King Charles the First but they are afraid of the reproach and scandal as if they did allow of that by doing the like But the Case is extreamly different the one King being a well-resolved Protestant the other a seduced Papist Charles the First gave as great assurances of his constancy in the Protestant Religion by taking the Holy Sacrament publickly and purposely for the satisfaction of his Subjects by disputing for it against Papists by charging his Children against it a little before his death and even then giving a full Testimony of dying in it But James the Second contrary to his Education and his Royal Father's Charge deserted that Religion espoused Popery and resolved to introduce it to his Kingdom which he deserted rather then he would forego that design His Father lost his life to preserve the Church and the Established Religion which King James industriously sought to destroy and in fact he had destroyed the Government Established before he deserted the Kingdom 2ly There was a great disparity in their actions tho' Charles the First was unhappily forced from the full Administration of the Government and Protection of his Loyal Subjects yet he kept within the Kingdom and endeavoured to assert his and his Peoples Rights not by the Sword only but by many Treaties and gracious Condescentions such as satisfied all sober persons even among his Adversaries as by their too late Votes on that behalf appeared He did not declare that he was Absolute and expected Obedience to his Commands without any Reserve he did not Imprison his Bishops only for Petitioning in a matter of Conscience as James the Second and the Enemies of Charles the First did Fears and Jealousies or very light Impositions on the People for urgent Necessities were made the Ground of the War against Charles the First but real and intollerable Greivances such as the Subjects could not bear nor knew how to remove 3ly There is a great disparity in the adverse Parties Charles the First was opposed by his Subjects James the Second by a free Prince to assert a just Right the better part of Charles the First 's Subjects adhered to him and dyed for him and at length the whole body of the Nation being convinced of the Injustice of the War recalled Charles the Second to succeed his Father And I hope no man will compare the Benefits we have received by the present King's proceedings with the Mischiefs that we endured and expected greater not only from the Vsurpers on Charles the First but the transactions of James the Second And such persons do as surely deserve as they will draw on themselves that Popery and Slavery which they abhor who are not satisfied with that happy Deliverance which they now injoy and by their Thankfulness and Obedience to God and the King may be confirmed to them and their Posterity so that I am well perswaded that they who ingaged against Charles the First were highly criminal and that they who since James the Second deserted the Kingdom shall ingage for him are really peccant The second Consideration is Whether the King having on these grounds begun a War and gotten quiet possession of the Kingdom and by the People acknowledging the Right of his Lady to the Succession on the Vacancy by Desertion are proclaimed King and Queen have a just Title and such as we ought to swear Allegiance to As to the Vacancy of the Government I have said enough already and all will grant that if a Crown be Forfeitable ours was forfeited Now in case of this Vacancy the Right of Succession by our Laws is in the next Heir which is the present Queen and that she ought immediately to succeed because by a Maxim in our Laws the King never dies and the sole Administration is to be in her and therefore it is objected That we cannot swear Faith and true Allegiance to any other Answ Seeing all Oaths and Acts that oblige the Subjects are in the name of the Queen as well as of the King we pay our Obedience where it is due and this may satisfie the Conscience of every one as to our present Condition at least until there be a separation made And if the sole Power should be devolved on the present King the consent of the next Heir being obtained to whom is the Injury done Not to the Princess Anne for velenti non fit injuria not to the People for the same reason they having expressed their consent but this hath its President in the Case of Henry the Seventh as is already said If in discussing the Right of Succession a question do arise concerning the Primary Will and Intention of the People at the first Institution of a Kingdom it is not amiss to take the Advice of the present People i. e. of the Nobles Clergy and Commons as Cambden says of England Anno 1571 1572. Grotius l. 2. c. 7. n. 27. And the Equity of it seemeth apparent that he who redeemed the Crown may wear it by consent of the People and the consent of the right Heir nor can the People be blamed for joyning in such consent because it hath been thought a Duty in Gratitude that such Heroes as have vindicated a People from Thraldom and become great Benefactors to them have been by consent of the People acknowledged their Kings So Aristotle Polit. l. 3. c. 10. n. 89. And in such a juncture of Affairs the whole Protestant Cause lying at stake the Kingdom of Ireland being possessed by Papists and many Divisions in our own Nation there is need of more than the Authority of a single person The Act of 13 of Eliz. asserts it to be in the Power of the Parliament to alter or limit the Succession And as to matter of fact such alteration hath been made for in the Cases of Queen Mary and Queen Elizabeth the Succession was altered because one of them was Illegitimate Again Quod fieri non debuit factum Valet The necessity of Affairs that inforc'd it may speak much in defence of it As Josephus says of the Jews submitting to the Roman Emperours That having submitted to them they ought not to make resistance And if by tract of time an Empire which was unjustly acquired may justly be submitted to because of an implicite Consent of the People to such an Empire I see no cause but the express actual Consent of a People to a Prince may justly oblige them Such a Consent of the Senate and People to the Roman Emperours was the ground of our Saviour's Injunction for paying Tribute and of the Apostles requiring Subjection to them And so we may conclude as Hushai did 2 Sam. 16.18 Whom the LORD and this People and all the Men of Israel shall choose his will I be and with him I will abide FINIS
and grant and preserve to us and to the Churches committed to our Charge all Canonical Priviledges and due Law and Justice And that you would protect and defend us as every good King ought to be a Protector and Defender of the Bishops and Churches under his Government A. With a willing and devout Heart I promise and grant my part and that I will preserve and maintain to you and the Churches committed to your charge all Canonical Priviledges and due Law and Justice and that I will be your Protector and Defender to my power by the assistance of God as every good King in his Kingdom by right ought to protect and defend the Bishops and Churches under his government Then the King ariseth and is led to the Communion Table where he takes a Solemn Oath in sight of all the People to observe the Premisses and laying his Hand on the Book saith The things which I have before promised I shall perform and keep So help me God and the Contents of this Book Now an Oath being a high Act of Religion and called the Oath of God invoking him as a Witness and Surety for the performance and a Revenger in case of Transgression ought not but as Medicines to be taken but in cases of Necessity with good Advice and great Sincerity especially in such Solemn and Publick Oaths the violation whereof the very Heathen do abhor And what the Laws of the Church and People are the Magna Charta the Petition of Right and the Statutes of Parliament do shew to all which the Prince is sworn and thereupon the People declare their acceptance of him and some Subjects of all Orders do him immediate Homage in the Name of the rest And by the Laws of God and Men those things that are Solemnly Sworn to on express Conditions mutually agreed on do equally oblige both Parties The Subjects Obligation is expressed in several Oaths the most considerable are those of Supremacy and Allegiance from each of which the Person sworn is under a double Obligation first and primarily to the matter of the Oath which concerns both Prince and People which they are sworn to defend And secondarily to the Persons specified in the Oath whose Interest it is to defend the same viz. the King his Heirs and Successors The Oath of Supremacy was framed to assert the King's Supremacy in Opposition to the Usurpation of the Pope wherein we promise To bear Faith and true Allegiance to the King his Heirs and Lawful Successors and to our power to assist and defend all Jurisdictions Priviledges c. granted or belonging to the King's Highness his Heirs and Successors or united and annexed to