said deed and true duty of Allegiance He or They be in no wise convict or attaint of High-Treason ne of other offences for that Cause by Act of Parliament or otherwise by any process of Law whereby he or any of them shal lose or forfeit Life Lands Tenements Rents Possessions Hâ—reditaments Goods Chattels or any other thing but to be for that deed or service utterly discharg'd of any Vexation Trouble or Loss This Law doth authorise any Subject to pay his Allegiance to the King in being and does secure him against all Penalties for the same and therefore reaches our Case where there is not a bare Possession but all the Right that Conquest can give And in the famous Act of Parliament concerning Treasons Coke's Institutes Part 3. ch 1. of High-Treason the 25th of Edward III. my Lord Coke says that by the King against whom Treason is committed in that Statute Is meant the King in possession of the Throne whatever his Right to it be These my Lord are his own words This Act is to be understood of a King in possession of the Crown and Kingdom for if there be a King Regnant in possession although he be Rex de facto non Rex de jure yet is He Seignior le Roy within the purview of this Statute And the other that hath right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and after the King de Jure cometh to the Crown He shal punish the Treason done to the King de facto and a Pardon granted by a King de Jure that is not also de facto is void This is sufficient to shew the sence of our Laws in this case and for its being agreeable to Reason to transfer our Allegiance in the Circumstances mentioned I have already in part proved this and I think it may be fairly deduced further from the Writings of that great and excellent Casuist Bishop Sanderson whom all will allow to be a very competent Judge of the Dictates of Reason Whoever will read his Case of the Engagement may find a great deal to this purpose but I intend only to insist on what he hath delivered in his Fifth Prelection concerning the Obligation of Conscience where he disputes for and gives several reasons for the paying obedience to the Laws and submitting to the Government even of an unlawful Usurper and he puts this very case that where any one having driven away by violence the lawful Prince and true Heir of the Kingdom or having opprest him so far as that he is unable to stand up for his own Right doth while the other is still living take the Government upon him and act as King when he is in reality rather an usurper than a King and it is past doubt that downright Injury is done to the oppressed Prince If it be askt says he what I think a good Subject should do in this case who hath taken an Oath of Fealty to his lawful Prince or if he have not taken such an Oath yet is as much obliged to the Prince as if he had swoâ—n it My opinion is that it is not only lawful for a good Subject to pay obedience to the Laws made by him that has the Supâ—eme Power only de facto and not de jure and to do what other things are commanded by him so that nothing base or unjust be commanded but that it is necessary oftentimes for him to do these things and that he should be wanting to his own Duty if he did not Praelectio â—ta de Oblig Conscientiae XVI p. 176. What I could gather from this Case put by the Great Bishop is that if such obedience be lawful and very often necessary to one who is a meet Uâ—urper by unlawful Violence the least he would have determined in our circumstances must have been that Obedience might lawfully be paid to our present King and Queen who come to the Throne either by its being left empty by the last King or by a lawful and just Conquest And what the Bishop has afterwords urged in the Case of his Violent Usurper that notwithstanding the obedience to him the Fealty due to the lawful Prince must be preserved inviolate and nothing done in prejudice of his Right can have no place here since the late King fell perfectly from all Soveraignty here by deserting his Government and the Prince of Orange had a most just Cause of War against him and made as plain a conquest over him neither of which can be brought within the Bishops Case and therefore if Subjects may to keep to the Bishops Reasons upon the Case for their own sakes for the preservation of their Lives and Estates and for the protection they receive under those who have possession of the Government and for the publick sake for the Trade and Commerce of the Nation upon which the publick must subsist live quietly under and pay obedience to an usurped power every one of these Reasons is more forcible upon us to pay our Obedience to their present Majesties who have Right of just Conquest Right of Lawful Succession and the Consent and Recognition of the Nation in Convention on their side And as Reason has directed in such Circumstances to transfer Obedience to the Conquerour under whom we can live safe and in quietness so does the Scripture it self the best Rule we can desire in our Case As the Scripture commands under the greatest penalties Subjection to the Supreme power so it does not put men upon the Rack about the Right of Governours or upon examining who has or who has not the true Right to a Crown but directs obedience to the powers in beeing to those who are in possession of the Supreme power how small soever their claim to it may be This I can make evident my Lord from the Instances of some in the Old Testament and of those to whom our Lord Jesus himself and his Aposties did so strictly command Obedience in the New. Upon the death of Josiah King of Judah the people of Judah took Jehoahaz who was the fourth and youngest Son of Josiah and anointed him which was done by the chief priest and made him King in his Father's stead setting aside the Right of his Three Elder Brothers 2 Kings 23.30 Now that Jehoahaz was Shallum no one will doubt that will compare this place our of the 2d Book of Kings with Jeremiah 22. Ver. 11. and that Shallum was the youngest Son of four he can no more doubt that will consult 1 Chron. 3 15. In this Instance we do not find the Scripture condemn the peoples paying Allegiance to this prince thus set up but on the contrary God calls upon them by the prophet Jeremiah Jerem 22.10 11 12. to weep sore for him that goeth away who was to return no more nor see his native Countrey that is to lament for their King Shallum or
