omitted The Objections from the Oath 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 Swedeland 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 shew the Antiquity and Power of a Palatine in Germany and England Gunterus used to shew that Office in several Countries Loyseau concerning it in France The Distinction in the Author of Les Soupirs between Officers of the King's House and Officers of the Crown The Antiquity and Authority of the Offices of Constable of England of the High Steward and the Earl Marshal which with the Earl of Chester have been as so many Tribunes of the People pag. 57. CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective sub modo 1. From the Saxon Pontifical and the Council of Calcuth An. 789. 2. From the Practice till the supposed Conquest 3. From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's Consent at Coronations 5. The Opinion of Kings themselves 6. The old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The Claims of Right between two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same common Stock pag. 72. CHAP. IX The Fourth Head of Positive Law A short Recapitulation of what has been prov'd An actual Discharge of Oaths of Allegiance to J. 2. shewn from the Authority of the Judgment past His usurping a Legislative Power leaving the Kingdom without providing for the Administration of Justice and going into France This confirmed by Rastal Lord Hobart Justinian's Digest The Rescript of Theodosius and Valentinian Pufendorf de Officio hominis civis His Elementa Juris prudentiae His Treatise de Jure Gentium Grotius Pufendorf de Inter-regnis Knichen's Opus Pol. Philip Paraeus A particular Consideration of what the Learned Knight Sir R. Pointz says seeming against these Authorities but shewn in truth to confirm them and to bring the Rules of the Civilians to our side That the Crown came not by Right of Descent to the next in Blood after the discharge of the Allegiance to J. 2. The Arguments for the People's being restor'd to the Liberty which they had before the Settlement of the Crown enforc'd from a particular Consideration of the State of the Settlement Where is it shewn how the word Heirs may be look'd on as restrain'd in the first Settlement on Heirs by Gomezius his Rule The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements and their Effects in relation to the Queen Mary and Elizabeth and J. 1. The Recognition to J. 1. not extending to his Heirs And question'd Whether the Recognition was not his best if not only Title With a modest Inference pag. 84. CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The use of the Triennial Act 16 Car. 1. against the necessity of common Form The Form and proceedings of the Convention assembled upon the Death of H. 3. The Dilemma used by the Formalists answer'd with a Distinction Pufendorf's Answer to Hobbs Another Passage of his applied to a Passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of the late Assembly would be conclusive to the Nation Neither forty days Summons nor Writs nor yet Summons to a Parliament Essential And this confirmed not only by the Precedent 12 Car. 2. but by two Precedents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves and of their own appointing The Objection of want of Form answered out of the Civil Law and its Reasons applied to our Case Objections made by the Author of Elimenta Politica considered The Conclusion pag. 98. APPENDIX Among other things SIR Robert Filmer and some of our Divines plaid against one another in relation to Ecclesiastical and Civil Power and Sir Robert against Himself pag. 1. Allegations in behalf of the High and Mighty Princess the Lady Mary now Queen of Scots against the Opinions and Books in the Part and Favour of the Lady Katherine and the rest of the Issues of the French Queen touching the Succession of the Crown Written in the time of Queen Elizabeth Reflections on Bishop Overal's Convocation-Book THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful King and Queen CHAP. I. The Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to
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
Contempt and Scorn of the current Doctrine of Passive Obedience Some would ask whether he does not exclude himself from the glorious number of Friends Nor will they be shy of affirming that he does so when they observe that he contends that they forgot their Duty both as good Christians Pag. 3. and good Subjects who declared for the Prince of Orange his now Majesty before the late King actually left the Nation Yet he seems not aware that while he blemishes these with setting up themselves against the Doctrines of Christianity he condemns Pag. 36. not only some of our Clergy but the Church of England for maintaining a Doctrine which he does not deny to be destructive to the Constitution of our Government and to Mankind by which one would be tempted to think that his business is to make Men not only out of love with Crowned Heads but with Christianity it self Pag. 36. As to particular Persons he confesses that the heat of Controversy has misled some of the Church of England to write too much in favour of wicked and tyrannical Princes even to the encouraging them to do worse than otherwise they would Where he taxes their Doctrine of Non-resistance with encouraging Tyranny and such excesses of it as the Tyrant would not otherwise presume upon Pag. 31. Nor does he less condemn the whole Church The Disloyalty says he of two other Parties have made the Church of England take into the contrary Extream and as a Jesuit wish'd it might do her much good in scorn So she had like to have pay'd too dear for the pretence and they who would now again sacrifice her to their Interest and Reputation are to speak softly none of her best Friends They pretend we have not suffered enough for our Religion to justify our Resistance Why according to their Principles we are never to resist whatever we suffer but to suffer on till there is not one left to resist Herein I confess he makes a true Representation of that Principle which himself runs into so naturally that he is not sensible of it But is not this by him judged to be an Extream to be avoided Does he not yeild that the Church of England has been made to take into this Extream out of abhorrence to the other Nay does he not in effect admit that himself and others sacrifice the Church to their own Interest and Reputation while that they may justify their Extream they condemn those who avoided both Scylla and Charibdis in Making to an happy Port along with our Caesar and his Fortune God forbid that it should still be Mens Interest to justify that Extream and let them enjoy the Reputation of never acknowledging an Error tho the most gross and pernicious But what a miserable Defender has our Church which must needs reject such Doctrines and Defences If Church-men are the Church States-men the State Truth may profane or lybel else the Great This Gentleman pretends to have the Scriptures Pag. 35. and all Primitive Antiquity on his side Vid. inf f. to which he would draw in the Church of England which upon a rational Construction cannot be thought to mean more than that we are bound to obey the King 's Legal Commands and not to resist him while he continues King nor has that any thing against the Supposition of a Civil as well as Natural Death And as to the two other Topicks it is to be considered 1. That the Scriptures meddle not with particular Constitutions but give a general Rule for Obedience which is more than bare Non-resistance according to those Constitutions which are God's Ordinance as he authorizes Human Laws in Civil Affairs not contrary to his own And 2. Pag. 3. This Gentleman himself sets aside all Primitve Antiquity when he confesses that in those times the Religion was contrary to the establish'd Laws and so Men could not be persecuted for it against Law at least not so as to come up to our case especially if we take in what he acknowledges farther The Roman Emperors says he under whom they liv'd So Jovian p. 85 86. Julian did persecute them legally vid. p. 91. were absolute independent Princes whose Will was the Law and the Constitution of the Empire differed vastly from that of England so that we are not under the same Obligation they were because our Princes have not the same legal Power as the Roman Emperors had but then I doubt not but we are as much bound to submit to the legal Commands of the King of England as the Primitive Christians to the legal Commands of their Princes But says he this was no part of the Controversy under the Reign of James 2. who had as little Law as Reason for what he did If this be not a giving up all Primitive Antiquity I shall never pretend to understand how words ought to be taken Since therefore neither the Scriptures Primitive Antiquity nor the Doctrine of the Church of England are against them who embrac'd and assisted in the Deliverance which his present Majesty vouchsaf'd us it became not this Gentleman who takes such pains to purge himself from having any hand in it to censure those Worthies who had as not behaving themselves like good Christians and good Subjects Pag. 3. Pag. 3. And to call them a few is almost an equal Reflection upon the honour of the Nation which has never been backward in freeing it self from Tyranny and vvas ready as a Man to act in this King's Service before they were so just as to lay the Crown at his Feet nay before Success had crown'd his glorious Enterprize which almost all were eager to evidence as they had opportunity and I may say of many with Mr. Cowley in his Description of Envy They envy even the Praise themselves bad won That the Body of the Nation were thus forward is manifest in their declaring by their Representatives that the late King had broken the Original Contract vvhich must have been before the Judgment pass'd upon it or ortherwise the Judgment were not warrantable Pag. 25. When the Gentleman vvill allow of no Title in his present Majesty but real Conquest over the Nation as vvell as the late King and lawful meaning lineal Succession either of vvhich Titles he supposes he may claim by he would do vvell to consider 1. That he reflects upon the great Representative of the Nation which founds it upon the others Misgovernment 2. He sets it all aside when he owns that this King does not claim by Conquest nor in truth could he be a Conqueror who was not only invited by those who had a just Ascendant over the Minds of the People but was pray'd for and receiv'd with open Arms by the Nation in general tho indeed such an universal Consent with such Inducements from Gratitude and the common Necessity ought to subdue all Scruples as much as the most real Conquest And this Gentleman must yeild
to be the Doctrine of the Church of England equally proves that this is essential to the Controversies depending between the Friends of the late Government and the happy Subjects of this As a just Corollary from which we may affirm that no Man who is true to the Doctrine of Non-resistance or Passive Obedience can bear Faith and true Allegiance to our King and Queen In consequence to which as I have above shewn such are bound to their Power to assist the late King and to maintain the Regal Rights which he still claims as King of England if they are entrusted with any of our King's Secrets to reveal them to the other and to employ all those Advantages which his Majesty's Favour may give them Preface to the Hist of Passive Obedience towards the advancing that Interest to which they believe themselves unalterably bound And tho our King with the Generosity of Alexander may trust himself with them of whose at least probable Designs he may have certain Information yet no Man need wonder that his Friends offer him the Notice and that they would have that Doctrine extirpated out of the World without vvhich it vvere impossible for him to have an Enemy in the English Nation but a Papist And even among them I dare say all but the bigotted Slaves to their Clergy are sensible of the benefit of his Protection and may encourage themselves in civil Obedience to him who is King over them from the Examples of St. Anselm with other holy Men and the generality of their Clergy who quietly obeyed the Power vvhich protected them without considering whether the Person who administred it stood next in the Line or no. And tho it may be excusable for a dying-Man to justify his own Sincerity to his private Friends yet when the matter vvhich he affirms is of such Consequence to the Peace of that Government which had rescued him and the Church in vvhich he had such a Trust from impending Ruin and afforded it and him sure Protection tho he had disabled himself from farther benefit he ought not certainly to have taken such Pains to transmit his Opinion to the knowledg of the unthinking Vulgar who vvere likely to be influenced by it unless he vvere certain beyond the least shaddow of doubt that this was not only a Truth but of such a nature that the Sin of Ignorance in others were damnable Or else that the Restoration of the late King were preferrable to Submission to this The last I hope his Admirers vvill not say and since the first evidently depends upon Points of Lavv tho ignorance of human Law cannot reasonably excuse before Men who know not the Heart and when the Plea ought to be allowed when not yet there is no doubt but it will before God But who would not be impatient to find our great Law-Casuist Dr. H. to justify his Disaffection to the Government under the Umbrage of the Bishop's Declaration and to boast himself a Confessor to this pretended Martyr vvithout producing more colour for it than a dying-Bishop's Belief that this is in Consequence of adhering to the Religion of the Church of England Had any one publish'd thus much in the Reign of Innuendoes when Dr. H. was the Trumpeter to the Imperial Power in Contradistinction to the Political one he vvould have met with Col. Sydney's Doom who suffered for publishing Hicksian Treason all over his own Study Jovian p. 236. And were Dr. H. to be judg'd by his own Law 't is certain he vvould be pronounc'd a Traitor if the Publication of this Paper vvere prov'd upon him For in his Jovian he says What tends to Treason is Traiterous The Lord Hollis his Book against the Bishop's voting in Capital Cases he says for the same Reason is an impious and treasonable Book because it abounds with Falsifications of Records c. and asserts that the King is one of the three Estates Pag. 237. And the Dialogue between the Tutor and Pulpit is a treasonable Piece because it misrepresents the English Government as if it were a Reciprocal Contract betwixt the King and the People and as if the Parliament ought whether or no the King pleas'd to sit till all Grievances were redress'd and Petitions answer'd By the last of which the Bishops were Traitors for their Proposals to King James And by the former Vid. the Bishops Proposals all those Passive-Obedience-Men are Traitors who publickly maintain an Opinion which necessarily implies that the Right of the last King could not be alter'd or diminish'd for any matter which induc'd King William to undertake our Deliverance If Men of the Doctor 's Opinion will be exasperated for being driven from their Coverts they should consider that they ought rather to be thankful that they are put to no further Mortification while they cease not to give jealousy to the Government by maintaining or patronizing what is inconsistent with that Peace vvhich they are bound to pray for But Dr. H. it should seem Jovian p. 104. now aims at the Glory of taking that boldness and liberty of speaking and acting vvhich he says was common among Confessors by which they shewed the greatness of their Zeal to suffer for God and how much they despis'd that Authority vvhich was over them in Competition with their Duty to God And this may be to retrieve his Reputation for not calling the late King an Idolater Ib. pag. 96 a Bread-worshipper a Goddess-worshipper a Creature-worshipper an Image-worshipper a Wafer-worshipper c. which we might have expected for the making good his Vapour before he came to the Trial. Did his then Silence agree with that supernaturul Courage Pag. 297. which he vvas fully perswaded God would inspire him with And does it not seem odd that the Inspiration should seize him to the Prejudice of that Government under which alone it can reasonably be expected that Protestancy can be supported but should be vvanting in a Popish Reign The Jews had a Divine Caution against receiving even those Prophets who vvrought Wonders if they labour'd to withdraw Men from the Worship of the true God And surely Protestants would not scruple to reject the Doctor 's Pretences to Inspiration Vid. Dr. H. his Raviliac Redivivus which some vvould be ready to ascribe to that Spirit vvhich himself had found out for the fluency of some Mens Prayers or rather to that lying Spirit in the Mouths of the Jewish Prophets which encouraged Ahab to go out to fight for what had formerly been in the Possession of the Crown of Israel 3. The Bishop will have this Doctrine of Passive Obedience to be the distinguishing Character of the Church of England and therein admits that she holds it in a manner differing from all other Protestant Churches And if this be so the acting or believing according to it can be incumbent only upon the unfeigned Assent and Consent-Men But we of the Laity vvho believe our selves to be
