with our whole Power non do we nor will we permit our Lord the King though he were willing to attempt things so unusual undue and prejudicial to the Royal Dignity and this was Sealed by 104 Earls and Barons in the name of all the Commonalty of England What they affirm touching their Oaths to defend their Laws is an unquestionable truth for besides what hath been noted of this kind allready in the twenty fifth year of this King it was established by Act of Parliament 25. Ed. 1. c. 3. 42. Ed. 3. c. 1. that if any Statute were made contrary to Magna Charta or Charta de Forestis it should be holden for none and the Nobles and the great Officers were sworn to the Observation of them Yea Speed p. 583. by the Royal Command of Henry the Third Oaths were taken to tye all men to the strict Observation of them SECT IV. That we find throughout the History of our Kings that their Election or else their Compact with the People hath generally been conceived a thing proper to strengthen their Title to the Crown or at the least to satisfie their People 4ly IT may be farther worthy of our consideration that we find throughout the History of our Kings that their Election or else their Compact with the people hath generally been looked on as a thing proper to strengthen their Title to the Crown or at the least to satisfie the People For instance First Dunelm p. 195. Hoved. E. 258. Ab omnibus tam Normannorum quam Anglorum Proceribus Rex est electus Gemit de Ducibus Norm l. 6. c. 37. Walsing Hypod. Neust p. 436. Of the Conqueror S. Dunelmensis and Hoveden inform us that Foedus pepigit he made a Covenant with the people Gulielmus Gemiticensis and Walsingham say that he was chosen King by all the Nobles of England and Normandy Secondly Daniel p. 52. Polyd. Virg. Hist l. 10. p. 164. William the Second held the possession of the Crown of England by the Will of the Kingdom the Succession in Right of Primogeniture being none of his Volentibus omnium provincialium animis in Regem acceptus M. Par. p. 10. Chron. Joh. Brompt p. 983 984. The Historians say that the Nobles met in Council at Westminster and after long Consultation made him King that by the willing minds of all he was accepted for their King and the King himself declares quod ipsum in Regem creaverant that they had created him King Thirdly Henry the First was invested in the Crown by the Act of the Kingdom The Historians tell us that a Council of the whole Community rejected Robert Unanimi ascensu suo ipsum refutavêrunt pro Rege omninò recusavêrunt Henricum fratrem in Regem ere êrunt Knyght de Event Angl. p. 2374. In Regem electus est frater ejus Henricus consecratus est Rex Angl. M. Westm Hist. p. 235. In Regem electus est aliquantis tamen controversiis inter Procéres excitatis Sopitis W. Malmsb. l. 5. F. 88. J. Brompt Chron. p. 997. Walsing Hypod. Neust p. 446. Rich. Hagulst p. 310. the eldest Son of the Conqueror and would not have him for their King but with unanimous consent they advanced his Brother Henry to the Kingdom who was by all Elected and Consecrated King at Westminster after the death of William Rufus as being the first born of the Conqueror after he was King of England William of Malmsbury saith he was Consecrated within four days after his Brother's death lest the Rumour of Robert's coming to England should move the Nobles to repent of their Election Sciatis me Dei misericordia communi consilio Baronum Regni Angliae ejusdem Regni Regem esse coronatum M. Paris pag. 38. And in his Charters the King himself writes thus Know you that I was Crowned King of England by the Common Council of the Barons of the Kingdom And 't is observable that his Elder Brother Robert being absent at the Holy Wars they chose Henry King because they were affraid to be long without Government Fourthly Florence of Worcester William of Malmsbury R. Hoveden and R. Hagulstadensis do expressly say that Stephen was chosen King by the Primates of the Kingdom A Primoribus Regni cum favore Cleri Populi electus R. Hagulst p. 312. Flor. Wigorn. p. 665. Hoved. F. 215. Malm sb F. 101. B. with the favour of the Clergy and Laity and that he took upon him the Kingdom with their General consent A scensu Populi Cleri in Regem electus Malmsb Hist Nov. l. 1. F. 101. B. R. Hagulst p. 314. and his own Charters say the same thing as they had reason to do he having no Title at all but as one of the Bloud by mere Election advanced to the Crown Daniel p. 69. Fifthly Radulphus de Diceto Ab omnibus electus p. 529. Saith of Henry the Second That he was Elected by all and annointed by Theobald Arch-Bishop of Canterbury Sixthly And of Richard the First he saith Post tum Cleri Populi Solennem debitam Electionem p. 647. That being to be promoted to be King by right of Succession after the solemn and due Election both of the Clergy and Laity he took a Threefold Oath Hoveden adds that he was Consecrated and Crowned King of England F. 374. consilio assensu by the Council and assent of the Arch-Bishops Bishops Counts and Barons Seventhly P. 127. Archiepiscopus dixit quod nullus praevia ratione alij succedere habet Regnum nisi ab universitate Regni unanimiter Spiritus Sancti invocata gratia electus secundùm morum eminentiam praeelectus omnes hoc acceptabant ipsumque Comitem in Regem eligentes assumentes exclamant dicentes Vivat Rex Matth. Paris p. 138. King John received the Crown by way of Election as being chosen by the States saith Daniel Matthew Paris saith That all consented to the Speech of the Arch-Bishop that none ought to Succeed another in the Kingdom unless he were elected by the Community and thereupon they elected the Count and took him for their King Eightly In Regem eligitur p. 474. The History of Croyland saith That after the death of King John Henry his first born was elected King Ninthly Non tam jure haereditario quam unanimi assensu Procerum Magnatum Edward Franc. An. 1602. p. 95. The Succession of Edward the Second saith Walsingam Was not so much by right of Inheritance as by the unanimous consent of the Peers and great Men. Tenthly Edward the Third was elected with the Vniversal consent of the People upon his Father's Resignation Walsing Hist Angl. p. 126. Hypod. Neust p. 508.509 H. de Knyghton p. 2550. The Parliament then met at London declared by common consent That Edward the Second was unworthy of the Crown and for many Causes to be deposed and that his first born Son Edward
Books lately printed for Awnsham Churchil THe late Lord Russel's Case written by the Right Honourable Henry Lord de la Mere. fol. An Historical Account of making the Penal Laws by the Papists against the Protestants and by the Protestants against the Papists By Sa. Blackerby Esq Obedience due to the Present King notwithstanding our Oaths to the Former Written by a Divine of the Church of England 4 to A modest Enquiry Whether St. Peter was ever at Rome and Rishop of that Church 4o. The Spirit of France and the Politick Maxims of Lewis XIV laid open to the World 4o. Memorials of the Manner of Proceedings in Parliament in Passing Bills 8o. Dr. Burnet's Travels Several Tracts in two Volumes 12o. A Collection of Texts of Scripture with short Notes upon them And some other Observations against the Principal Popish Errors 12o Dr. Daniel Whithy's Treatise of Worship of Images Of Communion in one kind His Treatise of Tradition in two parts His Consideration for taking the Oaths to King William and Queen Mary Dr. Worthington of the Resurtection 8o. Mr. Masters of Submission to Divine Providence 8o. Foxes and Firebrands 8o. 1st 2d and 3d. Parts Mr. Bold's Sermon on occasion of the Brief for Irish Protestants An Answer to Bishop Lake's late of Chester Declaration of his dying in belief of the Doctrine of Passive Obedience c. Sir William Temple's Observations on Holland 8o Miscellania 8o Dr. Carswel's Assize-Sermon at Abingdon August 6. 1689. Mr. Selden's Table-Talk 4to A List of the present Parliament Lords and Commons Present Case stated about Allegiance to King William and Queen Mary Debates of the late Oxon and Westminster Parliaments 8o Monsieur Jurieu's Accomplishment of Scripture-Prophecies compleat 8o New System of the Revelations 12o Voyage to Siam 8o A Letter concerning Toleration humbly submitted 4o stitcht Agreement between the present and former Government 4o 153 Chymical Apborisms By a Country Hermite 12o Reflections in Vindication of one Archdeacon from the scurrilous and groundless Invectives against him A Letter to the Author of 200 Queries concerning the Revolution of human Souls Abridgment of all the Tryals in the two late Reigns 8o Two Treatises of Government In the former the false Principles of Sir R. Filmer and his party are detected and overthrown The latter is a Essay concerning the true Original Extract and End of Civil Government A Letter to a Member of Parliament occasioned by a Letter to a Member of the House of Commons concerning the Bishops lately in the Tower and now under Suspension An Historical ACCOUNT OF SOME THINGS Relating to the Nature of the English Government AND THE CONCEPTIONS Which our Fore-fathers had of it With some Inferences thence made for the satisfaction of those who scruple the Oath of Allegiance to KING WILLIAM and QUEEN MARY LICENS'D Decemb. 