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A65708
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An historical account of some things relating to the nature of the English government and the conceptions which our fore-fathers had of it with some inferences thence made for the satisfaction of those who scruple the Oath of allegiance to King William and Queen Mary.
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Whitby, Daniel, 1638-1726.
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1690
(1690)
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Wing W1729; ESTC R8904
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44,723
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71
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with our whole Power non do we nor will we permit our Lord the King though he were willing to attempt things so unusual undue and prejudicial to the Royal Dignity and this was Sealed by 104 Earls and Barons in the name of all the Commonalty of England What they affirm touching their Oaths to defend their Laws is an unquestionable truth for besides what hath been noted of this kind allready in the twenty fifth year of this King it was established by Act of Parliament 25. Ed. 1. c. 3. 42. Ed. 3. c. 1. that if any Statute were made contrary to Magna Charta or Charta de Forestis it should be holden for none and the Nobles and the great Officers were sworn to the Observation of them Yea Speed p. 583. by the Royal Command of Henry the Third Oaths were taken to tye all men to the strict Observation of them SECT IV. That we find throughout the History of our Kings that their Election or else their Compact with the People hath generally been conceived a thing proper to strengthen their Title to the Crown or at the least to satisfie their People 4ly IT may be farther worthy of our consideration that we find throughout the History of our Kings that their Election or else their Compact with the people hath generally been looked on as a thing proper to strengthen their Title to the Crown or at the least to satisfie the People For instance First Dunelm p. 195. Hoved. E. 258. Ab omnibus tam Normannorum quam Anglorum Proceribus Rex est electus Gemit de Ducibus Norm l. 6. c. 37. Walsing Hypod. Neust p. 436. Of the Conqueror S. Dunelmensis and Hoveden inform us that Foedus pepigit he made a Covenant with the people Gulielmus Gemiticensis and Walsingham say that he was chosen King by all the Nobles of England and Normandy Secondly Daniel p. 52. Polyd. Virg. Hist l. 10. p. 164. William the Second held the possession of the Crown of England by the Will of the Kingdom the Succession in Right of Primogeniture being none of his Volentibus omnium provincialium animis in Regem acceptus M. Par. p. 10. Chron. Joh. Brompt p. 983 984. The Historians say that the Nobles met in Council at Westminster and after long Consultation made him King that by the willing minds of all he was accepted for their King and the King himself declares quod ipsum in Regem creaverant that they had created him King Thirdly Henry the First was invested in the Crown by the Act of the Kingdom The Historians tell us that a Council of the whole Community rejected Robert Unanimi ascensu suo ipsum refutavêrunt pro Rege omninò recusavêrunt Henricum fratrem in Regem ere êrunt Knyght de Event Angl. p. 2374. In Regem electus est frater ejus Henricus consecratus est Rex Angl. M. Westm Hist. p. 235. In Regem electus est aliquantis tamen controversiis inter Procéres excitatis Sopitis W. Malmsb. l. 5. F. 88. J. Brompt Chron. p. 997. Walsing Hypod. Neust p. 446. Rich. Hagulst p. 310. the eldest Son of the Conqueror and would not have him for their King but with unanimous consent they advanced his Brother Henry to the Kingdom who was by all Elected and Consecrated King at Westminster after the death of William Rufus as being the first born of the Conqueror after he was King of England William of Malmsbury saith he was Consecrated within four days after his Brother's death lest the Rumour of Robert's coming to England should move the Nobles to repent of their Election Sciatis me Dei misericordia communi consilio Baronum Regni Angliae ejusdem Regni Regem esse coronatum M. Paris pag. 38. And in his Charters the King himself writes thus Know you that I was Crowned King of England by the Common Council of the Barons of the Kingdom And 't is observable that his Elder Brother Robert being absent at the Holy Wars they chose Henry