Preservation of the Constitution in vertue of which they might declare King William and Queen Mary King and Queen of England and Ireland with all their Dependencies tho J. 2. was alive at the time of such Declaration 2. That this rightful Power was duly exercis'd in the late Assembly of Lords and Commons and afterwards regularly confirmed by the same Body in full Parliament 1. As to the Nations rightful Power I shall not go about to refute the fond Notion of an absolute Patriarchal Power descending from Adam to our Kings in an unaccountable way because tho if this were true there could be no more Compact between Princes and their People than is between Fathers and Children for establishing the Rights of Fatherhood Patriarcha non Monarcha Ed. An. 1681. Two Treatises of Government In the former the false Princeples and Foundation of Sir Robert Filmer and his Followers are detected and overthrown Ed. Anno 1690. Heylyn 's Certamen Epistolare p. 386 387. yet the difference between a Patriarchal and Monarchical Authority is so well stated and prov'd by my Learned Friend Mr. Tyrril that few besides the unknown Author of the two late Treatises of Government could have gained Reputation after him in exposing the false Principles and Foundation of Sir Robert Filmer and his Admirers one of which Dr. Heylyn in his Letter to Sir Edward Filmer the Son speaking of his Father says His eminent Abilities in these Political Disputes exemplified in his judicious Observations on Aristotle's Politicks as also in some Passages on Grotius Hunton Hobbs and other of our late Discoursers about Forms of Government declare abundantly how fit a Man he might have been to have dealt in this Cause which I would not willingly should be betrayed by unskilful handling and had he pleased to have suffer'd his excellent Discourse called Patriarcha to appear in publick it would have given such Satisfaction to all our great Masters in the Schools of Polity that all other Tractates in that kind had been found unnecessary This he says might have serv'd for a Catholicon or general Answer to all Discourses of this kind Since Sir Robert Filmer and Dr. Heylin were our late Observator's Predecessors in guiding the Inferior Clergy 't is not to be expected that they should nicely enquire into the Errors and Contradictions of their Leaders but the Doctor 's scandalous Reflections upon the Reformation in England and the Misfortunes of Charles the First in some measure at least occasion'd by the Countenance given to Sybthorpism Manwarism and Filmerism may justly raise a Prejudice against these Men and their Doctrines in the thinking Laity and those who are not able to think of themselves may take every Morning some Pages of the two Treatises of Government for an effectual Catholicon against Nonsense and Absurdities which have nothing to recommend them but Stile and Names cried up among a Party Vid. Dr. Heylyn's Stumbling-Block of Disobedience and Rebellion Wherefore I may well think that I may pass over the Stumbling-Blocks which such Men lay in the way to my Proof that the Power whereby this Nation is govern'd is originally under God derived from the People and was never absolutely parted with Hooker 's Ecclesiastical Polity lib. 1. f. 10. Many have cited the Authority of the Judicious Hooker till it is thread-bare to prove that it is impossible there should be a lawful Kingly Power which is not mediately or immediately from the Consent of the People where 't is exercised The present Bishop of Worcester whose Name will undoubtedly be held in no less esteem in future Ages Irenicum p. 132. is as express in his Irenicum That all civil Societies are founded upon CONTRACTS and COVENANTS made between them which saith he is evident to any that consider that Men are not bound by the Law of Nature to associate themselves with any but who they shall judg fit That Dominion and Propriety were introduced by free Consent of Men and so there must be Laws and Bonds fit Agreement made and Submission acknowledged to these Laws else Men might plead their natural Right and Freedom still which would be destructive to the very Nature of those Societies When Men then did part with their natural Liberties two things were necessary in the most express Terms to be declared 1. A free and voluntary Consent to part with so much of their natural Rights as was not consistent with the well-being of Society 2. A free Submission to all such Laws as should be agreed upon at their entrance into Society or afterwards as they see Cause But when Societies were already entered into and Children born under them no such express Consent was required in them being bound by virtue of the Protection which they find from Authority to submit to it and an implicit Consent is suppos'd in all such as are born under that Authority The Account which the Learned Cragius gives of the first Institution of Kingly Government seems to deserve not to be omitted Quum multa iracundè multa libidinosè multa avarè fierent c. Cragius de Feudis f. 2. Vid. The like account in Sir Will. Temple 's admirable Treatise of Monarchy among his Miscellanies So Bracton Rex à regendo non à regnando Jus dicebant When many things were acted wrathfully many things lustfully many things avariciously the best Man of a Society was chosen who might take Cognizance of the Offence or Injury and determine what was equal among Neighbours Thus were Judges constituted in every City for the sake of distributing Justice These were call'd Kings for Kings at the beginning were no more than Judges having their Denomination from ruling Each presided over his own City that is administred Justice Hence that multitude of Kings in Holy Writ To descend from generals to the Romans in particular whose Emperors were suppos'd to have been the most absolute and that the Obedience to Higher Powers required in the Gospel is to be taken from the measures of Subjection due to them Dr. Hicks Dr. Hicks his Jovian the great Maintainer of the Absolute Power of Monarchs takes a great deal of Pains to shew that the Empire was not Hereditary and by Consequence that their Power was immediately vested in the particular Emperors by the Consent of the Legions or other People who set them up Saravia as careful of the Rights of Princes owns Saravia de Imp. Author f. 159. That by the Roman Law the Crime of Laesa Majestas or Treason is defin'd to be that which is committed against the People of Rome and its Security Where he confines it to Crimes against the People only Vid. Tacitus p. which indeed agrees with the dying Speech of an old Roman in Tiberius his time But that in the Eye of our Law there may be a Laesa Majestas Vid. Glanv p. 1 Crimen quod in legibus dicitur crimen Laesae Majestatis ut de nece vel seditione
particular Consideration of him to the second Part. TO proceed to positive Law I shall shew how the Contract between Prince and People stood and hath been taken both before the reputed Conquest and since Where 't will appear 1. That Allegiance might and may in some Cases be withdrawn in the Life-time of one who continued King until the occasion of such withdrawing or Judgment upon it 2. That there was and is an establish'd Judicature for this without need of recurring to that Equity which the People are suppos'd to have reserv'd 3. That there has been no absolute Hereditary Right to the Crown of England from the beginning of the Monarchy but that the People have had a Latitude for setting up whom of the Blood they pleas'd upon the Determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force 4. That they were lately restored to such Latitude 5. The People of England have duly exercis'd their Power in declaring for King William and Queen Mary and recognizing them to be Lawful and Rightful King and Queen 1. If the King not observing his Coronation-Oath in the main lose the Name of King then no Man can say that Allegiance continues But that so it was before the reputed Conquest appears by the Confessors Laws Vid. Leges Sancti Edwardi 17. de Regis Officio Nec nomen Regis in eo constabit where they declare the Duty of the King But the King because he is Vicar to the Supream King is constituted to this end that he should rule his Earthly Kingdom and the People of God and above all should reverence God's Holy Church and defend it from injurious Persons and pluck from it wrong Doers and destroy and wholly ruin them Vid. Bracton l. 2. c. 24. Est enim Corona Regis facere Justitiam Judicium tenere Pacem sine quibus non potest eā tenere which unless he does not so much as the Name of a King will remain in him c. To which Bracton seems to refer when he says The King cannot hold his Crown without maintaining Justice Judgment and Peace that therein consists his Crown or Royal Authority Hoveden shews how this Law was receiv'd by William 1. Hoveden f. 604. Rex atque Vicarius ejus Nota There was occasion for naming the Deputy by reason of the accession of Normandy requiring the King's Absence sometimes The King and his Deputy or Locum tenens in his Absence is constituted to this end c. in substance as above Which unless he does the true Name of King will not remain in him And as the Confessor's Laws have it in which there is some mistake in the Transcriber of Hoveden otherwise agreeing with them Pope John witnesses That he loses the Name of King who does not what belongs to a King which is no Evidence that this Doctrine is deriv'd from the Pope of Rome The Pope only confirms the Constitution or gives his Approbation of it Vid. The Case of Rehoboam inf in the Quotation out of Lord Clarendon f. 32. perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right And to shew that this is not only for violating the Rights of the Church the Confessor's Laws inform us that Pipin and Charles his Son not yet Kings but Princes under the French King foolishly wrote to the Pope asking him if the Kings of France ought to remain content with the bare Name of King Lambert Qui vigilanter defendunt regunt Ecclesiam Dei Populum ejus By whom it was answer'd They are to be called Kings who watch over defend and rule God's Church and his People c. Hoveden's Transcriber gives the same in substance but through a miserable mistake in Chronology will have it that the Letter was written by Pipin and his Son to W. 1. Lambart's Version of St. Edward's Laws goes on to Particulars among others That the King is to keep without diminution all the Lands Honours Dignities Rights and Liberties of the Crown Barones Majores Minores Vita Aelfredi f. 62. Ego tria promitto populo Christiano meisque subditis c. That he is to do all things in his Kingdom according to Law and by the Judgment of the Proceres or Barons of the Realm and these things he is to swear before he is crown'd By the Coronation-Oaths before the reputed Conquest and since all agreeing in Substance every King was to promise the People three things 1. That God's Church and all the People in the Kingdom shall enjoy true (a) Nota Protection Peace 2. That he will forbid Rapine and all Injustice in all Orders of Men. 3. That he will promise and command Justice and Mercy in all Judgments And 't is observable that Bracton Bracton lib. 3. c. 9. who wrote in the time of H. 3. transcribes that very formulary or rather Abridgment of the Oath which was taken by the Saxon Kings In Bracton's time 't is certain the Oath was more explicit tho reducible to those Heads and 't is observable that Bracton says The King is created and elected to this end that he should do Justice to all Where he manifestly shews the King's Oath to be his part of a binding Contract it being an Agreement with the People while they had Power to chuse With Bracton agrees Fleta and both inform us Fleta lib. 1. c. 17. that in their days there was no scruple in calling him a Tyrant and no King who oppresses his People violatâ dominatione as one has it or violentâ as the other either the Rule of Government being violated or with a violent Government both of which are of the like import Mirror p. 8. The Mirrour at least puts this Contract out of dispute shewing the very Institution of the Monarchy before a Right was vested in any single Family or Person When forty Princes who had the Supream Power here chose from among them a King to reign over them and govern the People of God and to maintain the holy Christian Faith and to defend their Persons and Goods in quiet by the Rules of Right And at the beginning they caused the King to swear That he will maintain the holy Christian Faith with all his Power and will rule his People justly without regard to any Person and shall be obedient to suffer Right or Justice as well as others his Subjects And what that Right and Justice was in the last result the Confessor's Laws explain when they shew that he may lose the Name of King Vid. Seld. spicil ad Ead. merum f. 171. Dissert ad Flet. f. 591. Hoved. f. 608. Leges H. 1. confirming St. Edward ' s Laws Cum illis emendationibus quibus Pater meus emendavit consilio Baronum suorum Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates Leges Regis Edwardi f.
