to the utmost of his Power with them And the King shall give publick and free Liberty for any man to swear that will and shall never pohibit any to swear And all those of the Nation who will voluntarily of their own accord swear to the Five and twenty Barons to distress the King with them the King himself shall issue his Praecept Commanding them to swear as aforesaid Item If any of the said Five and Twenty Barons dye or go out of the Realm or be any other way hindred from performing these things the residue of the Five and twenty shall chuse another whom they think best in his place who shall be sworn as the rest are And in all matters referred to those Five and twenty Barons if they happen to be all present and differ amongst themselves or if any of them being thereto appointed will not or cannot come what the major part of them shall agree upon and enjoyn shall be valid as if all the Five and twenty had agreed in it And the said Five and twenty shall swear that they will faithfully observe and keep the Articles aforesaid and with all theit might cause them to be observed Moreover the King shall give them the Securities of the Archbishop and Bishops and Master Pandulphus that he will not obtain any thing from the Pope whereby any of these Articles of Agreement may be revoked or diminished And if any such thing be obtain'd that it be reputed void and of none effect nor shall ever be made use of THE GREAT CHARTER OF KING JOHN A True Copy from the Original French. JOHN by the Grace of God King of England to the Archbishops Bishops Abbots Earls Barons Justices Foresters Sheriffs Prevosts Ministers and all his Bayliffs and his Lieges Greeting Know ye that We by the Grace of God and for the saving of our Soul and the Souls of all our Ancestors and of our Heirs and for the Honour of God and the safety of Holy Church and for the amendment of our Government By the Advice of Our Honoured Fathers Stephen Archbishop of Canterbury Primate of All England and Cardinal of Rome Henry Archbishop of Dublin William Bishop of London Peter Bishop of Winchester Jocelin Bishop of Bath Hugh Bishop of Lincoln Walter Bishop of Worcester William Bishop of Chester Benedict Bishop of Rochester and Master Pandulph Sub-deacon of our Lord the Apostle and of our Friend and Brother Anner Master of the Order of Knights Templers in England And by the Advice of our Barons William Earl Marshal Earl of Pembroke William Earl of Salisbury William Earl of Warren William Earl of Arundel Alan of Galloway Constable of Scotland Warin Fitz-Gerard Peter Fitz-Herbert Hubert de Burgh Steward of Poictou Hugh Nevill Matthew Fitz-Herbert Thomas Basset Alan Basset Phillip d' Aubenie Robert de Ropelee John Marshall and John Fitz-Hugh and by the Advice of other our Lieges Have in the first place granted to God and confirmed by this our present Charter for us and for our Heirs for ever That the Churches of England shall be free and shall enjoy their Rights and Franchises entirely and fully And this our Purpose is that it be observed as may appear by our having granted of our meer and free Will that Elections should be free which is reputed to be a very great and very necessary Priviledgeâ— of the Churches of England before the difference arose betwixt Us and our Barons and by our having confirm'd the same by our Charter and by our having procur'd it moreover to be confirmed by our Lord the Apostle Innocent the third Which Priviledge We will maintain And our Will is that the same be faithfully maintain'd by our Heirs for ever We have also granted to all the Free-men of our Kingdom for us and our Heirs for ever all the Liberties hereafter mentioned to have and to hold to them and their Heirs of Us and our Heirs If any of our Earls our Barons or others that hold of us in Chief by Knight-Service die and at the time of his death his Heir be of full age and Relief be due he shall have his Inheritance by the ancient Relief to wit the Heir or Heirs of an Earl for an entire Earldom C pounds the Heir or Heirs of a Baron for an entire Barony C Marks the Heir or Heirs of a Knight for a whole Knights Fee C Shillings at most and where less is due less shall be paid according to the ancient Customs of the several Tenures If the Heirs of any such be within Age and in Ward they shall have their Inheritance when they come of Age without Relief and without Fine The Guardians of the Land of such Heirs being within age shall take nothing out of the Land of the Heirs but only the reasonable Profits reasonable Customs and reasonable Services and that without making destruction or wast of Men or Goods And if we shall have committed the Custody of the Land of any such Heir to a Sheriff or any other who is to account to us for the Profits of the Land and that such Committee make destruction or wast We will take of him amends and the Land shall be committed to two lawful and good Men of that Fee who shall account for the Profits to us or to such as we shall appoint And if we shall give or sell to any Person the custody of the Lands of any such Heir and such Donee or Vendee make destruction or wast he shall lose the Custody and it shall be committed to two Lawful Sage and Good Men who shall account to Us for the same as aforesaid And the Guardian whilst he has the Custody of the Heirs Land shall maintain the Houses Ponds Parks Pools Mills and other Appurtenances to the Land out of the Profits of the Land it self and shall restore to the Heir when he shall be of full age his Land well stockt with Ploughs Barns and the like as it was when he receiv'd it and as the Profits will reasonably afford Heirs shall be married without disparagement insomuch that before the Marriage be contracted the Persons that are next of Kin to the Heir shall be made acquainted with it A Widow after the death of her Husband shall presently and without oppression have her Marriage and her Inheritance nor shall give any thing for her Marriage nor for her Dower nor for her Inheritance which she and her Husband were seiz'd of the day of her Husband's death and she shall remain in her Husband's House Forty Days after his death within which time her Dower shall be assign'd her No Widow shall be compelled to marry if she be desirous to live single provided she give Security not to marry without our leave if she hold of us or without the Lord's leave of whom she holds if she hold of any other We nor our Bayliffs will not seize the Lands or Rents of a Debtor for any Debt so long as his Goods are sufficient to pay the