call it what they please his own share in it To this Argument from the Dispensing Power it may be answer'd That the Practice of it as to the Instances which I have been able to mention does not amount to a Subversion of our Government if those Laws were unjust and void in themselves which the King dispensed with As for the Laws about Offices Civil and Military from which Papists were excluded They say the Observator has prov'd it often enough that they were null and void since no Laws can preclude a King from making use of his Subjects And for all the Laws against Conventicles the Author of a Paper publish'd very lately and licens'd too call'd The Case of the Protestant Dissenters Represented and Argued p. 2. tells us very roundly that they are void also and that the Dissenters must be excused if they have in their Practice exprest less Reverence for Laws made by no Authority received either from God or Man and complains that They are injuriously reflected on when it is imputed to them that They have ☞ by the use of their Liberty acknowledg'd an Illegal Dispensing Power We have says he done no other thing herein than we did when no Dispensation was given or pretended in Conscience of Duty to Him that gave us breath Nor did therefore practise otherwise because we thought those Laws dispens'd with but because we thought them not Laws So that the result is that the Late King ought not to be accus'd of Subverting the Government by setting aside those Laws which were void of themselves But I need not trouble your Lordship with any answer to such an Objection since I know your Lordship nor any of those for whose sakes I write this do not believe a word of what these two do so dogmatically and yet most unjustly assert I suppose the Observator will not be fond of standing by his Assertions and that the Author of the Dissenters case ought to have shewn some more Manners than to cast such saucy and bold Slanders upon our Parliaments while one is actually sitting It is sufficient for my vindication that the present Parliament believes those Laws which the Late King dispensed with not only to be true but necessary Laws whatever these two Gentlemen with so much confidence have said to the contrary I will pass now to the other Fundamental of our Constitution which is that the Government be administred according to the Laws of the Land. It is equally evident that this Fundamental was subverted by the Late King as well as the former for so far was he from governing according to Law that his whole Government from the time of his claiming his Dispensing Power seems to be a downright opposition to the Laws He was pleas'd to make Privy-Counsellors against Law Judges against Law Sheriffs against Law Lord-Lieutenants and their Deputies against Law and Justices against Law to have Men hang'd up for deserting in time of Peace against Law to have Popish Chappels Jesuit-Schools and the Conventicles open'd against Law In a word his Resolutions as well as his Practice did shew that the Laws were not intended to be made the Rule of his Government This is the True State of King James's Government and This is inconsistent with that Essential of our Constitution of Governing according to Law. Now if my Lord it be the Essence and the Definition of the King in our Government that He is One who governs the People committed to his charge according to Law how can we reckon in this Rank the late king from the time He was resolutely set upon governing against Law In our Constitution He that does not govern by Law does not govern at all and he that does not nor will not govern at all cannot nor will not be King but ceases to be such from the time He makes his Own Will or his Evil Counsellors Advice the Rule of his Government and not the Laws I had almost forgot another Instance of the late King 's Dispensing Power and that was his laying aside those Oaths of Allegiance and Supremacy which yet are the grounds of most Mens scruples How can this be lookt upon otherwise than as a Condemnation of the Oaths as unlawfull and if they were so we have the late King's Judgment also against the Obligation of these two Oaths for if He to whom the Oaths were taken thought them unlawful then are they certainly fallen as to Him. This is as if a Person who had a Bond from another which he lookt upon as unjust should give it him up and consent to the cancelling of it So that My Lord if the breaking One of our Fundamentals by not governing according to Law do not make such a person cease being King yet that breach of the Other the assuming a Legislative Power which quite alters and tears up the whole Frame of our Constitution cannot do less than shake his Right to the Government who was so solicitous to destroy it He that will not govern as King of England See the Laws of K. Edw. the Confessor Sect. 17. Rex autem ad hoc est Constitutus ut Regnum terrenum populum Domini regat ab injuriosis defendat quod nisi fecerit nec nomen Regis in eo constabit will not govern at all and if He continue in this humour as the late King did from the time of assuming his Arbitrary Dispensing Power how can he be longer King and if he ceased to be King by his leaving off to govern the Oaths to him were as much at an end as if he had ceased at the same time to live And as the Oaths could certainly have no further Obligation to him when he had divested himself of his Kingly Power by destroying that very Government whereby and in which he was King so did the Declaration about taking up Arms upon no pretence against the King fall with them That Declaration every one will grant me was made for the preservation of the Government which the late King took such indefatigable care to destroy That Declaration was never intended for the destruction and ruin of our Government and yet it must be the ruin of the Government if it puts it into a King's hands to turn Tyrant without controul and to subvert our Legal Constitution and undo a Nation without gainsaying and therefore that Declaration was intended for the security of and was to be made to a King governing by Law and therefore did not concern the late King from the Hour he set up his own Will against the Laws and his own Power against that of the whole Kingdom in Parliament This my Lord is the first Case whereby a King ceases to govern or to be a King for they are synonymous I think by the Instances I have produc'd and the Arguments I have offered it may reasonably appear that the late King had subverted our Government and destroyed his own share of enjoying his Kingly Authority in
