away all the evil Counsellors which the King perceiving again betook himself to the Tower But an agreement being made with some of the Barons by the Queens mediation the King having left the Tower in the Custody of one in whom he confided went a progress and found his Barons very quiet and peaceable but he soon discover'd that he was resolv'd to act without regard to the Provisions at Oxford Violently seiz'd several Castles and coming to Winchester displaced the Chief Justice and Chancellor which had been constituted by the Baronage F. 1335. the Barons met him at Winchester with a considerable Force upon which the King hastens again to the Tower of London The Barons one would have thought were now in a fair way of securing the performance of the last Contract made at Oxford but now the Clergy had their Game to play and acted it like Men who knew how to manage the Nation against its interest they keeping a correspondence with the Clergy of France were Authors of advice to the Barons That all things in difference should be referred to the Determination of the French King no doubt making the Barons believe that they had assurance of that King 's good Wishes for the Prosperity of England Both the King and Barons agreed upon the reference upon which as was to be expected the French King gave Sentence for the King against the Barons and for annulling the Statutes at Oxford with all Provisions Ordinances and Obligations thereunto belonging With this Exception that he intended not by that Sentence in the least to derogate from the Ancient Charter of King John granted to the Kingdom of England Qui habebant sensus exercitatos Which Exception says the Historian oblig'd the Earl of Leicester and others of sound Judgments to resolve firmly to keep the Statutes of Oxford which were founded upon that Charter And Matthew Paris condemns those as guilty of Perjury who upon this A fidelitate Comitis Leicestriae receded from their Faith to the Earl of Leicester who fought for Justice He grew so strong and so successful that the King came again to Terms with him and with the other Barons the Terms were these Mat. Par. f. 1327. That Henry his Brothers Son should be deliver'd out of Prison That all the Kings Castles throughout England should be put into the Custody of the Barons That the Provisions of Oxford should be inviolably observed That all Foreigners shall depart the Kingdom within a certain time excepting only them whose stay should be permitted by unanimous Consent as being faithful to the Kingdom Mat. Par. But notwithstanding all Pacts Promises and Oaths the King sends to have Windsor-Castle besieg'd but was disappointed by the Earl of Leicester After this a Parliament met at London in which several deserted the Earl and adher'd to the King so that he seem'd the strongest The Barons writ him a Submissive Letter declaring That they had no evil Intentions against his Person but complain of his Counsellors The King in his Answer justifies his Counsellors and says their Enemies are his The Barons on the King's side send a defiance to the others and particularly to the Earl of Liecester and to Gilbert de Clare Earl of Glocester and Hereford undertaking to prove them Traytors in the King's Court. Which Tryal the Barons thought they then had Reason to decline but the Barons offer the King 30000 l. for his Damage sustained by the War 1329. provided the Statute of Oxford may be observed but their Proposals not being accepted they came to a pitch'd Battel at Lewis wherein the King was totally routed and taken Prisoner and his Son Edward soon after yielded himself Upon which followed a form of Peace solemnly sworn to while the King and his Son were in Prison Pat. 48. H. 3. m. 6. dors but the Son making his Escape took the Advantage of a Difference between the Earls of Leicester and Glocester Vide Cave de Scriptoribus Eccles f. 716. His Character of that Bp. who animated the Barons Vir erat ut pietatem vitae Sanctimoniam reliquasque virtutes Christiano Praesule dignas praetermittam ingentis animi acris ingenii in re literariâ quantum ea ferebant tempora ad summum pen̄e apicem evectus totum encyclopediae circulum emensus in literis sacris pariter prophanis c. and over-powering Montfort gained an entire Victory at Evesham by the Death of that Earl who as Matthew Paris's Continuator tells us laid out himself for the Relief of the Poor the Assertion of Justice and the Right of the Kingdom and was incited to it by the Famous Grosthead Bishop of Lincoln who always affirmed that they who died in that Cause would be Martyrs The King being victorious no wonder that a Parliament called immediately upon it at Winchester condemned the Conquered for Rebels but it is evident that more Parliaments justified such as then were Rebels for being beaten Falkner's Christian Loyalty p. 349. and methinks Mr. Falkner does not argue with his usual fairness when he urges the unfortunate conclusion of the Barons Wars in the later end of H. 3. as sufficient evidence that if we look into the Records of the former ages we may thence discern that no Subjects whatsoever of this Realm had under any pretence an authority to bear arms against the King The Dictum de Kenelworth 51 H. 3. mentioned by him as an evidence of the sense of another Parliament besides that of Winchester is plainly an abatement of the rigours of that Parliament and was only a determination and award made after Simon Montfort the younger Vid. Brady's Hist f. 655. had submitted to any terms that should be imposed saving his Life and Limbs and excepting perpetual Imprisonment Mr. Falkner adds Anno 52. P. 351. The Statute of Marlbridge mentions it as a great and heavy mischief and evil that in the time of the late Troubles in England many Peers and others refused to receive Justice from the King and his Court as they ought to have done which is more expresly contained in the Original Latin than in the common English Translation Justitiam indignati fuerint recipere per dominum Regem curiam suam prout debuerunt consueverunt and did undertake to vindicate their own Causes of themselves P. 352. Now to declare that all Peers and all other Persons ought to have received Justice only from the King and his Courts and not to revenge themselves or be Judges in their own cases doth more especially condemn the entring into War its self which is an Undertaking founded upon a direct contrary Proceeding And thus we have a sufficient Censure in our English Laws upon that War against the King which those who have pleaded for the Lawfulness of Subjects taking Arms do account the most plausible Instance for their purpose as our Chronicles can furnish them with Answer But to any who consider
Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the youngest Son of King William the First procur'd an Assembly of the Clergy and People of England to whom he made large promises of his good Government in case they would accept of him for their King and they agreeing That if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some Oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties pass'd the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Father Life-time to acknowledg her for their Sovereign after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the King's Brother to treat of the great and weighty Affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the King's Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3 d. died his Eldest Son Prince Edward was then in the Holy Land and came not Home till within the third Year of his Reign yet immediately upon the Father's Death all the Prelates and Nobles and four Knights for every Shire and four Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I inferr from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our Old Constitution Assemble together in a Parliamentary way without them to treat of and settle the Publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick Business whatsoever without a new Election