the Imperial Crown of this Realm This Oath was brought into Form by King Henry VIII And the Parliament then declared That it was a Declaration of the Ancient Right of the Crown which doth not at all exclude the Right of the Subject because the admission of that Usurpation would certainly bring the Subject under the Yoke of Popery and Slavery which by this Oath they are bound to their power to resist as they did in the Reign of King John and several other Kings of which hereafter In the Oath of Allegiance we swear to bear Faith and true Allegiance to His Majesty his Heirs and Successors and him and them will defend to the utmost of our Power against all Conspiracies and Attempts whatsoever made against his or their Persons And do our best endeavour to disclose to His Majesty his Heirs and Successors all Treasons and Traiterous Conspiracies which we shall know or hear of to be against him or any of them And we also Swear That neither the Pope of himself nor by any other means with any other hath power to Depose the King or annoy his Countries or to give License to any of them to bear Arms to raise Tumults or to offer any violence or hurt to His Majesties Person State or Government or to any of His Majesties Subjects within His Majesties Dominions Concerning these Oaths it is observable First that they were both intended to preserve the King and his Subjects from the Usurpations of the Pope and Church of Rome contrary to their Ancient Rights which were opposed and resisted not only by many of our Kings which were themselves Papists but by the Nobles and Commons when their King would have submitted to them And if they who were Papists did so resolutely defend themselves against Popish Usurpations of a Pecuniary and Temporal concern much more ought we when not only our Liberties but our whole Religion as Protestants is invaded Secondly That by these Oaths we are bound to defend them to the utmost of our power against all such as shall offer any Violence or Hurt to His Majesty's Person State and Government or to any of His Majesty's Subjects Thirdly Because it is mentioned in the Oath that these Priviledges were granted or annexed to the Crown viz. by the first Constitution agreed on by Prince and People Fourthly Because it is said that neither the Pope of himself nor by any other means with any other which may infer although the King himself should joyn with him as King John did may do violence or hurt to the State and Government or to any of His Majesty's Subjects from whence I inferred that the Subjects were primarily obliged to the matter of the Oath and then to the King's Person because the King in Person may joyn with the Pope to do violence and hurt to the Subjects in which case the Oath binds the Subjects to the utmost of their power to defend and maintain their Rights and Priviledges which for their better Security were granted or annexed to the Crown not for their utter subversion and it is incredible that any Prince would oblige his Subjects by Oath to which he himself hath sworn also or that he would expect the performance of it from his Subjects which he himself with all his power is resolved to vacuate and destroy And in such a case we must recur to the Law and Dictates of Nature for preservation of our selves and the common welfare against unfaithful and cruel Men for there is such a Law Prior and Paramount to any particular Constitution and for the end whereof all Government was instituted this is always accounted inculpata tutela so Natural and Necessary that it cannot be annulled by any Civil Constitution Et qui se cum defendere possit occidi permittit illum damnari posse non aliter ac si seipsum occidisset he is a Felo de se guilty of Self-murder And doubtless if it had been proposed to the Law-makers whether they intended to oblige themselves to assist and defend the King's Person in case he should joyn with the Pope and French King to set up the Inquisition and bring in French Dragoons they would never have enacted such a Law and therefore we may presume they never intended such Obligation Fifthly That we are bound to
Edict which Mordecai procured for the Jews to defend themselves says Jus naturae munit authoritate Regiâ supposing they might have done it by the Law of Nature And on those words of his Si Rex hostili animo c. hath this Note Jo. Major in 4 Sentent says Non posse populum à se abdicare potestatem destituendi Principis si in destructionem vergeret So Bilson p. 520. If a Prince submit his Kingdom to a Foreigner or change the Form of the Common-weal or neglecting the Laws established by common consent to execute his own pleasure the Lords and Commons may joyn and defend the Laws established From whence I argue thus that Prince who studiously altereth the Form and Constitution of his Kingdom as suppose from a mixed and limited Monarchy to an absolute destroys the Species of Government qua talis and so loseth it for the introduction of the new Form is the destruction of the old but a King that declares and acts accordingly that he will govern absolutely and requires his Subjects to acknowledge his absolute power doth ipso facto destroy that Species of a limited Monarchy which he had therefore he loseth that Monarchy And what was acted in Scotland and intended to be acted in England is sufficiently known and a full confirmation of this Argument And 't is the judgment of Grotius that he that openly in word or deed professeth himself an enemy to the whole Nation and the major and better part may carry that denomination is in that very act presumed to abjure and renounce the Government of it for if such a Prince should proceed to execute all his ruining Designs he would leave none of his People over whom he might reign To these I shall add another Argument viz. That a Prince or People may yield up themselves to a prevailing power as the men of Capua and Collatia did to the Romans and so lost all their authority And that our King did so may appear by disbanding his Army on the approach of the present King and submitting himself to his Guards And as King Agrippa said to the Jews Intempestivum est nunc libertatem concupiscere olim ne ea amitteretur certatum oportuit He ought to have defended his Dominion while he had it it is too late to require what by dedition and dereliction he hath given up 4. There are in Laws as well as in Oaths Casus omissi and tacit exceptions which the greatest prudence of men could neither foresee nor sufficiently prevent nor indeed were it a point of prudence so much as to name them being things odious or rarely contingent as the case of a King 's being lunatick or otherwise incapable of the Administration of his Office which our Laws have not provided against Bishop Sanderson p. 41. De Juramento mentioneth these four Si Deus permiserit quoad licet salvà potestate Superioris Rebus sic stantibus 1. If God permit as in the 4th of St. James So that if Caius swears to Titius to pay him at London on the Calends of January a Sum of Money which he oweth him but is at that time confined to his Bed by a grievous Disease or in his Journey is robbed of his Money by Thieves in this case he is not guilty of perjury because Rei impossibilis nulla est obligatio there is no obligation to a thing impossible and because all things are subject to the Divine Will and Providence therefore in every Oath by a Common Law this Clause is to be understood unless God shall otherwise dispose For this he quotes the Gloss ad quest 22. c. 2. B. Paulus In omni voto vel Sacramento intelliguntur hujusmodi generales conditiones si Deus voluerit si vivero si potero 2. Another Condition to be understood is if it be lawful because there is no obligation to unlawful things as if a man swear to observe all the Statutes and Customs of a Corporation he is bound to observe such only as are lawful and honest A 3d Condition is a Salvo to the power of a Superior as when a Son swears to do a thing that is lawful in it self but his Father being ignorant of the matter commands another thing the doing whereof hinders the Son from performing what he had sworn the Son is not bound by that Oath because by the Divine Law he is bound to obey the command of his Father the reason is because the act of one man ought not to prejudice the right of another The 4th Condition is if things continue in the same state wherein they were as when a man swears to return a Sword that he borrowed and the person of whom it was borrowed grows furiously mad he is not bound to restore it So Seneca l. 4. de Ben. c. 35. Tum fidem fallam si omnia eadem sint me promittente Si mutentur fidem meam liberat It is highly reasonable to presume that such cases may happen which if the Law-givers could have foreseen they would not have made or pass'd into a Law and therefore it may be presumed they will not exact obedience to it Dr. Sanderson p. 166. de Cons When the Law forbids that to be done which the Subject cannot omit without sin or commands that to be done which he cannot do without sin such a Law doth not