Their Highnesses who shall blame them for any inconveniency that may arise from thence since they have declared themselves so freely on this Subject and that so much to the advantage even of the Roman Catholicks And since the Settlements of matters sticks at this single point that Their Highnesses cannot be brought to consent to things that are so contrary to Laws already in being and that are so dangerous and so hurtful to the Protestant Religion as the admitting of Roman Catholicks to a share in the Government and to places of Trust and the repealing of those Laws that can have no other effect but the Securing of the Protestant Religion from all the Attempts of the Roman Catholicks against it would be You Write That the Roman Catholicks in these Provinces are not shut out from Employments and places of Trust But in this you are much mistaken For our Laws are express excluding them by name from all share in the Government and from all Employments either of the Policy or Justice of our Country It is true I do not know of any express Law that shuts them out of Military Employments that had indeed been hard since in the first Formation of our State they joyned with us in defending our publick Liberty and did us eminent service during the Wars therefore they were not shut out from those Military Employments for the publick sifety was no way endanger'd by this both because their numbers that served in our Troops were not great and because the States could easily prevent any Inconvenience that might arise out of that which could not have been done so easily if the Roman Catholicks had been admitted to a share in the Government and in the Policy or Justice of our State I am very certain of this of which I could give very good proofs that there is nothing which Their Highnesses desire so much as that his Majesty may reign happily and in an intire Confidence with his Subjects and that his Subjects being perswaded of his Majesties fatherly affection to them may be ready to make him all the returns of duty that are in their Power But their Highnesses are convinced in their Consciences that both the Protestant Religion and the safety of the Nation would be exposed to most certain Dangers if either the Tests or those other Penal Laws of which I have made frequent mention should be repealed Therefore they cannot consent to this nor concur with his Majesties Will for they believe they should have much to Answer for to God if the consideration of any present advantage should carry them to consent and concur in things which they believe would be not only dangerous but mischievous to the Protestant Religion Their Highnesses have ever paid a most profound duty to his Majesty which they will always continue to do for they consider themselves bound to it both by the Laws of God and of Nature But since the matter that is now in hand relates not to the making of new Laws but to the total Repealing of those already made both by King and Parliament they do not see how it can be expected of them that they should consent to such a Repeal to which they have so just an aversion as being a thing that is contrary to the Laws and Customs of all Christian States whether Protestants or Papists who receive none to a share in the Governments or to publick Employments but those who profess the publick and established Religion and that take care to secure it against all attempts whatsoever I do not think it necessary to demonstrate to you how much their Highnesses are devoted to his Majesty of which they have given such real Evidences as are beyond all verbal ones and they are resolved still to continue in the same Duty and Affection or rather to encrease it if that is possible I am SIR Yours c. Nov. 4. 1687. Reflexions on Monsieur Fagel's Letter SIR I Shall endeavour to Answer yours as fully and briefly as possible 1. You desire to know whether the Letter I sent you be truly Monsieur Fagel's or not 2. Whether their Highnesses gave him Commission to Write it 3. How far the Dissenters may rely on their Highnesses word 4. What effects it has on all sorts of People Sir Roman Catholicks may be pardoned if they endeavour to make that Letter pass for an Imposture it is their Interest so to do and they are seldom wanting to promote that let the methods be never so indirect which they are forced to make use of It does indeed spoil many hopeful Projects of theirs But how any Protestant among us can really doubt the truth of it is strange to me Some things carry their own evidence along with them I take this Letter to be one of that kind I do not desire you to believe me upon my bare affirmation that I know it to be genuine tho this be most true but shall offer my Reasons to convince you that it cannot be otherwise First The Letter is like its Author the matter is weighty the Reasoning solid the Stile grave full and clear like that of a Lawyer It has an Air all over which as well shews the Religion and Temper of its Writer as the Matter and Method of it do his Capacity and Judgment Now all these Qualities make up the Character of Monsieur Fagel Secondly There are the same grounds to believe this Letter to be M. Fagel's as there are to believe any thing you have not seen Viz. The constant Asseverations of Persons of undoubted Credit that come from Holland who all agree in it and assure us of it M. Fagel own'd it to several English Gentlemen and many both here and in Holland knew two Months ago that such a Letter was written a Forgery would before this time have been detected especially such a one as ruines the Designs of the Triumphing Party Thirdly It was written by M. Fagel in answer to Letters from Mr. Stewart sent by his Majesties special Orders and Mr. Stewart had both an English and Latin Copy sent him Therefore the English Copy is not called a Translation but it is a sort of Original For you are not to doubt but the matter was ordered so that her Royal Highness might peruse it as well as his Majesty In the next place you would know whether their Highnesses gave Order to Monsieur Fagel to write it I wish Sir you would take the pains to read the Letter over again and consider who this Monsieur Fagel is He is Pensionary of Holland and first Minister of State raised to that Dignity by the Prince's Favour he Answers Letters written to him which are ordered by his Majesty to be Communicated to their Highnesses In his Answer he gives an Account of their Highnesses Opinions about the Repeal of the Penal Laws and Test matters of a National Concern and of the greatest Importance Now you must have a strange Opinion of Monsieur Fagel if you think him capable
Parliament guilty of exercising an arbitrary Power if their Proceedings be not regulated by written Laws but by Salus Populi Ans For the Parliament to be bound up by written Laws is both destructive and absurd First it is destructive it being the Fundamental Court and Law or the very Salus Populi of England and ordained as to make Laws and see them executed so to supply their Deficiency according to the present Exigency of things for publick Preservation by the Prerogative of Salus Populi which is universally in them and but particularly in particular Laws and Statutes which cannot provide against all future Exigents which the Law of Parliaments doth and therefore are not they to be limits to this And it would yet be further destructive by cutting the Parliament short of half its Power at once for it being a Court both of Law and Equity as appears by the Power of making Laws which is nothing but Equity reduced by common Consent into Polity when ever it is circumscribed by written Laws which only is the Property of inferiour Courts it ceaseth to be supreme and divests it self of that inherent and uncircumscribed Power which Salus Populi comprehends Secondly as it is destructive so also it is absurd for the Legislative Power which gives Laws is not to receive Laws saving from the nature and end of its own Constitution which as they give it a being so they endow it with Laws of Preservation both of it self and the whole which it represents I would not herein be mis-understood as if the Parliament when as it only doth the Office of inferiour Courts judging between Party and Party were not limitted by written Laws there I grant it is because therein it only deals between meum and tuum which particular written Laws can and ought to determine so that its superlative and uncircumscribed Power I intend only as relating to the Universe and the Affairs thereof wherein it is to walk by its fundamental Principles not by particular Precepts or Statutes which are made by the Parliament between King and People not between People and Parliament they are ordained to be Rules of Government to the King agreeing with the Liberty and Property of the People and Rules of Obedience to the People without detainment of their Freedom by the Exercise of an illegal usurped and unconsented Power whereunto Kings especially in hereditary Monarchies are very prone which cannot be suspected by a Parliament which is representatively the Publick intrusted for it and which is like to partake and share with the Publick being but so many private Men put into Authority pro tempore by common Consent for common Good Nor is the Parliament hereby guilty of an arbitrary Government or is it destructive to the Petition of Right when as in providing for Publick-weal it observes not the letter of the Law First because as aforesaid that Law was not made between Parliament and People but by the People in Parliament between the King and them as appears by the whole tenour of it both in the complaining and praying parts which wholly relate to the King Secondly because of the common Consent that in the representative Body the Parliament is given thereunto wherein England in her Polity imitates Nature in her Instincts who is wont to violate particular Principles for publick Preservation as when light things descend and heavy ascend to prevent a Vacuum And Thirdly because of the equitable Power which is inherent in a Parliament and for publick Good is to be acted above and against any particular Statute or all of them And Fourthly because the end of making that Law to wit the publick Preservation is fulfilled in the breaking of it which is lawful in a Parliament that is chosen by the whole for the whole and are themselves also of the Body though not in a King for therein the Law saith Better a mischief than an inconvenience But it may be objected Though it be not arbitrary for the Parliament to go against written Law yet is it not so when they go against the Kings Consent which the Law even the fundamental Law supposeth in Parliamentary Proceedings This hath been answered That the King is juridically and according to the intention of the Law in his Courts so that what the Parliament consults for the publick Good That by Oath and the Duty of his Office and Nature of this Polity he is to consent unto and in case he do deny it yet in the Construction of the fundamental Law and Constitutions of this Kingdom he is conceived to grant it supposing the Head not be so unnatural to the Body that hath chosen it for good and not for evil But it will be answered Where is the Kings Negative Voice if the Parliament may proceed without his Consent I answer That there is no known nor written Law that gives him any and things of that nature are willingly believed till they be abused or with too much Violence claimed That his Majesty hath fundamentally a Right of Consent to the Enacting of Laws is true which as aforesaid is part of that honourable Trust constituted in him And that this Royal Assent is an Act of Honour and not of Absolute and Negative Power or Prerogative appears by these following Reasons First by his Oath at the Coronation mentioned in one of the Parliaments Declarations where he doth or should swear to confirm and grant all such good Laws as his People shall choose to be observed not hath chosen for First The word concedis in that Oath were then unnecessary the Laws formerly Enacted being already granted by foregoing Kings and so they need no more Concession or Confirmation else we must run upon this Shelf that all our Laws die with the old King and receive their being anew by the new Kings Consent Secondly hereby the first and second Clause in that Interrogatory viz. Concedis justas leges permittas protegendas are confounded and do but idem repetere Thirdly Quas Vulgus elegerit implies only the Act of the People in a disjunctive sense from the Act or Consent of the King but Laws already made have more than Quas Vulgus elegerit they have also the Royal Consent too so that that Phrase cannot mean them wherein the Act or Consent of the King is already involved Secondly by the Practise of requiring the Royal Assent even unto those very Acts of Subsidies which are granted to himself and for his own use which it is supposed he will accept of and yet Honoris gratia is his Royal Assent craved and contributed thereunto Thirdly by the Kings not sitting in Parliament to debate and consult Laws noâ— are they at all offered him by the Parliament to consider of but to consent to which yet are transmitted from one House to another as well to consult as consent to shewing thereby he hath no part in the consultory part of them for that it belongs only to the People in Parliament to discern and
Justice is exactly kept VII And lastly Never to ingage themselves in the beginning of a Cause but reserve themselves unprejudged till the whole business be heard Then the Earl goes on and makes notes for Additional Defences reducible to these Heads I. The absolute innocence af his Explication in its true and genuine meaning from all crime or offence far more from the horrible Crimes libelled II. The impertinency and absurdity of His Majesty's Advocate 's Arguings for inferring the Crimes libelled from the Earl's words III. The reasonableness of the Exculpation IV. The Earl's Answers to the Advocate 's groundless Pretences for aggravating of his Case As to the first The Earl waving what hath been said from common Reason and Humanity it self and from the whole tenour and circumstances of his Life comes close to the point by offering that just and genuine Explanation of his Explication which you have above Num. 21. I have delayed hitherto to take the Oath appointed by the Parliament to be taken betwixt and the first of January next But now being required near two months sooner to take it this day peremptorily or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstanding whereof I have endeavoured to satisfy my self with a just Explication which I here offer that I may both satisfy my Conscience and obey Your Highness and your Lordships Commands in taking the Test though the Act of Parliament do not simply command the thing but only under a certification which I could easily submit to if it were with Your Highness's favour and might be without offence But I love not to be singular and I am very desirous to give obedience in this and every thing as far as I can and that which clears me is that I am confident whatever any man may think or say to the prejudice of this Oath the Parliament never intended to impose contradictory Oaths and because their sense they being the Framers and Imposers is the true sense and this Test enjoined is of no private interpretation nor are the King's Statutes to be interpreted but as they bear and to the intent they are made therefore I think no man that is no private Person can explain it for another to amuse or trouble him with it may be mistaken glosses But every man as he is to take it so is to explain it for himself and to endeavour to understand it notwithstanding all these Exceptions in the Parliament's which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistent with it self and the Protestant Religion which is wholly in the Parliament's sense and their true meaning Which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the Word of God and contained in the Confession of Faith recorded J. 6. p. 1. c. 4. And not out of Scruple as if any thing in the Test did import the contrair But to clear my self from Cavils as if thereby I were bound up further than the true meaning of the Oath I do declare That by that part of the Test that there lies lies no obligation on me c. I mean not to bind up my self in my station and in a lawful way still disclaiming all unlawful endeavours To wish and endeavour any alteration I think According to my Conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And by my Loyalty I understand no other thing than the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this Explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to swear and with it I am willing to take the Test if your Royal Highness and your Lordships allow me Or otherwise in submission to your Highness and the Councils pleasure I am content to be held as a Refuser at present Which Explanation doth manifestly appear to be so just and true without violence or straining so clear and full without the least impertinency so notore and obvious to common sense without any Commentary so loyal and honest without ambiguity and lastly so far from all or any of the Crimes libelled that it most evidently evinceth that the words thereby explained are altogether innocent And therefore it were lost time to use any Arguments to enforce it Yet seeing this is no trial of wit but to find out common sense let us examine the Advocate 's fantastical Paraphrase upon which he bottoms all the alledged Crimes and see whether it agrees in one jot with the true and right meaning of the Earl's words and as you may gather from the Indictment it is plainly thus I have considered the Test which ought not to be done and am very desirous to give obedience as far as I can but am not willing to give full obedience I am confident the Parliament never intended to impose contradictory Oaths that is I am confident they did intend to impose contradictory Oaths and therefore I think no man can explain it but for himself that is to say every man may take it in any sense he pleases to devise and thereby render this Law and also all other Laws tho not at all concerned in this Affair useless and so make himself a Legislator and usurp the Supreme Authority And I take it in so far as it is consistent with it self and the Protestant Religion whereby I suppose that it is not at all consistent with either nor was ever intended by the Parliament it should be consistent And I declare that by taking this Test I mean not to bind up my self in my station and in a lawful way to wish or endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty Whereby I declare my self and all others free from all obligation to the Government either of Church or State as by Law established and from the duty and Loyalty of good Subjects Resolving of my self to alter all the Fundamentals both of Law and Religion as I shall think fit And this I understand as a part of my Oath that is as a part of the Act of Parliament by which I take upon me and usurp the Royal Legislative Power Which sense and Explanation as it consists of the Advocate 's own words and was indeed every word necessar to infer these horrible Crimes contained in the Indictment so to speak with all the modesty that truth will allow I am sure it is so violent false and absurd that the greatest difficulty must be to believe that any such thing was alledged far more received and sustained in judgment by Men professing only reason far less Religion But thirdly If neither the Earl's true genuine and honest sense nor this