19. 1689. J. FRASER LONDON Printed for Awnsham Churchill at the Black Swan in Ave-Mary Lane MDCXC THE PREFACE I Would not have the Reader think that I approve of every thing related in this Historical Account That which I think my self concerned to make good is this 1. That what I do relate as History is Historically true or that it is delivered without fraud or wilful perversion of the Authors cited 2. That what I lay as the Foundation of my Inferences is sufficiently confirmed by what I have delivered in this History That may perhaps be useful for many other ends relating to our Late happy Change but they are obvious in themselves and were not chiefly designed by me and therefore are not mentioned here Farewell THE CONTETNS SECTION I. THAT from the Norman Conquest to this present time there was an Original Compact or Establishment of Laws by which the Kings of England were to Govern and the People to be governed Page 1 Sect. II. That they thought it absolutely necessary that whosoever would be their King should make this Compact with them and be as much obliged by Oath to grant these Priviledges to them as they were to swear Allegiance to him p. 6 Sect. III. That when the ancient Laws of their Country were wholly violated they constantly complain'd of the Injustice of the Action required the observation of them and when they could not prevail by fair means they sought to recover their Right by Arms. Where an account is given of the Barons Wars for the preserving of the Magna Charta and the Charta de Forestis p. 14 Sect. IV. That we find throughout the History of our Kings that their Election or else their Compact with the People hath generally been conceived a thing proper to strenghen their Title to the Crown or at the least to satisfie their People p. 35 Sect. V. That we find mention in History of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own confession had not the immediate Title to the Kingdom and only proclaiming him who had the Right by Proximity of Blood Heir Apparent to the Crown p. 40 Sect. VI. The Inferences from the Resolutions of the best Casuists to prove that the Oath of Allegiance and of the Coronation are reciprocal and consequently that the obligation of the Oath of Allegiance doth cease when the Original Compact is Fundamentally violated p. 43 AN HISTORICAL ACCOUNT OF THE ENGLISH GOVERNMENT SECTION I. That from the Norman Conquest to this present time there was an Original Compact or Establishment of Laws by which the Kings of England were to Govern and the People to be governed I Am apt to think it may be want of due consideration of the History and Constitution of our Government which makes some worthy Persons of the Clergy so stiff in their refusal of the Oath of Allegiance to King William and Queen Mary Now the great mischief which this unhappy Division may bring upon the Protestant Religion both at home and abroad and the vile Imputations which are cast on that great Body of the Clergy which hath taken this Oath will justifie our Endeavours to set this matter before them in the clearest light and to let others know what hath been done by our Fore-fathers to secure their Laws and Liberties what Compacts they made with their Kings how uneasie they were under the Violation of them and what Conceptions they had touching the Nature and Constitution of the English Government and touching the Allegiance due to their Prince Now in order to these things let it be observed First Ubi Aldredus Archiepiscopus Wulfunus Wigorniensis Episcopus Clito Eadgerus Comites Eadwinus Morcarus de Lundoniâ quique Nobiliores cum multis aliis ad eum venerant datis obsidibus illi deditionem fecerunt fidelitatemque juraverunt cum quibus ipse foedus pepigit Dunelm p. 195. Flor. Wig p. 635. R. Hov. F. 258. That Florence of Worcester Simeon of Durham and R. Hoveden expresly say That William called the Conqueror made a League or Compact
side they write Letters to all the Earls Barons and Knights who adhered to the King exhorting them with threats that as they loved the Indemnity of all their Goods Possessions deserting the perjured King they would adhere to them faithfully and stand immoveably with them fighting for the Liberties Miserunt literas ad comites Barones milites illos qui adhuc per Angliam Regi licet fide adhaerere videbantur exhortantes eos cum comminatione ut sicut omnium Rerum suarum possessionum indemnitatem diligebant Regem perjurum deserentes sibi fideliter adhaerentes simul cum eis pro libertatibus pace Regni immobiles starent efficaciter decertarent M. Paris p. 177. and stand immoveably with them fighting for the Liberties and Peace of the Kingdom Whereupon the King finding that he was not able to resist the strength of the Barons In ejus tempore fuerunt provisi Articuli M. Chartae ad communem profectum Regni p. 2424. without difficulty grants the Laws and Liberties they demanded and confirmed them by his Charter And thus it was as Henry of Knyghton saith that in his time were procured the Articles of Magna Charta to the common good of the Realm And when the King by the instigation of some Sons of Belial was again perswaded to fly from his Oath and Promise Quid faciemus de isto Rege iniquo si sic dimiserimus illum delebit nos populum nostrum expedit igitur ut deleatur à solio Regni sui nolumus enim de caetero eum regnare super nos Henr. de Knyght de Event Angl. p. 2423. the Barons spake thus to another What shall we do with this wicked King if we let him thus alone he will destroy us and our People it is expedient therefore that he should be expelled from the Throne we will not have him any longer to Reign over us And thereupon they send presently to Lewis the Son of the French King to come to their assistance promising him the City of London and their Allegiance to him And though the Pope sent his Bull by which he made void this Charter of the Liberties of the Kingdom of England and writ a threatning Letter to the Barons of England upon that affair Notwithstanding all his threats noluerunt desistere ab incaeptis M. Paris p. 186. the Barons would not desist from their Vndertakings but rising up still against him they vehemently annoyed him saying concerning the Pope that of the Prophet Wo to him that justifies the wicked And when the Pope proceeded to Excommunicate the Barons by name and in particular neither would the Barons observe Pag. 192. Insurrexerunt in eum Magnates duplici necessitate coacti eo quod noluit permittere leges Sancti Edwardi teneri sed omnia fecit in suo velle nec voluit legis formam obserware Henr. de Knyghton p. 2418. nor the Prelates publish the Excommunication And what the judgment of the generality of this Nation was of the whole War we may learn not only from the general engagement both of the Laity and Clergy in it but also from our own Historians for they inform us That our Nobles were forced to make this War out of a double necessity because he would not permit the Laws of St. Edward to be kept as formerly they were wont to be but did all things by his own will nor would observe the form of the Law but disinherited his Nobles without the judgment of their Peers To this effect I find according to the custom of those times a long Rhyme in the Chronicle of Mailros deploring the infelicity of this Affair That the Body should attempt to rule the Head and the People to be above their King but adding that there was a great and manifold necessity that it should be so seeing the King perverted all the good Customs of the Kingdom neither rightly managing Laws Rights or Subjects but making that to be Justice which was agreeable to his own will which moved them to swear they would not suffer this Tyranny of the King and to require the Deposition of him if he would not consent to the Reformation of the Law and to resign the Homage they had made till he would give them caution to preserve the Peace And the same Annals say the Barons only fought pro legibus pristinis restaurandis for Restauration of their ancient Laws And when the Earl of Pembroke made his Oration to the Assembled States in behalf of Henry the Third his Son he begins it thus * Speed p. 575. Albeit the Father of this Prince for his evil Demeaners hath worthily undergone our Persecution we ought of Duty and Conscience to obey his Son Ordinem praeposterum Anglia sancivit Mirum dictu dicitur tale quis audivit Nam praesse capiti corpus concupivit Regem suum regere populus quaesivit Causa tamen