of Henry I. and partly were gathered out of the Old Laws of King Edward The Historian speaketh of these very Articles here Printed 5. 'T is observable That in these Articles there is no care taken for the Liberties of the Church The reason of which I conceive to be this The Church-men mostly then held with the King. And the Hand of the King was most heavy upon the Laity who framed these Articles without the Clergy 6. These Articles provide nothing concerning the Summons and holding of the Common Council of the Realm The reason whereof probably was this The Barons of that time had introduced a Practice of themselves to appoint the Time and Place of the Meeting of the Common Council of the Nation At the granting of these very Articles King John sent to the Barons Vt diem locum providerent congruum ad haec omnia prosequenda That they the Barons would appoint Time and Place for the concluding that matter In the time of Henry III. in whose Charter the Article de communi concilio habendo was omitted and in whose time the Barons begun again to War we find that the Lords came unto the King and said He must ordain and see for the Welfare of the Realm and then set the King a Day to meet at Oxenford and there to hold a Parliament So the English Chronicle However this grand Affair as also that of the Church were provided for in the Magna Charta of King John. Whereby it further appears That these Articles were but the Rudiments of that Charter after further enlarged upon further deliberation I COME now in the second place to say a few things concerning the Perfect and Compleat Magna Charta of King John here printed in French. 1. It was the Custom of old Times to make three several Copies of Publick Acts and Charters Of the Magna Charta we have one in Latin in Matthew Paris This in French or old Norman Language was kept in the Records of France and thence Published some years past by Luke Dachery in his Spicilegium That in English was sent into all Counties but as yet no Copy in this Language appeareth Thus also the Laws of Canute and the Provisions of Oxford to mention no more made in the time of Hen. III. were Publisht in three Languages 2. The very same Charter Publisht in Latin by Matthew Paris is also extant in the History of Rad. Niger almost word for word and also in two several Manuscripts in the Cottonian Library where also about twenty years past the very Original was to be seen 3. The Magna Charta of King John is not extant in any Record in the Tower or elsewhere as several affirm nor the Magna Charta of H. III. but only by Inspeximus in the time of Edw. I. A thing much to be wondered at Rudburne writeth of the Charters of Hen. I. Sublatae sunt omnes variis fallaciis exceptis tribus All but three were embezel'd 4. The Magna Charta of King John and that of Hen. III. are said to be the very same where as they do exceedingly differ as Mr. Selden in his Epinomis hath partly observed and may further appear to any that will compare them Matthew Paris pag. 323. The Tenor of these Charters is fully set down above where our History treateth of King John So as the Charters of King John and Hen. III. are not found to differ in any thing These words are not the words of Matthew Paris but of Roger VVendover whom Matthew Paris often transcribeth very hastily in whose History the Charter entred as King John's is exactly the same with that Charter of Henry the Third 5. As to that remarkable Article Et ad habendum commune concilium Regni And to the holding the Commune Council of the Realm c. I shall briefly say 1. That it hath been left out of all the Charters after King John's time but is found in several Copys very Authentick and particularly in the French Copy now here printed 2. That this Article doth not as some have written give the Original to our Parliaments for such Parliaments or communia concilia were held before this time King Richard the First after his return from the Holy VVar summon'd a Common Council or Parliament at London of the Clergy and Laity where he demanded Council about his making War upon the King of France Earl Roger answered for the whole Parliament The Earls Barons and Knights will aid you O King with their Swords the Archbishops Bishops Citizens Burgesses and Ecclesiastick Persons will aid you with Money Abbates Priors and such others will aid you with their Prayers So the English Chron. And to omit others an Instance of such a Parliament is found in the Annales of Burton pag. 263. compared with page 265. King John call'd to Northampton all the Earls and Barons of England it followeth Pandulfus spake at the same time to the Earls Barons and Knights O that you c. The Clergy indeed are not here mentioned but were certainly present because the occasion of that Council was to restore Peace to the Church and Kingdom as Matthew Paris or as the Annalist of Waverly wordeth it betwixt the King and the Archbishop 3. I conceive the chief end of adding this Article was to prevent the taking of Aids commonly called Talliage or Escuage by surprize or by the consent only of a few which King John had lately done For the summoning of the Commune concilium here is plainly limited to the Sessing of Aids and Escuage But the Mirror giveth another account of the meeting of Parliaments worthy of Consideration page 225. where the Author refers us to higher times There is yet one Article more in this Charter of King John which deserveth our regards the rather because it being lately alledged in the Pastoral Letter hath much scandalized some with its suprising Novelty The words are Barones cum communia totius terrae gravabunt