they having as great Authority as the People of England can delegate to their Represantatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annull'd 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and Attainders thereupon were Repealed in a Parliament held Ann. 21. of that King which Parliament was procur'd by forc'd Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Parliament and those Persons were by the King's Writs to the Sheriffs commanded to be returned and yet they passed Acts and their Acts though never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd insomuch that it was debated in Queeen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential Considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authothority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the King 's Writ and yet they made Acts and the Royal Assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I Infer that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament ALLEGATIONS In behalf of the High and Mighty Princess THE LADY MARY NOW Queen of Scots Against the Opinions and Books set forth in the Part and Favour of the LADY KATHERINE And the rest of the Issues of the French Queen Touching the Succession of the Crown Written in the Time of QUEEN ELIZABETH London Printed by J. D. in the Year 1690. THE PUBLISHER TO THE READER I Thought it not improper to subjoin the following Treatise written by a Lawyer in Queen Elizabeth's Time whether ever printed or no I cannot say in favour of the Title of the Queen of Scots against the Pretences of the Lady Katherine descended from the
Therde But because this without consideration of his Merits in rescuing them from R. 2. entituled him to the Crown no more than another of the Blood therefore the Lords and Commons drew up an Instrument purporting their Election Ib. n. 55. 4. But admit none of the foregoing Arguments were enough to shew That upon James the second 's Abdication or at least losing his Interest in the Government the People of England were restor'd to that Liberty which they had before the Settlement of the Crown which was in force till the Original Contract was broken by him yet I conceive the particular Consideration of the state of the Settlement might afford sufficient Argument Brady's Hist of the Succession f. 25. Henry the Fourth Fifth and Sixth if we believe Dr. Brady held the Crown by Usurpation Yet the earliest Settlement of the Crown farther than the first Son or Grandson was in the time of H. 4. Nor as I shall shew was the Crown enjoyed by J. 2. under better Title than they had H. 5. and 6. came in under an Entail of the Crown 7 H. 4. Vid. Rot. Parl. 8 H. 4. n. 60. confirm'd 8. The misgovernment of H. 6. having given occasion to Richard Duke of York of the Blood-Royal and Elder-house to assert the Peoples Rights not his own Henry and the Duke with the Consent of the Lords and Commons come to an agreement in Parliament That Richard and his Heirs should enjoy the Crown after the Death of Henry Tho here the word Heirs is mentioned without restraint yet considering that it is the first time that ever the Crown was setled so far Gomezius de Qualitatibus Contractuum f. 319. Hottomanni Com. de Verbis Juris usus-fructus est jus alienis rebus utendi fruendi salvâ rerumsubstantiâ Emphyteusis I know not whether it is not to be taken with Gomezius his Restriction of an Usufructuary or Emphyteutical Estate of the last of which much of the same nature with the other he says If it did not use to be granted to more than the first second or third Heirs the mention of Heirs simply ought to be restrain'd to those only because the Nature or Quality of the thing granted ought to be attended to After the Death of Richard Duke of York his Son Edward the Fourth as I before observ'd took the Government upon him as forfeited by breach of the Covenant estabish'd in Parliament However Vid. sup H. 6. being set up again ten Years after gets that Settlement by which E. 4. was to have benefit to be revok'd and the Crown to be entail'd on his Issue the Remainder to the Duke of Clarence younger Son to the Duke of York Afterwards E. 4. having success 13 E. 4. revives the Settlement 39 H. 6. Only that he attaints H. 6. Rot. Parl. 1 H. 7. n 16. Vid. Append. H. 7. Son to Edmund Earl of Richmond Brother by Mother's Side to H. 6. with others of his Party Which Attainder was remov'd 1 H. 7. and declar'd contrary to due Allegiance and all due Order And not only the Attainder but that Act of Parliament it self was revok'd So that hitherto there had been no Title in the Heirs of Richard Duke of York or of Edward the Fourth but what was deriv'd under the Settlement of Henry 6. call'd an Usurper and Edward the Fourth's Treason depriv'd him of the Benefit even of that Settlement H. 7. Indeed married the eldest Daughter of E. 4. But before that Marriage having conquer'd Rich. 3. he claimed the Crown as his Words in Parliament were Tam per justum titulum haereditantiae Rot. Parl. 1 H. 7. Vid. Append quam per verum Dei judicium in tribuendo sibi Victoriam de inimico suo As well by just Title of Inheritance as by the true Judgment of God in giving him the Victory over his Enemy If it be ask'd how he could have a Right of Inheritance when the Daughter of E. 4. and his own Mother were alive Vid. Rot. Parl. 1 H. 7. n. 16. supra it seems in the Judgment of that Parliament That E. 4. having acted contrary to his Allegiance due to H. 6. he and his had lost the Benefit of the Settlement reviv'd by his successful Treason and that this was lost even before the Revival was destroy'd by Parliament And then tho' H. 7. could not come in without an Election yet he as H. 4. before might have a sort of Inheritance according to a very witty Author Vindiciae contra Tyrânnos Ed. Amstelodami p. 110. who speaking of the Kingdom of Israel says Concludere licet regnum Israelis si stir pem spectas haereditarium certè fuisse at sanè si personas omnino electivum We may conclude That the Kingdom of Israel if you look at the Stock was certainly Hereditary but if at the Persons altogether Elective Be this as it will the Lords and Commons so far regarded King Henry's Claim that they not only receiv'd him for King but it was enacted by the Authority of the then Parliament Rot. Parl. 1 H. 7. That the Crowns of the Realms of England and France should rest in him and the Heirs of his Body lawfully coming perpetually and in NONE OTHER When they had thus done the Commons requested the King to Marry Elizabeth Daughter to E. 4. that by God's Grace there might be Issue of the Stock of their Kings So that this was only to preserve the Royal Blood not to give any new Countenance or Confirmation to his Title H. 8. enjoy'd the Crown not as Heir to his Mother but under the Settlement upon H. 7. Nor can it be said that he was in by Remitter since that Act under which his Mother should have deriv'd was Repeal'd And had it stood in force yet it would not have made the Title more Sacred unless it can be shewn that the Mother had a Title prior to the Act of Settlement 39 H. 6. the contrary to which appears by the former Account from Law and History H. 8. procur'd several Settlements of the Crown according as Love or Jealousie prevail'd in him 25 H. 8. c. 22. In the 25th of his Reign 't was settled upon Himself and the Heirs Male of his Body lawfully begotten on Queen Anne c. declaring the Marriage with Queen Katherine unlawful Remainder to the Lady Elizabeth Remainder to his own Right Heirs 26 H. 8. c. 2. 28 H. 8. c. 7. 26 H. 8. an Oath was enjoyn'd for that purpose 28 H. 8. the two former Acts 25 26 are Repeal'd the Illegitimation of Mary Daughter to Queen Katherine is confirmed the like declared of Elizabeth Daughter to Queen Anne and the Crown entail'd upon his Heirs Males by Queen Jane or any other Wife Remainder to Heirs Females by that Queen or any other lawful Wife Remainder to such Person or Persons and according to such Estates as he should appoint by Letters Patent or by Will 35.