multiplex illud exigebat Nam Rex mores optimos Regni pervertebat Jura leges subditos recte non regebat Quicquid erat placitum summum jus credebat Proprios Indigenas nimis deprimebat Barbaros Rutarios illis praeponebat Haeredes legitimos obsides perdebat Quorum Adventitius terras possidebat Regis ad colloquium Milites citati Cautè sibi praecavent veniunt armati Jurant unanimiter jam se nolle pati Amplius Tyrannidem Regis tam ingrati Die primo veniunt juri parituri Rex venire distulit nolens stare juri Diem ponit alterum temporis futuri Nec venit sed veniunt ipsi coacturi Regis ergo postulant depositionem Legis nisi faciat emendationem Plenam exhibeat certam cautionem Pacis ad perpetuam conservationem Humagium quod fecerant reconsignaverunt Et Barones Militum causam susceperunt Leges tandem pristinas Regni sitientes Sed in Regem mittere manus non volentes Vide Reliqua p. 188. When Henry the Third made void the Charters of Liberties and of the Forest pretending they were granted whilst he was in duress and had not the power of his Body or of his Seal the People presently begin to murmur and the Barons siding with Richard Earl of Cornwal the Kings Brother with threats request him to do right to his Brother sharply denouncing to him that he should without delay restore the Charters to him sealed which he had cancelled at Oxford In eodem Concilio fecit Rex cancellare cassare omnes Chartas in provinciis omnibus Angliae de libertatibus Forestae hanc occasionem praetendens quod Chartae illae concessae fuerant libertates scriptae signatae dum ipse erat in custodia nec sui corporis aut sigilli aliquam habuit potestatem M. Paris p. 232. Sin autem ipsi illum gladiis discurrentibus compellerent ut sibi super his satisfaceret competenter M. Paris p. 233. and if he did not they would compel him by the Sword to make him competent satisfaction
with the Arch-Bishops Bishops Earls and Nobles of the Land who met him at Beorcham Secondly That the aforesaid Authors with John Brompton Daniel p. 36. declare That as the Bishops and Barons of the Realm swore Fealty to him Ipso Nativitatis die ab Aldredo Eboracensium Archiepiscopo in Westmonasterio consecratus est honorificè prius ut idem Archipraesul ab eo exigebat ante Altare Sancti Petri-Apostoli coram Clero populo jurejurando promittens se velle Dei Sanctas Ecclesias earum Rectores defendere necnon cunctum populum sibi subjectum justè Regali providentiâ verè regere rectam legem statuere tenere c. Flor. Wigorn. p. 634 635. Dunelm p. 195. Hoved F. 258. Chron. Joh. Brompt p. 962. so he reciprocally being required so to do by the Arch-Bishop of York made his Personal Oath before the Altar of St. Peter to defend the Holy Church of God and the Rectors of the same to govern all the People subject to him justly to establish equal Laws and to see-them duly executed And when new Commotions were made by the Nobility and Clergy upon their Submission and Oath of Allegiance re-taken he himself takes his Personal Oath again before Archbishop Lanfranc Daniel p. 37. and the Lords for the good of Peace to observe the Ancient Laws of the Realm Occurrerunt igitur Angli memorati ubi post multas disceprationes praesente Archiepiscopo Lanfranco Rex pro bono pacis juravit tactis Sacro-sanctis Evangeliis bonas approbatas antiquas Regni leges quas Sancti Pii Angliae Reges ejus Antècessores maximè Edvardus statuit inviolabiliter observare sic pacificati ad propria laeti recesserunt M. Paris in vitâ 23. Monach. p. 30. established by his Predecessors the Kings of England and especially of Edward the Confessor and this so pacified the English that they went joyfully to their own homes Thirdly Matthew of Westminster saith Et sic revocatis multis Anglorum Nobilibus foedere cautius cum omnibus confirmato Eboracum ubi fuit Danorum receptaculum potenter cum ibi inventis expugnavit A. D. 1069. That when the two Sons of Swain came into England to fight against it the Conqueror recalling many of the English Nobles made a League with them and by their Aid he overcame the Danes And that this League contained the Grant of their Rights and Liberties or the Laws of their Country is evident from what follows in the same Historian viz. That the Conqueror being thus secured in many things violated his promises taking from the Churches and Monasteries in which they lay the Charters in which the Nobles of England confided Jam factus securior in multis promissa violavit Monasteria totius Angliae perscrutari fecit pecuniam simul cum Chartis in quarum libertatibus Nobiles Angliae-confidebant quas Rex in arcto positus observaturum se juraverat ab Ecclesiis ubi in securo positae erant auferri praecepit violenter Ibid. p. 226. and to which he had sworn when he was in straits Fourthly R. Hagulstadensis S. Dunelmensis R. Hoveden M. Paris Henry of Knyghton and W. of Malmsbury inform us That Henry the first granted to all the People the Laws of Edward with the emendations which his Father had made of them strengthning them with his own Oath Legem R. Edvardi vobis reddo cum aliis emendationibus quibus pater meus eas emendavit consilio Baronum suorum R. Hagulst p. 311. Dunelm p. 225 226. Hoved. par 1. p. 268. M. Paris p. 38. Henr. de Knyght p. 2374. Malms l. 5. F. 88. Hoc quoque praecipimus ut omnes habeant teneant legem Edvardi Regis in omnibus rebus adauctis iis quas constituimus ad utilitatem Anglorum Apud Seld. Annot. ad Eadm p. 192. and the Oath of all his Nobles that they might not be eluded And W. Lambard cites this as one of the Laws of W. the Conqueror This also we command That all Men have and keep the Law of King Edward with the additions we have made to them for the benefit of the English Men. Fifthly Postea ad preces communitatis Anglorum Rex adquievit qui deprecati sunt quatenus permitteret sibi leges proprias consuetudines antiquas habere in quibus vixerant patres eorum ipsi in iis nati nutriti sunt sc leges Sancti Edvardi ex illo die magna Authoritate veneratae per universum Regnum corroboratae conservatae sunt prae caeteris Regni legibus leges R. Edvardi Chron. Eccl. Lichfield apud Seld. ibid. p. 171. The Chronicle of Lichfield doth inform us That the whole Community of England sued to the Conqueror that he would permit them to have the proper Laws and ancient Customs in which their Fathers had lived and under which they were born and educated viz. The Laws of St. Edward And that the King consented to their Petition Sixthly Attuli mecum de Londoniis leges aequissimi R. Edvardi quas dominus meus Rex W. Authenticas esse perpetuas per totum Regnum Angliae inviolabiliter observandas sub poenis gravissimis proclamârat suis justitiariis commendârat p. 88. Ingulphus his Secretary saith That he under the severest penalties proclaimed that the Laws of King Edward should be perpetual authentical and be observed inviolably thro' the whole Kingdome of England and as such he commended them to his Justices Seventhly R. Hoveden informs us That he commanded the Laws of King Edward to be observed in all things and that in the fourth year of his Reign by the Counsel of his Barons W. Rex quarto Anno Regni sui consilio Baronum suorum fecit summoneri per universos consulatus Angliae Anglos Nobiles Sapientes suâ lege eruditos ut eorum jura consuetudines ab ipsis audiret Electi igitur de singulis totius patriae comitatibus viri duodecim jurejurando confirmarunt primò ut quoad possent recto tramite neque ad dextram neque ad sinistram partem divertentes legum suarum consuerudinem Sancita patefacerent Hoved. par post F. 343. he made the Noble and Wise Men of England to be summoned throughout all the Provinces of England that he might hear from them who were skilled in their Law their Rights and Customs and that twelve Men were chosen out of every County who swore to their power to tread in a right Path neither turning to the right hand or to the left and to make known to him the custom and the establishments of their Laws And then he adds the very words contained in the Chronicle of Lichfield Now all these things put together seem plainly to conclude an Original Compact or Establishment of Laws by which the Kings of England were to govern and the Kingdom to be governed and the continuance and renewal