nos The Barons with the Community of the Land shall aggrieve or distress us c. But why should this sound uncouth to any who have with Reflection perused the Histories of this or the Neighbouring Kingdoms wherein the same Practice is frequently found Andrew King of Hungary allowed the same Liberty to his People as may be seen at large in the Decrees of the Kings of Hungary in the end of Bonfinius Like Examples occur in the French Annales and in the Annales of Waverly in the time of Hen. the Third pag. 217. If any will yet suspect that Matthew Paris in this Point hath not writ fairly or that the Articles produced by the Bishop of Salisbury are not to be relied on and some such dissatisfied People there are then let them if they can be believed desirous of satisfaction repair to the Red Book of Exchequer where fol. 234. they may find the very same VVords and Liberty granted as before Which Record cannot well be suspected of being corrupted because it
shall be present or before Stephen Archbishop of Canterbury if he can be there and those that he shall call to him and if he cannot be present Matters shall proceed notwithstanding without him so always that if one or more of the said Five and twenty Barons be concern'd in any such Complaint they shall not give Judgement thereupon but others chosen and sworn shall be put in their room to act in their stead by the residue of the said Five and twenty Barons If we have disseiz'd or esloin'd any Welshmen of Land Franchises or of other things without lawful judgment of their Peers in England or in Wales they shall forthwith be restored unto them and if Suits arise thereupon right shall be done them in the Marches by the Judgment of their Peers of English Tenements according to the Law of England and of Tenements in Wales according to the Law of Wales and Tenements in the Marches according to the Law of the Marches And in like manner shall the Welsh do to us and our Subjects As for all such things whereof any Welshmen have been disseiz'd or esloyn'd without Lawful Judgment of their Peers by King Henry our Father or by King Richard our Brother which we have in our hands or which any others have to whom we are bound to warrant the same we will have respit till the common Term be expir'd of all that crost themselves for the Holy Land those things excepted whereupon Suits were Commenced or Enquests taken by our Order before we took upon us the Cross and when we shall return from our Pilgrimage or if peradventure we forbear going we will presently cause full Right to be done therein according to the Laws of Wales and before the said Parties We will forthwith restore the Son of Lewellyn and all the Hostages of Wales and the Deeds that have been delivered to us for security of the Peace We will deal with Alexander King of Scotland as to the restoring him his Suitors and his Hostages his Franchises and Rights as we do with our other Barons of England unless it ought to be otherwise by vertue of the Charters which we have of his Father William late King of Scotland and this to be by the Judgment of his Peers in our Court. All these Customs and Franchises aforesaid which we have granted to be kept in our Kingdom so far forth as we are concerned towards our Men all Persons of the Kingdom Clerks and Lay must observe for their Parts towards their Men. And whereas we have granted all these things for God's sake and for the amendment of our Government and for the better compremising the discord arisen betwixt us and our Barons We willing that the same be firmly held and established for ever do make and grant to our Barons the scurity underwritten to wit That the Barons shall chuse Five and twenty Barons of the Realm whom they List who shall to their utmost Power keep and hold and cause to be kept the Peace and the Liberties which we have Granted and Confirmed by this our present Charter insomuch that if we or our Justice or our Bayliff or any of our Ministers act contrary to the same in any thing against any Persons or offend against any Article of this Peace and Security and such our Miscarriage be shown to four Barons of the said Five and twenty those four Barons shall come to us or to our Justice if we be out of the Realm and show us our Miscarriage and require us to amend the same without delay and if we do not amend it or if we be out of the Realm our Justice do not amend it within Forty days after the same is shown to us or to our Justice if we be out of the Realm then the said Four Barons shall report the same to the residue of the said Five and twenty Barons and then those Five and twenty Barons with the Commonalty of all England may distress us by all the ways they can to wit by seizing on our Castles Lands and Possessions and by what other means they can till it be amended as they shall adjudge saving our own Person the Person of our Queen and the Persons of our children and when it is amended they shall be subject to us as before And whoever of the Realm will may swear that for the Performance of these things he will obey the Commands of the said Five and twenty Barons and that together with them he will distress us to his Power And we give Publick and free leave to swear to all that will swear and will never hinder any one And for all Persons of the Realm that of their own accord will swear to the said Five and twenty Barons to distress us we will issue our Precept Commanding them to swear as aforesaid And if any of the said Five and twenty Barons die or go out of the Realm or be any way hindred from acting as aforesaid the residue of the said Five and twenty Barons shall chuse another in his room according to their discretion who shall swear as the others do And as to all things which the said Five and twenty Barons are to do if peradventure they be not all present or cannot agree or in case any of those that are Summon'd cannot or will not come whatever shall be determined by the greater number of them that are present shall be good and valid as if all had been present And the said five and twenty Barons shall swear