should unanimously be chosen King then the Election is publickly declared in Westminster-hall some of both Houses are sent to Edward the Second qui nunciarent Electionem filij sui who should acquaint him with the Election of his Son and require him to resign the Crown Electioni consensit populus universus all the people consented to the Election so did all the Prelates and the Arch-Bishop who made an Oration on those words Vox populi vox Dei and exhorted all to pray for the King Elect. Eleventhly Richard the Second succeeded Edward by right of Succession H. de Knyght p. 2630. ac etiam voto communi singulorum and by the Common suffrage of all Twelfthly Henry the Fourth Fifth and Sixth were only Kings by Act of Parliament Thirteenthly Edward the Fourth at his entrance on the Government makes a solemn Declaration of his Right to the Crown of England challenging it to belong unto him by a double Right the first as Son and Heir to Richard Duke of York Trussel 179. the Rightfull Heir of the same the second as elected by the Authority of the Parliament upon King Henry's forfeit of it Fourteenthly The Parliament Roll published in Speed's Chronicle often saith p. 913 914. That they had chosen Richard the Third for their King and that the Crown belonged to him as well by Election as Succession Fifthteenthly And Henry the Seventh Bacon Hist of Hen. VII p. 12. to all his other Titles by Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament SECT V. That we find mention in History of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own confession had not the immediate Title to the Kingdom and only Proclaiming him who had the Right by Proximity of Bloud Heir Apparent to the Crown 5ly MOreover we read of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only Proclaiming him who had the Right by proximity of Bloud Heir apparent to the Crown For instance The Contest betwixt Robert the Eldest Son of the Conquerour Ad haec etiam inter se constituerunt ut si comes absque filio legali in Matrimonio genito moreretur haeres ejus esset Rex modoque per omnia simili si Regi contigisset mori haeres illius fieret Comes hanc conventionem 12 ex parte Regis 12 ex parte Comitis Barones Juramento firmaverunt Flor Wigorn. p. 644. and William Rufus his younger Brother ended thus That f Robert dyed without a Lawfull Son King William should be his Heir and if King William dyed without issue Robert should be his Heir and this was Sworn to by twelve Barons of each side In the contest betwixt the same Robert and his younger Brother Henry Principes M. Paris p. 40. Hen. Hunting F. 216. B. Joh. Bromp p. 998. the Princes say some of our Historians the wise men of our Kingdom say others Sapientiores utriusque partis Dunelm p. 226. Flor. Wigorn. p. 650. R. Hoveden F. 268. B. Daniel p. 61. made a Mutual and general League of Concord by their Pious and Wise Council That Henry the First Amiciutriusque foedus inter eos statuerunt sic quod Rex propter manifestum jus quod habuit ad Regnum possidendum Roberto singulis Annis tria millia Marcarum Argenti daret ab Anglia quis eorum diutius viveret Haeres esset alterius si absque filio moreretur M. Westm p. 236. Henr. Huntingd. Hist l. 7. F. 216. B. M. Par. p. 40. being invested with the Crown by Act of the Kingdom should enjoy the same during life and that by reason of the manifest Right which Robert had to the Kingdom Henry should pay him 3000 Marks yearly and that the longest liver should be Heir to the other if he died without a Son by which Acts if William Rufus or Henry had Sons they were to Reign though the manifest Right was in Robert and his Heirs And here it is observable Maxima pars Nobiliorum Normannorum favebat Roberto cupiens hunc sibi asciscere in Regem fratremque aut fratri tradere vivum aut Regno privare peremptum hujus execrandae rei principes extitêre Odo c. hoc execrabile factum clam tractaverunt in quadragesima Florent p. 642. Dunelm A. D. 1088. Hoved. par 1. F. 264 Radulph de Diceto p. 489. Proditores vocat H. Huntingd. Hist l. 7. F. 213. Perfides W. Malmsb. Hist l. 4. F. 68. Conjurationis perfidiae Socios Florent p. 643. Perjurij Reos Matth. Paris p. 10. that though the greatest part of the Nobles did upon some dislike to Rufus to whom they had sworn Allegiance favour his Brother Robert desiring to advance him to the Kingdom and to destroy William or deliver him alive to his Brother yet do all our Historians declare that they who sided with William were faithfull to their Earthly Lord and the other party were Traiterous Perfidious and Perjured Persons and that the thing it self was an excrable fact And in like manner they who stood for Henry against the same Robert L. 5. de Henr. primo F. 88. who had manifest right are said by W. of Malmsbury justas partes fovere to be of the right side and they who fought against him to be fidei Regi juratoe transfugoe violaters of their Oath and yet this Henry was advanced to the Throne not because he had Right during the life of his Elder Brother but because Robert being gone to the Wars at Jerusalem Quia ignorabant quid actum esset de Roberto fratre primogenito timuerunt diu sine Regimine vacillare Matth. Paris p. 38. they knew not what was become of him and were affraid to be long without Government But to proceed to other instances of this Nature from History In the contest between King Stephen and Henry Duke of Normandy the Son of the Empress Maud and the Right Heir of the Crown Theobald Arch-bishop of Canterbury and Henry Bishop of Winton Rich. Hagulst p. 330. H. Huntind l. 8. F. 228. Joh. Brompt Chron. p. 1037. Gervas Chron. p. 1375. Chron. de Mailros p. 167. made peace betwixt them upon these conditions That King Stephen from that time should entirely enjoy the Kingdom as lawfull Prince with the Glory and Honour of it and Henry should succeed him in the Kingdom as lawfull Heir This peace was thus made by the Counsel of the Wise Men and the intervention of the Nobles and Friends of both parties and was declar'd to be honest and profitable R. Stephanus Ducem Hen. cognovit in conventu Episcoporum aliorum Regni Optimatum quod jus Hereditarium in Regnum Angliae habebat Dux benignè concessit ut R. Stephanus tota vita