bind for 1. Rei illicitae nulla est obligatio as when a Prince commands the Worship of a false God Prior obligatio praejudicat posteriori The obligation to preserve the Common Welfare is prior to our Allegiance to the present Governor Falkner in his Book of Christian Loyalty speaks as much for the unlawfulness of Subjects taking up Arms against the King as can be said p. 372 c. yet p. 542. he proposeth the case Whether if a Supreme Governor should according to his own Pleasure and contrary to the established Laws and his Subjects Property actually engage upon the destroying and ruining a considerable part of his People they might not defend themselves by taking Arms. And he instanceth in the Paris Massacre where about 100000 were slain in cold blood most of which were innocent persons never accused or tried by Law which he says was such a cruelty as can scarce be paralel'd under Mahometism And he grants that if ever such a case should happen it would have great difficulties Grotius saith he thinks that in this utmost extremity the use of such defence ultimo necessitatis praesidio as a last refuge is not to be condemned provided the case of the common good be preserved And he seems to grant that this may be true upon this ground viz. that such attempts of ruining do ipso facto include a disclaiming the governing those persons as Subjects i. e. according to Law and consequently of being their Prince or King and so the expressions in the Declaration that it is not lawful on any pretence whatsoever c. would be secured Now p. 529. he
Heirs without respect to the right Heir whom he had not yet married and for ought they knew never intended of which his strange carriage towards that good Lady whom he confined to live with the Queen Dowager her Mother in London but he kept Edward Plantagenet the Son and Heir of George Duke of Clarence close Prisoner in the Tower might give the Nation just cause of suspicion that he intended to Reign by his own Title as Heir of the House of Lancaster or as Conqueror without any respect to the Title of the House of York And he intended faith the Lord Bacon that it should be so believed for to the Act of Parliament he added the Pope's Bull for confirmation But in our Case much more Justice Wisdom and Moderation did appear the Title of the right Heir being united to that of our Deliverer and the Crown intailed on the right Line the present Administration being by consent and in the name of the King and Queen which was not observed in the Case of Henry the Seventh and the consent of the Princess Anne being also obtained who hath now a nearer prospect of the Crown than otherwise she could have hoped for Nor is the making of the Convention a Parliament without a President for in the year 1660 when General Monk had summoned several Members in the like manner but not so free there being many of the King's Party excluded yet they were made a Parliament by the King notwithstanding any want of the King's Writs Anno Car. 2di 12o. And as to the Rational Part of the Answer let it be considered That a Nation must unavoidably run into Confusion unless such a means may be used for suppose the Royal Line should be extinct there can be no fitter means to settle a Government than by such a Convention duly chosen and the Agreement of the Lords Spiritual and Temporal who want only the Royal Writ to Summon them and that not being to be had the Nation may do what is in their power to prevent that Confusion which the King 's deserting them and carrying with him the Broad-seal leaving two Armies in the midst of the Nation by reason whereof it might in a short time have been as ill with us as it is now with our distressed Brethren in Ireland made necessary and Necessity hath no Law superiour to it This therefore may be an Answer to those that object against the too great hast in proceeding to a Settlement before a Parliament could be regularly called by Writ for considering the great Destraction of the Nations and the ill Circumstances wherein this and the Kingdom of Ireland were The delay of a speedy Establishment might have unsettled us for ever for the King having either deserted the Government or being driven from it and another being fully possessed of the Kingdom the common Safety would soon be destroyed if either the prevailing Power should be resisted or some person not be admitted for the Administration of Justice and Prevention of Violence As when a Ship master forsakes his Ship in a Storm and his Mate thrusts himself into his Office to guide the Ship if the Mariners will not presently obey him as long as he guides the Ship towards the Harbor the Ship must likely perish and the Mariners in it Or if the right Master should be utterly disabled by Sickness or Destraction to perform his Office may not another assume his Office by consent of the Mariners 'T is King James the First 's saying The King is for the Commonwealth and not the Commonwealth for the King The end is alway accounted more noble than the means And unless it should be granted that a King in plenary Possession ought to be acknowledged and obeyed I cannot see on what ground our Saviour commanded Tribute to be given to Caesar or the Apostle injoyned Subjection to the Higher Power The Powers then in being being such as usurped on the Senate and were set up as Emperours by a part of the Souldiary their best Title being the Approbation of the Senate Ex post facto The Usurpation of Julius Caesar is too well known to need a Relation and that could not give a sufficient Title to Augustus against the Claim of the Senate the Argument of our Saviour for paying him Tribute was because the Money bore his Image as also the Money in the days of Julius Caesar bore his and so may be an argument for paying Tribute to any Prince whose Money is current in a Nation But this will be more evident by considering who was the Prince in being when the Apostle wrote his Epistle to the Romans which was either Claudius Caesar or Nero and the most credible Historians inform us that on the death of Caligula the Consuls and Senate advised how they might restore their Commonwealth to its ancient Freedom taken from them by the Caesars but being too slow in their Resolutions because of Dissentions among themselves it hapned in the interim that Claudius having hid himself being frighted with the news of Caligula's death was discovered by a common Souldier who knowing him saluted him Emperour and led him forth to his fellow-Souldiers with whom he remained a part of the night Minore spe quam fiduciâ saith Suetonius the Consuls and Senate then sitting in the Capitol consulting for their common Liberty sent for him by the Tribune of the People to have his Advice therein the Souldiers and People assembled desired that one might be forthwith named for their Emperour on which Claudius took courage and promising Rewards to the Souldiers being also pittied by the People who thought him designed to suffer punishment they saluted him Emperour Tacitus gives alike relation of Nero his Successor Annal l. 12. That Agrippina his Mother concealing for a time the death of Claudius kept the Palace Gates shut and pretended great kindness to Britanicus the eldest Son of Claudius until she had contrived to make Nero Emperour and having gotten the Praefect of the Bands then on the Guard to her Party sends out Nero accompanied by Burrhus to the Guards where while some expected Britannicus to follow the Praefect and Souldiers to whom Rewards were promised saluted Nero Emperour Now one of these thus advanced to the Empire by the Souldiers was undoubtedly the Emperour then in being when the Epistle to the Romans was written to whom Obedience is required for Conscience sake as to the Ordinance of God if it be replied that the Senate did afterwards confirm them in the Empire that will not vary the present Case the present King and Queen being also confirmed by Parliament That which hath been said leads me to consider these Scriptures which seem to confine our Obedience only to the lawful Powers yet some learned and good men have given such a sence of them as may raise a doubt whether they speak of a King de Jure only or de Facto and if of a King de Jure only then of such a
