confirm the said Charters which he promised to doe but when it came to be set down in form of an Act the King would have added A saving of the Right of his Crown which the Lords did mainly inveigh against and pressed the King with his promise to confirm them as absolutely as his Father Henry 3. had done which in the end he yeilded to as appears by the Act called Articuli super Chartas Chap. 1. where these Charters are again confirmed and 't is provided that they shall be read four times every year before the People in every County after the Feast of St. Michael and after the Feast of the Nativity of our Saviour after Easter and after the Nativity of St. John the Baptist When the King had ended his Wars in Scotland he refused to stand to the confirmation which he had made to his Barons of such Laws and Liberties as he before had granted pretending that they had forced his consent Obtinuit Rex à Domino Papa absolutionem à juramento quod invitus praestiterat super observantia Libertatum alias à Comitibus Baronibus exactarum Walsingh p. 92. and he obtained of the Pope an absolution from the Oath which he unwillingly had taken to observe them But when great murmuring and discontent followed hereupon and for his levying Taxes without consent of Parliament in his thirty fourth year he makes the Statute de Tallagio non concedendo for the quieting of the Commons and for a perpetual Law for ever after declaring That no Aid or Taxes shall from thenceforth be levied without their consent and making a general restitution to the Subjects of all their Laws Liberties and free Customes as freely and wholly as at any time before in the better and fuller manner they used to have the fame and and so ended all the disputes touching these Charters Walsingham saith Page 71 72. that the Grievances which the Arch-Bishops Bishops Abbats Priors Earls and Barons with the whole Commonalty remonstrated to the King were these viz. First That they were not dealt with according to the Laws and Customs of the Land according to which their Ancestors used to be governed Secondly That the Articles of M. Charta were neglected to the great damage of the whole Community Thirdly That the Assize and Charter of the Forest was not observed and then he adds that the Nobles would consent to no other form of Peace with the King than that which he established in the Statute de Tallagio non concedendo and which I have now set down There is one thing more very observable in the Reign of that King that when the Pope had summoned him before him to answer touching his Right to the Kingdom of Scotland a Parliament then held at Lincoln Papa R. Edvardum primum in judicium vocante respondet Parliamentum Lincolniae habitum quod praefatus Dominus noster Rex super juribus Regni Scotiae aut aliis suis temporalibus nullatenus respondeat judicialiter coram vobis nec judicium subeat quoquomodo cùm praemissa caderent manifestè in exhaeredationem juris answer the Pope thus That their King should not answer judicially before the Pope nor undergo his Judgment for his Rights of the Kingdom of Scotland or any other Temporal Rights because this manifestly tended to the disinherison of the said Crown Coronae Regni Angliae R. Dignitatis ac subversionem Statûs ejusdem Regui notoriam necnon in praejudicium Libertatis Consuetudinum Legum paternarum ad quarum observationem defensionem ex debito praestiti juramenti adstringimur quae manu tenebimus toto posse totis viribus cum Dei auxilio defendemus nec etiam permittimus aut aliqualiter permittemus sicut nec possumus nec debemus praemissa tam insollta indebita praejudicialia alias inaudita praelibatum Dominum Nostrum Regem etiamsi vellet facere seu modo quolibet attemptare Walsingh Hist p. 85. Hypod. Neustr p. 496. Speed p. 731. and the R. Dignity and the subversion of the said Kingdom and of the Liberties Customs and Paternal Laws to the defence of which they were by their Oath obliged and with their whole power would defend and were the King never so willing they as they ought not so they would not permit the King to attempt the Premises When King Richard the Second asked of Sir Robert Trisilian and his other Lawyers whether he might not Disannul the Decrees of the last Parliament and they had answered that he might BECAVSE HE WAS ABOVE THE LAWS as one of them confessed he deserved death for that Answer so all them that could be caught soon after found it Farthermore Let it be observed that the Nobility of England as the Lord Coke observes have ever had the Laws of England in great Estimation and Reverence Instit l. 2. p. 97. and would never suffer them to be changed This made King Henry the First saith he to write to Pope Paschal thus Let your Holiness know that by the help of God whilst I live Notum habeat