populum qualiter Rex se haberet in populo in quibus populus sibi debuit obedire quo completo juravit Rex coram Archiepiscopo proceribus quod Ecclesiam suis permitteret gaudere libertatibus eam Ministros ejus honoratret 2o. Ut leges terrae bonas ubique observari faceret praecipuè leges Sancti Edvardi 3o. Ut non esset personarum acceptor c. quibus expletis Archiepiscopus convertit se ad omnes plagas Ecclesiae indicans populo Regium juramentum quaerens si se tali principi Rectori subjicere ejus jussionibus obtemperare vellent responsum est à plebe quod libenter sibi parere vellent Wals Hist Angl. p. 195. how the King should behave himself to them and in what things they were to obey him this being done the King swears before the Archbishop and Nobles that he would permit the Church to enjoy her Liberties and would honour her and her Ministers 2dly That he would cause the good Laws of the Land to be observed every where especially those of St. Edward 3dly That he would be no acceptor of Persons but would exercise right Judgment between man and man and especially would shew Mercy This being done the Archbishop the Marshal being present turns himself to all the quarters of the Church declaring to the People the Kings Oath and asking them if they could subject themselves to such a Prince and Governour and would obey his commands to which they all answered That they would willingly do it Here then you see that William Rufus Henry the First and Steven get the consent of the People by virtue of this promise to grant them their usual Laws and ancient Customs that Henry the First Richard the First and King John and Richard the Second at their Coronation oblige themselves by Oath to grant them And upon these Obligations the People Nobles Bishops and Commons consent to own them as their King that the Archbishops conjure R. the First and K. John not to take upon them the Crown unless they uprightly intended to perform these Oaths that all of them at the beginning of their Reigns by Oaths or Promises oblige themselves to grant these Laws and Customs to the People and that if any scrupled so to do the Nobles thought it their concern to hinder his Coronation till he had either made or promised this engagement They therefore thought it absolutely necessary that whosoever would be their King should make this Compact with them and be as much engaged by Oath to grant these Priviledges to them as they were to swear Allegiance to him and commonly that this should be first done by their Kings before they would engage to be their Subjects And then it must be as necessary that he who doth continue to be their King should continue to perform his Oaths and grant these Priviledges to his People SECT III. That when the ancient Laws of their Country were wholly violated they constantly complain'd of the Injustice of the Action required the observation of them and when they could not prevail by fair means they sought to recover their Right by Arms. Where an account is given of the Barons Wars for the preserving of the Magna Charta and the Charta de Forestis FOR farther evidence of this matter let it be considered 3dly That when these Patriae Leges these Ancicient Laws of their Country were violated they constantly complained of the Injustice of the Action required the observation of them and when they could not prevail by fair means they revolted from their Subjection and sought to recover their Right by Arms. This they require of W. Rufus when he was sick And it was probably for neglect of these good Laws that most of the Nobility saith M. Paris Page 10. did una Rabie conspirare conspire against him with one fury For the same reason was it that when Robert came against King Henry the First a great part of the Navy went over to Robert for this they did saith M. Paris quia Rex jam Tyrannizaverat because the King was become a Tyrant Page 40. i. e. he governed not according to Law When Steven Archbishop of Canterbury in the year 1213 Per quam si volueritis libertates diu amissas poteritis ad statum pristinum revocare M. Paris p. 167. had found the Charter of Henry the First by which he granted to them the Law of King Edward with those emendations which his Father by the Counsel of the Barons did ratifie he told the Nobles this was the Charter by which if they pleased they might reduce their long lost Liberties into their former state The Charter being read they much rejoyced A rchiepiscopus vero promisit eis fidelissimum auxilium suum pro posse suo sic confoederatione facta inter eos colloquium solutum est M. Paris ibid. and swore in the presence of the Archbishop that when they could spy out a fit time for those Liberties if need required they would spend their blood the Archbishop on the other side promised to help them to the uttermost of his power and so having made a League among themselves they dissolved the Assembly When King John still neglected to observe these Laws the Nobles come unto him requiring him to confirm the Liberties and Laws of King Edward and other Liberties granted to him the Kingdom Petierunt quasdam libertates leges R. Edvardi cum aliis libertatibus sibi Regno Angliae Ecclesiae Anglicanae concessis confirmari M. Paris p. 176. Capitula libertatum legum quae ibi magnates confirmari quaerebant partim in Charta R. Henrici superius scripta sunt partimque ex legibus R. Edvardi antiquitus excerpta affirmantes quod nisi Rex illas incontinenti concederet sigilli munimine confirmaret ipsi per captionem castrorum suorum terrarum possessionum ipsum Regem compellerent donec super praemissis satisfaceret competenter M. Paris p. 176. and the Church of England they being leges Antiquae Regni consuetudines the Ancient Laws and Customs of the Kingdom contained partly in the Charter of Henry the First and partly gathered out of the old Laws of King Edward threatning that if he would not instantly grant them and confirm them under his Seal they would compel him so to do by seizing on his Castles Lands and Possessions till he gave them competent satisfaction in that matter Then the Archbishop shewed the King the Contents of that Charter Quod nunquam tales libertates concederet unde ipse efficeretur servus quare cum istis iniquis exactionibus Barones non postulant Regnum ibid. and upon the Kings answer that he would never grant such Liberties by which he himself was made a servant and that the Barons might as well ask the Kingdom they betake themselves to War and the Barons having got the City of London on their
confirm the said Charters which he promised to doe but when it came to be set down in form of an Act the King would have added A saving of the Right of his Crown which the Lords did mainly inveigh against and pressed the King with his promise to confirm them as absolutely as his Father Henry 3. had done which in the end he yeilded to as appears by the Act called Articuli super Chartas Chap. 1. where these Charters are again confirmed and 't is provided that they shall be read four times every year before the People in every County after the Feast of St. Michael and after the Feast of the Nativity of our Saviour after Easter and after the Nativity of St. John the Baptist When the King had ended his Wars in Scotland he refused to stand to the confirmation which he had made to his Barons of such Laws and Liberties as he before had granted pretending that they had forced his consent Obtinuit Rex à Domino Papa absolutionem à juramento quod invitus praestiterat super observantia Libertatum alias à Comitibus Baronibus exactarum Walsingh p. 92. and he obtained of the Pope an absolution from the Oath which he unwillingly had taken to observe them But when great murmuring and discontent followed hereupon and for his levying Taxes without consent of Parliament in his thirty fourth year he makes the Statute de Tallagio non concedendo for the quieting of the Commons and for a perpetual Law for ever after declaring That no Aid or Taxes shall from thenceforth be levied without their consent and making a general restitution to the Subjects of all their Laws Liberties and free Customes as freely and wholly as at any time before in the better and fuller manner they used to have the fame and and