SECTION I. That from the Norman Conquest, to this present time, there was an Original Compact or Esta­blishment of Laws, by which the Kings of England were to Govern, and the People to be governed.

I Am apt to think it may be want of due consideration of the History, and Constitution of our Government, which makes some wor­thy Persons of the Clergy so stiff in their re­fusal of the Oath of Allegiance to King William, and Queen Mary. Now the great mischief which this unhappy Division may bring upon the Protestant Religion, both at home and abroad, and the vile Imputations which are cast on that great Body of the Clergy which hath taken this Oath, will justi­fie our Endeavours to set this matter before them [Page 2]in the clearest light, and to let others know what hath been done by our Fore-fathers to secure their Laws and Liberties; what Compacts they made with their Kings; how uneasie they were under the Violation of them, and what Conceptions they had touching the Nature and Constitution of the English Government, and touching the Al­legiance due to their Prince. Now in order to these things, let it be observed,

First, Ubi Aldredus Archiepisco­pus, Wulfunus Wigorniensis Episcopus, Cli­to, Eadgerus Comites, Ead­winus & Mor­carus & de Lundoniâ quique Nobiliores, cum multis aliis ad eum venerant, & datis obsidibus illi deditionem fecerunt, fidelitatemque juraverunt, cum quibus & ipse foedus pepigit. Dunelm p. 195. Flor. Wig p. 635. R. Hov. F. 258. That Florence of Worcester, Simeon of Dur­ham, and R. Hoveden expresly say, That William, called the Conqueror, made a League, or Compact with the Arch-Bishops, Bishops, Earls, and Nobles of the Land, who met him at Beorcham.

Secondly, That the aforesaid Authors, with John Brompton, Daniel p. 36. declare, That as the Bishops and Barons of the Realm swore Fealty to him,Ipso Nativita­tis die ab Al­dredo Ebora­censium Ar­chiepiscopo in Westmona­sterio conse­cratus est, ho­norificè prius, ut idem Archi­praesul ab eo exigebat, ante Altare Sancti Petri-Apostoli, coram Clero & populo, jure­jurando promittens se velle Dei Sanctas Ecclesias, & earum Rectores defendere, nec­non & cunctum populum sibi subjectum justè, & Regali providentiâ verè regere, re­ctam legem statuere, & tenere, &c. Flor. Wigorn. p. 634, 635. Dunelm. p. 195. Ho­ved. F. 258. Chron. Joh. Brompt. p. 962. so he reciprocally, being required so to do by the Arch-Bishop of York, made his Personal Oath before the Altar of St. Peter to defend the Holy Church of God, and the Rectors of the same, to govern all the People subject to him justly, to establish equal Laws, and to see-them duly executed.

And when new Commotions were made by the Nobility, and Clergy, upon their Submission, and Oath of Allegiance re-taken, he himself takes his Personal Oath again before Archbishop Lanfranc,Daniel p. 37. and the Lords, for the good of Peace, to observe the An­cient Laws of the Realm, Occurrerunt igitur Angli memorati, ubi post multas discepratio­nes, praesente Archiepiscopo Lanfranco, Rex, pro bono pacis, juravit, tactis Sacro-sanctis Evangeliis, bonas & ap­probatas antiquas Regni leges, quas Sancti & Pii Angliae Reges ejus Antècessores, & maximè Edvardus statuit, inviolabiliter observare, & sic pacificati ad propria laeti re­cesserunt. M. Paris in vitâ 23. Monach. p. 30. established by his Prede­cessors the Kings of England; and especially of Ed­ward the Confessor; and this so pacified the English, that they went joyfully to their own homes.

Thirdly, Matthew of Westminster saith,Et sic revoca­tis multis An­glorum Nobi­libus, foedere cautius cum omnibus con­firmato, Ebo­racum, ubi fuit Danorum re­ceptaculum, potenter cum ibi inventis, expugnavit. A. D. 1069. That when the two Sons of Swain came into England to fight against it, the Conqueror recalling many of the English Nobles, made a League with them, and by their Aid he overcame the Danes. And that this League contained the Grant of their Rights and Liberties, or the Laws of their Coun­try, is evident from what follows in the same Historian, viz. That the Conqueror being thus secu­red, in many things violated his promises, taking from the Churches, and Monasteries in which they lay the Charters, in which the Nobles of England. confided, Jam factus se­curior, in mul­tis promissa violavit, Mo­nasteria totius Angliae perscrutari fecit, & pecuniam simul cum Chartis, in quarum li­bertatibus Nobiles Angliae-confidebant, & quas Rex, in arcto positus, observaturum se juraverat, ab Ecclesiis, ubi in securo positae erant, auferri praecepit violenter. Ibid. p. 226. and to which he had sworn when he was in straits.

Fourthly, R. Hagulstadensis, S. Dunelmensis, R. Hoveden, M. Paris, Henry of Knyghton, and W. [Page 4]of Malmsbury inform us, That Henry the first granted to all the People the Laws of Edward, with the emendations which his Father had made of them, strengthning them with his own Oath, Legem R. Ed­vardi vobis reddo cum aliis emenda­tionibus, qui­bus pater me­us eas emen­davit consilio Baronum suo­rum. R. Ha­gulst. p. 311. Dunelm. p. 225, 226. Hoved. par. 1. p. 268. M. Paris p. 38. Henr. de Knyght. p. 2374. Malms. l. 5. F. 88. Hoc quoque praecipimus, ut omnes habeant, & teneant le­gem Edvardi Regis in omnibus rebus, adauctis iis quas constituimus ad utilitatem An­glorum. Apud Seld. Annot. ad Eadm. p. 192. and the Oath of all his Nobles, that they might not be eluded; And W. Lambard cites this as one of the Laws of W. the Conqueror. This also we command, That all Men have, and keep the Law of King Edward, with the additions we have made to them for the benefit of the English Men.

Fifthly, Postea ad pre­ces communi­tatis Anglo­rum Rex ad­quievit, qui deprecati sunt quatenus per­mitteret sibi leges propri­as, & consue­tudines antiquas habere in quibus vixerant patres eorum, & ipsi in iis nati & nutriti sunt; sc. leges Sancti Edvardi, & ex illo die magna Authoritate veneratae, & per uni­versum Regnum corroboratae, & conservatae sunt prae caeteris Regni legibus, leges R. Ed­vardi. Chron. Eccl. Lichfield apud Seld. ibid. p. 171. The Chronicle of Lichfield doth inform us, That the whole Community of England sued to the Conqueror that he would permit them to have the proper Laws, and ancient Customs, in which their Fa­thers had lived, and under which they were born, and educated, viz. The Laws of St. Edward; And that the King consented to their Petition.

Sixthly, Attuli mecum de Londoniis leges aequissi­mi R. Edvar­di quas domi­nus meus Rex W. Authenti­cas esse, & per­petuas per totum Regnum Angliae inviolabiliter observandas, sub poenis gravissimis, pro­clamârat, & suis justitiariis commendârat, p. 88. Ingulphus his Secretary, saith, That he, under the severest penalties, proclaimed, that the Laws of King Edward should be perpetual, authentical, and be observed inviolably thro' the whole Kingdome of Eng­land, and as such he commended them to his Justices.

Seventhly, R. Hoveden informs us, That he com­manded the Laws of King Edward to be obser­ved in all things: and that in the fourth year of his Reign, by the Counsel of his Barons, W. Rex, quar­to Anno Reg­ni sui, consi­lio Baronum suorum, fecit summoneri per universos consulatus An­gliae, Anglos Nobiles, & Sa­pientes, & suâ lege eruditos, ut eorum & jura & consue­tudines ab ip­sis audiret. E­lecti igitur de singulis totius patriae comitatibus viri duodecim jurejurando confir­marunt primò ut, quoad possent, recto tramite, neque ad dextram ne (que) ad sinistram partem divertentes, legum suarum consuerudinem & Sancita patefacerent. Hoved. par. post. F. 343. he made the No­ble and Wise Men of England to be summoned throughout all the Provinces of England, that he might hear from them, who were skilled in their Law, their Rights and Customs; and that twelve Men were chosen out of every County, who swore, to their power, to tread in a right Path, neither turning to the right hand or to the left, and to make known to him the cu­stom, and the establishments of their Laws. And then he adds the very words contained in the Chronicle of Lichfield.

Now all these things put together seem plainly to conclude an Original Compact or Establishment of Laws, by which the Kings of England were to govern, and the Kingdom to be governed; and the continuance, and renewal of that Establish­ment by our succeeding Kings, Hist. Nov. F. 186. A. 25 H. 8. c. 21. such as Malms­bury stiles our Patriae Leges, and the Statute of Henry the Eighth, the accustomed and ancient Laws of this Realm originally established.

Add to this then that Rule of Grotius, Successio non est titulus Im­perii, qui Im­perio formam assignat, sed veteris continuatio, jus enim ab electione coeptum, familiae succedendo con­tinuatur, quare quantum prima electio tribuit, tantum defert successio. De jure Bell & Pac. l. 1. c. 3. Sect. 10. That Succession is not a Title of Empire which gives the form to it, but is only a continuation of the old Ti­tle. [Page 6]The Right begun by the Election of the Family, being continued by Succession. And thence, with him, we may reasonably infer, that Succession only brings down to Kings what the first Election gave, and makes them only Kings according to the Compact, and with the Conditions agreed on at the first admission of their Progenitors to the exercise of the Royal Authority.

SECT. II. That they thought it absolutely necessary, that who­soever would be their King, should make this Compact with them, and be as much obliged by Oath to grant these Priviledges to them, as they were to swear Allegiance to him.

2dly. OUR Kings well knowing what a Re­verence the Community had for their Laws, found no better means to gain, or to se­cure to themselves the Crown, and to pacifie the discontented Parties, than by fair Promises, and Engagements to maintain, or grant to them their Laws.Cum Regni fastigia fratri suo Roberto praeriperet, coepit tam per se, quam per omnes quos poterat, fide, sacramento (que) Lanfranco pro­mittere justi­tiam, aequitatem & misericordiam se per totum Regnum, si Rex foret, observaturum, pacem, libertatem, securitatem Ecclesiarum contra omnes defensurum. p. 13. Eadmerus informs us concerning W. Rufus, that desiring to forestall his elder Brother Robert in getting the Kingdom, he pawned his Faith and Oath, that if they would make him King, he would in all things observe Justice, Equity, and Mercy throughout his Kingdom, and defend the Peace, Liberty, and Security of the Church against all Men.

When his Brother Robert was come into En­gland to claim his right, and he had many of the Nobility who favoured him, and sided with him, W. Rufus calls the Normans, and English Nobility to London, & leges statuens,Pag. 642. and there stablishing the Laws, he marched with them against his Bro­ther, saith Florence of Worcester. He bound them to him, saith M. Paris, faciles leges promittendo,Pag. 10. by promising them easie Laws; as those of King Ed­ward were by them stiled, and accounted. He sweetned them, saith John Brompton, Pag. 984. by promising that he would establish meliores leges quas sibi vel­lent eligere, those more acceptable Laws which they would chuse. Now those we know, by their re­quest in his Fathers days, were the Laws of Ed­ward, and they with the emendations of his Fa­ther, were the Laws then established. These Pro­mises he very little regarded after his agreement made with his Brother Robert; but falling sick, at the suggestion of his Barons, he again promised to God, saith Radulphus de Diceto, Pag. 490, 491. Rectas leges statuere, to stablish right Laws.