of that Establishment by our succeeding Kings Hist Nov. F. 186. A. 25 H. 8. c. 21. such as Malmsbury stiles our Patriae Leges and the Statute of Henry the Eighth the accustomed and ancient Laws of this Realm originally established Add to this then that Rule of Grotius Successio non est titulus Imperii qui Imperio formam assignat sed veteris continuatio jus enim ab electione coeptum familiae succedendo continuatur quare quantum prima electio tribuit tantum defert successio De jure Bell Pac. l. 1. c. 3. Sect. 10. That Succession is not a Title of Empire which gives the form to it but is only a continuation of the old Title The Right begun by the Election of the Family being continued by Succession And thence with him we may reasonably infer that Succession only brings down to Kings what the first Election gave and makes them only Kings according to the Compact and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority SECT II. That they thought it absolutely necessary that whosoever would be their King should make this Compact with them and be as much obliged by Oath to grant these Priviledges to them as they were to swear Allegiance to him 2dly OUR Kings well knowing what a Reverence the Community had for their Laws found no better means to gain or to secure to themselves the Crown and to pacifie the discontented Parties than by fair Promises and Engagements to maintain or grant to them their Laws Cum Regni fastigia fratri suo Roberto praeriperet coepit tam per se quam per omnes quos poterat fide sacramentoque Lanfranco promittere justitiam aequitatem misericordiam se per totum Regnum si Rex foret observaturum pacem libertatem securitatem Ecclesiarum contra omnes defensurum p. 13. Eadmerus informs us concerning W. Rufus that desiring to forestall his elder Brother Robert in getting the Kingdom he pawned his Faith and Oath that if they would make him King he would in all things observe Justice Equity and Mercy throughout his Kingdom and defend the Peace Liberty and Security of the Church against all Men. When his Brother Robert was come into England to claim his right and he had many of the Nobility who favoured him and sided with him W. Rufus calls the Normans and English Nobility to London leges statuens Pag. 642. and there stablishing the Laws he marched with them against his Brother saith Florence of Worcester He bound them to him saith M. Paris faciles leges promittendo Pag. 10. by promising them easie Laws as those of King Edward were by them stiled and accounted He sweetned them saith John Brompton Pag. 984. by promising that he would establish meliores leges quas sibi vellent eligere those more acceptable Laws which they would chuse Now those we know by their request in his Fathers days were the Laws of Edward and they with the emendations of his Father were the Laws then established These Promises he very little regarded after his agreement made with his Brother Robert but falling sick at the suggestion of his Barons he again promised to God saith Radulphus de Diceto Pag. 490 491. Rectas leges statuere to stablish right Laws Henry the first his Successor in the beginning of his Reign saith * Ipfe in principio Regni sui leges justas libertates populo dedit chartâ consirmavit sigillo corroboravit p. 310. R. Hagulstadensis gave to the People their just Laws and Liberties confirming them with his Charter and his Seal Dunelmensis R. Hoveden Florence of Worcester W. of Malmesbury M. Paris and Henry of Knyghton say that on the very day of his †Qui consecrationis suae die legem Regis Edvardi omnibus in commune reddidit cum illis emendationibus quibus pater suus illam emendavit Dunelm p. 225 226. Hoveden p 1. F. 268. B. Flor. Wigorn. p. 650. W. Malmsbur F. 88. M. Paris p. 38. H. de Knyghton p. 2374. Consecration he granted to all his People the Laws of Edward with the emendations which his Father had made of them * Pag. 216. B. Chron. p. 997. Henry of Huntington and John Brompton say that having promised a desirable melioration of the Laws and Customs he was consecrated by Maurice Bishop of London M. Paris saith most expresly that †Henricus congregato Londoniis clero Angliae populo universo promisit emendationem legum quibus oppressa fuerat Anglia tempore patris sui fratris nuper defuncti ut animos omnium in sui promotionem accenderet amorem ut illum susciperent in Regem Patronum Ad haec clero respondente Magnatibus cunctis quod si animo volente ipsis vellet concedere chartâ suâ communire illas libertates consuetudines antiquas quae floruerunt in Regno tempore Sancti Regis Edwardi in ipsum consentirent in Regem unanimiter consecrarent Henrico autem hoc libenter annuente se id facturum cum juramento affirmante consecratus est in Regem apud Westmonasterium p. 38. Henry having assembled the Clergy and all the People of England that he might dispose their minds to the love and the promotion of him and the taking him for their King and Patron promised them the emendation of the Laws by which England had been oppressed in the time of his Brother and that all the Clergy and Nobility answered That if he would freely grant to them and confirm by his Charter those Liberties and ancient Customs which flourished in the time of King Edward they would unanimously consent to receive him for their King and that upon his Consent and Oath to do so he was created King at Westminster And when his Brother Robert came to challenge the Crown as his by right of Succession and the Concord made betwixt him and his Brother Rufus to animate his Subjects to stand by him he speaks thus to them * Ego vero Rex humilis pacificus vos in pace in antiquis vestris libertatibus prout crebrius jurejurando promisi gestio confovere omnia videlicet quae sanctus Rex Edvardus Deo inspirante providè sancivit inviolabiliter jubeo observari Ibid. p. 42. I your mild King am desirous to preserve you in your Ancient Liberties as I have often promised upon Oath And command all things to be inviolably observed which holy King Edward by the Inspiration of God advisedly established Steven succeeded him and he to get the Kingdom Meliorationem legum promisit juxta voluntatem arbitrium singulorum M. Paris p. 51. R. Hagulstad p. 314 315. Chron. Jo. Brompt p. 1024. Bonas leges antiquas justas consuetudines in Hundris Placitis aliis Causis observabo Rich. Hagulstad p. 314. Confirmavit Pacta quae Deo populo
atque Ecclesiae Sanctae in die Coronationis suae concesserat Matth. Paris p. 51. promiseth a Melioration of their Laws according to their minds Our Historians tell us That on the day of his Coronation he made a Compact with his Church and People which afterwards at Oxford he swore to observe And one of the terms of this Compact was That he would observe good Laws and ancient and just Customs in Hundreds and Pleas and other Causes Henry the Second follows him at the beginning of his Reign establishing Peace in his Kingdom and commanding the Laws of Henry the First Ipse pacem stabilivit in Regno leges Henr. Avi sui praecepit per totum Regnum suum inviolabiliter teneri Hoved. par 2. F. 281. B. his Grand-father to be inviolably observed throughout his Kingdom Richard the first succeeds him and promiseth upon Oath at his Coronation these three things viz. 1. That he would give Peace Honour Juravit quod ipse omnibus diebus vitae suae pacem honorem Reverentiam Deo Sanctae Ecclesiae ejus ordinatis portaret 2o. Quod rectam justitiam aequitatem exerceret in populo sibi commisso 3o. Quod malas leges consuetudines perversas si quae in Regno suo inductae sunt deleret bonas leges conderet sine fraude malo ingenio eas custodiret Hoveden F. 374. A. M. Paris p. 108. Rad. de Diceto Imag. Hist p. 647. Chron. Joh. Brompt p. 1157. and Reverence to God and the Church and her Clergy all the days of his life 2ly That he would exercise true Justice and Equity to the People committed to his Government 3ly That he would put away all evil Laws and perverse Customs which were introduced into his Kingdom and would make good Laws and maintain them without fraud and evil inclination Conjuratus est ab Archiepiscopo ex parte Dei prohibitus ne hunc honorem acciperet nisi in mente habeat Sacramenta tenere quae fecit ipse respondit se per auxilium Dei bona fide observaturum omnia supra dicta Ibid. Then the Archbishop of Canterbury conjures him by God not to take upon him this Honour unless he uprightly intended to perform what he had sworn and when he answered That by the help of God he intended so to do the Archbishop puts the Crown upon his Head King John at his entrance on the Government took the same Oaths for substance which his predecessor Richard had done swearing to preserve the Church and her Dignities from harm to abolish unjust Laws and to establish Good and to exercise right Justice and he was also by the Archbishop conjured not to take upon him the Kingly Honour In coronatione suâ R. Johannes triplici involutus est Sacramento viz. quod Sanctam Ecclesiam ejus ordinatos diligeret quod perversis legibus destructis bonas constituerer rectam justitiam in Regno Angliae exerceret deinde adjuratus est ab Archiepiscopo ex parte Dei districtè prohibitus ne honorem hunc accipere praesumeret nisi in mente habuit opere quod juraverat adimplere Chron. Burton p. 256. R. Hoveden F. 450. M. Paris p. 138. Audistis quomodo ipse apud Wintoniam Regem absolvi ipsum jurare compulerim quod leges iniquas destrueret leges bonas viz. leges Edvardi revocaret in Regno faceret ab omnibus observari