Sanctitas vestra quod me vivente auxiliante Deo Dignitates Usus Regni nostri Angliae non imminuentur si ego quod absit in tanta dejectione me ponerem Optimates mei totus Angliae populus id nullo modo pateretur Charta Henr. primi the Dignities and Customs of our Kingdom of England shall not be diminished and if I which God forbid should so far deject my self my Nobles and all the people of England would never suffer them to be altered When the Bishops in the twentieth year of Henry the Third would have those Children who were born before Matrimony Legitimate as to Hereditary Succession as well as those who were born after Matrimony all the Earls and Barons answer with one voice Et omnes Comites Barones unâ voce responderunt quod nolunt Leges Angliae mutare quae hucsque usitatae approbatae sunt Stat. Mert. c. 9. Bracton l. 5. c. 19. F. 417. We will not have the Laws of England which have hitherto been used and approved to be changed In the Letters which all the Nobility of England by Ascent of the whole Commonalty assembled in Parliament at Lincoln wrote to Pope Boniface we find these words Ad Observationem Defensionem Libertatum Consuetudinum Legum paternarum ex debito praestiti Sacramenti adstringimur quae manu tenebimus toto posse totisque viribus cum Dei auxilio defendemus nec etiam permittimus nec aliquatenus permittemus sicut nec possumus nec debemus praemissa tam insolita indebita praejudicialia aliàs inaudita Dominum nostrum Regem etiamsi vellet facere seu quomodolibet attemptare Ret. Parl. 28. Ed. 1. apud Lincoln By virtue of our Oath we are bound to the Observation and Defence of the Liberties Customs and Paternal Laws which by the help of God we will defend
of that Establishment by our succeeding Kings Hist Nov. F. 186. A. 25 H. 8. c. 21. such as Malmsbury stiles our Patriae Leges and the Statute of Henry the Eighth the accustomed and ancient Laws of this Realm originally established Add to this then that Rule of Grotius Successio non est titulus Imperii qui Imperio formam assignat sed veteris continuatio jus enim ab electione coeptum familiae succedendo continuatur quare quantum prima electio tribuit tantum defert successio De jure Bell Pac. l. 1. c. 3. Sect. 10. That Succession is not a Title of Empire which gives the form to it but is only a continuation of the old Title The Right begun by the Election of the Family being continued by Succession And thence with him we may reasonably infer that Succession only brings down to Kings what the first Election gave and makes them only Kings according to the Compact and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority SECT II. That they thought it absolutely necessary that whosoever would be their King should make this Compact with them and be as much obliged by Oath to grant these Priviledges to them as they were to swear Allegiance to him 2dly OUR Kings well knowing what a Reverence the Community had for their Laws found no better means to gain or to secure to themselves the Crown and to pacifie the discontented Parties than by fair Promises and Engagements to maintain or grant to them their Laws Cum Regni fastigia fratri suo Roberto praeriperet coepit tam per se quam per omnes quos poterat fide sacramentoque Lanfranco promittere justitiam aequitatem misericordiam se per totum Regnum si Rex foret observaturum pacem libertatem securitatem Ecclesiarum contra omnes defensurum p. 13. Eadmerus informs us concerning W. Rufus that desiring to forestall his elder Brother Robert in getting the Kingdom he pawned his Faith and Oath that if they would make him King he would in all things observe Justice Equity and Mercy throughout his Kingdom and defend the Peace Liberty and Security of the Church against all Men. When his Brother Robert was come into England to claim his right and he had many of the Nobility who favoured him and sided with him W. Rufus calls the Normans and English Nobility to London leges statuens Pag. 642. and there stablishing the Laws he marched with them against his Brother saith Florence of Worcester He bound them to him saith M. Paris faciles leges promittendo Pag. 10. by promising them easie Laws as those of King Edward were by them stiled and accounted He sweetned them saith John Brompton Pag. 984. by promising that he would establish meliores leges quas sibi vellent eligere those more acceptable Laws which they would chuse Now those we know by their request in his Fathers days were the Laws of Edward and they with the emendations of his Father were the Laws then established These Promises he very little regarded after his agreement made with his Brother Robert but falling sick at the suggestion of his Barons he again promised to God saith Radulphus de Diceto Pag. 490 491. Rectas leges statuere to stablish