AFTER those Great and Glorious Things which His pre­sent Majesty William III. has done for this Nation, had we not made His Government our Choice, as His Prote­ction was our Refuge; the Ingratitude would have been as signal, as our Deliverance has been, thro' His auspici­ous Conduct. And whoever opposes this, may be thought to fight against those Providences and Predictions, which give as it were a Sa­cred Unction, and Designation of His Person, to the Supremacy of Power among us. Yet how plainly soever this seems to have been design'd by Heaven, I must own, That alone will not authorise En­deavors to this End, unless it can be done without Injustice to any: For otherwise we should make God the Author of those Sins of Men, which have often been foretold.

But in order to satisfie those who question what is their Duty at this time, either for Acting or Acquiescing, I shall shew that we have been Grateful without being Unjust, and may chearfully act under the present Government, in sure and certain hope that those great Things which are already come to pass, according to plain Predictions, are the happy Omens and Earnests, of greater yet to come, being equally promis'd. For which end I shall consider,

1. Whether we may not, by comparing the following Predictions, reasonably conclude, That as the Crown of England has been de­stin'd for the late Prince of Orange, the better to qualifie him for the executing God's Purposes for the Benefit of Mankind; so it has been long since foretold?

2. Whether the People of England have not a rightful Power to contribute towards their Accomplishment?

4. Whether that Power has not been duly exercis'd in the present Assembly of Lords and Commons?

Many, I know, despise Prophesies, and laugh at the Observers of those Hand-writings from above; and others, tho' they own that some Beams of Divine Light had visited the dark Ages of the World, before the Sun of Righteousness appeared, and that they were more frequent during its abode upon Earth, and for the two or three first Centuries after: Yet they will have it, that ever since God has kept his Fore­knowledge to himself, without communicating any Notices of it to Nostredamus Natus Anno 1503. Mankind. Be their Opinions as it will, 'tis not unlikely that many, who have been doubtful what Course to steer in their Endeavours for Denatus Anno 1566. the Publick, will attend to these Divine Admonitions.

But that Nostredamus, either thro' Judicial Astrology, or Divine In­spiration, The Edition here chiefly followed, An­no 1568. or both, as himself professes, did foretel many things which have come to pass, must not be denied by any body who reads him; Vid. his Pre­face to his Son. as where he says, That the Senate of London, that is, the Parliament of Cent. 9. 49. [Page] England, or those of it who usurp'd its Name, should put to Death their King: That London should be burnt in Thrice twenty and six, that Cent. 2. 51, 53. is, Sixty six; and that the Plague should not cease till the Fire: Where, according to what himself observes of some of his Predictions, he li­mits the Place, Times, and prefixed Terms, that Men coming after may Vid. Nostreda­mus his Pre­face. see and know, that those Accidents have come to pass as he marked. What he says of the Bastard of England's being half receiv'd, is not more ob­scure, or less verified. Nor does there seem a greater Veil upon what Cent. 3. 80. he says of the West's freeing England, where he in very lively Chara­cters represents the Event of the first and second Attempt there. And as we find those things to have fallen out accordingly, we have great Cent. 1 [...]. 80. 82. 83. Cent. 6. 43. 3. 9. 3. 49. 6. 34. ground to believe, that what he speaks of his native Country France, was from a certain Foresight.

Who can with-hold his Belief from all those Particulars in relation to it, which he speaks not in the least mysteriously? Or can any one doubt, but that this present Juncture bodes it those Ills which he threatens? The Fleet in the West, and the great Appearance there, with His Majesty's stupendious Progress, not without cause, made the Cent. 5. 34. 9. 38. Gazet, Dec. 6. Paris, Dec. 8. Orders are gi­ven for the fortifying with all possi­ble diligence the Town and Citadel of Blay on the Garonne. French King think Danger approaching by Blay. Nor can it be a que­stion, who is meant by the Chief of the British Isle, or the Great Cent. 9. 38. 9. 64. 10. 7. Aemathien, who is to lead the English to Glorious Enterprises. Can it be other than the Celtique, that is, Belgick Prince, of Trojan, that is, English Blood, of a Cent. 6. 2. German Heart, 5. 24. 5. 87. married to one of Trojan Blood, and in safe Alliance with the Spaniard? I will not be positive, that a King's danger of drinking the Juyce of Orange, unless he yield to an Accommodation, must necessarily be intended of the late King and this; tho' I am very confident no time can be shewn when this could be so properly applied. I cannot but think, that Nostredamus has foretold the Fate of Cent. 6. 7. 10. 56. 5. 18. 5. 4. 4. 22. 4. 75. 1. 13. 1. 35. 2. 78. 2. 38. 5. 4. James the Second; the 8. 58. 10. 26. Question for the Kingdom between this Prince and the reputed Brother-in-Law; the carrying the Babe into France, the Father's not being able to make good the Title of his Blood, and this Sham's being the occasion of the late Prince's accepting the Crown. And who can doubt, but this King is that Native of Friezland (as one Part of a Country may be taken for the Whole, or other Part of the Whole) to be cbosen here, upon another's having Death given him drop by drop by the Guards? Nor can it be denied, that J. 2. has received his Deaths-wounds, or occa­sion of a lingring Death, in a great measure, from his own Guards. Nor is the Crown more plainly foretold to His Majesty from an Ele­ction, than it is to His Royal Consort by way of Succession, which are both exactly fulfill'd in that happy Partnership in Dignity, while the Regal Power is kept entire to accompany the Marital.

In two Particulars I have taken a Liberty with Nostredamus, which I cannot but think allowable. 1. Where his Words admit of different Senses, if I have not left them in aequilibrio, equally applicable to either, I have determin'd them to that which best agrees with Events: For if he has truly foretold any thing without ambiguity, we are to believe, that in others, he, or the Spirit which dictated to him, in­tended what has fallen out, if the Words will bear it. 2. Whereas the Stanzas of his Predictions are scatter'd up and down, like so many Sybilline Leaves, I have gather'd and sorted them together, according to past Occurrences, or that relation to the future which they seem to [Page] bear; and certain it is, that God's Holy Spirit foresaw all things in their true Order. I must own, that the like Persons and Actions may come upon the Stage more than once; wherefore of many, every bo­dy is left to his own Conjecture; but in others, the Parallel is so exact between Nostredamus his Descriptions, and what has come to pass in the whole or in part, that where a Connection of Events seems to be pointed at, 'twill be as difficult not to entertain warm Expectations of the Accomplishment of the Whole, as to deny that Part is fufilled: And many Personal Characters, tho' given in distant Stanzas, have that mutual Resemblance, that they look like several Parts, or Lineaments at least, of the same Face, and may without blame be drawn to­gether.

Grebner seems rather to give an Account of what he had liv'd to see, than to foretel what lay in the Womb of Time: Who can deny, but A MS. in Tri­nity-Colledge Library in Cambridge, ci­ted in the Fu­ture History of Europe, Ed. An. 1650. and in the Nor­thern Star. Nolo, Nolle, Nullus. that he pointed at the Misfortunes of Charles the First, with the Occa­sion of them, the Generalship of the Earl of Essex, then of Sir Thomas Fairfax? And it is not improbable that the Nullus coming next, might be Nol. Nor can it be a question but the late Prince of Orange, who by the Mother's Side is Grandson to Charles the First, and Son-in-Law to James the Second, is that Person of Charles his Lineage, who was to Land upon the Shore of his Father's Kingdom, with such Forces as His present Majesty had with him: And if this be admitted, I am sure His Reign in his own Right is foretold; for the Prophesie of that Person says, Regnum suum felicissimè administrabit; and since Grebner speaks of one to Reign here after the Knight and the Nullus, it makes it highly proba­ble, that he had a Foreknowledge of the Protectorship of Oliver Cromwel, who was commonly known by the Name of Nol.

David Pareus, one would think, had seen the Person of the Prince of David Pareus natus Anno 1548. obiit Heidelbergae Anno 1622. postquam tri­ennio ante per quietem vidis­set totam ur­bem occulto in­cendio fumi­gantem, &c. Hoffmanni Lex. Orange in a Divine Dream, as he was thought to have seen the City of Heidelburgh in Flames three Years before it hapned: Nor is he singular in calling his Hero a Grecian King; for Nostredamus called his the Aemathien: either resembling him to Caesar, who conquer'd Pompey in Greece, in the Aemathien, or Pharsalian Fields; or else with respect to the future Progress of his Arms as far as Pareus mentions.

Antonius Torquatus, who wrote above Two hundred Years since, looks like an Historian setting forth the great Changes and Occurren­rences in Europe, during the two last Centuries, and not obscurely to describe the present Juncture of Affairs: Nor does his Northern Prince Ant. Torquatus de eversione Europae, Dedi­cated to Mat­thias King of Hungary, Anno 1480. Edit. Anno 1552. seem to he other than the English-Belgick Lion.

2d. As to the rightful Power which this Nation had to contribute to­wards the accomplishing of those Prophecies, which mark the late Prince of Orange for King of England,

Not thinking it worth the while to refute the fond Notion of an Absolute See this excellently well done by my Learned Friend Mr. James Tyrrel, in Patriarcha non Monarcha. Patriarchal Power, descending down from Adam to our Kings, in an unaccountable way; I shall take it for granted, that, as Grot. l. 3. p. 52. Summae potestatis Sub­jectum Commu­ne est Civitas. Vid. Schellium de Jure Imperii, p. 32. Plato [...] definit eum qui judiciorum & magistratuum particeps sit. Grotius has it, the Civitas is the common Subject of Power; this, in the most restrain'd sense, is meant of the People of Legal Interests in the Government, according to the first Institution. Yet if they are entitled to any fort of Magistracy, they become part of his Subjectum proprium, the proper or particular Subject, or Seat of Power: Wherefore I take his Cives to be the same with Pufendorf's ‘ [Page] Quorum coitione & consensu primo civitas coaluit, aut qui in illorum locum successerunt, nempe patres familiâs, By whose Conjunction and Con­sent Sam. Puffend. de Officio homi­nis & Civis, p. 265. the Civil Society first came together, or they who succeeded in to their Rooms, to wit, the Fathérs of Families.’

And the most sensible of them who deny this, as fighting against V. Sacrosanct. regum Majest. their fansied Divine Right of Kingship, own, that the People have in many Cases a Right to design the Person, if not to confer the Power; only these Men will have it, that the Extent of the Power of a King, Potestas de­signativa per­sonae, & collati­va potestatis. as King, is ascertained by God himself; which I must needs say, I could never yet find prov'd with any colour. But to avoid a Dispute needless here, since the Question is not so much of the Extent of Power, as of the Choice of Persons; Whether any Choice is allow­able Nullus interri­tus est reipub­licae naturalis ut hominis. Cicero de Rep. for us, must be determin'd by the fundamental or subsequent Contract, either voluntary or impos'd 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 fit, all Circumstances considered.

