some colour are R. 1. and E. 1. which singular Instances will be so far from turning the Stream of Precedents that unless the Form or Manner of Recognising their Rights as Hereditary be produc'd the Presumption is strong that the Declarations of the Conventions of those Days or the Peoples acquiescing upon the Question Whether they would consent to the King in nomination or both made even their Cases to be plain Elections And of these two Instances Walsingham f. 1. perhaps one may be struck off For tho Walsingham says of E. 1. They recogniz'd him for their Liege-Lord that does not necessarily imply a Recognition from a Title prior to their Declaration for which way soever a King comes in duly he becomes a Liege-Lord and is so to be recogniz'd or acknowledg'd and that the Title was not by this Author suppos'd prior to the Recognition appears in that he says Walsing ib. Paterni honoris successorem ordinaverunt They ordain'd or appointed him Successor of his Father's Honour And yet his Father Sir P. P. Obligation of Oaths f. 295. to secure the Succession to him had soon after his Birth issued out Writs to all the Sheriffs of England requiring all Persons above Twelve Years old to swear to be faithful to the Son with a Salvo for the Homage and Fealty due to himself Indeed of R. 1. the Historian says Walsingham Ypod Neustriae f. 45. He was to be promoted to the Kingdom by Right of Inheritance yet the very Word promoted shews something that he was to be rais'd to higher than that Right alone would carry him which he fully expresses in the Succession of E. 2. Walfing f. 68. which he says was not so much by Right of Inheritance as by the unanimous Assent of the Peers and Great Men. Which shews that ordinarily they respectively who stood next in Blood might look for the Crown before another till the People had by their Choice determin'd against them This appears very fully by the Commissions issued out for the taking the Oath of Allegiance to E. 1. both in England and Ireland after the People of England had agreed in his absence to receive him for their King The Commission or Dedimus for Ireland Claus 1. E. 1. m. 20. De conservatione pacis in Hibern runs thus Cum Angliae Gubernaculum terrae Hiberniae dominium successione hereditariâ nobis pertineant ob quod Praelati Comites Proceres ac Communitas regni nobis tanquam domino suo ligio regi fidelitatis juramenta omnia alia quae nobis ratione Coronae dignitatis regiae ab ipsis fieri aut praestari nobis in absentiâ nostrâ potuerunt plenariè sine omissione aliquâ prompto libenti animo praestiterunt ac vos tanquam Regi Domino vestro ligio consimile Sacramentum fidelitatis praestare teneamini c. Dat. 7. Decemb. Here the Lords and Commons by whose direction the Commission was sent to Ireland in the King's absence acted without staying for Powers from him they own indeed his coming to the Crown by Hereditary Succession and that by reason of that Inheritance or his standing next to his Father they had sworn Allegiance to him yet they say they had done it prompto libenti animo voluntarily which tho it does not necessarily imply a free choice leaves room for the admission of it And he that observes the Dedimus for England may see that this ordinary Right of Inheritance was not lookt on as enough to constitute him King without the consent of the Proceres Regni which in the Language of that time took in the Commons Vid. Jan. Ang. fa. Nov. Jus Anglorum ab Antiquo Vid. etiam 2 part inf as I have elsewhere shewn and appears not only by the enumeration in the record for Ireland of the Parties who received and swore to him as their King But even by the Dedimus for England which says the Magnates Fideles caus'd his Peace to be Proclaim'd So much of the Record as is material here follows Claus 1. E. 1. m. 11. Quia defuncto jam celebris memoriae Domino H. Patre nostro ad nos regni Gubernaculum Successione hereditaria ac procerum regni voluntate ffdelitate nobis praestita sit devolutum per quod nomine nostro qui in exhibitione justitiae pacis conservatione omnibus singulis de ipso regno sumus ex nunc debitores pacem nostram dicti Magnates Fideles fecerunt proclamari Here the said Proceres are brancht into Magnates Fideles Lords and Commons and their Consent and Swearing Allegiance is join'd with the Succession as the per quod or ground of the King 's becoming a Debtor for exhibiting Justice and preserving the Peace as King of England What I have here shewn of E. 1. with that under the Sixth Observation giving an account of the Peoples forwardness in swearing Allegiance to H. 5. abundantly confutes the Inference from the Allegiance sworn to those two Kings Elementa Politica p. 12. made by the Author of Elementa Politica in these words We may observe that the Kings of England are in full Possession of the Crown immediately upon the Death of their Predecessors and therefore King Edward 1. and H. 5. had Allegiance sworn to them before their Coronation whence says he it follows that as swearing does not make them Kings so neither can Perjury tho truly objected unmake them again He instances also in King John but surely cannot pretend that he had any Right before the Peoples immediate Choice to which the Arch-bishop told him that he ow'd his Crown And if the People swore first yet 't is certain it was not till he had been received as King of England which implies the terms exprest in the Oath Bromton f. 1155. So Hoveden f. 656. But to return to R. 1. 