M. Paris p. 166 167. unless he really intended to perform his Oath When he was absolved from his Excommunication by the Archbishop at Winchester he was by him compelled to swear That he would destroy all unjust Laws and would restore good Laws viz. The Laws of King Edward and cause them to be observed of all throughout his Kingdom King Henry the Third was but nine years old when he succeeded King John Annales Mon. Burton p. 271 276. and in the ninth year of his Reign he granted to all his Clergy his Nobles and his People his Magna Charta and his Charter of the Liberties of the Forest and by these Charters he confirms to them libertates liberas consuetudines quas prius habuerant the Liberties and free Customs which they had before M. Paris saith Pag. 274. That he exacted the fifteenth part of the Moveables both of the Clergy and of the Laity and that they promised to grant them si illi diu petitas Libertates concedere voluisset Pag. 223. provided he would give them the Liberties they had so long desired And that accordingly he gave them these two Charters which were the same that had been granted by King John A. D. 1223. Speed p. 581. The Barons requiring a confirmation of these Liberties from the King William Briwere one of the King's Council answered That the Liberties which they demanded were not to be observed because they were violently extorted the King replied All of us have sworn to these Liberties and that which we have sworn all of us are bound to observe and the truth is at the conclusion of the Peace with Lewis the King Speed p. 578. the Legate and Earl Marshal sware that the King should restore to the Barons and others all their Rights and Inheritances with all the Liberties formerly demanded of his Father Speed p. 583 And in the year 1225. the King again drawn with the desire of Mony grants those his Charters under his Seal and Oaths were taken by Royal commandment to tye all Men to the observation of the said grants Edward the first was declared King and Successor of his Father when absent in Palestine and returning into England is Crowned in the Second year of his Reign and in the Third calls a Parliament at Westminster where he hears the complaints of the ill Government of the Realm and the Church and makes that wholsome Statute to relieve them which is called the first Statute of Westminster At the Coronation of Edward the Second the Earls and Barons of the Kingdom of England treated of the State of the Kingdom requesting the Banishment of Peter of Gaveston from the Kingdom and that Baronum suorum vellet consiliis tractare Regni negotia Hypadygm Neustr p. 500. he would transact the business of the Kingdom by the Councils of his Barons which the King denying to grant Rex noluit consentire idcirco proposuerunt comites Coronationem Regiam impedire quod Rex intelligens promisit bona fide se facturum illis in proximo Parliamento quicquid peterent tantum ne Coronatio differatur Walfingh Hist Angl. p. 96. the Nobles endeavoured to hinder his Coronation which the King understanding promised faithfully in the next Parliament to do that which they desired At the Coronation of Richard the Second one of the Bishops makes an Oration to the People concerning the Constitution of the King and Kingdom Tunc Episcopus Sermonem fecit de materiâ Regis Regni ad
contra Chartas suas juramenta temere veniendo cum ipse Rex toties juraverat se jura Ecclesiastica illibata conservare ipsomet audiente Candelam tenonte quod omnes Episcopi in violatores libertatum Ecclesiasticarum simul sententiam fulminabant in cujus sententiae consummatione Rex ut alii suam Candelam extinxit inclinando M. Paris p. 354. and himself held a Candle when the Bishops in his hearing pronounced the Sentence of Excommunication against all the Violaters of the Ecclesiastical Libertie he then extinguishing his Candle with the rest In the year 1242. the King requests farther Supplies of his Parliament held at Westminster for his intended expedition into France Et praeterea concessit eis tunc quod omnes libertates contentae in M. Charta ex tunc in antea plenius tenerentur per totum Regnum suum inde fecit eis quandam parvam Chartam quam adhuc habent in quâ eaedem continentur quia dominus Rex nunquam post tricesimam datam Chartam suam de libertatibus tenuit Ibid. p. 394. But they resolutely deny to give him any for that in order to the obtaining former grants of Money he had promised and granted to them that all the Liberties contained in Magna Charta should from thence be fully observed through the Kingdom and had given them a little Charter in which they were contained and yet after all he never was true to his word but oppressed them still more In the year 1244. he desires new Supplies which for a time they refuse pleading that the Charter of Liberties which the King had granted Et quia Charta libertatum quas dominus Rex olim concesserat pro cujus conservatione Archiepiscopus Cant Edmundus juraverat fide-jusicrat certissime pro Rege promiserat nondum existit observata Matth. Paris p. 432. and the Archbishop had upan Oath in the King's name promised to them was not observed Though at last upon the King 's faithful Promise to keep and observe the Liberties unto which he had sworn at his Coronation and whereof he had granted his Charter and upon the appointment of four Noble Men to be of the King's Council who should be conservatores libertatum Keepers of their Liberties they grant him new Supplies the King then promising himself to observe them and requesting that for the defence of their Liberties all the Bishops in their Diocesses should pronounce Sentence against him and all who violated the said Liberties in any Article of them Rex tam in propria persona tum per internuntios solennes promisit se libertates quas juraverat in Coronatione sua super quibus Chartam fecerat integerrime servaturum ad quarum etiam tuitionem rogavit ut singuli Episcopi in Dicecesibus suis sententiam ferrent in ipsum omnes qui contra memoratas libertates venirent in aliquo Articulo M. Paris p. 435. And thus they agreed to grant him a Supply In the year 1252. he holds a Parliament at London and requires more Money and they after some consultation answer that though the King had much oppressed both Church and Kingdom they would doe their utmost to satisfie his desires provided that as he had often promised he would now at last inviolably observe the Charter of their Liberties so often covenanted and sworn to Other things they demanded then which the King would by no means agree to swearing horribly that whilst he lived * quantumcunque Ecclesiam Anglicanam Regnum suum Angliae oppreserit afflixerit quod postulat à nobis adhuc impendemus desiderio suo pro posse obsecundabimur si quodmultoties promisit vellt Chartam toties pactam totiesque debitam Libertatum nobis juratarum inviolabiliter posthac observare p. 568. Nunquam in talem mergeretur Servitutem Ibid. p. 570. he never would be reduced into such slavery And so the Assembly breaks up producing nothing but the King 's Wrath. In the Year 1253. was assembled a very great Parliament in which the Arch-Bishop and some Bishops are sent to induce the King to permit H. Church to enjoy her Liberties as he had oft promised upon Oath and declaring that if he would correct this and other of his miscarriages according to the Tenor of M. Charta they would incline to his Petition Quod si hunc alios errores secundùm M. Chartae de Libertatibus confectae tenorem emendaret ipsi usque ad gravamen magnum Petitionibus suis inclinarent c. p. 579. how burthensome soever it might be to them This the King promiseth to doe and desires them to assist him in it so the Clergy grant him à Tenth and the Knights Scutage viz three Marks of every Knights Fee for that year Rex bonà fide sine aliqua cavilatione promisit se Chartam Magnam omnes ejus Articulos fideliter observaturum quam Rex Johannes tenere juravit similiter qui praesens est in susceptione Coronae poste◠multoties Ibid. and the King promiseth faithfully and without cavil to ratifie Magna Charta and faithfully to observe all the Articles of it which King John and he at his Coronation and often since had sworn to observe And this is done in the most solemn and ceremonial manner that could be devised for the King with all the great Nobility of England all the Bishops and chief Prelates in their Ornaments with burning Candles in their hands assemble to hear the terrible sentence of Excommunication upon all the Infringers of the same and at the lighting of those Candles the King having one in his hand gives it to one of the Prelates saying It becomes not me Nondecet meCandelam talem tenere sum non enim Sacerdos Cor autemmajus perhibet Testimonium ex tunc tenuit manum expansam ad Pectus donec tota sententia finiretur p. 580. who am no Priest to hold this Candle my Heart shall be a greater testimony and withall laid his hand on his Breast the whole time the sentence was read which was thus pronounced In the name of the Omnipotent God c. Which done he caused the Charter of King John his Father to be read In the end having thrown away their Candles they cried out So let them who incurr this sentence be extinct and stink in Hell And the King with a loud voice said * Dixit ipse Rex Sic me Deus adjuvet haec ommia illibata observabo fideliter sicut sum homo sicut sum Christianus sicut sum miles sicut sum Rex Coronatus Inunctus c. M. Paris p. 580. Idem Rex consiliis malignorum praeventus easdem infringendo contra venire non formidavit credens pro-munere absolvi à trangressione p. 597. As God help me I will as a Man a Christian a Knight a King Crowned and Annointed inviolably observe all these things But notwithstanding all this in the very
