Kingdom which was more to be regarded and because it was contrary to the Oath which he took at his Coronation Iura Regni sui illibata servare That the Rights of the Kingdom were to be preserved inviolable Sylvester in sum 6. juram 4. n. 16. saith roundly That an Oath doth not bind against the Publick Good in the first Place but if it be for a Private Benefit principally and consequentially for the Publick then the Oath holds because still the publick Good is to overrule in all such Oaths If a Man swears to keep a Secret and that be to the Prejudice of a third Person the Casuists say That Oath doth not oblige how much less where the Publick Interest and safety is concerned And it is generally agreed by our Divines That an Oath of Secrecy where the Publick Safety is in Danger doth not bind as in Garnet's Case who pleaded his Oath for not discovering the Gun-powder-Treason Now if an Oath doth oblige against the common Good Garnet made a good Plea for his Discovery was to the Prejudice of others but if his Plea was naught then the Publick Good doth make the Obligation of an Oath to cease Suppose a Man makes a Contract with another who thereby acquires a Right yet if that Contract be against the common Good and be confirmed with an Oath that Oath doth not oblige saith Bonacina de contract disp 3. q. 1. p. 1. There are two sorts of Law saith Suarez which respect the Publick Good some which concern ipsum statum Reipub. utilitatem communitatis the general State of the Commonwealth and Benefit of the Community Others which concern Bonum commune mediante privato that common Good which results from every Man 's Good against the former he saith an Oath cannot oblige but in the latter it may as far as concerns his own Benefit Suarez de juram l. 2. c. 26. No Obligation though sworn to is of any Force against those things which are owing to God and the Kingdom saith Zeiâ—lerus in his Notes on Grotius de jure B. P. l. 2. c. 13. § 7. From all this it appears That if the Right of a third person be inconsistent with the publick Good such an Oath doth not oblige And it is to be observed That those Persons whose Testimonies are alledged never put the Case of the Right in a third Person and a Publick Good standing in Competition and therefore they do not reach our present Case II. It is alledged That this Oath is contradictory to a former Oath Bishop Hall again History of passive Obedience p. 46. No Oath is or can be of Force that is made against a lawful Oath formerly taken so that he that hath sworn Allegiance to his Sovereign and thereby bound himself to maintain the Right Power and Authority of his said Soveraign cannot by his second Oath be tied to do ought that may tend to the infringement thereof and if he hath so tied himself the Obligation is ipso facto void and frustrate No Doubt if the first Oath continues in Force the second is void so far as it contradicts it But we say The former Oath is not in Force as it is repugnant to the publick Good and so the second may be taken without any Contradiction And if the Doctrine there laid down holds in our Case I cannot see how it is consistent with the former Oath for any such Persons to continue under the Protection of the present Government or to enjoy the Benefit of the Laws or to take out a Writ in their Names any more than to pray for them the one being owning their Authority as much as the other III. Because the Person who had the Right hath given no Release For this Dr. Hammond is quoted in his Practical Catechism History of Passive Obed. p. 54. S. but was not Tiberius an Vsurper and yet Christ saith Render to Caesar the things that are Caesar's C. Julius Caesar wrested the Power out of the Hand of the Senate but before the Time of Tiberius the Business was accorded between the Senate and the Emperors That the Emperors now reigned unquestion'd without any Competition from the Senate which Case he saith is distant from other forcible Vsurpations where the Legal Sovereign doth still claim his Right to his Kingdoms and to the Allegiance of his Subjects no way acquitting them from their Oaths or laying down his Pretensions To clear this Matter I shall enquire into two things 1. How far a Discharge is necessary from the Person concerned 2. How far our Saviour's Rule holds in our Case As to the former I say The Resolution of Conscience in this Case doth not depend upon the Will and Pleasure of the Person to whom the former Oath was made but upon the Grounds on which it was made and from which it had its force to oblige And if those cease the Obligation of the Oath ceases together with them And whether they do or not no particular Person is so fit to judge as the three Estates of the Realm as I shall now prove from several remarkable Instances to this purpose in our Histories and Parliament Records whereby I shall make it appear That when a Dispute hath happened about the Right of Succession and to whom the Oaths of Allegiance were to be made they have looked on it as their proper Right To limit the Succession and to determine the Oaths Under the British Government we find a considerable Instance to our Purpose Vortigern the British King had entered into a Secret League To bring over the Saxons upon which the Great Men of the Nation deserted him and chose Vortimer in his room Here it is plain They thought the introducing a Foreign Power a sufficient Discharge of their Obligation to him it being so directly contrary to the publick Good of the Nation although Vortigern gave them no Discharge In the Saxon Times Sigebert King of the West Saxons was complained of for Misgovernment and for changing their Laws for his own Ends but when he persisted in his Way there was a Convention of the Nobility and People convenêrunt Proceres Regni cum Populo universo saith Matt. Westminster and they declared themselves free from Allegiance to him and chose Kineulfus in his room In the Kingdom of Mercia Beornredus for not governing by the Laws was by a Convention of the Nobility and People set aside from the Government and Offa chosen King who was of the Royal Stem but not the next Heir and so William of Malmsbury observes in the West Saxon Kingdom after Ina That no lineal Succession was then observed but still some of the Royal Line sat in the Throne And of Ina himself That he was rather put into the Throne for his Virtue than by Right of Succession Aethelulphus King of the West Saxons went to Rome and there crowned Alfred his youngest Son King and married the King of France's Daughter in his Return and made her Queen against their Laws for which Reasons he was excluded his Kingdom His
it And it is not to be imagined that such who entred into compact for their Benefit should renounce all right to it when they have done it and if they have Right they may be wronged And in the case of the greatest Slavery Natural Equity was required and a Common Right was still due to Slaves as Men So that Nature owns no such thing as meer Absolute Power in some over others meerly for their own advantage but all Reasonable Power supposes Consent and a Good to be attained by it But when it is carried to a contrary end it is against the Intention of Nature which lays an obligation on some men towards others with regard to a Common Good which cannot otherwise be attained It is not denied by the strictest Casuists in these matters but that under a state of usurpation notwithstanding their Oaths to the Rightful Prince men are bound to do those things which tend to the Publick Safety as well as their own But then they found it upon a presumptive Consent of the absent Prince whereas the true Reason is That Men are in the first place bound to promote the Publick Good and consequentially and with respect to it to regard the Will of their Princes who are appointed by God and Nature for that end And if such be rendred uncapable of doing it yet the Obligation on others remains Whereas if it depended on the Will of the absent Prince his presumptive Will would not be sufficient for that can lay no obligation But that the Publick Good is the true and just measure of the Obligation in these Oaths doth further appear in that the Oaths are reciprocal Whereas if only the Good of the Persons to whom Oaths of Allegiance are made were to be our Rule then there would be no mutual Oaths I am not now enquiring how far in reciprocal Oaths one Party's failing disobliges the other but I am shewing That it must be a General Good that is aimed at when both Parties are sworn to each other so it was in the strictest Feudal Allegiance the Lord was as much sworn to the Tenant to protect and defend him in his Rights as the other was to attend him in his Wars for the security of his Person And this was certainly founded on a mutual Contract called by the old Feudists Liga and thence Ligeas and Ligeantia and so our Allegiance The words of Glanvil and Bracton and the Customary of Normandy are plain to shew the Reciprocal Obligation in this Case and the measures on both sides were to be the Rights and Customs and Laws of the Land. So that Allegiance originally implies a Compact and is to be measured by the Laws which are the Standard of the Publick Good of a Country 2ly Having thus in general fixed these grounds to proceed upon I come to the particular examination of the difficulties which relate to the present Oaths and because we are charged with Apostacy from the Principles of the Church of England and that is made the main ground of the designed Separation I would fain know what this Charge is built upon with respect to the Oaths for that is all we are concerned in If any particular Persons have advanced new Hypotheses of Government contrary to the Sense of our Church let them answer for themselves The Case of the Oaths is quite of another Nature Here is no Renouncing the Doctrine of Passive Obedience or asserting the Lawfulness of Resistance but the single Point is Whether the Law of our Nation doth not bind us to Allegiance to a King and Queen in actual Possession of the Throne by consent of the Three Estates of the Realm and whether such an Oath may not lawfully be taken notwithstanding any former Oath And by this very stating of the case any one may see how impertinent to this purpose the Book called the History of Passive Obedience is the truth is there are not many passages in it which come near the business but those that do contain in them the main difficulties which relate to the Oaths and therefore I shall impartially consider them Which are these I. That they are to the prejudice of a third Person II. That they are contradictory to a former Oath III. That the Person to whom they were made hath given no release or discharge from them For the first we have these Testimonies Bishop Hall p. 46. saith That a Promissory Oath which is to the certain Prejudice of another man's Right cannot be attended with Iustice. Bishop Sanderson p. 61. An Oath imposed by one that hath not a just Authority is to be declined as much as we can if it be forcibly imposed it is to be taken with reluctancy upon this condition that the words imply nothing unlawful or prejudicial to the Rights of a third Person for if so we must refuse the Oath at the peril of our lives I grant it is a Rule among the Casuists That an Oath ought not to be taken to the Prejudice of a third Person but so it is likewise That it ought not to be taken against the Publick Good and these two are often put together It is a sin saith Zoesius to make a compact to the publick prejudice and injury of another and an Oath that is conversant about such a matter is unjust and not to be kept So that the Right of a Third Person is not to be taken as distinct from the Publick Good for if it be inconsistent with it there is no ground to set up a personal Interest against a General Good. And so far a Mischief is better than an Inconvenience for it is a standing Rule in Reason as well as Law The publick Right cannot be changed by the Contracts of particular Persons ff l. 2. tit 14. If a Man takes an Oath to a third Person to do something which the Law forbids although he suffers by it yet it is concluded That such an Oath doth not bind because the Publick Good is to be preferred As often as a Compact doth depart from the Common Right it ought not to be kept nor is an Oath requiring it to be observed ff l. 2. tit 14. Iuris Gentium § 16. And again An Oath against the Force of Law and Authority of Right is of no moment What is the Reason that an Oath doth not bind against the Law Is not the Authority of God above that of Men No doubt of it but since God hath established Government and Laws for a Publick Good their meaning is That Men cannot by any Act of their own be bound to overthrow it in what solemn manner soever it be done It is resolved in the Text of the Canon Law in the King of Hungary's Case That an Oath taken against the good of the Kingdom doth not oblige de jurejur c. 33. intellecto although it were to the Prejudice of others because it was in Praejudicium Regni sui to the Prejudice of his
eldest Son and Alstan Bishop of Shireburn being at the Top of this Act of Exclusion and he came back only upon the Terms of receiving his Son into a Share of the Kingdom Which shews That they looked on the Laws as the Measure of their Allegiance and where those were openly broken that it was in their Power to transfer it If our Allegiance cannot be transferred by the States of the Realm it must be because as some think by the fundamental Constitution of this Kingdom we are bound in Allegiance to the next right Heir in a Lineal Succession but I find no such thing in the Saxon Times for although generally they kept to the Royal Line yet not so but that when it appeared to be much more for the Publick Good they did not stick upon the Point of Proximity I shall not meddle with the Kingdom of the Northumbers which alone was originally Elective as appears by Matt. Westminster wherein there happened so great Disorders and Confusions that at last William of Malmsbury saith None could be perswaded to accept of the Kingdom and so it continued thirty three Years till at last Egbert took it into his Hands and so it became a Part of the English Monarchy which was established in him But if by the fundamental Constitution Allegiance were indispensably due to the next Rightful Heir in this Monarchy how came Athelstan to be crowned magno consensu Optimatum saith Malmsbury when he was not the Rightful Heir Some say from an old Monk in Malmsbury That his Father left him the Crown by his Testament which doth not clear the Difficulty as to the inviolable Right of Succession by the Constitution But this cannot be true for his elder Brother Elwardus died after his Father and none pretend that his Father disinherited him And if Athelstan were lawful Heir what made him to dispatch his Brother Edwin out of the way and to build two Monasteries for Expiation of that Guilt How came Alfred to oppose his Election as being illegitimate as Malmsbury confesses But Matt. Westminster gives the Reason The Times were then difficult and Edward's other Sons were too young to manage the Government and therefore they set up Athelstan as one fit for Business How came Edred to succeed Edmond and not his Sons Edwin and Edgar Matt. Westminster and Bromton give the same Reason They were uncapable by reason of their Age Repugnante illegitimâ aetate Patri succedere non valebant Florence of Worcester saith The Northumbers sware Allegiance to Edred and he saith He was next Heir and yet there were two Sons of Edmond before him for he confesses That they were the Sons of Edmond and Algiva his Queen After the Death of Edred the eldest Son of Edmond succeeded but being found under a Moral Incapacity for in Florentius his Words and Matt. Westminster In commisso Regimine insipienter egit he was set aside as to all the Government beyond Thames and Edgar put into it And not long after into the whole Kingdom by general Consent How came a Dispute to happen about the Election after the Death of Edgar between his eldest Son Edward and Etheldred his youngest I lay no Force on his Mother's Endeavours to advance him but if there had been such an unalterable Right of Succession there had not been any Colour or Pretence for it especially since it is said That his Father declared his Mind That the elder should succeed But saith Florentius Wigorn. There was a great Contention among the great Men about the Choice of the King How could there be any Dispute if they knew the Constitution of the Kingdom to be That the next Heir must inherit the Crown and that those are perjured who transfer their Allegiance After the Death of Ethelred the Nobility and People were divided some chusing Canutus the Dane and swearing Allegiance to him others to Edmund the Son of Ethelred The former pleaded for themselves That Ethelred had broken his Faith with them and therefore they deserted him so as he was fain to fly into Normandy and that Edmond was not his legitimate Son. Matt. Westminster saith That the greatest part of the Nation Clergy as well as Laity did swear Allegiance to Canutus without any Discharge from Ethelred while living or his Son after him After the death of Canutus a new difference arose about the Succession some were for Harold his supposed Son by Algiva others for Hardecnute his Son by Emma If the lineal Succession were a part of our Constitution How come such perpetual Disputes to be concerning it For if it had been owned as a Fundamental Law the Right of Succession must have been clear beyond Dispute But Reason of State and the Publick Interest still over-ruled this matter and so Ethelred's Sons by Emma who were the true Heirs by Legal Succession were set aside and Harold being upon the Place and so best able to manage the Affairs of the Kingdom carried it Hardecnute being dead how came the banisht Sons of Edmund Ironside if he were lawful Heir not to be sent for to succeed If Edmund had no good Title how was the Right of Succession then preserved How could Allegiance on these Principles be sworn to him If he had a good Title How could the Oaths be taken to Edward the Confessor when the Heirs of Edmond Ironside were living I perceive some to salve the Succession make the Mother of Edmond to have been Ethelred's first Wife and call her Elgiva Duke Thored's Daughter but William Malmsbury saith She was so obscure a person that she was not known and that Edmond Ironside made up what was wanting in the management of his Father and the Quality of his Mother And the same is said by Matt. Westminster Florentius Wigorn shews the reason of the mistake for he saith That Emma Ethelrede's Queen was in the Saxon Language called Algiva and so out of two Names they have made two Queens Bromton leaves the matter in Dispute and saith some affirm The Mother of Edmond was betrothed to King Ethelred and was the Daughter of Count Egbert Others That she was a Stranger and a Concubine Now if a Man's Conscience be strictly hid in such Oaths of Allegiance to the Right Heir in a lineal Succession what satisfaction can he have as to the taking them since he is then bound to satisfie himself in the strict Justice of a Title For if Edmond's Mother was not married he had no Title and no Oath of Allegiance could be taken to him and whether he was married or not for all that we can perceive there was a great doubt at that time and so continued And it is not easie to determine what is to be taken for Marriage in a Prince unless the Law be the Rule And if the Law determines the nature
of Contracts in Princes why not as well the Obligation of Subjects For if there be no Rule it is not possible to satisfie Conscience in the Niceties of Titles if there be a Rule the general Consent of the People joined with the Common Good seems to have been that which our Ancestors proceeded by I do not hereby go about to set up the Power of the People over Kings which is in effect to overthrow Monarchy for then the whole Soveraignty lies in the People and Kings are but their Servants And so there is but one sort of Reasonable Government viz. that of a Commonwealth Whereas from the eldest times the Rights of Soveraignty have been placed in single Persons before any Popular Governments were known and Monarchy hath been ever esteemed a distinct and a reasonable Government especially where it is limited by Laws and those Laws made by the Consent of the People i.e. by the Three Estates of the Realm which are together the true Representatives of the People I see no necessity of going about to undermine the Monarchy that I may come at a resolution of the present case for I take Ours to be a true Original Monarchy especially after the Rights of the lesser Monarchs were swallowed up or delivered into that of the West-Saxon Kings And farther I do not stick to affirm That it was Hereditary where the Right of Succession and the Publick Good did not interfere i.e. where there was not a Natural or Moral Incapacity a Natural as in the Sons of the elder Edmond when Edred was made King before them a Moral as when Edgar's elder Brother was set aside for his ill Government by one half of the Nation and the other never disputed the matter with them and when Ethelred was so far deserted that he went into Normandy and was recalled upon Promise of better Government Si ipse vel rectius gubernare vel mitius eos tractare vellet are the words in Florentius and to the same purpose Matt. Westminster and Bromton and Malmsbury H. Huntingdon adds That he promised omnia Rege Populo digna all things worthy of the KING and People These things I mention to shew That although this were a true successive Monarchy in ordinary course yet where the Publick Good was by the Estates of the Realm judged to require it they thought it no Perjury or Breach of Faith to transferr their Allegiance although it were without the Consent of the actual Governour or the next lineal Heirs Having thus far cleared this Point as to the Saxon Constitution of our Government I come to that of the Norman and here I shall not go about to shew how broken the Succession was by Force and Faction but what the Judgment of the Nation was as to the transferring Allegiance And the first Instance I shall bring is in the Case of the Oath taken to Maud the Daughter of Henry the First in the One and Thirtieth year of his Reign and there is no question but he designed her to succeed him Legitimâ perenni successione as Malmsbury's words are but Stephen who had before sworn Allegiance to her watched his opportunity and by the help of a Party made by his Brother the Bishop of Winchester he was Crowned KING and although at first Malmsbury saith but three Bishops and very few Noblemen joined with him yet he soon after saith That most of them went in to him And even Robert of Gloucester King Henry the First 's natural Son took an Oath to him but with the condition of his preserving his Honour and Covenants There are several things worthy our observation in this Affair with respect to Oaths of Allegiance 1 That those who excuse them from Perjury who had Sworn Allegiance to Maud before do it upon this account Because it is said by Rad. de Diceto That Hugh Bigod sware that King Henry the First on his Deathbed disinherited his Daughter and made Stephen his Heir Supposing the Story true what is this to the Discharge of the Oath as to Maud for the Oath was not made to Henry the First but to his Daughter and her Right was chiefly concerned in it If this hold an Oath of Allegiance may cease without discharge from the Party to whom it is made And so the Archbishop of Canterbury and the Bishops of Winchester and Salisbury as well as the Nobility thought themselves at liberty to take a New Oath of Allegiance without a Release from the Party concerned in the former Oath 2. That upon the Agreement between K. Stephen and H. 2. Maud her self was set aside and Stephen was to continue King for his Life and H. 2. to succeed him Now if Oaths of Allegiance must not be interpreted by the Publick Good here are insuperable Difficulties as to the Obligation of these Oaths For the Allegiance was transferr'd from the right Heir to an Usurper as Stephen must be owned to have been by those who deny that Allegiance can be transferr'd from the right Heir And they must continue Allegiance to the Usurper for his Life which is repugnant to the Nature of our Constitution if it be founded in a Lineal and Legal Succession And again Maud to whom they had sworn is set aside and the Reversion of the Crown is entailed on her Son although she was living Fortescue in a Manuscript-Discourse about the Title of the House of Lancaster saith this was done in Parliament Communi Consensu Procerum Communitatis Regni Angliae Rad. de Diceto who lived nearer the time saith no such thing but Fortescue appeals not only to the Chronicles but to the Proceedings of Parliament for it And Matt. Westminster and Paris say The Right of H. 2. was declared by K. Stephen in Conventu Episcoporum aliorum de Regno Optimatum which was the Description of a Parliament of that time for as yet the Baronage represented the Nation Gervase saith The Great Men were summoned to perfect the Agreement by giving their Assent to it and confirming it by their Oaths Fortescue saith further that H. 2. was crowned King in the Life of his Mother who lived to the 13 of H. 2. by the general Consent of the Kingdom Which shews how far the Publick Good was thought to be the Measure of the Obligation of these Oaths For Gul. Neuburgensis saith That the Bonum Publicum was the Foundation of this Agreement And Matt. Westminster That the King and the Lords did all swear to it and a solemn Charter was made of it and kept in a most secure Place And thus the Oaths of Allegiance were continued to one that had no Right for his Life and made to one who pretended to no Right but after his Mother who was set aside in this Agreement So that here were three Oaths of Allegiance at once that to Maud the Empress that to K. Stephen and to H. 2. and yet the General Good of the Nation
Stanly was gained to that Party which cost him his Life And they went so far as to conclude it Treason to stand by the Possessor against the next lineal Heir Which I take to have been the true Occasion of the Statute 11 H. 7. which doth certainly Indemnify those who adhere to the Possessor although another may claim a better Right and thereby declares a Possessory Right to be a sufficient Ground of Allegiance as far as that Act goes There are three sorts of Persons may be said to have Possession of the Crown an Vsurper a King de jure and a King de facto and because the distinction between these doth not seem to be well understood I shall briefly explain it An Usurper is one who comes in by Force and continues by Force A King de jure is one who comes in by lineal Descent as next Heir and whose Right is owned and Recognized by the Estates of the Realm A King de facto is one who comes in by Consent of the Nation but not by Virtue of an immediate Hereditary Right but to such a one being owned and receiv'd by the Estates of the Realm the Law of England as far as I can see requires an Allegiance Or else the whole Nation was perjur'd in most of the Reigns from the Conquest to H. 8. for the two Williams six at least of the seven Henries King Stephen and King Iohn were all Kings de facto for some time at least for they came not in as next Heirs in a lineal Descent But still Oaths of Allegiance were taken to them and no such Scruples appear to have been made all that time nor any charge of Perjury on those who did what our Law and Constitution required Was the Nation perjured in the Time of H. 7. who as all know had no Pretence of an Hereditary Right Yet being received and Crowned the Oaths of Allegiance were taken to Him before he was Married to the Daughter of E. 4. For he was Crowned 30 Octob. 1485. Had the Crown entailed in Parliament Nov. 7. and was Married Ian. 18. But the first Parliament of R. 3. endeavoured to make void the Title of the Children of E. 4. upon pretence of a Precontract with the E. of Shrewsburies Daughter and of George Duke of Clarence by his Attainder thereby to make R. 3. Right Heir to the Crown but lest these things should fail to his Claim of Inheritance they join their own Election and desire him to accept the Crown as to him of Right belonging as well by Inheritance as by lawful Election It seems they would have made him a King de jure as well as de facto but the excluding the Children of E. 4. never gave Satisfaction since the Lady Lucy her self disowned it to the Mother of E. 4. And if such an Allegation would hold the whole Succession both of York and Lancaster might be questioned for both derive from H. 3. whose Mother was believed at that Time to have been precontracted at least to Hugh le Brun before She was married to K. Iohn and was married to Him whilst his former Wife was living And if Q. Eleanor's Divorce from the K. of France were not Good as it is hard to prove it so what becomes of all the Line of H. 2. who married Her after She had two Children by her former Husband But if Mens Consciences are tied to a strict legal and lineal Descent they must be satisfied in all these Points But supposing the Right of the Children of E. 4. to have been never so Good what doth this make towards the justifying the Oaths of Allegiance which were made to H. 7. whom some will not allow to have any Claim by the House of Lancaster since they say the same Act which legitimated Iohn of Gaunt's Children by Kath. Swinford did exclude them from any Title to the Crown Yet the Oaths of Allegiance were taken by the whole Nation in the time of H. 7. and no Dispute was then made about it because it was then believed that quiet Possession was a sufficient Ground for Allegiance It is objected That it cannot be agreeable to the Law of England to swear Allegiance to a King de facto when the Duke of Northumberland suffered by the Law for adhering to a Queen de facto A King de facto according to our Law as I said is one in quiet Possession of the Crown by Consent of Parliament without Hereditary Right such as H. 4 5 6 7. were all thought to be by those who made this Distinction For as far as I can find the Distinction of a King de facto and de jure was then started when the House of York so much insisted on their Hereditary Right and so many of our Kings had governed the Kingdom by Consent without it Therefore the Lawyers to find a sufficient Salvo for the Kings of the House of Lancaster framed this Distinction of Kings de facto and de jure but still they meant Kings Regnant as they called them or in full Possession of the Royal Dignity by a National Consent The Distinction had been better of a two-fold Right viz. Possessory and Hereditary But this was far from being the Case of Queen Iane who was set up by a particular Party against the General Sense of the Nation as soon appeared for the main Point her Title stood upon was this Whether the King by his Grant could dispose of the Crown against an Act of Parliament which setled the Succession and that this was the true Point appears evidently by Judge Mountague's Papers who was imployed against his Will in drawing up the Grant. So that the Duke of Northumberland's Case doth by no Means reach the Point of a King de facto But it is further urged from our Homilies That our Church therein condemns those English who did swear Fidelity to the Dauphin of France breaking their Oath of Fidelity to their Natural Lord the King of England To which I answer 1. That King Iohn was only a King de facto himself if a Legal Succession makes a King de jure For 1. His eldest Brother's Son Arthur was then living as all confess 2. He was convicted of Treason against his Brother R. 1. and the Sentence pronounced against him by Hugo de Pudsey Bishop of Durham as the King of France pleaded to the Pope's Legat who came to solicit for him 3. Hubert Archbishop of Canterbury declar'd at his Coronation that he came not in by Hereditary Right but by Election and he accepted of it so 4. What Right he had after the Death of his Nephew he gave up by the Resignation of his Crown to the Pope He could have no Hereditary Right while Arthur's Sister lived who survived him and was kept in the Castle at Bristol But supposing it I do not understand how he that gave up his Right of Dominion to the Pope could still retain it And if he was