Family was barely which of the Competitors all Circumstances being considered was most likely to advance the Publick Interest of which the People were to be Judges whereas according to his Limitation they were bound to take the Person who was next in the Line if he lay not under a natural or moral Incapacity directly contrary to what he shews out of Malmsbury of the West Saxon Kingdom in which after Ina no Lineal Succession was observed When Athelstan Page 15. of his own shewing was chosen King were his Brothers Edward and Edwin under any natural or moral Incapacity Or were the Sons of Edmond Iron-side either way uncapable when Edward the Confessor was elected For Confirmation of what himself produces upon this Head I take leave to add one Authority from the Writer of the Life of King Alfred Vita Aelfredi lib. 1. f. 19. Many Examples says he are found among the Saxon Kings of a Brother's succeeding to the Brother before his Son especially if the Son had any Impediment from the Infirmity of his Age or other Ineptitude for governing Nay OFTEN BY REASON OF LESS MERIT I must admit that for the deposing one actually invested with the Regal Authority the Author's Limitations were to be observ'd tho they were not strictly kept to and I cannot but think that this Author confounds himself for want of this Distinction Either the frequent Examples of setting Kings aside whom the Nation judg'd uncapable of the Government through some natural or moral Defect or Excess or rather the continual Engagements in war with Foreigners had such Effect that from the time of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957 to the time of W. 1. being 109 Years I find no like Instance but one Anno 1014 52 Years before the suppos'd Conquest which was the case of Etheldred who abdicated the Government and went into Normandy from whence the Nation agreed to receive him again upon Condition si vel rectiùs gubernaret Flor. Wigorn. An. 1014. vel mitiùs eos tractare vellet if he would either govern more according to Law or treat them more mildly Upon which he promiss'd omnia Rege Populo digna All things which become a King to his People For the most part during the Saxon Government a King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender Usage of his People Even Will. 1. notwithstanding the Pretence made in after-Ages of his having broken the English Spirit Vid. second Part. was not only oblig'd to keep within Bounds as the following Discourse will evince but to renew his Compact with the People more than once Their extraordinary Power had slept very few Years after the Death of this reputed Conqueror Ed. Lond. Mat. Par. f. 19. Rex Willielmus videns omnes pene regni proceres una rabie conspiratos Anglos fortitudine probitate insignes faciles Leges tributorum lenamen liberasque illis venationem promittendo sibi primo devinxit for the Sickness of his Son W. 2. giving the English Nobility an opportunity of consulting together they almost as one Man were for declaring against him which he timely prevented by fair Promises to them Nay tho his Brother H. 1. came in with the universal Applause of the Nation yet a great part of his Navy deserted him and declar'd for his Brother Robert not because he was the elder Brother but because Henry was unmindful of that Contract which gain'd him the Preference Quia Rex jam tyrannazaverit as the Historian has it because the King prov'd a Tyrant King Stephen his immediate Successor after Allegiance sworn to him had it a while withdrawn for Maud the Empress Daughter to H. 1. but the People soon return'd to it again rejecting her who was nighest in Blood because she deny'd them the benefit of St. Edward's Laws And Discourse p. 21. as the Author of the learned Discourse about the New Separation observes out of Manuscript written by Fortescue Chancellor to H. 6. Maud was set aside and the Reversion of the Crown entail'd on her Son altho she was living and this was done in Parliament Communi Consensu Procerum Communitatis Regni Angliae By the common Consent of the Peers and Commons of England for which Fortescue whose Skill and Integrity no Man can justly question appeals not only to the Cronicles but to the Proceedings of Parliament However this Author will have it that the Commons were not there but as represented by the Barons being misled by the general Expressions of the Historians whose Authority he opposes to the Rolls of Parliament Yet for the purpose here it is enough that this was done by a Parliament of that Time that the Agreement then made was confirm'd by the Oaths of the Great Men and that the Publick Good which was the Foundation of the Agreement was thought to be the measure of the Obligation of such Oaths Hen. 2. came to the Crown by virtue of an Agreement with King Stephen to which the Nation consented for ought appears he was a strict Observer of the Constitution of the Government but being render'd uneasy by the Refractoriness of the Clergy and desirous that his Son should enjoy that Kingdom which he found a desirable Possession to them who would keep the Laws he took his Son into a Partnership of the Care and Dignity this occasion'd a Competition for Power which the Admirers of the traiterous St. Becket improv'd into a War which divided the People Archbishop Parker's Antiquitates Britanicae f. 130. salvâ fide Regi patri quamdiu viveret ac regno praeesse vellet but this being between two Kings both in Possession I should not look on as any Precedent to our Point did I not find that the Allegiance sworn to the Son at the receiving him to the Succession was with a Salvo for that which was due to his Father as long as he should live or think fit to reign CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered THE Power lodg'd in the People for the publick Good to be sure was rous'd and justified by the Tyrannical Reign of King John who tho he had effectually abdicated or unking'd himself by his giving up his Crown as much as in him
And this is implied in restraining the assertion with the word Regularly to Matters within the ordinarily Rule But consider these severally 1. By perfect Contracts must be meant such wherein the Obligations are fixed and compleated at the beginning or from the nature of the Relation entred into And he says notwithstanding The Distinctions and Limitations in Contracts and Obligations Civil all agree That in those Duties which are mutual by the Laws of God and Nature as between the Father and the Son the Husband and the Wife the Lord and his Vassal the Prince and his Subjects the breach of Duty in the one is no discharge unto the other Not to observe how extensive he makes that Law of God or Nature which ascertains the Lords right over his Vassal and the Princes over his Subjects I much question Whether all agree that his Rule holds in such Cases as destroy the very nature of the Relation as the Adultery of the Wife or the like However himself yields that there may be an Obligation superiour to these for having produced Examples of Passive Obedience P. 96. he says ' We cannot here ground an Argument ' for justifying obedience to all Tyrants and invaders of our Country Omnes enim omnium Charitates una Patria complexa supergressa est c. filius sine scelere Proditorem Patriae licet Pater sit occidit In omni tempore bellum gerendum sit pro Defensione suâ Patriae Legum Patriae For our Country alone comprehends and goes beyond all private affections A Son without sin kills a Traitor to his Country tho he be his Father At all times War may be waged in Defence of ones self ones Country and the Laws of ones Country He owns expresly that Obedience is so far from being due to a Tyrant that it is not justifiable And he could not but know that the Civilians whose Rules he receives and applies under this Apellation include as well one who (a) Vid. Comment de Regno aut quovis principatu rectè tranquillè Administrando Advers Machiavellum Ed. Ao. 1577. p. 248. Bartolus duas species tyrannorum Statuit quarum unam juris seu tituli alteram exercitii sive usûs vocat Tyrannus titulo is est inquit qui sine ullo jure aut iniquo minimè legitimo titulo Principatum invadit Tyrannus exercitio sive usu is est qui legitimum quidem jus ad principatum habet sed eum injustè contra Leges exercet Itaque demum Statuit ejusmodi Tyrannis obsequium non deberi Sed è Magistratu deturbandos esse Ib. f. 249. having a lawful Title to Power uses it unjustly as one who usurps Power without any Title or other than what is unjust and illegal Wherefore since he makes no Distinction of Tyrants 't is not to be doubted but he with the Civilians particularly the Learned Bartolus discharges all Obedience and consequently Allegiance the Legal tye of Duty to a Tyrant in the exercise of Power as well as in Title Of both these Bartolus as a Judicious Author represents his sense held That Obedience is not due to them but that they are to be thrust out of the Government And the deservedly esteemed Great Man Mornay du Plessis Tractatus de Eccles per Phil. Mornaeum p. 68. in his Treatise of the Church cites Zabarel Baldus and Bartolus for the same distinction of Tyrants Nay observes that these Lawyers thô Papists held that even Popes might be Tyrants in either of these respects 2. As to the innominal Contracts Sir Roger's Rule is That the Breach of one will not justify the other to proceed towards the dissolving of the Contract which comes not up to any Case which does ipso facto dissolve it Besides this notwithstanding there may be either a Dissolution of the Contract a compelling to perform or satisfaction taken According to which in all Cases wherein the two last are insufficient a Dissolution of the Contract ought or may follow But farther the fixt Obligation of the Subject whatever the King shall do contrary to the Contract is by him founded upon the supposition either that the People of England have transfer'd the Power of the Nation to their Kings as absolutely as he supposes that the People of Rome had done to their Emperors Vid. Sup. or rather that W. 1. made a Conquest of this Nation If says he we cannot find any Law or Reason Sir Roger Poyntz p. 123. that the Romans or any other People who had in them the Supream Power could after they had transferr'd this Power to Kings and elected them reassume this Power again and when it doth please them depose their Kings or limit and restrain their Power by vertue of an habitual Power still remaining in the People as is suppos'd then undoubtedly we can find no Right in the People Vid. the punishment which the Senate decreed against Nero More majorum or in any Societies or Communities of People to Depose Restrain or Limit Kings of hereditary Succession especially those who have not their Right from the People but by Conquest as in England From such Kings of Hereditary Succession and Right all Jurisdictions do proceed and in them reside and unto them they return say the Lawyers Rex est lex animata And his Office and Function is Indesinens consulatus All other Rights and Liberties whatsoever have been as in other Kingdoms at the Will and Mercy of the Conquerors of our Island the Romans Saxons Danes Normans Our Rights and Liberties contain'd in Magna Charta granted and confirmed by divers Kings after much effusion of Blood we nor our Ancestors did nor could ever claim by Virtue of any Reservation made by the People or any others when they were Conquer'd Neither by any Original Right inseparably inherent and vested in the People and from them deriv'd Here 't is observable 1. That thô Sir Roger will not have any Original Right to be inseparable from the People yet he owns that in some places they may have Elected Kings and have had Supream Power in them till they transferr'd it to their Kings Sherringham's Supremacy asserted Introduct p. 11. Contrary to Mr. Sherringham who to make his Court at the coming in of C. 2. held that all Authority is originally in Kings or other Supream Magistrates themselves immedidiately from God Tanquam in primo creato Subjecto as in the first created Subject 2. Sir Roger with that Divine holds that W. 1. obtain'd the Crown by Conquest Sher. p. 53. Vid. 2 d Part. Mr. Sherringham indeed owns that there was a composition and agreement but will have it that this was not till after a Victory as if the Victory over Harold made a Conquest of the Nation Of which more in its place 3. Sir Roger goes no more beyond our Case when he argues upon supposition of a total Translation of the Power whereby a People or Nation is
