King Charles the First but they are afraid of the reproach and scandal as if they did allow of that by doing the like But the Case is extreamly different the one King being a well-resolved Protestant the other a seduced Papist Charles the First gave as great assurances of his constancy in the Protestant Religion by taking the Holy Sacrament publickly and purposely for the satisfaction of his Subjects by disputing for it against Papists by charging his Children against it a little before his death and even then giving a full Testimony of dying in it But James the Second contrary to his Education and his Royal Father's Charge deserted that Religion espoused Popery and resolved to introduce it to his Kingdom which he deserted rather then he would forego that design His Father lost his life to preserve the Church and the Established Religion which King James industriously sought to destroy and in fact he had destroyed the Government Established before he deserted the Kingdom 2ly There was a great disparity in their actions tho' Charles the First was unhappily forced from the full Administration of the Government and Protection of his Loyal Subjects yet he kept within the Kingdom and endeavoured to assert his and his Peoples Rights not by the Sword only but by many Treaties and gracious Condescentions such as satisfied all sober persons even among his Adversaries as by their too late Votes on that behalf appeared He did not declare that he was Absolute and expected Obedience to his Commands without any Reserve he did not Imprison his Bishops only for Petitioning in a matter of Conscience as James the Second and the Enemies of Charles the First did Fears and Jealousies or very light Impositions on the People for urgent Necessities were made the Ground of the War against Charles the First but real and intollerable Greivances such as the Subjects could not bear nor knew how to remove 3ly There is a great disparity in the adverse Parties Charles the First was opposed by his Subjects James the Second by a free Prince to assert a just Right the better part of Charles the First 's Subjects adhered to him and dyed for him and at length the whole body of the Nation being convinced of the Injustice of the War recalled Charles the Second to succeed his Father And I hope no man will compare the Benefits we have received by the present King's proceedings with the Mischiefs that we endured and expected greater not only from the Vsurpers on Charles the First but the transactions of James the Second And such persons do as surely deserve as they will draw on themselves that Popery and Slavery which they abhor who are not satisfied with that happy Deliverance which they now injoy and by their Thankfulness and Obedience to God and the King may be confirmed to them and their Posterity so that I am well perswaded that they who ingaged against Charles the First were highly criminal and that they who since James the Second deserted the Kingdom shall ingage for him are really peccant The second Consideration is Whether the King having on these grounds begun a War and gotten quiet possession of the Kingdom and by the People acknowledging the Right of his Lady to the Succession on the Vacancy by Desertion are proclaimed King and Queen have a just Title and such as we ought to swear Allegiance to As to the Vacancy of the Government I have said enough already and all will grant that if a Crown be Forfeitable ours was forfeited Now in case of this Vacancy the Right of Succession by our Laws is in the next Heir which is the present Queen and that she ought immediately to succeed because by a Maxim in our Laws the King never dies and the sole Administration is to be in her and therefore it is objected That we cannot swear Faith and true Allegiance to any other Answ Seeing all Oaths and Acts that oblige the Subjects are in the name of the Queen as well as of the King we pay our Obedience where it is due and this may satisfie the Conscience of every one as to our present Condition at least until there be a separation made And if the sole Power should be devolved on the present King the consent of the next Heir being obtained to whom is the Injury done Not to the Princess Anne for velenti non fit injuria not to the People for the same reason they having expressed their consent but this hath its President in the Case of Henry the Seventh as is already said If in discussing the Right of Succession a question do arise concerning the Primary Will and Intention of the People at the first Institution of a Kingdom it is not amiss to take the Advice of the present People i. e. of the Nobles Clergy and Commons as Cambden says of England Anno 1571 1572. Grotius l. 2. c. 7. n. 27. And the Equity of it seemeth apparent that he who redeemed the Crown may wear it by consent of the People and the consent of the right Heir nor can the People be blamed for joyning in such consent because it hath been thought a Duty in Gratitude that such Heroes as have vindicated a People from Thraldom and become great Benefactors to them have been by consent of the People acknowledged their Kings So Aristotle Polit. l. 3. c. 10. n. 89. And in such a juncture of Affairs the whole Protestant Cause