interfere with the Judicial Power of the High Court of Parliament and it may be a question whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of False Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions was expell'd the Kingdom and Bromton shews that this was done in a Judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and divested of his Soveraignty by the Counsel and Consent of all his Subjects Five Years after this their King Ethelred was driven from the Throne and Kingdom for treacherously procuring the Death of three of his Great Men Alwlf Cynwlf and Ecga Within fifteen Years after this the People having without Example called back Ethelred from Exile slew him without any allowable Precedent and set up in his stead Osbald a Nobleman none of the Royal Stock and he not answering their Expectation they depos'd him in twenty eight days Twelve Years after they deposed their King Eardulf and remain'd long without chusing any Sixty Years after they depos'd their King Osbrich and chose Ella who still swerv'd from the Ends of Government Six Years after they expell'd their King Egbert For sixty nine Years the Kings and their People agreed without coming to any Extremities but then they renounc'd the Allegiance sworn to King Edmund and chose Aulaf King of Norway for their King. Aulaf had not reigned six Years when they drove him away and tho' they receiv'd him again they soon cast him off again and swore Allegiance to the English King Edred Then they rejected him and chose Egric a Dane with whom their independent Monarchy expir'd and turn'd into the Government of Earls I would not be thought to mention those numerous Examples with the least approbation 't is certain they argue great Levity in rejecting or Folly in chusing But if we are believ'd to receive many Laws and Customs from the Germans from whom we are more remotely deriv'd much more may the English Monarchy be thought to partake of the Customs of the contiguous Kingdoms which compose it and by this frequent Practice the Members of it were sufficiently prepar'd to understand that part of the Compact whereby the Prince was oblig'd to suffer Right as well as his Subjects and that if he did not answer the Ends for which he had been chosen he was to lose the Name of King. Either these Examples or rather the continual Engagements in War with Foreigners had such effect that from this time to the Entrance of W. 1. excepting the Case of King Edwin Nephew to the English Monarch Edred who was driven out of the Kingdom Anno 957. I find nothing of the like nature A King was but a more splendid General nor could he hope to maintain his Dignity but by hardy Actions and tender usage of his People their extraordinary Power had slept but for few Years after the Death of the reputed Conqueror till the time of King Stephen the third Successor from W. 1. who after Allegiance sworn to him had it a while withdrawn for Maud the Empress but the People soon return'd to it again rejecting her who was nighest in Blood because she denied them the Benefit of St. Edward's Laws This Power of the People to be sure was rous'd by the extravagant Proceedings of King John upon which the Earls and Barons of England without the Formality of Summons from the King give one another notice of meeting and after a long private Debate they agreed to wage War against him and renounce his Allegiance if he would not confirm their Liberties and agreed upon another Meeting for a peremptory Demand declaring That if he then refus'd them they would compel him to Satisfaction by taking his Castles Nor were they worse than their words and their Resolutions had for a while their desir'd Effect in obtaining a Confirmation of their Liberties but the Pope soon absolv'd the King and encourag'd him to the violation of them till they stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France But the Dauphin assuming a Power not brook'd in the English Government upon the Death of King John they set up his Son H. 3. and without any solemn Deposing of Lewis compell'd him to renounce his Pretensions Henry treading in his Father's steps had many unhappy Contests with his Barons and having call'd in numbers of Foreigners they sent him a solemn Message That unless he would remove those troublesom Guests they would all by a Common Council of the whole Realm drive him and his wicked Counsellors out of the Kingdom and would consider of making a new King. Upon this both Sides had recourse to Arms and neither valued the others Judicial Sentence but for certain the Sentence threatned H. 3. was executed upon his Grandson E. 2. who was formally depos'd in Parliament for his Misgovernment whose Case with his next Successor's but one R. 2. by what I have observ'd before appear to have been no Novelties in England Nor was it long before the like was again put in practice more than once H. 6. being a weak misled 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 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 believ'd 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 R. and his Heirs after him And 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 took upon him the Charge of the Kingdom as forfeited to him by breach of the Covenant establish'd in Parliament Yet this gave him no sure Settlement for the Popularity of the Earl of Warwick drove him out of the Kingdom without striking a Stroke for it 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 R. 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 Yet 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 of the Settlement under which he enjoy'd the Crown Thus as the Power of the People or Great ones of Interest with them turn'd the Scales from time to time so 't was their Consent which fixt them at last during the the Life of E. 4. 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 requir'd 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 declar'd 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 hath or ought to have any Coercive Power over the Persons of the Kings of this Realm I shall not here insist in answer to the first 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 chose by the People may act without any Authority from the King. And for the latter as Coertion is restrain'd 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 vertue of equitable and supposed 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 That these Statutes being barely Declaratory 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 and at liberty to renounce the Obligations which it has entred into against its Benefit which is the Supreme 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 have Authority to make Laws that cannot be alter'd by Posterity in Matters that concern the Rights both of King and People For Foundations cannot be remov'd without the Ruine and Subversion of the whole Building Wherefore admit the Acts had been duly 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 repeal'd 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 Prorogu'd or Adjourn'd 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 and Sitting of the foregoing Parliament shall be thenceforth clearly and absolutely dissolv'd 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 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 Parliamenti 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 the First and so expired An. 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 dissolv'd more than three Years before the Parliament which made the Statute in question which Parliament assembled An. 1661. and was ipso facto dissolv'd 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 C. 2. Anno 1660. was not summon'd by the King's Writs consequently the Parliament 1661. having 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 dispens'd with the Letter of the Triennial Act as to this Particular 1. They who would plead these Statutes cannot urge it since they will not allow of greater Necessity to authorize the Maintaining and Restoring the Constitution But surely however Necessity might support other 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 continue together as long