King because they were affraid to be long without Government Fourthly Florence of Worcester William of Malmsbury R. Hoveden and R. Hagulstadensis do expressly say that Stephen was chosen King by the Primates of the Kingdom A Primoribus Regni cum favore Cleri Populi electus R. Hagulst p. 312. Flor. Wigorn. p. 665. Hoved. F. 215. Malm sb F. 101. B. with the favour of the Clergy and Laity and that he took upon him the Kingdom with their General consent A scensu Populi Cleri in Regem electus Malmsb Hist Nov. l. 1. F. 101. B. R. Hagulst p. 314. and his own Charters say the same thing as they had reason to do he having no Title at all but as one of the Bloud by mere Election advanced to the Crown Daniel p. 69. Fifthly Radulphus de Diceto Ab omnibus electus p. 529. Saith of Henry the Second That he was Elected by all and annointed by Theobald Arch-Bishop of Canterbury Sixthly And of Richard the First he saith Post tum Cleri Populi Solennem debitam Electionem p. 647. That being to be promoted to be King by right of Succession after the solemn and due Election both of the Clergy and Laity he took a Threefold Oath Hoveden adds that he was Consecrated and Crowned King of England F. 374. consilio assensu by the Council and assent of the Arch-Bishops Bishops Counts and Barons Seventhly P. 127. Archiepiscopus dixit quod nullus praevia ratione alij succedere habet Regnum nisi ab universitate Regni unanimiter Spiritus Sancti invocata gratia electus secundùm morum eminentiam praeelectus omnes hoc acceptabant ipsumque Comitem in Regem eligentes assumentes exclamant dicentes Vivat Rex Matth. Paris p. 138. King John received the Crown by way of Election as being chosen by the States saith Daniel Matthew Paris saith That all consented to the Speech of the Arch-Bishop that none ought to Succeed another in the Kingdom unless he were elected by the Community and thereupon they elected the Count and took him for their King Eightly In Regem eligitur p. 474. The History of Croyland saith That after the death of King John Henry his first born was elected King Ninthly Non tam jure haereditario quam unanimi assensu Procerum Magnatum Edward Franc. An. 1602. p. 95. The Succession of Edward the Second saith Walsingam Was not so much by right of Inheritance as by the unanimous consent of the Peers and great Men. Tenthly Edward the Third was elected with the Vniversal consent of the People upon his Father's Resignation Walsing Hist Angl. p. 126. Hypod. Neust p. 508.509 H. de Knyghton p. 2550. The Parliament then met at London declared by common consent That Edward the Second was unworthy of the Crown and for many Causes to be deposed and that his first born Son Edward
permanserint quo nunc sunt unde qui juravit reddere gladium non tenetur reddere furioso qui juravit ducere aliquam uxorem non tenetur ducere si deprehendat eam esse ex alio viro gravidam has istiusmodi conditiones in omni juramento subintelligi fas est etsi non exprimantur rigidus nimis esset juramenti Interpres qui istarum aliquam exclusum iret Prael 2. §. 10. and many of the School-men is one viz. That things continue and remain in the same state they were at the time of swearing whence he that swore to restore a Sword is not bound to do it to a mad-man and he that swore to marry such a Woman is not bound to do it if he finds her afterwards with Child by another these and such like conditions though they be not expressed are to be understood in all Oaths and he that should exclude any of them would too rigidly interpret his Oath Secondly Amesius adds In Juramento subintelligi debent conditiones illae quae ex more consuetudine receprâ concipi praesumuntur ab iis ad quos juramentum spectar De Cas Consc l. 4. c. 22. that in an Oath all those conditions are to be understood which by the received Customs and Manners of a Nation are presumed to be conceived as conditions belonging to it And that when the formal reason of an Oath is taken away the Oath ceaseth Quum aufertur ratio formalis juramenti juramentum cessat ratione eventûs qui casus est eorum qui jurà runt se obedituros domino aut principi alicui qui postea cessat esse talis Ibid. § 36. Nec tenebitur si cesset qualitas sub qua alicui juravit ut si Magistratus desinat esse Magistratus Crot. de Jure Bel Pac. l. 2. c. 13. §. 