exaltationem Sanctae Ecclesiae pacem populi tenendam concessit c. King William being dead the Great Men of England not knowing what was become of Robert Duke of Normandy So R. 1. was call'd but Duke of Normandy till he was chosen King of England the deceased King's Elder Brother who had been five years at the holy-Holy-war were fearful of wavering long without a Government Which when Henry the youngest Brother a very wise young Man cunningly observ'd the Clergy of England and all the people being assembled He promised an amendment of those Laws with which England had been oppressed in the time of his Father and his Brother newly deceas'd that he might stir up the minds of all to his promotion and Love and that they might receive him for King and Patron To these things the Clergy answering and then the Great Men That if with a willing mind he would Grant and Confirm with His Charter those Liberties and ancient Customs which flourish'd in the Kingdom in the time of Holy King Edward they would consent to have him and would unanimously consecrate him King And Henry freely consenting to this and affirming with an Oath that he would perform He was Consecrated King on our Lady day by the Consent of Clergy and People upon whose Head the Crown was immediately set by Maurice Bishop of London and Thomas Archbishop of York As soon as he was Crown'd He granted the under-written liberties for the exaltation of Holy-Church and preserving the Peace of the Kingdom Then follows his Charter containing some Alterations of the Law which had before obtained not only in relation to the Rights of the Crown but of the Subjects particularly whereas the Relief had been Cart. H 1. Siquis Baronum meorum Comitum vel aliorum qui de me tenent mortuus fuerit as Fines now in most Copy-hold Mannors at the Will of the Lords they were reduced to what was just and lawful according to St. Edward's Laws for which as should seem by the Charters of King John and H. 3. declaratory of the Common-Law there were known Rates and H. 1. restored all the Common-Law with the Statutes made for the amendment of it in the time of W. 1. He seem'd in two particulars wisely to have ingratiated himself with the people the first was in gaining to his side the Directers of their Consciences by a concession to the benefit of Church-men which was wholly new and that was That an Archbishop or Bishop or Abbat being dead Vid. Cart. H. 1. he would take nothing of the demean of the Church nor of its tenents until the Successor was inducted which was a departure from that Prerogative which belonged to the Crown upon the Vacancies as appears by the affirmation of H. 2. Vid. Anti. Brit. inf f. 135. Carta Johannis Haec omnia observentur de custodiis Arch. Episcopatuum Abbat Prior Eccles Dignitat vacantium quae ad nos pertinent c. Prerog Regis 17 E. 2. c. 14. the Charter of King John and the Statute of the King's Prerogative 17 E. 2. This Indulgence to the Church without special Provision for keeping it up was withdrawn by the next general Confirmation of the Confessor's Laws and therefore 't is no wonder that it is left out of subsequent Charters If he was not popular in this at least he was in another Action which was his imprisoning Ranulph who had been the great Instrument of oppression in the former Reign Mat. Par. f. 76. and that it was with intention of punishing him severely appears by Ranulph's making his escape out of Prison by means of those great Treasures which he had heaped up from the Spoils of the People Ranulph no doubt could at a much cheaper rate have applied himself to such a Lawyer as the Author of the Magistracy vindicated if such an one could have been found in that Age of less corruption Vid. the last part of the Magistracy and Government vindicated p. 8. I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its Primitive State of nature all Power devolved into Individuals and the particulars only to provide for themselves by a new Contract for if so there 's no new consent for punishment of Acts done before the dissolution and consequently revenge for that is at an end Vid. ib. p. 2. who might have advised him to rest satisfied that it would not be consistent with the Wisdom and Justice of a Prince who came in upon a Vacancy of the Throne as H. 1. did not standing next in the Line to punish any Criminals of the foregoing Reign but Ranulph was wiser in running away and perhaps more modest than to think that for his useful parts employed in the pillaging and destroying innocent men he might pretend to merit under the Successor H. 1. having truly shewn a Fatherly care of the people no man then raised any foolish scruple upon the manner of the Proceedings where the Substance was pleasing to all But that which has been done by them who could get together upon the intervals of Government has been held valid that the Vacancies might be as short as possible unless the general sense of the people has immediately appear'd against it and thus Harold having been Crown'd by surprize when the Friends of W. 1. were at the Confessors Buryal some Authors upon that very Account Vid. 2. part will have it that Harold was an Usurper But that it may be seen how little apt people are