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
mention had ben made it is lykely that the Parliament wold never have consentyd or agreid thervnto as at the makinge of the same Statute yf eny had gone about to have pennyd it in this sorte that such shuld succeede and enjoye the Crowne as K. Henry either by his Letters Patentes or elles by his last Wyll signed with his most gracious Hand had namyd what Parsonnes soever they had ben although they were infamous madde impious or such other before rehearsed it is not lykely that in this maner or forme the Parliament wolde have allowed or passed such a Statute And that that is not lykely they wold have consentyd vnto by wordes in such sorte specially expressid It is not to be thought or understandid that such Persons shuld be capable and fit for that Callinge omni exceptione majores And it is playne and notoryous as is before-sayd that to be borne in Adultery or of eny other unlawfull sorte or matche is reputid and taken a Spotte and that a greate one not onely by the Lawes of Man but also by the Lawes of God (p) Sapien. 3 4. Deut. 2 3. and so unworthy and unfitte ar such to be thought capable of the Crowne that in all States where they use to gyve or graunte eny Seigniories Titles or Liberties in Fee as Baronyes Erleshippes Markeshippes and such other the Bastardes ar never thought worthy to be admittid unto the Succession although that they be made legitimate But they must specially be ablyd vnto the succession of the Fee by the Prince (q) Bartol Bald. in l. eam quam C. de fidei com And yf they cannot inherite or be capable of their Titles and Honours which ar not nor cannot be comparyd vnto a Royall Dignitie how shuld they be thought worthie or capable of a Crowne And that that is sayde of Bastardes is to be understandid also of those that pretendith the Succession as Heires of Bastardes And synce this Realme makith no lesse esteme of the Honour and Dignity of the same then eny other Nation doth of theires it is not lykely that specially they would graunt unto the Kinge Power or Authoryte to gyve or leve the Crowne to eny Person not legitimately borne or to their Children or to eny such Person upon whose Birth and Proceedinges there might growe such stryfe dispute or contention accordinge to the saying of Cesar and example of other a litle before remembryd And since it is not lykely that the Parliament wold haue condiscendid specially unto it it followith and we must conclude that such a Graunt cannot be comprehendid by general words But though he had Power or Authority to dispose of the Crowne to the Heires of the Lady Francys and the Lady Eleanor it is trewe yet notwithstandinge he could not do that but with the Condition and Forme that by Power of the Parliament was gyven him that is either by his Letters Patentes vnder the Greate Seale of England or ells by his last Will signed with his most Gratious Hande By Letters Patentes without doubt he hath not done it and so of the Will is the Controversy But beinge able to make a sufficient and perfect Will to all other intentes and purposes either in puttinge to his Hand or ells in not puttinge to his Hand yet yf the Kinge have made his Will without puttinge unto his Hand as ther be Wittnesses sufficient and some of those that subscribed the same Testament in that behalf can so truely and plainly testify that he hath as there is no such Cause left therfore either of such doubt or elles of such conferringe or comparinge the Prothocall with the Signe or Stampe as those that haue sette foorthe these Books wold seeme to make then it is playne and manifest that he hath not done it to this purpose accordinge to the forme and maner prescribed vnto him by the Statute And every Acte or Deede that is done without the Forme prescribed by Lawe is insufficient (r) L. 1. in pr. ff de stipula l. traditionibus C. de pac l. 1. C. de pred cur lib. 10. as well accordinge to th' Exposition and Rules of the Civill Lawe as ells by th' Exposition and Rules of the Common Lawe of this Realme for accordinge to the Civill Lawe it is playne and so taken though the Matters they entreate of be in favourable Causes yet the lacke of Forme is no wayes borne withall or excused (s) L. cum hi. §. si pretor ff de transa Bal. cons 324. volu 20. And much lesse heerin consideringe the Forme requyrid by the Statute is compiled with so meny greate goode important and probable Reasons For the Succession of the Crowne beinge a Cause of such greate weight and in which ther was so greate occasion to doubt so many hassardes of indirect or subtile dealinge they had goode cause to prescribe such a Maner and Forme to make the Will by as wherby they had least occasion to feare or suspect eny counterfetinge confuse or sinister behavour in the same And so accordinge to the Civill Lawe in that Testament that they call a Solempne Testament in the which there is required meny Circumstances yf eny of those do lacke the Testament or Will is of no force or valour (t) Justin de testa lege jube C. ibidem Besydes accordinge to the same Lawe all Statutes or Agreements made that takith away or correctith eny thinge of or from the Course or Body of the Lawe is reputed and taken as odious and ought to be taken strictly even accordinge to the Letter as the worde standith And this Statute wherof we now speake is such a One For wher the Succession of the Crowne shuld have gone whither the Common Lawe had apoynted or directid it as vnto the next by the Statute of 35 of Henry the Eighth K. Henry had Auctority to leve it to whome he lysted And therfore this Statute is to be interpretid strictly and precisely as the worde gyveth That is that Kinge Henry onely by his Letters Patentes vnder the Great Seale of England or elles by his last Wyll signed with his most gratious Hand might name whome he would to the Succession of the Crowne and not otherwyse And lykewise by the Common Lawe of this Realme the Statute is most plainly a direct abridgement of the same by reason it takith from the Common Lawe the naturall limitation of th' Inheritance of the Crowne and appointith it owte of the Rule of the Lawe to the Order and Limitation of Kinge Henry beinge in this respect authorized but as a private Person And it is in some degree a Penal Lawe for it takith the Title of a Kingedome from those that by the Common Lawe have a Right and makith in poynt of execution a Subject of a Prince and contrarywyse a Prince of a Subject which is not onely penall as hauinge respect to the losse of their Title to the Crowne yf it shuld
THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN In Two Parts In the First is shewn The ORIGINAL CONTRACT with its Legal Consequences allowed of in former Ages In the Second All the Pretences to a Conquest of this Nation by Will 1. are fully examin'd and refuted With a large Account of the Antiquity of the English Laws Tenures Honours and Courts for Legislature and Justice And an Explanation of material Entries in Dooms-day-Book By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power Errat siquis existimat tutum ibi esse Regem ubi nihil à Rege tutum est securitas securitate mutuâ paciscenda est Sen. London Printed by J. D. for the Author 1690. To the Right honble AUBREY DE VERE Earl of Oxford Baron of Bolebec Sandford and Badlesnere Lieutenant General of their Majesties Forces Colonel of the Royal Regiment of Horse-Guards Lord Lieutenant for their Majesties in the County of Essex Knight of the most honourable Order of the Garter and one of His Majesty's most honourable Privy-Council My LORD THEY who observe what License has been given as well as taken to blemish the Instruments under God and our King in the greatest Deliverance with the most immediate appearance of God in it perhaps of any next to that of his chosen People of old would think the Nature of things to be inverted Triumph to belong to the Conquer'd and the most desir'd Deliverance to be worse than the deprecated Bondage or to lose its Nature because it was the return of Prayers and Tears and not purchas'd by Rivers of Blood And after-times I have seen an exact Pedegree o◠the Earl's Family from Syford a noble Norman Gothick Extraction Vid. Pref. who was eminent under Rollo who Anno 912 obtain'd Normandy by Treaty with Charles the Simple and marrying his Daughter This Syford made the like bargain with Arald the first Earl of Flanders from which Marriage the Earls of Flanders and the Veres Earls of Guisnes in Flanders descended Alberic or Aubrey de Vere or Ver as he stands enter'd in Dooms-day Book is suppos'd to have come into England with W. 1. 