that they will faithfully observe all the matters aforesaid and cause them to be observed to their power And we will not obtain of any one for our selves or for any other any thing whereby any of these Concessions or of these Liberties may be revoked or annihilated and if any such thing be obtained it shall be null and void nor shall ever be made use of by our selves or any other And all ill will disdain and rancour which has been betwixt Us and our Subjects of the Clergy and Laity since the said discord began we do fully release and pardon to them all And moreover all Trespasses that have been committed by occasion of the said discord since Easter in the sixteenth year of our Reign to the restoring of the Peace we have fully released to all Clerks and Lay-men and so far as in us lies we have fully pardoned them And further we have caused Letters Patents to be made to them in testimony hereof witnessed by Stephen Archbishop of Canterbury Henry Archbishop of Dublin and by the aforesaid Bishops and by Mr. Pandulphus upon this Security and these Concessions Whereby we will and strictly Command that the Church of England be free and enjoy all the said Liberties and Rights and Grants well and in Peace freely and quietly fully and entirely to them and their Heirs in all things in all places and for ever as aforesaid And we and our Barons have sworn that all things above written shall be kept on our parts in good Faith without ill design The Witnesses are the Persons above-named and many others This Charter was given at the Meadow called Running-Mead betwixt Windsor and Stanes the 15th day of June in the Seventeenth Year of our Reign JOHN by the Grace of God King of England to the Sheriff of Hampshire and to the Twelve that are chosen in that County to enquire of and put away the evil customs of Sheriffs and of their Ministers of Forests and Foresters of Warrens and Warrenners of Rivers and of guarding them Greeting We command you that without delay you seize into our Hand the Lands and Tenements and the Goods of all those of the County of Southampton that will not swear to the said Five and twenty Barons according to the form exprest in our Charter of Liberties or to such as they shall have thereunto appointed and if they will not swear presently at the end of Fifteen days after their Lands and Tenements and Chattels are seized into our Hands that ye sell all their Goods and keep safely the Money that ye shall receive for the same to be employed for the Relief of the Holy Land of Jerusalem and that yeâ— keep their Lands and Tenements in our Hands till they have sworn or that Stephen Archbishop of Canterbury and the Barons of our Kingdom have given Judgment thereupon In witness whereof we direct unto you these our Letters Patents Witness our Self At Odibaam the Seven and twentieth Day of June in the Seventeenth Year of our Reign FINIS Books lately Printed for Richard Chiswell THE Case of Allegiance in our present Circumstances considered in a Letter from a Minister in the City to a Minister in the Country 4o. A Breviate of the State of Scotland in its Government Supreme Courts Officers of State Inferiour Officers Offices and Inferiour Courts Districts Jurisdictions Burroughs Royal and Free Corporations Fol. Some Considerations touching Succession and Allegiance 4o. Reflections upon the late Great Revolution Written by a Lay-hand in the Country for the satisfaction of some Neighbours The History of the Desertion or an Account of all the Publick Affairs in England from the beginning of September 1688. to the Twelfth of February following With an Answer to a Piece called The Desertion discussed in a Letter to a Country Gentleman By a Person of Quality K. William and K. Lewis wherein is set forth the inevitable necessity these Nations lie under of submitting wholly to one or other of these Kings And that the matter in Controversie is not now between K. William and K. James but between K. William and K. Lewis of France for the Government of these Nations An Examination of the Scruples of those who refuse to take the Oath of Allegiance by a Divine of the Church of England A Dialogue betwixt two Friends a Jacobite and a Williamite occasioned by the late Revolution of Affairs and the Oath of Allegiance The Case of Oaths stated 4o. A Letter from a French Lawyer to an English Gentleman upon the Present Revolution 4o. The Advantages of the Present Settlement and the great danger of a Relapse The Interest of England in the Preservation of Ireland
otherwise than by Patience when they are convinced in Conscience of the Injustice of the Laws and Commands enjoyned 'T is an easie matter to overthrow the First of these Suppositions First I would fain know who has given these Gentlemen the Power of determining as they do what is Essential to Sovereignty Do they derive these their Notions from Revelation or from Reason which is common to all Men If they say they derive the definition they give us of Sovereignty from Revelation they will do well to point us to the places of Scripture where this Notion is set down If they draw it from Reason then I cannot but wonder that so many Statesmen and Writers of Civil Matters have fail'd of stumbling on the same Notion and it seems to me an inextricable thing that so many Nations should agree to reject what they approve and to approve what they reject To say here That they draw this definition from the Idea of Sovereignty which loseth its nature when divested of these Characters shews they are willing either to abuse themselves or others by a pitiful Equivocation The word Sovereign imports a relation to Inferiors and as the relation has a certain foundation so it is likewise evident that it hath its bounds set proportionable to its foundation Where there is no Authority neither is there any foundation for Obedience Now there is no Authority but in proportion to the Laws which establish the Authority wherefore it incontestably follows There can be no Authority where the Law is so far from allowing any that it opposes it It will never cease