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
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
preserve them to the King and to his Heirs and Successors and him and them to defend to the utmost of our power against all Conspiracies and Attempts whatsoever which shall be made against his or their Persons their Crown or Dignity Supposing then there be an Attempt made to deprive the Heir Apparent of the Right of Succession there is an Obligation on the Subjects not only to disclose and make it known to such Heir and Successor but him and them to defend to the utmost of our power To this purpose Bishop Taylor says second Vol. p. 137. Where the right of Succession is in a Family by Law or Time immemorial no Prince can prejudice his Heir or the People committed to him for it cannot without consent be alienated because Persons cannot be disposed of as Slaves or Beasts so that in this and some other cases the King loseth his Authority and then the force of the Obligation ceaseth also And how good an Opinion the Ancient Clergy and others had of the Peers and People that fought in defence of the Magna Charta and against the Usurpations of the Popes may appear by the Writers of that and the succeeding Ages concerning Simon Montfort The Chronicle of Meilrois lately Printed by the Bishop of Oxford p. 231. says Occubuit cum multis ex magnatibus Anglicis qui venerant ad bellum ut certarent pro justitiâ Angliae cujus post modum Justitiae infallibile signum fuit crebra miraculorum exhibiti diminutus exhibita circa Hugonem summum Angliae dispensatorem Simonem de Montfort qui occubuerunt pro justitia decertentes idio nonnulli eorum meruerunt à deo miraculorum exhibitionem of which Miracles they give divers instances And long after these Writers which lived in the time of the Barons Wars Polidore Virgil who lived in the days of Henry VIII gives this Testimony to Simon de Montfort p. 317. of the Basil Edition Inhaesit hominum mentibus constans opinio hunc Simonem de Montfort qui ob patriam jus jurandum for it seems they were under the like Oaths vitam amisissent interiisse Martyrem id quod vita sanctitas non patitur negandum jam tum fueri qui ejus memoriam ut dici cujuspiam colere ceperunt compluresque id fecissent cui Regis iram non perti muissent For if the Prince do evidently violate not only the Coronation-Oath but act contrary to the tenor of the Oaths of Supremacy and Allegiance and actually subject the People to that Jurisdiction and Usurpation against which they are sworn what is the extent of that Clause in the Oath of Supremacy viz. To our power to assist and defend all Jurisdictions Priviledges and Authorities granted or beloning to the King's Highness c Doubtless they that granted them and by Oath are bound to assist and defend them being granted may oppose such as attempt the destruction of them when not only the King's Prerogative but the Peoples Religion their Laws and Liberties are assaulted and in a way to be utterly ruined And Treason may be committed against the Government as well as against the King and also the King 's Eldest Son. It is well known how resolutely our Ancestors in the darkest times of Popery being themselves Papists did defend the Nation against the Incroachments of the Church of Rome when their Kings would have parted with this Right which they affirmed he neither could nor should do and in defence of them they were prodigal of their Lives Query Whether these Premises being undeniable the Subjects that according to their Oaths did timely endeavour the case being otherwise desperate to vindicate as well the Right of the Crown to the King his Heirs and Successors as their own Religion and Liberties did not act according to their Oaths and Duties not by resisting their Prince but by defending the Succession and themselves against such Instruments as acted contrary to the tenor of those Oaths If Judges Juries c. had performed in their several places as the Law and their Oaths obliged them the King might have kept his Throne We have a Maxim in Law That the King can do no wrong because he is supposed to do all things by his Ministers and they to act all according to the Law But when a King shall choose such Ministers as will act against the Laws and defend them therein there cannot be a greater wrong done to the Subject 5. In Answer to your Fifth Query which concerns the mutual Obligations between the Prince and the People by vertue of these Oaths and the Declaration hereafter mentioned It is to be considered as Bishop Sanderson says in the Case of the Engagement p. 90. That Allegiance is such a Duty as every Subject under what form of Government soever by the Law of Nature oweth to his Country primarily and consequently to the Soveraign Power by which that Common-wealth is governed who is Caput Communitatis as is necessary for the preservation of the whole Body And speaking of the Obligation of Laws which will hold also in the case of Oaths That if the intention of the Law-giver should be understood precisely of that particular actual and immediate intention of the Law-giver in making a particular Law it will not hold true in all cases but there is to be supposed in the Law-giver a more general habituate and ultimate intention of a more excellent and transcendent Nature than the former which is to have an influence into and an over-ruling