so ended all the disputes touching these Charters Walsingham saith Page 71 72. that the Grievances which the Arch-Bishops Bishops Abbats Priors Earls and Barons with the whole Commonalty remonstrated to the King were these viz. First That they were not dealt with according to the Laws and Customs of the Land according to which their Ancestors used to be governed Secondly That the Articles of M. Charta were neglected to the great damage of the whole Community Thirdly That the Assize and Charter of the Forest was not observed and then he adds that the Nobles would consent to no other form of Peace with the King than that which he established in the Statute de Tallagio non concedendo and which I have now set down There is one thing more very observable in the Reign of that King that when the Pope had summoned him before him to answer touching his Right to the Kingdom of Scotland a Parliament then held at Lincoln Papa R. Edvardum primum in judicium vocante respondet Parliamentum Lincolniae habitum quod praefatus Dominus noster Rex super juribus Regni Scotiae aut aliis suis temporalibus nullatenus respondeat judicialiter coram vobis nec judicium subeat quoquomodo cùm praemissa caderent manifestè in exhaeredationem juris answer the Pope thus That their King should not answer judicially before the Pope nor undergo his Judgment for his Rights of the Kingdom of Scotland or any other Temporal Rights because this manifestly tended to the disinherison of the said Crown Coronae Regni Angliae R. Dignitatis ac subversionem Statûs ejusdem Regui notoriam necnon in praejudicium Libertatis Consuetudinum Legum paternarum ad quarum observationem defensionem ex debito praestiti juramenti adstringimur quae manu tenebimus toto posse totis viribus cum Dei auxilio defendemus nec etiam permittimus aut aliqualiter permittemus sicut nec possumus nec debemus praemissa tam insollta indebita praejudicialia alias inaudita praelibatum Dominum Nostrum Regem etiamsi vellet facere seu modo quolibet attemptare Walsingh Hist p. 85. Hypod. Neustr p. 496. Speed p. 731. and the R. Dignity and the subversion of the said Kingdom and of the Liberties Customs and Paternal Laws to the defence of which they were by their Oath obliged and with their whole power would defend and were the King never so willing they as they ought not so they would not permit the King to attempt the Premises When King Richard the Second asked of Sir Robert Trisilian and his other Lawyers whether he might not Disannul the Decrees of the last Parliament and they had answered that he might BECAVSE HE WAS ABOVE THE LAWS as one of them confessed he deserved death for that Answer so all them that could be caught soon after found it Farthermore Let it be observed that the Nobility of England as the Lord Coke observes have ever had the Laws of England in great Estimation and Reverence Instit l. 2. p. 97. and would never suffer them to be changed This made King Henry the First saith he to write to Pope Paschal thus Let your Holiness know that by the help of God whilst I live Notum habeat Sanctitas vestra quod me vivente auxiliante Deo Dignitates Usus Regni nostri Angliae non imminuentur si ego quod absit in tanta dejectione me ponerem Optimates mei totus Angliae populus id nullo modo pateretur Charta Henr. primi the Dignities and Customs of our Kingdom of England shall not be diminished and if I which God forbid should so far deject my self my Nobles and all the people of England would never suffer them to be altered When the Bishops in the twentieth year of Henry the Third would have those Children who were born before Matrimony Legitimate as to Hereditary Succession as well as those who were born after Matrimony all the Earls and Barons answer with one voice Et omnes Comites Barones unâ voce responderunt quod nolunt Leges Angliae mutare quae hucsque usitatae approbatae sunt Stat. Mert. c. 9. Bracton l. 5. c. 19. F. 417. We will not have the Laws of England which have hitherto been used and approved to be changed In the Letters which all the Nobility of England by Ascent of the whole Commonalty assembled in Parliament at Lincoln wrote to Pope Boniface we find these words Ad Observationem Defensionem Libertatum Consuetudinum Legum paternarum ex debito praestiti Sacramenti adstringimur quae manu tenebimus toto posse totisque viribus cum Dei auxilio defendemus nec etiam permittimus nec aliquatenus permittemus sicut nec possumus nec debemus praemissa tam insolita indebita praejudicialia aliàs inaudita Dominum nostrum Regem etiamsi vellet facere seu quomodolibet attemptare Ret. Parl. 28. Ed. 1. apud Lincoln By virtue of our Oath we are bound to the Observation and Defence of the Liberties Customs and Paternal Laws which by the help of God we will defend
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
sua si velle Regnum pacifice possideret M. Paris p. 61 M. Westm p. 246. and saith M. Paris it was concluded in a publick Convention of the Bishops and Nobles of the Kingdom Fourthly Thus was it also in the Case of Richard Duke of York and Henry the Sixth for though Richard was the Right Heir to the Kingdom Quod Dux filij sui Edvardus Comes Marchiae Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum decreverat addendo de ipsius Regis consensu quod quamprimum Rex ipse in fata decesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Coryl Ed. Oxon. p. 550. yet the Parliament held A. D. 1460. decreed that Henry the Sixth should reign and be King during his Life and that the remainder should rest in Richard Duke of York and the lawfull Heirs of his Body in general tail SECT VI. The Inferences from the Resolutions of the best Casuists to prove that the Oath of Allegiance and of the Coronation are reciprocal and consequently that the obligation of the Oath of Allegiance doth cease when the Original Compact is Fundamentally violated NOw the Inferences which naturally flow from this Historical Account of the Kings of England and their Government are these First That the Kings of England were Kings by virtue of an Original Compact made between them and the People this is apparent by the Contract made by the Conquerour with the Barons and the Nobility and Commonalty of England and the so frequent repetition of that or a like Contract by the following Princes of this Realm by the Oaths they took at their Coronation to preserve to the People their Ancient Rights and Liberties their Original Customs and Laws and by the continual claim the people made to the Laws of their Country the Laws of King Edward and the Magna Charta as their Right Accordingly the Lord Chancellour Fortescue Chap. 9.13 having declared that our Kings are Political Kings who received their Power from the People he adds That Chap. 14. p. 34. non alio pacto by no other Contract did ever any Nation willingly incorporate it self into a Kingdom but that they by that means might more safely than before enjoy Themselves and their Goods of which intent that Nation would be defrauded if having thus submitted to the Government of a King he might spoil them of their Goods which before it was not Lawfull for any man to do Secondly That this Compact was That the King should govern them according to