lying at stake the Kingdom of Ireland being possessed by Papists and many Divisions in our own Nation there is need of more than the Authority of a single person The Act of 13 of Eliz. asserts it to be in the Power of the Parliament to alter or limit the Succession And as to matter of fact such alteration hath been made for in the Cases of Queen Mary and Queen Elizabeth the Succession was altered because one of them was Illegitimate Again Quod fieri non debuit factum Valet The necessity of Affairs that inforc'd it may speak much in defence of it As Josephus says of the Jews submitting to the Roman Emperours That having submitted to them they ought not to make resistance And if by tract of time an Empire which was unjustly acquired may justly be submitted to because of an implicite Consent of the People to such an Empire I see no cause but the express actual Consent of a People to a Prince may justly oblige them Such a Consent of the Senate and People to the Roman Emperours was the ground of our Saviour's Injunction for paying Tribute and of the Apostles requiring Subjection to them And so we may conclude as Hushai did 2 Sam. 16.18 Whom the LORD and this People and all the Men of Israel shall choose his will I be and with him I will abide FINIS
rule by Day and the Moon by Night and one Star differeth from another Star in glory And when he made the first man he gave him dominion over all the works of his hands he was to rule his Wife and she to live in subjection to him and when he became a Father his Children were to yield him obedience And when the Families of the Earth were multiplied so that one Father or Family could not claim Authority over the rest and considering the great corruption of Nature it was impossible but Violence and Injustice would be practised Mankind saw a necessity of setting up one Common Father over many Families to suppress Violence redress Injuries and distribute Justice To this purpose Mr. Hooker l. 1. c. 10. Two Foundations there are which bear up Publick Societies the one a natural inclination whereby all men desire a sociable life and fellowship the other an order expresly or secretly agreed on touching the manner of their union in living together for if when there was but one Family in the World the means of instruction Humane and Divine could not prevent shedding of Blood how could it be but when Families were increased each providing for it self strife contention and violence must grow among them To take away such mutual Grievances Injuries and Wrongs there was no way but only by growing unto composition and agreement among themselves by ordaining some kind of Publick Government and by yielding themselves subject thereunto that to whom they granted Authority to Rule and Govern by them the Peace and Tranquility of the rest might be procured No man might in reason take upon him to determine his own right therefore strife and troubles would be endless except they gave their common consent to be ordered by some whom they agreed on without which consent there was no reason one man should take on him to be Lord or Judge over another and over a multitude of Families impossible it is that any one should have compleat power but by consent of men or immediate appointment of God. All publick regiment of what kind so ever seemeth evidently to have risen from deliberate advice consultation and composition between men judging it convenient and behoofful And the corruption of Nature presupposed the Law of Nature doth necessarily require some kind of regiment and men saw that to live by one man's will became the cause of all mens misery this constrained them to come to Laws wherein all men may fee their Duties and know the Penalties of transgnessing them And tho' wise and good men are fit to make Laws yet Laws take not their constraining power from those that make them but from the power which gives them the strength of Laws And by natural Law the lawful power of making Laws whereto all Societies are subject belongs so properly to those entire Societies that for any Prince or Potentate of what kind so ever to exercise the same of himself and not either by express Commission from God or Authority derived from their consent upon whose persons they impose Laws is no better than Tyranny Laws they are not which publick approbation hath not made So far judicious Hooker in as evident a manner as any demonstration in Euclid to which add that observation of Mr. Selden Selden de Jure Nat. l. 1. c. 8. p. 106. By permission of Nature it hath been granted that whatsoever hath been by men joyned in society limited forbidden or constituted that they are bound to keep who have so consented according to the Conditions and Qualifications with which it is prescribed even as many as have and as they have given their consent But whence is it they are so bound from the Authority of a Deity i. e. of man's Superior even in those things the rise of the obligation is derived and therefore from some heads of the obligation of the Law of Nature Lod. Vives on St. Aug. de Civitate Dei l. 4. c. 5 6. takes notice of the first words of Justin viz. That in the beginning the rule of Nations was in the hands of Kings whom not popular ambition but their