was left at large How much soever he might have strain'd in this or other Matters I am sure he was far from acting so arbitrarily as some have industriously represented him I will not say on purpose to encourage such Actions in other Princes And it is yet more certain that whatever Right either he or any body under him enjoy'd came from the Compact not from the Breach of Faith. 3. If William 1. did gain the Right of a Conqueror it was Personal and he never exacted this for his Heirs as appears not only by his Declaration when he came to die but by the Fealty or Oath of Allegiance which he required in his Laws The King's Oath is the real Contract on his side and his accepting the Government as a legal King the virtual one and so it is vice versâ in relation to the Allegiance due from the Subject Thus far the Author of Jovian is in the right As in the Oath of Allegiance the People swear nothing to the King but what they are bound to perform unsworn so the King in his Coronation-Oath promises nothing to the People but what in Justice and Equity he is bound â—o perform unsworn Upon which account I will yield to Saravias That in Hereditary Kingdoms the Coronation-Oath confers no new Right and therefore there may be a King before his Coronation Yet we must attend to Grotius his Rule who rightly observes That Succession is only a Continuance of that Power which the Predecessor had So that if the first Possessor comes into Power qualified by express Contract this binds the Successor and he is to be thought to come in upon those Terms The Description which Samuel made of the exorbitant Power of Kings was rather to terrifie them from pursuing their foolish Demand than to constitute such a Prerogative as the King should use whom God would appoint to go in and out before them Which methinks is very manifest in that the worst of Kings that ever reigned among them never challeng'd or assum'd those Prerogatives nor did the People conceive themselves liable to those Impositions as appears by the Application they made to Rehoboam on the Death of Solomon That he would abate some of that Rigour his Father had exercis'd toward them the rash rejection of which contrary to the Advice of his wisest Counsellors cost him the greater part of his Dominions and when Rehoboam would by Arms have reduc'd them to Obedience God would not suffer him because he had been in the fault himself One of the Terms as appears by the Mirrour was That the King should suffer Right or Justice as well as his Subjects And St. Edward's Sword called the Curtein carried before our Kings at their Coronations was in the time of H. 3. a known Emblem and Remembrancer of this But surely whoever us'd that or a Judicial Power in such Cases as above how much soever they continued their Allegiance to the King's Authority could not be said to retain it to his Person 2. There was and is an establish'd Judicature for the great Case in question as is imply'd by St. Edward's Laws which suppose some Judge or Judges in the Case and investing the Proceres with the Supreme Judicature with-holds not this from them However 't is certain the Parliament 9 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice whereby if the King thro' a foolish Obstinacy contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and the Statutes and laudable Ordinances made by the Council of the Lords and the Peers of the Realm but shall headily in his mad Counsels exercise his own arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and rased to the great prejudice of the People and disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance The Mirror tells us That of right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was wrote before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho' Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from him seems to correct the Copy and has it si parcat If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains when he says That no Justices or private Persons may dispute of the King's Charters and Acts but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King act without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not to be adjudg'd so by Judges Commissaries or Commission'd Judges which the Mirror uses in contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least
That alone will not authorise Endeavors to this End unless it can be done without Injustice to any For otherwise we should make God the Author of those Sins of Men which have often been foretold But in order to satisfie those who question what is their Duty at this time either for Acting or Acquiescing I shall shew that we have been Grateful without being Unjust and may chearfully act under the present Government in sure and certain hope that those great Things which are already come to pass according to plain Predictions are the happy Omens and Earnests of greater yet to come being equally promis'd For which end I shall consider 1. Whether we may not by comparing the following Predictions reasonably conclude That as the Crown of England has been destin'd for the late Prince of Orange the better to qualifie him for the executing God's Purposes for the Benefit of Mankind so it has been long since foretold 2. Whether the People of England have not a rightful Power to contribute towards their Accomplishment 4. Whether that Power has not been duly exercis'd in the present Assembly of Lords and Commons Many I know despise Prophesies and laugh at the Observers of those Hand-writings from above and others tho' they own that some Beams of Divine Light had visited the dark Ages of the World before the Sun of Righteousness appeared and that they were more frequent during its abode upon Earth and for the two or three first Centuries after Yet they will have it that ever since God has kept his Foreknowledge to himself without communicating any Notices of it to Mankind Be their Opinions as it will 't is not unlikely that many who have been doubtful what Course to steer in their Endeavours for the Publick will attend to these Divine Admonitions But that Nostredamus either thro' Judicial Astrology or Divine Inspiration or both as himself professes did foretel many things which have come to pass must not be denied by any body who reads him as where he says That the Senate of London that is the Parliament of England or those of it who usurp'd its Name should put to Death their King That London should be burnt in Thrice twenty and six that is Sixty six and that the Plague should not cease till the Fire Where according to what himself observes of some of his Predictions he limits the Place Times and prefixed Terms that Men coming after may see and know that those Accidents have come to pass as he marked What he says of the Bastard of England's being half receiv'd is not more obscure or less verified Nor does there seem a greater Veil upon what he says of the West's freeing England where he in very lively Characters represents the Event of the first and second Attempt there And as we find those things to have fallen out accordingly we have great ground to believe that what he speaks of his native Country France was from a certain Foresight Who can with-hold his Belief from all those Particulars in relation to it which he speaks not in the least mysteriously Or can any one doubt but that this present Juncture bodes it those Ills which he threatens The Fleet in the West and the great Appearance there with His Majesty's stupendious Progress not without cause made the French King think Danger approaching by Blay Nor can it be a question who is meant by the Chief of the British Isle or the Great Aemathien who is to lead the English to Glorious Enterprises Can it be other than the Celtique that is Belgick Prince of Trojan that is English Blood of a German Heart married to one of Trojan Blood and in safe Alliance with the Spaniard I will not be positive that a King's danger of drinking the Juyce of Orange unless he yield to an Accommodation must necessarily be intended of the late King and this tho' I am very confident no time can be shewn when this could be so properly applied I cannot but think that Nostredamus has foretold the Fate of James the Second the Question for the Kingdom between this Prince and the reputed Brother-in-Law the carrying the Babe into France the Father 's not being able to make good the Title of his Blood and this Sham's being the occasion of the late Prince's accepting the Crown And who can doubt but this King is that Native of Friezland as one Part of a Country may be taken for the Whole or other Part of the Whole to be cbosen here upon another's having Death given him drop by drop by the Guards Nor can it be denied that J. 2. has received his Deaths-wounds or occasion of a lingring Death in a great measure from his own Guards Nor is the Crown more plainly foretold to His Majesty from an Election than it is to His Royal Consort by way of Succession which are both exactly fulfill'd in that happy Partnership in Dignity while the Regal Power is kept entire to accompany the Marital In two Particulars I have taken a Liberty with Nostredamus which I cannot but think allowable 1. Where his Words admit of different Senses if I have not left them in aequilibrio equally applicable to either I have determin'd them to that which best agrees with Events For if he has truly foretold any thing without ambiguity we are to believe that in others he or the Spirit which dictated to him intended what has fallen out if the Words will bear it 2. Whereas the Stanzas of his Predictions are scatter'd up and down like so many Sybilline Leaves I have gather'd and sorted them together according to past Occurrences or that relation to the future which they seem to bear and certain it is that God's Holy Spirit foresaw all things in their true Order I must own that the like Persons and Actions may come upon the Stage more than once wherefore of many every body is left to his own Conjecture but in others the Parallel is so exact between Nostredamus his Descriptions and what has come to pass in the whole or in part that where a Connection of Events seems to be pointed at 't will be as difficult not to entertain warm Expectations of the Accomplishment of the Whole as to deny that Part is fufilled And many Personal Characters tho' given in distant Stanzas have that mutual Resemblance that they look like several Parts or Lineaments at least of the same Face and may without blame be drawn together Grebner seems rather to give an Account of what he had liv'd to see than to foretel what lay in the Womb of Time Who can deny but that he pointed at the Misfortunes of Charles the First with the Occasion of them the Generalship of the Earl of Essex then of Sir Thomas Fairfax And it is not improbable that the Nullus coming next might be Nol. Nor can it be a question but the late Prince of Orange