Henry the first, his Successor, in the beginning of his Reign, saithIpfe in prin­cipio Regni sui leges justas & libertates populo dedit, chartâ consir­mavit, sigillo corroboravit. p. 310. R. Hagulstadensis, gave to the People their just Laws and Liberties, confirming them with his Charter, and his Seal. Dunelmensis, R. Hoveden, Florence of Worcester, W. of Malmes­bury, M. Paris, and Henry of Knyghton say, that on the very day of his Qui conse­crationis suae: die — legem Regis Edvardi omnibus in commune reddidit cum illis emendationibus quibus pater suus illam emendavit. Dunelm. p. 225, 226. Hoveden p: 1. F. 268. B. Flor. Wigorn. p. 650. W. Malmsbur. F. 88. M. Paris p. 38. H. de Knyghton p. 2374. Consecration he granted to all his People the Laws of Edward, with the emen­dations which his Father had made of them. [Page 8] Pag. 216. B. Chron. p. 997. Henry of Huntington, and John Brompton say, that having promised a desirable melioration of the Laws and Customs, he was consecrated by Maurice Bishop of London. M. Paris saith most expresly, thatHenricus — congregato Londoniis cle­ro Angliae, & populo uni­verso, promisit emendatio­nem legum quibus oppres­sa fuerat An­glia tempore patris sui, & fratris nuper defuncti, ut animos omni­um in sui pro­motionem ac­cenderet, & amorem, & ut illum susci­perent in Re­gem & Patro­num. Ad haec clero respon­dente, & Mag­natibus cun­ctis, quod si animo volente ipsis vellet concedere, & chartâ suâ communire illas libertates & consuetudines antiquas quae floruerunt in Regno tem­pore Sancti Regis Edwardi, in ipsum consentirent, & in Regem unanimiter consecra­rent. Henrico autem hoc libenter annuente, & se id facturum cum juramento affir­mante, consecratus est in Regem apud Westmonasterium. p. 38. Henry, having assembled the Clergy, and all the People of England, that he might dispose their minds to the love and the promotion of him, and the taking him for their King, and Patron, promised them the emendation of the Laws by which England had been oppressed in the time of his Brother, and that all the Clergy and Nobility answered, That if he would freely grant to them, and confirm by his Char­ter those Liberties, and ancient Customs which flou­rished in the time of King Edward, they would una­nimously consent to receive him for their King; and that upon his Consent, and Oath to do so, he was crea­ted King at Westminster. And when his Bro­ther Robert came to challenge the Crown as his by right of Succession, and the Concord made be­twixt him and his Brother Rufus, to animate his Subjects to stand by him, he speaks thus to them,^* I your mild King am desirous to preserve you in your Ancient Liberties, as I have often promised up­on Oath,— And command all things to be inviola­bly observed which holy King Edward, by the In­spiration of God, advisedly established.

Steven succeeded him, and he, to get the Kingdom,Melioratio­nem legum promisit juxta voluntatem & arbitrium sin­gulorum M. Paris p. 51. R. Hagulstad. p. 314, 315. Chron. Jo. Brompt. p. 1024. Bonas leges, & antiquas & justas consuetudines in Hundris & Placitis & aliis Cau­sis observabo. Rich. Hagulstad. p. 314. Confirmavit Pacta quae Deo & populo atque Ecclesiae Sanctae in die Coronationis suae concesserat Matth. Paris p. 51. promiseth a Melioration of their Laws according to their minds. Our Historians tell us, That on the day of his Coronation he made a Com­pact with his Church and People, which afterwards at Oxford he swore to observe. And one of the terms of this Compact was, That he would ob­serve good Laws, and ancient and just Customs in Hundreds, and Pleas, and other Causes.

Henry the Second follows him, at the begin­ning of his Reign, establishing Peace in his King­dom, and commanding the Laws of Henry the First, Ipse pacem stabilivit in Regno, & le­ges Henr. Avi sui praecepit per totum Regnum suum inviolabiliter teneri. Hoved. par. 2. F. 281. B. his Grand-father, to be inviolably observed throughout his Kingdom.

Richard the first, succeeds him, and promiseth upon Oath at his Coronation these three things, viz. 1. That he would give Peace, Honour, Juravit quod ipse omnibus diebus vitae suae pacem, & honorem, & Reverentiam Deo, & Sanctae Ecclesiae, & ejus ordinatis portaret. 2^o. Quod rectam justitiam, & aequitatem ex­erceret in populo sibi commisso. 3^o. Quod malas leges & consuetudines per­versas, si quae in Regno suo inductae sunt, deleret, & bonas leges conderet, & sine frau­de & malo ingenio, eas custodiret. Hoveden. F. 374. A. M. Paris p. 108. Rad. de Diceto Imag. Hist. p. 647. Chron. Joh. Brompt. p. 1157. and Reve­rence to God, and the Church, and her Clergy all the days of his life. 2ly, That he would exercise true Justice and Equity to the People committed to his Government. 3ly, That he would put away all [Page 10]evil Laws, and perverse Customs, which were in­troduced into his Kingdom, and would make good Laws, and maintain them without fraud and evil inclination. Conjuratus est ab Archi­episcopo ex parte Dei, & prohibitus ne hunc hono­rem accipe­ret, nisi in mente habeat Sacramenta tenere quae fecit; & ipse respondit se, per auxilium Dei, bona fide ob­servaturum omnia supra dicta. Ibid. Then the Archbishop of Canterbury conjures him by God not to take upon him this Ho­nour, unless he uprightly intended to perform what he had sworn; and when he answered, That by the help of God he intended so to do, the Arch­bishop puts the Crown upon his Head.

King John, at his entrance on the Government, took the same Oaths for substance which his predecessor Richard had done, swearing to pre­serve the Church and her Dignities from harm; to abolish unjust Laws, and to establish Good, and to exercise right Justice; and he was also by the Archbishop conjured not to take upon him the Kingly Honour, In coronati­one suâ R. Johannes tri­plici involu­tus est Sacra­mento, viz. quod Sanctam Ecclesiam, & ejus ordina­tos diligeret quod perver­sis legibus destructis, bo­nas constitue­rer, & rectam justitiam in Regno Angliae exerceret, deinde adjuratus est ab Archi­episcopo ex parte Dei, & districtè prohibitus ne honorem hunc accipere praesume­ret nisi in mente habuit opere quod juraverat adimplere. Chron. Burton p. 256. R. Hoveden F. 450. M. Paris p. 138. Audistis quomodo ipse apud Wintoniam Regem absolvi, & ipsum jurare compu­lerim quod leges iniquas destrueret, & leges bonas, viz. leges Edvardi; revocaret, & in Regno faceret ab omnibus observari. M. Paris p. 166, 167. unless he really intended to per­form his Oath. When he was absolved from his Excommunication by the Archbishop at Winche­ster, he was by him compelled to swear, That he would destroy all unjust Laws, and would re­store good Laws, viz. The Laws of King Edward, and cause them to be observed of all throughout his Kingdom.

King Henry the Third was but nine years old when he succeeded King John, Annales Mon. Burton p. 271, 276. and in the ninth year of his Reign he granted to all his Clergy, his Nobles, and his People, his Magna Charta, and his Charter of the Liberties of the Forest; and by these Charters he confirms to them libertates & liberas consuetudines quas prius habuerant, the Liberties and free Customs which they had before. M. Paris saith,Pag. 274. That he exacted the fifteenth part of the Moveables, both of the Clergy, and of the Laity, and that they promised to grant them, si illi diu petitas Libertates concedere voluisset,Pag. 223. provided he would give them the Liberties they had so long desired; And that accordingly he gave them these two Char­ters, which were the same that had been granted by King John.A. D. 1223. Speed p. 581. The Barons requiring a confirma­tion of these Liberties from the King, William Briwere, one of the King's Council, answered, That the Liberties which they demanded were not to be observed, because they were violently extorted; the King replied, All of us have sworn to these Liberties, and that which we have sworn, all of us are bound to observe; and the truth is, at the con­clusion of the Peace with Lewis the King,Speed p. 578. the Legate, and Earl Marshal sware that the King should restore to the Barons, and others, all their Rights and Inheritances, with all the Liberties formerly demanded of his Father. Speed p. 583 And in the year 1225. the King again drawn with the de­sire of Mony, grants those his Charters under his Seal, and Oaths were taken by Royal commandment to tye all Men to the observation of the said grants.

Edward the first was declared King, and Suc­cessor of his Father when absent in Palestine, and [Page 12]returning into England, is Crowned in the Se­cond year of his Reign, and in the Third calls a Parliament at Westminster, where he hears the complaints of the ill Government of the Realm, and the Church, and makes that wholsome Statute to relieve them which is called the first Statute of Westminster.

At the Coronation of Edward the Second, the Earls and Barons of the Kingdom of England treated of the State of the Kingdom, requesting the Banishment of Peter of Gaveston from the Kingdom, and that Baronum suorum vellet consi­liis tractare Regni negotia, Hypadygm. Neustr p. 500. he would transact the business of the Kingdom by the Councils of his Ba­rons; which the King denying to grant, Rex noluit consentire, id­circo propo­suerunt comi­tes Corona­tionem Regi­am impedire, quod Rex intelligens promisit bona fide se facturum illis in proximo Parliamento quicquid peterent, tantum ne Coronatio differatur. Walfingh. Hist. Angl. p. 96. the Nobles endeavoured to hinder his Coronation; which the King understanding, promised faithfully, in the next Parliament, to do that which they desired.

At the Coronation of Richard the Second, one of the Bishops makes an Oration to the People con­cerning the Constitution of the King and Kingdom, Tunc Episco­pus Sermo­nem fecit de materiâ Re­gis, & Regni ad populum, qualiter Rex se haberet in populo, & in quibus populus sibi debuit obedire, quo completo juravit Rex, coram Archiepiscopo & proceribus, quod Ecclesiam suis permitteret gaudere libertatibus, & eam, & Mi­nistros ejus honoratret. 2^o. Ut leges terrae bonas ubique observari faceret, & prae­cipuè leges Sancti Edvardi. 3^o. Ut non esset personarum acceptor, &c. quibus ex­pletis Archiepiscopus convertit se ad omnes plagas Ecclesiae, indicans populo Re­gium juramentum, & quaerens si se tali principi, & Rectori subjicere, & ejus jussio­nibus obtemperare vellent; & responsum est à plebe — quod libenter sibi parere vellent. Wals. Hist. Angl. p. 195. how the King should behave himself to them, and in what things they were to obey him: this being done, the King swears before the Archbishop and Nobles, that he would permit the Church to enjoy her Liber­ties, [Page 13]and would honour her and her Ministers. 2dly, That he would cause the good Laws of the Land to be observed every where, especially those of St. Ed­ward. 3dly, That he would be no acceptor of Per­sons, but would exercise right Judgment between man and man, and especially would shew Mercy. This being done, the Archbishop, the Marshal being present, turns himself to all the quarters of the Church, decla­ring to the People the Kings Oath, and asking them, if they could subject themselves to such a Prince and Governour, and would obey his commands; to which they all answered, That they would willingly do it.