Honour Nature and Dewtie an inordinate seditious and slaundres Act was made agayns the most famous Prince of blessed memory Kinge Herrie the Sixte his Vncle in the Parliament holden at Westminster the fourth day of November the first Year of the Reigne of Edward the Fourth late King of England whereby his said Vncle contrary to due Allegianee and all due Order was attainted of High Treason Wherefore our same Soveraigne Lord by the Advice and Assent of the Lords Spirituals and Temporals and Comines in this present Parliament assembled and by Auctoritie of the same ordeineth enacteth and establisheth that the said Act and all Acts of Attainder Forfaiture and Disablement made or had in the said Parliament or else in any other Parliament of the said late King Edward ayenst the said most blessed Prince King Herrie or against the right famous Princess Margaret late Queen of England his Wife or the right victorious Prince Edward late Prince of Wales Son of the same blessed King Herrie and Margarett Jasper Duke of Bedford late Earl of Pembroke or Herrie late Duke of Somerset the which Jasper and Herrie late Duke of Somerset for their true and faithful Allegiances and Services done to the same blessed King Herrie were attainted of High Treason or any of them by what Name or Names they or any of them be named in any of the said Acts be ayenst the said blessed King Herrie Queen Margaret Edward late Prince and the same Dukes and the Heirs of every of them void annulled repelled and of no Force ne Effect N. X. Vid. CAP. F. 103. SAnctissimo in Christo Patri Domino Claus 3. E. 1. m. 9. Cedula In a Letter to the Pope Domino G. divinâ providentiâ Sacro-sanctae Romanae Ecclesiae universalis Ecclesiae summo Pontifici Edwardus ejusdem gratiâ Rex Angliae Dominus Hiberniae Dux Aquitaniae Cum reverentiâ honore salutem pedum oscula beatorum Mandavit nobis olim per literas Apostolicas quas pronâ mentis devotione recepimus vestra sanctitas reverenda ut annuum censum in quo Sacrosanctae Rom. Ecclesiae ratione Regni Angl. pro octo praeteritis annis asseritis nos teneri venerabili vestro Magistro R. de Nogeriis Capellano vestro assignari liberaliter ac integrè nomine pred Rom. Ecclesiae faceremus Nuper autem alias literas vestras recepimus cum Reverentiâ continentes quod cum nos respons Relationis solutionis Censûs annui memorati quam nobis pred Capel vester exposuit vestrae Ecclesiae Romanae Nomine diligenter Deliberatione Consilii Procerum Regni nostri in Parliamento quod circa Octabas Resurrectionis Dominicae celebrari in Angliâ consuerit pro eo duximus reservand quod tempore receptionis pred lit vestrae noviter ejusdem Regni gubernacula sumpseramus nunc de hujusmodi censu sine ulteriori procrast impendi faceremus eidem satisfac plen Capellano Fatemur enim S. Pater Domine ad Parliament nostrum in Octabis Resurrectionis Dominicae prox pret Regni nostri Praelatos Proceres evocasse ibique multa statuisse divinâ gratiâ favente quae meliorationem statûs Ecclesiae Anglicanae reformationem Regni ejusdem respiciunt communes profectus populi capiant incrementa Set antequam eidem Parl. propter negotiorum multitud quae reformationis remedio indigebant finem imponere valeremus Eodem Capellano vestro responsionem debitam sibi fieri instanter postulante quaedam gravis nos invasit sicut Domino placuit infirmitas corporalis quae perfectionem multorum aliorum negot deliberationem Petitionis Censûs annui supardict de quo dolemus non modicum impedivit Sicque cum occatione infirmitatis hujusmodi à quâ per Dei gratiam cujus est perimere mederi incepimus convalescere Idem Parl. fuerit dissolutum super hoc nequiverimus super Petitione Censûs ejusdem deliberationem habere cum Praelatis Proceribus antedictis sine quorum communicato consilio sanctitatae vestrae super predictis non possumus respondere Et jurejurando in coronatione nostra prestit sumus astricti quod jura Regni nostri servabimus illibata nec aliquod quod Diadema tangat Regni ejusdem absque ipsorum requisito consilio faciemus Reverende Benignitati vestrae humiliter supplicamus pro dono petimus spirituali quatenus molestè non ferat sanctitas vestra si ad praesens super pred sicut vellemus non possumus respondere Imo patientia vestra paterna si placet nos super hoc habere dignetur excutatos Pro firmo scituri pie Pater Domine quod in alio Parliamento nostro quod ad festum Sancti Michaelis prox fut intendimus dante Domino celebrare habito communicato Consilio cum Praelat Proc. memoratis vobis super praem ipsorum Consilio dabimus responsionem Conservet vos Dominus Ecclesiae Sanctae suae per tempora longaeva Teste meipso apud Westm 19. die Junii Anno Regni nostri 3o. The Present CONVENTION a Parliament N. XI Vid. CAP. 10. F. 111. I. THat the formality of the King 's Writ of Summons is not so essential to an English Parliament but that the Peers of the Realm and the Commons by their Representatives duly Elected may legally Act as the great Council and Representative Body of the Nation though not summon'd by the King especially when the Circumstances of the time are such that such Summons cannot be had will I hope appear by these following Observations First The Saxon Government was transplanted hither out of Germany where the meeting of the Saxons in such Assemblies was at certain fixed times viz. at the New and Full Moon But after their Transmigration hither Religion changing other things changed with it and the Times for their publick Assemblies in conformity to the great Solemnity celebrated by Christians came to be changed to the Feasts of Easter Pentecost and the Nativity The lower we come down in Story the seldomer we find these General Assemblies to have been held and sometimes even very anciently when upon extraordinary Occasions they met out of course a Precept an Edict or Sanction is mentioned to have issued from the King But the Times and the very Place of their ordinary Meeting having been certain and determined in the very first and eldest Times that we meet with any mention of such Assemblies which times are as ancient as any Memory of the Nation it self hence I inferr that no Summons from the King can be thought to have been necessary in those days because it was altogether needless Secondly The Succession to the Crown did not in those days nor till of late Years run in a course of Lineal Succession by right of Inheritance But upon the Death of a Prince those Persons of the Realm that Composed the then Parliament Assembled in order to the choosing of another That the Kingdom was then Elective though one or other of the Royal
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
dimittere But if no Act which is ineffectual in Law will justify the withdrawing Allegiance then none of the Instances will hold for to that purpose they are equally ineffectual Yet who doubts but the King doing what in him lies to alien his Kingdom gives pretence for Foreign Usurpations as King John did to the Pope's And whoever goes to restore the Authority of the See of Rome here be it only in Spirituals endeavours to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion Vid. Bellarm. how the Pope hooks in Temporals in ordine ad Spiritualia Nor can it be any great Question but the aliening any Kingdom or Country part of the Dominion of England will fall under the same Consideration which will bring the Case of Ireland up to this where the Protestants had been disarm'd and the Power which was arm'd for the Protection of the English there Vid. Leges S. Edwardi put into the Hands of the Native Papists nor is it now likely to be restor'd to its Settlement at home or dependance upon England without vast Expence of Blood and Treasure Even the Author of Jovian owns Dr. Hick 's his Jovian p. 280. Ib. p. 192 193. that the King's Law is his most Authoritative Command and he denies that the Roman Emperor had any Right to enslave the whole People by altering the Constitution of the Roman Government from a Civil into a Tyrannical Dominion or from a Government where the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. No Clergy-man of the last or foregoing Reign having treated of Civil Government with more Temper and Judgment and yet with greater Applause of the warmest Men of his own Gown Falkner 's Christian Loyalty Ed. An. 1679. than the Learned Mr. Falkner of Lyn I shall be the longer in giving an account of his Discourse of Christian Loyalty which will prove an Authority on my side beyond what could be hop'd for considering the time when his Book came out with License and a Dedication to the Archbishop of Canterbury it being when Mr. Johnson by way of Composition against a threatned Suspension was oblig'd to drink his Coffee at home lest he should inlighten his Brethren who fill'd all places of publick Resort with their Pulpit-Law and the Dictates of their Guide Sir Roger. I must own that Mr. Falkner was in some things carried away with that Tide which if any of that Cloth besides Mr. Johnson had the Courage to stemm they had at least the good fortune to be less observ'd but the shewing wherein the Author of Christian Loyalty gave too much way to the Fashion or the Noise may yield farther strength and light to that Truth which will arise out of those very Clouds with which he might think requisite to obscure it His Treatise is in two Parts in the first he vindicates and endeavours to explain the Oath of Supremacy 1. In relation to the Regal Power as it is receiv'd in our Church or at least by Church-men or as it is acknowledged by our Laws 2. As the Oath renounces all Foreign Jurisdiction the last of which falls no otherwise under Consideration here than as it shews the King's Duty to preserve his Ecclesiastical as well as Civil Supremacy and not to alienate either In the second part this Worthy Author considers the publick Declarations against Subjects taking Arms. Page 14. 1. In the first he rightly affirms That the asserting the Supremacy of Government is never design'd meaning I supppose by the Law in any wise to violate either Divine or Christian Institutions or to assert it lawful for any Prince to invade that Authority and Right which is made particular thereby whether in Matters Temporal or Spiritual Where by Christian Institutions Page 3. 't is plain that we are to understand the Ecclesiastical and Civil Laws of Christian States or the Laws of others not contrary to Christianity and thus he deservedly blames them who nourish false Conceptions and mistaken Opinions concerning the CIVIL POWER beyond due Bounds exalting it so high as not to reserve that Respect which belongeth to God and Christian Institutions Page 15. and rightly observes that the Supremacy does not exclude the Subject from a real Propriety in his own Estate And that there are some Kingdoms where without any Disparagement to the Supremacy of their Prince Page 11. they are govern'd by the fixed Rules of the Civil Law and others where other Laws established by their Predecessors are standing Rules Page 391. And particularly in relation to the People of this Realm he says in the second Part The English Constitution doth excellently and effectually provide against injurious Oppressions Of which more in its place 1 Canon An. 1640. However I cannot but here observe that even the Canons of 1640. which he receives as speaking the Sense of the Church of England own that the Subject has a Propriety but withal say that Tribute Custom and Aid and all manner of necessary Support and Supply are due to Kings from their Subjects by the Law of God Nature and Nations yet tho it is the Duty of Subjects to supply the King it is part of the Kingly Office to support his Subjects in the Propriety and Freedom of their Estates Still it seems subject to the King's Judgment of necessity which is right Sibthorpism and Manwarinism afterwards eccho'd to by the Courts at Westminster in the Resolution about Shipmoney and of late in that of the Dispensing Power I think in two things what Mr. Falkner writes upon the first Head lies open to Exception 1. That generally by Civil Power Page 356. he seems to mean the Person of the King and that not according to his own Definition of a King which he says doth denote the Royal Person who governs which himself owns to be according to the respective Limitations in those places where they govern many having the Title of a King Page 339. who had not such Royal Power as is allowed by our Constitution but he ascribes to a King generally speaking and particularly to ours such a Soveraignty as carries with it the absolute and arbitrary Exercise of that Civil Power whereby a Nation is govern'd Thus he asserts with St. Austin That Subjests may and ought to obey their Prince's Commands where they are certain Page 302. that what he commands is not against the Command of God And hence he attributes to the Kings of England even more Power than he allows to the Roman Christian Emperors as will soon appear And it appears that this is not only a casual dash with his Pen Page 123. for having before in one place spoken of the business of the Civil Power describ'd by St. Peter Page 131. in another he mentions the Authority with which he supposes Kings and Princes to be
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
