Selected quad for the lemma: lord_n
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A58389
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Reflections upon two books, the one entituled, the case of allegiance to a King in possession the other, an answer to Dr. Sherlock's Case of allegiance to sovereign powers, in defence of the case of allegiance to a King in possession, on those parts especially wherein the author endeavours to shew his opinion to be agreeable to the laws of this land. In a letter to a friend.
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1691
(1691)
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Wing R734; ESTC R200522
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45,353
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73
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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
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