'T is certain at the time of the great Survey he was a Proprietor in several Counties particularly in Essex and Humphrey the Son of Alberic had at that time several Mannors in Norfolk and Suffolk 'T is probable that this Son of Alberic dy'd in his Father's Life-time I should take the Comes Albericus who is enter'd in Dooms-day Book in several Counties as a Proprietor from before the reputed Conquest to have been Alberic de Ver and the rather because otherwise he and his Descendents from that time are wholly lost and besides no place in England can be found of which any Alberic or Aubrey was Earl till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford But before that time the Office of High Chamberlain belonged to the Family and as appears by Records which I have seen in the Tower was annex'd to their Barony But that of Bolebec belong'd not to it till about the time of King John when Earl Robert married the eldest Daughter of the Lord of Bolebec the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3 with the eldest Sister and Co-heir of Bartholomew Lord Badlesmere in which your Lordship 's Great Name will flourish taking root downwards as it has spread upwards to the first Ages will treat their Memories with Contempt who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship and the Followers of so bright an Example Selden Dissert ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus c. eminentissimus erat pristini planè commatis juris sine ullâ Caesarci intermixtione peritus atque exercitatissimus apud nos Albericus de Ver. Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmix'd English Laws than your Lordship is and will be to Posterity for your generous Defence of them Certain it is how much soever some pretend to passive Valour they cannot bear the Reproach of such extraordinary Vertue and are forced to shut their weak Eyes at that shining Bravery with which your Lordship strugled with the Flatteries and Threats of Fortune and of Power Becoming in the Language of the Heathen Philosopher a Spectacle most pleasing to the Gods the Effects of which Pleasure your Lordship has felt in the admir'd Tranquillity of your own Mind and in the Glory permitted you of being signally accessary towards the present Happiness of your Country not only by your resolute Vndertaking but even by your Sufferings I must own the Sufferings of others to have contributed to it by accident as those things may well be said to be which happen contrary to the intention of the Agent and nature of the Action But the Nation was glad to find their private Resentments and self-Defence to carry them along with the Publick Interest which some of them had sacrificed to low Ends or stupidly neglected being as unconcern'd at publick Calamities as if their former Exemptions which they seem'd to aim at had made them of another distinct Community Such as these deservedly lost the Credit of their share in this Revolution not only as they had drawn their Sufferings upon themselves and others by tempting those whom they flattered to make Experiment of the force of their Doctrine but as their subsequent Carriage has demonstrated upon what narrow Principles they engag'd not in the Cause of their Country but their Own Their lowness of Spirit makes them resemble those fawning Creatures whom the least Gentleness raises to Familiarity but notwithstanding the Advantages which they enjoy under this Government 't is not to be presum'd that they are given them otherwise than to reclaim and wean them from Notions as destructive as they are useless to this equal Administration They who now pretend to merit by transplanting the Doctrine of the Bow-string into the Service of this Government would do well to consider whether in the late Reign it really profited any but themselves and whether they kept to it any longer than while they found their account in it As it is our Happiness to have a King born and acting for the Good of Mankind it is not to be fear'd that he should cherish what is contrary to their common Sense and Interest or that he will countenance Reflections upon those noble Patriots who ventur'd every thing dear to them in the same Cause with himself while Success was doubtful and whose Reputations next to his own facilitated that Revolution for which late Posterity shall praise those of this Generation One would think that such a Cause should not stand in
TO proceed to the Reign of H. 3. who was Crown'd by a Faction at Glocester while Lewis was in possession of London the Metropolis of the Kingdom That he came not to the Crown as Successor in an Hereditary Monarchy but upon a plain Election and Compact with part of the Nation at least in the Name of the rest who would come in under those terms may be prov'd beyond contradiction For tho' in the Language of the Homilies King John were Natural Lord to the Subjects of England yet as Arthur who was the next in the Line to King John's Predecessor had the Right of Blood Mat. Par. f. 278. as far as that could operate before King John which he insisted on in the Fourth of that King's Reign even while he was his Prisoner the same right had Eleanor Arthur's Sister all the remainder of King John's time and for some years during the Reign of H. 3. 2. The Father came to the Crown by virtue of a Free Election of the People as the Archbishop of Canterbury told him at his Coronation wherefore his Election could not invest him with more than a Personal Right unless more were express'd at the time But the Archbishop Hubert Mat. Par. f. 264. 1 Johan Audite universi noverint discretio vestra quod nullus praevia ratione alii succedere habet in regnum nisi ab universitate regni unanimiter invocatâ spiritus gratiâ Electus secundum morum suorum eminentiam praeelectus who spake in the name of the Community was so far from giving the least Umbrage to a Right that might extend to Heirs that he affirm'd That no man is Intituled to succeed to the Crown upon any other account previous to the unanimous choice of the Kingdom except only the eminence of his Virtue And being afterwards ask'd why he took such freedom of Speech He declar'd That he foresaw and was assur'd by Ancient Prophecies That King John would corrupt the Kingdom and Crown of England and precipitate it into great confusion And he asserted That he ought to be minded of his coming to the Crown by * Ne haberet liberas habâ—nas hoc faciendi Election not by Hereditary Succession least he should take a liberty to act as he fear'd 3. Since therefore what the Archbishop fear'd came to pass and that Contract in virtue of which King John assum'd the Royal Scepter was notoriously broken How can it be thought that a Right devolv'd upon his Son H. 3. especially considering the interruption that was made by a Choice of Lewis tho' not Universal I must confess there is no Evidence occurring to me that Lewis was ever Crown'd here yet considering that the Coronation as is agreed by most is but a Ceremony the bare want of it would not the less argue a breach in the Succession since the sounder part of the people took the benefit of that Forfeiture which King John manifestly made and if nothing but an Universal Concurrence in this could justify withdrawing Allegiance from him then it is hardly possible for any resisting of Tyranny to be lawful at the begining and he who is forwardest in the Cause of his Country must be always a Criminal But being there is a deep silence as to Lewis his Coronation Mat. Par. Illico Coronandus tho he was promis'd by the Barons at London to be Crown'd immediately upon his coming over I take the reason of the silence in this matter to be That if he were Crown'd in form it was by the Laity alone because the Pope was fast to the side of King John and his Son and Lewis lay under a Papal Sentence of Excommunication so that the Clergy durst not Communicate with him in those Acts of Religious Worship which accompany Coronations But these Ceremonies being to be performed by Clergy-men 't is most probable that the Laity contented themselves with the Substance and left those Ceremonies for a more convenient time But that Lewis was in Possession of the Crown and the Regalia is to be believed as London with the Tower where they us'd to be lodg'd had not only been in the Possession of his Friends from the beginning but held so till the second Year after H. had been Crown'd as it is to be presum'd with a Crown made for that purpose Whether Lewis were Crown'd or no he was as fully received by them that had withdrawn their Allegiance from King John as if he had been Crown'd and reciprocal Oaths past between them And he was so far lookt on as King Mat. Par. that Alexander King of Scots swore Homage to him for the Lands he held of the Crown of England But certain it is as the Circumstances evince that there were at least three