A RESOLUTION OF Certain Queries CONCERNING SUBMISSION TO THE Present Government The QUERIES I. Concerning the Original of Government II. What is the Constitution of the Government of England III. What Obligation lies on the King by the Coronation-Oath IV. What Obligation lies on the Subject by the Oaths of Supremacy c. V. Whether if the King Violate his Oath and actually Destroys the Ends of it the Subjects are freed from their Obligation to him VI. Whether the King hath Renounced or Deserted the Government VII Whether on such Desertion the People to Preserve themselves from Confusion may admit Another and what Method is to be used in such Admission VIII Whether the Settlement now made is a Lawful Establishment and such as with a good Conscience may be Submitted to By a Divine of the Church of England As by Law Establisht Licensed April 8th 1689. J. Fraser London Printed and are to be Sold by R. Baldwin in the Old-Baily 1689. The INTRODUCTION THERE is no doubt but the imputation of Disloyalty will as the Viper that came out of the fire and fastned upon St. Paul's Hand be fixed on the Church of England from the Dissenters of all sorts The Clamour is already very loud Where is the Loyalty of the Church of England Which though ad homines it might well be Answered by demanding Where is the Loyalty of the Papists Whom the King had so far obliged as to put them into the most considerable Offices of the Nation excluding better Subjects yet none of them though they were well Armed and in great numbers ever struck a stroke to defend the King against the Assailants although by their mischievous Counsels they had reduced him to those unhappy Circumstances And the other Dissenters who pretended to be great numbers and to have so great a Zeal for His Majesty for the favours granted them by the Indulgence and share in the Government as with their Lives and Fortunes to assist him yet were most forward to unite against him But what have the Clergy done to incur the Note of Disloyalty Did they enter into an Association against the King Were they called in Convocation to declare their Judgments as to the present juncture of Affairs Did they not as long as the King remained in his Kingdom obey him in all things Lawful according to their Doctrine of Non-resistance and Passive Obedience It could not be expected that they should take Arms or expose their naked Bodies to the Invaders Sword. They kept their Stations as their Duties to God and the King obliged them committing themselves to God and waiting for his Salvation And methinks when the Bishops and Clergy were accused for Disloyalty by some for not obeying the King in reading his late Declaration for Liberty of Conscience which they could not do with a good Conscience and were generally applauded for such Refusal they should not now be decried for keeping to the same Rule of not doing such things for which their Consciences till better informed will condemn them But we are now brought into a great strait in which our Adversaries will by all Arts imaginable endeavour to keep us and which way soever we turn they will turn it to our Ruin if it be possible If we comply with the present Establishment they will rob us of our Reputation and Faithfulness towards the People committed to our Charge as if we had misled them and taught them those Doctrines which we our selves never intended to practice If we comply not they judge us Men worthy to be deprived of our Livelihoods and with our Families to be exposed as in the late War to Sequestrators and new Committees These are no groundless Jealousies but real Fears and in some degree matters of Fact for almost in every Parish there are Persons of different Persuations and if the Minister pray for the present King and Queen according to Order one part of the Mobile condemn him for an Apostate from his own Doctrine and a Rebel If we keep to our Liturgy which by Oath we are bound to do and tho' we have as yet no Order regularly transmitted to us for altering any of those Prayers there is another Party threaten to knock us on the heads and great Affronts have been offered to several Conscientious Ministers on both these occasions What then shall we do to extricate our selves from these Mazes which are daily enlarged and become more dark and difficult for 't is not the case of a few Bishops or private Ministers only but the case of the Church of England which if our Enemies can divide in this they will easily destroy us and not us only but the whole Interest of the Protestant Churches abroad whose welfare much depends upon our Vnion and Agreement in this Nation It therefore concerns us all seriously and sincerely to enquire after the due measures of Obedience to our present Governors that doing our Duties according to the Commands of God and the Dictates of a well-inform'd Conscience we may stop the mouths of such as are opened against us and ready to swallow us up I shall at present only consider The Objection against the Church of England which is That she hath Deserted the King contrary to her Oaths her own Doctrine for Passive Obedience and their Declaration for Non-resistance viz. That it is not Lawful on any Pretence whatsoever c. Answer 1. That the Doctrine of the Church as to the present Juncture is not known but by their Determinations in a Convocation duly called for what some of the Clergy do act or declare is not to be imputed to the Church In the War raised against Charles the First some of the Clergy as Sibthorp and Manwaring stretched the Prerogative too high others as Marshal and Calamy all which pretended to be of the Church of England depressed it as low But neither of these Extremities could be charged on the Church which kept in a middle way And under the late King some were of the same Opinion with Sibthorp and Manwaring as the Bishops of Chester and Oxford others refused to comply so far as to publish his Declaration what the Church would have done in Convocation is a Non constat 2ly As to the Doctrines of Non-resistance and Passive Obedience which were not so generally taught but others did declare That those general Rules might admit of just Exceptions and had certain tacite Conditions and Qualifications in them which in case of great alterations in the Affairs of Government would appear to be necessary and justifiable and they suppose that if such a case as ours now is had been thought of or proposed it would certainly be excepted or provided against And they think it fit that the condition and circumstances of the Times wherein such Doctrines were published ought to be considered for from the Reign of Q. Elizabeth we lived under Protestant Princes governing by Laws and Defenders of our Faith who though they erred from the Laws and
the Honour of the Church in some lesser matters as the necessity of their Affairs and Counsels perswaded them yet as to the Fundamentals of both Laws and Religion they resolutely adhered to them yet was there in the People such a ferment of Rebellion infused by Malecontents perswading them of great danger both to their Religion and Laws that the People were alway ready to take fire from the sparks of groundless Fears and Jealousies and at last broke forth into such a flame as well nigh turned the whole Nation into Ashes and this was done against a Prince who as much abhorred Tyranny and Popery as any of his Subjects could it was therefore necessary that when after twenty Years Confusion we were brought as by a Miracle to settle on our first Foundations the strictest Rules and Doctrines for Obedience should be inculcated to the People Thus by an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when a Stick is crooked we bend it to the contrary part to bring it strait and the Rule is generally approved Imquum petas ut aequum feras To demand more than is due that we may not receive less See his Sermon on Eph. 5.4 It is observed by Dr. Barrow that both Moral and Political Aphorisms tho' delivered in general Terms do need Expositions and admit Exceptions else they would clash with Reason and Experience The best Masters of such Wisdom interdict things apart by unseasonable or excessive use to be perverted in general forms of Speech leaving the Restrictions which the case may require or bear to be made by the Hearers or Interpreters discretion whence many seemingly formal Prohibitions are to be received only as sober Cautions So far that Learned Doctor So Bishop Usher's Sentences delivered in general terms are not always intended to be taken in their full latitude but to have their commodious restrictions according to the quality and nature of the matter in hand P. 5. of the Power of Princes And in dangerous Causes Abundans cautela non nocet which may serve as a reason for our pressing the Duties of Non-resistance and Passive Obedience in such dangerous times as we lived in in such general terms And if we should collect all that the ancient Fathers have said in the heat of Controversies and Disputations or in their Panegericks and Invectives and compare them with their Dogmata or Opinions when they wrote their mature Judgments of matters of Faith and Doctrine we might find them to contradict themselves more then the present Church doth contradict herself in these Doctrines of Non-resistance and Passive Obedience Thus for instance St. Augustine disputing against the Pelagians who defended Free-will wrote as if he had been a Manachee and defended an irresistible Fate and when he disputed against the Manachees he seemed to be a Pelagian and to defend Free-will And those who are Predestinarians in their Writings in their Sermons to the People agree with the Arminians And the Church of England which ever since the Reformation taught the Doctrine of Non-resistance in any case whatsoever have yet manifested their Judgment that this general