of ordinary Process or whereon such Process is grounded as Ordinances of the Lords in Parliament Orders of the Privy Council Judgments or Decrees in Courts of Law or Equity and the like However admit this Clause should be vicious and insignificant My Lord Bacon I am sure gives no countenance to a certain Dissenting Bishop's Argument in publick Discourse who undertook from hence to prove That the Statute it self is of no force Yet such sort of Arguments are of great service to men resolv'd upon a Conclusion nor can better be expected from them To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me Object 1 The Maxim in Law That the King never dies Or to use the words of Finch ' The Perpetuity which the Law ascribes to him Finch's Description of the Common Law French Edit An. 1613. f. 20. b. 21. a. The same made use of in Reflections upon our late and present Proceedings p. 10. having ' perpetual Succession and he never dies For in Law it is call'd the Demise of the King Answer To which I Answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd And that the Death of a King is but a Demise transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election Dyer f. 165. Anderson f. 44. He has it Le Successeur le Heir Elsewhere Heir on Successeur ib. f. 45. tho never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Inter-regnum as it was resolved by all the Judges 1 Eliz. Of which the words of Lord Dyer are ' The King who is Heir or Successor may write and begin his Reign ' the same day that his Progenitor or Predecessor dies With which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural Vid. 1. E. 6. c. 7. 7 Rep. f. 30. appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like Agreement betwixt the present and former Government Suppos'd to be Doctor Fulwood's P. 42. A Learned Author that he may reconcile our present Settlement to this suppos'd Maxim which appears not to have any foundation in Antiquity will have it That by the Vacancy of the Throne no more was meant by the Convention than its being free from the former Possessor but that it was full of a Successor and that there was no Interregnum For says he such a Vacancy we have upon every Demise of the Crown And so there was a Vacancy of the Throne and no Vacancy at all For in ordinary Demises 't is manifest there is none Freedom from the last Possessor is not a Vacancy of the Throne Two Grounds this Doctor goes upon to justify his Equivocation in this for I can call it no better 1. That otherwise this would be inconsistent with the nature of our Ancient Hereditary Monarchy 2. That the Convention shew that they meant it no otherwise than in his Sense 1. As to the First It is observable 1. That the Notion which himself goes upon P. 40. is as inconsistent with the ordinary Rule For he makes the Heir to have only jus in re and to want Livery and Seisin And consequently till the Coronation there is an Interregnum Tho it may afterwards be supplied by relation to the Descent of the Right But herein the Doctor is certainly out For in ordinary Descents or Demises Hales's Pleas of the Crown p. 40. Treason may be committed against the Heir as in full possession before any Recognition or Coronation But since he will hardly affirm that it could have been so in our Case he must grant that there was a more absolute Vacancy than that for which he contends P. 54. It is his own Argument that our present Sovereigns are really King and Queen because Treason may be committed against them within the purview of the Statute 25 E. 3. And by the same Reason they were not King and Queen before they were declar'd so unless Treason could have been committed against them before such Declaration 2. But 2. The Doctor owns that though upon some extraordinary Revolution and some absolute necessary Reason of State for our common preservation a Stranger none of the Blood-Royal should be advanced to the Throne for one or more turns whilst that necessity continues the Constitution of the Government would not be alter'd And yet would suppose P. 56. V. p. 41. Where he speaks as his own Sense what in the other place is put by way of Objection that if our King and Queen come in otherwise than by Descent it would be a Design'd Alteration or Change of the Ancient Constitution of this Hereditary Monarchy And yet himself owns That by the Law of Nature Salus Populi is both the Supream and the first Law in Government and the scope and end of all other Laws and of Government it self Nay he yields That the Oath of Allegiance that Sign or Testimony between King and Subject is discharged or dispenced with when
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
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
subjectam The chief Act of Government requires the chief or Supream Power But the making of Laws is the Supream Act of Government Therefore it cannot be exercised but by a Person having or at least by Virtue and from the Authority of the Person having Supream Power and Jurisdiction over the Community subject unto him Now in this the Doctor seems to be uniform to himself since he grants that the Clergy cannot exercise this Power without the consent of the King and so they act by virtue of his Authority But it will be justly question'd whether the Power be not in the King the Authority being his For a Legislative Power where-ever plac'd is uncontroulable and self-sufficient and so the Doctor tells us Potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and if the Power the jus condendi Leges Ecclesiasticas be in the Clergy then that Power is self-sufficient 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by consequence their Act of Legislation made known obliges the Community Eodem omninò modo quo Princeps qui habet potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Pag. 84. ferendo leges obligat subditos ad ipsarum observationem But perhaps we may be told that a Difference is here to