And if our Constitution warrants the last, then we may cut the Gordian Knot, and never trouble our selves with Difficulties about a Demise, or Cession from the Government, or Abdication of it; for which way soever the Throne is free from the last Possessor, the Peo­ple will be at liberty to set up the most deserving of the Family, un­less there be subsequent Limitations by a Contract yet in force, between Prince and People, which being dissolv'd, no Agreements take place but such as are among themselves: In which Case, whatever ordinary Rule they have set themselves, they may alter it upon weighty Consi­derations: And that it is lawful for the People of England at this time to renounce their Allegiance sworn to J. 2. and to prefer 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 imply'd in their Submis­sion to a King; but from the very Letter, explain'd by the Practice of the Kingdom, both before the reputed Conquest, and since.

1. 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 Of equitable Reservations. be the Judges; as in all Cases of Necessi­ty, he who is warranted by the Necessity, Note: Vid. Earl of Clarenden's Survey of the Leviathan, p. 86. speaking of a Contract whereby the absolute Power of Mens Lives shall be submitted, &c. He is 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 surely may be as applicable to all that monstrous Power which he gives his Governour, 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 suppos'd to be with the Intention of the Contractor in such Cases. must judge for himself before he acts; tho' whether he acts according to that Warrant or no, may be referr'd to an high­er Examen: but where the last resort is, there must be the Judgment; which of necessary consequence, in these Cases, must needs be by the People, the Question be­ing of their Exercise of their Original Power; and where they have by a gene­ral Concurrence past the final Sentence, in this Case their Voice is as V. Cocceium de Principe, pag. 197. Leges fundamentales regni vel imperii quae vel disertè pact ae sunt cum Principe antequam imperium ineat, ut fit hodie cum impera­tore (quamvis non ad eum modum jura Majestatis possideat quo olim Principes) & plerisque aliis in regnis vel sub ipso regimine a Principe & populo vel ordinibus conduntur, ut est aurea bulla Carol 4. & alia quaedam in imperio Romano-germa­nico vel saltem tacitè reipublicae inesse videntur. the Voice of God, and ought to be submitted to.

[Page] For the direction of their Judgment 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, shall be Bishop Sanderson, Of the Obligation of an Oath; Sanderson de Juramenti ob­ligatione, p. 41. who shews several Exceptions or Conditions, which of Common Right are to be understood before an Oath can oblige; in which I shall not confine my self to the Order in which he places them.

These two last Instances, added to the Consideration of a Legal Vid. Stat. 13 car. 2. c. 1. King, will qualifie the Oath declaring it not lawful, upon any pretence whatsoever, to take Arms against the King, and abhorring the Traiterous 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, under colour of the Vid. infra. King's Commission; 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 V. Grounds and Measures of Submission. Salus populi suprema lex. Vid. Johannis a Felde An­notata ad Grot. c. 3. & 4. Sense of Acts of Parliament seeming to the contrary.

To Bishop Sanderson, I may add Grotius, 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, tho' there is no express Letter of Law for it: As,

[Page] 1. ‘Where the People being yet free, command their future King 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. 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 abandon'd his Authority, or mani­festly Grot. c. 4. p. 86. habet pro dere­licto. 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 derelict.

And he cites three Cases, wherein even Barelay, the most zealous Asserter of Kingly Power, allows Reservations to the People.

1. If the King treats his People with outragious 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: But if no Act which is ineffectual in Law, will justifie the withdrawing Allegiance, then none of the other 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; endeavors to put the Kingdom under another Head than what our Laws establish, Vid. Bellarmine how the Pope hooks in Tem­porals in ordi­ne ad Spiritua­lia. Vid. Leges S. Edwardi. and to that purpose aliens the Dominion: 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 are disarm'd, and the Power which was arm'd for the Protection of the English there, is put into the Hands of the Native Papists; so that it is not likely to be restor'd to its Settlement at home, or dependence upon England, with­out great Expence of Blood and Treasure.

Even the Author of Jovian owns, that the King's Law is his most authoritative Command; and he denies that the Roman Emperour had Jovian, p. 280. Ib. p. 192, 193. 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 wherein the People had Liberty and Property, into such a Go­vernment as the Persian was, and the Turkish now is, &c. Tho' by the Jov. p. 87. Vid. Just. Inst. tit. 2. Roman Lex Regia, which himself takes notice of, the People had trans­ferred all their Power to the Emperor, yet we see the highest Asserter of Imperial Power allows of Reservations. Quum lege re­giâ quae de im­perio ejus lata est populus ei & in eum omne imperium suum & potestatem concedat. Vid. Raevardum de Juris ambiguitatibus. Lib 4. c. 12. de Jure publico.

‘If, says Bishop Bilson, a Prince should go about to subject his Bilson of Chri­stian Subjecti­on, Ed. 1586. p. 279. p. 280. Kingdom to a Foreign Realm, or change the Form of the Common­wealth from Imperie to Tyranny, or neglect the Laws establish'd 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 forepriz'd, [Page] when they first consented to have a King. Where his meaning cannot be restrain'd to express Provisions, excluding such as may be equitably intended. And, not to heap Authorities, with this agrees the Divine Plato, who after he has affirm'd; that the highest Degrees of Punishment Platonis Poli­ticus, f. 299. Ed. Serrani. [...]. belong to those who will misguide a Ship, or prescribe a dangerous new way of Physick, having brought in Socrates asking whether Ma­gistrates ought not to be subject to the like Laws, himself asks, ‘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 chose by the Suffrages of the People, or by Lot, who slighting the Laws, shall for the sake of Lucre, or to gratifie his Lust, not knowing what [...]. is fit, attempt to do things contrary to the Institution:’

This Man, both he and Socrates condemn, as a greater Criminal than those which he had mention'd, whose Crime he aggravates, as 'tis an acting against those Laws, which thro' a long Experience had been or­dain'd by their Counsel and Industry, who had opportunely and duly weighed every thing, and had prevail'd upon the People to submit to them.

2d. To proceed to Positive Law, I shall shew 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 Judgment upon it.

2. That there was, and is, an establish'd Judicature for this, with­out need of recurring to that Equity, which the People are suppos'd to have reserv'd.

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 pleas'd, 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.

1. If the King, not observing his Coronation-Oath in the main, lose the Name of King, then no Man can say that Allegiance continues: But that so it was before the reputed Conquest, appears by the Confes­sor's V. Leges San­cti Edwardi, 17. de Regis Officio. Laws, 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 Wrong­doers, and destroy and wholly ruine them; which unless he does, not so much as the Name of King will remain in him, &c.’ Nec nomen Re­gis in eo consta­bit. Vid. Bracton, l. 2. c. 24. Est enim corona regis facere justitiam & judicium & tenere pacem sine quibus corona consistere non potest nec tenere.

Hoveden shews how this was receiv'd by William 1. Hoveden, f. 604. Rex at (que) 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, &c.’ in substance as above: Which unless he [Page] 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 deriv'd from the Pope of Rome: The Pope Vid. the Case of Rehoboam, inf. in the Quotation out of Lord Cla­rendon. only confirms the Constitution, or gives his Approbation of it, perhaps that the Clergy of those Times might raise no Cavils from a supposed Divine Right. And to shew that this is not only for violating the Rights of the Church, the Confessor's Laws inform us, that Pipin, and Charles his Son, not yet Kings, but Princes under the French King, foolishly wrote to the Pope, asking him, if the Kings of France ought to remain content with the bare Name of King? By whom it was answer'd, They are to be called Kings, who watch over, defend, and rule God's Church and Lambert. Qui vigilanter de­fendunt & re­gunt Ecclesiam Dei & popu­lum ejus. his People, &c. Hoveden's Transcriber gives the same in substance; but, thro' a miserable mistake in Chronology, will have it, that the Letter was wrote 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; That he is to do all things in his Kingdom according to Law, and by the Judgment of the Proceres, or Barons of the Realm; and these things he is to swear before he is Crown'd. Barones Majo­res & Mino­res.

By the Coronation-Oaths before the reputed Conquest and since, all agreeing in Substance, every King was to promise the People three Vita Aelfredi, f. 62. Ego tria promitto populo Christiano me­isque subditis, &c. things.

• 1. That God's Church, and all the People in the Kingdom, shall en­joy true
  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 Judgments.

And 'tis observable, That Bracton, who wrote in the time of H. 3. Bracton, lib. 3. c. 9. transcribes that very Formulary, or rather Abridgment of the Oath, which was taken by the Saxon Kings. In Bracton's time, 'tis certain, the Oath was more explicit, tho' 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 shews the King's Oath to be his part of a binding Contract, it being an Agree­ment with the People, while they had power to chuse. With Bra­cton agrees Fleta, and both inform us, that in their days there was no Fleta, lib. 1. c. 17. 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.

The Mirrour at least puts this Contract out of dispute; shewing the Mirror, p. 8. 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 [Page] others his Subjects.’ And what that Right and Justice was in the last result, the Confessor's Laws explain, when they shew, that he may lose Vid. Seld. Spicel. ad Ead­merum f. 171. Dissert. ad Fle­tam, f. 519. Hoved f. 608. Leges H. 1. confirming St. Edward's Laws, cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum. Vid. Mat. Par. f. 243. Barones petierunt de Rege Johanne quasdam libertates & leges Regis Edwardi, f. 244. partim in carta regis Henrici scripta sunt partimque ex legibus Regis Edwardi antiquis excerpta sunt. the Name of King. These Laws were not only receiv'd by William 1. and in the Codex of the Laws of H. 1. but were the Laws which in the early Contests which the Barons had with their encroaching Kings, they always urg'd to have maintain'd; and that their Sanction might not be question'd, the Observance of them was made part of the Co­ronation-Oath, till some Archbishops, careful only of their Clerical Rights, provided for no more of those Laws than concerned them.

By that Oath which is upon Record, and in ancient Prints, the King Vid. Rushw. 1. v. f. 200. Coronation of C. 1. Sir, says the Archbi­shop, Will you grant and keep, and by your Oath confirm to the People of Eng­land, the Laws and Customs to them gran­ted by the Kings of Eng­land, your Lawful and Religious Predecessors, namely, the Laws, Customs, and Franchises granted to the Clergy by the glorious King St. Edward, your Predecessor? V. Rot. Claus. 1 R. 2. n. 44. Magna Carta Ed. cum priv. Anno 1558. Juramentum Regis quando coronatur. Spelman's Glos. tit. Fidelitas, f. 271. 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's taking this Oath, they were to be ask'd if they would consent to have him their King, and Leige-lord? Which is the Peoples part of the Contract; and thus the Contract becomes mutual. To which purpose the Learned Sir Henry Spelman cites Cujacius, the great Civilian, to shew, 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.