to be true That the Authority is Sovereign though it be not so in all respects The Consuls of Rome were Sovereign Magistrates though the People had Power to oppose themselves against their Authority when they abused the Power they were intrusted with for the good of the Commonwealth In France they give their Parliaments the Name of Sovereign Courts though their Sentence be not always irrevocable The Second Supposition is only founded upon this Notion That Conquerors having invaded the Liberty and Privileges of the People were afterwards so kind to restore some part thereof to them again by their Concessions but that these Acts of Grace do not at all divest them of the Right of Acting whenever it shall please them as if their Power was altogether Unlimited and Arbitrary This Notion is much the same with that of the Partisans of the Court of Rome who maintain That the Liberties of the Gallican Church are only Acts of Grace and Favour granted to that Church whereas the French pretend That they are common Rights and Franchises which their Ancestors have constantly maintained according to what P. Pithou declares concerning them But indeed to speak truly this Supposition cannot be admitted with respect to conquered States at least for the most part Ordinarily a Conquest is made upon the Power that governs the State so that the State only changes its Master the fundamental Laws of the Land receiving no Alteration from this Change. Of this we have an Instance in England when King William conquered it who at his Coronation sware to keep the Laws of St. Edward and his Successors were fain to swear the same Now one of these Laws c. 15. T. 1. Spelm. p. 622. imports That a Prince that abuseth the Power he is intrusted with does lose the Title of King From whence it follows That his Subjects need not own or obey him and that consequently it is lawful to resist him To maintain That a King whose Power is limited by the fundamental Laws of a State and which he is invested with upon that condition when at his Coronation he swears to the People is indeed obliged to keep the said Oath for fear of God but that he is not at all engaged by this his Oath to the People is rather a piece of Raillery than Reasoning What Does not the Oath the People swear to the King oblige them in Allegiance to him and how can we then suppose that the reciprocal Oath of the King should not as well oblige him to his People Surely if we well weigh the case 't is impossible but we must discern a palpable falsity in this Opinion of Passive Obedience in the way these Gentlemen propose it First They grant a Right unto Sovereignty which is diametrically opposite to the end of Sovereignty according to the Divine Destination For the good of the Society and its Subsistence was God's End in insticuting of the Sovereign Power whereas by their Hypothesis the Sovereignty may become an instrument of the utter ruin of the Society whensoever it shall please the Sovereign his Subjects in the mean time having no means to attain the said End or being in any condition to hinder their being deprived of it Secondly They suppose That God in allowing a lawful Right to Sovereigns has subjected the People to a necessity of groaning under an Illegal Right and which God has never bestowed upon them and for the Usurpation of which he will condemn those who do arrogate the same to themselves which is much to the same purpose as if I should say That because God has established Judges he has thereby obliged the People to suffer Robbery when the Judges shall think fit to turn Robbers Thirdly They make the condition of a Civil Society more unhappy than was the condition of Families in the state of Nature before Societies were formed For the liberty of defending one's self is permitted to every one by Nature but after the Society is once formed it would follow That the whole Society would be obliged by a Principle of Conscience to suffer their Throats to be cut by a Prince of the humour of a Nero or a Caligula Fourthly They turn to meer Chymera's and Visions whatsoever the wisdom of Men have been able to find out to make States happy by securing them against Tyranny I speak of Laws and Oaths the Laws are the bands and cement of the Society and the foundation as well as the measure of the Obedience we owe to Princes The Oaths are the Seal of the Contract by which the Subjects are obliged to obey them upon condition that they govern according to Law. But all this is to no purpose and is of no use to the People as soon as the Tyrant thinks fit to overturn the Laws and to mâ—ke a Scoff at his Oaths Forasmuch as the Third Supposition viz. That the Scripture maintains Non-resistance with regard to Sovereigns whether they act according to or against Law is of greater importance it will be convenient to examine the same more heedfully and the rather because Men of Abilities and Learning have endeavoured strongly to assert it and to make it pass current with others and that with all their might CHAP. VII That the Scripture doth not assert the point of Non-resistance FOrasmuch as the Doctrine of Non-resistance directly thwarts a natural Principle to wit that of our