be taken between jus condendi Leges and potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but then the Doctor must be allowed not to talk with coherence For he takes it for granted Posse de novo condi leges de ritibus rebus personis Ecclesiasticis omnibusque sacri cultûs externi circumstantiis ad ordinem honestatem edificationem spectantibus extra eas quae sunt à Christo ejus Apostolis in Sacris Literis traditae which is in short that there is somewhere a Legislative Power in Matters Ecclesiastical not determin'd in the Scriptures Now this very Power Jus condendi Leges Ecclesiasticas he places in Ecclesiastical Persons wherefore the Power which he ascribes to them in Ecclesiastical Affairs is a Legislative Power And some will question how much soever the Clergy complement the King whether they take not the Restraint which they submit to to be a Condescension nay that Power is by him ascrib'd to the Clergy in the very same Expressions wherein he expresses the King's Power Pag. 189. For as he says Jus condendarum Legum Pag. 209. is penes unum Regem so he tells us Jus condendi Leges Ecclesiasticas is penes Episcopos c. I would gladly see the Difference rightly stated upon these Principles The Clergy have the Power of making Laws or the Legislative Power in Ecclesiastical Matters yet the Exercise is restrainable by the King Jus condendi Leges Ecclesiasticas esse penes Episcopos Presbyteros aliasque personas à totius Regni Clero ritè electas legitimâ Synodo congregatas Ita tamen ut ejus juris exercitium in omni Republicâ Christianâ ex Authoritate Supremi Magistratûs politici pendere debeat Idque à parte ante à parte post The King has the Legislative Power in Civil Affairs yet the Exercise is restrainable by the People Cum dicimus penes unum Regem esse jus condendarum Legum Pag. 189. non id ità intelligendum quasi vellemus quicquam Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem aliaque non nulla ad Legem constituendam requiri mox ostendam Ergo Quere Whether Church-men are not Supream in Ecclesiastical Affairs as the King is in Civil It will be said Admit they are yet that Power may be very consistent with Monarchy for which purpose one need but transcribe with very little variation the Doctor 's words applying what he says of the Lawgiver in Temporal to the Ecclesiastical Law-givers Pag. 203. Posse duo haec Regis inquam consensum supremum ECCLESIASTICORVM in ferendis legibus potestatem simul amicè satis consistere praeterea quod in rebus ipsis nulla videtur esse repugnantia vel inde constare potest quod Angliae nostrae CLERICI quorum supremam potestatem in ECCLESIASTICIS ante infoelicissima haec tempora omnes hujus Regni incolae prolixissimè semper agnoverunt nunquam tamen legislativam suam potestatem ità exercuerunt ut sine Regum suorum consensu Leges aliquas condiderint Now whether the Doctor 's Reflections upon them that feign a Power coordinate with the King nay whether his imputation of Perjury upon them who deny the King a Legislative Power after having sworn that he is Supream Head and Governour over all Causes and Persons as well Ecclesiastical as Civil will not fall upon himself some will question Pag. 191. and they know not whether he were not one of them that believ'd Contradictoria posse simul esse vera And thus again they argue out of him Pag. 188. In statu Monarchico unius Regis personae inhaeret summa potestas In a Monarchy the Supream Power is inherent in the Person of the King only But ours is a Monarchy therefore the Supream Power is inherent in the Person of the King only Ibid. he is omnium personarum causarumque in suis Regnis Supremus imò solus supremus Moderator Making of Laws either in Ecclesiastical or Civil Matters is an Act of the Supream Power therefore the Right of making Laws Pag. 192. in the one as well 'tother is in the King in whom the Supream Power is inherent not in Church-men But if one may dispute the Authority of so great a Man one may be bold to ask what proof there is that what he asserts about Ecclesiastical Jurisdiction is consentaneous Doctrinae Ecclesiae Anglicanae Regni insimul legibus For take it in the largest sense not that the Clergy have the Legislative Power so qualified as aforesaid but that they and the King have a Power of making Laws in Ecclesiastical Matters which shall oblige the Community without any farther Consent or Ratification This some will say may for ought they know be agreeable to the Doctrine of the Church or Church-men but where is the Law to warrant it they are to seek And besides the several adjudg'd Cases that the Laity are not oblig'd by any Canons of the Clergy or Ecclesiastical Laws though made with all the Circumstances taken in by the Doctor They urge the Authority of this King in his Parliament where 't was enacted that the Canons made in the Year 1640 13 Car. 2. c. 12. This was written before that Parliament was dissolved should not be confirm'd which shews that they stood in need of Parliamentary Confirmation to become Laws And 't is to be observed that there had been the Royal Assent to that Exercise of Ecclesiastical Power both à parte ante and à parte post Some Men possibly may tax this Great Author with Deceit in giving the King a Legislative Power in general without excluding those Ecclesiastical Matters which the Great