Government is ours their Servants were Slaves and their Kings and Emperours Wills were their Laws their People had no Magna Charta's to show nor Fundamental Compacts and so could plead no injustice in any command the frame of the Government Warranted all those commands that had the Royal pleasure Their Political Power was more extensive than their Moral Power The People were wholly at the Mercy of the Prince All their Laws were Acts of Grace not fundamental Reserves and inherent Rights and therefore in Spirituals they had no Cause to resist and in Temporals they might not as was observed above If they had been under limited Governments as we are we might have heard of Blows as well as Words St. Paul was never so virulent with his Tongue as when he was smitten contrary to Law Obj. 3. But the Person of the King is sacred and must not he touched Answ I say so too but it is his just Power that makes him so And therefore in dangerous times he is to be counselled and perswaded to secure himself by keeping within the Sanctuary of the Laws and holding them forth for the Publick Good by gaining the Affections of the People and being content with that measure of Power that is proper to the Government For if he doth not Right may and ought to be defended and resistance for the Publick good of Illegal Commissioned Forces is not resisting the King's Person but his Forces nor his Power but his Force without Power If none would execute the King's contradictory Commands none would resist and if he will against all Justice Prudence and Perswasions joyn with wicked Men and wilfully expose himself to the mercy of blind Bullets charge is to be given to all that none kill him wittingly or wilfully the hand that lifted him up may not pull him down God forbid that any should think of killing him de industrâ or despair of his repentance before God does nothing past can prejudice a Penitent before God and I hope not before Men thus the King's person and power will be safe in the midst of a Civil War not so safe as in peaceable times but as safe as can consist with the Subjects Right when their Religion and Laws Liberty and Property are Violently invaded And therefore if any thing befall his person by their hands it is but a chance and accidental thing which may happen also in peaceable times This shows that Resisting the King 's illegal commission'd Forces in defence of their own just Rights is not resisting the Ordinance of God and consequently no Sin and then the Conscience is not tyed otherwise than the Laws of the Land and the particular Frame of the government tyes it Obj. 4. But to resist the King or his Commissioners is against the Frame of the Government it being a Monarchy and against the Laws and Statutes of the Realm Answ If it be so it is a great Sin but as it is certain this is a Monarchy so it is certain that it is limited in the Foundation otherwise the King would have all the Legislative Power and the Parliment no Authority or Right but derived from him and then he must be Arbitrary and we Slaves and all our Laws must be acts of Grace not Fundamental Rights Not from any inherent power reserved at the Institution to our selves and never submitted to the Princes but from the gracious condescention of an Absolute Monarch which is contrary to the Story of all times which shows that the people ever claimed Liberty and Property according to their Ancient Laws and Customs not as a Gift but as a Right inherent in themselves and never Transferred Aliened or Conveyed to any King but Declared Recognized and Confirmed to them by many I shall therefore suppose what I think none can upon sufficient grounds deny that the King is bound by all the sacred Tyes of God and Man to govern by the Laws and not otherwise neither by a Foreign Law nor by one of his own framing nor by any Word or Will contrary to Law seeing nothing can have the force of Law here but what has the joynt Consent of King and Parliament and that in a Parliamentary way and this shows us in the Terms of Submission that are sworn to on both sides The King and the people by a joynt consent makes Laws and make them the common Rule betwixt them the King swears to observe the Laws and the people swear to obey the King and to leave the Execution of the Laws to the King to be managed for the publick good Therefore as long as he governs by Law he and all his Ministers are safe enough from Resistance the Resister being lyable to be punished both by God and Man and the sole administration being left to the King Subjects all but himself to Criminal process and even himself to Civil but his person and power are safe in both he may be severe in the Execution of the Laws many times but not unjust As if he will not suspend a Burthensom Law or Revive an Antiquated one when the publick good requires it This may render him uncharitable or imprudent but he is safe yet For though he be bound to proceed according to Law yet he is not tyed to proceed always according to the best Methods when there are diverse But if he stop the Courts of Justice erect new ones or proceed contrary to Law he Acts without Authority and against his own Authority and puts on a kind of a Vizard that his Subjects can neither know him nor their Duty for it is the Laws that direct them to the person of the King and their own Duty without which they could know neither And if the End be not the publick good it is downright Injustice as well as politically powerless Necessity indeed may justifie a Political unlawful Act for the Publick good As in case of an Invasion to burn a garrison rather than it should be a refuge for the Enemy or to open Sluces and to drown a part of the Country for though these things have not the form of the Law they have the reason and that is Publick good And therefore it is not Law but Necessity not the King's Command but Publick good that warrants these Acts. And when Peace returns the Injured are to have satisfaction made by the Publick not as of Charity but as of Justice which shows that the Law looks upon it as a Trespass justified only by Necessity and the Publick good And the particular Persons here have reason to be quiet and make no resistance because they shall reap double benefit by it one in the Publick good and another from the Publick Treasure But it does not follow that if the King in an angry mood should command his guards to fire Newmarket because he had lost an Horse-race there or had a mind to have a Bonefire because he had won one that the Inhabitants might not resist them Obj. 5. By what Law
Authorities out of this Realm as also for restoring and uniting to the Imperial Crown of this Realm the antient Jurisdictions Authorities Superiorities and Preheminences to the same of Right belonging and appertaining by reason whereof the Subjects of this Realm were kept in good order and disburthened of divers great and intolerable Charges and Exactions until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second Years of the Reigns of King Philip and Queen Mary were clearly repealed and made void by reason of which Act of Repeal the Subjects of England were eftsoons brought under an usurped Foreign Power and Authority and yet remained in that Bondage to their intolerable Charges and then Enacts that for the repressing of the said usurped Foreign Power and the restoring of the Rights Jurisdictions and Preheminences appertaining to the Imperial Crown of this Realm The said Act made in the first and second Years of the said late King Philip and Queen Mary except as therein is excepted be repealed void and of none effect The said Act of Primo Elizabethae proceeds First to revive by express words many Statutes that had been made in King Henry the Eighth's time and repealed in Queen Mary's and Secondly to abolish all Foreign Authority in these words viz. And to the intent that all Vsurped and Foreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm c. May it please your Highness that it may be Enacted That no Foreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last day of this Session of Parliament use enjoy or exercise any manner of Power Jurisdiction Superiority Authority Preheminence or Priviledg Spiritual or Ecclesiastical within this Realm c. but the same shall be clearly abolished out of this Realm c. Any Statute Custom c. to the contrary notwithstanding Thirdly The said Act restores in the next Paragraph to the Imperial Crown of this Realm such Jurisdictions Priviledges Superiorities c. Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority had heretofore been or might lawfully be exercised or used c. Fourthly the Act impowers the Queen to assign Commissioners to exercise Ecclesiastical Jurisdiction And Fifthly For the better observation and maintenance of this Act imposes upon Ecclesiastical and Temporal Officers and Ministers c. the Oath commonly call'd the Oath of Supremacy which runs thus viz. The Oath of SUPREMACY I A. B. do utterly testify and declare in my Conscience that the Queen's Highness is the only Supream Governour of this Realm and of all other her Highness's Dominions and Countries as well in all Spiritual or Ecclesiastical Things and Causes as Temporal and that no Foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm And therefore I do utterly renounce and forsake all Foreign Jurisdictions Powers Superiorities and Authorities and do promise that from henceforth I shall bear Faith and true Allegiance to the Queen's Highness her Heirs and lawful Successors and to my Power shall assist and defend all Jurisdictions Priviledges Preheminencies and Authorities granted or belonging to the Queen's Highness her Heirs and Successors or united and annexed to the Imperial Crown of this Realm So help me God and by the Contents of this Book It cannot but be obvious to every impartial Peruser of the Statute especially if he have the least knowledg of what Condition the Government of this Nation was reduced to by Papal Encroachments and Usurpations That the Makers of this Law and the Sense of this Oath was no other in general than that the People of this Realm should bear Faith and true Allegiance even in Matters relating to Ecclesiastical Jurisdiction to the Queen's Highness her Heirs and lawful Successors and not to the Pope or any foreign pretended Jurisdiction What the several Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the Queen her Heirs and Successors are in particular and what the Jurisdictions Priviledges Preheminences and Authorities United and Annexed to the Imperial Crown of this Realm are in particular is not material here to be discoursed of though the several Statutes made in King Henry the Eighth's time and King Edward the Sixth's and revived in Queen Elizabeth's will unfold many of them and clear the distinction which the OATH makes betwixt Authorities granted or belonging to the King and Authorities united and annexed to the Imperial Crown and Mr. Prynn's History of the Pope's intolerable Usurpations upon the Liberties of the Kings and Subjects of England and Ireland together with Sir Roger Twisden's Historical Vindication of the Church of England in point of Schism will in a great measure acquaint the Curious how matters stood with us here with respect to Church-Government before the Pope had wrested the Ecclesiastical Jurisdiction almost wholly out of the hands of our Kings our Parliaments and Courts of Justice In short those Jurisdictions c. are such as the Antient Laws Customs and Usages of the Realm or latter Acts of Parliament have Created Given Limited and Directed The Makers of this Law did not design to impose upon the People of England any new Terms of Allegiance but to secure the old ones exclusive of any Pretences of the Pope or See of Rome Nor are there any words in this Oath more strong more binding to Duty and Allegiance than are words which the old Oath of Fealty is conceived in which all Men were antiently obliged and may yet be required to take to the King in the Court-Leet at twelve years of Age which runs thus viz. You shall swear that from this day forward you shall be true and faithful to our Soveraign Lord King James and his Heirs And Faith and Truth shall bear of Life and Limb and terrene Honour And you shall not know nor hear of any ill or damage intended to him that you shall not defend So help you Almighty God This is as full and comprehensive as the Oath of Supremacy I do promise that I shall bear faith and true Allegiance to the Queen's Highness her Heirs and lawful Successors and to my power shall assist and defend all Jurisdictions c. So that the true sense and meaning of the Oath of Supremacy is this viz. I will be true and faithful to our Soveraign Lord the King his Heirs and lawful Successors and will to my Power assist and defend all his Rights notwithstanding any pretence made by the Pope or any other Foreign Power to exercise Jurisdiction within the Realm all which Foreign Power I utterly renounce in Matters Ecclesiastical as well as Temporal The Oath of Allegiance is appointed by the Act of 3 Jac. 1. Chap. 4. Intituled An Act for discovering and repressing of Popish Recusants It
consult their own good but he comes only at the time of Enacting bringing his Royal Authority with him as it were to set the Seal thereof to the Indenture already prepared by the People for the King is Head of the Parliament in regard of his Authority not in regard of his Reason or Judgment as if it were to be opposed to the Reason or Judgment of both Houses which is the Reason both of King and Kingdom and therefore do they as consult so also interpret Laws without him supposing him to be a Person replenished with Honour and Royal Authority not skilled in Laws nor to receive Information either of Law or Councel in Parliamentary Affairs from any saving from that supreme Court and highest Councel of the King and Kingdom which admits no counterpoise being intrusted both as the wisest Counsel and justest Judicature Fourthly either the choise of the People in Parliament is to be the Ground and Rule of the Kings Assent or nothing but his Pleasure and so all Bills tho' never so necessary for publick Good and Preservation and after never so much pains and consultation of both Houses may be rejected and so they made meer Cyphers and we brought to that pass as neither to have no Laws or such only as come immediately from the King who oft is a man of Pleasure and little seen in publick Affairs to be able to judge and so the Kingdoms great Councel must be subordinated either to his meer Will and then what Difference between a free Monarchy and an absolute saving that the one rules without Councel and the other against it or at the best but to a Cabinet Councel consisting commonly of Men of private Interests but certainly of no publick Trust Ob. But if the King must consent to such Laws as the Parliament shall chuse eo nomine they may then propound unreasonable things to him as to consent to his own Deposing or to the lessening his own Revenue c. Ans So that the issue is whether it be fitter to trust the Wisdom and Integrity of our Parliament or the Will and Pleasure of the King in this case of so great and publick Concernment In a word the King being made the Fountain of Justice and Protection to his People by the fundamental Laws or Constitution of this Kingdom he is therefore to give life to such Acts and Things as tend thereunto which Acts depend not upon his Pleasure but though they are to receive their greater Vigour from him yet are they not to be suspended at pleasure by him for that which at first was intended by the Kingdom for an honourable way of Subsistence and Administration must not be wrested contrrry to the nature of this Polity which is a free and mist Monarchy and not absolute to its Destruction and Confusion so that in case the King in his Person should decline his Duty the King in his Courts is bound to perform it where his Authority properly resides for if he refuse that Honour which the Republick by its fundamental Constitution hath conferred upon him and will not put forth the Acts of it for the end it was given him viz. for the Justice and Safety of his People this hinders not but that they who have as fundamentally reserved a Power of being and well-being in their own hands by the Concurrence of Parliamentary Authority to the Royal Dignity may thereby provide for their own Subsistence wherein is acted the Kings juridical Authority though his personal pleasure be withheld for his legal and juridical Power is included and supposed in the very being and consequently in the Acts of Courts of Justice whose being he may as well suspend as their Power of Acting for that without this is but a Cypher and therefore neither their being nor their acting so depend upon him as not to be able to act and execute common Justice and Protection without him in case he deny to act with them and yet both so depend upon him as that he is bound both in Duty and Honour by the Constitution of this Polity to act in them and they for him so that according to that Axiom in Law The King can do no wrong because his juridical Power and Authority is always to controle his personal Miscarriages London's Flames Revivd OR AN ACCOUNT OF SEVERAL INFORMATIONS Exhibited to a Committee appointed by PARLIAMENT September the 25th 1666. To Enquire into the BURNING of LONDON WITH Several other Informations concerning other Fires in Southwark Fetter-Lane and elsewhere UPon the Second of September 1666. the Fire began in London at one Farriner 's House a Baker in Pudding-Lane between the Hours of One and Two in the Morning and continued burning until the Sixth of September following consuming as by the Surveyors appears in Print Three hundred seventy three Acres within the Walls of the City of London and Sixty three Acres and Three Roods without the Walls There remains Seventy five Acres and Three Roods yet standing within the Walls unburnt Eighty nine Parish Churches besides Chappels burnt Eleven Parishes within the Walls yet standing Houses burnt Thirteen thousand and two hundred Per Jonas Moore Ralph Gatrix Surveyors UPon the 18th Day of September 1666. the Parliament came together And upon the 25th of the same Month the House of Commons appointed a Committee to enquire into the Causes of the late Fire before whom the following Informations were given in and proved before the Committee as by their Report will more clearly appear bearing date the 22th of January 1666. and upon the 8th of February following the Parliament was Prorogued before they came to give their Judgment thereupon Die Martis 25 Septembris 1666. 18 Car. 2. Resolved c. THat a Committee be appointed to enquire into the Causes of the late Fire and that it be referred to Sir Charles Harbord Mr. Sandys Col. Birch Sir Robert Brook Sir Thomas Littleton Mr. Prin Mr. Jones Sir Solomon Swale Sir Thomas Tomlins Mr. Seymour Mr. Finch Lord Herbert Sir John Heath Mr. Milward Sir Richard Ford Mr. Robert Milward Sir William Lowther Sir Richard Vatley Sir Rowland Beckley Sir Thomas Allen Mr. Whorwood Mr. Coventry Serj. Maynard Sir John Talbot Mr. Morley Mr. Garraway Sir Francis Goodrick Col. Strangeways Sir Edward Massey Sir Edmond Walpool Sir Robert Atkins Sir Thomas Gower Mr. Trevor Sir Thomas Clifford Sir Henry Caesar Sir John Monson Sir John Charleton Lord Ancram Mr. Pepis Sir Richard Everard Mr. Crouch Mr. Merrel Sir William Hickman Sir Richard Brown Mr. Maynard And they are to meet to Morrow at Two of the Clock in the After-noon in the Speaker's Chamber and to send for Persons Papers and Records William Goldsbrough Cler. Dom. Com. October 9. 1666. Ordered that these Members following be added to the Committee appointed to Enquire into the Causes of the late Fire viz. Sir John Pelham Mr. Hugh Buscowen Mr. Giles Hungerford Sir William Lewis Sir Gilbert Gerrard Sir John Brampstone Mr. Milward Mr. Buscowen