Aristocrasy and Democrasy That the Kings can do nothing without the States General which are the very same things with our Parliaments That the Judges are the Peoples Officers That the words so much abused Such is our Pleasure signify only This is the Decree of our Courts of Judicature That they have no Right to levy any Impositions without the Consent of the States and many other Articles of that Nature CHAP. XV. That the Royalty of England never had any other form than the rest of the Northern and Western States I Have insisted the longer to shew how the Royalty was limited in France because the most part of our Modern Writers seem to have had in their aims to reduce our Monarchy to the Form of that Kingdom as supposing that it would have been a most glorious and advantageous Thing for our late Kings to transform them into so many Lewis's XIV that is to say to change us into Slaves and our Princes into Tyrants I shall say nothing of the Royalty in Scotland nor of the Bounds have been always set it by the Fundamental Laws of the State. There has been lately so much writ concerning this Matter to justify the Proceedings of the Convention of that Kingdom that it would be of no use to repeat it here And for the same reason I shall excuse my self of the trouble of treating what concerns the Limitation of the Royalty in England so largely as the Subject seems to deserve however what I shall say will be sufficient to make it appear that Royalty has been always on the same foot in that Kingdom as it is still in the other Western Kingdoms If we consider the most remote times that History gives us any account of we shall find that the Saxons as to the Power of their Kings followed the Example of the Ancient Germans whose Authority if we may believe Caesar and Tacitus was altogether limited and restrain'd We find in the Mirror of Justices cap. 1 2. that the first Saxons created their Kings that they made them take an Oath and that they put them in mind that they were liable to be judged as well as their meanest Subjects After that the Right of Succession was received in England yet it never deprived the English People of the Right of choosing their Kings This is evident from the Form of the Coronation published by Hugh Menard at the end of the Book of Sacraments of St. Gregory p. 278. which Form was as follows After they had made the King promise to preserve the Laws and the Rights of the Church we read these words Deinde alloquantur duo Episcopi populum in Ecclesia inquirentes eorum voluntatem si concordes fuerint agant gratias Deo Omnipotenti decantantes Te Deum laudamus Then let two Bishops speak to the People in the Church and demand their Will and Pleasure and in case they do agree let them give thanks to Almighty God singing We praise thee O Lord. And pag. 269 270 We pray thee most humbly to multiply the gifts of thy Blessings upon this thy Servant whom we chuse to be our King viz. of all Albion and of the Franks That the Kings of England are as well bound by their Oath as their Subjects appears by the confession of Henry III upon occasion of one of his Councellors of State pretending that he was not obliged to preserve the Liberties of the Nation as being extorted from him expressing himself in these terms recorded by Mat. Paris under the Year 1223. Omnes libertates illas juravimus omnes adstricti sumus ut quod juravimus observemus pag. 219. All these Liberties we have sworn to and we are all bound to observe and make good what we have sworn English Men were always so well perswaded of this Truth that in their deposing of Richard II they thought they had done enough to prove That the King had forsworn himself by the Oath he had taken having broken several of the Articles he had promised to his Subjects by Oath to observe as we may see in the Acts of his Deposal recorded in the Chronicle of Knighton James the First was convinced of this when he told the Parliament of 1609. the 21st of March That the King is bound by a double Oath tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath so as every just King is bound to preserve that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law. For what concerns the Laws we find that the Kings alone had not the Authority of making them King Edwin published his Laws Habito cum Sapientibus Senioribus Consilio with Advice of the Wise Men and Elders Ina King of the West Saxons did the like The Laws of Alfrede were made after the same manner Ex consilio prudentissimorum atque iis omnibus placuit edici eorum omnium Observationes As for the Government of the State we find that the Parliaments met and that their Meetings were fix'd once a Year by Alfred which was renewed by Edward II by two Laws Moreover the King was obliged to assist at them in case he was not sick and nothing but his Sickness could dispense with his Attendance That English-men never believed that the King of England could violate the Laws and overturn the State at his Pleasure without making himself thereby liable to punishment clearly appears from the Laws of St. Edward and by the manner of holding Parliaments confirmed by William the Conqueror and printed by the care of Dom. Luc. D'achery in the 12 To me of his Spicilege Sure it is that we clearly find these three things 1st That by the Agreement and Consent of King John upon the Complaints made against him by the whole State there were chosen 25 Barons with Power to represent to the King his unjust Oppression of the Nation and to oblige him by force of Arms to redress them which he himself published by his Letters Patents in the Year 1215. which piece was published by Dom. Luc. D'achery in the old Norman Tongue Spicil Tom. XII p. 583 584 585. as it is to be read in Matthew Paris ad An. 1215. Secondly We find that the opinion of the English Nation of old was That they could not only resist their Prince which abused his Authority but wholly deprive him of it by driving him and his wicked Councellors out of the Kingdom as we see in Matth. Paris in the Year 1233 where he relates that Henry III having call'd a Parliament upon the Complaints that came in from all Parts against his Ministers and the Strangers whose Service he made use of in the management of the Affairs of the Kingdom the Members of the said Parliament perceiving that they could not with safety meet together refused to come up