right Laws Henry the first his Successor in the beginning of his Reign saith * Ipfe in principio Regni sui leges justas libertates populo dedit chartâ consirmavit sigillo corroboravit p. 310. R. Hagulstadensis gave to the People their just Laws and Liberties confirming them with his Charter and his Seal Dunelmensis R. Hoveden Florence of Worcester W. of Malmesbury M. Paris and Henry of Knyghton say that on the very day of his †Qui consecrationis suae die legem Regis Edvardi omnibus in commune reddidit cum illis emendationibus quibus pater suus illam emendavit Dunelm p. 225 226. Hoveden p 1. F. 268. B. Flor. Wigorn. p. 650. W. Malmsbur F. 88. M. Paris p. 38. H. de Knyghton p. 2374. Consecration he granted to all his People the Laws of Edward with the emendations which his Father had made of them * Pag. 216. B. Chron. p. 997. Henry of Huntington and John Brompton say that having promised a desirable melioration of the Laws and Customs he was consecrated by Maurice Bishop of London M. Paris saith most expresly that †Henricus congregato Londoniis clero Angliae populo universo promisit emendationem legum quibus oppressa fuerat Anglia tempore patris sui fratris nuper defuncti ut animos omnium in sui promotionem accenderet amorem ut illum susciperent in Regem Patronum Ad haec clero respondente Magnatibus cunctis quod si animo volente ipsis vellet concedere chartâ suâ communire illas libertates consuetudines antiquas quae floruerunt in Regno tempore Sancti Regis Edwardi in ipsum consentirent in Regem unanimiter consecrarent Henrico autem hoc libenter annuente se id facturum cum juramento affirmante consecratus est in Regem apud Westmonasterium p. 38. Henry having assembled the Clergy and all the People of England that he might dispose their minds to the love and the promotion of him and the taking him for their King and Patron promised them the emendation of the Laws by which England had been oppressed in the time of his Brother and that all the Clergy and Nobility answered That if he would freely grant to them and confirm by his Charter those Liberties and ancient Customs which flourished in the time of King Edward they would unanimously consent to receive him for their King and that upon his Consent and Oath to do so he was created King at Westminster And when his Brother Robert came to challenge the Crown as his by right of Succession and the Concord made betwixt him and his Brother Rufus to animate his Subjects to stand by him he speaks thus to them * Ego vero Rex humilis pacificus vos in pace in antiquis vestris libertatibus prout crebrius jurejurando promisi gestio confovere omnia videlicet quae sanctus Rex Edvardus Deo inspirante providè sancivit inviolabiliter jubeo observari Ibid. p. 42. I your mild King am desirous to preserve you in your Ancient Liberties as I have often promised upon Oath And command all things to be inviolably observed which holy King Edward by the Inspiration of God advisedly established Steven succeeded him and he to get the Kingdom Meliorationem legum promisit juxta voluntatem arbitrium singulorum M. Paris p. 51. R. Hagulstad p. 314 315. Chron. Jo. Brompt p. 1024. Bonas leges antiquas justas consuetudines in Hundris Placitis aliis Causis observabo Rich. Hagulstad p. 314. Confirmavit Pacta quae Deo populo
with our whole Power non do we nor will we permit our Lord the King though he were willing to attempt things so unusual undue and prejudicial to the Royal Dignity and this was Sealed by 104 Earls and Barons in the name of all the Commonalty of England What they affirm touching their Oaths to defend their Laws is an unquestionable truth for besides what hath been noted of this kind allready in the twenty fifth year of this King it was established by Act of Parliament 25. Ed. 1. c. 3. 42. Ed. 3. c. 1. that if any Statute were made contrary to Magna Charta or Charta de Forestis it should be holden for none and the Nobles and the great Officers were sworn to the Observation of them Yea Speed p. 583. by the Royal Command of Henry the Third Oaths were taken to tye all men to the strict Observation of them SECT IV. That we find throughout the History of our Kings that their Election or else their Compact with the People hath generally been conceived a thing proper to strengthen their Title to the Crown or at the least to satisfie their People 4ly IT may be farther worthy of our consideration that we find throughout the History of our Kings that their Election or else their Compact with the people hath generally been looked on as a thing proper to strengthen their Title to the Crown or at the least to satisfie the People For instance First Dunelm p. 195. Hoved. E. 258. Ab omnibus tam Normannorum quam Anglorum Proceribus Rex est electus Gemit de Ducibus Norm l. 6. c. 