houses in Holborn at the same time That he was at the Fire in the Temple but was not engaged to do any thing in it And said that Gyfford told him that there were English French and Irish Roman Catholicks enough in London to make a very good Army and that the King of France was coming with 60000 Men under pretence to shew the Dauphin his Dominions but it was to lay his Men at Deep Bulloign Callis and Dunkirk to be in an hours Warning to be Landed in England and he doubted not but it would be by the middle of June and by that time all the Catholicks here will be in readiness all were to rise in order to bring him in That the Papists here were to be distinguished by Marks in their Hatts that the said Father Gyfford doubted not but he should be an Abbot or a Bishop when the work was over for the good service he hath done That at their Meeting Father Gyfford used to tell them it was no more sin to kill a Heretick then a Dog and that they did God good Service in doing what Mischiefs they could by firing their houses That it was well Sir Edmondbury Godfrey was Murdered for he was their Devilish Enemy That Coleman was a Saint in Heaven for what he had done And saith he is fearful he shall be Murthered for this Confession Father Gyfford having sworn him to Secresie and told him he should be Damned if he made any Discovery and should be sure to be killed and that he should take the Oaths because he was a House-keeper and that it was no sin And saith That Gyfford and Roger _____ told him when their Forces meet about the middle of June then have at the VOTES and ADDRESSES Of the Honourable House of Commons ASSEMBLED IN PARLIAMENT Made this present Year 1673 Concerning Popery and other Grievances March 29. 1673. The Parliaments Address to his Majesty for the Removal of Grievances in England and Ireland WE your Majesties most Loyal Subjects the Commons in this present Parliament assembled conceiving our selves bound in necessary Duty to your Majesty and in Discharge of the Trust reposed in us truly to inform your Majesty of the Estate of your Kingdom And though we are abundantly satisfied that it hath been your Royal Will and Pleasure that your Subjects should be governed according to the Laws and Customs of this Realm yet finding that contrary to your Majesties gracious Intention some Grievances and Abuses are crept in We crave Leave humbly to represent them to your Majesties Knowledge and Desire 1. That the Imposition of 12 d. per Chaldron upon Coals for the providing of Convoys by Vertue of an Order from Council dated the 15th of May 1672 may be recalled and all Bonds taken by Virtue thereof cancelled 2. That your Majesties Proclamation of the 24th of December 1672 for preventing of Disorders which may be committed by Soldiers and whereby the Soldiers now in your Majesties Service are in a manner exempted from the ordinary Course of Justice may likewise be recalled 3. And whereas great Complaints have been made out of several parts of this Kingdom of divers Abuses committed in Quartering of Soldiers That your Majesty would be pleased to give Order to redress those Abuses and in particular that no Soldiers be hereafter Quartered in any private Houses and that due Satisfaction may be given to the Inn-keepers or Victuallers where they lye before they remove 4. And since the continuance of Soldiers in this Nation will necessarily produce many Inconveniences to your Majesties Subjects We do humbly present it as our Petition and Advice That when this present War is ended all your Souldiers which have been raised since the last Session of Parliament may be Disbanded 5. That your Majesty would be likewise pleased to consider of the Irregularities and Abuses in pressing Soldiers and to give Order for the Prevention thereof for the future 6. And although it hath been the Course of former Parliaments to desire Redress in their Grievances before they proceeded to give a Supply yet we have so full Assurance of your Majesties Tenderness and Compassion towards your People that we humbly prostrate our selves at your Majesties feet with these our Petitions desiring your Majesty to take them into your Princely Consideration and to give such Orders for the Relief of your Subjects and the Removing these Pressures as shall seem lest to your Roâ—al Wisdâ—m Address touching Ireland WE your Majesties most Loyal Subjects the Commons in this present Parliament assembled taking into Consideration the great Calamities which have formerly befallen your Majesties Subjects of the Kingdom of Ireland from the Popish Recusants there who for the most part are profest Enemies to the Protestant Religion and the English Interest and how they make use of your Majesties gracious Disposition and Clemency are at this time grown more insolent and presumptuous than formerly to the apparent Danger of that Kingdom and your Majesties Protestant Subjects there the Consequence whereof may likewise prove very fatal to this your Majesties Kingdom of England if not timely prevented And having seriously weighed what Remedies may be most properly applied to those growing Distempers do in all Humility present your Majesty with these our Petitions 1. That for the Establishment and Quieting the Possessions of your Majesties Subjects in that Kingdom your Majesty would be pleased to maintain the Act of Settlement and Explanatory Act thereupon and to recall the Commission of Enquiry into Irish Affairs bearing Date the 17th of January last as containing many new and extraordinary Powers not only to the Frejudice of particular Persons whose Estates and Titles are thereby made liable to be questioned but in a manner to the Overthrow of the Acts of Settlement And if pursâ—â—d may be the Occasion of great Charge and Attendance to many of your Subjects in Ireland and shake the Peace and Security of the whole 2. That your Majesty would give Order that no Papist be either continued or hereafter admitted to be Judges Justices of the Peace Sheriffs Coroners or Mayors Sovereigns or Portrieves in that Kingdom 3. That the Titular Popish Archbishops Bishops Vicars-General Ablâ—â—s and all other exercising Ecclesiastical Jurisdiction by the Popes Authority and in particular Peter Talbot pretended Archbishop of Dublin for his notorious Disloyalty to your Majesty and Disobedience and Contempt of your Laws may be commanded by Proclamation forthwith to depart out of Ireland and all other your Majesties Dominions or otherwise to be prosecuted according to Law And that all Convents Seminaties and Publick Popish Scholes may be dissolved and suppressed and the Secular Priests commanded to depart under the Penalty 4 That no Irish Papist be admitted to inhabit in any part of that Kingdom unless duly licensed according to the aforesaid Acts of Settlemenâ— and that your Majesty would be pleased to recall your Letters of the 26th of February 1671. And the Proclamation thereupon whereby general Licence is
given to such Papists as inhabit in Corporations there 5. That your Majesties Letters of the 28th of September 1672. and the Order of Council thereupon whereby your Subjects are required not to prosecute any Actions against the Irish for any Wrongs or Injuries committed during the late Rebellion may likewise be recalled 6. That Colonel Talbot who hath notoriously assumed to himself the Title of Agent of the Roman Catholicks in Ireland be immediately dismissed out of all Command Military and Civil and forbidden Access to your Majesties Court. 7. That your Majesty would be pleased from time to time out of your Princely Wisdom to give such further Order and Directions to the Lord Lieutenant or other Governour of Ireland for the time being as may best conduce to the Encouragement of the English Planters and Protestants Interest there and the Suppression of the Insolencles and Disorders of the Irish Papists there These our humble Desires we present to your Majesty as the best means to preserve the Peace and Safety of that your Kingdom which hath been so much of late in Danger by the Practices of the said Irish Papists particularly Richard and Peter Talbot and we doubt not but your Majesty will find the happy Effects thereof to the great Satisfaction and Security of your Majesties Person and Government which of all earthly things is most dear to your Majesties most Loyal Subjects Ordered October 20. 1673. THat an Address be made to his Majesty by such Members of this House as are of his Majesties Privy-Council to acquaint his Majesty that it is the humble desire of this House that the intended Marriage of his Royal Highness with the Dutchess of Modena be not consummated and that he may not be Married to any Person but of the Protestant Religion And the same Day the Parliament was Prorogued till Monday next The Address of the Parliament to his Majesty WE your Majesties most Humble and Loyal Subjects the Commons in this present Parliament assembled being full of Assurance of your Majesties gracious Intentions to provide for the Establishment of Religion and the Preservation of your People in Peace and Security and foreseeing the dangerous Consequences which â—ay follow the Marriage of his Royal Highness the Duke of York with the Princess of â—â—â—dena or any other of the Popish Religion we hold our selves bound in Conscience â—â—d Duty to represent the same to your Sacred Majesty not doubting but these constant Testimonies which we have given your Majesty of our true and loyal Affections to your Sacred Person will easily gain a Belief that these our humble Desires proceed from Hearts still full of the same Affections toward your sacred Majesty and with intentions to establish your Royal Government upon those true Supports of the Protestant Religion and the Hearts of your People with all Humility desiring your Majesty to take the same into your Princely Consideration and to relieve your Subjects from those Fears and Apprehensions which at present they lie under from the Progress hath been made in that Treaty We do therefore humbly intreat your Majesty to consider that if this Match do proceed it will be a means to disquiet the Minds of your Protestant Subjects at home and to fill them with endless Jealousies and Discontents and will bring your Majesty into such Alliances abroad as will prove highly prejudicial if not destructive to the Interest of the very Protestant Religion it self And we find by sad Experience that such Marriages have encreased and encouraged Popery in this Kingdom and given opportunity to Priests and Jesuits to propagate their Opinions and seduce great Numbers of your Majesties Subjects And we do already observe how much the Party is animated with the hopes of this Match which were lately discouraged by your gracious Concessions in the last Meeting in this Parliament That we greatly fear this may be an Occasion to lessen the Affections of the People to his Royal Highness who is so nearly related to the Crown and whose Honour and Esteem we desire may always be intirely preserved That for another Age more at the least this Kingdom will be under the continual Apprehensions of the Growth of Popery and the Danger of the Protestant Religion Lastly We consider that this Princess having so near a Relation and Kindred to many Eminent Persons of the Court of Rome may give them great Opportunities to promote their Designs and carry on their Practices among us and by the same means penetrate into your Majesties most Secret Counsels and more easily discover the State of the whole Kingdom And finding that by the Opinions of very Learned Men it is generally admitted that such Treaties and Contracts by Proxies are dissolvable of which there are several Instances to be produced We do in all humbleness beseech your Majesty to put a stop to the Consummation of this intended Marriage And this we do the more importunately desire because we have not yet the Happiness to see any Issue of your Majesty's that may succeed in the Government of these Kingdoms which Blessings we most heartily pray Almighty God in his due time to bestow upon your Majesty and these Kingdoms to the unspeakable Joy and Comfort of all your Majesty's Subjects who desire nothing more than to continue under the Reigns of your Majesty and your Royal Posterity for ever October 30. 1673. Mr. Secretary Coventry brought from his Majesty an Answer to the Address presented to him touching the Duke of York as followeth C. R. HIS Majesty having received an Address from the House of Commons presenting their humble Desire that the intended Marriage betwixt his Royal Highness and the Princess of Modena may not be Consummated Commanded this Answer to be returned That he perceived the House of Commons have wanted a full Information of this Matter the Marriage not being barely intended but Compleated according to the Forms used amongst Princes and by His Royal Consent and Authority Nor could He in the least suppose it disagreeable to His House of Commons His Royal Highness having been in the view of the World for several Months engaged in a Treaty of Marriage with another Catholick Princess and yet a Parliament held during the time and not the least Exception taken at it An Address ordered to be presented to His Majesty concerning a Marriage between his Royal Highness and the Princess of Modena and a Committee appointed to that purpose A Committee appointed for preparing a Bill for a general Test to distinguish between Protestants and Papists and those that shall refuse to take it be incapable to enjoy any Office Military or Civil or to sit in either Houses of Parliament or to come within five miles of the Court. The House adjourned till Monday October 31. 1673. Resolved That the House considering the present Condition of the Nation will not take into any further Debate the Consideration of any Aid or Supplies or Charge upon the Subjects before the time of Payment of
was abroad 1647 1648 and till the end of 1649. My first appearance in the World was to serve His Majesty as Collonel in his Foot-Guards and tho at that time all the Commissions were given by the then Parliament yet I would not serve without a Commission from His Majesty which I have still the Honour to have by me After the misfortune of Worcester I continued in Arms for His Majesties Service when Scotland was over-run with the Usurpers and was alone with some of my Friends in Arms in the Year 1652. and did then keep up some appearance of opposition to them And General Major Dean coming to Argyleshire and planting several Garrisons he no sooner went away but we fell upon the Garrisons he had left and in one day took two of them and cut off a considerable part of a third and carried away in all about three hundred Prisoners And in the end of that year I sent Captain Shaw to His Majesty with my humble Opinion how the War might be carried on who returned to me with Instructions and Orders which I have yet lying by me After which I joyned with those His Majesty did Commissionate and stood out till the last that the Earl of Middleton His Majesties Lieutenant General gave me Orders to Capitulate which I did without any other Engagements to the Rebels but allowing persons to give Bail for my living peaceably and did at my Capitulating relieve several Prisoners by exchange whereof my Lord Granard out of the Castle of Edinburgh was one It is notarly known that I was forefaulted by the Usurpers who were so jealous of me that contrary to their Faith within eight months after my Capitulation upon pretence I keep'd Horses above the value they seized on me and keeped me in one Prison after another till His Majesties happy Restauration and this only because I would not engage not to serve His Majesty tho there was no Oath required I do with all gratitude acknowledge His Majesties goodness bounty and Royal favours to me when I was pursued before the Parliament in the year 1662. His Majesty was graciously pleased not to send me here in any opprobrious way but upon a bare verbal Parole upon which I came down Post and presented my self a Fourthnight before the day Notwithstanding whereof I was immediately clapt up in the Castle but having satisfied His Majesty at that time of my entire Loyalty I did not offer to plead by Advocates And His Majesty was not only pleased to pardon my Life and to restore me to a Title and Fortune but to put me in trust in his Service in the most eminent Judicatories of this Kingdom and to heap favours upon me far beyond what ever I did or can deserve tho I hope His Majesty hath always found me faithful and thankful and ready to bestow all I have or can have for his Service And I hope never hath had nor ever shall have ground to repent any favour he hath done me And if I were now really guilty of the Crimes libelled I should think my self a great Villain The next occasion I had to shew my particular zeal to His Majesties Service was in Anno 1666. when the Insurrection was made that was represt at Pentland-Hills At the very first the intercourse betwixt this place and me was stopt so that I had neither Intelligence nor Orders from the Council nor from the General but upon a Letter from the now Archbishop of St. Andrews telling me there was a Rebellion like to be in the three Kingdoms and bidding