't is observable That he was not called King here but only Duke of Normandy till he was Crown'd which next to the People's Choice was in great measure owing to his Mother's Diligence For he being absent at the Death of his Father his Mother who had been releas'd out of Prison by his means to secure the Succession to him went about with her Court from City to City and from Castle to Castle and sent Clergy-men and others of Reputation with the People into the several Counties by whose Industry she obtain'd Oaths of Allegiance to her Son and her self from the People in the County Courts Bromton f. 1159. as it should seem notwithstanding which the Arch-bishop charg'd him at his Coronation not to assume the Royal Dignity unless he firmly resolv'd to perform what he had sworn To which he answered That by God's help he would faithfully observe his Oath Hoveden f. 656. And Hoveden says That he was Crown'd by the Counsel and Assent of the Archbishops Bishops Earls Barons and a great number of Milites
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
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 President 12 Car. 2. but by two Presidents 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 Reason applied to our Case Objections made by the Author of Elementa Politica considered The Conclusion THE Power having upon the Dissolution of the Contract between J. 2. and his former Subjects returned to the People of Legal Interests in the Government according to the Constitution there can be no doubt with unbiassed Men but this takes in them only who have Right of being in Person or by Representation in those Assemblies where is the highest Exercise of the Supream Power But there are two Extreams opposite to the late Election made by such an Assembly The First is of them who would have all things go on in the same Form as under a Monarch which was impossible and therefore the Supream-Law the Publick-Safety must needs supply the want of Form Nor can be justly controverted till the Lawfulness of the end is disprov'd For all Means necessary to such an End are allowable in Nature and by all Laws But if this should still be disputed all their Darling-Laws made by the Long-Parliament which met after that Convention Anno 1660. will fall to the ground according to the former application of the Statute above-mentioned 16 Car. 1. Vid. Sup. Nay the attempt of Repealing that Statute being in a Parliament which had been actually Dissolved before by that very Law which it went about to Repeal that Form which was usual before is in default of King and Officers supplied by another Provision for the Regular Meeting of Lords and Commons And what hinders but the people had as much Power to vary from the Common Form when there was no King and that Form could not be observ'd as when there was a King and a possibility of having that Form Here I may observe these two things 1. If as I have shewn at large the Right of Succession to the Crown was not fixed to the next in Blood neither before the reputed Conquest nor since if there have been several vacancies of the Throne and the People had right to chuse upon every such Vacancy then whatever they did in order to the choice must necessarily have been freed from the Forms which were required under a King 2. Even where the Kingdom has gone by descent there may have been a necessity for the people to take the Government upon them as if the present Possessor has turned Madman or he who stood next in the Succession were under age without any Guardian appointed in the Life-time of his Father or out of the land when his Father died which were the cases of R. 1. and of E. 1. the account of the last of which deserves particular notice The Annals of Waverly having mentioned the Death of H. 3. add Hoc anno scilicet post Festum S. Hillarii Annales Waverleiensis f. 227. factâ convocatione omnium Prel aliorum Magnatum Regni apud Westm postmortem illustris Regis H. convenerunt Arch. Ep. Com. Bar. Abbates Priores de quolibet Comitatu quatuor Milites de qualibet civitate quatuor qui omnes in presentiâ Dom. Will. scil Arch. Ebor. Rob. de mortuo Mari R. Burnet Cler. qui in loco Domini Regis Anglorum Edwardi praefuerunt Sacramentum eidem Domino Ed. tanquam terrae Principi