the Tenor of such Ancient Laws and Original Customes as were received among them according to the Good Approved and Ancient Laws of the Kingdom saith M. Paris the Liberties in which the Nobles confided saith M. of Westminster the Laws of their Country saith W. of Malmsbury the Laws of King Edward say the forementioned Authours the Proper Laws and Ancient Customs in which their Fathers lived say Hoveden Stat. Merton c. 9.25 H. 8. c. 21. and the Chronicle of Lichfield the Laws of England the Ancient Laws of this Realm originally established say our Statutes the Laws of the Land the good Laws of the Land saith the Oath of Richard the Second the Charters of the Liberties of England the Common Liberty say the contenders for them with King John and Henry the Third the fundamental Laws of the Kingdom saith King James Let it be observed First Out of Fortescue That our Kings rule not by Royal only Ch. 9. p. 25 26. Ch. 13. p. 32. that is Absolute but by Political Power and that therefore a King of England cannot change the Laws of the Body nor invade their Properties but as they do consent Ch. 13. p. 32. c. 14. p. 34. that he is advanced to the Throne for the safety of the Law and his Subjects in their Goods and Bodies and derives even this Power from the People and therefore cannot Lawfully Rule over them otherwise Secondly That this is the difference betwixt a King Governing Absolutely and by Political Power that the first can change the Laws of his Kingdom F. 25. B. 26. A. impose Taxes and other burthens without consent of his Subjects whereas a King who Rules Politically over his People can neither change the Laws without consent of his Subjects nor charge them with strange impositions against their Wills That a King ruling only by Power Royal may easily become a Tyrant but whilst the Kingly Power is restrained by the Political Law F. 26. B. he cannot govern his People Tyrannically That the Contract made with a King governing Absolutely F. 35. A. is that his Will shall be the Law whereas a Political King cannot govern his People by any other Power than that of the Laws And from these Principles it clearly follows That a King Ruling Arbitrarily and Fundamentally overturning the Laws is no such King as our Constitution knows or ever did admit of That therefore no Obedience or Allegiance can be due to him by Law nor be intended in any Legal Oath unless we can suppose men at the same time intended to preserve their Constitution and yet designed to engage themselves and others to be assistant to subvert it Thirdly Let us consider the Rules laid down by the exactest Casuists touching the Cases in which the obligation of an Oath ceaseth and apply them to the present Case Thus then they say First That when the Matter of an Oath ceaseth the Obligation of it ceaseth also and that the Matter of it must then be judged to cease Tunc enim cessasse materiam censendum est cum rerum status inter tempus jurandi tempus adimplendi ita immutatus est ut si quo tempore jurabatur praevideri potuisset is qui postea insecutus est rerum status non omnino juratum fuisset San. de Juramento Prael 7. § 7. when the state of things betwixt the time of Swearing and of fulfilling the Oath is so changed that if it could have been foreseen by him who took the Oath at the time of his Swearing he would not have taken the Oath When the Root of the Obligation is taken away Quia Radice obligation is sublatâ tollitur unà pullulans inde obligatio fuit autem materia quae causam dedit jurationi Radix ejus obligationis quae ex illa juratione insecuta est Ibid. the Obligation thence arising must be taken away with it now that which gave the ground for taking the Oath is the Root of the Obligation which followed upon the Oath Among the conditions which are de jure communi to be understood in all Oaths though they be not expressed this saith the Reverend Bishop Sanderson Subingtelligendum quarto rebus scstantibus i. e. si res in eodem statu
Books lately printed for Awnsham Churchil THe late Lord Russel's Case written by the Right Honourable Henry Lord de la Mere. fol. An Historical Account of making the Penal Laws by the Papists against the Protestants and by the Protestants against the Papists By Sa. Blackerby Esq Obedience due to the Present King notwithstanding our Oaths to the Former Written by a Divine of the Church of England 4 to A modest Enquiry Whether St. Peter was ever at Rome and Rishop of that Church 4o. The Spirit of France and the Politick Maxims of Lewis XIV laid open to the World 4o. Memorials of the Manner of Proceedings in Parliament in Passing Bills 8o. Dr. Burnet's Travels Several Tracts in two Volumes 12o. A Collection of Texts of Scripture with short Notes upon them And some other Observations against the Principal Popish Errors 12o Dr. Daniel Whithy's Treatise of Worship of Images Of Communion in one kind His Treatise of Tradition in two parts His Consideration for taking the Oaths to King William and Queen Mary Dr. Worthington of the Resurtection 8o. Mr. Masters of Submission to Divine Providence 8o. Foxes and Firebrands 8o. 1st 2d and 3d. Parts Mr. Bold's Sermon on occasion of the Brief for Irish Protestants An Answer to Bishop Lake's late of Chester Declaration of his dying in belief of the Doctrine of Passive Obedience c. Sir William Temple's Observations on Holland 8o Miscellania 8o Dr. Carswel's Assize-Sermon at Abingdon August 6. 1689. Mr. Selden's Table-Talk 4to A List of the present Parliament Lords and Commons Present Case stated about Allegiance to King William and Queen Mary Debates of the late Oxon and Westminster Parliaments 8o Monsieur Jurieu's Accomplishment of Scripture-Prophecies compleat 8o New System of the Revelations 12o Voyage to Siam 8o A Letter concerning Toleration humbly submitted 4o stitcht Agreement between the present and former Government 4o 153 Chymical Apborisms By a Country Hermite 12o Reflections in Vindication of one Archdeacon from the scurrilous and groundless Invectives against him A Letter to the Author of 200 Queries concerning the Revolution of human Souls Abridgment of all the Tryals in the two late Reigns 8o Two Treatises of Government In the former the false Principles of Sir R. Filmer and his party are detected and overthrown The latter is a Essay concerning the true Original Extract and End of Civil Government A Letter to a Member of Parliament occasioned by a Letter to a Member of the House of Commons concerning the Bishops lately in the Tower and now under Suspension 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 LICENS'D Decemb. 19. 