moderate carriage approved by the good advanced to that height of Honor on which he gives this comment That the People elected those Kings to themselves to be Guides Governors and Overseers of the Publick Interest and they were not compelled to take such a one as hapned any way to them neither did Nobility or the seeking of a party carry it every man 's own private good with the good of the Publick was so dear and near to him that it made him to make choice of none but the best And it is observable from Livy and other Roman Historians that their five first Kings were chosen by the Senate and People and that Tarquinius Superbus was by them deposed Neque enim ad jus regni quicquam praeter vim habe bat ut qui neque populi jussu neque patribus autoribus regnavit to which that of Juvenal agreeth speaking of the People Satyr 10. Qui dabat olim Imperium fasces legiones omnia In our Nation when the Romans invaded the Land the People chose Cassibilane their King. On the death of Hardicanute the third Danish King they chose Edward the Confessor and on the death of William the Conqueror they chose William Rufus and of four that succeeded the Conqueror not one had the right by neerness of descent It is objected against this Opinion of Electing our Governors That the People having no power over their own lives cannot give that power to any other Answ It is not the People that confer this power but God who by his Law hath given this power to all supreme Magistrates That he that sheddeth man's blood by man shall his blood be shed The People are only a Medium of conveying this power of the Magistrate to a particular person God is the Author of the Magistrates power to which the punishment of Murtherers is annexed for the general Rule is That the Magistrate shall bear the Sword for the punishment of evil doers and Capital punishment is in some cases just the People only apply this general Rule and determine the power to be in such a particular person for the terror of evil doers so that though I being a private person have no power over my own or another man's life yet the Magistrate hath by the Institution of his Office from God. St. Paul Acts 25.11 says as much If I have done any thing worthy of death I refuse not to die The Ordinance of Government is from God and Nature but the Species of it whether by one or more is from Men and the Rule for administration is by mutual agreement of the Governor and those that are to be governed from whence probably that which by St. Paul is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 God's Ordinance as to Government in general is by St. Peter 2.13 called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Humane Constitution as to the
particular Species for so the Supreme Power is called whether to the King as Supreme As for the Patriarchal Constitution and a Lineal Descent by proximity of Blood it is so near to an impossibility of finding out the right Heir to the first Father of a People that we must let that alone for ever And as for Conquest Grotius l. 1. c. 4. § 16. says He that doth usurp a Government and afterward enters not into a Compact with the People as it is evident William the Conqueror did who also pretended a right prior to his Conquest nor is there any trust reposed in him but his possession is maintained by force the right of War doth in this case still continue so that it is lawful in all things to deal with him as with an Enemy And l. 1. ch 4. § 7. N. 3. It is to be observed saith Grotius That men did not at first unite in civil Communities by any Command from God but voluntarily and from the experience which they had that private Families were unable to resist any foreign force from hence grew Civil Power which St. Peter therefore calls a Humane Ordinance though elsewhere it is called a Divine Ordinance because God did approve thereof as suitable and convenient for the good of Mankind but when God approves of a Humane Law he must be supposed to do it as Humane and after a Humane manner Concerning the Rise of our Government which is the Second Query I shall search no farther than the Reign of William called the Conqueror who in truth disclaimed that Title pretending a right to succeed by a Grant from King Edward and an Oath of Harold who swore to preserve the Kingdom for him after the death of Edward King Edward being dead many of the Nobles invited William to take the Crown but Harold contrary to his Oath assumes it whereupon he resolves to vindicate his Title by the Sword the Pope sending him a consecrated Banner and approving his Title and shortly after his landing slays Harold in battel and marching to London is proclaimed King and crowned by Aldred Arch-bishop taking the Coronation-Oath which was injoyned by King Edward and is the same in substance with that which is still administred and in the Title of his Laws made in the fourth Year of his Reign he stiles himself Heir and Cousin to Edward the Consessor Spelman's Councils p. 619. and confirmed all St. Edward's Laws And his Son Henry declares his Father's Title thus Qui Edvardo regi Haereditario Jure successit Selden ad Eadmerum p. 211. Henry the First his Son abolished the Norman Laws which his Father added as Cooke in