37. Walsing Hypod. Neust p. 436. Of the Conqueror S. Dunelmensis and Hoveden inform us that Foedus pepigit he made a Covenant with the people Gulielmus Gemiticensis and Walsingham say that he was chosen King by all the Nobles of England and Normandy Secondly Daniel p. 52. Polyd. Virg. Hist l. 10. p. 164. William the Second held the possession of the Crown of England by the Will of the Kingdom the Succession in Right of Primogeniture being none of his Volentibus omnium provincialium animis in Regem acceptus M. Par. p. 10. Chron. Joh. Brompt p. 983 984. The Historians say that the Nobles met in Council at Westminster and after long Consultation made him King that by the willing minds of all he was accepted for their King and the King himself declares quod ipsum in Regem creaverant that they had created him King Thirdly Henry the First was invested in the Crown by the Act of the Kingdom The Historians tell us that a Council of the whole Community rejected Robert Unanimi ascensu suo ipsum refutavêrunt pro Rege omninò recusavêrunt Henricum fratrem in Regem ere êrunt Knyght de Event Angl. p. 2374. In Regem electus est frater ejus Henricus consecratus est Rex Angl. M. Westm Hist. p. 235. In Regem electus est aliquantis tamen controversiis inter Procéres excitatis Sopitis W. Malmsb. l. 5. F. 88. J. Brompt Chron. p. 997. Walsing Hypod. Neust p. 446. Rich. Hagulst p. 310. the eldest Son of the Conqueror and would not have him for their King but with unanimous consent they advanced his Brother Henry to the Kingdom who was by all Elected and Consecrated King at Westminster after the death of William Rufus as being the first born of the Conqueror after he was King of England William of Malmsbury saith he was Consecrated within four days after his Brother's death lest the Rumour of Robert's coming to England should move the Nobles to repent of their Election Sciatis me Dei misericordia communi consilio Baronum Regni Angliae ejusdem Regni Regem esse coronatum M. Paris pag. 38. And in his Charters the King himself writes thus Know you that I was Crowned King of England by the Common Council of the Barons of the Kingdom And 't is observable that his Elder Brother Robert being absent at the Holy Wars they chose Henry King because they were affraid to be long without Government Fourthly Florence of Worcester William of Malmsbury R. Hoveden and R. Hagulstadensis do expressly say that Stephen was chosen King by the Primates of the Kingdom A Primoribus Regni cum favore Cleri Populi electus R. Hagulst p. 312. Flor. Wigorn. p. 665. Hoved. F. 215. Malm sb F. 101. B. with the favour of the Clergy and Laity and that he took upon him the Kingdom with their General consent A scensu Populi Cleri in Regem electus Malmsb Hist Nov. l. 1. F. 101. B. R. Hagulst p. 314. and his own Charters say the same thing as they had reason to do he having no Title at all but as one of the Bloud by mere Election advanced to the Crown Daniel p. 69. Fifthly Radulphus de Diceto Ab omnibus electus p. 529. Saith of Henry the Second That he was Elected by all and annointed by Theobald Arch-Bishop of Canterbury Sixthly And of Richard the First he saith Post tum Cleri Populi Solennem debitam Electionem p. 647. That being to be promoted to be King by right of Succession after the solemn and due Election both of the Clergy and Laity he took a Threefold Oath Hoveden adds that he was Consecrated and Crowned King of England F. 374. consilio assensu by the Council and assent of the Arch-Bishops Bishops Counts and Barons Seventhly P. 127. Archiepiscopus dixit quod nullus praevia ratione alij succedere habet Regnum nisi ab universitate Regni unanimiter Spiritus Sancti invocata gratia electus secundùm morum eminentiam praeelectus omnes hoc acceptabant ipsumque Comitem in Regem eligentes assumentes exclamant dicentes Vivat Rex Matth. Paris p. 138. King John received the Crown by way of Election as being chosen by the States saith Daniel Matthew Paris saith That all consented to the Speech of the Arch-Bishop that none ought to Succeed another in the Kingdom unless he were elected by the Community and thereupon they elected the Count and took him for their King Eightly In Regem eligitur p. 474. The History of Croyland saith That after the death of King John Henry his first born was elected King Ninthly Non tam jure haereditario quam unanimi assensu Procerum Magnatum Edward Franc. An. 1602. p. 95. The Succession of Edward the Second saith Walsingam Was not so much by right of Inheritance as by the unanimous consent of the Peers and great Men. Tenthly Edward the Third was elected with the Vniversal consent of the People upon his Father's Resignation Walsing Hist Angl. p. 126. Hypod. Neust p. 508.509 H. de Knyghton p. 2550. The Parliament then met at London declared by common consent That Edward the Second was unworthy of the Crown and for many Causes to be deposed and that his first born Son Edward