Express and Binding Contracts which H. 3. entred into with his People either beyond or rather explanatory of what is included in the Coronation-Oath and which H. 3. was bound to observe as he would be King of England and these besides several Confirmations of the Great Charter purchas'd with the Peoples Money and one of the Grants of Aid so particularly Conditional that Treasurers for it were appointed in Parliament and the Money was to be returned upon the King 's not performing the Conditions of the Grant 1. The First Contract which I shall observe was that which Lewis perhaps induc'd to it by the Money which he borrowed of the Londoners oblig'd H. to before he would quit his Pretensions So that one was plainly the Condition of the other and as the Civilians have it ran into the other by way of Mutual Consideration Vid. inf Lewis for the reasons which I before touch'd upon finding his Interest daily decline thought good to come to terms with Henry whereby Lewis oblig'd himself by Oath to withdraw from England Mat. Par. fol. 400. with all his Followers never to return and to use his endeavours that his Father might restore all the Rights of the Crown of England which he had seiz'd on beyond Sea In consideration of which Henry the Earl Marshal of England and the Pope's Legat F. 423. N a. Discord not Rebellion f. 431. swore to the restoring to the Barons of England and all others all their Rights and Liberties for which there had been Discord between King John and his Barons This Agreement with Lewis the Great Council of the Nation afterwards insisted on 7º H. 3. when they urg'd a Confirmation of the Great Charter which they obtain'd not till 9º of that King 2. The Second particular Contract was that of which the Great Council or Parliament 28º H. 3. mind him and of which they then after much strugling purchas'd a Confirmation According to this among other things 28 H. 3. referring to 20. f. 864. Four Great Men were to be chosen by Common Consent as Guardians of the Kingdom to be the standing Council about the King with a very large Trust reposed in them The Chancellor Treasurer and
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
King I shall refer to Krantius Krantii Hist particularly in the remarkable Story of their King Eric who was Adopted Son of the Three Kingdoms Anno 1411. he having provoked his People by countenancing the outrages of his Officers and Common Soldiers was opposed with Force by one Engelbert a Danish Nobleman transmitted down to posterity with the fair Character of engaging in the Publick Cause neither out of Love of Rule nor greediness of gain but meer compassion to an oppressed people This generous undertaking was so justly popular that Eric not able to stem the Tide withdrew from Denmark where he usually resided to Sweedland Engelbert's Noble Cause found so few opposers there that the King as a pattern to James 2. privately ran away and recommended his Nephew to succeed him But they told him plainly he was made King by Adoption Ib. f. 188. and had no Right to surrogate another Himself there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have received upon terms but he refusing the three Kingdoms unanimously chose one of another Family For the Authority of the people even in France Hottomanni Francogallia c. 23. insisted on no longer since then the time of Lewis 11. Hottoman gives a large proof in his Franco Gallia And I meet with an excellent Treatise of the French Government written originally in that Language by an eminent French Lawyer Claudius Sesellius soon after the death of Lewis 12. and dedicated to his Successour Francis 1. This Treatise the Learned German Sleidan Sleidani Dedicatio Ed. sexto Anno 1548. f. 263. Vid. Tres Gallicarum Rerum Scriptores Nobiliss A Johanne Sleidano e Gallico in Lat. Serm. convers Ed. Francofurti Anno 1578. turned into Latin and Dedicated it to our King E. 6. Sesel f. 268. Qui tutorio nomine Rempublicam procurant f. 269. Sesellius at that time looked upon France as an Hereditary Monarchy in which he admits that there may be great inconveniencies through the folly vice or minority of a Successour to a good Prince or the wickedness of those who execute the Government during his minority yet says he There are remedies at hand by which we may restrain a King Reigning Arbitrarily and them who have the care of one who cannot Govern for want of fit Age so that the King may have the Dignity which belongs to him and yet it may not be lawful for him to do what he pleases but what is agreeable to Law and Equity Provision is made for this by the best Laws and most Sacred Establishments which may not be violated without great hazard although sometimes force is offered to them He tells us their Kings have as it were three Bridles with which their Soveraign Power is restrained Sesellius f. 269. 1. Religion And if the awe of that is not sufficiently impressed upon him yet the reverence of some Holy Man may prevail it being allowable for any Bishop or other Ecclesiastical person of an unblameable life and in esteem with the people to admonish him of his Duty nor can he use any severities to his Admonisher without danger of alienating the affections of his people 2. The Jurisdiction of the Senate or Parliament whose Power he says Ut decretis ipsorum Rex quoque pareat Vid. Les Soupirs De la France Esclave Memoire 8. Histoire de l'origine du Parlement de Paris Sesellius f. 270. is such that even the King obeys its Decrees And yet when he wrote the Parliament of Paris the meer shadow of the Assembly of the States of the Kingdom and which in its institution was but a Committee chosen out of them had through the Artifice and Usurpation of their Kings driven out the substance 3. The Polity or Laws of the Kingdom which temper the Regal Authority this he says is greatly to the Honour of their Kings For if they could do every thing they would be much more imperfect And as it does not derogate from God Almighty that he cannot sin but his perfection is the more illustrious and to be admired for this very reason so Kings when they obey their Laws deserve the greater praise and come nigher to perfection than if they could command all things at their will and pleasure Sleidan in giving an account of Sesellius his Book to E. 6. says Sleidani Dedicatio ad E. 6. Although these things seem written in a peculiar manner in relation to the King of France yet they equally belong to all Kings For all Kings are Monarchs very few excepted And as they acknowledg no Power over them so they deserve great praise when they keep themselves within the bounds of those Laws with which they Govern their People And these are those Offices which he treats of as becoming a King and Prince Which if he neglects and thinks himself not to be obliged by any Law he loses in the eyes of good Men all Splendor Reputation and Glory and the very name of King A modern French Author Les Soupirs de la France Esclave Qui aspire apres la Liberte Ed. Anno 1690. Memoire 6. p. 82. who has with great diligence collected the Evidences of the Ancient Government of France supposes all the descendants from the old Germans as the Francs and we were to have had the same sort of Government and resemblance of Constitutions Among his several Arguments to refute the pretensions of the Court of France to Arbitrary Power one is Memoire 7. That nothing of great importance ought to be done within the Realm P. 97. but with the advice and consent of the Estates insomuch says he That the Government of France is rather Arstocratical than Monarchical or at least it is a Monarchy temper'd by an Aristocracy exactly such an one as England is The sum of his Authorities upon this Head he reduces to these particulars 1. ' The Estates of the Kingdom may Chuse and Depose their Kings Ib. p. 110. ' and by consequence may Judge them 2. ' They may Judge between the People and the King 3. ' They may Judge between King and King when more than ' one aspire and pretend to the Crown 4. ' They Determine the Differences which Kings have with their ' Subjects 5. ' They give Tutors to Kings and Regents to the Realm 6. ' They dispose of the great Offices of State 7. ' They make Ordinances which alone have the Force of Law ' within the Realm 8. ' They regulate the Affairs of Money 9. ' They appoint Impositions and Levies of Taxes 10. ' They are to be consulted upon all great Affairs 11. ' In fine They are of right to Correct all defaults of Government ' even those of which their Kings are Authors By all these particulars says he it appears Soupirs Mem 7. p. 110. that in some respects the States are superiour to the King for example when they chuse depose judge