〈◊〉 〈◊〉 Kings or Emperors believing that the Name of Kings left them in some dependence upon the Empire of the East this obliged the Emperors of the West to take upon them the Title of Emperor to intimate their independency upon the Princes of the East Which Title the Emperors of the West having afterwards made use of as a pretence to raise themselves above the rest of the Princes of Europe the Western Kings did the same which the Emperors of the West had done before to assert their Independency For not only the Kings of England but some other Western Kings have taken upon them the Title of Emperors Alphonsus VI King of Spain took upon him this Title by a Concession from Pope Vrban II because he had suppressed the Mosorabick-Office Alphonsus VII and VIII assum'd the same Titles and Alphonsus VIII was Crowned in that quality by Raymond Arch-Bishop of Toledo in the Church of Lions with the consent of Pope Innocent II as is reported by Garibay lib. 8. hist cap. 4. We find that Peter de Clugny writes to this Alphonsus as Emperor of Spain Epist 8. And long time before these Princes it is certain that the Kings of the Goths since Richaredus had taken to themselves the Title of Flavians in imitation of the Roman Emperors as may be seen in the Councils of Toledo Yet Philip II having demanded this Title in 1564 of Pope Pius IV it was refused him The Kings of Lombardy had assum'd the Title of Flavians even since Autlaric according to the Account given us by Paul Diacon lib. 3. cap. 8 which they did to shew that they were Emperors in their own Lands and Territories and that they acknowledged no Soveraign or Superior And it seems that in Process of Time some Western Kings affected that Title for the same reason and were the rather perswaded so to do because some Canonists and Lawyers have impudently maintained That the Kings of Spain France and England were Subjects of the Emperors of the West Glossa in cap. Venerabil de Elect. in verbo transtulit in caput Venerabil qui filii sint legitimi Bartolus in caput hostes ff de captivis Alciat lib. 2 disjunct c. 22. Baldus in cap. 1 de Pace juramento fervando in usibus Feudorum Tho he contradict himself by asserting elsewhere That the King of France is not subject to the Emperor And thus much for the first Illusion some make use of to perswade us that the Kings of England possess the same Rights as the Emperors A second which seems to have some more Ground is this They say that as the Emperors that were after Vespasian had the Right to divide the Empire and to settle it by their Wills on their Heirs the Kings of England having done the like it appears thereby they were in Possession of the same Right the Emperors had to this purpose they alledge the last Will of William the Conqueror in favor of his Son William Rufus But nothing can be more vain than this Objection 1. We cannot deny but that the Election of Kings took Place during the Reign of the Saxons not that they did it with that Freeness as to prefer the Uncle before his Nephew that was under Age ' tho the Kings Son and the youngest Brother before the Eldest 2ly It is true that William the Conqueror did act in an extraordinary manner in disposing of his Kingdom in Favor of William Rufus in the same way as one disposeth of a Conquest and this in prejudice to Robert his Eldest Son as was also done by William Rufus But these two Princes dying without Heirs Henry who had Married the Daughter of King Alexander of Scotland who had the Rights of the Saxon Kings and who in Consideration of that Marriage renounced the Rights he might pretend to England as heir Presumptive of the Saxon Kings having obtain'd the Government by the Right of his Wife the Laws recovered their Strength and Things returned to their antient Channel as they were in the time of the Saxons So that it appears that it is Folly for any one to imagine that the Kings of England may alienate their Estates as a private Person can alienate his Inheritance This was evident in the case of King John who was opposed by the whole State for pretending to subject the Crown of England to Pope Innocent III. And indeed if we consider the Thing in it self and according to the unanimous Opinion of all Lawyers these last Wills can really be of no Force without the consent of the States to authorize them as we find that the same did intervene in both the fore-mentioned Cases The reason whereof is invincible forasmuch as all States do not consider their Kings as Proprietors of their Kingdoms but only as publick Ministers who are intrusted with a Jurisdiction and Administration for the Good of the publick And this is the Title by which even Conquerors themselves are at last obliged to hold their Authority They tell us in the 3d place that the Kings of England entitling themselves Kings by the Grace of God it appears that their Power being come from God cannot be limited by their Subjects over whom God has set them A wonderful way of arguing and never known till these our Times at least it is evident that he who has defended Nicholas de Lyra against Burgensis hath made a very different use of these words Dei Gratia by the Grace of God wherewith the Kings of the North prefac◠their Titles from what some now a days make of it For he maintains that it is the Character of a limited and temper'd Government see how he expresseth himself upon the 8. ch of the 1 Book of Kings Titulus Imperatoris modo regendi vitiato that is to say illimitato as he expresses himself before contradicit nam titulus ejus est N. Dei gratia Romanorum Rex semper Augustus hoc est Reipublicae non privatae accommodus Ita aliorum Regum Protestationes sunt sub Dei gratia quae vitiatum Principatum non admittit The very Title of the Emperor saith he is a Contradiction to an Arbitrary and Unlimited kind of Government for his Title is N. by the Grace of God King of the Romans always Augustus that is enlarger of the Empire which implies that his Government is accommodate to the Common good and not his Private Interest So likewise we find that the Protestations of other Kings are under Dei Gratia the Grace of God which doth not admit of Arbitrary Government There remain but two difficulties more the first is this Several Members of the Church of England having perswaded the People that a necessity was laid upon them to suffer all from the Hands of their Kings The Kings of England have accordingly usurped those Rights and were actually in possession of them when the same began to oppose themselves to King James this is that they call a right of Prescription They consider the