who by the Mother's Side is Grandson to Charles the First and Son-in-Law to James the Second is that Person of Charles his Lineage who was to Land upon the Shore of his Father's Kingdom with such Forces as His present Majesty had with him And if this be admitted I am sure His Reign in his own Right is foretold for the Prophesie of that Person says Regnum suum felicissimè administrabit and since Grebner speaks of one to Reign here after the Knight and the Nullus it makes it highly probable that he had a Foreknowledge of the Protectorship of Oliver Cromwel who was commonly known by the Name of Nol. David Pareus one would think had seen the Person of the Prince of Orange in a Divine Dream as he was thought to have seen the City of Heidelburgh in Flames three Years before it hapned Nor is he singular in calling his Hero a Grecian King for Nostredamus called his the Aemathien either resembling him to Caesar who conquer'd Pompey in Greece in the Aemathien or Pharsalian Fields or else with respect to the future Progress of his Arms as far as Pareus mentions Antonius Torquatus who wrote above Two hundred Years since looks like an Historian setting forth the great Changes and Occurrenrences in Europe during the two last Centuries and not obscurely to describe the present Juncture of Affairs Nor does his Northern Prince seem to he other than the English-Belgick Lion. 2d As to the rightful Power which this Nation had to contribute towards the accomplishing of those Prophecies which mark the late Prince of Orange for King of England Not thinking it worth the while to refute the fond Notion of an Absolute Patriarchal Power descending down from Adam to our Kings in an unaccountable way I shall take it for granted that as Grotius has it the Civitas is the common Subject of Power this in the most restrain'd sense is meant of the People of Legal Interests in the Government according to the first Institution Yet if they are entitled to any fort of Magistracy they become part of his Subjectum proprium the proper or particular Subject or Seat of Power Wherefore I take his Cives to be the same with Pufendorf's Quorum coitione consensu primo civitas coaluit aut qui in illorum locum successerunt nempe patres familiâs By whose Conjunction and Consent the Civil Society first came together or they who succeeded in to their Rooms to wit the Fathérs of Families And the most sensible of them who deny this as fighting against their fansied Divine Right of Kingship own that the People have in many Cases a Right to design the Person if not to confer the Power only these Men will have it that the Extent of the Power of a King as King is ascertained by God himself which I must needs say I could never yet find prov'd with any colour But to avoid a Dispute needless here since the Question is not so much of the Extent of Power as of the Choice of Persons Whether any Choice is allowable for us must be determin'd by the fundamental or subsequent Contract either voluntary or impos'd by Conquest and 't is this which must resolve us whether the Government shall continue Elective or Hereditary to them that stand next in the Course of Nature guided to a certain Channel by the Common Law of Descents or limited only to the Blood with a Liberty in the People to prefer which they think most fit all Circumstances considered And if our Constitution warrants the last then we may cut the Gordian Knot and never trouble our selves with Difficulties about a Demise or Cession from the Government or Abdication of it for which way soever the Throne is free from the last Possessor the People will be at liberty to set up the most deserving of the Family unless there be subsequent Limitations by a Contract yet in force between Prince and People which being dissolv'd no Agreements take place but such as are among themselves In which Case whatever ordinary Rule they have set themselves they may alter it upon weighty Considerations And that it is lawful for the People of England at this time to renounce their Allegiance sworn to J. 2. and to prefer the most deserving of the Blood notwithstanding any Oaths or Recognitions taken or made by them I shall evince not only from the Equity of the Law and Reservations necessarily imply'd in their Submission to a King but from the very Letter explain'd by the Practice of the Kingdom both before the reputed Conquest and since 1. For the Equity and reserved Cases I think it appears in the nature of the thing that they for whose benefit the Reservation is must be the Judges as in all Cases of Necessity he who is warranted by the Necessity must judge for himself before he acts tho' whether he acts according to that Warrant or no may be referr'd to an higher Examen but where the last resort is there must be the Judgment which of necessary consequence in these Cases must needs be by the People the Question being of their Exercise of their Original Power and where they have by a general Concurrence past the final Sentence in this Case their Voice is as the Voice of God and ought to be submitted to For the direction of their Judgment in such Cases they need not consult Voluminous Authors but may receive sufficient Light from those excellent Papers The Enquiry into the Present State of Affairs The Grounds and Measures of Submission and The Brief Justification of the Prince of Orange 's Descent into England and of the Kingdom 's late Recourse to Arms. Which I shall here only confirm by some Authorities The first as being of most Credit among them who raise the greatest Dust shall be Bishop Sanderson Of the Obligation of an Oath who shews several Exceptions or Conditions which of Common Right are to be understood before an Oath can oblige in which I shall not confine my self to the Order in which he places them 1. If God permit because all things are subject to the Divine Providence and Will nor is it in any Man's power to provide against future Accidents Wherefore he who did what lay in him to perform what he promis'd has discharg'd his Oath 2. Things remaining as they now are Whence he who swore to marry any Woman is not oblig'd if he discovers that she is with Child by another These two Exceptions sufficiently warrant Submission to such Government as God in his Providence shall permit notwithstanding Oaths to a former King And if he cease to treat his People as Subjects the Obligation which was to a Legal King determines before his actual Withdrawing from the Government 3. As far as we may as if one swear indefinitely to observe all Statutes and Customs of any Community he is not oblig'd to observe them farther
than they are lawful and honest 4. Saving the Power of a Superior Whence if a Son in his Father's Family swear to do a Thing lawful in it self but the Father not knowing it commands another thing which hinders the doing that which is sworn he is not bound by his Oath because by the Divine Natural Law he is bound to obey his Father And he who has sworn not to go out of his House being cited to appear before a Lawful Judge is bound to go out notwithstanding his Oath the Reason is because the Act of one ought not to prejudice the Right of another These two last Instances added to the Consideration of a Legal King will qualifie the Oath 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 or against those that are Commissioned by him This I think I may say with warrant from Bishop Sanderson That no Man is bound by this Oath to act against Law under colour of the King's Commission nor to permit such Actions if it be in his power to hinder them the Common Fundamental Law being in this Case the Superior which he is to obey and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary To Bishop Sanderson I may add Grotius who runs the Prerogative of Kings as far as any Man in reason can Yet he allows of reserved Cases in which Allegiance may be withdrawn tho' there is no express Letter of Law for it As 1. Where the People being yet free command their future King by way of continuing Precept Whether there be any such with us can be no doubt to them who read the Coronation Oaths from time to time required and taken upon Elections of some Kings and the receiving others by reason of prior Elections and Stipulations with their Predecessors 2. If a King has abdicated or abandon'd