Here then you see that William Rufus, Henry the First, and Steven, get the consent of the Peo­ple by virtue of this promise to grant them their usual Laws, and ancient Customs, that Henry the First, Richard the First, and King John, and Rich­ard the Second at their Coronation oblige them­selves by Oath to grant them; And upon these Obligations the People, Nobles, Bishops, and Com­mons consent to own them as their King, that the Archbishops conjure R. the First, and K. John, not to take upon them the Crown, unless they uprightly intended to perform these Oaths; that all of them at the beginning of their Reigns by Oaths, or Promises oblige themselves to grant these Laws and Customs to the People, and that if any scrupled so to do, the Nobles thought it their con­cern to hinder his Coronation, till he had either made, or promised this engagement

They therefore thought it absolutely necessary, that whosoever would be their King, should make this Compact with them, and be as much engaged by Oath to grant these Priviledges to them, as [Page 14]they were to swear Allegiance to him, and com­monly that this should be first done by their Kings before they would engage to be their Subjects. And then it must be as necessary that he who doth continue to be their King should continue to per­form his Oaths, and grant these Priviledges to his People.

SECT. III. That when the ancient Laws of their Country were wholly violated, they constantly complain'd of the Injustice of the Action, required the observation of them; and when they could not prevail by fair means, they sought to recover their Right by Arms. Where an account is given of the Barons Wars for the preserving of the Magna Charta, and the Charta de Forestis.

FOR farther evidence of this matter, let it be considered,

3dly, That when these Patriae Leges, these Anci­cient Laws of their Country were violated, they con­stantly complained of the Injustice of the Action, required the observation of them; and when they could not prevail by fair means, they revolted from their Subjection, and sought to recover their Right by Arms. This they require of W. Rufus, when he was sick: And it was probably for neg­lect of these good Laws, that most of the Nobili­ty, saith M. Paris, Page 10. did una Rabie conspirare, conspire against him with one fury. For the same reason was [Page 15]it, that when Robert came against King Henry the First, a great part of the Navy went over to Robert, for this they did, saith M. Paris, quia Rex jam Ty­rannizaverat, because the King was become a Tyrant, Page 40. i. e. he governed not according to Law.

When Steven Archbishop of Canterbury in the year 1213,Per quam, si volueritis, li­bertates diu amissas pote­ritis ad statum pristinum re­vocare. M. Paris p. 167. had found the Charter of Henry the First, by which he granted to them the Law of King Edward, with those emendations which his Father, by the Counsel of the Barons, did ratifie, he told the Nobles this was the Charter, by which, if they pleased, they might reduce their long lost Liberties into their former state; The Charter being read, they much re­joyced, A rchiepisco­pus vero pro­misit eis fide­lissimum auxi­lium suum pro posse suo, & sic confoe­deratione fa­cta inter eos, colloquium solutum est. M. Paris ibid. and swore, in the presence of the Archbishop, that when they could spy out a fit time, for those Li­berties, if need required, they would spend their blood; the Archbishop, on the other side, promised to help them to the uttermost of his power, and so, ha­ving made a League among themselves, they dissolved the Assembly.

When King John still neglected to observe these Laws, the Nobles come unto him, requiring him to confirm the Liberties and Laws of King Edward, and other Liberties granted to him, the Kingdom, Petierunt quasdam li­bertates, & le­ges R. Edvar­di, cum aliis libertatibus sibi, & Regno. Angliae, & Ec­clesiae Angli­canae concessis, confirmari. M. Paris p. 176. Capitula libertatum & legum quae ibi magnates confirmari quaerebant partim in Charta R. Henrici superius scripta sunt, partim (que) ex legibus R. Edvardi antiquitus ex­cerpta— affirmantes quod, nisi Rex illas incontinenti concederet, & sigilli munimine confirmaret, ipsi per captionem castrorum suorum, terrarum, & possessionum, ipsum Regem compellerent, donec super praemissis satisfaceret competenter. M. Paris p. 176. and the Church of England, they being leges Anti­quae, & Regni consuetudines; the Ancient Laws and Customs of the Kingdom, contained partly in the Charter of Henry the First, and partly gathered out of the old Laws of King Edward, threatning that [Page 16]if he would not instantly grant them, and confirm them under his Seal, they would compel him so to do, by seizing on his Castles, Lands, and Possessions, till he gave them competent satisfaction in that matter. Then the Archbishop shewed the King the Con­tents of that Charter; Quod nun­quam tales libertates con­cederet unde ipse efficere­tur servus, & quare cum istis iniquis exactionibus Barones non postulant Re­gnum. ibid. and upon the Kings answer, that he would never grant such Liberties by which he himself was made a servant; and that the Barons might as well ask the Kingdom, they betake them­selves to War, and the Barons having got the Ci­ty of London on their side, they write Letters to all the Earls, Barons, and Knights who adhered to the King, exhorting them, with threats, that as they loved the Indemnity of all their Goods, Possessions, deserting the perjured King, they would adhere to them faithfully, and stand immoveably with them, fighting for the Liberties, Miserunt li­teras ad co­mites, Baro­nes, & milites illos qui adhuc per Angliam Regi, licet fide, adhaerere videbantur, ex­hortantes eos, cum comminatione, ut, sicut omnium Rerum suarum & possessionum indemnitatem diligebant, Regem perjurum deserentes, & sibi fideliter adhaerentes, simul cum eis pro libertatibus, & pace Regni immobiles starent, & efficaciter decerta­rent. M. Paris p. 177. and stand immoveably with them, fighting for the Liberties, and Peace of the Kingdom.

Whereupon the King, finding that he was not able to resist the strength of the Barons,In ejus tem­pore fuerunt provisi Arti­culi M. Chartae ad commu­nem profe­ctum Regni. p. 2424. without difficulty grants the Laws and Liberties they de­manded, and confirmed them by his Charter. And thus it was, as Henry of Knyghton saith, that in his time were procured the Articles of Magna Charta to the common good of the Realm. And when the King, by the instigation of some Sons of Belial, was again perswaded to fly from his Oath and Promise,Quid faciemus de isto Rege iniquo, si sic dimiserimus illum, delebit nos, & populum nostrum, expedit igitur ut deleatur à solio Regni sui, nolumus enim de caetero eum regnare super nos. Henr. de Knyght. de Event. Angl. p. 2423. the Barons spake thus to another, What shall we do [Page 17]with this wicked King? if we let him thus alone, he will destroy us, and our People; it is expedient there­fore, that he should be expelled from the Throne, we will not have him any longer to Reign over us. And thereupon they send presently to Lewis the Son of the French King to come to their assistance, pro­mising him the City of London, and their Allegiance to him. And though the Pope sent his Bull, by which he made void this Charter of the Liberties of the Kingdom of England, and writ a threat­ning Letter to the Barons of England upon that affair. Notwithstanding all his threats, noluerunt desistere ab incaeptis, M. Paris p. 186. the Barons would not desist from their Ʋndertakings, but rising up still against him, they vehemently annoyed him, saying; con­cerning the Pope, that of the Prophet, Wo to him that justifies the wicked. And when the Pope proceeded to Excommunicate the Barons by name, and in particular, neither would the Barons observe,Pag. 192. Insurrexerunt in eum Magna­tes duplici ne­cessitate co­acti, eo quod noluit permit­tere leges Sancti Ed­wardi teneri, sed omnia fe­cit in suo vel­le, nec voluit legis formam obserware. Henr. de Knyghton p. 2418. nor the Prelates publish the Excommunication. And what the judgment of the generality of this Na­tion was of the whole War, we may learn not only from the general engagement both of the Laity and Clergy in it, but also from our own Historians; for they inform us, That our Nobles were forced to make this War out of a double neces­sity, because he would not permit the Laws of St. Ed­ward to be kept, as formerly they were wont to be, but did all things by his own will, nor would observe the form of the Law; but disinherited his Nobles without the judgment of their Peers.

To this effect I find, according to the custom of those times, a long Rhyme in the Chronicle of Mailros, deploring the infelicity of this Affair, [Page] That the Body should attempt to rule the Head, and the People to be above their King; but adding, that there was a great and manifold necessity that it should be so, seeing the King perverted all the good Customs of the Kingdom, neither rightly managing Laws, Rights, or Subjects, but making that to be Justice which was agreeable to his own will, which moved them to swear they would not suffer this Ty­ranny of the King, and to require the Deposition of him, if he would not consent to the Reformation of the Law, and to resign the Homage they had made, till he would give them caution to preserve the Peace. And the same Annals say, the Barons only fought pro legibus pristinis restaurandis, for Restaurati­on of their ancient Laws. And when the Earl of Pembroke made his Oration to the Assembled States in behalf of Henry the Third his Son, he begins it thus,Speed p. 575. Albeit the Father of this Prince, for his evil Demeaners, hath worthily undergone our Persecu­tion — we ought of Duty and Conscience, to obey his Son.

When Henry the Third made void the Charters of Liberties, and of the Forest, pretending they were granted whilst he was in duress, and had not the power of his Body, or of his Seal; the People presently begin to murmur, and the Barons siding with Rich­ard Earl of Cornwal, the Kings Brother, with threats request him to do right to his Brother, sharp­ly denouncing to him, that he should without delay restore the Charters to him sealed which he had can­celled at Oxford;In eodem Concilio fecit Rex cancel­lare, & cassa­re omnes Chartas in provinciis omnibus Angliae de libertatibus Forestae, hanc occasionem praetendens quod Chartae illae concessae fuerant, & libertates scriptae, & signatae, dum ipse erat in custodia, nec sui corporis, aut sigilli aliquam habuit potestatem. M. Paris p. 232. Sin autem, ipsi illum gladiis discurrentibus compellerent ut sibi super his satisfaceret competenter. M. Paris p. 233. and if he did not, they would compel him by the Sword to make him competent sa­tisfaction in these matters.

A. D. 1233. the King invites over the Poicto­vins, and other Strangers, who, with the Bishop of Winton oppress the Nobles with all their power, and cause great discord and complaints; For judgments were committed, saith M. Paris, Judicia com­mittuntur in­justis, leges exlegibus, pax discordanti­bus, justitia in­juriosis. p. 263. to the unjust, the Laws to them who were Outlaw'd, Peace to those who were given to Discord, and Justice to the Injurious. These things so exasperate the Nobility, that they Combine for Defence of the publick; and by Richard his Brother, and the Earl Marshal, humbly request of the King, that he would speedily correct these excesses which tended to the subversion of his Crown and Kingdom, Regem humi­liter rogabat, ut tales exces­sus corrigere festinet, per quos Coronae suae, & Regni subversio imminebat, affirma­bat insuper quod si hoc emendare diffugeret, ipse, & caeteri de Regno Magnates, tamdiu se ab ipsius consilio subtraherent, quamdiu alienigenarum consortio frueretur. M. Paris p. 264. to the op­pression [Page] [...] [Page 19] [...] [Page 20]of his natural People, and of their Laws and Liberties, and that if he would not reform them, they would withdraw themselves from his Coun­sel.

Whereunto the Bishop of Winchester replys, That it was lawful for the King to call what stran­gers he listed about him for Defence of his Crown and Kingdom, thereby to compel his proud and re­bellious Subjects to their Obedience; with which Answer they were so incensed, that they pro­mised each other in this cause, Firmiter pro­miserunt ad invicem quod pro hac cau­sa, quae omnes tangebat, usque ad divisionem corporis & animae viriliter decertarent. Matth. Paris ibid. which concerned them all, they would spend their lives.

Then the King Summons them to a Parlia­ment at Oxford, to which they would not come, and after this to another at Westminster; they sending him this Message, That he should sud­denly remove Peter Bishop of Winton, and his Poictovins; and that if he would not do this, they all, by the Common Counsel of the whole King­dom, would expel him with his evil Counsellors out of the Kingdom, Sin autem nollet, ipsi omnes de communi con­silio totius Regni ipsum, cum iniquis consiliariis suis, à Regno depellerent, & de novo Rege creando contrectarent. M. Paris. p. 265. and consult about the creation of a new King.