Rule may insome cases admit exception as by the Assistance given to the Scots French and Dutch Protestants in defence of their Religion and Liberties as hereafter mentioned may appear God himself reversed the Sentence denounced in general terms against the Ninevites upon their performing of the tacite Condition of returning from their evil Ways and yet there was no variableness in God And if there be any such tacite Conditions in the Laws and Declarations of Men as is confest by many wise and good men the sence of such Law and Declarations may differ from the letter when the state of Affairs doth alter for if it had been foreseen that a King should arise that would exercise Arbitrary Power and subject the Kingdom to the Pope destroy the Religion and Properties of the Subjects a case so odious and improbable that it could not well be supposed the Doctrine of Non-resistance and Passive Obedience would not have been prest to those ends which were intended to the contrary viz. to make way for Popery and Tyranny and Confusion Tempora mutantur non nos We adhere to our first Principles still for Levitas non est destituere si aliquid novi intervenerit eadem mihi Omnia praesta idem Sum. 3ly But as to matter of Fact let it be inquired what have the Clergy acted contrary to those Doctrines While the King continued in the Government they continued their Obedience even when their Liberties and Properties were actually taken away and their Lives were at stake Since the King's departure they have been under restraint and an impossibility of defending him whom the Nobility Gentry and Commonalty and his own Army had generally deserted and joyned with the Invading Army Hitherto then they have been Passive but the grand inquiry is How they ought to behave themselves under the present Circumstances the present King in vindication of his Queen 's Right which was otherwise desparate and not to be recovered by Petition or Bill in Chancery got full possession of the Kingdom and by a National Consent in Parliament they are declared King and Queen Whether our Allegiance be due to the late King or the present Power under whose Protection we live and enjoy our Religion Laws and Liberties which were so near to be lost Some men of great Reputation for Learning and Piety think themselves obliged by their former Oaths And the present Government think they cannot be secure till the Clergy are obliged to them by new Oaths the refusal whereof may draw on Suspension and Deprivation to the undoing not only of themselves and Families but the Established Church at home and the Protestant Interest over all Christendom if any Wars or Divisions should be occasioned by such Refusal for Prevention of which I earnestly intreat my Brethren the Clergy to lay aside all Prepossessions and Prejudices and seriously to consider the Answers given to the following Queries which the Author hath collected from * St. August l. 3. Concerning Order says there are two ways of resolving Doubts either by our own reason or the authority of the most learned Nam qui consiliis pollet nihil ipse nec audit Suadentes alios nullos homo vivit in usus the Writings of men of great Integrity Learning and Experience partly for his own satisfaction but mostly for the satisfaction of others whose welfare is as dear to him as his own that yeilding due Subjection to the King and Queen and all that are now in Authority we may lead a quiet and peaceable Life in all Godliness and Honesty The Original of Government in General GOD is the Fountain of all Government being not the Author of Confusion but of Peace and hath established Order among all his Creatures in the Angelical Nature he hath constituted several Orders Angels and Archangels Principalities Powers and Dominions in the Celestial Bodies the Sun to
particular Species for so the Supreme Power is called whether to the King as Supreme As for the Patriarchal Constitution and a Lineal Descent by proximity of Blood it is so near to an impossibility of finding out the right Heir to the first Father of a People that we must let that alone for ever And as for Conquest Grotius l. 1. c. 4. § 16. says He that doth usurp a Government and afterward enters not into a Compact with the People as it is evident William the Conqueror did who also pretended a right prior to his Conquest nor is there any trust reposed in him but his possession is maintained by force the right of War doth in this case still continue so that it is lawful in all things to deal with him as with an Enemy And l. 1. ch 4. § 7. N. 3. It is to be observed saith Grotius That men did not at first unite in civil Communities by any Command from God but voluntarily and from the experience which they had that private Families were unable to resist any foreign force from hence grew Civil Power which St. Peter therefore calls a Humane Ordinance though elsewhere it is called a Divine Ordinance because God did approve thereof as suitable and convenient for the good of Mankind but when God approves of a Humane Law he must be supposed to do it as Humane and after a Humane manner Concerning the Rise of our Government which is the Second Query I shall search no farther than the Reign of William called the Conqueror who in truth disclaimed that Title pretending a right to succeed by a Grant from King Edward and an Oath of Harold who swore to preserve the Kingdom for him after the death of Edward King Edward being dead many of the Nobles invited William to take the Crown but Harold contrary to his Oath assumes it whereupon he resolves to vindicate his Title by the Sword the Pope sending him a consecrated Banner and approving his Title and shortly after his landing slays Harold in battel and marching to London is proclaimed King and crowned by Aldred Arch-bishop taking the Coronation-Oath which was injoyned by King Edward and is the same in substance with that which is still administred and in the Title of his Laws made in the fourth Year of his Reign he stiles himself Heir and Cousin to Edward the Consessor Spelman's Councils p. 619. and confirmed all St. Edward's Laws And his Son Henry declares his Father's Title thus Qui Edvardo regi Haereditario Jure successit Selden ad Eadmerum p. 211. Henry the First his Son abolished the Norman Laws which his Father added as Cooke in the Proeme to l. 3. of his Reports Afterwards the Barons threatned King John to seize his Castles if he would not confirm their Laws which they did until they got the Magna Charta It appears then that our Government is not an Absolute Monarchy such as that of the Turks and the ancient Emperors of Rome whose Wills declared by Edicts had the force of Laws as is evident from 1. The Manner of Making Laws the Legislative Power being divided between Prince and People And 2. The Mutual Oaths and Obligations that pass between the Prince and People and because * Quas vulgus eligerit no Laws oblige the Subject but what are agreed on by Prince and People in Parliament 3. Nor can any Money without their consent be raised And whatever Laws have been thus made in former Ages and stand unrepealed do respectively oblige both Prince and People in future Ages So that when Laws are thus made it is not in the power of Prince or People to annul them but by the same Authority by which they were made by which it appears that the Legislative Power which is a chief Property of Soveraignty is not solely in the Prince yet may he pardon the Persons of some Offenders and remit the Penalties in some Cases wherein Salus Populi Suprema Lex which Maxim as it leaveth in the Prince a power of dispensing with the rigor of the Law as he shall see it expedient for the publick good so it leaveth also in the Subject a liberty upon just occasions as in cases of great exigency and for preventing of such hazards and inconveniencies as could not be foreseen or prevented and might prove of noisom consequence to the publick to do other wise than the Letter of the Law requireth See Sanderson's Case of the Liturgy p. 170. for which he gives this reason viz. It may well be presumed that the Law giver who is bound in all his Laws to intend the safety of the Publick and of every Member thereof in his due proportion hath no intention by the observation of any particular Law to oblige any person who is a member of the Publick to his destruction or ruine when the common good is not answerably promoted thereby Upon which ground it is generally resolved by Casuists that no Constitution meerly humane can lay such obligation on the Conscience of the Subject but that he may according to exigency of circumstances do otherwise than the Constitution requireth This leads me to the Third Querry The Third Query which is concerning the Obligation of the Coronation Oath and the Oaths taken by the Subjects of which I shall speak joyntly because the Obligations are relative and reciprocal There cannot be a more solemn Oath than that which is taken by our Princes at their Coronation to which the Prince is obliged as to the Matter of it before his Coronation as well as the Subject is bound to the Prince tho' not not crowned the Prince is our natural and liege Lord as we are his natural and liege Subjects i. e. according to Law. The Oath as I find it taken by King Charles First of blessed Memory is this Quest Sir Will you grant and keep and by your Oath confirm to the People of England the Laws and Customs to them granted by the Kings of England your lawful and religious Predecessors and namely the Laws Customs and Franchises granted to the Clergy by your glorious King St Edward your Predecessor or according to the Laws of God the true Profession of the Gospel established in this Kingdom and agreeable to the Prerogative of the Kings thereof and the ancient Customs of this Realm Answ I grant and promise to keep them Q Sir Will you keep Peace and Godly Agreement intirely according to your power both to God and Holy Church the Clergy and People A. I will keep it Q. Sir Will you to your power cause Law Justice and Discretion in Mercy and Truth to be executed in all your Kingdoms A. I will. Q. Will you grant to hold and keep the Laws and rightful Customs which the Commonalty of this your Kingdom have And will you defend and uphold them to the Honour of God so much as in you lieth A. I grant and promise so to do Our Lord the King we beseech you to pardon