1689. J. FRASER LONDON Printed for Awnsham Churchill at the Black Swan in Ave-Mary Lane MDCXC THE PREFACE I Would not have the Reader think that I approve of every thing related in this Historical Account That which I think my self concerned to make good is this 1. That what I do relate as History is Historically true or that it is delivered without fraud or wilful perversion of the Authors cited 2. That what I lay as the Foundation of my Inferences is sufficiently confirmed by what I have delivered in this History That may perhaps be useful for many other ends relating to our Late happy Change but they are obvious in themselves and were not chiefly designed by me and therefore are not mentioned here Farewell THE CONTETNS SECTION I. THAT from the Norman Conquest to this present time there was an Original Compact or Establishment of Laws by which the Kings of England were to Govern and the People to be governed Page 1 Sect. II. That they thought it absolutely necessary that whosoever would be their King should make this Compact with them and be as much obliged by Oath to grant these Priviledges to them as they were to swear Allegiance to him p. 6 Sect. III. That when the ancient Laws of their Country were wholly violated they constantly complain'd of the Injustice of the Action required the observation of them and when they could not prevail by fair means they sought to recover their Right by Arms. Where an account is given of the Barons Wars for the preserving of the Magna Charta and the Charta de Forestis p. 14 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 strenghen their Title to the Crown or at the least to satisfie their People p. 35 Sect. V. That we find mention in History of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own confession had not the immediate Title to the Kingdom and only proclaiming him who had the Right by Proximity of Blood Heir Apparent to the Crown p. 40 Sect. VI. The Inferences from the Resolutions of the best Casuists to prove that the Oath of Allegiance and of the Coronation are reciprocal and consequently that the obligation of the Oath of Allegiance doth cease when the Original Compact is Fundamentally violated p. 43 AN HISTORICAL ACCOUNT OF THE ENGLISH GOVERNMENT SECTION I. That from the Norman Conquest to this present time there was an Original Compact or Establishment of Laws by which the Kings of England were to Govern and the People to be governed I Am apt to think it may be want of due consideration of the History and Constitution of our Government which makes some worthy Persons of the Clergy so stiff in their refusal of the Oath of Allegiance to King William and Queen Mary Now the great mischief which this unhappy Division may bring upon the Protestant Religion both at home and abroad and the vile Imputations which are cast on that great Body of the Clergy which hath taken this Oath will justifie our Endeavours to set this matter before them in the clearest light and to let others know what hath been done by our Fore-fathers to secure their Laws and Liberties what Compacts they made with their Kings how uneasie they were under the Violation of them and what Conceptions they had touching the Nature and Constitution of the English Government and touching the Allegiance due to their Prince Now in order to these things let it be observed First Ubi Aldredus Archiepiscopus Wulfunus Wigorniensis Episcopus Clito Eadgerus Comites Eadwinus Morcarus de Lundoniâ quique Nobiliores cum multis aliis ad eum venerant datis obsidibus illi deditionem fecerunt fidelitatemque juraverunt cum quibus ipse foedus pepigit Dunelm p. 195. Flor. Wig p. 635. R. Hov. F. 258. That Florence of Worcester Simeon of Durham and R. Hoveden expresly say That William called the Conqueror made a League or Compact
with the Arch-Bishops Bishops Earls and Nobles of the Land who met him at Beorcham Secondly That the aforesaid Authors with John Brompton Daniel p. 36. declare That as the Bishops and Barons of the Realm swore Fealty to him Ipso Nativitatis die ab Aldredo Eboracensium Archiepiscopo in Westmonasterio consecratus est honorificè prius ut idem Archipraesul ab eo exigebat ante Altare Sancti Petri-Apostoli coram Clero populo jurejurando promittens se velle Dei Sanctas Ecclesias earum Rectores defendere necnon cunctum populum sibi subjectum justè Regali providentiâ verè regere rectam legem statuere tenere c. Flor. Wigorn. p. 634 635. Dunelm p. 195. Hoved F. 258. Chron. Joh. Brompt p. 962. so he reciprocally being required so to do by the Arch-Bishop of York made his Personal Oath before the Altar of St. Peter to defend the Holy Church of God and the Rectors of the same to govern all the People subject to him justly to establish equal Laws and to see-them duly executed And when new Commotions were made by the Nobility and Clergy upon their Submission and Oath of Allegiance re-taken he himself takes his Personal Oath again before Archbishop Lanfranc Daniel p. 37. and the Lords for the good of Peace to observe the Ancient Laws of the Realm Occurrerunt igitur Angli memorati ubi post multas disceprationes praesente Archiepiscopo Lanfranco Rex pro bono pacis juravit tactis Sacro-sanctis Evangeliis bonas approbatas antiquas Regni leges quas Sancti Pii Angliae Reges ejus Antècessores maximè Edvardus statuit inviolabiliter observare sic pacificati ad propria laeti recesserunt M. Paris in vitâ 23. Monach. p. 30. established by his Predecessors the Kings of England and especially of Edward the Confessor and this so pacified the English that they went joyfully to their own homes Thirdly Matthew of Westminster saith Et sic revocatis multis Anglorum Nobilibus foedere cautius cum omnibus confirmato Eboracum ubi fuit Danorum receptaculum potenter cum ibi inventis expugnavit A. D. 1069. That when the two Sons of Swain came into England to fight against it the Conqueror recalling many of the English Nobles made a League with them and by their Aid he overcame the Danes And that this League contained the Grant of their Rights and Liberties or the Laws of their Country is evident from what follows in the same Historian viz. That the Conqueror being thus secured in many things violated his promises taking from the Churches and Monasteries in which they lay the Charters in which the Nobles of England confided Jam factus securior in multis promissa violavit Monasteria totius Angliae perscrutari fecit pecuniam simul cum Chartis in quarum libertatibus Nobiles Angliae-confidebant quas Rex in arcto positus observaturum se juraverat ab Ecclesiis ubi in securo positae erant auferri praecepit violenter Ibid. p. 226. and to which he had sworn when he was in straits Fourthly R. Hagulstadensis S. Dunelmensis R. Hoveden M. Paris Henry of Knyghton and W. of Malmsbury inform us That Henry the first granted to all the People the Laws of Edward with the emendations which his Father had made of them strengthning them with his own Oath Legem R. Edvardi vobis reddo cum aliis emendationibus quibus pater meus eas emendavit consilio Baronum suorum R. Hagulst p. 311. Dunelm p. 225 226. Hoved. par 1. p. 268. M. Paris p. 38. Henr. de Knyght p. 2374. Malms l. 5. F. 88. Hoc quoque praecipimus ut omnes habeant teneant legem Edvardi Regis in omnibus rebus adauctis iis quas constituimus ad utilitatem Anglorum Apud Seld. Annot. ad Eadm p. 192. and the Oath of all his Nobles that they might not be eluded And W. Lambard cites this as one of the Laws of W. the Conqueror This also we command That all Men have and keep the Law of King Edward with the additions we have made to them for the benefit of the English Men. Fifthly Postea ad preces communitatis Anglorum Rex adquievit qui deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vixerant patres eorum ipsi in iis nati nutriti sunt sc leges Sancti Edvardi ex illo die