A. D. 1234. A Parliament is Assembled at Westminster, in which indeed the Bishop of Chester Excommunicates all them who were designing [Page 21] alium Regem creare, to create another King; M. Paris p. 271. yet doth the Archbishop Elect, and his Suffragans roundly declare against the cruel and dangerous Practices of Peter Bishop of Winton, and Peter de Rivalis. First, Because they suggested,Vocantes eos proditores, & facientes om­nes sic voca­ri — qui me­lior est homo terrae vestrae. p. 271. that the English were Traytors, and alienated the Kings heart from the Marshal, who was the best Man in the Land. So that, in their judgment, they that fought, and were then in Arms for their Laws and Liberties, were so far from being Traytors, that they were the best Men of the Nation. Se­condly, That there was cause to fear the Ruine both of King and Kingdom, since they had got such an Ascendent over him, Timendum est tam de vobis, quam de Reg­no, cum vi­deamini ma­gis esse in eo­rum potesta­te, quam ipsi in vestra. Ibid. that he seemed rather to be un­der their power, than they under his. Which al­so seems to have been the case betwixt King James and his Jesuites. Thirdly, That they con­founded, and perverted the Law of the Land sworn to, and confirmed, and strenghned by Excommuni­cation, and with that all Justice; by reason of which, and many other grievances, they humbly be­sought him to govern his People, according to the example of other Nations, by the sworn Natives of his Kingdom, declaring that if he did not cor­rect these miscarriages in a little time, Item legem terrae jura­tam, & con­firmatam at­que per excommunicationem roboratam, pariter & justi [...]iam confundunt, & per­vertunt. Ibid. Nisi, infra breve tempus, ista correxeritis, in vos, & in omnes alios contradictores, per censuram Ecclesiasticam procedemus. p. 272. they would proceed by Ecclesiastical Censure both against his Coun­sellors and himself.

Edmund Archbishop Elect of Canterbury, being soon after consecrated, comes to the King with [Page 22]his Bishops and Prelates, relates again the same grievances, declaring to him, That if he would not correct, and pacifically compose these things with his Liege People, he, with his Prelates, would denounce the Sentence of Excommunication against him and all the Enemies of this Concord. Upon which the King is, at last, prevailed with to remand the Bi­shop of Winton to his Cure,Denuntiavit etiam ipsi ex­presse quod, nisi Clericus errorem de­mitteret, & cum fidelibus Regni sui pacificè componeret, ipse — cum omnibus Prae­latis qui aderant, in ipsum Regem sententiam ferret excommunicationis, & in omnes alios hujus pacis contradictores. Ibid. to banish Peter de Ri­valis from the Court, and the Poictovins from the Kingdom.

One thing more is observable in this matter, that as the War of the Marshal was generally thought just, so the Marshal justifies himself to have been no Traytor, as being always ready to stand to the judgment of his Peers, and being exiled, and deprived of his Offices and Lands against Law, for which cause, saith he, I ceased to be the Kings Liege Man, Unde homo suus non fui, sed ab ipsius Homagio non per me, sed per seipsum licenter absolvebar. p. 273. and was absolved from my Homage not by my self, but by the King.

A. D. 1237. A Parliament is held at London, in which the King requests, in regard of the great expence for his Sisters Marriage, the thir­tieth part of all Moveables both of the Clergy and the Laity. After great opposition made to this demand, and the recital of many supposed mis­carriages, the King disavowing, and protesting against his former Revocation, and freely grant­ing [Page 23]the inviolable observation of the Liberties, un­der pain of Excommunication, hath yielded to him the thirtieth part of all moveables.Spontanea promisit vo­luntate liber­tates M. Chartae suis fidelibus Regni sui ex tunc inviolabiliter observare, &c. Matth. Paris p. 298.

In the year 1240. the Archbishops, Bishops, and many of the Nobles, assembled at London, grie­vously complain of divers Injuries, Oppressions, and Desolations which befell the Church by the evil Counsel of the King, violating his Charters, and his Oaths, after he had so often sworn that he would preserve the Ecclesiastical Rights inviolated, Reponentes querimoniam gravissimam coram Rege, in curia sua, super variis injuriis, & op­pressionibus, & quotidianis desolationibus illatis Ecclesiae per iniquum Regis consilium, contra Chartas suas, & juramenta temere veniendo, — cum ipse Rex toties juraverat se jura Ecclesiastica il­libata conservare, ipsomet audiente, & Candelam tenonte, quod omnes Episcopi in violatores libertatum Ecclesiasticarum simul sententiam fulminabant, in cujus sententiae consummatione, Rex, ut alii, suam Candelam extinxit inclinando. M. Paris p. 354. and himself held a Candle when the Bishops in his hearing pronounced the Sentence of Excommunication against all the Violaters of the Ecclesiastical Liber­tie, he then extinguishing his Candle with the rest.

In the year 1242. the King requests farther Supplies of his Parliament held at Westminster for his intended expedition into France. Et praeterea concessit eis tunc quod omnes liber­tates contentae in M. Charta ex tunc in antea plenius tenerentur per totum Regnum suum, & inde fecit eis quandam parvam Chartam quam adhuc habent, in quâ eaedem continentur—& quia dominus Rex nunquam post tricesimam datam Chartam suam de libertatibus tenuit. Ibid. p. 394. But they resolutely deny to give him any, for that, in or­der to the obtaining former grants of Money, he [Page 24]had promised and granted to them that all the Li­berties contained in Magna Charta, should from thence be fully observed through the Kingdom, and had given them a little Charter in which they were contained; and yet, after all, he never was true to his word, but oppressed them still more.

In the year 1244. he desires new Supplies, which for a time they refuse, pleading that the Charter of Liberties which the King had granted, Et quia Char­ta libertatum quas dominus Rex olim con­cesserat, & pro cujus conser­vatione Ar­chiepiscopus Cant Edmun­dus juraverat, & fide-jusic­rat, & certissi­me pro Rege promiserat, nondum ex­istit observa­ta. Matth. Pa­ris p. 432. and the Archbishop had upan Oath in the King's name promised to them, was not observed. Though at last, upon the King's faithful Promise to keep and observe the Liberties unto which he had sworn at his Coronation, and whereof he had granted his Charter, and upon the appointment of four Noble Men to be of the King's Council, who should be conservatores libertatum, Keepers of their Liberties, they grant him new Supplies; the King then promising himself to observe them, and re­questing that for the defence of their Liberties, all the Bishops in their Diocesses should pronounce Sentence against him, and all who violated the said Liberties in any Article of them. Rex tam in propria per­sona, tum per internun­tios solennes, promisit se libertates quas juraverat in Coronatione sua, super quibus Chartam fecerat, integerrime servaturum, ad quarum etiam tuitionem rogavit ut sin­guli Episcopi, in Dicecesibus suis sententiam ferrent in ipsum, & omnes qui contra me­moratas libertates venirent in aliquo Articulo. M. Paris p. 435. And thus they agreed to grant him a Supply.

In the year 1252. he holds a Parliament at Lon­don, and requires more Money; and they, after some consultation answer, that though the King had much oppressed both Church and Kingdom, they [Page 25]would doe their utmost to satisfie his desires, provided that, as he had often promised, he would now at last inviolably observe the Charter of their Li­berties, so often covenanted and sworn to. Other things they demanded then, which the King would by no means agree to, swearing horribly, that whilst he livedquantum­cun (que) Ecclesi­am Anglica­nam, & Reg­num suum Angliae oppre­serit; & afflix­erit quod postulat à no­bis adhuc im­pendemus, & desiderio suo, pro posse, ob­secundabi­mur, si, quodmultoties promisit, vellt Chartam toties pactam, toties (que) debitam, Liber­tatum nobis juratarum inviolabiliter posthac observare. p. 568. Nunquam in talem mergeretur Servitutem. Ibid. p. 570. he never would be reduced into such slavery: And so the Assembly breaks up, producing nothing but the King's Wrath.

In the Year 1253. was assembled a very great Parliament, in which the Arch-Bishop, and some Bi­shops, are sent to induce the King to permit H. Church to enjoy her Liberties, as he had oft pro­mised upon Oath, and declaring, that if he would correct this, and other of his miscarriages, ac­cording to the Tenor of M. Charta, they would incline to his Petition,Quod si hunc, & alios errores, secundùm M. Chartae de Liberta­tibus confectae tenorem emen­daret, ipsi, usque ad gravamen magnum, Petitionibus suis in­clinarent, &c. p. 579. how burthensome soever it might be to them: This the King promiseth to doe, and desires them to assist him in it; so the Clergy grant him à Tenth, and the Knights Scutage, viz, three Marks of every Knights Fee for that year,Rex bonà fi­de, & sine ali­qua cavilatio­ne, promisit, se Chartam Magnam, & omnes ejus Articulos fideliter observaturum, quam Rex Jo­hannes tenere juravit, & similiter qui praesens est, in susceptione Coronae, & poste [...] multoties. Ibid. and the King promiseth faithfully, and without cavil to ratifie [Page 26] Magna Charta, and faithfully to observe all the Ar­ticles of it, which King John, and he, at his Coro­nation, and often since, had sworn to observe. And this is done in the most solemn and ceremonial manner that could be devised; for the King, with all the great Nobility of England, all the Bishops and chief Prelates in their Ornaments, with bur­ning Candles in their hands, assemble to hear the terrible sentence of Excommunication upon all the Infringers of the same; and at the lighting of those Candles, the King, having one in his hand, gives it to one of the Prelates, saying, It be­comes not me, Nondecet meCandelam talem tenere, sum non enim Sacerdos; Cor autemmajus perhibet Testi­monium; & ex tunc tenuit ma­num expansam ad Pectus, donec tota sententia finiretur. p. 580. who am no Priest, to hold this Candle; my Heart shall be a greater testimony; and withall laid his hand on his Breast the whole time the sentence was read, which was thus pro­nounced: In the name of the Omnipotent God, &c. Which done, he caused the Charter of King John his Father to be read: In the end, having thrown away their Candles, they cried out, So let them who incurr this sentence be extinct, and stink in Hell: And the King with a loud voice said,Dixit ipse Rex, Sic me Deus adjuvet, haec ommia il­libata observa­bo fideliter, sicut sum ho­mo, sicut sum Christianus, sicut sum mi­les, & sicut sum Rex Coronatus & Inunctus, &c. M. Paris. p. 580. Idem Rex, consiliis maligno­rum praeventus, easdem infringendo contra venire non formidavit, credens pro­munere absolvi à trangressione. p. 597. As God help me, I will, as a Man, a Christian, a Knight, a King Crowned and Annointed, inviolably observe all these things. But notwithstanding all this, in the very next year the King, by the counsels of some wicked men, is wrought upon to infringe again this Charter, hoping for a gift to obtain an absolution from his Oath.

In the next year a Parliament is called, which yeilds nothing but grievous Complaints for breach of M. Charta, Page 608. and Promises of supply provided it may be again confirmed, and the electing the Jus­ticiar, the Chancellor, and Treasurer put into their hands; to which the King would not yield: But though the King would not observe it, M. Paris saith, It was cryed in all Countries, Diebus autem istis acclama­tum est in co­mitatibus, & an­nunciatum est in Synodis, in Ecclesiis, & ubicun (que) lo­corum homines convenerant, ut M. Charta inviolabiliter teneretur, quam R. Johan­nes concesserat, & iste Rex praesens multoties concessit; & lata est sententia solen­niter in omnes ejusdem violatores. Ibid. p. 609. and denounced in all Synods, Churches, and publick resort, that M. Charta should be inviolably observed, and the sentence of Excommunication is denounced against all the viola­ters of it.