an eighth in the last age Vid. Apud Cujacium de feudis 4. tom lib. 5. a. f. 602. ad 1627. Mat. Par. ed. Lond. f. 563. had without precedent brought in the Dignity of the Septemvires The other was the Arrogance and Usurpation of the Pope The Golden Bull of C. 4. who as Conringius will have it brought in the Authority of the Electors of the Empire provides who shall sit Judg or High Steward when the Emperor is impeach'd By that the Palatine of the Rhine has the like power with that of which Matthew Paris shews the Earl of Chester to have carried the sign or emblem at the Coronation of H. 3. 20 of his Reign Anno 1236. Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante in signum quod Comes est Palatinus Regem si oberret habeat de jure potestatem cohibendi The Earl of Chester carrying St. Edward's Sword called the Curtein as a sign that he is an Earl Palatine and has of Right power to correct the King if he go astray It appears that this was no new grant to the then Earl of Chester for Matthew Paris informs us that the Great Men at that Coronation exercis'd what belong'd to them by ancient Custom and ancient Right That this Palatine-jurisdiction was with us before the entrance of the Norman Duke may well be thought by them Vid. 2 d Part. who shall consider the Record which I shall afterwards produce proving that Hugh Lupus enjoyed the Earldom of Chester in the time of W. 1. as heir to Leofric Earl of in the Confessor's Reign and that W. 1. confirm'd it to Lupus to hold as freely by the Sword as himself held the Kingdom The Sword which the Earl of Chester carried in the time of H. 3. being expresly said to be St. Edward's is an evidence that it was the same which Leofric carried in that time by reason of his Earldom and not of any particular Lands agreeable to what I find in the time of H. 3. in Inquisitions after the death of Hugh de Veer Earl of Oxford to whose Barony the Office of Chamberlain to the King is found to belong But that it may not seem strange that I should find a Palatine here before the Conquest when few of the German Writers place it higher than the time of our H. 3. Mr. Selden shews out of an Ancient Chronicle a Comes Palatii in France as early as the Reign of Clothar 3. about the year 660. Vid. Titles of Honour Ed. 4. Anno 1614. p. 242. This with several other considerable passages omitted in the Ed. f. And he observes upon the passage which he cites That the King and other great Courtiers seem'd to sit sometime but the chief Authority Delegate and Judiciary was in the Count du Palais and before him as Chief Justice were all Suits determined Crimes examined the Crown Revenue accompted and whatsoever done which to so great jurisdiction was competent Neither was there it seems always one only in this Office but sometime more That the Jurisdiction of Palatines was known here in the time of H. 2. appears beyond contradiction from John of Salisbury Joh. Sarisbur Epist 263. sicut alii Praesules in partem solicitudinis a summo Pontifice evocantur ut spiritualem exerceant gladium sic a Principe in ensis materialis communionem Comites quidam quasi mundani juris Praesules asciscuntur Et quidam qui hoc Officii gerunt in Palacio Juris Authoritate Palatini sunt a Bishop at that time who in a Letter to Nicholas then Sheriff of Essex says As other Prelates are called by the Pope into part of the care to exercise the Spiritual Sword so some Earls are by the Prince taken into Partnership of the Material Sword as Prelates of Worldly Right And some who bear this Office in the Palace by the Authority of Law are Palatines This fully justifies Matthew Paris in speaking with reference to the known power of a Palatine in the year 1236. One hundred and twenty years before the Bull of Charles 4. that being in the year 1356. This shews that however it might have been as to the other Electors of the Empire the Power of the Palatine was prior to the Bull of Charles 4. The Bull it self has sicut ex consuetudine introductum dicitur as 't is said to have been introduced by Custom this Custom Conringius supposes to have begun in the time of Frederic 2. but holds that there was no express Law for it till that Bull. Yet Frederic having been coeval with our H. 3. whose Sister he Married it would seem very strange if this Power or Office which had been so early in France and England should have been no earlier in Germany Titles of Honour ed. Ao. 1631. f. 382. Mr. Selden shews one Otto an Earl Palatine in Germany in the year 1154. and an other Otho who slew the Emperour Philip Anno 1208. and in the Margin refers to Eginhart who wrote the Life of Charles the Great who was Emperor over the Francs and Germans for proof that one Anselm was Comes Palatii or Earl Palatine under him Anno 812. Freherus gives an instance of the Palatine's Power in the Empire Freheri Orig. Palat. f. 113 119 120. before the Bull of Charles 4. in the Case of King Albert threatned to be deposed for killing his Leige Lord Adolph to whom he succeeded Anno 1290. With Freherus agrees Gunterus in his Octoviratus who says Prideaux his Introd Gunteri Thulemarii Octovirat cap. 18. That the Palatine of the Rhine Major Domo to the Emperour is by Custom Judge of the Emperour himself or rather in the highest matters declares the sense of the Electoral College He cites several Authors to prove the like Office or Power to have been in divers Kingdoms and Principalities and names France England Arragon Spain Denmark Poland Bohemia c. For France Loyseau who wrote within this Century Loyseau du droit des Offices ed. Anno 1610. f. 409 410. shews this Power to have belonged to their Major du Palais for he owns the Power to have been greater than the Roman Prefect of the Palace had and yet he cites the words of the Emperour Trajan giving his Prefect a naked Sword which he enjoyn'd him to use against himself if he misgovern'd And Loyseau says That this dangerous Office was put down by the Kings of the Third Line that they might perpetuate the Crown in their Family But the Author of the Sighs of France Soupirs de France Esclave Mem. 7. p. 116. shews the first interruption to the exercise of this Office to have been put by the States of the Kingdom who when Clothair pressed them to consent to the choice of a Major du Palais in the place of Warnhier then lately deceased would not consent declaring that they would not have that charge fill'd Loyseau supposes this Office to have
been split into the Constable Chancellour Treasurer and the Grand Maistre du France or Count du Palais which he seems to resemble to an High-Steward with us The Author of the Sighs of France shews Les soupirs Mem. 7. p. 167. that when Childebert was chosen King they chose Grimoald for Maire du Palais And says he Through all our History we may always see a very clear distinction between the Officers of the King's House and those of the Crown This distinction remains to this day as a Monument of the Ancient Liberty of the French For we say the Great Master of the King's Houshold the Great Chamberlain c. But we say the Constable of France the Admiral of France the Chancellour of France And these last Charges do not dye with the King whereas the Officers of the King's House dye with the King and may be changed by his Successour The Reason of this difference comes from this That that which is given by one King may be taken away by another But the Officers of the Crown being made by the People and by the Realm cannot be turn'd out by the King alone And it is very remarkable that these Offices of the Crown which the States of the Kingdom may give and which they alone can take away may extend to the whole to the War to Justice and to the Finances or Treasury In a Book published in Queen Mary's Reign which at least went under the name of Bishop Poinet one of our Confessors History of Passive Obedience p. 38. who fled to Germany from the Marian Persecution such a Power as is above mentioned is affirmed to have belong'd to the High Constable of England Treatise of Politick Power Anno 1556. As God says the Author has ordained Magistrates to hear and determine private Matters and to punish their Vices so also will he that the Magistrates doings be call'd to account and reckoning and their Vices corrected and punished by the Body of the whole Congregation or Commonwealth As it is manifest by the meaning of the Ancient Office of High-Constable of England unto whose Authority it pertained not only to summon the King personally before the Parliament or other Courts of Justice to answer and receive according to Justice but also upon just occasion to commit him to Ward Theloal in his Digest of Writs Printed in the year 1579. 21 Eliz. Collects what is in the Year-Books concerning Summoning the King Theloal's Digest tit Roy. p 71. This was H. 3. Vid. 22. E. 3. f. 3. b. Trin. 24 E. 3. f. 55. b 43 E. 3.22 a. Wilby Justice Fuit dit H. 22 E. 3. que en temps le Roy Henry devant le Roy fuit impled come serroit autre home de people Mes Edward son fits ordein que home sueroit vers le Roy per petition Et issint dit suit T. 43. E. 3.22 que en temps le Roy Henry le Roy ne fuit mes come comune person car a ceo temps home averoit brief d'entre sur disseisin vers le Roy touts autres maners d'actions come vers auters persons c. Et Wilby dit T. 24. E. 3.23 que il avoit vieu tiel brief Precipe Henrico Regi Angliae c. En lieu de quel est ore done petition pur sa Prerogative It was says he held Hil. 22 E. 3. that in the time of King Henry and before the King was impleded as any other Man of his people but Edward his Son ordain'd That a Man shall sue to the King by Petition And so it was said Trin. 43 E. 3.22 That in the time of King Henry the King was but as a common person for at that time a Man might have a Writ of Entry upon Disseisin against the King and all other manner of Actions as against other persons c. And Wilby said Trin. 24 E. 3.23 That he had seen such a Writ Precipe Henrico Regi Angliae in lieu of which now a Petition is given for his Prerogative Sir Robert Cotton of the Constable of England MS. in the Herald's Office It may be difficult to distinguish between the Office of the Earl of Chester and the Constable of England who as Sir Robert Cotton held is Second to the King and has the Custody of his Sword the carrying which as appears by Matthew Paris belonged to the Earl of Chester by reason of his Palatinate and yet at the same time Humphrey de Bohun Earl of Hereford Constable of England was in full possession of his Office Dugdale 's Bar. 1. Vol. f. 180. 11 H. 3. he stood up with the Earl of Chester and others on the behalf of Richard the King's Brother and was alive and in England 20 H. 3. when the Earl of Chester carried the Sword as of Ancient Right so that one seemed to have the right to carry the other to keep the Sword The Office of Constable seems to have been no ancienter than the the time of W. 1. Vid. Patent to Earl Rivers Temp. E. 4. Vid. 2 d. Part. to which the Patents for the Office refer but the Earldom of Chester and its Rights were Ancienter Wherefore one would think that W. 1. erected the Office of Constable to ballance that of the Earl Palatine Sir Rob. Cotton Of Constable c. MS. sup The other Great Officers the High-Steward and Marshal are easily distinguishable from the Constable and as Sir Robert Cotton observes the Office of Constable was of Military that of the High-Steward of a Civil Jurisdiction The Marshal was in the nature of an High Sheriff Vid. Stat. 3. R. 2. Stat. 1. C. 2. Of the Constable and Marshal Flet. lib. 2. c. 60. Of the Steward and Marshal So Ryle 's Placita Parl. f. 126. 21 E. 1. Selden 's Bar. 2 d Part c. 5. f. 739 F. 743. to see to the Execution of the Process and Judgments of either and yet had a Judicial Power with both In some Cases all three acted with joynt authority as appears by the most Ancient Copies of the Modus tenendi Parliamenta which tho' it has been put into Latine since the Conquest and has the names of Things and Offices adapted to what was known and in use at the time of the Translation from the Saxon MS. yet certainly for substance gives a true account of what was before the Conquest Mr. Selden supposes it to have been no ancienter than about the time of E. 3. yet confesses that he had from Mr. Hackwel a Copy of an Inspeximus 12 H. 4. Exemplifying under the Great Seal most of the particulars that occur in the ordinary Modus for England fitted for Ireland as sent thither by H. 2. but it would have been very strange if there should have passed an exemplification under the Great Seal of what was a meer fiction The Modus says Modus tenendi Parl. Cum dubitatio vel casus difficilis pacis vel
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective Sub modo 1. From the Saxon Pontifical and the Council of Calcuth Anno 789. 2. From the Practise till the supposed Conquest 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's consent at Coronations 5. The Opinion of Kings themselves 6. The Old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The claims of Right between Two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same Common Stock THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris
And as anciently as the year 789. an Act was made in a General Convention of all England in Conventu Pananglico that their Kings should be Elected by the Clergy senioribus populi and Elders of the people that is such as were Members of their Great Councils or Witena Gemots Assemblies of Sage and Wise Men. This tho it was long before the reputed Conquest yet was never repealed or cut off by the Sword nay seems received with the Confessor's Laws as included in them 2. It appears by the several instances given in the fourth Chapter and the testimonies there both of Malmsbury and the Publisher of the life of King Alfred That no lineal Succession was observed here before the supposed Conquest 3. The Confessor's Law received by W. 1. Vid. Sup. and continued downwards as the noblest Transcript of the Common Law shews that the Kings of England were to be elected and the end for which they are chosen by the people After the same manner do the ancient Historians and Lawyers as well since that time as before commonly express accessions to the Throne and seem industriously to mind Kings of it that according to the caution given the Jewish Kings Deut. 17.20 their hearts be not lifted up above their Brethren 4. According to the usage from before the reputed Conquest downwards the People are asked Whether they are content to have such a Man King 5. The most absolute of the English Monarchs never believed Cambd. Brit. s 104. de W. 1 Neminem Anglici regi constituo Haredem sed a terno conditori cujus sum in cujus manu sunt omnia illud commendo non enim taâ—tum decus hereditario jure possedi c that then Children had a right to the Crown except the people consented that they should succeed as appears by King Alfred's Will and the Death-bed Declaration of William 1. And therefore some of our Kings against whom there has been no pretence of better Title in any particular Person or Family when they stood upon good Terms with their People have often prevail'd with them in their Lives-time to secure the Succession to their eldest Son and H. 2. to prevent hazarding the Succession endanger'd himself by getting his eldest Son Crown'd himself living But as the going no farther than the eldest argues that they looked on that as a Favour the pressing for a Settlement on their Issue in any manner argues That it was not look'd upon as a clear Point of Right without it Of later Times Settlements have been made in Tail which though they were occasion'd by Pretences to Titles are Records against an Hereditary Monarchy according to the common notion which is one that by the original Constitution descends to the next in the Line male or Female V. Leges W. 1. de Fide c. Statuimus etiam ut omnes liberi homines foedere sacramento affirment quod intra extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt c. Leges S. Edw. tit Greve Vid. Juramentum homagii facti Regi 6. The Oaths of Allegiance required of all the Subjects were never extended to Heirs but were barely Personal till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster and though H. 4. obtain'd in Parliament an Oath to himself the Prince and his Issue and to every one of his Sons successively and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York yet perhaps no Oath of Allegiance to the King and his Heirs can be shewn to have been requir'd of the Subjects in general till that 26 H. 8. according to the Limitations of the Statute 25. 7. Even where the People had setled the Crown they seem'd to intend no more than to give a preference before other Pretenders not but that as Ideocy Frenzy or the like might set such an one aside so upon other weighty Reasons they might alter the Settlement Pryn 's Signal Loyalty p. 274. Pol. Virgil. 1. 22. sub initio as appears by Polydore Virgil who was never thought to lie on the Peoples side whatever Evidences for them he may have conceal'd or destroy'd whose words of H. 5. to whom the Crown had been limited by Parliament may be thus rendred Nota Proceres may take in the Nobiles minores Prince Henry having buried his Father causes a Council of Nobles to be conven'd at Westminster in which while they according to the Custom of their Ancestors consulted about making a King behold on a sudden some of the Nobility of their own accord swear Allegiance to him which officious Good-will was never known to have been shewn to any before he was declared King William 2. was elected during the Life of his eldest Brother who was set aside by the English against whom he had discovered Ill-will in spite of the Normans So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive and H. 2. succeeded in her Life-time upon an Agreement made with Stephen by the Peoples Consent R. 1. as within King John crown'd in the Life-time of his eldest Brother's Son Prince Arthur So was his Son H. 3. in the Life-time of Eleanor Prince Arthur's Sister E. 1. as within E. 2. elected E. 3. set up by the People in his Father's Life-time which the Father took for a Favour R. 2. declared Successor by Parliament in the Life-time of his Grandfather H. 4. of the younger House came in by the Peoples Choice upon their deposing R. 2. H. 5 6. Son and Grandson to H. 4. came in upon a Settlement E. 4. of the elder House came in under an Agreement made in Parliament between his Father who liv'd not to have the benefit of it and H. 6. His Son E. 5. was never crown'd R. 3. who set him aside was of the younger House H. 7. who vanquish'd him could have no Right of Proximity for the Daughter of E. 4. and his own Mother were before him All that came in since enjoy'd the Crown either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest 8. As the Practice of the Kingdom is an Evidence of its Right numerous Instances might be produc'd of Choices since the supposed Conquest not only so called by Historians but appearing so in their own Natures wherein no regard has been had to Proximity but barely to Blood And I believe no Man can shew me any more than Two since the reputed Conquest of whom it can be affirm'd with any semblance of Truth that they came in otherwise than upon Election express'd by the Historians of the Time or imply'd as they had no other Title or else a late Settlement of the Crown either upon themselves immediately or in Remainder The Two upon which I will yield
to a qualified Choice I Think I have with due regard to all colourable Objections made it appear That Allegiance may in some Cases be withdrawn from one who had been King till the occasion of such Withdrawing or Judgment upon it And this I have done not only from the Equity and reserved Cases necessarily implied but from the express Original and continuing Contract between Prince and People which with the Legal Judicature impowered to determine concerning it I have likewise shewn and exemplified by the Custom of the Kingdom both before the reputed Conquest and since And have occasionally proved That tho Oaths of Allegiance may reach to Heirs according to special Limitations as was 26 Hen. 8. yet in common intendment by Heirs of a King or Crown no more is meant than such as succeed to it according to the Law positive or implied And that whoever comes to the Crown upon either Allegiance is as much due to him by the Law of God and Nature as it was to the nighest in Blood Sanderson de Obligatione Juramenti Lect. 4 Or to use the words of Bishop Sanderson Dignity varies not with the change of Persons Whence if any Subject or Soldier swear Fealty to his King or General the Oath is to be meant to be made unto them also who succeed to that Dignity And when the Crown continues in the Blood this especially by what I have above-shewn puts the Obligation of Allegiance to the King in being out of Controversie unless it can be made appear that the Right of the former King remains or that there is some Settlement of the Crown yet in force which ties it strictly to the next I come now to prove That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restor'd to that Latitude of Choice which I have shewn to be their Original Right The Lords and Commons having a Judicial Power in this matter as hath been prov'd at large their Exercise of this Power in the nature of the Thing determines the Right unless an Appeal lies from them to some higher Court in this Nation But that no Power can legally question them or any of them in this matter appears more particularly in that there is no Statute now in force nor was since the Death of Car. 2. which makes it Treason to conspire to Depose a King or actually to Depose him Vid. Sir Rob. Atkins his Excellent Defence of the L. Russel f. 22 23. But this is of the Nature of those Common-Law-Treasons which are left to the Judgment of Parliament And they who are the only Judges of their own Actions have a pretty large liberty in them especially according to them who would infer the absolute Power of Princes from the supposition of no constituted Judges of their Actions Wherefore the Defence of their Proceedings might justly seem to be superseded were it not for an ungovernable sort of men who either cannot or will not judg according to the Rules of Right Reasoning but as they will hardly admit of any Doctrine as true for which they have not the Decision of some Father or Council will believe no Action not proceeding from their imperious Dictates justifiable even in Cases of the utmost necessity for the preservation of the true Religion and just Laws for which they have no warrant from the Examples of their Forefathers or Opinions of Men whose Books have past with their Allowance Which often drives me to the seeming Pedantry of Quotations to confirm the most obvious Considerations to which my own thoughts led me The either open or more covert Matters of Fact inducing the Declaration of Lords and Commons That J. 2. has broken the Original Contract I need not now inquire into All People must own that he has if they in the least attend to the Constitution of our Government and how apparently he by his general Dispensations usurp'd a Legislative Power for the Destruction of the Protestant Religion and Civil Rights which we were in a fair way of being Dragoon'd out of by a standing Army by degrees to have been totally under Popish or Complying Officers Yet if there were no more than his Leaving the Kingdom without making any Provision for keeping up the Justice of it and going into France a Country from whence all mischiefs have of late Years flow'd upon us and our Religion Who can deny but this alone would have been enough to set him aside Rastal's Entries tit Reattachment f. 544. b. Resum c. quia extra Regnum Angliae progres fecimus nullo locum tenente nostrum sive Custode Regni relicto c. The going out of the Realm without appointing a Custos was anciently in our Law a Discontinuance of Justice Hobart f. 155. And the Lord Hobart gives it as a Maxim Cessa Regnare si non vis Judicare ' Cease to Reign if you will not judg or maintain the ' Course of Justice Vid. Leges 12. Tab. de Magistrat Many I know upon these Questions rather regard the Civil Law and that I am sure gives a home thrust in the Case of deserting one's Country and going into such an one as France is to our Nation tho it has been in too strict Alliance with our Kings The Digests say Digest lib. 49. tit 15. De Captivis Postliminio Transfugae nullum postliminium est nam qui malo Consilio Proditoris animo patriam reliquit hostium numero habendus est c. transfuga autem non is solus accipiendus est qui aut ad hostes aut in bello transfugit sed ad eos cum quibus nulla amicitia est fide susceptâ transfugit A Deserter has no Right of being restored to his Countrey For he who left his Countrey with an evil and treacherous mind is to be held as an Enemy c. But we are to take not only him for a Deserter who runs over to Enemies in time of War but also during a Truce Or Who runs over to them with whom there is no Amity either after undertaking to be faithful to his Country or else undertaking to be faithful to the other Either of which senses the words will bear 'T is likely to be said That this out of the Civil Law is improperly applied to the Prince who according to that is exempt from all Laws Imp. Theod. Valentin Caes ad Volusianum Praefectum Proetorio Digna vox est Majestate Regnantis Legibus adligatum se Principem profiteri Adeo de auctoritate juris nostra pendet auctoritas re verâ majus imperio est submittere Legibus principatum Et oraculo praesentis Edicti quod nobis licere non patimur aliis indicamus But I would desire such besides what I have observed upon the Roman Lex Regia to read the Rescript of Theodosius and Valentinian wherein they thus declare 'T is an Expression suitable to the Dignity of