to dispute Forms when a King acts agreeably to the sense of a Nation I shall shew that H. 1. acted as King even before he was Crown'd immediately upon his Election for which Huntindon is my Author who having mentioned the death of W. 2. says Henricus frater ejus junior ibidem in Regem electus Hen. Huntin f. 216. b. de H. 1. dedit episcopatum Wincestriae W. Giffard pergensque Londoniam sacratus est ibi a Mauritio Londonensi Episcopo His younger Brother Henry being there chosen King gave the Bishoprick of Winchester to W. Giffard and going on to London was consecrated there by Maurice Bishop of London And I am much mistaken if what he did in relation to another Bishop Anselm who had been Archbishop of Canterbury in the time of W. 2. is not an additional evidence to what I have already produced that the Convention in which he was Crown'd was turn'd into a Parliament or acted as one Ordericus Vitalis says Anselmus enim Dorebornensis Archiep. exulabat Eadmerus f. 38 39 40. shews this was at a Council at Winchester ubi says he ex condicto venimus Mat. Far. f. 25. Trajacere quidem liberum esse sed inconsulte id facturum siquidem nullam revertendi spem in posterum ei futuram Eadmerus Anselm as appears by the circumstances of the story had been condemned to perpetual Banishment by Parliament in the time of
I may add Flectere si nequeant superos Acheronta movebunt If neither Heav'n nor Earth afford them Aid They 'll try to fetch it from the Stygian Shade If such things as these do not shew that there was occasion for my gathering together those Precedents and Authorities which evince that in declaring for our present Soveraigns the Nation has proceeded according to their Inherent Power and in due form I at lest shall have the Satisfaction of having in my Capacity serv'd my Country and therein I shall have more than my Labour for my Pains which I may here close with that of Pliny to his Friend Tacitus C. Pliny Ep. lib. 9. Posteris an aliqua cura nostri nescio Nos certè meremur ut sit aliqua non dico ingenio id enim superbum sed studio sed labore reverentia posterûm Pergamus modò itinere instituto quod ut paucos in lucem famamque provexit ita multos è tenebris silentio protulit I know not whether they that come after will have any care of us we surely deserve from Posterity some Care and Esteem I do not say for Ingenuity for that would argue Pride but for Study and Labour Let us only go on in that way which we have enter'd upon which as it has rais'd some few Men to Splendor and Fame so it has drawn out many from Obscurity and Silence THE CONTENTS CHAP. I. THE Vniformity tho unprofitableness of Truth The Insufficiency of false Mediums to defend this Government us'd by Men who thereby seek only themselves Quietism in Allegiance advanced by some The Supposition of a Conquest made by his present Majesty or his Succession in the Line no way for his Service That Lawyers are the best Casuists in this matter Mr. Lessey's Protestation when he took the Oath of Allegiance Lord Clarendon's Complaint of Divines busying themselves in Matters of State Mr. Tirrel and the Author of two late Treatises about Government set against Sir Robert Filmer's Authority Dr. Heylin's Opinion of Sir Robert The Judgment of Hooker touch'd upon concerning the Derivation of Power The present Bishop of Worcester's Judgment Cragius his A large Account of the Derivation of Power from the People of Rome to their Emperors brought to explain what our ancient Lawyers mean when they receive the Roman Lex Regia The Sense of Grotius Plato Conringius Pufendorf of the Subject or Seat of Power That all Empires and other Civil Societies must have been founded in Contract A right to design the Person if not to confer the Power admitted in the People by the greatest Asserters of Monarchy The Dispute here chiefly of the Right to design the Person what that is referred to the Constitution Allegiance to our present King and Queen undertaken to be prov'd lawful both by the Equity and Letter of our Fundamental Law explain'd by the Practice of the Kingdom pag. 1. CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon the Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and his Quotation out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion Mr. Lawson's Opinion Bp Bilson's whose Authority is confirm'd by the Objection made to it in the History of Passive Obedience To which is added the Divine Plato pag. 11. CHAP. III. Five Heads of positive Law mention'd Vpon the first Head are produc'd the Confessor's Laws Bracton Fleta and the Mirror shewing the Original Contract with the Consequences of the King 's breaking his part Some Observations upon the Coronation-Oath with the Opinions of Sir Henry Spelman Cujacius and Pufendorf of the Reciprocal Contract between Prince and People The Objection from the pretended Conquest answer'd in short with reference to the second part The Sense of Dr. Hicks and Saravia upon the Coronation-Oath receiv'd with a Limitation from Grotius The Curtana anciently carried before our Kings explaining the Mirror A Passage in Dr. Brady against the Fundamental Contract touch'd upon referring the particular Consideration of him to the second Part. pag. 