Oaths to do so for they are not Kings unless they govern and they cannot expect Obedience unless they tell the measures by which they will be obeyed and these measures cannot be any thing but Laws which are the will of the Prince which when published to the People then they are Laws If Kings be not bound to govern the People by Laws why are they made By what else can they be governed By the will of the Prince The Laws are so which are published that wise men may walk by them and that the Prince may not govern as Fools or Lions by chance or violence and unreasonable passions Ea quae placuerunt servanda saith the Law l. 1. de Pactis If this had not been the will of the Prince it had been no Law but being his will let it be stood to And p. 143. Whatsoever the Prince hath sworn to to all that he is obliged not only as a single person but as a King for though he be above the Laws yet is he not above himself nor above his Oath because he is under God and he cannot dispense with his Oath and Promises in those cases in which he is bound Although the King be above the Laws that is in cases extraordinary and matters of Penalties yet is he so under all the Laws of the Kingdom to which he hath sworn that although he cannot be punished by them yet he sins if he breaks them And p. 149. he says The Prerogative of Kings is by Law and Kings are so far above their Laws as the Laws themselves have given them leave And p. 143. The great Laws of the Kingdom do oblige all Princes though they be supream The Laws of the Medes and Persians were above their Princes as appears in Daniel And such are the Golden-Bull of the Empire the Salic and Pragmatical Sanctions in France the Magna Charta and Petition of Right in England That great Emperour C. de Legibus l. 4. Digna vox est Majestatis regnantis legibus allegatum se principem profiteri A Sentence worthy of the Majesty of a Prince to profess himself tied to his Laws Pareto legi quisquis legem Sanxeris was the wise saying of Pittacus And the distinction of the Directive Power of the Laws and the coersive is futilous for a Directive Power is no power and a Law doth not only direct but oblige Thus the Emperour Theodosius Tantum mihi licet quantum leges licet Augustine l. 4. c. 4. De Civitate Dei Quid sunt Regna nisi magna latrocinia remota justitia quae est legum effectus The intention of the Coronation-Oath is to oblige the King not to invade the Rights of the Subjects and the Established Clergy and it is sworn to the Bishops by whom the Oath is administred And St. Aug. Epist 225. says Expectationem eorum quibus Juratur quisquis decipit non potest non esse perjurus Whoever deceives the expectation of him to whom he hath sworn is guilty of Perjury It may be said that by the Church and Bishops the King might intend such as were of the Roman Communion but the express letter of the Oath is contrary viz. With a willing and devout heart I promise and grant that I will preserve and maintain to you and the Churches committed to your charge all Canonical Priviledges and due Law and Justice and that I will be your Protector to my power by the assistance of God c. To this Evasion St. Augustine gives a check Epist 224. Quacunque arte verborum quis juret Deus tamen qui Conscientiae testis est ita hoc accipit sicut ille cui juratur intelligit By whatever art of words any one sweareth God who is Witness of the Conscience doth so take it as he to whom he sweareth doth understand it And Bishop Sanderson blackneth such a practice with the Sin of Perjury Alterum perjuris Genus est ubi recte juraveris non sincere agere sed novo aliquo excogitato commento salius tamen verbis vim juramenti declinare evadere Praelet 6. de Juramento s 7. Such a practice is contrary to the qualifications of an Oath Jer. 4.2 Thou shalt swear The Lord liveth in truth in judgment and in righteousness And in a Prince that so sweareth the Nations shall bless themselves and in him shall they glory But how can they hope that he will punish Perjury in others that is guilty of it himself To this I shall onely add what Grotius says l. 2. c. 14. s 4. de Jure belli That Promises fully made and accepted do naturally transfer a right and this holds as well in Kings as in private men Their Opinions therefore that hold that a King promising without a good cause is not obliged are not to be allowed It was nobly done of Henry the First when the Pope offered to Absolve him of his Oath answered Who will ever trust another when they see by my example that an Absolution can make void the highest Bond of Faith. See Eadmer's Hist p. 126. And where there are mutual Stipulations between Parties with Conditions expressed if either Party fail in performing the Condition sworn to on his part the other Party is not bound to perform what he was sworn to So Bishop Sanderson p. 177. de Jurament If Caius swear to give Titius an hundred Pounds on condition that Titius assign to him such a parcel of Ground at a certain day which Titius refuseth to do Caius is disobliged And p. 216. De Cons A Subject is not ordinarily bound to obey a Law that is very greivous to the certain ruine and destruction of himself and Family unless some great Necessity or publick Danger do appear And p. 202 he shews That when the subject matter of the Oath ceaseth the Obligation also ceaseth as when the state of Affaires between the time of swearing and of performing the Oath is so changed that if he that swore could have foreseen such a change he would not have sworn As if a Father swear never to alter his Will wherein he had made his Son to be his Heir and afterward his Son attempts to poyson him the Father may appoint another Heir notwithstanding his Oath the reason is because the root of the Obligation which gave occasion to the Oath being taken away the Obligation also is taken away And it is a Maxim in the Civil Law Cessante Causa cessat Lex Grotius l. 2. c. 5. n. 17. thinks no question but a King by a long continued permission may warrant a People to recover their Liberty on a presumption that the King hath left it to them Grot. l. 12. c. 4. n. 14. Bishop Andrews gives us these short but useful Rules concerning Oaths 1. If what we swear to be simply evil the Rule is Ne sit Sacramentum pietatis vinculum impietatis 2ly If it hinder a greater good then Ne sit sacramentum pietatis impedimentum pietatis 3ly If the Oath be