And with Cujacius agrees the no less judicious Civilian Pufendorf. Sam. Puf. de Interregnis, p. 274. Quando in regem con­fertur imperi­um est mutua juris translatio, seu reciproca promissio. ‘When, says he, the Power is conferr'd upon a King, there is a mutual Translation of Right, and a reciprocal Promise.’

If it be objected, That tho' this was at the beginning a Contract with a Free People, it ceas'd to be so from the time of the Conquest: I answer;

1. Till there be a Consent and Agreement to some Terms of Go­verning Vid. Templum Pacis, p. 767. Deditio est pa­ctus quo belle 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: & compositum sive conditionatum, quando alterius quidem potestati quis sese subjicit, sed sub conditionibus quibus aut singuli sibi consulunt, aut toti universitati. So Textoris Synopsis jurifgentium, p. 129. Victoria vel pactione restricta est vel absoluta; specie priori non plus juris victor acquirit, quam ei pacto fuit concessum. and Subjection, 'twill be difficult, if possible, to prove any Right in the Conqueror, but what may be cast off as soon as there is an Opportunity.

2. William 1. was not receiv'd as a Conqueror, but upon a mutual Contract, upon which old Historians say, Foedus pepigit, ‘He made a Sim. Dunelm. f. 195. Hoved. f. 450. 2 Sam. 5. 3. 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.’

His Coronation-Oath was the same with that which was taken by his Lord Claren­don's Survey of the Levia­than, p. 109. & 148, 149. Aequo jure. Saxon Predecessors, except that the Circumstances of that time requir'd an additional Clause for keeping an equal Hand between English and French. 'Tis not to be doubted, but that the Norman Casuists in­form'd him, that this related only to Legal Justice; but that in Matters [Page] of Grace and Favour, he was left at large. How much soever he might have strain'd in this or other Matters, I am sure he was far from acting so arbitrarily 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 body under him enjoy'd, came from the Compact, not from the Breach of Faith.

3. If William 1. did gain the Right of a Conqueror, it was Perso­nal, and he never exacted this for his Heirs, as appears not only by his Vid. infr. Declaration when he came to die, but by the Fealty or Oath of Alle­giance Vid. Leges W. 1. de fide & obsequio er­ga regem. which he required in his Laws.

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.

Thus far the Author of Jovian is in the right; ‘ As in the Oath of Jovian, p. 244. 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 Vid. Dr. Stil­lingfl. Ireni­cum, p. 132, 133. to the People, but what in Justice and Equity he is bound [...]o perform unsworn.’ Upon which account I will yield to Saravias, That in He­reditary Kingdoms the Coronation-Oath confers no new Right; and Saravia de Imperii autho­ritate, f. 221. Grotius de Ju­re Belli & Pa­cis, p. 59. Suc­cessio non est titulus imperii, sed veteris con­tinuatio. 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 Predecessor 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. Lord Claren­don's Survey, p. 74. ‘The Description which Samuel made of the exorbitant Power of Kings, was rather to terrifie 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 challeng'd or assum'd 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 exercis'd toward them; the rash rejection of which, contrary to the Advice of his wisest Counsellors, cost him the greater part of his Dominions; and when Rehoboam would by Arms have reduc'd them to Obedience, God would not suffer him, because he had been in the fault himself.’

One of the Terms, as appears by the Mirrour, was, That the King should suffer Right, or Justice, as well as his Subjects: And St. Edward's Sword, called the Curtein, carried before our Kings at their Coronati­ons, Matth. Paris, Edit. Lond. f. 563. 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. was in the time of H. 3. a known Emblem, and Remembrancer of this: But surely whoever us'd that, or a Judicial Power in such Cases as above, how much soever they continued their Allegiance to the King's Authority, could not be said to retain it to his Person.

2. There was, and is an establish'd Judicature for the great Case in question, as is imply'd by St. Edward's Laws, which suppose some Judge or Judges in the Case; and, investing the Proceres with the Supreme Judicature, with-holds not this from them. However, 'tis certain, the Parliament 9 R. 2. referr'd to a known Statute, when they mind him of an ancient one not long before put in practice; ‘whereby, if Knighton, f. 2683. mean­ing the Case of E. 2. the King, thro' 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 govern'd and regulated by the Rights of the Kingdom, and the Statutes and laudable Ordinances made by the Council of the Lords, and the Peers of the Realm; but shall hea­dily [Page] 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, &c.’ This Law is not now extant, but was not then deny'd; and the Reason why it is not to be found, is very evident, from the Articles against this King some Years after: ‘In the 24th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Knighton, f. 1752. Kingdom to be destroyed and rased, to the great prejudice of the People, and disherison of the Crown of the said Kingdom; and this, as is credibly believ'd, in favour and support of his evil Governance.’

The Mirror tells us, That of right the King must have Companions Mirror, p. 9. to hear and determine in Parliament all Writs and Plaints of Wrong done by the King, &c.

And the Learned Hornius cites the Speculum Saxonicum, of the like Name and Nature with our Mirror; the Author of which last, was of Hornii orbis imperans, p. 196. his own Name: The Saxon Mirror, as he says, was wrote before the Normans came hither.

‘The Justices, or private Persons, says he out of the Speculum, nei­ther Hornius, p. 196. ought nor can dispute of the Acts of Kings; yet the King has Superiors in ruling the People, 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 him, Fleta, lib. 1. cap. 17. Bracton, lib. 3. c. 9. p. 107. seems to correct the Copy, and has it si parcat, ‘If he spare doing Justice;’ to which end, both affirm, that he was created and chosen King: And Bracton himself shews elsewhere, that he means more, by the Reason which he assigns why the King ought to be the least in Ibid. receiving Justice, ‘Lest his Power should remain without Bridle.’This for certain he sufficiently explains, when he says, ‘That no Justices or Bract. lib. 2. c. 16. p. 34. private Persons may dispute of the King's Charters and Acts; but Judgment 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. where Bracton's Rule is received.) But Bracton says, he V. Ryly, Plac. Parl. f. 20. 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, Fleta supra, Superiores. So Mirror, p. 9. Ceux compagni­ons sont ore ap­pelles Comites, & in Latine Comitatus; where he takes in all that come up to Parliament from the Counties. being as it were Companions to the King; and he who has a Companion, has a Master: Therefore if the King act without Bridle, they are bound to bridle him; and Bracton in one place says, In re­ceiving Justice, the King is compar'd 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 to be adjudg'd so by Judges Commissaries, or Commission'd Judges, which the Mirror uses in contradistinction to Judges Ordinary, sitting by an Original Power; yet this does not Vid. Mirror, p. 209. He there says, Suitors are Judges or­dinaries; and 274. speaks of Counties, & les autres Suitors, having Jurisdiction in Causes which the King cannot determine by himself, or by his Judges. in the least interfere with the Judicial Power of the High Court of Parliament; and it may be a question, whether that Maxim, as receiv'd in the Courts of Justice, is ever taken to reach farther than, either in [Page] relation to the Remedies which private Persons may there have against personal Injuries from the King; as where 'tis said, The King cannot So Judge Crook's Argu­ment in Hampden's C. 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 establish'd 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. imprison any Man, because no Action of False Imprisonment will lie against him; or rather because of the ineffectualness in Law of his tortious Acts.

But what the Nation, or its Great Councils have thought of such Acts, will appear by a long Series of Judgments, from time to time past and executed upon some of their Kings.

Long before the reputed Conquest, Sigibert King of the West-Saxons Chronica de Mailros, f. 137. Anno 756. Bromton, f. 770. Congregati sunt Proceres & Populus totius regni & eum providâ deliberatione a regno unanimi consensu omnium expellebant. becoming intolerable by his insolent Actions, was expell'd the King­dom; and Bromton shews, 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.

And eighteen Years after, Alcred, King of the Northanimbrians, that is, Chron. Mailros, f. 138. Anno 774. S. Dunelm. 106. & 107. Consilio & consensu omni­um regiae & familiae ac principum de­stitutus socie­tate exilio im­perii mutavit Majestatem. Northumberland, and other adjacent Counties, was banish'd, and dive­sted of his Soveraignty, by the Counsel and Consent of all his Subjects. 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 depos'd him in twenty eight days.

Twelve Years after they deposed their King Eardulf, and remain'd Mailros. f. 141. Anno 806. Ibid. f. 143. Anno 866. degenerem. Ibid. 144. 872. long without chusing any. Sixty Years after they depos'd their King Osbrich, and chose Ella, who still swerv'd from the Ends of Govern­ment. Six Years after they expell'd their King Egbert. For sixty nine Years the Kings and their People agreed, without coming to any Ex­tremities; but then they renounc'd the Allegiance sworn to King Ed­mund, F. 14 [...]. 941. F. 148. 947. and chose Aulaf King of Norway for their King. Aulaf had not reigned six Years, when they drove him away; and tho' they receiv'd 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 expir'd, and turn'd 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 chusing. But if we are believ'd to receive many Laws and Customs from the Germans, from whom we are more remotely de­riv'd, 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 prepar'd to understand that part of the Compact, whereby the Prince was oblig'd to suffer Right as well as his Subjects; and that if he did not answer [Page] the Ends for which he had been chosen, he was to lose the Name of Vid. Mirror, & Leges S. Edw. King.