his Authority or manifestly holds it as derelict indeed he says he is not to be thought to have done this who only manages his Affairs negligently But surely no Man can think but the Power of J. 2. is derelict And he cites three Cases wherein even Barelay the most zealous Asserter of Kingly Power allows Reservations to the People 1. If the King treats his People with outragious Cruelty 2. If with an hostile Mind he seek the Destruction of his People 3. If he alien his Kingdom This Grotius denies to have any effect and therefore will not admit among the reserved Cases But if no Act which is ineffectual in Law will justifie the withdrawing Allegiance then none of the other Instances will hold for to that purpose they are equally ineffectual Yet who doubts but the King doing what in him lies to alien his Kingdom gives Pretence for Foreign Usurpations as King John did to the Pope's And whoever goes to restore the Authority of the See of Rome here be it only in Spirituals endeavors to put the Kingdom under another Head than what our Laws establish and to that purpose aliens the Dominion Nor can it be any great Question but the aliening any Kingdom or Country part of the Dominion of England will fall under the same Consideration which will bring the Case of Ireland up to this where the Protestants are disarm'd and the Power which was arm'd for the Protection of the English there is put into the Hands of the Native Papists so that it is not likely to be restor'd to its Settlement at home or dependence upon England without great Expence of Blood and Treasure Even the Author of Jovian owns that the King's Law is his most authoritative Command and he denies that the Roman Emperour had any Right to enslave the whole People by altering the Constitution of the Roman Government from a Civil into a Tyrannical Dominion or from a Government wherein the People had Liberty and Property into such a Government as the Persian was and the Turkish now is c. Tho' by the Roman Lex Regia which himself takes notice of the People had transferred all their Power to the Emperor yet we see the highest Asserter of Imperial Power allows of Reservations If says Bishop Bilson a Prince should go about to subject his Kingdom to a Foreign Realm or change the Form of the Common-wealth from Imperie to Tyranny or neglect the Laws establish'd by Common Consent of Prince and People to execute his own Pleasure in these and other Cases which might be named if the Nobles and Commons join together to defend their ancient and accustomed Liberty Regiment and Laws they may not well be accounted Rebels And soon after he speaks of a Power for preserving the Foundation Freedom and Form of their Commonwealths which they forepriz'd when they first consented to have a King. Where his meaning cannot be restrain'd to express Provisions excluding such as may be equitably intended And not to heap Authorities with this agrees the Divine Plato who after he has affirm'd that the highest Degrees of Punishment belong to those who will misguide a Ship or prescribe a dangerous new way of Physick having brought in Socrates asking whether Magistrates ought not to be subject to the like Laws himself asks What shall be determined if we require all things to be done according to a certain Form and set over the Laws themselves one either chose by the Suffrages of the People or by Lot who slighting the Laws shall for the sake of Lucre or to gratifie his Lust not knowing what is fit attempt to do things contrary to the Institution This Man both he and Socrates condemn as a greater Criminal than those which he had mention'd whose Crime he aggravates as 't is an acting against those Laws which thro' a long Experience had been ordain'd by their Counsel and Industry who had opportunely and duly weighed every thing and had prevail'd upon the People to submit to them 2d To proceed to Positive Law I shall shew how the Contract between Prince and People stood and hath been taken both before the reputed Conquest and since Where 't will appear 1. That Allegiance might and may in some Cases be withdrawn in the Life-time of one who continued King until the occasion of such withdrawing or Judgment upon it 2. That there was and is an establish'd Judicature for this without need of recurring to that Equity which the People are suppos'd to have reserv'd 3. That there has been no absolute Hereditary Right to the Crown of England from the beginning of the Monarchy but that the People have had a Latitude for setting up whom of the Blood they pleas'd upon the determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force 4. That they were lately restored to such Latitude 1. If the King not observing his Coronation-Oath
in the main lose the Name of King then no Man can say that Allegiance continues But that so it was before the reputed Conquest appears by the Confessor's Laws where they declare the Duty of the King. But the King because he is Vicar to the Supreme King is constituted to this end that he should rule his earthly Kingdom and the People of God and above all should reverence God's Holy Church and defend it from injurious Persons and pluck from it Wrong-doers and destroy and wholly ruine them which unless he does not so much as the Name of King will remain in him c. Hoveden shews how this was receiv'd by William 1. The King and his Deputy or Locum tenens in his absence is constituted to this end c. in substance as above Which unless he does the true Name of King will not remain in him And as the Confessor's Laws have it in which there is some mistake in the Transcriber of Hoveden otherwise agreeing with them Pope John witnesses That he loses the Name of King who does not what belongs to a King which is no Evidence that this Doctrine is deriv'd from the Pope of Rome The Pope only confirms the Constitution or gives his Approbation of it perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right And to shew that this is not only for violating the Rights of the Church the Confessor's Laws inform us that Pipin and Charles his Son not yet Kings but Princes under the French King foolishly wrote to the Pope asking him if the Kings of France ought to remain content with the bare Name of King By whom it was answer'd They are to be called Kings who watch over defend and rule God's Church and his People c. Hoveden's Transcriber gives the same in substance but thro' a miserable mistake in Chronology will have it that the Letter was wrote by Pipin and his Son to W. 1. Lambart's Version of St. Edward's Laws goes on to Particulars among others That the King is to keep without diminution all the Lands Honours Dignities Rights and Liberties of the Crown That he is to do all things in his Kingdom according to Law and by the Judgment of the Proceres or Barons of the Realm and these things he is to swear before he is Crown'd By the Coronation-Oaths before the reputed Conquest and since all agreeing in Substance every King was to promise the People three things 1. That God's Church and all the People in the Kingdom shall enjoy true Peace 2. That he will forbid Rapine and all Injustice in all Orders of Men. 3. That he will promise and command Justice and Mercy in all Judgments And 't is observable That Bracton who wrote in the time of H. 3. transcribes that very Formulary or rather Abridgment of the Oath which was taken by the Saxon Kings In Bracton's time 't is certain the Oath was more explicit tho' reducible to those Heads and 't is observable that Bracton says The King is Created and Elected to this end that he should do Justice to all Where he manifestly shews the King's Oath to be his part of a binding Contract it being an Agreement with the People while they had power to chuse With Bracton agrees Fleta and both inform us that in their days there was no scruple in calling him a Tyrant and no King who oppresses his People violatâ dominatione as one has it or violentâ as the other either the Rule of Government being violated or with a violent Government both of which are of the like import The Mirrour at least puts this Contract out of dispute shewing the very Institution of the Monarchy before a Right was vested in any single Family or Person When forty Princes who had the Supreme Power here chose from among them a King to Reign over them and govern the People of God and to maintain the holy Christian Faith and to defend their Persons and Goods in quiet by the Rules of Right And at the beginning they caused the King to swear That he will maintain the holy Christian Faith with all his Power and will rule his People justly without regard to any Person and shall be obedient to suffer Right or Justice as well as others his Subjects And what that Right and Justice was in the last result the Confessor's Laws explain when they shew that he may lose the Name of King. These Laws were not only receiv'd by William 1. and in the Codex of the Laws of H. 1. but were the Laws which in the early Contests which the Barons had with their encroaching Kings they always urg'd to have maintain'd and that their Sanction might not be question'd the Observance of them was made part of the Coronation-Oath till some Archbishops careful only of their Clerical Rights provided for no more of those Laws than concerned them By that Oath which is upon Record and in ancient Prints the King is to swear to grant keep and confirm among others especially the Laws Customs and Freedoms granted the Clergy and People by the most glorious and holy King Edward And even after the King 's taking this Oath they were to be ask'd if they would consent to have him their King and Leige-lord Which is the Peoples part of the Contract and thus the Contract becomes mutual To which purpose the Learned Sir Henry Spelman cites Cujacius the great Civilian to shew that Faith between a Lord and Vassal is reciprocal and gives an Instance in the Oath of one of our Saxon Kings Knute for the proof of its being so here between King and Subject And with Cujacius agrees the no less judicious Civilian Pufendorf When says he the Power is conferr'd upon a King there is a mutual Translation of Right and a reciprocal Promise If it be objected That tho' this was at the beginning a Contract with a Free People it ceas'd to be so from the time of the Conquest I answer 1. Till there be a Consent and Agreement to some Terms of Governing and Subjection 't will be difficult if possible to prove any Right in the Conqueror but what may be cast off as soon as there is an Opportunity 2. William 1. was not receiv'd as a Conqueror but upon a mutual Contract upon which old Historians say Foedus pepigit He made a League with the People which comes to the same thing with what the Holy Writ records of King David That the People made a League with him His Coronation-Oath was the same with that which was taken by his Saxon Predecessors except that the Circumstances of that time requir'd an additional Clause for keeping an equal Hand between English and French. 'T is not to be doubted but that the Norman Casuists inform'd him that this related only to Legal Justice but that in Matters of Grace and Favour he
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 qualifie 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 endeavour'd to alter the Fundamental Contract was ipso facto dissolv'd before such Attempt However since the Question is not about a Coercive Power over Kings but barely concerning Allegiance to them whenever he who was King ceases to be so either by the Act of God or the Law the Obligation of Allegiance necessarily determines as the subject Matter of it fails But lest the Liberty allow'd in extraordinary Cases be us'd 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 this has the Right of Judging what the Subject is to perform and has also a Power conferr'd of compelling him to the 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 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 the Observance of which as upon a Condition the Subjects have suspended their Allegiance 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 Swedeland and Norway which had anciently three distinct Negatives in the Choice of a King I shall refer to Krantius particularly in the remarkable Story of their King Erick who was adopted Son of the Three Kingdoms Anno 1411. he having provok'd his People by the Outrages of his Officers and Soldiers he was oppos'd 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 opprest People This so generous an Undertaking was so justly Popular that Eric not able to stem the Tide withdrew from Denmark the Place of his usual Residence to Swedeland But Engelbert's Noble Cause found so few Opposers there also that the King as a Pattern to J. 2. privately ran away and recommended his Nephew in his stead but they told him plainly he was made King by Adoption and had no Right to surrogate another Him there not being the inconsistency of a different Religion between the Head and Members of the same Body they would have receiv'd again upon Terms but he refusing the Three Kingdoms unanimously chose one of another Family For the Authority of the People even in France no longer since than the time of Lewis 11. Hottoman's Francogallia gives a large Proof Nor is the Emperor of Germany more exempt for the Golden Bull of C. 4. provides who shall sit as Judge or High-Steward when he comes to be Impeach'd And by that the Palatine of the Rhine has the like Power with that which Matthew Paris says the Earl of Chester had here as Count Palatine Nor is this in the Empire founded meerly upon that Bull for the Bull it self says Sicut ex consuetudine introductum dicitur As 't is said to have been introduc'd by Custom And Freherus gives an Instance of this before that Bull in the Case of King Albert whom they threatned to depose for killing his Leige-lord Adolphus With Freherus agrees Gunterus in his Octoviratus who says That the Palatine of the Rhine Major Domo to the Emperor is by Custom Judge of the Emperor himself or rather in the highest Matters declares the Sentence of the Electoral College And he cites several Authors to prove the like Office or Power to have been in divers Kingdoms and Principalities and names France England Arragon Spain Denmark Poland Bohemia c. And for France Loyseau in effect shews this Power to have belong'd to their Maior du Palais for he owns the Power to have been greater than the Roman Praefect of the Palace had and yet he cites the Words of the Emperor Trajan giving his Praefect a naked Sword which he enjoyn'd him to use against him if he misgoverned And Loyseau says That this dangerous Office was put down by the Kings of the Third Line that they might perpetuate the Crown in their Family This Office he supposes to have been split into the Conestable's Chancellor's Treasurer's and the Grand Maistre's du France or Count du Palais which he seems to resemble to an High Steward with us And I meet with an old English Author who affirms almost such a Power as is above-mention'd to have belonged to the High-Conestable of England His Words are these As God hath ordained Magistrates to hear and determine private Matters and to punish their Vices so also will he that the Magistrates Doings be call'd to account and reck'ning and their Vices corrected and punished by the Body of the whole Congregation or Common-wealth As it is manifest by the Memory of the ancient Office of High-Constable of England unto whose Authority it pertained not only to summon the King personally before the Parliament or other Courts of Justice to answer and receive according to Justice but also upon just occasion to commit him to Ward 3. There has been no Hereditary Right to the Crown of England by Proximity of Blood from the Fundamental Contract but the People have had a Latitude for the setting up whom of the Blood they pleas'd upon the determination of the Interest of any particular Person except where there has been a Settlement of the Crown in force The Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any Consequence that the Dissolution of the Contract between the immediate Prince and People destroys the Form of Government for that depends upon a prior Contract which the People entred into among themselves And that by vertue of this to avoid endless Emulations Kings have generally from the first Erection of the English Monarchy been chosen out of the same Family appears beyond contradiction I know some talk of a Birthright and Inheritance in the Crown which is not founded in the Statutes but on the Original Custom and Constitution of the English Government which is an Hereditary Monarchy according to proximity of Blood. But I would
desire all Men of this Opinion impartially to weigh these following Particulars 1. There was very anciently an Act made in a General Convention of all England in Conventu Pananglico That their Kings should be elected by the Clergy senioribus populi and the Elders of the People that is such as were Members in their Great Councils or Witena Gemots Assemblies of sage or wise Men. This tho it was long before the reputed Conquest yet was never repeal'd or cut off by the Sword nay seems receiv'd with the Confessor's Laws as included in them Which leads to another Head. 2. The Confessor's Law receiv'd by William 1. and continued downward as the noblest Transcript of the Common Law shews that the Kings of England are elected and the End for which they are chosen by the People After the same manner do the ancient Historians and Lawyers commonly express Accessions to the Throne and seem industriously to mind Kings of it that according to the Caution given the Jewish King their hearts be not lifted up above their Brethren 3. According to the Usage from before the reputed Conquest downwards the People are ask'd whether they are content to have such a Man King 4. The most Absolute of the English Monarchs never believ'd that their Children had a Right to the Crown except the People consented that they should succeed as appears by King Alfred's Will and the Death-bed Declaration of William 1. And therefore some of our Kings against whom there has been no pretence of better Title in any particular Person or Family when they stood upon good Terms with their People have often prevail'd with them in their Lives-time to secure the Succession to their Eldest Sons and H. 2. to prevent hazarding the Succession endanger'd himself by getting his eldest Son Crown'd himself living But as the going no farther than the eldest argues that they look'd on that as a Favour the pressing for a Settlement on their Issue in any manner argues that it was not look'd upon as a clear Point of Right without it Of later Times Settlements have been made in Tail which tho they were occasion'd by Pretences to Titles are Records against an Hereditary Monarchy 5. The Oaths of Allegiance required of all the Subjects were never extended to Heirs but were barely Personal till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster and tho' H. 4. obtain'd in Parliament an Oath to himself the Prince and his Issue and to every one of his Sons successively and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York yet perhaps no Oath of Allegiance to the King and His Heirs can be shewn to have been requir'd of the Subjects in general till that 26 H. 8. according to the Limitations of the Statute 25. 