it and thereby ceased to be King and if once He ceased to be such no body will deny that the Obligation of all Oaths to Him as King did expire at the same time But since my Lord we have commonly receiv'd a very transcendent Notion of our Monarchy which will not allow the Destructive Practices I have now mentioned nor worse than these to make a forfeiture of the Kingly Power here or to be the Subversion of our Monarchs Rights whatever they be of the Peoples I shall were the insisting further upon this Head. Let it then be supposed for that Opinion's sake that the King does not destroy his own Right or the Exercise of his Royal Authority tho' He does destroy our Constitution by ruling directly against the Law and making Laws by his own Power The next Enquiry is Whether a King can lay down his Government and divest himself of all Authority and whether King James did not voluntarily leave his Government by withdrawing himself out of the Kingdom and making no provision for the Publick No body will dispute with me thtt a King cannot lay down his Government The Case of the Emperour Charles the fifth and which comes nearer our own concern that of the Queen Christiana of Sweden are Instances of it beyond opposition And I think it would be as little disputed that the late King James did by a voluntary withdrawing himself out of the Kingdom recede as fully from his Government if these few things were fairly consider'd First That he was at that time of withdrawing himself actually upon a Treaty with the Prince of Orange and had Three Lords Commissioners with Him who the very night He withdrew that He himself could not but give this Just Character of the Prince's Proposals as to say of them That they were fairer than he could or did expect so that the King had no reason then to be afraid of his Person but might have continued with security in his Palace and taken care of the Government and called such a Parliament as both Himself and the Prince desired which might have quietly and effectually settled this Nation and prevented all ill consequences to his Person or to his Affairs Secondly That it was the Design of the Popish Party to perswade him to withdraw himself their End in it being to put us thereby into Confusion This they did not boggle to speak out the Lord Dover and Mr. Brent made no secret of it but said it more than once that the King would withdraw himself out of the Kingdom above a Fourtnight before He did it Nor were these Two the only Persons in this Secret and of this Opinion In the Letter that was sent down to the King while He was at Salisbury with his Army and can be produced He was told that it was the Unanimous Advice of all the Catholicks here at London that he should come back from thence and withdraw Himself out of the Kingdom and leave us in Confusion assuring Him that within Two Years or less we should be in such Confusions that He might return and have his Ends of us as their phrase was Now if the King was pleas'd to take such desperate Counsellors Advice and thereupon to withdraw Himself out of the Kingdom and command his Army to be let loose upon the People by disbanding them at such a Juncture I can see nothing herein to make his going away involuntary If then his withdrawing Himself out of the Kingdom was done out of design and willingly He did as effectually divest Himself pro tempore of the Government as if He had left a formal Resignation of the Kingdom behind him attested by all his Privy-Counsellors hands and our Allegiance to him did fall with it and our Oaths did no more oblige now than the Oaths taken to Christina Queen of Sweden did when she resign'd and went to Rome since in both Cases the Government of these Two Princes was equally at an end but our condition the worse of the two since Queen Christina left the Government to her Kinsman but our King left us to the Rabble and his disbanded Army There is one Objection my Lord which I have often heard made against this that tho' the late King out of a groundess fear or for any other reason or design whatsoever did voluntarily withdraw himself ou of the Kingdom yet this ought not to be accounted a compleat Cession or Dereliction of the Government unless it could be proved withal that there was not Animus revertendi that he never intended to return to us more But this Objection is of no weight in the Case of a Kingdom For whether the King intended to return back any more or no signifies nothing herein since the withdrawing Himself and making no manner of Provision for the Government and Safety of the Nation did actually put an end to his Government at least for that time and our Constitution can no more than any other Government in the World be left in such a condition or can be said to subsist in such a Case and it is against all the sense and reason of Mankind to think that any Nation either will or ought to continue without a settlement till the Governour who hath left it unawares and in confusion will be pleased to think of returning Does any one believe that if the late King when He withdrew intended not to return these ten Years that we of this Nation should have continued in the Anarchy He left us and have no Government till He would come back Among all our Discontents I hope none can be found so weak to imagine this and the same reason I am sure holds as fully against his leaving us one Month as ten Years So that whether the late King intended to return or no when He went away He ceased to govern us and the very same moment He was pleas'd to leave off governing by withdrawing himself He cancell'd the Obligation of all Oaths and Allegiance to Him as King. But beyond all this I can grant my Lord that the late King from the very time of his withdrawing nay from the very minute of resolving to do it had Animum revertendi did intend to return to us I do believe that those Papists which advised him to withdraw did design that He should return and that He himself did concur in both resolutions But what was He to return for Was it not to have his Ends of us What those Ends are I suppose no Protestant needs be told none of those who make this Objection can doubt of it since his late coming to Ireland Should we have waited then till the late King could return with his borrowed Forces from France to destroy our Protestant establisht Religion and our Civil Constitution because He had Animum revertendi and therefore not have setled and provided for the Nations safety Was the King's Government not at an end tho' He had withdrawn himself from us and left no Provision