THE Fundamental Constitution OF THE English Government.  
PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN.  
In Two Parts.  
In the First is shown, The ORIGINAL CONTRACT, with its Legal Consequences allowed of in former Ages.  
In the Second, All the Pretences to a Conquest of this Nation by Will. 1. are fully examined, and refuted.  
With a large Account of the Antiquity of the English Laws, Tenors, Honours, and Courts for Legislature, and Justice.  
And an Explanation of material Entries in Dooms-day-Book.  
By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power.  
Errat siquis existimat tutum ibi esse Regem, ubi nihil à Rege tutum est; securitas securitate mutuâ paciscenda est.  Sen. 
London, Printed by J. D. for the Author, 1690.   

To the Right Honble AUBREY DE VERE, Earl of Oxford, Baron of Bolebec, Sandford and Badlesnere; Lieutenant General of their Majesty's Forces; Colonel of the Royal Regiment of Horse-Guards; Lord Lieutenant for their Majesties in the County of Essex; Knight of the most honourable Order of the Garter; and one of His Majesty's most honourable Privy-Council.  
My LORD;  
THEY who observe what Licence has been given, as well as taken, to blemish the Instruments, under God, and our King, in the greatest Deliverance, with the most immediate appearance of God in it, perhaps of any next to that of his chosen People of old; would think the Nature of things to be inverted, Triumph to belong to the Conquered, and the most desired Deliverance to be worse than the deprecated Bondage, or to lose its Nature, because it was the return of Prayers and Tears, and not purchased by Rivers of Blood.  
And aftertimes, 
I have seen an exact Pedigree o● the Earl's Family from Syford a noble Norman Gothick Extraction, 
Vid. Pref.  who was eminent under Rollo, who, Anno 912, obtained Normandy by Treaty with Charles the Simple, and marrying his Daughter. This Syford made the like bargain with Arald the first, Earl of Flanders, from which Marriage the Earls of Flanders, and the Vere's Earls of Guisnes in Flanders, descended. Alberic, or Aubrey de Vere, or Ver, as he stands entered in Doomsday Book, is supposed to have come into England with W. 1. 'Tis certain at the time of the great Survey he was a Proprietor in several Counties, particularly in Essex; and Humphrey the Son of Alberic had at that time several Manors in Norfolk and Suffolk. 'Tis probable that this Son of Alberic died in his Father's Life-time. I should take the Comes Albericus, who is entered in Doomsday Book in several Counties as a Proprietor, from before the reputed Conquest, to have been Alberic de Ver, and the rather, because, otherwise he and his Descendants from that time are wholly lost: and besides, no place in England can be found of which any Alberic, or Aubrey was Earl, till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford. But before that time the Office of High Chamberlain belonged to the Family, and, as appears by Records which I have seen in the Tower, was annexed to their Barony. But that of Bolebec belonged not to it till about the time of King John, when Earl Robert married the eldest Daughter of the Lord of Bolebec; the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3: with the eldest Sister and Co-heir of Bartholomew Lord Badlesmere.  in which your Lordship's Great Name will flourish, taking root downwards, as it has spread upwards to the first Ages, will treat their Memories with Contempt, who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship, and the Followers of so bright an Example.  

Selden Dissert. ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus, etc. eminentissimus erat, pristini planè commatis juris sine ullâ Caesarci intermixtione peritus, atque exercitatissimus apud nos Albericus de Ver.  Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmixed English Laws, than your Lordship is, and will be to Posterity, for your generous Defence of them.  
Certain it is how much soever some pretend to passive Valour, they cannot bear the Reproach of such extraordinary Virtue, and are forced to shut their weak Eyes at that shining Bravery, with which your Lordship struggled, with the Flatteries, and Threats of Fortune, and of Power: Becoming, in the Language of the Heathen Philosopher," a Spectacle most" pleasing to the Gods: the Effects of which Pleasure your Lordship has felt, in the admired Tranquillity of your own Mind, and in the Glory permitted you, of being signally accessary towards the present Happiness of your Country; not only by your resolute Undertaking, but even by your Sufferings.  
I must own the Sufferings of others to have contributed to it by accident, as those things may well be said to be, which happen contrary to the intention of the Agent, and nature of the Action.  
But the Nation was glad to find their private Resentments, and self-Defence, to carry them along with the Public Interest, which some of them had sacrificed to low Ends, or stupidly neglected; being as unconcerned at public Calamities, as if their former Exemptions, which they seemed to aim at, had made them of another distinct Community.  
Such as these deservedly lost the Credit of their share in this Revolution, not only as they had drawn their Sufferings upon themselves, and others, by tempting those whom they flattered to make Experiment of the force of their Doctrine; but as their subsequent Carriage has demonstrated, upon what narrow Principles they engaged, not in the Cause of their Country, but their Own. Their lowness of Spirit makes them resemble those fawning Creatures, whom the least Gentleness raises to Familiarity; but notwithstanding the Advantages which they enjoy under this Government, 'tis not to be presumed that they are given them otherwise, than to reclaim and wean them from Notions, as destructive, as they are useless, to this equal Administration.  
They who now pretend to merit, by transplanting the Doctrine of the Bowstring into the Service of this Government, would do well to consider, whether in the late Reign it really profited any but themselves; and whether they kept to it any longer, than while they found their account in it.  
As it is our Happiness to have a King born, and acting for the Good of Mankind, it is not to be feared that he should cherish what is contrary to their common Sense, and Interest; or that he will countenance Reflections upon those noble Patriots, who ventured every thing dear to them, in the same Cause with himself, while Success was doubtful; and whose Reputations, next to his own, facilitated that Revolution, for which late Posterity shall praise those of this Generation.  
One would think that such a Cause should not stand in need of Advocates, or they of Patrons: yet when Men High in Titles, and Pretences to the Service of Crowns, range themselves on the other side, and Reflections fly about, and must fall some where; 'tis requisite for Men of my Mediocrity, to be clothed with the Privileges of them for whom they plead.  
Under this Protection I may affirm, that while your Lordship would have the Throne established in Righteousness, 
So Seneca represents the Epicureans justifying the Worship of a God. Deus colitur propter Majestatem eximiam, singularemque naturam. Sen. de Beneficiis, lib. 4.  and the Crown not only to be easy to them that wear it, but amiable to all; Others, out of folly, or design, would remove the very Foundation of this, and all regular Governments, hanging them by Geometry upon mere Air; and render Kings, like Indian Gods, to be worshipped only for their Power to destroy, not for the Beneficence of their Natures: which eximious quality in their Majesties, and in your Lordship, absolutely disposes of,  
My Lord, Your Lordship's most obliged and devoted humble Servant, W. ATWOOD.   

PREFACE.  
THE following Collections, in which I may say I have taken some Pains, are but an Enlargement upon what I published, immediately after the Accession of their Majesty's King William and Queen Mary, to the Throne of this Kingdom.  
I must needs say I was glad to find, that the Effect of those Studies, which had drawn upon me the weight of an Arbitrary Government, might at least entitle me to the Protection of a Government, which risen, like the Phoenix, from the Ashes of the other; and was founded in such a Consent as gives Establishment to our Laws.  
Some may think I carry the Point too far, and prove more than is fitting; they at least for whose Conviction so much was needful, that they may gain strength to their Party, will represent all that oppose their Extreme as embarked in the other. And as they were justly become odious to all People who had any love for the English Liberties, they will be sure to run down others as Commonwealth's Men, not fit to live and breath in a Monarchy.  
But to give the Objection its full weight, 
The Doctrine of Nonresistance, or Passive Obedience, no way concerned in the Controversy, etc. By a Lay-Gentleman.  I shall consider it as it has been managed by a Lay-Gentleman, who contends that the Doctrine of the Bowstring was just to the late King, and would be serviceable to this; but that the contrary is dangerous to all Crowned Heads.  
And while I vindicate them who expose the modern Notion of Passive Obedience, I will show that they who may be presumed best to understand their own Doctrine, in effect condemn him for a Renegado.  
This Lay-Gentleman absurdly labours to prove, That they who would not assist their Prince, to maintain that Power which they had beyond measure advanced, and were both in Principle and Practice, against contributing towards our present happy Settlement, are, for those very Reasons, the only Persons fit to be trusted under it.  
The greater his Abilities are, and the larger his foresight of Consequences, the more is he confounded in the Defence of those of our Clergy, who have made the greatest Noise for that spurious Non-resisting Doctrine, which he, and they, would impose upon our Church as its genuine Sense.  
While he, like a true Son of the Church, takes the Rules of his Obedience, and of judging in Civil Affairs, not from the Laws and Legislative Power, but from the Bishops; upon which account alone, he will have the Truth of our King's Declaration, 
The Doctrine of Nonresistance, etc. p. 5.  when he was Prince, not to be questioned, because, forsooth, all the same things in a manner are complained of in the Bishop's Proposals.  
And thus, if Matters of Fact, or Points of Law, are adopted by the Clergy, 'tis not for the profane Laity to enter upon this hallowed Ground, without their Licence; and for them to take it from the Church, is such a sort of Sacrilege, as Dr. Heylin, and others, charge upon our Reformers, for alienating and clearing the Nurseries of Superstition.  


Vid. Hist. of Passive Obedience, p. 97. speaking of Dr. Hicks his Jovian, that elaborate Commentary on the Doct. of Passive Obedience.  
P. 96. Dr. Sherlock's Book of Nonresistance is so strong, and his Arguments from Scripture so cogint, etc. The Doctrine, etc. Pag. 2, 38.   Tho this Lay-Gentleman had not explained what he means by the Non-resisting Doctrine, any Man who has read those Books which are still vouched as the Standards for it, might easily understand, that that which they who wish well to the present Government would have extirpated out of the World, and he would keep up, as having such Characters of Divinity as deserve Respect from us all, as we are Christians, is,  
The not resisting the King, or any commissioned by him, but being wholly passive, when our Constitution and Laws are notoriously violated, and we are persecuted against Law.  

Page 2.  Wherein this Gentleman would have Obedience to continue when the Law which required and ascertained it, is subverted in such a manner, as there can be no question of it, this he owns that the late King was guilty of, 
Page 7.  and that he would give us no assurance we could rely on, to do otherwise for the future. So that we were to expect, that what he calls an arbitrary, 
Page 3.  tyrannical, exorbitant Persecution, would, if not prevented, have been entailed on our Posterity.  
And the truth of it is generally, to avoid Suspicion, he sufficiently loads the late King; yet it is not without reason, that the boldest Talkers have formerly been suspected to have secret Indulgence; 
The Design of the Author of the Magistracy and Government vindicated.  but in this he is something more politic than the Author of the Vindication of the Magistracy and Government of England, who would make his Court to this Government by justifying the last; yet this Gentleman's Policy is no more than needful, when he contends that to excuse them of the English Nation, who have been instrumental towards the late Revolution, 
Pag. 36.  we must set up ourselves against the Doctrine of Christianity. Such a Liberty do some Men take, with hopes of Impunity, of branding those Men, whom all Generations to come will praise, for shaking off that Yoke, which neither they nor their forefather's were able to bear; and must have entailed Curses on their own Memories, had they suffered it to be entailed on their Posterity.  
This zealous Gentleman need not wonder, 
Pag. 1.  or be impatient (except as his Sores are rubbed) at the bandying of this Non-resisting Doctrine to and fro in this distracted Kingdom, 
Pag. 1.  till the Broachers of it, who first raised the Disturbance, if they have not the Grace to repent, at least have the Modesty not to boast of it, and to style themselves the only good Subjects, 
Pag. 3.  and good Christians; especially till they leave off, not only censuring, but misrepresenting others, who, by a fair state of the Question, are they alone who are directly contrary to them; which himself is elsewhere sensible of, when he says" of the direct contraries in all probability one is true; 
Pag. 35.  but the direct contrary to what they hold is not, that it is lawful for every Man to rebel when ever he thinks it necessary; 
Pag. 2.  much less when he pleases. 
Pag. 37.   
Himself yields that non-assisting the late King was notoriously necessary for preservation of the Nation; and what restrains others from judging when there is the like notoriety for resisting? As he charges others with holding, that they may resist when and whom they please; they may say that he is for not assisting in the like latitude, 
Pag. 37.  and for cramping the Government, if he has not the Courage to attempt against it.  
We may resist when the Original Contract is notoriously broken, and we must not resist when the Original Contract is notoriously broken; are contrary and contradictory Propositions, one of which I grant to be true: But we must resist in no case, and we may resist in any case, 
Pag. 37.  when every Man pleases, or, at least, thinks it necessary, are not Contraries, 
Pag. 2.  but Extremes; and 'tis odds but the Truth lies in the middle, that we may resist in some case, which cries aloud, and justly stirs up a Nation, as with the Voice of God.  
This Gentleman does not observe, that the Question is of one who ceases to be King, according to that of Bracton, non est Rex ubi dominatur voluntas, & non Lex, which is not barely his Opinion, but warranted by that noble Transcript of the Original Contract, the Confessor's Law, which shows, that if a King does not answer the true end for which he was chosen, he loses the Name, or ceases to be King, which was very well understood by J. 1. who told his Parliament, 
Vid. J. 1. his Speech in Parl. March 21. Anno 1609.  that every just King is bound to observe that Paction made with his People by his Laws, framing the Government thereunto; and a King leaves to be a King, and degenerates into a Tyrant, as soon as he leaves off to govern by Law. And thus the Protestants in Germany who resisted the Emperor, notwithstanding their Oaths of Fidelity to him, 
Hornii orbis Polit. p. 18.  pleaded that they resisted him not as Caesar, but qua non fuit Caesar.  
Our Author confesses that the late King notoriously subverted our Constitution, 
Pag. 2.  did not treat us like English-Men, but Slaves, and says, all grant his design was certainly to extirpate the Protestant Religion, 
Pag. 16.  to enslave, and consequently to extirpate the English Nation. And I dare appeal to Dr. Falkner's Christian Loyalty to try ours by in such case, 
Dr. Falkner's Christian Loyalty.  where there was a manifest Renunciation of the Government as an English King.  
And surely no Man of Sense will say, that such a liberty for resisting, as this Lay-Gentleman imputes to the Williamites, can be the Consequence of resisting such a Prince as he describes, and of exploding that Sycophantry which did encourage, and would support him; or that the best of Princes can need the influence of that Doctrine, which hurried on the other to his Ruin: the insinuation of this is the greatest Reflection which can be put, not only upon the Friends of their present Majesties, but upon their Majesties themselves.  
Tho some would have been so ungrateful to have sent his Majesty back uncrowned, after he had rescued them from their present Fright, which might soon have been laid with a few flattering Caresses; the English Nation abhors such a Reproach: nor can their Majesties so far departed from their own Nature, to violate that Constitution which they have restored; nor yet can the confuting their slavish Doctrine of Passive Obedience, 
Pag. 36.  in the least derogate from that religious Awe and Reverence, which is due to Crowned Heads: though it may remove that Bugbear and Mormo, with which some would fright Mankind out of love with them.  
Nor can any good Prince's Crown be unsecure, by rejecting the deceitful Officiousness of others; since nothing can hazard it, but such extravagant Actions as a well-disposed Prince can never fall into, and which by natural Consequence as well as Equity, provoke a whole Nation. The Laws make all Rise against the King punishable with Death, and therefore single Persons or Companies, in their sound Minds, will not attempt them, but when the Cause is so apparent, that they who suffer them to stand alone in it, do but invite and encourage Attempts upon the Lives and Liberties of all: But if, as often such there are, hot Men over-valuing themselves, or the Strength of their Adherents, will endeavour to destroy a good Government to raise their Faction, or accomplish some low Ends of their own; the Prince has sufficient Security with the Laws and Hearts of his People on his side: And how strict soever the Laws are, 'tis a vain thing to expect Safety from them alone, when any part of that Authority from which they flow, is rendered cheap, or invaded with an high hand. And they who think to get above all Law, will find their open Violations to give the same Freedom to others, which they take to themselves.  
It ought, says the Lord Clarendon, 
Lord Clarendon's Survey of the Leviathan, p. 48.  prudently to be considered whether People may not be very naturally disposed to use that Force against him, that declares himself to be absolved from all Oaths, Covenants and Promises: and whether any Obligation of Reason, or Justice, can establish the Government in him, who found'st it upon so unrighteous a Determination.  
As a judicious Person has well observed, 
The new Oath of Allegiance justified, Edit. An. 1689. sold by Ran. Taylor.  If single Persons, or many together be injured by the Prince, they are obliged to suffer quietly, rather than disturb the Public Peace, and in this case Passive Obedience is a Christian Duty, and is necessary to the Quiet of every Nation; since the best Governors may by mistake injure some few; and if they do so, that doth not break the Compact, because all the People collectively, or representatively, were but one Party in the Stipulation; and therefore those Acts, by which a King must forfeit, are such as are likely to take away the Rights of the whole People, or aim at changing the Form of the Government, subverting the Laws: In such case Passive Obedience is not the Duty of a Community, who have Rights and Liberties secured by Law; and for the whole People to stand by silent, and see that done, is the greatest Folly, and the highest Treachery to their Country and Posterity.  

Doctrine of Nonresistance, p. 1.  But as this Gentleman asks, What can the Friends of their present Majesties pretend to palliate their Contempt and Scorn of the current Doctrine of Passive Obedience? Some would ask, whether he does not exclude himself from the glorious number of Friends?  
Nor will they be shy of affirming that he does so, when they observe, that he contends that they forgot their Duty both as good Christians, 
Pag. 3.  and good Subjects, who declared for the Prince of Orange, his now Majesty, before the late King actually left the Nation.  
Yet he seems not ware, that while he blemishes these, with setting up themselves against the Doctrines of Christianity, he condemns, 
Pag. 36.  not only some of our Clergy, but the Church of England, for maintaining a Doctrine, which he does not deny to be destructive to the Constitution of our Government, and to Mankind: by which one would be tempted to think, that his business is, to make Men not only out of love with Crowned Heads, but with Christianity itself.  

Pag. 36.  As to particular Persons he confesses, that the heat of Controversy has misled some of the Church of England, to write too much in favour of wicked and tyrannical Princes, even to the encouraging them to do worse, than otherwise they would. Where he taxes their Doctrine of Nonresistance with encouraging Tyranny, and such excesses of it, as the Tyrant would not otherwise presume upon.  

Pag. 31.  Nor does he less condemn the whole Church. The Disloyalty, says he, of two other Parties have made the Church of England take into the contrary Extreme; and, as a Jesuit wished it might do her much good in scorn; So she had like to have paid too dear for the pretence: and they who would now again sacrifice her to their Interest and Reputation, are, to speak softly, none of her best Friends. They pretend we have not suffered enough for our Religion to justify our Resistance, Why? according to their Principles, we are never to resist whatever we suffer, but to suffer on till there is not one left to resist.  
Herein I confess he makes a true Representation of that Principle which himself runs into so naturally, that he is not sensible of it.  
But is not this by him judged to be an Extreme to be avoided? Does he not yield that the Church of England has been made to take into this Extreme, out of abhorrence to the other? Nay, does he not in effect admit, that himself and others sacrifice the Church to their own Interest and Reputation, while, that they may justify their Extreme, they condemn those who avoided both Scylla and Charybdis, in Making to an happy Port, along with our Caesar and his Fortune.  
God forbidden that it should still be men's Interest to justify that Extreme! and let them enjoy the Reputation, of never acknowledging an Error, though the most gross and pernicious.  
But what a miserable Defender has our Church, which must needs reject such Doctrines and Defences!  
If Churchmen are the Church, Statesmen the State,  
Truth may profane, or lybel else the Great.  
This Gentleman pretends to have the Scriptures, 
Pag. 35.  and all Primitive Antiquity on his side, 
Vid. inf. f.  to which he would draw in the Church of England; which upon a rational Construction cannot be thought to mean more than, that we are bound to obey the King's Legal Commands, and not to resist him while he continues King: nor has that any thing against the Supposition of a Civil as well as Natural Death. And as to the two other Topics, it is to be considered, 1. That the Scriptures meddle not with particular Constitutions, but give a general Rule for Obedience (which is more than bare Nonresistance) according to those Constitutions which are God's Ordinance, as he authorises Human Laws, in Civil Affairs, not contrary to his own. And, 2. 
Pag. 3.  This Gentleman himself sets aside all Primitve Antiquity when he confesses, that in those times the Religion was contrary to the established Laws; and so Men could not be persecuted for it against Law, at least not so as to come up to our case: especially if we take in what he acknowledges farther;  
The Roman Emperors, says he, under whom they lived, 
So Jovian, p. 85, 86. Julian did persecute them legally, vid. p. 91.  were absolute independent Princes, whose Will was the Law; and the Constitution of the Empire differed vastly from that of England, so that we are not under the same Obligation they were; because our Princes have not the same legal Power as the Roman Emperors had: but then I doubt not but we are as much bound to submit to the legal Commands of the King of England, as the Primitive Christians to the legal Commands of their Princes. But, says he, this was no part of the Controversy under the Reign of James 2. who had as little Law as Reason for what he did.  
If this be not a giving up all Primitive Antiquity, I shall never pretend to understand how words ought to be taken.  
Since therefore, neither the Scriptures, Primitive Antiquity, nor the Doctrine of the Church of England are against them, who embraced and assisted in the Deliverance which his present Majesty vouchsafed us; it became not this Gentleman, who takes such pains to purge himself from having any hand in it, to censure those Worthies who had, as not behaving themselves like good Christians and good Subjects. 
Pag. 3.   

Pag. 3.  And to call them a few, is almost an equal Reflection upon the honour of the Nation, which has never been backward in freeing itself from Tyranny; and was ready as a Man to act in this King's Service, before they were so just as to lay the Crown at his Feet; nay, before Success had crowned his glorious Enterprise: which almost all were eager to evidence as they had opportunity; and I may say of many, with Mr. Cowley in his Description of Envy.  
They envy even the Praise themselves bade won.  
That the Body of the Nation were thus forward, is manifest in their declaring by their Representatives that the late King had broken the Original Contract; which must have been before the Judgement passed upon it, or ortherwise the Judgement were not warrantable.  

Pag. 25.  When the Gentleman will allow of no Title in his present Majesty, but real Conquest over the Nation as well as the late King, and lawful, meaning lineal, Succession; either of which Titles he supposes he may claim by; he would do well to consider, 1. That he reflects upon the great Representative of the Nation, which found'st it upon the others Misgovernment. 2. He sets it all aside, when he owns that this King does not claim by Conquest; nor in truth could he be a Conqueror, who was not only invited by those who had a just Ascendant over the Minds of the People, but was prayed for, and received with open Arms, by the Nation in general; though indeed such an universal Consent, with such Inducements from Gratitude and the common Necessity, aught to subdue all Scruples, as much as the most real Conquest.  
And this Gentleman must yield that our King does not claim as lawful Successor, if lawful be confined to Succession in the Line, not only as the Predecessor is alive, and two are invested with the Sovereignty annexed to the Crown of this Realm, which according to Dr. H. and others of that Notion, 
Vid. Dr. H. his Preface to Jovian, p. 41.  is void and null; but if Conquest (which could be no Foundation for Hereditary Succession in the Conqueror) be out of the question, according to this Lay-Gentleman's Principle, there could be no colour for the Succession, but a bare Desertion, or leaving the Kingdom without providing for the Government, which whether voluntary or involuntary he matters not; and consequently, 
Pag. 6.  as this might be forced and submitted to animo revertendi, that alone could not devolve a Right upon a Successor: Shall no Misgovernment whatever put an end to this Right, yet shall a supposed faultless Desertion? How could any upon this Principle excuse the Attempts for restoring King Charles the Second? Men cannot reasonably hope to serve their Party with Notions, which would condemn more of them than they can pretend to justify.  
Besides, effectually to set aside the invidious Suggestion of a real Conquest over the Nation, and absurd one of a legal lineal Succession, in such Circumstances as attend this Case; his Majesty cannot be presumed to claim the Crown, but as he received it, nor to have received it but as it was offered, which was upon the Vacancy of the Throne, through the others Violation of the Original Contract between Prince and People.  
But if, for the sake of an unreasonably disaffected Party, Men shall be allowed to reflect, 
Pag. 36.  not only upon those, who being duly discharged from their Allegiance to the late King, assisted this from the beginning in settling the Kingdom; but upon the Proceed of our true Representatives, and the Settlement itself, for fear lest the exposing their Insolence and Folly should exasperate them; it would argue that distrust of the Cause, which would be a greater Justification of their Insolences, than they can derive from any other colour.  
But if, as our Representatives have judged, and thereby concluded us, the Contract was broken before they determined so; what ought to have restrained them, who were so inclined, and had opportunity, from meeting our Great Deliverer, as the Jews did Alexander, with an Highpriest, or Bishop in the Van?  
And they who leave wholly to Providence, what may require their Co-operation, deserve an Epicurean God, like unto themselves, merely Passive, or unactive, while the World goes round.  

Pag. 34.  This Gentleman tells us, that as we had no disloyal Exhortations from Press and Pulpit to persuade Men to fight against their Prince (though he might have met with many a strong innuendo, enough to have stigmatised a poor Whig) so neither had we any to persuade us to fight for him, but the thing was committed to God to determine as he thought fit; and he says, if it were unlawful to resist him, 
Pag. 7.  it was also as unlawful to assist him, and enable to destroy the true Religion, the English Liberties and Immunities, nay the very Nation.  
Now it is evident, that if our present King had not received Encouragement from many in this Nation who had promised, and were ready to assist him as occasion might serve, the bare non-resisting the late King and his Army, had enabled him to destroy the English Nation, which 'tis granted that he was bend upon; and therefore assisting our present King was not only no Sin, but a Duty, by the same reason that it was a Duty not to assist the other.  
But they who are of a contrary Opinion can by no means excuse themselves, for not fight for the late King, or endeavouring to assist him, when he stood in need, and required it of them; for if he continued their lawful King, whom they were bound not to resist upon any account whatsoever, according to this Advocate for the Non-assisters, they were obliged to obey all his legal Commands; 
Pag. 5.  and they were certainly equally bound as they would be true to their Oaths to bear him Faith and true Allegiance, and to their Power to assist and defend all Jurisdictions, Privileges, Preeminencies and Authorities granted or belonging to him, as King, or united and annexed to the Imperial Crown of this Realm.  
This they were certainly bound to against a Foreign Force, for Preservation of that Head of the Government, which, notwithstanding the most tyrannical Sway, they will have still to be God's Ministers to them for good, 
Vid. pag. 1.  and which their Prayers, and Tears, joined to temporal Arms, might have rendered useful to their purposes: Tho they were not obliged to assist him in the Execution of illegal Violences, yet, if they were to bear with him notwithstanding the utmost, they were in other things to help him carry on the Government: and their Sins of Omission, must needs be as heinous as others of Commission.  
Nor is this Gentleman more happy in appealing to Primitive Antiquity to justify the Non-assisting, than he has been for the Non-resisting Doctrine: For those Fathers who forbade a Soldiers Life, did it not as 'twas in the Service of Pagan Emperors, but upon Supposition that the use of the Sword was unlawful for them to whom they gave the Precept, to which end he that takes the Sword shall perish by the Sword, was applied, which yet was originally meant, only of taking it up without a lawful Call.  
But Tertullian, on whose Authority our Non-resister relies, agrees that they who had taken the Military Oath to Pagan Emperors before Baptism, were bound to fight for them; according to which, they who had sworn Allegiance to King Charles the Second, his Heirs and lawful Successors, and to defend the Rights of the Crown; nay, all they who had sworn at any time before our Seers had their Eyes opened, by their feeling the Effects of their own Doctrine, were, upon pain of Damnation, to fight for the late King, till the chance of War had decided the Controversy.  
And whatever liberty of judging he charges as the Consequence of the resisting Doctrine, will fall upon the non-assisting, which is as truly a departure from Duty, and as great a breach of the Oath of Allegiance, while the Duty of Allegiance remains, as the other. Let him assign the time from whence it was a Duty not to assist, and I shall not scruple to pronounce, that from that very time Resistance was as warrantable, and more honourable.  
But suppose, for once, that the Primitive Fathers were against fight for Pagan Emperors, as they were Pagans, and to bring it home to the late Case that the Protestant Jacobites were excusable from fight for the late King, as he was a Papist; would not this be a virtual disabling him from being King of this Protestant Nation? for otherwise, as it is an undoubted Prerogative, or Privilege of this Imperial Crown, for the King to make War and Peace when he judges it fitting, notwithstanding men's Oaths to defend all the Regal Privileges, they were not bound to defend this, especially if the War were against Protestants; in which case, the Subject would take to himself the Judgement of the Justice, or Expedience of the War, as much as others do of the necessity of resisting.  
Or, suppose yet farther, that the late King had discharged his Mercenaries, and commanded the Militia, by Law established for the Defence of the Kingdom, to march and fight against his present Majesty, had not this been a legal Command? The King's legal Commands, he agrees with me, that we are bound to obey, yet he with all agrees, that it was unlawful to assist the late King against This, before he was crowned: How then can the matter be adjusted, without yielding, that the late King lost his Regal Power by assuming a Tyrannical one?  
This may suffice to show, that they who resisted the late King, did it not out of Principles either Anti-christian, or Anti-monarchical; and that they who are for the non-resisting Doctrine, as it passed for current in the last Reign and the foregoing, and yet pretend a Zeal for the present Government, do but daub with untempered Mortar; and as they were not to contribute to the late Revolution, so much as in their Prayers, but on the contrary were to pray for the late King's Victory over all his Enemies, and in effect that God would keep and strengthen him in his Kingdom, as well as in that Worship, which they could not but know not to be God's true Worship; So if that misguided Prince should desert Ireland, and return into their Arms, for a Punishment of those Opinions which occasioned his Ruin, their pretended Loyalty to this King, if they prove true to their Principles, must fall to the ground: And the least puff of Wind, adverse to us, but prosperous to the Jacobites, would blow up that Fire covered with deceitful Ashes, to the extinguishing of which I shall readily devote my Service.  
The Lay-Gentleman who has extorted my Reflections, by his indecent Censure of the Subjects of this Monarchy, who contributed towards the late Revolution, thinks it clear that the Doctrine of Passive Obedience is no way concerned in the Controversies now depending, between the Friends, and no Friends, if not Enemies to their present Majesties; having, in his vain Imagination, put it past question that the Williamites were neither good Subjects under the late Administration, nor good Christians, and true Members of the Church of England: And that his good Christians and true Members are the only Persons, whose Principles may be relied on now.  
Yet since he will have the Sense of the Church to be known from the Cry of the Clergy, and a Bishop, supposed to be a Martyr for it, may be presumed to give the Sense of that Truth, which he would be thought to attest to the last.  
If this Gentleman will not hear me, let him hear the Church, for his Conviction in this matter.  
The late Bishop of Chichester's Paper.  
BEing called by a sick, and I think a dying Bed, and the good Hand of God upon me in it, to take the last and best Viaticum, the Sacrament of my dear Lord's Body and Blood, I take myself obliged to make this short Recognition and Profession.  
That whereas I was baptised into the Religion of the Church of England, and sucked it in with my Milk, I have constantly adhered to it through the whole course of my Life; and now, if so be the Will of God, shall die in it; and I had resolved, through God's Grace assisting me, to have died so, though at a Stake.  
And whereas that Religion of the Church of England, taught me the Doctrine of Nonresistance and Passive-Obedience, which I have accordingly inculcated upon others, and which I took to be the distinguishing Character of the Church of England, I adhere no less firmly and steadfastly to that, and in consequence of it, have incurred a Suspension from the Exercise of my Office, and expected a Deprivation. I find in so doing much inward Satisfaction, and if the Oath had been tendered at the Peril of my Life, I could only have obeyed by Suffering.  
I desire you, my worthy Friends and Brethren, to bear Witness of this upon occasion, and to believe it as the Words of a dying Man, and who is now engaged in the most Sacred and Solemn Act of conversing with God in this World, and may, for aught he knows, to the contrary, appear with these very Words in his Mouth, at the dreadful Tribunal.  
Manu propriâ subscripsi, Johannes Cicestrensis.  
This Profession was read, and subscribed by the Bishop, in the Presence of 

Dr. Green, the Parish Minister, who administered.  
Dr. Hicks, Dean of Worcester.  
Mr. Jenkin, his Lordship's Chaplain.  
Mr. powel, his Secretary.  
Mr. Wilson, his Amanuensis, who all communicated with him.    
Here 'tis observable;  
1. That the Bishop, as fallible as an inferior Clergyman, died in that Opinion, which he had professed and inculcated in his Life-time, so warmly and so often, that himself believed it: Tho it may be a Question, Whether he would on his Deathbed have affirmed (as he had done in his Pulpit, where men's Affirmations ought to be as solemn as at the last moments of Life, 
Sermon at Tunbridg. ) That they could not enter into Heaven without particular Repentance, who in derision were called Ignoramus Jurymen; because they would inquire into the Credibility of Witnesses, and scorned to enslave themselves to the Directions of Judges, or more powerful Influences from Whitehall.  
And though it seems the Tower had not weaned him from his fondness of Passive Obedience, perhaps it did from that which he had expressed towards our then Court's firm League with France, while he believed it designed to curb none here but the fanatics.  

Vid. the Defence of his Profession concerning Passive Obedience, and the new Oaths, Ed. Anno 1690.  These severe Truths, though in proof beyond Contradiction, I should gladly let lie buried with him, were not his Ghost still kept walking to do Mischief.  
And if the Authority of a Man's Person or Office shall, without any other ground, be set up to condemn the far greatest number of Persons, of at least equal Credit and Station, it is no more than requisite to show that this Man is not more than others, exempted from Errors, and the common Incidents to Humanity.  
2. The Bishop shows, that the Doctrine of Passive Obedience, which he had inculcated, as the Doctrine of the Church of England, and which he found himself obliged to propagate at his Death, is so far concerned in the Controversies now depending, that upon the account, or in consequence of holding to it, he had incurred Suspension, and expected Deprivation, for not taking the Oath of Allegiance to our present King and Queen; wherein he abundantly confutes our Son of the Church.  
And all the Authority which can be derived from the Bishop's Dying-Declaration, to prove the Doctrine of Passive Obedience to be the Doctrine of the Church of England, equally proves that this is essential to the Controversies depending, between the Friends of the late Government, and the happy Subjects of this.  
As a just Corollary from which, we may affirm, that no Man who is true to the Doctrine of Nonresistance, or Passive Obedience, can bear Faith and true Allegiance to our King and Queen. In consequence to which, as I have above shown, such are bound to their Power to assist the late King, and to maintain the Regal Rights which he still claims, as King of England; if they are entrusted with any of our King's Secrets, to reveal them to the other; and to employ all those Advantages, which his Majesty's Favour may give them, 
Preface to the Hist. of Passive Obedience.  towards the advancing that Interest, to which they believe themselves unalterably bound.  
And though our King, with the Generosity of Alexander, may trust himself with them, of whose at least probable Designs, he may have certain Information; yet no Man need wonder that his Friends offer him the Notice, and that they would have that Doctrine extirpated out of the World, without which, it were impossible for him to have an Enemy in the English Nation, but a Papist. And even among them, I dare say, all but the  Slaves to their Clergy, are sensible of the benefit of his Protection; and may encourage themselves in civil Obedience to him who is King over them, from the Examples of St. Anselm, with other holy Men, and the generality of their Clergy, who quietly obeyed the Power which protected them, without considering, whether the Person who administered it stood next in the Line, or no.  
And though it may be excusable for a dying-Man to justify his own Sincerity to his private Friends; yet when the matter which he affirms is of such Consequence to the Peace of that Government which had rescued him, and the Church in which he had such a Trust, from impending Ruin, and afforded it and him sure Protection, though he had disabled himself from farther benefit; he ought not, certainly, to have taken such Pains to transmit his Opinion to the knowledge of the unthinking Vulgar, who were likely to be influenced by it; unless he were certain, beyond the least shadow of doubt, that this was not only a Truth, but of such a nature, that the Sin of Ignorance in others were damnable: Or else, that the Restoration of the late King were preferable to Submission to this. The last, I hope, his Admirers will not say; and since the first evidently depends upon Points of Law; though ignorance of human Law cannot reasonably excuse before Men, who know not the Heart, and when the Plea ought to be allowed, when not; yet there is no doubt but it will before God.  
But who would not be impatient to find our great Law-Casuist Dr. H. to justify his Disaffection to the Government, under the Umbrage of the Bishop's Declaration, and to boast himself a Confessor to this pretended Martyr, without producing more colour for it, than a dying-Bishop's Belief, that this is in Consequence of adhering to the Religion of the Church of England.  
Had any one published thus much in the Reign of Innuendoes, when Dr. H. was the Trumpeter to the Imperial Power, in Contradistinction to the Political one, he would have met with Col. Sydney's Doom, who suffered for publishing Hicksian Treason all over his own Study.  

Jovian, p. 236.  And were Dr. H. to be judged by his own Law, 'tis certain he would be pronounced a Traitor, if the Publication of this Paper were proved upon him. For in his Jovian he says, What tends to Treason is Traitorous.  
The Lord Hollis his Book against the Bishop's voting in Capital Cases; he says, for the same Reason is an impious and treasonable Book; because it abounds with Falsifications of Records, etc. and asserts that the King is one of the three Estates. 
Pag. 237.  And the Dialogue between the Tutor and Pulpit is a treasonable Piece, because it misrepresents the English Government, as if it were a Reciprocal Contract betwixt the King and the People; and as if the Parliament ought, whether or no the King pleased, to sit till all Grievances were redressed, and Petitions answered. By the last of which the Bishops were Traitors for their Proposals to King James. And by the former, 
Vid. the Bishop's Proposals.  all those Passive-Obedience-Men are Traitors, who publicly maintain an Opinion which necessarily implies, that the Right of the last King could not be altered or diminished, for any matter which induced King William to undertake our Deliverance.  
If Men of the Doctor's Opinion will be exasperated for being driven from their Coverts, they should consider that they ought rather to be thankful, that they are put to no further Mortification, while they cease not to give jealousy to the Government, by maintaining or patronising, what is inconsistent with that Peace, which they are bound to pray for.  
But Dr. H. it should seem, 
Jovian, p. 104.  now aims at the Glory of taking that boldness and liberty of speaking and acting, which he says was common among Confessors, by which they shown the greatness of their Zeal to suffer for God: and how much they despised that Authority which was over them, in Competition with their Duty to God. And this may be to retrieve his Reputation for not calling the late King an Idolater, 
Ib. pag. 96▪  a Bread-worshipper, a Goddess-worshipper, a Creature-worshipper, an Image-worshipper, a Wafer-worshipper, etc. which we might have expected for the making good his Vapour before he came to the Trial.  
Did his then Silence agree with that supernaturul Courage, 
Pag. 297.  which he was fully persuaded God would inspire him with?  
And does it not seem odd, that the Inspiration should seize him to the Prejudice of that Government, under which alone it can reasonably be expected that Protestancy can be supported; but should be wanting in a Popish Reign? The Jews had a Divine Caution against receiving even those Prophets who wrought Wonders, if they laboured to withdraw Men from the Worship of the true God. And surely Protestant's would not scruple to reject the Doctor's Pretences to Inspiration, 
Vid. Dr. H. his Raviliac Redivivus▪  which some would be ready to ascribe to that Spirit which himself had found out for the fluency of some men's Prayers, or rather to that lying Spirit in the Mouths of the Jewish Prophets, which encouraged Ahab to go out to fight, for what had formerly been in the Possession of the Crown of Israel.  
3. The Bishop will have this Doctrine of Passive Obedience to be the distinguishing Character of the Church of England; and therein admits, that she holds it in a manner differing from all other Protestant Churches. And if this be so, the acting or believing according to it, can be incumbent only upon the unfeigned Assent and Consent-Men. But we of the Laity, who believe ourselves to be true Members of the Church of England, may be allowed to act without any regard to that Principle, which would distinguish us from all other Protestants. And how much soever some may be concerned to keep up the Distinction, 'tis to be hoped that we shall be more wise, and more true to the Interest of the Church universal.  
If, as the Bishop says, the Religion of the Church of England has taught this, and this is the distinguishing Character of this Church, will not Men say that he makes this Church to have a Religion as well as Ceremonies of its own?  

The Mischief of Separation.  A Prelate more deservedly eminent, tells us, That the sign of the Cross is the Right of Admission into the Church of England, as Baptism into the Catholic. But according to this Bishop, the Admission into our Church ought to be upon the Condition of subscribing this Doctrine, 
Jovian, p. 227. speaking of the Church of England and himself, It is she that taught him to preach up Passive Obedience, like a Parasite, Sycophant and Murderer: Poor Man! he sucked it in with his Mothers Milk.  which his Godfathers and Godmothers were to have promised and vowed in his Name. And then, though he had not, like Dr. H. (who, perhaps, herein played the Plagiary from Jovian) sucked in this Religion with his Milk; he might well have been baptised into it.  
The Reasons of this Bishop's maintaining and endeavouring to propagate his Opinion, to the Disturbance of our present Settlement (next to his Obligations to the late King, which the first misunderstanding was not to erace) were apparently,  
1. The sourness of the Milk, which he had sucked in from his Nurse or Mother; which is known to have a great influence upon the Constitution of the Body, and that upon the Mind; insomuch that Mr. Dreyden, and some other such Philosophers, have insinuated that the Soul is nothing else but the Temperament of the Body.  
2. The prejudice of his Education, whereby he was taught to believe this to be part of his Baptismal Vow. Which being the only Reason that he has thought fit to bless us with, as judging it sufficient; in following this Episcopal Authority, he who was bred a Pagan aught to be a Pagan still: And if we believe a topping Divine of the Church of England, 
Vid. Warley's natural Fanatic, dedicated to the then Chancellor of England. F.  the Pagans can produce better Reasons for their Infidelity, not only than any we have yet had for this distinguishing Piece of Religion, but, than can be brought for Belief in the true God, without having recourse to the Scriptures interpreted by the Church. But the Church which he complemented being the Church of England, the Popery of his Notion went down very glibly at that time, as the Authority of this single Bishop does with many now.  
3. The Weakness of his Judgement, which is obvious, not only in the wording his dying-Paper in such a manner, as either condemns his own Church of Singularity, or all others of Corruption, in departing from that Religion which she alone has the honour to profess; but farther yet, if he were in his sound Mind at the subscribing his own, or Dr. H. his Confession of Faith, he would have reflected, that though he might have done enough to quiet his own Mind, he had not used due means for informing himself of what he ought to press upon others, as a necessary matter of Belief; having debated it either with Divines, who are but second-hand Casuists for this, or else with Laymen of the Gentleman's Opinion, who would maintain the Doctrine of Passive Obedience, and yet exclude it out of the Controversy which it has raised and keeps up.  
I speak not this without grounds: for in debate with a Divine of our Church, whose great Worth, Learning, Moderation, and Integrity have justly raised him above all degrees in Station; the Bishop did frankly confess, that he believed the Question to issue in a Point of Law: And for his Satisfaction he had discoursed with a certain eloquent Person, whom he named, supposed to have sucked in Law with his Milk, as the Bishop did his new Divinity, nurssed up since Queen Elizabeth's days. But this Person being one who has acted upon the same Principle, and makes it his Glory not to have his Opinion altered by his place; I think no Man who observes what lame work the Lay-Gentleman has made, of endeavouring to reconcile the Doctrine of Passive Obedience with Submission to our present Government, will wonder, that he could not receive Satisfaction from one, who held the same Premises with himself, but denies the Conclusion.  
This ground for the Bishop's Pertinaciousness, I must own, is not evident to all: but his consulting Dr. H. is; who, I may well say, is hardened and steeled in his Profession beyond hopes of Conviction; since by the Writer of this, 
Vid. Letter to Jovian, Ed. An. 1683. p. 14.  he was long since admonished, of having shamefully abused those Authorities on which he relied, and of having, by his Concessions and Contradictions, fully set aside all that he would enforce: and this at a time, when this Writer ran the utmost hazard by exposing a Man, thought so highly to have served them who were in Power, and called themselves the Government; And when the Doctor, by refuting the Objections, might have had the Reward, as well as boast of a Triumph.  
Yet for the Comfort of them whom he then trampled upon, he had disabled himself of his Sting, while he quitted the Authority of a Preacher of God's Law, for a partial Reporter, and Expounder of Man's.  
His Errors or Perversions, as far they concern our present Controversy and Government, may be reduced to two Heads.  

1. The Estate in the Crown, and Derivation of it.  
2. The Rights or Prerogatives of the Crown.   
1. For the first, he says, this Kingdom is originally hereditary, 
Preface, Pag. 13.11.9.78.5.53.60. Jou. p. 38. Pag. 25. Preface, Pag. 55.  in an inalienable, indivisible, lineal Succession, by the Original Custom and Constitution of the English Government, tied to the next of the Blood: Or, as he has it elsewhere, fixed in one Family, and lineally descending in Proximity of Blood. With this Hereditary Monarchy an Interregnum, or Vacancy of the Throne, is inconsistent, as also its descending upon two Heirs at once.  
The Succession which he describes, he says is from God alone, who hath given it to the Royal Family for a perpetual Inheritance, and hath by his Providence ordained, that it should come to one of them after the Decease of another, according to Birthright and Proximity of Blood: 
Pag. 58.  But God's Providential Appointment of one to reign, he grants, not of itself, to carry the Right beyond the Person in Possession by such Appointment: Wherefore tho God's Providence had often given the Roman Empire to a Man, and some of his lineal Descendants after him, he contends, 
Pag. 46.  that the Roman Empire was not Hereditary, but Elective, by the Suffrage of the Legions, and the Consent of the Senate, according to the Custom of the Empire: And so was, in his Sense a Republican sort of Monarchy; 
Pag. 52.  and Heirs, says he, among them is to be taken in the Sense it then had, for chosen, or constituted Heirs, or Successors.  
But the first rise of the Custom concurring with God's Providence to fix the Crown here, 
Pref. p. 7.  he makes to be the reputed Norman Conquest, which first brought in this limited way of hereditary Succession unto one Line.  
This I take to be a true and full Scheme of his Notion upon this Head; whereby it appears, That it wholly condemns our present Settlement, 
Pref. p. 56.  as against that absolute Right or Birthright, to exclude which, even in Reversion, he says, would be to oppose the Will of God. And yet till he disprove what I shall offer against the belief of a Conquest made by W. 1. or show either that Custom or Constitution which proves that the Crown of England has, so much as since the supposed Conquest, been strictly and indivisibly tied to him or her who either was in Possession, or expected it, as next of Blood; I may affirm, that according to his own Hypothesis, God has not so given it in his Providence.  
I would desire no greater scope to prove our Government to be fundamentally an Elective Monarcy, keeping within a Family, but not confined to the next of Blood, than he takes to prove the Roman Empire to be Elective. Nor would I desire any other Justification of the present Oath of Allegiance, notwithstanding the former to the King, his Heirs and Successors, than what himself would allow of in the Roman Empire.  
But if God has by his Providential Appointment transferred our Allegiance to our present Sovereigns, 
Vid. the Preface to Predictions concerning this Government.  and no such Original Constitution or Custom, as is pretended, can be produced, which I have formerly evinced, and more at large in the following Treatise, the Doctor's Foundation of unalterable Allegiance to the last King failing, 'tis odds, but an Agreement between a King, with the Lords, and a full Representative of the Commons of England, will bid fairer for being according to the Original Constitution of our Government, than the Doctor's fancied Fundamental, and indivisible Entail of the Crown.  
If Conquest only, without any Original Entail by the Conqueror, or Consent of the Conquered, has fixed it to the next of Blood (though in truth the Providential Appointments, till the Settlements occasioned by the Quarrels between the two Roses, have generally been otherwise;) then 'tis plain that this is such a Right as may be entirely lost by the conquered Possessor. And as Will. 1. conquered Harold, though he did not conquer the Kingdom, 
Vid. inf.  having been designed Successor in the Confessor's time, and after invited by the Clergy chief; and coming to a speedy Agreement with all in general: So this King conquered the late; for he who runs away without fight, is at least as much conquered, as he who fights and is beaten; nay, in truth, more absolutely: for he that is beaten, generally gets some Terms for himself, whereas the other dares not stay to take them.  
2. As to the Rights, or Prerogatives of the Crown, by such an impious way of using Quotations as he unduly charges upon the Lord Hollis, he goes about to prove, that all that Sovereign Power by which the Nation is governed, which must be equally absolute in all independent Governments, (in which sense all Crowns that are not Feudatory, or any ways under a Foreign Power, are Imperial) is by our Constitution vested solely in the Person of the King. In the English Government, 
Pag. 240.  says he, though the House of Commons bears the show of a Democracy; and the Peers look like an Aristocracy among us, yet our Government is a perfect Monarchy, because the Supreme Power is, as I have proved, neither in the one, nor in the other, nor in both together; but solely in the Person of the King.  

Vid. Grot. de summâ potestate, subjecto potestatis, & modo habendi potestatem.  Where he is not satisfied to have the Supreme Power in the King in a supreme manner, so as neither Commons nor Lords, nor both, have it equally or co-ordinately, but nothing less than the absolute manner will answer his Scheme, as will appear farther.  
I was the more willing, says he, to make this Observation, that when I speak of Sovereign Princes, 
Jou. p. 240.  I may not be maliciously traduced, as if I spoke of them exclusively of other Sovereigns, as if Monarchy were of sole Divine Right. For want of this Distinction, other Writers have had this invidious Imputation laid upon them. But this Reason of not resisting the Sovereign, because he is God's Vicegerent, and only subject to him, is a common Reason of Passive Obedience to all Sovereigns, as well as unto Kings, and unto Kings as well as unto any other Sovereigns, etc.  
If the Government of Men, as well as Angels, be from God, than it must follow, That upon whomsoever God is understood to bestow the Sovereign Authority, he must also be understood to bestow upon him all the essential Rights of Sovereignty.  
'Tis manifest that this is upon Supposition that God has bestowed the Sovereignty absolutely; for otherwise every one who has the Name of Sovereign, would be equally entitled to all the Rights: And where God has not bestowed all the Essential Rights, 'tis as evident that he has not bestowed the Sovereignty absolutely.  
Accordingly, himself owns, 
Pag. 239.  that the Sovereign must be always understood the real, and complete Sovereign: because there are many seeming Sovereigns, which are not really such: and instances in the Kings of Sparta, subject to the Ephori, who being appointed by the People, he says, The People themselves were the real Sovereign next under God.  
Upon which some may ask, Whether if our Constitution in some case warrant taking up Arms without, or against Command from the King, that may not be done by the Authority vested in the People, for preserving the Constitution, without using the traitorous Position that the King's Authority may be turned against his Person? And whether if there be such a real Sovereignty lodged with them to that end, and the Constitution likewise in some Cases discharges Allegiance, and makes the Person to whom it was sworn cease to be King, this Right can be altered or diminished by the Declaration, that it is not lawful to take up Arms against the King?  
But to proceed with the Doctor.  

Pag. 242.  In all Sovereign Governments Subjects must be Slaves as to this particular; they must trust their Lives and Liberties with their Sovereign: Which with us he supposes he had proved to be the King, according to all the Rights of absolute, or complete Sovereignty. And having started up an Imperial Law, or Common Law of Sovereignty, 
Pag. 202.  for the evacuating the Political Constitutions of this Nation, made in the complete Exercise of the Sovereignty, I am sure, says he, in this Realm the Sovereign cannot wrong nor injure his Subject, 
Pag. 226.  but contrary to the Political Laws; where perhaps he may serve himself of Mr. Hobbs his Distinction, 
Leviathan, f. 98.  that his Sovereign may commit Iniquity, but not Injustice or Injury in the proper Signification.  
And thus a King of England has Right to make his Subjects Slaves when he pleases. Tho this naturally follows from the Doctor's Tenets; yet one would have thought that in Prudence this frightful Consequence should have been left for others to find out; were it not that there was some reason to believe, that by such Prints and Preachments the People had been sufficiently prepared for Slavery.  
But here indeed the Doctor admirably distinguishes, that this is with relation to particular Persons, whom he may destroy one by one, 
Pag. 192.  or Company by Company, yet he has no Right to enslave the whole People, by altering the Constitution of the Government from a Civil into a Tyrannical Dominion, etc.  
Yet even in this Case he allows of no Resistance, but that still being upon Supposition that the Power, which was restrained in the Exercise (a Power to act, and not to act) was vested absolutely in the Sovereign; till he proves it so here, all his Authorities from Scripture, Homilies, or elsewhere, fall beside the Question, which is of one assuming an absolute, or imperial Power, when the Constitution gave no more than Political one; 
Vid. Fort. de laudibus Legum Angliae.  according to his own Quotation out of Fortescue, explained by the whole course and design of that admirable Vindication of our Laws.  
After all, he owns the whole to be a Controversy of Law, that all the Laws of Men, are the Laws and Ordinances of God. And so God's Law places the absolute Sovereignty wherever Man's Law does.  
Wherefore from the whole it follows,  
1. That Lawyers are the best Casuists in this Point.  
2. That if our Law requires true Allegiance to be paid to the King in Possession, and allows of all Constitutions made by him with Consent of Lords and Commons duly represented, than the new Oath of Allegiance is required by an Ordinance of God; and they who refuse it fight against God. For the not obeying lawful Authority is evidently more a resisting God, than the forcibly opposing a pretence to Authority neither derived from God, nor Man.  
This Inference I must own will not reach those Passive-Obedience-Men who believe that Monarchy is the only Govenment of Divine Right, or that human Choice or Constitutions cannot intervene in the disposal of the Sovereignty, nor yet Dr. H. his own Notion of the Original Entail of the Crown.  
But till the Doctor has answered the Letter formerly addressed to him, or rejoined to Mr. Johnson, I should think this enough for his Conviction, though I do not expect that he will confess it; For the keeping up a Reputation with a Party, in hopes to become an Head, is a probable means for making good Terms for one's self: And then the Party may shift for themselves. And this the Doctor may do the more honourably, having dropped some Expressions, which a Man of less Art and Subtilty than himself, may easily turn to the Service of the Government that is uppermost.  
In the mean while, the poor Bishop, either through the Prevalence of his Distemper, the Weakness of his Judgement, or Violence of the Doctor's Importunity, has been induced to subscribe a Paper which may do much harm among them, to whom a Bishop's dying words, concerning matters of which he was no competent Judge, are of more weight, than the clearest Reasons, 

The Censure of the Observations upon Mr. Johnson's Remarks.  
P. 6. You have signed a kind of Post-humous Apology for your Judges, and almost justified the Inhumanity of your Sentence.   and most undeniable Authorities.  
Upon the Bishop's Principle of affected or acquired, I am sure unnatural Religion, the scurrilous Observator, upon Mr. Johnson's Remarks, chews the Cudd, in repeating his delight in those Sufferings, which are more the Reproach of some of either Gown, than Mr. Johnson's; which however this vain Writer, if Humanity, and the Consciousness of his own Deserts, could give leave, would justify ex post facto; but out of his great Tenderness allows him the choice of Death, as a gentle Commutation of Penance.  
Upon this Principle he imputes to that extraordinary Person perfidious Apostasy from the Church of England, and the abdicating his Religion together with his King, threatens the Nation with Judgements, because they have not kept their Master, the Lord's Anointed; 
Vid. Tit. Page.  and charges all them, who having sworn Allegiance to the late King swear now to this, with Perjury, 
Pag. 14.  in swearing a direct Contradiction to what was lawfully sworn before; as if we might not, without danger of contradicting the former Oath, go upon the Supposal, that there may be a Civil, as well as Natural Death of a King; that an Oath sworn to a Person as legal King, and in relation to the Laws, has no force, when the Law is either subverted or altered, or that the Law may transfer Allegiance from the Person in Possession, to a Successor legal by the Constitution of the Government, without need of Absolution from any Power whatever: Dr. H. would teach this younger Brother, that paying Allegiance to such a Successor is part of the Oath, though indeed there is a Question between us, what Succession the Constitution requires or warrants.  

Jou. Pref. p. 53.  The Doctor contends that Faith and Allegiance is promised to the possible Heirs, according to the ordinary Rule of Succession, the Original and Fundamental Custom of this Realm, to which he gives the addition of Hereditary.  

Vid. Pref. to Predictions of Nostredamus, Grebner, etc.  If therefore, as I have formerly showed at large, and now in the following Treatise, our Allegiance has been duly transferred according to the Original and Fundamental Custom of this Realm, (whether Hereditary or not, or how far still being subject to that Custom) than this removes all danger of Contradiction, and necessity of Papal or other Absolution.  
But the Spirit of Contradiction is a Disease which assimulates whatever comes in its way; and it may be very dangerous to meet this Zealot in his Paroxisms, lest he drive you to the Wall, and force you to confess, that a legal King and a Tyrant are but the same under different Names, and that the maintaining Tyranny is employed in swearing to defend all the Rights of this Imperial Crown, and Political, not Despotical Monarchy. I am not enough disposed for Sport to observe all the Follies of his Invective, but I am sure the Government will not allow Mr. Johnson's sound Assertion, 
Pag. 3.  that no Man can authorise himself, in Abatement of the Gild of denying that Authority which made the Oath; since that Authority was received from God, who has not only in his Providence permitted, but by a signal Interposition asserted, that Original Constitution of our Government from whence our Laws and Allegiance are, under God, derived; nor will it excuse his malicious, as well as false Insinuation, of no Title in our King, not one Precedent to warrant it, his being only King de facto, and that those Inducements, which moved the Compassion of our great Deliverer, were Lies and Forgeries without which, says he, 
Pag. 21▪  they could never have driven their Master away.  
Wherein, though he is more daring, yet he is more cunning than the Gentleman, who with Lay-simplicity yields the whole truth of the late King's subverting the Constitution, while the more subtle Clergyman denies all, and puts us to prove it; after it has been found by the Grand Inquest of the Nation, and confirmed by the most Authoritative Judgement, which is of less weight with him than the hastiest Church-Censure. I would gladly know of him, whether notwithstanding that Precept, Touch not mine Anointed, do my Prophets no harm; he has not delivered, or been ready to deliver many of God's chosen or anointed People over to Satan, and the Secular Power, without enquiring into the ground of the Sentence? And, whether the Unction of the Spirit is not as sacred, as that which is used to Kings, and the right to the Sacraments and Christian Assemblies, from which he would not scruple to debar many in virtue of an Ecclesiastical Censure, as Divine, as a Right to a Crown?  
But, as he affirms that the late King was driven away by Lies and Forgeries, he insinuates that this King's Government was founded upon them, and stands in need of them for its support, 
Pag. 21.  than which he may well say there cannot be a greater Evidence of a bad Cause; yet nothing but assurance in some hidden support could make him thus insolent, 
Pag. 5.  and confident that his Tongue or Pen has not been too familiar with his Thoughts; and it is very pleasant that he should still pretend to want Impunity for venting his lurking Scruples, as if his bold Dogmatical Assertions, directly against our present Government, and in defiance of it, were more safe than the proving matter of Fact contrary to what others allege, the falsifying their Quotations, or showing the weakness of their Inferences; wherein he might with safety to himself expose his Adversary, as he thinks he does Mr. Johnson, for betraying that Cause which he pretends to serve: But perhaps he believes that if he should be thus cautious; he should lose his Reputation with his own Party, and give the Government encouragement to punish him, which he may fancy that it dares not do, while he talks big, and seems assured of being strongly backed.  
But it may not be amiss to take a nigher view of the Folly as well as Insolence of his Boast, what feats he could do if the Law would stand Neuter for a while.  

The Observator's ridiculous Challenge.  He promises in his own, and believes he may in the Name of all his Brethren, that are yet unsatisfied, that their refusal to comply shall lie no longer hid in lurking Scruples, and Reasons best known to themselves, than till their Superiors shall be pleased, with Indemnity, to allow them to bring them forth.  
Having, as he thinks, made this fair Challenge, he concludes that it is, Uncivility, Rudeness, and an ungentile Insolence to provoke them whose Hands are tied.  
It seems they would be at liberty to condemn this Government, as illegal, and founded upon Injustice: But if a Reason for this be demanded, O Sir! our Hands are tied, provoke us not by ask what is not in our Power; we can rail, and call you Rebels, insinuate that your King has no Title, your Laws no Authority, but you are very uncivil not to allow them who can give no Reason, to rail on without it.  
However this Man undertakes if he might have Indemnity in speaking out, at the forfeiture of his Head, where he says Mr. Johnson's is due, before Judges appointed by the Government, to answer those Questions, which he owns no Man dare be so bold as to answer, and to back those Answers with such Reasons, which shall ensure him the Privilege of being for Mr. Johnson unanswerable.  
Before the Judges have been appointed, he concludes, that Mr. Johnson's Head is due for writing against the late King's Title: and, with at least as much Equity, we may say, that his Head is due, for writing against the Title of this.  
But since he is willing to lose his Head, if he cannot satisfy such Judges, it is a pretty sort of Indemnity which he desires, not to lose his Head for any thing which he may offer before the Judges; when he consents to lose it, if what he offers is not backed with satisfactory Reasons.  
Has he more to press, or could he do it more cogently, than Men of his Mind did in Parliament, where there was full liberty of Speech? Or is it to be supposed, that there was not as good a Disposition in the Majority of them whose Votes carried our Settlement, to listen to such unanswerable Reasons, as he can expect from any appointed to be Judges of the Controversy; but perhaps, observing what Indulgence his Principle has met with, he may hope that he, or Men of the same Leven might influence the Nomination of the Judges; and 'tis evident that therein must lie the only colourable ground of his confident and ridiculous Challenge. Tho there is no Reason to apprehend that Innuendoes should be now, 
Innuendoes.  as they have been in those times which he justifies, when they were admirable Engines to dive into the bottom of the Heart, and fetch up those secret Intentions which not foregoing Discourse led to; yet, as one of the other Gown, I should advise him for the future, not to make his Pen so familiar with his Thoughts as he does, where, speaking of Mr. Johnson's Assertion, That King William is the rightfullest King that ever sat upon the English Throne, 
Pag. 3.  which he may very well be, without supposition of coming to it in a manner different from all others; since the Consent with which he was crowned was the most universal that had been known in any Age, he says he is content never to desire a greater advantage, than to reduce an Adversary to the Absurdity of making no difference between a Title and no Title.  
Wherein I fear he wounds himself, while he thinks to hit Mr. Johnson in the Eye, for his due Application of the self-evident Distinction between Law, and no Law: and though there is no Law to reach Mr. Johnson for his Reflections upon the late King and his Title; this Writer may find a Law to punish him. And if he would be at the pains to consult our Records, Law-Books, and old Historians, he may find full warrant from the Constitution to make a good Title in our King, upon the Determination of the others, and such a Consent as God himself seemed to direct, and appoint.  
Yet since he supposes what is said by Mr. Johnson of the Reciprocal Contract between Prince and People, to be like his own Assertions, 
Pag. 7. The Reciprocal Contract.  a begging the Question, or at least an haughty Imposition of his own Sentiments without proof, but admits that if this could be substantially proved, it would go a great way towards a Conviction of those, 
Ib.  whose Consciences for want of Information IN THIS VERY POINT, will not give them leave to take the new Oath.  
I would entreat him to show wherein I either falsify in the Authorities which I have formerly produced, and here repeat with Additions to this very Point, or make wrong Inferences from them.  
Which till he does, as a due Correction for his railing at Mr. Johnson (whose Memory will flourish in after-Ages, when he shall be no otherwise known than under the Character of his Reviler) I may say, that his refusing to swear Allegiance to our legal Government, is Obstinacy, and his distinguishing Faith, Faction.  
And if he should be called in Question for that impotent Libel, and no other means of reducing him to Sobriety being effectual, should, according to his snarling Reflection upon the immortal Memory of the Lord Russel, and other inferior Patriots, be condemned to mount toward an Apotheosis, for his meritorious Crime of Treason, against that Power which has been ordained of God the most apparently, of any Civil Government that has been known for at least many Centuries; could he expect to be as much desired, lamented, and praised, by all that are themselves worthy of Praise?  
Should he, as he went along, tell the good People, that he suffered for that Doctrine which shall know no end, but when all things confess their Ashes, 
Pag. 6.  and that though his Sins are strangely great, yet he now paid his Head forfeited by the Letter of the Law, for Treason against a King which that acknowledges, where Mr. Johnson's is due, by a true equitable Construction, for Treason against one who is no King in the Eye of the Law: would not Men be tempted to make the Poet's Observation, upon such a spruce and finical Malefactor?  
— Crimina rasis  
Librat in antithetis, doctas posuisse figuras  
Laudatur—  
In smooth Antitheses his Crimes he weighs,  
And his departing Figures force our Praise.  
I well know, that Men are as zealous for a false Religion, and their own Superstructure of Hay and Stubble, as for the true Foundation. And they who expose their Additions are in danger, if not of suffering as Heretics, of being censured as Atheists.  
And though false Doctrines, like false Miracles, impair the Credit of the true; yet he that attacks them after they have spread, and gained the Name of sacred, not only hazards himself, but while he untwines, or roots up the Weeds, may chance to shake some standing Corn.  
Which may excuse the early freedom which I have taken, to prevent the speading of that new Law-Divinity in this Age, which risen in the last, upon the fall of good Archbishop Abbot, was reared up by Bishop Laud's Canons, upon which the Parliament which brought in Car. 2. put a sufficient mark of Dislike, and was fattened with the Charters of well-fed Corporations, and the Blood of its forwardest Opposers.  
While I expose the Folly of some men's Notions, which fight as much against our present Settlement, as against common Safety; and show the Obligation which lies upon Kings to keep their Compacts with the People, I would not be thought to go about to loosen the Bond of due Subjection to the Powers which are over us. I am sure they who will acknowledge none but King James to be their rightful King, have no colour to urge this against me; and yet, by means of such false Alarms, they have made most dangerous Approaches towards the Destruction of this Government.  
I would not be thought to revive the powerful Hereditary Offices of the Palatine of Chester, the High-Steward, and the Constable of England; that Tribunitial Authority which they had, would be very dangerous in most times, and too great Incentives to ambitious Men to set up for themselves.  
The Author of the Sighs of France enslaved, observes, that Charles Martel, 
Les soupirs de la France Esclave. Mem. 9 p. 130.  Mair du Palais, or High-Steward, made himself King of France, and Pepin his Son caused himself to be chosen, the Family of the Merovingians being rejected. That Eudes, Mair du Palais, upon the declining of the House of Charlemagne, took the Crown, and caused it to pass to Hugh Capet, and that Hugh Capet and his Descendants wisely suppressed this Office.  
It has doubtless been no less the Wisdom of this Government, to have the like Offices with us to be now only known in Story; yet they, at least, are Evidences of the English Liberties, 
Vid. Les soupirs de la France Esclave Mem. 9 p. 142. On doit recicillir, que quelque changement qui soit arrive dans le Government a Pégard des noms, & des fonctions des Principaux Officers, Mairs du Palais, Connestables, Chanceliers, Grande Cómbelloins, etc. a touts ceté sans aucun prejudice des Proits du Peuple; les Officiers de la Cour, & done de la Couronne out en plus ou moius de pouvoir, mais c' est par rarpert au Roils Droits de la Nation sont toù jours demeures en leur entier.  nor are the Liberties the less, or the less inviolable, because the Subjects of this Monarchy have had greater Confidence in their Kings, than to insist upon having such settled Officers; who may represent their Grievances with the better Authority, and unite them in the common Cause, when the oppressed Nation should want nothing but an Head, under which they might become formidable to evil Ministers, who either think that the former Injuries which they have done, are too great to be forgotten, and therefore seek for Security in the Ruin of them who had before smarted under them; Or, who, next to setting up themselves, have no other aim but to make way for their supposed King of Right.  
Such Men pretend, that though they cannot swear, or declare, that King William and Queen Mary are Lawful and Rightful King and Queen, yet they can act in the Service of them as King and Queen; and that there can be no danger from them, because of the harmless Doctrine of Passive Obedience. Prayers and Tears alas! are all their Weapons, and with them they may solicit Heaven and Earth, 

Vid. The Form of Prayer and Humiliation, Ed. An. 1690. p. 60.  
Pag. 39 That we may no longer be without King, without Priest, without God in the World.   pray to God to restore their Prince, who they say for the Sins both of Priests and People is now kept out; and encourage a Rebellion against him, who in their very Prayers to God Almighty they will have to be no King. I may add, 
Flectere si nequeant superos, Acheronta movebunt.  
If neither Heaven nor Earth afford them Aid,  
They'll try to fetch it from the Stygian Shade.   
If such things as these do not show that there was occasion, for my gathering together those Precedents and Authorities, which evince, that in declaring for our present Sovereigns, 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, served 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 study, said labour; & 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 entered upon; which as it has raised some few Men to Splendour and Fame; so it has drawn out many from Obscurity and Silence.   