Either these Examples, or rather the continual Engagements in War with Foreigners, had such effect, that from this time, to the Entrance of W. 1. excepting the Case of King Edwin, (Nephew to the English Monarch Edred) who was driven out of the Kingdom Anno 957. Vid. Knighton, f. 2312. I find nothing of the like nature: 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: their extraordinary Power had slept but for few Years after the Death of the reputed Conqueror, till the time of King Stephen, the third Successor from W. 1. who after Allegiance sworn to him, had it a while withdrawn Bromton, f. 1031. for Maud the Empress; but the People soon return'd to it again, re­jecting her who was nighest in Blood, because she denied them the Benefit of St. Edward's Laws. This Power of the People to be sure was rous'd by the extravagant Proceedings of King John; upon which the Earls and Barons of England, without the Formality of Summons Mat. Par. Ed. Tig. f. 243. Anno 1214. from the King, give one another notice of meeting; and after a long private Debate, they agreed to wage War against him, and renounce his Allegiance, if he would not confirm their Liberties; and agreed upon another Meeting, for a peremptory Demand; declaring, That if he then refus'd them, they would compel him to Satisfaction, by taking his Castles: Nor were they worse than their words, and their Resolutions had for a while their desir'd Effect, in obtaining a Confir­mation of their Liberties; but the Pope soon absolv'd the King, and encourag'd him to the violation of them, till they stoutly casting off the Authority both of King and Pope, proceeded to the Election of another King, Lewis the Dauphin of France: But the Dauphin assuming Ib. f. 277, 278. a Power not brook'd in the English Government, upon the Death of King John, they set up his Son H. 3. and without any solemn Depo­sing of Lewis, compell'd him to renounce his Pretensions. Henry 288. treading in his Father's steps, had many unhappy Contests with his Barons; and having call'd in numbers of Foreigners, they sent him a solemn Message, That unless he would remove those troublesom Guests, they would all, by a Common Council of the whole Realm, drive him and his wicked Counsellors out of the Kingdom, and would consider of making Mat. Par. f. 373. a new King. Upon this both Sides had recourse to Arms, and neither valued the others Judicial Sentence; but for certain the Sentence threatned H. 3. was executed upon his Grandson E. 2. who was for­mally depos'd in Parliament for his Misgovernment; whose Case, with his next Successor's but one, R. 2. by what I have observ'd before, ap­pear Walsingham, f. 107. Rex dig­nitate regali abdicatur & filius substitui­tur. to have been no Novelties in England. Nor was it long before the like was again put in practice more than once: 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 Publick Grievances: The Crown he was so far from pretending to at first, that himself swore Allegiance Hollingshead, f. 637. to H. 6. in a very particular manner: But having afterwards an Ad­vantage Ibid. f. 639, 640. given, by the Divisions of them who had driven him out of the Land, he in a fortunate Hour, with lucky Omens, as was believ'd, challeng'd the Crown as his Right; upon which there was an Agree­ment A Crown over a Branch of Lights in the House of Commons, and another from the top of Dover-Castle, falling about the same time. Ibid. f. 657. [Page] ratified in Parliament, That H. 6. should enjoy it during his Life, and R. and his Heirs after him. And 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, took upon him the Charge of the Kingdom, as forfeited to him by breach of [...]661. the Covenant establish'd in Parliament. Yet this gave him no sure Set­tlement; for the Popularity of the Earl of Warwick drove him out of [...]5. the Kingdom, without striking a Stroke for it: Upon which H. 6. was again restor'd to his Kingly Power, and Edward was in Parliament declared a Traytor to the Country, and an Ʋsurper of the Realm, the Set­tlement upon R. and his Heirs revok'd, and the Crown entail'd upon 678. H. 6. and his Heirs Males, with Remainders over, to secure against Edward's coming to the Crown: Yet 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 then Edward procures a Confirmation in Parliament, of the Settlement, under which he enjoy'd the Crown. Thus as the Power of the Peo­ple, 693. or Great ones of Interest with them, turn'd the Scales from time to time; so 'twas their Consent which fixt them at last, during the the Life of E. 4.

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 re­quir'd by several Statutes declaring it not lawful, upon any Pretence what­soever, to take Arms against the King; and abhorring the Traiterous Po­sition, Stat. 13 Car. 2. Stat. 2. c. 1. Stat. 13 & 14 Car. 2. c. 3. So c. 4. of taking Arms by his Authority against his Person. And 2.

The Clause in the Statute 12 Car. 2. whereby it is declar'd, That by the undoubted and fundamental Laws of this Kingdom, neither the Peers 15 Car. 2. c. 5. 12 Car. 2. c. 30. 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, hath, or ought to have, any Coercive Power over the Persons of the Kings of this Realm.

I shall not here insist, in answer to the first, 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 Traiterous Acts of single Persons, and the Revolt of a Nation; nor yet upon the Au­thority 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. of the Common Law, whereby a Constable, or other Officer chose by the People, may act without any Authority from the King.

And for the latter, as Coertion is restrain'd 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 vertue of equitable and supposed Reservations; provided a tender Regard to the Person be still observ'd: But if Proceedings to free our selves from his Authority, fall under this Coertion, then I shall offer something which may remove both this and the other from being Objections to what I have above shewn.

To keep to what may equally reach to both Authorities:

[Page] I shall not urge here, That these Statutes being barely Declaratory, Vid. Rot Parl. 39 H. 6. n 18. 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, and at liberty to renounce the Obligations which it has entred into against its Benefit, which is Vid. Cujacium, tom. 4. f. 154. Resp. circum­scripta in inte­grum restituitur perinde ac pupillus vel adolescens, &c. 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. 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, have Sheringham of the King's Su­premacy, p. 41. Authority to make Laws that cannot be alter'd by Posterity, in Mat­ters that concern the Rights both of King and People: For Foun­dations cannot be remov'd, without the Ruine 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 shewn.

However, I am sure I can irrefragably prove to them who will not have a Nation sav'd 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 repeal'd.

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 Prorogu'd or Ad­journ'd, 16 Car. 1. Nota, There was no at­tempt to re­peal this till 16 Car. 2. c. 1. 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 and Sitting of the foregoing Parliament, shall be thenceforth clearly and absolutely dissolv'd. Now, say I, that Parliament which enacted these Laws, had sat beyond that Time; Ergo, &c. These were made in the Parliament next after the Convention which brought in the King, 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 Parliamenti, was dissolv'd by Brook tit. Com­mission, n. 21. Ibid. tit. Offi­cer, n. 25. Vid. Stat. 17 Car. 1. Eve­ry thing or things done or to be done, for the Adjourn­ment, Proro­guing, or Dissolving of this Parliament, contrary to this present Act, shall be utterly void. 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 the First, and so expired An. 1648. by Act in Law.

And perhaps its own breaking up in Confusion before, was in Law Anno 1647. Vid. Hist. of the Civil Wars, f. 207. an Adjournment sine die, working a Dissolution; by either of which that Parliament was dissolv'd more than three Years before the Parlia­ment which made the Statute in question; which Parliament assembled An. 1661. and was ipso facto dissolv'd 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 [Page] 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 C. 2. Anno 1660. was not summon'd by the King's Writs; consequently, the Parliament 1661. having 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 dispens'd with the Letter of the Triennial Act, as to this Particular:

1. They who would plead these Statutes, cannot urge it, since they will not allow of greater Necessity to authorize the Maintaining and Restoring the Constitution: But surely however Necessity might sup­port other 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 continue 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 qualifie 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 shewn 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 endeavour'd to alter the Fundamental Contract, was ipso facto dissolv'd before such Attempt: However, since the Question is not about a Coercive Power over Kings, but barely concerning Allegiance to them, whenever he who was King cea­ses Q [...]m aufertur [...] juramen­ti, juramentum cessat ratione eventus; qui c [...]sus est eorum qui juraverunt se obedituros Domino aut Principi alicui, qui postea cessat esse talis. Amesius de Juramento, lib 4. c. 22. to be so, either by the Act of God, or the Law, the Obligation of Allegiance necessarily determines, as the subject Matter of it fails.

But lest the Liberty allow'd in extraordinary Cases, be us'd 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, this has the Right of Judging what the Subject is to perform, and has also a Sam. Pufendorf de Interregnis, p. 272. Nota. Power conferr'd of compelling him to the 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, unless he either wholly abdicate the Care of the Government, or omnem reipub­lic [...] cutam ab­ [...]averit. [...] malo. become of an hostile mind towards his People, or manifestly, with evil Intention, depart from those Rules of Governing, upon the Ob­servance of which, as upon a Condition, the Subjects have suspended their Allegiance: Which is very easie 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, Swedeland, and Norway, which had anciently three distinct Negatives in the Choice of a King, I shall refer to Krantius, [...] particularly in the remarkable Story of their King Erick, who was adopted Son of the Three Kingdoms, Anno 1411. he having provok'd [Page] his People, by the Outrages of his Officers and Soldiers, he was oppos'd with Force by one Engelbert, a Danish Nobleman, transmitted down to Posterity with the fair Character of engaging in the Publick Cause, neither out of love of Rule, nor greediness of Gain, but meer com­passion to an opprest People. This so generous an Undertaking was so justly Popular, that Eric, not able to stem the Tide, withdrew from Denmark, the Place of his usual Residence, to Swedeland: But Engel­bert's Noble Cause found so few Opposers there also, that the King, as a Pattern to J. 2. privately ran away, and recommended his Nephew in Krantius, f. 188. his stead; but they told him plainly, he was made King by Adoption, and had no Right to surrogate another: Him (there not being the in­consistency of a different Religion between the Head and Members of the same Body) they would have receiv'd again upon Terms; but he refusing, the Three Kingdoms unanimously chose one of another Family.

For the Authority of the People even in France, no longer since than the time of Lewis 11. Hottoman's Francogallia gives a large Anno 1460. Hottoman. Francogal. c. 23. De memorabili auctoritate concilii in Regem Ludovicum 11. Proof.

Nor is the Emperor of Germany more exempt; for the Golden Bull of C. 4. provides who shall sit as Judge or High-Steward, when he comes to be Impeach'd: And by that, the Palatine of the Rhine has the like Power with that which, Matthew Paris says, the Earl of Che­ster Mat. Par. sup. f. 563. had here, as Count Palatine: Nor is this in the Empire founded meerly upon that Bull; for the Bull it self says, Sicut ex consuetudine introductum dicitur, "As 'tis said to have been introduc'd by Custom. And Freherus gives an Instance of this before that Bull, in the Case Freherus de Orig. Palati­narum, f. 113, 119, 120. Gunteri Thule­marii Octovi­rat. c. 18. of King Albert, whom they threatned to depose, for killing his Leige­lord Adolphus.

With Freherus agrees Gunterus, in his Octoviratus, who says, 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 Sentence of the Electoral College: And he cites several Authors to prove the like Office or Power to have been in divers Kingdoms and Ibid. p. 251. Principalities; and names France, England, Arragon, Spain, Denmark, Poland, Bohemia, &c. And for France, Loyseau in effect shews this Power to have belong'd to their Maior du Palais; for he owns the Loyseau du droits des Of­fices, Ed. Anno 1610. f. 409. Ibid. f. 410. Power to have been greater than the Roman Praefect of the Palace had; and yet he cites the Words of the Emperor Trajan, giving his Praefect a naked Sword, which he enjoyn'd him to use against him, 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. This Office he supposes to have been split into the Conestable's, Chancellor's, Treasurer's, and the Grand Maistre's du France, or Count du Palais, which he seems to resemble to an High Steward with us.

And I meet with an old English Author, who affirms almost such a Treatise of Politick Pow­er, Ed. Anno 1556. Power as is above-mention'd, to have belonged to the High-Conestable of England: His Words are these.

‘As God hath ordained Magistrates to hear and determine private Matters, and to punish their Vices; so also will he that the Magistrates [Page] Doings be call'd to account and reck'ning, and their Vices corrected and punished, by the Body of the whole Congregation, or Common­wealth: As it is manifest by the Memory 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.’

3. There has been no Hereditary Right to the Crown of England by Proximity of Blood, from the Fundamental Contract; but the People have had a Latitude for the setting up whom of the Blood they pleas'd, upon the determination of the Interest of any particular Person, except where there has been a Settlement of the Crown in force.

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, destroys the Form of Government; for that depends upon a Vid. Sam. Pu­fendorf. Disser­tationes de In­terregnis, p. 267. Post de­cretum circa formam regi­minis novo pa­cto opus erit, quando constituuntur ille vel illi in quem vel in quos regimen caetûs confertur. prior Contract, which the People entred into among themselves: And, that by vertue of this, to avoid endless Emulations, Kings have general­ly, from the first Erection of the English Monarchy, been chosen out of the same Family, appears beyond contradiction.

I know some talk of a Birthright and Inheritance in the Crown, which Jovian, p. 78. is not founded in the Statutes, but on the Original Custom and Constitution of the English Government, which is an Hereditary Monarchy, according Ib. Preface. to proximity of Blood.

But I would desire all Men of this Opinion, impartially to weigh these following Particulars.

1. There was very anciently an Act made in a General Convention At Calcuth, Anno 789. Spel. Con. vol. 1. f. 291. of all England, in Conventu Pananglico, That their Kings should be ele­cted by the Clergy, & senioribus populi, and the Elders of the Peo­ple; that is, such as were Members in their Great Councils, or Witena Gemots, Assemblies of sage or wise Men. This, tho it was long before the reputed Conquest, yet was never repeal'd or cut off by the Sword, nay, seems receiv'd with the Confessor's Laws, as included in them: Which leads to another Head.

2. The Confessor's Law receiv'd by William 1. and continued down­ward, as the noblest Transcript of the Common Law, shews, that the Kings of England are elected, and the End for which they are chosen by the People: After the same manner do the ancient Historians and Lawyers commonly express Accessions to the Throne, and seem indu­striously to mind Kings of it, that, according to the Caution given the Jewish King, their hearts be not lifted up above their Brethren. Deut. 17. v. 20.

3. According to the Usage from before the reputed Conquest down­wards, the People are ask'd, whether they are content to have such a Man King?

4. The most Absolute of the English Monarchs never believ'd, that their Children had a Right to the Crown, except the People consented that they should succeed; as appears by King Alfred's Will, and the Aelfredi Test. Append. ad e­jus Vitam, f. 195. Et mecum tota nobilitas West-Saxonicae gentis consentiunt, quod me opertet dimittere eos ita liberos, sicut in homine cogitatio ipsius consistit. [Page] Death-bed Declaration of William 1. And therefore some of our Kings, against whom there has been no pretence of better Title in any Camd. Brit. f. 104. de W. 1. Neminem Ang­lici regni con­stituo H [...]re­dem, sed ater­no conditori cu­jus sum, & in cujus manu sunt omnia, illud commendo: non enim tantum decus haeredi­tario jure pos­sedi, &c. particular Person or Family, when they stood upon good Terms with their People, have often prevail'd with them, in their Lives-time, to secure the Succession to their Eldest Sons; and H. 2. to prevent ha­zarding the Succession, endanger'd himself, by getting his eldest Son Crown'd, himself living: But as the going no farther than the eldest, argues, that they look'd on that as a Favour; the pressing for a Settle­ment on their Issue in any manner, argues, that it was not look'd upon as a clear Point of Right without it.

Of later Times Settlements have been made in Tail, which tho they were occasion'd by Pretences to Titles, are Records against an Hereditary Monarchy.

5. The Oaths of Allegiance, required of all the Subjects, were never V. Leges W. 1. de Fide, &c. Statuimus eti­am ut omnes liberi homines foedere & sa­cramento af­firment, quod intra & extra regnum Angliae Williel­mo Regi Domi­no suo fideles esse volunt, &c. Leges S. Edw. tit. Greve. Vid. Juramen­tum homagii facti Regi. Prynne's Signal Loialty, p. 274. Poll. Virgil. l. 22. sub ini­tio. extended to Heirs, but were barely Personal, till Settlements of the Crown were obtain'd upon the Quarrels between the Families of York and Lancaster; and tho' H. 4. obtain'd 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 shewn to have been re­quir'd of the Subjects in general, till that 26 H. 8. according to the Limitations of the Statute 25.

6. Even where the People had settled the Crown, they seem'd to intend no more, than to give a Preference before other Pretenders; not but that upon weighty Reasons they might alter it, as appears by Pollydore Virgil, who was never thought to lie on the Peoples side, whatever Evidences for them he may have conceal'd or destroy'd; whose Words of H. 5, to whom the Crown had been limited by Par­liament, may be thus rendred.

‘Prince Henry having buried his Father, causes a Council of Nobles to be conven'd at Westminster; which while they, according to the Nota, Proceres may take in the Nobiles minores. 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 Good-will was never known to have been shewn to any before he was declared King.’

7. As the Practice of the Kingdom is an Evidence of its Right, nu­merous William 2. was elected during the Life of his eldest Bro­ther, who was set aside by the English, against whom he had discovered Ill-will, 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 crown'd in the Life-time of his eldest Brother's Son, Prince Arthur: So was his Son H. 3. in the Life-time of Elenor, 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, cam [...] in under an Agreement made in Parliament between his Father, who liv'd not to have the Benefit of it, and H. 6. his Son. E. 5. was never crown'd. R. 3. who set him aside, was of the youn­ger House. H. 7. who vanquish'd 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, enjoy'd 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. Instances may be produc'd of Choices, not only so called by the 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 shew me any more than Two since the reputed Conquest, of whom it can be affirm'd, with any semblance of [Page] Truth, that they came in otherwise than upon Election, express'd by the Historians of the Time, or imply'd, 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 produc'd, 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, perhaps, one may be struck off; For tho' Walsingham says of E. 1. They recogniz'd him for their Leige-lord, that does not necessarily imply a Recogniti­on Walsingham, f. 1. from a Title prior to their Declaration; for which way soever a King comes in duely, he becomes a Liege-lord, and is so to be recog­niz'd or acknowledg'd; and that the Title was not by this Author suppos'd prior to the Recognition, appears, in that he says, Paterni ho­nor is Walsingham, ib. successorem ordinaverunt, ‘They ordain'd or appointed him Suc­cessor of his Father's Honour.’ And yet his Father, to secure the Sir P. P. Ob­ligation of Oaths, f. 295. 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, He was to be promoted to the Walsingham, Ypod Neustriae, f. 45. Kingdom by Right of Inheritance; yet the very Word promoted shews something that he was to be rais'd to, higher than that Right alone would carry him; which he fully expresses in the Succession of E. 2. which, he says, was not so much by Right of Inheritance, as by the unani­mous Assent of the Peers and Great Men. Which shews, that ordina­rily Walsingham, f. 68. they, respectively, who stood next in Blood, might look for the Crown before another, till the People had by their Choice deter­min'd against them.

But this is farther observable of R. 1. That he was not called King here, but only Duke of Normandy, till he was Crown'd; which, Bromton, f. 1155. So Hoveden, f. 656. 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 releas'd 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 Clergy-men, and others of Repu­tation, with the People into the several Counties, by whose Industry she obtain'd Oaths of Allegiance to her Son and her self, from the People in the County-Courts, as it should seeem; notwithstanding which, the Archbishop charg'd him at his Coronation, not to assume Bromton, f. 1159. the Royal Dignity, unless he firmly resolv'd to perform what he had sworn: To which he answered, That by God's help he would faith­fully observe his Oath. And Hoveden says, That he was Crown'd by the Counsel and Assent of the Archbishops, Bishops, Earls, Barons, and Hoveden, f. 656. 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.

8. The Parliament 11 H. 7. declares, That it is against all Laws, 11 H. 7. c. 1. Reason, and good Conscience, that Subjects should lose or forfeit for doing [Page] 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 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 being built upon the Supposition, That according to the Fundamental Law, the People's Choice gives sufficient Title, perhaps is not vain and illusory, as the Lord Bacon would have it; but argues strongly, Lord Bacon's Hist. of H. 7. f. 145. that the Parliament then thought the Monarchy 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.

To what I have offer'd on this Head, the following are all the Ob­jections of seeming weight which have occurr'd to me.

The Maxim in Law, That the King never dies; or, to use the Object. 1. Finch's Descri­ption of the Common-Law French, Ed. An. 1613. f. 20. b. & 21. a. The same made use of Reflections upon our late and present Proceeding, p. 10. Words of Finch, ‘The Perpetuity which the Law ascribes to him, having perpetual Succession: and he never dies; for in Law it is called the Demise of the King.’

To which I answer, 1. That neither that Book, nor any Authority Answ. there cited, is so ancient as the Settlement of the Crown above ob­serv'd; and that the Death is but a Demise or 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, tho' 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 Interregnum, 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, Dyer, f, 165. may write and begin his Reign the same day that his Progeni­tor or Predecessor dies;’ with which agrees the Lord Anderson. But Anderson, f. 44. He has it, Le Successeur & le Heir; else­where 'tis Heir ou Suc­cesseur. Ib. f. 45. v. 1 E. 6. c. 7. v. 7. Rep. f. 30. Object. 2. that to many intents a King dies in his Politick Capacity, as well as Natural, appears by the discontinuance of Process in Criminal Causes, and such in Civil as was not return'd in the Life of the former King, till kept up by Statute; the determination of Commissions, and the like.

'Tis urg'd, That the Hereditary Right contended for, has not been interrupted by the People's Elections, so oft 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, where the Election of the Peo­ple Brady's Hist of the Succession f. 8, 9. was bound and limited by the Nomination of the Predecessor.

But if he had duely weigh'd the Presidents of this kind, he might have understood, that an Election without a Nomination had full ef­fect, Answ. while a bare Nomination had none; and he might have learnt from Grotius, that among the Germans, from whom we descend, King­doms Grotius de jure Belli & Pacis, lib. 1. p. 60. did not use to pass by Will, and that Wills were but Recommen­dations to People's Choice, but not Dispositions.

I find it urg'd, That as anciently as the time of E. 3. the Realm Object. 3. declar'd, ‘That they would not consent to any thing in Parliament, Vid. Debates about Depo­sing. to the disherison of the King and his Heirs, or the Crown where­unto they were sworn.’

[Page] If any Colour of Evidence can be produc'd, that the Subjects of England, so early as that, swore Allegiance to the King and his Heirs, Answ. this were to the purpose. Indeed, I find, that before this, 24 E. 1. Knighton, f. 2482. 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 setled, 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 referr'd to, when they urge the Obligation of their Oath to the King and his Heirs, or the Crown, which appears farther, not only from the old Oath of Allegiance, to which Leges Sancti Edwardi. tit. Greve. Conjurati fratres ad defendendum regnum, &c. & honores illius omni fidelitare cum eo servare. So Leges W. 1. tit. De fide & obsequio erga Regem. Quod Willielmo Domino suo fideles esse volunt & hono­res illius, &c. defendere. Bracton, lib. 2. cap. 29. they must needs have reference, whereby they are bound to defend the Rights of tbe 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.’ With Bracton Vid. Sir P. P. As Successors are Heirs, so Dr. Brady tells us, Gloss. f. 18. That Prepossessor, one that possest the Land be­fore the present Possessor, without any relation to Blood or Kindred, is An­cestor in Doomsday, and in the Writ de morte An­tecessoris. agrees the Civil Law, Haeredis significatione omnis significari Successores credendum est, etsi verbis non sunt expressi; ‘By Heirs we are to believe all Successors to be signified, altho' not exprest 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, Sir P. P. Obligation of Oaths, f. 302. 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. Prynne Fol. 298. by proximity of Succession in regard of Line. Fol. 300.

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, Sir P. P. f. 297. Littleton, tit. Homage, sect. 85. Salve la Foy que jeo doy a nostre Signior le Roy; where there is not a word of Heirs; but he tells us, that Littleton cites 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 Controversie, we have the Resolution of all the Judges in B. R. in the time of Q. Eliz. on Popham's Rep. f. 16. & 17. my side. King R. 3. had granted certain Priviledges to the Bur­gesses of Glocester, with a Saving to himself and his Heirs; and it was agreed by all the Justices, ‘That altho' 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 adjudg'd to reach the Queen, who, 'tis well known, was not Heir to R. 3.

The great Objection is, That in the Contests for the Crown between Object. 4. the Families of York and Lancaster, each Side pretended Title by Proxi­mity [Page] of Blood; and as either prevail'd, their Right was acknowledg'd to be according to God's Law, Man's Law, and the Law of Nature. To Rot. Parl. 1 E. 4. which I answer:

As appears in the very Objection, this was apply'd to those who had no such Right of Proximity, as well as those who had; and thus Answ. '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 Judgments, no Deposing or Resignation, what­ever be the Inducement, can be of any force.

Whence 'tis plain, that all these are but Complements 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, as the Great Fortescue has it, All Laws Fortescue de laudibus Le­gum Angl. c. 3. Jovian, p. 253. publish'd by Men have their Authority from God; and 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 Humane Crea­tures, or Ordinances of Men, may be altered, as they were made? And tho' it may seem strange to some, yet I may with great Autho­rity affirm, That when the People had determin'd the Right on the Side of R. 3. he was King as much according to God's Law, as E. 4. For Pufendorf holds, ‘That where the Question is, what Degree, Pufendorf de Interregnis, p. 288. Quod si dubitatur qui gradus aut quae linea sit, potior declarata vo­luntas populi finem liti im­ponet, &c. or what Line is best, the declared Will of the People determines the Controversie; since every one is presum'd 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 is there due by God's Law, Man's Law, and the Law of Nature: Certain it is, that the Statute 11 H. 7. above-mention'd, 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 exprest to be against God's Law, Man's Law, and the Law of Nature: By the necessary Con­sequence 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 in pos­session of the Crown and Kingdom; for if there be a King regnant in possession, altho he be Rex de facto, and not de jure, yet he is Seignior le Roy within the Purview of this Stature; 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 Kind de jure, that is not also de facto, is void. 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.

[Page] ‘Provided always, That no Person or Persons shall take any Benefit or Advantage by this Act, which shall hereafter decline from his or 11 H. 7. c. 1. their said Allegiance.’

Where said Allegiance, shews 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 Traytors to the present Power, they shall suffer for the former Service, as Traytors 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 restor'd, which would be far from answering the apparent End of that Clause which is to keep Men in Obedience to him who has the Pow­er of punishing the Disobedient. Wherefore the plain meaning must 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.

4. I think I have, with due regard to all colourable Objections, made That the Peo­ple of Eng­land were lately restor'd to a qualified Choice. it appear, That Allegiance may in some Cases be withdrawn from one who had been King, till the occasion of such Withdrawing, or Judg­ment 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 impowred to determine concerning it, I have likewise shewn, and ex­emplified, by the Custom of the Kingdom, both before the reputed Conquest, and since: And have occasionally proved, That tho' 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: Or, to use the Words of Bishop Sanderson, ‘Dignity varies not with the change of Persons: Sanderson de Obligatione Juramenti, Lect. 4. Whence if any Subject or Soldier swear Fidelity 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 controversie, 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 shewn to be their Ori­ginal Right.

The Lords and Commons having a Judicial Power in this Matter, as hath been prov'd 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 [Page] Car. 2.) which makes it Treason to conspire to Depose a King, or actu­ally Vid. Sir Robert Atkins his ex­cellent De­fence of the Lord Russel, f. 22, 23. to Depose him. But this is of the Nature of those Common-Law Treasons, which are left to the Judgment 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 Proceedings 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 past 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 enquire into. All People must own, that [...], if they in the least attend to the Constitution of our Go­vernme [...] and how apparently he by his general Dispensations usurp'd a Legislative Power, for the Destruction of the Protestant Religion and Ci­vil Rights; which we were in a fair way of being Dragoon'd out of by a Standing Army, by degrees to have been wholly 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 flow'd upon us and our Religion; Who can deny, but this alone would have been enough to set him aside? The going out of the Realm, without appointing a Custos, was anciently Rastal's En­tries, tit. Re­attachment, f. 544. b. Re­sum' &c. quia extra Regnum Angliae Progres. fecimus, nullo locum tenente nostrum sive Custode Regni relicto, & e. in our Law a Discontinuance of Justice.

And the Lord Hobart gives it as a Maxim, Cessa regnare si non vis ju­dicare; Hobart. f. 155. "Cease to Reign, if you will not Judge, or maintain the Course of Justice.

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 Ved. Leges 12 Tab. de Magi­strat. one's Country, and going into such an one as France is to our Nation, tho' it has been in too strict Alliance with our Kings.

The Digests say,

‘A Deserter has no Right of being restor'd to his Country: For he Digest. lib. 49. tit. 15. de Cap­tivis & Postli­liminio. Trans­fugae nullum postliminium est, nam qui malo Consilio. & Proditoris animo patriam reliquit, hosti­um numero ha­bendus est, &c. 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. who left his Country with an evil and treacherous Mind, is to be held as an Enemy, &c. 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.

[Page] '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.

But I would desire such to read the Rescript or Law of Theodosius and Valentinian, wherein they thus declare: ‘'Tis an Expression suita­table Imp. Theod. & Valentin. Caes. ad Volusianum Praefectum Praetorio. Digna vox est Majestate reg­nantis, Legibus ad ligatum se principem pro­fiteri. Adeo de auctoritate ju­ris nostra pendet auctoritas: & reverâ majus imperio est submittere Legibus principatum. Et oraculo praesentis Edicti, quod nobis licere non patimur aliis indicamus. 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 to our selves.’

That J. 2. had before his Departure broken the Fundamental Laws, and that now he not only ceases to Protect, but is 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 shewn of the mutual Contract, conti­nued down from the first Erection of the Monarchy here, ought they to deny, that he has thereby broken the Original Contract which bound 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 requir'd by any Law, and confirm'd 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 prov'd to be with us between Prince and People. Or rather, to use the Words of the Learned Pufendorf,

‘The Obligation is not so much dissolv'd, as broken off, by the Pufendorf de Officio Hominis & Civis, p. 201. 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 perform'd in Contracts, are in the Subsequent by way of Condition. As if it should be said, I will perform, if you perform first.’

This he more fully explains in another Book, where he distinguishes Pufend. Ele­menta Juris­prudentiae, p. 85. & 94. Vid. Puf. supr. de Interregnis, p. 274. 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 conferr'd a Power on any Terms.

Of such Obligations, he says,

‘These, since they have a mutual respect to the things agreed on, Pufend. Ele­menta Juris­prud. 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, &c.’

And in that Book of his, which is counted the Standard of the Law Pufend. de Jure Gentium, p. 1105. of Nations, 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; i. e. to change that Manner V. Grot. de Jure Belli & Pacis, de summitatem habendi pleni­tudine, p. 62. in which he by the Contract enjoys the Power, from less to more Absolute.

[Page] ‘And in his Tract de Interregnis, cited above, he allows of this; Dissertationes de Interreg. p. 272. supra. 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 German Author Knichen less plain; whose Words are, ‘If the Magistrate have absolute and full Majesty, due Subjection Rudolphi Godo­fredi Knichen opus polit. f. 1226. ought by no means to be denied him, tho' he be impious: Nor may another be substituted in his room, upon his being cast out. Much less can a new Form of Government be introduc'd. 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 things contain'd in those Con­tracts, whether Fundamental Laws, or things particularly concerted, (as for Example, the Emperor in our Empire:) They not being ob­serv'd, but studiously, enormously, and obstinately violated; the Hopes of Amendment, after many of the Subjects Prayers and Ad­monitions, plainly vanishing; he may rightfully be remov'd by the States and People, &c. 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.’

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

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 shewn, the Promise to the King himself be Condi­tional, Vid. Brook, tit. Condition, n. 67. and his Interest determines by his Breach of the Condition, 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 O [...]ginal 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 vertue of subsequent Settlements, entirely depending upon the Original Contract, continuing down to their immediate Ancestors respectively; If that Contract be dissolv'd, what can support the Set­tlement? Can the Agreement for the Benefit of a King and his Poste­rity, be suppos'd to be other, than that if he govern them as King, performing the Essentials of the Contract on his part, he and his De­scendents shall enjoy the Crown? Can it be imagin'd, that this was Vid. Lit. c. 5. Estates sur Condition. made for the separate Benefit of the Heir, 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, and having [Page] 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 suppos'd to be with the V. L. Clarendon, cited above in the Margin, his Survey of the Leviathan, p. 86. intention of the Contracter. And Grotius argues against a King's Power of aliening his Kingdom, from hence, that this is not to be prsum'd to have been the Will of the People in conferring the Power. And in another place he says, ‘Right is to be measur'd according to the Will Grot de Jure Belli & Pacis, l. 1. c 3. p. 60. Grot. sup. p. 64. Fortescue. of him from whom the Right arises.’

2. The Power of the King being, as Fortescue has it, and the Au­thorities above plainly evince, a Populo effluxa, ‘deriv'd from the People;’ and the Interest of J. 2. being determined, he yet living; so that there can be no Heir to him, 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 Vid. 11 H. 6. f. 12. b. Rolls Abr. tit. Remainder, f. 415. 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 shew 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 above-mentioned, of which the Lords and Commons mind R. 2. upon his Male-administration, says, That upon putting the King from his Throne, with the Common Assent and Con­sent V. sup. Knigh­ton, f. 2683. of the Nation, for the Causes there exprest, they may set upon the Throne in his stead propinquiorem aliquem de stirpe Regia; ‘some Nota, Not proximum. body of Kin to the King, of the Royal Stock.’ If they were tied to the next, it certainly would have been proximum: Besides, the word aliquem shews a Latitude: And according to this, upon R. the Second's being Deposed, H. 4. claimed the Crown, Als descendit be ryght Rot. Parl. 1 H. 4. n. 54. Lyne of the Blode comeynge fro the gude Lord Henry Therde. 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; Ib-n. 55. therefore the Lords and Commons drew up an Instrument purporting their Election.

4. But admit, none of the foregoing Arguments were enough to shew, That upon James the Second's Abdication, or at least losing his In­terest in the Government, the People of England were restor'd 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.

Henry the Fourth, Fifth, and Sixth, if we believe Dr. Brady, held Brady's Hist of the Successi­on, f. 25. the Crown by Usurpation: Yet the earliest Settlement of the Crown farther than the first Son, was in the time of H. 4. Nor, as I shall shew, was the Crown enjoy'd by J. 2. under better Title than they had. H. 5. and 6. came in under an Entail of the Crown 7 H. 4. confirmed 8. The Misgovernment of H. 6. having given occasion to Vid. Rot. Parl. 8 H. 4. n. 60. Richard Duke of York, of the Blood-Royal and Elder House, to as­sert the Peoples Rights, not his own; Henry and the Duke, with the Consent of the Lords and Commons, came to an Agreement in Par­liament, That Richard and his Heirs should enjoy the Crown after the [Page] Death of Henry. And tho' here the word Heirs is mention'd without restraint, yet considering that it is the first time that ever the Crown was settled so far, I know not whether it is not to be taken with Go­mezius Gomezius de Qualitatibus Contractuum, f. 319. Hotto­manni Com. de Verbis Juris usus-fructus est jus alienis re­bus utendi fru­endi, salvâ re­rum substantiâ, Emphyteusis. 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, ought to be restrain'd to those only; because the Nature or Quality of the thing granted, ought to be attended to.’

After the Death of Richard Duke of York, his Son Edward the Fourth, as I before observ'd, took the Government upon him, as for­feited by breach of the Covenant establish'd in Parliament. However, H. 6. being set up again ten Years after, gets that Settlement by which E. 4. was to have benefit, to be revok'd, and the Crown to be en­tail'd on his Issue; the Remainder to the Duke of Clarence, younger Son to the Duke of York. Afterwards E. 4. having success, revives 13 E. 4. the Settlement 39 H. 6. Only that he attaints H. 6. with others of his Party. Which Attainder was remov'd 1 H. 7. and declar'd contrary to Rot. Parl. 1 H. 7. n, 16. H. 7. Son to Edmund Earl of Richmond, Brother by Mother's Side to H. 6. due Allegiance, and all due Order. And not only the Attainder, but that Act of Parliament it self was revok'd. So that hitherto there had been no Title in the Heirs of Richard Duke of York, or of Edward the Fourth, but what was deriv'd under the Settlement of Henry 6. call'd an Usurper, and Edward the Fourth's Treason depriv'd him of the Benefit even of that Settlement.

H. 7. indeed married the eldest Daughter of E. 4. But before that Marriage, having conquer'd Rich. 3. he claim'd the Crown: As his Words in Parliament were, Tam per justum titulum haereditantiae, quàm Rot. Parl. 1 H. 7. per verum Dei judicium, in tribuendo sibi victoriam de inimico suo; ‘As well by just Title of Inheritance, as by the true Judgment of God, in giving him the Victory over his Enemy.’

If it be ask'd, how he could have a Right of Inheritance, when the Daughter of E. 4. and his own Mother were alive? It seems in the Judgment 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 Vid. Rot. Parl. 1 H. 7. n. 16. supra. reviv'd by his successful Treason; and that this was lost, even before the Revival was destroy'd 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, who speaking of the Kingdom of Israel, says, Concludere licet, regnum Israe­lis, Vindiciae con­tra Tyrânnos, Ed. Amsteloda­mi, p. 110. si stirpem 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 receiv'd him for King, but it was enacted by the Authority of the then Parliament, That the Crowns of the Rot. Parl. 1 H. 7. 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.

[Page] H. 8. enjoy'd 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 deriv'd, was Re­peal'd: And had it stood in force, yet it would not have made the Title more Sacred; unless it can be shewn, 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. procur'd several Settlements of the Crown, according as Love or Jealousie prevail'd in him. In the 25th of his Reign 'twas settled 25 H. 8. c. 22. upon himself, and his Heirs Males of his Body, lawfully begotten on Queen Anne, &c. declaring the Marriage with Queen Katherin unlaw­ful; Remainder to the Lady Elizabeth, Remainder to his own Right Heirs. 26 H. 8. an Oath was enjoyn'd for that purpose. 28 H. 8. the 26 H. 8. c. 2. 28 H. 8. c. 7. two former Acts 25 & 26. are Repeal'd, the Illegitimation of Mary Daughter to Queen Katherine is confirmed; the like declared of Eli­zabeth Daughter to Queen Anne; and the Crown entail'd 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, 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 Vid. 28 H. 8. sup. & 35 H. 8. made in the King's Life, who should Rule and Govern this Realm; for lack of such Heirs, as in those Acts is mention'd, that then this Realm should be destitute of a Lawful Governour. E. 6. succeeded according to both those Acts: After him, Queen Mary, by the last: who, at her coming to the Crown, could not be look'd on as of the Right Line, because of the Acts which Illegitimated her: 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, than (as Dr. Brady would have it) to de­clare the Succession to be in Inheritance by Right of Blood. Whatever Hist. of Suc­cession, f. 34. might be the secret Intention, 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. tho' there is no direct Settlement, it is made Treason to compass the Deprivation or Destruction of K. P. during 1 & 2 P. M. c. 9. the Queen's Life; or of the Queen, or of the Heirs of her Body law­fully begotten. Queen Elizabeth succeeded by vertue of the Limita­tion 1 Eliz. c. 3. 35 H. 8. and tho Bastardiz'd by the Statutes 28 H. 8. and 1 M. yet her first Parliament declare, 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 di­spos'd of, according to the Power given by the Statute 28, and re­peated 35 H. 8. And the 25, whereby 'twas limited in Remainder to the Heirs of H. 8. being repeal'd upon the Deaths of E. 6. and the Queens, [Page] Mary and Elizabeth without Issue; there remaining no Heirs of the Body of H. 8. in the Judgment of two Parliaments, the Realm was destitute of a Lawful Governour.

Indeed, according to the Act of Recognition, 1 J. 1. the Crown 1 Jac. 1. c. 1. 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. 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 Mans self in a Sir Robert Filmer's Pow­er of Kings, f. 1. Matter depending of his own Will. There can be no Obligation which taketh State from the meer Will of him that promises the same.’

Wherefore, to apply this Rule: Since the People that is now, in Vid. Pufend. de Interregn. sup. p. 288, 289. 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 entred 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, of necessity the People must have had Power of Chusing, or there could have been no lawful Government since Queen Elizabeth's time, when was the last Settlement, except what is now made.

2. The Declarations of two Parliaments, 28 and 35 H. 8. fully bal­lance 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 [Page] they did not. Or, 2. Perhaps they might question, whether they were oblig'd to receive for Kings the Issue of Foreign Princes, since there was no means of being sufficiently inform'd 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 25 E. 3. Stat. 2. 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 pass'd the Seas by the King's License. But if our Kings or Queens should upon any occasion be in Foreign Parts, 'tis to be presum'd, that they would have with them a Retinue subject to our Laws, who might attest the Birth of their Children, and be punish'd if they swear flalsly.

Wherefore, 25 E. 3. 'tis declar'd to be the Law of the Crown, That Stat. 25 E. 3. sup. the Children of the Kings of England, ENFANTZ DES ROYS, as the Record has it, in whatever Parts they be born, be able, and ought 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 shewn, 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: As where Land is given to a Man and his Children, who can 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. 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 Childrens Children born in the same House, it could never take-in the Children of Daughters, forisfamiliated by Vid. Sir James Dalrimple's Institutions of the Laws of Scotland, f. 52. Marriage; nay, nor 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, who had been born beyond Sea; and yet Henry was by the Mothers Side in the Fourth De­gree Vid. Dugdale's Bar. 2. Vol. Beaumont. 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 tho' 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 look'd on as out of the Grandfather's Family, according to the Rule in Just. Inst. lib. 1. tit. 9. So Bracton, lib. 1. cap. 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. Civil Law, transcribed by our Bracton, ‘They who are born of your Daughter, are not in your power: ’And Privileges derogating from Publick Ʋtility, were never thought to reach them, as a Learned [Page] 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 propaga­ted by her.’ And Cujacius makes this difference between Liberi, and Vid. Cujac. ad tit. de verbo­rum significa­tione, p. 147. & 230. 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 restrain'd 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.

4. 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 Crown'd first; since, as I have shewn, the Crown confers no Power distinct from what is deriv'd either from an immediate or prior Choice.

3d. The Power having upon the Dissolution of the Contract be­tween That the Peo­ple of Eng­land have du­ly exercis'd their Power, in setling the Government. J. 2. and his former Subjects, return'd to the People of Legal Interests in the Government, according to the Constitution, there can be no doubt with unbyass'd 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 the to 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 Supreme Law, the Publick Safety, must needs supply the want of Form, nor can be justly controverted, till the Lawfulness of the End is disprov'd: 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 strict Application of the Statute above-mentioned, 16 Car. 1. nay, the Attempt of Re­pealing that Statute, being in a Parliament which had been actually dissolv'd 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 observ'd, as when there was a King, and a possibility of having that Form?

Others suppose, the Consequence of a Dissolution of this Contract to be a meer Commonwealth, or absolute Anarchy, wherein every body has an equal Share in the Government, not only Landed Men, and others with whom the Ballance of the Power has rested by the Constitution, but Copy-holders, Servants, and the very Foeces Romuli, which would not only make a quiet Election impracticable, but bring [Page] in a deplorable Confusion. But this Dilemma they think not to be answer'd:

Either the old Form, as under a Monarch, remains, or it does not: Object. If it does, the late Action of the Lords and Commons was irregular: If it does not, all the People are restor'd to their Original Rights, and all the Laws which fetter'd them are gone.