should unanimously be chosen King then the Election is publickly declared in Westminster-hall some of both Houses are sent to Edward the Second qui nunciarent Electionem filij sui who should acquaint him with the Election of his Son and require him to resign the Crown Electioni consensit populus universus all the people consented to the Election so did all the Prelates and the Arch-Bishop who made an Oration on those words Vox populi vox Dei and exhorted all to pray for the King Elect. Eleventhly Richard the Second succeeded Edward by right of Succession H. de Knyght p. 2630. ac etiam voto communi singulorum and by the Common suffrage of all Twelfthly Henry the Fourth Fifth and Sixth were only Kings by Act of Parliament Thirteenthly Edward the Fourth at his entrance on the Government makes a solemn Declaration of his Right to the Crown of England challenging it to belong unto him by a double Right the first as Son and Heir to Richard Duke of York Trussel 179. the Rightfull Heir of the same the second as elected by the Authority of the Parliament upon King Henry's forfeit of it Fourteenthly The Parliament Roll published in Speed's Chronicle often saith p. 913 914. That they had chosen Richard the Third for their King and that the Crown belonged to him as well by Election as Succession Fifthteenthly And Henry the Seventh Bacon Hist of Hen. VII p. 12. to all his other Titles by Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament SECT V. That we find mention in History of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own confession had not the immediate Title to the Kingdom and only Proclaiming him who had the Right by Proximity of Bloud Heir Apparent to the Crown 5ly MOreover we read of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only Proclaiming him who had the Right by proximity of Bloud Heir apparent to the Crown For instance The Contest betwixt Robert the Eldest Son of the Conquerour Ad haec etiam inter se constituerunt ut si comes absque filio legali in Matrimonio genito moreretur haeres ejus esset Rex modoque per omnia simili si Regi contigisset mori haeres illius fieret Comes hanc conventionem 12 ex parte Regis 12 ex parte Comitis Barones Juramento firmaverunt Flor Wigorn. p. 644. and William Rufus his younger Brother ended thus That f Robert dyed without a Lawfull Son King William should be his Heir and if King William dyed without issue Robert should be his Heir and this was Sworn to by twelve Barons of each side In the contest betwixt the same Robert and his younger Brother Henry Principes M. Paris p. 40. Hen. Hunting F. 216. B. Joh. Bromp p. 998. the Princes say some of our Historians the wise men of our Kingdom say others Sapientiores utriusque partis Dunelm p. 226. Flor. Wigorn. p. 650. R. Hoveden F. 268. B. Daniel p. 61. made a Mutual and general League of Concord by their Pious and Wise Council That Henry the First Amiciutriusque foedus inter eos statuerunt sic quod Rex propter manifestum jus quod habuit ad Regnum possidendum Roberto singulis Annis tria millia Marcarum Argenti daret ab Anglia quis eorum diutius viveret Haeres esset alterius si absque filio moreretur M. Westm p. 236. Henr. Huntingd. Hist l. 7. F. 216. B. M. Par. p. 40. being invested with the Crown by Act of the Kingdom should enjoy the same during life and that by reason of the manifest Right which Robert had to the Kingdom Henry should pay him 3000 Marks yearly and that the longest liver should be Heir to the other if he died without a Son by which Acts if William Rufus or Henry had Sons they were to Reign though the manifest Right was in Robert and his Heirs And here it is observable Maxima pars Nobiliorum Normannorum favebat Roberto cupiens hunc sibi asciscere in Regem fratremque aut fratri tradere vivum aut Regno privare peremptum hujus execrandae rei principes extitêre Odo c. hoc execrabile factum clam tractaverunt in quadragesima Florent p. 642. Dunelm A. D. 1088. Hoved. par 1. F. 264 Radulph de Diceto p. 489. Proditores vocat H. Huntingd. Hist l. 7. F. 213. Perfides W. Malmsb. Hist l. 4. F. 68. Conjurationis perfidiae Socios Florent p. 643. Perjurij Reos Matth. Paris p. 10. that though the greatest part of the Nobles did upon some dislike to Rufus to whom they had sworn Allegiance favour his Brother Robert desiring to advance him to the Kingdom and to destroy William or deliver him alive to his Brother yet do all our Historians declare that they who sided with William were faithfull to their Earthly Lord and the other party were Traiterous Perfidious and Perjured Persons and that the thing it self was an excrable fact And in like