In the Year 1256. Provision is again made sub paena horribilis Anathematis, Page 619. under the penalty of an horrible Anathema, that the M. Charta of King John should be observed.

In the Year 1257. The King requests an Aid for his Son Edmund, for the acquiring the Kingdom of Sicily, and after many excuses, upon condition that the King would observe M. Charta so often promised, and bought, they tender 52000. Marks, with which the King was not satisfied. Ee tamen conditione additâ, ut M. Chartam, toties promissam, emptam, & redemptam, ex tunc inviolabiliter ob­servaret, &c. p. 637.

In the Year 1258. was held the Parliament at Oxford where the Nobles enter into an unchangeable [Page 28]League to require that the King should faithfully ob­serve the Charter of King John,Parliamento incipiente, so­lidabatur Mag­natum propo­situm & con­silium immu­tabile, exigen­do constantis­simè ut Domi­nus Rex Char­tam Liberta­tum Angliae, quam Johan­nes Rex Anglis concessit—fi­deliter teneat, & conservet—exigebant insuper sibi fieri Justiciarum, &c.—Quod Rex recognoscens, graviter juravit consiliis eorum obsecundare, & Edvardus filius ejus eodem est juramento adstrictus. p. 653. Rex coactus est corporale praestare Sacramentum, cum omnibus ferè post jurantibus illud idem. Hyp. Neustr. p. 467. which he had so often swore to perform, they require also the chief Justiciar, Chancellor, and Treasurer to be ordained by publick choice, and the twenty four Conservators of the Kingdom to be confirmed, twelve by the Electi­on of the Lords, and twelve by the King, who swears to the confirmation of these things, and causes the Prince to take the same Oath. Walsingham adds, that all after him did swear almost the same thing.

But notwithstanding this, the King gets an abso­lution from his Oath of the Pope. Rogabant hu­militer ut communiter praestitum ju­ramentum in­violabiliter observare vel­let. Contin. M. par. p. 567. Of this the Barons hearing, humbly beseech him to perform the Oath publickly sworn; but the King answering them with threats, the business is deferred till the coming of Prince Edward; who coming, sides with the Barons, according to his Oath, and a League is made betwixt them to apprehend the King's Evil Counsellors, Ibid. and their Abettors, and to endeavour to remove them from the King.

In the Year 1263. The contest betwixt the King, and the Barons is referred to the mediation of the French King, who annuls the provisions of Oxford, but with this exception, That the Ancient Charter of King John,Hoc excepto, quod Anti­quae Chartae R. Johannis Angliae Universitati concessae, per illam sententiam in nullo intende­bat penitùs derogare. p. 668. granted to the Community, should in no­thing be thereby impaired.

Then began the Barons Wars under Simon of Monfort, who succeeded so far in them, as to take the King and his Son Prisoners. But afterwards the Prince escaping out of Prison, fights with Si­mon, and overthrows him at Evesham, where he was slain.

And here it is to be observed, that none of the Historians of those times will permit this Simon to be called a Rebel, or a Traitor, but they still repre­sent him as a most devout servant of God and the Church, Sciendum, quod nemo sani capitis debet cen­sere, ne (que) appellare Si­monem nomi­ne Proditoris; non enim fuit Proditor, sed Dei Ecclesiae in Anglia devotissimus Cultor, & fidelissimus Protector, Regni Anglorum Scutum & Defensor. Chron. de Mailr. p. 228. and a most faithfull Protector, Shield, and Defender of the Kingdom of England, and even a Martyr for the Liberties of Church, and State.

After the end of these Wars, in the Year 1269.M. Par. Cont. p. 677. the King calls a Parliament to be hèld at Marlborough, where the Statutes called the Statutes of Marlborough were Enacted,Magna Charta in singulis suis Articulis teneatur, tam in his quae ad Regem pertinent, quàm quae ad alios: Similiter Charta de Foresta. in the Fifth Chapter of which it is decreed, That the Great Charter, and the Char­ter de Foresta shall be observed in all their Articles, both concerning the the King, and his Subjects. And here,Inst. l. 2. p. 102. saith the Lord Coke, it is to be observed, that after this Parliament neither M. Charta, nor Charta de Foresta was ever attempted to be impugned, or questioned, whereupon Peace and Tranquillity have ever since ensued.

Edward the First, in the twenty fifth year of his Reign, confirms the said Charters of the Liberties of England, and of the Forest, and declares they are to he holden for Common Law, Confirm. Chart. c. 1. requires that they should be held in every point, that they should be sent under the Great Seal, to all his Justices, as well of the Forest as others, proclaimed by the Sheriff of the County; and that all Justices, Sheriffs, Mayors, and other Ministers, which under the King had the Laws to guide them, should allow the said Charters in all their points, which in any Plea shall come before them in Judgment, and that the said Charters should be sent to all the Cathedrals within the Realm: and should be read twice a year before the People,Chap. 3. and that the Arch Bishops, and Bishops, Chap. 4. should denounce the Sentence of Excommunication against all them who, in Word, or Deed, did act against the said Charters, and these Sentences shall be pronounced, and published twice in the year by the said Prelates.

And because, in the sixth Chapter of the said Act, there was added this clause, Saves les auncient aides & prises, dues & accustomes, which gave some colour for the King's Officers to make an Evasion, the Lords of Parliament, met in the twenty eighth year of his Reign, do importune the King again to confirm the said Charters, which he promised to doe; but when it came to be set down in form of an Act, the King would have added, A saving of the Right of his Crown, which the Lords did mainly inveigh against, and pressed the King with his promise to [Page 31]confirm them as absolutely as his Father Henry 3. had done; which, in the end, he yeilded to, as ap­pears by the Act, called Articuli super Chartas, Chap. 1. where these Charters are again confirmed; and 'tis pro­vided that they shall be read four times every year before the People in every County after the Feast of St. Michael, and after the Feast of the Nativity of our Saviour, after Easter, and after the Nativity of St. John the Baptist.

When the King had ended his Wars in Scotland, he refused to stand to the confirmation which he had made to his Barons, of such Laws and Liber­ties as he before had granted, pretending that they had forced his consent,Obtinuit Rex à Domino Papa absolutionem à juramento, quod invitus praestiterat super obser­vantia Libertatum alias à Co­mitibus & Baronibus exactarum. Walsingh. p. 92. and he ob­tained of the Pope an absolution from the Oath which he unwillingly had taken to observe them. But when great murmuring, and discontent followed hereupon, and for his levying Taxes without consent of Parliament, in his thirty fourth year he makes the Statute de Tal­lagio non concedendo, for the quieting of the Com­mons, and for a perpetual Law for ever after; de­claring, That no Aid or Taxes shall from thence­forth be levied without their consent, and ma­king a general restitution to the Subjects of all their Laws, Liberties, and free Customes, as freely, and wholly, as at any time before in the better and fuller manner they used to have the fame; and and so ended all the disputes touching these Char­ters.

Walsingham saith,Page 71, 72. that the Grievances which the Arch-Bishops, Bishops, Abbats, Priors, Earls, and Ba­rons, with the whole Commonalty, remonstrated to the King were these, viz.

First, That they were not dealt with according to the Laws and Customs of the Land, according to which their Ancestors used to be governed.

Secondly, That the Articles of M. Charta were neglected, to the great damage of the whole Com­munity.

Thirdly, That the Assize, and Charter of the Forest was not observed; and then he adds, that the Nobles would consent to no other form of Peace with the King, than that which he established in the Statute, de Tal­lagio non concedendo, and which I have now set down.

There is one thing more very observable in the Reign of that King, that when the Pope had sum­moned him before him to answer touching his Right to the Kingdom of Scotland, a Parliament then held at Lincoln, Papa R. Ed­vardum pri­mum in judi­cium vocante, respondet Par­liamentum Lincolniae ha­bitum, quod praefatus Dominus noster Rex, super juribus Regni Scotiae, aut aliis suis temporalibus, nullatenus respondeat judicialiter coram vobis, nec judicium su­beat quoquomodo — cùm praemissa caderent manifestè in exhaeredationem juris answer the Pope thus, That their King should not answer judicially before the Pope, nor undergo his Judgment for his Rights of the Kingdom of Scotland, or any other Temporal Rights, [Page 33]because this manifestly tended to the disinherison of the said Crown, Coronae Regni Angliae, & R. Dignitatis, ac subversionem Sta­tûs ejusdem Regui notoriam, necnon in praejudicium Liber­tatis, Consuetudinum, & Legum paternarum, ad quarum obser­vationem, & defensionem, ex debito praestiti juramenti, ad­stringimur, & quae manu tene­bimus toto posse, & totis viri­bus, cum Dei auxilio, defen­demus; nec etiam permittimus, aut aliqualiter permittemus, sicut nec possumus nec debe­mus, praemissa tam insollta, in­debita, praejudicialia, & alias inaudita, praelibatum Dominum. Nostrum Regem, etiamsi vellet, facere, seu modo quolibet at­temptare. Walsingh. Hist. p. 85. Hypod. Neustr. p. 496. Speed p. 731. and the R. Dignity, and the subversion of the said Kingdom, and of the Liber­ties, Customs, and Paternal Laws, to the defence of which they were by their Oath obliged, and with their whole power would defend; and were the King never so willing, they, as they ought not, so they would not permit the King to attempt the Pre­mises. When King Richard the Second asked of Sir Robert Trisi­lian, and his other Lawyers, whe­ther he might not Disannul the De­crees of the last Parliament, and they had answered that he might, BECAVSE HE WAS ABOVE THE LAWS, as one of them confessed, he deserved death for that Answer, so all them, that could be caught, soon after found it.

Farthermore, Let it be observed, that the Nobi­lity of England, as the Lord Coke observes, have ever had the Laws of England in great Estimation and Reverence,Instit. l. 2. p. 97.and would never suffer them to be changed. This made King Henry the First, saith he, to write to Pope Paschal thus: Let your Holiness know, that, by the help of God, whilst I live, Notum habeat Sanctitas ve­stra, quod, me vivente, auxiliante Deo, Dignitates & Usus Regni nostri Angliae non imminuentur; & si ego, quod absit, in tanta dejectione me ponerem, Optimates mei, & totus Angliae populus, id nullo modo pateretur. Charta Henr. primi. the [Page 34]Dignities, and Customs of our Kingdom of England shall not be diminished; and if I, which God forbid, should so far deject my self, my Nobles, and all the people of England would never suffer them to be al­tered.

When the Bishops, in the twentieth year of Henry the Third, would have those Children who were born before Matrimony Legitimate, as to Here­ditary Succession, as well as those who were born after Matrimony, all the Earls and Barons answer with one voice,Et omnes Co­mites & Baro­nes unâ voce responderunt, quod nolunt Leges Angliae mutare quae hucsque usitatae & approbatae sunt. Stat. Mert. c. 9. Bracton. l. 5. c. 19. F. 417. We will not have the Laws of England, which have hitherto been used and approved, to be changed.