should unanimously be chosen King then the Election is publickly declared in Westminster-hall some of both Houses are sent to Edward the Second qui nunciarent Electionem filij sui who should acquaint him with the Election of his Son and require him to resign the Crown Electioni consensit populus universus all the people consented to the Election so did all the Prelates and the Arch-Bishop who made an Oration on those words Vox populi vox Dei and exhorted all to pray for the King Elect. Eleventhly Richard the Second succeeded Edward by right of Succession H. de Knyght p. 2630. ac etiam voto communi singulorum and by the Common suffrage of all Twelfthly Henry the Fourth Fifth and Sixth were only Kings by Act of Parliament Thirteenthly Edward the Fourth at his entrance on the Government makes a solemn Declaration of his Right to the Crown of England challenging it to belong unto him by a double Right the first as Son and Heir to Richard Duke of York Trussel 179. the Rightfull Heir of the same the second as elected by the Authority of the Parliament upon King Henry's forfeit of it Fourteenthly The Parliament Roll published in Speed's Chronicle often saith p. 913 914. That they had chosen Richard the Third for their King and that the Crown belonged to him as well by Election as Succession Fifthteenthly And Henry the Seventh Bacon Hist of Hen. VII p. 12. to all his other Titles by Marriage Conquest and from the House of Lancaster adds that of the Authority of Parliament SECT V. That we find mention in History of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own confession had not the immediate Title to the Kingdom and only Proclaiming him who had the Right by Proximity of Bloud Heir Apparent to the Crown 5ly MOreover we read of divers Acts of Parliament or of the Nobles of the Kingdom continuing the Name and Honour of a King to him who by their own Confession had not the just Title and only Proclaiming him who had the Right by proximity of Bloud Heir apparent to the Crown For instance The Contest betwixt Robert the Eldest Son of the Conquerour Ad haec etiam inter se constituerunt ut si comes absque filio legali in Matrimonio genito moreretur haeres ejus esset Rex modoque per omnia simili si Regi contigisset mori haeres illius fieret Comes hanc conventionem 12 ex parte Regis 12 ex parte Comitis Barones Juramento firmaverunt Flor Wigorn. p. 644. and William Rufus his younger Brother ended thus That f Robert dyed without a Lawfull Son King William should be his Heir and if King William dyed without issue Robert should be his Heir and this was Sworn to by twelve Barons of each side In the contest betwixt the same Robert and his younger Brother Henry Principes M. Paris p. 40. Hen. Hunting F. 216. B. Joh. Bromp p. 998. the Princes say some of our Historians the wise men of our Kingdom say others Sapientiores utriusque partis Dunelm p. 226. Flor. Wigorn. p. 650. R. Hoveden F. 268. B. Daniel p. 61. made a Mutual and general League of Concord by their Pious and Wise Council That Henry the First Amiciutriusque foedus inter eos statuerunt sic quod Rex propter manifestum jus quod habuit ad Regnum possidendum Roberto singulis Annis tria millia Marcarum Argenti daret ab Anglia quis eorum diutius viveret Haeres esset alterius si absque filio moreretur M. Westm p. 236. Henr. Huntingd. Hist l. 7. F. 216. B. M. Par. p. 40. being invested with the Crown by Act of the Kingdom should enjoy the same during life and that by reason of the manifest Right which Robert had to the Kingdom Henry should pay him 3000 Marks yearly and that the longest liver should be Heir to the other if he died without a Son by which Acts if William Rufus or Henry had Sons they were to Reign though the manifest Right was in Robert and his Heirs And here it is observable Maxima pars Nobiliorum Normannorum favebat Roberto cupiens hunc sibi asciscere in Regem fratremque aut fratri tradere vivum aut Regno privare peremptum hujus execrandae rei principes extitêre Odo c. hoc execrabile factum clam tractaverunt in quadragesima Florent p. 642. Dunelm A. D. 1088. Hoved. par 1. F. 264 Radulph de Diceto p. 489. Proditores vocat H. Huntingd. Hist l. 7. F. 213. Perfides W. Malmsb. Hist l. 4. F. 68. Conjurationis perfidiae Socios Florent p. 643. Perjurij Reos Matth. Paris p. 10. that though the greatest part of the Nobles did upon some dislike to Rufus to whom they had sworn Allegiance favour his Brother Robert desiring to advance him to the Kingdom and to destroy William or deliver him alive to his Brother yet do all our Historians declare that they who sided with William were faithfull to their Earthly Lord and the other party were Traiterous Perfidious and Perjured Persons and that the thing it self was an excrable fact And in like manner they who stood for Henry against the same Robert L. 5. de Henr. primo F. 88. who had manifest right are said by W. of Malmsbury justas partes fovere to be of the right side and they who fought against him to be fidei Regi juratoe transfugoe violaters of their Oath and yet this Henry was advanced to the Throne not because he had Right during the life of his Elder Brother but because Robert being gone to the Wars at Jerusalem Quia ignorabant quid actum esset de Roberto fratre primogenito timuerunt diu sine Regimine vacillare Matth. Paris p. 38. they knew not what was become of him and were affraid to be long without Government But to proceed to other instances of this Nature from History In the contest between King Stephen and Henry Duke of Normandy the Son of the Empress Maud and the Right Heir of the Crown Theobald Arch-bishop of Canterbury and Henry Bishop of Winton Rich. Hagulst p. 330. H. Huntind l. 8. F. 228. Joh. Brompt Chron. p. 1037. Gervas Chron. p. 1375. Chron. de Mailros p. 167. made peace betwixt them upon these conditions That King Stephen from that time should entirely enjoy the Kingdom as lawfull Prince with the Glory and Honour of it and Henry should succeed him in the Kingdom as lawfull Heir This peace was thus made by the Counsel of the Wise Men and the intervention of the Nobles and Friends of both parties and was declar'd to be honest and profitable R. Stephanus Ducem Hen. cognovit in conventu Episcoporum aliorum Regni Optimatum quod jus Hereditarium in Regnum Angliae habebat Dux benignè concessit ut R. Stephanus tota vita
sua si velle Regnum pacifice possideret M. Paris p. 61 M. Westm p. 246. and saith M. Paris it was concluded in a publick Convention of the Bishops and Nobles of the Kingdom Fourthly Thus was it also in the Case of Richard Duke of York and Henry the Sixth for though Richard was the Right Heir to the Kingdom Quod Dux filij sui Edvardus Comes Marchiae Edmundus Comes Rutlandiae qui ambo discretionis annos attigerant jurarent ipsi Regi fidelitatem quodque ipsum recognoscerent eorum Regem quamdiu ageret in humanis id enim Parliamentum ipsum decreverat addendo de ipsius Regis consensu quod quamprimum Rex ipse in fata decesserit licebit dicto Duci suisque Haeredibus coronam Angliae vendicare possidere Hist Coryl Ed. Oxon. p. 550. yet the Parliament held A. D. 1460. decreed that Henry the Sixth should reign and be King during his Life and that the remainder should rest in Richard Duke of York and the lawfull Heirs of his Body in general tail SECT VI. The Inferences from the Resolutions of the best Casuists to prove that the Oath of Allegiance and of the Coronation are reciprocal and consequently that the obligation of the Oath of Allegiance doth cease when the Original Compact is Fundamentally violated NOw the Inferences which naturally flow from this Historical Account of the Kings of England and their Government are these First That the Kings of England were Kings by virtue of an Original Compact made between them and the People this is apparent by the Contract made by the Conquerour with the Barons and the Nobility and Commonalty of England and the so frequent repetition of that or a like Contract by the