me beware of Ireland and Kintyre I brought together about two thousand men I seized all the Gentlemen in Kintyre that had not taken the Declaration tho I found them peaceable And I sent a Gentleman to General Dalziel to receive his Orders who came to him just as they were going to the Action at Pentland and was with him in it and I kept my men together till his return And when I met with considerable trouble from my Neighbours rebelliously in Arms and had Commissions both on publick and private accounts have I not carried dutifully to His Majesty and done what was commanded with a just moderation which I can prove under the hands of my enemies and by many infallible demonstrations Pardon me a few words Did I not in this present Parliament shew my readiness to serve His Majesty and the Royal Family in asserting vigorously the lineal legal Succession of the Crown and had a care to have it exprest in the Commissions of the Shires and Burghs I had interest in Was I not for offering proper Supplies to His Majesty and his Successor And did I not concur to bind the Landlords for their Tenants altho I was mainly concerned And have I not always kept my Tenants in obedience to His Majesty I say all this not to arrogate any thing for doing what was my Honour and Duty to His Majesty but if after all this upon no other ground but words that were spoken in absolute innocence and without the least design except for clearing my own Conscience and that are not capable of the ill sense wrested from them by the Libel I should be further troubled what assurance can any of the greatest Quality Trust or Innocence have that they are fecure Especially considering that so many Scruples have been started as all know not only by many of the Orthodox Clergy but by whole Presbyteries Synods and some Bishops which were thought so considerable that an eminent Bishop took the pains to write a Treatise that was read over in Council and allowed to be Printed and a Copy given to me which contains all the expressions I am charged for and many more that may be stretched to a worse sense Have I not shewed my zeal to all the ends of the Test How then can it be imagined that I have any sinister design in any thing that I have said If I had done any thing contrary to it all the course of my life which I hope shall not be found yet one act might pretend to be excused by a habit But nothing being questioned but the sense of words misconsirued to the greatest height and stretched to imaginary insinuations quite contrary to my scope and design and so far contrary not only to my sense but my principles Interest and duty That I hope my Lord Advocate will think he hath gone too far on in this Process and say plainly what he knows to be truth by his acquaintance with me both in publick and private viz. That I am neither Papist nor Fanatick but truly loyal in my principles and practices The hearing of this Libel would trouble me beyond most of the sufferings of my Life if my innocence did not support me and the hopes of being vindicated of this and other Calumnies before this publick and Noble Auditory I leave my Defences to these Gentlemen that plead for me they know my innocence and how ground less that Libel
any thing a greater reproach on the Parliament or a greater ground of mislike to the people And whereas it is pretended That all Laws and Subsumptions should be clear and these are only inferences It is answered That there are some things which the Law can only forbid in general and there are many inferences which are as strong and natural and reproach as soon or sooner than the plainest defamations in the world do for what is openly said of reproach to the King does not wound him so much as many seditious insinuations have done in this Age and the last So that whatever was the Earls design albeit it is always conceived to be unkind to the Act against which himself debated in Parliament yet certainly the Law in such cases is only to consider what effect this may have amongst the people and therefore the Acts of Parliament that were to guard against the misconstruing of His Majesties Government do not only speak of what was designed but where a disliking may be caused and so judgeth ab effectu And consequentially to the same emergent reason it makes all things tending to the raising of dislike to be punishable by the Act 60. Parl. 6. Q. Mary and the 9. Act Parl. 20. James VI. So that the Law designed to deter all men by these indefinite and comprehensive expressions And both in this and all the Laws of Leasing-making the Judges are to consider what falls under these general and comprehensive words Nor could the Law be more special here since the makers of Reproach and Slander are so various that they could not be bound up or exprest in any Law But as it evidently appears that no man can hear the words exprest if he believe this paper but he must think the Parliament has made a very ridiculous Oath inconsistent with it self and the Protestant Religion the words allowing no other sense and having that natural tendency even as if a man would say I love such a man only in so far as he is an honest man he behooved certainly to conclude that the man was not every way honest So if your Lordships will take measures by other Parliaments or your Predecessors ye will clearly see That they thought less than this a defaming of the Government and misconstruing His Majesties proceedings For in Balmerino's Case the Justices find an humble Supplication made to the King himself to fall under these Acts now cited Albeit as that was a Supplication so it contained the greatest expressions of Loyalty and offers of Life and Fortune that could be exprest yet because it insinuates darkly That the King in the precedeing Parliament had not favoured the Protestant Religion and they were sorry he should have taken Notes with his own hands of what they said which seems to be most innocent yet he was found guilty upon those same very Acts And the Parliament 1661. found his Lordship himself guilty of Leasing-making tho he had only written a Letter to a private Friend which requires no great care nor observation but this paper which was to be a part of his own Oath does because after he had spoken of the Parliament in the first part of this Letter he thereafter added That the King would know their Tricks which words might be much more applicable to the private persons therein designed than that the words now insisted on can be capable of any such Interpretation And if either Interpretations upon pretext of exonering of Conscience or otherwise be allowed a man may easily defame as much as he pleases And have we not seen the King most defamed by Covenants entered into upon pretence to make him great and glorious by Remonstrances made to take away his Brother and best Friend upon pretence of preserving the Protestant Religion and his Sacred person And did not all who rebelled against him in the last Age declare That they thought themselves bound in duty to obey him but still as far as that could consist with their respect to the Protestant Religion and the Laws and Liberties which made all the rest ineffectual And whereas it is pretended That by these words I take the same in as far as it is consistent with it self and the Protestant Religion nothing more is meant but that he takes it as a true Protestant His Majesties Advocate appeals to your Lordships and all the Hearers if upon hearing this expression they should take it in this sense and not rather think that there is an inconsistency For if that were possible to be the sense what need he say at all As far as it is consistent with it self Nor had the other part As far as it is consistent with the Protestant Religion been necessary for it is either consistent with the Protestant Religion or otherwise they were Enemies to the Protestant Religion that made it Nor are any Lawyers or others in danger by pleading or writing for these are very different from and may be very easily pleaded without defaming a Law and an Oath when they go to take it But if any Lawyer should say in pleading or writing That the Test was inconsistent or which is all one that it were not to be taken by any man but so far as it was consistent with it self and the Protestant Religion no doubt this would be a crime even in pleading tho pleading has a greater allowance than deliberate swearing has And as there is nothing wherein there is not some inconveniency so the inconveniency of defaming the Government is much greater than that of any private mans hazard who needs not err except he please Whereas it is pretended That before the Earl gave in this Explication there were other Explications spread abroad and Answers read to them in Council and that the Council it self gave an Explication It is answered That if this paper be Leasing-making or misconstruing His Majesties proceedings and Treasonable as is contended then a thousand of the like offences cannot excuse it And when the King accused Noblemen Ministers and others in the year 1661. for going on in the Rebellions of that Age first with the Covenanters and then with the Usurpers it was found no Defence That the Nation was over-grown with those Crimes and that they were thought to be duties in those days Yea this were to invite men to offend in multitudes And albeit sometimes these who follow the examples of multitudes may thereby pretend this as an excuse to many yet this was never a formal defence against Guilt nor was ever the chief of the Offenders favourable on that Head And it is to be presumed That the Earl of Argyle would rather be followed by others than that he would follow any example But His Majesties Advocate does absolutely decline to debate a point that may defame a constant and standing Act of Parliament by leaving upon record a memory of its being opposed Nor were this Relevant except it could be said the Council had allowed such Explications which reflected
of the Kings Officers cannot prejudg his Interest It is answered The Pannel is very confident that neither the Lords of His Majesties Privy Council consisting of persons of eminent Loyalty and Judgment nor His Majesties Officers were capable of any such escape as is pretended and if the tenor of the Pannel's Explication did in the least import the high and infamous Crimes libelled as beyond all peradventure it does not it were strange how the same being contained in the aforesaid Vindication and the whole Clauses thereof justified that this should have been looked on as no Crime and allowed to be published And the Pannel neither does nor needs to make farther use thereof but to convince all dis-interested persons that his Explication can import no Crime And whereas it is pretended That the Crime of Treason is inferred from the fundamental Laws of the Kingdom and from that Clause of the Pannel's Explication whereby he declares he is not bound up by any thing in this Oath not to endeavour any alteration in a lawful way which being an indefinite proposition is equipollent to an universal and is upon the matter coincident with a Clause which was rebellious in its consequences contained in the Solemn League and Covenant It is answered That it is strange how such a plain and innocent Clause whereby beyond all question he does express no more than was naturally imported the Crime of Treason which no Lawyer ever allowed except where it was founded upon express Law Luce Meridiana Clarior And indeed if such stretches and inferences can make men guilty of Treason no man can be secure And the words in the Pannel's Declaration are plain and clear yet non sunt cavillanda and import no more but that in his station and in a lawful way and consistent with the Protestant Religion and his Loyalty he might endeavour any alteration to the advantage of Church and State And was there ever any loyal or rational Subject that does or can doubt that this is the natural import of the Oath And indeed it were a strange Oath if it were capable of another sense and being designed for the security of the Government should bind up mens hands to concur for its advantage And how was it possible that the Pannel or any other in the capacity of a Privy-Councellor or a Member of the Parliament would have satisfied his Duty and Allegiance in other terms And whereas it is pretended that there was the like case in the pretended League and Covenant it is answered The Assertion is evidently a Mistake and tho it were the Argument is altogether inconsequential For that League and Covenant was treasonable in it self as being a Combination entred into without His Majesties Authority and was treasonable in the glosses that were put upon it and was imposed by absolute violence on the Subjects of this Kingdom And how can the Pannel be in the least supposed to have had any respect to the said League and Covenant when he had so often taken the Declaration disowning and renouncing it as an unlawful and sinful Oath and concurred in the many excellent Laws and Acts of Parliament made by His Majesty condemning the same as seditious and treasonable And whereas it is pretended That the Pannel is guilty of Perjury having taken the Oath in another sense than was consistent with the genuine sense of the Parliament and that by the Authority cited he doth commento eludere Juramentum which ought always to be taken in the sense of him that imposeth the Oath It is answered The Pretence is most groundless and Perjury never was nor can be inferred but by the commission or omission of something directly contrary to the Oath And altho it is true That where an Oath is taken without any Declaration of the express sense of the persons who take it it obliges sub poena Perjurii in the sense not of the taker but of the imposer of the Oath because expressing no Sense Law and Reason presumes there is a full acquiescence in the sense and meaning of the imposer of the Oath and then if an Oath be not so taken he that takes it is guilty of Perjury Yet there was never Lawyer nor Divine Popish or Protestant but agree in this That whatever be the tenor of the Oath if before the taking thereof the party in express terms does publickly and openly declare the sense in which he takes it it is impossible it can infer the Crime of Perjury against him in any other sense this not being Commentum excogitatum after the taking of the Oath And if this were not so how is it possible in Sense and Reason that ever any Explication or Sense could solve the Scruples of a mans Conscience For it might be always pretended That notwithstanding of the express sense wherein he took it he should be guilty of Perjury from another sense And that this is the irrefragable opinion of all Divines of whatever peswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Juramento is cited Prelct 6. Sect. 10. pag. 75. where his words are Sane ut inter Jurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Jurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Chrstian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. It he had simply refused the Government had been in no more hazard but if men will both retain their places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the refuser here in a better case than the Earl
nothing in the Test consistent with either And 3dly If the Protestant Religion and the Earl his reference to it be nothing then is not only the Council sadly reproached who in their Explanation declare this to be the only thing sworn to in the first part of the Test but our Religion quite subverted as far as this Test can do it But next for the Treason the Advocate says That the Earl expresly declares he means not by the Test to bind up himself from wishing or endeavouring in his station and in a lawful way any alteration he shall think for the advantage of Church or State whereby says he the Earl declares himself and others loosed from any obligation to the Government and from the duty of all good Subjects and that they may make what alterations they please A direct contrariety instead of a just consequence as if to be tied to Law Religion and Loyalty were to be loosed from all three Can there be a flatter and more ridiculous contradiction Next the Advocate pretends to found upon the fundamental Laws of this and all Nations Whereby it is Treason for any Man to make any alterations he thinks fit for the advantage of Church or State But first The Earl is not nor cannot be accused of so much as wishing much less endeavouring or making any alteration either in Church or State only he reserves to himself the same freedom for wishing which he had before his Oath and that all that have taken it do in effect say they still retain 2dly For a man to endeavour in his station and in a lawful way such alterations in Church or State as he conceives to their advantage not repugnant to Religion and Loyalty is so far from being Treason that it is the duty of every Subject and the sworn Duty of all His Majesty's Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Laws of Nations wresting Acts of Parliaments adding taking away chopping and changing words thinks to conclude what he pleases And thus he proceeds That the Treason of making Alterations is not taken off by such qualifications of making them in a lawful way in ones station to the advantage of Church or State and not repugnant to Religion or Loyalty But how then Here is a strange matter Hundreds of Alterations have been made within these few years in our Government and in very material Points and the King 's best Subjects and greatest Favourites have both endeavoured and effectuate them And yet because the things were done according to the Earl's qualifications instead of being accounted Treason they have been highly commended and rewarded The Treasury hath been sometimes in the hands of a Treasurer sometimes put into a Commission backward and forward And the Senators of the College of Justice the right of whose places was thought to be founded on an Act of Parliament giving His Majesty the prerogative only of presenting are now commissioned by a Patent under the great Seal both which are considerable alterations in the Government which some have opposed others have wished and endeavoured and yet without all fear of Treason on either hand only because they acted according to these qualifications in a lawful way and not repugnant to Religion and Loyalty But that which the Advocate wilfully mistakes for it is impossible he could do it ignorantly is that he will have the endeavouring of alterations in general not to be of it self a thing indifferent and only determinable to be good or evil by its qualifications as all men see it plainly to be but to be forsooth in this very generality intrinsically evil a Notion never to be admitted on Earth in the frail and fallible condition of humane Affairs And then he would establish this wise Position by an example he adduces That rising in Arms against the King for so sure he means it being otherwise certain that rising in Arms in general is also a thing indifferent and plainly determinable to be either good or evil as done with or against the King's Authority is Treason and says If the Earl had reserved to himself a liberty to rise in Arms against the King tho he had added in a lawful manner yet it would not have availed because and he says well This being in it self unlawful the qualification had been but shams and contrariae facto But why then doth not his own reason convince him where the difference lies viz. That rising in Arms against the King is in it self unlawful whereas endeavouring alterations is only lawful or unlawful as it is qualified and if qualified in the Earl's Terms can never be unlawful But says the Advocate The Earl declares himself free to make all alterations and so he would make Men believe that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and endeavouring for such as are good and lawful and in a lawful way which no Man can disown without denying common reason nor no sworn Councellor disclaim without manifest Perjury But the Advocate 's last conceit is That the Earl's restriction is not as the King shall think fit or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly As neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earlâ—s Loyalty from those of His Majesty's best Subjects so Is it not a marvellous thing that the Advocate should profess to think for in reality he cannot think it the Earl's words His Loyalty which all men see to be the same with his Duty and Fidelity or what else can bind him to his Prince capable of any quibble far more to be a ground of so horrid an accusation And whereas the Advocate says The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be That the Earl doth nowise design His thinking to be the rule of Right and Wrong but only mentions it as the necessary application of these excellent and unerring Rules of Religion Law and Reason to which he plainly refers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutiful than that which the Advocate seems to desiderate And if the Earl's restrictions had not been full enough it was the Advocate 's part before administrating the Oath to have craved what more he thought necessary which the Earl in the Case would not have refused But it is believed the Advocate can yet hardly propose restrictions more full and suitable to Duty