18. and that this is the Case of them who swear to a Prince or to a Master who after ceaseth so to be Thirdly The Casuists farther tells us that a promissory Oath made purely on such a Motive and Foundation supposeth the continuance of that Foundation as the condition of its Obligation and therefore ceaseth to oblige when he to whom and for whose sake it was made tollit fundamentum illud quo nitebatur removes the Motive and Foundation of it Saunders de juramento praelect 4. p. 99. Tombs lect 18. p. 23. For instance Chremes the Master swears he will give to Sosia ten Crowns per annum and Sosia the Servant swears to serve him eight years if Sosia will not serve him the third year Cremes is not obliged to pay him ten Crowns at the years end or if Cremes will not pay Sosia at the years end Sosia is not bound to serve him eight years because this payment was the Sole foundation of Sosia 's service this service the Sole motive of Chremes 's Oath Fourthly They add That without which it cannot in equity and reason be supposed that any reasonable man would or any honest man should take an Oath must be supposed as a tacit condition in the taking of it so that no person is to be supposed to swear to doe any thing but with this proviso as far as it is consistent with equity and justice Thus though Solomon promised to his Mother not to say nay to her request yet when she asked Abishag the Shunamite to be given to Wife to Adonijah because the Marriage would have been incestuous or would have given him a pretence for disturbing of the Kingdom Solomon breaks his promise and thereby shews that it was made with this proviso if I may safely and equitably do it Hence they inser that the Laws of Nature and Self-Preservation must give tacit limitations to our promissory Oaths where they are general and not expressive of Life and Death because we have an Obligation to them antecedent to all Oaths nor can it rationally be supposed that a man would promise to ruine and destroy himself where the publick good did not make it necessary so to doe If then the Kings of England be Kings by virtue of a Compact originally made betwixt them and the people if the Tenor of that Compact be on the King's part that he would govern them according to the Tenor of their Ancient Laws Liberties Charters and Customs or as the Coronation Oath now runs that he will confirm to the people of England the Laws and Customs to them granted by the Kings of England that he will grant to hold and keep the Laws and rightfull Customs which the Commonalty of his Kingdom have and to defend and uphold them as much as in him lieth that he will preserve and maintain to the Bishops and the Churches committed to their Charge all Canonical Privileges and due Law and Justice and will be their Protector and Defender to his Power and this Oath and Compact be on the part of the Subject the very ground for his entring into a Promise and Oath of Allegiance the very formal Reason of it the Motive and Foundation upon which it is built When any King of England afterward makes void his Oath by an entire virtual dissolution of those Laws he had by Oath engaged himself to keep and confirm and plainly sets himself to destroy that Church he swore to protect and defend and to deny them all due Law and Justice he seemeth by just consequence to have made void the Motive and Foundation of that Allegiance they swore to him Grotius informs us that the promise of a King to his Subjects gives them a right to the thing promised that being the Nature of all Promises and Contracts And this it doth more certainly when it is only a promise of what was originally their Right confirmed by his Oath Dicimus ergo ex promiso contractu Regis quem cum subditis iniit nasci veram propriam obligationem quae jus dat ipsis subditis ea enim est promissorum contractuum natura De jure Bel. pacis l. 2. c. 14. §. 8. and the very condition upon which they accepted of him or his Progenitors as their Kings for as he rationally adds if a People make a King by such Laws Plane si populus Regem fecerit non pleno jure sed additis legibus poterunt per eas leges contrarij actus irriti fieri aut omnino aut ex parte quia eatenus populus jus sibi servavit Ibid. §. 2. they make void what he doth contrary to Law because as to such things they have reserved the Right unto themselves or at the least they have limitted his Right but to what end is all this if by their Oath of Allegiance afterwards they virtually disannull that Right they had reserved to themselves take off all limitations of the King 's Right and put it in his power to break all his promises without controll by binding themselves to the same Allegiance to him when he doth so as when