6. Even where the People had settled the Crown they seem'd to intend no more than to give a Preference before other Pretenders not but that upon weighty Reasons they might alter it as appears by Pollydore Virgil who was never thought to lie on the Peoples side whatever Evidences for them he may have conceal'd or destroy'd whose Words of H. 5 to whom the Crown had been limited by Parliament may be thus rendred Prince Henry having buried his Father causes a Council of Nobles to be conven'd at Westminster which while they according to the Custom of their Ancestors consulted about making a King behold on a sudden some of the Nobility of their own accord swear Allegiance to him which officious Good-will was never known to have been shewn to any before he was declared King. 7. As the Practice of the Kingdom is an Evidence of its Right numerous Instances may be produc'd of Choices not only so called by the Historians but appearing so in their own Natures wherein no regard has been had to Proximity but barely to Blood. And I believe no Man can shew me any more than Two since the reputed Conquest of whom it can be affirm'd with any semblance of Truth that they came in otherwise than upon Election express'd by the Historians of the Time or imply'd as they had no other Title or else a late Settlement of the Crown either upon themselves immediately or in Remainder The Two upon which I will yield 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 People's 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 perhaps one may be struck off For tho' Walsingham says of E. 1. They recogniz'd him for their Leige-lord that does not necessarily imply a Recognition from a Title prior to their Declaration for which way soever a King comes in duely 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 Paterni honor is successorem ordinaverunt They ordain'd or appointed him Successor of his Father's Honour And yet his Father 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 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. 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 But this is farther observable of R. 1. 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 as it should seeem notwithstanding which the Archbishop 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 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 which Word was then of a large extent Wherefore I submit it to Consideration whether these are any Exceptions to the General Rule or are not at least such as confirm it 8. The Parliament 11 H. 7. declares That it is against all Laws Reason and good Conscience that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince or Sovereign Lord for the time being that is to the King de facto as appears by the Occasion of the Law to encourage the Service of H. 7. who had no Title but from his Subjects and there is a Provision That any Act or Acts or other Process of Law to the contrary shall be void Which being built upon the Supposition That according to the Fundamental Law the People's Choice gives sufficient Title perhaps is not vain and illusory as the Lord Bacon would have it but argues strongly that the Parliament then thought the Monarchy Elective at least with that Restriction to the Blood which I yield And if this be part of the Fundamental Contract for which it bids very fair then perhaps no body of any other Stock may be King within this Statute To what I have offer'd on this Head the following are all the Objections of seeming weight which have occurr'd to me The Maxim in Law That the King never dies or to use the Words of Finch The Perpetuity which the Law ascribes to him having perpetual Succession and he never dies for in Law it is called the Demise of the King. To which I answer 1. That neither that Book nor any Authority there cited is so ancient as the Settlement of the Crown above observ'd and that the Death is but a Demise or transferring the Right immediately to a Successor may be owing to the Settlement but is no Argument of any Right otherwise 2. Even where there is an Election tho' never so long after the Death of the Predecessor yet by way of Relation 't is as if there were a Demise or Translation of Interest without any Interregnum as it was resolved by all the Judges 1 Eliz. of which the Words of Lord Dyer are The King who is Heir or Successor may write and begin his Reign the same day that his Progenitor or Predecessor dies with which agrees the Lord Anderson But that to many intents a King dies in his Politick Capacity as well as Natural appears by the discontinuance of Process in Criminal Causes and such in Civil as was not return'd in the Life of the former King till kept up by Statute the determination of Commissions and the like 'T is urg'd That the Hereditary Right contended for has not been interrupted by the People's Elections so oft as it should seem by the Breaches in the Succession for that many who came in before them who stood next were Testamentary Heirs of the Appointment of the Predecessor which argues an Inheritance in him that disposes And Dr. Brady thinks he produces an Example where the Election of the People was bound and limited by the Nomination of the Predecessor But if he had duely weigh'd the Presidents of this kind he might have understood that an Election without a Nomination had full effect while a bare Nomination had none and he might have learnt from Grotius that among the Germans from whom we descend Kingdoms did not use to pass by Will and that Wills were but Recommendations to People's Choice but not Dispositions I find it urg'd That as anciently as the time of E. 3. the Realm declar'd That they would not consent to any thing in Parliament to the disherison of the King and his Heirs or the Crown whereunto they were sworn If any Colour of Evidence can be produc'd that the Subjects of England so early as that swore Allegiance to the King and his Heirs this were to the purpose Indeed I find that before this 24 E. 1. a Foreign Prince the King of Scotland Feudatory to the Crown of England did Homage to the King and his Heirs but the like not being exacted of the Subjects of England till particular Acts whereby the Crown was setled it argues strongly as indeed appears from the Subject Matter that the Homage paid by a Foreign Prince was due to none but the present King and his Successor to the Kingdom whoever was next of Blood And by parity of Reason the Disherison of the King and him her or them who succeeded to the Crown was all that could be referr'd to when they urge the Obligation of their Oath to the King and his Heirs or the Crown which appears farther not only from the old Oath of Allegiance to which they must needs have reference whereby they are bound to defend the Rights of tbe Crown but even from the Matter then in question which was not of the Right of Succession but of a Flower of the Crown Bracton puts this out of dispute when he tells us That Inheritance comes not from an Heir but an Heir from Inheritance and that Inheritance is the Succession to all the Right which the Predecessor had by any sort of Acquisition With Bracton agrees the Civil Law Haeredis significatione omnis significari Successores credendum est etsi verbis non sunt expressi By Heirs we are to believe all Successors to be signified altho' not exprest in Words And again Nihil est aliud haereditas quam successio in universum jus quod defunctus habuit Inheritance is nothing else but Succession to all the Right which the Deceased had Wherefore I cannot but wonder that so Learned a Man as Sir P. P. should cite this to prove that Allegiance is due to the Heirs and Successors in a Legal Course of Descent that is as he explains or receives it out of Mr. Prynne by proximity of Succession in regard of Line Nor is this Learned Man more fortunate in mentioning the Salvo which Littleton tells us is to be taken to the Oath of Homage to a Subject Salve la Foy que jeo doy a nostre Signior le Roy where there is not a word of Heirs but he tells us that Littleton cites Glanvil where the word Heirs is whereas 't is the Lord Cook who makes the Quotation as he does of Bracton whose Sense of the word Heirs we have seen and Littleton fully confirms it by leaving out the word Heirs as a Redundancy Allegiance being due to every one that becomes King and to no other But to put the extent of Heirs to a King out of Controversie we have the Resolution of all the