distinctly As what thing spoke in Council is distinctly heard and considered by all Yet it being certain that they did all approve it it is sufficient to the Earl And it is only their concern whether in approving what they did not hear they observed their Oath De fideli c. or not His Highness who the Earl was most concerned should hear did certainly hear as himself afterwards acknowledged 2. The Advocate says That the hearing and allowing the Earl to sit is no relevant Plea yea further though all the Council had allowed him that day yet any of his Majesty's Officers might have quarrelled him the next day But first I would gladly know upon what head For if upon obtruding a sense of his own it is undeniable that whatever the sense was the obtruding of it was purged by the Council's acceptation and it became theirs and was no more his But if the Advocate doth think that even the matter of the Explanation though allowed and accepted may still be quarrelled Then 1. I hope he will consider in what terms he doth it for if he charge it after it becomes the Councils as in truth he hath done already with the same liberty wherewith he treats it as the Earl's he runs fair to make himself the arrantest Defamer and Slanderer of the King and Council that ever yet attempted it But 2dly It merits a worse name than I am free to give it to say That an Explanation allowed by the Council in the administrating of an Oath proper to be administrat by them doth not secure the Taker as to that sense both in Law and Conscience Seeing in effect this quite takes away the best grounds of assurance among men and turns their greatest security to their greatest snare And 3dly If this be sound Doctrine it is worth the enquiring what security the Clergy to whom the Council as you have heard did indulge an Explanation have thereby obtained For as to such Laicks as did only at their own hand take hold of and snatch at this Indulgence not provided for them by the Councils Act it is clear their doom is dight It is not here debated how far that Explication of the Council's may satisfy and quiet Conscience let such concerned see to it Some please themselves with a general notion That if the sense given by the Administrator be sound then it is also safe whether it be agreeable to the plain and genuine meaning of the Oath or not nay whether it be agreeable to the sense of the first Imposers or not But others who consider more tenderly what it is to swear in Truth and in Judgment think it rather a prophanation and a sinful preferring of the Credit of Men to the glory of the Almighty to offer to smooth an Oath by a disagreeable interpretation when in effect the Oath it self ought to be changed But the thing in question is about the security of life and fortune for seeing the Council's Explanation is at least to say no worse liable enough to the Calumnies of an inventive malice and the Advocate telleth us Though all the Ceuncil had allowed a man to swear with an Explanation yet any of His Majesty's Officers may the next day quarrel him it is evident that this allowance can afford him no security It is true the Advocate may alledge and possibly find a difference betwixt the Council's emitting and their accepting of an Explanation But as in truth there is none more than betwixt a Mandat and a Ratihabition so I am confident if ever the thing come to be questioned this Pretence will evanish and come to nothing It is likewise to be remembred That when the Earl the next day after he took the Test was questioned for the Explanation he had made and required to exhibit a Copy which was afterwards made the ground of his Indictment so soon as he observed that some began to carp he refused to sign it demanded it back and would have destroyed it as you have heard which were all clear Acts of disowning and retracting for eviting offence and of themselves sufficient to have prevented any further enquiry there being nothing more just and human than that words though at the first hearing offensive yet if instantly retracted when questioned should be past But this as well as other things must in the Earl's Case be singular and whether he plead the Councils allowing or his own disowning as in effect he doth both it is equally to no purpose the thing determined must be accomplished You heard before how that a Reverend Bishop and many of the Orthodox Clergy did take a far greater liberty of Explanation than the Earl pretended to you see also that first the Council allows his words whereupon he rests And when he finds that they begin to challenge he is willing to disown And withal it is undeniable and acknowledged by the Council themselves that the Test as it stands in the Act of Parliament is ambiguous and needs to be explained And the Earl may confidently aver that of all the Explanations that have been offered even the Councils not excepted his is the most safe sound and least disagreeable to the Parliament's true sense and meaning And yet when all others escape he alone must be seised and for a thing so openly innocent clearly justifiable and undeniably allowed found guilty of the worst of Crimes even Leasing-making Leasing-telling Depraving of Laws and Treason but all these things God Almighty sees and to him the Judgment yet belongs And thus I leave this Discouse shutting it up with the Case of Archbishop Cranmer plainly parallel to the Earl's to shew how much he was more favourably dealt with by the King and Government in those days than the Earl now is though he live under a much more merciful and just Prince than that worthy Prelate did for Cranmer being called and promoted by Henry VIII of England to be Archbishop of Canterbury and finding an Oath was to be offered to him which in his apprehension would bind him up from what he accounted his duty he altogether declined the Dignity and Preferment unless he were allowed to take the Oath with such an Explanation as he himself proposed for salving of his Conscience and tho this Oath was no other than the Statute and solemn Oath that all his Predecessors in that See and all the mitered Clergy in England had sworn yet he was admitted to take it as you see in Fuller's Church Hist of Britain lib. 5. p. 185 and 186. with this formal Prorestation In nomine Domini Amen Coram vobis c. Non est aut erit meae voluntatis aut intentionis per hujusmodi juramentum vel juramenta qualitercunque verba in ipsis posita sonare videbuntur me obligare ad aliquid ratione eorundum posthac dicendum faciendum aut attentandum quod erit aut esse videbitur contra Legem Dei vel contra illustrissimum Regem nostrum Angliae Legesve aut
to their knowledg That if it were not evident that they revealed it with as much expedition as was well possible lor them they were not by Law to be heard as Witnesses It was scarce permitted them saith he to look back in their going such ought to be their speed to make known the Treason Or if in any case they be otherwise openly flagitious though they be not legally infamous or if they are men of desperate Fortunes so that the temptation of want is manifestly strong upon them and the restraint of Conscience can be supposed to be little or none at all whatever they say is at least to be heard with extraordinary caution if not totally rejected In Scotland such a degree of Poverty that a Witness cannot swear himself to be worth Ten pounds is sufficient to lay him aside wholly in these high Concernments of Criminal Cases And in some other Kingdoms to be a loose liver is an Objection of the same force against any produced for VVitnesses And for the better discovery of the Truth of any fact in question the Credit of the VVitnesses and the Value of the Testimonies it is the duty of the Grand Inquest to be well informed concerning the Parties Indicted of their usual Residence their Estates and manner of Living their Companions and Friends with whom they are accustomed to Converse such knowledg being necessary to make a good judgment upon most accusations but most of all in Suspitions or Indictments of secret Treasons or Treasonable Words where the Accusers can be of no credit if it be altogether incredible that such things as they testify should come to their knowledg Sometimes the quality of the accused person may set him at such a distance from the Witnesses that he cannot be supposed to have conversed with them familiarly if his Wisdom and Conduct has been always such that it is not credible he would trust men so inconsiderable or meer strangers to him and such as are wholly uncapable to assist in the Design which they pretend to discover Can the Grand Inquest believe such Testimony to be of any value Or can they avoid suspecting Malice Combination and Subornation in such a Case Or can they shew themselves to be just and conscientious in their Duty if they do not suspend their Verdict until further Enquiry and write Ignoramus upon the Bill It is undoubtedly Law which we find reported in Stiles Stiles Report 11. That Though there be Witnesses who prove the Bill yet the Grand Inquest is not bound to find it if they see cause to the contrary Now to make their Enquiry more instrumental and advantageous to the Execution of Justice they are enjoined by their Oath to keep secret the King's Counsel their fellows and their own Perhaps 't is not sufficiently understood or considered what Duty is enjoined to every Man of a Grand Inquest by this clause of their Oath being seldom if ever explained to them in the general charge of the Judges at Sessions or Assizes But it is necessary that they should apprehend what Counsel of the King is trusted with them Certainly there is or ought to be much more of it communicated to them than is commonly thought and in things of the greatest consequence To them ought to be committed in the several Counties where any Prosecutions are begun the first Informations and Suspitions of all Treasons Murders Felonies Conspiracies and other Crimes which may subvert the Government endanger or hurt the King or destroy the Lives or Estates of the innocent People or any way disquiet or disturb the common Peace Our Law intends the Counsels of the King to be continually upon the protection and security of the People and prevention of all their mischiefs and dangers by wicked lawless and injurious men And in order thereunto to be advising how to right his wronged Subjects in general if the publick safety be hazarded by Treasons of any kind or their Relations snatcht from them by Murderers or any way destroyed by malicious Conspirators in form of Law or their Estates taken away by Robbery and Thieves or the Peace broken And for these ends to bring to exemplary Justice all offenders to deter others from the like wickedness And until these Counsels of the King come to the Grand Jury he can bring no such Criminals to judgment or to answer to the Accusations and Suggestions against them Hence it becomes unavoidably necessary to reveal to the Grand Juries all that hath been discovered to the King or any of his Ministers Judges or Justices concerning any Treasons or other Offences whereof any Man is accused And where suspition hath caused any to be imprisoned all the grounds of their suspitions ought to be opened concerning the Principals and the Accessories as well before as after the fact all the circumstances and presumptions that may induce a belief of their Guilt and all notices whatsoever which may enable the Jury to make a more exact and effectual Enquiry and to present the whole Truth They themselves will not only be offenders against God by reason of their Oath but subject to legal punishments if they knowingly conceal any Criminals and leave them unpresented and none can be innocent who shall conceal from them any thing that may help and assist them in their Duty The first notices of Crimes or suspitions of the Criminals by whomsoever brought in and the intentions of searching them out and prosecuting them legally are called the King's Counsel because the principal care of executing Justice is entrusted to him and they are to be prosecuted at his Suit and in his Name and such proceedings are called Pleas of the Crown From hence may be easily concluded that the King's Counsel which by the Oath of the Grand Inquest is to be kept secret includeth all the persons offered to them to be Indicted and all the matters brought in Evidence before them all circumstances whatsoever whereof they are informed which may any way conduce to the discovery of offences all intimations given them of Abettors and Encouragers of Treasons Felonies or Perjuries and Conspiracies or of the Receivers Harbourers Nourishers and Concealers of such Criminals Likewise the Oath which enjoins the Counsel of their Fellows and their own to be kept implies that they shall not reveal any of their personal knowledg concerning Offences or Offenders nor their intentions to Indict any Man thereupon nor any of the Proposals and Advices amongst them of ways to enquire into the truth of any matter before them either about the Crimes themselves or the Accusers and Witnesses or the party accused nor the debates thereupon amongst themselves nor the diversity of opinions in any case before them Certainly this Duty of secrecy concerning the King's Counsel was imposed upon the Grand Inquest with great reason in order to the publick good It was intended that they should have all the advantages which the several cases will afford to make effectual Enquiries after Criminals
and Properties are unable to protect us And may not such fears rob the King of his greatest Treasure and Strength the Peoples hearts when they dare not rely upon him in his Kingly Office and trust for safety and protection by the Laws Our English History affords many instances of those that have pretended to serve our King in this manner by undermining the Peoples Right and Liberties whose practices have sometimes proved of fatal consequence to the Kings themselves but more frequently ended in their own destruction But after all imagining it could be made out that this Method of private Examinations by a Grand Jury which from what has been said before hath appeared to be so extremely necessary for the publick good and to every private man's security were inconvenient or mischievous and therefore fit to be changed yet being so Essential a part of the Common Law it is no otherwise alterable than by Parliament We find by Presidents that the bare forms of Indictments could not be reformed by the Judges The words Depopulatores agrorum Insidiator es viarum Vi Armis Baculis Cultellis Arcubus sagittis could not be left out but by advice of the Kingdom in Parliament A Writ issued in the time of K. Ed. 3. giving power to hear and determine Offences and all the Justices resolved Cok. 4. Inst Pag. 164. That they could not lawfully act having their Authority by Writ where they ought to have had it by Commission Tho' it was in the form and words that the Legal Commission ought to be John Knivett Chief Justice by Advice of all the Judges resolved that the said Writ was Contra Legem And where divers Indictments were before them found against T.S. the same and all that was done by colour of that Writ was Damned If in such seeming little Things as these and many others that may be instanced the Wisdom of the Nation hath not thought fit to intrust the Judges but reserved the Consideration of them to the Legislative Power It cannot be imagined that they should subject to the discretion and pleasure of the Judges those important Points in the Established course of the administring Justice whereupon depends the safety of all the Subjects Lives and Fortunes If Judges will take upon themselves to alter the constant practice they must either alter the Oath of the Grand Jury or continue it If they should alter it so as to make it sail with any such new Method and thus in appearance charitably provide that the Grand Jury should not take a mock Oath or forswear themselves they then make an incroachment upon the Authority of Parliaments who only can make new or change old Legal Oaths and all the proceedings thereupon would be void If they should continue constantly to impose the same Oath as well when they have notice from the King that the Jury shall not be bound to keep his Secrets and their own as when they have none they must assume to make the same form of Law to be of force and no force and the same words to bind the Conscience as they will have