Ed. for every Law must always have some present known Person in being whose Will it must be to make it a Law for the present If the Independent Heads or Nobles are instead of One Prince to make choice of an Head which is a Law to that end then a Law may flow from the Will of many as well as from that of One. But take Sir Robert's Notion of Supream or Independent Heads and Fathers in the most sensible meaning that is of Natural Fathers these where there is no division into Tribes as was amongst the Jews will be numerous Yet all in the Case presuppos'd are allow'd by Sir Robert to be invested with Kingly Power and therefore the parting with it must be by their choice as he himself yields and yet according to his Principles they can never so part with it but they may resume it I must confess in this he doubly contradicts himself for the End of his Writings being to prove that the Government ought always to be in One absolutely here he yields it to be in many And when before he said That Civil Power not only in general Patriarc p. 12. is by Divine Constitution but even the Assignment of it specifically to the Eldest Parent here he acknowledges it to be in several Parents not in the Eldest only But that every such Parent as was at any time vested with this Power may resume it is the plain Inference from his Doctrine for he tells us Patriar p. 54. That although a King do frame all his Actions to be according to the Laws yet he is not bound thereto but at his good Will and for good Example Those Laws which are the best or only means for the preservation of the Common-weal bind Princes Or so far forth as the general Law of the Safety of the Common-weal doth naturally bind him for in such sort only positive Laws may be said to bind the King not by being positive but as they are naturally the best or only Means for the preservation of the Common-weal Here still he opposes himself for he yields that Princes are bound to those Laws which are the best or only means for the preservation of the Common-weal and so asserts that exploded Sentence I will not call it Maxim Free-holders Grand Inq. p. 39 Anarchy p. 265 No Laws whatsoever bind Princes Salus Populi suprema Lex when at other times he tells us That 't was God's Ordinance that Supremacy should be unlimited in Adam and as large as all the Acts of his Will and as in him so in all others that have Supream Power That is as by Supream Power he means absolute every one that has Absolute Power ought to have Absolute Power But the Consequence from Adam's having had such Power is That the Right Heir from Adam in the natural course ought to inherit it But as he supposes several at the same time to be Heirs or to come into the stead of Adam's right Heir upon the Escheat of the Kingly Power these being so many Kings or at least making one King where however the Power is in many though they parted with their Power they might at any time resume it when they thought it for the Good of the Publick of which they as Princes should be Judges nay and their Heirs in Succession might Filmer's Power of Kings F. 2. And so Sir Robert's Maxim resteth That the Prince is not subject to his Laws nor the Laws of his Predecessors but well to his own just and reasonable Conventions Patriarc p. 97. Nay though they should swear to observe all the Laws of their Kingdoms yet no Man can think it Reason that Kings should be more bound by their voluntary Oaths than common Persons are by theirs I see not how upon his Principles an Answer can be given to his Question Patriarc p. 23. If Obedience to Parents be immediately due by a natural Law and Subjection to Princes but by mediation of an Humane Ordinance what Reason is there that the Laws of Nature should give place to the Laws of Men as we see the Power of the Father over his Child gives place and is subordinate to the Power of the Magistrate He affords no other Title to Princes than what Fathers have to be Princes each in his own Family nay he himself owns that the Kingly Power may escheat to all the Independent Fathers and that they may transfer it over to One. Now that 't is in this One not still in all or in some other must be of Humane Ordinance Upon which Grounds the answer to his Question is obvious which is that the Subjection due by Nature from Children to their Parents is not defeated by the Kingly Power 's being in One and therefore the Power of the Father over his Child does not give place to the Power of the Magistrate If it did this their natural Right the Parents may resume when 't is for the Good of their respective Families or thought so by them and indeed of one great Family they might resolve the Community into as many separate Governments as there are Families or Patres Familiâs at their Pleasures without any moral Obligation to the contrary If the Power whereby a Nation is govern'd were not wholly distinct from that whereby a private Family is and if both came by Nature since the true descent in Nature cannot now be made out for every Family to make a Kingdom by its self must be most natural and the only lawful Government unless Choice that is Humane Ordinance may warrantably cement them into one Government And this is very evident in the Case of Escheat and of any Translation of Kingly Power from Natural Fathers For the Kingly Power is in the Fathers before the transferring it over quatenus Fathers or it is not If it be in them quatenus Fathers then according to Sir Robert they may resume whatever is essential to the Soveraignty of Fathers being it was once lawfully vested in them at least they have a great deal of Latitude for their Claim because Power of Kings Fol. 2. Patriarcha p. 97. For the same Causes that a private Man may be relieved from his unjust and unreasonable Promise as for that it was so grievous or for that he was by Deceit or Fraud circumvented or induced thereunto by Error or Force or just Fear or by some great Hurt even for the same Causes the Prince or Princes may be restored in that which toucheth the diminishing of his or their Majesty It seems he grants that the Power once lawfully vested in any cannot be parted with but upon choice wholly free ex mero motu voluntate spontaneâ Yet being there was no Obligation upon them from God or Nature to devolve their Power upon one rather than another but purely what proceeded from their own wills this if he argues rightly they might resume when they list at least when they all agreed to the
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
cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive