sure will be agreed unto me If there be any such Judicature it can be none but they And allowing them to be so common sense will say They being made Judges must thereby impliedly have a Right to act in it free from all precedent Obligations of Duty to either Party They act as freely in that point till the Determination is made as their Ancestors did when they may be supposed to be met together to agree upon a Form of Government Only that they are to keep to the Rule which they find setled and agreed on both sides viz. That our Government is an Hereditary Monarchy And the Question to be determined by them is Which of the Pretenders has the best Title upon that Foundation Is it not then an Affront put upon the judgment of a Reader to say That because it is maintained that the positive Laws of the Land for the Quiet and Preservation of the Monarchy forbid every private Subject in his capacity of a Subject to take upon him to censure the Title of a King possessed of the Throne it will thence follow That the States or Body of the Nation when there is such a stop in the proceedings by some doubt upon the very Constitution it self that the whole is likely to fall unless a decision be made of it shall not have an equal Power to rescue themselves from that Confusion as their Ancestors had to form themselves into Order They do this upon the Reason of the Constitution it self and by a Power and Fundamental Right which of necessity must be supposed to be reserved when they embodied themselves into a Politick frame they act in it upon their old Natural Liberty which could never be submitted to the Prince in this instance because the Question arises only upon the doubt who is the Prince And therefore the Duke of Tork in his Answer to the Objection that was made against his Claim to the Crown from the Oaths they had taken to Hen. 6. tells the Lords He lawfully may claim and pursue his right and demand Justice in such form as he doth And that all other persons and namely the Peers and Lords of this Realm may and by Law of God and Man ought to help and assist him in Truth and Justice notwithstanding those Oaths c. Our Author calls for a proof of the Authority of the Parliament Def. f. 34. or States of the Kingdom to determine the Rights of contesting Princes As if there were a printed Instrument of the Fundamental Constitution extant by which the Priviledges and Powers of each part of it are limited 'T is said before that necessity of Government warrants this and the same necessity warrants their convening in order to it without the formality of a Summons That Form and Method of proceeding supposes a King and Government setled and is one of the Rules which direct the King how he shall administer that Government and what are the Duties and Offices of particular persons under it This is above all those Forms a necessary Means to settle the Rule it self However I am pretty confident that those conversant in our ancient Histories and Parliamentary Records will find reason to carry the Power of the States of the Kingdom farther rather than to deny their Authority in this point The Claim of the D. of York 39 H. 6. is not the only instance of the thing but it being a very solemn and notorious one and a full proof of this point I will lay it down a little more fully and in a piece then it was for our Authors turn to do Richard Duke of York 39 H. 6. comes to the Parliament and by his Counsel puts in his Claim in Writing to the Crown deriving his Pedigree very plainly so as to entitle himself as next Heir by a Lineal Succession The Pedigree could not be unknown to any one of the Lords before whom the claim was laid yet King H. 6. having long enjoyed the Crown the Lords say The matter was so high and of such weight that it was not to any of the Subjects to enter into Communication thereof without his high Commandment Agreement and Consent had thereunto They thereupon go to the King opening the Claim He could not be put into a better condition then he was and therefore had he lookt upon this cautiousness of the Lords to be more than Complement he would never have consented to their hearing it but he does not offer to forbid their proceeding tho 't is certain he was sensible of the defects of his Title and therefore earnestly prays the Lords to examine strictly and raise all the Objections they could against the Duke's Title Then they read the Claim and order the Judges to say what they could in maintenance of the King 's Right They excuse themselves say It hath not been accustomed to call the Justices to Counsel in such matters the matter was too high and toucht the King's High Estate and Regalie which is above the Law and passed their Learning wherefore they durst not enter into any Communication thereof for it pertained to the Lords of the King's Blood and the apparage of this Land to have Communication and meddle in such matters But this was not the only reason the Judges gave for their silence They say They were the King's Justices and have to determine such matters as come before them in the Law between party and party they may not be of Counsel And this matter was between the King and the said Duke of York as two parties The Judges Excuse was allowed as proper for Counsel was not their Duty 't was not a matter to be adjudged by the express Laws of the Land of which they had the Exposition and Execution but by something above the positive Laws And they were not a part of the Parliament that Power of determining they had none But the King's Attorney and other Counsel being required to do what had been required of the Judges the like Excuse would not be admitted from them for they were the King 's particular Counsellers and therefore they had their Fees and Wages They return They were the King's Counsellers in the Law in such things as were under his Authority or by Commission but this matter was above his authority wherein they might not meddle Yet they are over-ruled for 't was their Duty to offer what they could in a Court of Judicature in defence of their Master's Title Then It was agreed by all the Lords that every Lord should have his freedom to say what he could say without any reporting or magre to be had for his trying And after the saying of all the Lords every after other Objections are framed against the Duke's claim The Duke puts in Answers to them and often prays that the matter might be determined The Lords solemnly declare that the Duke's Title could not be defeated but agree upon the Expedient which the Chancellor proposes desiring the Lords that if any of
them could find any other or better means that it might be shewed whereupon after sad and ripe Communication in this matter had it was concluded and agreed by all the said Lords that sith is was so that the Title of the said Duke of York cannot be defeated and in eschewing the great inconvenience that might ensue to take the means above rehearsed viz. That the King should keep the Crowns and his Estate and Dignity Royal during his life and the said Duke and his Heirs to succeed him in the same The Lords open this Expedient to the King and both the Parties solemnly submit and agree to it From this proceeding 't is very plain in the first place which I toucht upon before That if the Judges who made the Excuse and Lords who admitted it know any thing of our Constitution they are to judge according to the known and written positive Laws of the Land which prescribe the Offices and Duties of particular persons and to speak what their sense is but have nothing to do with enquiring into or giving their Judgment upon the King's Title They are to put the Laws in Execution under the King But they can't find any Law to condemn or meddle with the Title of the King in possession no nor to defend it being called in question in a proper place The Laws with which they were intrusted meddle not with it the one way or the other And they declared themselves incompetent to give any Advice or Determination in it tho our Author will make every particular man a competent Judge of it And 't is as plain in the next place That all the Parties agree the Parliament to be proper Determiners of such a difference which may inform our Author who after erecting a Court in every private man's breast to do it can't find in our Constitution any Court for that purpose Nay Case f. 66. the Judges tell you The King and the Duke are before them as party and party That is Two persons contesting in a proper Court for a Judicial Determination The Lords think so too They oblige the King's Counsel to appear before them and defend their Majesties Right as a part of the Service that they owe the King for their Fees and Wages The Duke often presses them for their Judgment and at last they give it In the third place I observe that this Expedient is of the Lords own finding out and they decree it 'T is true in the Chancellors repeating the Opinion of the Lords there are the words If he would upon which great stress is often laid not only by our Author but others and more then the thing will justly bear The Chancellor says That it was thought by all the Lords that the Title of the said Duke cannot be defeated That is That none of those things objected to it had destroyed the Right of the Duke and his Line for ever And in eschewing the great Inconvenience that may ensue a mean was found to save the King's Honour and Estate and to appease the said Duke if he would c which imports no more then that the mean they agreed upon would be to his satisfaction if he would be contented with reasonable terms This I say is only the repetition of the Chancellor of the result of the Lords Debate But when they come to the Judgment that is general That the said mean shall be taken and this given before any Declaration of the Consent either of the Duke or King to it tho afterwards upon its being opened to them it was with great solemnity agreed unto by them and passed by the King into an Act of Parliament The very Statute of 1 E. 4. allows this Judgment to be good and that by virtue of it and the Agreement upon it H. 6. should have held the Crown for his life tho the very Right were with the D. of York But it being part of the Agreement that the Lords should support it and keep observe and strengthen inasmuch as appertaineth to them all the said things and resist to their power all them that will presume the contrary according to their Estates and Degrees E. 4. gets a solemn Declaration by that Statute that H. 6. had attempted the breaking the Agreement and therefore his dispossessing him was just c. He thought it advisable that the breach of the particular Agreement about the Crown as well as the Title it self should be declared and setled by Parliament And indeed the very nature of all Acts of Recognition and the constant usage of them in almost every Reign shew the Expediency of some publick Declaration to the People that they may know to whom their Obedience is due and imply as much as the Preamble of the Stat. 1 R. 3. speaks in express words which Preamble our Author quotes because it affirms the Title of an Usurper He was an Usurper but one who made as good and wise Laws as any lawful King his Predecessor That the most part of the People can't be sufficiently learned in the Laws and Customs which make out a Right and Title to the Crown And that the Court of Parliament is of such Authority and the People of the Land of such a Nature and Disposition that Manifestation or Declaration of any Truth made by the three Estates of the Realm assembled in Parliament and by Authority of the same makes before all things most faithful and certain quieting of men's minds and removes the occasions of Doubts and seditious Language This is Truth and Reason out of whose mouth soever it comes or for whatever End it was pronounced and in all Justice ought to protect every private Person in his submission to a Power acknowledged in that manner against all the Disturbers of the quiet of our present Settlement I come now to consider the Observations he makes upon the Authorities quoted by my Lord Coke to justifie the gloss made upon the words Seigneour le Roy in the 25 E. 3. The first is Baggot's Case To state this matter fairly as it appears on the Book the Case in short is this Baggot brings an Assize of his Office c. Ivie the Tenant pleads Baggot was an Alien c. and so could not hold the Office c. not being the King's Liege Subject Baggot replies his 9 E. 4. 7. b. 9 E. 4. 9. Letters of Naturalization Ivie sets forth the Act 1 E. 4. which recites at large the Pedigree and Title of E. 4. and the Usurpation of the three Henries and averrs that the Patent was granted by H. 6. one of the Usurpers and so leaves it to the Court to judge whether the Patent was valid in Law Baggot demurrs upon this Rejoynder and Ivie joyns in demurrer Brian of Counsel for Ivie insisted 9 E 4. 11. b. That King E. 4. being restored in his Remitter as Cousin and Heir of King R. 2. the Patent made by K. Henry who was but an Usurper and Intruder was void
such Claim c. If I should grant that they have no Power of meeting to that purpose without the consent of the Usurper which I do not and so that this is a defect in our Laws and one of the cases against which a certain Remedy is unavoidably wanting in a mixt Monarchy yet I may venture to say That if the right of the dispossessed Prince be apparent all the Attempts of the Usurper to suppress it will at long run prove unsuccessful We see the Parliament of H. 6. and Convention of 1660. did find Opportunities of doing right to the injured Prince and without them the People whether they ought or no is one case but I think I may venture to say they will not long bear it If Usurpations do put us under these great Difficulties the natural Influence that the Consideration of that will have is that the Nation will submit unto and suffer but very few of them and 't is a very unlikely thing that the Rightful Prince should be turned out without great Misadministrations But after all I think no one need be ashamed of owning it to be his Opinion That if it should unhappily fall out to be the Case that one of that Family to whom the Crown was at first limited should be injuriously dispossessed of that Crown and the restoring him to it could be compassed by no means but such as would lay a Foundation for daily Disturbances and Civil Wars in future Reigns that that Person 's Right which was given him by the Laws ought not to be set in Competition with the Laws themselves and the Peace and Quiet of the whole Body of the People The Consequences which our Author draws from his Supposition that Cromwell had been made King which I confess would have been very mischievous and intolerable move me not at all In the first place notwithstanding what he affirms That it was almost come to a Conclusion that he should take that Title upon him I can't grant that there was any likelihood of his being a King in Possession entitled to the Protection and benefit of this Law Perhaps he might have made an Interest in some of the Army though most People believe the fear of their falling off from him kept him from it to have proclaimed him and in the House of Commons or Parliament as they called themselves to have submitted to him But I have before said a bare proclaiming one King won't do the business for then we may have as many Kings de facto as there are Rabbles of People in the Nation But to make one who had no visible Right before such a King de facto as may claim a Temporary Allegiance from the People he must have not only the Power of the Nation in his Hands and the Administration of Justice in his Name but what Cromwell as he had been forced to manage matters for the getting himself into that monstrous lawless Power he enjoyed could never have obtained the Submission of the remaining parts of the Constitution the Lords and Commons to him as their King and Governour Till that is done I know no Obligation any private man is under of paying Allegiance to such a King never having by himself or his Representatives submitted to him As on the other side when that is done and I receive the benefit of Protection from him till his Possession which protects me is lost or the Submission which was made for me revoked and undone by an equal Power I know nothing that can justifie my thinking my self wiser and more knowing than my own and the whole Peoples Representatives and from such an overweening Opinion of my self endeavouring the Disturbance or Subversion of a Government well and fully setled But why in the second place should such Suppositions of what may be be used as Arguments May we not from the Observation That no instance like that did ever yet happen to set Conscience so upon the Rack reasonably attribute some share in the Guidance of those Affairs to the Providence of a good God who hitherto has and as we have reason from that Experience to hope unless by our Unthankfulness we draw the contrary on our selves will still continue to deliver us from such Difficulties and Snares If all those Advantages which our Author reckons up would have follow'd his obtaining the Crown and if it was in his Power to have taken it when he had pleas'd Does not the neglecting those Advantages seem to proceed from an Infatuation as if Providence had determined against him And ought not that rather to strike an Awe and Reverence on the Minds of all People towards their present Majesties Persons and Government every step of whose Undertaking and Progress till their Advancement to the Throne seems to be a Series of Providences and the Effects of whose Government are such as a Man need not stand in fear of being taxed with Impiety if he attribute the Cause of them immediately to God's own Hand Before our Author comes to Answer Objections which I 'll not meddle with but leave them to shift for themselves he produces Two Arguments to prove his Assertion and it would be unjust not to take notice Case f. 48. of them The first I have granted already and it makes nothing against me The second I will but just mention and leave the Reader to make his own Observations upon it 'T is the difficulty of knowing Case f. 53. who is a King in Possession It were a great hardship to put the determining that upon the Judgment of ordinary Subjects Persons of mean Understanding and therefore for that Reason their Allegiance shall not be due there but 't is nothing to require it of the same Persons that they be perfect Masters of our Fundamental Constitution and the Pedigree of the Royal Family that they know Who it is Case f. 56 in whom the Crown is vested deemed and judged hy the Law These are things more obvious to them than what they see and feel every day This Sir I think sufficient to be said to what is urged from the Laws of the Land in the Case or Defence as far as they concern the Position I undertook to maintain Perhaps the Reader may think I have copied the Author's Pattern in offering things which seem to prove more than the Question according to the strictness with which I have stated it required I am not sensible that I have omitted the taking notice of any one Argument that is materially offered from the Laws in conttradiction to my point I am sure if I have it was past over for want of taking notice of not by design as what I thought could not receive an Answer But Sir when I have said this I must bespeak all the favourable Allowances your good Nature can give to what I have written to the ill handling a good Cause that would have born a much better Defence in the substantial Parts of it and more to the Faults that I have been guilty of in the manner of it An ordinary Reader would hardly pardon the latter because he will think a little care might have avoided them and I am sensible how guilty I am of the worst of that kind abundance of Repetitions which must be tedious and uneasie All the excuse that I can offer for my self is that the manner of writing in the way of Reflexion which obliges me often to take notice of the same Arguments used to different purposes and not as an entire Discourse has made that unavoidable And Sir you know I have not had time enough allowed me to make it short Whose Fault that is You can best tell And therefore whatever others do you in Justice must excuse SIR Your Humble Servant Books lately Printed for William Rogers A Sermon Preached at VVhitehall before the Queen on the Monthly Fast Day September 16. 1691. 4 to A Persuasive to Frequent Communion in the Holy Sacrament of the Lord's Supper Eighth Edition 12 mo Both by his Grace John Lord Archbishop of Canterbury A Sermon Preach'd on the 28th of June at St. Andrews Holbourn by John Moor D. D. Bishop of Norwich Elect when he took his leave of that Parish 40. A Sermon Preached at St. Mary le Bow on Sunday the 5th of July 1691. at the Consecration of the Most Reverend Father in God John Lord Archbishop of York and the Right Reverend Fathers in God John Lord Bishop of Norwich Richard Lord Bishop of Peterborough Edward Lord Bishop of Gloucester by Joshua Clarke Chaplain to the Right Reverend Father in God the Lord Bishop of Norwich 40. The Necessity of Serious Consideration and Speedy Repentance as the only way to be safe both living and dying By Clement Elis Rector of Kirkby in Nottinghamshire 80. Sir VV. Petty's Political Anatomy of Ireland 80. The Case of the Allegiance due to Soveraign Powers Stated and resolved according to Scripture and Reason and the Principles of the Church of England with a more particular Respect to the Oath lately Enjoined of Allegiance to their Present Majesties King William and Queen Mary The 6th Edition 4 to A Vindication of the Case of Allegiance due to Soveraign Powers in Reply to an Answer to a late Phamphlet Intituled Obedience and Submission to the Present Government demonstrated from Bishop Overal's Convocation book with a Postscript in Answer to Dr. Sherlock's Case of Allegiance c. 4 to A Sermon Preached at VVhite-Hall before the Queen on the 17th of June 1691. being the Fast day 4 to A Practical Discourse concerning Death the fifth Edition 80. A Practical discourse concerning a Future Judgment 80. will be Published in a few days These five by the Reverend Dr. Sherlock Dean of St. Pauls Master of the Temple and Chaplain in Ordinary to their Majesties LICENS'D October 10. 1691. J. Fraser ERRATA Page 11. Line 16. for Nation read Notion p. 30. l. 1. read so that p. 30. l. 14. for trying r. seying p. 31. l. 23. for Majesties r Matters