following Princes of this Realm by the Oaths they took at their Coronation to preserve to the People their Ancient Rights and Liberties their Original Customs and Laws and by the continual claim the people made to the Laws of their Country the Laws of King Edward and the Magna Charta as their Right Accordingly the Lord Chancellour Fortescue Chap. 9.13 having declared that our Kings are Political Kings who received their Power from the People he adds That Chap. 14. p. 34. non alio pacto by no other Contract did ever any Nation willingly incorporate it self into a Kingdom but that they by that means might more safely than before enjoy Themselves and their Goods of which intent that Nation would be defrauded if having thus submitted to the Government of a King he might spoil them of their Goods which before it was not Lawfull for any man to do Secondly That this Compact was That the King should govern them according to the Tenor of such Ancient Laws and Original Customes as were received among them according to the Good Approved and Ancient Laws of the Kingdom saith M. Paris the Liberties in which the Nobles confided saith M. of Westminster the Laws of their Country saith W. of Malmsbury the Laws of King Edward say the forementioned Authours the Proper Laws and Ancient Customs in which their Fathers lived say Hoveden Stat. Merton c. 9.25 H. 8. c. 21. and the Chronicle of Lichfield the Laws of England the Ancient Laws of this Realm originally established say our Statutes the Laws of the Land the good Laws of the Land saith the Oath of Richard the Second the Charters of the Liberties of England the Common Liberty say the contenders for them with King John and Henry the Third the fundamental Laws of the Kingdom saith King James Let it be observed First Out of Fortescue That our Kings rule not by Royal only Ch. 9. p. 25 26. Ch. 13. p. 32. that is Absolute but by Political Power and that therefore a King of England cannot change the Laws of the Body nor invade their Properties but as they do consent Ch. 13. p. 32. c. 14. p. 34. that he is advanced to the Throne for the safety of the Law and his Subjects in their Goods and Bodies and derives even this Power from the People and therefore cannot Lawfully Rule over them otherwise Secondly That this is the difference betwixt a King Governing Absolutely and by Political Power that the first can change the Laws of his Kingdom F. 25. B. 26. A. impose Taxes and other burthens without consent of his Subjects whereas a King who Rules Politically over his People can neither change the Laws without consent of his Subjects nor charge them with strange impositions against their Wills That a King ruling only by Power Royal may easily become a Tyrant but whilst the Kingly Power is restrained by the Political Law F. 26. B. he cannot govern his People Tyrannically That the Contract made with a King governing Absolutely F. 35. A. is that his Will shall be the Law whereas a Political King cannot govern his People by any other Power than that of the Laws And from these Principles it clearly follows That a King Ruling Arbitrarily and Fundamentally overturning the Laws is no such King as our Constitution knows or ever did admit of That therefore no Obedience or Allegiance can be due to him by Law nor be intended in any Legal Oath unless we can suppose men at the same time intended to preserve their Constitution and yet designed to engage themselves and others to be assistant to subvert it Thirdly Let us consider the Rules laid down by the exactest Casuists touching the Cases in which the obligation of an Oath ceaseth and apply them to the present Case Thus then they say First That when the Matter of an Oath ceaseth the Obligation of it ceaseth also and that the Matter of it must then be judged to cease Tunc enim cessasse materiam censendum est cum rerum status inter tempus jurandi tempus adimplendi ita immutatus est ut si quo tempore jurabatur praevideri potuisset is qui postea insecutus est rerum status non omnino juratum fuisset San. de Juramento Prael 7. § 7. when the state of things betwixt the time of Swearing and of fulfilling the Oath is so changed that if it could have been foreseen by him who took the Oath at the time of his Swearing he would not have taken the Oath When the Root of the Obligation is taken away Quia Radice obligation is sublatâ tollitur unà pullulans inde obligatio fuit autem materia quae causam dedit jurationi Radix ejus obligationis quae ex illa juratione insecuta est Ibid. the Obligation thence arising must be taken away with it now that which gave the ground for taking the Oath is the Root of the Obligation which followed upon the Oath Among the conditions which are de jure communi to be understood in all Oaths though they be not expressed this saith the Reverend Bishop Sanderson Subingtelligendum quarto rebus scstantibus i. e. si res in eodem statu
permanserint quo nunc sunt unde qui juravit reddere gladium non tenetur reddere furioso qui juravit ducere aliquam uxorem non tenetur ducere si deprehendat eam esse ex alio viro gravidam has istiusmodi conditiones in omni juramento subintelligi fas est etsi non exprimantur rigidus nimis esset juramenti Interpres qui istarum aliquam exclusum iret Prael 2. §. 10. and many of the School-men is one viz. That things continue and remain in the same state they were at the time of swearing whence he that swore to restore a Sword is not bound to do it to a mad-man and he that swore to marry such a Woman is not bound to do it if he finds her afterwards with Child by another these and such like conditions though they be not expressed are to be understood in all Oaths and he that should exclude any of them would too rigidly interpret his Oath Secondly Amesius adds In Juramento subintelligi debent conditiones illae quae ex more consuetudine receprâ concipi praesumuntur ab iis ad quos juramentum spectar De Cas Consc l. 4. c. 22. that in an Oath all those conditions are to be understood which by the received Customs and Manners of a Nation are presumed to be conceived as conditions belonging to it And that when the formal reason of an Oath is taken away the Oath ceaseth Quum aufertur ratio formalis juramenti juramentum cessat ratione eventûs qui casus est eorum qui jurà runt se obedituros domino aut principi alicui qui postea cessat esse talis Ibid. § 36. Nec tenebitur si cesset qualitas sub qua alicui juravit ut si Magistratus desinat esse Magistratus Crot. de Jure Bel Pac. l. 2. c. 13. §. 18. and that this is the Case of them who swear to a Prince or to a Master who after ceaseth so to be Thirdly The Casuists farther tells us that a promissory Oath made purely on such a Motive and Foundation supposeth the continuance of that Foundation as the condition of its Obligation and therefore ceaseth to oblige when he to whom and for whose sake it was made tollit fundamentum illud quo nitebatur removes the Motive and Foundation of it Saunders de juramento praelect 4. p. 99. Tombs lect 18. p. 23. For instance Chremes the Master swears he will give to Sosia ten Crowns per annum and Sosia the Servant swears to serve him eight years if Sosia will not serve him the third year Cremes is not obliged to pay him ten Crowns at the years end or if Cremes will not pay Sosia at the years end Sosia is not bound to serve him eight years because this payment was the Sole foundation of Sosia 's service this service the Sole motive of Chremes 's Oath Fourthly They add That without which it cannot in equity and reason be supposed that any reasonable man would or any honest man should take an Oath must be supposed as a tacit condition in the taking of it so that no person is to be supposed to swear to doe any thing but with this proviso as far as it is consistent with equity and justice Thus though Solomon promised to his Mother not to say nay to her request yet when she asked Abishag the Shunamite to be given to Wife to Adonijah because the Marriage would have been incestuous or would have given him a pretence for disturbing of the Kingdom Solomon breaks his promise and thereby shews that it was made with this proviso if I may safely and equitably do it Hence they inser that the Laws of Nature and Self-Preservation must give tacit limitations to our promissory Oaths where they are general and not expressive of Life and Death because we have an Obligation to them antecedent to all Oaths nor can it rationally be supposed that a man would promise to ruine and destroy himself where the publick good did not make it necessary so to doe If then the Kings of England be Kings by virtue of a Compact originally made betwixt them and the people if the Tenor of that Compact be on the King's part that he would govern them according to the Tenor of their Ancient Laws Liberties Charters and Customs or as the Coronation Oath now runs that he