the Crown is settled subject to such Conditions as the King should make according to the Power there given first upon Prince Edward and the Heirs of his Body the Remainder in like manner upon the Ladies Mary and Elizabeth and the Heirs of their Bodies successively without taking off their Illegitimations And the same Power is given of disposing by Letters Patent Vid. 28 H. 8. sup 35 H. 8. or by Will as by the Statute 28. for which a memorable Reason is given in both Acts Lest if such Heirs should fail and no Provision made in the King's Life who should Rule and Govern this Realm for lack of such Heirs as in those Acts is mentioned that then this Realm should be destitute of a Lawful Governour E. 6. succeeded according to both those Acts After him Queen Mary by the last who at her coming to the Crown could not be looked on as of the Right Line because of the Acts which Illegitimated her and besides she was but of the Half-blood to E. 6. to whom she succeeded But in the first of her Reign the same Parliament takes off her Illegitimation and repeals the Acts 25 28 H. 8. And in this the Parliament seems rather to provide for the Honour of her Descent Hist of Succession f. 34. than as Dr. Brady would have it to declare the Succession to be in Inheritance by Right of Blood Whatever might be the secret Intention 1 2 P. M. c. 9. I am sure there is no such authoritative Declaration And the Acts 28 35 H. 8. seem to say quite the contrary 1 2 P. M. though there is no direct Settlement it is made Treason to compass the Deprivation or Destruction of K. P. during the Queen's Life 1 Eliz. c. 3. or of the Queen or of the Heirs of her Body lawfully begotten Queen Elizabeth succeeded by vertue of the Limitation 35 H. 8. And though Bastardiz'd by the Statutes 28 H. 8. and 1 M. and but of the Half-blood both to E. 6. and Queen Mary yet her first Parliament declares That she is Rightly Lineally and Lawfully descended and come of the Blood Royal of this Realm to whom and the Heirs of her Body the Royal Dignity c are and shall be united And Enacts That the Statute 35 H. 8. shall be the Law of the Kingdom for ever But the Fee of the Crown not having been disposed of according to the Power given by the Statute 28 and repeated 35 H. 8. And the 25 whereby it was limitted in Remainder to the Heirs of Henry the 8th being repealed upon the Death of Edward the 6th and the Queens Mary and Elizabeth without Issue there remaining no Heirs of the Body of H. 8 in the Judgment of two Parliaments the Realm was destitute of a Lawful Governour Indeed according to the Act of Recognition 1 J. 1. 1 Jac. 1. c. 1. the Crown came to him being lineally rightfully and lawfully descended of the Body of the most Excellent Lady Margaret the eldest Daughter of the most Renowned King Henry the Seventh and the High and Noble Princess Queen Elizabeth his Wife eldest Daughter of King Edward the Fourth The said Lady Margaret being eldest Sister of King Henry the Eighth Father of the High and Mighty Princess of Famous Memory Elizabeth late Queen of England Thô this pompous Pedigree to avoid all Objections goes as high as E. 4. the Derivation of Title as appears above can be no higher than from the Settlement 1 H. 7. Nor does this Act 1 J. make any additional Provision but indeed seems to flatter the King into a Belief that there was no need of any telling him That they made that Recognition as the First-fruits of their Loyalty and Faith to him and his Royal Progeny and Posterity for ever But neither then or ever after till that in this present Parliament did the People make any Settlement of the Crown but it continued upon the same Foot as it did 1 H. 7. when it was entirely an Act of the People under no Obligation but from their own Wills Sir Robert Filmer's Power of Kings f. 1. And if we should use Sir Robert Filmer's Authority Impossible it is in Nature for Men to give a Law unto themselves no more than it is to command a Mans self in a Matter depending of his own Will There can be no Obligation which taketh State from the meer Will of him that promises the same Wherefore to apply this Rule Since the People that is now Vid. Pufend. de Interregn sup p. 288.289 in common presumption is the same with that which first settled the Succession and so are bound only by an Act of their own Will they have yet as arbitrary a Power in this Matter as Sir Robert and his Followers contend that the Prince has whatever Promises or Agreements he has entred into But not to lean upon such a broken Reed nor yet to make those many Inferences which this plain State of the Settlements of the Crown might afford Three things I shall observe 1. If the Settlement made 1 H. 7. who was an Usurper according to the Notion of Dr. Brady and his Set of Men was of no force then there being no Remainders since limited by any act but what are spent and no descendants of the whole Blood from Elizabeth Daughter to E. 4. and Wife to H. 7. but by Daughters the eldest of which was Married into Scotland If Acts of Settlement could not alter the Right of Descent of the Crown neither Queen Mary nor Queen Elizabeth had Right but after the death of E. 6. it belonged to the Scotch Family And if Acts of Settlement could dispose of the Crown and it should appear that from the time that the limitation came to a Foreigner not nam'd in the Settlement nor the immediate issue of a King or Queen of England it was spent in the eye of the Law then of necessity the People must have had Power of Chusing or there could have been no lawful Government since Queen Elizabeth's time when the last Settlement was spent except what is now made 2. The Declarations of two Parliaments 28 and 35 H. 8. fully ballance the Declaration 1 Jac. 1. if they do not turn the Scales considering that the Judges in the later Times seem to have had less Law or Integrity than they had in H. the Eighth's I will not take upon me to determine which was the Point of Two that they might go upon 1. That a Government shall not pass by Implication or by reason of a dormant Remainder But there having been so many Alterations since the Settlement 1 H. 7. and the whole Fee once disposed of nor ever any express Restitution of the Settlement 1 H. 7. the People were not to think themselves obliged to a Retrospect 'T is evident at least that they did not Or 2. Perhaps they might question whether they were oblig'd to receive for Kings the Issue
not be thought that I in the least derogate from the Honour due to him when I observe matter of fact not falling within his notice The Author of a late Paper in relation to these Times has this passage not to be neglected A Letter to a Friend advising in this extraordinary Juncture All Power is originally or fundamentally in the People formally in the Parliament which is one Corporation made up of three Constituent essentiating Parts King Lords and Commons so it was with us in England When this Corporation is broken when any one essentiating Part is lost or gone there is a Dissolution of the Corporation the formal Seat of Power and that Power devolves on the People When it is impossible to have a Parliament the Power returns to them with whom it was originally Is it possible to have a Parliament It is not possible the Government therefore is Dissolv'd Hence he would argue a necessity of having a larger Representative of the People Vid. Pufend. de Interregnis p. 267. sup in Marg. that the Convention may be truly National But had this Ingenious Person observed Pufendorf's two distinct Contracts by the first of which a Provision was made for a Monarchy before any particular Person was setled in the Throne he would have found no such necessity But if immemorially the People of England have been Represented as they were for this Assembly and no needful form or circumstance has been wanting to make the Representation compleat all men who impartially weigh the former Proofs of Elections not without a Rightful Power must needs think the last duly made Dr. Brady indeed with some few that led him the Dance and others that follow will have the present Representation of the Commons of England to have been occasioned by Rebellion 49 H. 3. But I must do him the honour to own him to be the first who would make the Barons to have no Personal Right but what depends upon a King in being for he allows none to have Right of coming to Parliament Brady's first Ed. p. 227. See this prov'd upon him in the Pref. to Jus Anglorum ab antiquo but such only to whom the King has thought fit to direct Writs of Summons Yet I dare say no man of sense who has read that Controversie believes him But were his Assertions true it might be granted that the Barons would have no more personal Right to be of any Convention upon the total Absence or Abdication of a King than they would have of coming to Parliament without His Writ Yet since the Right of the People in person or Representation is indubitable in such a Case what hinders the validity of the late Choice considering how many Elections of Kings we have had and that never by the people diffusively since the first Institution of the Government And the Representations agreed on tho I take them to be earlier setled for Cities and Burroughs than for the Freeholders in the Counties have ever since their respective settlements been in the same manner as now at least none have since the first Institution ever come in their own persons or been Electors but what are now present personally or representatively and their own Consent takes away all pretence of Error If it be said That they ought to have been Summoned Forty days before the Assembly held That is only a Privilege from the King which they may wave and have more than once consented to be Represented upon less than Forty days Summons Prynne 's Animadversions on 4 Inst f. 10. Mr. Prynne gives several Instances as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and says he omits other Precedents of Parliaments Summoned within Fourty days after the Writs of Summons bear date upon extraordinary Occasions of publick safety and concernment which could not conveniently admit so long delay And Sir Robert Cotton being a strict Adherer to Form Vid. Rushw 1 Vol. f. 470. 3 Car. 1. upon an Emergency advised That the Writs should be Antedated which Trick could make no real difference To say however there ought to have been a Summons from or in the name of a King in being is absurd it being for the exercise of a lawful power which unless my Authorities fail the people had without a King or even against the consent of one in being Besides it appears That such Summons have not been essential to the Great Councils of the Nation Tacitus shews That the Germans Tacit. de Moribus German Coeunt nisi quid fortuitum subitum certis diebus c. V. Leges S. Ed. tit Greve In Capite Kal. Maij. Jus. Angl. c. 7. Vid. Append. from whom we descend had theirs at certain days unless when some extraordinary matter happened And by the Confessor's Laws received by W. 1. and continued downwards by the Coronaton Oaths requir'd to this very day the General Folcmot ought to be held annually without any formal Summons upon May-day By the time of E. 1. this custom to hold a Parliament upon May-day received a little alteration for the Pope having at the beginning of that King's Reign demanded eight years Arrears of an Annual payment which he claim'd for the Kingdom of England the King had put him off till the next Parliament which he said had us'd to be held in England about the Octaves of our Saviour's Resurrection This Parliament was held at the Octaves accordingly as the King acknowleges upon the Pope's second demand but pleads that it had been taken up with the great Affairs of the Nation till his want of Health occasion'd a Dissolution before they could consider oâ—… tt Matter which he promis'd should be brought before them at the next Parliament which he purposed to hold at Michaelmas then following The Statute 16 Car. 1. which our rigid Formalists must own to be in Force has wholly taken away the necessity of Writs of Summons from a King Stat. 12. Car. 2. c. 1. The Assembly of the Lords and Commons held Anno 1660. was summoned by the Keepers of the Liberties of England not by the Kings Writs yet when they came to Act in conjunction with the King they declare enact and adjudge where the Statute is manifestly declaratory of what was Law before That the Lords and Commons then sitting are and shall be the Two Houses of Parliament notwithstanding any want of the King 's Writ or Writs of Summons or any defect or alteration of or in any Writ of Summons c. Tho' this seems parallel to the present Case yet in truth ours is the strongest For the King then had been only King de jure no Authority could be received from Him nor could any Act of His be regarded in Law through defect either of Jurisdiction or Proof if not both Accordingly as not only the Reason of the thing but the Lord Coke shews 3 Inst f. 7. Sup. in Marg. a Pardon from one barely King de jure is of
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