In the Letters which all the Nobility of England, by Ascent of the whole Commonalty, assembled in Parliament at Lincoln, wrote to Pope Boniface, we find these words.Ad Observati­onem & De­fensionem Li­bertatum, Con­suetudinum, & Legum pater­narum, ex de­bito praestiti Sacramenti adstringimur, quae manu te­nebimus toto posse, totis (que) viribus, cum Dei auxilio defendemus, nec etiam permittimus, nec aliquatenus permittemus, sicut nec possumus, nec debemus, praemissa tam insolita, indebita, praejudicialia, & aliàs in­audita, Dominum nostrum Regem, etiamsi vellet, facere, seu quomodolibet attemptare. Ret. Parl. 28. Ed. 1. apud Lincoln. By virtue of our Oath we are bound to the Observation and Defence of the Liberties, Customs, and Paternal Laws, which by the help of God we will defend with our whole Power; non do we, nor will we permit our Lord the King, though he were willing, to attempt things so unusual, undue, and prejudicial to the Royal Dignity: and this was Sealed by 104 Earls, and Barons in the name of all the Commonalty of England.

What they affirm touching their Oaths to de­fend their Laws, is an unquestionable truth; for be­sides what hath been noted of this kind allready, in the twenty fifth year of this King, it was esta­blished by Act of Parliament,25. Ed. 1. c. 3. 42. Ed. 3. c. 1. that if any Statute were made contrary to Magna Charta, or Charta de Forestis, it should be holden for none; and the Nobles, and the great Officers were sworn to the Observation of them: Yea,Speed p. 583. by the Royal Com­mand of Henry the Third, Oaths were taken to tye all men to the strict Observation of them.

SECT. IV. That we find throughout the History of our Kings, that their Election, or else their Compact with the People, hath ge­nerally been conceived a thing proper to strengthen their Title to the Crown, or at the least to satisfie their People.

4ly, IT may be farther worthy of our considerati­on, that we find throughout the History of our Kings that their Election, or else their Com­pact with the people, hath generally been looked on, as a thing proper to strengthen their Title to the Crown, or at the least to satisfie the People. For instance,

First,Dunelm. p. 195. Hoved. E. 258. Ab omnibus tam Norman­norum, quam Anglorum Proceribus Rex est electus. Gemit. de Ducibus Norm. l. 6. c. 37. Walsing. Hypod. Neust. p. 436. Of the Conqueror S. Dunelmensis, and Hove­den inform us, that Foedus pepigit, he made a Cove­nant with the people: Gulielmus Gemiticensis, and Walsingham, say, that he was chosen King by all the Nobles of England and Normandy.

Secondly,Daniel p. 52. Polyd. Virg. Hist. l. 10. p. 164. William the Second held the possession of the Crown of England by the Will of the Kingdom, the Succession in Right of Primogeniture being none of his. Volenti­bus omnium provincialium animis in Re­gem acceptus. M. Par. p. 10. Chron. Joh. Brompt. p. 983, 984. The Historians say, that the Nobles met in Council at Westminster, and after long Consultation made him King; that by the willing minds of all he was ac­cepted for their King, and the King himself declares, quod ipsum in Regem creaverant, that they had crea­ted him King.

Thirdly, Henry the First was invested in the Crown by the Act of the Kingdom. The Historians tell us that a Council of the whole Community rejected Robert,Unanimi ascensu suo ipsum refutavêrunt, & pro Rege om­ninò recusavêrunt, & Henricum fratrem in Regem ere êrunt. Knyght. de Event. Angl. p. 2374. In Regem electus est frater ejus Henricus, & conse­cratus est Rex Angl. M. Westm. Hist. p. 235. In Regem electus est, aliquantis tamen controver­siis inter Procéres excitatis, & Sopitis. W. Malmsb. l. 5. F. 88. J. Brompt. Chron. p. 997. Wal­sing. Hypod. Neust. p. 446. Rich. Hagulst. p. 310. the eldest Son of the Conqueror, and would not have him for their King; but with unanimous consent, they advanced his Brother Henry to the Kingdom, who was by all Elected, and Consecrated King at Westminster, after the death of Wil­liam Rufus, as being the first born of the Conqueror, after he was King of England. William of Malmsbury saith, he was Consecrated within four days after his Brother's death, lest the Rumour of Robert's coming to En­gland, [Page 37] should move the Nobles to repent of their Electi­on: Sciatis me Dei misericordia, & communi consilio Baro­num Regni Angliae, ejus­dem Regni Regem esse coronatum. M. Paris, pag. 38. And in his Charters, the King himself writes thus; Know you that I was Crowned King of En­gland by the Common Council of the Barons of the Kingdom: And 'tis observable, that his Elder Bro­ther Robert being absent at the Holy Wars, they chose Henry King, because they were affraid to be long without Government.

Fourthly, Florence of Worcester, William of Malmsbu­ry, R. Hoveden, and R. Hagulstadensis, do expressly say, that Stephen was chosen King by the Primates of the Kingdom, A Primoribus Regni, cum fa­vore Cleri & Populi, electus. R. Hagulst. p. 312. Flor. Wigorn. p. 665. Hoved. F. 215. Malm sb. F. 101. B. with the favour of the Clergy, and Laity; and that he took upon him the King­dom with their General consent; A scensu Populi & Cleri in Re­gem electus. Malmsb Hist. Nov. l. 1. F. 101. B. R. Hagulst. p. 314. and his own Charters say the same thing, as they had reason to do, he having no Title at all, but as one of the Bloud, by mere Election advanced to the Crown. Daniel, p. 69.

Fifthly, Radulphus de Diceto, Ab omnibus electus, p. 529. Saith of Henry the Second, That he was Elected by all, and annointed by Theobald, Arch-Bishop of Canterbury.

Sixthly, And of Richard the First he saith,Post tum Cleri & Populi So­lennem & de­bitam Electi­onem. p. 647. That be­ing to be promoted to be King by right of Succession, after the solemn and due Election, both of the Clergy, and Laity, he took a Threefold Oath. Hoveden adds, that he was Consecrated, and Crowned King of En­gland,F. 374. consilio & assensu, by the Council and assent of the Arch-Bishops, Bishops, Counts, and Barons.

Seventhly,P. 127. Archiepisco­pus dixit, quod nullus praevia rati­one alij succe­dere habet Regnum, nisi ab universita­te Regni una­nimiter, Spi­ritus Sancti invocata gratia, electus, & secundùm morum eminentiam praeelectus, omnes hoc acceptabant, ipsum (que) Comitem in Regem eligentes, & assumentes, ex­clamant, dicentes, Vivat Rex. Matth. Paris, p. 138. King John received the Crown by way of Election; as being chosen by the States, saith Daniel. Matthew Paris saith, That all consented to the Speech of the Arch-Bishop, that none ought to Succeed another in the Kingdom, unless he were elected by the Community, and thereupon they elected the Count, and took him for their King.

Eightly,In Regem eli­gitur. p. 474. The History of Croyland saith, That after the death of King John, Henry, his first born, was elected King.

Ninthly,Non tam jure haereditario quam unani­mi assensu Procerum, & Magnatum. Edward Franc. An. 1602. p. 95. The Succession of Edward the Second, saith Walsingam, Was not so much by right of Inheri­tance, as by the unanimous consent of the Peers, and great Men.

Tenthly, Edward the Third was elected with the Ʋniversal consent of the People upon his Father's Resignation: Walsing. Hist. Angl. p. 126. Hypod. Neust. p. 508.509. H. de Knygh­ton, p. 2550. The Parliament then met at London, declared by common consent, That Edward the Second was unworthy of the Crown, and for many Causes to be deposed, and that his first born Son Edward should unanimously be chosen King; then the E­lection is publickly declared in Westminster-hall, some of both Houses are sent to Edward the Second, qui nunciarent Electionem filij sui, who should acquaint him with the Election of his Son, and require him to resign the Crown; Electioni consensit populus uni­versus, [Page 39] all the people consented to the Election; so did all the Prelates, and the Arch-Bishop, who made an O­ration on those words, Vox populi vox Dei, and ex­horted all to pray for the King Elect.

Eleventhly, Richard the Second succeeded Ed­ward by right of Succession,H. de Knyght. p. 2630. ac etiam voto com­muni singulorum, and by the Common suffrage of all.

Twelfthly, Henry the Fourth, Fifth, and Sixth were only Kings by Act of Parliament.

Thirteenthly, Edward the Fourth, at his en­trance on the Government, makes a solemn De­claration of his Right to the Crown of England, challenging it to belong unto him by a double Right, the first as Son and Heir to Richard Duke of York,Trussel. 179. the Rightfull Heir of the same; the second as elected by the Authority of the Parliament, upon King Henry's forfeit of it.

Fourteenthly, The Parliament Roll published in Speed's Chronicle often saith,p. 913, 914. That they had chosen Richard the Third for their King, and that the Crown belonged to him as well by Election as Succession.

Fifthteenthly, And Henry the Seventh, Bacon. Hist. of Hen. VII. p. 12. to all his other Titles by Marriage, Conquest, and from the House of Lancaster, adds that of the Authority of Parliament.

SECT. VI. The Inferences from the Resolutions of the best Casuists, to prove that the Oath of Allegiance, and of the Coronation, are reciprocal; and consequently that the obligation of the Oath of Allegiance doth cease, when the Original Compact is Fundamentally violated.

NOw the Inferences which naturally flow from this Historical Account of the Kings of England, and their Government, are these:

First, That the Kings of England were Kings by virtue of an Original Compact, made between them [Page 44]and the People: this is apparent by the Contract made by the Conquerour with the Barons, and the Nobility, and Commonalty of England; and the so frequent repetition of that, or a like Contract by the following Princes of this Realm, by the Oaths they took at their Coronation, to preserve to the People their Ancient Rights, and Liberties, their Original Customs and Laws; and by the continual claim the people made to the Laws of their Coun­try, the Laws of King Edward, and the Magna Charta as their Right.

Accordingly the Lord Chancellour Fortescue, Chap. 9.13. ha­ving declared that our Kings are Political Kings, who received their Power from the People; he adds, That,Chap. 14. p. 34. non alio pacto, by no other Contract did ever any Nation willingly incorporate it self into a Kingdom; but that they by that means might more safely than be­fore enjoy Themselves, and their Goods, of which in­tent that Nation would be defrauded; if having thus submitted to the Government of a King, he might spoil them of their Goods, which before it was not Law­full for any man to do.

Secondly, That this Compact was, That the King should govern them according to the Tenor of such Ancient Laws, and Original Customes as were received among them, according to the Good, Ap­proved, and Ancient Laws of the Kingdom, saith M. Paris, the Liberties in which the Nobles confided, saith M. of Westminster; the Laws of their Country, saith W. of Malmsbury; the Laws of King Edward, say the forementioned Authours; the Proper Laws, [Page 45]and Ancient Customs in which their Fathers lived, say Hoveden, Stat. Merton. c. 9.25. H. 8. c. 21. and the Chronicle of Lichfield; the Laws of England, the Ancient Laws of this Realm origi­nally established, say our Statutes; the Laws of the Land, the good Laws of the Land, saith the Oath of Richard the Second; the Charters of the Liberties of England, the Common Liberty, say the contenders for them with King John and Henry the Third; the fundamental Laws of the Kingdom, saith King James: Let it be observed,

First, Out of Fortescue, That our Kings rule not by Royal only, Ch. 9. p. 25, 26. Ch. 13. p. 32. that is, Absolute, but by Political Power; and that therefore a King of England cannot change the Laws of the Body, nor invade their Pro­perties, but as they do consent, Ch. 13. p. 32. c. 14. p. 34. that he is advanced to the Throne for the safety of the Law, and his Sub­jects in their Goods, and Bodies, and derives even this Power from the People; and therefore cannot Lawfully Rule over them otherwise.