will confirm to the people of England the Laws and Customs to them granted by the Kings of England that he will grant to hold and keep the Laws and rightfull Customs which the Commonalty of his Kingdom have and to defend and uphold them as much as in him lieth that he will preserve and maintain to the Bishops and the Churches committed to their Charge all Canonical Privileges and due Law and Justice and will be their Protector and Defender to his Power and this Oath and Compact be on the part of the Subject the very ground for his entring into a Promise and Oath of Allegiance the very formal Reason of it the Motive and Foundation upon which it is built When any King of England afterward makes void his Oath by an entire virtual dissolution of those Laws he had by Oath engaged himself to keep and confirm and plainly sets himself to destroy that Church he swore to protect and defend and to deny them all due Law and Justice he seemeth by just consequence to have made void the Motive and Foundation of that Allegiance they swore to him Grotius informs us that the promise of a King to his Subjects gives them a right to the thing promised that being the Nature of all Promises and Contracts And this it doth more certainly when it is only a promise of what was originally their Right confirmed by his Oath Dicimus ergo ex promiso contractu Regis quem cum subditis iniit nasci veram propriam obligationem quae jus dat ipsis subditis ea enim est promissorum contractuum natura De jure Bel. pacis l. 2. c. 14. §. 8. and the very condition upon which they accepted of him or his Progenitors as their Kings for as he rationally adds if a People make a King by such Laws Plane si populus Regem fecerit non pleno jure sed additis legibus poterunt per eas leges contrarij actus irriti fieri aut omnino aut ex parte quia eatenus populus jus sibi servavit Ibid. §. 2. they make void what he doth contrary to Law because as to such things they have reserved the Right unto themselves or at the least they have limitted his Right but to what end is all this if by their Oath of Allegiance afterwards they virtually disannull that Right they had reserved to themselves take off all limitations of the King 's Right and put it in his power to break all his promises without controll by binding themselves to the same Allegiance to him when he doth so as when
he ruleth them by Law and observes his promises and contracts If therefore that must be supposed as a tacit condition of an Oath without which it cannot in equity and reason be supposed that any reasonable man would or any honest man should take an Oath if it cannot rationally be supposed that any rational body would promise or swear to ruine and destroy themselves their lives and fortunes it cannot be supposed that they would consent to such an Oath of Allegiance as doth entirely oblige them to suffer themselves and their Constitution to be ruined and to be assistant to it and therefore the tacit condition of that Oath must be provided that the Commands of their Superiour be according to Law and he doth govern them by Law Again if according to Fortescue our Kings Rule not by Absolute but by Political Power and therefore cannot change their Laws or invade the properties of the Subject but by their consent if he be advanced to the Throne for the safety of his Subjects in their goods and bodies if this be the difference betwixt an absolute and a political King or King of England that the Will of the first is his Law but the Law is the Rule of the Will of the Second the first can change the Laws of his Kingdom without the peoples consent the second cannot the first may easily be a Tyrant the second cannot govern his people Tyrannically and if from hence it follows that a King ruling Arbitrarily and Fundamentally overturning the Laws is no such King as our Constitution owns or ever did admit of and therefore that no Allegiance can be due to him by Law whom the Law knows not nor ever did suppose but rather always did exclude Then he who being a Political King makes himself absolute requiring in one of his Kingdoms to be obeyed without reserve in another setting up Governors and Viceroys disabled by Law to be so in a third part of his Dominions virtually dissolving all the Laws against Popery by admitting a Pope's Nuncio dispensing with the Laws forbidding them the exercise of their Religion and the taking upon them Offices Civil and Military and by just consequence all the Laws of the Kingdom by claiming an unlimitted Power of Dispensing with them He who was entred into a League with a Potent Monarch to set up Popery and Arbitrary Power in England he who was bound by the Principles of his Religion to destroy the Church of England and to give up Protestants to suffer the punishment decreed against Hereticks by the Romish Church and had begun to dissolve her Colleges and silence her Bishops by an Illegal Arbitrary Commission and was so wholly given up to the will of the Jesuits that nothing else could be expected from him he certainly must be none of the Kings to which we swore Allegiance and by refusing to be a political King the only King our Laws will own he must have absolved his Subjects from that Allegiance which is due only to such a King If Rebus sic stantibus be as the Reverend Bishop Sanderson saith a condition of all Oaths if the matter of the Oath must be then judged to cease when things so change that if the change could have been foreseen the Oath would not have been taken then much more must the Obligation of it cease when so great a change is made as from a political to an absolute King from a King ruling by Law and protecting the Church to a King ruling against Law and subverting the Church against both his Oath and Law The same learned Bishop saith That if a Soldier swears obedience to a General or Commander of an Army when he ceaseth to be General his Oath ceaseth to oblige Si quis ergo miles juret Obsequium belli Imperatori finito demum bello cum ipse desierit effe Imperator non ultra tenetur ex juramento Obsequium ei praestare si Pater aliquis juraret se Testamentum in quo filium instituisset Haeredem nunquam mutaturum comperto tamen postea filium Haeredem institutum Patri venenum miscuisse Pater non ultra tenetur juramento Prael 7. §. 7. and if a Father swear never to change his Will in which he hath made such a Son his Heir he is absolved from that Oath if his Son afterward endeavour to poison him that an Oath to deliver a Sword binds not to deliver it to a mad man who may destroy himself or me with it And an Oath to marry a Woman binds not to do it if she prove with Child by another why therefore should an Oath of Allegiance made to a politick King ruling by Law bind us to pay that Allegiance to a King thus ruling Arbitrarily he ceasing as much to be that King we swore to as a General plainly going about to destroy his Army ceaseth to be their General and being as much different from his former self as a Woman pregnant from a Virgin and as like to be pernicious to the Government as a Son attempting to poison his Father would be to him or a Mad-man to them who should give him a Sword and all this seems plainly to be contained in those excellent words of King James Fourth Speech at Witehall A D. 1609. p. 530 531. that the King was lex loquens after a sort binding himself by a double Oath to the Observation of the Fundamental Laws of his Kingdom tacitly AS BY BEING A KING and so bound to protect as well the People as the Laws of his Kingdom and expresly by his Oath at his Coronation so as every just King in a setled Kingdom IS bound TO OBSERVE THAT PACTION MADE TO HIS PEOPLE BY HIS LAWS in framing his Government agreeably thereunto and therefore a King Governing in a setled Kingdom LEAVES TO BE KING AND DEGENERATES INTO A TYRANT as soon as he leaves off to rule according to his Laws Therefore all Kings that are not Tyrants or purjured will be glad to bound themselves within the Limits of their Laws and they that persuade them to the contrary are VIPERS and PESTS both against them and the Common-wealth Where it is granted 1. That there be Fundamental Laws of the Kingdom And 2ly That our Kings even by being Kings do tacitly bind themselves to protect the People and the Laws of their Kingdoms 3ly That the King makes a Paction with his People by his Laws which Paction he is bound to observe And 4ly That as soon as he leaves off to rule according to his Laws HE LAVES TO BE A KING and then certainly we must leave to be of right his Subjects or to owe him Allegience And though even in this case I cannot yet approve of Subjects taking up Offensive Arms against a King on this account because I know not what power of Avenging themselves they have or how the Sword is put into their hands to doe it nor who hath made them Judges in their own cause yet if Providence