and correct and that in other matters they share with the King in every part of the Soveraignty He adds If we have need of farther proof the name Parliament which all our Ancient Histories give the Assembly of States may furnish us with one This is the name which the English give this Assembly which partakes of the Soveraignty with their King The French and the Ancient Britains had the same Laws and the same Language they Governed themselves by States gave the same name to their Assemblies And without doubt they had the same Authority Nay it is certain that the States had formerly in France the same Power that the Parliaments have in England As this Author makes the Liberties of the English Nation and the Power of its Parliament an Argument of the Right of the French Nation Bodin who wrote after their Parliament at Paris had taken the place of the Assembly of States makes England a parallel to France Turky Persia Muscovy Bodin de Repub lib. 2. c. 4. ed. A Lyon p. 302. Ib. Cap. 3. p. 286. This was H. 2. for the absolute Soveraignty of their Princes but that he was little acquainted with the History of the Govenment of England appears in that he supposes that Henry who procured his Son to be Crowned in his life time to have been the Son of W. 1. Bodin p. 300. Even where a Prince is the most absolute he admits That if he Govern Tyrannically he may be lawfully killed by a Foreign Prince and that it is a noble and magnificent action for a Prince to take Arms to rescue a people unjustly oppressed by the cruelty of a Tyrant as did the Great Hercules who went about the World exterminating the Monsters of Tyrants and for his high exploits has been Deified So did Dion Timoleon Aratus and other generous Princes who have bore the Title of Chastisers and Correcters of Tyrants This says he was the sole cause for which Tamerlain Prince of the Tartars denounced War against Bajazet King of the Turks And when he Besieged Constantinople said he came to chastise his Tyranny and deliver his afflicted people And in fact he vanquished him in a pitch'd Battel in the Plain of Mount-Stellian and having killed and put to flight Three Hundred Thousand Turks he kept the Tyrant in a Golden-Cage till he died Ib. p. 301. And in such case it matters not whether the Virtuous Prince proceed against the Tyrant with Force or Art or way of Justice True it is if the Virtuous Prince has taken the Tyrant he will have more Honour if he make his Process and punish him as a Murderer or Parricide or Robber rather than to make use of the Law of Nations against him This passage in Bodin shews beyond contradiction That if he were now alive and not of the Romish Superstition he would have extolled and justified the Heroick undertaking of King William for the delivery of this Nation But the ground of the justification is That even the most absolute Soveraign may injure his Subjects as no doubt but he would if he treated them contrary to natural equity and his own established Laws Jovian p. 226. whereas the Author of Jovian having set up an Imperial Power above all Political Constitutions says In this Realm the Sovereign cannot wrong or injure his Subjects but contrary to the Political Laws And by consequence not at all if the Political Laws are to give way to the Imperial Wherefore I wonder not to find him a Subscriber to the late Bishop of Chichester's Paper which condemns Swearing Allegiance to our present King and Queen But Bodin as he justifies our King William in freeing us from an oppressing Monarch no less clears the Subjects of England in joyning with him upon supposition that the Constitution of our Government is not rightly understood by him Bodin p. 301. But says he as to Subjects we ought to know whether the Prince be absolutely Soveraign or whether he is not absolutely Soveraign For if he is not absolutely Soveraign it is necessary that the Soveraignty be in the people or in the Lords In this case there is no doubt but it is lawful to proceed against the Tyrant by way of Justice if we can prevail against him or by way of Deeds and Force if we cannot have Reason otherwise as the Senate did against Nero in one case and against Maximin in another so that the Roman Emperors were nothing else but Princes of the Common-wealth that is to say the First and Chief the Soveraignty remaining with the people and the Senate As I have shewn this Common-wealth may be called a Principality Altho Seneca speaking in the person of his Scholar Nero says I alone among all Men living am elected and chosen to be God's Vicegerent on Earth I am Arbiter of Life and Death I am able at my pleasure to dispose of the estate and quality of any Man True it is that in fact he usurped this Power but of right the State was but a Principality where the people were Soveraign As also is that of the Venetians who condemned to death their Duke Falier and put to death others without form or figure of Process Insomuch that Venice is an Aristocratical Principality where the Duke is but Cheif and the Soveraignty remains with the States of the Venetian Noblemen And in the like Case the German Empire which also is but an Aristocratical Principality where the Emperor is chief and first the Power and Majesty of the Empire belongs to the States who in the year 1296. deposed the Emperor Adolph and after him Wenceslaus in the year 1400. in form of justice as having jurisdiction and power over them How much soever Bodin was mistaken in relation to the Government of England he seems herein less a Stranger to that of the German Empire The Learned Conringius in his account of the German Judicatures Hermanni Conringii Excercit De Judiciis p. 251. tells us 't is difficult to give an account of them for some Ages next after the time of the Francs But beginning with the Causes of Kings themselves whom he shews according to Ancient Custom to have been subject to some jurisdiction upon the account of their Government The Causes says he Ib. p. 252. of their Kings belonging to the administration of the Government as anciently so afterwards were frequently agitated in the Great Councils of the Kingdom So the Emperor H. 4. was accused in a Great Council and by its Authority divested of his Royal Dignity The same befel Otto 4. and * This about the year 1251. No new Emperor was chosen till Anno 1273. after Twenty two years vacancy Prideaux Introd p. 245. Frederic 2. But says he Two things sometimes hapned much differing from the ancient Usage One is That the Power of the Council of all the States began to pass to the Electors only after Charles 4. Novo more The Duke of Bavaria made
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
of Foreign Princes That this was a Question in Q. Elizabeth's time appears by a Letter from Lethington Secretary of Scotland to Cecil Secretary to Q. Eliz. Appendix to Vol. 2. of the Hist of the Ref. f. 269. This appears farther from the Treatise at the end of the Appendix which seems to admit That the Right to the Crown would have been in the issue of the younger Daughter being born in England if the Birth had been without blemish since there was no means of being sufficiently inform'd of the Circumstances of the Birth neither the Common or any Statute-Law affording any Means of proving it as appears by the Statute 25 E. 3. which for the Children of Subjects only born out of the King's Allegiance in Cases wherein the Bishop has Conusance allows of a Certificate from the Bishop of the Place where the Land in question lies if the Mother pass'd the Seas by the King's License But if our Kings or Queens should upon any occasion be in Foreign Parts 't is to be presum'd that they would have with them a Retinue subject to our Laws who might attest the Birth of their Children and be punish'd if they swear falsly Stat. 25. E. 3. Wherefore 25 E. 3. 