Subjects have suspended their Obedience Nor is the German Author Knichen less plain whose Words are If the Magistrate have absolute and full Majesty due Subjection ought by no means to be denied him tho' he be impious Nor may another be substituted in his room upon his being cast out Much less can a new Form of Government be introduc'd But if he were constituted by the People under certain Pacts and Promises sworn to him by the People and therefore is bound to certain Rules of Laws and either to do or avoid things contain'd in those Contracts whether Fundamental Laws or things particularly concerted as for Example the Emperor in our Empire They not being observ'd but studiously enormously and obstinately violated the Hopes of Amendment after many of the Subjects Prayers and Admonitions plainly vanishing he may rightfully be remov'd by the States and People c. The Reason is Because he was promoted to the Government by such Agreement and that sworn to according to the Laws of the Agreement or Contract The Nature of which consists in this That if that Party for whose Sake or Cause they are Constituted violate them the other Party of very Right is freed from the Observance of those things which are granted by such Laws Nor does Philip Pareus come short of this in his Defence of his Father David where he speaks very particularly of the Effect of the mutual Compact But notwithstanding the Discharge from Allegiance to J. 2. some will urge That it continues to the Person that stands next in Blood. Against which I doubt not but I shall offer full Evidence For 1. If as I have shewn the Promise to the King himself be Conditional and his Interest determines by his Breach of the Condition be the Condition precedent in which Case no Interest is vested till Performance or subsequent in which the Breach divests what before was settled What Interest can the Heir have in a Conditional Estate determined by Breach of the Condition And since it has been made appear That the Heirs of a King with us take not as Purchasers by an Oâ—â—ginal Contract upon which there might be some Pretence of an Interest vested in them independent on their Father's Title but they who can be said to have succeeded without an immediate Choice did it by vertue of subsequent Settlements entirely depending upon the Original Contract continuing down to their immediate Ancestors respectively If that Contract be dissolv'd what can support the Settlement Can the Agreement for the Benefit of a King and his Posterity be suppos'd to be other than that if he govern them as King performing the Essentials of the Contract on his part he and his Descendents shall enjoy the Crown Can it be imagin'd that this was made for the separate Benefit of the Heir without regard to the Ancestor's Performance Or is it to be supposed in the nature of the thing that the People would have made such a Contract whereby after being justly discharged from their Allegiance to a King and having acted pursuant thereto they shall enable a Successor to revenge his Ancestor's Quarrel This were such a Contract as that which the Lord Clarendon assures us if never so real can never be suppos'd to be with the intention of the Contracter And Grotius argues against a King's Power of aliening his Kingdom from hence that this is not to be prsum'd to have been the Will of the People in conferring the Power And in another place he says Right is to be measur'd according to the Will of him from whom the Right arises 2. The Power of the King being as Fortescue has it and the Authorities above plainly evince a Populo effluxa deriv'd from the People and the Interest of J. 2. being determined he yet living so that there can be no Heir to him or of his Body What hinders the Operation of the known Rule in Law That where there is no Remainder to take effect at the Determination of the particular Estate it shall revert to the Donor Which in this Case is manifestly the People If it be said That this Rule shall not extend to the Descent of the Crown which differs from Common Inheritances I dare say No Man can shew any Difference but what is more strong for the People's Choice For whereas Common Estates are for the Benefit of them who have the present Interest the Crown is a Trust for the Benefit of the People 3. The Ancient Statute above-mentioned of which the Lords and Commons mind R. 2. upon his Male-administration says That upon putting the King from his Throne with the Common Assent and Consent of the Nation for the Causes there exprest they may set upon the Throne in his stead propinquiorem aliquem de stirpe Regia some body of Kin to the King of the Royal Stock If they were tied to the next it certainly would have been proximum Besides the word aliquem shews a Latitude And according to this upon R. the Second's being Deposed H. 4. claimed the Crown Al 's descendit be ryght Lyne of the Blode comeynge fro the gude Lord Henry Therde But because this without consideration of his Merits in rescuing them from R. 2. entitled him to the Crown no more than another of the Blood therefore the Lords and Commons drew up an Instrument purporting their Election 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 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 was in the time of H. 4. Nor as I shall shew was the Crown enjoy'd by J. 2. under better Title than they had H. 5. and 6. came in under an Entail of the Crown 7 H. 4. confirmed 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 came to an Agreement in Parliament That Richard and his Heirs should enjoy the Crown after the Death of Henry And tho' here the word Heirs is mention'd without restraint yet considering that it is the first time that ever the Crown was settled so far 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
And the French King from him his Fate shall find B'ing slain or twice a Pris'ner but at last He surely by the Sword his Death shall taste His Kingdom lost Progeny prest with Woe And all his Captains meet an Overthrow Then Fortune adverse to the Frenchmen brings Their Praise to crowch under the Eagles Wings The King of England then may justly fear The like Calamities with France to bear He and his Party luckless Chance may try And with a mighty Slaughter prostrate lie For Madness 't is against the Fates to rise And yet The Stars are govern'd by the Wise FINIS Advertisement THere are lately Printed for Timothy Goodwin at the Maidenhead against St. Dunstan 's Church in Fleet-street these Three Books following I. An Enquiry into the Power of Dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edward Herbert Lord Chief Justice of the Court of Common-Pleas Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales's Case II. The Power Jurisdiction and Priviledge of Parliament And the Antiquity of the House of Commons Asserted Occasioned by an Information in the King's-Bench by the Attorney-General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Jurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes III. A Defence of the Late Lord RVSSEL's Innocency By way of Answer or Confutation of a Libellous Pamphlet Intituled An Antidote against Poyson With Two Letters of the Author of this Book upon the Subject of his Lordship's Tryal Together with an Argument in the Great Case concerning Elections of Members to Parliament between Sir Samuel Barnardiston Plaintiff and Sir William Soames Sheriff of Suffolk Defendant In the Court of King's-Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber All Three Writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Judges of the Court of Common-Pleas Hi sunt qui trepidant ad omnia fulgura pallent Vid. the Lord Delamere and Sir Ro. Arkyns upon the Lord Russel's Trial and Mr. Hawles's Remarks upon that and others c. Sed quid Turba Romae sequitur fortunam ut semper odit Damnatos Nostredamus Natus Anno 1503. Denatus Anno 1566. The Edition here chiefly followed Anno 1568. Vid. his Preface to his Son. Cent. 9. 49. Cent. 2. 51 53. Vid. Nostredamus his Preface Cent. 3. 80. Cent. 1◠80. 82. 83. Cent. 6. 43. 3. 9. 3. 49. 6. 34. Cent. 5. 34. 9. 38. Gazet Dec. 6. Paris Dec. 8. Orders are given for the fortifying with all possible diligence the Town and Citadel of Blay on the Garonne a Cent. 9. 38. 9. 64. 10. 7. b Cent. 6. 2. c 5. 24. 5. 87. d Cent. 6. 7. 10. 56. 5. 18. 5. 4. 4. 22. 4. 75. 1. 13. 1. 35. 2. 78. 2. 38. 5. 4. e 8. 58. 10. 