Secondly, That this is the difference betwixt a King Governing Absolutely, and by Political Power, that the first can change the Laws of his Kingdom, F. 25. B. 26. A. impose Taxes, and other burthens without consent of his Subjects; whereas a King who Rules Politically over his People can neither change the Laws, without consent of his Subjects, nor charge them with strange impositions against their Wills; That a King ruling only by Power Royal may easily become a Tyrant, but whilst the Kingly Power is restrained by the Po­litical Law, F. 26. B. he cannot govern his People Tyranni­cally: That the Contract made with a King gover­ning [Page 46] Absolutely, F. 35. A. is, that his Will shall be the Law; whereas a Political King cannot govern his Peo­ple by any other Power than that of the Laws.

And from these Principles it clearly follows, That a King Ruling Arbitrarily, and Fundamentally, overturning the Laws, is no such King as our Con­stitution knows, or ever did admit of; That there­fore no Obedience, or Allegiance can be due to him by Law, nor be intended in any Legal Oath, un­less we can suppose men at the same time inten­ded to preserve their Constitution, and yet desig­ned to engage themselves, and others to be assi­stant to subvert it.

Thirdly, Let us consider the Rules laid down by the exactest Casuists, touching the Cases in which the obligation of an Oath ceaseth, and apply them to the present Case. Thus then they say:

First, That when the Matter of an Oath ceaseth, the Obligation of it ceaseth also, and that the Matter of it must then be judged to cease, Tunc enim cessasse materiam censendum est, cum rerum sta­tus inter tempus jurandi, & tem­pus adimplendi, ita immutatus est, ut si quo tempore jurabatur, praevideri potuisset is qui po­stea insecutus est rerum status, non omnino juratum fuisset. San. de Juramento Prael. 7. § 7. when the state of things betwixt the time of Swearing, and of fulfilling the Oath, is so changed, that if it could have been foreseen by him who took the Oath, at the time of his Swearing, he would not have taken the Oath. When the Root of the Obligati­on is taken away, Quia Radice obligation is sublatâ, tollitur unà pullulans inde obligatio; fuit autem materia, quae causam dedit jurationi, Radix ejus obligationis, quae ex illa juratione insecuta est. Ibid. the Obligation thence [Page 47]arising must be taken away with it; now that which gave the ground for taking the Oath, is the Root of the Obligation, which followed upon the Oath.

Among the conditions which are de jure commu­ni to be understood in all Oaths, though they be not expressed; this, saith the Reverend Bishop San­derson, Subingtelli­gendum quar­to, rebus sc­stantibus, i. e. si res in eo­dem statu per­manserint quo nunc sunt, unde qui juravit reddere gla­dium, non te­netur reddere furioso, & qui juravit ducere aliquam uxorem, non tenetur ducere, si deprehendat eam esse ex alio viro gravi­dam: has, & istiusmodi conditiones in omni juramento subintelligi fas est, etsi non exprimantur; & rigidus nimis esset juramenti Interpres qui istarum aliquam ex­clusum iret. Prael. 2. §. 10. and many of the School-men, is one, viz. That things continue, and remain in the same state they were at the time of swearing; whence he that swore to restore a Sword, is not bound to do it to a mad-man; and he that swore to marry such a Woman, is not bound to do it, if he finds her afterwards with Child by another: these, and such like conditions, though they be not expressed, are to be understood in all Oaths; and he that should exclude any of them, would too rigidly interpret his Oath.

Secondly, Amesius adds,In Juramento subintelligi debent con­ditiones illae, quae ex mo­re & consue­tudine recep­râ concipi praesumuntur ab iis ad quos juramentum spectar. De Cas. Consc. l. 4. c. 22. that in an Oath all those conditions are to be understood, which by the received Customs and Manners of a Nation, are presumed to be conceived as conditions belonging to it.

And that when the formal reason of an Oath is ta­ken away, the Oath ceaseth, Quum aufer­tur ratio for­malis jura­menti, juramentum cessat ratione eventûs, qui casus est eorum qui juràrunt se obe­dituros domino aut principi alicui qui postea cessat esse talis. Ibid. § 36. Nec tene­bitur, si cesset qualitas sub qua alicui juravit, ut si Magistratus desinat esse Magistra­tus. Crot. de Jure Bel, & Pac. l. 2. c. 13. §. 18. and that this is the Case [Page 48]of them who swear to a Prince, or to a Master, who after ceaseth so to be.

Thirdly, The Casuists farther tells us, that a pro­missory Oath, made purely on such a Motive, and Foundation, supposeth the continuance of that Foundation, as the condition of its Obligation; and therefore ceaseth to oblige, when he to whom, and for whose sake it was made, tollit fundamentum illud quo nitebatur, removes the Motive and Foun­dation of it. Saunders. de juramento prae­lect. 4. p. 99. Tombs lect. 18. p. 23. For instance, Chremes the Master swears he will give to Sosia ten Crowns per annum, and Sosia the Servant swears to serve him eight years, if Sosia will not serve him the third year, Cremes is not obliged to pay him ten Crowns at the years end; or if Cremes will not pay Sosia at the years end, Sosia is not bound to serve him eight years; because this payment was the Sole foundation of Sosia's ser­vice, this service the Sole motive of Chremes's Oath.

Fourthly, They add, That without which it cannot in equity, and reason be supposed that any reasonable man would, or any honest man should take an Oath, must be supposed as a tacit condition in the taking of it; so that no person is to be sup­posed to swear to doe any thing, but with this pro­viso, as far as it is consistent with equity and ju­stice: Thus though Solomon promised to his Mo­ther not to say nay to her request, yet when she asked Abishag the Shunamite, to be given to Wife to Adonijah, because the Marriage would have been incestuous, or would have given him a pre­tence [Page 49]for disturbing of the Kingdom, Solomon breaks his promise, and thereby shews that it was made with this proviso; if I may safely and equitably do it. Hence they inser that the Laws of Nature, and Self-Preservation must give tacit limitations to our promissory Oaths, where they are general, and not expressive of Life and Death; because we have an Obligation to them antecedent to all Oaths; nor can it rationally be supposed that a man would promise to ruine and destroy himself, where the publick good did not make it necessary so to doe.

If then the Kings of England be Kings by virtue of a Compact, originally made betwixt them, and the people; if the Tenor of that Compact be on the King's part, that he would govern them according to the Tenor of their Ancient Laws, Liberties, Charters, and Customs; or as the Coronation Oath now runs, that he will confirm to the people of En­gland the Laws and Customs to them granted by the Kings of England; that he will grant to hold, and keep the Laws, and rightfull Customs which the Com­monalty of his Kingdom have, and to defend, and up­hold them as much as in him lieth; that he will pre­serve, and maintain to the Bishops, and the Churches committed to their Charge all Canonical Privileges, and due Law and Justice, and will be their Protector and Defender to his Power, and this Oath, and Com­pact be on the part of the Subject the very ground for his entring into a Promise, and Oath of Allegi­ance, the very formal Reason of it, the Motive, and Foundation upon which it is built: When any [Page 50] King of England afterward makes void his Oath by an entire virtual dissolution of those Laws he had by Oath engaged himself to keep and confirm, and plainly sets himself to destroy that Church he swore to protect and defend, and to deny them all due Law and Justice; he seemeth by just consequence to have made void the Motive, and Foundation of that Allegiance they swore to him.

Grotius informs us, that the promise of a King to his Subjects gives them a right to the thing promised, that being the Nature of all Promises and Contracts: And this it doth more certainly when it is only a promise of what was originally their Right confirmed by his Oath, Dicimus ergo ex promiso & contractu Regis, quem cum sub­ditis iniit, nasci veram & pro­priam obligationem quae jus dat ipsis subditis, ea enim est & promissorum, & contractuum natura. De jure Bel. & pacis, l. 2. c. 14. §. 8. and the very condition upon which they accepted of him or his Progenitors as their Kings, for as he rationally adds, if a People make a King by such Laws, Plane si populus Regem fece­rit non pleno jure, sed additis legibus, poterunt per eas leges contrarij actus irriti fieri aut omnino, aut ex parte, quia ea­tenus populus jus sibi servavit. Ibid. §. 2. they make void what he doth contrary to Law, because as to such things they have reserved the Right unto them­selves, or at the least they have li­mitted his Right; but to what end is all this, if by their Oath of Allegiance after­wards they virtually disannull that Right they had reserved to themselves, take off all limitations of the King's Right, and put it in his power to break all his promises without controll, by binding them­selves to the same Allegiance to him when he doth so, as when he ruleth them by Law, and observes his promises and contracts? If therefore that must [Page 51]be supposed as a tacit condition of an Oath with­out which it cannot in equity and reason be sup­posed that any reasonable man would, or any ho­nest man should take an Oath; if it cannot ratio­nally be supposed that any rational body would promise, or swear to ruine and destroy themselves, their lives and fortunes, it cannot be supposed that they would consent to such an Oath of Allegiance, as doth entirely oblige them to suffer themselves and their Constitution to be ruined; and to be as­sistant to it, and therefore the tacit condition of that Oath must be, provided that the Commands of their Superiour be according to Law, and he doth govern them by Law.

Again, if according to Fortescue our Kings Rule not by Absolute, but by Political Power, and there­fore cannot change their Laws, or invade the proper­ties of the Subject but by their consent; if he be advanced to the Throne for the safety of his Sub­jects in their goods and bodies; if this be the diffe­rence betwixt an absolute, and a political King, or King of England, that the Will of the first is his Law, but the Law is the Rule of the Will of the Second; the first can change the Laws of his King­dom without the peoples consent, the second can­not; the first may easily be a Tyrant, the second cannot govern his people Tyrannically; and if from hence it follows, that a King ruling Arbitrarily, and Fundamentally overturning the Laws, is no such King as our Constitution owns, or ever did admit of; and therefore that no Allegiance can be due to him by Law whom the Law knows not, nor ever [Page 52]did suppose, but rather always did exclude: Then he who, being a Political King, makes himself abso­lute, requiring in one of his Kingdoms to be obey­ed without reserve, in another setting up Governors and Viceroys disabled by Law to be so, in a third part of his Dominions virtually dissolving all the Laws against Popery, by admitting a Pope's Nuncio, dispensing with the Laws, forbidding them the exercise of their Religion, and the taking upon them Offices Civil and Military, and by just consequence, all the Laws of the Kingdom, by claiming an unli­mitted Power of Dispensing with them: He who was entred into a League with a Potent Monarch, to set up Popery and Arbitrary Power in England; he who was bound by the Principles of his Religion to destroy the Church of England, and to give up Protestants to suffer the punishment decreed against Hereticks by the Romish Church, and had begun to dissolve her Colleges, and silence her Bishops by an Illegal Arbitrary Commission, and was so wholly given up to the will of the Jesuits, that nothing else could be expected from him he certainly must be none of the Kings to which we swore Allegiance; and by refusing to be a political King, the only King our Laws will own, he must have absolved his Subjects from that Allegiance which is due only to such a King: If Rebus sic stantibus be, as the Reverend Bishop Sanderson saith, a condition of all Oaths; if the matter of the Oath must be then judged to cease when things so change, that if the change could have been foreseen, the Oath would not have been taken; then much more must the Obligation of it cease, when so great a change is made as from a [Page 53] political to an absolute King, from a King ruling by Law, and protecting, the Church to a King ruling against Law, and subverting the Church against both his Oath, and Law.