simply made yet it doth Subjacere civili Intellectui as Jer. 18.7 8. where God speaks conditionally of plucking up and destroying a Nation If that Nation turn from their evil ways I will repent of the evil c. The Conditions may exclude the event and the Oath remain good So that if the Prince to whom we swear do wholly pervert the end of the Oath and require us to act contrary to the ends for which we sware we are not obliged to obey him contrary to our Oaths These things premised will lead to a full understanding of the Declaration required in the Act for Uniformity viz. I do declare that it is not lawful upon any pretence whatsoever to take Arms against the King c. i. e. This is only a declaration of a Man's private Judgement according to the best information which he hath at present nor can any man suppose that the position which is indefinite can reach to every Kingdom and therefore may be false as to such Kingdoms viz. that of Poland where in some cases Resistance is permitted and in our Nation where the Laws are made the measure of the King's power because as Baldus Confil 1.245 says Clausula deplentitudine potestatis semper intelligenda est de potestate bona Laudabili 2ly It may be dubious or rather out of doubt because it is possible for a King exuere Regis personam as in case of Resignation Desertion or great Distraction such as the late King of Portugal who in his Madness slew divers Subjects and in such cases Nature dictates that we may vim virepellere as David defended himself against Saul And the Deposing of the King of Portugal was approved as by other Nations so by the English particularly So that this Declaration though in general terms may admit of exception as other such Declarations do as when I declare according to the fourth Commandment That it is not lawful to do any manner of work on the Sabbath-day yet Periculum vitâ tollit Sabbatum and such cases of necessity may happen as may make some kind of Work lawful to be done on that day And it is a good Rule in Law and Equity that Omnia dicta quantum vis universalia equitatem admittunt interpretem So when I declare according to the Apostle That Children ought to obey their Parents in all things the exception against things sinful is understood And if a King in his Lunacy committing several acts for the Destruction of his innocent Subjects may be restrained so may such a Prince Qui Sobrius ad evertendam rempublicam accedit If our Promise confirmed by Oath be grounded on a condition whereto it related that condition not being performed makes the Promise void L. 2. c. 13. n. 16. Gr. de J. Belli Or if the quality of the person cease the Oath sworn to that person in relation to his quality doth cease also L. 2. c. 13. n 18. Every Contract though sworn is to be understood with this reserved condition That matters continue in the same state but not if they be changed A wise Man saith Seneca changeth not his Resolution all things continuing as they were at the time that he made it nor can he be said to repent because at that time no better Counsel could be followed than that he resolved on L. 2. c. 16. n. 27. Eadem mihi omnia praesta idem sum 3ly Nor can a man declare it to be a traiterous position in some cases though he himself do abhor it in other cases to take up Arms by the King's authority against his person or against those that are commissioned by him because such Commissions may be granted to persons that by Law are disabled to take such Commissions or the Commissions may be forged as in the late Irish Rebellion or they may be extorted from the King being under the power of his Enemies and in fear of his life such was the case of Edward the 5th when Richard Duke of Glocester seized on his Person raising a War and granting Commissions in the King's Name Suppose that his Mother Queen Elizabeth who had then the Broad Seal brought to her by the then Arch-bishop of York had raised another Army to free the King from the Usurper's power could this either justifie the Duke and his Party or condemn the Queen and her Adherents And what hath happened may happen again As in the Case of Ireland where Commissions are granted to Papists who are unqualified Query Whether it may not be lawful for the Protestants of that Nation to defend by Arms such as by those Commissions assault them for the destruction of their Religion Laws and Liberties So that notwithstanding this Declaration if there be Laws and Oaths and certain contingent Cases whereof the Subject that makes the Declaration is ignorant which do allow a defence of the Crown Religion Laws and Liberties such defence may be lawful notwithstanding the Declaration as in case it should happen that the King wholly deserts and renounceth the Government Which leads me to answer your Sixth Query Whether it being granted that the King 's being studiously bent on the Alteration and Subversion of the Government established in Church and State do amount to a Renunciation of the Government After that Grotius had urged all the Arguments he thought of for Non-resistance he thought fit to admonish his Reader of something lest he should think that he had offended against that Law of Non-resistance when indeed he had not and the Admonitions are these First Such persons as are under compact with the People if they offend against the Laws may be restrained by force And if a King abjure his Kingdom and desert it all things are lawful against him as against a private person for which he quotes Barclay who was the greatest assertor of Monarchy who says If a King alienate his Kingdom or subjects it to another he loseth it Grotius his words are Si Rex reipsà tradere regnum aut subjicere moliatur quin ei resisti in hoc possit non dubito nam aliud est perium aliud habendi modus qui ne mutetur obstare potest populus id enim sub imperio comprehensum non est Seneca l. 3. Controvers Et si parendum in omnibus patri in eo non parendum in quo efficitur ut non sit pater And Barclay says A Kingdom may be lost if a King be carried on to the destruction of the People Consistere enim non potest voluntas imperandi voluntas perdendi Again If the King have one part of the Empire and the People another the King attempting to destroy the Peoples right a just force may be opposed and this saith he I think to have place although it be affirmed that the power of War or Militia is in the King for that is to be understood of foreign War for he that hath right hath power to defend that right Grotius on Hester 8.11 concerning the
sin then the breach of a mistaken and erroneous Law is a sin and damnable which is a very hard Sentence But Secondly Although the greater part of the People with their Legislators may judge the Laws made to be for the Common good yet every Man must judge of his own Actions in reference to those Laws whether they be agreeable to the Common good or no for the greater number in Councils may err there is no Infallible Judge in Civil or Religious matters If then the Law-givers may err or my Conscience tells me that they do err I am not bound to do what they Command by a blind Obedience but to use my private discretion in enquiring whether the thing enjoyned be for the Publick good or not for if I am allowed to use the judgment of my private discretion in Religious matters why not in Civil Men are not to go as Beasts where they are driven much less to act contrary to their Reason and Judgment which makes them worse than Beasts who will follow their Senses unless they are hindred by force so that I am not bound to obey a Law meerly Humane for Conscience-sake when I judge that Law contrary to the Publick welfare but I must submit to the Penalty if I cannot honestly avoid it But if a Magistrate that is obliged to govern by Laws do resolutely set himself to destroy those Laws and ruin not only the generality of his Subjects but his own Crown and Dignity we are not bound in Conscience to obey such a Magistrate because of a prior Obligation to preserve the publick welfare which was the end of Government and to which the means are subordinate It now remains that having proved that Scripture and right Reason to be the Rule of Conscience for our Obedience both to Magistrates and their Laws in foro interno that I do also prove that a respect to the Publick good not being contrary to any Law of God is our Rule for Obedience in foro externo One chief Law imprinted by God on the Reason of Mankind is the conservation of it self and for that end vim vi repellere to repel Force by Force for which end Mankind were taught to live in Societies and establish Rules and Laws for the Common Safety therefore homines conspirantes in communem utilitatem are the Subject-matter of a Common-wealth this being the end of all Societies no Civil Constitution can annul this Bond of Nature So Panormitan Quando jus Civile aliquid disponit contra jus naturae standum est Juri naturae So also when the Law makes provision for such things as the Law-givers fore-see and afterwards some things happen which could not be fore-seen and new Reasons and Accidents appear contrary to those Laws here Nature as a common Parent and Protector of Justice and Necessity alters or adds to the Law as when Sextus Tarquinius ravished Lucretia though there were no established Law against that particular sin yet Nature it self directed a severe Punishment And when the Pharisees pleaded their Vows to the Corban in bar to relief of their Parents which is a Law of Nature our Saviour pronounced such Vows null Bishop Taylor p. 296. proves That the Law of Nature cannot be dispensed with by any Humane Power 1. Because God is the Author of it 2. Because this Law of the preservation of the Common welfare is as necessary to the support of Societies as Nourishment is for the support of their Bodies 3. Because Natural Laws are the dictates of Natural Reason and no man hath power to alter Reason which is an Image of the Divine Wisdom and therefore unalterable As to the Law part the Act 11 Hen. 7. c. 1. says That it is not reasonable but against all Laws Reason and good Conscience that Subjects going in War with their Soveraign Lord for the time being should lose or forfeit any thing for doing their Duty and Service of Allegiance and it was Enacted That from thenceforth no Person attending on the King for the time being and doing him true and faithful Service of Allegiance in his Wars