26. A MS. in Trinity-Colledge Library in Cambridge cited in the Future History of Europe Ed. An. 1650. and in the Northern Star. Nolo Nolle Nullus David Pareus natus Anno 1548. obiit Heidelbergae Anno 1622. postquam triennio ante per quietem vidisset totam urbem occulto incendio fumigantem c. Hoffmanni Lex Ant. Torquatus de eversione Europae Dedicated to Matthias King of Hungary Anno 1480. Edit Anno 1552. a See this excellently well done by my Learned Friend Mr. James Tyrrel in Patriarcha non Monarcha b Grot. l. 3. p. 52. Summae potestatis Subjectum Commune est Civitas Vid. Schellium de Jure Imperii p. 32. Plato 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 definit eum qui judiciorum magistratuum particeps sit Sam. Puffend de Officio hominis Civis p. 265. V. Sacrosanct regum Majest Potestas designativa personae collativa potestatis Nullus interritus est reipublicae naturalis ut hominis Cicero de Rep. Of equitable Reservations Vid. Earl of Clarenden's Survey of the Leviathan p. 86. speaking of a Contract whereby the absolute Power of Mens Lives shall be submitted c. He is not bound by the Command of his Sovereign to execute any dangerous or dishonourable Offices but in such Cases Men are not to resort so much to the Words of the Submission as to the Intention Which Distinction surely may be as applicable to all that monstrous Power which he gives his Governour to take away the Lives and Estates of his Subjects without any Cause or Reason upon an imaginary Contract which if never so real can never be suppos'd to be with the Intention of the Contractor in such Cases V. Cocceium de Principe pag. 197. Leges fundamentales regni vel imperii quae vel disertè pact ae sunt cum Principe antequam imperium ineat ut fit hodie cum imperatore quamvis non ad eum modum jura Majestatis possideat quo olim Principes plerisque aliis in regnis vel sub ipso regimine a Principe populo vel ordinibus conduntur ut est aurea bulla Carol 4. alia quaedam in imperio Romano-germanico vel saltem tacitè reipublicae inesse videntur Sanderson de Juramenti obligatione p. 41. Vid. Stat. 13 car 2. c. 1. Vid. infra V. Grounds and Measures of Submission Salus populi suprema lex Vid. Johannis a Felde Annotata ad Grot. c. 3. 4. Grot. de jure Belli Pacis c. 3. p. 60. Vid. Pufendorf Elementa Juris prud p. 256. Nemo alteri potest quid efficaciter injungere per modum praecepti in quem nihil potestatis legitimae habet Grot. c. 4. p. 86. habet pro derelicto Vid. Bellarmine how the Pope hooks in Temporals in ordine ad Spiritualia Vid. Leges S. Edwardi Jovian p. 280. Ib. p. 192 193. Jov. p. 87. Vid. Just Inst tit 2. Quum lege regiâ quae de imperio ejus lata est populus ei in eum omne imperium suum potestatem concedat Vid. Raevardum de Juris ambiguitatibus Lib 4. c. 12. de Jure publico Bilson of Christian Subjection Ed. 1586. p. 279. p. 280. Platonis Politicus f. 299. Ed. Serrani 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 V. Leges Sancti Edwardi 17. de Regis Officio Nec nomen Regis in eo constabit Vid. Bracton l. 2. c. 24. Est enim corona regis facere justitiam judicium tenere pacem sine quibus corona consistere non potest nec tenere Hoveden f. 604. Rex atque vicarius ejus Nota There was occasion for naming the Deputy by reason of the accession of Normandy requiring the King's absence sometimes Vid. the Case of Rehoboam inf in the Quotation out of Lord Clarendon Lambert Qui vigilanter defendunt regunt Ecclesiam Dei populum ejus Barones Majores Minores Vita Aelfredi f. 62. Ego tria promitto populo Christiano meisque
nobilitas West-Saxonicae gentis consentiunt quod me opertet dimittere eos ita liberos sicut in homine cogitatio ipsius consistit Camd. Brit. f. 104. de W. 1. Neminem Anglici regni constituo Hâ—redem sed aterno conditori cujus sum in cujus manu sunt omnia illud commendo non enim tantum decus haereditario jure possedi c. V. Leges W. 1. de Fide c. Statuimus etiam ut omnes liberi homines foedere sacramento affirment quod intra extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt c. Leges S. Edw. tit Greve Vid. Juramentum homagii facti Regi Prynne's Signal Loialty p. 274. Poll. Virgil. l. 22. sub initio Nota Proceres may take in the Nobiles minores William 2. was elected during the Life of his eldest Brother who was set aside by the English against whom he had discovered Ill-will in spite of the Normans So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive and H. 2. succeeded in her Life-time upon an Agreement made with Stephen by the People's Consent R. 1. as within King John crown'd in the Life-time of his eldest Brother's Son Prince Arthur So was his Son H. 3. in the Life-time of Elenor Prince Arthur's Sister E. 1. as within E. 2. elected E. 3. set up by the People in his Father's Life-time which the Father took for a Favour R. 2. declared Successor by Parliament in the Life-time of his Grandfather H. 4. of the younger House came in by the People's Choice upon their deposing R. 2. H. 5. 6. Son and Grandson to H. 4. came in upon a Settlement E. 4. of the elder House camâ— in under an Agreement made in Parliament between his Father who liv'd not to have the Benefit of it and H. 6. his Son. E. 5. was never crown'd R. 3. who set him aside was of the younger House H. 7. who vanquish'd him could have no Right of Proximity for the Daughter of E. 4. and his own Mother were before him All that came in since enjoy'd the Crown either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest Walsingham f. 1. Walsingham ib. Sir P. P. Obligation of Oaths f. 295. Walsingham Ypod Neustriae f. 45. Walsingham f. 68. Bromton f. 1155. So Hoveden f. 656. Bromton f. 1159. Hoveden f. 656. 11 H. 7. c. 1. Lord Bacon's Hist of H. 7. f. 145. Object 1. Finch's Description of the Common-Law French Ed. An. 1613. f. 20. b. 21. a. The same made use of Reflections upon our late and present Proceeding p. 10. Answ Dyer f 165. Anderson f. 44. He has it Le Successeur le Heir elsewhere 't is Heir ou Successeur Ib. f. 45. v. 1 E. 6. c. 7. v. 7. Rep. f. 30. Object 2. Brady's Hist of the Succession f. 8 9. Answ Grotius de jure Belli Pacis lib. 1. p. 60. Object 3. Vid. Debates about Deposing Answ Knighton f. 2482. Leges Sancti Edwardi tit Greve Conjurati fratres ad defendendum regnum c. honores illius omni fidelitare cum eo servare So Leges W. 1. tit De fide obsequio erga Regem Quod Willielmo Domino suo fideles esse volunt honores illius c. defendere Bracton lib. 2. cap. 29. Vid. Sir P. P. As Successors are Heirs so Dr. Brady tells us Gloss f. 18. That Prepossessor one that possest the Land before the present Possessor without any relation to Blood or Kindred is Ancestor in Doomsday and in the Writ de morte Antecessoris Sir P. P. Obligation of Oaths f. 302. Fol. 298. Fol. 300. Sir P. P. f. 297. Littleton tit Homage sect 85. Popham's Rep. f. 16. 17. Object 4. Rot. Parl. 1 E. 4. Answ Fortescue de laudibus Legum Angl. c. 3. Jovian p. 253. Pufendorf de Interregnis p. 288. Quod si dubitatur qui gradus aut quae linea sit potior declarata voluntas populi finem liti imponet c. Vid. 3 Inst f. 7. upon the Stat. of Treason 25 E. 3. referring in the Margin to this Statute This is to be understood of a King in possession of the Crown and Kingdom for if there be a King regnant in possession altho he be Rex de facto and not de jure yet he is Seignior le Roy within the Purview of this Stature and the other who hath the right and is out of possession is not within this Act nay if Treason be committed against a King de facto and after the King de jure come to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a Kind de jure that is not also de facto is void 11 H. 7. c. 1. That the People of England were lately restor'd to a qualified Choice Sanderson de Obligatione Juramenti Lect. 4. Vid. Sir Robert Atkins his excellent Defence of the Lord Russel f. 22 23. Rastal's Entries tit Reattachment f. 544. b. Resum ' c. quia extra Regnum Angliae Progres fecimus nullo locum tenente nostrum sive Custode Regni relicto e. Hobart f. 155. Ved Leges 12 Tab. de Magistrat Digest lib. 49. tit 15. de Captivis Postliliminio Transfugae nullum postliminium est nam qui malo Consilio Proditoris animo patriam reliquit hostium numero habendus est c. transfuga autem non is solus accipiendus est qui aut ad hostes aut in bello transfugit sed ad eos cum quibus nulla amicitia est fide susceptâ transfugit Imp. Theod. Valentin Caes ad Volusianum Praefectum Praetorio Digna vox est Majestate regnantis Legibus ad ligatum se principem profiteri Adeo de auctoritate juris nostra pendet auctoritas reverâ majus imperio est submittere Legibus principatum Et oraculo praesentis Edicti quod nobis licere non patimur aliis indicamus Pufendorf de Officio Hominis Civis p. 201. Pufend. Elementa Jurisprudentiae p. 85. 94. Vid. Puf. supr de Interregnis p. 274. Pufend. Elementa Jurisprud p. 94. Pufend. de Jure Gentium p. 1105. V. Grot. de Jure Belli Pacis de summitatem habendi plenitudine p. 62. Dissertationes de Interreg p. 272. supra Rudolphi Godofredi Knichen opus polit f. 1226. Philippi parei Vindicatio p. 50 51. Vid. Brook tit Condition n. 67. Vid. Lit. c. 5. Estates sur Condition V. L. Clarendon cited above in the Margin his Survey of the Leviathan p. 86. Grot de Jure Belli Pacis l. 1. c 3. p. 60. Grot. sup p. 64. Fortescue Vid. 11 H. 6. f. 12. b. Rolls Abr. tit Remainder f. 415. V. sup Knighton f. 2683. Nota Not proximum Rot. Parl. 1 H. 4. n. 54. Ib-n 55. Brady's Hist of the Succession f. 25. Vid.