true Members of the Church of England may be allowed to act without any regard to that Principle which vvould distinguish us from all other Protestants And how much soever some may be concern'd to keep up the Distinction 't is to be hoped that we shall be more wise and more true to the Interest of the Church universal If as the Bishop says the Religion of the Church of England has taught this and this is the distinguishing Character of this Church vvill not Men say that he makes this Church to have a Religion as well as Ceremonies of its own The Mischief of Separation A Prelate more deservedly eminent tells us That the sign of the Cross is the Right of Admission into the Church of England as Baptism into the Catholick But according to this Bishop the Admission into our Church ought to be upon the Condition of subscribing this Doctrin Jovian p. 227. speaking of the Church of England and himself It is she that taught him to preach up Passive Obedience like a Parasite Sycophant and Murderer Poor Man he suck'd it in with his Mothers Milk which his God-fathers and God-mothers were to have promis'd and vow'd in his Name And then tho he had not like Dr. H. who perhaps herein played the Plagiary from Jovian suck'd in this Religion with his Milk he might well have been baptiz'd into it The Reasons of this Bishop's maintaining and endeavouring to propagate his Opinion to the Disturbance of our present Settlement next to his Obligations to the late King which the first misunderstanding was not to erace were apparently 1. The sourness of the Milk which he had suck'd in from his Nurse or Mother which is known to have a great influence upon the Constitution of the Body and that upon the Mind insomuch that Mr. Dreyden and some other such Philosophers have insinuated that the Soul is nothing else but the Temperament of the Body 2. The prejudice of his Education whereby he was taught to believe this to be part of his Baptismal Vow Which being the only Reason that he has thought fit to bless us with as judging it sufficient in following this Episcopal Authority he who was bred a Pagan ought to be a Pagan still And if we believe a topping Divine of the Church of England Vid. Warley's natural Fanatick dedicated to the then Chancellor of England F. the Pagans can produce better Reasons for their Infidelity not only than any we have yet had for this distinguishing Piece of Religion but than can be brought for Belief in the true God without having recourse to the Scriptures interpreted by the Church But the Church which he complemented being the Church of England the Popery of his Notion went down very glibly at that time as the Authority of this single Bishop does with many now 3. The Weakness of his Judgment which is obvious not only in the wording his dying-Paper in such a manner as either condemns his own Church of Singularity or all others of Corruption in departing from that Religion which she alone has the honour to profess but farther yet if he were in his sound Mind at the subscribing his own or Dr. H. his Confession of Faith he would have reflected that tho he might have done enough to quiet his own Mind he had not us'd due means for informing himself of what he ought to press upon others as a necessary matter of Belief having debated it either with Divines who are but second-hand Casuists for this or else with Lay-men of the Gentleman's Opinion who would maintain the Doctrine of Passive Obedience and yet exclude it out of the Controversy which it has rais'd and keeps up I speak not this without grounds for in debate with a Divine of our Church whose great Worth Learning Moderation and Integrity have justly rais'd him above all degrees in Station the Bishop did frankly confess that he believ'd the Question to issue in a Point of Law And for his Satisfaction he had discours'd with a certain eloquent Person whom he nam'd suppos'd to have suck'd in Law with his Milk as the Bishop did his new Divinity nurss'd up since Queen Elizabeth's days But this Person being one who has acted upon the same Principle and makes it his Glory not to have his Opinion alter'd by his place I think no Man who observes what lame work the Lay-Gentleman has made of endeavouring to reconcile the Doctrine of Passive Obedience with Submission to our present Government will wonder that he could not receive Satisfaction from one who held the same Premises with himself but denies the Conclusion This ground for the Bishop's Pertinaciousness I must own is not evident to all but his consulting Dr. H. is who I may well say is hardened and steel'd in his Profession beyond hopes of Conviction since by the Writer of this Vid. Letter to Jovian Ed. An. 1683. p. 14. he was long since admonish'd of having shamefully abus'd those Authorities on which he relied and of having by his Concessions and Contradictions fully set aside all that he would enforce and this at a time when this Writer ran the utmost hazard by exposing a Man thought so highly to have serv'd them who were in Power and called themselves the Government And when the Doctor by refuting the Objections might have had the Reward as vvell as boast of a Triumph Yet for the Comfort of them vvhom he then trampled upon he had disabled himself of his Sting vvhile he quitted the Authority of a Preacher of God's Law for a partial Reporter and Expounder of Man's His Errors or Perversions as far they concern our present Controversy and Government may be reduced to two Heads 1. The Estate in the Crown and Derivation of it 2. The Rights or Prerogatives of the Crown 1. For the first he says this Kingdom is originally hereditary Preface Pag. 13.11.9.78.5.53.60 Jov. p. 38. Pag. 25. Preface Pag. 55. in an inalienable indivisible lineal Succession by the Original Custom and Constitution of the English Government ty'd to the next of the Blood Or as he has it elsewhere fix'd in one Family and lineally descending in Proximity of Blood With this Hereditary Monarchy an Interregnum or Vacancy of the Throne is inconsistent as also its descending upon two Heirs at once The Succession vvhich he describes he says is from God alone who hath given it to the Royal Family for a perpetual Inheritance and hath by his Providence ordain'd that it should come to one of them after the Decease of another according to Birth-right and Proximity of Blood Pag. 58. But God's Providential Appointment of one to reign he grants not of it self to carry the Right beyond the Person in Possession by such Appointment Wherefore tho God's Providence had often given the Roman Empire to a Man and some of his lineal Descendants after him he contends Pag. 46. that the Roman Empire was not Hereditary but Elective by the Suffrage
shew the Antiquity and Power of a Palatine in Germany and England Gunterus used to shew that Office in several Countries Loyseau concerning it in France The Distinction in the Author of Les Soupirs between Officers of the King's House and Officers of the Crown The Antiquity and Authority of the Offices of Constable of England of the High Steward and the Earl Marshal which with the Earl of Chester have been as so many Tribunes of the People TO proceed to E. 2. Son to E. 1. 't is certain that the sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally Deposed in Parliament for his misgovernment Walsingham f. 107. Rex dignitate regali abdicatur filius substituitur His Case with his next Successor's but one R. 2. by what I have observed before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once Hollingshead f. 637. Ib. f. 639 640. H. 6. being a weak mis-led Prince gave occasion to Richard Duke of York whose Line was put by to cover his designs for restoring the elder Family with the pretence of redressing publick Grievances A Crown over a Branch of lights in the H. of Commons and another from the top of Dover-Castle falling about the same time ib. f. 659. The Crown he was so far from pretending to at first that himself swore Allegiance to H. 6. in a very particular manner But having afterwards an advantage given by the Divisions of them who had driven him out of the Land he in a fortunate hour with lucky Omens as was believed challeng'd the Crown as his Right upon which there was an agreement ratified in Parliament That H. 6. should enjoy it during his Life and Richard and his Heirs after him Tho Richard Duke of York and his Son Edward afterwards E. 4. had sworn that H. 6. should enjoy the Royal Dignity during life without trouble from them or either of them yet Richard having been treacherously slain by the Queen's Army immediately after the solemn Pacification Edward at the Petition of some of the Bishops and Temporal Lords Ib. f. 661. took upon him the charge of the Kingdom as forfeited to him by breach of the Covenant established in Parliament Yet this gave him no sure footing for the popularity of the Earl of Warwick drove him out of the Kingdom without striking a stroke for it Ib. f. 678. Upon which H. 6. was again restor'd to his Kingly Power and Edward was in Parliament declared a Traytor to the Country and an Vsurper of the Realm the Settlement upon Richard and his Heirs revok'd and the Crown entail'd upon H. 6. and his Heirs Males with remainders over to secure against Edward's coming to the Crown But the Death of the Earl of Warwick having in effect put an end to King Henry's Power he was soon taken Prisoner and put to death as his Son had been before and then Edward procures a Confirmation in Parliament Hollingshead f. 693. of the Settlement under which he enjoyed the Crown Thus the Parliament from time to time determined the Controversie according to the Inclination of the People or Reason of State And as the power of the People of England or of Great Men of interest with them turn'd the scales sometimes one way sometimes another so their consent fixt them at last during the Life of E. 4. I might following the light of History take in the most material Occurrences from the Reign of E. 4. to the last Revolution but tho the unanimity which appeared at the first casting off the former Yoke made me with chearfulness undertake the justification of those who have contributed to the Change yet I must needs say I am checkt in that freedom which otherwise I might have justly used in relation to late times and tho I labour against prejudice in what I bring from faithful Memorials of ancient days yet I hope the prejudice will be free from that heat and passion which mixes with mens own concerns or the concerns of them from whom they immediately descend in Blood or Parties Object Vid. 13 C. 2. Stat. 2. c. 1.13 14 C. 2. c. 3.14 C. 2. c. 3 4.15 C. 2. c. 5.12 C. 2. c. 30. It may be said That whatever the Law or Practice has been anciently neither can now be of any moment by reason of the Oath required by several Statutes declaring it not lawful upon any pretence whatsoever to take Arms against the King and abhorring the Traiterous Position of taking Arms by his Authority against his Person And 2. The Clause in the Statute 12 Car. 2. whereby it is declared That by the undoubted and fundamental Laws of this Kingdom neither the Peers of this Realm nor the Commons nor both together in Parliament or out of Parliament nor the People Collectively or Representatively nor any other Persons whatsoever had have or ought to have any Coercive Power over the Persons of the Kings of this Realm What has before been observed from and upon Mr. Falkner's Answer Vid. Chap. 2. Christian Loyalty might make it needless to take notice of the Objection from either of these Clauses were it not that many either cannot or will not observe what lies at the least distance I shall not here insist in answer to the first part of the Objection on the necessity of a Commission and a King continuing legal in the Exercise as well as Possession of Power nor the difference between the Traiterous Acts of single Persons and the Revolt of a Nation nor yet upon the Authority of the Common Law whereby a Constable or other Officer chosen by the people Vid. Justin Pandec l. 1. tit 3. Nulla juris ratio aut aequitatis benignitas patitur ut quae salubriter pro utilitate hominum introducuntur ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem may act without any Authority from the King And for rhe latter part of the Objection as Coertion is restrained to the Person of the King the declaring against that is not contrary to the Authorities for discharging Allegiance by a judicial Sentence or otherwise by virtue of equitable and implied Reservations provided a tender regard to the Person be still observ'd But if proceedings to free our selves from his Authority fall under this Coertion then I shall offer something which may remove both this and the other from being objections to what I have above shewn To keep to what may equally reach to both Authorities I shall not urge here Vid. Rot. Parl. 39 H. 6. n. 18. That these Statutes being barely declaratotory and Enacting no Law for the future introduce none so that if the Fundamental Laws shall appear to be otherwise the Declarations do not supplant them Nor yet to insist upon a Rule in the Civil-Law That the Commonwealth is always a Minor Vid. Cujac