28. CHAP. IV. The second Head of Positive Law The establish'd Judicature for the Case in question implied if not express'd in the Confessor's Law and asserted in Parliament 12 R. 2. with an account why the Record then insisted on is not now to be found Our Mirror the foreign Speculum Saxonicum Bracton and Fleta explaining the same The Limitation of that Maxim The King can do no Wrong Precedents from Sigibert King of the West Saxons to the Barons Wars in the time of King John confirm'd by occasion of an Objection to the Instances in the Northumbrian Kingdom How far this Monarchy was reputed Hereditary or Elective before the time of W. 1. there touch'd upon Instances of the Peoples Claim of their Rights in the times of W. 1. W. 2. H. 1. King Stephen H. 2. pag. 34. CHAP. V. The Barons Wars in the time of King John That he had abdicated the Government That he had lost all means of being trusted by his People How unwilling they were to engage in a War against him They invite over Lewis the Dauphin of France His Case a Parallel to the late Abdication The Vacancy of the Throne insisted on by the French King's Advocate and that thereupon the Barons had right to chuse another King of the Blood Royal of England as Lewis was Why the Barons fell off from Lewis What the Homilies say concerning their inviting Lewis swearing Allegiance to him and fighting under his Banner against King John considered pag. 41. CHAP. VI. The Barons Wars in the time of H. 3. particularly considered H. 3. Crown'd by a Faction Had no right but from Election as his Father had That no Right could descend to him from his Father Lewis while here as much King as H. 3. Three express Contracts enter'd into by H. 3. besides the Confirmations of the Great Charter Those applied to the Consideration of the Wars Three of them under such as seem like the Roman Tribunes of the People Dr. Falkner's Objections against those Wars answer'd The Answer confirm'd by a full instance in the time of E. 1. pag. 46. CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The Power of the People manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the Instances from those Times to the Abdication
eum qui judiciorum particeps sit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and (d) Hermanni Conringii Exercitationes Acad. de Civibus Imperii p. 3. Ordines Imperii Incolae Conringius his Cives to be too restrain'd the first limiting it to them that have shares in the Judicature and Magistracy the other to the States and Orders of the Empire allowing no others to be more than Inhabitants or Strangers Whereas the Civitas must manifestly reach to that diffus'd Body who are either capable of being part of the Ordines or Great Council or of being represented in it for otherwise the common subject of Power must needs fail as often as there are Intermissions of the States or Great Council And 't is plain that Conringius his Reason why none but the Status vel Ordines Imperii are more than Inhabitants reaches farther Every Civis he says is a Companion of the Civil Society and it is the part of a Companion to give his Suffrage and Judgment of things belonging to the Society This certainly he does virtually who gives his Suffrage in the choice of them who conclude the rest and if this should not make a Citizen there could be no means of exerting any moral or lawful Power in any Society upon the determination of the Authority of those particular Persons who had constituted any dissolv'd Assembly of States unless the sole Power resided entirely and absolutely in the Person or Persons with whom they had lodg'd a Trust for summoning them together that is giving publick notice of the Time and Place for meeting Indeed if none but the Ordines were part of the Civitas Grotius his Distinction between the common 〈◊〉 proper or particular Seat of Power would be very vain wherefore I take his Cives to be the same with Pufendorf's Quorum coitione consensu primò Civitas coaluit aut qui in illorum locum successerunt nempe Patres familiâs Sam. Pufendorf de officio Hominis Civis p. 265. By whose Conjunction and Consent the Civil Society first came together or they who succeeded into their rooms to wit the Masters of Families Indeed if we consider it will appear that never any Empire or other Civil Society was founded but there was an Original Contract or Agreement among the People for the founding of it How was the most absolute Authority of a single Person ever rais'd or maintain'd but by the undisciplin'd Rabble or disciplin'd one of an Army and what could keep them together but a Contract or Promise of Pay or Spoil to the Leaders or Officers who were to be undertakers to the common People or the Souldiers I remember Mr. Hobbs in his History of the Civil Wars of England Hobbs his History of the Civil Wars blames King Charles the First for engaging in a War against the Parliament while at the same time he pretended to justify what he did by Law and to leave all that that assisted him to answer to the Law when he should have encouraged them to have been hearty on his side by hopes of the Spoil of the Nation but whatever may be the Inducements to fight for an Authority lawfully establish'd before surely no