manner they who stood for Henry against the same Robert L. 5. de Henr. primo F. 88. who had manifest right are said by W. of Malmsbury justas partes fovere to be of the right side and they who fought against him to be fidei Regi juratoe transfugoe violaters of their Oath and yet this Henry was advanced to the Throne not because he had Right during the life of his Elder Brother but because Robert being gone to the Wars at Jerusalem Quia ignorabant quid actum esset de Roberto fratre primogenito timuerunt diu sine Regimine vacillare Matth. Paris p. 38. they knew not what was become of him and were affraid to be long without Government But to proceed to other instances of this Nature from History In the contest between King Stephen and Henry Duke of Normandy the Son of the Empress Maud and the Right Heir of the Crown Theobald Arch-bishop of Canterbury and Henry Bishop of Winton Rich. Hagulst p. 330. H. Huntind l. 8. F. 228. Joh. Brompt Chron. p. 1037. Gervas Chron. p. 1375. Chron. de Mailros p. 167. made peace betwixt them upon these conditions That King Stephen from that time should entirely enjoy the Kingdom as lawfull Prince with the Glory and Honour of it and Henry should succeed him in the Kingdom as lawfull Heir This peace was thus made by the Counsel of the Wise Men and the intervention of the Nobles and Friends of both parties and was declar'd to be honest and profitable R. Stephanus Ducem Hen. cognovit in conventu Episcoporum aliorum Regni Optimatum quod jus Hereditarium in Regnum Angliae habebat Dux benignè concessit ut R. Stephanus tota vita
sua si velle Regnum pacifice possideret M. Paris p. 61 M. Westm p. 246. and saith M. Paris it was concluded in a publick Convention of the Bishops and Nobles of the Kingdom Fourthly Thus was it also in the Case of Richard Duke of York and Henry the Sixth for though Richard was the Right Heir to the Kingdom Quod Dux filij sui Edvardus Comes Marchiae Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum decreverat addendo de ipsius Regis consensu quod quamprimum Rex ipse in fata decesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Coryl Ed. Oxon. p. 550. yet the Parliament held A. D. 1460. decreed that Henry the Sixth should reign and be King during his Life and that the remainder should rest in Richard Duke of York and the lawfull Heirs of his Body in general tail SECT VI. The Inferences from the Resolutions of the best Casuists to prove that the Oath of Allegiance and of the Coronation are reciprocal and consequently that the obligation of the Oath of Allegiance doth cease when the Original Compact is Fundamentally violated NOw the Inferences which naturally flow from this Historical Account of the Kings of England and their Government are these First That the Kings of England were Kings by virtue of an Original Compact made between them and the People this is apparent by the Contract made by the Conquerour with the Barons and the Nobility and Commonalty of England and the so frequent repetition of that or a like Contract by the following Princes of this Realm by the Oaths they took at their Coronation to preserve to the People their Ancient Rights and Liberties their Original Customs and Laws and by the continual claim the people made to the Laws of their Country the Laws of King Edward and the Magna Charta as their Right Accordingly the Lord Chancellour Fortescue Chap. 9.13 having declared that our Kings are Political Kings who received their Power from the People he adds That Chap. 14. p. 34. non alio pacto by no other Contract did ever any Nation willingly incorporate it self into a Kingdom but that they by that means might more safely than before enjoy Themselves and their Goods of which intent that Nation would be defrauded if having thus submitted to the Government of a King he might spoil them of their Goods which before it was not Lawfull for any man to do Secondly That this Compact was That the King should govern them according to the Tenor of such Ancient Laws and Original Customes as were received among them according to the Good Approved and Ancient Laws of the Kingdom saith M. Paris the Liberties in which the Nobles confided saith M. of Westminster the Laws of their Country saith W. of Malmsbury the Laws of King Edward say the forementioned Authours the Proper Laws and Ancient Customs in which their Fathers lived say Hoveden Stat. Merton c. 9.25 H. 8. c. 21. and the Chronicle of Lichfield the Laws of England the Ancient Laws of this Realm originally established say our Statutes the Laws of the Land the good Laws of the Land saith the Oath of Richard the Second the Charters of the Liberties of England the Common Liberty say the contenders for them with King John and Henry the Third the fundamental Laws of the Kingdom saith