them whereby they would prophane the Natural Religion of an Oath and bring a foul scandal upon Christianity by trifling worse than Heathens in that sacred matter and whilst the Judges find themselves under the necessity of administring the Oath unto Grand Juries and not suffer them to observe it according unto their Consciences they would confess the illegality of their own Proceedings and can never be able to repair the Breaches by pretending a tacite Implication if the King will but must unavoidably fall under that approved Maxim of our Law Maledicta est Interpretatio quae corrumpit Textum It is a Cursed Interpretation that dissolves the Text. There are Two Vulgar Errours concerning the duty of Grand Juries which if not removed will in time destroy all the benefit we can expect from that Constitution by turning them into a meer matter of form which were designed for so great Ends. Many have of late thought and affirmed it for Law that the Grand Jury is neither to make so strict inquiry into matters before them nor to look for so clear Evidence of the Crime as the Petit Jury but that of their Presentments being to pass a second Examination they ought to Indict upon a superficial Inquiry and bare probabilities Whereas should either of these Opinions be admitted the prejudice to the Subject would be equal to the total laying aside Grand Juries there being in truth no difference between arraigning without any Presentment from them at all and their Presenting upon slight grounds For the first that Grand Juries ought not to make so strict Inquiry it were to be wisht that we might know how it comes to pass that an Oath should be obligatory unto a Petit Jury and not unto the Grand Or in what Points they may lawfully and with good Conscience omit that Exactness whether in relation to the Witnesses and their credibility Or the fact and all its circumstances Or the Testimony and its weight Or lastly in reference to the Prisoner and Probability of his guilt And withal upon what grounds of Law or Reason their Opinion is founded On the contrary he that will consider either the Oath they take or the Commission where their duty is described will find in all Points that there lies an equal Obligation upon them and the Petit Juries They swear diligently to inquire and true Presentment make c. and to Present the Truth the whole Truth and nothing but the Truth c. And in the Commission of Oyer and Terminer their duty with that of the Commissioners is thus described Ad Inquirendum per Sacramentum Proborum legalium hominum c. per quos rei veritas melius sciri poterit de quibuscunque proditionibus c. confoederationibus Falsis allegantiis nec non Accessoriis Eorundem c. per quoscunque qualitercunque habit fact perpetrat sive Commiss Et per quos Et per quem cui vel quibus quando qualiter vel quomodo de aliis articulis Circumstantiis praemis eorum aliquod vel aliqua qualitercunque concernen To inquire by the Oath of honest and lawful Men c. By whom the Truth of the matter may be best known of all manner of Treasons c. Confederacies false Testimonies c. As also the Accessories c. by whomsoever or howsoever done perpetrated or committed by whom or to whom how in what way or in what manner And of other Articles and Circumstances premised and of any other Thing or Things howsoever concerning the same Now for any Man after this to maintain that Grand Juries are not to inquire or not carefully is as much as in plain terms to say they are bound to act contrary to the Commission and their Oath And to affirm that they can discharge their duty according to the Obligations of Law and Conscience which they
Land to cut off these workers of Iniquity whose Religion is Rebellion whose Faith is Faction whose practice is murthering of Souls and Bodies and to root them out of the Confines of this Kingdom VII All the Judges of England are bound by their Oath 18 Edw. III. 20 Edw. III. Cap. 1.2 and by the duty of their place to disobey all Writs Letters or Commands which are brought to them either under the little Seal or under the great Seal to hinder or delay common Right Are the Judges all bound in an Oath and by their places to break the 13 of the Romans VIII The Engagement of the Lords attending upon the King at York June 13. 1642. which was subscribed by the Lord Keeper and Thirty Nine Peers besides the Lord Chief-Justice Banks and several others of the Privy-Council was in these words We do engage our selves not to Obey any Orders or Commands whatsoever not warranted by the known Laws of the Land Was this likewise an Association against the 13 of the Romans IX A Constable represents the King's person and in the Execution of his Office is within the purview of the 13 of the Romans as all Men grant but in case he so far pervert his Office as to break the Peace and commit Murther Burglary or Robbery on the Highway he may and ought to be Resisted X. The Law of the Land is the best Expositor of the 13 of the Romans Here and in Poland the Law of the Land There XI The 13 of the Romans is receiv'd for Scripture in Poland and yet this is expressed in the Coronation Oath in that Country Quod si Sacramentum meum violavero Incola Regni nullam nobis Obedientiam praestare tenebuntur And if I shall violate my Oath the Inhabitants of the Realm shall not be bound to yield me any Obedience XII The Law of the Land according to Bracton is the highest of all the Higher Powers mentioned in this Text for it is superior to the King and made him King Lib. 3. Cap. 26. Rex habet superiorum Deum item Legem per quam factus est Rex item Curiam suam viz. Comites Barones and therefore by this Text we ought to be subject to it in the first place And according to Melancthon It is the Ordinance of God to which the Higher Powers themselves ought to be subject Vol. 3. In his Commentary on the Fifth Verse Wherefore ye must needs be subject not only for Wrath but also for Conscience sake He hath these words Neque vero haec tantum pertinent ad Subditos sed etiam ad Magistratum qui cum fiunt Tyranni non minus dissipant Ordinationem Dei quam Seditiosi Ideo ipsorum Conscientia fit rea quia non obediunt Ordinationi Dei id est Legibus quibus debent parere Ideo Comminationes hic positae etiam ad ipsos pertinent Itaque hujus mandati severitas moveat omnes ne violationem Politici status putent esse leve peccatum Neither doth this place concern Subjects only but also the Magistrates themselves who when they turn Tyrants do no less overthrow the Ordinance of God than the Seditious and therefore their Consciences too are guilty for not obeying the Ordinance of God that is the Laws which they ought to obey So that the Threatnings in this place do also belong to them wherefore let the severity of this Command deter all men from thinking the Violation of the Political Constitution to be a light Sin Corollary To destroy the Law and Legal Constitution which is the Ordinance of God by false and arbitrary Expositions of this Text is a greater Sin than to destroy it by any other means For it is Seething the Kid in his Mothers Milk CHAP. IV. Of LAWS I. THere is no Natural Obligation wereby one Man is bound to yield Obedience to another but what is founded in paternal or patriarchal Authority II. All the Subjects of a patriarchal Monarch are Princes of the Blood III. All the people of England are not Princes of the Blood IV. No Man who is Naturally Free can be bound but by his own Act and Deed. V. Publick Laws are made by publick consent and they therefore bind every man because every man's consent is involved in them VI. Nothing but the same Authority and Consent which made the Laws can Repeal Alter or Explain them VII To judge and determine Causes against Law without Law or where the Law is obscure and uncertain is to assume Legislative power VIII Power assumed without a Man's consent cannot bind him as his own Act and Deed. IX The Law of the Land is all of a piece and the same Authority which made one Law made all the rest and intended to have them all Impartially Executed X. Law on One Side is the Back-Sword of Justice XI The Best Things when Corrupted are the Worst and the wild Justice of a State of Nature is much more desirable than Law perverted and over-rul'd into Hemlock and Oppression Copies of Two Papers Written by the Late King CHARLES II. Published by His MAJESTIES Command Printed in the Year 1686. The First Paper THE Discourse we had the other Day I hope satisfied you in the main that Christ can have but one Church here upon Earth and I believe that it is as visible as that the Scripture is in Print That none can be that Church but that which is called the Roman Catholick Church I think you need not trouble your self with entring into that Ocean of particular Disputes when the main and in truth the only Question is Where that Church is which we profess to believe in the two Creeds We declare there to believe one Catholick and Apostolick Church and it is not left to every phantastical man's head to believe as he pleases but to the Church to whom Christ left the power upon Earth to govern us in matters of Faith who made these Creeds for our Directions It were a very Irrational thing to make Laws for a Country and leave it to the Inhabitants to be the Interpreters and Judges of those Laws For then every man will be his own Judge and by consequence no such thing as either right or wrong Can we therefore suppose that God Almighty would leave us at those uncertainties as to give us a Rule to go by and to leave every man to be his own Judge I do ask any ingenuous man whether it be not the same thing to follow our own Fancy or to interpret the Scripture by it I would have any man shew me where the power of deciding matters of Faith is given to every particular man Christ left his power to his Church even to forgive Sins in Heaven and left his Spirit with them which they exercised after his Resurrection First by his Apostles in these Creeds and many years after by the Council at Nice where that Creed was made that is called by that name and by the power which they
Prophesies the Reasons urged by the Church of Rome will conclude much stronger that such dark passages as those of the Prophets were ought not to be interpreted by particular Persons but that the Exposition of these must be referred to the Priests and Sanhedrin it being expresly proved in their Law Deut. 17.8 That when Controversies arose concerning any Cause that was too intricate they were to go to the place which God should choose and to the Priests of the Tribe of Levi and to the Judge in those days and that they were to declare what was right and to their decision all were obliged to submit under pain of Death So that by this it appears that the Priests in the Jewish Religion were authorised in so extraordinary a manner that I dare say the Church of Rome would not wish for a more formal Testimony on her behalf As for our Saviour's Miracles these were not sufficient neither unless his Doctrine was first found to be good since Moses had expresly warned the people Deut. 13.1 That if a Prophet came and taught them to follow after other Gods they were not to obey him tho' he wrought Miracles to prove his Mission but were to put him to Death So a Jew saying that Christ by making himself one with his Father brought in the worship of another God might well pretend that he was not oblig'd to yield to the Authority of our Saviour's Miracles without taking cognisance of his Doctrine and of the Prophesies concerning the Messias and in a word of the whole matter So that if these Reasonings are now good against the Reformation they were as strong in the Mouths of the Jews against our Saviour and from hence we see that the Authority that seems to be given by Moses to the Priests must be understood with some Restrictions since we not only find the Prophets and Jeremy in particular opposing themselves to the whole body of them but we see likewise that for some considerable time before our Saviour's days not only many ill-grounded Traditions had got in among them by which the vigor of the Moral Law was much enervated but likewise they were universally possessed with a false notion of their Messias so that even the Apostles themselves had not quite shaken off those prejudices at the time of our Saviour's Ascention So that here a Church that was still the Church of God that had the appointed means of the Expiations of their sins by their Sacrifices and Washings as well as by their Circumcision was yet under great and fatal Errors from which particular persons had no way to extricate themselves but by examining the Doctrine and Texts of Scripture and by judging of them according to the Evidence of Truth and the force and freedom of their Faculties VII It seems Evident that the passage Tell the Church belongs only to the reconconciling of Differences that of binding and loosing according to the use of those terms among the Jews signifies only an Authority that was given to the Apostles of giving Precepts by which men were to be obliged to such Duties or set at liberty from them and the gates of Hell not prevailing against the Church signifies only that the Christian Religion was never to come to an end or to perish and that of Christ's being with the Apostles to the end of the world imports only a special conduct and protection which the Church may always expect but as the promise I will not leave thee nor forsake thee that belongs to every Christian does not import an Infallibility no more does the other And for those passages concerning the Spirit of God that searches all things it is plain that in them St. Paul is treating of the Divine Inspiration by which the Christian Religion was then opened to the World which he sets in opposition to the Wisdom or Philosophy of the Greeks so that as all those passages come short of proving that for which they are alledged it must at last be acknowledged that they have not an Evidence great enough to prove so important a truth as some would evince by them since 't is a matter of such vast consequence that the proofs for it must have an undeniable Evidence VIII In the matters of Religion two things are to be considered first the Account that we must give to God and the Rewards that we expect from him and in this every man must answer for the sincerity of his Heart in examining Divine Matters and the following what upon the best Enquiries that one could make appeared to be true and with relation to this there is no need of a Judge for in that Great Day every one must answer to God according to the Talents that he had and all will be saved according to their sincerity and with relation to that Judgment there is no need of any other Judge but God A second view of Religion is as it is a Body united together and by consequence brought under some Regulation and as in all States there are subaltern Judges in whose decisions all must at least acquiesce tho' they are not infallible there being still a sort of an Appeal to be made to the Sovereign or the Supream Legislative Body so the Church has a subaltern Jurisdiction but as the Authority oâ— Inferiour Judges is still regulated and none but the Legislators themselves have an Authority equal to the Law so it is not necessary for the preservation of Peace and Order that the Decisions of the Church should be infallible or of equal Authority with the Scriptures If Judges do so manifestly abuse their Authority that they fall into Rebellion and Treason the Subjects are no more bound to consider them but are obliged to resist them and to maintain their Obedience to their Sovereign tho' in other matters their Judgment must take place till they are reversed by the Sovereign The case of Religion being then this That Jesus Christ is the Sovereign of the Church the Assembly of the Pastors is only a subaltern Judge if they manifestly oppose themselves to the Scriptures which is the Law of Christians particular persons may be supposed as competent Judges of that as in civil Matters they may be of the Rebellion of the Judges and in that case they are bound still to maintain their Obedience to Jesus Christ In matters indifferent Christians are bound for the preservation of Peace and Unity to acquiesce in the Decisions of the Church and in Matters justly doubtful or of small Consequence tho' they are convinced that the Pastors have erred yet they are obliged to be silent and to bear tolerable things rather than make a Breach but if it is visible that the Pastors do Rebel against the Sovereign of the Church I mean Christ the people may put in their Appeal to that great Judge and there it must lie If the Church did use this Authority with due Discretion and the people followed the Rules that I have named with Humility