Here we must distinguish upon the word Form; for if it be taken of the Form of Proceedings or Administration, 'tis no Consequence Answ. 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 Hobbs his Le­viathan. Children has left a Kingdom, or renounces it, the Subjects return to their absolute and natural Liberty.’ Whom the Learned Pufendorf thus answers.

‘They who have once come together into a Civil Society, and sub­jected Pufendorf de Interregnis, p. 282. themselves to a King, since they have made that the Seat of their Fortunes, cannot be presum'd 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 conferr'd on a King by Right of Inheritance, or that he may dispose of the Succession at pleasure, it is to be understood to be at least tacitly agreed among them, That presently upon the Death of a King they shall meet together, and that in the Place where the King fix'd 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 Pub­lick Good.’

The Author of a late Paper in relation to these Times, has this Pas­sage, not to be neglected.

‘All Power is originally or fundamentally in the People, formally in A Letter to a Friend, advi­sing in this exttaordinary Juncture, &c. 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 dissolv'd.’

Hence he would argue a necessity of having a larger Representative of the People, that the Convention may be truly National. But had this Ingenious Person observ'd Pufendorf's two distinct Contracts, by the Vid. Pufend, de Interregnis, p. 267. sup. in Marg. 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 compleat, all Men who impartially weigh the former Proofs of Elections not without a righful Power, must needs think the last duely 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 occasion'd by Rebellion, 49 H. 3. But I must do [Page] 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, but such only to whom the King has thought fit to direct Writs of Sum­mons: Brady's first Edit. p. 227. See this pro­ved upon him, Pref. to Jus Anglorum. Yet, I dare say, no Man of sense, who has read that Controver­sie, believes him. But were his Assertion 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 (tho' I take them to be earlier settled for Cities and Burrough, than for the Freeholders in the Counties) yet 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 present, perso­nally or representatively, and their own Consent takes away all pre­tence of Error.

If it be said, That they ought to have been summon'd 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. Mr. Prynne gives se­veral Prynne's Ani­madversions on 4 Inst. f. 10. Instances, as 49 H. 3. 4 E. 3. 1 H. 4. 28 Eliz. and says, he omits other Precedents of Parliaments summon'd within Forty days after the Writs of Summons bear date, upon extraordinary Occasions of Publick Safety and Concernment, which could not conveniently admit so long delay. And Sir Robert Cotton, being a strict Adherer to Form, upon an Emer­gency Vid. Rushw. 1 vol. f. 470. 3 Car. [...]. advis'd, 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 shews, That the Germans, Tacit. de Mo­ribus German. Coeunt nisi quid fortuitum & subitum cer­tis diebus, &c. V. Leges S. Ed. tit. Greve. In capite Kal. Maii. Jus Angl. c. 7. Vid. sup. from whom we descend, had theirs at certain Days, unless when some extraordinary Matter hapned. And by the Confessor's Laws, receiv'd by W. 1. and continu'd downwards by the Coronation-Oaths requir'd, to this very day, the general Folcmot ought to be held annually, with­out any formal Summons, upon May-day.

And the Statute 16 Car. 1. which our rigid Formallists must own to be in force, has wholly taken away the necessity of Writs of Summons from a King.

The Assembly of Lords and Commons held Anno 1660. was sum­mon'd 12 Car. 2. c. 1. 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, &c.

[Page] Tho' this seems parallel to the present Case, yet in truth ours is the strongest: For the King then having been only King de jure, no Au­thority could be receiv'd from him, nor could any Act of his be regarded in Law, thro' defect either of Jurisdiction or Proof, if not both: Accordingly, as not only the Reason of the thing, but the Lord Coke shews, a Pardon from one barely King de jure, is of no force. 3 Inst. f. 7. sup. in Marg. Besides, the Keepers were an upstart Power, imposing themselves upon the People without any formal Consent, at least not so fully receiv'd to the publick Administration as our present King was, who at the Request of a very large Representative of the People, pursu'd the late Method of calling a more Solemn Assembly. If that Anno 1660. had Power, acting with the King, to declare it self a Parliament; why had not this, in defect of a King, to declare or chuse one?

Sure I am, prudent Antiquity regarded not so much the Person calling, or the End for which a General Council was call'd, as who were present; that Notice which they comply'd with, being always sufficiently formal.

Wherefore a General Ecclesiastical Council being summon'd in the Reign Anno 1127. Vid. Spelm. Con. 2. vol. f. 1. De modo ha­bendi Synodos in Angliâ pri­maevis tempo­ribus. of H. 1. by William Archb. of Canterb. thither, according to the known Law of those Times, the Laity came: I cannot say, they sate there; for the Numbers were so great, as they commonly were at such As­semblies before the Free-holders agreed to Representations, that hap­py was the Man, whatever his Quality, who could have a convenient Standing. After the Ecclesiastical Matters were over in the Council I Vid. Jan. Ang. fac. nov. and Jus Angl. Flor. Wigorn. f. 663. Con­fluxerant quo­que illuc mag­nae multitudi­nes Clericorum, Laicorum, tam divitum, quam mediocrum & factus est conventus grandis & inestimabilis. Quaedam determinata, quaedam dilata, quae­dam propter nimium aestuantis turbae tumultum ab audientiâ judicantium profliga [...]a, &c. Rex igitur cum inter haec Londo­niae moraretur auditis concilii gestis consensum praebuit & confirmavit Statuta concilii a Willielmo Cant. &c. celebrati. now speak of, they fell upon Secular: Some they determin'd, some they adjourn'd, some the Judges of the Poll or Voices could make nothing of, by reason of the great Crowd and Din. And when the King heard their Determinations, and confirm'd them, they had full Legal Force.

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 restor'd to their Original Right, who can doubt, but they had an absolute Power over Forms?

That they were not call'd to a Parliament, I hope will not be an Objection, since the Word is much less ancient than such Assemblies: And since the Cives, the Common Subject of the National Power, have Vid. sup. made their Determination, this, according to that Positive Law which I have shewn above, ought to quiet the Debate, and command a Sub­mission: And yet were there not positive Law on their side, the equi­table Reservations before observ'd might be sufficient Warrant.

Nor is the Civil Law wanting to enforce this Matter.

One Barbarius, a run-away 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? Ʋlpian decides in the affirmative; and Hottoman upon that Question says, "The Suffrages of the People have the force of a Hottom. Illust. Quaest. 17. Law.

[Page] The Reasons given for the Resolution, as they are in Gotofred, who best reconciles the various Readings, will greatly strengthen our Case.

He tells us, That tho' the Question there is only concerning a Ser­vant, Gotofredus de Electione Ma­gistratû inha­bilis per erro­rem factâ, p. 6. the Reason of it reaches to Emperors, and all Secular and Ec­clesiastical Dignities. The Reasons why Ʋlpian 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 if thro' 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, sustain'd; 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, ‘Magistrates and Judges con­stituted by Tyrants, the Manner of Judgments being kept, and things Gotofred sup. p. 23. done according to Form of Law, or transacted according to their Wills, have been held good. And yet in this Case the Defect seems greater, being the Power is collated by one inhabil, and so a sub­stantial sponte trans­acta. Form is wanting: Wherefore in this part there seems no difference between the Inhability of the Elector, or the Elected.’

And if ever the Common Utility or Publick 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 French Forces, by this time been re­duc'd 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.

I cannot think that I have followed Truth too nigh at the Heels for Conclusion. my Safety in the present Government, which I take to be built upon this stable Foundation; and that Protestant fondly 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, tho' I have not urg'd them with that strength which might have been by a better Pen. Perhaps what I have offer'd may give another No­tion of the Succession, than what many have imbib'd, who will think I violate what is Sacred. I have not urg'd the Illegitimation of the Children of E. 4. by Richard the Third's Parliament, because, tho' he [Page] was a King de facto, if the Character fix'd 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 produc'd, will occasion some Conside­ration, till they are either evaded, or disprov'd. And being all Legal Objections are answer'd, nor can any Scruple of Conscience be here pretended, without, much less against Law; What hinders, but that we should exert our utmost, in the Service of that Lawful Govern­ment from which we receive Protection, and may expect Rewards for Vertue, at least the Defence of it, if we do not strengthen the Hands of them who have hitherto made that the greatest Crime? Wherefore, for us now to look back, after we have set our Hands to the Plough, would be not only to distrust that Providence which has given such a wonderful Encouragement to Perseverance; but were enough to tarnish all our Actions with the Imputation of ma­king the Publick Interest a Pretence for carrying on our own. '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 gilded over his Name by what he has got by the Ruine of his Country, or may have insinuated himself again into Opportunities to betray it: Let it be enough for him, how much soever slighted and contemn'd while he lives, to embalm his Memory, by a steadiness to Truth, and the Interest of his Country, not to be shaken by cross Accidents to himself, or the Publick Cause. Let him still act uniformly, while others live in perpetual Contradictions or Varieties; their Actions and their Principles thwarting themselves, or each other, or varying with the State-Weathercocks. Let them vio­late the Laws, out of Loyalty; unchurch all Protestant Churches but their own, out of Zeal against Popery; narrow the Terms of Com­munion, to spread the National Religion; confine all Advantages to that Communion, for the Publick Good; make their King the Head of a Party, to strengthen his Hands against his Enemies; deliver up Char­ters, and retake them gelt of their Noblest 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 transferr'd to a Regent, not to be reassum'd when he should think fit to return; grant that he has bro­ken the Contract, yet contend that he retains that Power which he receiv'd from the Contract; or that, tho' the Contract is 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 [Page] him, and that in his Life-time; invite a Deliverer, yet reject the De­liverance.

Upon such Principles as these, I find an eminent English Prelate cen­sur'd Letter to B. L. as a Deserter of his Church, for going about, according to his great Learning, to justifie the Oaths taken to the present Government: And thus the Cause of J. 2. is made the Cause of the Church of Eng­land. Certain it is, whatever is now pretended, 'tis more difficult to justifie the taking up, or promoting Arms against a Deliverer, than an Oppressor. And if Arms against the last were lawful, even with the Prospect of involving Thousands in the Miseries of War; much more are they, in Defence of that Power which has restor'd those Liberties which the other invaded, and reassur'd the Publick Peace. And who­ever first engag'd, and now draw back, not only brand themselves for Traitors, but make it evident, that Ambition, Revenge, or some un­generous Design, animated their Undertakings. And as I doubt not but they will meet with their due Reward; perhaps that Success which Nostredamus and others foretel to 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 Victrix causa Diis placuit, sed victa Ca­toni. the Gods: But few are in this Point such Philosophers as Cato.