People ever submitted to any without a prior Obligation but where they had hopes or expectations of Advantage or Ease the obtaining of which if not made a Condition was ever implied Suppose a Colony of some hundreds of Men among which one is chosen General Head or Leader without any particular or express Contract and his Son suffered to succeed after him Is the Power either of Father or Son antecedent or obligatory before the free Consent of the rest has past Or is it to be imagined that either the Father or his Successor have this People as an Inheritance given them from above to dispose of their Lives and Fortunes without any regard to the Good of All The most sensible of them who utterly deny that any Power can be derived from the People as fighting against their fancied Divine Right of Kingship own that the People have a Right to design the Person Vid. Sacrosanct Regum Majest Potestas designativa personae vel collativa Potestatis tho not to confer the Power only these Men will have it that the extent of the Power of a 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 or Derivation of it Whether any Choice is allowable for us must be determined 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 convenient 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 or whom they judg so 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 or have been made among themselves Vid. infra cap. In which Case whatever ordinary Rule they have set themselves they may alter it upon weighty Considerations And that the People of England have lawfully and rightfully renounc'd their Allegiance sworn to J. 2. and transferr'd it to 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 implied 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 CHAP. II. Of Equity or implied Reservations Who judges of the Equity The Lord Clarendon's Judgment of such Cases Cocceius his A short Reference to three late Treatises of great use upon this Question Some Reservations which Bp Sanderson will have implied in all Oaths Grotius his Opinion and Quotations out of Barclay in relation to the withdrawing the Allegiance which had been due to Kings Even the Author of Jovian of some Service here Mr. Falkner's Christian Loyalty set in a true Light and shewn notwithstanding his being misled by the Canons of J. 1. and of 1640. to be wholly on our side in what relates to our present Enquiry and to joyn with Grotius Barclay Bp Bilson Lessius and Becanus So Bp Bedell tho a Cloud has been endeavoured to be drawn over his Opinion
lay to hold in Vassallage of the Pope as well as by other his Exorbitances yet was not set aside till the Nation was necessitated to it by the Success of his Usurpations and Ravages to which as he was encouraged and enabled by the Influence of the Pope's Authority over the less honest or less discerning so he thereby lost all means of gaining Trust from his People for the future The Earls and Barons of England having without any Writ from the King given one another notice of meeting demonstrated that they engag'd not out of any Affectation of Change but meerly to secure those Liberties which were their due by the Constitution for they agreed to wage War Mat. Pa. f. 339. and renounce Allegiance to him only in case that he would not confirm those Liberties which were contain'd in the Laws of Hen. 1. and the ancient Laws of King Edward the Confessor That they might proceed with such Deliberation as became them they appointed another Meeting for a peremptory Demand declaring that if he then refus'd them they would compel him to Satisfaction by seizing 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 which tho they were as forceable in Law before and his Promise to maintain them as little to be credited as ever yet his open Violation of them after his own solemn acknowledging them and granting that Petition of Right was likely to cast the greater Load upon him and his Courtiers when they should act to the contrary and to take from their side numbers of well-meaning Men who otherwise might be cheated with a pretence of Prerogative The Pope as was to be expected soon absolv'd the King and encourag'd him to break those legal Fetters which was ipso facto an Absolution to the People of more effect in Conscience than the Pope's ipso facto Excommunications They being thus discharged the wiser and sounder part of them stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France Mat. Par. lib. Addit An. 1216. The Account in Matthew Paris of a Debate which the French King and his Advocate or Attourny-General held with the Pope's Nuncio who would have disswaded the Dauphin's Expedition against King John the Pope's sworn Vassal is so exactly parallel to the Case now in question that many who will allow us no Precedent of ancient Times will be ready to say that some words at least were foisted in since our present happy Settlement The French King as became a Monarch spake his mind in few words Si aliquando fuit verus Rex postea Regnum forisfecit per mortem Arthuri de quo facto damnatus fuit in Curiâ nostrâ Item nullus Rex vel Princeps potest dare regnum suum sine assensu Baronum suorum qui regnum illud tenentur defendere If ever he were King