King James Let it be observed First Out of Fortescue That our Kings rule not by Royal only Ch. 9. p. 25 26. Ch. 13. p. 32. that is Absolute but by Political Power and that therefore a King of England cannot change the Laws of the Body nor invade their Properties but as they do consent Ch. 13. p. 32. c. 14. p. 34. that he is advanced to the Throne for the safety of the Law and his Subjects in their Goods and Bodies and derives even this Power from the People and therefore cannot Lawfully Rule over them otherwise Secondly That this is the difference betwixt a King Governing Absolutely and by Political Power that the first can change the Laws of his Kingdom F. 25. B. 26. A. impose Taxes and other burthens without consent of his Subjects whereas a King who Rules Politically over his People can neither change the Laws without consent of his Subjects nor charge them with strange impositions against their Wills That a King ruling only by Power Royal may easily become a Tyrant but whilst the Kingly Power is restrained by the Political Law F. 26. B. he cannot govern his People Tyrannically That the Contract made with a King governing Absolutely F. 35. A. is that his Will shall be the Law whereas a Political King cannot govern his People by any other Power than that of the Laws And from these Principles it clearly follows That a King Ruling Arbitrarily and Fundamentally overturning the Laws is no such King as our Constitution knows or ever did admit of That therefore no Obedience or Allegiance can be due to him by Law nor be intended in any Legal Oath unless we can suppose men at the same time intended to preserve their Constitution and yet designed to engage themselves and others to be assistant to subvert it Thirdly Let us consider the Rules laid down by the exactest Casuists touching the Cases in which the obligation of an Oath ceaseth and apply them to the present Case Thus then they say First That when the Matter of an Oath ceaseth the Obligation of it ceaseth also and that the Matter of it must then be judged to cease Tunc enim cessasse materiam censendum est cum rerum status inter tempus jurandi tempus adimplendi ita immutatus est ut si quo tempore jurabatur praevideri potuisset is qui postea insecutus est rerum status non omnino juratum fuisset San. de Juramento Prael 7. § 7. when the state of things betwixt the time of Swearing and of fulfilling the Oath is so changed that if it could have been foreseen by him who took the Oath at the time of his Swearing he would not have taken the Oath When the Root of the Obligation is taken away Quia Radice obligation is sublatâ tollitur unà pullulans inde obligatio fuit autem materia quae causam dedit jurationi Radix ejus obligationis quae ex illa juratione insecuta est Ibid. the Obligation thence arising must be taken away with it now that which gave the ground for taking the Oath is the Root of the Obligation which followed upon the Oath Among the conditions which are de jure communi to be understood in all Oaths though they be not expressed this saith the Reverend Bishop Sanderson Subingtelligendum quarto rebus scstantibus i. e. si res in eodem statu
side they write Letters to all the Earls Barons and Knights who adhered to the King exhorting them with threats that as they loved the Indemnity of all their Goods Possessions deserting the perjured King they would adhere to them faithfully and stand immoveably with them fighting for the Liberties Miserunt literas ad comites Barones milites illos qui adhuc per Angliam Regi licet fide adhaerere videbantur exhortantes eos cum comminatione ut sicut omnium Rerum suarum possessionum indemnitatem diligebant Regem perjurum deserentes sibi fideliter adhaerentes simul cum eis pro libertatibus pace Regni immobiles starent efficaciter decertarent M. Paris p. 177. and stand immoveably with them fighting for the Liberties and Peace of the Kingdom Whereupon the King finding that he was not able to resist the strength of the Barons In ejus tempore fuerunt provisi Articuli M. Chartae ad communem profectum Regni p. 2424. without difficulty grants the Laws and Liberties they demanded and confirmed them by his Charter And thus it was as Henry of Knyghton saith that in his time were procured the Articles of Magna Charta to the common good of the Realm And when the King by the instigation of some Sons of Belial was again perswaded to fly from his Oath and Promise Quid faciemus de isto Rege iniquo si sic dimiserimus illum delebit nos populum nostrum expedit igitur ut deleatur à solio Regni sui nolumus enim de caetero eum regnare super nos Henr. de Knyght de Event Angl. p. 2423. the Barons spake thus to another What shall we do with this wicked King if we let him thus alone he will destroy us and our People it is expedient