't is declar'd to be the Law of the Crown That the Children of the Kings of England ENFANTZ DES ROYS as the Record has it in whatever Parts they be born be able and ought to bear the Inheritance after the Death of their Ancestors Yet this is most likely to be meant of those private Inheritances which any of the Kings had being no part of the Demeasns of the Crown since the Inheritance of the Crown was not mentioned nor as has been shewn was it such as the King's Children were absolutely entitled to in their Order The most common acceptation of Children is of a Man's immediate Issue Vid. 1. Anderson f. 60 61. A Devise to the Wife after her Decease to the Children Vid. Wild 's C. 6. Rep. In Shelley 's C. 1. Rep. f. 103. A Gift to a Man semini suo or prolibus suis or liberis suis or exitibus suis or pueris suis de corpore As where Land is given to a Man and his Children Who can think any remote Descendants entitled to it Nor could it extend farther in the Settlement of a Crown 37 E. 3. c. 10. a Sumptuary Law was made providing for the Habits of Men according to their Ranks and of their Wives and Children ENFANTZ as in the former Statute of the same Reign Now altho' this should extend to Childrens Children born in the same House it could never take in the Children of Daughters Vid. Sir James Dalrimple's Institutions of the Laws of Scotland f. 52. forisfamiliated by Marriage nay nor to those of such Sons as were educated in a distinct Calling from their Parents Farther the very Statute of which the Question is cuts off the Descendants from Females out of the number of a King's Children when among other Children not of the Royal Family it makes a particular Provision for Henry Son of John Beaumond Vid. Dugdale 's Bar. 2. Vol. Beaumont who had been born beyond Sea and yet Henry was by the Mother's Side in the Fourth Degree from H. 3. for she was Daughter to Henry Earl of Lancaster Son of Edmund Son to H. 3. Had this Henry been counted among the Children of a King 't is certain there had not been a special Clause for him among other Children of Subjects Nor does the Civil Law differ from ours in this Matter for tho under the name of Children are comprehended not only those who are in our Power but all who are in their own either of the Female Sex or descending from Females yet the Daughters Children were always look'd on as out of the Grandfather's Family Just Inst lib. 1. tit 9. So Bracton l. 1. c. 9. Greg. Tholos Syntagma juris universi f. 206. Spiegelius tit Liberi Non procedere in privilegiis quae generaliter publicae utilitati derogant Vid. Antonii Perezi Inst Imperiales p. 21. Vid. Cujac ad tit de verborum significatione p. 147 230. according to the Rule in the Civil-Law transcribed by our Bracton They who are born of your Daughter are not in your power And Privileges derogating from Publick Vtility were never thought to reach them as a Learned Civilian has it A Daughter is the end of the Family in which she was born because the name of her Father's Family is not propogated by her And Cujacius makes this difference betweene Liberi and Liberi Sui Sui he says is a Legal Name the other Natural The former are only they who are in a Man's power or of his Family and Liberi strictly taken he will have to go no farther But in truth Considering the purview of the Statute which we are here upon Children in it seems to be restrain'd to Sons and Daughters without taking in the Descendants from either the occasion of the Law being the Births of several ENFANTZ in Foreign Parts which could be but Sons or Daughters to the immediate Parents whether Kings or Private Persons 3. But however this may be enough for my purpose That there is no colour of any Settlement in force but that 1 H. 7. And admitting that to have continued till J. 2. had broken the Original Contract yet that being broken the present Assembly of Lords and Commons had full as much Authority to declare for King WILLIAM and Queen MARY as the Parliament 1 H. 7. had to Settle the Crown For H. 7. could give them no Power but what he had received immediately from them Nor is it material to say He was Crown'd first since as I have shewn the Crown Confers no Power distinct from what is deriv'd either from an immediate or prior Choice But if there is reason from what I have shewn to believe that even the limitations in Henry VII th's Settlement were all long since spent then at least it is not to be doubted but the interest of J. II. being determined the People of England might lawfully and rightfully declare for King William and Queen Mary as being the most deserving of the Blood Royal which if they were free to do not to submit to be Gover'n'd by Their present Majesties would have been the highest Ingratitude that could be CHAP. X. The Fifth Head of Positive Law The effect of the Dissolution of the Contract The Vse of the Triennial-Act 16 Car. 1. against the necessity of Common Form The Form and proceedings of the Convention assembled upon the death of H. 3. The Dilemma used by the Formalists Answer'd with a Distinction Pufendorf's Answer to Hobbs Another passage of his applied to a passage in a late excellent Treatise against Sir Robert Filmer And to a Letter upon this Juncture Tho what Dr. Brady says against the Rights of Lords and Commons were true yet it is shewn that the Acts of
so happe as God forbidd but also it is so penall that if such ill Chaunce shuld unfortunately befall it makith Traytors of those that will clayme their Inheritance although their intent were but to try their Titles And it is a Learninge by the Common Lawes of England that longe hath ben so receyvid that in every such case as eny of these happen no Exposition is to be allowed but the Lawe willith us to cleve to the Letter without eny further wrestinge therof then the Letter naturally and strictly will reache unto So that if it be not a stricte observation of the Letter according to his natural entent in any of these cases the Common Lawe allowith it not And the rather the Lawe is precise herin for that it is a newe Statute which seldome ar taken by equite in eny point because they ar all pennyd at large As for Example I will remember one or twoe which may suffice to such as be Learnyd to search for other of lyke effect wherof ther ar not a few In Anno 1. of Kinge Edward the 6 th ther was a Statute made That if eny were condemnid for the stealinge of Horses and Mares they should lose their Clergy and because the words Horses and Mares were the plurall nombre it was taken not to extende to one Horse or to one Mare And so for that cause a new Statute was made Anno 2. of the same K. that made lyke Lawe for stealinge one Horse or one Mare And the chief cause of this was because it is a Penall Statute in takinge from a Man that wherby his Lyfe might be savid In K. Richard the 3 ds Tyme there was a Statute made to Auctorize Cest a que use to enter vpon his Feoffees and make Feoffementes And it was in question in Anno 9. of H. the 7 th yf he made a Letter of Atturney whether this were good by the Statute and lefte therfore a doubtfull question by reason the Statute gyveth auctoryte onely which must in all poyntes be observed And ther is a greate deale more coulour to make that Feoffement goode being by Letter of Atturney then to make this Will to this purpose goode not signed with the Kinges owne Hande For if eny other put his Hande therunto and not the Kinge himself then it is signed with an other Hande and not the Kinges Hande And yf I gyve Auctorytie to my Executors to sell my Landes and say no further then yf they sell the same by Wrytinge or without Wrytinge it is sufficient but if I adde these wordes That they shall sell my Landes so that they do it by Wrytinge signed with their proper Handes yf now they sell the same and th' one cause the Residue in all their presence to wryte all their Names as thoughe every one had severally subscrybed I hold it no question but this Sale is not good for they must pursue their Auctorytie strictlye and otherwyse it is of no effect And consyderinge as is partly before remembryd how greate a mater it was to committe such a Trust it were a greate lacke and slander to the whole Parliament to thinke that they wold condiscend to the committinge of so high and weightie a Confidence as wherof the whole Estate and Weale of the Realme shuld depend but that they did forsee that their doinges therein shuld not be blynded by a Wrytinge signed with a Stampe The same thing was urg'd by Lethington the Secretary of Scotland in a Letter to Sir Will. Cecil Appendix to the 2d Vol. of the Hist of the Ref. F. 269. which might be put vnto either when the Kinge was voyde of Memory or els when he was deceassid as indeed it after happenyd as most manifestly appeeryd by open declaration made in Parliament by the late L. Paget and others that King Henry did not signe it with his owne Hande as it is playne and probable inough by the Pardon obteynid for one William Clerke for puttinge the Stampe vnto the sayde Will after the Kinge was departid and who doubtith but yf his meaninge had ben such so to haue disposed of the Crowne but that he wold have put this mater out of doubte by signifyenge the same with his owne proper Hande And touchinge the two chief Examples that ar brought foorth the one of the 21 and 33 of K. H. th' Eight wherby K. H. was aucthorized to gyve his Royall Assent to Actes of Parliament by his Letters Patentes and so foorth and th' other for that Queene Mary omittyd the style that was apoyntid by Parliament in 35 of H. th' Eight in her Parliament Writts howe little they make to the matter every Man may judge For the Statutes of 21 and 33 of H. 8. were only made in