susceperunt ubi Dominus W. de Mertone Cancellarius constitutus est ut moram trahat apud Westm tanquam in loco publico usque ad adventum Principis Et ibi provisum est quod nulli sint Justiciarii itinerantes usque ad adventum Principis sed in Banco Dominica prima Quadragesimae 4 Id. Martii consecratus fuit frater R. de Kilderlii in Arch. Cant. Item concessa est decima Ecclesiarum Religiosorum Domuum Domino Ed. ejus Germano ad supplicationem Domini Papae ut sit pro duobus Annis F. 228. In this year to wit after the Feast of St. Hillary all the Prelates and other great Men of the Kingdom being call'd together at Westminster after the Death of the Illustrious King Henry there met the Archbishops Bishops Earls and Barons Abbots and Priors and Four Knights from every County and Four from every City which all in the presence of William Archbishop of York Robert Mortimer and R. Burnet Clerk who presided in the stead of Edward their Lord and King of England took an Oath to the said Lord Edward as Governor of the Realm Where the Lord William of Merton is constituted Chancellor and that he should abide at Westminster as in a publick place till the Prince's coming And there it was provided that there should be no Justices itinerant before the Prince his coming but only in the Bench. The first week of the Quadragesima to wit on the Fourth of the Ides of March Father R. of Kilderly is consecrated Archbishop of Canterbury Matthew Westminster of the same time says Mat. West Rege igitur Supulto sicut mos est regibus sepeliri Gilbertus Johannes Comites Gloverniae Warenniae nec non Clerus Populus ad magnum Altare Ecclesiae Westm ' celeriter properarunt Ed. primogenito Regis fidelitatem jurantes qui si viveret penitus ignorarunt Agebat enim in partibus transmarinis contra Christi adversarios bellaturus Postmodum ad novum Templum Londini Nobiliores Regni pariter convenerunt Et facto sigillo novo constituerunt fideles ministros Custodes qui Thesaurum Regis Pacem Regni fideliter custodirent The King therefore being buried in that state in which Kings us'd to be buried Gilbert and John Earls of Gloster and Waren as also the Clergy and People as soon as might be hastned to the great Altar of Westminster-Church swearing Fealty to Edward the King 's eldest Son tho they were wholly ignorant whether he were alive or no for he was in Foreign Parts fighting against the Enemies of Christ After this the Nobility of the Kingdom likewise met and a new Seal being made they constituted faithful Ministers and Keepers who might faithfully keep the King's Treasure and the Peace of the Kingdom The Annals and Matthew Westminster differ in circumstances tho they agree in substance but it would seem as if the same Convention had been adjourn'd from Westminster to the Temple and therefore its Acts might have been said to have been at either of the places It at least appears from Matthew Westminster that prior to that Solemn Convention which the Annals mention there had been a great confluence of people headed by the Earls of Glocester and Waren at that meeting 't is
exaltationem Sanctae Ecclesiae pacem populi tenendam concessit c. King William being dead the Great Men of England not knowing what was become of Robert Duke of Normandy So R. 1. was call'd but Duke of Normandy till he was chosen King of England the deceased King's Elder Brother who had been five years at the Holy-war were fearful of wavering long without a Government Which when Henry the youngest Brother a very wise young Man cunningly observ'd the Clergy of England and all the people being assembled He promised an amendment of those Laws with which England had been oppressed in the time of his Father and his Brother newly deceas'd that he might stir up the minds of all to his promotion and Love and that they might receive him for King and Patron To these things the Clergy answering and then the Great Men That if with a willing mind he would Grant and Confirm with His Charter those Liberties and ancient Customs which flourish'd in the Kingdom in the time of Holy King Edward they would consent to have him and would unanimously consecrate him King And Henry freely consenting to this and affirming with an Oath that he would perform He was Consecrated King on our Lady day by the Consent of Clergy and People upon whose Head the Crown was immediately set by Maurice Bishop of London and Thomas Archbishop of York As soon as he was Crown'd He granted the under-written liberties for the exaltation of Holy-Church and preserving the Peace of the Kingdom Then follows his Charter containing some Alterations of the Law which had before obtained not only in relation to the Rights of the Crown but of the Subjects particularly whereas the Relief had been Cart. H 1. Siquis Baronum meorum Comitum vel aliorum qui de me tenent mortuus fuerit as Fines now in most Copy-hold