and it is in these Words Which all our Subjects are to obey without reserve And this is the carrying Obedience many sizes beyond what the Grand Seignior ever yet claimed For all Princes even the most violent Pretenders to Absolute Power 'till Lewis the Great 's time have thought it enough to oblige their Subjects to submit to their Power and to bear whatsoever they thought good to impose upon them but till the Days of the late Conversions by the Dragoons it was never so much as pretended that Subjects were bound to Obey their Prince without Reserve and to be of his Religion because he would have it so Which was the only Argument that those late Apostles made use of so it is probable this qualification of the Duty of Subjects was put in here to prepare us for a terrible le Roy le veut and in that case we are told here that we must Obey without Reserve and when those Severe Orders come the Privy Council and all such as execute this Proclamation will be bound by this Declaration to shew themselves more forward than any others to obey without Reserve and those poor pretensions of Conscience Religion Honour and Reason will be then reckoned as Reserves upon their Obedience which are all now shut out III. These being the grounds upon which this Proclamation is founded we ought not only to consider what Consequences are now drawn from them but what may be drawn from them at any time hereafter for if they are of force to justify that which is inferred from them it will be full as just to draw from the same premises an Abolition of the Protestant Religion of the Rights of the Subjects not only to Church-Lands but to all Property whatsoever In a word it Asserts a Power to be in the King to command what he will and an Obligation in the Subjects to Obey whatsoever he shall Command IV. There is also mention made in the Preamble of the Christian Love and Charity which his Majesty would have established among Neighbours but another dash of a Pen founded on this Absolute Power may declare us all Hereticks and then in wonderful Charity to us we must be told that we are either to Obey without Reserve or be burnt without Reserve We know the Charity of that Church pretty well It is indeed fervent and burning and if we have forgot what has been done in former Ages France Savoy and Hungary have set before our Eyes very fresh Instances of the Charity of that Religion While those Examples are so green it is a little too imposing on us to talk to us of Christian Love and Charity No doubt His Majesty means sincerely and his Exactness to all his Promises chiefly to those made since he came to the Crown will not suffer us to think an unbecoming Thought of his Royal Intentions but yet after all tho' it seems by this Proclamation that we are bound to Obey without Reserve it is hardship upon hardship to be bound to Believe without Reserve V. There are a sort of People here Tolerated that will be hardly found out and these are the Moderate Presbyterians Now as some say that there are very few of those People in Scotland that deserves this Character so it is hard to tell what it amounts to and the calling any of them Immoderate cuts off all their share in this Grace Moderation is a quality that lyes in the mind and how this will be found out I cannot so readily guess If a Standard had been given of Opinions or Practices then one could have known how this might have been distinguished but as it lies it will not be easy to make the Discrimination and the declaring them all immoderate shuts them out quite VI. Another Foundation laid down for repealing all Laws made against the Papists is That they were Enacted in King James the Sixth's Minority with some harsh expressions that are not to be insisted on since they shew more the heat of the Penner than the Dignity of the Prince in whose name they are given out But all these Laws were ratifyed over and over again by King James when he came to be of full Age and they have received many Confirmations by King Charles the First and King Charles the Second as well as by his present Majesty both when he represented his Brother in the Year 1681 and since he himself came to the Crown so that whatsoever may be said concerning the first Formation of those Laws they have received now for the course of a whole hundred Years that are lapsed since King James was full of Age so many Confirmations that if there is any thing certain in Humane Government we might depend upon them but this new coyned Absolute Power must carry all before it VII It is also well known that the whole Settlement of the Church Lands and Tythes with many other things and more particularly the Establishment of the Protestant Religion was likewise enacted in King James's minority as well as those Penal Laws so that the Reason now made use of to annul the penal Laws will serve full as well for another Act of this Absolute Power that shall abolish all those and if Maximes that unhinge all the Securities of Human Society and all that is sacred in Government ought to be lookt on with the justest and deepest prejudices possible one is tempted to lose the respect that is due to every thing that carries a Royal Stamp upon it when he sees such grounds made use of as must shake all Settlements whatsoever for if a prescription of 120 Years and Confirmations reiterated over and over again these 100 Years past do not purge some Defects in the first Formation of those Laws what can make us secure But this looks so like a fetch of the French Prerogative Law both in their Processes with Relation to the Edict of Nantes and those concerning Dependences at Mets that this seems to be a Copy from that famous Original VIII It were too much ill nature to look into the History of the last Age to examine on what grounds those Characters of Pious and Blessed given to the Memory of Q Mary are built but since K. James's Memory has the Character of Glorious given to it if the Civility of the fair Sex makes one unwilling to look into one yet the other may be a little dwelt on The peculiar Glory that belongs to K. James's Memory is that he was a Prince of great Learning and that he imployed it chiefly in writing for his Religion of the Volume in Folio in which we have his Works two thirds are against the Church of Rome one part of them is a Commentary on the Revelation proving that the Pope is Antichrist another part of them belonged more naturally to his Post Dignity which is the warning that he gave to all the Princes and States of Europe against the Treasonable and Bloody Doctrines of the Papacy The first Act he did
that upon pretended Occasions arising from the Abuse of this Indulgence or for some alledged Crimes wherein they and all other Protestants are to be involved tho their supineness and excess of Loyalty continue to be their greatest Offences this Liberty will not only be withdrawn and the old Church of England Severities revived but some of the new à là mode à France Treatments come upon the Stage and be pursued against them and all other perverse and obstinate British Hereticks The Declaration for Liberty of Conscience being injurious to the Church of England and not proceeding from any inward and real good Will to the Dissenters it will be worth our pains to inquire into and make a more ample Deduction of the Reasons upon which it was granted that the Grounds of emitting it being laid under every Man's view they who have Addressed may come to be asham'd of their Simplicity and Folly they who have not may be farther confirm'd both of the Unlawfulness and Inconveniency of doing it and that all who preserve any regard to the Protestant Religion and the Laws of England may be quickened to the use of all legal and due means for preventing the mischievous Effects which it is shapen for and which the Papists do promise themselves from it The Motives upon which His Majesty published the Declaration may be reduced to three of which as I have already made some mention so I shall now place every one of them in its several and proper light and give such Proofs and Evidence of their being the great and sole Inducements for the Emitting of it that no rational Man shall be able henceforth to make a doubt of it The first is the King's winding himself into a Supremacy and Absoluteness over the Law and the getting it acknowledged and calmly submitted unto and acquiesced in by the Subjects The Monarchies being Legal and not Despotical bounded and regulated by Laws and not to be exercised according to mere Will and Pleasure was that which he could not digest the thoughts of when a Subject and had been heard to say That he had rather Reign a day in that Absoluteness that the French King doth than an Age tied up and restrained by Rules as his Brother did And therefore to perswade the Prince of Orange to approve what he had done in dispensing with the Laws and to obtain him and the Princess to joyn with His Majesty and to employ their Interest in the Kingdom for the Repealing the Test Acts and the many other Statutes made against Roman Catholicks he used this Argument in a Message he sent to their Royal Highnesses upon that Errand that the getting it done would be greatly to the Advantage and for the increase of the Prerogative but this these two noble Princes of whose Ascent to the Throne all Protestants have so near and comfortable a Prospect were too Generous as well as Wise to be wheedled with as knowing that the Authority of the Kings and Queens of England is great enough by the Rules of the Constitution without grasping at a new Prerogative Power which as the Laws have not vested in them so it would be of no use but to inable them to do hurt And indeed it is more necessary both for the Honor and Safety of the Monarch and for the Freedom and Security of the People that the Prerogative should be confined within its ancient and legal Channels than be left to that illimited and unbounded Latitude which the late King and his present Majesty have endeavored to advance and screw it up unto That both the Declaration for Liberty of Conscience in England and the Proclamation for a Toleration in Scotland are calculated for raising the Sovereign Authority to a transcendent Power over the Laws of the two Kingdoms may be demonstrated from the Papers themselves which lay the Dispensing Power before us in terms that import no less than his Majesty's standing Free and absolved from all Ties and Restraints and his being cloathed with a Right of doing whatsoever he will For if the Stile of Royal Pleasure to suspend the Execution of such and such Laws and to forbid such and such Oaths to be required to be taken and this in the virtue of no Authority declared by the Laws to be resident in his Majesty but in the virtue of a certain vagrant and indeterminate thing called Royal Prerogative as the Power exercised in the English Declaration is worded and expressed be not enough to enlighten us sufficiently in the matter before us the Stile of Absolute Power which all the Subjects are to obey without reserve whereby the King is pleased to chalk before us the Authority exerted in the Scots Proclamation for the stopping disabling and dispensing with such and such Laws as are there referred unto and for the granting the Toleration with the other Liberties Immunities and Rights there mentioned is more than sufficient to set the Point we are discoursing beyond all possibility of rational controll As 't is one and the same Kind of Authority that is claimed over the Laws and Subjects of both Kingdoms tho for some certain reasons it be more modestly designed and expressed in the Declaration for a Liberty in England that it is in the Proclamation for a Toleration in Scotland so the utmost that the Czar of Mosco the great Mogul or the Turkish Sultan ever challenged over their respective Dominions amounts only to an Absolute Power which the King both owns the Exertion of and makes it the Fountain of all the Royal Acts exercised in the forementioned Papers And as the improving this challenged Absolute Power into an Obligation upon the Subjects to obey his Majesty without reserve is a Paraphrase upon Despotical Dominion and an advancing it to a Pitch above what any of the Ancient or Modern Tyrants ever dream'd of and beyond what the most servile part of Mankind was ever acquainted with till the present French King gave an Instance of it in making his mere Will and pleasure to be the Ground and Argument upon which his Reformed Subjects were to renounce their Religion and to turn Roman Catholicks so it is worth considering whether His Majesty who glories to imitate that Foreign Monarch may not in a little time make the like Application of this Absolute Power which his Subjects are bound to obey without reserve and whether in that case they who have Addressed to thank him for his Declaration and thereby justified the Claim of this Absolute Power being that upon which the Declaration is superstructed and from which it emergeth can avoid paying the Obedience that is demanded as a Duty in the Subject inseparably annexed thereunto That which more confirms us that the English Declaration and the Scots Proclamation are not only designed for the obtaining from the Subjects an Acknowledgment of an Absolute Power vested in the King but that no less than the Usurpation and Exercise of such a Power can warrant and support them are
secured of an Asiatick Tameness in his Prelatical People by a Principle which they have lately imbib'd but neither learned from their Bibles nor the Statutes of the Land For the Clergy upon thinking that the Wind would always blow out of one quarter and being resolved to make that a Duty by their Learning which their Interest at that season made convenient have preached up the Doctrine of Passive Obedience to such a boundless height that they have done what in them lyes to give up themselves and all that had the Weakness to believe them fettered and bound for Sacrifices to Popish Rage and Despotical Tyranny But for my self and I hope the like of many others I thank God I am not tainted with that slavish and adulatory Doctrine as having always thought that the first Duty of every Member of a Body Politick is to the Community for whose Safety and Good Governors are instituted and that it is only to Rulers as they are found to answer the main Ends they are appointed for and to Act by the legal Rules that are Chalk'd out unto them Whether it be from my Dullness or that my Understanding is of a perverser make than other Mens I cannot tell but I could never yet be otherways minded than that the Rules of the Constitution and the Laws of the Republick or Kingdom are to be the Measures both of the Sovereign's Commands and of the Subjects Obedience and that as we are not to invade what by Concessions and Stipulations belongs unto the Ruler so we may not only Lawfully but we ought to defend what is reserved to our selves if it be invaded and broken in upon And as without such a Right in the Subjects all legal Governments and mix'd Monarchies were but empty Names and ridiculous things so wheresoever the Constitution of a Nation is such there the Prince who strives to subvert the Laws of the Society is the Traytor and Rebel and not the People who endeavor to preserve and defend them There is yet another Branch of the foresaid Oath that is of a much more unreasonable Strain than the former which is That they shall to the utmost of their Power assist defend and maintain him in the Exercise of this Absolute Power and Authority which being tack'd to our Obeying without reserve make us the greatest Slaves that eitheâ— are or ever were in the Universe Our Kings were heretofore bound to Govern according to Law and so is his present Majesty if a Coronation Oath and faith to Hereticks were not weaker than Sampson's cords proved to be but instead of that here is a new Oath imposed upon the Subjects by which they are bound to protect and defend the King in his ruling Arbitrarily It had been more than enough to have required only a calm submitting to the exercise of Absolute Power but to be enjoined to swear to assist and defend his Majesty and Successors in all things wherein they shall exert it is a plain destroying of all natural as well as civil Liberty and a robbing us of that freedom that belongs unto us both as we are men and as we are born under a free and legal Government For by this we become bound to drag our Brethren to the Stake to cut their Throats plunder their Houses imbrew our hands in the Blood of our Wives and Children if his Majesty please to make these the Instances wherein he will exert his Absolute Power and require us to assist him in the exercise of it As it was necessary to cancel all other Oaths and Tests as being directly inconsistent with this so the requiring the Scots to swear this Oath is the highest revenge he could take for their Solemn League and Covenant and for all other Oaths that lust after Arbitrariness and Popish Bigottry will pronounce to have been injurious to the Crown But no words are sufficient to express the mischiefs wrapt up in that new Oath or to declare the abhorrency that all who value the Rights and Liberties of Mankind ought to entertain for it nor to proclaim the Villany of those who shall by Addresses give thanks for the Proclamation There may a fourth thing be added whereby it will appear that his Majesty's assuming Absolute Power stands recorded in Capital Letters in his Declaration for liberty of Conscience For not being contented to omit the requiring the Oaths of Allegiance and Supremacy and the Test Oaths to be taken nor being satisfied to suspend for a season the enjoining any to be demanded to take them he tells us that it is his Royal will and pleasure that the aforesaid Oaths shall not at any time hereafter be required to be taken which is a full and direct Repealing of the Laws in which they are Enacted It hath hitherto passed for an undoubted Maxim that eorum est tollere quorum est condere they can only abrogate Laws who have Power and Authority to make them and we have heretofore been made believe that the Legislative power was not in the King alone but that the two Houses of Parliament had at least a share in it whereas here by the disabling and suspending Laws for ever the whole Legislative Power is challenged to be vested in the King and at one dash the Government of England is Subverted and changed Tho it hath been much disputed whether the King had a liberty of refusing to Assent to Bills relating to the benefit of the Publick that had passed the two Houses and if there be any sense in those words of the Coronation Oath of his being bound to Govern according to the Laws quas vulgus Elegerit he had not yet none till now that his Majesty doth it had the impudence to affirm that he might abrogate Laws without the concurrence and assent of the Lords and Commons For to say that Oaths enjoined by Laws to be required to be taken shall not at any time hereafter be required to be taken is a plain Cancelling and Repealing of these Laws or nothing of this World ever was or is nor can the wisdom of the Nation in Parliament Assembled find words more emphatical to declare their Abrogation without saying so which at this time it was necessary to forbear for fear of allarming the Kingdon too far before his Majesty be sufficiently provided against it For admitting them to continue still in being and force tho the King may promise for the non execution of them during his own time which is even a pretty bold undertaking yet he cannot assure us that the Oaths shall not be required to be taken at any time hereafter unless he have provided for an eternal Line of Popish Successors which God will not be so unmerciful as to plague us with or have gotten a Lease of a longer Life than Methusalah's which is much more than the full Century of years wished him in a late Dedication by one that stiles himself an Irishman a thing he might have forborn telling us because the Size