the Proeme to l. 3. of his Reports Afterwards the Barons threatned King John to seize his Castles if he would not confirm their Laws which they did until they got the Magna Charta It appears then that our Government is not an Absolute Monarchy such as that of the Turks and the ancient Emperors of Rome whose Wills declared by Edicts had the force of Laws as is evident from 1. The Manner of Making Laws the Legislative Power being divided between Prince and People And 2. The Mutual Oaths and Obligations that pass between the Prince and People and because * Quas vulgus eligerit no Laws oblige the Subject but what are agreed on by Prince and People in Parliament 3. Nor can any Money without their consent be raised And whatever Laws have been thus made in former Ages and stand unrepealed do respectively oblige both Prince and People in future Ages So that when Laws are thus made it is not in the power of Prince or People to annul them but by the same Authority by which they were made by which it appears that the Legislative Power which is a chief Property of Soveraignty is not solely in the Prince yet may he pardon the Persons of some Offenders and remit the Penalties in some Cases wherein Salus Populi Suprema Lex which Maxim as it leaveth in the Prince a power of dispensing with the rigor of the Law as he shall see it expedient for the publick good so it leaveth also in the Subject a liberty upon just occasions as in cases of great exigency and for preventing of such hazards and inconveniencies as could not be foreseen or prevented and might prove of noisom consequence to the publick to do other wise than the Letter of the Law requireth See Sanderson's Case of the Liturgy p. 170. for which he gives this reason viz. It may well be presumed that the Law giver who is bound in all his Laws to intend the safety of the Publick and of every Member thereof in his due proportion hath no intention by the observation of any particular Law to oblige any person who is a member of the Publick to his destruction or ruine when the common good is not answerably promoted thereby Upon which ground it is generally resolved by Casuists that no Constitution meerly humane can lay such obligation on the Conscience of the Subject but that he may according to exigency of circumstances do otherwise than the Constitution requireth This leads me to the Third Querry The Third Query which is concerning the Obligation of the Coronation Oath and the Oaths taken by the Subjects of which I shall speak joyntly because the Obligations are relative and reciprocal There cannot be a more solemn Oath than that which is taken by our Princes at their Coronation to which the Prince is obliged as to the Matter of it before his Coronation as well as the Subject is bound to the Prince tho' not not crowned the Prince is our natural and liege Lord as we are his natural and liege Subjects i. e. according to Law. The Oath as I find it taken by King Charles First of blessed Memory is this Quest Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs to them granted by the Kings of England your lawful and religious Predecessors and namely the Laws Customs and Franchises granted to the Clergy by your glorious King St Edward your Predecessor or according to the Laws of God the true Profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customs of this Realm Answ I grant and promise to keep them Q Sir Will you keep Peace and Godly Agreement intirely according to your power both to God and Holy Church the Clergy and People A. I will keep it Q. Sir Will you to your power cause Law Justice and Discretion in Mercy and Truth to be executed in all your Kingdoms A. I will. Q. Will you grant to hold and keep the Laws and rightful Customs which the Commonalty of this your Kingdom have And will you defend and uphold them to the Honour of God so much as in you lieth A. I grant and promise so to do Our Lord the King we beseech you to pardon
simply made yet it doth Subjacere civili Intellectui as Jer. 18.7 8. where God speaks conditionally of plucking up and destroying a Nation If that Nation turn from their evil ways I will repent of the evil c. The Conditions may exclude the event and the Oath remain good So that if the Prince to whom we swear do wholly pervert the end of the Oath and require us to act contrary to the ends for which we sware we are not obliged to obey him contrary to our Oaths These things premised will lead to a full understanding of the Declaration required in the Act for Uniformity viz. I do declare that it is not lawful upon any pretence whatsoever to take Arms against the King c. i. e. This is only a declaration of a Man's private Judgement according to the best information which he hath at present nor can any man suppose that the position which is indefinite can reach to every Kingdom and therefore may be false as to such Kingdoms viz. that of Poland where in some cases Resistance is permitted and in our Nation where the Laws are made the measure of the King's power because as Baldus Confil 1.245 says Clausula deplentitudine potestatis semper intelligenda est de potestate bona Laudabili 2ly It may be dubious or rather out of doubt because it is possible for a King exuere Regis