The same learned Bishop saith, That if a Soldier swears obedience to a General, or Commander of an Army, when he ceaseth to be General, his Oath ceaseth to oblige; Si quis ergo miles juret Ob­sequium belli Imperatori, fini­to demum bello, cum ipse de­sierit effe Imperator, non ultra tenetur ex juramento Obsequi­um ei praestare; & si Pater ali­quis juraret se Testamentum in quo filium instituisset Haere­dem nunquam mutaturum com­perto tamen postea filium Hae­redem institutum Patri vene­num miscuisse, Pater non ultra tenetur juramento. Prael. 7. §. 7. and if a Father swear never to change his Will in which he hath made such a Son his Heir, he is absolved from that Oath, if his Son afterward endeavour to poison him, that an Oath to deliver a Sword binds not to deliver it to a mad man, who may destroy himself or me with it: And an Oath to marry a Woman binds not to do it, if she prove with Child by another; why therefore should an Oath of Allegiance made to a politick King, ruling by Law, bind us to pay that Allegiance to a King thus ruling Arbitrarily; he ceasing as much to be that King we swore to, as a General plainly going about to destroy his Army ceaseth to be their General, and being as much different from his former self, as a Woman pregnant from a Virgin; and as like to be pernicious to the Government, as a Son attem­pting to poison his Father would be to him, or a Mad­man to them who should give him a Sword; and all this seems plainly to be contained in those excel­lent words of King James, Fourth Speech at Witehall A D. 1609. p. 530, 531. that the King was lex loquens, after a sort, binding himself by a double Oath to the Observation of the Fundamental Laws of his Kingdom, tacitly AS BY BEING A KING, and so [Page 54]bound to protect as well the People, as the Laws of his Kingdom, and expresly by his Oath at his Coronati­on, so as every just King in a setled Kingdom IS BOUND TO OBSERVE THAT PACTION MADE TO HIS PEOPLE BY HIS LAWS, in framing his Government agreeably thereunto; and there­fore a King Governing in a setled Kingdom LEAVES TO BE KING, AND DEGENERATES INTO A TYRANT, as soon as he leaves off to rule according to his Laws:—Therefore all Kings that are not Tyrants, or purjured, will be glad to bound themselves within the Limits of their Laws, and they that persuade them to the contrary are VIPERS and PESTS, both against them, and the Common-wealth. Where it is granted,

1. That there be Fundamental Laws of the King­dom. And

2ly. That our Kings, even by being Kings, do tacitly bind themselves to protect the People, and the Laws of their Kingdoms.

3ly. That the King makes a Paction with his People by his Laws, which Paction he is bound to ob­serve. And,

4ly. That as soon as he leaves off to rule accord­ing to his Laws, HE LAVES TO BE A KING, and then certainly we must leave to be of right his Subjects, or to owe him Allegience. And though, even in this case I cannot yet approve of Subjects taking up Offensive Arms against a King on this ac­count, because I know not what power of Avenging [Page 55]themselves they have, or how the Sword is put into their hands to doe it, nor who hath made them Judges in their own cause, yet if Providence is pleased to send a [...], another Prince to free us from a King who hath thus violated his Com­pact, and not only thus leaves to be King, but doth it also by deserting us, and so far abdicating the Government, which is our present case; then I am apt to think we may honestly accept of this deli­verance as being formerly absolved de jure from our Allegiance to such a King.

And lastly, let it be Observed that all our Kings if they were capable, were Crowned soon after their coming to the Throne, or the decease of their Pre­decessors, the Ceremony till of late being only omitted in the case of Henry the Sixth, a Child of nine months old; that at their Coronation they gene­rally took their Oaths to preserve their Peoples Rights and Liberties, and govern them by their Old and good Laws and Customs; and that they received Homage of their Subjects at the same time. That the usual custom was, and still is, first, That they take their Coronation Oath, and then the Arch-Bishop ask the People whether they be willing to sub­ject themselves, and pay their due Allegiance to a King so sworn; That if any of them at their Coro­nation refused to promise these things, they endea­voured to hinder their Coronation till they had satis­faction in that point; that sometimes the Bishops, before their Coronation, acquaint the People with the Constitution of the King and Kingdom, how the King should behave himself to them, and in what things [Page 56]they were to obey him, on which the practice of the Bishops in the case of Magna Charta, and Charta de Forestis, gives us a sufficient Comment, sometimes the Arch-Bishop at their Coronation adjures them by God not to take the Crown upon them, unless they up­rightly intended to Observe their Oaths. Sometimes they promised Homage and Allegiance only condi­tionally, provided that their Laws might be gran­ted,Of Hen. 1 M. Paris p. 38. Sub. rali igitur conventione supra­disti Comites & Barones jurave­runt [...]channi Duci Normanniae [...] & fideli servitium contra omnes homines. Annal. Mon. Burton. p. 257. M. Paris p. 1 [...]7. and that the King would be true to his engagements, as in the case of Henry the first, and of King John. Sometimes upon the attempts of their King's wholly to violate their Rights, Liberties, and Properties, they give themback their Homage, and resign it to them, and declare themselves no longer obliged to it, nor guilty if they do not pay it: So that if there were no such evidence of a contract as we have given, if the na­ture of a Political Government did not require, and suppose it, IfLiguntia est vinculum ar­ctius inter subditum & Regem utros (que) invicem connectens, hunc ad protectionem & Justum Re­gimen, illum adtribute & Jus­tum Subjectionem. Glossar. Sir H. Spelman had not so expresly said, that the Oath of Alle­giance is reciprocal betwixt King and Subject, yet these things plainly seen to prove the Oath of Allegiance is, or was at least by our Fore fathers thought to be reciprocal and if so; then have the generallity of Casuists plainly determined, that it must cease on the one part, when the very substance of it is plain­ly and perseveringly violated on the other: For bothCum aliquid promi [...]um est ob causam quae subesse putubatur, & non subest, ut si juraveris te facturum aliquid eo quod be­neficium aliquod te in petraturum sperabas, quod tamen non impetras, tunc ad implendum promisum non teneris, quia conditio illa tacitè in Juramento fuit inclusa, si beneficium impetravero, conditione autem non impletâ, promissio ipsa, licet jurata, obliga [...]e [...] B [...]ldwin de Cas. Consc. l. 2. c. 9. Cas 17. Rivet explic. Decal. p. 131, Mr. Tombs le [...] 18. p. 123, 124. Bp. Sanderson de juram. praelect. 4. § 8. p. 99. Papists and Protestants unanimously agree [Page 57]in this, that when an Oath is reciprocal, or condi­tional, if one part break the Covenant, and vio­late the condition, the other is free from the Obli­gation of the Oath: For as a conditional Proposi­tion, say Logicians, puts nothing in being, but when the condition is put, it becomes absolute; so a con­ditional Obligation becomes then only absolute, when, and whilst the condition is put, and there­fore ceaseth when it is removed. Besides, the En­gagement on the one side would not have been, without the engagement on the other; and there­fore the performance of it must depend on the per­formance of the other. And 3ly, Otherwise these Oaths would serve only for a snare to honest men, as v. g. Put the case the Governors of two Ar­mies mutually swear not to fight in so many days, if one party breaking his Oath, and fighting, the other be obliged by his Oath not to fight, it would be all one as if he had sworn to deliver up himself, and his Army to be butchered; which is contrary to the law of Nature: So in like manner, if a King hath so far violated his Oath, as to set himself directly to overthrow those Laws, and to destroy that Church he bound himself by Oath to defend; If he hath not only engaged himself in a Religion, which binds him upon pain of damnation to overthrow all the Laws made to keep it out, and to give up all his Subjects to suffer all the punishments decreed by the Roman Church against Hereticks, that is, the loss of Goods and Life; If he hath entred into a League with another potent Monarch to set up Popery, and Arbitary Government in England, and yet his Subjects must be obliged [Page 58]to bear Allegiance to him by virtue of their Oaths; then must they be ensnared so far by them, as to deliver up their Laws and Church to be destroyed, if not to assist their Prince in doing of it.

I am not ignorant that Bishop Sanderson puts the case thus,Rex aliquis simpliciter, & ci­tra respectum ad fidelitatem subditorum, jurat se Regnum administraturum justè, & se­cundùm Leges, subdui alio tem­pore simpliciter, & citra re­spectùm ad Principis Officium, jurant se ei debitam fidelita­tem, & obedientiam praestitu­ros, utri (que) obligantur quod sui est Officii fideliter facere, etsi defecerit altera pars à suo Of­ficio, ita ut ne (que) Rex solutus sit suo juramento, si subditi debi­tum Obsequium non praestite­rent, nec subditi suo, si Rex à justitiae tramite deflexerit. De juramento prael. 4. §. 8. p. 100. A King one time swears simply, and without respect to the fidelity of his Subjects, to govern the Kingdom justly, and according to the Laws; the Subjects at another time simply, AND WITHOUT RE­SPECT TO THE PRINCE'S DƲTY, swear to yield him due Fi­delity, and Obedience, they are both obliged faithfully to doe what is their duty, though the other party fail of his; so that neither is the King absolved from his Oath, if the Sub­jects do not yield him their due obedi­ence, nor are the Subjects absolved from their duty, though the King deviate from the way of Justice. By this decision I was a long time diverted from ever thinking that the Oath of Allegi­ance was Reciprocal, or made by the Subject with respect to the Duty, or the Oath of the King, or the nature of our Kingly Government, though upon perusal of our Histories I find that all our Ancestors thought otherwise, or at least acted as if they really believed the Oath was reciprocal, and made with respect to the Obligation which was upon their Sovereign, tacitly as by being a King, and expresly by his Oath at his Coronation, to protect as well as the People as [Page 59]the Laws of the Kingdom. Nor is there any thing in these words, besides the Authority of that great man, to shew the contrary. For,

1. When the King swears to protect his People, this sure doth not oblige him to protect an Out-Law, or a Rebel; 'tis therefore plain, that this part of the Oath respecteth the fidelity of his Peo­ple.

2. Whereas he saith, the King simply, and without respect to the fidelity of his Subjects, swears to govern the Kingdom justly, and according to the Laws, 'tis very reasonable he should do so; because he is a King only by, and according to the Laws, and because the Laws have provided him a remedy a­gainst the undultifulness of any of his Subjects: If any particular Subject offend against his Govern­ment, he can punish him by Law; if any number of them prove Rebels, he can cut them off by Law; if all of them prove so, when he hath power suf­ficient he hath them all at his mercy by Law, and they have forfeited both Lives and Fortunes to him, and what could he desire more? Whereas, if the Subject be bound to yield Allegiance to the King, though he deviate never so much from the way of Justice, though he usurps as much upon their Lives and Fortunes, without their violation of the Law, as if they were the worst of Rebels, they are left in a very deplorable condition, nor is it any advantage to them that they have fundamental Laws by which they ought to be governed, or that the Government is Political and tyed to the observance [Page 60]of the Laws, and not absolute, or that the Gover­nor is sworn to rule according to Law, seeing upon his Sup osition, they are as much enslaved by their Oath of Allegiance, as they could be, were their King absolute, tied to no Oaths or Laws, but free to deal with them at his pleasure.

Nor doth it alter the case at all, that the King swears to govern by Law at one time, and many of them swear Allegiance at another: For besides what I have shewed, that the custom antiently was, and still is, at the very time of his taking his Coronation Oath, for the Subjects to declare their acceptation of him, thereupon as their King, and for some of all Or­ders to doe him immediate Homage in the name of the Rest, which seem to be evident marks of Stipula­tion, and Mutual Engagement: I say, besides this it seems not at all material to the business, when the Oath is taken, provided that the Ground, Rea­son, and Foundation, or chief Motive of it, whenso­ever it be taken, is the aforesaid contract of the King to govern them by Law, either already made, or at his Coronation to be made.