he afterwards forfeited his Kingdom by killing Arthur of which Fact he was condemned in our Court. Besides no King or Prince can give his Kingdom without the Assent of his Barons who are bound to defend it That is to preserve the Kingdom against the King who has parted with it or any Demisee as appears by his Advocate 's Enlargement to whom he left the rest after himself had granted all Kingly Power to have this implied Limitation Mat. Par. Addit f. 281. The Advocate goes on addressing himself to the King Domine Rex Res notissima c. May it please your Majesty It is a thing well known to all that John called King of England was condemned to death in your Court for his Treachery to his Nephew Arthur whom he slew with his own Hands And was afterwards by the Barons of England for his many Homicides and other Enormities there committed rejected from reigning over them Whereupon the Barons waged War against him Ne regnaret super eos reprobatus ut ipsum solio regni immutabiliter depellerent that they might drive him from the Throne of the Kingdom never to return Moreover the said King without the Assent of his great Men gave his Kingdom to the Pope and the Church of Rome to receive it again to be held under the yearly Tribute of a thousand Marks Dare non potuit potuit tamen dimittere eam And altho he could not give the Crown of England to any one without his Barons he might demise it or devest himself of it which as soon as he resign'd he ceased to be King and the Kingdom was vacant without a King Therefore the vacant Kingdom ought not to have been administred without the Lords What difference between the Kingdoms being vacant without a King and the Throne vacant Vacans itaque Regnum sine Baronibus ordinari non debuit unde Barones elegerunt Dominum Ludovicum ratione Uxoris suae c. By reason of which the Barons chose Lord Lewis upon the account of his Wife whose Mother the Queen of Castile was the only Survivor of all the King of England's Brothers and Sisters This was so true and so convincing that the most plausible Return which the Pope's Nuncio could make to it was that King John had been sign'd with the Cross for the Service of the Holy Land and that therefore by the Constitution of a General Council he ought to have Peace and be under the Pope's Protection for four Years And you may be sure that the French King would not interrupt him in his Journey thither but was well satisfied that his Son should supply his place in England Who tho he had been received not only as one that rescued the Nation from King John's enormous Tyranny but as one that was in the Right of his Wife entitled to the Priviledg of the English Blood Royal and so duly chosen according to the standing Law of this Monarchy as has been mentioned and will hereafter more fully appear Vid. sup inf Yet the Clergy and all who were so weak as to be led by them in Civil Affairs being against Lewis Mat. Par. f. 384. as he stood excommunicated by the Pope besides it having been made known by the Death-bed-Declaration of one of Lewis his Confidents that his Master had evil Designs against those very Men who were the chief Instruments in his Advancement and that he look'd upon them who fought for him as Traitors he through the uncertainty and indifference of his Friends more than the strength of his Enemies was oblig'd to quit the Kingdom to Hen. 3. Object This would lead me to the particular Consideration of the Barons Wars with H. 3. were it not needful first to remove an Objection against their Proceedings with his Father which tho not founded on the Histories of the same Age may seem to have weight from the Authority of Divines of later times The Homilies pass this Censure upon
cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive
upon the Innocent Prince E. 5. in whose Name he first took the Government upon him and either terrified or cheated the People into a Compliance with his Pretences Tho I have not the vanity to believe that any thing of my own can weigh with them who have thought otherwise before especially if they have listed themselves on a Side contrary to that which no Disadvantages can make me repent of Yet I cannot but hope that the Authorities which I have produc'd will occasion some consideration till they are either evaded or disprov'd And being all legal Objections are answered nor can any scruple of Conscience be here pretended without much less against Law What hinders but that we should exert our utmost in the Service of that Lawful Government from which we receive Protection and may expect Rewards for vertue at least the Defence of it if we do not madly quit the ground which we have gain'd from them who have hitherto made Vertue the greatest Crime Wherefore for us now to look back after we have set our hands to the Plow would be not only to distrust that Providence which has given such a wonderful Encouragement to Perseverance but were enough to tarnish all our Actions with the Imputation of making the publick Interest a Pretence for carrying on our own 'T is an happiness indeed when they are twisted and thrive together But the Cause is such as a man ought not to fear to dye nay to starve for it And how improsperous soever a man's