magna Authoritate veneratae per universum Regnum corroboratae conservatae sunt prae caeteris Regni legibus leges R. Edvardi Chron. Eccl. Lichfield apud Seld. ibid. p. 171. The Chronicle of Lichfield doth inform us That the whole Community of England sued to the Conqueror that he would permit them to have the proper Laws and ancient Customs in which their Fathers had lived and under which they were born and educated viz. The Laws of St. Edward And that the King consented to their Petition Sixthly Attuli mecum de Londoniis leges aequissimi R. Edvardi quas dominus meus Rex W. Authenticas esse perpetuas per totum Regnum Angliae inviolabiliter observandas sub poenis gravissimis proclamârat suis justitiariis commendârat p. 88. Ingulphus his Secretary saith That he under the severest penalties proclaimed that the Laws of King Edward should be perpetual authentical and be observed inviolably thro' the whole Kingdome of England and as such he commended them to his Justices Seventhly R. Hoveden informs us That he commanded the Laws of King Edward to be observed in all things and that in the fourth year of his Reign by the Counsel of his Barons W. Rex quarto Anno Regni sui consilio Baronum suorum fecit summoneri per universos consulatus Angliae Anglos Nobiles Sapientes suâ lege eruditos ut eorum jura consuetudines ab ipsis audiret Electi igitur de singulis totius patriae comitatibus viri duodecim jurejurando confirmarunt primò ut quoad possent recto tramite neque ad dextram neque ad sinistram partem divertentes legum suarum consuerudinem Sancita patefacerent Hoved. par post F. 343. he made the Noble and Wise Men of England to be summoned throughout all the Provinces of England that he might hear from them who were skilled in their Law their Rights and Customs and that twelve Men were chosen out of every County who swore to their power to tread in a right Path neither turning to the right hand or to the left and to make known to him the custom and the establishments of their Laws And then he adds the very words contained in the Chronicle of Lichfield Now all these things put together seem plainly to conclude an Original Compact or Establishment of Laws by which the Kings of England were to govern and the Kingdom to be governed and the continuance and renewal
of that Establishment by our succeeding Kings Hist Nov. F. 186. A. 25 H. 8. c. 21. such as Malmsbury stiles our Patriae Leges and the Statute of Henry the Eighth the accustomed and ancient Laws of this Realm originally established Add to this then that Rule of Grotius Successio non est titulus Imperii qui Imperio formam assignat sed veteris continuatio jus enim ab electione coeptum familiae succedendo continuatur quare quantum prima electio tribuit tantum defert successio De jure Bell Pac. l. 1. c. 3. Sect. 10. That Succession is not a Title of Empire which gives the form to it but is only a continuation of the old Title The Right begun by the Election of the Family being continued by Succession And thence with him we may reasonably infer that Succession only brings down to Kings what the first Election gave and makes them only Kings according to the Compact and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority SECT II. That they thought it absolutely necessary that whosoever would be their King should make this Compact with them and be as much obliged by Oath to grant these Priviledges to them as they were to swear Allegiance to him 2dly OUR Kings well knowing what a Reverence the Community had for their Laws found no better means to gain or to secure to themselves the Crown and to pacifie the discontented Parties than by fair Promises and Engagements to maintain or grant to them their Laws Cum Regni fastigia fratri suo Roberto praeriperet coepit tam per se quam per omnes quos poterat fide sacramentoque Lanfranco promittere justitiam aequitatem misericordiam se per totum Regnum si Rex foret observaturum pacem libertatem securitatem Ecclesiarum contra omnes defensurum p. 13. Eadmerus informs us concerning W. Rufus that desiring to forestall his elder Brother Robert in getting the Kingdom he pawned his Faith and Oath that if they would make him King he would in all things observe Justice Equity and Mercy throughout his Kingdom and defend the Peace Liberty and Security of the Church against all Men. When his Brother Robert was come into England to claim his right and he had many of the Nobility who favoured him and sided with him W. Rufus calls the Normans and English Nobility to London leges statuens Pag. 642. and there stablishing the Laws he marched with them against his Brother saith Florence of Worcester He bound them to him saith M. Paris faciles leges promittendo Pag. 10. by promising them easie Laws as those of King Edward were by them stiled and accounted He sweetned them saith John Brompton Pag. 984. by promising that he would establish meliores leges quas sibi vellent eligere those more acceptable Laws which they would chuse Now those we know by their request in his Fathers days were the Laws of Edward and they with the emendations of his Father were the Laws then established These Promises he very little regarded after his agreement made with his Brother Robert but falling sick at the suggestion of his Barons he again promised to God saith Radulphus de Diceto Pag. 490 491. Rectas leges statuere to stablish right Laws Henry the first his Successor in the beginning of his Reign saith * Ipfe in principio Regni sui leges justas libertates populo dedit chartâ consirmavit sigillo corroboravit p. 310. R. Hagulstadensis gave to the People their just Laws and Liberties confirming them with his Charter and his Seal Dunelmensis R. Hoveden Florence of Worcester W. of Malmesbury M. Paris and Henry of Knyghton say that on the very day of his †Qui consecrationis suae die legem Regis Edvardi omnibus in commune reddidit cum illis emendationibus quibus pater suus illam emendavit Dunelm p. 225 226. Hoveden p 1. F. 268. B. Flor. Wigorn. p. 650. W. Malmsbur F. 88. M. Paris p. 38. H. de Knyghton p. 2374. Consecration he granted to all his People the Laws of Edward with the emendations which his Father had made of them * Pag. 216. B. Chron. p. 997. Henry of Huntington and John Brompton say that having promised a desirable melioration of the Laws and Customs he was consecrated by Maurice Bishop of London M. Paris saith most expresly that †Henricus congregato Londoniis clero Angliae populo universo promisit emendationem legum quibus oppressa fuerat Anglia tempore patris sui fratris nuper defuncti ut animos omnium in sui promotionem accenderet amorem ut illum susciperent in Regem Patronum Ad haec clero respondente Magnatibus cunctis quod si animo volente ipsis vellet concedere chartâ suâ communire illas libertates consuetudines antiquas quae floruerunt in Regno tempore Sancti Regis Edwardi in ipsum consentirent in Regem unanimiter consecrarent Henrico autem hoc libenter annuente se id facturum cum juramento affirmante consecratus est in Regem apud Westmonasterium p. 38. Henry having assembled the Clergy and all the People of England that he might dispose their minds to the love and the promotion of him and the taking him for their