Mannors at the Will of the Lords they were reduced to what was just and lawful according to St. Edward's Laws for which as should seem by the Charters of King John and H. 3. declaratory of the Common-Law there were known Rates and H. 1. restored all the Common-Law with the Statutes made for the amendment of it in the time of W. 1. He seem'd in two particulars wisely to have ingratiated himself with the people the first was in gaining to his side the Directers of their Consciences by a concession to the benefit of Church-men which was wholly new and that was That an Archbishop or Bishop or Abbat being dead Vid. Cart. H. 1. he would take nothing of the demean of the Church nor of its tenents until the Successor was inducted which was a departure from that Prerogative which belonged to the Crown upon the Vacancies as appears by the affirmation of H. 2. Vid. Anti. Brit. inf f. 135. Carta Johannis Haec omnia observentur de custodiis Arch. Episcopatuum Abbat Prior Eccles Dignitat vacantium quae ad nos pertinent c. Prerog Regis 17 E. 2. c. 14. the Charter of King John and the Statute of the King's Prerogative 17 E. 2. This Indulgence to the Church without special Provision for keeping it up was withdrawn by the next general Confirmation of the Confessor's Laws and therefore 't is no wonder that it is left out of subsequent Charters If he was not popular in this at least he was in another Action which was his imprisoning Ranulph who had been the great Instrument of oppression in the former Reign Mat. Par. f. 76. and that it was with intention of punishing him severely appears by Ranulph's making his escape out of Prison by means of those great Treasures which he had heaped up from the Spoils of the People Ranulph no doubt could at a much cheaper rate have applied himself to such a Lawyer as the Author of the Magistracy vindicated if such an one could have been found in that Age of less corruption Vid. the last part of the Magistracy and Government vindicated p. 8. I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its Primitive State of nature all Power devolved into Individuals and the particulars only to provide for themselves by a new Contract for if so there 's no new consent for punishment of Acts done before the dissolution and consequently revenge for that is at an end Vid. ib. p. 2. who might have advised him to rest satisfied that it would not be consistent with the Wisdom and Justice of a Prince who came in upon a Vacancy of the Throne as H. 1. did not standing next in the Line to punish any Criminals of the foregoing Reign but Ranulph was wiser in running away and perhaps more modest than to think that for his useful parts employed in the pillaging and destroying innocent men he might pretend to merit under the Successor H. 1. having truly shewn a Fatherly care of the people no man then raised any foolish scruple upon the manner of the Proceedings where the Substance was pleasing to all But that which has been done by them who could get together upon the intervals of Government has been held valid that the Vacancies might be as short as possible unless the general sense of the people has immediately appear'd against it and thus Harold having been Crown'd by surprize when the Friends of W. 1. were at the Confessors Buryal some Authors upon that very Account Vid. 2. part will have it that Harold was an Usurper But that it may be seen how little apt people are to dispute Forms when a King acts agreeably to the sense of a Nation I shall shew that H. 1. acted as King even before he was Crown'd immediately upon his Election for which Huntindon is my Author who having mentioned the death of W. 2. says Henricus frater ejus junior ibidem in Regem electus Hen. Huntin f. 216. b. de H. 1. dedit episcopatum Wincestriae W. Giffard pergensque Londoniam sacratus est ibi a Mauritio Londonensi Episcopo His younger Brother Henry being there chosen King gave the Bishoprick of Winchester to W. Giffard and going on to London was consecrated there by Maurice Bishop of London And I am much mistaken if what he did in relation to another Bishop Anselm who had been Archbishop of Canterbury in the time of W. 2. is not an additional evidence to what I have already produced that the Convention in which he was Crown'd was turn'd into a Parliament or acted as one Ordericus Vitalis says Anselmus enim Dorebornensis Archiep. exulabat Eadmerus f. 38 39 40. shews this was at a Council at Winchester ubi says he ex condicto venimus Mat. Far. f. 25. Trajacere quidem liberum esse sed inconsulte id facturum siquidem nullam revertendi spem in posterum ei futuram Eadmerus Anselm as appears by the circumstances of the story had been condemned to perpetual Banishment by Parliament in the time of
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
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