affirmance of the Common Lawe and such a Royal Assent wold suffice by Letters Patents without eny assurance thereof by the Signe And this Statute was but to put such matter out of question for if the Common Law had ben such before there is no doubt but that he must haue signed every Patent with his proper Hande and so these Cases are no way lyke And touchinge the seconde yf the Statute that conteynith the King's Style be well consyderid there wold be made thereof no such Collection For the same apoyntith a punishment to such Subjects as of purpose depryve the K. of the Realm of that Stile But there is no doubt but the Writts that wantyd the Stile were in Lawe sufficyent and the Parties that made the same punishable So that these Examples cannot be wrestid to serve eny whit for the purpose And where ther is made a great mater by reason the Will was inrollid in the Chancery and Constats thereof made under the Broade Seale and the Legacyes thereof in all poyntes performyd To that may be answerd That all that is therein affirmed may easily be confessed and yet it proovith nothinge to th' intent applied for it was his Will is ever he condescendid thervnto though he did never signe it with his Stampe nor with his Hande and a goode and a perfect Will to all Entents and Purposes whereof he had by Common Lawe Authoritye to make his Will of But it is not or cannot be the more a perfect Will to this respect or purpose vnlesse he did execute the auctoritie apoyntid by the Statute of 35 of H. 8. as is before remembryd Since then the Duke had a Wyfe lyvinge when he maryd the Frenche Queene and by the Statute ther is nothinge to be Claymid onles K. Henry had passed eny things either by his Letters Patentes under the Broade Seal of Englande or ells by his last Will signed with his most gracious Hande And that it is trewe that he had a Wyfe lyvinge when he maryd the Frenche Queene that so if it were requisite or hereafter may be there mought be avouchid more then one with much other matter touchinge that poynt of Illegitimacion and Inhabilitie as well in
Tom. 4. f. 154. Resp circumscripta in integrum restituitur perinde ac pupillus vel adolescens Vid. Cic. de Legibus Salus populi Suprema Lex esto Inter Leges 12. Tabularum of which Tacitus says Accitis quae usquam egregia compositae duodecim Tabulae finis aequi juris Tacitus Ed. Plant. p. 90. and at liberty to renounce the obligations which it has entred into against its benefit which is the Supream Law But I shall stop their Mouths who object these Statutes and maintain That according to what themselves receive for Law the Parliaments which Enacted these Declarations had no power so to do and then the Law must stand as it did For this let us first hear Mr. Sheringham whose Authority few of these Men dispute They that lay the first foundation of a Commonwealth Sheringham of the King's Supremacy p. 41. have Authority to make Laws that cannot be altered by Posterity in the Matters that concern the Rights both of King and People For Foundations cannot be removed without the Ruin and Subversion of the whole Building Wherefore admit the Acts had been duely made according to him they would be void if the Fundamental Law were as I have shewn However I am sure I can irrefragably prove to them who will not have a Nation sav'd without strict form of Law That the Parliament which made those Acts had no Power at the time of making them being by the express words of a former Statute repealed Triennial Act 16 Car. 1. Nota There was no attempt to repeal this till 16 Car. 2. The Triennial Act 16 Car. 1. provides in a way not easily to be defeated not only for holding a Parliament once within three years at least but that all Parliaments which shall be Prorogued or Adjourned or so continued by Prorogation or Adjournment until the Tenth of September which shall be in the third year next after the last day of the last Meeting of the foregoing Parliament shall be thenceforth clearly and absolutely dissolved Now say I That Parliament which Enacted these Laws had sat beyond that time Ergo c. These were made in the Parliament next after the Convention which brought in the King Brook tit Commission N. 21. Ib. tit Officer n. 25. vid. Stat. 17. C. 1. Every thing or things done or to be done for the Adjournment Prorogueing or Dissolving of this Parliament contrary to this present Act shall be utterly void Anno 1647. Vid. Hist of the Civil-Wars f. 207. which they I am sure will not call a Parliament Wherefore we must go back to the first long Parliament which upon their own Rule Rex est caput finis Parliomenti was dissolv'd by the Death of C. 1. Anno 1648. notwithstanding the Act for making it perpetual which indeed by the words of it seems only to provide against any Act of the King to the contrary without their consent but by the Death of the King that Parliament lost the being which before it had as it was under him when it was Parliamentum nostrum the Parliament of Charles 1. and so expired Anno. 1648. by Act in Law And perhaps it s own breaking up in Confusion before was in Law an Adjournment sine die working a dissolution by either of which that Parliament was Dissolved more than three years before the meeting of that Parliament which made the Statute in question which Parliament Assembled Anno 1661. and was ipso facto dissolved when it attempted to make those Statutes it having been continued by Prorogation or Adjournment beyond the Tenth of September in the third year after the Dissolution of the last Parliament of Charles the first which was the next foregoing legal Parliament according to strict form For the Parliament which brought in Charles 2. Anno 1660. was not summoned by the King's Writs consequently the Parliament 1661. having according to them no power after it had continued as above whatever was the Ancient Law in this Matter remains as it did before those Laws If it be objected That the necessity of the times had dispensed with the Letter of the Triennial Act as to this Particular 1. They who would plead these Statutes cannot urge this since they will not allow of greater necessity to Authorize the Maintaining and Restoring the Constitution But surely however necessity might support our Laws it shall not such as alter the Constitution but every legal advantage shall be taken for restoring it 2. The necessity was not absolute for the first Parliament of Charles the Second might have continued together as long as they could sit without Prorogation or Adjournment and be good for a day at least time enough to have Repealed the former Statute as to that part and to qualify themselves for a longer continuance In short they with whom our Dispute is are either for the unalterableness of Fundamentals according to which what I have shewn remains notwithstanding all efforts to the contrary or else all of a sudden they have a mighty Zeal for the strict Letter of the Law by which that Parliament which endeavoured to alter the Fundamental Contract was ipso facto dissolved before such attempt However since the Question is not about a Coercive Power over Kings but barely concerning Allegiance to them Quum aufertur ratio juramenti juramentum cessat ratione eventus qui casus est eorum qui juraverunt se obedituros Domino aut Principi alicui qui postea cessat esse talis Amesius de Juramento lib. 4. c. 22. whenever he who was King ceases to be so either by the Act of God or the Law the Obligation of Allegiance necessarily determins as the subject matter of it fails But lest the Liberty allowed in extraordinary Cases be used as a Cloak for maliciousness I shall restrain it with the Authority of the Learned Pufendorf In Contracts by which one is made subject to Another Sam. Pufendorf de Interregnis p. 272. this has the Right of Judging what the Subject is to perform and has also a Power conferr'd of compelling him to performance if he refuses which Coercive Power is by no means reciprocal Wherefore he who Rules cannot be called in question for breaking his Contract Omnem Reipublicae curam abdicaverit dolo malo unless he either wholly Abdicate the Care of the Government or become of an Hostile mind towards his People or manifestly with evil Intention depart from those Rules of Governing upon observance of which as upon a Condition the Allegiance of the Subjects depends Which is very easie for any one who Governs always to shun if he will but consider that the highest of Mortals are not free from the Laws of Humane Chance But that the Judicial power of the people so qualified as above is not peculiar to England might appear by the Customs of most Neighbouring Nations For Denmark Sweedland and Norway which had anciently three distinct Negatives in the Choice of a