King and Patron promised them the emendation of the Laws by which England had been oppressed in the time of his Brother and that all the Clergy and Nobility answered That if he would freely grant to them and confirm by his Charter those Liberties and ancient Customs which flourished in the time of King Edward they would unanimously consent to receive him for their King and that upon his Consent and Oath to do so he was created King at Westminster And when his Brother Robert came to challenge the Crown as his by right of Succession and the Concord made betwixt him and his Brother Rufus to animate his Subjects to stand by him he speaks thus to them * Ego vero Rex humilis pacificus vos in pace in antiquis vestris libertatibus prout crebrius jurejurando promisi gestio confovere omnia videlicet quae sanctus Rex Edvardus Deo inspirante providè sancivit inviolabiliter jubeo observari Ibid. p. 42. I your mild King am desirous to preserve you in your Ancient Liberties as I have often promised upon Oath And command all things to be inviolably observed which holy King Edward by the Inspiration of God advisedly established Steven succeeded him and he to get the Kingdom Meliorationem legum promisit juxta voluntatem arbitrium singulorum M. Paris p. 51. R. Hagulstad p. 314 315. Chron. Jo. Brompt p. 1024. Bonas leges antiquas justas consuetudines in Hundris Placitis aliis Causis observabo Rich. Hagulstad p. 314. Confirmavit Pacta quae Deo populo
contra Chartas suas juramenta temere veniendo cum ipse Rex toties juraverat se jura Ecclesiastica illibata conservare ipsomet audiente Candelam tenonte quod omnes Episcopi in violatores libertatum Ecclesiasticarum simul sententiam fulminabant in cujus sententiae consummatione Rex ut alii suam Candelam extinxit inclinando M. Paris p. 354. and himself held a Candle when the Bishops in his hearing pronounced the Sentence of Excommunication against all the Violaters of the Ecclesiastical Libertie he then extinguishing his Candle with the rest In the year 1242. the King requests farther Supplies of his Parliament held at Westminster for his intended expedition into France Et praeterea concessit eis tunc quod omnes libertates contentae in M. Charta ex tunc in antea plenius tenerentur per totum Regnum suum inde fecit eis quandam parvam Chartam quam adhuc habent in quâ eaedem continentur quia dominus Rex nunquam post tricesimam datam Chartam suam de libertatibus tenuit Ibid. p. 394. But they resolutely deny to give him any for that in order to the obtaining former grants of Money he had promised and granted to them that all the Liberties contained in Magna Charta should from thence be fully observed through the Kingdom and had given them a little Charter in which they were contained and yet after all he never was true to his word but oppressed them still more In the year 1244. he desires new Supplies which for a time they refuse pleading that the Charter of Liberties which the King had granted Et quia Charta libertatum quas dominus Rex olim concesserat pro cujus conservatione Archiepiscopus Cant Edmundus juraverat fide-jusicrat certissime pro Rege promiserat nondum existit observata Matth. Paris p. 432. and the Archbishop had upan Oath in the King's name promised to them was not observed Though at last upon the King 's faithful Promise to keep and observe the Liberties unto which he had sworn at his Coronation and whereof he had granted his Charter and upon the appointment of four Noble Men to be of the King's Council who should be conservatores libertatum Keepers of their Liberties they grant him new Supplies the King then promising himself to observe them and requesting that for the defence of their Liberties all the Bishops in their Diocesses should pronounce Sentence against him and all who violated the said Liberties in any Article of them Rex tam in propria persona tum per internuntios solennes promisit se libertates quas juraverat in Coronatione sua super quibus Chartam fecerat integerrime servaturum ad quarum etiam tuitionem rogavit ut singuli Episcopi in Dicecesibus suis sententiam ferrent in ipsum omnes qui contra memoratas libertates venirent in aliquo Articulo M. Paris p. 435. And thus they agreed to grant him a Supply In the year 1252. he holds a Parliament at London and requires more Money and they after some consultation answer that though the King had much oppressed both Church and Kingdom they would doe their utmost to satisfie his desires provided that as he had often promised he would now at last inviolably observe the Charter of their Liberties so often covenanted and sworn to Other things they demanded then which the King would by no means agree to swearing horribly that whilst he lived * quantumcunque Ecclesiam Anglicanam Regnum suum Angliae oppreserit afflixerit quod postulat à nobis adhuc impendemus desiderio suo pro posse obsecundabimur si quodmultoties promisit vellt Chartam toties pactam totiesque debitam Libertatum nobis juratarum inviolabiliter posthac observare p. 568. Nunquam in talem mergeretur Servitutem Ibid. p. 570. he never would be reduced into such slavery And so the Assembly breaks up producing nothing but the King 's Wrath. In the Year 1253. was assembled a very great Parliament in which the Arch-Bishop and some Bishops are sent to induce the King to permit H. Church to enjoy her Liberties as he had oft promised upon Oath and declaring that if he would correct this and other of his miscarriages according to the Tenor of M. Charta they would incline to his Petition Quod si hunc alios errores secundùm M. Chartae de Libertatibus confectae tenorem emendaret ipsi usque ad gravamen magnum Petitionibus suis inclinarent c. p. 579. how burthensome soever it might be to them This the King promiseth to doe and desires them to assist him in it so the Clergy grant him à Tenth and the Knights Scutage viz three Marks of every Knights Fee for that year Rex bonà fide sine aliqua cavilatione promisit se Chartam Magnam omnes ejus Articulos fideliter observaturum quam Rex Johannes tenere juravit similiter qui praesens est in susceptione Coronae poste◠multoties Ibid. and the King promiseth faithfully and without cavil to ratifie Magna Charta and faithfully to observe all the Articles of it which King John and he at his Coronation and often since had sworn to observe And this is done in the most solemn and ceremonial manner that could be devised for the King with all the great Nobility of England all the Bishops and chief Prelates in their Ornaments with burning Candles in their hands assemble to hear the terrible sentence of Excommunication upon all the Infringers of the same and at the lighting of those Candles the King having one in his hand gives it to one of the Prelates saying It becomes not me Nondecet meCandelam talem tenere sum non enim Sacerdos Cor autemmajus perhibet Testimonium ex tunc tenuit manum expansam ad Pectus donec tota sententia finiretur p. 580. who am no Priest to hold this Candle my Heart shall be a greater testimony and withall laid his hand on his Breast the whole time the sentence was read which was thus pronounced In the name of the Omnipotent God c. Which done he caused the Charter of King John his Father to be read In the end having thrown away their Candles they cried out So let them who incurr this sentence be extinct and stink in Hell And the King with a loud voice said * Dixit ipse Rex Sic me Deus adjuvet haec ommia illibata observabo fideliter sicut sum homo sicut sum Christianus sicut sum miles sicut sum Rex Coronatus Inunctus c. M. Paris p. 580. Idem Rex consiliis malignorum praeventus easdem infringendo contra venire non formidavit credens pro-munere absolvi à trangressione p. 597. As God help me I will as a Man a Christian a Knight a King Crowned and Annointed inviolably observe all these things But notwithstanding all this in the very