have provok'd the then Duke of York's Indignation and have exposed the Party that did it to Discountenance and Disgrace The Question is not what is convenient to be done in some measure and degree and in reference to those whose Religion does not oblige them to destroy all that differ from them when they have opportunity for it but the Point in debate is who hath the legal Power of doing it and of fixing its Bounds and Limits It was never pretended that the King ought to be shut out from a Share in Suspending and Repealing Laws but that the sole Right of doing it belongs to him is what cannot be allowed without changing the Constitution and placing the whole Legislative Authority in His Majesty And as it is an Usurpation in the King to challenge it and a Treachery in English Subjects to acknowledge it so the Inconveniences that this or that Party are in the mean time exposed unto through the Laws remaining in Force are rather to be endured than that a Power of giving Ease and Relief farther than by Connivance should be confessed to reside in any one in whom the Laws of the Community have not placed it 'T is better to undergo Hardships under the Execution of unjust Laws than be released from our Troubles by a Power Usurped over all Laws For by the one the Measures of Government as well as the Rights and Privileges of a Nation are destroy'd whereas by the other only a part of the People are Afflicted and unduly dealt with While we are govern'd by Laws tho several of them may be Injust and Inconvenient yet we are under a Security as to all other things which those Laws have not made liable but when we fall under an illimited Prerogative and Absolute Power we have no longer a Title unto or a hedge about any thing but all lies open to the Lust and Pleasure of him in whom we have owned that Power to be seated A Liberty is what Dissenters have a Right to Claim and which the Legislative Authority is bound by the Rules of Justice and Duty as well as by Principles of Wisdom and Discretion to grant And I am sorry that while they stood so fair to obtain it in a Legal and Parliamentary way any of them by acknowledging a Right in another to give it and that in a manner so Subversive of the Authority of Parliaments should have rendred themselves unworthy to receive it from them to whom the Power of Bestowing it does belong Not but that a Toleration will be always due to their Principles but I know not whether the particular Men of those Principles who have by their Addresses betray'd the Kingdom may not come to be judged to have forfeited all Share in it for their Crime committed against the Constitution and the whole Politick Society Nor is there any thing more Just and Equal than that they who surrender and give away the Rights both of Legislators and Subjects should lose all Grace and Favor from the former and all Portion among the latter And how much soever some Protestant Dissenters may please themselves with the Liberty that at present they enjoy in the virtue of the two Royal Papers yet this may serve to moderate them in their Transports of Gladness that they have no solid Security for the Continuance of it For should a Parliament null and make void the Declaration for Liberty and impeach the Judges for declaring a Power vested in the King to suspend so many Laws and for forbearing upon the King's Mandat to execute them the Freedom that the Dissenters possess would immediately vanish and have much the same Destiny that the Liberty had which was granted unto them by the Declaration of Indulgence Anno 1672. Or should the Parliament be willing to grant Ease and Indulgence to all Protestants by a Bill prepared for Repealing of all the Laws formerly made against them and should only be desirous to preserve in force the Laws relating to the Oaths of Allegiance and Supremacy and the Statutes which enjoyn the Tests of whose Execution we never more wanted the Benefit in order to our Preservation from Popery and which an English Parliament cannot be supposed willing to part with at a time when our Lives Estates and Religion are so visibly threatned to be swallowed up and destroyed by the Papists In that case we may confidently believe that the King instead either of Assenting to such a Bill for separate Favor to Protestants or persevering in his Compassion and Kindness of continuing the Suspension of the Laws against Dissenters he would from an inveterate Enmity as well as from a new contracted Resentment be stirred up and enraged to the putting the Laws in Execution with greater Rigor and Severity than hath been seen or felt heretofore And all that the Addressers would then reap by the Declaration would be to undergo the furious Effects of Brutal Rage in their Persecutors and to be unpitied by the Kingdom and unlamented by their fellow Protestants Or should his Majesty in favor to his good Catholicks resolve against the Meeting of a Parliament or to Adjourn and Prorogue them whensoever he shall find that instead of confirming what he hath done they shall make null his Declaration vote his pretended Prerogative Illegal and Arbitrary and fall upon those Mercenary and Perjured Villains who have allowed him a Power transcendent to Law yet even upon that Supposal which is the best that can be made to support Mens hopes in the continuance of the present Liberty the Protestant Dissenters would have but slender Security all the Tenure they have for the Duration of their Freedom being only Precarious and depending merely upon the King's Word and Promise which there is small ground to rely upon Nor can He be true to them without being false to his Religion which not only gives Him leave to break his Faith with Hereticks but obligeth Him to it and to destroy them to boot and that both under the pain of Damnation and of forfeiting his Crown and losing his Dominions And how far the Promise and Royal Word of a Catholick Monarch is to be trusted unto and depended upon we have a modern Proof and Evidence in the Behavior of Louis de Grand towards his Reformed Subjects not only in Repealing the many Edicts made and confirmed by himself as well as his Ancestors for the free Exercise of their Religion but in the Methods he hath always observed namely to promise them protection in the profession of their Faith and practice of their Worship when he was most stedfastly resolved to subvert their Religion and was about making some fresh advance and taking some new step for its Extirpation Thus when he had firmly purposed not to suffer a Minister to continue a year in the Kingdom he at the same time published an Edict requiring Ministers to serve but three Years in one Place and not to return to the Church where they had first Officiated
by Hundreds of Thousands at once 4. Because the Dragooners have made more Converts than all the Bishops and Clergy of France 5. The Parliament ought to establish one standing Army at the least because indeed there will be need of Two that one of them may defend the People from the other 6. Because it is a thousand pities that a brave Popish Army should be a Riot 7. Unless it be Established by Act of Parliament The Justices of Peace will be forced to suppress it in their own Defence for they will be loth to forfeit an hundred Pounds every day they rise out of Complement to a Popish Rout. 13 H. 4. c. 7. 2 H. 5. c. 8. 8. Because a Popish Army is a Nullity For all Papists are utterly disabled and punishable besides from bearing any Office in Camp Troop Band or Company of Soldiers and are so far disarmed by Law that they cannot wear a Sword so much as in their Defence without the allowance of four Justices of the Peace of the County And then upon a March they will be perfectly Inchanted for they are not able to stir above five Miles from their own Dwelling-house 3. Jac. 5. Sect. 8.27 28 29.35 Eliz. 2.3 Jac. 5. Sect. 7. 9. Because Persons utterly disabled by Law are utterly Unauthorized and therefore the void Commissions of Killing and Slaying in the Hands of Papists can only enable them to Massacre and Murder To the King 's Most Excellent Majesty The Humble Petition of William Arch-Bishop of Canterbury and divers of the Suffragan Bishops of that Province now present with him in behalf of themselves and others of their absent Brethren and of the Clergy of their respective Diocesses Humbly sheweth THAT the great averseness they find in themselves to the distributing and publishing in all their Churches your Majesty's late Declaration for Liberty of Conscience proceeds neither from any want of Duty and Obedience to your Majesty our Holy Mother the Church of England being both in her Principles and in her constant Practice unquestionably Loyal and having to her great Honour been more than once publickly acknowledg'd to be so by your Gracious Majesty Nor yet from any want of due tenderness to Dissenters in relation to whom they are willing to come to such a Temper as shall be thought fit when that Matter shall be considered and settled in Parliament and Convocation But among many other Considerations from this especially because that Declaration is founded upon such a Dispensing Power as has been often declared Illegal in Parliament and particularly in the years 1662 and 1672. and in the beginning of your Majesty's Reign and is a matter of so great Moment and Consequence to the whole Nation both in Church and State that your Petitioners cannot in Prudence Honour or Conscience so far make themselves Parties to it as the distribution of it all over the Nation and the solemn Publication of it once and again even in God's House and in the Time of his Divine Service must amount to in common and reasonable Construction Your Petitioners therefore most Humbly and Earnestly beseech your Majesty that you will be ciously pleased not to insist upon their Distributing and Reading your Majesty's said Declaration And Your Petitioners as in Duty bound shall ever Pray Will. Cant. Will. Asaph Fr Ely Jo. Cicestr Tho. Bathon Wellen. Tho. Peterburgen Jonath Bristol His Majesties Answer was to this effect I Have heard of this before but did not believe it I did not expect this from the Church of England especially from some of you If I change my Mind you shall hear from me if not I expect my Command shall be obeyed The PETITION of the Lords Spiritual and Temporal for the Calling of a Free Parliament Together with his Majesty's Gracious Answer to their Lordships To the KING 's most Excellent Majesty The Humble Petition of the Lords Spiritual and Temporal whose Names are subscribed May it please your Majesty WE your Majesty's most loyal Subjects in a deep sense of the Miseries of a War now breaking forth in the Bowels of this your Kingdom and of the Danger to which your Majesty's Sacred Person is thereby like to be exposed and also of the Distractions of your People by reason of their present Grievances do think our selves bound in Conscience of the duty we owe to God and our holy Religion to your Majesty and our Country most humbly offer to your Majesty That in our Opinion the only visible Way to preserve your Majesty and this your Kingdom would be the Calling of a Parliament Regular and Free in all its Circumstances We therefore do most earnestly beseech your Majesty That you would be graciously pleased with all speed to call such a Parliament wherein we shall be most ready to promote such Counsels and Resolutions of Peace and Settlement in Church and State as may conduce to your Majesty's Honour and Safety and to the quieting the Minds of your People We do likewise humbly beseech your Majesty in the mean time to use such means for the preventing the Effusion of Christian Blood as to your Majesty shall seem most meet And your Petitioners shall ever pray c. W. Cant. Grafton Ormond Dorset Clare Clarendon Burlington Anglesey Rochester Newport Nom. Ebor. W. Asaph Fran. Ely Tho. Roffen Tho. Petriburg Tho. Oxon. Paget Chandois Osulston Presented by the Arch-Bishop of Canterbury the Arch-Bishop of York Elect the Bishop of Ely and the Bishop of Rochester the 17th of November 1688. His Majesty's most Gracious Answer My LORDS What You ask of Me I most passionately desire And I promise You upon the Faith of a King That I will have a Parliament and such an One as You ask for as soon as ever the Prince of Orange has quitted this Realm For How is it possible a Parliament should be Free in all its Circumstances as You Petition for whil'st an Enemy is in the Kingdom and can make a Return of near an Hundred Voices The Lords Petition with the King's Answer may be printed Novemb. 29. 1688. The P. O.'s Letter to the English Army Gentlemen and Friends WE have given you so full and so true an Account of Our Intentions in this Expedition in Our Declaration that as We can add nothing to it so We are sure you can desire nothing more of us We are come to preserve your Religion and to restore and establish your Liberties and Properties and therefore We cannot suffer Our selves to doubt but that all true English men will come and concur with Us in Our desire to secure these Nations from POPERY and SLAVERY You must all plainly see that you are only made use of as Instruments to enslave the Nation and ruin the Protestant Religion and when that is done you may judge what ye your selves ought to expect both from the cashiering of all the Protestant and English Officers and Soldiers in Ireland and by the Irish Soldiers being brought over to be put in your places
bars them of Corporal and so Man under one of the best Governments in the World is left naked in the midst of Savage Beasts for homo lupus and must not though he be able make any defence for himself Thus all the Rights of Society and Nature are sacrificed to the Lust and Age of a wicked King and his evil Instruments and the Body Politick is really in a worse Condition than an unlimited Multitude for they may defend themselves if they will against any Enemy but these have an Enemy and may not defend themselves though in never so just a Cause and what is worst of all must hold their own Hands whilst others cut their Throats Lastly This Doctrine would make all Monarchs Arbitrary Monarchs and a like in effect for if the Subjects may not nor ought if they were able resist the Prince any further than by refusing to join with him then he were Arbitrary and might do what he pleas'd without opposition he had but a Moral Restraint and the most absolute Monarch had that upon him and all Limitations in the Fundamentals of Government would be idle and superfluous because they contained only such Rights as others might take from us at pleasure and we might not defend or oppose But the end of limitted Monarchies is not that the Monarch might not lawfully or rightfully oppress for an Arbitrary Monarch is bound to all that but the end of all Limitations in Government is That the Prince may want Means as well as Right to oppress that he may not be able to injure the Subject at all either lawfully or unlawfully they are limitted to govern by Laws that they may want Means as well as Right to include the Subjects Property But the Doctrine of Non-resistance give them Means for a Temptation and is indeed but a fair Bait to draw them into a Snare An Enquiry into the Measures of Submission to the SUPREAM AUTHORITY And of the Grounds upon which it may be lawful or necessary for Subjects to defend their Religion Lives and Liberties THis Enquiry cannot be regularly made but by taking in the first place a true and full view of the Nature of Civil Society and more particularly of the Nature of Supream Power whether it is lodged in one or more Persons I. It is certain that the Law of Nature has put no difference nor subordination among Men except it be that of Children to Parents or of Wives to their Husbands so that with relation to the Law of Nature all Men are born free and this Liberty must still be supposed entire unless so far as it is limited by Contracts Provisions and Laws For a Man can either bind himself to be a Slave by which he becomes in the power of another only so far as it was provided by the Contract since all that Liberty which was not expresly given away remains still entire so that the Plea for Liberty always proves it self unless it appears that it is given up or limited by any special Agreement II. It is no less certain that as the light of Nature has planted in all Men a natural Principle of the Love of Life and of a Desire to preserve it so the common Principles of all Religion agree in this that God having set us in this World we are bound to preserve that Being which he has given us by all just and lawful Ways Now this Duty of Self-preservation is exerted in Instances of two sorts the one are in the resisting of violent Aggressors the other are the taking of just Revenges of those who have invaded us so secretly that we could not prevent them and so violently that we could not resist them In which Cases the Principle of Self-preservation warrants us both to recover what is our own with just Damages and also to put such unjust Persons out of a capacity of doing the like Injuries any more either to our selves or to any others Now in these Instances of Self-preservation this difference is to be observed that the first cannot be limited by any slow Forms since a pressing Danger requires a vigorous Repulse and cannot admit of Delays whereas the second of taking Revenges or Reparations is not of such haste but that it may be brought under Rules and Forms III. The true and Original Notion of Civil Society and Government is that it is a Compromise made by such a Body of Men by which they resign up the right of demanding Reparations either in the way of Justice against one another or in the way of War against their Neighbours to such a single Person or to such a Body of Men as they think fit to trust with this And in the management of this Civil Society great distinction is to be made between the Power of making Laws for the Regulating the Conduct of it and the Power of Executing those Laws The Supream Authority must still be supposed to be lodged with those who have the Legislative Power reserved to them but not with those who have only the Executive which is plainly a Trust when it is separated from the Legislative Power and all Trusts by their Nature import that those to whom they are given are accountable even though it should not be expresly specified in the words of the Trust it self IV. It cannot be supposed by the Principles of Natural Religion that God has authorized any one Form of Government any other way than as the general Rules of Order and of Justice oblige all Men not to subvert Constitutions nor disturb the Peace of Mankind or invade those Rights with which the Law may have vested some Persons for it is certain that as private Contracts lodg or translate private Rights so the publick Laws can likewise lodg such Rights Prerogatives and Revenues in those under whose Protection they put themselves and in such a manner that they may come to have as good a Title to these as any private Person can have to his Property so that it becomes an Act of high Injustice and Violence to invade these which is so far a greater Sin than any such Actions would be against a private Person as the publick Peace and Order is preferrable to all private Considerations whatsoever So that in truth the Principles of natural Religion give those that are in Authority no Power at all but they do only secure them in the possession of that which is theirs by Law And as no Considerations of Religion can bind me to pay another more than I indeed owe him but do only bind me more strictly to pay what I owe so the Considerations of Religion do indeed bring Subjects under stricter Obligations to pay all due Allegiance and Submission to their Princes but they do not at all extend that Allegiance further than the Law carries it And though a Man has no divine Right to his Property but has acquired it by human Means such as Succession or Industry yet he has a security for the Enjoyment of it