promulgamus ut si quis ex eis contra reverentiam legum superba dominatione fastu regio in flagitiis facinore sive cupiditate crudelissimam potestatem in populis exercuerit anathematis sententia à Christo domino condemnetur habeat a Deo separationem atque judicium propter quod praesumpserit prava agere in perniciem regnum ††deducere convertere De se Suintilane vero qui scelera propria metuens seipsum regno privavit potestatis fascibus exuit id cum gentis consultu decrevimus ut neque eundem vel uxorem ejus propter mala quae commiserunt neque filios eorum unitati nostrae unquam consociemus nec eos ad honores à quibus ob iniquitatem dejecti sunt aliquando ‖ ‖ provehamus promoveamus quique etiam sicut à fastigio regni habentur extranei ita à possessione rerum quas de miserorum sumptibus ††auxerant hauser ant maneant alieni praeter id quod pietate piissimi principis nostri fuerint consecuti Non aliter * * Geilanem Gelanem memorati ††Suintilanae Suintilani sanguine scelere fratrem qui neque in germanitatis * * fide foedere stabilis extitit nec fidem gloriosissimo nostro domino pollicito conservavit hunc igitur cum conjuge sua sicut ††antefactum est antefatos à societate gentis atque consortio nostro placuit separari nec in amissis facultatibus in quibus per iniquitatem creverant reduces fieri * * praeter in id praeter id quod consecuti fuerint pietate clementissimi principis nostri cujus gratia bonos donorum praemiis ditat malos à beneficentia sua ††congruè non separat non separat Gloria autem honor omnipotenti Deo nostro in cujus nomine congregati sumus Post haec salus pax diuturnitas piissimo amatori Christi domino Sisenando regi cujus devotio nos ad hoc decretum salutiferum convocavit Corroboret Christi gloria regnum illius * * gentesque gentisque Gothorum in fide Catholica annis meritis protegat illum usque ad ultimam senectutem summa Dei gratia post praesentis regni gloriam ad aeternum regnum transeat ††ut sine fine regnet qui * * in saeculo intra Saeculum feliciter imperat ipso praestante qui est Rex regum Dominus dominantium cum Patre Spiritu Sancto in Saecula Saeculorum Amen Definitis itaque iis quae superius comprehensa sunt annuente religiosissimo principe placuit deinde nulla re impediente à quolibet nostrum ea quae constituta sunt temerari sed cuncta salubri consilio ††conservari conservare quae quia profectibus Ecclesiae animae nostrae conveniunt etiam propriâ subscriptione ut permaneant roboramus * * subscripserunt omnes AN ADVERTISEMENT Concerning the ARTICLES OF MAGNA CHARTA of King JOHN As also concerning The MAGNA CHARTA now printed in this APPENDIX THESE Articles or Capitula were found in the Study of Bishop Warner late Bishop of Rochester They were communicated by a Gentleman of that Family to Mr. Geddis and by him to the present Bishop of Salisbury There can be no reasonable scruple raised against the Authentickness or Truth of the Writing For first 1. It is in a Hand very ancient They that are competent judges of such Antiquities say It well pretendeth to the Time of which it treateth 2. It hath yet appendant the Seal of King John without any suspicion of being lately affixed 3. In the famous Library of Sir John Cotton there are now to be seen many private Charters of King John which exactly agree with this both in respect of the Writing and also of the Seal 4. In the Books of the Archbishoprick of Canterbury amongst many things there entred of the time of King John these Articles are Recorded and were thence transcribed many Years before the Original of them came into the Hand of the Bishop of Salisbury 5. This Instrument is the same which Matth. Paris mentioneth Page 254. by the name of SCHEDVLA Archiepiscopus Schedulam illam c. The Arch-Bishop with others bringing that Schedule to the King recited before the King all the Capitula c. Which tho' the King then rejected yet shortly after upon better Advice He granted as may be gathered from the next Page of Matth. Paris These Arguments may satisfie those who since the late mentioning of these Articles in the Pastoral Letter of the Bishop of Salisbury have had the Civility to doubt of the Truth of the whole matter 1. As to the substance of these Articles It is to be observed that they contain some part of the Rights of the Barons due to them by the Unwritten or Common Law of the Land which Rights for more certainty were in several Reigns drawn into Writing And for more obligatoriness into Charters after the entrance of the Normans In the time of the Confessor they were contained in the Laws of that King. William the Conqueror confirmed to the old and new Barons of his Investiture according to Custom of England the Laws of the Confessor as appeareth by the Record in Ingulf and other Testimonies 2. These Articles or the Laws of the Confessor were recognized and by Oath re-confirm'd by William Rufus no doubt at His Coronation or not long after The old English Chronicle writeth thus William Rufus by his Letters Summon'd the Bishops Earls and Barons to St. Pauls and there he Sware and made to them Surety by Writing to sustain and maintain the Right 3. King Henry I. ratified these Rights In his Charter we find in general Lagam Edwardi Regis vobis reddo cum its emendationibus quibus Pater meus eam emendavit c. I restore to you the Law of King Edward as it was mended or enlarged by my Father with the Advice of his Barons 4. It is evident that King John to omit others both by His Coronation Oath and at other times confirmed these Articles or Explanations of the Old Law. Matth. Paris pag. 239. The King John strictly commanded that the Laws of His Grandfather King Henry should be observed by the whole Kingdom But what this Law of King Edward or Emendations contained the same Matth. Paris setteth down in short pag. 252. The Charter of King Henry the First contained certain Liberties and Laws of King Edward granted to the Church of England and the great Men as also some Liberties superadded by King Hen. I. And pag. 254. Capitula quoque legum libertatum c. The Heads or Articles of the Laws and Liberties which the Great Men desired to be confirmed are already entred partly above in the Charter