next year the King by the counsels of some wicked men is wrought upon to infringe again this Charter hoping for a gift to obtain an absolution from his Oath In the next year a Parliament is called which yeilds nothing but grievous Complaints for breach of M. Charta Page 608. and Promises of supply provided it may be again confirmed and the electing the Justiciar the Chancellor and Treasurer put into their hands to which the King would not yield But though the King would not observe it M. Paris saith It was cryed in all Countries Diebus autem istis acclamatum est in comitatibus annunciatum est in Synodis in Ecclesiis ubicunque locorum homines convenerant ut M. Charta inviolabiliter teneretur quam R. Johannes concesserat iste Rex praesens multoties concessit lata est sententia solenniter in omnes ejusdem violatores Ibid. p. 609. and denounced in all Synods Churches and publick resort that M. Charta should be inviolably observed and the sentence of Excommunication is denounced against all the violaters of it In the Year 1256. Provision is again made sub paena horribilis Anathematis Page 619. under the penalty of an horrible Anathema that the M. Charta of King John should be observed In the Year 1257. The King requests an Aid for his Son Edmund for the acquiring the Kingdom of Sicily and after many excuses upon condition that the King would observe M. Charta so often promised and bought they tender 52000. Marks with which the King was not satisfied Ee tamen conditione additâ ut M. Chartam toties promissam emptam redemptam ex tunc inviolabiliter observaret c. p. 637. In the Year 1258. was held the Parliament at Oxford where the Nobles enter into an unchangeable League to require that the King should faithfully observe the Charter of King John Parliamento incipiente solidabatur Magnatum propositum consilium immutabile exigendo constantissimè ut Dominus Rex Chartam Libertatum Angliae quam Johannes Rex Anglis concessit fideliter teneat conservet exigebant insuper sibi fieri Justiciarum c. Quod Rex recognoscens graviter juravit consiliis eorum obsecundare Edvardus filius ejus eodem est juramento adstrictus p. 653. Rex coactus est corporale praestare Sacramentum cum omnibus ferè post jurantibus illud idem Hyp. Neustr p. 467. which he had so often swore to perform they require also the chief Justiciar Chancellor and Treasurer to be ordained by publick choice and the twenty four Conservators of the Kingdom to be confirmed twelve by the Election of the Lords and twelve by the King who swears to the confirmation of these things and causes the Prince to take the same Oath Walsingham adds that all after him did swear almost the same thing But notwithstanding this the King gets an absolution from his Oath of the Pope Rogabant humiliter ut communiter praestitum juramentum inviolabiliter observare vellet Contin M. par p. 567. Of this the Barons hearing humbly beseech him to perform the Oath publickly sworn but the King answering them with threats the business is deferred till the coming of Prince Edward who coming sides with the Barons according to his Oath and a League is made betwixt them to apprehend the King 's Evil Counsellors Ibid. and their Abettors and to endeavour to remove them from the King In the Year 1263. The contest betwixt the King and the Barons is referred to the mediation of the French King who annuls the provisions of Oxford but with this exception That the Ancient Charter of King John Hoc excepto quod Antiquae Chartae R. Johannis Angliae Universitati concessae per illam sententiam in nullo intendebat penitùs derogare p. 668. granted to the Community should in nothing be thereby impaired Then began the Barons Wars under Simon of Monfort who succeeded so far in them as to take the King and his Son Prisoners But afterwards the Prince escaping out of Prison fights with Simon and overthrows him at Evesham where he was slain And here it is to be observed that none of the Historians of those times will permit this Simon to be called a Rebel or a Traitor but they still represent him as a most devout servant of God and the Church Sciendum quod nemo sani capitis debet censere neque appellare Simonem nomine Proditoris non enim fuit Proditor sed Dei Ecclesiae in Anglia devotissimus Cultor fidelissimus Protector Regni Anglorum Scutum Defensor Chron. de Mailr p. 228. and a most faithfull Protector Shield and Defender of the Kingdom of England and even a Martyr for the Liberties of Church and State After the end of these Wars in the Year 1269. M. Par. Cont. p. 677. the King calls a Parliament to be hèld at Marlborough where the Statutes called the Statutes of Marlborough were Enacted Magna Charta in singulis suis Articulis teneatur tam in his quae ad Regem pertinent quà m quae ad alios Similiter Charta de Foresta in the Fifth Chapter of which it is decreed That the Great Charter and the Charter de Foresta shall be observed in all their Articles both concerning the the King and his Subjects And here Inst l. 2. p. 102. saith the Lord Coke it is to be observed that after this Parliament neither M. Charta nor Charta de Foresta was ever attempted to be impugned or questioned whereupon Peace and Tranquillity have ever since ensued Edward the First in the twenty fifth year of his Reign confirms the said Charters of the Liberties of England and of the Forest and declares they are to he holden for Common Law Confirm Chart. c. 1. requires that they should be held in every point that they should be sent under the Great Seal to all his Justices as well of the Forest as others proclaimed by the Sheriff of the County and that all Justices Sheriffs Mayors and other Ministers which under the King had the Laws to guide them should allow the said Charters in all their points which in any Plea shall come before them in Judgment and that the said Charters should be sent to all the Cathedrals within the Realm and should be read twice a year before the People Chap. 3. and that the Arch Bishops and Bishops Chap. 4. should denounce the Sentence of Excommunication against all them who in Word or Deed did act against the said Charters and these Sentences shall be pronounced and published twice in the year by the said Prelates And because in the sixth Chapter of the said Act there was added this clause Saves les auncient aides prises dues accustomes which gave some colour for the King's Officers to make an Evasion the Lords of Parliament met in the twenty eighth year of his Reign do importune the King again to
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