THE CONTENTS.  

CHAP. I. THE Uniformity, though unprofitableness of Truth. The Insufficiency of false Mediums to defend this Government, used 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 Judgement of Hooker touched upon concerning the Derivation of Power. The present Bishop of Worcester's Judgement. 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 chief of the Right to design the Person: what that is, referred to the Constitution. Allegiance to our present King and Queen undertaken to be proved lawful, both by the Equity and Letter of our Fundamental Law, explained by the Practice of the Kingdom. pag. 1.  
CHAP. II. Of Equity, or implied Reservations. Who judges of the Equity. The Lord Clarendon's Judgement 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 shown, 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 join with Grotius, Barclay, Bp Bilson, Lessius, and Becanus. So Bp Bedell, though a Cloud has been endeavoured to be drawn over his Opinion. Mr. Lawson's Opinion. Bp Bilson's, whose Authority is confirmed 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 mentioned. Upon the first Head are produced the Confessor's Laws, Bracton, Fleta, and the Mirror, showing 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 answered in short, with reference to the second part. The Sense of Dr. Hicks and Saravia upon the Coronation-Oath, received with a Limitation from Grotius, The Curtana anciently carried before our Kings, explaining the Mirror. A Passage in Dr. Brady against the Fundamental Contract touched upon, referring the particular Consideration of him to the second Part. pag. 28.  
CHAP. IU. The second Head of Positive Law. The established Judicature for the Case in question, implied, if not expressed, 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 Baron's Wars in the time of King John, confirmed 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 touched upon. Instances of the People's Claim of their Rights in the times of W. 1. W. 2. H. 1. King Stephen, H. 2. pag. 34.  
CHAP. V. The Baron's 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 choose 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 fight under his Banner against King John, considered. pag. 41.  
CHAP. VI The Baron's Wars in the time of H. 3. particularly considered. H. 3. Crowned by a Faction. Had not 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 entered 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, answered. The Answer confirmed 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, occasioned by the Disputes between H. 6. and E. 4. Why the Instances from those Times to the Abdication omitted. The Objections from the Oath against taking Arms, and from the Declaration against a Coercive Power over Kings, removed by Sherringham, and the Triennial Act, 16 Car. 1. Pufendorf's due Restraint of the Power of the People. Instances of the like Power in other Nations; particularly Denmark, Swedeland, and Norway, when under the same King. For France, Hottoman, Sesellius, the Author of Les Soupirs de la France esclave. Bodin explained, and shown to justify King William in his descent hither; and the People of England in their asserting the true Constitution of the Government. For the Germane Empire, Bodin and Conringius. An occasion taken from him to show the Antiquity and Power of a Palatine in Germany and England. Gunterus used to show that Office in several Countries. Loyseau concerning it in France. The Distinction in the Author of Les Soupirs, between Officers of the King's House, and Officers of the Crown: The Antiquity and Authority of the Offices of Constable of England, of the High Steward, and the Earl Marshal; which with the Earl of Chester, have been as so many Tribunes of the People. pag. 57  
CHAP. VIII. The Third Head of Positive Law. The Kingdom founded in Monarchy, yet Elective, sub modo. The Form of Government not dissolved with the Contract between Prince and People. The Argument from Election of Kings, as it is used by the Author of the Sighs of France enslaved. The Crown of England proved Elective, sub modo, 1. From the Saxon Pontifical, and the Council of Calcuth, An. 789. 2. From the Practice till the supposed Conquest. 3. From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in ask the People's Consent at Coronations. 5. The Opinion of Kings themselves. 6. The old Oaths of Allegiance. 7. The Liberty, even after a Settlement of the Crown. 8. The Breaches in the Succession. 9 The Statute 11 H. 7. Answers to the Objections, 1. That the King never dies. 2. The supposition of a Testamentary Heir. 3. The Declaration, temp. E. 3. against consenting to the disherison of the King and His Heirs. 4. The Claims of Right between two Families. 10. A qualified Election of Kings of England, confirmed, by observing how it has been in other Nations descended from the same common Stock. pag. 72.  
CHAP. IX. The Fourth Head of Positive Law. A short Recapitulation of what has been proved. An actual Discharge of Oaths of Allegiance to J. 2. shown from the Authority of the Judgement past. His usurping a Legislative Power; leaving the Kingdom without providing for the Administration of Justice; and going into France. This confirmed by Rastal, Lord Hobart, Justinian's Digest. The Rescript of Theodosius and Valentinian. Pufendorf de Officio hominis & civis. His Elementa Juris prudentiae. His Treatise de Jure Gentium. Grotius. Pufendorf de Interregnis. Knichen's Opus Pol. Philip Paraeus. A particular Consideration of what the Learned Knight, Sir R. Pointz says, seeming against these Authorities, but shown in truth to confirm them, and to bring the Rules of the Civilians to our side. That the Crown came not by Right of Descent to the next in Blood, after the discharge of the Allegiance to J. 2. The Arguments for the People's being restored to the Liberty which they had before the Settlement of the Crown, enforced from a particular Consideration of the State of the Settlement. Where is it shown how the word Heirs may be looked on as restrained in the first Settlement on Heirs, by Gomezius his Rule. The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements, and their Effects in relation to the Queen Mary and Elizabeth, and J. 1. The Recognition to J. 1. not extending to his Heirs. And questioned, Whether the Recognition was not his best, if not only Title. With a modest Inference. pag. 84.  
CHAP. X. The Fifth Head of Positive Law. The effect of the Dissolution of the Contract. The use of the Triennial Act 16 Car. 1. against the necessity of common Form. The Form and proceed of the Convention assembled upon the Death of H. 3. The Dilemma used by the Formalists, answered, with a Distinction. Pufendorf's Answer to Hobbs. Another Passage of his applied to a Passage in a late excellent Treatise against Sir Robert Filmer: And to a Letter upon this Juncture. Tho what Dr. Brady says against the Rights of Lords and Commons, were true; yet it is shown, that the Acts of the late Assembly would be conclusive to the Nation. Neither forty days Summons, nor Writs, nor yet Summons to a Parliament Essential. And this confirmed, not only by the Precedent 12 Car. 2. but by two Precedents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves, and of their own appointing. The Objection of want of Form answered out of the Civil Law; and its Reasons applied to our Case. Objections made by the Author of Elimenta Politica considered. The Conclusion. pag. 98.    

APPENDIX.  

Among other things.  
SIR Robert Filmer, and some of our Divines, played against one another, in relation to Ecclesiastical and Civil Power, and Sir Robert against Himself. pag. 1.  
Allegations in behalf of the High and Mighty Princess the Lady Mary, now Queen of Scots, against the Opinions and Books in the Part and Favour of the Lady Katherine, and the rest of the Issues of the French Queen, touching the Succession of the Crown. Written in the time of Queen Elizabeth.  
Reflections on Bishop Overal's Convocation-Book.    

THE Fundamental Constitution OF THE English Government, PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful King and Queen.  

CHAP. I.  
The Uniformity, though unprofitableness, of Truth. The Insufficiency of false Mediums to defend this Government, used 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 Judgement of Hooker touched upon concerning the Derivation of Power. The present Bishop of Worcester's Judgement. 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 chief of the Right to design the Person, what that is, referred to the Constitution. Allegiance to our present King and Queen undertaken to be proved lawful both by the Equity and Letter of our Fundamental Law, explained by the Practice of the Kingdom.  
HAving sufficient Experience of the Consequences of being always on the Forlorn Hope, though in the noblest Cause, I should yield to the Justice of my Friend's kind Rebuke, for engaging in so many unprofitable Battles, wherein they who have raised neither Envy nor Provocation, are suffered to carry away the Prize by the Consent of Friends, as well as Enemies: were it not that he who is mercenary, and fights for Pay or for Spoil can be no fit Votary to Truth, which may sometimes be consistent with men's Worldly Interest, rarely advances it, but can never vary with it: while they who court Truth for the Dowry are often driven to Inconsistences with her and themselves, and must be content to serve themselves of her thinnest Disguises. Which I take to be the case of them, who pretend to justify this Government upon any other bottom than that on which it really stands, and may flourish in spite of open Enemies, if it be duly armed against false Friends, who ground it upon their own Fictions and flattering Schemes, prepared in times with which they suited, and were but like the Hypotheses of Philosophers to answer the then present Phaenomena.  
Such Men valuing their own Reputation and Interest too much above the Public, expose it to the Contempt of the more subtle Adversaries, 
Vid. Considerations offered for taking the Oath of Allegiance, said to be Dr. Whitby's, reflected upon in a Treatise called The Charity and Loyalty of some of our Clergy.  who cannot but smile to see Quietism prevail in Allegiance, as well as in Devotion; and them to pretend to discharge the Duty of Subjects, and to deserve Protection from the Government, who not only make resisting the late King damnable, which implies a scrupling to defend that Government which protects them; but broadly insinuate that no personal Assistance is due to keep the King and Queen in their Station, even though they have sworn Allegiance to them: which shows what is to be thought of some men's Promise, constantly to pay that Fidelity and Allegiance which they have all sworn. When the fit of Quietism is over, and the opportunity inviting, they may, in the sense of some of the Brethren, with a safe Conscience, fight for their King de Jure: Wherein it is evident that no Provision is made for the Safety of this Government, but only for securing to themselves their Places of Profit under it; yet no Man can believe, that the Law which requires the Oath of Allegiance, can give the least scope for so gross an Evasion, so serviceable to that pretence of Title which it rejects.  

Vid. The Doctrine of Nonresistance and Passive Obedience not concerning the Controversy, Vid. the Preface.  Nor will the Jacobites be less thankful for their Doctrine, who not only condemn all those, whose active Zeal helped to turn the Scale against them, but allow no Title in our King, unless it be by a real Conquest of the Nation, or legal Succession in the Line. The first of which the King not only disowns, and the People would be loath to fight to maintain over themselves, but, according to the Objection in Elementa Politica, 
Vid. Elementa Politica.  would have required a formal Denunciation of War. And the last labours with such Difficulties as few can be able to resolve themselves or others in.  
But as I am verily persuaded that our Government stands upon such a Rock as has been unmoved for many Ages, and has no need of a Lie for its Support; I shall with the utmost Faithfulness address myself to its Defence, wherein if I offend some of contrary Sentiments, I must entreat them to answer me like Men, with Reason and Authority, and not in those Methods wherein they have hitherto been too successful.  
All the Opposers of our present Settlement, who pretend to talk Sense, when pressed home, grant that the Constitution of the English Government must be the Guide to their Consciences in this matter. And though I cannot commend those Justices of the Peace, who permitted a Divine, 
Thomas Lessey Rector of Laurence Lyddeard in Somersetshire.  Eminent in his Country, and an Example to others, to read a Protestation before his taking the Oath of Allegiance to King William and Queen Mary, yet I ought not to reject his Testimony, that Lawyers are the best Directors of Conscience in this case. The words, according to a Copy of his written Paper now in my hand, transmitted from the Country, were these.  
I am assured by Learned Men in the Law, whom I have consulted as the best Directors of my Conscience of this case, 
This was at last Christmas-Sessions for the County, Sir Edward Philip's being Chairman.  that by the Laws of this Nation the Allegiance of the Subject is due to a King in Fact, or in Possession of the Government, provided they have been recognized by the three Estates of the Kingdom in a Public Convention. I am fully convinced of the Truth of this: And this is a Reason prevails with me to swear Allegiance to King William and Queen Mary.  
The great Unhappiness of this Nation is, that Divines not only set up for the greatest Statesmen, but will pretend to be the best Lawyers and Casuists in these Points, of which the truest Friends to them and the Church have complained.  
Thus the late Earl of Clarendon having in his excellent Book against Mr. Hobbs, 
Lord Clarendon's Survey of the Leviathan, p. 75.  taxed some Divines of malicious Endeavours to render Monarchy insupportable, by the unlimited Affections, and Humours, and Pretences, and Power of a single Person. Says others of them, believe as unreasonably, that the Disposition, Natures and Hearts of the People cannot be applied to the necessary Obedience towards their Princes, nor their Reverence and Duty be so well fixed and devoted to them, as by thinking that THEY HAVE NOTHING OF THEIR OWN, but whatever they enjoy they have only by the Bounty of the King, who can take it from them when he pleases. Whatever such Casuists hold of the absolute and inseparable Sovereignty of Princes, if I prove that King William and Queen Mary are Rightful King and Queen, according to the ancient Constitution of the English Government; how much soever my Endeavours of real Service to the Cro●… may be misrepresented by Men of another Allegiance; I shall hope at least to be thought to have served my Country, too much infected with wrong Notions, or distracted with false Mediums; and to have done Justice to our Great Deliverer, and those English Worthies, who invited or embraced the Deliverance, and by their steady adhering to the Interest of their Country, avoid that Forfeiture of Protection, which too many have incurred.  
To which end I shall show;  
1. That the People of England had a rightful Power lodged with them for the Preservation of the Constitution, in virtue of which they might declare King William and Queen Mary King and Queen of England and Ireland with all their Dependencies, though J. 2. was alive at the time of such Declaration.  
2. That this rightful Power was duly exercised in the late Assembly of Lords and Commons, and afterwards regularly confirmed by the same Body in full Parliament.  
1. As to the Nations rightful Power, I shall not go about to refute the fond Notion of an absolute Patriarchal Power descending from Adam to our Kings in an unaccountable way; because, though if this were true, there could be no more Compact between Princes and their People, than is between Fathers and Children for establishing the Rights of Fatherhood, 

Patriarcha non Monarcha, Ed. An. 1681.  
Two Treatises of Government, In the former the false Princeples and Foundation of Sir Robert Filmer and his Followers are detected and overthrown, Ed. Anno 1690.  
Heylyn 's Certamen Epistolare, p. 386, 387.   yet the difference between a Patriarchal and Monarchical Authority, is so well stated and proved by my Learned Friend Mr. Tyrril; that few besides the unknown Author of the two late Treatises of Government, could have gained Reputation after him, in exposing the false Principles and Foundation of Sir Robert Filmer and his Admirers; one of which Dr. Heylyn, in his Letter to Sir Edward Filmer the Son, speaking of his Father says,  
His eminent Abilities in these Political Disputes exemplified in his judicious Observations on Aristotle's Politics, as also in some Passages on Grotius, Hunton, Hobbs and other of our late Discoursers about Forms of Government, declare abundantly how fit a Man he might have been to have dealt in this Cause, which I would not willingly should be betrayed by unskilful handling; and had he pleased to have suffered his excellent Discourse called Patriarcha to appear in public, it would have given such Satisfaction to all our great Masters in the Schools of Polity, that all other Tractates in that kind had been found unnecessary. This he says might have served for a Catholicon, or general Answer to all Discourses of this kind.  
Since Sir Robert Filmer and Dr. Heylin were our late Observator's Predecessors in guiding the Inferior Clergy, 'tis not to be expected that they should nicely inquire into the Errors and Contradictions of their Leaders; but the Doctor's scandalous Reflections upon the Reformation in England, and the Misfortunes of Charles the First, in some measure at least occasioned by the Countenance given to Sybthorpism, Manwarism, and Filmerism, may justly raise a Prejudice against these Men and their Doctrines in the thinking Laity; and those who are not able to think of themselves, may take every Morning some Pages of the two Treatises of Government, for an effectual Catholicon against Nonsense and Absurdities; which have nothing to recommend them but Style and Names cried up among a Party.  

Vid. Dr. Heylyn's Stumbling-Block of Disobedience and Rebellion.  Wherefore I may well think that I may pass over the Stumbling-Blocks which such Men lay in the way to my Proof, that the Power whereby this Nation is governed, is originally under God derived from the People, and was never absolutely parted with.  

Hooker 's Ecclesiastical Polity, lib. 1. f. 10.  Many have cited the Authority of the Judicious Hooker till it is threadbare, to prove, that it is impossible there should be a lawful Kingly Power which is not mediately, or immediately, from the Consent of the People where 'tis exercised.  
The present Bishop of Worcester, whose Name will undoubtedly be held in no less esteem in future Ages, 
Irenicum. p. 132.  is as express in his Irenicum. That all civil Societies are founded upon CONTRACTS and COVENANTS made between them, which, saith he, is evident to any that consider, that Men are not bound by the Law of Nature to associate themselves with any but who they shall judge fit; That Dominion and Propriety were introduced by free Consent of Men; and so there must be Laws and Bonds, fit Agreement made, and Submission acknowledged to these Laws, else Men might plead their natural Right and Freedom still, which would be destructive to the very Nature of those Societies. When Men then did part with their natural Liberties, two things were necessary in the most express Terms to be declared. 1. A free and voluntary Consent to part with so much of their natural Rights as was not consistent with the well-being of Society. 2. A free Submission to all such Laws as should be agreed upon at their entrance into Society, or afterwards as they see Cause. But when Societies were already entered into, and Children born under them, no such express Consent was required in them, being bound by virtue of the Protection which they find from Authority to submit to it, and an implicit Consent is supposed in all such as are born under that Authority.  
The Account which the Learned Cragius gives of the first Institution of Kingly Government, seems to deserve not to be omitted.  
Quum multa iracundè, multa libidinosè, multa avarè fierent, etc.  

Cragius de Feudis, f. 2.  
Vid. The like account in Sir Will. Temple 's admirable Treatise of Monarchy, among his Miscellanies.  
So Bracton Rex à regendo non à regnando Jus dicebant.   
When many things were acted wrathfully, many things lustfully, many things avariciously, the best Man of a Society was chosen who might take Cognizance of the Offence or Injury, and determine what was equal among Neighbours. Thus were Judges constituted in every City for the sake of distributing Justice: These were called Kings; for Kings at the beginning were no more than Judges, having their Denomination from ruling. Each presided over his own City, that is, administered Justice. Hence that multitude of Kings in Holy Writ.  
To descend from generals to the Romans in particular, whose Emperors were supposed to have been the most absolute, and that the Obedience to Higher Powers required in the Gospel, is to be taken from the measures of Subjection due to them. Dr. Hicks, 
Dr. Hicks his Jovian.  the great Maintainer of the Absolute Power of Monarches, takes a great deal of Pains to show that the Empire was not Hereditary, and by Consequence that their Power was immediately vested in the particular Emperors by the Consent of the Legions, or other People, who set them up.  
Saravia, as careful of the Rights of Princes, owns, 
Saravia de Imp. Author. f. 159.  That by the Roman Law the Crime of Laesa Majestas, or Treason, is defined to be that which is committed against the People of Rome, and its Security.  
Where he confines it to Crimes against the People only, 
Vid. Tacitus p.  which indeed agrees with the dying Speech of an old Roman in Tiberius his time.  
But that in the Eye of our Law there may be a Laesa Majestas, 

Vid. Glanv. p. 1: Crimen quod in legibus dicitur crimen Laesae Majestatis, ut de niece vel seditione Domini Regis vel Regni.  
So Fleta de Crimine Laesae Majestatis c. 21  
Vid. 26 H. 8. c. 2. 28 H. 8. c. 18. Traitors against the King and Realm.  
Fortescue f. 6. temp. H. 6.   or Treason against the People of England, is evident not only by Glanvil, who wrote in the time of H. 2. and Fleta of Edw. 1. but by two Statutes made in the time of H. 8. who was as jealous of the Rights of Sovereignty as any Prince before or after him.  
And is plainly enough supposed in the Statute 25. Ed. 3. which shows that there may be Treason against the Government as well as against the King, or any of the other Treasons of which ordinary Judges are permitted to judge.  
But since this Majesty of the People may have been given as well as reserved or left, I shall not urge this as an undeniable Argument of the derivation of Power from them.  
Nor yet shall I transcribe the many Passages in Fortescue proving such Derivation, because though his Book is of great Authority in our Law, yet it was written in a King's Reign which some may think to stand in need of such a Justification.  
Neither shall I here urge how far this Monarchy has been Elective, because the particular Consideration of that will follow, this I only observe of it here, that so far as the Monarchy shall prove to have been Elective, so far will it appear, that all Power not ascertained by the Law of God contained in Scripture, or the Book of Nature, is mediately or immediately derived from the People.  
But I think I may be able to show from one of those Passages which seem the most to imply the absolute Authority of our Kings, that whatever it is, 
Crompt. his Jurisdic. of Courts, p. 60.  it was derived from the Consent of the People, and that the People's Consent is still requisite for the Exercise of an Absolute Power, according to the memorable Speech of H. 8. in Parliament, where he thought himself to stand in his highest Estate Royal.  
The Civil Law of the Romans says, Quod Principi placuit Legis habet vigorem, that which has pleased the Prince has the force of Law; 
Glanvil 's Prologom. Bracton, lib. 3. c. 9 Fleta l. 1. c. 19  but take this according to the Opinion of Glanvil, Bracton, Fleta, and ancient Civilians who wrote about Bracton's time, who, as Mr. Selden informs us, wrote according to what they found in the Governments established throughout Europe, The Principi placuit was no more than the Le Roy le veut with us: The Civil Law shows, that whatever Authority the Emperors had, the ground of it was, 
Selden ad Fletam, f. 469.  that the People in eum Imperium & Potestatem conferret, conferred Empire and Power upon him, as Odofred a Civilian coeval with Bracton has it, though the following Copies have it omne suum, as if the People conferred all their Power; This may signify no more than all that Power which the Emperors had, yet perhaps the other Sense was intended, and may well be imputed to the Servility of later Times, 
Saravia de Imp. Author. f. 278.  especially if we consider not only what Saravia says, who besides the Majesty of the People  out of him, tells us that the Roman Emperors acted under the People's Authority; which he proves in that their Acquisitions were in the Name of the People.  

Sanderson 's Lectures, Ed. An. 1660. p. 149, 150, 151.  And even Bishop Sanderson, having approved of the restrained Sense of the Roman Lex Regia, used by our ancient Lawyers, adds, I do affirm, and it is the common received Opinion, that the Laws propounded and instituted by a Prince, or Head of a Commonalty, do not oblige Subjects, nor have the Power of a Law, unless they be received by the Commonalty themselves, and are allowed by the Customs and Suffrages of those that use them. According to Demosthenes the Law is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the common Engagement of a City. If peradventure his Authority be of less value, because he lived in the Popular Commonwealth of the Athenians, will you be pleased to hear the great Lawyer Julius, who lived when the Roman Emperors had the fullness of Command, his words in his 32 d Book De Legibus, are these, Ipsae Leges nullâ aliâ ex causâ nos tenent; quàm quod judicio Populi receptae sunt: The Laws do oblige for no other cause than that they are received by the Judgement of the People.  
But if we observe how the Roman Emperors came by their Trust from the People, and of what nature it was, this I take in relation to the Legislation to which our Lawyers apply the Civil Law, will appear to have been no more than the Tribunitial Authority: The Tribunes of the People chosen by them, were in their Name to deliver their placet or Consent to the Emperor or Senate; nor did the greatest Emperors think it below them to court the Suffrages of the Populacy for this.  
Before Julius Caesar arrived to an Imperial Power, while the People of Rome governed all the Nations round about, in all Emergencies they consulted Deputies, 
Vid. Cic. in Catil. Orat. 3. ut Comperi Legatos Allobrog. belli transalpini & tumultus Gallici excitandi causâ à P. Lentulo sollicitatoes, etc. Tacitus Ed. Plant. p. 105. Tiberius' vim Principatus sibi firmans Imaginem antiquitatis Senatui praebebat postulata Provinciarum ad disquisitionem patrum mittendo.  or Representatives of the several Provinces under them, as appears in Cicero's third Oration against Catiline, and after Julius even Tiberius, than whom no Man could be more intent, or more cunning to enslave his Subjects, continued an Image of the ancient Usage, by sending the Demands of the Provinces to the Disquisition of the Senate.  
But the People of Rome were tricked out of their Liberty by that artful Emperor by his removing the Comitia, 
Tacitus in vitâ Tiberii Ed. Plant. p. 10. Tum primum è campo comitia ad patres translata sunt. Nam ad eam diem etsi potissima arbitrio Principis quaedam tamen studiis Tribunorum fiebant, neque populus ademtum jus questus est nisi inani rumore.  or Great Councils from the Fields, where the Tribunes took their Directions from the People, to the Senate-House, where false Representations of the Sense of the People might be made behind their backs: they vented their Resentments at this only in empty Murmurs, and as the Satirist has observed of them, 
— Qui dabat olim 
Juv.   
Imperium, fasces, legiones, omnia, nunc se  
Continet, atque duas tantùm res anxius optat  
Panem & Circenses.—  
They who their Laws and Magistracy chose,  
Quietly gave up all for Bread and Shows.  Yet upon observing the steps by which the Emperors advanced to their Power with the People, 'twill be evident, that it was but lodged as a Trust and Confidence that they would truly act according to their Sense and Interest, which before was to be faithfully represented by their Tribunes.  
When Lepidus was to incite the People against Sylla, 
Oratio Lepidi Salustii op. Ed. Par. An. 1530. p. 134. Jus judiciumque omnium rerum penes se quod populo Romano fuit.  he found nothing more moving than to tell them, that the Tribunitial Authority would be overturned by him, he adds in Explanation of it, that he would have the Power and Judicature with him which did belong to the People, upon which he pathetically enlarges.  
If these things are thought by you Peace and Concord, approve of the greatest Disturbance and Destruction of the Commonwealth, yield to Laws imposed upon you, take Quiet with Servitude, and transmit to Posterity an Example of betraying the Commonwealth at the price of ones own Blood.  
It appears by Sallust, that the great Power to which Julius Caesar arrived was, by siding with the Populacy of Rome, 
Sallust ad G. Caesarem de Rep. Ordinandâ p. 147. In te ille animus est qui jam à principio nobilitatis factionem disturbavit, plebem Romanam ex Gravi Servitute in libertatem restituit, p. 145.  whose Rights had been invaded by the Senate, 'twas his great Mind which he tells him, at the beginning, disturbed the Faction of the Nobility, and restored the Populacy of Rome to Liberty from grievous Slavery, and he reckoned that upon his settling Affairs after his Victory, renovata plebs erit, the Plebeians will be renewed, or have a new Life; accordingly he advises him to cultivate good Manners among tnem, and as Sallust had expressed himself to Caesar a little before, Magistratum Populo, non creditorem gerere, & magnitudinem animi in addendo non demendo Reip. ostendere. To show himself a Magistrate, and not a Creditor to the People, and to evidence the Greatness of his Mind by adding to the Commonwealth, and not taking from it.  
This may give some tolerable account how Caesar came to be murdered in the Senate-House, and may raise his Character even above Brutus, who has passed for the Hero of Common-wealths-Men.  

Marcelli Donati Dilucidationes Ed. An. 1605. p. 392. Praeterea Caesarum temporibus Patritios & Senatorios viros non modo Tribunatum appetivisse sed illos Imperatores inquam Tribunos Plebis factos Tribunitiam potestatem occupasse manifestum est. Si quidem Julius Caesar teste Tacito per initia, lib. 1. Annal. Consulem ferens & ad tuendam Plebem, Tribunitiâ Potestate contentus fuit. Et Augustus ex Appiano l. 5. perpetuus Plebis Tribunus à Romanis dilectus fuit. Et Suet. illum Tribunitiam Potestatem perpetuam recipisse scribit. Quod & Dion. in illius vitâ confirmat & Tacitus lib. Annal. 1. describens Pompam funeris Augusti, ait de illo, continuatâ per. 37. annos Tribunitia Potestate. Et lib. 3. de Tribunitiâ Potestate loquens, inquit: Id summum vestigii vocabulum Augustus reperit, ne Regis aut Dictatoris nomen assumeret, etc.  Marcellus Donatus in his Comment upon Tacitus, puts it out of doubt that the chief Power which the Roman Emperors had was as Tribunes of the People; his Authorities for which are numerous; and that sometimes they were entrusted with it for Years, sometimes for Life, sometimes the Consent expressed, sometimes tacit, and implied, as it was assumed by the Emperors, and permitted by the People.  
The Application therefore will be easy to any one who reads our ancient Lawyers, where they transcribe and comment upon the Roman Lex Regia. Glanvil, Bracton, and Fleta differ from one another in very few words, all to the same Sense. The words of Fleta are these, speaking of the King of England.  

Fleta lib. 1. c. 17.  Et licet omnes potentiâ praecellat, cor tamen ipsius in manu Dei esse debet; & ne potentia sua maneat irrefraenata, fraenum imponat temperantiae, & lora moderantiae ne trahatur ad injuriam, qui nihil aliud potest in terrâ nisi id quod de jure potest. Nec obstat quod dicitur, quod Principi placet legis habet potestatem, quia sequitur cum lege Regiâ quae de ejus Imperio lata est. Quod est, non quicquid de voluntate Regis tantoperè presumptum est, sed quod Magnatum suorum Consilio Rege authoritate praestante, & habitâ super hoc deliberatione & tractatu rectè fuerit definitum.  
And although he excels all in Power, yet his Heart ought to be in God's Hand, and lest his Power should remain unbridled, he ought to apply the Bridle of Temperance, and the Reigns of Moderation, lest he be drawn to Injustice, who can do nothing else whatever but that only which he may do by Right. Nor is it an Objection that it is said, that which pleases the Prince has the force of Law, 
Vid. Seldens Dissert. ad Fletam, f. 467.  because it follows, since [by the Law of the King which was made concerning his Power]— as some render it (with the Law of the King) as others. That is to say, not whatever is only presumed of the King's Will, but that which shall be in due manner determined [by the Counsel of his Great Men the King giving them Authority thereto] which seems to relate to the King's Counsel in Parliament advised with in drawing Bills, in Points of Law, and the like, 
Vid. Conring. p. 11. in verbis Taciti. De minoribus rebus Principes consultant de majoribus omnes; ita tamen ut ea quoque quorum penes plebem arbitrium est, apud Principes pertactentur; ubi tamen cum Hugone Grotio summo sane viro legendum forte praetractentur.  there being had upon it a Deliberation and Treaty.  
Since in this our Lawyers receive the Civil Law, and give the same reason for the Royal Power which the Roman Law does, that it was conferred by the People, it being contained in the Lex Regia; what I have shown to prove that the Roman Emperors derived their Power from the People of Rome, equally shows that our Lawyers, besides what they say of Elections of our Kings, believed that the Royal Authority here came from the People of England.  
I need not therefore scruple to affirm, that our Law agrees with 
(a) 
Grotius de Jure Belli & Pacis, l. 3. p. 52. summae Potestatis subjectum commune est Civitas.  
So where the Statute says, the People of the Counties shall choose the Sheriff, this is limited to Freeholders, vid. 2. Inst. upon the Statute.   Grotius, who holds that the Civitas is the common Subject of Power: This in the most restrained Sense is meant of People of Legal Interests in the Government; yet if they are entitled to any sort of Magistracy they become part of his subjectum proprium, the proper or particular Seat of Power, which is narrower than the Civitas: and therefore I take Plato's 
(c) Schelius de jure Imperii, p. 32. Plato 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 definite 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 restrained, 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 diffused 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 'tis 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 Judgement 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 dissolved Assembly of States: unless the sole Power resided entirely and absolutely in the Person or Persons with whom they had lodged a Trust for summoning them together, that is, giving public 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 raised or maintained but by the undisciplined Rabble, or disciplined 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 Soldiers? 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 established before, surely not 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 fight 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.  though 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 proved 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 imposed by Conquest; and 'tis 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, than we may cut the Gordian Knot, and never trouble ourselves with Difficulties about a Demise, or Session, 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 judge so; unless there be subsequent Limitations by a Contract yet in force between Prince and People, which being dissolved, 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 renounced their Allegiance sworn to J. 2. and transferred 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, explained 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 Judgement 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 shown, 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 join with Grotius, Barclay, Bp Bilson, Lessius, and Becanus. So Bp Bedell, though a Cloud has been endeavoured to be drawn over his Opinion. Mr. Lawson's Opinion. Bp Bilson's, whose Authority is confirmed by the Objection made to it in the History of Passive Obedience. To which is added the Divine Plato.  
FOR the Equity and reserved Cases, I think it appears in the nature of the thing, that they for whose benefit the Reservation is; must be the Judges, as in all Cases of Necessity he who is warranted by the Necessity, must judge for himself before he acts; though whether he acts according to that Warrant or no, may be referred to an higher Examen: But where the last Resort is, there must be the Judgement, which of necessary Consequence in these Cases must needs be in the People, the Question being of the Exercise of their Original Power; and where they have by a general Concurrence past the final Sentence, in this case their Voice is as the Voice of God, and aught to be submitted to.  
The late Earl of Clarendon, 
Survey of the Leviathan, p. 86.  speaking even of a Contract wherein the absolute Power of a Man's Life is supposed to be submitted, says,  
He was not bound by the Command of his Sovereign to execute any dangerous or dishonourable Offices; but in such cases Men are not to resort so much to the Words of the Submission as to the Intention: which Distinction he will have applicable to all that monstrous Power which Mr. Hobbs gives his Governor, to take away the Lives and Estates of his Subjects, without any Cause or Reason, upon an imaginary Contract, which if never so real, can never be supposed to be with the Intention of the Contractors in such Cases.  

* Cocceius de Principe p. 197. Leges fundamentales Regni vel Imperii quae vel disertè pactae sunt cum Principe antequam imperium ineat, etc.  Cocceius holds the fundamental Laws of any Kingdom or Empire to be, not only those for which there has been an express Contract with a Prince before, or upon his assuming the Government, but such also as seem tacitè inesse rei publicae" to be implied as belonging to" every Community or Civil Society.  
For the direction of men's Judgements in such Cases, they need not consult voluminous Authors, but may receive sufficient Light from those excellent Papers; The Enquiry into the present State of Affairs; The Grounds and Measures of Submission; and, The brief Justification of the Prince of Orange ' s Descent into England, and of the Kingdom's late Recourse to Arms.  
Which I shall here only confirm by some Authorities.  
The first, as being of most Credit among them who raise the greatest Dust, 
Sanderson de Juramenti obligatione, p. 41.  shall be Bishop Sanderson, Of the Obligation of an Oath; who shows several Exceptions or Conditions, which of Common Right are to be understood before an Oath can oblige; in which I shall not confine myself to the Order in which he places them.  
1. If God permit: because all things are subject to the Divine Providence and Will. Nor is it in any Man's Power to provide against future Accidents: Wherefore he who did what lay in him to perform what he promised, has discharged his Oath.  
2. Things remaining as they now are: Whence he who swore to marry any Woman, is not obliged, if he discovers that she is with Child by another.  
These two Exceptions sufficiently warrant Submission to such Government as God in his Providence shall permit, notwithstanding Oaths to a former King: And if he cease to treat his People as Subjects, the Obligation which was to a Legal King determines, before his actual withdrawing from the Government.  
3. As far as we may: as if one swear indefinitely to observe all the Statutes and Customs of any Community, he is not obliged to observe them farther than they are lawful and honest.  
4. Saving the Power of a Superior: Whence if a Son in his Father's Family swear to do a thing lawful in itself, but the Father not knowing it, commands another thing, which hinders the doing that which is sworn; he is not bound by his Oath, because by the Divine Natural Law he is bound to obey his Father. And he who has sworn not to go out of his House, being cited to appear before a lawful Judge, is bound to go out, notwithstanding his Oath; the Reason is, because the Act of one ought not to prejudice the Right of another.  
These two last Instances, added to the Consideration of a Legal King, 
Vid. Stat. 13. car, 2. c. 1.  will qualify the Oath declaring it not lawful, upon any pretence whatsoever, to take Arms against the King; and abhorring the Traitorous Position, of taking Arms by his Authority against his Person, or against those that are commissioned by him.  
This I think I may say, with warrant from Bishop Sanderson, That no Man is bound by this Oath to act against Law, 
Vid. infra, p.  under colour of the King's Commission; 
Vid. Grounds and Measures of Submission. Salus Populi suprema Lex.  nor to permit such Actions, if it be in his Power to hinder them; the common Fundamental Law being in this Case the Superior, which he is to obey, and which is to explain and limit the Sense of Acts of Parliament seeming to the contrary.  
To Bishop Sanderson, I may add Grotius, 
Vid. Johannis à Field Annotata ad Grot. c. 3, & 4.  who runs the Prerogative of Kings as far as any Man in reason can: Yet he allows of reserved Cases, in which Allegiance may be withdrawn, though there is no express Letter of Law for it: As,  
1." Where the People being yet free, 

Grot. de jure Belli & Pacis, c. 3. p. 60.  
Vid. Pufendorf Elementa Juris prud. p. 256. Nemo alteri potest quid efficaciter injungere per modum praecepti in quem nihil potestatis legitimae habet.  
Grot. c. 4. p. 86. habet pro derelicto.   command their future" King by way of continuing Precept. Whether there be any such with us, can be no doubt to them who read the Coronation Oaths, from time to time required and taken upon Elections of some Kings, and the receiving others, by reason of prior Elections, and Stipulations with their Predecessors.  
2. If a King has abdicated or abandoned his Authority, or manifestly holds it as derelict, indeed, he says, he is not to be thought to have done this, who only manages his Affairs negligently. But surely no Man can think but the Power of J. 2. is direlict.  
And he citys three Cases, wherein even Barclay, the most zealous Asserter of Kingly Power, allows Reservations to the People.  
1. If the King treats his People with outrageous Cruelty.  
2. If with an hostile Mind he seek the Destruction of his People.  
3. If he alien his Kingdom. This Grotius denies to have any effect, and therefore will not admit among the reserved Cases: 
Vid. Mat. Par. Addit. f. 281. The King of France his Attorney General speaking of King John 's resigning his Crown to the Pope. Etsi dare non potuit, potuit tamen dimittere.  But if no Act which is ineffectual in Law, will justify the withdrawing Allegiance, than none of the Instances will hold; for to that purpose they are equally ineffectual: Yet who doubts, but the King doing what in him lies to alien his Kingdom, gives pretence for Foreign Usurpations, as King John did to the Pope's? And whoever goes to restore the Authority of the See of Rome here, be it only in Spirituals, endeavours to put the Kingdom under another Head than what our Laws establish, and to that purpose aliens the Dominion. 
Vid. Bellarm. how the Pope hooks in Temporals in ordine ad Spiritualia.  Nor can it be any great Question, but the aliening any Kingdom or Country, part of the Dominion of England, will fall under the same Consideration; which will bring the Case of Ireland up to this, where the Protestants had been disarmed, and the Power which was armed for the Protection of the English there, 
Vid. Leges S. Edwardi.  put into the Hands of the Native Papists; nor is it now likely to be restored to its Settlement at home, or dependence upon England, without vast Expense of Blood and Treasure.  
Even the Author of Jovian owns, 
Dr. Hick 's his Jovian, p. 280. Ib. p. 192, 193.  that the King's Law is his most Authoritative Command; and he denies that the Roman Emperor had any Right to enslave the whole People, by altering the Constitution of the Roman Government, from a Civil into a Tyrannical Dominion; or from a Government where the People had Liberty and Property, into such a Government as the Persian was, and the Turkish now is, etc.  
No Clergyman of the last or foregoing Reign having treated of Civil Government with more Temper and Judgement, and yet with greater Applause of the warmest Men of his own Gown, 
Falkner 's Christian Loyalty, Ed. An. 1679.  than the Learned Mr. Falkner of Lyn; I shall be the longer in giving an account of his Discourse of Christian Loyalty, which will prove an Authority on my side, beyond what could be hoped for, considering the time when his Book came out with Licence, and a Dedication to the Archbishop of Canterbury: it being when Mr. Johnson, by way of Composition against a threatened Suspension, was obliged to drink his Coffee at home, lest he should enlighten his Brethren, who filled all places of public Resort with their Pulpit-Law, and the Dictates of their Guide Sir Roger. I must own that Mr. Falkner was in some things carried away with that Tide, which if any of that Cloth besides Mr. Johnson had the Courage to stem, they had at least the good fortune to be less observed; but the showing wherein the Author of Christian Loyalty gave too much way to the Fashion, or the Noise, may yield farther strength and light to that Truth, which will arise out of those very Clouds, with which he might think requisite to obscure it.  
His Treatise is in two Parts, in the first he vindicates and endeavours to explain the Oath of Supremacy.  
1. In relation to the Regal Power, as it is received in our Church, or at least by Churchmen, or as it is acknowledged by our Laws.  
2. As the Oath renounces all Foreign Jurisdiction, the last of which falls not otherwise under Consideration here, than as it shows the King's Duty to preserve his Ecclesiastical, as well as Civil Supremacy, and not to alienate either.  
In the second part this Worthy Author considers the public Declarations against Subjects taking Arms.  

Page 14.  1. In the first he rightly affirms, That the asserting the Supremacy of Government is never designed (meaning I suppose, by the Law) in any wise to violate either Divine or Christian Institutions, or to assert it lawful for any Prince to invade that Authority and Right, which is made particular thereby, whether in Matters Temporal or Spiritual. Where by Christian Institutions, 
Page 3.  'tis plain that we are to understand the Ecclesiastical and Civil Laws of Christian States, or the Laws of others not contrary to Christianity; and thus he deservedly blames them who nourish false Conceptions, and mistaken Opinions concerning the CIVIL POWER, beyond due Bounds exalting it so high, as not to reserve that Respect which belongeth to God and Christian Institutions; 
Page 15.  and rightly observes, that the Supremacy does not exclude the Subject from a real Propriety in his own Estate. And that there are some Kingdoms where without any Disparagement to the Supremacy of their Prince, 
Page 11.  they are governed by the fixed Rules of the Civil Law; and others where other Laws established by their Predecessors are standing Rules.  

Page 391.  And particularly in relation to the People of this Realm, he says in the second Part, The English Constitution doth excellently and effectually provide against injurious Oppressions. Of which more in its place.  

1 Canon An. 1640.  However I cannot but here observe, that even the Canons of 1640. which he receives as speaking the Sense of the Church of England, own that the Subject has a Propriety, but withal say, that Tribute, Custom, and Aid, and all manner of necessary Support and Supply are due to Kings from their Subjects by the Law of God, Nature and Nations; yet though it is the Duty of Subjects to supply the King, it is part of the Kingly Office to support his Subjects in the Propriety and Freedom of their Estates. Still, it seems, subject to the King's Judgement of necessity, which is right Sibthorpism and Manwarinism, afterwards echoed to by the Courts at Westminster, in the Resolution about Shipmoney, and of late in that of the Dispensing Power.  
I think in two things what Mr. Falkner writes upon the first Head lies open to Exception.  
1. That generally by Civil Power, 
Page 356.  he seems to mean the Person of the King, and that not according to his own Definition of a King, which he says doth denote the Royal Person who governs, which himself owns to be according to the respective Limitations in those places where they govern, many having the Title of a King, 
Page 339.  who had not such Royal Power as is allowed by our Constitution: but he ascribes to a King generally speaking, and particularly to ours, such a Sovereignty as carries with it the absolute and arbitrary Exercise of that Civil Power whereby a Nation is governed.  
Thus he asserts with St. Austin, That Subjests may and aught to obey their Prince's Commands where they are certain, 
Page 302.  that what he commands is not against the Command of God: And hence he attributes to the Kings of England even more Power than he allows to the Roman Christian Emperors, as will soon appear. And it appears, that this is not only a casual dash with his Pen; 
Page 123.  for having before in one place spoken of the business of the Civil Power described by St. Peter, 
Page 131.  in another he mentions the Authority with which he supposes Kings and Princes to be vested to govern in Matters of Religion, not as originally arising from their Christianity, but from the general Right of Dominion and Sovereignty, and says, this includeth a Right of establishing, by their Authority, what is truly unblameable, orderly, useful, and necessary with respect to Religion.  
Accordingly he speaks of the Ecclesiastical Laws of Ina, 
Page 153.  and several other English Saxon Kings; as if they were established by them, as having the Civil Power solely and absolutely in themselves.  
And indeed if, as Mr. Falkner has it elsewhere, 
Page 41.  the Sovereign Ruler hath a Right to promote God's Public Worship, and to establish it by a Civil Sanction; it must follow either that these Kings were no Sovereigns, or that they alone made those Ecclesiastical Laws, giving them their Civil Sanction.  
Yet that he denies even to the Emperor Constantine such a Power as he ascribeth to Kings and Princes, and particularly to ours, 
Pag. 172, 173, 174.  is evident from his justifying Athanasius in his disobeying the Emperor's positive Command to restore Arius to his Church of Alexandria, after a final S●●tence of Deprivation of the Council of Nice; which Sentenc 〈…〉 g grounded upon his Heresy, the Emperor might well think that subscribing and swearing to the Nicene Creed, might render him a Person equally capable with any other, to supply the Vacancy.  
2. 
Mr. Falkner's second Mistake in his first Part.  Another Mistake Mr. Falkner seems to have been led into by thinking Ecclesiastical Canons to be of Authority in Points of Law or State.  
Hence it is that he citys the second Canon 1 J. 1. which he says threatens Excommunication against them who shall affirm, 
2 Canon, Vid. Christian Loyalty, p. 50, 51.  that the King hath not the same Authority in Cases Ecclesiastical, that the Godly Kings had among the Jews.  
He might have observed that it excommunicates them ipso facto without admitting them to any Plea or Defence for themselves. In which Comparison, though perhaps much was intended, according to the Mos Regius described by Samuel; I fear it proves too little, nor would they who made those Canons have been willing to confine the Royal Power to that fundamental Law for it, which we find in Deuteronomy; 
Deut. 17. from ver. 14. to the end.  where the Rule for the Election of Kings is stated, that the Person whom they set over them should be no Stranger, but one from among their Brethren, and his Power is bounded within Moses his Law, that his Heart be not lifted up above his Brethren.  
And it is certain that the Stream of Learned Men are on the side of Petrus de Marca, 
Falkner, p. 89.  who observes, that they do not deserve well at the Hands of Christian Princes, who would measure their Authority and Dignity from the Exercise of Royal Power under the Times of the Old Testament. 
Ib. p. 75. Even Grotius will not allow the Government over the House of Israel to have been Monarchical. Ib. p. 102, 454.  But leaving Mr. Falkner with his Canons to fight this out with De Marca, Selden, Grotius, Schickard, Bellarmine, Baronius, the greatest part of the Jewish Rabinnical Writers, Blondel, and even Josephus, who says the King was not to act without the High Priest, and the Consent of the Senators; I shall but mention some Heads in which it will be difficult to disprove me.  
1. The Kings of Israel; quatenus Kings, had no Interest in the Legislative Power; for that Government so far continued a Theocrasy, that God, who promised in an especial manner to dwell among them, 
Exod. 29.45.  was their sole Legislator; and Mr. Falkner himself tells us, 
Page 464.  The Jewish Commonwealth was peculiarly ordered by God, or as he has it elsewhere, 
Page 438.  peculiarly Theocratical.  
2.  any Alteration in the outward Administration, or Circumstances of things appointed by God's Law, delivered by Moses, went under the Name of any King; it will hardly be possible to prove that the King did not make it, either as he himself was a Prophet, or by the Direction of the chief Prophet, or Seer; whose Commission, 
Jer. 1.10.  if we may judge by that of Jeremiah's, was very large, being set over the Nations, and over the Kingdoms, to root out, and to pull down, and to build and to plant.  

Orig. sacrae, p. 150.  The present Bishop of Worcester shows, that God appointed a Succession of Prophets to make known his Mind to the Israelites; and that there were Schools or Colleges of the Prophets, which some think Samuel erected, 
Pag. 154, 164.  where God Almighty ordinarily dispensed his Effusions. Out of these the Kings had their Seers, Gad was David's Seer, and Jeduthun Josiah's, after Israel and Judah were divided; according to that Observation made by the Bishop, neither were these Schools of the Prophets only in Israel, but in Judah likewise was God known.  

Page 463.  3. The Right of the Crown of Israel was not so fixed to a Family, but, as Mr. Falkner owns, God reserved to himself the Right of disposing the Sovereignty of that Kingdom.  
By which, as he would justify some Rise against Kings in Possession, he must likewise admit, that no Instances of Passive Obedience among the Jews, can concern Governments more truly of Human Institution.  
4. For the Judicial Power, it may be difficult to show the King to have been more than the Head of the Sanhedrim; and perhaps considering that the Law by which they were to judge was God's Law, which the Priests, 
Deut. 31.9, 11.  who bore the Ark of the Covenant of the Lord, were to read to the People; 
Exod. 28.29, 30.  the High Priest who was to bear the Judgement of the Children of Israel upon his Heart continually, with his Vrim and Thummim, the Breastplate of Judgement, may bid fair for the chief Place in that Court.  
And though Moses, their King, 

Deut. 1.17.  
Vid. Dr. Heylin's Certamen Epistolare, p. 290.  
Fortescue, c. 1. p. 4. b. Moses called Dux Synagogae.  
Orig. sacr. p. 150.   reserved to himself an Appeal from the Sanhedrim, it will be difficult to show that the Seer did not succeed him in that; especially since he shows that his Right of being harkened to, or obeyed, was as he was a Prophet: and the present Bishop of Worcester holds that the Promise of a Prophet to be raised up to the People of Israel, aught to be understood not only of Christ, but also and more immediately, of an Order or Succession of Prophets to be obeyed in all things.  
5. Whereas Mr. Falkner labours against Josephus, Maimonides, and Schickard, to show that the Kings of Israel might make Arbitrary War, or War of choice, without the Authority of the Sanhedrim: he should have added [or the Directions or allowance of any Prophet] to have proved any thing to his purpose: 
Falkner, p. 97.  and it will appear that the two Instances which he gives, were from the Prophetical Power; thus when he says Saul resolved upon War against the Ammonites, upon his present hearing the Cause of the Men of Jabish Gilead; The Text says, The Spirit of God came upon Saul. 
1 Sam. 11.6.   
And though wicked Ahab would have engaged Jehosaphet the King of Judah, who was with him out of his own Country, in a War against Syria, without consulting the Order of Prophets in Israel; 'tis of his own showing, that Jehosaphet would not undertake it till the Prophets of Israel were consulted, and had encouraged it. However Jehosaphet having been King of Judah, is not an Instance so directly to the Point.  
But as Mr. Falkner, notwithstanding his Mistakes in comparing our Polity to the Jewish, shows a Propriety in the Subject, 
Vid. Canon 1. 1640.  beyond what they will allow, who infer a contrary Right from that manner or way of Kings with which Samuel, 
The Hebrew imports no more than ratio or mos, the Chaldee Paraphrase, Statutum Regis.  either would deter the People of Israel from choosing one, or at least foretells what they would lose by quitting the Theocracy, administered by Persons more immediately commissioned by God himself; Mr. Falkner no less fully comes up to the case of putting the Kingdom under any other Head, than that which the Law allows, and says.  
The Constitutions of this Realm oblige all the Subjects thereof, to maintain the the Royalty of the Crown: and further, that it is a great and special Privilege of a freeborn People, that they cannot, 
Falk. p. 234.  according to the Condition of Slaves, have the chief and principal Dominion over them translated from one to another, according to the Pleasure of any Person whomsoever, though it be their own natural Prince.  
What was in his Judgement, the due Consequence of such an Attempt, will appear by considering his second part, 
Mr. Falkner's second Part.  where he speaks more directly to it; and though it be against the Subjects taking up Arms upon any pretence whatsoever, yet it sufficiently justifies the late real Occasion for recourse to them ultimo necessitatis praesidio. 
Vid. Inf.   
It must be understood, that looking upon the Canons of 1640, as the Sense of our Church, he thinks himself bound to assert the Divine Right of Kingship, 
Page 419.  in a more peculiar manner than any other Form of Government: and having duly observed that in those States or Relations which are fixed by Divine Institution, 
Page 422.  there are some things so necessary and essential, that they cannot be separated from them; 
Page 423.  he makes Irresistibleness to be one of those Essentials: nor could he do less, 
Vid. Stat. 13. Car. 2. cap. 12. which provides that it shall not be thought to extend to confirm the Canons made in the Year 1640. Page 419. Can. 1. 1640.  seeing, though all the Canons of 1640, lie under a Censure of much greater Authority in our Church than that with which they were made; he citys the first Canon as the Sense of our Church, That the most high and sacred Order of Kings is of Divine Right, being the Ordinance of God himself, founded in the prime Laws of Nature, and clearly established by the express Texts both of the Old and New Testaments: upon this ground he might well suppose that the People in choosing a King (which he allows often to have been where there hath been a Vacancy, and none could claim a Right of Succession) whatever Terms or Contract were made at the Choice, 
Page 414. Page 420.  stand obliged from the Nature of that Relation they thereby enter into, 
Page 414.  and the Laws which God hath established concerning it, and not only from their own Intention.  
And if the Rights of Princes, or any of them are ascertained by God himself, 
Page 423.  not by the ancient Constitution of the Government or express Contract; then indeed, even in Elective Principalities, those Divine Rights of Soveraingty, as well as such as arise from the Original, or more immediate Contract, are invested in the Person elected thereto before the Coronation.  
But to qualify this, 'tis to be considered, that he contends that the Declaration against taking Arms relates particularly to the King, not indefinitely to any King, and can bare no other Construction, than to condemn the English Subjects taking Arms against their natural Sovereign the King of England: 
Page 338.  and therefore, though the like Attempts against any other Kings who enjoy Sovereign Authority, are equally  in their Subjects; yet this Position, says he, does not assert the utter unlawfulness of taking Arms amongst any other Nations, against him who hath the Title of King; if he doth not therewith enjoy that Right of Supreme Government, which our Kings have and exercise.  
So that notwithstanding the Canons of 1640, even in his Judgement, the Laws of England must determine this Controversy.  
And elsewhere he grants what shows, that the Examples for Passive Obedience which he instances in from the Jews, or Primitive Christians, will not affect us.  

Page 541.  The Agreement, saith he▪ between the Condition of those Jews, whom he mentions, and the Primitive Christians under their Persecutions, was so great, that if the Laws of Nature would have allowed these Jews to resist, it must also have been lawful for the Christians to have done the same; which is contrary to their general Profession, and universal Practice.  
But then in relation to the Practice, he says, 
Page 501.  The Result of all these Testimonies is, that when the Authority, Laws, and Rules of Government they lived under, did oppose the Christian Profession, or the Truth and Purity of its Doctrine, they thought it their Duty patiently to suffer, and not, in Opposition to those Laws which were then established, to take up Arms against their Governors.  
And coming to Examples of Passive Obedience among the Jews, when the Sovereign Power had undertaken to destroy a part of the People, he says,  
Forasmuch as the Sovereign Power in Judea, 
Page 535, 536, 537, 538.  and many other Eastern Nations, and also in the Roman Empire, as their Laws declare, had such an Authority, that the particular Rescripts and Edicts of the Emperors were accounted Law, and what they determined was a Legal Decision or Sentence, and a judicial way of proceeding: From these Considerations, he supposes it was not lawful for any of the Persons in the Instances  by him, though some of them were unjustly sentenced, to have taken Arms in their own Defence.  
But he tells us, 
Page 539.  The excellent Constitution of our English Government hath this advantage among others, that it gives sufficient Security to the English Subjects, that there is no way of judiciary or legal Proceeding by the King himself, or any other against the Life or Property of any Person, who lives peaceably and orderly, but according to the established Laws of the Land, and upon a fair Trial of his Case: Nor will our Laws allow any such general Sentence, which may take in innocent Persons.  
The destroying Corporations, the managing Juries, and improving Religious, and lawful Civil Assemblies, into Riots, nay, Consults for Treason, had not then been brought to Perfection.  
And the Dispensing Power having been attempted, but receded from, he says,  
The true Religion is established by our Laws, 
Page 542.  and no Law can be repealed or altered to the Prejudice of English Subjects, by the Pleasure of any Prince alone, and without the Consent of the Peers, and the Representatives of the Commons of England.  
And indeed the good Man takes a great deal of Pains, from the Duty, Honour, and Interest of the Prince, the danger to evil Instruments, and the like, to prove, that it ought not to be presumed that any such Case, as we have known, will happen; which at this time looks like a Philosophical Argument against Motion, and deserves the like Confutation. However, 
Page 532.  looking upon such Violations as but simply possible, he maintains that the Declarataion against taking Arms ought to be in general Terms; for that such extraordinary Cases, as may be put, fall not under Consideration, 
Page 361.  (I may add) till they happen; for than they must be put, and remembered to justify what they have rendered necessary.  
Nay, himself restrains the general Terms to a Subject's taking Arms without any Command from his Prince, 
Page 360.  against those who act by virtue, and in pursuance of his Commission [REGULARLY] granted to them.  

Page 346.  I will yield to him, that it would be an high Reflection upon the Laws of our Realm, if there were need of consulting skilful Lawyers for the general Rule of Duty, and to whom Men ought to yield Obedience and Submission: Yet if learned Men will confound the plain Rule of Submission to the Powers which are in being, by setting up a supposed inseparable Right, in a Power which once had a being, but is become a mere Shadow and Spectre; 'twill be requisite to have recourse to them who have taken some pains in enquiring into the Constitution of the Government, to see what Remedy is thereby allowed in extraordinary Cases.  

Christian Loyalty, p. 521.  And whereas, speaking of Officers supposed by some to have Authority of resisting in such Cases, he seems to know of none but by Charter or Commission having their Authority depending upon the King; a little Skill in the Law, or in Antiquity, would have informed him of several others, at least such as were not so dependent, 

Vid. inf. of the Earl Martial, etc.  
Vid. The Act of Pacification between the English▪ and the Scots, Temp. Car. 1. which provides that it shall be lawful, for the Subjects of either Nation, to fall upon the Forces which shall come out of one into the other, without the Consent of the Parliaments of both Kingdoms.   not only hereditary Great Officers, and other Great Men of the Kingdom, but other Officers chosen by the People, the Heretochii, or Lords Lieutenants, and the Sheriffs anciently, and the Officers in Boroughs by Prescription, and Constables at this day.  
I will be as ready as he to maintain that for the future, such Supposals as he touches with great Fear and Tenderness, will be very remote Possibilities; and being looked upon in our Law as vain in the Apprehension, are thought not to stand in need of any particular Provision: but he mentions three Cases in which upon yielding the Suppositions, 
Page 531.  he grants the Answer given by Barclay to two of them, and to all three by Grotius, to be true.  
To the general Question, May there no Cases fall out, in which the People [by their Authority] may take Arms against the King?  

Page 515.  Barclay answers, Certainly none, as long as he is King, or unless ipso jure Rex esse desinat, which is pregnant with the Affirmative, that there may be some Case wherein he by Law, or of Right, ceases to be King.  
And Barclay manifestly allows of two, Grotius adds a third branched into a fourth, in which Mr. Falkner concurs with him▪ as well as with Barclay and Grotius in the other two.  

Pag. 525, 527.  The first particular Case upon which he delivers his own Opinion, 
Voluntary Resignation, or Session, or Abdication.  without referring to Authorities, is, of a King's voluntarily relinquishing and laying aside his Crown and Government: of this several Examples are mentioned, and among the rest nine of our Saxon Kings; 
Page 426.  and he rightly observes, that if such Persons should act against the settled Government of their respective Kingdoms, after they are fixed in the next Heir in an Hereditary Kingdom, or in another King, according to the Constitution of Elective Principalities; the resisting any of them is not the taking Arms against the King, but against him who now is a private Person.  
If therefore the late King's Abdication were such a relinquishing as he means, 
Vid. sup. f. 13.  which it must be if he receive Grotius; or if he hold to the other Cases, in which, as it will appear, he yields that he would be devested of Sovereignty; in all such Cases every thing is lawful against the late King, that would be lawful against any other private Person.  
2. The second Case agreed by all three, and by Bishop Bilson, 
Page 526.  is of a Prince ' s undertaking to alienate his Kingdom, 
Alienation of the Kingdom.  or to give it up to the Hands of another Sovereign Power against the Mind of his Subjects. And he thinks Barclay, Grotius, and Bishop Bilson, truly to assert, that such an Act of Alienation, or of acknowledged Subjection, especially if obtained by evil Methods, as was done in the Case of King John, is null and void; and therefore can neither give any Right of Sovereignty to another, nor dispossess the King himself thereof.  
But if any such Prince shall actually and forcibly undertake to bring his Subjects under a new Supreme Power, who have no Right thereto, and shall deliver up his Kingdom to be thereby possessed. Grotius, saith he, doubteth not, but he may be resisted in his undertaking; but then says Mr. Falkner, this Resolution must proceed upon this ground, that this Action includeth his divesting himself of his Sovereignty, together with his injurious proceeding against those who were his Subjects: And Barclay, who allows only two Cases in which a Prince may be devested of his Royal Dignity, doth account this to be one of them.  
Not to mention the notorious truckling to France, and Pupilage under that bribing and imposing Monarch; since the Kings of England are Supreme in Ecclesiastical, as well as Civil Affairs; and the late King by Force and open Violation of the Laws, against the universal Bent and Mind of his People, renounced his own Supremacy in yielding to the Pope's; and since the People might resist him therein; but that which justified their resisting him, devested him of his Sovereignty; 'tis evident, that according to Mr. Falkner, and the Learned Men, whose Authority he receives, the late King thereby ceased to be King: which sufficiently justifies that Vote of our Convention, since confirmed by the Parliament, that a Popish King is inconsistent with this Protestant Kingdom.  
3. The last Question, or rather part of a Question, 
Page 527.  which this learned Author takes notice of, in the Resolution of which he agrees with Barclay and Grotius, is, 
Attempting to destroy the Kingdom, or any considerable part of it. Pag. 528, 529.  Whether if a Sovereign Prince should actually undertake to destroy his whole Kingdom, or any considerable part thereof, they may not in these Circumstances have liberty of defending themselves by taking up Arms?  
Now we must allow him here to distinguish his Sentiments, by inveighing against Junius Brutus, 
Page 528.  and other Subverters of Sovereign Power, who start and urge this Question: However it may not be amiss to take him into a Corner, to know his Mind of the matter, under the Rose. 
Page 531.  It must be remembered that he allowed of Barclay, as a competent Judge in the Questions which he determines, and as to a Sovereign Prince's undertaking to cut off, 
Page 529.  or to ruin and destroy the whole Body of his People, he acknowledges that this is the other only Case in which Barclay esteemeth a Sovereign Prince to forfeit his Right of Government, and that thereupon it may be lawful to resist him. Tho, as I observed before, Grotius citys Barclay for a third, 
Sup. f. 25.  this which he receives as Barclay's second, as he gathers from Barclay, must not exceed the Bounds of mere Defence, without any Attempts of invading or revenging; yet it may be a Question, how far this may be consistent with his yielding, that a former King in such case becomes a private Person. And indeed I think he is in the right in allowing of no case to warrant Resistance, till he who had been a King becomes a private Person. 
Page 526.   
Accordingly, neither Barclay nor he, in the case of a King's undertaking the Ruin of the Whole, or in any other case, will allow the taking Arms against the Sovereign Power; because a Prince by such an undertaking as this, loseth his Royal Authority, and is no longer King; se omni dominatu & principatu exuit, atque ipso jure, sive ipso facto, Rex esse desinit.  

Page 530.  And the Reason given by Grotius in the same case is irrefragable, consistere simul non possunt voluntas imperandi, & voluntas perdendi: quare qui se hostem Populi totius profitetur, eo ipso abdicat Regnum: A Will to govern, and a Will to destroy, cannot consist together; wherefore he who professes himself an Enemy to his whole People, in that very thing abdicates his Kingdom.  
I cannot but observe that here is a Forfeiture owned, and an allowance of a Right in the People, 
Page 529.  or some of them at least to judge of the Forfeiture. 
Barclay esteemeth a Sovereign to forfeit his Right, etc.  Elsewhere Mr. Falkner says, To assert that the People or Inferiors, are of right Judges of the Cases in which they may resist their Superiors, is as much as to say, they are bound to Subjection only so far as themselves shall think fit, and that they may claim an Authority over their Governors, 
Page 365.  and pass Judgement upon them, and deprive them of their Dignity, Authority, and Life itself, whensoever they shall think it requisite and needful.  

Page 359.  But this Inference here, as well as his former Declaration, shows, that he speaks not of extraordinary Cases, which as he has it, we may well presume, or hope, may never be in act.  
And if a judicial Power, even in such extraordinary Cases, sound harsh, we may learn of him to soften it, with the Terms in which he justifies the Exercise of a like Power over Kings in Spirituals.  

Page 321.  Tho, says he, all Christians upon manifest Evidence, may in some cases see cause to disown a Sovereign Prince (as was done in Julian) from being any longer a Member of the Christian Society; 
Page 322.  yet in such Cases his Membership ceaseth, and is forfeited by his own Act, and not properly by a judicial Sentence and formal Process. And some of the Romish Writers go much this way, in giving an account, how the Bishop of Rome, whom they suppose to be Superior to all Men on Earth, may by reason of Heresy or such Crimes, be deprived of Christian Communion.  
I must herein agree with Mr. Falkner, that 'tis not the Judgement which creates the Forfeiture, but the Grounds of the Judgement; which ought to be duly weighed.  

Page 542.  4. The only thing which, according to Mr. Falkner, in this Case can farther be proposed is, Whether if a Supreme Governor should according to his own Pleasure, and contrary to the established Laws, and his Subjects Property, actually engage upon the destroying and ruining a considerable part of his People, they might not defend themselves by taking Arms?  
This which he says is notional and speculative, 
Page 543.  has too sadly been reduced to Practice, in Ireland especially.  
After mentioning the Parisian Massacre, he confesses, that if ever any such strange Case as is proposed, really happen in the World, 
Page 544.  it would have great Difficulties. Grotius, says he, thinks that in this utmost extremity the use of such Defence as a last Refuge, ultimo necessitatis praesidio, is not to be condemned, provided the Care of the common Good be preserved. And, says Mr. Falkner, if this be true, it must be upon this ground, that such Attempts of ruining do, ipso facto, include a disclaiming the governing those Persons as Subjects, 
Page 545.  and consequently of being their Prince or King. And then the Expressions of our Public Declaration and Acknowledgement would still be secured, that it is not lawful upon any Pretence whatsoever to take Arms against the King.  
In short, Mr. Falkner's Judgement in these three, or rather four Cases, is this, That these Cases are so extraordinary, that they fall not under any Consideration as a pretence, but will justify the Subjects taking Arms when they are real; and that when any such Case happens, the taking Arms is not so much authorised by any Judicial Power in the People, or their Representatives, as by the Facts themselves, whereby the King ipso facto, without Sentence, incurs a Forfeiture, and ceases to be King. And had he lived to apply his own Rules, no Man can doubt but he would in Terms have justified our renouncing Allegiance to the late King: Whether upon the account of the Forfeiture, or the Judgement upon it, or both, is not very material: especially considering that both Barclay and Grotius speak of an Absolute Prince, not a Platonic Monarchy, 
Vid. Pag. 398.  〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉," yoked or coupled with Laws.  
'Tis well known to have been Grotius his Opinion, 
Page 348.  That if the Supreme Government be part in the People, or Senate, and part in the King: If the King invade what is not his Right, 
Page 344.  he may be opposed with just Force, because he hath not so far any Supremacy: 
Cited in Christian Loyalty, pag. 348.  and this he thinks must take place, though it be said that the Power of War is in the King; for that, saith he, is only to be understood of Foreign War, when whosoever hath any part in the Supreme Power cannot but have a Right to defend that part.  
Object. Mr. Falkner indeed excepts against this, as erecting two distinct Governments, each of which have a Supreme Power of judging and executing.  
Answ. 1 Yet he agrees that this is warrantable in the Empire.  
1. Because it is allowed by its Constitutions and Capitulations: But then he says, If we look into the Records of the former Ages, 
Page 349.  we may thence discern that no Subjects whatsoever of this Realm had, under any pretence, an Authority to bear Arms against the King.  
How far he is right in this Assertion, I submit to their Judgements who shall impartially weigh the following Authorities.  
2. His other Reason of a Difference between the State of the Empire, and of England, is, That the Princes of the Empire in their own Territories enjoy u Right of peculiar Sovereignty, which altars not the case in relation to the Emperor; for both they and their People are Subjects to the Emperor: and the mischief of a Judgement left in Subjects, is either equal both in one and the other, or if there be any difference 'tis greater in the Empire: because, though the Latitude for judging may be the same, the Princes there have the greater Opportunities of gathering strength against the Sovereign, and consequently more Temptations to it, than where all is more immediately under the Inspection, and Influence, of the Supreme Governor.  
Answ. 2 But still it appears by what I have shown out of Mr. Falkner, that what he says, must relate only to an ordinary Judicial Power, or in ordinary Cases; for if he allows it in extraordinary Cases, even where the Prince is more absolute, than he agrees the Kings of England to be; à fortiori, is this allowable here in such Emergencies?  

Pag. 344, 345.  Wherefore notwithstanding his charging the two Jesuits, Lessius, and Becanus, with an high strain of Treason and unchristian Disloyalty, bating what they say in justification of killing a Prince by private Persons, for their self-defence, even while he remaineth a Prince; I see not any material difference between him and them.  
And being our Dispute is chief with Papists, with others but as they are their Friends out of Folly or Design, it cannot be improper to transcribe part of his Quotation from the two learned Jesuits, agreeing almost word for word in these Positions.  

Page 344.  That a Prince who hath a just Title becomes a Tyrant with respect to the Administration of the Government, when he designs in his Government, and aims at his private Advantage, and not the Public Good, and burdens the Commonwealth with unjust Exactions, sells the Offices, and Places of Judges, and makes Laws to his own Advantage, and not the Public.  
That when this Tyrant is no longer fit to be born, this Prince is first to be deposed, or to be declared an Enemy by the Commonwealth, or the Chief Estates of the Kingdom, or any other who hath Authority, and then he thereby ceaseth to be a Prince, and it becomes lawful to attempt any thing against his Person and Life.  
It being made a Question, What was Bishop Bedell's Opinion of Subjects taking Arms against their Prince in Extraordinary Cases; he having been said barely to represent the Defence made by others, without interposing any thing of his own: and the Learned Writer of his Life having declared it unlawful and impious for a Subject to resist his Prince in any Case whatsoever, which he says he observes for fear the Bishop's words should be taken by the wrong Handle. As if the Bishop gave no Intimation of his Mind herein, to countenance resisting in any case whatsoever.  

Life of Bishop Bedell, p. 442.  I shall take leave to give an account of the Bishop's Answer to Mr. Wadsworth, who charges the Hugonots and Guises of France and Holland with raising Civil Arms, shedding of Blood, occasioning Rebellion, Rapine, Desolations, principally for their new Religion.  
The Bishop says, 
Page 443.  these poor People having endured such barbarous Cruelties, Massacres, and Martyrdoms, as scarce the like can be showed in all Stories, are now accused as the Authors of all they suffered. No, says the Bishop, they be the Laws of the Roman Religion that are written in Blood, and the perfidious Violation of the Edicts of Pacification, that have set France and Flanders in combustion. And afterwards having enlarged upon the Fact he adds.  
And tell me in good sooth, Mr. Waddesworth! 
Page 444.  Do you approve such barbarous Cruelty? Do you allow the Butchery at Paris?  
What is this less than to say, that no Man can condemn these poor Protestants, without approving the Cruelties exercised against them?  
The Bishop proceeds in their Vindication.  
Do you, says he, 
Page 445.  think Subjects are bound to give their Throats to be cut by their fellow Subjects, or to (offer them, without either humble Remonstrance or Flight, too) their Princes at their mere Wills against their own Laws and Edicts? You would know, quo jure the Protestants Wars in France and Holland are justified (I interpose not my own Judgement, not being throughly acquainted with the Laws and Customs of those Countries, but I tell you what both they, and the Papists also, both in France and Italy, have in such Cases alleged). First the Law of Nature, which (they say) not only alloweth, but inclineth and enforceth every living thing, to defend itself from Violence. Secondly, That of Nations, which permitteth those that are in the Protection of others, to whom they own no more but an honourable Acknowledgement, in case they go about to make themselves absolute Sovereigns, and usurp their Liberty, 
Added in the Margin.  to resist and stand for the same. And if a lawful Prince▪ (which is not yet Lord of his Subjects Lives and Goods) shall attempt to dispoil them of the same, 
The Passage above is to be considered as a Relation, not as the Author's Opinion: But yet for fear of taking it by the wrong handle, the Reader is desired to take notice, that a Subject's resisting his Prince in any Cause whatsoever, is unlawful and impious.  under colour of reducing them to his own Religion, after all humble Remonstrance, they may (say they) stand upon their own Guard, and being assailed, repel Force with Force, as did the Maccabees under Antiochus. In which case notwithstanding, the Person of the Prince himself, ought always to be sacred and inviolable. These are the Rules of which the Protestants that have born Arms in France and Flanders, and the Papists also both there and elsewhere, as in Naples, that have stood for the defence of their Liberties, have served themselves. How truly, I esteem it hard for you and me to determine, unless we were more throughly acquainted with the Laws and Customs of those Countries, than I for my part am.  
1. Here his Interrogation strongly implies the Assertion, that Subjects are not bound to give their Throats to be cut by their fellow Subjects, or offer them without either humble Remonstrance or Flight to their Princes, at their mere Wills against their own Laws and Edicts.  
2. The Argument from the Laws of Nature and Nations, he represents with due strength, and apparent marks of Favour.  
All the Hesitance which he makes in pronouncing absolutely on their side is, from his not being throughly acquainted with the Laws and Customs of those Countries.  
Wherefore as he supposes not Christianity to lay any Obligation upon the Subjects, beyond the Duty resulting from the particular Constitutions of the respective Governments; so he does fully admit that the Laws ad Customs of some Countries may allow of Resistance in some Cases. Hence it appears, that no Man can truly say that he takes the Bishop's words by the wrong handle, who would infer from him, that it is neither unlawful nor impious for Subjects, in some Countries, and in some Cases, to resist their Princes. Nay, without knowing the Constitution of France, or of the Low-Countries, he supposes that in such extraordinary Circumstances as the poor Protestants in both places lay under, no Man can condemn them, without approving of the barbarous Cruelty and Butchery of their Persecutors.  

Page 446.  Nay, for Holland, he particularly urges, that the Kings of Spain were not absolute Lords there, and says, any reasonable Man may doubt, Whether the Title of Earl, to which they succeeded, imported such a Power as they exercised; which is as much as to say, that since they assumed a greater Power than the Constitution warranted, Arms against them were lawful: and if thus much is not implied, 
Bp Bedell, p. 447.  it must be owned that the Bishop very impertinently affirms, that the Kings of Spain were not absolute Lords in Holland.  
No Man can doubt of his meaning thus much; since he affirms positively, that it is no hard matter to discern pretended Privileges from true, and Treason from Reason of State. But, says he, to take Arms to change the Laws by the whole Estate established is Treason, whatsoever the Cause or Colour be: which may take in those that fight on the side of a King, as well as those who fight against him.  
Nor do I know what can well be said against what the judicious Mr. Lawson urges to this purpose: 
Lawson's Politica sacra & Civilis 362. last Edit.  Treason, says he, against Laws is more heinous than Treason against Persons; and Treason against Fundamental Laws, than Treason against Laws for Administration. This Treason against the Fundamentals was charged upon the Earl of Strafford, and the Personal Commands of the King could not excuse him; yet it was not thought that the Judgement passed upon him should be made a Precedent for Inferior Courts; because none but a Parliament could judge of and declare the Constitution, and what is against it, and what not.  

Bishop of Christian Subjection, Ed. 1586. p. 279, 280.  If, says Bishop Bilson, a Prince should go about to subject his Kingdom to a Foreign Realm, or change the form of the Commonwealth from Empery to Tyranny; or neglect the Laws established by common Consent of Prince and People, to execute his own Pleasure; in these and other Cases which might be named, if the Nobles and Commons join together to defend their ancient and accustomed Liberty, Regiment, and Laws, they may not well be accounted Rebels. And soon after he speaks of a Power for preserving the Foundation, Freedom and Form of their Commonwealths, which they fore-prized when they first consented to have a King. Where his meaning cannot be restrained to express Provisions, excluding such as may be equitably intended.  
That which is offered in the History of Passive Obedience to qualify Bishop Bilson's Expressions, 
History of Passive Obedience, p. 27.  I dare say will be a Confirmation of his Authority, in the Judgement of any Man who impartially weighs the following Proofs of the nature of our Government.  
At the time, says the Historian, when Bishop Bilson's Book was written, Queen Elizabeth was assisting the Dutch, against their and her common Enemy, the Crown of Spain: Now if in the Low Countries the Government was founded in Compact, as many Learned Men say, and that all their Privileges, Sacred and Civil, contrary to that Agreement, were invaded, and the Inquisition introduced, all their Petitions slighted, and some hundred thousands barbarously murdered, this altars the Case, while it can no ways hold good in Governments where there is no such Compact. Passing by due Reflections upon the Impunity which he allows to the most barbarous Murders, where the Government is not founded in Compact; it will appear to be enough for us, that where it is founded in Compact, the Nobles and Commons may join in the Defence of their ancient and accustomed Liberty, Regiment and Laws; nor may they in such Case well be accounted Rebels.  
And not to heap Authorities, with this agrees the Divine Plato, who after he had affirmed that the highest degrees of Punishment belong to those, who will misguide a Ship, or prescribe a dangerous new way of Physic, having brought in Socrates, ask whether Magistrates ought not to be subject to the like Laws? himself asks, 
Platonis Politicus, f. 299. Ed. Serrani: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉.  What shall be determined, if we require all things to be done according to a certain Form, and set over the Laws themselves, one either chosen by the Suffrages of the People, or by Lot, who slighting the Laws, shall for the sake of Lucre, or to gratify his Lust, not knowing what is fit, attempt to do things contrary to the Institutions?  
This Man, both he and Socrates condemn, as a greater Criminal than those which he mentioned; whose Crime he aggravates, as 'tis an acting against those Laws, which through a long Experience had been ordained by their Counsel and Industry, who had opportunely and duly weighed every thing, and had prevailed upon the People to submit to them.   

CHAP. III.  
Five Heads of positive Law mentioned. Upon the first Head are produced the Confessor's Laws, Bracton, Fleta and the Mirror, showing 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 answered in short, with reference to the second part. The Sense of Dr. Hicks and Saravia upon the Coronation-Oath, received with a Limitation from Grotius. The Curtana anciently carried before our Kings, explaining the Mirror. A Passage in Dr. Brady against the Fundamental Contract touched upon, referring the particular Consideration of him to the second Part.  
TO proceed to positive Law, I shall show how the Contract between Prince and People stood, and hath been taken, both before the reputed Conquest, and since: Where 'twill appear.  
1. That Allegiance might, and may in some Cases be withdrawn, in the Life-time of one who continued King, until the occasion of such withdrawing, or Judgement upon it.  
2. That there was and is an established Judicature for this, without need of recurring to that Equity, which the People are supposed to have reserved.  
3. That there has been no absolute Hereditary Right to the Crown of England, from the beginning of the Monarchy; but that the People have had a Latitude, for setting up whom of the Blood they pleased, upon the Determination of the Interest of any particular Person, except where there has been a Settlement of the Crown in force.  
4. That they were lately restored to such Latitude.  
5. The People of England have duly exercised their Power in declaring for King William and Queen Mary, and recognising them to be Lawful and Rightful King and Queen.  
1. If the King not observing his Coronation-Oath in the main, lose the Name of King, than no Man can say that Allegiance continues: But that so it was before the reputed Conquest, appears by the Confessors Laws, 
Vid. Leges Sancti Edwardi, 17. de Regis Officio. Nec nomen Regis in eo constabit.  where they declare the Duty of the King.  
But the King, because he is Vicar to the Supreme King, is constituted to this end, that he should rule his Earthly Kingdom, and the People of God; and above all should reverence God's Holy Church, and defend it from injurious Persons, and pluck from it wrong Doers, and destroy and wholly ruin them; 
Vid. Bracton, l. 2. c. 24. Est enim Corona Regis facere Justitiam & Judicium & tenere Pacem sine quibus non potest eam tenere.  which unless he does, not so much as the Name of a King will remain in him, etc. To which Bracton seems to refer, when he says, The King cannot hold his Crown without maintaining Justice, Judgement and Peace: that therein consists his Crown or Royal Authority.  
Hoveden shows how this Law was received by William 1. 
Hoveden, f. 604. Rex atque Vicarius ejus. Nota, There was occasion for naming the Deputy, by reason of the accession of Normandy, requiring the King's Absence sometimes.   
The King and his Deputy (or Locum tenens in his Absence) is constituted to this end, etc. in substance as above: Which unless he does, the true Name of King will not remain in him. And, as the Confessor's Laws have it (in which there is some mistake in the Transcriber of Hoveden otherwise agreeing with them) Pope John witnesses, That he loses the Name of King, who does not what belongs to a King: which is no Evidence that this Doctrine is derived from the Pope of Rome; The Pope only confirms the Constitution, or gives his Approbation of it, 
Vid. The Case of Rehoboam, inf. in the Quotation out of Lord Clarendon, f. 32.  perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right. And to show that this is not only for violating the Rights of the Church, the Confessor's Laws inform us, that Pippin, and Charles his Son, not yet Kings, but Princes under the French King, foolishly wrote to the Pope, ask him, if the Kings of France ought to remain content with the bare Name of King? 
Lambert. Qui vigilanter defendunt & regunt Ecclesiam Dei & Populum ejus.  By whom it was answered, They are to be called Kings, who watch over, defend, and rule God's Church and his People, etc. Hoveden's Transcriber gives the same in substance; but, through a miserable mistake in Chronology, will have it, that the Letter was written by Pipin and his Son, to W. 1. Lambart's Version of St. Edward's Laws goes on to Particulars, among others, That the King is to keep without diminution all the Lands, Honours, Dignities, Rights, and Liberties of the Crown; 

Barones Majores & Minores.  
Vita Aelfredi, f. 62. Ego tria promitto populo Christiano meisque subditis, etc.   That he is to do all things in his Kingdom according to Law, and by the Judgement of the Proceres, or Barons of the Realm; and these things he is to swear before he is crowned.  
By the Coronation-Oaths before the reputed Conquest, and since, all agreeing in Substance, every King was to promise the People three things.  
1. That God's Church, and all the People in the Kingdom, shall enjoy true 
(a) Nota, Protection.  Peace.  
2. That he will forbid Rapine, and all Injustice, in all Orders of Men.  
3. That he will promise and command Justice and Mercy in all Judgements.  
And 'tis observable, that Bracton, 
Bracton, lib. 3. c. 9  who wrote in the time of H. 3. transcribes that very formulary, or rather Abridgement of the Oath, which was taken by the Saxon Kings. In Bracton's time, 'tis certain, the Oath was more explicit, though reducible to those Heads; and 'tis observable, that Bracton says, The King is created and elected to this end, that he should do Justice to all. Where he manifestly shows the King's Oath to be his part of a binding Contract, it being an Agreement with the People, while they had Power to choose. With Bracton agrees Fleta, and both inform us, 
Fleta, lib. 1. c. 17.  that in their days there was no scruple in calling him a Tyrant, and no King, who oppresses his People violatâ dominatione, as one has it; or violentâ, as the other; either the Rule of Government being violated, or with a violent Government; both of which are of the like import.  

Mirror, p. 8.  The Mirror, at least, puts this Contract out of dispute; showing the very Institution of the Monarchy, before a Right was vested in any single Family, or Person: When forty Princes, who had the Supreme Power here, chose from among them a King to reign over them, and govern the People of God, and to maintain the holy Christian Faith, and to defend their Persons and Goods in quiet, by the Rules of Right. And at the beginning they caused the King to swear, That he will maintain the holy Christian Faith with all his Power, and will rule his People justly, without regard to any Person, and shall be obedient to suffer Right or Justice, as well as others his Subjects. And what that Right and Justice was in the last result, the Confessor's Laws explain, when they show, that he may lose the Name of King.  


Vid. Seld. spicil. ad Ead. merum, f. 171. Dissert. ad Flet. f. 591. Hoved. f. 608. Leges H. 1. confirming St. Edward ' s Laws.  
Cum illis emendationibus quibus Pater meus emendavit consilio Baronum suorum, Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates & Leges Regis Edwardi, f. 244. partim in cartâ Regis Henrici scripta sunt, partim ex legibus Regis Edwardi antiquis excerpta sunt.   These Laws were not only received by W. 1. and in the Codex of the Laws of H. 1. but were the Laws which the Barons in their early Contests which they had with their encroaching Kings, always pressed to have maintained; and that their Sanction might not be questioned, the Observance of them was made part of the Coronation-Oath, till some Archbishops or others, careful only of Clerical Rights, provided for no more of those Laws than concerned them, leaving out the People's share: as if while the Clergies Rights and Power were kept up, a Nation could never be in danger of suffering under Tyranny.  


Vid. Appendix to Plain English, Ed. An. 1690.  
Vid. Rushw. 1 vol. f. 200. Coronation of C. 1. namely the Laws, Customs, and Franchises granted to the [Clergy] by the glorious King St. Edward.  
Vid. Rot. claus. 1. E. 3. Rot. claus. 1. R. 2. n. 44. Magna Cart. Ed. cum Privilegio An. 1558. Juramentum Regis quando coronatur. Spelman Glos. tit. Fidelitas.   By the Oath which is upon Record, and in ancient Prints, the King is to swear to grant, keep, and confirm among others, especially the Laws, Customs, and Freedoms granted [the Clergy and People] by the most glorious and holy King Edward. And even after the King has taken his Oath, they were to be asked, If they would consent to have him their King, and Liege Lord? which is the People's part of the Contract; and thus the Contract becomes mutual. To which purpose the Learned Sir Henry Spelman citys 
* Vid. Cujac. de feudis lib. 2. f. 512. Et quibus ex causis vassallus feudum amittit eisdem etiam fere Dominum proprietatem sine diminutionem feudi amittere eamque vassallo accedere.  Cujacius the Great Civilian, to show that Faith between a Lord and Vassal is Reciprocal; and gives an Instance in the Oath of one of our Saxon Kings [Knute] for the proof of its being so here between King and Subject. With Cujacius agrees the no less judicious Civilian Pufendorf, one of the Ornaments of the present Age. When, says he, the Power is conferred upon a King, there is a mutual Translation of Right, or a reciprocal Promise. 
† Sam. Pusend. de Interregnis, p. 274. Quando in Regem confertur Imperium est mutua juris translatio, seu reciproca promissio.   
Object. If it to objected, That though there might have been such a Contract, with a free People at the beginning, it ceased to be so from the time of the Conquest.  
I answer; 
Answ.   
1. Till there be a Consent and Agreement to some Terms of Government and Subjection, 'twill be difficult, if possible, to prove any Right in a Conqueror, but what may be cast off as soon as there is an opportunity.  
Yielding, says a judicious Author, 
Vid. Templum Pacis, pag. 767. Deditio est pactus quo bello inferior majoris mali evitandi ergo potestati alterius sese submittit, & in jura aliena transit. Dividi potest in simplicem sive purum, quando quis mero Victoris arbitrio sese submittit: Et compositum sive conditionatum, quando alterius quidem potestati quis sese subjicit, sed sub conditionibus quibus aut singuli sibi consulunt, aut toti universitati.  is a Pact by which he that is overcome in War, to avoid a greater Evil, submits himself to another's Power, and takes new or strange Laws. This, says he, may be divided into simple or pure, when any one submits himself to the mere Will and Pleasure of the Conqueror: And compound or conditional, when indeed one submits to another's Power, but under Conditions, whereby either every Man provides for himself, or for the whole Community.  
And to the same purpose Textor in his Synopsis of the Law of Nations. 
Textoris Synopsis Juris gentium, p. 129.   
Victory, says he, is either restrained by Compact, or absolute; in the first case the Conqueror acquires no more Right than was yielded to him by the Pact.  
And the Lord Clarendon says, 
Survey of the Leviathan, p. 45.  All Government so much depends upon the Consent of the People, that without their Consent and Submission, it must be dissolved.  
The Author of the Temple of Peace, makes the most Absolute Submission a Pact, and as the ground of it is the avoiding a greater Evil, it implies, that though no Terms are expressed, the Inhumanity and Tyranny of a Conqueror may work a discharge: however we have no need of following that Implication, 
Gemetecensis de Ducibus Norm. lib. 6. c. 37. Walsing. Hypod. Neustriae, f. 436. Sim. Dunelm. f. 195. Hoveden, f. 450. Flor. Wigorn. f. 634, 635. 2 Sam. 5.3.  the Contract between W. 1. and the People being as express and as conditional as can be desired. For,  
2. Every Election of a King truly so called, is an Evidence of a Compact; but ancient Authors tell us, that W. 1. was elected King, nay they are express that he was received upon a mutual Contract, and that Faedus pepigit, he made a League with the People; which comes to the same thing with what the Holy Writ records of King David," That the People made a League with him.  
King William's Coronation-Oath was the same with that which was taken by his Saxon Predecessors, 
Lord Clarendon 's Survey of the Leviathan, pag. 109, 148, 149. aequo jure.  except that the Circumstances of that time required an additional Clause for keeping an equal hand between English and French. 'Tis not to be doubted, but that the Norman Casuists informed him that this related only to legal Justice, but that in matters of Grace and Favour he was left at large. How much soever he might have strained in this or other matters, I am sure he was far from acting so arbitrarily, 
Vid. inf. second Part.  as some have industriously represented him; I will not say on purpose to encourage such Actions in other Princes: And it is yet more certain, that whatever Right either he, or any Prince under him enjoyed, came from the Compact, not from the breach of Faith.  

Vid. inf.  3. If the Compact were not sufficiently expressed at the first, at least it was made so by his several Confirmations of the Confessor's Laws, which he received with that very Clause, which shows in what case he would cease to be King of England.  
4. He neither at the beginning, nor in the course of his Reign, pretended in the least to be a Conqueror, but always insisted upon Title, which, as I shall show, was such as was not disputed in those days [the Choice of the People] and this before his Victory over Harold; 
Vid. inf. second Part.  who was always looked on as an Usurper; not having been set up by a true Choice of the People, but crowned by a Surprise, and contrary to that Election and Designation of a Successor to the Confessor made in his Life-time, who, with the Consent of the Nation, had sent a Solemn Embassy to the Norman Duke to assure him of the Succession.  

Vid. inf. Vid. Leges W. 1. de fide & obsequio erga Regem.  5. If William I. did gain the Right of a Conqueror, it was personal, and he never exacted this for his Heirs, as appears, not only by his Declaration when he came to die, but by the Fealty, or Oath of Allegiance, which he required in his Laws.  
6. If our Ancestors had made as absolute a Submission to Will. I. as some pretend; 
Lord Clarend. Survey, p. 51.  in the Judgement of the Lord Clarendon, it would not extend to us: For, says he, if it can be supposed that any Nation can concur in such a Designation, and divesting themselves of all their Right and Liberty, it could only be in reason obligatory to the present Contractors: Nor does it appear to us, that their Posterity must be bound by so unthrifty a Concession of their Parents.  
The King's Oath is the real Contract on his side, and his accepting the Government as a Legal King, the virtual one; and so it is vice versâ, in relation to the Allegiance due from the Subject.  

Jovian. p. 244.  Thus far the Author of Jovian is in the right; As in the Oath of Allegiance the People swear nothing to the King, but what they are bound to perform unsworn; so the King in his Coronation-Oath, promises nothing to the People, but what in Justice and Equity he is bound to perform unsworn. 

Vid. Dr. Stillingfl. Irenicum p. 132, 133. Saravia de Imperii authoritate, f. 221.  
Grotius de jure Belli & Pacis, p. 59 Successio non est titulus Imperii sed veteris continuatio Lord Clarendon's Survey, p. 74. The Description which Samuel made of the exorbitant Power of Kings, was rather to terrify them from pursuing their foolish Demand, than to constitute such a Prerogative as the King should use, whom God would appoint to go in and out before them; which methinks is very manifest, in that the worst of Kings that ever reigned among them, never challenged or assumed those Prerogatives; nor did the People conceive themselves liable to those Impositions, as appears by the Application they made to Rehoboam, on the Death of Solomon, That he would abate some of that Rigour his Father had exercised toward them: the rash Rejection of which, contrary to the Advice of his wisest Counsellors, lost him the greater part of his Dominion; and when Rehoboam would by Arms have reduced them to Obedience, God would not suffer him, because he was in the fault himself.   Upon which account I will yield to Saravia, That in Hereditary Kingdoms the Coronation-Oath confers no new Right; and therefore there may be a King before his Coronation: Yet we must attend to Grotius his Rule, who rightly observes, That Succession is only a continuance of that Power which the Predecssor had; so that if the first Possessor comes into Power qualified by express Contract, this binds the Successor, and he is to be thought to come in upon those Terms.  
Nay, even Dr. Whitby, 
Considerations humbly offered for taking the Oath. Pref.  who to save the Credit of some of his Brethren, rather than the Reputation of the Government, argues as if our King were barely King de facto, yet says, he does by no means condemn those Writings which plead for taking the imposed Oath upon such grounds as do more fully justify the Title of our present Governors. And himself, in answer to them who laugh at the Notion of an Original Compact, shows very particularly that W. 1. was received upon Compact, and that the same Compact has continued, and been renewed by our succeeding Kings.  
One of the Terms before the time of W. 1. as appears by the Mirror, was that the King should suffer Right, or Justice, as well as his Subjects: And St. Edward's Sword, called the Curtana, 
Vid. inf.  carried before our Kings at their Coronation, was in the time of H. 3. as will afterwards more particularly appear, a known Emblem and Remembrancer of this, of the same nature with that Boy, ordered every Morning to put Philip of Macedon in mind of his Mortality. But surely whoever was entitled to carry the Curtana, or to use a judicial Power in such Cases as above, how much soever they continued their Allegiance to the King's Authority, could not well be said to retain it to his Person.  
Dr. Brady indeed says, There never was any Pact between King and People, no Fundamental Terms of Government agreed between them; nor indeed, says he, ever was there, or is it possible for any such thing to be in any Nation of the World. Matter of Fact, so long as we have any Memorials of it in these Kingdoms, shows to the contrary.  
If the Matter of Fact here could show it not possible in any other Kingdom, his, might pass for an universal History; but if the Authorities in this first Part do not take off from the Doctor's Credibility in this Point as far as relates to England, 
Vid. inf. second Part throughout.  I will undertake before I have done with him in the second, where his Notions fall more directly under Consideration, to show, 
Jani Angl. facies nova.  that he deserves little more Credit, than when he made my Tract maintaining the Rights of the Commons of England to be represented in Parliament, 
Dr. Brady's Introd. to his complete History.  an Evidence of my being in a Plot against the Government.   

CHAP. IU.  
The second Head of Positive Law. The established Judicature for the Case in question implied, if not expressed, 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 Fletá explaining the same. The Limitation of that Maxim, The King can do no Wrong. Precedents from Sigibert, King of the West Saxons, to the Baron's Wars in the time of King John, confirmed 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 touched upon. Instances of the People's Claims of their Rights in the times of W. 1. W. 2. H. 1. King Stephen, H. 2.  

Leges St. Edward. sup. vid. ib. Rex debet omnia rite facere in regno suo & de judicio Procerum suorum.  THere was and is an established Judicature for the great Case in question, as is implied by that part of St. Edward's Laws abovementioned, which supposes some Judge or Judges in the case: and those Laws investing the Proceres with the supreme Judicature, withholds not this from them. And the same Laws declare that a Folcmot, or an Assembly of the People of every County, 
Leges St. Ed. Tit. Greve. Vid. second Part.  as it is there explained, was to meet every first of May, in a Common Council, to provide for the Indemnity of the Crown of the Kingdom, and for repressing the Insolence of Malefactors, for the benefit of the Kingdom, which, as appears from the words, and subsequent as well as former Practice, besides the Opinions of ancient Lawyers, did not except the King himself; whatever Care is taken of the Crown of the Kingdom. However 'tis certain the Parliament 12 R. 2. referred to a known Statute, when they mind him of an ancient one, not long before put in practice; Whereby if the King, 
Knighton, f. 2683. meaning the Case of E. 2.  through a foolish Obstinacy, Contempt of his People, or perverse froward Will, or any other irregular way, shall alienate himself from his People, and will not be governed and regulated by the Rights of the Kingdom, and laudable Ordinances made by the Council of the Lords and Great Men of the Realm; but shall headily, in his mad Counsels, exercise his own Arbitrary Will; from thenceforth it is lawful for them, with the common Assent and Consent of the People of the Realm, to depose him from the Throne, etc. This Law is not now extant, but was not then denied; 

Knighton, f. 1752.  
This observed after me by the Author of the Answer to the Popular Objections, p. 44.   and the Reason why it is not to be found, is very evident, from the Articles against this King some Years after: In the 24 th' Article they accuse him of causing the Rolls and Records, concerning the State and Government of his Kingdom, to be destroyed and razed, to the great Prejudice of the People, and Disherison of the Crown of the said Kingdom; and this, as is credibly believed, in favour and support of his evil Governance. 
More particularly in the Historian unmasked by the same Author. Mirror, p. 9   
The Mirror tells us, That of Right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King, etc.  
And the Learned Hornius citys the Speculum Saxonicum, 
Hornii orbis imperans, p. 196.  of the like Name and Nature with our Mirror; the Author of which last, was of his own Name: The Saxon Mirror, as he says, was written before the Normans came hither.  
The Justices, or private Persons, says he out of the Speculum, neither ought nor can dispute of the Acts of Kings; yet the King has Superiors in ruling the People; 
Hornius, p. 196.  who ought to put a Bridle to him: And, Hornius says, the old Saxon Lawyers limit that Maxim, The King has no Peer, to wit, in exhibiting Justice; but in receiving Justice, they say, he is the least in his Kingdom.  
Tho Bracton seems to restrain this Rule to Cases wherein the King is Actor, in judicio suscipiendo si petat; Fleta, who takes it from Bracton, seems to correct the Copy, and has it si parcat, 
Fleta, lib. 1. cap. 17.  If he spare doing Justice; to which end, both affirm, that he was created and chosen King. And Bracton himself shows elsewhere, 
Bracton, l. 3. c. 9 p. 107.  that he means more, by the Reason which he assigns why the King ought to be the least in receiving Justice, Lest his Power should remain without Bridle. This for certain he sufficiently explains, 
Ibid.  when he says, That no Justices or private Persons may dispute of the King's Charters and Acts; 
Bracton, l. 2. c. 16. p. 34.  but Judgement must be given before the King himself (which must be meant of the King in Parliament, as appears by a Petition in Parliament 18 E. 1. 

Vid. Ryly, Plac. Parl. f. 20.  
Fleta supra, Superiores.  
So Mirror, p. 9 Ceux Compagnions sont ore appelles Comites, & in Latin Comitatus; where he takes in all that come up to Parliament from the Counties.   where Bracton's Rule is received.) But Bracton says, he has God for his Superior, also the Law by which he is made King, also his Court, that is to say, the Earls and Barons, for they are called Comites, being as it were Companions to the King; and he who has a Companion, has a Master: Therefore if the King acts without Bridle, they are bound to bridle him; and Bracton in one place says, In receiving Justice, the King is compared to the least of his Kingdom, without confining it to Cases where he is Actor.  
This puts a necessary Limitation to that Maxim, That the King can do no Wrong; that is, not be adjudged so by the Judge's Commissaries, or Commissioned Judges, 

Vid. Mirror, p. 209. He there says, Suitors are Judges ordinary; and 274. speaks of Counties, & les autres Suitors, having Jurisdiction in Causes which the King cannot determine by himself, or by his Judges.  
So Judge Crook's Argument in Hampden's Case, p. 59 Whatever is done to the Hurt or Wrong of the Subjects, and against the Laws of the Land, the Law imputeth that Honour and Justice to the King, whose Throne is established by Justice, that it is not done by the King, but it is done by some unsound and unjust Information, and therefore void, and not done by Prerogative.   which the Mirror uses in Contradistinction to Judges Ordinary, sitting by an Original Power; yet this does not in the least interfere with the Judicial Power of the High Court of Parliament; and it may be a Question, Whether that Maxim, as received in the Courts of Justice, is ever taken to reach farther than, either in relation to the Remedies which private Persons may there have, against personal Injuries from the King; as where 'tis said, The King cannot imprison any Man, because no Action of false Imprisonment will lie against him; or rather because of the ineffectualness in Law of his tortuous Acts.  
But what the Nation, or its Great Councils have thought of such Acts, will appear by a long Series of Judgements, from time to time past and executed upon some of their Kings.  
Long before the reputed Conquest, Sigibert King of the Westsaxons becoming intolerable by his insolent Actions, 

Chronica de Mailros, f. 137. Anno 756.  
Bromt. f. 770. Congregati sunt Proceres & Populus totius regni & eum providâ deliberatione à regno unanimi consensu omnium expellebant.   was expelled the Kingdom; and Bromton shows, that this was done in a judicial manner, by the unanimous Consent and Deliberation of the Peers and People; that is, in the Language of latter Ages, by Lords and Commons in full Parliament.  

Lambart's Pref. to Archaionomia Northumbrorum Imperii magnitudo ea fuit, quae nunc est Ehoracensis, Dunelmensis, Northumbriae, Cumbriae & Westmorlandiae Comitat. atque reliquam praeterea Lancastrensis Com. partem complectebantur. Chron. Mailros, f. 138. Anno 774. Sin Dunelm. 106. & 107. Consilio & consensu omnium, Regiae & Familiae ac principium destitutus societate, exilio Imperii mutavit Majestatem.  And eighteen Years after, Alcred, King of the Northanimbrians, that is, Northumberland, and other adjacent Counties, was banished, and divested of his Sovereignty, by the Counsel and Consent of all his Subjects. 
(a) Ib. f. 108. Anno 779. Mailros, Anno 794. f. 139. S. Dunelm. f. 113.  Five Years after this, their King Ethelred was driven from the Throne and Kingdom, for treacherously procuring the Death of three of his Great Men, Alwlf, Cynwlf, and Ecga. Within fifteen Years after this, the People having without Example called back Ethelred from Exile, slew him without any allowable Precedent, and set up in his stead Osbald a Nobleman, none of the Royal Stock; and he not answering their Expectation, they deposed him in twenty eight days.  


Milros, f. 141. Anno 806.  
Ibid. f. 143. Anno 866. degenerem. Ibid. 144, 872.   Twelve Years after they deposed their King Eardulf, and remained long without choosing any. Sixty Years after they deposed their King Osbrich, and chose Ella, who still swerved from the Ends of Government. Six Years after they expelled their King Egbert. For sixty nine Years the Kings and their People agreed, without coming to any Extremities; 
F. 148, 941. F. 148, 947.  but then they renounced the Allegiance sworn to King Edmond, and chose Aulaf King of Norway for their King. Aulaf had not reigned six Years, when they drove him away; and though they received him again, they soon cast him off again, and swore Allegiance to the English King Edred: Then they rejected him, and chose Egric a Dane, with whom their independent Monarchy expired, and turned into the Government of Earls.  
I would not be thought to mention those numerous Examples with the least approbation; 'tis certain, they argue great Levity in rejecting, or Folly in choosing. But if we are believed to receive many Laws and Customs from the Germans, from whom we are more remotely derived, much more may the English Monarchy be thought, to partake of the Customs of the contiguous Kingdoms which compose it; and by this frequent Practice the Members of it were sufficiently prepared, to understand that part of the Compact, whereby the Prince was obliged to suffer Right as well as his Subjects; 
Vid. Mirror sup. Leges S. Edw.  and that if he did not answer the End for which he had been chosen, he was to lose the Name of King.  
Indeed a very Learned Author, 
Discourse concerning the unreasonableness of a new Separation on the account of the Oaths, p. 15.  in a Treatise for the most part unanswerable, seems to set aside all the Precedents within the Kingdom of the Northumber's, as if that were of no consequence to any other part of England.  
I shall not, says he, meddle with the Kingdom of the Northumber's, which alone was originally elective, as appears by Matthew Westminster.  
The words to which he refers are these;  
Anno Gratiae 548, Regnum Northanhumbrorum exordium sumpsit. 
Math. West. f. 101.  Cum enim Proceres Anglorum magnis Laboribus & continuis patriam illam subjugassent. Idam Juvenem nobilissimum sibi unanimiter praefecerunt.  
In the Year of our Lord 548, 
Anno 548.  the Kingdom of the Northumber's began. For when the Great Men of England had, with much and continual Labour, subdued them, they chose for King Ida a most Noble Young Man.  
I cannot understand how the showing the Foundation of one Kingdom, in Election, is any Argument against the Original Electiveness of others within the same Island: Nay, primâ fancy, without more of one side or other, it gives ground to believe the others to have had the like Foundation: and this Quotation particularly, is so far from implying, that this was the only Kingdom, within the Isle, Originally Elective; that it supports the Authority of the Mirror, which informs us, that forty Princes at the beginning of the Monarchy chose one to reign over them: 
Mirror sup.  for this speaks not of the English, as then under one King, or more, in their respective Divisions, but under several Proceres, Great Men, or Princes; and that part of the Island seems to have been the first which chose a King: but I know not by what Rule of Logic, it can be gathered from this Passage in Matthew Westminster, that other Kingdoms which chose their King afterwards, were not equally Elective in their Foundation, though not so ancient, or the time of the Commencement not so easily to be shown. 
Vid. inf. Vid. Falkner, p. 329. This called a Synod of all England. 827.548.279. Malmsbury, f. 13.  Certain it is that the Council of Calcuth in the Year 789, which provides for the Election of Kings, was Conventus Pananglicus; and if it took not in the Northumbrian Kingdom, as having been disjoined from the rest till the Reign of Egbert, An. 827, being 279 Years, it is to be presumed that all England besides was included. Nay, this very Author produces Authorities, which prove other Kingdoms here, though their beginning is not so well known, to have been as truly Elective as this which he waves.  
1. He shows, 
Page 14.  that Beornred being set aside by a Convention of the Nobility and People of the Kingdom of Mercia, Offa was chosen King, who was of the Royal Stem, but not the next Heir: And so, says he, 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.  

Discourse sup. p. 15.  2. He argues, that if by the Fundamental Constitution, Allegiance were indispensably due to the next rightful Heir in this Monarchy. Athelstan, whom he shows not to have stood next in the ordinary course of Descent, would not have been chosen Magno Consensu Optimatum; and gives several other Instances, wherein he observes that Reason of State, 
Page 17.  and the public Interest still overruled this matter.  
3. He shows that Reason of State, and the Public Interest overruled, not only for Elections, when the Throne was free from a Possessor, but even for the removing Kings in Possession.  

P. 13. An. 454. Vid. sup. Anno. 756. P. 14. An. 758. An. 854, 867. P. 16. An. 957.  For which he citys the Cases of Vortigern under the British Government. Sigebert King of the West Saxons. Beornred of Mercia, . Aetheluph King of the West Saxons, and the eldest Son of Edmund, who was set aside because in Commisso regimine insipienter egit," He acted foolishly in the Government committed to him.  
After all, he contends that ours is not only a true Original Monarchy, but Hereditary, where the Right of Succession and public Good did not interfere: and thus much I readily grant him, but in restraining this to Cases where there was not a natural or moral Incapacity, he plainly confines Reason of State, and the Public Good, to narrower Limits than before he allowed; for if these were to overrule, 
Page 17.  as he before observed, than the Question upon Competitions for the Crown, between Persons of the Royal Family was barely, which of the Competitors, all Circumstances being considered, was most likely to advance the Public Interest, of which the People were to be Judges: whereas according to his Limitation, they were bound to take the Person who was next in the Line, if he lay not under a natural or moral Incapacity, directly contrary to what he shows out of Malmsbury of the West Saxon Kingdom, in which, after Ina, no Lineal Succession was observed. When Athelstan, 
Page 15.  of his own showing was chosen King, were his Brothers Edward and Edwin under any natural or moral Incapacity? Or, were the Sons of Edmond Iron-side either way uncapable when Edward the Confessor was elected? For Confirmation of what himself produces upon this Head, I take leave to add one Authority from the Writer of the Life of King Alfred.  

Vita Aelfredi lib. 1. f. 19  Many Examples, says he, are found among the Saxon Kings, of a Brother's succeeding to the Brother before his Son, especially if the Son had any Impediment from the Infirmity of his Age, or other Ineptitude for governing: Nay, OFTEN BY REASON OF LESS MERIT.  
I must admit, that for the deposing one actually invested with the Regal Authority, the Author's Limitations were to be observed, though they were not strictly kept to; and I cannot but think that this Author confounds himself for want of this Distinction.  
Either the frequent Examples of setting Kings aside, whom the Nation judged uncapable of the Government, through some natural or moral Defect, or Excess, or rather the continual Engagements in war with Foreigners, had such Effect, that from the time of King Edwin, Nephew to the English Monarch Edred, who was driven out of the Kingdom, Anno 957, to the time of W. 1. being 109 Years, I find no like Instance but one, Anno 1014, 52 Years before the supposed Conquest, which was the case of Etheldred, who abdicated the Government and went into Normandy, from whence the Nation agreed to receive him again upon Condition, si vel rectiùs gubernaret, 
Flor. Wigorn. An. 1014.  vel mitiùs eos tractare vellet, if he would either govern more according to Law, or treat them more mildly. Upon which he promised omnia Rege & Populo digna, All things which become a King to his People.  
For the most part during the Saxon Government, a King was but a more splendid General; nor could he hope to maintain his Dignity, but by hardy Actions, and tender Usage of his People.  
Even Will. 1. notwithstanding the Pretence made in after-Ages of his having broken the English Spirit, 
Vid. second Part.  was not only obliged to keep within Bounds, as the following Discourse will evince, but to renew his Compact with the People more than once.  
Their extraordinary Power had slept very few Years after the Death of this reputed Conqueror: 
Ed. Lond. Mat. Par. f. 19 Rex Willielmus videns omnes pene regni, proceres una rabie conspiratos, Anglos fortitudine & probitate insignes, faciles Leges & tributorum lenamen liberasque illis venationem promittendo, sibi primo devinxit.  for the Sickness of his Son W. 2. giving the English Nobility an opportunity of consulting together, they, almost as one Man, were for declaring against him, which he timely prevented by fair Promises to them. Nay, though his Brother H. 1. came in with the universal Applause of the Nation, yet a great part of his Navy deserted him, and declared for his Brother Robert; not because he was the elder Brother, but because Henry was unmindful of that Contract, which gained him the Preference, Quia Rex jam tyrannazaverit, as the Historian has it," because the King proved a Tyrant. King Stephen, his immediate Successor, after Allegiance sworn to him, had it a while withdrawn for Maud the Empress, Daughter to H. 1. but the People soon returned to it again, rejecting her who was nighest in Blood, because she denied them the benefit of St. Edward's Laws.  
And, 
Discourse, p. 21.  as the Author of the learned Discourse about the New Separation observes, out of Manuscript written by Fortescue, Chancellor to H. 6. Maud was set aside, and the Reversion of the Crown entailed on her Son, although she was living, and this was done in Parliament, Communi Consensu Procerum, & Communitatis Regni Angliae;" By the common Consent of the Peers, and Commons of" England: for which, Fortescue, whose Skill and Integrity no Man can justly question, appeals not only to the Chronicles, but to the Proceed of Parliament. However this Author will have it, that the Commons were not there, but as represented by the Barons, being misled by the general Expressions of the Historians, whose Authority he opposes to the Rolls of Parliament. Yet for the purpose here, it is enough, that this was done by a Parliament of that Time; that the Agreement then made was confirmed by the Oaths of the Great Men; and that the Public Good, which was the Foundation of the Agreement, was thought to be the measure of the Obligation of such Oaths.  
Hen. 2. came to the Crown by virtue of an Agreement with King Stephen, to which the Nation consented: for aught appears, he was a strict Observer of the Constitution of the Government; but being rendered uneasy by the Refractoriness of the Clergy, and desirous that his Son should enjoy that Kingdom, which he found a desirable Possession to them who would keep the Laws; he took his Son into a Partnership of the Care and Dignity: this occasioned a Competition for Power, which the Admirers of the traitorous St. Becket improved into a War, which divided the People; 
Archbishop Parker's Antiquitates Britanicae f. 130. saluâ fide Regi patri quamdiu viveret, ac regno praeesse vellet.  but this, being between two Kings, both in Possession, I should not look on as any Precedent to our Point, did I not find that the Allegiance sworn to the Son, at the receiving him to the Succession, was with a Salvo, for that which was due to his Father, as long as he should live, or think fit to reign.   

CHAP. V.  
The Baron's 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 choose 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 fight under his Banner against King John, considered.  
THE Power lodged in the People for the public Good to be sure was roused and justified by the Tyrannical Reign of King John, who, though he had effectually abdicated, or unking'd himself, by his giving up his Crown, as much as in him lay, to hold in Vassalage 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 engaged not out of any Affectation of Change, but merely 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 contained 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 than refused 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 desired Effect, in obtaining a Confirmation of their Liberties: which though 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 absolved the King, and encouraged 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 dissuaded 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, spoke 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 kill 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, etc.  
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 although he could not give the Crown of England to any one without his Barons, he might demise it, or divest himself of it, which as soon as he resigned, he ceased to be King, and the Kingdom was vacant without a King.  
Therefore the vacant Kingdom ought not to have been administered 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, etc.  By reason of which the Barons chose Lord Lewis upon the account of his Wife, whose Mother, the Queen of Castille, 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 signed 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 though 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 Privilege 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 looked 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 obliged to quit the Kingdom to Hen. 3.  
Object. This would lead me to the particular Consideration of the Baron's Wars with H. 3. were it not needful first to remove an Objection against their Proceed with his Father, which though 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 them.  
Had English Men at that time known their Duty to their Prince, 
Homilies, the sixth Sermon against wilful Rebellion, last Ed. 383.  set forth in God's holy Word, would English Subjects have sent for, and received the Dauphin of France, with a great Army of Frenchmen into the Realm of England? would they have sworn Fidelity to the Dauphin of France, breaking their Oath of Fidelity to their natural Lord the King of England? and have stood under the Dauphin's Banner displayed against the King of England?  
To which I answer;  
1. That our Church pretends not to Infallibility, nor will it be any Imputation upon it to have erred in relation to Fact, or the Constitution of the Government, without regard to which it is not to be supposed, that the Fathers of our Church would apply the Duty of Subjects set forth in God's Word. 
Pseudomartyr, Chap. 6. p. 172.  And I doubt not but Dr. Donne Dean of St. Paul's in the time of C. 1. very well understood the Scriptures and our Homilies, and yet he tells us, that some ancient Greek States are called Laconica, because they were shortened and limited to certain Laws. And some States in our time seem to have conditional and provisional Princes; between whom and Subjects there are mutual and reciprocal Obligations, which if one side break, they fall on the other. This he supposes to be, wherever there is not a Pambasilia in the hands of one Man; that is, as he explains it, that Sovereignty, which is a Power available to the main ends. One of the main ends of Government must needs be making Laws, and levying Taxes, if that be not vested in any single Person, he has not the Pambasilia; and if he have not the Pambasilia, according to him he is but a conditional or provisional Prince; and if he be a conditional Prince, the Obligations between him and his Subjects are mutual and reciprocal, and the Subjects may take the advantage of a failure on the Prince's side.  

History, p. 40.  This being taken from an Authority, cited in the History of Passive Obedience since the Reformation, shows what Limitations may be put upon those Passages in the Homilies, which seem, like the late King's Declaration to Scotland, to require Obedience without reserve.  

Vid. sup. c. 2.  Mr. Falkner, as appears above, had carried the Point as high as the Homilies have done; and yet he admits, that if those extraordinary Cases happen, which, as he contends, ought not to be supposed, in such Cases Subjects may resist, notwithstanding Oaths for Passive Obedience, without any such Exception in the words.  
2. Whatever Obligation may be upon the Clergy from their Assent and Consent, none is given by the Laity, and they may do all that is requisite to make them true Members of the Church of England, without being concluded by the Opinion of Churchmen about Civil Government.  
3. Even Clergymen look upon the very Articles but as Articles of Peace, that they may not disturb the Government, by public maintaining what is contrary to them: but surely cannot think that they are obliged to disturb the Government, for the sake of any matter, merely as it is contained in the Articles, or Homilies.  
4. The Doctrinal matter contained in the Homily, That a natural Lord is not to be resisted, may be true; and yet this may not in the least condemn resisting an unnatural Tyrant: And the Application of their Doctrine to the Case of inviting and joining with Lewis, may have been grounded upon a false State of the fact, as if King John had done nothing whereby he truly ceased to be King. And that they went upon a false state of the Fact, is the rather to be believed, because Archbishop Parker, 
Antiquitates Brit. f. 148.  by whom we may well gather the sense of these Fathers, tho' he admits King John to have been an ill Man, and to have joined with the King of France against his Natural Lord and King R. 1. yet will have it, that he was justifiable in his Actions against his Rebellious Subjects, and excuses his very Abdication, in resigning his Crown to the Pope, as an act of mere necessity, being compelled to it by the Artifice and Turbulence of the Clergy, 
Ib. f. 131. Eodem annno Alexander, Papa Turonense Concilium celebravit, cui Arch. & Prelati Angliae Regis permissione & licentiâ interfuerunt, ac à dex●ris Papae Thomas cum suis suffraganeis, a sinistris verò Ebor. Arch. cum solo Dunelm Episcopo sederunt ibi Capto de Ecclesiasticâ quadam super regiam libertate pertinaciter retinendâ concilio A Papâ ocyus dimissi & in Angliam reversi sunt. Post hoc Turonense concilium cum omnibus pene in rebus Clerus se a populo disjunxisset, cepit in Angliâ de Regni atque sacerdotii authoritate atque vi multo varioque sermone disceptari, factaque perturbatio gravis de prerogatiuâ atque privilegiis ordinis Clericalis.  which he observes to have carried on a separate Interest divided from the Nation ever since the Council of Tours in the year 1163.  
But Stephen Archbishop of Canterbury, in King John's time, is to be presumed better acquainted with the Justice of the Arms on either side, than Archbishop Parker, or the Composers of the Homilies; upon that King's gathering Forces against his Barons, the Archbishop tells him, that he would break the Oath that he took at his Absolution, si absque judicio Curiae suae contra quempiam bella moveret, 
Mat. Par. f. 137.  if he waged War against any body, without the judgement of his Court; referring, it seems, to that part of his Oath, wherein he Swore, That" He would judge all his Men according to the just judgement of his Court. Nay farther yet, 
Mat. Par. f. 268.  King John had brought over Forces against his Barons from Poictou, Gascony and Flanders, before they had recourse to any Foreigners.  
5. The Case of Swearing Allegiance to Lewis, cannot be brought as a parallel to Swearing Allegiance to our present King and Queen; because Lewis was never received by the whole Collective or Representative Body of the Nation, the last of which has received and declared for King William and Queen Mary, upon a solemn Judgement given by them the proper Judges of the Fact, That the late King had broken the Original Contract, and thereby ceased to be King.   

CHAP. VI  
The Baron's Wars in the time of H. 3. particularly considered. H. 3. Crowned by a Faction. Had not 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 entered 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 Objection against those Wars, answered. The Answer confirmed by a full instance, in the time of E. 1.  
TO proceed to the Reign of H. 3. who was Crowned by a Faction at Gloucester, while Lewis was in possession of London, the Metropolis of the Kingdom; That he came not to the Crown as Successor in an Hereditary Monarchy, but upon a plain Election and Compact, with part of the Nation at least, in the Name of the rest who would come in under those terms, may be proved beyond contradiction: For tho' in the Language of the Homilies, King John were Natural Lord to the Subjects of England; yet as Arthur, who was the next in the Line to King John's Predecessor, had the Right of Blood, 
Mat. Par. f. 278.  as far as that could operate, before King John, which he insisted on in the Fourth of that King's Reign, even while he was his Prisoner; the same right had Eleanor, Arthur's Sister, all the remainder of King John's time, and for some years during the Reign of H. 3.  
2. The Father came to the Crown by virtue of a Free Election of the People, as the Archbishop of Canterbury told him at his Coronation; wherefore his Election could not invest him with more than a Personal Right, unless more were expressed at the time. But the Archbishop Hubert, 
Mat. Par. f. 264. 1 Johan. Audite universi noverint discretio vestra quod nullus praevia ratione alii succedere habet in regnum nisi ab universitate regni unanimiter invocatâ spiritus gratiâ Electus, & secundum morum suorum eminentiam praeelectus.  who spoke in the name of the Community, was so far from giving the least Umbrage to a Right that might extend to Heirs, that he affirmed, That no man is Entitled to succeed to the Crown upon any other account, previous to the unanimous choice of the Kingdom, except only the eminence of his Virtue. And being afterwards asked why he took such freedom of Speech? He declared, That he foresaw, and was assured by Ancient Prophecies, That King John would corrupt the Kingdom and Crown of England, and precipitate it into great confusion: And he asserted, That he ought to be minded of his coming to the Crown by 
* Ne haberet liberas hab●nas hoc faciendi.  Election, not by Hereditary Succession, lest he should take a liberty to act as he feared.  
3. Since therefore what the Archbishop feared, came to pass; and that Contract, in virtue of which King John assumed the Royal Sceptre, was notoriously broken, How can it be thought that a Right devolved upon his Son H. 3. especially considering the interruption that was made by a Choice of Lewis, tho' not Universal?  
I must confess, there is no Evidence occurring to me, that Lewis was ever Crowned here; yet considering that the Coronation, as is agreed by most, is but a Ceremony, the bare want of it would not the less argue a breach in the Succession, since the sounder part of the people took the benefit of that Forfeiture which King John manifestly made: and if nothing but an Universal Concurrence in this, could justify withdrawing Allegiance from him, than it is hardly possible for any resisting of Tyranny to be lawful at the beginning; and he who is forwardest in the Cause of his Country, must be always a Criminal.  
But being there is a deep silence as to Lewis his Coronation, 
Mat. Par. Illico Coronandus.  though he was promised by the Barons at London to be Crowned immediately upon his coming over; I take the reason of the silence in this matter to be, That if he were Crowned in form, it was by the Laity alone, because the Pope was fast to the side of King John, and his Son; and Lewis lay under a Papal Sentence of Excommunication, so that the Clergy durst not Communicate with him in those Acts of Religious Worship, which accompany Coronations. But these Ceremonies being to be performed by Clergymen, 'tis most probable, that the Laity contented themselves with the Substance, and left those Ceremonies for a more convenient time. But that Lewis was in Possession of the Crown and the Regalia, is to be believed, as London, with the Tower, where they used to be lodged, had not only been in the Possession of his Friends from the beginning, but held so till the second Year after H. had been Crowned, as it is to be presumed, with a Crown made for that purpose. Whether Lewis were Crowned or no, he was as fully received by them that had withdrawn their Allegiance from King John, as if he had been Crowned; and reciprocal Oaths passed between them. And he was so far looked on as King, 
Mat. Par.  that Alexander King of Scots swore Homage to him, for the Lands he held of the Crown of England.  
But certain it is, as the Circumstances evince, that there were at least three Express and Binding Contracts which H. 3. entered into with his People, either beyond, or rather explanatory of what is included in the Coronation-Oath, and which H. 3. was bound to observe, as he would be King of England; and these, besides several Confirmations of the Great Charter, purchased with the People's Money; and one of the Grants of Aid so particularly Conditional, that Treasurers for it were appointed in Parliament, and the Money was to be returned, upon the King's not performing the Conditions of the Grant.  
1. The First Contract which I shall observe, was that which Lewis, perhaps induced to it by the Money which he borrowed of the Londoners, obliged H. to, before he would quit his Pretensions: So that one was plainly the Condition of the other; and as the Civilians have it, ran into the other by way of Mutual Consideration. 
Vid. inf.   
Lewis, for the reasons which I before touched upon, finding his Interest daily decline, thought good to come to terms with Henry, whereby Lewis obliged himself by Oath to withdraw from England, 
Mat. Par. fol. 400.  with all his Followers, never to return; and to use his endeavours, that his Father might restore all the Rights of the Crown of England, which he had seized on beyond Sea. In consideration of which, Henry, the Earl Marshal of England, and the Pope's Legate, 
F. 423. N a. Discord not Rebellion, f. 431.  swore to the restoring to the Barons of England and all others, all their Rights and Liberties for which there had been Discord between King John and his Barons. This Agreement with Lewis, the Great Council of the Nation afterwards insisted on, 7ᵒ H. 3. when they urged a Confirmation of the Great Charter, which they obtained not, till 9ᵒ of that King.  
2. The Second particular Contract, was that of which the Great Council or Parliament 28ᵒ H. 3. mind him, and of which they then after much struggling, purchased a Confirmation. According to this, among other things, 
28 H. 3. referring to 20. f. 864.  Four Great Men were to be chosen by Common Consent, as Guardians of the Kingdom, to be the standing Council about the King, with a very large Trust reposed in them. The Chancellor, Treasurer, and Chief Justice, were to be chosen by the like Consent; and neither any of the Council, nor other Officers were to be amoved, but by Order of the Majority of the Council, or in full Parliament. This they insist on as sworn at a Coronation of that King, Edmund Archbishop of Canterbury being Sponsor for the King's Performance.  
This Contract was certainly 20ᵒ H. 3. at his Third Coronation, when he was Crowned with his Queen newly married, and had the Curtain carried before him, to admonish him of the Consequence of a Breach. 
Vid. inf.   
That this was 20º, when he was Thirty years old, and in as flourishing a condition, as at any time of his Reign, till the chance of War had subjected his Barons to a more imperious Sway, appears in that the Ceremonies of his first Coronation were performed by the Bishop of Winchester, and Bath and Wells: The second by Archbishop Stephen, Ao 1220. in the third year after Lewis his departure, which it seems, was the first time that he was publicly received for King with an universal consent; special notice being taken, that the Coronation was in the presence of the Clergy and People of the whole Kingdom.  
Besides, Edmund was not Consecrated till the year 1234. 18ᵒ H. 3. and the Historian is express, That Archbishop Edmund performed the Ceremonies of the Coronation 20ᵒ.  
There is farther Evidence, that the Charter mentioned 28ᵒ H. 3. was granted 20º; for it appears, that the great Officers were appointed 20º, according to the Charter which the Parliament, 28º, insist on, as granted at a Coronation where Archbishop Edmund was present, and undertook for the King's performance.  

Mat. Par. f. 563 Officium Cancellariae Angliae & omnia officia ordinata sunt, quae Regia sunt, & Assize in scaccario unde Cancellarius, Camerarius, Mareschallus, Constabularius, sibi ibidem sedem sumpserunt, ratione Officii sicut Barones omnes in sui Creatione Fundamentum in Civitate Londinensi unde quilibet eorum suum ibi locum sortitur. Vid. Flet. lib. 2. cap. 26.  Matthew Paris writing of the Twentieth, says, The Office of the Chancery of England, and all Offices belonging to the Regal State, and Sittings in the Exchequer, were settled. Whereupon the Chancellor, Chamberlain, Marshal, Constable, took their Seats there by reason of their Offices, as all Barons at their Creation had their Foundation in the City of London.  

Vid. inf. 2d part.  This Right of Places at London, in which 'tis plain Westminster was then included, seems to imply a Reason why the Acts of the Barons at London, past both at home and abroad, for the Acts of the Baronage of the Kingdom. Hence the King of France, Lewis his Father, looked upon their Invitation of his Son, as the Binding Act of all; accordingly he both demanded and had Four and twenty de Nobilioribus Regni, 
Mat. Par. f. 373 Implorantes Patrem ut filium mitteret in Angliâ regnaturum & Filium ut veniret illico Coronandus.  ' of the Chief Nobility of the Kingdom, as Hostages for their performing what they had promised his Son, which was the Crowning him King of England.  
3. The Third particular Contract was contained in the Provisions at Oxford, 42ᵒ H. 3. which Provisions are Printed at large in the Annals of Burton, and referred to in many Records now in the Tower; 
Vid. annal Burtonenses. f. 412. Rot. Par. 42. H. 3. m. 3. Mat. Par.  but the Record of the Provisions has been embezzled since Mr. Selden's time, whose Abridgement of them I have seen. There had been a Parliament that year at London met on Hoke-Tuesday, a fortnight after Easter: at that Parliament the King demanded Money, the Parliament a redress of Grievances; but nothing being concluded on, the Parliament was Adjourned to Oxford; the Barons having promised to give the King Supplies if He would Reform the State of the Kingdom; which condition the King accepted of, promising that the State of the Kingdom should be Reformed by Twelve faithful persons of his Council, chosen in that Parliament at London, and Twelve others to be chosen by the Barons.  
The Parliament meeting at Oxford according to the Adjournment, Twelve were chosen by the Earls and Barons, to be added to the Twelve before chosen of Counsel with the King: These Twenty four chose Four of their own Number, who named Fifteen to be a standing Council to the King. And among the Regulations, besides the choice of Officers, and the Custody of the King's Castles, it was provided, That there should be Three Parliaments every year, the first at the Octaves of St. Michael, the second in Candlemas week, 
Ke Treis' Parlements saint par. An.  the third the first day of June. To these Parliaments, Twelve prodes homes, honest legal men, were to come, for sparing the cost of the Commons; and at other times when the King sent for them, upon occasion to treat of the business of the King and the Kingdom: and the Community were to hold for established what these Twelve should do.  
These might seem not to have been Parliaments to make Laws, but Ordinances, or Provisions in the Intervals, and for sparing the trouble of more numerous Assemblies; that they were but such as were known in after days by the name of Great Councils, distinguished from Parliaments, would seem by a Record of the time, which is a Commission to Four Knights, chosen according to the Provisions then made, 
42 H. 3. m. 3. De Inquisitionibus faciendis per singulos Comitatus. Rex Aluredo de Lancaster, Joan. de Rochfort, Joan. de Stroda, Willo. de Raymes, de Com. Dors. cum nuper in PARLIAMENTO nostro apud Oxon. Communiter fuerit ordinatum, etc. Et inquisit. inde fact. sub sigillis vestris & sigillis eorum per quos facta fuerint, deferatis apud Westm. in Octavis S ●. Mich. in propriis personis vestris liberand. Consilio nostro, ib.  by Juries duly returned, to inquire into all Abuses, Enormities, and Transgressions within the County of Dorset, in the same form with others in the respective Counties throughout England. The Inquisitions were to be returned at the Octaves of St. Michael, the first Parliament, appointed by those Provisions; and this was at that very time to be brought to Westminster, as one would think, to be delivered into Parliament; but it is in the Record said only, To be delivered to our Council.  
And I find that Writs issued out after the Parliament at Oxford, 
Rot. Par. 42 H. 3. m. 1. Nus volens & otroiens kece ke nostre Consel & la greignure party de eus ki est esluz par nus & la commune de nostre Roiaume a fet ou fera a honir de dieu & nostre foi & pur le profit de nostre Roiame sicum il ordenera seit ferm & establi in touts choses a tuz jourz. Commandous a tuz noz faus & leaus en la fei kil nous devient kil fermement teignent & jurent a tenir & meintenir les establisments que sunt fet, ou sunt a fere par la dit Conseil.  declaring, That all things provided or to be provided by the King's Council, and the greater part of them, who were chosen by the King, and the Community of his Realm, should be held firm and established, and requiring all men to swear to hold and maintain, the Establishments made, or to be made by the said Council.  

Vid. Flet. Habet Rex. Consilium suum in Parliamentis, etc.  But upon farther consideration, I find that Council was the King's Council in Parliament, and those Knights who were the Inquisitors for the Counties, were not only obliged to come to deliver in their Inquisitions, but their Consent was requisite to what the King should ordain by his Council in Parliament, which then were a select number chosen as abovesaid, 
Claus. 42. H. 3. m. 1. dorso. Quia Robertus Cambhen & socii sui de Comitatu Northumb. de precepto Regis venerunt ad Regem apud West. etc. pro quibusdam negotiis Communitatem totius Communitatis praed. tangentibus. Mandatum est. Quod prefatis quatuor militibus de Communitate praed. rationabiles expensas suas in eundo & redeundo habere faciat. In another of the same time to Huntingtonshire, they are said to have appeared coram Consilio nostro apud Westm. in Parliamento. Vide of this at large, in the 2 d part.  since, as it should seem, all the Lords. Certain it is, there are Writs upon Record for the Expenses of those Four Knights for every County, as since there have been for Two.  
The observing of the  Contracts, will give light to that Judgement which may by us at this distance be passed upon the Wars between H. 3. and his Barons; and not to mention any small disturbances, and the Violations of the Rights of particular men, and what they did in defence of them; I find H. 3. four times opposed by the People in Arms, in Three Wars, and a Fourth rising, which wanted only Numbers on the King's side, to make it a War; all managed under Heads formally chosen, or seeming to have claim to the Conduct, by virtue of their Offices.  
1. The first was under Lewis the Dauphin of France, whom the Barons at London had chosen for King; in this there was one King against another, both standing in truth upon the same title, the choice of the People; Lewis had the greater part of the Chief Nobility on his side, how much soever the Pope's Thunder might have frighted the more ignorant Vulgar, and prevailed upon their interested Guides.  
2. The Second was under the Conduct of the Earl of Chester, named first, as 'tis to be supposed, for the reason before shown.  
The occasion of the Insurrection began Ao. 1223. 7ᵒ. of that King, when he being Seventeen years old, obtained a Bull from the Pope, declaring him of full Age, and enabling him to order the Affairs of the Kingdom, chief by the Counsel of his Domestics, that is, such as he should choose, turning out those Officers which either had Hereditary Rights, or had been chosen in Parliament, according to what was insisted on at his Coronation 20ᵒ. as matter of Right; wherefore his assuming all the Power into his own hands, and countenancing the Exorbitances of Hubert de Burgh, 
Mat. Par. Addit.  Chief Justice of England, (who indeed, as appears upon his Defence afterwards, when he came to be impeached, had been chosen in one of King John's Parliaments, but was continued in by H. 3. against the sense of his own Parliament) sowed the Seeds of Discontent, though they did not break out into a general Rising, but all seemed to be quieted by his Confirming the Great Charter. 
Ao. 1224.   
Yet soon after, when he was in truth of full Age, he was resolved to act as one out of Wardship; 
11 H. 3.  and in a Parliament at Oxford declared himself free, and by the advice of Hubert de Burgh, cancelled the Great Charter of the Liberties of the Forest, as of no validity, because granted in his minority; and forced many who had Ancient Grants of Liberties, to purchase them anew, at such Rates as the Chief Justice imposed. Besides Hubert had advised the King to act Arbitrarily with his own Brother, Richard Duke of Cornwall, which drove him to shelter himself under the Publick-Cause; and glad were the Great Men to find his resentment contribute to such a general demand of Justice, 
Mat. Par.  as forced the King to compliance in a Parliament at Northampton.  
3. But by the Seventeenth of H. 3. Peter, Bishop of Winchester, 

An. 1233.  
Mat. Par. f. 413. Adhuc sub custodiam Petri Winton.   who had succeeded to William Earl Marshal, in the custody of the King during his minority, having been supplanted by Hubert the Chief Justice, at last put the Dice upon the less subtle Layman, and resolving not to fall again for want of flattering his Prince, advised him, in order to become Absolute, to remove his Natural Subjects from the Great Offices, and put Foreigners in their Places; who were brought over in great numbers, and oppressed and plundered the Nobility upon false accusations and pretences, seized their Castles, and enjoyed the Wardships of their Children.  
This occasioned a general insurrection under Richard Earl Marshal, who, as a Roman Tribune of the people, went to the King, and in their name demanded a redress of Grievances; but the Bishop of Winchester having given an haughty answer, justifying the King's calling over what Strangers he thought fit, to reduce his Proud and Rebellious Subjects, as he called them, to due obedience; The Marshal, and the rest of the Great Men who were Witnesses to that insolence, Swore to stand by one another to the last extremity, in the Cause of their Country: But the Earl of Chester, another Tribune here, sold his Country for a Sum of Money. The Marshal finding himself deserted, was obliged to have recourse to Leolin Prince of Wales for aid. Upon this the King Proclaimed him Traitor: 
9ᵒ Octob. Ao. 1233.  But in a Parliament held at Westminster, at the latter end of that year, tho' the Earl Marshal was absent, and in Arms, the Parliament advised the King not to Banish, Spoil, or Destroy his Subjects without Legal Process; nor to call them Traitors, who endeavoured the Peace of the Kingdom, 
Mat. Par. last Ed. f. 388.  and by whose Counsels the Government ought to be managed.  
Which was a full justification of the Arms taken by the Marshal. Nay, the Bishops proceeded so far, as to Excommunicate the Bishop of Winchester, and others the King's Ministers, and to lay upon them the imputation of disturbing the Peace of the Kingdom.  
The Marshal carried all before him with universal applause. The Bp. of Winchester and his Accomplices were punished in a Parliament held at Candlemas. The King having sent to treat of Peace with the Marshal and Prince Leolin, the evil Counsellors, which were the Marshals chief 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 adhered 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 giveth him to understand, That before that, he had restored the Lands to all people who had been disseized by occasion of the War between him and the Earl Marshal, where 'tis far from being called 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 Counselors, set to Letters, which encouraged the Treachery against him, and pronounced him a Traitor: 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 Traitor; 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 obtained 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 Basin 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 Cowardice 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 terror 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, etc.  he confessed to him, That he feared 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 secured, 
Fol. 1314.  went beyond Sea; upon which, Richard the King's Brother prepared 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 obliged 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 Cornwall, will be faithful and diligent, to reform the Kingdom of England with you, hitherto too much deformed 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, obtained 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 lie in the King's directing inquiries of misdemeanours to be judged of in the Countries: when according to what was then Enacted, the Inquisitions were to be returned before the Parliament, or at least such Council as was chosen in a Parliament.  
But the King having procured 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 die 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-numbered, and that the Lords were resolved 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 forced 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 compelled the Citizens to swear to be true to him, without regard to the terms before settled, and raised 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 prevailed upon to consent, that he should choose one, and the Barons another, to arbitrate their differences, the Arbitrators having power to choose an Umpire; 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 joined with the Barons, and they resolved together to drive away all the evil Counsellors; which the King perceiving, again betook himself to the Tower: But an agreement being made with some of the Barons by the Queen's mediation, the King having left the Tower in the Custody of one in whom he confided, went a progress, and found his Barons very quiet and peaceable; but he soon discovered that he was resolved to act without regard to the Provisions at Oxford: Violently seized several Castles, and coming to Winchester, displaced the Chief Justice and Chancellor which had been constituted by the Baronage; 
F. 1335.  the Barons met him at Winchester with a considerable Force, upon which the King hastens again to the Tower of London. The Barons, one would have thought, were now in a fair way of securing the performance of the last Contract made at Oxford; but now the Clergy had their Game to play, and acted it like Men who knew how to manage the Nation against its interest; they keeping a correspondence with the Clergy of France, were Authors of advice to the Barons, That all things in difference should be referred to the Determination of the French King; no doubt, making the Barons believe, that they had assurance of that King's good Wishes for the Prosperity of England. Both the King and Barons agreed upon the reference; upon which, as was to be expected, the French King gave Sentence for the King against the Barons; and for annulling the Statutes at Oxford, with all Provisions, Ordinances, and Obligations thereunto belonging. With this Exception, that he intended not by that Sentence, in the least to derogate from the Ancient Charter of King John, granted to the Kingdom of England.  

Qui habebant sensus exercitatos.  Which Exception, says the Historian, obliged the Earl of Leicester, and others of sound Judgements, to resolve firmly to keep the Statutes of Oxford, which were founded upon that Charter.  
And Matthew Paris condemns those as guilty of Perjury, who upon this, 
A fidelitate Comitis Leicestriae.  receded from their Faith to the Earl of Leicester, who fought for Justice. He grew so strong, and so successful, that the King came again to Terms with him, and with the other Barons; the Terms were these. 
Mat. Par. f. 1327.  That Henry his Brother's Son should be delivered out of Prison. That all the King's Castles throughout England, should be put into the Custody of the Barons. That the Provisions of Oxford should be inviolably observed. That all Foreigners shall departed the Kingdom within a certain time, excepting only them, whose stay should be permitted by unanimous Consent, as being faithful to the Kingdom.  

Mat. Par.  But notwithstanding all Pacts, Promises, and Oaths, the King sends to have Windsor-Castle besieged, but was disappointed by the Earl of Leicester.  
After this, a Parliament met at London, in which several deserted the Earl, and adhered to the King, so that he seemed the strongest. The Barons writ him a Submissive Letter, declaring, That they had no evil Intentions against his Person, but complain of his Counsellors. The King in his Answer justifies his Counsellors, and says, their Enemies are his. The Barons on the King's side, send a defiance to the others, and particularly to the Earl of Liecester, and to Gilbert de Clare, Earl of Gloucester and Hereford, undertaking to prove them Traitors in the King's Court. Which Trial the Barons thought they then had Reason to decline; but the Barons offer the King 30000 l. for his Damage sustained by the War, 
1329.  provided the Statute of Oxford may be observed; but their Proposals not being accepted, they came to a pitched Battle at Lewis, wherein the King was totally routed, and taken Prisoner, and his Son Edward soon after yielded himself. Upon which followed a form of Peace solemnly sworn to, while the King and his Son were in Prison; 
Pat. 48. H. 3. m. 6. dors.  but the Son making his Escape, took the Advantage of a Difference between the Earls of Leicester and Gloucester, 
Vide Cave, de Scriptoribus Eccles. f. 716. His Character of that Bp. who animated the Barons. Vir erat, ut pietatem, vitae Sanctimoniam, reliquasque virtutes Christiano Praesule dignas praetermittam, ingentis animi, acris ingenii, in re literariâ quantum ea ferebant tempora, ad summum pene apicem evectus, totum encyclopediae circulum emensus, in literis sacris pariter, & prophanis, etc.  and overpowering Montfort, gained an entire Victory at Evesham, by the Death of that Earl; who as Matthew Paris' Continuator tells us, laid out himself for the Relief of the Poor, the Assertion of Justice, and the Right of the Kingdom, and was incited to it by the Famous Grosthead, Bishop of Lincoln, who always affirmed, that they who died in that Cause, would be Martyrs.  
The King being victorious, no wonder that a Parliament called immediately upon it at Winchester, condemned the Conquered for Rebels; but it is evident, that more Parliaments justified such as then were Rebels for being beaten; 
Falkner's Christian Loyalty, p. 349.  and methinks Mr. Falkner does not argue with his usual fairness, when he urges the unfortunate conclusion of the Baron's Wars in the later end of H. 3. as sufficient evidence, that if we look into the Records of the former ages, we may thence discern that no Subjects whatsoever of this Realm had, under any pretence, an authority to bear arms against the King.  
The Dictum de Kenelworth, 51 H. 3. mentioned by him as an evidence of the sense of another Parliament, besides that of Winchester, is plainly an abatement of the rigours of that Parliament, and was only a determination and award made, after Simon Montfort the younger, 
Vid. Brady's Hist. f. 655.  had submitted to any terms that should be imposed, saving his Life and Limbs, and excepting perpetual Imprisonment.  
Mr. Falkner adds,  
Anno 52. 
P. 351.  The Statute of Marlbridge mentions it as a great and heavy mischief and evil, that in the time of the late Troubles in England, many Peers and others refused to receive Justice from the King and his Court, as they ought to have done (which is more expressly contained in the Original Latin, than in the common English Translation) Justitiam indignati fuerint recipere per dominum Regem, & curiam suam, prout debuerunt & consueverunt; and did undertake to vindicate their own Causes of themselves. 
P. 352.  Now to declare that all Peers, and all other Persons ought to have received Justice only from the King and his Courts, and not to revenge themselves, or be Judges in their own cases; doth more especially condemn the entering into War its self, which is an Undertaking founded upon a direct contrary Proceeding. And thus we have a sufficient Censure in our English Laws, upon that War against the King, which those who have pleaded for the Lawfulness of Subjects taking Arms, do account the most plausible Instance for their purpose, as our Chronicles can furnish them with.  
Answer. But to any who consider that Statute, 'twill appear beyond contradiction, 1. That the rule of submitting to the judgement of the King's Court, will be of no service to Mr. Falkner's purpose; the Court which is presumed to be intended, if it relates to the Controversies between the King and his Barons, being the Parliament, where they would be Judges in their own cases; which Mr. Falkner says they ought not to be. 2. The Statute of Marlborough does not in the least condemn the Baron's Wars. For  
1. The Subject of that Act is to remedy the abuses of Distresses, which are matters within the Jurisdiction of the ordinary Courts of Justice; and no way extends to the great questions of the Kingdom, determinable only in the highest Court.  
2. The Statute does not call those Wars a time of Rebellion, 
Vid. Stat. Marlb. Fleta p. 25.  but of Dissension and Troubles; suitably to which, even in the time of E. 1. among the Articles of the Crown, in charge to the Justices in their Circuits, one provides for enquiry after them, who have substracted Suits of Shires, etc. after the War moved between King Henry the Third and his Barons.  

Mat. Par. f. 373.  3. Tho the Barons once threatened H. 3. That unless he would send away the Foreigners, they would all, by the Common-Council of the whole Realm, drive Him and his wicked Councillors out of the Kingdom, and would consider of making a new King; yet it appears by the Circumstances and Events of the several Insurrections, that their design was only to bring him to reason: they still were for continuing him King: and therefore it might not be improper for the Parliament at Marlborough to hold, That for all matters of private differences, even while Armies were in the Field, the Course of ordinary Justice was to go on, and that it was not to be looked on as a state of War.  
This may be enough to remove the Objections made by Mr. Falkner, against the Baron's Wars in the time of H. 3. which he supposes to be the most plausible Instance brought by them against whom he writes; and I take it, that the Reign even of E. 1. one of the most warlike of our Kings, affords an Instance no less plausible.  

Ao. 1297. Knighton f. 2510. Libratas.  In the twenty-first year of his Reign, he summoned all who had twenty Pounds a Year ●… Land, of whomsoever they held, to attend him at London with Horse and Arms, in order to go with him to Flanders. When they met at London, he was advised to be reconciled to some of the Great Men, with whom he had been at variance. He complied with the Advice, excusing himself for former Exactions, and desiring their farther Assistance, since what he was engaged in, was not his own private concern, 
Mat. West. f. 430.  but the concern of the whole People, as he was their Protector and Defender. And he entreated them to pray for him, which the Historian says very few did hearty.  
But Humphrey Bohun, Earl of Hereford and Essex, High-Constable of England, and Roger Bygot, Earl Marshal, withdrew from the King; whereupon he discharged them of their Offices, and gave them to others.  
Yet the King found himself obliged to send some Persons to mediate between Him and Them: To whom they declared, That it was not their own Cause alone, but the Cause of the whole Community, which they undertook: 
Knighton f. 2511.  For not only They, but the whole Community of the Land was aggrieved with unjust Vexations, Tallages, and Levies, and chief, That they were not treated according to the Liberties in Magna Charta. Wherefore they drew up a Remonstrance of their Grievances; which if the King would command to be redressed, they were ready to follow him to the Death.  

Knighton f. 2512.  The King gave a dilatory Answer, excusing himself through the absence of some of his Council; and having desired them not to do any thing to the prejudice of Him or his Kingdom, passed the Seas, notwithstanding the dissatisfaction that he left behind; concluding, 'tis likely, That that Success which commonly attended him in his Wars, would gain him a more absolute ascendant over his People.  
The King being gone, the Constable and Marshal, with their Adherents, forbade the Chancellor and Barons of the Exchequer to issue out Process for levying the eighth Penny, which had been granted the King in Parliament, and which yet they said was granted without their Consent, either as they had not due Summons, or were upon just Cause absent.  
They continuing together in Arms, the King's Son, who had been constituted Vicegerent, found a necessity of giving them satisfaction: To which end he calls a Parliament; 
Knighton f. 2523.  where through the mediation of the Archbishop, whom Knighton blesses for it, it was agreed, That the King should confirm Magna Charta, and the Charter of the Forest: That for the future, 
Magnates.  he should not ask or take any Aid of the Clergy or People, without the good will and assent of the Great Men. And that he should remit all Rancour to them and their Adherents.  
In the Charter, or Act of Parliament which then passed, there are these Words.  
Remisimus Humfredo de Bown, Comiti Herfordiae & Esekes, Constabulario Angliae, Rogero Bygot, Comiti Norfork, Mareschallo Angliae, etc. rancorem nostrum & malam voluntatem quam ex causis praedictis erga eos habuimus, & etiam transgressiones [si quas nobis vel nostris fecerint] utque ad praesentis Cartae confectionem.  
We have remitted to Humphrey de Bowne, Earl of Herford and Essex, Constable of England, Roger Bygot, Earl of Norfolk, Marshal of England, etc. the rancour and ill-will, which we had against them for the foresaid causes, and also all Transgressions or Offences [if they have committed any against us or ours] to the making of this Charter.  
Here was a quiet conclusion of an Insurrection managed under two Tribunes of the People, whose Union had such an effect, that what they did, was not looked on by the Parliament to be so much as a Misdemeanour.   

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, occasioned by the Disputes between H. 6. and E. 4. Why the instances from those times to the late Abdication omitted. The Objections from the Oaths against taking Arms, and from the Declaration against a Coercive Power over Kings, removed by Sherringham, and the Triennial Act, 16 Car. 1. Pufendorf's Due Restraint of the Power of the People. Instances of the like Power in other Nations; particularly Denmark, Sweedland, and Norway, when under the same King. For France, Hottoman, Sesellius, the Author of Les Soupirs de la France esclave. Bodin explained, and shown to justify King William in his descent hither; and the People of England in their asserting the true Constitution of the Government. For the Germane Empire, Bodin and Conringius. An occasion taken from him to show the Antiquity and Power of a Palatine in Germany and England. Gunterus used to show that Office in several Countries. Loyseau concerning it in France. The Distinction in the Author of Les Soupirs, between Officers of the King's House, and Officers of the Crown: The Antiquity and Authority of the Offices of Constable of England, of the High Steward, and the Earl Marshal; which with the Earl of Chester, have been as so many Tribunes of the People.  
TO proceed to E. 2. Son to E. 1. 'tis certain that the sentence threatened H. 3. was executed upon his Grandson E. 2. who was formally Deposed in Parliament, for his misgovernment: 
Walsingham, f. 107. Rex dignitate regali abdicatur & filius substituitur.  His Case with his next Successor's but one, R. 2. by what I have observed before, appear to have been no Novelties in England.  
Nor was it long before the like was again put in practice more than once. 
Holinshed f. 637. Ib. f. 639, 640.  H. 6. being a weak, misled Prince, gave occasion to Richard Duke of York, whose Line was put by, to cover his designs for restoring the elder Family, with the pretence of redressing public Grievances. 
A Crown over a Branch of lights in the H. of Commons, and another from the top of Dover-Castle, falling about the same time, ib. f. 659.  The Crown he was so far from pretending to at first, that himself swore Allegiance to H. 6. in a very particular manner. But having afterwards an advantage given, by the Divisions of them who had driven him out of the Land, he in a fortunate hour, with lucky Omens, as was believed, challenged the Crown as his Right; upon which there was an agreement ratified in Parliament, That H. 6. should enjoy it during his Life, and Richard and his Heirs after him.  
Tho Richard Duke of York, and his Son Edward, afterwards E. 4. had sworn that H. 6. should enjoy the Royal Dignity during life, without trouble from them, or either of them; yet Richard having been treacherously slain by the Queen's Army, immediately after the solemn Pacification, Edward, at the Petition of some of the Bishops, and Temporal Lords, 
Ib. f. 661.  took upon him the charge of the Kingdom, as forfeited to him by breach of the Covenant established in Parliament.  
Yet this gave him no sure footing; for the popularity of the Earl of Warwick drove him out of the Kingdom, without striking a stroke for it. 
Ib. f. 678.  Upon which H. 6. was again restored to his Kingly Power, and Edward was in Parliament declared a Traitor to the Country, and an Usurper of the Realm, the Settlement upon Richard and his Heirs revoked, and the Crown entailed upon H. 6. and his Heirs Males, with remainders over, to secure against Edward's coming to the Crown.  
But the Death of the Earl of Warwick having in effect put an end to King Henry's Power, he was soon taken Prisoner, and put to death, as his Son had been before; and than Edward procures a Confirmation in Parliament, 
Holinshed f. 693.  of the Settlement, under which he enjoyed the Crown.  
Thus the Parliament from time to time determined the Controversy according to the Inclination of the People, or Reason of State: And as the power of the People of England, or of Great Men of interest with them, turned the scales sometimes one way, sometimes another; so their consent fixed them at last, during the Life of E. 4. I might, following the light of History, take in the most material Occurrences from the Reign of E. 4. to the last Revolution; but though the unanimity which appeared at the first casting off the former Yoke, made me with cheerfulness undertake the justification of those who have contributed to the Change; yet I must needs say I am checked in that freedom, which otherwise I might have justly used in relation to late times; and though I labour against prejudice in what I bring from faithful Memorials of ancient days; yet I hope the prejudice will be free from that heat and passion which mixes with men's own concerns, or the concerns of them from whom they immediately descend, in Blood, or Parties.  

Object. Vid. 13 C. 2. Stat. 2. c. 1.13 & 14 C. 2. c. 3.14 C. 2. c. 3, & 4.15 C. 2. c. 5.12 C. 2. c. 30.  It may be said, That whatever the Law or Practice has been anciently, neither can now be of any moment, by reason of the Oath required by several Statutes, declaring it not lawful, upon any pretence whatsoever, to take Arms against the King; and abhorring the Traitorous Position of taking Arms by his Authority against his Person. And  
2. The Clause in the Statute 12 Car. 2. whereby it is declared, That by the undoubted and fundamental Laws of this Kingdom, neither the Peers of this Realm, nor the Commons, nor both together in Parliament, or out of Parliament, nor the People Collectively or Representatively, nor any other Persons whatsoever, had, have, or aught to have, any Coercive Power over the Persons of the Kings of this Realm.  
What has before been observed from and upon, Mr. Falkner's, 
Answer. Vid. Chap. 2.  Christian Loyalty, might make it needless to take notice of the Objection from either of these Clauses, were it not that many either cannot or will not observe what lies at the least distance.  
I shall not here insist, in answer to the first part of the Objection, on the necessity of a Commission, and a King, continuing legal in the Exercise, as well as Possession of Power; nor the difference between the Traitorous Acts of single Persons, and the Revolt of a Nation; nor yet upon the Authority of the Common Law, whereby a Constable, or other Officer chosen by the people, 
Vid. Justin. Pandec. l. 1. tit. 3. Nulla juris ratio, aut aequitatis benignitas patitur, ut quae salubriter pro utilitate hominum introducuntur, ea nos duriore interpretatione contra ipsorum commodum producamus ad severitatem.  may act without any Authority from the King.  
And for the latter part of the Objection, as [Coercion] is restrained to the Person of the King, the declaring against that, is not contrary to the Authorities for discharging Allegiance by a judicial Sentence, or otherwise, by virtue of equitable and implied Reservations; provided a tender regard to the Person be still observed. But if proceed to free ourselves from his Authority, fall under this [Coercion]; than I shall offer something which may remove both this and the other, from being objections to what I have above shown.  
To keep to what may equally reach to both Authorities:  
I shall not urge here, 
Vid. Rot. Parl. 39 H. 6. n. 18.  That these Statutes being barely declaratotory, and Enacting no Law for the future, introduce none; so that if the Fundamental Laws shall appear to be otherwise, the Declarations do not supplant them: Nor yet to insist upon a Rule in the Civil-Law, That the Commonwealth is always a Minor, 
Vid. Cujac. Tom. 4. f. 154. Resp. circumscripta in integrum restituitur perinde ac pupillus vel adolescens, & Vid. Cic. de Legibus. Salus populi Suprema Lex esto Inter Leges 12. Tabularum, of which Tacitus says, Accitis quae usquam egregia, compositae duodecim Tabulae finis aequi juris. Tacitus Ed. Plant. p. 90.  and at liberty to renounce the obligations which it has entered into against its benefit, which is the Supreme Law.  
But I shall stop their Mouths who object these Statutes, and maintain, That according to what themselves receive for Law, the Parliaments which Enacted these Declarations, had no power so to do, and then the Law must stand as it did. For this let us first hear Mr. Sheringham, whose Authority few of these Men dispute.  
They that lay the first foundation of a Commonwealth, 
Sheringham of the King's Supremacy. p. 41.  have Authority to make Laws that cannot be altered by Posterity, in the Matters that concern the Rights both of King and People. For Foundations cannot be removed, without the Ruin and Subversion of the whole Building.  
Wherefore admit the Acts had been duly made, according to him, they would be void, if the Fundamental Law were as I have shown.  
However, I am sure I can irrefragably prove to them who will not have a Nation saved without strict form of Law, That the Parliament which made those Acts, had no Power at the time of making them, being by the express words of a former Statute repealed.  

Triennial Act 16 Car. 1. Nota, There was no attempt to repeal this till 16 Car. 2.  The Triennial Act 16 Car. 1. provides in a way not easily to be defeated, not only for holding a Parliament once within three years at least; but that all Parliaments which shall be Prorogued or Adjourned, or so continued by Prorogation or Adjournment, until the Tenth of September, which shall be in the third year next after the last day of the last Meeting of the foregoing Parliament, shall be thenceforth clearly and absolutely dissolved. Now say I, That Parliament which Enacted these Laws, had sat beyond that time; Ergo, etc. These were made in the Parliament next after the Convention which brought in the King, 

Brook tit. Commission, N. 21. Ib. tit. Officer n. 25. vid. Stat. 17. C. 1. Every thing, or things done or to be done for the Adjournment, Prorogueing, or Dissolving of this Parliament, contrary to this present Act, shall be utterly void.  
Anno 1647. Vid. Hist. of the Civil-Wars, f. 207.   which they I am sure will not call a Parliament. Wherefore we must go back to the first long Parliament, which upon their own Rule, Rex est caput & finis Parliomenti, was dissolved by the Death of C. 1. Anno 1648. notwithstanding the Act for making it perpetual, which indeed by the words of it, seems only to provide against any Act of the King to the contrary, without their consent; but by the Death of the King that Parliament lost the being which before it had, as it was under him, when it was Parliamentum nostrum, the Parliament of Charles 1. and so expired Anno. 1648. by Act in Law. And perhaps it's own breaking up in Confusion before, was in Law an Adjournment, sine die, working a dissolution; by either of which, that Parliament was Dissolved more than three years before the meeting of that Parliament which made the Statute in question; which Parliament Assembled, Anno 1661. and was ipso facto dissolved, when it attempted to make those Statutes; it having been continued by Prorogation or Adjournment beyond the Tenth of September, in the third year after the Dissolution of the last Parliament of Charles the first, which was the next foregoing legal Parliament, according to strict form: For the Parliament which brought in Charles 2. Anno 1660. was not summoned by the King's Writs; consequently the Parliament 1661. having, according to them, no power after it had continued as above; whatever was the Ancient Law in this Matter, remains as it did before those Laws.  
If it be objected, That the necessity of the times had dispensed with the Letter of the Triennial Act, as to this Particular:  
1. They who would plead these Statutes, cannot urge this, since they will not allow of greater necessity to Authorise the Maintaining and Restoring the Constitution. But surely however necessity might support our Laws, it shall not such as alter the Constitution; but every legal advantage shall be taken for restoring it.  
2. The necessity was not absolute; for the first Parliament of Charles the Second, might have continued together as long as they could sit without Prorogation, or Adjournment, and be good for a day at least; time enough to have Repealed the former Statute as to that part, and to qualify themselves for a longer continuance.  
In short, they with whom our Dispute is, are either for the unalterableness of Fundamentals, according to which, what I have shown remains, notwithstanding all efforts to the contrary; or else, all of a sudden they have a mighty Zeal for the strict Letter of the Law, by which that Parliament which endeavoured to alter the Fundamental Contract, was, ipso facto, dissolved before such attempt: However since the Question is not about a Coercive Power over Kings, but barely concerning Allegiance to them; 
Quum aufertur ratio juramenti, juramentum cessat ratione eventus; qui casus est eorum qui juraverunt se obedituros Domino aut Principi alicui, qui postea cessat, esse talis. Amesius de Juramento, lib. 4. c. 22.  whenever he who was King ceases to be so, either by the Act of God, or the Law, the Obligation of Allegiance necessarily determins, as the subject matter of it fails.  
But lest the Liberty allowed in extraordinary Cases, be used as a Cloak for maliciousness, I shall restrain it with the Authority of the Learned Pufendorf.  
In Contracts by which one is made subject to Another, 
Sam. Pufendorf. de Interregnis. p. 272.  this has the Right of Judging what the Subject is to perform, and has also a Power conferred of compelling him to performance, if he refuses; which Coercive Power is by no means reciprocal. Wherefore he who Rules, cannot be called in question for breaking his Contract, 
Omnem Reipublicae curam abdicaverit dolo malo.  unless he either wholly Abdicate the Care of the Government, or become of an Hostile mind towards his People; or manifestly, with evil Intention, depart from those Rules of Governing, upon observance of which, as upon a Condition, the Allegiance of the Subjects depends: Which is very easy for any one who Governs, always to shun, if he will but consider, that the highest of Mortals are not free from the Laws of Humane Chance.  
But that the Judicial power of the people, so qualified as above, is not peculiar to England, might appear by the Customs of most Neighbouring Nations. For Denmark, Sweedland and Norway, which had anciently three distinct Negatives in the Choice of a King, I shall refer to Krantius, 
Krantii Hist.  particularly in the remarkable Story of their King Eric, who was Adopted Son of the Three Kingdoms, Anno 1411. he having provoked his People, by countenancing the outrages of his Officers and Common Soldiers, was opposed with Force by one Engelbert a Danish Nobleman, transmitted down to posterity, with the fair Character of engaging in the Public Cause, neither out of Love of Rule, nor greediness of gain; but mere compassion to an oppressed people.  
This generous undertaking was so justly popular, that Eric, not able to stem the Tide, withdrew from Denmark, where he usually resided, to Sweedland. Engelberts Noble Cause found so few opposers there, that the King, as a pattern to James 2. privately ran away, and recommended his Nephew to succeed him. But they told him plainly, he was made King by Adoption, 
Ib. f. 188.  and had no Right to surrogate another. Himself (there not being the inconsistency of a different Religion between the Head and Members of the same Body) they would have received upon terms; but he refusing, the three Kingdoms unanimously chose one of another Family.  
For the Authority of the people, even in France, 
Hottomanni Francogallia, c. 23.  insisted on no longer since then the time of Lewis 11. Hottoman gives a large proof in his Franco Gallia.  
And I meet with an excellent Treatise of the French Government, written originally in that Language, by an eminent French Lawyer, Claudius Sesellius, soon after the death of Lewis 12. and dedicated to his Successor, Francis 1. This Treatise the Learned Germane, Sleidan, 
Sleidani Dedicatio Ed. sexto Anno 1548. f. 263. Vid. Tres Gallicarum Rerum Scriptores Nobiliss. A Johanne Sleidano e Gallico in Lat. Serm. convers. Ed. Francofurti Anno 1578.  turned into Latin, and Dedicated it to our King E. 6.  

Sesel. f. 268. Qui tutorio nomine Rempublicam procurant. f. 269.  Sesellius, at that time, looked upon France as an Hereditary Monarchy, in which he admits, that there may be great inconveniencies through the folly, vice, or minority of a Successor to a good Prince, or the wickedness of those who execute the Government during his minority; yet says he, There are remedies at hand, by which we may restrain a King Reigning Arbitrarily, and them who have the care of one who cannot Govern for want of fit Age; so that the King may have the Dignity which belongs to him, and yet it may not be lawful for him to do what he pleases, but what is agreeable to Law and Equity. Provision is made for this by the best Laws, and most Sacred Establishments, which may not be violated without great hazard, although sometimes force is offered to them.  
He tells us, their Kings have, as it were, three Bridles, with which their Sovereign Power is restrained: 
Sesellius, f. 269.  1. Religion; And if the awe of that is not sufficiently impressed upon him, yet the reverence of some Holy Man may prevail; it being allowable for any Bishop, or other Ecclesiastical person of an unblameable life, and in esteem with the people, to admonish him of his Duty; nor can he use any severities to his Admonisher, without danger of alienating the affections of his people. 2. The Jurisdiction of the Senate or Parliament, whose Power, he says, 
Ut decretis ipsorum Rex quoque pareat. Vid. Les Soupirs De la France Esclave Memoire 8. Histoire de l'origine du Parlement de Paris. Sesellius f. 270.  is such, that even the King obeys its Decrees: And yet when he wrote, the Parliament of Paris, the mere shadow of the Assembly of the States of the Kingdom, and which in its institution was but a Committee chosen out of them, had through the Artifice and Usurpation of their Kings, driven out the substance. 3. The Polity, or Laws of the Kingdom, which temper the Regal Authority, this he says, is greatly to the Honour of their Kings; For if they could do every thing, they would be much more imperfect: And as it does not derogate from God Almighty that he cannot sin, but his perfection is the more illustrious, and to be admired for this very reason; so Kings, when they obey their Laws, deserve the greater praise, and come nigher to perfection, than if they could command all things at their will and pleasure.  
Sleidan, in giving an account of Sesellius his Book to E. 6. says:  

Sleidani Dedicatio, ad E. 6.  Although these things seem written in a peculiar manner in relation to the King of France; yet they equally belong to all Kings. For all Kings are Monarches, very few excepted: And as they acknowledge no Power over them, so they deserve great praise, when they keep themselves within the bounds of those Laws, with which they Govern their People. And these are those Offices which he treats of as becoming a King and Prince: Which if he neglects, and thinks himself not to be obliged by any Law, he loses in the eyes of good Men, all Splendour, Reputation, and Glory, and the very name of King.  
A modern French Author, 
Les Soupirs de la France Esclave Qui aspire apres la Liberte Ed. Anno 1690. Memoire 6. p. 82.  who has with great diligence collected the Evidences of the Ancient Government of France, supposes all the descendants from the old Germans, as the Francs and we were, to have had the same sort of Government, and resemblance of Constitutions.  
Among his several Arguments, to refute the pretensions of the Court of France to Arbitrary Power, one is, 
Memoire 7.  That nothing of great importance ought to be done within the Realm, 
P. 97.  but with the advice and consent of the Estates; insomuch, says he, That the Government of France is rather Arstocratical than Monarchical; or at least it is a Monarchy tempered by an Aristocracy, exactly such an one as England is.  
The sum of his Authorities upon this Head, he reduces to these particulars:  
1. ' The Estates of the Kingdom may Choose and Depose their Kings, 
Ib. p. 110.  ' and by consequence may Judge them.  
2. ' They may Judge between the People and the King.  
3. ' They may Judge between King and King, when more than ' one aspire, and pretend to the Crown.  
4. ' They Determine the Differences which Kings have with their ' Subjects.  
5. ' They give Tutors to Kings, and Regent's to the Realm.  
6. ' They dispose of the great Offices of State.  
7. ' They make Ordinances, which alone have the Force of Law ' within the Realm.  
8. ' They regulate the Affairs of Money.  
9 ' They appoint Impositions and Levies of Taxes.  
10. ' They are to be consulted upon all great Affairs.  
11. ' In fine, They are, of right, to Correct all defaults of Government, ' even those of which their Kings are Authors.  
By all these particulars, says he, it appears, 
Soupirs Man 7. p. 110.  that in some respects the States are superior to the King; for example, when they choose, depose, judge, and correct, and that in other matters they share with the King in every part of the Sovereignty. He adds, If we have need of farther proof, the name Parliament, which all our Ancient Histories give the Assembly of States, may furnish us with one. This is the name which the English give this Assembly, which partakes of the Sovereignty with their King. The French, and the Ancient Britain's had the same Laws, and the same Language; they Governed themselves by States, gave the same name to their Assemblies: And without doubt they had the same Authority. Nay, it is certain that the States had formerly in France, the same Power that the Parliaments have in England.  
As this Author makes the Liberties of the English Nation, and the Power of its Parliament, an Argument of the Right of the French Nation; Bodin, who wrote after their Parliament at Paris, had taken the place of the Assembly of States, makes England a parallel to France, Turkey, Persia, Muscovy, 
Bodin de Repub. lib. 2. c. 4. ed. A Lion, p. 302. Ib. Cap. 3. p. 286. This was H. 2.  for the absolute Sovereignty of their Princes; but that he was little acquainted with the History of the Govenment of England, appears, in that he supposes that Henry, who procured his Son to be Crowned in his life time, to have been the Son of W. 1.  

Bodin, p. 300.  Even where a Prince is the most absolute, he admits, That if he Govern Tyrannically, he may be lawfully killed by a Foreign Prince; and that it is a noble and magnificent action for a Prince to take Arms to rescue a people unjustly oppressed by the cruelty of a Tyrant, as did the Great Hercules, who went about the World exterminating the Monsters of Tyrants; and for his high exploits has been Deified: So did Dion, Timoleon, Aratus, and other generous Princes, who have boar the Title of Chastisers and Correctors of Tyrants.  
This, says he, was the sole cause for which Tamerlain, Prince of the Tartars, denounced War against Bajazet King of the Turks; And when he Besieged Constantinople, said he came to chastise his Tyranny, and deliver his afflicted people: And in fact he vanquished him in a pitched Battle, in the Plain of Mount-Stellian; and having killed and put to flight Three Hundred Thousand Turks, he kept the Tyrant in a Golden-Cage till he died.  

Ib. p. 301.  And in such case it matters not whether the Virtuous Prince proceed against the Tyrant with Force, or Art, or way of Justice: True it is, if the Virtuous Prince has taken the Tyrant, he will have more Honour if he make his Process, and punish him as a Murderer, or Parricide, or Robber, rather than to make use of the Law of Nations against him.  
This passage in Bodin shows beyond contradiction, That if he were now alive, and not of the Romish Superstition, he would have extolled and justified the Heroic undertaking of King William, for the delivery of this Nation. But the ground of the justification is, That even the most absolute Sovereign may injure his Subjects, as no doubt but he would, if he treated them contrary to natural equity, and his own established Laws; 
Jovian, p. 226.  whereas the Author of Jovian having set up an Imperial Power above all Political Constitutions, says, In this Realm the Sovereign cannot wrong or injure his Subjects, but contrary to the Political Laws: And by consequence not at all, if the Political Laws are to give way to the Imperial. Wherefore I wonder not to find him a Subscriber to the late Bishop of Chichester's Paper, which condemns Swearing Allegiance to our present King and Queen. But Bodin, as he justifies our King William in freeing us from an oppressing Monarch, no less clears the Subjects of England in joining with him, upon supposition that the Constitution of our Government is not rightly understood by him.  

Bodin, p. 301.  But, says he, as to Subjects, we ought to know whether the Prince be absolutely Sovereign; or whether he is not absolutely Sovereign: For if he is not absolutely Sovereign, it is necessary that the Sovereignty be in the people, or in the Lords. In this case there is no doubt but it is lawful to proceed against the Tyrant by way of Justice, if we can prevail against him: or by way of Deeds and Force, if we cannot have Reason otherwise: as the Senate did against Nero in one case, and against Maximin in another; so that the Roman Emperors were nothing else but Princes of the Commonwealth, that is to say, the First and Chief, the Sovereignty remaining with the people and the Senate. As I have shown, this Commonwealth may be called a Principality. Although Seneca speaking in the person of his Scholar Nero, says, I alone, among all Men living, am elected and chosen to be God's Vicegerent on Earth. I am Arbiter of Life and Death; I am able at my pleasure to dispose of the estate and quality of any Man. True it is, that in fact he usurped this Power; but of right the State was but a Principality, where the people were Sovereign: As also is that of the Venetians, who condemned to death their Duke Falier, and put to death others without form or figure of Process. Insomuch that Venice is an Aristocratical Principality, where the Duke is but Chief, and the Sovereignty remains with the States of the Venetian Noblemen.  
And in the like Case, the Germane Empire, which also is but an Aristocratical Principality, where the Emperor is chief and first, the Power and Majesty of the Empire belongs to the States, who in the year 1296. deposed the Emperor Adolph, and after him Wenceslaus, in the year 1400. in form of justice, as having jurisdiction and power over them.  
How much soever Bodin was mistaken in relation to the Government of England, he seems herein less a Stranger to that of the Germane Empire.  
The Learned Conringius, in his account of the Germane Judicatures, 
Hermanni Conringii Excercit De Judiciis, p. 251.  tells us, 'tis difficult to give an account of them for some Ages next after the time of the Francs. But beginning with the Causes of Kings themselves, whom he shows, according to Ancient Custom, to have been subject to some jurisdiction upon the account of their Government. The Causes, says he, 
Ib. p. 252.  of their Kings belonging to the administration of the Government, as anciently, so afterwards, were frequently agitated in the Great Councils of the Kingdom. So the Emperor H. 4. was accused in a Great Council, and by its Authority divested of his Royal Dignity. The same befell Otto 4. and 
* This about the year 1251. No new Emperor was chosen till Anno 1273. after Twenty two years' vacancy. Prideaux Introd. p. 245.  Frederic 2.  
But, says he, Two things sometimes happened, much differing from the ancient Usage. One is, That the Power of the Council of all the States, began to pass to the Electors only, after Charles 4. 

Novo more The Duke of Bavaria, made an eighth in the last age.  
Vid. Apud Cujacium de feudis 4. tom. lib. 5. a. f. 602. ad. 1627.  
Mat. Par. ed. Lond. f. 563.   had without precedent, brought in the Dignity of the Septemvires. The other was the Arrogance and Usurpation of the Pope.  
The Golden Bull of C. 4. who, as Conringius will have it, brought in the Authority of the Electors of the Empire, provides who shall sit Judge, or High Steward, when the Emperor is impeached. By that the Palatine of the Rhine has the like power with that, of which Matthew Paris shows the Earl of Chester to have carried the sign or emblem, at the Coronation of H. 3. 20 of his Reign, Anno 1236.  
Comite Cestriae gladium Sancti Edwardi qui Curtein dicitur ante Regem bajulante, in signum quod Comes est Palatinus, & Regem si oberret habeat, de jure, potestatem cohibendi.  
The Earl of Chester carrying St. Edward's Sword called the Curtain, as a sign that he is an Earl Palatine, and has of Right, power to correct the King if he go astray.  
It appears that this was no new grant to the then Earl of Chester; for Matthew Paris informs us, that the Great Men at that Coronation, exercised what belonged to them by ancient Custom, and ancient Right. That this Palatine-jurisdiction was with us before the entrance of the Norman Duke, may well be thought by them, 
Vid. 2 d Part.  who shall consider the Record which I shall afterwards produce, proving that Hugh Lupus enjoyed the Earldom of Chester in the time of W. 1. as heir to Leofric; Earl of in the Confessor's Reign, and that W. 1. confirmed it to Lupus, to hold as freely [by the Sword] as himself held the Kingdom. The Sword which the Earl of Chester carried in the time of H. 3. being expressly said to be St. Edward's, is an evidence that it was the same which Leofric carried in that time, by reason of his Earldom, and not of any particular Lands: agreeable to what I find in the time of H. 3. in Inquisitions after the death of Hugh de Veer, Earl of Oxford, to whose Barony, the Office of Chamberlain to the King is found to belong.  
But that it may not seem strange that I should find a Palatine here before the Conquest, when few of the Germane Writers place it higher than the time of our H. 3. Mr. Selden shows out of an Ancient Chronicle, a Comes Palatii in France, as early as the Reign of Clothar 3. about the year 660. 
Vid. Titles of Honour, Ed. 4. Anno 1614 p. 242. This with several other considerable passages omitted in the Ed. f.  And he observes upon the passage which he citys, That the King and other great Courtiers seemed to sit sometime; but the chief Authority, Delegate and Judiciary, was in the Count du Palais; and before him, as Chief Justice, were all Suits determined, Crimes examined, the Crown Revenue accounted, and whatsoever done which to so great jurisdiction was competent: Neither was there, it seems, always one only in this Office; but sometime more. That the Jurisdiction of Palatines was known here in the time of H. 2. appears beyond contradiction from John of Salisbury, 
Joh. Sarisbur. Epist. 263. sicut, alii Praesules in partem solicitudinis a summo Pontifice evocantur, ut spiritualem exerceant gladium; sic a Principe, in ensis materialis communionem Comites quidam, quasi mundani juris Praesules, asciscuntur. Et quidam qui hoc Officii gerunt in Palacio, Juris Authoritate, Palatini sunt.  a Bishop at that time, who in a Letter to Nicholas then Sheriff of Essex, says, As other Prelates are called by the Pope into part of the care to exercise the Spiritual Sword, so some Earls are by the Prince taken into Partnership of the Material Sword, as Prelates of Worldly Right: And some who bear this Office in the Palace, by the Authority of Law, are Palatines.  
This fully justifies Matthew Paris, in speaking with reference to the known power of a Palatine in the year 1236. One hundred and twenty years before the Bull of Charles 4. that being in the year 1356. This shows that, however it might have been as to the other Electors of the Empire, the Power of the Palatine was prior to the Bull of Charles 4. The Bull itself has sicut ex consuetudine introductum dicitur, as 'tis said to have been introduced by Custom; this Custom Conringius supposes to have begun in the time of Frederic 2. but holds that there was no express Law for it till that Bull. Yet Frederic having been coeval with our H. 3. whose Sister he Married, it would seem very strange if this Power or Office which had been so early in France and England, should have been no earlier in Germany.  

Titles of Honour ed. Ao. 1631. f. 382.  Mr. Selden shows one Otto an Earl Palatine in Germany, in the year 1154. and an other Otho, who slew the Emperor Philip, Anno 1208. and in the Margin refers to Eginhart, who wrote the Life of Charles the Great, who was Emperor over the Francs and Germans, for proof that one Anselm was Comes Palatii, or Earl Palatine under him, Anno 812.  
Freherus gives an instance of the Palatine's Power in the Empire, 
Freheri Orig. Palat. f. 113, 119, 120.  before the Bull of Charles 4. in the Case of King Albert, threatened to be deposed for killing his Liege Lord Adolph, to whom he succeeded, Anno 1290.  
With Freherus agrees Gunterus in his Octoviratus, who says, 
Prideaux his Introd. Gunteri Thulemarii Octovirat. cap. 18.  That the Palatine of the Rhine, Major Domo to the Emperor, is, by Custom, Judge of the Emperor himself; or rather in the highest matters, declares the sense of the Electoral College.  
He citys several Authors to prove the like Office or Power to have been in divers Kingdoms and Principalities; and names France, England, Arragon, Spain, Denmark, Poland, Bohemia, etc.  
For France, Loyseau, who wrote within this Century, 
Loyseau du droit des Offices ed. Anno 1610. f. 409, 410.  shows this Power to have belonged to their Major du Palais; for he owns the Power to have been greater than the Roman Perfect of the Palace had; and yet he citys the words of the Emperor Trajan, giving his Perfect a naked Sword, which he enjoined him to use against himself, if he misgoverned. And Loyseau says, That this dangerous Office was put down by the Kings of the Third Line, that they might perpetuate the Crown in their Family.  
But the Author of the Sighs of France, 
Soupirs de France Esclave Mem. 7. p. 116.  shows the first interruption to the exercise of this Office, to have been put by the States of the Kingdom, who when Clothair pressed them to consent to the choice of a Major du Palais, in the place of Warnhier then lately deceased, would not consent, declaring that they would not have that charge filled.  
Loyseau supposes this Office to have been split into the Constable, Chancellor, Treasurer, and the Grand Maistre du France, or Count du Palais, which he seems to resemble to an High-Steward with us.  
The Author of the Sighs of France shows, 
Les soupirs Mem. 7. p. 167.  that when Childebert was chosen King, they chose Grimoald for More du Palais. And says he,  
Through all our History we may always see a very clear distinction between the Officers of the King's House, and those of the Crown: This distinction remains to this day, as a Monument of the Ancient Liberty of the French. For we say, the Great Master of the King's Household, the Great Chamberlain, etc. But we say the Constable of France, the Admiral of France, the Chancellor of France: And these last Charges do not die with the King; whereas the Officers of the King's House die with the King, and may be changed by his Successor. The Reason of this difference comes from this, That that which is given by one King, may be taken away by another: But the Officers of the Crown being made by the People, and by the Realm, cannot be turned out by the King alone. And it is very remarkable, that these Offices of the Crown, which the States of the Kingdom may give, and which they alone can take away, may extend to the whole, to the War, to Justice, and to the Finances, or Treasury.  
In a Book published in Queen Mary's Reign, which at least went under the name of Bishop Poinet, one of our Confessors, 
History of Passive Obedience▪ p. 38.  who fled to Germany from the Marian Persecution, such a Power as is above mentioned, is affirmed to have belonged to the High Constable of England.  

Treatise of Politic Power. Anno 1556.  As God, says the Author, has ordained Magistrates to hear and determine private Matters, and to punish their Vices; so also will he, that the Magistrates do be called to account and reckoning, and their Vices corrected and punished, by the Body of the whole Congregation, or Commonwealth: As it is manifest by the meaning of the Ancient Office of High-Constable of England, unto whose Authority it pertained, not only to summon the King personally before the Parliament, or other Courts of Justice, to answer, and receive according to Justice; but also, upon just occasion, to commit him to Ward.  
Theloal, in his Digest of Writs, Printed in the year 1579. 21 Eliz. Collects what is in the Year-Books concerning Summoning the King.  


Theloal's Digest tit. Roy. p 71. This was H. 3. Vid. 22. E. 3. f. 3. b. Trin. 24 E. 3. f. 55. b 43 E. 3.22. a. Wilby, Justice.  Fuit dit. H. 22 E. 3. que en temps le Roy Henry & devant le Roy fuit impled, come serroit autre home de people. Mes Edward son fits ordain, que home sueroit vers le Roy per petition. Et issint dit suit T. 43. E. 3.22. que en temps le Roy Henry, le Roy ne fuit mes come comune person, car a ceo temps home averoit brief d'entre sur disseisin verse le Roy, & touts autres manners d'actions come vers auters persons, etc. Et Wilby dit. T. 24. E. 3.23. que il avoit vieu tiel brief Precipe Henrico Regi Angliae, etc. En lieu de quel est ore done petition pur sa Prerogative.   

It was, says he, held, Hil. 22 E. 3. that in the time of King Henry, and before, the King was impleaded as any other Man of his people; but Edward his Son ordained, That a Man shall sue to the King by Petition. And so it was said Trin. 43 E. 3.22. That in the time of King Henry, the King was but as a common person; for at that time a Man might have a Writ of Entry upon Disseisin against the King, and all other manner of Actions, as against other persons, etc. And Wilby said, Trin. 24 E. 3.23. That he had seen such a Writ Precipe Henrico Regi Angliae, in lieu of which, now a Petition is given for his Prerogative.   

Sir Robert Cotton, of the Constable of England MS. in the Herald's Office.  It may be difficult to distinguish between the Office of the Earl of Chester, and the Constable of England, who as Sir Robert Cotton held, is Second to the King, and has the Custody of his Sword, the carrying which, as appears by Matthew Paris, belonged to the Earl of Chester by reason of his Palatinate, and yet at the same time Humphrey de Bohun Earl of Hereford, Constable of England, was in full possession of his Office: 
Dugdale 's Bar. 1. Vol. f. 180.  11 H. 3. he stood up with the Earl of Chester and others, on the behalf of Richard the King's Brother, and was alive and in England, 20 H. 3. when the Earl of Chester carried the Sword as of Ancient Right; so that one seemed to have the right to carry, the other to keep the Sword.  
The Office of Constable seems to have been no ancienter than the the time of W. 1. 
Vid. Patent to Earl Rivers. Temp. E. 4. Vid. 2 d. Part.  to which the Patents for the Office refer; but the Earldom of Chester and its Rights were Ancienter: Wherefore one would think that W. 1. erected the Office of Constable, to balance that of the Earl Palatine.  

Sir Rob. Cotton, Of Constable, etc. MS. sup.  The other Great Officers, the High-Steward and Marshal, are easily distinguishable from the Constable; and as Sir Robert Cotton observes, the Office of Constable was of Military, that of the High-Steward of a Civil Jurisdiction.  
The Marshal was in the nature of an High Sheriff, 

Vid. Stat. 3. R. 2. Stat. 1. C. 2. Of the Constable and Marshal.  
Flet. lib. 2. c. 60. Of the Steward and Marshal.  
So Ryle 's Placita Parl. f. 126. 21 E. 1.  
Selden 's Bar. 2 d Part, c. 5. f. 739  
F. 743.   to see to the Execution of the Process and Judgements of either, and yet had a Judicial Power with both. In some Cases, all three acted with joint authority, as appears by the most Ancient Copies of the Modus tenendi Parliamenta, which tho' it has been put into Latin since the Conquest, and has the names of Things and Offices adapted to what was known and in use at the time of the Translation from the Saxon MS. yet certainly, for substance, gives a true account of what was before the Conquest. Mr. Selden supposes it to have been no ancienter than about the time of E. 3. yet confesses, that he had from Mr. Hackwel a Copy of an Inspeximus 12 H. 4. Exemplifying under the Great Seal, most of the particulars that occur in the ordinary Modus for England, fitted for Ireland, as sent thither by H. 2. but it would have been very strange, if there should have passed an exemplification under the Great Seal, of what was a mere fiction.  
The Modus says, 
Modus tenendi Parl. Cum dubitatio vel casus difficilis pacis vel guerrae emergat, etc. Vid. Append.  When any doubt or difficult case of War or Peace happens in the Kingdom, or without, let that Case be referred and brought in Writing into full Parliament, and let it be treated of and debated among the Peers of Parliament; and if need be, let it be enjoined by the King, or in his Name, to every degree of the Peers, That every degree act by its self, and let the Case be delivered to their Clerks in Writing, and in the said place let them cause the said Case to be recited before them; so that they may consider among themselves, how it may in the best manner, and most justly be proceeded upon, as they would answer before God for the Person of the King, and their own proper persons, and also the proper persons of them whom they represent. And let them report in Writing their Answers and Advice, that all their Answers, Counsels and Advices on all sides being heard, it may be proceeded upon according to the better and more wholesome Counsel. But if the Peace of the Kingdom, or the Nation, People, or Commonwealth, be weakened, by reason of discord between the King and other Great Men, so that it seems to the King and his Council, 
What that Council was, vid. 2d Part:  that the matter should be treated of, and amended by the consideration of all the Peers of his Kingdom; or if the King and Kingdom are disturbed by War; or if a difficult Case arise before the Chancellor of England, or a difficult Judgement is to be given before the Justices and the like; And if it happen that in such deliberations, all, 
N ² a Remedy where equally divided.  or at least the greater part cannot agree, than the Earl Steward, Earl Constable, and Earl Marshal, or Two of them, shall choose Twenty five persons from all parts of the Kingdom, viz. Two Bishops and Three Proxies of the Clergy; Two Earls, and Three Barons; Five Knights of Shires, Five Citizens, and Five Burgesses, who make Five and Twenty; 
Et condescendere in eos.  and they Five and Twenty may choose Twelve out of themselves, and be concluded by what they do. The Twelve may choose Six, and be concluded by them; The Six, Three, and be concluded by them: But the Three cannot be reduced to fewer without leave of the King. And if the King consent, the Three may be brought to Two, and the Two to One; and so at last their Ordinance shall bind the whole Parliament; and so by coming from Twenty five to One, if the greater number cannot agree to an establishment, at last one Person, as is said, shall Ordain for all, because he cannot disagree from himself; saving to the King and his Council, That they may examine and amend such Ordinances after they are written, if they can, and will; Provided they do this upon the place in full Parliament, and with the consent of the Parliament, and not out of Parliament.  
According to which, the High Steward, Constable, and Marshal, being looked on as Hereditary Officers, were entrusted with a means of composing the differences of the Nation, when they should happen to be equally divided.  
I find the Authority of the High Steward and Constable more express in a Translation of another Modus tenendi Parl. agreeing in substance with that which I have cited. The MS. which I have used, seems to be of the time of H. 7. 

MS. penes Authorem.  
MS. penes Authorem.   though Mr. Elsing says, That which is in Sir Robert Cotton's Library was written temp. E. 2. The Translation of the other was Printed with Royal Privilege in King James his time, as I take it; It was done in a very pedantic stile, by one Anthony Bustard of Lyons-Inn. He that wrote the Latin in his Preface, speaks of it as the Order settled by W. 1. 
Pref.  That Modus places the Power of choosing the Twenty five in the Steward and Constable: It adds, That if any of the Ministers act contrary to their Duty, the King, the Steward, and others of the Parliament, may remove them from their Office: And says particularly, That the Steward of England, with the Constable and Nobles of the Realm, shall send to evil Counsellors, willing them to desist from giving Counsel, and entreat the King not to listen to them; and if they regard not such advertisement, they were to send to the King to put such away from him: And if King and Counsellors neglect such wholesome Advice, then for the safety of the Commonwealth, it hath been thought fit and lawful for the Steward, and Constable, and Nobles, and others of the Commons of England, with the King's Banner displayed, the King's name omitted, the said Counsellors to take and keep in Custody till the next Parliament, and Seize their Goods, 
Vid. Append.  Lands and Hereditaments, until they receive Judgement by consideration of the whole Parliament.  

Sir Robert Cotton, Of the High Steward, etc.  There is no more in this, than is warranted by Sir Robert Cotton's Letters in the Herald's Office; part of which seem to be taken from a MS. joined to the Modus in his Library, under the name of Fleetwood.  
The High-Steward's Office, as I have before observed, was annexed to Land, 
4 Inst. f. 127. Dyer, f. 285. b. Kelway, f. 170.  and so was the Constable's of England, as appears by our Law-Books in the Case of the Duke of Buckingham, 6 H. 8. who pleaded, That Humphrey de Bohun, formerly Earl of Hereford, was seized in Fee of the Manors of Harefield, Newnam, and Whitenhurst in the County of Gloucester, and held them by the service to be Constable of England, which the Judges allowed of as a good Plea.  

Dyer.  Indeed they held, that though the King might compel him who had the Land, at his pleasure to execute the Office, so he might at his pleasure resuse to have it Executed: But as to that, this being an honorary and profitable tenure by Grand Serjeanty, it is to be considered, 
12 Car. 2. c. 4.  that the Stat. 12 Car. 2. when it took away those Tenors of the Crown which were burdensome to the Subject, provided that it shall not take away the Honorary Services of Grand Serjeanty.  
But H. 8. 
Dyer.  thought it sufficient that he disclaimed the Service, and the Reason of the disclaimer, was, because it was very high and dangerous, and very chargeable to the King in Fees; the last part of which shown the Subject's property concerned in the question.  
Upon the Duke of Buckingham's claim to this Office, 
Kelway, f. 171●  Nevil says it has been a common saying, That the Constable of England, by virtue of his Office in some case, may Arrest the King himself; and therefore held it necessary that the King should be apprized what Authorities belong to his Office.  
Fineux, Chief Justice, says, We know of no such Authority to belong to any Officer within the Realm [by the Common Law of the Land.]  
Which he afterwards explains; for being asked by the King, upon the report made by the Justices of their resolution for the Duke, what things the Constable can do by reason of his Office? Sir, says he, this Point belongs to your Law of Arms, of which we have no experience nor cognizance.  
This may show what occasion Cardinal Wolsey had to strain a point of Law against that Duke, and to have one, who durst insist upon a Right to be Constable of England by inheritance, 
Vid. Inf. 2d Part.  to be taken off by an High Steward out of Parliament, made for that turn.  
And what Fineux says of the Power of the Constable, may account for the silence of Bracton, Fleta, and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal; 
Flet. lib. 2. c. 31.  yet Fleta shows that the Constable had a Seat in the Exchequer, and overlooked Accounts relating to Soldiers, Forts and Castles; and gives a shrewd hint concerning the Earl Marshal, speaking of the Exchequer.  
The Justices, says he, sitting there, were all Barons, 
Fleta, lib. 2. c. 26.  because Barons used to sit in their places, while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England; whose Place the Treasurer possesses at this day, but he cannot occupy his Office.  
This shows, that in the Exchequer the Earl Marshal had place above the Constable; accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax. The Barons in their account of this to the King, say, There came to the Bar of the Exchequer, 
Vid. Append.  the Earl Marshal, and the Earl of Hereford; and the Earl-Marshal and the others declared they would not suffer it to be Levied.  
That this Office was of extraordinary Authority, 
Rot. Pat. 42. H. 3. M. 4.  appears by a Record 42 H. 3. which shows, That the Precept for executing the Provisions at Oxford, were by the King and his Council in Parliament delivered to the Earl-Marshal; and if we consider the Authority exercised by the Earls Marshal, in the time of H. 3. and E. 1. with the approbation of Parliaments, 
Vid. Mat. Par. 28 H. 3.  it may be thought that he was an hereditary Conservator of the Kingdom, notwithstanding which, in the 28th of H. 3. the Parliament insisted upon it, as their right, to have four Conservators chosen by them.  
This Office perhaps is the only one which was enjoyed in gross, and went along with the name of Marshal till the time of H. 3. when Hugh Bigod, Earl of Norfolk, 
Bar. 1. Vol. f. 133.  Married Maud the Daughter of William Marshal, Earl of Pembroke: Sir William Dugdale says, the first mention which he finds of the Name and Family of Marshal, 
Ib. f. 599.  was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Marshal was a very considerable Proprietor in Doomsday-Book. 
Vid. 2 d Part.  Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals, 
Vid. Appendix. Rot. Pat. 1. Johan. N. 85. M. 12.  as appears by the Record of the Confirmation, 1ᵒ Johannis.   

CHAP. VIII. The Third Head of Positive Law.  
The Kingdom founded in Monarchy, yet Elective, sub modo. The Form of Government not dissolved with the Contract between Prince and People. The Argument from Election of Kings, as it is used by the Author of the Sighs of France enslaved. The Crown of England proved Elective, Sub modo, 1. From the Saxon Pontifical, and the Council of Calcuth, Anno 789. 2. From the Practice till the supposed Conquest. 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in ask the People's consent at Coronations. 5. The Opinion of Kings themselves. 6. The Old Oaths of Allegiance. 7. The Liberty, even after a Settlement of the Crown. 8. The Breaches in the Succession. 9 The Statute 11 H. 7. Answers to the Objections, 1. That the King never dies. 2. The supposition of a Testamentary Heir. 3. The Declaration, temp. E. 3. against consenting to the disherison of the King and His Heirs. 4. The claims of Right between Two Families. 10. A qualified Election of Kings of England, confirmed, by observing how it has been in other Nations descended from the same Common Stock  
THE Kingdom I own is founded in Monarchy; and so is Poland, which yet is absolutely Elective: Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People, 

This objected by the Author of Elementa Politica.  
Of the Magistracy, etc. vindicated, and others.  
Vid. Pufendorf de Interregnis, p. 267. Post decretum circa formam Regiminis novo pacto opus erit, quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur.   should destroy the form of Government; for that depends upon a Prior Contract, which the People entered into among themselves: And that by virtue of this, to avoid endless competitions, our Kings have generally from the first erection of the English Monarchy, been chosen out of the same Family, appears beyond contradiction.  
If our Monarchy will appear from the foundation, to be no otherwise an inheritance than as it is settled on a Family, with a latitude for choice within the Family, no Man can doubt but it will tend greatly towards removing objections against our present Settlement; 'tis certain the Learned Author of The Sighs of France, improves the Argument farther than is needful for us.  

Soupirs de France, Mem.  ' It is, says he, indubitable, That they who have power to Choose, ' have power to Depose.  
Every Nation, says he, that makes a King, 
P. 81.  preserves to its self a right to unmake him, when he goes beyond the bounds of his duty, and when he ruins the Estate instead of preserving it; and this very thing makes it appear, That Elected Princes neither are, nor can be Sovereigns of an Arbitrary Power.  
I know some talk of a Birthright and Inheritance in the Crown of England, which is not founded in the statutes, 
Jovian, p. 87.  but on the original Custom and Constitution of the English Government, which is thought to be an hereditary Monarchy, according to proximity of blood.  
But I would desire all Men of this Opinion, impartially to weigh these following particulars:  
1. Mr. Selden in his Titles of Honour, shows us the form of Prayer used at the Coronation of Saxon Kings, wherein they pray God to bless him whom they choose for King, and call him one chosen to be Crowned King, Et hunc electum in Regem coronandum bene 

Titles of Honour, f. 157.  
Out of the Saxon Pontifical.  
At Calcuth, Anno 789. Spel. Concil. 1 Vol. f. 291.   dicere & consecrare digneris. And as anciently as the year 789. an Act was made in a General Convention of all England, in Conventu Pananglico, that their Kings should be Elected by the Clergy, & senioribus populi, and Elders of the people; that is, such as were Members of their Great Councils, or Witena Gemots, Assemblies of Sage and Wise Men. This, though it was long before the reputed Conquest, yet was never repealed or cut off by the Sword; nay, seems received with the Confessor's Laws, as included in them.  
2. It appears by the several instances given in the fourth Chapter, and the testimonies there, both of Malmsbury, and the Publisher of the life of King Alfred, That no lineal Succession was observed here, before the supposed Conquest.  
3. The Confessor's Law received by W. 1. 
Vid. Sup.  and continued downwards as the noblest Transcript of the Common Law, shows, that the Kings of England were to be elected, and the end for which they are chosen by the people. After the same manner do the ancient Historians and Lawyers, as well since that time as before, commonly express accessions to the Throne; and seem industriously to mind Kings of it, that, according to the caution given the Jewish Kings, 
Deut. 17.20.  their hearts be not lifted up above their Brethren.  
4. According to the usage from before the reputed Conquest downwards, the People are asked, Whether they are content to have such a Man King.  
5. The most absolute of the English Monarches never believed, 
Cambd. Brit. s. 104. de W. 1 Neminem Anglici regi constituo Haredem, sed a terno conditori cujus sum, & in cujus manu sunt omnia, illud commendo: non enim ta●tum decus hereditario jure possedi, &c,  that then Children had a right to the Crown, except the people consented that they should succeed; as appears by King Alfred's Will, and the Deathbed Declaration of William 1. And therefore some of our Kings, against whom there has been no pretence of better Title in any particular Person or Family, when they stood upon good Terms with their People, have often prevailed with them, in their Lives-time, to secure the Succession to their eldest Son; and H. 2. to prevent hazarding the Succession, endangered himself, by getting his eldest Son Crowned, himself living: But as the going no farther than the eldest, argues, that they looked on that as a Favour; the pressing for a Settlement on their Issue in any manner, argues, That it was not looked upon as a clear Point of Right without it.  
Of later Times Settlements have been made in Tail, which though they were occasioned by Pretences to Titles, are Records against an Hereditary Monarchy, according to the common notion, which is one that by the original Constitution descends to the next in the Line, male or Female.  

V Leges W. 1. de Fide, etc. Statuimus etiam ut omnes liberi homines foedere & sacramento affirment, quod intra & extra regnum Angliae Willielmo Regi Domino suo fideles esse volunt, etc. Leges S. Edw. tit. Greve. Vid. Juramentum homagii facti Regi.  6. The Oaths of Allegiance, required of all the Subjects, were never extended to Heirs, but were barely Personal, till Settlements of the Crown were obtained upon the Quarrels between the Families of York and Lancaster; and though H. 4. obtained in Parliament an Oath to himself, the Prince, and his Issue, and to every one of his Sons successively; and in the time of H. 6. the Bishops and Temporal Lords swore to be true to the Heirs of R. Duke of York; yet perhaps no Oath of Allegiance to the King and his Heirs can be shown to have been required of the Subjects in general, till that 26 H. 8. according to the Limitations of the Statute 25.  
7. Even where the People had settled the Crown, they seemed to intent no more, than to give a preference before other Pretenders; not but that as Ideocy, Frenzy, or the like, might set such an one aside; so upon other weighty Reasons they might alter the Settlement; 
Pryn 's Signal Loyalty, p. 274. Pol. Virgil. 1. 22. sub initio.  as appears by Polydore Virgil, who was never thought to lie on the People's side, whatever Evidences for them he may have concealed, or destroyed; whose words of H. 5. to whom the Crown had been limited by Parliament, may be thus rendered.  

Nota, Proceres may take in the Nobiles minores.  Prince Henry having buried his Father, causes a Council of Nobles to be convened at Westminster; in which while they, according to the Custom of their Ancestors, consulted about making a King, behold, on a sudden some of the Nobility, of their own accord, swear Allegiance to him; which officious  was never known to have been shown to any, before he was declared King.  

William 2. was elected during the Life of his eldest Brother, who was set aside by the English, against whom he had discovered Illwill, in spite of the Normans. So H. 1. Stephen was elected while Maud the Daughter of H. 1. was alive; and H. 2. succeeded in her Life-time, upon an Agreement made with Stephen, by the People's Consent. R. 1. as within. King John crowned in the Life-time of his eldest Brother's Son, Prince Arthur: So was his Son H. 3. in the Life-time of Eleanor, Prince Arthur's Sister. E. 1. as within. E. 2. elected. E. 3. set up by the People in his Father's Life-time, which the Father took for a Favour. R. 2. declared Successor by Parliament, in the Life-time of his Grandfather. H. 4. of the younger House, came in by the People's Choice, upon their deposing R. 2. H. 5, & 6. Son and Grandson to H. 4. came in upon a Settlement. E. 4. of the elder House, came in under an Agreement made in Parliament, between his Father, who lived not to have the benefit of it, and H. 6. His Son. E. 5. was never crowned. R. 3. who set him aside, was of the younger House. H. 7. who vanquished him, could have no Right of Proximity; for the Daughter of E. 4. and his own Mother, were before him. All that came in since, enjoyed the Crown, either under the various Settlements of H. 8. or that of H. 7. which took place again in J. 1. or from H. 6. at the highest.  8. As the Practice of the Kingdom is an Evidence of its Right, numerous Instances might be produced of Choices since the supposed Conquest, not only so called by Historians, but appearing so in their own Natures; wherein no regard has been had to Proximity, but barely to Blood.  
And I believe no Man can show me any more than Two since the reputed Conquest, of whom it can be affirmed, with any semblance of Truth, that they came in otherwise than upon Election, expressed by the Historians of the Time, or employed, as they had no other Title, or else a late Settlement of the Crown, either upon themselves immediately, or in Remainder. The Two upon which I will yield some colour, are R. 1. and E. 1. which singular Instances will be so far from turning the Stream of Precedents, that unless the Form or Manner of Recognising their Rights as Hereditary, be produced, the Presumption is strong, that the Declarations of the Conventions of those Days, or the People's acquiescing upon the Question, Whether they would consent to the King in nomination, or both, made even their Cases to be plain Elections. And of these two Instances, 
Walsingham, f. 1.  perhaps one may be struck off: For though Walsingham says of E. 1. They recognised him for their Liegelord, that does not necessarily imply a Recognition from a Title prior to their Declaration; for which way soever a King comes in duly, he becomes a Liegelord, and is so to be recognised or acknowledged; and that the Title was not by this Author supposed prior to the Recognition, appears, in that he says, 
Walsing. ib.  Paterni honoris successorem ordinaverunt," They ordained or appointed him Successor" of his Father's Honour. And yet his Father, 
Sir P. P. Obligation of Oaths, f. 295.  to secure the Succession to him, had soon after his Birth issued out Writs to all the Sheriffs of England, requiring all Persons above Twelve Years old, to swear to be faithful to the Son, with a Salvo for the Homage and Fealty due to himself.  
Indeed, of R. 1. the Historian says, 
Walsingham, Ypod Neustriae, f. 45.  He was to be promoted to the Kingdom by Right of Inheritance; yet the very Word, promoted, shows something that he was to be raised to, higher than that Right alone would carry him; which he fully expresses in the Succession of E. 2. 
Walfing. f. 68  which, he says, was not so much by Right of Inheritance, as by the unanimous Assent of the Peers and Great Men. Which shows, that ordinarily they, respectively, who stood next in Blood, might look for the Crown before another, till the People had by their Choice determined against them. This appears very fully by the Commissions issued out for the taking the Oath of Allegiance to E. 1. both in England and Ireland, after the People of England had agreed in his absence, to receive him for their King. The Commission, or Dedimus for Ireland, 
Claus. 1. E. 1. m. 20. De conservatione pacis in Hibern.  runs thus: Cum Angliae Gubernaculum, & terrae Hiberniae dominium, successione hereditariâ nobis pertineant; ob quod Praelati, Comites & Proceres, ac Communitas regni nobis tanquam domino suo ligio, & regi, fidelitatis juramenta & omnia alia, quae nobis ratione Coronae & dignitatis regiae, ab ipsis fieri aut praestari nobis in absentiâ nostrâ potuerunt, plenariè & sine omissione aliquâ, prompto & libenti animo praestiterunt, ac vos tanquam Regi & Domino vestro ligio consimile Sacramentum fidelitatis praestare teneamini, etc. Dat. 7. Decemb. Here the Lords and Commons, by whose direction the Commission was sent to Ireland in the King's absence, acted without staying for Powers from him; they own indeed his coming to the Crown by Hereditary Succession; and that by reason of that Inheritance, or his standing next to his Father, they had sworn Allegiance to him; yet they say, they had done it prompto & libenti animo, voluntarily; which, though it does not necessarily imply a free choice, leaves room for the admission of it. And he that observes the Dedimus for England, may see that this ordinary Right of Inheritance was not looked on as enough to constitute him King, without the consent of the Proceres Regni, which in the Language of that time, took in the Commons, 
Vid. Jan. Ang. fa. Nou. & Jus Anglorum ab Antiquo. Vid. etiam 2 part. inf.  as I have elsewhere shown, and appears not only by the enumeration, in the record for Ireland, of the Parties who received and swore to him as their King; But even by the Dedimus for England, which says the Magnates & Fideles caused his Peace to be Proclaimed. So much of the Record as is material, here follows.  

Claus. 1. E. 1. m. 11.  Quia defuncto jam celebris memoriae Domino H. Patre nostro ad nos regni Gubernaculum Successione hereditaria, ac procerum regni voluntate & ffdelitate nobis praestita sit devolutum, per quod nomine nostro, qui in exhibitione justitiae & pacis conservatione omnibus & singulis de ipso regno sumus ex nunc debitores, pacem nostram dicti Magnates & Fideles fecerunt proclamari. Here the said Proceres are branched into Magnates & Fideles, Lords and Commons; and their Consent, and Swearing Allegiance, is joined with the Succession, as the per quod, or ground of the King's becoming a Debtor, for exhibiting Justice, and preserving the Peace as King of England.  
What I have here shown of E. 1. with that under the Sixth Observation, giving an account of the People's forwardness in swearing Allegiance to H. 5. abundantly confutes the Inference from the Allegiance sworn to those two Kings, 
Elementa Politica, p. 12.  made by the Author of Elementa Politica, in these words, We may observe that the Kings of England are in full Possession of the Crown, immediately upon the Death of their Predecessors, and therefore King Edward 1. and H. 5. had Allegiance sworn to them before their Coronation; whence, says he, it follows, that as swearing does not make them Kings, so neither can Perjury, though truly objected, unmake them again.  
He instances also in King John, but surely cannot pretend that he had any Right before the People's immediate Choice, to which the Archbishop told him, that he owed his Crown. And if the People swore first, yet 'tis certain it was not, till he had been received as King of England, which implies the terms expressed in the Oath.  

Bromton, f. 1155. So Hoveden, f. 656.  But to return to R. 1. 'tis observable, That he was not called King here, but only Duke of Normandy, till he was Crowned; which, next to the People's Choice, was in great measure owing to his Mother's Diligence: For he being absent at the Death of his Father, his Mother, who had been released out of Prison by his means, to secure the Succession to him, went about with her Court from City to City, and from Castle to Castle, and sent Clergymen, and others of Reputation with the People, into the several Counties, by whose Industry she obtained Oaths of Allegiance to her Son and herself, from the People in the County Courts, 
Bromton, f. 1159.  as it should seem; notwithstanding which, the Archbishop charged him at his Coronation, not to assume the Royal Dignity, unless he firmly resolved to perform what he had sworn: To which he answered, That by God's help he would faithfully observe his Oath. 
Hoveden, f. 656.  And Hoveden says, That he was Crowned by the Counsel and Assent of the Archbishops, Bishops, Earls, Barons, and a great number of Milites, which Word was then of a large extent. Wherefore I submit it to Consideration, whether these are any Exceptions to the General Rule, or are not at least such as confirm it.  

11 H. 7. c. 1.  9 The Parliament 11 H. 7. declares, That it is against all Laws Reason, and good Conscience, that Subjects should lose or forfeit for doing their true Duty and Service of Allegiance to their Prince, or Sovereign Lord for the time being; that is, to the King de facto; as appears by the occasion of the Law, which was to encourage the service of H. 7. who had no Title but from his Subjects. And there is a Provision, That any Act or Acts, or other Process of Law to the contrary, shall be void. Which if it relates to Acts of Parliament, being built upon the Supposition, That according to the Fundamental Law, the People's Choice gives sufficient Title, perhaps is not vain and illusory, 
Lord Bacon's Hist. of H. 7. f. 145.  as the Lord Bacon would have it; but argues strongly, that the Parliament than thought the Monarchy fundamentally Elective; at least with that Restriction to the Blood; which I yield. And if this be part of the Fundamental Contract, for which it bids very fair, then perhaps no body of any other Stock may be King within this Statute.  
But I take it not to be evident, that the Acts here mentioned must needs be Acts of Parliament: For they might, and by the word [other] seem to be, such Acts as are of the nature of ordinary Process, or whereon such Process is grounded, as Ordinances of the Lords in Parliament, Orders of the Privy Council, Judgements or Decrees in Courts of Law or Equity, and the like.  
However, admit this Clause should be vicious and insignificant: My Lord Bacon, I am sure, gives no countenance to a certain Dissenting Bishop's Argument in public Discourse, who undertook from hence to prove, That the Statute itself is of no force.  
Yet such sort of Arguments are of great service to men resolved upon a Conclusion; nor can better be expected from them.  
To what I have offered on this Head, the following are all the Objections of seeming weight which have occurred to me.  
Object. 1 The Maxim in Law, That the King never dies: Or, to use the words of Finch, ' The Perpetuity which the Law ascribes to him, 
Finch's Description of the Common Law. French Edit. An. 1613. f. 20. b. & 21. a. The same made use of in Reflections upon our late and present Proceed, p. 10.  having ' perpetual Succession; and he never dies; For in Law it is called the Demise of the King.  
Answer. To which I Answer, 1. That neither that Book, nor any Authority there cited, is so ancient as the Settlement of the Crown above observed: And that the Death of a King is but a Demise, transferring the Right immediately to a Successor, may be owing to the Settlement, but is no Argument of any Right otherwise. 2. Even where there is an Election, 
Dyer f. 165. Anderson f. 44. He has it, Le Successeur & le Heir. Elsewhere, Heir on Successeur, ib. f. 45.  though never so long after the Death of the Predecessor, yet by way of Relation, 'tis as if there were a Demise, or Translation of Interest without any Inter-regnum: as it was resolved by all the Judges, 1 Eliz. Of which the words of Lord Dyer are, ' The King, who is Heir or Successor, may write and begin his Reign' the same day that his Progenitor or Predecessor dies: With which agrees the Lord Anderson.  
But that to many intents a King dies in his Politic Capacity, as well as Natural, 
Vid. 1. E. 6. c. 7. 7 Rep. f. 30.  appears by the discontinuance of Process in Criminal Causes, and such in Civil as was not returned in the Life of the former King till kept up by Statute; the determination of Commissions, and the like.  

Agreement betwixt the present and former Government. Supposed to be Doctor Fulwood's. P. 42.  A Learned Author, that he may reconcile our present Settlement to this supposed Maxim, which appears, not to have any foundation in Antiquity; will have it, That by the Vacancy of the Throne, no more was meant by the Convention, than its being free from the former Possessor: but that it was full of a Successor, and that there was not Interregnum; For, says he, such a Vacancy we have upon every Demise of the Crown.  
And so there was a Vacancy of the Throne, and no Vacancy at all. For in ordinary Demises, 'tis manifest there is none. Freedom from the last Possessor, is not a Vacancy of the Throne.  
Two Grounds this Doctor goes upon to justify his Equivocation in this, for I can call it no better.  
1. That otherwise this would be inconsistent with the nature of our Ancient Hereditary Monarchy.  
2. That the Convention show, that they meant it not otherwise than in his Sense.  
1. As to the First, It is observable, 1. That the Notion which himself goes upon, 
P. 40.  is as inconsistent with the ordinary Rule: For he makes the Heir to have only jus in re, and to want Livery and Seisin. And consequently, till the Coronation there is an Interregnum: Tho it may afterwards be supplied by relation to the Descent of the Right.  
But herein the Doctor is certainly out: For in ordinary Descents, or Demises, 
Hales' Pleas of the Crown, p. 40.  Treason may be committed against the Heir as in full possession, before any Recognition or Coronation. But since he will hardly affirm that it could have been so in our Case, he must grant that there was a more absolute Vacancy than that for which he contends. 
P. 54.  It is his own Argument, that our present Sovereigns are really King and Queen, because Treason may be committed against them within the purview of the Statute 25 E. 3. And by the same Reason they were not King and Queen before they were declared so, unless Treason could have been committed against them before such Declaration.  
2. But 2. The Doctor owns, that though upon some extraordinary Revolution, and some absolute necessary Reason of State, for our common preservation, a Stranger, none of the Blood-Royal, should be advanced to the Throne for one or more turns; whilst that necessity continues, the Constitution of the Government would not be altered. And yet would suppose, 
P. 56. V p. 41. Where he speaks as his own Sense, what in the other place is put by way of Objection.  that if our King and Queen come in otherwise than by Descent, it would be a Designed Alteration or Change of the Ancient Constitution of this Hereditary Monarchy.  
And yet himself owns, That by the Law of Nature, Salus Populi is both the Supreme, and the first Law in Government; and the scope and end of all other Laws, and of Government itself. Nay, he yields, That the Oath of Allegiance, that Sign or Testimony between King and Subject, is discharged or dispensed with, when Salus Populi, the preservation of Three Kingdoms is concerned, and in danger.  
If then an Alteration of the Course of Descent, in case of Necessity, is so far from a Change of the Constitution, that 'tis by virtue of the Chief Fundamental Law the Salus Populi: I hope it will be allowed, That the Representatives of the People, have upon the Vacancy of the Throne from a former Possessor, which he yields, to have been in the Case in question, a right to judge wherein their own Safety lies. Otherwise they have a Law of which they can have no benefit. And since our Representatives have made so wise a determination, they that do not submit to it, may well be looked upon as Persons who abdicate themselves from the benefit of this Government.  
Nay, further, the Doctor confesses, that for his part he knows no Law against the possibility either of a Vacancy in the Throne, or an Interregnum in extraordinary Cases; such as himself yields ours was.  
But the remaining Question is, Whether the Convention shown that they meant such a Vacancy as caused an Interregnum? Their Words, as he observes, are these, 
P. 38:  [King James the second having Abdicated the Government, and the Throne being thereby vacant.] So far he is in the right, That the Convention went upon the Supposition of a Vacancy; but their supposition did not make one, neither did it make an Abdication: But 'tis evident that the supposition of the Vacancy, as Consequent upon the Abdication, was the Ground of settling the Government as it is; and that they looked upon the Vacancy as more than a freedom from the last Possessor, appears by their preferring His Majesty in the Settlement: Which preference had been justifiable even according to what the Doctor receives, though this King had not been of the Blood-Royal.  
But for a farther Evidence, 
The Stat. 1 W. M. for reviving of Actions and Process lately depending in the Courts of Westminster, and Discontinued by the not holding of Hillary Term, and for supplying other defects relating to proceed at Law. Consid. touching the Oath in the Title page.  that the Throne was absolutely Vacant in the eye of the Law, and so judged and declared to all Men by the Convention, and Their Majesties, concurring in a Parliamentary Act; The Doctor may please to consider the Statute for Supplying defects relating to proceed at Law: Which provides, that for Crimes committed between the 11 th' of December, and the 13 th' of February following, Informations or Indictments shall have only the year of our Lord God, instead of the year of the King's Reign. And where Conclusions used to be contra pacem Domini Regis, they shall conclude, contra pacem Regni.  
Let not Divines therefore go to argue us out of our Government; but let them submit to that Rule which Dr. Whitby citys, Optima regula quâ nulla est verior, aut firmior in jure, neminem oportet esse sapientiorem Legibus.  
Object. 2 'Tis urged, That the Hereditary Right contended for, has not been interrupted by the People's Elections, so often as it should seem by the Breaches in the Succession; for that many who came in before them who stood next, were Testamentary Heirs of the appointment of the Predecessor: Which argues an Inheritance in him that Disposes. And Dr. Brady thinks he produces an Example, 
Brady's Hist. of the Succession. f. 8, 9  where the Election of the People was bound and limited by the nomination of the Predecessor.  
But if he had duly weighed the Precedents of this kind, he might have understood, That an Election without a Nomination, had full effect, while a bare Nomination had none. And he might have learned from Grotius, That among the Germans, from whom we descend, Kingdoms did not use to pass by Wills; and that Wills were but Recommendations to the People's Choice, but not Dispositions.  

Mezray in the Life of Clotair 2.  And that thus it was in France, appears by their Historian Mezray, who shows, That anciently the King's of France were chosen out of the Royal Race: But that Three Conditions were ordinarily required. 1. Birth; for they were to be Legitimate. 2. The Will of the Father. 3. The Consent of the Great Men; which commonly used to follow the other two.  
Object. 3 I find it urged, That as anciently as the time of E. 3. the Realm declared, 
Vid. Debates about Deposing.  That they would not consent to any thing in Parliament, to the Disherison of the King and his Heirs, or the Crown whereunto they were Sworn.  
Answ. If any colour of evidence can be produced that the Subjects of England so early as that, Swore Allegiance to the King and his Heirs, this were to the purpose. 
Knighton, f. 248.  Indeed, I find, that before this, 24 E. 1: a Foreign Prince, the King of Scotland, Feudatory to the Crown of England, did Homage to the King and his Heirs; but the like not being exacted of the Subjects of England till particular Acts, whereby the Crown was settled; it argues strongly, as indeed appears from the Subject matter, That the Homage paid by a Foreign Prince, was due to none but the present King, and his Successor to the Kingdom, whoever was next of Blood. And by parity of Reason, the Disherison of the King, and him, her, or them who succeeded to the Crown, was all that could be referred to, when they urged the Obligation of their Oath to the King and his Heirs, or the Crown: Which appears farther, 
Leges Sancti Edwardi tit. Greve. Conjurati fratres ad defendendum Regnum, etc. & honores illius omni fidelitate cum eo servare. So Leges W. 1. tit. De Fide & obsequio erga Regem. Quod Willielmo Domino suo fideles esse volunt & honores illius, etc. defendere. Bracton, Lib. 2. Cap. 29.  not only from the old Oath of Allegiance, to which they must needs have reference, whereby they are bound to defend the Rights of the Crown; but even from the Matter then in question, which was not of the Right of Succession, but of a Flower of the Crown. Bracton puts this out of Dispute, when he tells us, That Inheritance comes not from an Heir; but an Heir from Inheritance: And that Inheritance is the Succession to all the Right which the Predecessor had by any sort of Acquisition.  

Vid. Sir P. P. As Successors are Heirs, so Dr. Brady tells us, Gloss. f. 18. That Prepossessor, one that possessed the Land before the present possessor, without any relation to Blood or Kindred, is Ancestor in Doomsday, and in the Writ de Morte Antecessoris. Sir P. P's Obligation of Oaths, f. 302. F. 298. F. 300.  With Bracton agrees the Civil Law, Haeredis significatione omnes significari successores credendum est, etsi verbis non sint expressi: By Heirs we are to believe all Successors to be signified, altho' not expressed in words: And again, Nihil est aliud haereditas quam Successio in universum jus quod defunctus habuit; ' Inheritance is nothing else but Succession 'to all the Right which the deceased had. Wherefore I cannot but wonder that so learned a Man as Sir P. P. should cite this to prove, that Allegiance is due to the Heirs and Successors in a Legal Course of Descent; That is, as he explains, or receives it out of Mr. Prynn, by Proximity of Succession, in regard of Line.  
Nor is this Learned Man more fortunate in mentioning the Salvo which Littleton tells us is to be taken to the Oath of Homage to a Subject, Salve la Foy que jeo doy a nostre Signior le Roy; 

Sir P. P. f. 297.  
Littleton, tit. Homage, Sect. 85.   where there is not a word of Heirs: But he tells us, that Littleton citys Glanvil, where the word Heirs is. Whereas 'tis the Lord Cook who makes the Quotation, as he does of Bracton, whose sense of the word Heirs we have seen: And Littleton fully confirms it, by leaving out the word Heirs, as a Redundancy, Allegiance being due to every one that becomes King, and to no other.  
But to put the Extent of Heirs to a King out of Controversy, 
Popham 's Rep. f. 16, and 17.  we have the resolution of all the Judges in B. R. in the time of Q. Eliz. on my side. King R. 3. had granted certain Privileges to the Burgesses of Gloucester, with a saving to himself and his Heirs. And it was agreed by all the Justices, That although the words are saving to himself and his Heirs, it shall be taken for a perpetual saving, which shall go to his Successors. This therefore they adjudged to reach the Queen, who 'tis well known was not Heir to R. 3.  
Object. 4 The great Objection is, That in the Contests for the Crown between the Families of York and Lancaster, each side pretended Title by Proximity of Blood; and as either prevailed, their Right was acknowledged to be according to God's Law, Man's Law, and the Law of Nature. To which I answer,  
As appears in the very Objection, this was applied to those who had no Right of Proximity, as well as to those who had. And thus 'twas to R. 3. as well as to E. 4. and even the Election of H. 4. after the Deposing and Relinquishing of R. 2. with his own express consent, is by the same Parliament that says so much of the Title of E. 4. called an Usurpation upon R. 2. Wherefore if this Record be any way leading to our Judgements, no Deposing or Resignation, what ever be the Inducement, can be of any force.  
Whence 'tis plain, that all those are but Compliments to the longest Sword; However they neither set aside former Authorities, nor establish any Right for the future; at least not more for the Heirs of E. 4. than the Parliament of R. 3. did for His Heirs: Yet whoever comes next by Right of Proximity, according to any Settlement in being, I will not deny that they enjoy the Crown according to God's Law, Man's Law, and the Law of Nature: For, 

Fortescue de laudibus legum Angliae, c. 3.  
Jovian, p. 253.   as the great Fortescue has it, All Laws published by Men, have their Authority from God. Upon which the Author of Jovian argues, and supposes all Laws of Men, to be the Laws and Ordinances of God. Yet who can say but these Human Creatures, or Ordinances of Men, may be altered, as they were made? And though it may seem strange to some, yet I may with great Authority affirm, That when the People had determined the Right on the side of R. 3. He was King as much according, to God's Law as E. 4. For Peufendorf holds, That where the Question is, 
Peufendorf. de Interregnis, p. 288. Quod si dubitatur qui gradus aut quaelinea sitpotior, declarata voluntas populi finem liti imponet, etc.  What Degree, or what Line is best? The declared will of the People determines the Controversy; since every one is presumed to understand his own Intention. And the people that is now, is to be thought the same with that by which the Order of Succession was Constituted.  
But let Men argue as nicely as they please for a Right or Sovereignty inseparable from the person of the next in Blood, to the last Lawful King; let this fall upon J. 2. the reputed Prince of Wales, or any other person of unclouded Birth and Fame; and let them argue upon the Declaration 1 E. 4. That Allegiance, accordingly, is due by God's Law, Man's Law, and the Law of Nature: Certain it is, That the Statute 11 H. 7. abovementioned, was not only made in an Age of greater Light; but being a subsequent Law, derogates from whatever is contrary in the former. By this last it is declared to be against all Laws, That Subjects should suffer for doing true Duty and Service of Allegiance to the King de facto: Which is as much as if 'twere expressed to be against God's Law, 
Vid. 3 Inst. f. 7. upon the Stat. of Treason 25 E. 3. referring in the Margin to this Statute. This is to be understood of a King n possession of the Crown and Kingdom: For if there be a King Regnant in possession, although he be Rex de facto and not the jure, yet He is Signior le Roy, within the purview of this Statute; and the other who hath the Right, and is out of possession, is not within this Act. Nay, if Treason be committed against a King de facto, and after the King de jure come to the Crown, he shall punish the Treason done to the King de facto, And a Pardon granted by a King de jure, that is not also the facto, is void.  Man's Law, and the Law of Nature. By the necessary consequence of which, Allegiance is due to a King de facto, according to all these Laws. Wherefore whoever denies Allegiance to King William and Queen Mary, or maintains a contrary one to J. 2. offends against God's Law, Man's Law, and the Law of Nature. Nor, whatever some imagine, can the Proviso at the end of this Statute in the least impair its force, as to what I use it for. The Proviso runs thus:  

11 H. 7. c. 1.  Provided always, That no person or persons shall take any benefit or advantage by this Act, which shall hereafter decline from his or their said Allegiance.  
Where said Allegiance, shows it to be meant of Allegiance to the King de facto, whose Service is called true Duty. And no Man surely can think the meaning to be, that if after such Service they turn to the other side, or become Traitors to the present Power, they shall suffer for the former Service as Traitors against him that had the Right, either during the Reign of the King in being, which would be an unlikely owning the Ejected Power; or hereafter, if that should come to be restored; which would be far from answering the apparent end of the Clause, which is to keep Men in obedience to him who has the Power of punishing the disobedient. Wherefore the meaning may be, That no Man who departs from his Duty of Allegiance to the present King, shall save himself by pleading, that he had been in Arms, or had done him any signal Service. In short, this was to be no Corban to Answer for any following departure from Duty.  
But as the body of the Act provides only for the Indemnity of them who pay due Allegiance to the King de facto; this Proviso may be particularly for the Kings own Security in affirmance of the Common Law, which makes all Resisting the Possessors of Crowns, Treason, in single persons. And the sense may run thus: Provided, that whoever declines from Allegiance to the King in possession, to help another to the Crown, shall not, if the first happen to be Restored, plead that the other became King de facto.  
However, this does not in the least diminish the Obligation of Allegiance to the King who shall obtain possession by the Ousting another.  
And I suppose by this time 'tis pretty evident, That both the Body of the Act, and the Proviso, relate only to a King de facto, and endeavour to free the Nation from nice speculations about the Right to the Crown.  
For confirmation of what I have shown, to prove that the English Monarchy has been Elective, within the Royal Family, it may not be improper to observe how it has been anciently in Germany and France, 
See this distinction in Nauclerus. Aimonius lib. 1. c. 4. Les Soupirs de la France esclave, Mem. 6. p. 83. P. 84.  or France Germanic, from whence we came, and France  branched out from the Ancient Germans. Aimonius says, ' That the Francs chose a King, and placed him upon the Throne, in imitation of other Nations; which the Author of the Sighs of France enslaved, renders the other Nations of the Gauls and Germans: And that Author puts it by way of question, implying the stronger affirmation, Whether it does not appear throughout the whole History, that the French have preserved to themselves the Right to choose within the Royal Family, him who appeared to them the most fit to Protect, Defend, and Govern them well?  
The Germane Conringius, 
Esse quid hoc dicam vivis quod fama negatur? Conringius de Negotiis Conventuum Imperii p. 417.  being an Author already possessed of that Credit which may spring out of the French man's grave; I shall transcribe Conringius to this Point more at large.  
Although, says he, some think that our Kings anciently came to their Power by Succession, others by Election; yet it seems fit to say, that a middle way was in use: That the Children of Kings or Emperors did not succeed, unless approved of by the States; and yet were not passed by, if they were worthy of the Empire. For they who were come from the Royal Stock, were believed to tread in the steps of their Ancestors, and that they would not only preserve, but exceed the glory of their Progenitors, according to that of Aristotle, 
Aristot. Rhet. lib. 2. c. 16.  They who are of Noble Birth, are desirous of Praise and Glory: For it is the nature of men to desire to increase, not to diminish or lose the goods which they had before.  
But when the Royal Family was extinct, than it was permitted the States to raise to the Empire whomsoever they pleased, by an Election in every respect free. So the Caroline Family being extinct, the Kingdom of the Western Francs was conferred upon Henry, afterwards called Auceps, by a most free Election of the Francs and Saxons, of which Translation of Power, Regino in his Chronicles of the year 920 says thus.  
Duke Henry is chosen King by the Consent of the Francs, Almains, Bavarians, Thuringians, and Saxons, when, however, he had no prior Right to the Empire before the other Princes. In the same manner afterwards Lothair a Saxon, Conrade 2. a Suede, Otho 4. a Saxon, and many more, obtained the Empire of Germany, in the right of pure Election, as Onuphrius witnesses.  
‛ But whether they were of the Royal Family, 
Onuph. Panvin. c. 5. de Comitiis Imp.  or obtained the Kingdom' only and merely by Election, they were chosen by the States and People in full Conventions. For which he instances in the Elections of Sigebert the Son of Dagobert; 
In plenis Comitiis.  Charles and Charlemagne chosen together upon the death of their Father Pipin: Of Charles upon the death of his Brother; and Lewis the Pious after him.  
This manner of Choosing within the Royal Family, he observes to have remained in the Empire, to the time of H. 4. but that it was interrupted by Pope Gregory 7. who under show of advancing the Liberties of Germany, made way for the Papal Influence and Tyranny. Having observed the mischief of absolute Elections, he adds, Indeed I should not wholly prefer mere Succession, Election being quite taken away; but I think this manner of Election to be best, where great account is had of Blood, and no Son worthy to succeed his Father is put by. That the way of constituting Kings, mixed with Hereditary Succession, and free Election, was very suitable to the manner of Ancient Germany, appears at least from hence, that afrer that mere free Election had been introduced by Hildebrand, all things in Germany were in Commotion and Disorder.   

CHAP. IX. The Fourth Head of Positive Law.  
A short Recapitulation of what has been proved. An actual Discharge of Oaths of Allegiance to J. 2. shown from the Authority of the Judgement past. His Usurping a Legislative Power: Leaving the Kingdom without providing for the Administration of Justice; and going into France. This confirmed by Rastal, Lord Hobart, Justinian's Digests. The Rescript of Theodosius and Valentinian. Pufendorf de Officio hominis & civis. His Elementa Juris prudentiae. His Treatise de Jure Gentium. Grotius. Pufendorf de Interregnis. Knichen's Opus Pol. Philip Paraeus. A particular consideration of what the Learned Knight, Sir R. Pointz says, seeming against these Authorities, but shown in truth to confirm them, and to bring the Rules of the Civilians to our side. That the Crown came not by Right of Descent to the next in Blood, after the discharge of the Allegiance to J. 2. The Arguments for the People's having been restored to that Liberty which they had before the Settlement of the Crown, enforced from a particular Consideration of the State of the Settlement. Where it is shown, how the word Heirs may be looked on as restrained in the first Settlement on Heirs, by Gomezius his Rule. The Titles of H. 6. E. 4. H. 7. and H. 8. His several Settlements, and their effects in relation to the Queens Mary and Elizabeth, and J. 1. The Recognition to J. 1. not extending to his Heirs. And questioned, Whether the Recognition was not his best, if not only Title. With a modest Inference.  

That the People of England were lately restored to a qualified Choice.  I Think I have with due regard to all colourable Objections, made it appear, That Allegiance may in some Cases be withdrawn from one who had been King, till the occasion of such Withdrawing, or Judgement upon it.  
And this I have done, not only from the Equity, and reserved Cases necessarily implied, but from the express Original and continuing Contract between Prince and People; which with the Legal Judicature impowered to determine concerning it, I have likewise shown, and exemplified by the Custom of the Kingdom, both before the reputed Conquest, and since. And have occasionally proved, That though Oaths of Allegiance may reach to Heirs, according to special Limitations, as was 26 Hen. 8. yet in common intendment, by Heirs of a King or Crown, no more is meant, than such as succeed to it according to the Law, positive, or implied. And that whoever comes to the Crown upon either, Allegiance is as much due to him by the Law of God and Nature, as it was to the nighest in Blood: 
Sanderson de Obligatione Juramenti Lect. 4  Or to use the words of Bishop Sanderson, Dignity varies not with the change of Persons: Whence, if any Subject or Soldier swear Fealty to his King or General, the Oath is to be meant to be made unto them also who succeed to that Dignity.  
And when the Crown continues in the Blood, this especially by what I have above-shewn, puts the Obligation of Allegiance to the King in being, out of Controversy, unless it can be made appear, that the Right of the former King remains; or that there is some Settlement of the Crown yet in force, which ties it strictly to the next.  
I come now to prove, That the People of England are actually discharged from their Oaths of Allegiance to J. 2. and were lately restored to that Latitude of Choice which I have shown to be their Original Right.  
The Lords and Commons having a Judicial Power in this matter, as hath been proved at large; their Exercise of this Power, in the nature of the Thing, determines the Right, unless an Appeal lies from them to some higher Court in this Nation: But that no Power can legally question them or any of them in this matter, appears more particularly in that there is no Statute now in force, (nor was since the Death of Car. 2.) which makes it Treason to conspire to Depose a King, or actually to Depose him. 
Vid. Sir Rob. Atkins his Excellent Defence of the L. Russel▪ f. 22, 23.  But this is of the Nature of those Common-Law-Treasons which are left to the Judgement of Parliament. And they who are the only Judges of their own Actions have a pretty large liberty in them, especially according to them who would infer the absolute Power of Princes, from the supposition of no constituted Judges of their Actions. Wherefore the Defence of their Proceed might justly seem to be superseded, were it not for an ungovernable sort of men, who either cannot, or will not judge according to the Rules of Right Reasoning; but as they will hardly admit of any Doctrine as true, for which they have not the Decision of some Father or Council; will believe no Action, not proceeding from their imperious Dictates, justifiable even in Cases of the utmost necessity, for the preservation of the true Religion and just Laws, for which they have no warrant from the Examples of their Forefathers, or Opinions of Men, whose Books have passed with their Allowance: Which often drives me to the seeming Pedantry of Quotations, to confirm the most obvious Considerations to which my own thoughts led me.  
The either open, or more covert Matters of Fact, inducing the Declaration of Lords and Commons, That J. 2. has broken the Original Contract, I need not now inquire into. All People must own that he has, if they in the least attend to the Constitution of our Government, and how apparently he, by his general Dispensations, usurped a Legislative Power for the Destruction of the Protestant Religion and Civil Rights; which we were in a fair way of being Dragooned out of by a standing Army, by degrees to have been totally under Popish, or Complying, Officers. Yet if there were no more than his Leaving the Kingdom, without making any Provision for keeping up the Justice of it, and going into France, a Country from whence all mischiefs have of late Years flowed upon us and our Religion, Who can deny but this alone would have been enough to set him aside? 
Rastal's Entries tit. Reattachment. f. 544. b. Resum. etc. quia extra Regnum Angliae progress. fecimus, nullo locum tenente nostrum sive Custode Regni relicto, etc.  The going out of the Realm without appointing a Custos, was anciently in our Law a Discontinuance of Justice.  

Hobart f. 155.  And the Lord Hobart gives it as a Maxim, Cessa Regnare, si non vis Judicare: ' Cease to Reign, if you will not judge, or maintain the ' Course of Justice.  

Vid. Leges 12. Tab. de Magistrate.  Many, I know, upon these Questions rather regard the Civil Law; and that, I am sure, gives a home thrust, in the Case of deserting one's Country, and going into such an one as France is to our Nation, though it has been in too strict Alliance with our Kings.  
The Digests say,  

Digest. lib. 49. tit. 15. De Captivis & Postliminio. Transfugae nullum postliminium est, nam qui malo Consilio & Proditoris animo patriam reliquit, hostium numero habendus est, etc. transfuga autem non is solus accipiendus est, qui aut ad hostes aut in bello transfugit, sed ad eos cum quibus nulla amicitia est fide susceptâ transfugit.  A Deserter has no Right of being restored to his Country: For he who left his Country with an evil and treacherous mind, is to be held as an Enemy, etc. But we are to take not only him for a Deserter, who runs over to Enemies in time of War, but also during a Truce: Or, Who runs over to them with whom there is no Amity, either after undertaking to be faithful to his Country, or else undertaking to be faithful to the other. Either of which senses the words will bear.  
'Tis likely to be said, That this out of the Civil Law is improperly applied to the Prince, who according to that, is exempt from all Laws.  

Imp. Theod. & Valentin. Caes. ad Volusianum Praefectum Proetorio. Digna vox est Majestate Regnantis, Legibus adligatum se Principem profiteri. Adeo de auctoritate juris nostra pendet auctoritas: & re verâ majus imperio est submittere Legibus principatum. Et oraculo praesentis Edicti, quod nobis licere non patimur aliis indicamus.  But I would desire such, besides what I have observed upon the Roman Lex Regia, to read the Rescript of Theodosius and Valentinian, wherein they thus declare: 'Tis an Expression suitable to the Dignity of one that Reigns, to profess himself bound by the Laws. Our own Authority does so depend upon the Authority of Law. And in truth for the Governing Power to submit to Law, is greater than Empire. And by the Promulgation of this present Edict, we make known to others, what we will not allow ourselves.  
That J. 2. had before his Departure, broken the Fundamental Laws, and that now he not only ceases to protect, but before the Judgement passed upon the Breach, was in a Kingdom which foments and strengthens a Rebellion in Ireland, part of the Dominions belonging to the English Crown, I think no body will deny. Nor till they can answer what I have shown of the mutual Contract, continued down from the first Erection of the Monarchy here, ought they to deny, that he thereby broke the Original Contract, which bond the People to him, and him to them. What results from this Breach, is now more particularly to be considered. That it is a Discharge from all Allegiance to him required by any Law, and confirmed by any Oaths, is evident, not only from the former Authorities, but from the Condition going along with such a mutual Contract, as I have proved to be with us between Prince and People. Or rather to use the Words of the Learned Pufendorf,  
The Obligation is not so much dissolved, as broken off, 
Peufendorf, de Officio Hominis & Civis, p. 201.  by the perfidiousness of either Party; for when one does not perform that which was agreed on, neither is the other bound to performance: For the Prior Heads of things to be performed in Contracts, are in the subsequent, by way of Condition. As if it should be said, I will perform, if you will perform first.  
This he more fully explains in another Book, 
Pufend. Elementa Juris prudentiae, p. 85, & 94. Vid. Puf Supr. de Interregnis, p. 274.  where he distinguishes between an Obligation imperfectly mutual, as he supposes it to be between an Absolute Prince and his Subjects; and one perfectly mutual, as he takes it to be, where the People have conferred a Power on any Terms.  
Of such Obligations, he says,  
These, since they have a mutual respect to the things agreed on, 
Pufend. Elementa Juris prud. p. 94.  and suppose mutual Faith; it is evident, That if one Party violate the Faith which he plighted, the other is no more bound: And therefore he is not perfidious, who stands not to those Contracts which the other has broken. For all the Heads of one and the same Contract run into each other by way of Condition, etc.  
In that Book of his which is counted the Standard of the Law of Nations, 
Pufend. de Jure Gentium, p. 1105.  he asserts it to be lawful for Subjects to oppose their Prince by Force (which is a sufficient departure from Allegiance) if he goes about, Modum habendi potestatem immutare, 
V Grot. de Jure Belli & Pacis, de summitatem habendi plenitudine, p. 62. Dissertationes de Interreg. p. 272. Supra.  i. e. to change that Manner in which he, by the Contract, enjoys the Power, from less to more absolute.  
And in his Tract de Interregnis, cited above, he allows of this; If the King abdicate all Care of the Commonwealth, becomes of an hostile mind towards his Subjects, or manifestly departs from those Rules of Governing, upon the observance of which, as upon a Condition the Subjects have suspended their Obedience.  
Nor is the Germane Author, Knichin, less plain; whose Words are,  
If the Magistrate have absolute and full Majesty, due Subjection ought by no means to be denied him, though he be impious; 
Rudolphi Godofredi Knichen opus polit. f. 1226.  Nor may he be cast out, and another substituted in his room: Much less can a new form of Government be introduced. But if he were Constituted by the People under certain Pacts and Promises sworn to him by the People, and therefore is bound to certain Rules of Laws, and either to do or avoid any thing contained in those Contracts, whether Fundamental Laws, or things particularly concerted, (as for Example, the Emperor in our Empire:) They not being observed, but studiously, enormously, and obstinately violated; the hopes of amendment, after many of the Subject's Prayers and Admonitions, plainly vanishing; he may rightfully be removed by the States and People, etc. The Reason is, because he was Promoted to the Government by such Agreement, and that sworn to, according to the Laws of the Agreement or Contract: The Nature of which consists in this, That if that Party for whose sake or cause they are Constituted, violate them, the other Party, of very Right, is freed from the Observance of those things which are granted by such Laws.  

Philippi Paraei Vindicatio, p. 50, and 51.  Nor does Philip Paraeus come short of this, in his Defence of his Father David, where he speaks very particularly of the Effect of the mutual Compact.  

Sir R. Poyntz his Vindication of Monarchy. Ed. Anno. 1661.  What is said by the Learned Knight Sir Robert Poyntz, to disable such Authorities as I have Cited, in truth confirms them.  
The Doctrine of the Civilians, concerning the nature of Contracts, he handles with Judgement; but if he fails in applying their Distinctions, the Foundation of our Government being different from that which he goes upon, than he will prove an Authority on my side.  

P. 86.  The Doctors of the Law, says he, are much perplexed in debating these two Rules in Law, One is, That in vain he requireth the performance of a promise or contract, to whom he refuseth the performance of that which he ought on his part to perform. The other is, That a Man is not bound to perform his Oath, if that be not performed in consideration whereof he did swear. And unto these Rules they assign divers Exceptions and Limitations: One is, That [regularly] ubi contractus est perfectus, etc. and a mutual Obligation arises, 'tis not rescinded by the failure of either Party: And that in contractibus innominatis, Innominal Contracts, such as are without any Condition expressed, it is not lawful agere ad resolutionem Contractûs, 
P. 86.  to act towards the Dissolution of the Contract, by reason of a Contravention on one side, sed vel ad implementum contractûs, vel ad interest; but either towards the compelling performance, or the obtaining satisfaction for the breach.  
The Contract between Prince and People, he supposes to be both, 

1. A perfect Contract, and  
2. An innominal one;    
Consequently indissoluble, notwithstanding any Breach on the King's side. But if it be looked on barely as a perfect Contract, without Consideration of its being without Condition expressed; by the same Reason, even the Rebellion of a Subject would not discharge the King's Duty to protect him, any more than the King's subverting the Constitution will discharge the Subjects Allegiance: Which shows, that this is meant only of Instances which are not of the Essence of the Contract. And this is implied in restraining the assertion with the word [Regularly], to Matters within the ordinarily Rule.  
But consider these severally,  
1. By perfect Contracts, must be meant such, wherein the Obligations are fixed and completed at the beginning, or from the nature of the Relation entered into. And he says notwithstanding, The Distinctions and Limitations in Contracts and Obligations Civil, all agree, That in those Duties which are mutual by the Laws of God and Nature, as between the Father and the Son, the Husband and the Wife, the Lord and his Vassal, the Prince and his Subjects; the breach of Duty in the one, is no discharge unto the other.  
Not to observe how extensive he makes that Law of God or Nature which ascertains the Lords right over his Vassal, and the Princes over his Subjects, I much question, Whether all agree that his Rule holds in such Cases as destroy the very nature of the Relation, as the Adultery of the Wife, or the like: However himself yields that there may be an Obligation superior to these; for having produced Examples of Passive Obedience, 
P. 96.  he says, ' We cannot here ground an Argument ' for justifying obedience to all Tyrants and invaders of our Country. Omnes enim omnium Charitates una Patria complexa & supergressa est, etc. filius sine scelere, Proditorem Patriae, licet Pater sit occidit. In omni tempore bellum gerendum sit pro Defensione suâ, & Patriae, & Legum Patriae.  
For our Country alone comprehends, and goes beyond, all private affections. A Son, without sin, kills a Traitor to his Country, though he be his Father. At all time's War may be waged in Defence of ones self, ones Country, and the Laws of one's Country.  
He owns expressly, that Obedience is so far from being due to a Tyrant, that it is not justifiable. And he could not but know, that the Civilians, whose Rules he receives and applies, under this Apellation include as well one who 
(a) 
Vid. Comment. de Regno aut quovis principatu rectè & tranquillè Administrando.  
Advers. Machiavellum Ed. Ao. 1577. p. 248. Bartolus duas species tyrannorum Statuit, quarum unam juris seu tituli, alteram exercitii sive usûs vocat. Tyrannus titulo is est, inquit, qui sine ullo jure, aut iniquo & minimè legitimo titulo Principatum invadit; Tyrannus exercitio sive usu is est, qui legitimum quidem jus ad principatum habet, sed eum injustè & contra Leges exercet. Itaque demum Statuit ejusmodi Tyrannis obsequium non deberi: Sed è Magistratu deturbandos esse. Ib. f. 249.   having a lawful Title to Power uses it unjustly, as one who usurps Power without any Title, or other than what is unjust and illegal.  
Wherefore, since he makes no Distinction of Tyrants, 'tis not to be doubted, but he, with the Civilians, particularly the Learned Bartolus, discharges all Obedience, and consequently Allegiance, the Legal tye of Duty, to a Tyrant in the exercise of Power, as well as in Title. Of both these, Bartolus, as a Judicious Author, represents his sense; held, That Obedience is not due to them; but that they are to be thrust out of the Government.  
And the deservedly esteemed Great Man, Mornay du Plessis, 
Tractatus de Eccles. per Phil. Mornaeum, p. 68  in his Treatise of the Church, citys Zabarel, Baldus and Bartolus for the same distinction of Tyrants. Nay, observes that these Lawyers, though Papists, held, that even Popes might be Tyrants, in either of these respects.  
2. As to the innominal Contracts, Sir Roger's Rule is, That the Breach of one, will not justify the other, to proceed towards the dissolving of the Contract, which comes not up to any Case which does ipso facto dissolve it. Besides, this notwithstanding, there may be either a Dissolution of the Contract, a compelling to perform, or satisfaction taken. According to which in all Cases wherein the two last are insufficient, a Dissolution of the Contract ought or may follow. But farther, the fixed Obligation of the Subject, whatever the King shall do contrary to the Contract, is by him founded upon the supposition, either that the People of England have transferred the Power of the Nation to their Kings, as absolutely as he supposes that the People of Rome had done to their Emperors; 
Vid. Sup.  or rather that W. 1. made a Conquest of this Nation.  
If, says he, we cannot find any Law or Reason, 
Sir Roger Poyntz, p. 123.  that the Romans or any other People, who had in them the Supreme Power, could, after they had transferred this Power to Kings, and elected them, reassume this Power again, and when it doth please them, depose their Kings, or limit and restrain their Power by virtue of an habitual Power still remaining in the People, as is supposed; then undoubtedly we can find no Right in the People, 
Vid. the punishment which the Senate decreed against Nero, More majorum.  or in any Societies or Communities of People, to Depose, Restrain, or Limit Kings of hereditary Succession, especially those who have not their Right from the People, but by Conquest, as in England.  
From such Kings of Hereditary Succession and Right, all Jurisdictions do proceed, and in them reside; and unto them they return, say the Lawyers, Rex est lex animata: And his Office and Function is, Indesinens consulatus. All other Rights and Liberties whatsoever, have been, as in other Kingdoms, at the Will and Mercy of the Conquerors of our Island, the Romans, Saxons, Danes, Normans: Our Rights and Liberties contained in Magna Charta granted and confirmed by divers Kings, after much effusion of Blood we, nor our Ancestors did, nor could ever claim by Virtue of any Reservation made by the People, or any others, when they were Conquered. Neither by any Original Right inseparably inherent and vested in the People, and from them derived.  
Here 'tis observable,  
1. That though Sir Roger will not have any Original Right to be inseparable from the People; yet he owns, that in some places they may have Elected Kings, and have had Supreme Power in them, till they transferred it to their Kings: 
Sherringham's Supremacy asserted. Introduct. p. 11.  Contrary to Mr. Sherringham, who to make his Court at the coming in of C. 2. held, that all Authority is originally in Kings, or other Supreme Magistrates themselves, immedidiately from God, Tanquam in primo creato Subjecto, as in the first created Subject.  
2. Sir Roger with that Divine, holds, that W. 1. obtained the Crown by Conquest. 
Sher. p. 53. Vid. 2 d Part.  Mr. Sherringham indeed owns, that there was a composition and agreement; but will have it, that this was not till after a Victory: as if the Victory over Harold made a Conquest of the Nation. Of which, more in its place.  
3. Sir Roger goes no more beyond our Case, when he argues upon supposition of a total Translation of the Power, whereby a People or Nation is Governed, than he does in arguing against the People's Reassuming this Power again, and Deposing their Kings, when it doth please them.  
4. Sir Roger's Argument upon a Supposition of either a total Translation of the Power, or Conquest, as much destroys the Power of Restraining and Limiting, as of Deposing Kings. If it be said, That 'tis all to be intended only of Actions of the People, without the Consent of their Kings; if he will allow that Kings may by their own Consent be set aside as well as Limited, than whatever voluntary Actions of theirs imply a Renunciation of Government, will as much discharge the Subjects, as their express Consent.  
He admits, that where there is no such total Translation of the Power, and no Conquest, the People may claim Liberties by virtue of a Reservation. 
Sir Roger Poyntz, p. 86.  And then he brings the Civilians to our side, according to whom he confesses, That In divers Promises and Transactions, and in Leagues and Truces (yet, says he, this of Truces is much Controverted) the Breach of one Party is holden to be a Discharge of the other from the whole Obligation: Upon this Reason,  
Quia singula capita conventionis insunt conventioni per modum mutuae contemplationis, & correspectiuè posita sunt, nec debet contractus claudicare ex unâ parte, ex uno latere, & fidem frangenti fidem non esse servandam: 
Vid. the same in Pufend. sup. f. 87.  quod dictum referendum esse ad unam eandemque conventionem, & ad ea quae unâ eâdemque sponsione comprehensa sunt, & in promissionibus quarum altera alterius causâ facta est, cum connexorum sit unum idemque judicium; ' sed secus est in diversis & separatis.  
Because all the Heads of the Agreement are included in it by way of mutual consideration, and are placed with respect to each other. Nor ought a Contract to be lame on one part, on one side. And that Faith is not to be kept with him that breaks his Faith. But that this is to be referred to one and the same Agreement, and to those things which are comprehended in one and the same Sponsion, and in promises, one of which is the cause of the other; being of things conjoined, there is one and the same Judgement: But it is otherwise in things divers and separated.  
Upon the supposition that W. 1. made a real Conquest of the Nation; and that if he gave Terms, 'twas not till after a Conquest, I must own that no help can be had from these Rules: But if, on the other side, he was at first received upon terms, and had no right to govern the Nation till those terms were settled, than I think I need not so far question the Reader's Judgement, as to make particular application of these Rules to our Case with the late King.  
But notwithstanding the Discharge from Allegiance to J. 2. some will urge, That it continues to the Person that stands next in Blood.  
Against which, I doubt not but I shall offer full Evidence. For,  
1. If, as I have shown, the Promise to the King himself be Conditional, and his Interest determines by his Breach of the Condition; 
Vid. Brook tit. Condition, n. 67.  be the Condition precedent, in which case no Interest is vested till Performance: Or subsequent, in which, the Breach divests what before was settled: What Interest can the Heir have in a Conditional Estate determined by Breach of the Condition? And since it has been made appear, That the Heirs of a King with us, take not as Purchasers by an Original Contract, (upon which there might be some pretence of an Interest vested in them, independent on their Father's Title); but they who can be said to have succeeded without an immediate Choice, did it by virtue of subsequent Settlements, entirely depending upon the Original Contract, continuing down to their immediate Ancestors respectively; If that Contract be dissolved, what can support the Settlement? Can the Agreement for the benefit of a King and his Posterity, be supposed to be other, than that if he govern them as King, performing the Essentials of the Contract on his part, he and his Descendants shall enjoy the Crown? Can it be imagined that this was made for the separate benefit of the Heir, 
Vid. Lit. c. 5. Estates sur Condition.  without regard to the Ancestor's Performance? Or is it to be supposed in the nature of the thing, that the People would have made such a Contract, whereby, after being justly discharged from their Allegiance to a King, 
V L. Clarendon, cited above in the Margin, his Survey of the Leviathan, p. 86. Grot. de Jure belli & pacis l. 1. c. 3. p. 60.  and having acted pursuant thereto, they shall enable a Successor to revenge his Ancestor's Quarrel? This were such a Contract as that which the Lord Clarendon assures us, if never so real, can never be supposed to be with the intention of the Contractor. And Grotius argues against a King's Power of aliening his Kingdom, from hence, that this is not to be presumed to have been the will of the People in conferring the Power. And in another place he says, Right is to be measured according to the Will of him from whom the Right arises. 
Grot. sup. p. 64.   
2. The Power of the King, as Fortescue has it, and the Authorities above plainly evince, is a Populo effluxa, ' derived from the People.  
And the Interest of J. 2. being determined, he yet living, so that there can be no Heir to him, 
Vid. 11 H 6. f. 12. b. Rolls Abr. tit Remainder f. 415.  or of his body; What hinders the operation of the known Rule in Law, That where there is no Remainder to take effect at the determination of the particular Estate, it shall revert to the Donor? Which in this Case is manifestly the People.  
If it be said, That this Rule shall not extend to the Descent of the Crown, which differs from common Inheritances; I dare say, No man can show any difference, but what is more strong for the People's Choice. For whereas common Estates are for the benefit of them who have the present Interest, the Crown is a Trust for the benefit of the People.  
3. The ancient Statute , of which the Lords and Commons mind R. 2. 
V sup. Knighton f. 2683.  upon his Maladministration, says, That for the Causes there expressed, they may with the common Assent and Consent of the Nation, set upon the Throne in his stead, propinquiorem aliquem de stirpe Regiâ: 
Nota. Not Proximum.  ' Some body of Kin to the King, of the Stock Royal. If they were tied to the next, it certainly would have been proximum: Besides, the word aliquem shows a Latitude. And according to this, upon R. the second's being Deposed, H. 4. claimed the Crown, 
Rot. Parl. 1 H. 4. n. 54.  Als descendit be right Line of the Blood coming from the good Lord Henry third. But because this, without consideration of his Merits in rescuing them from R. 2. entitled him to the Crown, no more than another of the Blood; therefore the Lords and Commons drew up an Instrument purporting their Election. 
Ib. n. 55.   
4. But admit none of the foregoing Arguments were enough to show, That upon James the second's Abdication, or at least losing his Interest in the Government, the People of England were restored to that Liberty which they had before the Settlement of the Crown, which was in force till the Original Contract was broken by him; yet I conceive the particular Consideration of the state of the Settlement, might afford sufficient Argument.  

Brady's Hist. of the Succession. f. 25.  Henry the Fourth, Fifth, and Sixth, if we believe Dr. Brady, held the Crown by Usurpation: Yet the earliest Settlement of the Crown farther than the first Son or Grandson, was in the time of H. 4. Nor, as I shall show, was the Crown enjoyed by J. 2. under better Title than they had. H. 5. and 6. came in under an Entail of the Crown; 7 H. 4. 
Vid. Rot. Parl. 8 H. 4. n. 60.  confirmed 8. The misgovernment of H. 6. having given occasion to Richard Duke of York of the Blood-Royal, and Elder-house, to assert the People's Rights, not his own, Henry and the Duke, with the Consent of the Lords and Commons, come to an agreement in Parliament, That Richard and his Heirs should enjoy the Crown after the Death of Henry. Tho here the word Heirs is mentioned without restraint, yet considering that it is the first time that ever the Crown was settled so far, 
Gomezius de Qualitatibus Contractuum, f. 319. Hottomanni Com. de Verbis Juris usus-fructus est jus alienis rebus utendi fruendi, saluâ rerumsubstantiâ. Emphyteusis.  I know not whether it is not to be taken with Gomezius his Restriction, of an Usufructuary or Emphyteutical Estate; of the last of which, much of the same nature with the other, he says, If it did not use to be granted to more than the first, second, or third Heirs, the mention of Heirs simply, aught to be restrained to those only; because the Nature or Quality of the thing granted, aught to be attended to.  
After the Death of Richard Duke of York, his Son Edward the Fourth, as I before observed, took the Government upon him, as forfeited by breach of the Covenant estabished in Parliament. However, 
Vid. sup.  H. 6. being set up again ten Years after, gets that Settlement by which E. 4. was to have benefit, to be revoked, and the Crown to be entailed on his Issue; the Remainder to the Duke of Clarence, younger Son to the Duke of York. Afterwards E. 4. having success, 
13 E. 4.  revives the Settlement 39 H. 6. Only that he attaints H. 6. 
Rot. Parl. 1 H. 7. n, 16. Vid. Append. H. 7. Son to Edmund Earl of Richmond, Brother by Mother's Side to H. 6.  with others of his Party. Which Attainder was removed 1 H. 7. and declared contrary to due Allegiance, and all due Order. And not only the Attainder, but that Act of Parliament itself was revoked. So that hitherto there had been no Title in the Heirs of Richard Duke of York, or of Edward the Fourth, but what was derived under the Settlement of Henry 6. called an Usurper, and Edward the Fourth's Treason deprived him of the Benefit even of that Settlement.  
H. 7. Indeed married the eldest Daughter of E. 4. But before that Marriage, having conquered Rich. 3. he claimed the Crown, as his Words in Parliament were, Tam per justum titulum haereditantiae; 
Rot. Parl. 1 H. 7. Vid. Append.  quam per verum Dei judicium, in tribuendo sibi Victoriam de inimico suo;" As well by just Title of Inheritance, as by the true Judgement" of God, in giving him the Victory over his Enemy.  
If it be asked, how he could have a Right of Inheritance, when the Daughter of E. 4. and his own Mother were alive; 
Vid. Rot. Parl. 1 H. 7. n. 16. supra.  it seems in the Judgement of that Parliament, That E. 4. having acted contrary to his Allegiance due to H. 6. he and his had lost the Benefit of the Settlement revived by his successful Treason; and that this was lost, even before the Revival was destroyed by Parliament. And then, tho' H. 7. could not come in without an Election; yet he, as H. 4. before, might have a sort of Inheritance; according to a very witty Author, 
Vindiciae contra Tyrânnos, Ed. Amstelodami, p. 110.  who speaking of the Kingdom of Israel, says, Concludere licet, regnum Israelis, si stir pem spectas, haereditarium certè fuisse; at sanè si personas, omnino electivum; We may conclude, That the Kingdom of Israel, if you look at the Stock, was certainly Hereditary; but if at the Persons, altogether Elective.  
Be this as it will, the Lords and Commons so far regarded King Henry's Claim, that they not only received him for King, but it was enacted by the Authority of the then Parliament, 
Rot. Parl. 1 H. 7.  That the Crowns of the Realms of England and France should rest in him and the Heirs of his Body lawfully coming, perpetually; and in NONE OTHER.  
When they had thus done, the Commons requested the King to Marry Elizabeth Daughter to E. 4. that by God's Grace there might be Issue of the Stock of their Kings. So that this was only to preserve the Royal Blood, not to give any new Countenance or Confirmation to his Title.  
H. 8. enjoyed the Crown, not as Heir to his Mother, but under the Settlement upon H. 7. Nor can it be said, that he was in by Remitter, since that Act under which his Mother should have derived, was Repealed: And had it stood in force, yet it would not have made the Title more Sacred; unless it can be shown, that the Mother had a Title prior to the Act of Settlement 39 H. 6. the contrary to which appears by the former Account, from Law and History.  
H. 8. procured several Settlements of the Crown, according as Love or Jealousy prevailed in him. 
25 H. 8. c. 22.  In the 25th of his Reign, 'twas settled upon Himself, and the Heirs Male of his Body, lawfully begotten on Queen Anne, etc. declaring the Marriage with Queen Katherine unlawful; Remainder to the Lady Elizabeth, Remainder to his own Right Heirs. 
26 H. 8. c. 2. 28 H. 8. c. 7.  26 H. 8. an Oath was enjoined for that purpose. 28 H. 8. the two former Acts 25 & 26 are Repealed, the Illegitimation of Mary Daughter to Queen Katherine is confirmed; the like declared of Elizabeth Daughter to Queen Anne; and the Crown entailed upon his Heirs Males by Queen Jane, or any other Wife; Remainder to Heirs Females by that Queen, or any other lawful Wife; Remainder to such Person or Persons, and according to such Estates as he should appoint by Letters Patent, or by Will. 35. the Crown is settled subject to such Conditions as the King should make, according to the Power there given; first, upon Prince Edward, and the Heirs of his Body: the Remainder, in like manner, upon the Ladies Mary and Elizabeth, and the Heirs of their Bodies successively, without taking off their Illegitimations. And the same Power is given of disposing by Letters Patent, 
Vid. 28 H. 8. sup. & 35 H. 8.  or by Will, as by the Statute 28. for which a memorable Reason is given in both Acts; Lest if such Heirs should fail, and no Provision made in the King's Life, who should Rule and Govern this Realm, for lack of such Heirs, as in those Acts is mentioned, that then this Realm should be destitute of a Lawful Governor. E. 6. succeeded according to both those Acts: After him, Queen Marry, by the last; who, at her coming to the Crown, could not be looked on as of the Right Line, because of the Acts which Illegitimated her; and besides, she was but of the Half-blood to E. 6. to whom she succeeded. But in the first of her Reign, the same Parliament takes off her Illegitimation, and repeals the Acts 25 & 28 H. 8. And in this the Parliament seems rather to provide for the Honour of her Descent, 
Hist. of Succession, f. 34.  than (as Dr. Brady would have it) to declare the Succession to be in Inheritance by Right of Blood. Whatever might be the secret Intention, 
1 & 2 P. M. c. 9  I am sure there is no such authoritative Declaration: And the Acts 28 & 35 H. 8. seem to say quite the contrary. 1 & 2 P. M. though there is no direct Settlement, it is made Treason to compass the Deprivation or Destruction of K. P. during the Queen's Life; 
1 Eliz. c. 3.  or of the Queen, or of the Heirs of her Body lawfully begotten. Queen Elizabeth succeeded by virtue of the Limitation 35 H. 8. And though Bastardised by the Statutes 28 H. 8. and 1 M. and but of the Half-blood both to E. 6. and Queen Mary, yet her first Parliament declares, That she is Rightly, Lineally, and Lawfully descended and come of the Blood Royal of this Realm; to whom, and the Heirs of her Body, the Royal Dignity, &c are and shall be united: And Enacts, That the Statute 35 H. 8. shall be the Law of the Kingdom for ever. But the Fee of the Crown not having been disposed of, according to the Power given by the Statute 28, and repeated 35 H. 8. And the 25, whereby it was limited in Remainder to the Heirs of Henry the 8th. being repealed; upon the Death of Edward the 6th, and the Queens, Mary and Elizabeth without Issue, there remaining no Heirs of the Body of H. 8; in the Judgement of two Parliaments, the Realm was destitute of a Lawful Governor.  
Indeed, according to the Act of Recognition, 1 J. 1. 
1 Jac. 1. c. 1.  the Crown came to him, being lineally, rightfully, and lawfully descended of the Body of the most Excellent Lady Margaret, the eldest Daughter of the most Renowned King Henry the Seventh, and the High and Noble Princess, Queen Elizabeth his Wife, eldest Daughter of King Edward the Fourth: The said Lady Margaret being eldest Sister of King Henry the Eighth, Father of the High and Mighty Princess of Famous Memory, Elizabeth late Queen of England.  
Tho' this pompous Pedigree, to avoid all Objections, goes as high as E. 4. the Derivation of Title, as appears above, can be no higher than from the Settlement 1 H. 7. Nor does this Act 1 J. make any additional Provision; but indeed seems to flatter the King into a Belief, that there was no need of any; telling him, That they made that Recognition as the First-fruits of their Loyalty and Faith to him, and his Royal Progeny and Posterity for ever. But neither then, or ever after, till that in this present Parliament, did the People make any Settlement of the Crown, but it continued upon the same Foot as it did 1 H. 7. when it was entirely an Act of the People, under no Obligation, but from their own Wills. 
Sir Robert Filmer's Power of Kings, f. 1.  And if we should use Sir Robert Filmer's Authority, Impossible it is in Nature for Men to give a Law unto themselves, no more than it is to command a Man's self in a Matter depending of his own Will. There can be no Obligation which taketh State from the mere Will of him that promises the same.  
Wherefore, to apply this Rule: Since the People that is now, 
Vid. Pufend. de Interregn. sup. p. 288.289.  in common presumption is the same with that which first settled the Succession, and so are bound only by an Act of their own Will; they have yet as arbitrary a Power in this Matter, as Sir Robert and his Followers contend that the Prince has, whatever Promises or Agreements he has entered into.  
But not to lean upon such a broken Reed, nor yet to make those many Inferences which this plain State of the Settlements of the Crown might afford; Three things I shall observe:  
1. If the Settlement made 1 H. 7. who was an Usurper, according to the Notion of Dr. Brady, and his Set of Men, was of no force; then, there being no Remainders, since limited by any act, but what are spent, and no descendants of the whole Blood from Elizabeth, Daughter to E. 4. and Wife to H. 7. but by Daughters, the eldest of which was Married into Scotland; If Acts of Settlement could not alter the Right of Descent of the Crown, neither Queen Mary, nor Queen Elizabeth had Right, but after the death of E. 6. it belonged to the Scotch Family. And if Acts of Settlement could dispose of the Crown, and it should appear that from the time that the limitation came to a Foreigner not named in the Settlement, nor the immediate issue of a King or Queen of England, it was spent in the eye of the Law; then of necessity the People must have had Power of Choosing, or there could have been no lawful Government since Queen Elizabeth's time, when the last Settlement was spent, except what is now made.  
2. The Declarations of two Parliaments, 28 and 35 H. 8. fully balance the Declaration 1 Jac. 1. if they do not turn the Scales; considering, that the Judges in the later Times seem to have had less Law or Integrity than they had in H. the Eighth's. I will not take upon me to determine which was the Point of Two that they might go upon. 1. That a Government shall not pass by Implication, or by reason of a dormant Remainder. But there having been so many Alterations since the Settlement 1 H. 7. and the whole Fee once disposed of, nor ever any express Restitution of the Settlement 1 H. 7. the People were not to think themselves obliged to a Retrospect: 'Tis evident, at least, that they did not. Or, 2. Perhaps they might question, whether they were obliged to receive for Kings the Issue of Foreign Princes, 
That this was a Question in Q. Elizabeth's time, appears by a Letter from Lethington, Secretary of Scotland to Cecil, Secretary to Q. Eliz. Appendix to Vol. 2. of the Hist. of the Ref. f. 269. This appears farther from the Treatise at the end of the Appendix, which seems to admit, That the Right to the Crown would have been in the issue of the younger Daughter, being born in England, if the Birth had been without blemish.  since there was no means of being sufficiently informed of the Circumstances of the Birth, neither the Common, or any Statute-Law affording any Means of proving it, as appears by the Statute 25 E. 3. which for the Children of Subjects only, born out of the King's Allegiance, in Cases wherein the Bishop has Conusance, allows of a Certificate from the Bishop of the Place where the Land in question lies, if the Mother passed the Seas by the King's Licence. But if our Kings or Queens should upon any occasion be in Foreign Parts, 'tis to be presumed, that they would have with them a Retinue subject to our Laws, who might attest the Birth of their Children, and be punished if they swear falsely.  

Stat. 25. E. 3.  Wherefore, 25 E. 3. 'tis declared to be the Law of the Crown, That the Children of the Kings of England, ENFANTZ DES ROYS, as the Record has it, in whatever Parts they be born, be able, and aught to bear the Inheritance after the Death of their Ancestors. Yet this is most likely to be meant of those private Inheritances which any of the Kings had, being no part of the Demeasns of the Crown; since the Inheritance of the Crown was not mentioned, nor, as has been shown, was it such as the King's Children were absolutely entitled to in their Order.  
The most common acceptation of Children, is of a Man's immediate Issue: 
Vid. 1. Anderson, f. 60, & 61. A Devise to the Wife, after her Decease to the Children: Vid. Wild 's C. 6. Rep. In Shelley 's C. 1. Rep. f. 103. A Gift to a Man & semini suo, or prolibus suis, or liberis suis, or exitibus suis, or pueris suis de corpore.  As where Land is given to a Man and his Children, Who can think any remote Descendants entitled to it? Nor could it extend farther in the Settlement of a Crown.  
37 E. 3. c. 10. a Sumptuary Law was made, providing for the Habits of Men according to their Ranks, and of their Wives, and Children, ENFANTZ, as in the former Statute of the same Reign. Now altho' this should extend to children's Children born in the same House, it could never take in the Children of Daughters, 
Vid. Sir James Dalrimple's Institutions of the Laws of Scotland▪ f. 52.  forisfamiliated by Marriage; nay, nor to those of such Sons as were educated in a distinct Calling from their Parents.  
Farther, the very Statute of which the Question is, cuts off the Descendants from Females out of the number of a King's Children, when among other Children not of the Royal Family, it makes a particular Provision for Henry Son of John Beaumond, 
Vid. Dugdale 's Bar. 2. Vol. Beaumond.  who had been born beyond Sea; and yet Henry was by the Mother's Side in the Fourth Degree from H. 3. for she was Daughter to Henry Earl of Lancaster, Son of Edmund, Son to H. 3. Had this Henry been counted among the Children of a King, 'tis certain there had not been a special Clause for him, among other Children of Subjects.  
Nor does the Civil Law differ from ours in this Matter; for though under the name of Children, are comprehended not only those who are in our Power, but all who are in their own, either of the Female Sex, or descending from Females; yet the Daughter's Children were always looked on as out of the Grandfather's Family, 
Just. Inst. lib. 1. tit. 9 So Bracton, l. 1. c. 9 Greg. Tholos. Syntagma juris universi, f. 206. Spiegelius, tit. Liberi. Non procedere in privilegiis quae generaliter publicae utilitati derogant. Vid. Antonii Perezi Inst. Imperiales, p. 21. Vid. Cujac. ad tit. de verborum significatione, p. 147, & 230.  according to the Rule in the Civil-Law, transcribed by our Bracton, They who are born of your Daughter, are not in your power: And Privileges derogating from Public Utility, were never thought to reach them, as a Learned Civilian has it: A Daughter is the end of the Family in which she was born; because the name of her Father's Family is not propogated by her. And Cujacius makes this difference between Liberi, and Liberi Sui; Sui, he says, is a Legal Name, the other Natural: The former are only they who are in a Man's power, or of his Family; and Liberi strictly taken, he will have to go no farther.  
But in truth, Considering the purview of the Statute which we are here upon, Children in it seems to be restrained to Sons and Daughters, without taking in the Descendants from either; the occasion of the Law being the Births of several ENFANTZ in Foreign Parts, which could be but Sons or Daughters to the immediate Parents, whether Kings, or Private Persons.  
3. But however, this may be enough for my purpose, That there is no colour of any Settlement in force, but that 1 H. 7. And admitting that to have continued till J. 2. had broken the Original Contract; yet that being broken, the present Assembly of Lords and Commons had full as much Authority to declare for King WILLIAM and Queen MARY, as the Parliament 1 H. 7. had to Settle the Crown: For H. 7. could give them no Power, but what he had received immediately from them. Nor is it material to say, He was Crowned first; since, as I have shown, the Crown Confers no Power distinct from what is derived either from an immediate, or prior Choice.  
But if there is reason, from what I have shown, to believe that even the limitations in Henry ths. Settlement, were all long since spent; then at least, it is not to be doubted but the interest of J. II. being determined, the People of England might lawfully and rightfully declare for King William and Queen Mary, as being the most deserving of the Blood Royal; which if they were free to do, not to submit to be Gover'ned by Their present Majesties, would have been the highest Ingratitude that could be.   

CHAP. X. The Fifth Head of Positive Law.  
The effect of the Dissolution of the Contract. The Use of the Triennial-Act 16 Car. 1. against the necessity of Common Form. The Form and proceed of the Convention assembled upon the death of H. 3. The Dilemma used by the Formalists, Answered, with a Distinction. Pufendorf's Answer to Hobbs. Another passage of his applied to a passage in a late excellent Treatise against Sir Robert Filmer: And to a Letter upon this Juncture. Tho what Dr. Brady says against the Rights of Lords and Commons, were true; yet it is shown that the Acts of the late Assembly would be conclusive to the Nation. Neither Forty days Summons, nor Writs, nor yet Summons to a Parliament, Essential. And this confirmed, not only by the Precedent 12 Car. 2. but by two Precedents of the time of H. 1. The Subjects in the time of E. 1. said to have held a Parliament by themselves, and of their own appointing. The Objection of want of Form, Answered out of the Civil-Law; and its Reason applied to our Case. Objections made by the Author of Elementa Politica considered. The Conclusion.  
THE Power, having upon the Dissolution of the Contract between J. 2. and his former Subjects, returned to the People of Legal Interests in the Government, according to the Constitution; there can be no doubt with  Men, but this takes in them only who have Right of being in Person, or by Representation in those Assemblies where is the highest Exercise of the Supreme Power. But there are two Extremes opposite to the late Election made by such an Assembly. The First is of them who would have all things go on in the same Form as under a Monarch, which was impossible; and therefore the Supream-Law, the Publick-Safety, must needs supply the want of Form. Nor can be justly controverted, till the Lawfulness of the end is disproven. For all Means necessary to such an End, are allowable in Nature, and by all Laws. But if this should still be disputed, all their Darling-Laws made by the Long-Parliament, which met after that Convention, Anno 1660. will fall to the ground, according to the former application of the Statute , 16 Car. 1. 
Vid. Sup.  Nay, the attempt of Repealing that Statute, being in a Parliament which had been actually Dissolved before, by that very Law which it went about to Repeal, that Form which was usual before, is, in default of King and Officers, supplied by another Provision for the Regular Meeting of Lords and Commons. And what hinders but the people had as much Power to vary from the Common Form, when there was no King, and that Form could not be observed, as when there was a King, and a possibility of having that Form?  
Here I may observe these two things:  
1. If, as I have shown at large, the Right of Succession to the Crown, was not fixed to the next in Blood, neither before the reputed Conquest, nor since; if there have been several vacancies of the Throne, and the People had right to choose upon every such Vacancy, than whatever they did in order to the choice, must necessarily have been freed from the Forms which were required under a King.  
2. Even where the Kingdom has gone by descent, there may have been a necessity for the people to take the Government upon them, as if the present Possessor has turned Madman, or he who stood next in the Succession, were under age, without any Guardian appointed in the Life-time of his Father, or out of the land when his Father died, which were the cases of R. 1. and of E. 1. the account of the last of which deserves particular notice. The Annals of Waverly having mentioned the Death of H. 3. add,  
Hoc anno, scilicet post Festum S. Hillarii, 
annal Waverleiensis, f. 227.  factâ convocatione omnium Prel. & aliorum Magnatum Regni apud Westm. postmortem illustris Regis H. convenerunt Arch. Ep. Com. & Bar. Abbates & Priores, & de quolibet Comitatu quatuor Milites & de qualibet civitate quatuor, qui omnes in presentiâ Dom. Will. scil. Arch. Ebor. Rob. de mortuo Mari & R. Burnet Cler. qui in loco Domini Regis Anglorum Edwardi praefuerunt, Sacramentum eidem Domino Ed. tanquam terrae Principi susceperunt, ubi Dominus W. de Mertone Cancellarius constitutus est, & ut moram trahat apud Westm. tanquam in loco publico usque ad adventum Principis. Et ibi provisum est, quod nulli sint Justiciarii itinerantes usque ad adventum Principis sed in Banco.  
Dominica prima Quadragesimae 4 Id. Martii consecratus fuit frater R. de Kilderlii in Arch. Cant. Item concessa est decima Ecclesiarum & Religiosorum Domuum Domino Ed. & ejus Germano ad supplicationem Domini Papae ut sit pro duobus Annis. 
F. 228.   
In this year, to wit, after the Feast of St. Hillary, all the Prelates and other great Men of the Kingdom being called together at Westminster, after the Death of the Illustrious King Henry, there met the Archbishops, Bishops, Earls, and Barons, Abbots and Priors, and Four Knights from every County, and Four from every City, which all in the presence of William Archbishop of York, Robert Mortimer, and R. Burnet Clerk, who presided in the stead of Edward their Lord, and King of England, took an Oath to the said Lord Edward, as Governor of the Realm. Where the Lord William of Merton is constituted Chancellor, and that he should abide at Westminster as in a public place, till the Prince's coming. And there it was provided that there should be no Justices itinerant before the Prince his coming, but only in the Bench. The first week of the Quadragesima, to wit, on the Fourth of the Ideses of March, Father R. of Kilderly is consecrated Archbishop of Canterbury.  
Matthew Westminster of the same time says, 
Mat. West.  Rege igitur Supulto sicut mos est regibus sepeliri, Gilbertus & Johannes Comites Gloverniae & Warenniae, nec non Clerus & Populus, ad magnum Altare Ecclesiae Westm' celeriter properarunt Ed. primogenito Regis fidelitatem jurantes, qui si viveret penitus ignorarunt; Agebat enim in partibus transmarinis contra Christi adversarios bellaturus. Postmodum ad novum Templum Londini Nobiliores Regni pariter convenerunt. Et facto sigillo novo constituerunt fideles ministros & Custodes qui Thesaurum Regis & Pacem Regni fideliter custodirent.  
The King therefore being buried in that state in which Kings used to be buried, Gilbert and John, Earls of Gloster and Waren, as also the Clergy and People, as soon as might be, hastened to the great Altar of Westminster-Church, swearing Fealty to Edward the King's eldest Son, though they were wholly ignorant whether he were alive or no; for he was in Foreign Parts, fight against the Enemies of Christ. After this the Nobility of the Kingdom likewise met; and a new Seal being made, they constituted faithful Ministers and Keepers, who might faithfully keep the King's Treasure, and the Peace of the Kingdom.  
The Annals and Matthew Westminster differ in circumstances, though they agree in substance; but it would seem as if the same Convention had been adjourned from Westminster to the Temple, and therefore its Acts might have been said to have been at either of the places.  
It at least appears from Matthew Westminster, that prior to that Solemn Convention which the Annals mention, there had been a great confluence of people headed by the Earls of Gloucester and Waren; at that meeting 'tis probable that the three persons named in the Annals were chosen to hold the Convention as Vicegerents to the King. This when it met, provided not only for swearing Allegiance to the King, but for the administration of Justice, chose the great Officers of the Kingdom, made a new Great Seal, and if occasion had been, might have raised a Tax over the whole Kingdom, as well as they did of the Clergy, or permitted their Representatives to raise of the rest.  
This Convention was not so full and solemn a Representative of the People as ours was, and yet it being a Representation which the People consented to at that time, was then looked on as sufficient to conclude the whole, and is a Precedent in Point, showing that there was no necessity, in such circumstances, to use the same form of Proceed as when they had a King before whom they were summoned. But as the men of Form are too strict, others are too lose in their notions, and suppose the Consequence of a Dissolution of this Contract to be a mere Commonwealth, or absolute Anarchy, wherein every body has an equal share in the Government, not only Landed-men, and others with whom the Balance of the Power has rested by the Constitution, but Copy-holders', Servants, and the very Faeces Romuli, which would not only make a quiet Election impracticable, but bring in a deplorable Confusion. But this Dilemma they think not to be answered:  
Object. Either the old Form, as under a Monarch, remains, or it does not: If it does, the late Action of the Lords and Commons was irregular: If it does not, all the People are restored to their Original Rights; and all the Laws which fettered them, are gone.  
Answ. Here we must distinguish upon the word Form; for if it be taken of the Form of Proceed or Administration, 'tis no consequence that the Form of Government or Constitution should fail, because we admit that the other does.  
Mr. Hobbs indeed holds, That when a Monarch for himself and his Children has left a Kingdom, or renounces it, the Subjects return to their absolute and natural Liberty.  

Pufendorf de interregnis p. 282:  Whom the Learned Pufendorf thus answers.  
They who have once come together into a Civil Society, and subjected themselves to a King, since they have made that the Seat of their Fortunes, cannot be presumed to have been so slothful as to be willing to have their new Civil Society extinct upon the Death of a King, and to return to their Natural State and Anarchy, to the hazarding the Safety now settled. Wherefore when the Power has not been conferred on a King by Right of Inheritance, or that he may dispose of the Succession at his pleasure, it is to be understood to be, at least tacitly, agreed amongst them, That presently upon the Death of a King, they shall meet together, and that in the place where the King fixed his Dwelling. Nor can there well be wanting among any people, some Persons of Eminence, who for a while may keep the others in order, and cause them as soon as may be, to consult the Public Good.  
The Author of the best Treatises of Civil Polity which I have met with in the English Tongue, 
Two Treatises of Government: In the former, the false Principles and Foundation of Sir Robert Filmer and his Followers are detected and overthrown. The latter is an Essay concerning the true Original, Extent, and End, of Civil Government, Ed. Anno 1690.  who after the Confutation of Sir Robert Filmer's absurd Notions of Government, establishes it upon the only true Foundation, the Choice of the People, that Original and Supreme Act of the Society, antecedent to all Positive Laws in it; seems not to have attended to the duplicity, 
P. 379.  or other particular nature of the Contract, in relation to the English Government.  
When, says he, treating of the Dissolution of Government, 
Vid. Ca 19 of the Dissolution of Government.  he who has the Supreme executive Power, neglects and abandons that charge, so that the Laws already made, can no longer be put in execution: This is demonstratively to reduce all to Anarchy, and so effectually to dissolve the Government; for Laws not being made for themselves, but to be by their execution the bonds of the Society, to keep every part of the Body-Politick in its due place and function, when that totally ceases, the Government visibly ceases, and the people become a confused multitude, without Order or Connexion: Where there is no longer the Administration of Justice for the securing of men's Rights, nor any remaining Power within the Community to direct the form, or provide for the necessities of the Public, there certainly is no Government left.  
But in whatever Community there is a Power remaining to provide for the necessities of the Public, upon the determination of the Interest of any single Person, who had the Supreme Executive Power, without recourse to the confused Multitude; there 'tis evident the Government may still continue: and by consequence, such a Government is more perfect, being less subject to dissolution, than that which upon the loss of its Supreme Governor has all its Bonds and Ligaments dissolved.  
However, this his Scheme of Government is not erected as the most perfect, but seems designedly adapted to what he takes our Government to be, though not expressly named; in which he supposes a single hereditary Person, having the constant Supreme Executive Power, 
P. 435.371.  from whom all Inferior Magistrates derive all their several subordinate Powers, or at least the greatest part of them.  
Whereby it is plain, that all Monarchies in any measure Elective, and not only  Powers, but all Officers who derive their Powers from the immediate Choice of the People, or the Constitution, are besides his state of the Question.  

Vid. Cap. 3. of the state of war  And whereas he argues, That the people are by the Monarch's Violations of the Constitution, restored to the state of nature, there being no common Judge in that state of War to which his injuries force them; no man who observes how clearly and consistently he always reasons, can believe that he would apply this to such a state of the Question, as I have shown that our Constitution warrants; which depends not upon a single Contract between the People, and a Prince and his Heirs, whom they had set over them, whose Authority ceasing, they were to new mould the Government, or set up the like, as they thought fit.  
But there plainly was a farther Contract among themselves, to prevent Anarchy and Confusion, at any time when the Throne might be vacant; and by virtue of this Contract they have regularly made those Elections, which are frequent in our Histories, and are authentic Precedents for our late Proceed.  
Yet, since this Judicious Author's bringing the Government back to its first Principles sooner than our Constitution allows, does not proceed from want of reasoning rightly, in which I cannot say that he ever fails; I hope it will not be thought that I in the least derogate from the Honour due to him, when I observe matter of fact not falling within his notice.  
The Author of a late Paper in relation to these Times, has this passage, not to be neglected:  

A Letter to a Friend, advising in this extraordinary Juncture  All Power is originally or fundamentally in the People, formally in the Parliament, which is one Corporation made up of three Constituent essentiating Parts, King, Lords, and Commons; so it was with us in England. When this Corporation is broken, when any one essentiating Part is lost or gone, there is a Dissolution of the Corporation, the formal Seat of Power; and that Power devolves on the People. When it is impossible to have a Parliament, the Power returns to them with whom it was originally. Is it possible to have a Parliament? It is not possible; the Government therefore is Dissolved.  
Hence he would argue a necessity of having a larger Representative of the People, 
Vid. Pufend. de Interregnis p. 267. sup. in Marg.  that the Convention may be truly National. But had this Ingenious Person observed Pufendorf's two distinct Contracts, by the first of which a Provision was made for a Monarchy, before any particular Person was settled in the Throne; he would have found no such necessity. But if immemorially the People of England have been Represented as they were for this Assembly, and no needful form or circumstance has been wanting to make the Representation complete; all men who impartially weigh the former Proofs of Elections, not without a Rightful Power, must needs think the last duly made.  
Dr. Brady indeed, with some few that led him the Dance, and others that follow, will have the present Representation of the Commons of England to have been occasioned by Rebellion, 49 H. 3. But I must do him the honour to own him to be the first, who would make the Barons to have no Personal Right, but what depends upon a King in being; for he allows none to have Right of coming to Parliament, 
Brady's first Ed. p. 227. See this proved upon him in the Pref. to Jus Anglorum ab antiquo.  but such only to whom the King has thought fit to direct Writs of Summons: Yet, I dare say, no man of sense, who has read that Controversy, believes him. But were his Assertions true, it might be granted, that the Barons would have no more personal Right, to be of any Convention upon the total Absence or Abdication of a King, than they would have of coming to Parliament without His Writ. Yet since the Right of the People in person or Representation, is indubitable in such a Case, what hinders the validity of the late Choice, considering how many Elections of Kings we have had, and that never by the people diffusively, since the first Institution of the Government? And the Representations agreed on, (though I take them to be earlier settled for Cities and Burroughs, than for the Freeholders in the Counties) have ever since their respective settlements, been in the same manner as now: at least, none have since the first Institution ever come in their own persons, or been Electors, but what are now present personally or representatively; and their own Consent takes away all pretence of Error.  
If it be said, That they ought to have been Summoned Forty days before the Assembly held: That is only a Privilege from the King, which they may wave; and have more than once consented to be Represented upon less than Forty days Summons. 
Prynne 's Animadversions on 4 Inst. f. 10.  Mr. Prynne gives several Instances, as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and, says, he omits other Precedents of Parliaments Summoned within Forty days after the Writs of Summons bear date, upon extraordinary Occasions of public safety and concernment, which could not conveniently admit so long delay. And Sir Robert Cotton, being a strict Adherer to Form, 
Vid. Rushw. 1 Vol. f. 470. 3 Car. 1.  upon an Emergency advised, That the Writs should be Antedated: which Trick could make no real difference. To say, however, there ought to have been a Summons from, or in the name of a King in being, is absurd; it being for the exercise of a lawful power, which, unless my Authorities fail, the people had without a King, or even against the consent of one in being.  
Besides, it appears, That such Summons have not been essential to the Great Councils of the Nation. Tacitus shows, That the Germans, 
Tacit. de Moribus German. Coeunt, nisi quid fortuitum & subitum, certis diebus, etc. V Leges S. Ed. tit. Greve. In Capite Kal. Maij. Jus. Angl. c. 7. Vid. Append.  from whom we descend, had theirs at certain days, unless when some extraordinary matter happened.  
And by the Confessor's Laws, received by W. 1. and continued downwards by the Coronaton Oaths required to this very day, the General Folcmot ought to be held annually, without any formal Summons, upon May-day.  
By the time of E. 1. this custom to hold a Parliament upon May-day received a little alteration; for the Pope having at the beginning of that King's Reign, demanded eight years' Arrears of an Annual payment, which he claimed for the Kingdom of England; the King had put him off till the next Parliament, which, he said, had used to be held in England about the Octaves of our Saviour's Resurrection. This Parliament was held at the Octaves accordingly, as the King acknowleges, upon the Pope's second demand; but pleads that it had been taken up with the great Affairs of the Nation, till his want of Health occasioned a Dissolution, before they could consider o●… tt Matter, which he promised should be brought before them at the next Parliament, which he purposed to hold at Michaelmas then following.  
The Statute 16 Car. 1. which our rigid Formalists must own to be in Force, has wholly taken away the necessity of Writs of Summons from a King.  

Stat. 12. Car. 2. c. 1.  The Assembly of the Lords and Commons held Anno 1660. was summoned by the Keepers of the Liberties of England, not by the King's Writs; yet when they came to Act in conjunction with the King, they declare, enact, and adjudge (where the Statute is manifestly declaratory of what was Law before) That the Lords and Commons then sitting, are, and shall be the Two Houses of Parliament, notwithstanding any want of the King's Writ or Writs of Summons, or any defect or alteration of, or in any Writ of Summons, etc.  
Tho' this seems parallel to the present Case, yet in truth ours is the strongest: For the King then had been only King de jure, no Authority could be received from Him, nor could any Act of His be regarded in Law, through defect either of Jurisdiction, or Proof, if not both: Accordingly, as not only the Reason of the thing, but the Lord Coke shows, 
3 Inst. f. 7. Sup. in Marg.  a Pardon from one barely King de jure, is of no force. Besides, the Keepers were an upstart Power, imposing themselves upon the People, without any formal consent; at least not so fully received to the public Administration, as our present King was, who, at the request of a very large Representative of the People, pursued the late Method of Calling a more solemn Assembly. If that Anno 1660. had Power, acting with the King, to declare itself a Parliament; Why had not this, in defect of a King, to declare or choose one?  
Sure I am, prudent Antiquity regarded not so much the Person calling, or the End for which a General Council was called, as who were present; That Notice which they complied with, being always sufficiently formal.  

Anno 1127. Vid. Spelm. Con. 2 Vol. f. 1. De modo habendi Synodos in Angliâ primaevis temporibus. Vid. Jan. Ang. fac. nov. and Jus. Ang. Flor. Wigorn. f. 663. Confluxerant quoque illuc magnae multitudines Clericorum, Laicorum, tam divitum quam mediocrium, & factus est Conventus grandis & inestimabilis. Quaedam determinata, quaedam dilata, quaedam propter nimium aestuantis turbae tumultum ab audientiâ judicantium profligata, etc. Rex igitur cum inter haec Londoniae moraretur, auditis Concilii gestis consensum praebuit, & confirmavit Statuta Concilii a Willielmo Cant. etc. celebrati.  Wherefore a General Ecclesiastical Council being Summoned in the Reign of H. 1. by William Archbishop of Canterbury, thither, according to the known Laws of those times, the Laity came: I cannot say they sat there; for the Numbers were so great, as they commonly were at such Assemblies, before the Freeholders agreed to Representations, That happy was the Man, whatever his Quality, that could have a convenient standing.  
After the Ecclesiastical Matters were over in the Council I now speak of, they fell upon Secular: Some they determined, some they adjourned; some, the Judges of the Pole or Voices could make nothing of, by reason of the great Crowd and Din: And when the King heard their Determinations, and confirmed them, they had full Legal Force.  
The consideration of the time and circumstances of the Coronation of H. 1. and the Force which the things then agreed on were reputed to have at that time, and some of them ever since, till altered by subsequent Laws, may abundantly prove, that there is no need of strict form, for the doing what is agreeable to the sense of a Nation, though not formally expressed at the time.  
H. 1. did not stand next in the Line, his eldest Brother Robert, who was set aside for W. 2., was then alive. Nor was it possible for all people of legal interests to have been convened at that time, Collectively, or by a regular Representation; it being within four days after the Death of his Brother W; yet hear what Malmsbury says upon that occasion:  
Occiso Rege Willielmo in Regem electus est. Itaque edicto statim per Angliam misso injustitias a fratre Ranulpho institutas prohibuit, pensionum, 
Malms. f. 88 de H. 1.  & vinculorum gratiam fecit, effeminatas Curiâ propellens lucernarum usum noctibus in Curiâ restituit, qui fuerat tempore fratris intermissus. Aliquarum moderationem Legum revocavit in solitum, Sacramento suo & omnium procerum ne luderentur corroborans. Laetus ergo dies visus est revirescere populis, cum post tot anxietatum nubila Serenarum promissionum infulgebant lumina: Et nequid profecto gaudio accumulato abesset, Ranulpho nequitiarum faece tenebris ergastularibus incluso, Anselmum pernicibus nunciis directum. Quapropter certatim plausu Plebeio concrepante in Regem Coronatus Londoniae, nonis Augusti quarto post obitum fratris die. Haec eo studiosius celebrebantur, ne mentes procerum electionis quassarentur poenitudine, quod ferebatur rumor Robertum Comitem ex Apuliâ adventantem jamjamque affore.  
King William being slain, He was chosen King; whereupon, by Proclamation presently sent throughout England, He forbade the Injustices set up by Father Ranulph, he remitted Debts and Imprisonments, driving effeminate persons from the Court; He restored the use of Candles by Night in the Court, which had been intermitted in the time of his Brother; He moderated some Laws according to former usage, corroborating them by His own Oath, and the Oaths of all His Peers, that they might not be eluded upon any account. A joyful day to the people seemed again to flourish, since the Lights of Serene Promises shone upon them after so many Anxieties. And that, in truth, nothing might be wanting to their accumulated Joy, Ranulph, the Dregs of Villainies, being sent to Prison, Messengers were immediately sent for Anselm: Wherefore He was Crowned King at London on the Nones of August, the fourth day after His Brother's Death, with the eager acclamations of throngs of the Common people. These things were celebrated with the greater earnestness, lest the minds of the Great Men should be shaken with repenting of their choice; because there was a Rumour that Earl Robert was coming out of Normandy, and that he would be here immediately.  
Hereby it appears, that the Honest Mob urged on and secured this Election, which otherwise some of the formal Nobility would have disputed at the beginning, or soon have repent of, upon expectation of making some particular terms for themselves, not regarding the Public Good, for which H. 1. had so largely provided.  
To set the proceed of that time in a true light, it may be requisite to transcribe part of what Matthew Paris took from the Historians of the time, and particularly from Sigebert:  
Defuncto itaque Rege Willielmo, 
Mat. Par. 81. Sigisbertus Gemblacensis Monachus huc usque cronica sua satis eleganter digessit. Mat. Par. f. 74.  cum Magnates Angliae ignorarent quid actum esset de Roberto Deuce Normanorum, Regis defuncti fratre primogenito, qui jam per quinquenneum in expeditione Hierosolymitanâ moram pertraxerat, timuerunt diu sine regimine vacillare. Quod fratrum ultimus & juvenis sapientissimus, cum callidè cognovisset, congregato Londoniis Clero Angliae & populo universo, promisit, emendationem legum quibus oppressa fuerat Anglia tempore patris sui, & fratris nuper defuncti, ut animos omnium in sui promotionem accenderet & amorem, & ut illum in Regem susciperent & patronum. Ad haec Clero respondente, & Magnatibus cunctis; quod si animo volente ipsis vellet concedere, & chartâ suâ communire illas libertates & consuetudines antiquas, quae floruerunt in regno tempore SANCTI REGIS EDWARDI, in ipsum consentirent & in Regem unanimiter consecrarent. Henrico autem hoc libenter annuente, & se id facturum cum juramento affirmante, consecratus est in Regem apud Westmonasterium, favente Clero & populo, cui continuo a Mauritio Londinensi Episcopo & a Thomâ Eboracensi Archiepiscopo Corona capiti imponitur. Cum fuerat diademate insignitus has libertates subscriptas in Regno, ad exaltationem Sanctae Ecclesiae, & pacem populi tenendam concessit, etc.  
King William being dead, the Great Men of England, not knowing what was become of Robert Duke of Normandy, 
So R. 1. was called 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-war, were fearful of wavering long without a Government. Which when Henry the youngest Brother, a very wise young Man, cunningly observed, 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 deceased; 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 flourished 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 Crowned 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 Copyhold Manors, 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 seemed in two particulars wisely to have ingratiated himself with the people; the first was in gaining to his side the Directors of their Consciences, by a concession to the benefit of Churchmen, which was wholly new; and that was, That an Archbishop or Bishop, or Abbot being dead, 
Vid. Cart. H. 1.  he would take nothing of the demean of the Church, nor of its tenants, 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. Abbot. Prior, Eccles., & Dignitat. vacantium, quae ad nos pertinent, etc. 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 'tis 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 shown a Fatherly care of the people, no man then raised any foolish scruple upon the manner of the Proceed, 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 appeared against it; and thus Harold having been Crowned by surprise, when the Friends of W. 1. were at the Confessors Burial; 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 show that H. 1. acted as King, even before he was Crowned, 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 Bishopric 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 Crowned, was turned into a Parliament, or acted as one.  

Ordericus Vitalis, says Anselmus, enim Dorebornensis Archiep. exulabat. Eadmerus f. 38, 39, 40. shows 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 W. 2. for he resolving to go take the Pall at Rome, 'twas declared to him in Parliament, that if he went, it should be without any hopes of returning again.  
Upon this the See of Canterbury became vacant, agreeably to what afterwards happened in the case of Becket; though he was not banished, but fled away voluntarily, yet the French King having pressed H. 2. to let Becket have the Profits of the Archbishopric, the King told him,  

Antiquitates Britan. f. 135.  Restituere se nihil ei posse, qui sponte Ecclesiam deseruerit, itaque cum e Regni consuetudine Regisque dignitate, Cantuariensis Ecclesiae quam Thomas fugâ voluntariâ pro derelicta fecit, fructus vacantes certis jam personis contulisset, nolle se dixit, ea quae prout jure Regni potuit contulisset, in irritum, dubiumve revocari.  
That he cannot restore any thing to him, who left his Church of his own accord; since therefore, according to the custom of the Kingdom, and the Royal Dignity, he had conferred upon certain persons the vacant Fruits, of the Church of Canterbury, which Thomas by his voluntary Flight had made derelict, he said he would not make void, or call in doubt those things which he had granted, according to the Law of the Kingdom.  
If there might be any doubt of a Vacancy of the See in Becket's case, at least there was none in Anselm's, who had in the time of W. 2. been banished by Parliament, never to return; and yet the Convention 1 H. 1. being become a Parliament, not only recalled him from banishment, in which they set aside an Act of a former Parliament, but they called him to fill the See of Canterbury, after it had been vacant; which was equally a Parliamentary Act in those days; as appears by the choice of Lanfranc in the time of W. 1.; of this very Anselm in W. the 2 ds; and of Becket in the Reign of H. 2.  
Concerning the Election of Lanfranc, Arcbishop Parker tells us,  

Ibid. f. 110.  Celeberrima est autem hujus prae caeteris electio, & consecratio. Electus enim est a majoribus Cantuariensis ecclesiae, tum accessit Procerum, atque Praesulum, totiusque populi quasi Populi, consensus, in Aula Regis, quod sane est, ad instar Senatus seu Parliamenti Anglicani.  
But this Election and Consecration was with more Solemnity than any other. For he was chosen by the Chief of the Church of Canterbury. To which was added, the consent of the Peers and Prelates, and as it were, of the whole People in the King's Court, which in truth is of the nature of an English Senate or Parliament.  
Tho he will have this Election to have been more solemn than any other; and that it was not in a real Parliament, but in an Assembly of the same nature; yet what himself says of the Elections of Anselm and Becket, explained by more Ancient Authors, shows that the Elections of other Archbishops used to be as solemn; and that both that of Lanfranc, and of the others, were in a full Parliament; or Great Council of the Nation.  
Himself says, That both Peers and People were so much for Anselm's being made Archbishop, that W. 2. would not openly contradict. 
Antiq. Brit: f. 116. W. 2. Proffered Anselm the Archbishopric, but underhand dissuaded him from it, Sed cum neque hâc suasione quicquam profecisset, proque certo comperisset Proceres, Populumque Angliae adversos, aut minus fidos sibi, Anselmo favere, eumque ad Archiep. munus jam oblatum flagitare, apertè contradicere noluit.  Eadmerus, who was always by Anselm's side, shows, that W. 2. being taken ill, in the seventh year of His Reign, Omnes totius Regni Principes coeunt, Episcopi, Abbates, & quique Nobiles. There gathered together all the Princes of the Kingdom, the Bishops, Abbots, and all the Nobles. This, as appears, was, upon notice given among themselves, to provide for their Common safety. To that Assembly the King makes solemn promises of Governing better than he had done: And Anselm being there named for Archbishop, Concordi voce sequitur acclamatio omnium, ' The acclamation of all followed, as with ' one voice. And Eadmerus says, that he was made Archbishop, Secundum totius Regni Electionem, ' according to the Election of the whole ' Kingdom.  
And another Monk of the time says, 
Gondulfus Roff. Ep. Monac. Bec. inter Anselmi Epist. lib. 3.  the King made him Archbishop:  
Consilio & Rogatu Principum, Cleri quoque & populi petitione & electione.  
By the Counsel and Advice of the Peers, and the Petition and Election of the Clergy and People.  
Archbishop Parker, speaking of the Consecration of Becket, 
An. Dom. 1162. 7 H. 2.  in the 7th of H. 2. says,  
Consecrationi huic tam illustri interfuit, H. Rs filius, 
Antiq. Brit. f. 130.  cum plerisque Regni Proceribus, & quatuordecim Cantuariensis Provinciae Episcopis, innumerâque Plebis multitudine, atque copiâ.  
There were present at this Consecration Henry the King's Son, with most of the Nobility of the Kingdom, and Fourteen Bishops of the Province of Canterbury, and an innumerable multitude and throng of the common people.  
The former Precedents show, that they were consenting as well as present; nor could the absence of the Bishops of the other Dioceses make their Meeting the less a Parliament.  
Sir Henry Spelman citys an Authority, proving that the Clergy were not convened at the Council of Rochingham, 9 W. 2. 
Spelman. Concil. vol. 2. f. 16. In quo fermè totius Regni Nobilitas praeter Episcopos & Clerum Convenitur.  which must be meant of not being Summoned; for it appears by Eadmerus, that Anselm and other Bishops were there.  
And Bishop Jewel observes, that in the time of E. 1. 
Jewel contra Hard. f. 455.  a Parliament was held, from which the Clergy was excluded.  
From these Authorities it appears, That as Anselm was chosen Archbishop in one Parliament, and Banished in another; nay, though he had gone away voluntarily, his See became derelict; and admit the King might have pardoned his Banishment, out of Parliament, he could not have restored him to the exercise of his Office, but in a Council which was reputed to have the Authority of a Parliament: and such Authority, 'tis plain that they in that time thought that Convention to have had, in which H. 1. was Crowned; and which after his Coronation acted as a Parliament.  

Malms. f. 88  It appears by Malmsbury, that Anselm was called back in the same Assembly wherein Ranulph was committed to Prison; and Matthew Paris, who is not so precise as to the time of Anselm's being sent for, says Ranulph, was Imprisoned communi Concilio Gentis Anglorum, ' In a ' Common-Council of the English Nation. And it appears by Matthew Paris, 
Mat. Par. f. 78, 79.  That Anselm upon his return was looked on, and acted as Archbishop. And if this is not sufficient evidence that that Convention was reputed a Parliament, or one of the General Councils of the Kingdom; at least the Charter which he then granted, as I before observed, makes full proof of it.  

Vid. Sup. f. 172, & 178.  'Tis obvious that the Convention 1 H. 1. was far less solemn, and had much less ground to be looked on as a Parliament, than ours; and yet it being for removing a Vacancy, and Settling the Government, when the Nation was threatened with an Invasion from Duke Robert; they thought the necessity of time would sufficiently excuse the absence of Form.  
But had there been no Warrant from former times for the late manner of proceeding; the people of Legal Interests in the Government having been restored to their Original Right, Who can doubt, but they had an absolute power over Forms?  
That they were not called a Parliament, I hope will not be an Objection, since the Word is much less Ancient than such Assemblies: Nay, I find it used in the 25th of E. 1. for a Meeting of the People without the King, 
Vid. Append.  to consult for the Publick-Good, of which Matthew of Westminster says, Parliamentum suum statuerunt.  

Vid. Sup. Cap. 1.  Since the Cives, the Common Subject of the National Power, have made their determination in our Case, this, according to that Positive Law which I have shown above, aught to quiet the Debate, and command a submission. And yet were there not Positive Law on their side, the equitable Reservations before observed, might be sufficient Warrant.  
Nor is the Civil-Law wanting to enforce this Matter.  
One Barbarius, a runaway Servant, not known to be so, got in favour with Anthony at the time of the Triumvirate, and by his means came to be Praetor; Upon this, a great Question arose, Whether what he did, or was done before him during his Praetorship, were valid? 
Hottom. Illust. Quest. 17.  Ulpian decides in the affirmative: and Hottoman upon that Question says, ' The suffrages of the People have the force of a ' Law.  

Gotofredus de Electione Magistratûs inhabilis per errorem factâ, p. 6.  The Reasons given for the Resolution, as they are in Gotofred, who best reconciles the various Readins, will greatly strengthen our Case.  
He tells us, That though the Question there is only concerning a Servant, the Reason of it reaches to Emperors, and all Secular and Ecclesiastical Dignities. The Reasons why Ulpian holds the Acts of such good, are,  
1. In regard of Common Utility, and the Inconvenience it would be to those who had business before him, if it were otherwise.  
2. From the Power of the People to give a Servant this Honour. Gotofred thinks, If this may be done with certain knowledge that he was a Servant, much more through mistake; for if the People, who have the Supreme Power, may with certain knowledge, for the sake of the Publick-Good, not only design a Servant for Praetor, but in this Case, by a just Election, take a Servant away from his Master; How much more may it be done as in the Case propounded, not to make a Servant wholly a true Praetor, not to take him from his Master; but only by a commodious interpretation, to have what is done by him, or with him, sustained; and that so long, the Error of the People, and Servitude of the Person chosen, should not prejudice what is done?  
Gotofred goes yet further, and says, of Magistrates and Judges constituted by Tyrants, the manner of Judgements being kept, 
Gotofred. Sup. p. 25.  the things done according to form of Law, or Transacted according to their Wills, have been held good. 
Sponte transacta.  And yet in this Case the defect seems greater, being the Power is collated by one inhabil, and so a substantial form is wanting: Wherefore in this Part there seems no difference between the inability of the Elector, or the Elected.  
And if ever the Common Utility, or Public Good, might warrant Actions out of the Common Course, certainly this could never have been pleaded more forcibly than in the Case of this Nation; which unless it had declared for King WILLIAM and Queen MARY (which they did in the most regular way that the Nature of the thing would bear) had in all likelihood, by Irish and French Forces, by this time been reduced to the miserable condition of the poor Protestants in Ireland, who are by no means beholden to the nice Observers of unnecessary and impracticable Forms.  
However such Formalizers would do well to answer the French King's Advocate in the Case of King John, who shows a Vacancy of a Throne; and to whom in such Case, the care of the Kingdom belongs. And they being the Barones Regni, I need not now stand to prove, that in the Language of that time, 'twould comprehend all such as were Members of our late Assembly of Lords and Commons. For admit it were to be restrained to the Lords only, then at least the Commons now, were but supernumerary: And since the Lords Voted by themselves, and not in the same House with the Commons, for the majority of united Votes to carry it; the Settlement Voted by the Lords, were enough to conclude the Nation.  
But for the farther conviction of those who still urge, That to hold that there may be a Parliament, without being summoned by the King's Writ, would be of pernicious consequence to the Constitution of the Legal Monarchy under King WILLIAM and Queen MARY; I shall refer them to a Paper which came out not long since, entitled, 
Vid. Append.  The Present Convention a Parliament, which I have transcribed at large into the Appendix. As that Paper gives an abstract of what might be proved by Authorities; those which I have produced, give confirfirmation to that Paper.  

Part 1. Object.  Here, I ought not to pass by some Objections of the Author of Elementa Politica, in relation to the supposed want of due Form in proceeding to Judgement, or of Actions leading to it; which if they were unwarrantable, the Judgement must have been so too, being founded upon the belief, that there was just occasion for those Actions.  
The Substance of his Objections, may be reduced to these Heads:  
1. Part of the Legislative Power is in the King: Whence it follows, 
Elementa Pol. p. 5. Since published with the Title of Vindiciae Juris Regii.  that the whole Body of the People is not the Supreme Authority; nor consequently can call their Prince to account, without his own consent.  
2. That Part of the Legislative Power which is lodged in the People, is not given at large to be exerted at their pleasure; but depends upon stated Rules and Limitations, and can only be exerted by their Representatives in Parliament. Nay, it is so precarious a Privilege, that without the King's leave they can never make use of it: For it is neither lawful for them to Convene themselves, nor yet to sit any longer than the King pleases. Which is in different words, but the same with Mr. Hobbs his position, Where there is already erected a Sovereign Power; 
Leviathan, f. 97.  by which he means a single person in possession of Power, There can be no other Representative of the same People, but only to certain particular ends limited by the Sovereign. If this were meant of Power in the abstract, no Man need dispute the point with either of the Authors.  
But to proceed with the Elements:  

Elementa Pol.  3. The Liberties of the Subject were Acts of Grace from the Crown; and since they had no Right to demand them by Force, they must take them upon such Conditions as they are offered: Nor is it to be supposed that Kings would forgo their Irresistible Power, unless they had Signed it away in so many words.  
4. The Militia is by Law lodged in the King: Most of the Nation is obliged to Declare against taking up Arms upon any pretence whatsoever, against Him, or any persons Commissioned by Him: And the two Houses themselves swear Allegiance.  
5. That Clause for Resistance in King John's Charter, contrary to this, is of no force now; and however is an Authority against the Deposing-Power; there being an express Proviso for saving the King's Person and Royalty, and His being obeyed as formerly, upon Redress of Grievances.  

Answ.  Not to observe the inconsequence from a qualified Legislative, to a Judicial Power, in which the Dernier Resort is with the Lords; nor the mistake, as if that Meeting and Sitting of Parliament which the Law has provided for, within, and till a certain time, were wholly precarious: 
Viz. Till all Petitions are Answered; and that is certain which is reduceably to a Certainty. Vid. Sup.  Nor the former Objection against the Militia-Acts, for want of a due Repeal of the Triennial, 16 Car. 1. which this Author calls but a Proposal; nor yet that the Allegiance sworn, must be according to the Constitution: For a full Answer to all, it will appear, even by his own confession, That these Restrictions have no place, but while the Constitution is preserved.  
Himself admits, That had the Legislative Power been invaded▪ and the Constitution of Parliaments dissolved, it would have superseded his Niceties. But denies both, because, forsooth, the Judgements against Charters were begun in a Protestant Reign, and applauded by the loyal part of the Nation; And the Dispensing Power was affirmed by the Judges; which is only a justifying Crimes by their Authors; of which too many may say, 
— Pudet haec opprobria nobis  
Et dici potuisse, & non potuisse refelli.   
Nor may it be impertinent here to observe Tacitus his Account of the steps by which Julius Caesar advanced himself to an arbitrary Power: Leaving the Application to others.  
When he had wheedled the Soldiers with large Pay, the People with Freedom from Taxes, all with the sweetness of Peace; 
Tacit. ed. Plaut. p. 1. and 2. Ubi militem donis, populum annonâ, cunctos dulcedine otii pellexit, munia Senatus, Magistratuum legum, in se trahere nullo adversante, cum feracissimi per acies aut proscriptione cecidissent, ceteri Nobilium quanto quis Servitio promptior opibus & honoribus extollerentur, ac novis ex rebus aucti tuta & presentia quam vetera & periculosa mallent. Neque Provinciae illum Statum abnuebant, suspecto Senatûs Populique imperio, ob certamina potentium, & avaritiam Magistratuum, invalido legum auxilio, quae vis, ambitu postremo pecuniâ turbabuntur.  he risen by degrees to draw the Offices of the Senate, Magistrates, Laws, to himself without opposition: When the most fierce had fallen in the Wars, or were driven from their Country, the rest of the Nobility being, as any of them was the more forward for Servitude, raised to Wealth and Honour, and profited by the Change; chose rather present Safety, than the former State, not to be retrieved without hazard. Nor did the Provinces decline the Yoke; the Government of the Senate and People becoming cheap, through great men's quarrels, and the Avarice of Magistrates; the Law being enervated, and its course interrupted by Force, Solicitations, and at last Bribery.  
The Author of the Elements supposes, that if the Government were subverted by the late King, all Rights whatsoever are lost, as well as his; which I have shown, by no means to follow.  
But particularly, as to the Resisting-Clause in King John's Charter, which he observes to be turned into an Excommunication in H. 3d's, 'tis to be considered, That as a King could not be thought to subvert the Constitution upon the first Breach of some particular Articles there, that Clause was in this respect an Addition to the Constitution; but being only in the Affirmative, could not derogate from it.  
Himself says, If with reference to the present Case, the Government is actually subverted, than I grant the King's Authority is destroyed. 
Elem Pol. part printed.  And if the Government as to the King's share in it, is subverted, and his Authority destroyed, then there is no doubt but the People are freed from all those Forms to which his Presence or Consent were otherwise needful.  
This Author yields in another place, 
Print, p. 13.  that where the People are not forced into Submission, but freely elect their Monarch, there all remote inferences and doubtful cases ought to be interpreted in favour of the Subject, because the Form of Government had its beginning from them; and in this case Liberty proves its self.  
This he admits, supposing that he had proved a Conquest of the Nation by W. 1.; which I shall examine in its place; though what I have said above, might take off the Inference from his Hypothesis, 
Vid. sup  especially considering the broken Succession since W. 1. and what Authority the Constitution has given to the People's Choice, which W. 1. as appears by his Deathbed Declaration, and what followed immediately upon it, left untouched.   

CONCLUSION.  
I Cannot think that I have followed Truth too nigh at the heels for my Safety in the present Government, which I take to be built upon this staple Foundation; and that Protestant fond flatters himself, who thinks to retain his Religion and Security upon any Terms, at a return of the Former, which some who were Instruments in setting up this, seem madly to contend for. But could men hope to find their private Accounts in such a Change, yet surely the dismal Prospect of Common Calamities to ensue, should induce them to sacrifice such low Ends, to the Interest of their Religion and their Country.  
I am not sensible that I have misrepresented any Fact or Authority, though I have not urged them with that strength, which might have been by a better Pen. Perhaps what I have offered may give another Notion of the Succession, than what many have imbibed, who will think I violate what is sacred. I have not urged the Illegitimation of the Children of E. 4. by Richard the Third's Parliament; because, though he was a King de facto, if the Character fixed on him be true, he was a Tyrant as well as Usurper 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 produced, will occasion some consideration, till they are either evaded or disproven. 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 virtue, at least the Defence of it, if we do not madly quit the ground which we have gained from them, who have hitherto made Virtue the greatest Crime?  
Wherefore, for us now to look back, after we have set our hands to the Blow, 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 public Interest a Pretence for carrying on our own. 'Tis an happiness indeed when they are twisted and thrive together. But the Cause is such, as a man ought not to fear to die, 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 contemned 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 Public 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 Public 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 Privileges, 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 transferred 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 though 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 censured as a Deserter of his Church, for going about, 
Letter to the B. of L.  according to his great Learning, to justify 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, 'tis more difficult to justify 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 restored those Liberties, which the other Invaded, and reassured the Public 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 Undertake. 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.  
Tho' those Authors which I have referred to in the Book, have sufficiently exposed 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, played 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 Politics, whose Death he laments, was not so ill- principled in himself, nor inclined 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 methinks Dr. Heylin, by subscribing to Sir Robert's Judgement in Politics, and consequently to his Anarchy of a mixed 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 called Patriarcha, 
Ep. to Sir Edw. Filmer.  which the Doctor by way of Prophecy, (for I am sure 'tis not to be imagined in the way of Nature) tells us would, when published, give such satisfaction to all our great Masters in the Schools of Polity, that all other Tractates in that kind would be found unnecessary. That Catholicon, (as he is pleased to call it) would supersede the Divine Right of all Rulers, even in Ecclesiastical Affairs, other than Temporal Princes, who prior to their Unction, by which 'tis supposed that the Spiritual Jurisdiction is conveyed, are invested with all that Power that the Patriarches had, who according to our Prince of Politicians, by Right in Nature, and God's special Ordinance, were absolute Priests and Princes.  
Now one would wonder what Principle was received by King Edw. the 6 th', more injurious to the Church, than what the Doctor and his Followers eagerly embrace.  
What was the Judgement of that King, I have seen in a Manuscript worth Diamonds, written by his own Hand, and dedicated by him to his Uncle the Duke of Somerset, in the Year 1549. when, as I compute it, he was but Twelve Years old, entitled, Petit Traité A léncontre de la Primaute du Pape. Where amongst other things, he discourses thus of the Power of the Keys. 
This has been since translated by a Lady of great Quality.  Le second text est que les clefz du ciel estoyent donnees non seulement à Pierre, mais aussy aux autres Apostres; & par cest argument je repons qu'il n'estoit pas le Principal; 
Galat. 2.9.  car les autres recevoient la mesme authorité des clefz laquelle luy est commise: Pour laquelle chose Paul appelle Pierre la Coulomne, non pas le fondement de léglise, & son compagnon non pas son Gouverneur: car quelles sont les clefz du ciel? l'authorite de pardonner les pechez? non, mais le preschement de l'evangill de Dieu le pere, ovy bien de Dieu, non pas du Pape ou Diable, Et tout ainsi que quand, l'huys est ouvert quiconques veult peut entrer, ainsy quand Dieu envoyoit son sincere Commandment & son Evangile, 
2 Cor. 2.92.  ‛ ils owroient la verité, la quelle est la porte du ciel: & donnoient aux hommes à entendre la ecriture, la quelle sillz suivent, ilz seront saunez: parquoy on peut entendre que ' l'evangile, & la verité de l'ecriture sont les souls ports qui conduisent l'homme au royaume de Dieu: pour laquelle choose St. Paul dit. Quiconque invoquera le nom de Dieu serra sawe. 
Rom. 10.13, 14, 17.  Comment invoquerent ils celuy auquel ilz ne croient pas? Comment croyrent ilz en celuy du quel ilz noned pass ovy parler? Comment orront ilz sans avoir un prescheur? Et un peu apres il dit, Foy vient par ovir, & ovyr de la parolle, de Dieu. Au quatriesme Chapitre aux Romans aussy il dit, 
Rom. 4.5.  à celuy qui naewre pas, mais croit en celuy qui justifie les meschans', sa foy luy est imputee à justice.  
Maintenant nous prouuerons que le preschement de l'evangile est la clef du ciel. 
Rectiùs Dixiesme.  Au huitesme Chapitre aux Romans (come jay dessus dit) Paul affirm, que quiconque invoque le nom du Seigneur est sawe, & que le preschement de l'evangile, est l'entree en linvocation de Dieu: adonc il sensuit que le preschement de l'evangile est l'entre du salut; D'avantage Paul affirm, que foy justify, & que le preschement de l'evangile fait la foy (la quelle choose jay demonstree icy devant) purtant il sensuit, que le uray preschment est l'entree en justification: car tout ainsi qu'un terre semee peut produire fruit, porveu que la semence ne soit semee en terre plein de chardons, brieres, ou pierres: Et encore s'elle est semeé en telle terre elle ferra la terre un peu meilleure, ainsi, si le Commandement de Dieu est semé à cueur de honestes gens, ou de ceux qui ont un bon zele à la verité, il les confirmera en toute bonte, mais si aucuns sont obstinez & opiniatres, ilz ne pevent imputer la faute à l'ecriture veu quelle est en eux mesm. 
Mat. 28.18.  Pourtant nous nous devons efforcer que l'evangile, soit preschee par tout le monde comme il est ecrit. Tout povoir m'est donne en la terre & au ciel: 
Mark 16.15.  pourtant allez & preschez à toutez creatures les baptizans en mon nom. Puis donc quil est prouue que les clefs du ciel sont l'authorite de prescher, & que l'authorite de prescher estoit donnee à chacun Apostre, je ne puis voir comme par ce texte l'authorite estoit donnee à Pierre plus que aux autres, etc.  
Now, in short, here lies the Substance of these Principles, the Danger of the improvement of which was happily prevented by Queen Mary's Reign.  
The Power of the Keys, or Church-Power, is only Authority to preach the Gospel, that was equally given to all the Apostles; therefore all Apostles had equally the Power of the Keys, and so were equal: And by consequence will some say, all Preachers after them, that had only a general and ordinary Commission to preach, are equal, of the same Order to one another, Order being taken for a Power to do a special Act, as the Learned Bishop Andrews informs us; 
Ep. Wynton. Resp. ad 3 Ep. Pet. Moline. p. 192.  Ordinem esse potestatem ad actum specialem, non à me dico, Schola hoc dicit tota.  
Even the Authority to preach the Gospel, which was in an especial manner committed to the Apostles, and by Ordination by them practised, conferred upon others, and always continued in the Church, some great Churchmen will tell us aught to yield to the Civil Power so far▪ that no Man forbidden by the Magistrate ought to preach, without an immediate Commission from Heaven, by working of Miracles. Whereas others will say, 'twas enough that the Power was given at first, and attested to by Miracles. Something agreeably to which, a Learned Churchman says, Touching the Worship of God:  
Since the Divine Establishment of the Public Christian Service is contained in the Gospel, 
Falkner 's Christian Loyalty, p. 41.  no Authority upon Earth hath any right to prohibit this: And those Christians that rightly worship God, in the true Catholic Communion, according to the Apostolical and Primitive Church, have a right to hold such Assemblies for the Christian Worship, as appear useful for the Church's Good, though this should be against the Interdict of the Civil Power.  
This is greatly opposite to the Judgement since delivered in the Case; yet by adding false Terms, he enervates his Argument; for his Argument is taken from such Service its being contained in Scripture; but upon that he would support those Modes of Worship, which though not contained in Scripture, were used in the Primitive Church, which is an Individium vagum, which some confine to the Life-time of the Apostles, some extend to the whole first three Centuries, some even to this, according to the Doctrine of Infallible Tradition. Suppose, for Example, that in such Assemblies as are formed with or without leave of the Civil Power, the Sign of the Cross be used as a Symbol of dedicating to the Service of Christ, those who are let into Catholic Communion; and this they judge useful to the present, and according to the Primitive Church, it will be a Question, Whether the retaining of this, against a particular Interdict of the Civil Power, (which is supposable at least) is to be justified upon these Grounds? Put this Argument into Form, and you will find he has more or less in his Conclusion, than in his Premises. Rightly taken, I conceive it lies thus:  
If the Gospel contains a Divine Establishment of Public Christian Service; such Public Christian Service as has therein Divine Establishment, no Authority upon Earth hath any right to prohibit.  
But the Gospel does contain a Divine Establishment of Public Christian Service: Therefore such Public Christian Service as has therein Divine Establishment, no Authority upon Earth has Power to prohibit.  
This being taken for granted, he proceeds; What not Authority upon Earth has right to prohibit, may be done or performed notwithstanding the Interdict of the Civil Power.  
But such Service, ut supra, no Authority upon Earth hath right to prohibit, therefore it may be performed notwithstanding the Interdict of the Civil Power.  
But he concludes contrary to the Laws of Arguing; That those Christians who rightly worship God in the True Catholic Communion, according to the Apostolical and Primitive Church, have a right to hold such Assemblies for the Christian Worship, as appear useful for the Church's Good.  
Now if hereby he means that they who worship God according to the Scriptures, even though taking in the Practice of the Apostles, have not this Right, unless they do it in the manner used till, or at the end of the first three hundred Years after Christ, which is the modestest acceptation of Primitive Times. Here, by adding of Circumstances, his Conclusion has really less than the Premises, because it ties up them whom the Scripture has left free, and takes from the Authority of Scripture where the Foundation was laid, and undermines it by going to support it with the specious words of Apostolical and Primitive, which still are of doubtful Acceptation. Whereas some believe that no manner of Worship is to be termed Primitive, which was not truly Apostolical, that is, used by the Apostles themselves, others call every thing within those three Centuries at least, Primitive, and therefore Apostolical.  
But to be sure here is a very false way of Arguing, if he uses any, or else 'tis gratis dictum. But take it for an Argument, and then to his purpose, there is more in the Conclusion than in the Premises; for the Premises are only of such Public Service as is contained and established in the Gospel; and thence he would conclude, that whatever has been practised in the Primitive Church, in the Public Service of God, may be continued notwithstanding the Interdict. Nay, he would go farther, That they may in their Assemblies practise according to their own Judgement, of what is useful for the Church's Good. If it be said, that he means no more, than that they may hold such Assemblies for Christian Worship as appear useful, that is, of Five besides a single Family, 
22 Car. 2. c. 1.  or more, as appears useful, if he means not that they may assemble, and worship, in such a manner as appears useful, he excludes the Worship out of the Assembly, and then it may be a Silent Meeting if the Civil Power please, and is less than his Premises warrant.  
I must confess, he seems to intent the amusing, rather than satisfying his Readers, by putting in the true Catholic Communion; for he must mean either that  Public Service is according to the Apostolical and Primitive Church, is in true Catholic Communion, and so vice versa, that  is in true Catholic Communion, is according to the Apostolical and Primitive Church; so that the Church becomes the Rule to the supplanting of Scripture: or else, that to worship God rightly and warrantably, notwithstanding a Civil Interdict, 'tis not enough to be according to the Apostolical and Primitive Church, unless it be in the true Catholic Communion, that is, with such Terms of Communion as Christ himself, or his Apostles made Catholic and universally obliging; and indeed in this sense, though he has not observed it, he comes up fully to the Force of his Argument.  
The great Sanderson, whose Judgement, where it was according to that lumen siccum, the general want of which is to be deplored, is of great Authority, has gone about to split the Hair between two Extremes, in relation to Ecclesiastical Jurisdiction, and lays down what he says is most consentaneous to the Doctrine of the Church of England, and moreover to the Laws of the Kingdom; 
Sanderson de Obligatione Conscientiaa, Pag. 209.  Quod & Doctrinae Ecclesiae Anglicanae & Regni insimul Legibus maximè sit consentaneum: Which, by the way, is an insinuation that the Church of England holds some Doctrine not consentaneous to Law, and it may be the Canons of 1640 might be instanced in.  
Now his Notion is, that the jus condendi Leges Ecclesiasticas, that is, the Legislative Power in Ecclesiastical Affairs, is in the Bishops, Presbyters, and other Persons duly elected by the Clergy of the whole Kingdom, and duly assembled in a lawful Synod.  
Upon this I would be bold to ask the Question, 
Pag. 188.  How this agrees with his Concession, That the King is Supreme Head and Governor over all Persons and Causes, as well Ecclesiastical as Civil; since his own Argument is, That he who is Supreme, has the Power or Right to make Laws. But the King is Supreme, wherefore, 
P. 192.  according to him, the King, and not the Clergy, hath this Power. This I think is the unforced Consequence from his other Assertion; Potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esse potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Hoc est jus ferendi leges quae obligant totam communitatem esse penes eum solum, 
Pag. 186.  sive sit is singularis persona, ut in statu Regiminis Monarchici, sive plures ut in aliis, qui cum summâ potestate toti communitati praest. Nay, he argues that it must needs be so in reason; Praecipuus actus gubernationis praecipuam requiret potestatem, etc. Est autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive legum latio, actus gubernationis supremus & praecipuus; Non ergo potest exerceri nisia persona habente, aut saltem in virtute & ex authoritate habentis supremam authoritatem & jurisdictionem in communitatem sibi subjectam.  
The chief Act of Government, requires the chief or Supreme Power.  
But the making of Laws, is the Supreme Act of Government.  
Therefore it cannot be exercised but by a Person having, or at least by Virtue, and from the Authority of the Person having Supreme Power and Jurisdiction over the Community subject unto him. Now in this the Doctor seems to be uniform to himself, since he grants that the Clergy cannot exercise this Power without the consent of the King, and so they act by virtue of his Authority. But it will be justly questioned, whether the Power be not in the King, the Authority being his: For a Legislative Power, wherever placed, is , and self-sufficient; and so the Doctor tells us; Potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; and if the Power, the jus condendi Leges Ecclesiasticas be in the Clergy, than that Power is self-sufficient, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; and by consequence their Act of Legislation made known, obliges the Community, Eodem omninò modo quo Princeps qui habet potestatem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, 
Pag. 84.  ferendo leges obligat subditos ad ipsarum observationem.  
But perhaps we may be told that a Difference is here to be taken between jus condendi Leges, and potestas 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉; but then the Doctor must be allowed not to talk with coherence; For he takes it for granted, Posse de novo condi leges de ritibus, rebus & personis Ecclesiasticis, omnibusque sacri cultûs externi circumstantiis ad ordinem honestatem, & edificationem spectantibus, extra eas quae sunt à Christo & ejus Apostolis in Sacris Literis traditae; which is, in short, that there is somewhere a Legislative Power in Matters Ecclesiastical, not determined in the Scriptures. Now this very Power, Jus condendi Leges Ecclesiasticas, he places in Ecclesiastical Persons; wherefore the Power which he ascribes to them in Ecclesiastical Affairs, is a Legislative Power. And some will question, how much soever the Clergy compliment the King, whether they take not the Restraint which they submit to, to be a Condescension; nay, that Power is by him ascribed to the Clergy in the very same Expressions, wherein he expresses the King's Power. 
Pag. 189.  For as he says, Jus condendarum Legum, 
Pag. 209.  is penes unum Regem; so he tells us, Jus condendi Leges Ecclesiasticas, is penes Episcopos, etc.  
I would gladly see the Difference rightly stated upon these Principles.  
The Clergy have the Power of making Laws, or the Legislative Power in Ecclesiastical Matters, yet the Exercise is restrainable by the King. Jus condendi Leges Ecclesiasticas esse penes Episcopos, Presbyteros aliasque personas à totius Regni Clero ritè electas, & legitimâ Synodo congregatas; Ita tamen ut ejus juris exercitium in omni Republicâ Christianâ ex Authoritate Supremi Magistratûs politici pendere debeat; Idque à parte ante, & à parte post.  
The King has the Legislative Power in Civil Affairs, yet the Exercise is restrainable by the People; Cum dicimus penes unum Regem esse jus condendarum Legum, 
Pag. 189.  non id ità intelligendum, quasi vellemus quicquam Regi libuerit jubere id continuò legis vim obtinere, nam & populi consensum aliquem, aliaque non nulla ad Legem constituendam requiri mox ostendam.  
Ergo, Quere, Whether Churchmen are not Supreme in Ecclesiastical Affairs, as the King is in Civil?  
It will be said, Admit they are, yet that Power may be very consistent with Monarchy; for which purpose one need but transcribe, with very little variation, the Doctor's words, applying what he says of the Lawgiver in Temporal, to the Ecclesiastical Lawgivers.  

Pag. 203.  Posse duo haec (Regis inquam consensum & supremum ECCLESIASTICORVM in ferendis legibus potestatem) simul & amicè satis consistere, praeterea quod in rebus ipsis nulla videtur esse repugnantia) vel inde constare potest, quod Angliae nostrae CLERICI, quorum supremam potestatem in ECCLESIASTICIS ante infoelicissima haec tempora omnes hujus Regni incolae prolixissimè semper agnoverunt, nunquam tamen legislativam suam potestatem ità exercuerunt, ut sine Regum suorum consensu Leges aliquas condiderint.  
Now whether the Doctor's Reflections upon them that feign a Power coordinate with the King; nay, whether his imputation of Perjury upon them who deny the King a Legislative Power, after having sworn that he is Supreme Head and Governor over all Causes and Persons, as well Ecclesiastical as Civil, will not fall upon himself, some will question; 
Pag. 191.  and they know not whether he were not one of them that believed Contradictoria posse simul esse vera.  
And thus again they argue out of him; 
Pag. 188.  In statu Monarchico unius Regis personae inhaeret summa potestas.  
" In a Monarchy, the Supreme Power is inherent in the Person of" the King only.  
But ours is a Monarchy, therefore the Supreme Power is inherent in the Person of the King only, 
Ibid.  he is omnium personarum causarumque in suis Regnis Supremus, imò & solus supremus Moderator. Making of Laws, either in Ecclesiastical or Civil Matters, is an Act of the Supreme Power; therefore the Right of making Laws, 
Pag. 192.  in the one as well another's, is in the King, in whom the Supreme Power is inherent, not in Churchmen.  
But if one may dispute the Authority of so great a Man, one may be bold to ask what proof there is, that what he asserts about Ecclesiastical Jurisdiction, is consentaneous, & Doctrinae Ecclesiae Anglicanae & Regni insimul legibus?  
For take it in the largest sense, not that the Clergy have the Legislative Power so qualified as aforesaid, but that they and the King have a Power of making Laws in Ecclesiastical Matters which shall oblige the Community, without any farther Consent or Ratification; This some will say may, for aught they know, be agreeable to the Doctrine of the Church, or Churchmen; but where is the Law to warrant it they are to seek. And besides the several adjudged Cases that the Laity are not obliged, by any Canons of the Clergy, or Ecclesiastical Laws, though made with all the Circumstances taken in by the Doctor; They urge the Authority of this King in his Parliament, where 'twas enacted, that the Canons made in the Year 1640, 
13 Car. 2. c. 12. This was written before that Parliament was dissolved.  should not be confirmed; which shows that they stood in need of Parliamentary Confirmation to become Laws. And 'tis to be observed, that there had been the Royal Assent to that Exercise of Ecclesiastical Power, both à parte ante, and à parte post.  
Some Men possibly may tax this Great Author with Deceit, in giving the King a Legislative Power in general, without excluding those Ecclesiastical Matters which the Great Legislator left undetermined; And yet afterwards, when had he said enough to gain Credit, stealing away a large share for the Clergy; but yet he had given so much before, that he could not leave any thing to the Clergy, or the Laity either, without manifest contradiction. He tells us, that in every Monarchy the Prince has Supreme Power; that this Supreme Power is a Legislative Power, and with us extends to Matters Ecclesiastical, as well as Civil; that a Legislative Power is Self-sufficient and Arbitrary, and that that Prince who has a Legislative Power, obliges his Subjects, ferendo Leges, by the exercise of this Power; and that must be in what manner soever he exercises it, otherwise 'tis not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. Yet in another place he says, what the King commands has not the Force of a Law, 
Pag. 189.  that is, does not oblige, without some Consent of the People.  
And whereas he places in the King the Sanction of Laws in general, as being the principal Cause that introduces the Form; and this he calls, jus condendarum Legum; this Right or Power he places in the Clergy for Matters Ecclesiastical, and so wholly shuts out the King and Laity, who have, according to him, neither the Proposing, nor the Sanction: And therefore that restraint of the Exercise which he yields to the Civil Power, amounts to no more than a natural, not moral Power.  

Praelectio 7 ma de Obligatione legum humanarum ex parte causae efficientis.  And this appears farther, in that this was under the Head of the efficient Cause of Humane Laws, which he makes the Clergy to be in Matters Ecclesiastical, and that without Aid of the Civil Power, as he explains himself, speaking of the Matter of Laws.  

Prael. 7 ma. p. 174.  Leges autem Ecclesiasticas hìc intelligo, non quae à personis Ecclesiasticis sine Magistratus civilis authoritate constitutae sunt (quae schola non est hujus loci sed ad alterius generis causam, efficientem, scilicet, pertinet, etc.  
I conceive he places the Authority of making Ecclesiastical Laws in the Clergy, in the same manner that he does any Act of the Ministry; the Power of which, according to some Great Men, remains, though the Act may be restrained, which some Men cannot understand for their Hearts, for they suppose that one may always act according to a lawful Power. But we are otherwise taught;  

Ep. Wynton. Resp. ad 3 Ep. Pet. Moline. p. 191.  Post enim (quàm dicunt) degradationem manet potestas ad actum ordinis, cujus potestatis usus prohiberi potest, potestas ipsa tolli non potest.  
To put an end to all these Disputes, Doctor Heylin's perpetual Dictator in Politics, places a Power in Adam as Absolute and Arbitrary as all the Acts of his Will, and does nothing if he goes not to prove that this his Power was to be obeyed in every Act of his Sovereign's Will, relating to things Sacred, as well as Civil; for a right to Command, without an Obligation upon others to obey, is an empty insignificant Notion. Well, this being settled, beyond dispute, in Adam and in his Posterity, by right of Fatherhood, and in Cain by right of Birth, (though by the way he never was vested with such Power over his Brother, 
Patriarcha, p. 19 Patriarcha, p. 12. Patriarcha, p. 13.  over whom we are told 'tis promised, for that Abel died in the Life-time of Adam) though it were indivisible, and of right an universal Monarchy settled upon the Eldest Parent; yet it lawfully descended, or came, upon Sons in the Time of their Fathers; as upon Judah, who by virtue of his Patriarchal Power, condemned Thamar to be burnt, while his Father Jacob was in being: Such as could set up for themselves in any of the divided Kingdoms of the Earth, had, in spite of contradiction, just Shares in this still indivisible Monarchy; and not only by consequence, but expressly are we taught, that Usurpers and Rebels have good Authority, such as ought to be obeyed, though the lawful Prince be alive.  
But these, besides many other Absurdities and Contradictions, which Sir Robert is pleased to divert us with, are but necessary Consequences upon the Supposition, that every one who is Supreme in Power, 
Patriarcha, p. 19 All Kings, etc. are to be reputed the next Heirs to those first Progenitors, who were at first the natural Parents of the whole People.  however he come by it, derives his Title to an indivisible Power; that is, all Power, from Adam, which holds not only as to all Power within any particular Division or Tract of Land, but all over the World, as it is supposed Adam's Power was. If it be meant of the Father of the People within such a Tract of Land, than he derives not his Title from the Eldest Parent; and by Consequence entitles such an one only to a subordinate Power. And therefore one would think that Sir Robert has heaped together all the Absurdities flowing from such an Opinion, with an intention to expose it to all Men of Judgement. They that will say 'twas otherwise, surely are none of his Friends, but expose him as they do themselves, in contending so eagerly for the maintenance of what, if he spoke his Judgement, argues him to be none of the wisest, if 'twas not none of the honestest.  
If, as one of Sir Robert Filmer's pedantic Admirers flourishes, 
Pref. to the Power of Kings.  All Readers are insensibly under his Command, as if they were his Subjects, and are his by right of natural Sovereignty; and a Reason so far exalted above ours as his, makes him appear like those Kings of old▪ who were in Stature much superior to their Subjects, and seemed so far to over-top the rest, as if Nature marked them out for Heads of all;  
If still, this exalted Genius be guilty of Self-contradictions, and undermining his own Foundations, what silly Creatures are they, or what Slaves in their Understanding, who are made Captives without Resistance, and are Slaves by right of Conquest. And if all Men fell under his Title, either of natural Sovereignty, or of Conquest, how despicable were the Condition of Humane Nature.  
But surely Contradictions will not down with all Men; 'twere in vain to show such easy Wretches, as are led captive by Sir Robert's false Reasonings, wherein his Fallacies lie, as in not distinguishing the Power whereby a Nation is governed, from the Person or Persons invested with Power; nor considering the Manner wherein it is enjoyed, whether Absolutely, or with Limitation; or whether the Administration or Exercise be according to the lawful manner; which to them that are able to consider, would evince to how little purpose 'tis urged that Sovereignty is indivisible. For an undivided Sovereignty may be in several in unequal manners, and sometimes in equal. As in the Roman Consuls or Decemvirs at least, and that by Sir Robert's own confession:  
The Law, says he, of the Twelve Tables affirms; Regis Imperio Duo sunto, iique Consules appellantur. Let Two have Regal Power, and let them be called Consuls. Also the Judgement of Livy is, that the Sovereign Power was translated from Consuls to Decemvirs, as before from Kings to Consuls.  
Yet in another Place our Learned Knight, according to his usual Inconsistencies with himself, tells us, that but one of the Consuls had Regality, for they governed by turns: Which, by his Favour, I take it, was only in the Wars, which require but one General, not at Rome: However he confesses, that all the Decemvirs had Regality, for he pretends not that they governed by turns, and he says, they were chosen to make Laws; and though some will question whether a Supreme Gubernative implies a Legislative Power, no Man will question, but a Legislative takes in the other, or at least may, at the pleasure of him or them in whom it is vested. But I would fain know which one of them had right to give Law to the rest, or had the Sovereignty in him alone: And for it to be in more than one, 
Observe. touching Forms of Gou. p. 47.  is (as we are informed by him) quite contrary to the indivisible Nature of Sovereignty. Yet he grants it may escheat to the Supreme Heads of Families, that is more than one within that which had been at least immediately before the same Community; nay, and that it may be exercised by many in other Acts, besides the choice of one to head them, which he owns in these words:  

Ib. p. 60, & 61.  Those Governments that seem to be popular, are kinds of petty Monarchies: which may thus appear; Government is a Relation between the Governors and Governed, the one cannot be without the other, mutuò se ponunt & auferunt. Where a Command proceeds from a major part, there those individual Persons that concurred in the Vote, are the Governors, because the Law is only their Will in particular.  
Yet, under correction, though some of those altar their Wills, and some which were against the Law become for it, provided that the Balance continue as 'twas when the Law passed; in this Case the Law cannot be changed by those very Persons which made it, 
There can be no Obligation which takes state from the mere Will of him that promiseth the same. Power of Kings, Fol. 1.  and therefore some things which receive Force from the mere Will of the Parties, yet continue to oblige against their Wills, and the Government is in the united Body, not in those who made that Law, for the Power cannot be derived from them who changed their Wills, but out of the whole Body; however no one of them were a Monarch, and yet what hinders but that there was a Sovereign Power amongst them?  
This Power it seems Sir Robert knows not how to distinguish from the Exercise or Act of Power. The Supreme Power being an indivisible Beam of Majesty, he tells us, cannot be divided or settled upon a Multitude; God would have it fixed in one Person, not sometimes in one part of the People, and sometimes in another, and sometimes, and that for the most part, no where; as when the Assembly is Dissolved, it must rest in the Air, or in the Walls of the Chamber where they were assembled. Agreeable to which he says elsewhere; By this means one and the same Assembly may make, at one Sitting, several Forms of Commonwealths. So that he supposes the different Exercise to alter the form of Government, and that it Dissolves when the Exercise ceases, or is discontinued: which Error is of kin to theirs (whoever they are) that make a Church barely to relate to Acts of Worship.  
But to wave these Niceties, as above their reach, who cannot of themselves discern palpable Contradictions, and wherein Sir Robert, under pretence of Friendship, serves them as Joab did Abner. I shall take from his thoughts their artificial Dress, and lay them open in their naked Deformity, that every rational, at least honest Man and good Subject, may start from them; the Devil cannot be so far transformed into the shape of an Angel of Light, but that his cloven Foot must appear.  
Sure I am, that he undermines the Right of all present Kings or Families, and makes the Right of Succession as doubtful as the Event of War, admitting none but Rebels within the possibility of Usurping; and thereby yielding that any Foreign Prince may lawfully dispossess one in the Throne, or interrupt the Succession: And if any Subject can prosper in his Rebellion, though the lawful Prince or Heir be alive; and He that takes upon him the Power of a Superior, sins sufficiently, and to purpose. Yet God's Providence having dispossessed the former, 

Anarchy, p. 273.  
Many times, by the Act of an Usurper himself, or of those that set him up, the True Heir of the Crown is dispossessed, God using the Ministry of the wickedest Men, for the removing and setting up of Kings; in such Cases the Subjects Obedience to the Fatherly Power must go along with, and wait upon God's Providence, who only hath a Right to give and take away Kingdoms, and to adopt the Subjects into the Obedience of another Fatherly Power.   and declared in favour of the Usurper, the People (if we believe him) are adopted into the Obedience of another Fatherly Power, and not having Right to cast off this Father, raised up by God himself, who only hath Right to give and take away Kingdoms; By his Doctrine, 
It was written Tempore Car. 2.  all the Endeavours towards his Majesty's Restoration, are condemned, for that 'twas against the Title made by the Almighty, and any voluntary Act of the People being vain, not obliging them any longer than they please, as all the Force came from their own Wills; Besides, no Act of the People having any binding or moral Effect, since they are to be merely Passive, they being always and unalterably as to Humane Causes, under the Power of the Natural Fathers;  
By these Principles the Usurping Powers would still have lawful Authority; But to be sure, 
For in Grants and Gifts that have their Original from God or Nature, as the Power of the Father hath, no inferior Power of Man can limit nor make any Law of Prescription against them. Ibid.  according to him, any Prince had equal Right with the Ejected Monarch, to try for the Kingdom: For though Sir Robert in his Preface to his Observations on Mr. Hobbs, asks the Question, 
Power of Kings, F. 1.  How a Subject by Covenant can get a Right of Sovereignty by Conquest, when neither he himself hath Right to Conquer, or Subjects a Liberty to Submit? Yet he has not one Objection against the Lawfulness of a Foreign Prince's conquering at any Time, or with any Circumstances; which shows that his Definition of Usurpation was intended to take in all unlawful usurpings of Power, without which 'tis very lame. But thus it runs:  
Usurpation is the resisting and taking away the Power from him, 
Directions for Obedience to Governors. p. 75. Last Ed. p. 165.  who hath such a former Right to govern the Usurper, as cannot lawfully be taken away; so that it cannot be just for an Usurper to take advantage of his own unlawful Acts, or create himself a Title by continuation of his own Injustice, which aggravates, and never extenuates his Crime; and if it never can be an Act indifferent for the Usurper himself to disobey his Lawful Sovereign, much less can it be indifferent for him to command another to do that, to which he hath no Right himself.  
So that Usurpation is the unjust taking away, or dispossessing another of Power, and for it to be unjust, it must be the Act of a Subject against a Lawful Prince, wherefore none but a Rebel can usurp; this Man, by continuance of his Injustice, can never gain a Title. Yet in another place, in express terms, he contradicts himself, 
Directions for Obed. p. 155. last Ed.  and affirms, that he may, and does not so much as take in Prescription in a Man and his Heirs against the Party dispossessed, and his Heirs to strengthen it; and indeed that could not well be urged by him, because that, 
Directions for Obedience, p. 70. last Ed. p. 158.  he tells us, comes in by positive Humane Laws, which can signify nothing against any Grants or Gifts which have their Original from God or Nature, as the Power of Kings and Fathers has.  
But let's take his words and see whether any thing can be a more direct Contradiction.  

Anarchy, p. 275. last Ed. p. 253.  Many times by the Act of an Usurper himself, or of those that set him up, the true Heir of the Crown is dispossessed, God using the Ministry of the wickedest Men for the removing and setting up of Kings: in such Cases the Subjects Obedience to the Fatherly Power must go along and wait upon God's Providence, who only hath right to give and take away Kingdoms, and thereby to adopt Subjects into the Obedience of another Fatherly Power.  
So that he makes a Government by wrongful Election, or Conquest, still to be the Fatherly Government, and such as the People are bound to obey; for he puts the case of the Usurpers being set up by others, as well as his own Act. But the poor Prince it seems, has in neither Case right to the People's Obedience; and he avows the Conclusion which he condemns upon Mr. Hobbs his grounds, 
Preface to Obs. on Hobbs his Leviathan.  (viz.) The Rights of Sovereignty may be forfeited; for the Subject cannot be at liberty to submit to a Conqueror, unless his former Subjection be forfeited for want of Protection. But he tells us, the Subject is at liberty when the true Heir is dispossessed. Ergo.  
But he has a very fine Notion to evade the Consequence of Forfeiture, and yet justify the People's Obedience to the Usurper.  

Direct. for Obed. to Government, p. 72.  If a Superior cannot protect, it is his part to desire to be able to do it; which he cannot do in the future, if in the present they be destroyed for want of Government: therefore it is to be presumed, that the Superior, desires the preservation of them that should be subject to him, and so likewise it may be presumed, that the Usurper in general doth the Will of his Superior, by preserving the People by Government. And it is not improper to say, that in obeying an Usurper, we may obey primarily the true Superior, so long as our Obedience aims at the Preservation of those in subjection, and not at the Destruction of the true Governor.  
With this pious Intention, and mental Reservation, we may, it seems, obey an Usurper, though the Prince have not forfeited his Right. And yet he says, The Subject cannot be at liberty to submit to a Conqueror, unless his former Subjection be forfeited for want of Protection. If by a Conqueror he means a Foreign Prince, as by Usurper he means a Subject, the Argument is much stronger, that an Usurper ought not to be obeyed; whereas he says, he ought, which cannot be, unless the former Subjection be forfeited: the first Usurper, he tells us, has the best Title, being in possession by the permission of God. But if he be dispossessed, the second, or last, has a better than what continues with the first, or his Heirs, if the People are adopted into another fatherly Power. Yet, according to this substratum, there can be no Title but what comes in a more natural way from Fatherhood; 
Pref. to Observe. on Arist.  for Adam being commanded to multiply and people the Earth, and to subdue it, and having dominion given him over all Creatures, was thereby Monarch of the whole World, none of his Posterity had any right to possess any thing but by his Grant or Permission, or by Succession from him. The Earth, saith the Psalmist, hath he given to the Children of Men. Which shows most plainly to one of sublimated reason, that the Title comes from Fatherhood. For it could not have been given to the Children diffusively, unless they had a Father; for if there had been no Father, there could be no Child.  
I must confess I know no Man who has a better faculty of arguing against himself; I thought he was for the Absolute Power of every King within his own Dominion, that is his drift if he be steady to any Design but Confusion; yet he directly opposes it, and is only for one King over all, and therefore he says, When we find, 
Patriarcha, p. 17.  that in the time of Abraham, which was about 300 Years after the Flood, in a little Corner of Asia, five Kings at once met in Battle, most of which were but Kings of Cities apiece, etc. We must conclude, that these were but some petty Lords under One great King.  
For since Nature hath not distinguished the habitable World into Kingdoms, 
Anarchy, p. 268  nor determined what part of a People shall belong to one Kingdom, and what to another, it follows that the Original Freedom of Mankind being supposed, every Man is at liberty to be of what Kingdom he pleases; and so every petty Company hath a right to make a Kingdom by itself; and not only every City, but every Village, and every Family, nay, and every particular Man, a liberty to choose himself to be his own King if he please; and he were a Madman, that being by Nature free, would choose any Man but himself to be his own Governor. Thus to avoid the having but of one King of the whole World, we shall run into a liberty of having as many Kings as there are Men in the World.  
His Argument, if he makes any, is this. If Mankind were free by Nature, there would be as many Kings as there are Men in the World; but they are not free, Therefore there is but One King of the whole World; nor can it ever be otherwise; 
Anarchy, p. 266  For the Monarchical Power of Adam the Father of all Flesh, was by a general binding Ordinance settled by God, in him and his Posterity, by Right of Fatherhood. Wherefore being settled on the Posterity, it must, according to him, descend to the Eldest; and could not be otherwise disposed of by Adam himself, (so that his Grant or Permission, or another's Conquest, would be invalid. 
Patriarcha, p. 19 ) for such Heirs are not only Lords of their own Children, but also of their Brethren, and all others that were subject to their Fathers; and therefore we find that God told Cain of his brother Abel, His desires shall be subject to thee, and thou shalt rule over him.  
Sir Robert tells us, That all Kings that now are, or ever were, 
Anarchy, p. 273.  are or were, either Fathers of their People, or the Heirs of such Fathers, or Usurpers of the Right of such Fathers. All it seems are with Title, and yet in the very next Lines, he says in effect, That none have Title but one at a time, and that is only the next Heir from Adam, unless Adam can have several Heirs at the same time to his universal Monarchy. Which, since Nature hath not distinguished the habitable World into Kingdoms, is to make several Monarches within the same Community. I would fain know how it can be shown, upon Sir Robert's grounds, that the several Polities in distinct Kingdoms were lawfully erected, since they ought all to be dependent upon One, if he be in the Right: nor can they prescribe to a Division; for there can be no Prescription against the Right of the Universal Heir. If Usurpation acquires a Right, possibly the Great Turk stands fairest for it at this Day; and having gotten so much natural Power, all Princes not equal in Strength, aught to yield him their Crowns upon his Summons.  

Patriar. p. 45.  But this cannot prejudice the Right of the True Heir, though it may hinder him in the use or exercise of his natural Rights, yet thereby no Man loseth the Right itself.  

Anarchy, p. 273  Though this Right be in One over all, yet, says he, it is a Truth undeniable, that there cannot be any multitude of Men whatsoever, either great or small, though gathered together from the several Corners and remotest Regions of the World, but that in the same multitude considered by itself, there is one amongst them that in Nature hath Right to be King of all the rest, as being the next Heir to Adam, and all the others subject unto him.  
That is in effect, If there were but one Multitude in the World, all would be under Adam's Heir, as a natural Head; but there being several, the state of the Question is altered, nay, and that by Divine Right too, for the Scripture says, God hath determined the Bounds of their Habitation, Acts 17.26. But admit Adam's Heir who has Right to be King, resides with any particular multitude, the Right cannot be in him and in another at the same time; and therefore no other Title but that of a natural descent from Adam can be good.  
He intimates as if no King could ever die without such Heir as the People are bound to obey; nor by the same reason could Adam himself, or they that claim in a natural descent from him; and consequently the true Heir to the first Monarch, and no other would have the Right.  

Anarchy, p. 272  Yet he grants, That if a King could die without Heir, the Kingly Power in that case shall escheat to the Supreme Heads and Fathers of Families; 
Patriarc. p. 21.  or, as he explains it in his Patriarcha, Independent Heads, which he makes such as are Heads adopted by Princes; but in effect grants more than any wise Man will contend for, viz, that it escheats to every Man within the Kingdom, Freeman and Servants; for that, by his Principles of Confusion, Nobility, or adopted Headship, depends upon the Grace of the Prince, having no Foundation in Nature; and that Grace with all its Effects, determines at the Death of the Prince; 
Freeholders' Grand Inq. p. 39 Vid. Inf. F. 15.  nay, and all former Laws too are void, till confirmed by the next Successor. Wherefore Property, and all Distinctions not settled by God, or Nature, dissolve, and then all Men are equal as to Distinctions brought in by Humane Laws.  
This I suppose is to make way for the natural Headship of Fathers in a strict sense, and that he takes away too, and places it in the Nobility; and the Nobility expiring, what becomes of it? Why, 'tis in nubibus, in Abeyance, till they, who have no Right to do any Act of Power, part with the escheated Power by free Choice, or yielding to a Conqueror: speaking of the Case, that the knowledge of that One in the World, who is next Heir to Adam, be lost,  

Patriarc. p. 21.  This Ignorance of the People, says he, being admitted, it doth not by any means follow that for want of Heirs, the Supreme Power is devolved to the Multitude, and that they have Power to Rule, and choose what Rulers they please. No, the Kingly Power escheats in such Cases to the Princes, and independent Heads of Families, and every Kingdom is resolved into those Parts whereof it at first was made, by the uniting of great Families, or petit Kingdoms, as we find the Great Monarchies were at first erected, and into such again as into the first Matter many times they return. And because the dependency of Ancient Families is oft obscure, or worn out of knowledge; therefore the Wisdom of all, or most Princes, hath thought fit to adopt many times those for Heads of Families, and Princes of Provinces, whose Merits, Abilities, or Fortunes have enabled them, or made fit or capable of such Regal Favours. All such prime Heads and Fathers, have Power to consent in the uniting or transferring their Fatherly Right of Sovereign Authority on whom they please.  
'Tis to be observed, that our worthy Knight never takes care for more than serving the present Occasions; where he comes to show, that the House of Lords are not born Counsellors, nor can claim to be so, ex debito Justitiae, having no Right in Nature, 
Vid. sup. F. 14.  nor any Superiority but what depends on the Grace of the Prince; and that, as his last Essay explains it, of the immediate Prince. It was necessary to claw the Commons, as standing fair for the Pretence of being natural Counsellors, if they can make out their Representation of the People to be full and complete. But here when he talks of Independent or Supreme Heads, these were too big Epithets for Commoners, and therefore these must be Lords. Not considering that he makes them in another place cease to be so, till their Dignity be revived, which cannot be by themselves; 
Power of Kings, p. 1.  but it must be ratified by the express Consent, or at least by Sufferance of the Prince following who had knowledge thereof. The Reason of which he has given in another place, 
Observe. touching Forms of Government, p. 149. Last Ed.  for every Law must always have some present known Person in being, whose Will it must be to make it a Law for the present.  
If the Independent Heads, or Nobles, are, instead of One Prince, to make choice of an Head, which is a Law to that end; then a Law may flow from the Will of many, as well as from that of One.  
But take Sir Robert's Notion of Supreme or Independent Heads and Fathers, in the most sensible meaning, that is, of Natural Fathers; these, where there is no division into Tribes, as was amongst the Jews, will be numerous. Yet all, in the Case presupposed, are allowed by Sir Robert, to be invested with Kingly Power; and therefore the parting with it must be by their choice, as he himself yields; and yet, according to his Principles, they can never so part with it, but they may resume it.  
I must confess in this, he doubly contradicts himself; for the End of his Writings being to prove, that the Government ought always to be in One absolutely, here he yields it to be in many. And when before he said, That Civil Power, not only in general, 
Patriarc. p. 12.  is by Divine Constitution, but even the Assignment of it specifically to the Eldest Parent; here he acknowledges it to be in several Parents, not in the Eldest only.  
But that every such Parent as was at any time vested with this Power, may resume it, is the plain Inference from his Doctrine; for he tells us, 
Patriar. p. 54.  That although a King do frame all his Actions to be according to the Laws, yet he is not bound thereto, but at his good Will, and for good Example; 
Those Laws which are the best or only means for the preservation of the Common-weal, bind Princes.  Or so far forth as the general Law of the Safety of the Common-weal doth naturally bind him; for in such sort only, positive Laws may be said to bind the King, not by being positive, but as they are naturally the best or only Means for the preservation of the Common-weal.  
Here still he opposes himself, for he yields that Princes are bound to those Laws, which are the best or only means for the preservation of the Common-weal; and so asserts that exploded Sentence, I will not call it Maxim, 
Freeholders' Grand Inq. p. 39 Anarchy, p. 265 No Laws whatsoever bind Princes.  Salus Populi suprema Lex: when at other times he tells us, That 'twas God's Ordinance that Supremacy should be unlimited in Adam, and as large as all the Acts of his Will; and as in him, so in all others that have Supreme Power. That is, as by Supreme Power he means absolute, every one that has Absolute Power, aught to have Absolute Power. But the Consequence from Adam's having had such Power, is, That the Right Heir from Adam, in the natural course, aught to inherit it: But as he supposes several at the same time to be Heirs, or to come into the stead of Adam's right Heir, upon the Escheat of the Kingly Power, these being so many Kings, or at least making one King, (where however the Power is in many) though they parted with their Power, they might at any time resume it, when they thought it for the Good of the Public; of which they, as Princes, should be Judges, nay, and their Heirs in Succession might. 
Filmer's Power of Kings, F. 2.  And so Sir Robert's Maxim resteth, That the Prince is not subject to his Laws, nor the Laws of his Predecessors, but well to his own just and reasonable Conventions. 
Patriarc. p. 97.  Nay, though they should swear to observe all the Laws of their Kingdoms, yet no Man can think it Reason, that Kings should be more bound by their voluntary Oaths, than common Persons are by theirs.  
I see not how upon his Principles, an Answer can be given to his Question.  

Patriarc. p. 23.  If Obedience to Parents be immediately due by a natural Law, and Subjection to Princes but by mediation of an Humane Ordinance, what Reason is there that the Laws of Nature should give place to the Laws of Men, as we see the Power of the Father over his Child, giveth place, and is subordinate, to the Power of the Magistrate?  
He affords no other Title to Princes, than what Fathers have to be Princes, each in his own Family; nay, he himself owns that the Kingly Power may escheat to all the Independent Fathers, and that they may transfer it over to One. Now that 'tis in this One, not still in all, or in some other, must be of Humane Ordinance. Upon which Grounds the answer to his Question is obvious; which is, that the Subjection due by Nature from Children to their Parents, is not defeated by the Kingly Power's being in One; and therefore the Power of the Father over his Child, does not give place to the Power of the Magistrate. If it did, this their natural Right the Parents may resume, when 'tis for the Good of their respective Families, or thought so by them, and indeed of one great Family, they might resolve the Community into as many separate Governments, as there are Families, or Patres Familiâs, at their Pleasures, without any moral Obligation to the contrary. If the Power whereby a Nation is governed, were not wholly distinct from that whereby a private Family is; and if both came by Nature, since the true descent in Nature cannot now be made out, for every Family to make a Kingdom by its self, must be most natural, and the only lawful Government, unless Choice, that is, Humane Ordinance, may warrantably cement them into one Government. And this is very evident in the Case of Escheat, and of any Translation of Kingly Power from Natural Fathers: For the Kingly Power is in the Fathers before the transferring it over, quatenus Fathers, or it is not. If it be in them, quatenus Fathers, then, according to Sir Robert, they may resume whatever is essential to the Sovereignty of Fathers, being it was once lawfully vested in them, at least they have a great deal of Latitude for their Claim, because, 
Power of Kings▪ Fol. 2. Patriarcha, p. 97.  For the same Causes that a private Man may be relieved from his unjust and unreasonable Promise, as for that it was so grievous; or for that he was, by Deceit or Fraud, circumvented, or induced thereunto by Error or Force, or just Fear, or by some great Hurt; even for the same Causes, the Prince or Princes may be restored in that which toucheth the diminishing of his or their Majesty.  
It seems he grants that the Power once lawfully vested in any, cannot be parted with but upon choice wholly free, ex mero motu, & voluntate spontaneâ. Yet being there was no Obligation upon them from God, or Nature, to devolve their Power upon one rather than another, but purely what proceeded from their own wills, this if he argues rightly, they might resume when they list, at least when they all agreed to the Act of Resumption; For says he, 
Power of Kings▪ Fol. 1.  impossible it is in Nature, for to give a Law unto themselves, no more than it is to command a Man's self in a Matter depending of his own Will, there can be no Obligation which taketh state from the mere Will of him that promiseth the same.  
And thus there can be no lasting Obligation at all; for he tells us, in effect, that if there be any Circumstance which makes it not wholly spontaneous, 'tis voidable.  
But if this Power was not vested in them as Fathers, than it comes not to him who has the Kingly Power as a Fatherly Power, but merely as Kingly, contradistinct from, and superior to the Fatherly.  
But how can the Supreme Fathers, Nobles, or Freeholders' transfer their Power? According to Sir R. F. it cannot be done in Nature, except every One, not the major part only, consent.  
As to the Acts of the major part of a Multitude, it is true, says he, 
Patr. p. 44.  that by politic humane Constitutions it is oft ordained, that the Voices of the most shall overrule the rest; and such Ordinances bind, because where Men are assembled by an Humane Power, that Power that doth assemble them, can also limit and direct the manner of the execution of that Power, and by such derivative Power made known by Law, or Custom, either the greater Part, or two Thirds, or three parts of Five, or the like, have Power to oversway the Liberty of their Opposites. But in Assemblies that take their Authority from the Law of Nature, it cannot be so; for what Freedom or Liberty is due to any Man by the Law of Nature, no inferior Power can alter, limit, or diminish. 
The major part cannot in nature bind the rest.  No one Man, or a Multitude, can give away the natural Right of another. The Law of Nature is unchangeable, and howsoever one Man may hinder another in the use or exercise of his natural Right, yet thereby no Man loseth the Right its self. For the Right, and the use of the Right, may be distinguished; as Right, and Possession are oft distinct. Therefore unless it can be proved, by the Law of Nature, that the Major, or some other part, have Power to overrule the rest of the Multitude; It must follow that the Acts of Multitudes not entire, are not binding to all, but only to such as consent unto them.  
Hereby it appears, that it being taken for granted, that the major part, have not by the Law of Nature, Power to overrule the rest, it must follow, that where Power is vested in several as Independent Fathers, this can never be parted with without the joint Consent of every such Father. But they must always be in Mr. Hobbs his State of War, till all the Dissenters are reduced. And when ever they have natural Power, that is, strength enough, they may try for it again, there being no moral Obligation to the contrary. For, what ever terms they submitted to by Deceit, Fraud, Error, Force, just Fear, or some great hurt; If they diminish that Majesty which was once in them, they may vacate the Conditions at pleasure. And what then becomes of all Title by Conquest?  
To show wherein Sir R. has deceived himself and others, would be superfluous to the judiciously Learned, and thrown away upon them that are not so. But I conceive that the meanest Capacity may by this be satisfied, that he is guilty of many Absurdities, and ill Assertions. I must needs say, by those strong Strokes which in many places occur, I conclude that he was far from being deceived himself; for he was Master of more Reason; but possibly he practised upon the vulgar Understandings, to try how easily he could make them swallow Contradictions. If it was not with this End, I am sure it was with a worse, to loosen the Bonds of Government, and make way for real Anarchy; since he attempts to weaken all other Foundations of it but his own, and yet takes away even that too. I may reasonably hope, that for the future, no Man will justify him, unless he first show his Principles to be consistent with themselves, and with the right of our present Monarches, few of which will insist upon being natural Fathers of their People, or Heirs of such Fathers, or Usurpers of the Right of such Fathers, and Sir Robert acquaints us with no other Title.  
The natural intendment, at least the consequence of all his Writings, is, when rightly considered, to encourage Rebellion, and dethrone Lawful Kings, upon pretence of natural Right, and a supposititious Patriarchal Power; to degrade the Ecclesiastical and Temporal Peers, and herd them amongst the Commons, upon the Supposition, 
Freeholders' Grand-Inquest, p. 38.  that the Power of the House of Commons may be founded on the Principles of Nature: But that the House of Peers do not, nor cannot make any such pretence, since, as he says, there is no reason in Nature, why amongst a company of Men who are all equal, some few should be plucked out to be exalted above their Fellows, and have Power to govern those who by Nature are their Companions. The difference between a Peer and a Commoner is not by Nature, but by the Grace of the Prince.  
And this Grace giving no Right, but during the Life of that Prince, upon his Death all Arch-Bishops, Bishops, Earls, Barons, dignifyed Clergy, and others, lose their Honours, Preferments, and whatsoever they derived from the Grace of that Prince, or of his Progenitors, all falls into Anarchy and Confusion, and all are equal in Dignity; nor have they any Power to alter that equality, unless every individual Plebeian (for so they all become now) freely consent.  
For, as he teaches, the Laws, Ordinances, Letters Patents, 
Power of Kings p. 1.  Privileges and Grants of Princes have no force but during their Life, if they be not ratified by the express Consent, or at least by the Sufferance of the Prince following, who had knowledge thereof.  
If this be good Doctrine, all those Lands and Possessions which the Piety and Devotion of former Princes dedicated to the Church, are in a very unsettled condition. For that, any succeeding Prince may, without Injustice take them back, they being as much in him, as they were in any of his Progenitors, before they were granted out. The Consequence of this, methinks, should alarm a Party best able, if they list to expose him. However, I hope the abhorrence of such Principles, so contrary to the Glory of the Prince, and Honour of his Peers, not to mention the Rights of Inferior Subjects, 
This done since by the Author of the two Treatises above cited, and by the Author of Patriarcha non Monarcha.  will draw on them a public Censure; at least that some Man of Learning, whose Name may give Authority to the Truths he patronizes, will more fully convince the unbelieving World of the Danger to the Government from such Goliahs defying the Armies of our Israel. This Champion, like that of the Philistines, I conceive I have laid prostrate with a Pebble-stone, a slight Weapon from a weak Hand, and cut off the Head of his Argument with his own Sword.  
In his Patriarcha he professes that he is not to question or quarrel at the Rights or Liberties of this or any other Nation; his Task, he says, 
Patriarc. p. 6.  is chief, to inquire from whom these first came, not to dispute what or how many these are: But besides his other Contradictions, it may well be doubted whether in this he is reconcilable with himself in other places, or with the Foundation of all his Discourses, which lies thus.  
It was God's Ordinance that Supremacy should be unlimited in Adam; 
Anarc. p. 245.  and as large as all the Acts of his Will; and as in him, so in all others that have Supreme Power, in whatsoever manner they enjoy it. Or take it in other words, most of them his own.  
Adam was the Father, King and Lord over his Family, a Son, 
Preface to Obs. touching Forms of Government.  a Subject, and a Servant or Slave, were one and the same thing at first.  
But all Monarches, one way or other, succeed to Adam's Power; therefore a Monarch, Son, Subject, and Servant, or Slave, are, as to Right, one and the same thing now. And then, what Rights or Liberties are there in this, or any Nation, distinct from what he supposes to be inherent in the Person of one?  
But that I may be sure to please at the end, 
Anarc. p. 293.  I shall conclude with Sir R's own words; Thus have I picked out the Flowers out of his Doctrine about Monarchy, and presented them with some brief Annotations: It were a tedious work to collect all the learned Contradictions, and ambiguous Expressions that occur, in every Page of his Platonic Monarchy.   

The PROVISIONS at Oxford.  

42 Hen. 3.  

Vid. cap. 6. F. 47. Anales Monast. Burton, F. 411.  FUerunt etiam in eodem Parliamento apud Oxoniam xxiv. electi, videlicet xii. ex parte Domini Regis, & totidem ex parte Communitatis, quorum ordinationibus & provisionibus Dominus Rex & Dominus Edwardus Filius ejus, sicut superius praenotatur, se supposuerunt, super statûs eorundem & totius Regni Angliae correctione, & in melius reformatione. Plura etiam fuerunt ibidem & alibi percussa quae inferius continentur.   

Provisio facta apud Oxoniam.  
Provisum est, quod de quolibet Comitatu eligantur quatuor discreti & legales Milites, qui quolibet die ubi tenetur Comitatus, conveniant ad audiendum omnes querelas de quibuscunque transgressionibus & injuriis, quibuscunque personis illatis per Vicecomites, Ballivos seu quoscumque alios, & ad faciendum tachiamenta quae ad dictas quaerelas pertinent, usque ad primum adventum Capitalis Justiciarii in partes illas. Ita quod sufficientes capiant plegios à conquerente de prosequendo, & similiter ab eo quo queritur veniendo, & juri parendo coram praefato Justiciario in primo adventu suo. Et quod praedicti quatuor Milites irrotulari faciant omnes praedictas querelas cum suis attachiamentis ordinate & serie, scilicet de quolibet hundredo seperatim & per se. Ita quod praefatus Justiciarius in primo adventu suo possit audire, & terminare praefatas quaerelas sigillatim de quolibet hundredo. Et scire faciant Vicecomiti quod venire faciat coram praefato Justiciario in proximo adventu suo ad dies & loco quae eis scire faciat, omnes hundredarios & ballivos suos. Ita quod quilibet hundredarius venire faciat omnes conquerentes & defendentes de balliva sua, successive secundum quod praefatus Justiciarius duxerit de praedicto hundredo placitare. Et tot & tales tam Milites quam alios liberos, & legales homines de Balliva sua per quos rei veritas melius convinci poterit; ita quod omnes simul & semel non vexentur, sed tot veniant quod possunt una die placitari & terminari.  
Idem provisum est quod nullus Miles de praedictis Comitatibus, occasione quietanciae quod non ponatur in Juratis vel assisis per Chartam Domini Regis deferatur, nec quietus sit quoad provisionem istam sic factam pro communi utilitate totius Regni.   

Electi ex parte Domini Regis.  
Dominus Londoniensis Episcopus, Dominus Wintoniensis Electus, Dominus H. Filius Regis Almaniae, Dominus J. Comes Warennae, Dominus Guido de Lysinan, Dominus W. de Valentia, Dominus J. Comes Warewici, Dominus Johannes Mansell, Fr. J. de Derlington. Abbas Westmonasterii, Dominus H. de Wengham.   

Electi ex parte Comitum & Baronum.  
Dominus Wigornensis Episcopus, Dominus Symon Comes Lycestrensis, Dominus Richardus Comes Gloverniae, Dominus Humfridus Comes Heref. Dominus Rogerus Mariscallus, Dominus Rogerus de Mortuo Mari, Dominus J. Filius Galfridi, Dominus Hugo le Bigot, Dominus Richardus de Grace, Dominus W. Bardulf, Dominus P. de Monteforti, Dominus Hugo Dispensarius.  
Et si contigat aliquem istorum necessitate interesse non posse, reliqui istorum eligant quem voluerint, scilicet alium necessarium loco absentis ad istud negotium prosequendum.   

Ceo jura le Commun de Angletere à Oxenford.  
Nus tells & tells fesum à saver à tute gentzes, ke nus avum jure sur saints Evangeles, è sumus tenuz ensemble par tel serment, è premettuns en bonne fei, ke chescun de nus è tuz ensemble nus entre eiderums, è nus è les nos cuntre tute genz, dreit fesante en rens pernant, ke nus ne purrum sanz mef fere, salve la fei le Rei, è de la corune. E premettuns sur meime le serment, ke nus de nus ren ne prendra, de tere, ne de moeble, par que cest serment purra estre desturbe, u en nule ren Empire. E si nul fet en contre ceo, nus le tendrums à Enemi mortel.   

Ceo est le serment à vint è quatre.  
Chescun jura sur saints Euuangeles, ke i'll all honour de Deu, è à la fei le Rei, è all profit de Reaume, ordenera è tretera ovekes les avant dit jurres, sur le refurmement è le amendment del Reaume. E ke ne lerra pur dun, ne pur premesse, pur amur, ne pur hange, ne pur pour de nulli, ne pur gain, ne pur , ke leaument ne face solum lafoy tenur de la lettre ke le Rei ad sur ceo don, et su● fez eusement.  
Ceo jura le haute Justice de Engletere. Il jure ke ben & leaument, a sun poer, fra ceo ke apent a la justicerie de dreiture tenir à tute gentzes, all prou le Rey è del Reaume, solum la purveance feet & a fere par les vint & quatre, & par le cunseil le Rei è les hauz humes de la tere, ke li jurrunt en cestes choses à aider & à maintenir.   

Ceo jure le Chanceler de Englettere.  
Ke il ne enselera nul bref, for'rs bref de curs, sanz le commandement le Rei & de sun Cunseil ke serra present. Ne enselera ren ke seit encontre le ordinement ke est fet & serra à fere par les vint & quatre, u par la greinure party. Ne ke il ne prendra nul loer autrement ke il nèst divise as autres. E lem li bandra un companiun en la furme ke le Cunseil purverra.  
Ceo est le serment ke les Gardens des Chastles firent. Ke il les Chastles le Rei leaument è en bone fei garderunt, all oes le Rei, & de ses heirs. E ke eus les rendrunt al Rei u à ses heirs, & à nul autre, & par sun cunseil, è en nul autre manere; Ceo est a savere par prodes homes de la terre esluz a sun Cunseil, u par la greinture party. E cest furme par escrit dure desk à duze ans. E de elokes en avant per cest establement, & cest serment, ne saint constraint ke franchement ne les pussent rendre all Rei à se heirs.   

Ceo sunt ceus ke sunt jurez del conseil le Rei.  
Archiepiscopus Cantuariensis, Episcopus Wigornensis, Comes Glovernensis, Comes Marescallus, Petrus de Sabaudia, Comes Albermarlie, Comes Warewick, Comes Herefordensis, Johannes Mansel, Johannes filius Galfiridi, Petrus de Monteforti, Richardus de Grace, Rogerus de Mortuo-Mari, Jacobus de Aldithelege.  

Les duze de par le Rei unt eslu des duze de par le commun.  
le Cunte Roger le marshal.  
Hugo de Bigot.   

E lafoy party ver le Commun ad eslu des xii. ke sunt de part le Rei.  
le Cunte de Warewik  
Johannes Mansell.   
E ces quatre vint poer à eslire le cunseil le Rei, & quant il un eslu, il les mustrunt as vint & quatre & la u la greinture party de ses assent, è seit tenu.  
Ces sunt les duze ke sunt eslu par les Baruns a treter a treis' Parlementz par an, oveke le cunseil le Rei, pur tut le commun de la terre de commun bosoine.  

Episcopus Londoniensis,  
Comes Herefordensis,  
Johannes de Bailol,  
Johannes de Grace,  
Rogerus de Sumery,  
Hugo dispensarius,  
Aegidius de Argenten,  
Comes Wintoniensis,  
Philippus Basset,  
Johannes de Verdun,  
Rogerus de Monte alto,  
Thomas de Gresly.    

Ces sunt les vint & quatre ke sunt mis per le Commun à treter de aide le Rei.  

Episcopus Wigornensis,  
Episcopus Londoniensis,  
Episcopus Sarum,  
Comes Leycestrensis,  
Comes Glovernensis,  
Comes Marescallus,  
Petrus de Sabaudia,  
Comes Herefordensis,  
Comes Albemarlie,  
Comes Wintoniensis,  
Comes Oxoniensis,  
Johannis filius Galfridi,  
Johannes de Grace,  
Johannes de Bailol,  
Rogerus de Mortuomari,  
Rogerus de Monte alto,  
Rogerus de Sumery,  
Petrus de Monteforti,  
Thomas de Gresley,  
Fulco de Kerdiston,  
Aegidius de Argenton,  
Johannes Tyriel,  
Philippus Basset,  
Aegidius de Erdinton.   
E si aukun de ces ne ì puss estre u ne voile, à ces kel i ferrunt à peut poer de autre eslire en sun lieu.   

Deal estate de seint Eglise.  
A remembrer fet ke le estat le Seint Eglise seit amend, par les vint & quatre esluz à refurmer le estate del Reaume de Angleterre, kant il verrunt liu, & ten solum le poer ke il en unt par la Letter le Rei de Engletere.   

De la haute Justice.  
Derichef ke Justice seit un u deus, & quell poer il avera, & ke il ne seit for'rs un an. Issi ke all chef del an respoine devant le Rei & sun cunseil, de sun ten, & devant celui ke serra apres lui.   

Deal treasurer, è de le exchequer.  
Autel deal treasurer. Mes ke il rend acunte deal chef del an. E bone gens autres seient mis all Escheker solum le ordenement les avant dit vint & quatre. E lafoy vengent totes les issues de la tere, & en nule part ailurs. E ceo ke lem verra à amender, seit amend.   

Del chancellor.  
Autel deal chancellor. Issi ke all chef del an respoin de sun ten. E ke il ne ensele horse de curs, par la sule volunt del Rei. Mes le face par le Cunseil ke serra entur le Rei.   

Del poer lafoy Justice, & de Bailives.  
La haute Justice à poer de amender les tors fez de tutes autres Justices, & de Ballifs, è de Cuntes, & de Baruns, & de tutes autres gentzes, solum lei & dreit de la tere, è en leus deves. E ke la Justice ne prenge ren, si ne seit present de pain & de vin, è de teles choses, ceo est a saver, viands & beyfres sicum lem ad este acustume à porter as tables de prodes homes à la Jornee. E ceste meime chose seit entendue de tuz les Cunseleirs la Rei, & de tuz ses Ballifs. E que nul Ballif par achesun de plai, u de sun office, ne prenge nul loer par sa main, ne par autre en nule manere. E si il est ateint, ke i'll seit reint, & cil ke done autre si. E si covent ke le Rei done à sa Justice & à sa gent ke le servant, ke il ne eient mester ke il ren prengent de autrui.   

De Vescuntes.  
Les Vescuntes seint purveus per leus gentzes & prodes homes, & tere tenanz. Issi ke en chescun Cunte seit un Vavasur del Cunte memes Vescunte, ke been & lenement treat lafoy gent del Cunte & dreitement. E ke il ne prenge loer, è ke il ne seit Vescunte for'rs un an ensemble. E ke en le an rend ses acuntes all Echeker, è respoine de sun ten. E ke le Rei lui face del soen solum sun afferant, comment il puss garder le Cunte drietement. E ke il ne prenge nul loer, ne li ne ses Ballifs. E si ils saint attaint, saint reintzes.  
A remember fet ke lem met tell amendment à la Gynerie, & as gardens de la Gynerie, ke lem y savue le serement.   

De Eschaeturs.  
Bons Eschaeturs saint mis. E ke il ne prengent rens des bens as morts, de queles teres deivent estre en la main le Rei. Mes ke les Eschaeturs eient franche administration des bens des ke il averunt fet le gre le Rei, si debt lui deivent. E ceo solum la furme de la Chartre de franchise. E ke lem enquerge des tors fez ke Eschaeturs unt fet la en arere, & seit amend de sell & de tel. Ne tailage ne autre chose ne prenge, for'rs si come il devera solum la Charte de franchise.  
La Chartre de franchise de seit garde fermement.   

Del Eschange de Lundres.  
A Remember fet del Eschange de Lundres amender, & de la Cite de Lundres, & de totes les autres Citees le Rei, ke à hunt & à destrucciuns sunt alez par tailages, & autres oppressions.   

De Hospitio Regis & Reginae.  
A Remember fet del hostel le Rei & la Regine amender.   

Des Parlementz quanz serrunt tenuz per an, & comment.  
I'll fet à Remember ke les xxiv. unt ordenne ke treis' Parlemenz saint par an. Le premer as utaves de Sein Michael. Le secund le demain de la Chandelur. Le terz le premer Jor de Jun, Ceo est à saver, treis' semaines devant le saint John. A ces treis' Parlemenz vendrunt les Cunseilers le Rei esluz tut ne seint il pas mandez, pur ver le estate del Reaume, & pur treter les communs besoingnes del Reaume, quant mester Serra, per le mandement le Rei.  
Si fiet a remembrer ke le Commun eslise xii prodes homes ke vendrunt as Parlementz, & autre fez quant mester serra, quant Rei u sun Cunseil les mandera, pur terter de besoingnes le Rei, & deal Reaume. E ke le commun tendra pur estable ce ke ces xii frunt. E ceo sirrah fet pur esparnier le cust del Commun.  
Quinze serrunt nomez par ces quatre, ceo est a saver, per le Cunt le marshal, le Cunte de Warewick, Hugo le Bigot, & John Mansell, ke sunt eslus par les xxiv pur nomer les devant dit quinze, les queus serrunt de Cunseil le Rei. E serrunt cunfermz per les avantdit xxiv, u per le greinture party de else. E averunt poer del Rei conseiler en bone say, deal government del Reaume, & de totes choses qe all Rei u all Reaume pertinent. E pur amender & adreser totes le choses ke ill verrunt ke facent à adreser & amender. E sur le haute Justice, & sur totes autres gentzes. E sil ne poent tuz estre, ceo ke le greinture party fra serra ferm & estable.   

Ces sunt les nuns des Cheveteins Chasteans le Rei, & de ceus ke les unt en garde.  

Robertus de Nevil, Bamburg, Novum Castrum super Tyne.  
Gilbertus' de Gant, Scardeburg,  
Willielmus Bardulf, Nottingham,  
Radulfus Basset de Sapercote, Norhampton,  
Hugo Bigot, Turris Londoniarum,  
Richardus de Grey, Doveria,  
Nicholaus de Monles, Roucestria & Cantuaria, Wintonia,  
Rogerus de Stamford, Porcestria,  
Stephanus Long Espee, Corf,  
Mattheus de Besill, Gloucestria,  
Henricus de Tracy, Exonia,  
Richardus de Rochele, Haldesham.  
Johannes de Grace, Herefordia,  
Robertus Walrant, Sarum,  
Hugo dispensarius, Horestan,  
Petrus de Monteforti, Brugewater,  
Comes Warewik, Divises,  
Johannes filius Bernardi, Oxonia.    

N. III. Vid. CAP. 6. F. 56.  
ILLO tempore voce praeconariâ proclamatum fuit per Angliam, 
Mat. West. F. 430. An. 1297.  ut possessores Lanarum exponerent ipsas venditioni infra mensem, in civet. assig. alioqui tanquam forisfactura cederent ipsi Regi. Quae quidem in die Sancti Greg. quasi modo praelocuto callidè congregatae, pro forisfactura Regis in Flandriam sunt transvectae. His & aliis extorsionibus turbati Comites & Barones Angliae Parliamentum suum per se in Forestâ de Wyre quae est in Marchiâ statuerunt, etc.  
Tenes locum Thes. & Baron. de Scaccario miserunt Domino Regi quasdam litteras dicti Scaccii in hec verba Sire! 
Memd. in Scio. 25 ●. 1. F. 39 Printed with the Year Book of E. 2.  que cest joel prochein devant le fest de saint Bartholomew, à hours de 3 nt, vienner à vostre Eschequer à la bar le Conte Marshal & le Conte de Hereford, etc. & plusours' autres Baneres & Bachelors, & le Count de Hereford, dit que il fuit charge à dire de per le Conte de Mareschal & les auters, que illonque fuer. & per toutle Cominalte du Royalme, auxibien Clers, come Lais, que de deux choses se sentierent eux e le Commonaute greéves, lau d'ascun greévantes dont il aveyent fait monstrer les Articles à vous, coma lour Liege Snr. Et l'auter que il entendirent que fuit fait per nous del' Exchequer sans vestre sen, come endroit del utyme lever, & des leins prender, & diont q'en les breves que sont issues per lev. le utyme est contean que Countess, Barons, Chivaliers & la Commonaute del dit Royalme unt grant le utyme, Si come eux & lour Ancestors on't fait ce à en arrier, la ou le dit utyme per eauz ne per la dite unques ne fuit grant: & dit ouster, que nul chose ne niet plum tot home enservage que rechat de Sans è estre taille a volunt: & que si le utyme fueust issi levee, ce turnereit à disherison de eaux, è de lour Heirs, Et dit apertment à touts les autres apres, que tiel taillage, & pris de leynes ne fuer my sufferables, ne suffreint en nul manere. Et nous preerent, que cestes choses seissons redresser à tant, seu partirent sans nul respons attender. Et pur ce sire! nous voiles mander vestre volount si vous plest sur ce chose, etc. Ista litera missa fuit per Rob. Divelyn Hostiar de scio ad praed. horam nonam.  
Postea Dominus Rex Rescripsit voluntatem suam, etc. Nous avoins entender, comment les 2 Countees viender à Exchequer ove lour company, etles choses auxi que ils ont dit, etc. quant à ce que il ne suffreint en nul manere de lever le utime, ne de fair la prise: Nous voil' que vous ne laisses my pur ce que vous n'alles avant ataxer; mes per ce que il diseyent, que la leve turner in disheritance, etc. faits scaver & tries per my les Contes en la taxation d'utimes se doit fair, que si y ad nul que deubter de tiel prejudice ou disherison, que le Roy le quitter per ses Letters coverts, que la taxation, ne la leve, ne poit turner en servage de nuly, ne esse tret en usage en temps avenir. Mes que le Rey se puisse eyder o'er pur son grant busoin, que est si hastif. pur la Salvation de luy è d'eux mesmes, & de tut le Reaume, & pur allegier l'un des eaux mischeifs duont il unt este charges ja grant piety. Et voit que Chanchellor fra Letters, etc. Pur ceux que doubta, etc. Et quant à la prise de leynes, voloit que l'Ordinans que ent se faint se teigne, è dit soit pur tut, auxi pur vous, come pur ceux que se intromitterent, que le Roy ne voit rien prender mes per achat, fesant gree. Et que en aves altar foits à demand avisement sur cest besoin, ou auter que soit hastif vous escries savoir à nostre fitz & a son Counsel que aura pres luy, & eux mitter ont tien Counsel come ils verront. 
Bundle Brev. de Priu. Sigillo in Turri Lond. An. 25. E. 1. & Pat. 26. E. 1.  Done a Winchelsey sous nostre Privy Seal.  
Come le Roy avant son passage verse Flandre, eust volunte è desire de fair redresser & amender les Grievances faits à son People, en noun de luy e sur ceo envoiast ses Letters par tutez les Contes d'Engleterre, pur cest choose metre en effect: ordine est par luy è par son Counseil, que en Chescun Conte soient assignez quatre, cest savoir deus Chevalers, des queux le un serra mis par luy, è lautre serra pris du Conte, un Clerk, un home de Religion, que seint bons, è leaux è bien avises pur enquirer de touts manners de grievances, come des choses prizes horse de saint Esglise, des prises de Leynes, Peaus, Quirs, Bless, Bestes, Charz, Pissons, è de totes autres maneres de choses par mi le Royalme, de Clers, & de Lay, puis la Guerre comotie entre le Roy de France è lui: fust ce pur Garde de la Mer, ou en autre manere. Enquiront mesms ceaus per qui, è as queuz, è de quoie, è de combien, è de value, è comment, è en quen manere ices prizes, è grievances fuerent faites au pueple. E ceus asignes eient plein power, de enquirer, oir, & terminer, aufis bien par office, come à fuit de party. E quant la verite de ces choses serra ateinte, le quel que ces seit par garant, ou sans garant, ce que serra pris sans garant seit return à ceus que le damage ont receu, si le tortz fesantz eient de quoi, è outre ceo puni pur le trespass. Et sil nient de quoi, ceaus as queaus les garantz è commissions sont venus, come Viscontes, Clerks assigns, bailifs, & autres tiels maneres de Ministers, respoignent pur lour sourmis que averent fait tells prizes. E que de ce que serra trove pris par garant, le Roy serra certifiez, e en fra tant que il se tendront apaiz par reason.   

N. IU. Vid. CAP. 7. F. 65.  
QUID loquar de Odone Baiocasino Praesule, 
Ordericus Vitalis. F. 522.  qui CONSUL PALATINUS erat, & ubique cunctis Angliae habitatoribus formidabilis erat, ac veluti secundus Rex passim jura dabat: Principatum super omnes Comites & Regni Optimates habuit, & cum Thesauris Antiquorum Cantiam possedit, in quâ Jamdudum Edelbertus Irminrici Filius, Eadbald, & Ercombertus, & Egbert, atque Lotheris Frater ejus regnaverunt.  
Odo, ut supra dictum, est Palatinus Cantiae Consul erat, 
Ibid. F. 666.  & plures sub se Comites, virosque potentes habebat.  
Sigibert calls him in one place, 
Sigeberti Monachi Gemblatensis Chronicon.  Justiciarus & Princeps totius Angliae: In another, he shows that Odo had been here in the Confessor's Time; and it is not improbable that he was made Earl of Kent by the Confessor, Earl Godwin and his Sons being forced to yield up the Services of their Knights to the King, 
Malmsbury, F. 56. Servitium Militum per Angliam Bromton, An. 1052. F. 944.  after which they were banished. But returning again, they came to Terms with the King; one of which was, That the Normans should be banished. Sigebert speaking of the Reign of the Confessor, says,  
Et Odonem CONSULEM & omnes Francos Godwinus & Filii sui arte sua ab Angliâ exulaverunt.   

N. V Vid. CAP. 7. F. 66.  
WHereas Records of the Tower show the Chamberlain's Office to belong to the Barony of the Earl of Oxford; it seems it was so anciently, that at the Coronation of Richard the Second, the Counsel of Robert de Vere advised him to lay his Claim to it in Prescription. Accordingly in his Claim before the High Steward, he says,  
Sesse Ancestors ont estre Chamberlains des Nobles Progenitors nostre dict Snr' Roy puis temps de memory. 
Sir John Cotton 's Library, formerly Sir Roberts Tit. Tiberius, N. 8.   
This may seem to be an ill laying of Prescription, as within time of memory; but it is to be observed, that in those early days, by Puis they meant from the beginning of time of Prescription.  

8 E. 2. ed per Dominum Maynard. F. 271.  Accordingly in the Year-Book of E. 2. I find it pleaded;  
Nous avoiens este seize PUIS TEMPS de memory continuelment, & vous ne poits my prendre issue sur la charter fait avant temps de memory, come puis, & demandons judgement.   

N. VI Vid. sup. CAP. 7. F. 69.  

Part of the Modus tenendi Parl.  CUM Dubitatio, vel Casus difficilis, pacis vel guerre, emergat in Regno, vel extra, referatur & excutetur casus ille in scriptis, in pleno Parliamento & tractetur, & disputetur ibidem, inter pares Parliamenti. Et si necesse sit injungatur per Regem, seu ex parte Regis si Rex non intersit, cuilibet graduum Parium, quod quilibet gradus sedeat per se, & liberetur Casus ille Clerico suo in scriptis, & in dicto loco recitari faciant coram eis Casum illum, ita quod ipsi considerent inter se, qualiter melius & justius procedi poterit in Casu illo, sicut ipsi, pro persona Regis, & eorum propriis personis, & etiam propriis personis ipsorum quorum personas ipsi representant, velint coram Deo respondere: & suas responsiones & avifamenta reportent in Scriptis, ut omnibus eorum responsionibus, consiliis, & avisamentis, hinc inde auditis, secundum melius & salubrius consilium procedatur; Et ubi saltem major pars Parliamenti concordat. At si per discordiam, inter Regem, & alios Magnates, vel forte inter ipsos Magnates, pax Regni infirmetur, vel populus, vel patria, ita quod videtur Regi, & ejus consilio, quod expediens sit quod negotium illud tractetur, & emendetur, per considerationem omnium parium Regni sui, vel si per guerram Rex & Regnum turbulentur, vel si Casus difficilis coram Cancellario Angliae emergat, seu judicium difficile coram Justiciariis fuerit reddendum, & hujusmodi, & si forte in hujusmodi deliberationibus omnes, vel saltem major pars concordare non valeant, tunc Comes Senescallus, Comes Constabularius, & Comes Marescallus, vel duo illorum eligent viginti & quinque personas de omnibus paribus Regni, scilicet duos Episcopos, & tres Procuratores pro Clero, duos Comites, & tres Barones, quinque Milites Comitatuum, quinque Cives, & quinque Burgenses, qui faciunt viginti quinque: Et illi viginti quinque possunt eligere ex seipsis duodecim, & condescendere in eis, & ipsi duodecim sex, & condescendere in eis, & ipsi sex ad tres, & condescendere in eis, & illi tres in paucioribus se condescendere non possunt, nisi optentâ licentiâ à Domino Rege. Et si Rex consenceat ipsis tres possunt in duos, & de illis duobus aliter poterit in alium descendere. Et ita demum stabit sua ordinatio super totum Parliamentum, & ita condescendendo à viginti quinque personis usque unam solam personam, nisi numerus major concordare valeat, & ordinare; tandem una persona, ut est dictum, pro omnibus ordinabit, quòd cum seipsâ discordare non potest. Salvo Domino Regi & ejus Consilio, quod ipsi hujusmodi ordinationes postquam Scriptae fuerint examinare & emendare valeant, si hoc facere sciant, & velint: Ita quod hoc faciant ibidem, tunc, in pleno Parliamento, & de consensu Parliamenti & non retro Parliamentum.   

N. VII. Vid. CAP. 7. F. 70.  
SEneschallia Angliae pertinet ad Comitem Leicester. & pertinet ab Antiquo. Et sciendum est, 
Sir John Cotton 's Library, Tit. Tiberius. n. 8, De Officio Seneschalliae.  quod ejus officium est supervidere & regulare sub Rege, & immediate post Regem totum Regnum Angliae, & omnes ministros legum infra idem Regnum, temporibus pacis, & guerrae, etc. Item officium Seneschalliae est, quod si Rex habeat malos Consiliarios circa eum, qui sibi dant Consilia ad faciend. talia quae sunt apta & prona ad dedecus suum, aut exhaeredationem suam, & ad publicum malum, & destructionem populi sui, tunc Seneschallus Angliae assumpto secum Constabulario, & aliis Magnatibus, & aliis de Communitate Regni Angliae, mittent ad hujusmodi Consiliarium Regis, quod ipsum Regem ita ducere & consulere, & desistat de hujusmodi malis consiliis prius Regi factis mentionem faciend. Quod ab eo & ejus presentiâ recedat, & moram cum eo, quod dedecus suum & damnum publicum ut predictum est, non faciat. Quod si vero faciat, tum mittent ad Regem, quod ipsum ab eo amoveri faciat, & ejus consilium non audiat, pro eo quod à toto populo malus Consiliarius inter Regem & suum Populum praesumitur. Quod si Rex non fecerit, aliâs & pluries mittent tam Regi, quam ei. Quod si demum non Rex nec hujusmodi Consiliarius de hujusmodi missionibus, & supplicationibus advertat, sed ea potius facere neglexerit; tum, pro bono publico licebit Seneschallo & Constabulario Angliae, Magnatibus, & aliis de Communitate Regni, capere, & corpus ejus salvum custodire, usque ad proximum Parliamentum, & seisire res, redditus, & omnes possessiones suas, donec judicium suum attenderit, & subierit, per considerationem istius rni in Parliamento.   

N. VIII. Vid. CAP. 7. F. 72.  
JOhannes Dei gratiâ, etc. sciatis nos concessisse, & presenti cartâ nostrâ confirmasse, dilecto & fideli nostro Willielmo Marescallo, Comiti Pembroke, & haeredibus suis Magistratum Marescalciae Curiae nostrae; quem Magistratum Gilbertus Marescallus H. Rs. avi patris nostri, & Johannes filius ipsius Gilberti, disrationaverunt coram praed. Rege H. in Curiâ suâ, contra Rob. de Venoiz, & contra Willielmum de Hastings, qui ipsum Magistratum calumpniabantur. Et hoc judicium, quia defecerunt se de recto ad diem quem eis inde constituerat. Quare volumus, & firmiter precipimus, quod predictus Willielmus, & heredes sui post eum, habeant & teneant pred. Magistratum, cum omnibus ad illum pertinen. been, & in pace, liberè, & quietè, integrè, & honorificè, de nobis & heredibus Testibus W. Lond. E. Elyens. & H. Sarum. Ep. Dat. per manus H. Cant. Arch.   

N. IX. Vid. CAP. 9 F. 93.  

Rot. Parl. 1. H. 7. Presentatio Praelocutoris. — SUbsequenterque idem dominus Rex prefatis communibus ore suo proprio eloquens, ostendendo suum adventum ad jus & Coronam Angliae fore, tam per justum titulum haereditanciae, quam per verum Dei Judicium, in tribuendo sibi victoriam de inimico suo in Campo, declaravit quod omnes subditi sui cujuscunque statûs, gradûs seu conditionis fuerint & haberent & tenerent sibi & haeredibus suis, omnia terras, tenementa, redditus, & haereditamenta sua, eisdemque gauderent, exceptis talibus personis quales suam Majestatem Regiam ostenderunt, qui juxta eorum demerita in presentis Parliamenti Curiâ aliter essent plectendi.  

Titulus Regis.  Item. Quaedam Billa exhibita fuit praefato Domino Regi in praesenti Parliamento, per Communitates Regni Angliae in eodem Parliamento existentes, hanc seriem verborum continens.  
To the Pleasure of Almighty God, the Wealth, Prosperity, and Surety of this Realm of England, to the singular comforth of all the King's Subjects of the same, and in avoiding of all Ambiguities and Questions. Be it ordained, Established, and Enacted, by authority of this present Parliament, that the Inheritance of the Crowns of the Realms of England, and of France, with all the preeminence and dignity Royal to the same pertaining, and all other Signeries to the King belonging beyond the See, with th' appurtenances thereto in eny wise due or perteineing, be, rest, remain and abide in the most Royal Personn of our now Sovereign Lord King Henry the seven th', and in the Heirs of his Body lawfully coming, perpetually with the Grace of God so to endure, and in none other.  
Quà quidem Billâ in Parliamento praedicto lectâ auditâ & maturâ deliberatione intellectâ, eidem Billae, de assensu Dominorum Spiritualium & Temporalium in dicto Parliamento existen. ad requisitionem Communitatis praedictae, necnon authoritate ejusdem Parliamenti respondebat eidem, in formâ sequenti.  
Nostre Seigneur le Roy, del assent des Seigneurs Espirituelx & Temporelex esteaniz en cest Parliament, & a la request des Commens avantditz, le voet en toutz poyntzes.  
The King our Sovereign Lord remembering, 
Restitutio Henrici Sexti, 1. H. 7. n. 16.  how against all rightwiseness, Honour, Nature, and duty, an inordinate, seditious, and slaundres Act was made, again the most famous Prince of blessed memory, King Herrie the sixth his Uncle, in the Parliament holden at Westminster, the fourth day of November, the first Year of the Reign of Edward the Fourth, late King of England, whereby his said Uncle, contrary to due Allegianee, and all due Order, was attainted of High Treason. Wherefore our same Sovereign Lord, by the Advice and Assent of the Lords Spirituals and Temporals, and Comines in this present Parliament assembled, and by Authority of the same, ordaineth, enacteth, and establisheth, that the said Act, and all Acts of Attainder, Forfeiture, and Disablement, made or had in the said Parliament, or else in any other Parliament of the said late King Edward, against the said most blessed Prince King Herrie, or against the right famous Princess Margaret late Queen of England, his Wife, or the right victorious Prince Edward late Prince of Wales, Son of the same blessed King Herrie, and Margarett, Jasper Duke of Bedford late Earl of Pembroke, or Herrie late Duke of Somerset; (the which Jasper, and Herrie late Duke of Somerset, for their true and faithful Allegiances and Services done to the same blessed King Herrie, were attainted of High Treason) or any of them, by what Name or Names they, or any of them, be named in any of the said Acts, be against the said blessed King Herrie, Queen Margaret, Edward late Prince, and the same Dukes, and the Heirs of every of them, void, annulled, repelled, and of no Force, ne Effect.   

N. X. Vid. CAP. F. 103.  
SAnctissimo in Christo Patri & Domino, 
Claus 3. E. 1. m. 9 Cedula. In a Letter to the Pope.  Domino G. divinâ providentiâ Sacro-sanctae Romanae Ecclesiae, & universalis Ecclesiae summo Pontifici. Edwardus ejusdem gratiâ Rex Angliae; Dominus Hiberniae, & Dux Aquitaniae. Cum reverentiâ & honore salutem, & pedum oscula beatorum. Mandavit nobis olim per literas Apostolicas, quas pronâ mentis devotione recepimus vestra sanctitas reverenda, ut annuum censum, in quo Sacrosanctae Rom. Ecclesiae ratione Regni Angl. pro octo praeteritis annis asseritis nos teneri, venerabili vestro Magistro R. de Nogeriis Capellano vestro assignari liberaliter ac integrè, nomine pred. Rom. Ecclesiae, faceremus. Nuper autem alias literas vestras recepimus cum Reverentiâ continentes, quod cum nos respons. Relationis solutionis Censûs annui memorati, quam nobis pred. Capel. vester exposuit vestrae & Ecclesiae Romanae Nomine, diligenter Deliberatione Consilii Procerum Regni nostri, in Parliamento quod circa Octabas Resurrectionis Dominicae celebrari in Angliâ consuerit, pro eo duximus reservand. quod tempore receptionis pred. lit. vestrae, noviter ejusdem Regni gubernacula sumpseramus, nunc de hujusmodi censu sine ulteriori procrast. impendi faceremus eidem satisfac. plen. Capellano. Fatemur enim S. Pater & Domine, ad Parliament. nostrum in Octabis Resurrectionis Dominicae prox. pret. Regni nostri Praelatos & Proceres evocasse; ibique multa statuisse divinâ gratiâ favente, quae meliorationem statûs Ecclesiae Anglicanae, reformationem Regni ejusdem respiciunt, & communes profectus populi capiant incrementa. Set antequam eidem Parl. propter negotiorum multitud. quae reformationis remedio indigebant, finem imponere valeremus, Eodem Capellano vestro responsionem debitam sibi fieri instanter postulante, quaedam gravis nos invasit, sicut Domino placuit, infirmitas corporalis, quae perfectionem multorum aliorum negot. & deliberationem Petitionis Censûs annui supardict. de quo dolemus non modicum, impedivit. Sicque cum occatione infirmitatis hujusmodi, à quâ per Dei gratiam cujus est perimere & mederi incepimus convalescere, Idem Parl. fuerit dissolutum, & super hoc nequiverimus super Petitione Censûs ejusdem deliberationem habere, cum Praelatis & Proceribus antedictis; sine quorum communicato consilio sanctitatae vestrae super predictis non possumus respondere; Et jurejurando in coronatione nostra prestit. sumus astricti, quod jura Regni nostri servabimus illibata, nec aliquod, quod Diadema tangat Regni ejusdem, absque ipsorum requisito consilio faciemus; Reverende Benignitati vestrae humiliter supplicamus, & pro dono petimus spirituali, quatenus molestè non ferat sanctitas vestra, si ad praesens super pred. sicut vellemus, non possumus respondere. Imo patientia vestra paterna si placet nos super hoc habere dignetur excutatos, Pro firmo scituri pie Pater & Domine, quod in alio Parliamento nostro, quod ad festum Sancti Michaelis prox. fut intendimus dante Domino celebrare, habito & communicato Consilio cum Praelat. & Proc. memoratis, vobis super praem. ipsorum Consilio dabimus responsionem. Conservet vos Dominus Ecclesiae Sanctae suae per tempora longaeva. Teste meipso apud Westm. 19 die Junii Anno Regni nostri 3o.    

The Present CONVENTION a Parliament.  

N. XI. Vid. CAP. 10. F. 111.  
I. THat the formality of the King's Writ of Summons is not so essential to an English Parliament, but that the Peers of the Realm, and the Commons, by their Representatives duly Elected, may legally Act as the great Council and Representative Body of the Nation, though not summoned by the King, especially when the Circumstances of the time are such, that such Summons cannot be had, will (I hope) appear by these following Observations.  
First, The Saxon Government was transplanted hither out of Germany, where the meeting of the Saxons in such Assemblies was at certain fixed times; viz. at the New and Full Moon. But after their Transmigration hither, Religion changing, other things changed with it; and the Times for their public Assemblies, in conformity to the great Solemnity celebrated by Christians, came to be changed to the Feasts of Easter, Pentecost, and the Nativity. The lower we come down in Story, the seldomer we find these General Assemblies to have been held; and sometimes (even very anciently) when upon extraordinary Occasions, they met out of course, a Precept, an Edict, or Sanction is mentioned to have issued from the King: But the Times, and the very Place of their ordinary Meeting having been certain, and determined in the very first and eldest Times that we meet with any mention of such Assemblies, which times are as ancient as any Memory of the Nation itself; hence I infer, that no Summons from the King can be thought to have been necessary in those days, because it was altogether needless.  
Secondly, The Succession to the Crown did not in those days, nor till of late Years, run in a course of Lineal Succession by right of Inheritance: But upon the Death of a Prince, those Persons of the Realm that Composed the then Parliament, Assembled in order to the choosing of another. That the Kingdom was then Elective, though one or other of the Royal Blood was always chosen, but the next in Lineal Succession very seldom, is evident from the Genealogies of the Saxon Kings, from an old Law made at Calchuyth, appointing how, and by whom Kings shall be chosen; and from many express and particular Accounts given by our old Historians, of such Assemblies held for Electing of Kings. Now such Assemblies could not be Summoned by any King; and yet in conjunction with the King that themselves set up, they made Laws, binding the King and all the Realm.  
Thirdly, After the Death of King William Rufus, Robert, his Elder Brother, being then in the Holy Land, Henry, the youngest Son of King William the First, procured an Assembly of the Clergy and People of England, to whom he made large promises of his good Government, in case they would accept of him for their King; and they agreeing, That if he would restore to them the Laws of King Edward the Confessor, than they would consent to make him their King. He swore that he would do so, and also free them from some Oppressions, which the Nation had groaned under in his Brothers and his Father's time. Hereupon they chose him King, and the Bishop of London, and the Archbishop of York, set the Crown upon his Head: Which being done, a Confirmation of the English Liberties passed the Royal Assent in that Assembly, the same in substance, though not so large as King John's, and King Henry the Third's Magna Charta's afterwards were.  
Fourthly, After that King's Death, in such another Parliament, King Stephen was Elected, and Maud the Empress put by, though not without some stain of perfidiousness upon all those, and Stephen himself especially, who had sworn in her Father Life-time, to acknowledge her for their Sovereign after his decease.  
Fifthly, In King Richard the First's time, the King being absent in the Holy Land, and the Bishop of Ely then his Chancellor, being Regent of the Kingdom in his Absence, whose Government was intolerable to the People for his Insolence and manifold Oppressions, a Parliament was convened at London, at the Instance of Earl John, the King's Brother, to treat of the great and weighty Affairs of the King and Kingdom; in which Parliament this same Regent was deposed from his Government, and another set up, viz. the Archbishop of Rouen in his stead. This Assembly was not convened by the King, who was then in Palestine, nor by any Authority derived from him, for then the Regent and Chancellor must have called them together; but they met, as the Historian says expressly, at the Instance of Earl John. And yet, in the King's Absence, they took upon them to settle the public Affairs of the Nation without Him.  
Sixthly, When King Henry the 3 d. died, his Eldest Son, Prince Edward, was then in the Holy Land, and came not Home till within the third Year of his Reign; yet, immediately upon the Father's Death, all the Prelates and Nobles, and four Knights for every Shire, and four Burgesses for every Borough, Assembled together in a great Council, and settled the Government till the King should return: Made a new Seal, and a Chancellor, etc.  
I infer from what has been said, that Writs of Summons are not so Essential to the being of Parliaments, but that the People of England, especially at a time when they cannot be had, may by Law, and according to our Old Constitution, Assemble together in a Parliamentary way without them, to treat of and settle the Public Affairs of the Nation. And that, if such Assemblies so convened, find the Throne Vacant, they may proceed not only to set up a Prince, but with the Assent and Concurrence of such Prince, to transact all Public Business whatsoever, without a new Election; they having as great Authority as the People of England can delegate to their Represantatives.  
II. The Acts of Parliaments not Formal nor Legal in all their Circumstances, are yet binding to the Nation so long as they continue in Force, and not liable to be questioned as to the Validity of them, but in subsequent Parliaments.  
First, The two Spencers, Temp. Edvardi Secundi, were banished by Act of Parliament, and that Act of Parliament repealed by Dures & Force; yet was the Act of Repeal a good Law, till it was Annulled 1 Ed. 3.  
Secondly, Some Statutes of 11 Rich. 2. and Attainders thereupon, were Repealed in a Parliament held, Ann. 21. of that King, which Parliament was procured by forced Elections; and yet the Repeal stood good, till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived, and appointed to be firmly held and kept.  
Thirdly, The Parliament of 1 Hen. 4. consisted of the same Knights, Citizens and Burgesses that had served in the then last dissolved Parliament, and those Persons were by the King's Writs to the Sheriffs commanded to be returned, and yet they passed Acts, and their Acts though never confirmed, continue to be Laws at this day.  
Fourthly, Queen Mary's Parliament that restored the Pope's Supremacy, was notoriously known to be packed, insomuch that it was debated in Queen Elizabeth's time, whether or not to declare all their Acts void by Act of Parliament. That course was then upon some prudential Considerations declined; and therefore the Acts of that Parliament, not since repealed, continue binding Laws to this day.  
The reason of all this, is, Because no inferior Courts have Authothority to judge of the Validity or Invalidity of the Acts of such Assemblies, as have but so much as a colour of Parliamentary Authority.  
The Acts of such Assemblies being Entered upon the Parliament-Roll, and certified before the Judges of Westminster-Hall as Acts of Parliament, are conclusive and binding to them; because Parliaments are the only Judges of the Imperfections, Invalidities, Illegalities, etc. of one another.  
The Parliament that called in King Charles the Second, was not assembled by the King's Writ, and yet they made Acts, and the Royal Assent was had to them; many of which indeed were afterwards confirmed, but not all, and those that had no Confirmation, are undoubted Acts of Parliament without it, and have ever since obtained as such.  
Hence I Infer that the present Convention, may, if they please, assume to themselves a Parliamentary Power, and in conjunction with such King or Queen as they shall declare, may give Laws to the Kingdom as a legal Parliament.     

ALLEGATIONS In behalf of the High and Mighty Princess THE LADY MARY, NOW Queen of Scots, Against the Opinions and Books set forth in the Part and Favour of the LADY KATHERINE, And the rest of the Issues of the French Queen, Touching the Succession of the Crown.  
Written in the Time of QUEEN ELIZABETH.  
London, Printed by J. D. in the Year 1690.   

THE PUBLISHER TO THE READER.  
I Thought it not improper to subjoin the following Treatise, written by a Lawyer in Queen Elizabeth's Time, whether ever printed or no I cannot say, in favour of the Title of the Queen of Scots, against the Pretences of the Lady Katherine, descended from the French Queen, Sister to H. 8. and married to Charles Brandon, Duke of Suffolk.  
The Author shows himself skilled in the Civil, as well as the Common Law; and though he had occasion to maintain a strict Right of Succession to the next in the Line, according to which he will have it, that H. 4. H. 5. H. 6. withheld the Crown by wrong; Which I suppose proceeded from his not observing what Parliamentary Confirmations their Possessions had; Yet himself says, That we are all bound in Reason, to have always more regard to the State and Dignity of the whole Weal Public, than of the private Preferment or Commodity of any particular Person. Nay, he says it appears from History, that many Princes settled in their Kingdoms, have been judged unworthy of their Callings, for what would now be looked on as a very slight Matter. And many things he speaks with great Judgement, which tend towards the justification of what has lately been done for the Publick-Weal, and Preservation of the State and Dignity of this Realm.   

THE AUTHOR TO THE READER.  
AS every man may think it very necessary, both for the great weal, and great quietness of this State, to know certainly, to whom, of right, the Honour and Dignity of this Imperial State, and Crown of this Realm of England should fall, or descend unto (if aught should hap to Queen Elizabeth our supreme and most gracious Governor) whom it may please God long to prosper with long Life, good Husband, and many Children, to her Highness' contentation, and the general weal and reastfull days both of her Majesty, and of the whole Realm: So think I that none can like well, that any, with eny coloured or deceiveable mean or argument, should go about to set forth or persuade the natural and loving Subjects thereof; that the Succession appertained to those, that in deed have no just Right, Title, or Interest to the same. And therefore because some have endeavoured themselves by writing to show, that the Succession appertained unto the Lady K. Grey, the which, as may appeerr, by no direct right or reason, can pretend eny just Title or Claim thereunto. I have not thought it unfit, hereby to show the state and troth thereof more plainly, to such, that else, either by such practices, or else by such works, might otherwise rest deceyvid. And that I shall be thus occasionyd to utter heerin, neither is, nor shallbe with eny mind or motion to offer eny injury, or to stain or spot the Name or Honour of eny, but only to answer those Arguments, the which as they be grounded upon no truth, are so, worthy of no favour. And to answer therein, without wresting or applying eny case otherwise, than the state of the matter doth most plainly and truly crave the pronunciation of the Law. So that if any thing be said, it is the very necessity of the cause, so necessarily for this state and this time, to be thus touched, and the judgement of the Law touching the same, that speakith or utterith eny thing, and else no other disposition. And because our Bond and Duty is rather to have regard of the State and Dignity of the whole Weal Publik, and of the good success, prosperity and quietness thereof, then of the undue title, or interest, of eny particular person or persons. I trust this travail may the rather be accepted and taken in better part.  
And so to the Matter.  
First to the illegitimation of the Lady K. and the rest of the Issues of the French Q.  
And after of their Force or Interest by the Will.  
touching the First. It is notorious and well enough known, that when Charles Brandon Duke of Suff. married with the Lady Mary the French Q. that he had then an other Wife living, which was the Lady Margaret Mortimer, with whom after marriage he lived dyvers years as lawful Man and Wife: and after upon certain discord between them, of his own motion, without any form or manner of lawful judgement, that he separated himself from her and forsook her. And what rashness or rather folly may it be comptid, to reply or write against so manifest a troth with conjectures? as to say, it is not likely that K. Henry would ever have consented that his Sister should marry one which had an other Wife living. Since that there is yet so many lyvely Witness, the which of certain knowledge can be Testes, 
The said Charles matchid with the French Queen 1515. She died Anno. 1532. La. Mortimer died An. 1533.  that Charles Brandon and the Lady Mortimer were Man and Wife, and have seen and did know the Lady Mortimer long after the marriage, yea, and peradventure after the death of the said French Q. And touching the K. although it is to be thought, that if he had known that the Duke had had an other Wife lyving, that he would not have consented that his Sister should have married him: It might be notwithstanding full well, and it is possible that yet he had one, and that the King might not know thereof. For as Princes have been the greater or the mightier, so much the less, commonly, have they been wontyd to understand of the do in such matters of pryvate Persons. But in this case there be as perfect Clerks, and of as good understanding as any were, at th' advice of these Books abroad, that are of opinion certain, that the French Q. and the Duke were matchid before the King was prevy thereof: and some Pardon or Pardons obtained for the same, upon small search, may happen to be found that may testify as much; and of necessity, we can not otherwise think, but that it was so: Since that as much as is said of the Lady Mortimer, may be affirmyd by the said Witnesses as a thing most certain and notorious. The which being true, then is it certeyn that the Lady Mary, the said French Q. cold not be his lawful Wife. And that the said Charles, Duke of Suff. could not live with her but in Adultery. For the words of the Lord be plain. 
(a) Mat. 19 & Marc. 10.  Quicunque dimiserit uxorem, nisi ob fornicationem, & aliam duxerit, machatur. Et qui dimissam duxerit, maechatur. Now that one borne in Adultery, and notwithstanding is legitimate, that cannot be: And therefore the Lady K. being come of one not legitimatly borne, cannot inherit, or be capable of the Crown. And heerin it is to little purpose to cavil with Canons or Decretalles of the Pope, against the plain and manifest Word of God, from whose usurped Power, as this Realm is most happily delivered; so hath his Laws in the same lost their force and vigore. But admit that the Pope's Law had in England any authority, at least it should be an impious thing in what place soever it were, where the word of God is so clear and certain, to stick rather to the Pope's Law, then to the Law of God. 
(b) Parnormi in ca super illa de secundis nuptiis.  But all this notwithstanding, let us see what Reasons they be besides, that are brought in the favour of the Lady K. One is, forsooth, that the Lady Mary, the French Q. and the Duke of Suff. having lived many years together as Man and Wife, and their Matrimony celebrated publicly in the face of the Church, without eny thing said against them during their lyves; that therefore though he had twenty Wyves then living, that yet the Children of the Queen and Duke are to be taken no other then as legitimate. And th' other, that it is sufficient for the legitimation of their Children, that the French Q. seemyd to have no knowledge that he had eny other Wife living.  
To these great Reasons, and their Authority, it is easy ynnough to answer. For it is a Maxim in the Civil Law, That that which from the beginning is not good or lawful, cannot with eny Process of time be betteryd. 
(c) L. quod mitio ff. de regu. juris.  And therefore the Matrimony not being lawful at the first, no time is sufficient or able to make it lawful. And if that which is said of the long continuance of the Matrimony, without eny thing said against it, had been such to have come in eny consideration, it might have had some colour or show of reason; the rather, if the parsons against whom eny such controversy should have risen, had been of such degree or condition, as eny might freely have proceedid against them. But they were Princes, the Woman the Kinge's Sister, and the Man a Duke, and in great favour with the Prince, in such sort, that the great and the imminent danger and peril that did depend thereof, was, and is the aparaunt and manifest cause why no Man did or durst begin with them, or attempt eny such matter, and specially in a thing that touchid any whit the displeasure or dishonour of the King himself: And therefore that long continuance in Matrimony, after that sort, without controversy, is not to be counted for quiet and peaceable, but rather injurious and violent. 
(d) Arg. l. in. fi. C. de ann. exe. & l. 1. §. si quis autem ff. de iti. act. pri. C. quia. de conces. pre. l. §. 1. ff. quod vi aut clam. & l. de pupillo. §. si quis ff. de . novi nun. cum ibi not. per Bar. & alios.  And such as cannot help eny thing to the legitimation of the Children born in Adultery.  
To th'other, touching the ignorance of the Queen, although it were granted, that some ignorance, in some sort, might the rather shadow the illegitimation of the Children; yet it is not therefore that every kind or sort of ignorance might be accepted to bolster forth such causes, but a probable ignorance: for the Law tendith to the favour of the vigilant and diligent in their own causes, and not to the wilful, slothful, or negligent. And those that contractith with eny, they ought to know and understand each of the others State and Condition, 
(e) l. qui cum alio contrahit. ff. de regu. juris.  and not to understand that is commonly brutyd, is to be attributed unto the Parties default. 
(f) l. quod verba ff. depon. & l. si ut certo. §. nunc videndum. ff. commo. cum ibi notatis.  And such a kind of ignorance is called a Voluntary, or ellis a dissembled Ignorance, and helpeth nothing to the ligitimation of the Children, the Matrimony being contrary to the public Law of Honesty, even by the Canonical and Civil Law; 
(g) Cap. cum inhibitio. de clan. desp.  for since Charles Brandon, after Duke of Suff. had lived with the first Wife so long, being of such a calling, and she his Wife, of such a House, and such a living, and in the same Country; It had been very easy, with eny never so little a diligence used, to have come to the knowledge, whether he had had eny other Wife living, or no. And the Law entendith, that one that either doth understand, or else is in ability easily to understand, to be all one. 
(h) l. pen. ff. ad maced. l. in bonorum. in fine ff. de bonorum poss.  Since then the French Q. if she had liked eny thing to have hearkened, searched, or demaundid, moght easily have had intelligence, whether the Duke had eny Wife lyving or not; It is as much as if she had known it: so doth it manifestly appear that the Children born in such Matrimony, cannot, by eny mean, be reputed or taken for legitimate, or able to eny Inheritance, and much less of the Crown, since that for the Honour and Dignity of the Realm, whosoever should be worthy or capable of the Crown, it is meet, that not only they should be free from eny stain or spot, but also from all suspicion of eny. As Julius Cesar said of his House, when, for the only suspicion of Adultery, he did put away his Wife, saying; That the House of Cesar ought not only to be without Vice, but also without all suspicion of eny. Besides, if you should consent to put yourselves in subjection to such so unworthely born; Behold, and consider, I pray you, by the way, how fare off you should show yourselves inferior in consideration, from the many and noble Examples left unto us by other countries', as particularly of later Memory, by the Noble Nation of the Spayniardes. Where a Daughter being borne of the Queen, Wife to Hen. 3. King of C●stile, and most speech, great presumptions and secret murmuration thereof passing, that not the King, but an Adulterer, should be the Father thereof. The Barons, Earls, and other Nobles of the Realm, did assemble together; and considering what spot and infamy it should be unto the whole Nation and Country, if in time coming they should have their Q. a Woman thought of, and esteemyd but as a Bastard, did not only deliberate not to acknowledge, or not allow of her as legitimat Heir of the Realm, after the death of the King; 
The Case of the putative Prince of Wales.  But would without delay be discharged, and assured from that gratte dishonour and infamy. And thereupon so became most humble Suitors to the K. that as it apperteynid unto the Honour and Dignity of him and of the whole Realm; It moght so please him to repudiate the Q. as Adulteress, and declare that Daughter not to be his, but borne in Adultery. Showing him besides, that if he would not have regard unto his own Honour, and to do that, that touched so much his Estate, and the dignity of the whole Country; that they, for their parts, could not, nor would not so much forget their Duties to suffer it. But rather determined to depose him, as a Man that made small count, either of his Calling or Honour, and therefore unworthy of the Crown. By which you may see how fare such Occasions may sometimes carry Men past the terms of their Callings; whereof did grow afterward great Contention, and finally that Daughter never admitted unto the Crown, but the Succession transferred unto the Lady Isabella, Sister of the K. A Queen, for her Valour and rare Virtues, of great Fame and Renown. And yet, notwithstanding, according to the Canonical Law, (of force and strength in such Cases as most proper Judge) although the Adultery of the Queen indeed were more than manifest, yet moght they have presumyd that the Child had been rather of the Husband, then of the Adulterer; so  are those Laws unto the Birth. But those Noble Men, as jealous of the Honour, Fame, and Reputation of their Country, did think that it importyd a great deal more to maintain and assure the Dignity of the whole Realm, refusing a Person of doubtful Birth, then to have respect unto the particular Interest of that Child. And thus tendrid these so much this Honour, that they could not, nor would not tarry the time to entreat of the Succession, when it should hap, but would, by and by, put the matter out of doubt. And you, when it is so needful, and the time doth so require it, to know one certainly for your Prince and just Governor hereafter; Will you make no count hereof? They, I say, for these respects, did refuse one, that according to th' ordinary course of the Law, they moght easily have presumed of to have been legitimate: And will you submit yourselves to a person, that, according to the ordinary and Canon Rule and Order of the Law, is so manifestly known, taken and showed, discendid plainly as illegitimate? Oh take heed, for if ever this hap in your Heads, what other thing will it turn or grow unto, but unto an open and universal declaration unto all the World, that you, between Honour and Dishonour, Right or Wrong, causes of prosperity or Ruin, do make no difference at all: Which opinion once conceyvid of you, boast, brag, or compare after, the Nobility or Excellency of your Country, or the Stoutness of yourselves, with other Nations, ye may well ynuough; but who will not rather mock or scorn at your madness or folly, then believe you as of eny Reason or Judgement?  
And this that is said (as is before touched) hath authority, and is, both according to Divine, Canon, and Civil Law, and besides, according to the Law of Nature and Reason. But though we should admit, that by the Canon Law these descendentes of the French Q. were to be tolleratyd or allowid as legitimate, yet doth it not follow, for all that, that in this Realm they ought to be taken or accounted for legitimate or inheritable: Because that for eny to be borne legitimate, heritable or Bastard Hear, is judged, not according to the Canon Law, but according to the Law of the Realm. And this doth appear manifestly, by the Statute of Merton, Cap. 9 Where the Bishop's instanced the Lords, that they would consent that all such as were borne before Matrimony, should be legitimate according to the Canon Law, as well as they that were borne within Matrimony. Which could not be obtained; but determination made, that they should stand unto the Laws of the Realm, and not unto the Canons: And that one borne of a second Wife (the first still lyvinge, by occasion of ignorance, that the second Wife may pretend, that the Husband had no other Wife alyve) should be taken or counted for legitimate or inheritable, is not authorized by our Law. But plainly the contrary, as may appear by Bracton, Glandvill, Britton, Parkins, and the whole course of the Law. Wherefore to allege that it is not lawful to count such for Bastards after their death, though during their Life they were taken or counted for no other, then as legitimate, is a poor help, a slender proof, and to this purpose maketh nothing at all; for Litleton, Cap. of Discentes doth declare, that this continuance to purge the Bastardy, is not to be alleadgid in every sort of Bastardy, but in that only that is born of the Woman that the Father doth after marry, with other Circumstances, as may appear, fare from this Mater. But to object that heerin might further have fortunyd, though peradventure there happed never eny such matter, because nothing may be thought of now, or else remember hereafter, that in this case to the uttermost that might have chanced, may not presently be fully said unto, and answered; Let us admit, for the salvinge of the Bastardy of these Issues, that the Pope's bull might have been obteynid, (which though both against eny godly and lawful Matrimony, and against the Law of the Land, perhaps, might easily have been compassed) yet notwithstanding should the same have made as little to the purpose, as th' other proper Reasons before alledgid: For such a bull (though it had been of valour in England, as it is neither now, nor yet ever was when the Pope was here in greatest authority) should either have pronounced and declared the same Children to have been legitimately borne; or else of Bastards, it should have made them legitimate.  
In as much as it should have declarid them to have been legitimately borne, it had been needful that it should have been with pronuncinge the Matrimony with the said Queen and Duke legitimate, notwithstanding the other Wife had been alive; and that could not have been granted, (the case being as it was) but upon some false or feigned surmise. And therefore, according to their own Laws or Canons, it should have been of no force or valour. But let it have been according to what Canon they had listed; the Common Law of this Realm of England should never have been bounden by any such bull, and specially when the matter upon eny Point of Illegitimation is to be called in question, by reason of eny Issue joined upon Bastardy, after the death of the Parties, which are to be impeached as Bastards, by reason of eny second, or other Marriage, during the Life of the first Wife, the same being never upon eny Suit at the Common Law brought in Question, 
Vid. Bracton, F. 216. upon the Statute of Merton, he mentions a special return at that time required. Of which more in the second Part.  whilst the Parties in whom Bastardy is not allegid, lyvid. The greatest doubt that in such case might have happed, is, that if the matter had been called in question at the Common Law, during the Pope's Jurisdiction in the Lyues of eny of the Children of the said Duke and the French Queen (which be now all deceased) and an Issue had been joined upon general Bastardy, or upon some other general Issue of Divorce, the same should then have been tried by the Certificate of the Ordinary; and thereby, perhaps, by some such sleightful Certificate, the unlawful Do of the Pope (if eny such had been in his time) might so have ben allowed covertly. But allowing it were triable at this day by the Ordinary, the Pope's Dispensation carrieth not in our Law the Jurisdiction of the Ordinary; nor is not so to be receyvid, but it must recyve a Trial directly by th' Ordinary, whose Certificate must proceed according to such matter as may inform a Truth, or else it must receyve the Trial by a Jury of twelve Men, according to the common usage of Tryalles. And who can think, if the cause of eny such separation, stirred upon no just Motion, but only of corrupt or fleshly disposition, should come now in question; that either eny Ordinary, or else eny Jury, in so plain and open Bastardy, would either so fare forgeete or hazard theimselfes, or  exceed the Bonds of their Duties to God, their Country, or all honest Reputation to the World, to certify such Issues to be legitimate; whereby no Controversy should be decided, but rather dangerously increased, and the whole Government of such a Noble Realm thereby brought unto a double Bastardy as the case now standeth: For touching th' Issues between the Duke and the French Queen, if question be asked whether they be lawful? answer is made, They are not, because the Duke was first lawfully married to the Lady Mortymer, and continued with her above seven Years; and that he was married after to the French Queen, during the said Lady Mortymer's Life, who overlyved the birth of all the French Queen's Children: Which answer, by our Law, clearly destroyeth the seconde Marriage, and maketh it void, and so all the Issues clearly Bastards. And this is th' absolute Judgementof our Law, so as now th' Issues of the French Queen cannot eny way help theimselfes, but they must first destroy the first marriage, which our Law will never disallow until it be first disannulled. And therefore if the Duke of Suff. had had eny Issue by the L. Mortimer, those Issues should have been allowed his Heirs, by our Law, notwithstanding the Marriage after with the French Queen. And therefore for that the French Queen's Issues rest dissabled in point of Common Law, they must make theimselfes able, by some such proof as may satisfy the same Law, before they can be receyvid. And if they seek their relief by eny dispensation from Rome (as is said) it servith not, although there were a Dyvorce to be proovyd by eny such Instrument. And it is most true, that they are able to prove no lawful Devorce within the Realm, though by search it hath not only been perceyvid, but is evidently to be proved how many corrupt and subtle attempts by sundry means hath been taken in hand to cowntenance those matches with the French Queen and other, as by a supposition of a Suit sued between one Anne Browne and the said Charles Brandon, whereof should arise the displeasure between the Lady Mortimer, and the said Charles her Husband, seven Years and more after their Marriage: During which time the said A. B. God wot, never took it so earnestly as she once complaynid to the Law, or ever thought of the Mater, nor as it seemith would ever have done, if in this time the said Charles had not consumed the said Lady Mortimer's Wealth and Lyvelyhoode, and found her Years not answerable to his Yeouth and wanton Disposition; for satisfying whereof, this Acquaintance, that Belly rising, and these Practices after happed with the same Anne. Whereof riseth now these feeble-groundid Histories, this Speech, and these Devices, that she forsooth should be precontracted to him before, and had a Child; which Child, eight Years after, is known well inoghe, was but two or three Years old at the most. A strange case; and yet she had it at seventeen, or ninteen, and was but twenty at the time of this supposed Divorce, when the said Charles and she came together. Well, I say no more, for the Case is scant worth the speaking of; but if this Mater were to be shewed, ye should see such a patron of a Divorce, as they that feignest would have it, would soon be ashamyd to countenance their Title upon the same; and yet these Passages thus happed in these Days, and in that Life, from better to worse, advoutry upon advoutry, and such other stuff.  
But how vain is it to write, or to occupy you with these Digressions, as with what might have been, what is supposed to have been, or such other vain and frivolous practices or shifts▪ as hereafter may be, when it behoovith so much presently to consider what in this case properly may and aught to be? And therefore because it is one of the most assuryd ways to understand what the Law willeth, or is in eny question to admit, that the Mater were at present to be decided by dew course of Law, with all the Policies that on both parts may be used for their most avail and purpose, and so to bring the same in Form of Law to such a point, as judgement may be thereof given rightly. Take heerin for Ensample, that I. S. made a Gift of Land to Charles Duke of Suff. and the French Queen, after their Marriage, and the Heirs of their Bodies; and now the same I.S. bringith his Action of Forme-downe in reverter for the same Land, against the Lady K. and her Sister, and the residue of that Line; and supposeth that the Land ought to him to revert, for lack of Issue lawfully begotten between the Duke and the French Queen: and they come and plead, by way of Bar, the Marriage between the French Queen and the Duke, and convey the Pedigree lineally. Whereunto I. S. replieth, and showeth a former Marriage with the Lady Mortimer, and averrith her Life after their Birth. And the Lady K. and the rest, cannot by Law maintain their Bar, and destroy his Title, unless they plead a lawful Divorce; and if they plead eny such, yet the same shall not be under the Pope's bull, but by the Certificate of th' Ordinary, and for that th' Ordinary hath no Record, or other lawful Proof, whereupon he can lay eny Foundation to certify any lawful Divorce, therefore the Certificate cannot be available. And so to conclude, there is no doubt in the troth of the case, and by like reason no doubt in Law (if you will allow the Proceed according to troth) but that the Bastardy remaineth, and is not able to be purged.  
And if the bull should have been to make the Children of the said Queen and Duke of Bastards legitimat, besides the Reasons before alledgid, which are as effectual in this purpose as in the other; yet it is most true, that such legitimation had been of no more force or Virtue here in this Realm of England, than they be of in those countries that are at the Pope's Obedience. And who soever is legitimated there of the Pope, is not to be understandid for all that, to be legitimate to inherit, but in the Lands that do belong unto the Church. 
(i) Imo, in ca per venerabilem qui filii sint legi. . And besides, who soever, is legitimate, and abled generally to eny Dignity, is not in that neither to be understandid legitimatid unto a Royal Dignity. 
(k) Barthol. & Bal. in l. eam quam. C. de fide. con.  And the Reason is, that whosoever is borne Bastard, though he be after made legitimate, is ever reputed, notwithstanding, as infamous. 
(l) Bal. in lege generaliter §. cum autem. C. de inst. & substi. sub condi. factis. & Alexan. in 3. ff. de il. & post. . And these Reasons may serve also to the Allegations before said, of the innocency of the Queen, and the continuance of the Matrimony without controversy: for they do declare plainly, that although the Laws, where they entreat of eny other Inheritance, should make as legitimate the Children so borne (the which indeed they no ways can do, as we have partly proovyd) notwithstanding that the same Laws could never be alledgid in case of Succession to eny great Dignity, and chief unto a Royal Dignity, in the which the whole state of the Common Wealth hath interest.  
And besides, touching the double Bastardy before remembryd, though we should admit that of the legitimation of the Lady K. there were no doubt or question, yet such hath been her Life, and Behaviour, and so much hath she stained herself and issue; as she is to be thought unworthy of the Crown: for she was married (as ye know) to the Lord Herberd: The Marriage was perfected by all necessary Circumstances, there was consent of the Parties, consent of the Parents, open solemnizinge, continuance after, till lawful Years of consent, and in the mean time carnal Copulation, all which, save the last, are commonly known by dyvers that saw them, and the last, which to all other might be most doubtful, is known by the confession of them both, and so made the more likely to be true, because she herself (though in such things that Sex be most covert and shamefast) hath yet earnestly acknowledgid the same: after which Consummation every Man knoweth that albeit the Matrimony had been before for lack of Years not vailable, that yet thereby it cometh and is made perfect, and of full force and valour. In sort that the Divorce and Sentence that was so dryven, procured and practised by the means of the Earl of Penbroke in Queen mary's Reign (for respects then well enough known) agyinst both the Parties Wills as most manifestly appeeryd, not only by their great unwillignesse unto it then, but also by their affectionate and willing manner of lyving, continent many Years after, continuing in mutual Love testified by sondrey means, many Tokens, Messengers, and other signs of the same, cannot be of eny force to break the said Matrimony, nisi de facto. 
(m) De sponsal. cap. 30. is qui fidem.  But during this delay, she by dalliance fell to carnal company with th' Earl of Herforde, which was not descried till the bigness of her Belly bewrayed her ill hap. In which what was commityd on both their behalves, while he th' Earl unlawfullie companyed with the Wife of an other Man, and she the Wife of one Man, did give her Body to be used of an other Man unlawfully, ye may easily judge. But this done the L. Herbert seeing himself thus deceyvid by his Wife, did (as he might lawfully) join himself in Marrying with an other Woman, and that Life and Usage between the Lady K. and the Earl being confirmid by double Issue, as it was utterly unlawful before God, so was it found unlawful before such Bishops, and other Commissioners, as had the heeringe of the same, and their Issue bastardid; whereupon doth fall out, as ye see, great wickedness and lashnes of Life in the Mother, and bastardy in the Children. And it is not unknown, to those conversant in the Histories, that many Prince's settlid in their Kingdoms, have been judged unworthy of their Calling for lyving in Whoredom; And how can she be counted worthy to come to a Kingdom, which, as her Case standeth, cannot but live in like manner? Surely, if she were the next Heir of the Blood Royal, her Fault is much the greater so foully to have spottyd the same: For as by this Whoredom she hath deservyd grevous Punishment, in disparaginge and disablinge the Blood; so hath she, by vyolatinge Marriage, cut off all hope of having lawful Issue by her to succeed and possess the Crown hereafter: For by the Law that God giveth, 
(n) Deut. 23.  Deut. 23. A Bastard, and unlawful borne Person, may not bear Rule in the Church, or Commonweal: He is counted a Stranger, as the Hebrew word importith; and to the perpetual detestation of Whoredom was this Law made, to punish the Parents Faults justly in their Children. The Civil Law likewise doth not only punish such persons as make such unlawful Matches, but removith the Issue, so borne, from the Inheritance, or taking by Legacy eny thing of the Parents. 
(o) Co. de incest. & inut. nup.  And thus do you see, by the way, thus much of this double Bastardy; and what Stay, Comfort, or Consolation is likely to come to this Realm of England, by the L. K. and such Issue as she now hath, or is likely to have hereafter, though she herself were by her Parents free from Bastardy, as by the Process, and Allegations before alledgid doth plainly appear she is not. Wherefore, to return to the Mater before in hand, and to conclude thereof. Since eny Spot, or suspicion of eny, is sufficient bar from th' Inheritance of a Crown, much more cause is this plain and open Bastardy; for we are all bound in reason to have always more regard to the State and Dignity of the whole Weal Public, then of the pryvate Preferment or commodity of eny particular Person. And so doth it appear, that by no way, neither by the Divine Law, nor by the Common Law of this Realm, nor yet by the Canon or Civil, that the Children descended of the said Queen and Duke, can be capable of the Crown by their Birth.  
But touching the other Parte, they allege in favour of the Lady Katherine, King Henry the Eight his Will, by which they say she is left as Heir. Which may be as plainly and easily answered; For it is as certain that King Henry should have had no Authority or Power to dispose of the Crown by Will, if by Parliament it had not been given him. And therefore as much as the Force and authority of the Parliament doth extend unto, so much might he do, and no more. And the words of the same Statute, though they be general, they may not, for all that, be so largely taken or understandid, as they may be stretched unto: For who will say, that by those words, there is Power or Faculty given to appoint or give the Crown to eny Person, that according to the Law and Dignity of this Realm, is not meet or capable of the same? As unto a Turk, 
☜  an Infidele, an infamous or opprobrious Person, to a Fool, a Madman, or generally to eny kind of such Person; as of the which, if special mention had been made, it is likely that the Parliament would never have consented or agreid thereunto: as at the making of the same Statute, if eny had gone about to have pennyd it in this sort; that such should succeed and enjoy the Crown, as K. Henry, either by his Letters patents, or  by his last Will, signed with his most gracious Hand, had named, what parsons soever they had been, although they were infamous, mad, impious, or such other before rehearsed: it is not likely that in this manner or form the Parliament would have allowed or passed such a Statute. And that, that is not likely they would have consented unto by words in such sort specially expressed, It is not to be thought, or understandid, that such Persons should be capable and fit for that Calling, & omni exceptione majores. And it is plain and notorious (as is beforesayd) that to be borne in Adultery, or of eny other unlawful sort or match, is reputid and taken a Spot, and that a great one, not only by the Laws of Man, but also by the Laws of God, 
(p) Sapien. 3, & 4. Deut. 2, 3.  and so unworthy and unfit, are such to be thought capable of the Crown, that in all States, where they use to give or grant eny Signories, Titles, or Liberties in Fee, as Baronyes, Erleshippes, Markeshippes, and such other, the Bastards are never thought worthy to be admitted unto the Succession, although that they be made legitimate. But they must specially be ablyd unto the succession of the Fee by the Prince. 
(q) Bartol. & Bald. in l. eam quam. C. de fidei come.  And if they cannot inherit, or be capable of their Titles and Honours, which are not, nor cannot be compared unto a Royal Dignity, how should they be thought worthy or capable of a Crown? And that, that is said of Bastards, is to be understandid also of those that pretendith the Succession as Heirs of Bastards. And since this Realm maketh no less esteem of the Honour and Dignity of the same, than eny other Nation doth of theirs, it is not likely that specially they would grant unto the King Power or authority, to give or leave the Crown to eny Person not legitimately borne, or to their Children, or to eny such Person, upon whose Birth and Proceed there might grow such strife, dispute, or contention, according to the saying of Cesar, and example of other a little before remembryd. And since it is not likely that the Parliament would have condiscendid specially unto it, it followith, and we must conclude, that such a Grant cannot be comprehended by general words.  
But though he had Power or Authority to dispose of the Crown, to the Heirs of the Lady Francies, and the Lady Eleanor, it is true yet notwithstanding he could not do that, but with the Condition and Form, that by Power of the Parliament was given him, that is, either by his Letters patents, under the Great Seal of England, or else by his last Will, signed with his most Gracious Hand.  
By Letters patents without doubt he hath not done it, and so of the Will is the Controversy. But being able to make a sufficient and perfect Will, to all other intentes and purposes, either in putting to his Hand, or else in not putting to his Hand; yet if the King have made his Will, without putting unto his Hand (as there be Witness sufficient, and some of those that subscribed the same Testament, in that behalf can so truly and plainly testify, that he hath, as there is no such Cause left therefore either of such doubt, or  of such conferring, or comparing the Prothocall with the Sign or Stamp, as those that have set forth these Books would seem to make; than it is plain and manifest that he hath not done it to this purpose, according to the form and manner prescribed unto him by the Statute. And every Act or Deed that is done without the Form prescribed by Law, is insufficient, 
(r) L. 1. in pr. ff. de stipula. l. traditionibus. C. de pac. l. 1. C. de pred. cur. lib. 10.  as well according to th' Exposition and Rules of the Civil Law, as else by th' Exposition and Rules of the Common Law of this Realm: for according to the Civil Law it is plain, and so taken, though the Matters they entreat of be in favourable Causes; yet the lack of Form is no ways borne withal or excused. 
(s) L. cum hi. §. si praetor. ff. de transa. Bal. cons. 324. volu. 20.  And much less heerin, considering the Form requyrid by the Statute, is compiled with so many great, good, important and probable Reasons: For the Succession of the Crown being a Cause of such great weight, and in which there was so great occasion to doubt so many hassardes of indirect or subtle dealing, they had good cause to prescribe such a Manner and Form to make the Will by, as whereby they had least occasion to fear or suspect eny counterfetinge, confuse, or sinister behaviour in the same. And so, according to the Civil Law, in that Testament that they call a Solemn Testament, in the which there is required many Circumstances; if eny of those do lack, the Testament, or Will, is of no force or valour. 
(t) Justin. de testa. & lege jube. C. ibidem.  Besides, according to the same Law, all Statutes, or Agreements made, that taketh away, or correctith eny thing of or from the Course or Body of the Law, is reputed and taken as odious, and aught to be taken strictly, even according to the Letter as the word standeth. And this Statute whereof we now speak, is such a One: For where the Succession of the Crown should have gone whither the Common Law had appointed or directid it, as unto the next by the Statute of 35 of Henry the Eighth; K. Henry had Authority to leve it to whom he listed. And therefore this Statute is to be interpretid strictly and precisely as the word giveth: That is, that King Henry only by his Letters patents, under the Great Seal of England, or  by his last Will, signed with his most gracious Hand, might name whom he would to the Succession of the Crown, and not otherwise. And likewise by the Common Law of this Realm, the Statute is most plainly a direct abridgement of the same, by reason it taketh from the Common Law, the natural limitation of th' Inheritance of the Crown, and appointith it owte of the Rule of the Law, to the Order and Limitation of King Henry; being in this respect authorized but as a private Person. And it is in some degree a Penal Law, for it taketh the Title of a Kingdom from those that by the Common Law have a Right, and maketh, in point of execution, a Subject of a Prince, and contrariwise a Prince of a Subject; which is not only penal, as having respect to the loss of their Title to the Crown, if it should so hap, as God forbid; but also it is so penal, that if such ill Chance should unfortunately befall, it maketh Traitors of those that will claim their Inheritance, although their intent were but to try their Titles. And it is a Learning by the Common Laws of England, that long hath been so receyvid, that in every such case as eny of these happen, no Exposition is to be allowed; but the Law willeth us to cleve to the Letter, without eny further wresting thereof, than the Letter naturally and strictly will reach unto. So that if it be not a strict observation of the Letter, according to his natural intent, in any of these cases the Common Law allowith it not. And the rather the Law is precise herein, for that it is a new Statute, which seldom are taken by equity in eny point, because they are all pennyd at large. As for Example; I will remember one or twoe, which may suffice to such as be learned, to search for other of like effect, whereof there are not a few. In Anno 1. of King Edward the 6 th', there was a Statute made, That if eny were condemned for the stealing of Horses and Mares, they should lose their Clergy; and because the words Horses and Mares were the plural nombre; it was taken not to extend to one Horse, or to one Mare. And so for that cause a new Statute was made, Anno 2. of the same K. that made like Law for stealing one Horse, or one Mare. And the chief cause of this was, because it is a Penal Statute, in taking from a Man that, whereby his Life might be savid. In K. Richard the 3ds Time, there was a Statute made to Auctorize Cest a que use to enter upon his Feoffees, and make Feoffementes. And it was in question, in Anno 9 of H. the 7 th', if he made a Letter of Attorney, whether this were good by the Statute, and left therefore a doubtful question, by reason the Statute giveth authority only, which must in all points be observed. And there is a great deal more colour to make that Feoffement good, being by Letter of Attorney, then to make this Will to this purpose good, not signed with the Kings own Hand: For if eny other put his Hand thereunto, and not the King himself, than it is signed with an other Hand, and not the King's Hand. And if I give Authority to my Executors to sell my Lands, and say no further; then, if they sell the same by Writing, or without Writing, it is sufficient; but if I add these words, That they shall sell my Lands, so that they do it by Writing, signed with their proper Hands; if now they sell the same, and th' one cause the Residue, in all their presence, to write all their Names, as though every one had severally subscribed; I hold it no question, but this Sale is not good; for they must pursue their Authority strictlye, and otherwise it is of no effect: And considering, as is partly before remembered, how great a matter it was to commit such a Trust, it were a great lack and slander to the whole Parliament, to think that they would condescend to the committing of so high and weighty a Confidence, as whereof the whole Estate and Weale of the Realm should depend, but that they did foresee that their do therein should not be blinded by a Writing signed with a Stamp, 
The same thing was urged by Lethington the Secretary of Scotland, in a Letter to Sir Will. Cecil. Appendix to the 2d Vol. of the Hist. of the Ref. F. 269.  which might be put unto, either when the King was void of Memory, or else when he was deceassid; as indeed it after happened, as most manifestly appeeryd by open declaration made in Parliament by the late L. Paget, and others, that King Henry did not sign it with his own Hand, as it is plain and probable enough by the Pardon obteynid for one William Clerk, for putting the Stamp unto the said Will after the King was departed: and who doubtith but if his meaning had been such, so to have disposed of the Crown, but that he would have put this matter out of doubt, by signifying the same with his own proper Hand.  
And touching the two chief Examples that are brought forth, the one of the 21 and 33 of K. H. th' Eight, whereby K. H. was authorized to give his Royal Assent to Acts of Parliament, by his Letters patents, and so forth: and th' other, for that Queen Mary omittyd the style that was appointed by Parliament, in 35 of H. th' Eight, in her Parliament Writts, how little they make to the matter every Man may judge: For the Statutes of 21, and 33 of H. 8. were only made in affirmance of the Common Law, and such a Royal Assent would suffice, by Letters Patents without eny assurance thereof by the Sign. And this Statute was but to put such matter out of question; for if the Common Law had been such before, there is no doubt but that he must have signed every Patent with his proper Hand; and so these Cases are no way like. And touching the seconde, if the Statute that conteynith the King's Style be well consyderid, there would be made thereof no such Collection. For the same apoyntith a punishment to such Subjects as of purpose depryve the K. of the Realm, of that Style. But there is no doubt, but the Writts that wanted the Style, were in Law sufficient, and the Parties that made the same, punishable. So that these Examples cannot be wrestid to serve eny whit for the purpose.  
And where there is made a great matter by reason the Will was inrollid in the Chancery, and Constats thereof made under the Broad Seal, and the Legacies thereof in all points performed. To that may be answered; That all that is therein affirmed may easily be confessed, and yet it proovith nothing to th'intent applied; for it was his Will is ever he condescendid thereunto, though he did never sign it with his Stamp, nor with his Hand, and a good and a perfect Will to all Intents and Purposes, whereof he had by Common Law Authority to make his Will of.  
But it is not, or cannot be the more a perfect Will to this respect or purpose, unless he did execute the authority appointed by the Statute of, 35 of H. 8. as is before remembered. Since then the Duke had a Wife living, when he married the French Queen, and by the Statute there is nothing to be Claymid, unless K. Henry had passed eny things either by his Letters patents under the Broad Seal of England, or else by his last Will signed with his most gracious Hand: And that it is true, that he had a Wife lyvinge when he married the French Queen; that so if it were requisite, or hereafter may be, there might be avouchid more than one, with much other matter touching that point of Illegitimation and inability, as well in things passed, as also in things present: And that most certainly there was never either eny such Letters patents passed under the great Seal of England, nor yet eny such Will signed with his most gracious Hand, as sufficient Witnesses yet living can well testify. These two matters touching the legitimation and validity of the Will in that behaulf, of eny indifferent Person, I trust, may be accepted as fully and truly answered.  
And thus (loving Reader) have I uttered and laid before the these cases as they ar. And whom would it not move to commpassion, to behold the state of these things? or whose English Heart would it not grieve, even to every part of it, to found any such Books countenanced, or account made of such Bastardy slips (as appeerith by those Opinions and Books, spread) to inherit so noble a Realm, our most dear and natural Country? as though it were either so infortunate, so cursed of God, or else so fare from Mercy, that such should be fit for the same, without eny colour of eny just Title, to plague it with most infamous Dissension, War, and all other Confusion, and so to bring it to utter ruin and destruction; then those to whom of right it ought, both by the Law of God and Man most justly to belong unto. What is he that esteemith or tendrith the prosperity of the Country in the favour of God, or the good fame or fortune of the World, that would seek to exalt unto the Government thereof such infamous and spottyd titles, with which is linked always such wrath of God, and th'effect thereof, with such continual strife and contention; before the unstaynid true and perfect Inheritors appointed by him, and by his Laws, to set forth his Glory: and by whose Justice such are always prosperyd and defended: to their own honour, and the great weal and safety of their Subjects, as long as they remain in his fear, and obedient unto his Laws and Ordinances. But what might be said further: If those in great face and show of great zeal and justice, and in great authority, hath so much neglected their Duties, and so much preferred their own Ambitions and corrupt Desires, before the Honour and Service of the Realm, as such have not sticked to further these spottyd and coulerid Titles, and also to encourage other to fall unto the same. What a case is this, that such so placyd, should go about to extol such motions of Dishonour and ruin of their natural Country, and yet remain with their Calling in so great countenance of honour for their Good and faithful Service. O England, blame thou not the inferior sort so much, that doth but receyve these things as it is ministryd unto them, by whose credit and persuasion they may be easily abused. But seek thou to decifer and discover such Abusers, as have more regard to maintain theimselfes, by whose overthrow, or what wrong so ever it be, then to proceed dirertly to thy Service, either to the Honour of God, Author and Favourer of all Truth, or else to thy Weal, prosperity, and quietness. And I exhort the, and exhort the again, not to suffer thyself to be led and carried away with eny such foul injurious Persuasion, either of ambitious Abuser, or such other corrupt or unadvised Person. For such foul injurious and false persuasions are apt to no other end, but to serve Sedition, Discord, and Dissension in the, and overthrow also all those that dealith with them. And how hard and perilous it is to obtain a Crown by eny injust or sinister Title, and how much harder the things gotten, it hath been to continue and keep the same, we may daily see and learn in dyvers Histories of sundry places by such like Fortunes, and of the in that of K. H. 4. H. the 5. and H. the 6. who after they had withholden the Crown by wrong, with the loss of many a Manne's Life, two discentes, wherein passed forty Years and more; at last were overthrown and quite confoundid, and it restored to King Edward the Fourth, that rightly requyrd and lawfully obteynid the same. Compare these together, and consider what multitude of Friends such continuance in possession was like to make, and of what fame and worthiness the Princes were, and yet that the 3 d. and last could not enjoy the same, all that notwithstanding. And it may be supposed; that there is few so simple, so fare from reason, or so affectionate, but may think that K. H. the 6 was much more abler to defend so long a continued Possession, than the Lady K. or eny coming of the French Queen is able both to gain the like, and afterwards to keep it. By which, and such other Examples, we may call to mind, that God doth not favour those that doth usurp with eny injust or indirect Title against his Will and Ordinance. And what greater mishap, discomfort, or Misery can hap to eny, then after the liftinge up to such a degree, or th' attaininge of eny such desire, in a moment to lose all, and to be cast down to utter confusion, both they and all their Friends for ever. Consider, for the love of God, the Honour of your Country, the Surety and Quietness of your Friends and Neighbours, Kinsmen and dear Country-folkes! remember the threats pronouncyd of God against all Injustice, and call to remembrance where about you go, ye that study and endeavour yourselves to set forth these false and deceyvable Titles in the part or favour of eny; and behold, that instead of the shadow of your undewe Desire, to the great hazard and peril of the tranquil and peaceable state of your most dear Friends, and natural Country, that you do but procure both to such as how would seem to favour, and also unto yourselves, such danger, grief and sorrow, with such ill and adverse Fortune, as your most bitter and deadly Enemies could no way wish you greater.  
And to conclude, thus much is due to th'Answer of the Books abroad, with th'advancement of the Lady Mary the French Queen's Issue, and setting forth of these Cases of Bastady, before you: that after these matters thus manifestyd, there should ensue of such Errors the less inconvenience, and that ye might thereby hereafter the better judge what were in these cases the fittest, both for the honour of God, and the Weal, prosperity, and quietness of the whole Realm. But thou, O England, are, by the Grace and great Mercy of God, under the Government of our most Gracious and Prudent Queen, who hath the same tender and loving care of the Weal-public, that the most careful and loving Mothers have not greater for the Weal & Safety of their most dear and best-belovyd Children; of the which there may be daily seen most apparent and manifest Examples. Her majesty having governid thee, with the noble assistance of her Counsel, so many Years, without manifest Danger, and great peril of Civil War, and most miserable slaghter (as the case yet standeth) it is not to be thought, but that the Flood of Blood (from which God defend thee) that otherwise might be shed, doth continually flow before her Highness' pitiful and most merciful Eyes. And that her Majesty tarrieth but some good tide, most carefully to provided for the same, as may be possible. Which it may please God to grant unto her Highness, for th'Honer of Him, and the great benefit of the whole Realm, with most convenyent speed. Amen.  
20. Martii 1565.  
God save Queen Elizabeth.   

REFLECTIONS ON Bishop Overall's CONVOCATION-BOOK, M.DC.VI. CONCERNING THE GOVERNMENT OF GOD's CATHOLIC CHURCH; AND OF THE Kingdoms of the Whole World.  
LONDON: Printed in the Year M.DC.XC.   

Reflections on Bishop Overall's Convocation-Book, 1606. etc.  
IT having been my purpose to consider all Objections of any weight in themselves, or from the Authority of Persons, which should occur to me against the Right of Their Present Majesties, and the Justice of their Undertaking our Deliverance; I ought not to pass by Bishop Overall's Convocation-Book, composed in the time of James I. Licenced by the late Bishop of Canterbury, since his disowning this Government, and Printed, as it is to be presumed, with a manifest Intention of undermining it; for every Man may discern, that the Scheme of Government there drawn for the whole World, is contrary to the Foundation of our Present Settlement: but though the Hypothesis is laid together with much Subtlety, nothing but Infallibility can give it Authority; and to me it seems a piece of Presumption, only short of that of the Romish Church. For having made a Collection from Sacred and Profane History, and the Apocryphal Writings, (though of the last they say, 
P. 64.  they mean not to attribute any Canonical Authority unto them, nor to establish any Point of Doctrine) they Canonically condemn, of Errors, all that agree not to their Inferences and Conclusions, upon a state of Fact which at least may be false.  
This single Observation might make it needless to consider more particularly what is there said, especially, when I add this further, That it would make Scripture Examples under the Jewish State, to have the force of Precepts now: which if they have, than the Examples of Jehu in killing wicked King Joram, than his Subject; and of Othniel, 
P. 46. 2 King's Judges.  and Ehud, who rescued the Israelites, the one from the King of Moab, the other from the King of Mesopotamia, who had brought them under Subjection, may serve for Rules in the like Cases. If they do not, then to what purpose do they in other Instances bring Precedents of God's dealing with the Jews, of his choosing and anointing their Kings, and the like?  
With these Antidotes we may venture upon a further taste of the Doctrines.  
The Foundation of all, is the Patriarchal Power of Adam, which they suppose to have been absolutely Monarchical all the World over; that Noah had the like Authority all his Life; but that he divided the whole World among his Three Sons; upon which they conclude, 
P. 84.  That if any Man affirm, 
Can. 35.  That God ever committed the Government of all the World, after Adam 's and Noah 's times, to any one Man to be the sole and visible Monarch of it, he doth greatly err. And another Error which they Canonically condemn, is of them who hold, that Christ doth not allow the distributing of this his one Universal Kingdom, 
Lib: 2. Can. 4. p. 147.  into divers Principalities and Kingdoms, to be Ruled by so many Kings, and Absolute Princes under him.  
Upon the whole, the Fatherly Power was absolute in Adam, then in Noah, then in his Three Sons together, and ever after in all the Princes in the World; 
Can. 2.  and as they affirm in relation to Adam's Monarchical Power, that it risen not from any choice of the People; neither, say they, is it deduced by their Consents naturally from them; 
P. 3.  Which is meant of the Powers which now are in the World. And yet, if I mistake not, they elsewhere own, that the Consent of the People may be requisite to the legitimating some Governments, when they justify Mattathias, 
P. 67.  who being moved with the Monstrous Cruelty and Tyranny of Antiochus, made open resistance; the Government of that Tyrant being not then either generally received by Submission, or settled by Continuance: wherein the Consent or Submission of the People is owned to be material. The consequence of which will reach a Prince that Exercises a Power beyond what has been submitted to, or settled.  
But admit their Notion of the Absolute Power of the Father should hold, while the World was but one Family, and the Father might be supposed to be the sole Proprietor; I doubt they cannot advance one step further, without mere Fictions of their own Imaginations, or as vain and uncertain Tradition.  
If we attend to the sacred Text, freed from their imposing Comment, Noah's Sons are by God himself made joint Proprietors with him. 
Gen. 9.1, 2▪  For the Text says, God blessed Noah and his Sons, and said unto them, Be fruitful and multiply, and replenish the earth.  
And the fear of you, and the dread of you, shall be upon every Beast of the earth, and upon every fowl of the air, upon all that moveth upon the earth, and upon all the fishes of the sea, into your hand are they delivered.  
If this Donation had no effect, as to the Sons in the life-time of the Father, neither according to the Patriarchal Scheme, could the younger Sons have any Benefit in the life-time of the Elder; wherefore either here was a joint Propriety in all, and consequently the Distribution must proceed from an express or tacit Consent of the Proprietors; or else they must be beholden to Jewish Tradition, for the establishing their Christian Canon, concerning Government.  
For two things, I must confess, we are obliged to them.  
1. For pathetically describing the unhappiness of the Jews, and how Religion went in those days, 
P. 72.  when the Priests had gotten the Reins into their own Hands.  
2. For observing, That the Pharisees, the most proud and stubborn of the Jewish Sects, 
P. 79.  were the only Men who refused to swear Allegiance to Herod and Caesar; 
Can. 30.  yet they say, If any Man shall affirm, that Jaddus, the Jewish High Priest, having sworn Allegiance to Darius, might have lawfully born Arms against him, he doth greatly err.  
This is in a Canon which they raise from the Fact in Josephus, of Jaddus' refusing to assist Alexander in his Wars, and becoming Tributary to the Macedonians, as he had been to the Persians; and this after Alexander had overthrown Darius, who escaped by Flight. The Jewish High Priest seems to put words into the Mouth of our late Archbishop, returning for answer, That he might not yield thereto, because he had taken an Oath of Allegiance to Darius, which he might not lawfully violate whilst Darius lived.  
Compare this with the next Canon, according to the Analogy of their Doctrine, and see how it provides for the Security of Princes, and Obedience to their Governments.  

Can. 31.  If any Man therefore shall affirm either, That the Jews generally, both Priests and People, were not the Subjects of Alexander, after his Authority was settled amongst them, as they had been before the Subjects of Babylon and Persia; or that they were not all bound to pray for the long Life and Prosperity, both of Alexander, and his Empire, as they had been bound before to pray for the Life and Prosperity of the other said Kings and their Kingdoms, whilst they lived under their Subjection; or consequently, that they might lawfully upon any occasion whatsoever, have offered Violence and Destruction, either to their Persons, or to their Kingdoms, for the long continuance and Prosperity whereof, they were bound to pray; or that, after the Jews were deliverred from their Servitude under the Kings of Syria, and the Government over them, was settled in Mattathias' Posterity, it was lawful for the People upon any occasion to have Rebelled against them, or to have offered Violence to their Persons, He doth greatly err.  
The Justice or Injustice of the War on either side, between Darius and Alexander, are made no part of the question; but here are two Princes, both supposed Absolute, with all Adam's Power over their respective People, staking their Kingdoms upon the chance of Battle; one of them is conquered and runs away; yet, according to our Canonists, the Conqueror is not entitled to the Fatherly or Patriarchal Power over the other's People; but it is suspended, at least, during the Life of the King that was beaten, and the Authority not settled all that while: and if the Monarchy was Hereditary, it may be yet more difficult when to fix the Settlement. If it is admitted to be Settled in the life-time of the ejected and conquered Prince, and that it is a duty to pray for the Life and Prosperity of the Conqueror, and upon no occasion to offer any Violence to his Person or Kingdom; yet, according to these Canonists, they were bound, at least, during the Life of the Conquered Prince, to give no active Assistance to the other, in Person, or Contribution. And thus it might be allowable to mock God Almighty, while they pray for that, to which they will not contribute the means in their Power; or else their Prayers were to have such a mental Reservation, as some have, who pray for King James, while they pray for [The King]. But if they were to pray for Alexander's Prosperity without reserve, one would think it was lawful, at least, to Fight for him against Darius, notwithstanding the Oath of Allegiance taken to Darius, by reason of the Authority which he had lost.  
If any one shall say, That this Convocation-Book was innocently published at this time, let him read the following Canon.  
If any Man therefore shall affirm, 
Can. 28.  either that the Subjects, when they shake off the Yoke of their Obedience to their Sovereigns, and set up a Form of Government among themselves, after their own Humours, do not therein very wickedly, or that it is lawful for any Bordering Kings, through Ambition and Malice, to Invade their Neighbours: Or that the Providence and Goodness of God, in using of Rebellions and Oppressions to execute his justice against any King or Country, doth mitigate, or qualify the Offences of any such Rebels, or Oppressing Kings; or that when any such new Forms of Government, begun by Rebellion, are after thoroughly Settled, the Authority in them is not of God: or that any, who live within the Territories of such new Governments, are not bound to be Subject to God's Authority, which is there executed, but may Rebel against the same: Or that the Jews, either in Egypt, or Babylon, might lawfully for any Cause, have taken Arms against any of those Kings, or have offered any Violence to their Persons, He doth greatly Err.  
If this be taken according to any rational, or so much as probable Account of Government in General, particularly applied to the English Constitution; I see no danger in admitting, that People ought not to throw off the Yoke of Obedience, and set up a Form of Government after their own Humours; and that it is not justifiable in any Bordering King, or Prince, through Ambition and Malice, to Invade his Neighbours. And yet this would not in the least condemn either the People of England, in shaking off a former illegal and arbitary Yoke, while yet they retain the ancient Form, and Fundamental Rights of the Government; or our Present Sovereign in his Heroical Undertaking our Deliverance. But if all Princes are as Absolute as their Notion makes them, the Nation had no Ground of complaint, and His Present Majesty's Expedition would fall under the Imputation of Ambitition, or Malice; 'tis certain, that no just cause could be assigned for it upon their Principles; and yet these would as well condemn our Dissenting Bishops of Disobedience to the Late King, in not complying with the Commands of a Prince, whom this Book would make Absolute.  
And of this, the Archbishop would have done well to have bethought himself, when he gave his Licence for the Church-Militant, to put on this old rusty Armour, which hung up without use for above eighty years, 
Vid. Advertisement, called Anno 1603. continued to 1610.  had been full three, if not not six Years in hammering out, and was brought forth in this Critical Time, to do Wonders for their supposed King of Divine Right, of their making, at least, if not of God's. Whilst the Clergy in that, and following times, Wrote, and Preached for Preferments, and Condemned all Notions which lay in their way to it; it is to be feared, that they incurred the Curse pronounced from more Divine Authority, against him that removes his Neighbour's Landmark. And he that would Model the English Government by those of the East of old, set up and maintained by Confusion, would do well to transplant his Family into Turkey, where he may find one of the truest Patterns of the fancied Patriarchal Government.  
But if that, or the Anticyrae, to which an old Romam would have advised them, be too far for them to Travel in their Canonical Habit; they may take a step into France, where its Monarch assumes and exercises a Power according to their Primitive Stamp.  
Yet the latter part of the foregoing Canon tells you, That you are bound to be subject to God's Authority, even in those new Governments, which are set up after the Humours of the People. So that fully to maintain their Passive Character, even in the Case of Usurpation, and Introducing a new Form, contrary to the Fundamental Constitution, they are bound to sit still, and never to Assist to Restore their Rightful Prince, or ancient Form of Government, but should trust Providence, or rather tempt it to forsake them, to their utter destruction.  
But they who would be led by the Authority of these Canons, to condemn our present Settlement, I hope will learn even from thence to submit to it, and attempt nothing against it; and then I doubt not but there are brave English Men enough to defend it from all Foreign Force.  
FINIS.