should in no wise be convict or attaint of High Treason nor of other Offence for that cause but to be for that Service utterly discharged of any vexation trouble or loss The Lord Bacon p. 144. of his History of Henry VII gives a Reason of this Law For that it was agreeable saith he to reason of State that the Subject should not enquire of the justness of the King's Title or Quarrel and it was agreeable to good Conscience that whatever the Fortune of the War were the Subject should not suffer for his Obedience The Spirit of this Law was wonderful Pious and Noble being like in matter of War to the Spirit of David in matter of Plague who said If I have sinned strike me but what have these Sheep done Neither wanted this Law parts of prudent and deep fore-sight for it did the better take away occasion for the People to busie themselves to prie into the King's Title for that however it fell their Safety was provided for Besides it could not but greatly draw unto him the love and hearts of the People because he seemed more careful for them than for himself The Lord Cook p. 7. in the Third Book of Institutes on the word Le Roy speaking of Treason says That the Act for Treason 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 only and not de Jure yet is he King within the purview of this Statute And the other that hath Right and is out of possession is not within this Statute And if Treason be committed against a King de facto and not de jure and after the King de jure cometh to the Crown he shall punish the Treason against the King de facto and a Pardon granted by the King de jure that is not also King de facto is void It is the Opinion of all Lawyers that in rebus dubiis melior est conditio possidentis Judge Hales gives the same sense of that Statute in his Remarks on the Pleas of the Crown Chapter of Treason Now both these were great Lawyers and wrote under such as were Kings de jure and in peaceable times The Argument then is this If Treason may be committed against a King in possession or de facto and not against the King de jure being out of the possession then I owe Allegiance to the King in possession and not to the King out of possession though King de jure The Rule of the Law is this I owe Allegiance to him that gives me Protection whether I live at home under a King de facto or live as a Stranger abroad under one that is a King de jure I owe Allegiance unto each while I am under their Protection for thus in Calvin's Case Seventh Book of Cook 's
incipit bellum And it is to be considered that the Bishop wrote this in the Case of Charles the First from which this of James the Second differs toto caelo To those that are not yet reconciled to the now Established Government I shall offer these Considerations First Whether the present King had not a just cause for Invading the Kingdom Secondly Whether having Invaded it and obtained a full and peaceable Possession by a general consent of the People he hath obtained a rightful Title The Causes that do justifie the Invasion are these 1. The Vindication of his Lady's Title which was in a manner endeavoured to be ravished from her by a Prince whose Birth was so much suspected and whereof the Nation was so generally convinced 2. The Invitation of the Subjects Lords Spiritual and Temporal with many Commons groaning under an Arbitrary Power Popery and Slavery for which cause many Lords and Commons had left the Kingdom and sought protection from the present King and came in with him 3. The present King was made the Head of the Protestant Party by those Princes who undertook the Defence of the Reformed Religion against the Popish Princes that had confederated to root it out and a better method could not be taken than to begin with England where if the designs for Popery had succeeded the Protestant Cause had been almost desparate which is now in a hopeful way of Establishment These Causes are so sufficient to justifie the Invasion that I think no good Protestant will doubt of them and as little doubt can be made of the second Consideration that he who on such just Grounds Invades a Kingdom and having gotten a full and quiet Possession is by the general Consent of the People accepted and declared their King hath a lawful Right and Title for first Ubi desinunt judicia incipit bellum and as Law Suits so War may be waged for prevention of Injuries not yet done As Livy says Justum est bellum quod necessarium est pia Arma quibus nulla nisi in armis relinquitur spes When it is manifest our sitting still will make our Condition worse we may adventure on the danger of War. The War was begun by the French King and his Confederates against the Prince England was like to be in the Confederacy by what the King acted and endeavoured against the Protestant Religion And Tune tua res Agitur This is the first Cause that Justifies the War on the present King's part the second Cause is the Recovery of the Right which his Lady and himself had to the Succession which was in a manner taken from them Grotius de Jure Belli l. 2. c. 1. sect 2. De rebus repetendis proves this at large in a considerable Paragraph to which I refer the Reader And of this I shall give but one or two Instances among many in the Scriptures Abraham's War on the King of Elam who had spoiled Sodom was just Gen. 14. And so were the Wars of Israel against the Assirians and other Nations that invaded their Dominion and would have kept them from them of this there can be no doubt nor can secondly the Vindication of a People oppressed by their Prince against the Laws of God and the Land if a Father seek the destruction of an innocent person his Son may piously restrain his Father from that act which would not only ruine the innocent in this World but himself in the World to come So that this War for the asserting the Title of the Prince and Princess to the Crown and for the defence of our Religion against the Confederacy of Popish Princes to extirpate it which is matter of Fact may appear most Just for tho' Religion may not be propagated by Arms yet it may be defended where it is Established by Law against forreign Powers that conspire the destruction of it Grotius l 2. c. 25. n. 4. approves a War on behalf of Confederates For he that doth not repel an Injury from his Confederates if he can is as much in fault as he that doth the Injury He commends Constantine for making War on Maxentius and Licinius who persecuted such of their Subjects as were Christians only for their Religion Grotius l. 2. c. 20. n. 39. Injuries begun only are not to be vindicated by Arms unless the matter be both very weighty and be already proceeded so far that from what is already done either a certain mischief tho' not yet what was intended hath already befallen or some extraordinary danger do threaten thereby If an Enemy hath once assaulted me and comes armed with a resolution to kill me I am not to tarry till he comes within reach of me and receive his Weapons upon my naked breast but seasonably to prevent him And l. 2. c. 25. n. 8. Those Princes who are free may make War for themselves or others And tho' we should grant that Subjects might not take Arms for their own Defence against their Prince no not in case of greatest necessity which yet is doubted even by those whose purpose it was to defend Regal Power yet it follows not that other Princes may not take Arms in their defence that which is unlawful for one to do for himself by reason of a personal impediment may be lawful for another to do for him As in Affairs of the Church the Bishops are said to take on them the care of the Vniversal Church so beside the care of their particular Dominions Kings assume the general care of Humane Societies Seneca resolves Bello a me peti potest qui a mea gente sepositus suam exagitat And Cicero That War should be undertaken only that we may live in Peace and not be injured It will be objected That God will take care of our Religion Deorum injuriae diis curae perjurium satis habet deum ultorem Answer So it may be said of other Sins which God will punish yet the Laws are justly executed on the Offenders by the Magistrate as all grant And if it be objected That such Offences are punished not so much as committed against God as for the damage done to men Ans It is observed that not only such Offences are punished by men as are directly committed against other men but such as by consequence may be prejudicial to others as Self-murder Sodomy c. for tho' the principal end be to procure God's favour by punishing such Crimes yet it is done also to prevent the influence and notable effects on Humane Societies See l. 2. c. 20. n. 44. It may be farther objected That if we wholly forsake the King we shall justifie the Rebellion against King Charles the First who was charged with designs of bringing in Popery and Arbitrary Government Illegal Impositions Evil Counsellors c. Ans I suppose the Objectors that are so tender of committing any act of Disloyalty against King James the Second will by no means approve of what was done against