endeavours for this may prove yet it may be a comfort to have sown that Seed which may grow up for the benefit of future Ages Nor ought he to repine because another man hath guilded over his Name by what he has got by the ruin of his Country or may have insinuated himself again into Opportunities to betray it Let it be enough for him how much soever slighted and contemn'd while he lives to embalm his Memory by a steddiness to Truth and the Interest of his Country not to be shaken by cross accidents to himself or the Publick Cause Let him still act uniformly while others live in perpetual Contradictions or Varieties their Actions and their Principles thwarting themselves or each other or varying with the State-weathercocks Let them violate the Laws out of Loyalty unchurch all Protestant Churches but their own out of Zeal against Popery narrow the Terms of Communion to spread the National Religion confine all advantages to that Communion for the Publick Good make their King the Head of a Party to strengthen his hands against his Enemies Deliver up Charters and Retake them gelt of their Noblest Priviledges in performance of their Oaths to preserve them fight against their King and yet urge the Obligation of Oaths requiring an unalterable Allegiance to his Person assert that the Power is inseparable from him and yet may in his Absence without his Consent be transferr'd to a Regent not to be Reassumed when he should think fit to return grant that he has broken the Contract yet contend that he retains that Power which he received from the Contract Or that tho the Contract be broken the Throne is not vacant Or if it be vacant yet an Heir has a Right and so it is vacant and not vacant at the same time Or that after one has broken a Condition upon which he took an Estate to himself and his Heirs in Fee-Simple or Tail another shall enjoy it as Heir to him and that in his Life-time invite a Deliverer yet reject the Deliverance Upon such Principles as these I find an Eminent English Prelate censur'd as a Deserter of his Church for going about Letter to the B. of L. according to his great Learning to justifie the Oaths taken to the present Government And thus the Cause of J. 2. is made the Cause of the Church of England Certain it is whatever is now pretended 't is more difficult to justifie the taking up or promoting Arms against a Deliverer than an Oppressor And if Arms against the last were lawful even with the prospect of involving Thousands in the Miseries of War much more are they in Defence of that Power which has restor'd those Liberties which the other Invaded and reassured the Publick Peace And whoever first engaged and now draw back not only brand themselves for Traitors but make it evident that Ambition Revenge or some ungenerous Design animated their Undertakings And as I doubt not but they will meet with their due Reward perhaps that Success which has attended the Heroical Actions of our present King may go further with such men to keep them to their Duty than the most demonstrative Proofs of Right which they generally measure by the Event And as no Cause or Action is just in their eyes which is not prosperous they in the language of the Poet are always on the side of the gods But few are in this Point such Philosophers as Cato Victrix causa Diis placuit sed victa Catoni FINIS APPENDIX N. I. Vid. sup CAP. I. F. 4. Thô those Authors which I have referr'd to in the Book have sufficiently expos'd Sir Robert Filmer's Notions yet the following Observations made by me some Years since upon the first applying of my Thoughts to such Studies may be more suited to meaner Capacities at least they who will not give themselves time to read those Elaborate Treatises may be diverted with this Summary of Inconsistencies which Numbers swallow down as blind Men do Flies Sir Robert Filmer and some of our Divines plaid against one another in relation to Ecclesiastical and Civil Power and Sir Robert against Himself SInce Sir Robert Filmer's Writings are recommended to the World by the Elogium of the Infallible Dr. Heylin Vid. Heylin 's Ep. to Sir Ed. Filmer Certamen Ep. p. 208. Ut sup Cap. 1. that Man that professed in print that he could not reckon the early Death of the Wonder of his and following Ages Edw. the 6 th for an Infelicity to the Church of England Pref. to Hist of Ref. You cannot but think that this his Monarch in Politicks whose Death he laments was not so ill principled in himself nor inclin'd to embrace such Counsels but that his Affections to the Church were as exemplary as his Books have manifested them to be to the State But me-thinks Dr. Heylin by subscribing to Sir Robert's Judgment in Politiques and consequently to his Anarchy of a mixt Monarchy does thereby confess that the Church is wholly subject to the Law of the State and that the Civil Power is comprehensive of the Ecclesiastical the dividing of the Power being utter Anarchy and Confusion Nay that excellent Discourse call'd Patriarcha Ep. to Sir Edw. Filmer which the Doctor by way of Prophesy for I am sure 't is not to be imagin'd in the way of Nature tells us would when publish'd give such satisfaction to all our great Masters in the Schools of Polity that all