personam as in case of Resignation Desertion or great Distraction such as the late King of Portugal who in his Madness slew divers Subjects and in such cases Nature dictates that we may vim virepellere as David defended himself against Saul And the Deposing of the King of Portugal was approved as by other Nations so by the English particularly So that this Declaration though in general terms may admit of exception as other such Declarations do as when I declare according to the fourth Commandment That it is not lawful to do any manner of work on the Sabbath-day yet Periculum vitâ tollit Sabbatum and such cases of necessity may happen as may make some kind of Work lawful to be done on that day And it is a good Rule in Law and Equity that Omnia dicta quantum vis universalia equitatem admittunt interpretem So when I declare according to the Apostle That Children ought to obey their Parents in all things the exception against things sinful is understood And if a King in his Lunacy committing several acts for the Destruction of his innocent Subjects may be restrained so may such a Prince Qui Sobrius ad evertendam rempublicam accedit If our Promise confirmed by Oath be grounded on a condition whereto it related that condition not being performed makes the Promise void L. 2. c. 13. n. 16. Gr. de J. Belli Or if the quality of the person cease the Oath sworn to that person in relation to his quality doth cease also L. 2. c. 13. n 18. Every Contract though sworn is to be understood with this reserved condition That matters continue in the same state but not if they be changed A wise Man saith Seneca changeth not his Resolution all things continuing as they were at the time that he made it nor can he be said to repent because at that time no better Counsel could be followed than that he resolved on L. 2. c. 16. n. 27. Eadem mihi omnia praesta idem sum 3ly Nor can a man declare it to be a traiterous position in some cases though he himself do abhor it in other cases to take up Arms by the King's authority against his person or against those that are commissioned by him because such Commissions may be granted to persons that by Law are disabled to take such Commissions or the Commissions may be forged as in the late Irish Rebellion or they may be extorted from the King being under the power of his Enemies and in fear of his life such was the case of Edward the 5th when Richard Duke of Glocester seized on his Person raising a War and granting Commissions in the King's Name Suppose that his Mother Queen Elizabeth who had then the Broad Seal brought to her by the then Arch-bishop of York had raised another Army to free the King from the Usurper's power could this either justifie the Duke and his Party or condemn the Queen and her Adherents And what hath happened may happen again As in the Case of Ireland where Commissions are granted to Papists who are unqualified Query Whether it may not be lawful for the Protestants of that Nation to defend by Arms such as by those Commissions assault them for the destruction of their Religion Laws and Liberties So that notwithstanding this Declaration if there be Laws and Oaths and certain contingent Cases whereof the Subject that makes the Declaration is ignorant which do allow a defence of the Crown Religion Laws and Liberties such defence may be lawful notwithstanding the Declaration as in case it should happen that the King wholly deserts and renounceth the Government Which leads me to answer your Sixth Query Whether it being granted that the King 's being studiously bent on the Alteration and Subversion of the Government established in Church and State do amount to a Renunciation of the Government After that Grotius had urged all the Arguments he thought of for Non-resistance he thought fit to admonish his Reader of something lest he should think that he had offended against that Law of Non-resistance when indeed he had not and the Admonitions are these First Such persons as are under compact with the People if they offend against the Laws may be restrained by force And if a King abjure his Kingdom and desert it all things are lawful against him as against a private person for which he quotes Barclay who was the greatest assertor of Monarchy who says If a King alienate his Kingdom or subjects it to another he loseth it Grotius his words are Si Rex reipsà tradere regnum aut subjicere moliatur quin ei resisti in hoc possit non dubito nam aliud est perium aliud habendi modus qui ne mutetur obstare potest populus id enim sub imperio comprehensum non est Seneca l. 3. Controvers Et si parendum in omnibus patri in eo non parendum in quo efficitur ut non sit pater And Barclay says A Kingdom may be lost if a King be carried on to the destruction of the People Consistere enim non potest voluntas imperandi voluntas perdendi Again If the King have one part of the Empire and the People another the King attempting to destroy the Peoples right a just force may be opposed and this saith he I think to have place although it be affirmed that the power of War or Militia is in the King for that is to be understood of foreign War for he that hath right hath power to defend that right Grotius on Hester 8.11 concerning the