therefore that he should be expelled from the Throne we will not have him any longer to Reign over us And thereupon they send presently to Lewis the Son of the French King to come to their assistance promising him the City of London and their Allegiance to him And though the Pope sent his Bull by which he made void this Charter of the Liberties of the Kingdom of England and writ a threatning Letter to the Barons of England upon that affair Notwithstanding all his threats noluerunt desistere ab incaeptis M. Paris p. 186. the Barons would not desist from their Vndertakings but rising up still against him they vehemently annoyed him saying concerning the Pope that of the Prophet Wo to him that justifies the wicked And when the Pope proceeded to Excommunicate the Barons by name and in particular neither would the Barons observe Pag. 192. Insurrexerunt in eum Magnates duplici necessitate coacti eo quod noluit permittere leges Sancti Edwardi teneri sed omnia fecit in suo velle nec voluit legis formam obserware Henr. de Knyghton p. 2418. nor the Prelates publish the Excommunication And what the judgment of the generality of this Nation was of the whole War we may learn not only from the general engagement both of the Laity and Clergy in it but also from our own Historians for they inform us That our Nobles were forced to make this War out of a double necessity because he would not permit the Laws of St. Edward to be kept as formerly they were wont to be but did all things by his own will nor would observe the form of the Law but disinherited his Nobles without the judgment of their Peers To this effect I find according to the custom of those times a long Rhyme in the Chronicle of Mailros deploring the infelicity of this Affair That the Body should attempt to rule the Head and the People to be above their King but adding that there was a great and manifold necessity that it should be so seeing the King perverted all the good Customs of the Kingdom neither rightly managing Laws Rights or Subjects but making that to be Justice which was agreeable to his own will which moved them to swear they would not suffer this Tyranny of the King and to require the Deposition of him if he would not consent to the Reformation of the Law and to resign the Homage they had made till he would give them caution to preserve the Peace And the same Annals say the Barons only fought pro legibus pristinis restaurandis for Restauration of their ancient Laws And when the Earl of Pembroke made his Oration to the Assembled States in behalf of Henry the Third his Son he begins it thus * Speed p. 575. Albeit the Father of this Prince for his evil Demeaners hath worthily undergone our Persecution we ought of Duty and Conscience to obey his Son Ordinem praeposterum Anglia sancivit Mirum dictu dicitur tale quis audivit Nam praesse capiti corpus concupivit Regem suum regere populus quaesivit Causa tamen multiplex illud exigebat Nam Rex mores optimos Regni pervertebat Jura leges subditos recte non regebat Quicquid erat placitum summum jus credebat Proprios Indigenas nimis deprimebat Barbaros Rutarios illis praeponebat Haeredes legitimos obsides perdebat Quorum Adventitius terras possidebat Regis ad colloquium Milites citati Cautè sibi praecavent veniunt armati Jurant unanimiter jam se nolle pati Amplius Tyrannidem Regis tam ingrati Die primo veniunt juri parituri Rex venire distulit nolens stare juri Diem ponit alterum temporis futuri Nec venit sed veniunt ipsi coacturi Regis ergo postulant depositionem Legis nisi faciat emendationem Plenam exhibeat certam cautionem Pacis ad perpetuam conservationem Humagium quod fecerant reconsignaverunt Et Barones Militum causam susceperunt Leges tandem pristinas Regni sitientes Sed in Regem mittere manus non volentes Vide Reliqua p. 188. When Henry the Third made void the Charters of Liberties and of the Forest pretending they were granted whilst he was in duress and had not the power of his Body or of his Seal the People presently begin to murmur and the Barons siding with Richard Earl of Cornwal the Kings Brother with threats request him to do right to his Brother sharply denouncing to him that he should without delay restore the Charters to him sealed which he had cancelled at Oxford In eodem Concilio fecit Rex cancellare cassare omnes Chartas in provinciis omnibus Angliae de libertatibus Forestae hanc occasionem praetendens quod Chartae illae concessae fuerant libertates scriptae signatae dum ipse erat in custodia nec sui corporis aut sigilli aliquam habuit potestatem M. Paris p. 232. Sin autem ipsi illum gladiis discurrentibus compellerent ut sibi super his satisfaceret competenter M. Paris p. 233. and if he did not they would compel him by the Sword to make him competent satisfaction