Power over all Laws viz. an intention by the Laws to procure and promote the Publick Good. The former intention bindeth where it is subservient to the latter or consistent with it and consequently bindeth in ordinary Cases and in orderly Times But where the Observation of the Law by reason of the conjuncture of Circumstances or the iniquity of Times Contingencies which no Law-giver could either certainly fore-see or if fore-seen could not sufficiently provide against would rather be prejudicial than advantagious to the Publick or is manifestly attended with more inconveniencies and sad consequents to the Observers than all the imaginable good that can redound to the Publick thereby can in any reasonable measure countervail in such case the Law obligeth not but according to the later and more general intention only Even as in the Operations of Nature particular Agents do move ordinarily according to the proper and particular inclinations yet upon some occasions and to serve the ends and intentions of Universal Nature for the avoiding of something which Nature abhorreth they are sometimes carried with motions quite contrary to their particular Natures as the Air to descend and the Water to ascend for the avoiding of vacuity Concerning the Coronation-Oath I shall add here what Bishop Taylor l. 3. p. 144. says That a Prince's swearing to govern by Laws is very ancient of which he gives divers instances and says Kings are bound by natural Justice and Equity without
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
quotes Barclay l. 3. c. 16. p. 212. saying that a Prince seeking the ruin of his People is no longer King. Se omni dominatu principatu exuit atque ipso jure sive ipso facto Rex esse desiit l. 6. c. 23. With whom he joyns Grotius l. 1. c. 4. n. 11. Si Rex vere hostili animo in exitium totius populi feratur to resist such a one is not to resist a soveraign King but him who ceaseth to be such Consistere simul non possunt voluntas imperandi voluntas perdendi quare qui se hostem totius populi profitetur eo ipso abdicat regnum And p. 531. Falkner says On yielding such suppositions to be true I shall grant the Answer given to be true To this purpose speaks Grotius l. 1. c. 4. § 7. n. 2. treating of Resistance This Law seems to depend on the intention of those who first entred into Civil Society from whom the right of governing is transferr'd Now if such had been asked whether they intended to impose a Yoak equal to Death upon all that should resist the Tyrannies of a superior Magistrate upon any account whatsoever I know not how they could willingly answer in the affirmative for what in this case Charity would recommend that may be received as a Law. 7. But another Query is Whether the King being destitute of the assistance of his Subjects leaving the Land in confusion two Armies being in its bowels hath vacated the Government and so it is necessary that some other to avoid Anarchy and Confusion be appointed to succeed To this I answer 1. That the King even before his leaving the Kingdom had deserted the Government for it is undeniably affirmed by Civilians whose practice is agreeable That nolle habere and renunciare are terms equivalent as when a man conveyeth an Estate with a Charge and Incumbrance upon it he that will not accept of the Estate with the Incumbrances and Charge though he would gladly enjoy the Estate doth in the judgment of the Law and in all Equity renounce his Title to it for he must accept it modo forma debitis or not at all whence I thus ground my Argument He that is not willing to hold the Government of England as constituted with certain Limitations and Conditions annexed doth constructively renounce it But the late King was not willing to accept or hold the English Government as constituted and limited Ergo the sequel of the Major is clear because Onus transit cum emolumento and both Law and Equity do preclude a right to the one without the other an entrance into the Government without the observance of the Condition modo formâ is so far from giving a right to it that it is a renunciation of it And the Minor is as clear because it is not possible for a Popish Prince such as ours was to be willing to govern the English Nation without one or more Popish Priests without many Papists in Office Civil and Military and without subjection to the Pope of Rome and holding correspondence with him So that if it should be demanded of the King which yet needs not the having sufficiently declared the contrary whether he would accept of the Government as by the Laws and Statutes against Papists is provided his refusal is a renunciation And of this we have had plain demonstrations The King declaring to the Scots that he had an Absolute Power and practising the same in England by entertaining the Pope's Nuntio setting up of Popish Bishops imprisoning the Protestant Bishops entertaining Jesuits and Papists in his Privy Council and chief Offices Military and Civil the Charters generally taken away Magdalen Colledge emptied of its Students to make way for Papists these were manifest indications of the subversion of the Government for as Aristotle l. 5o. Polit. n. 112. Tyrannus efficitur qui vi dominatur Regnum est Imperium voluntate Civium delatum at si quis vel fraude vel violentia Dominatur manefesta Tyrannis est l. 3. n. 87. Reges solùm volentibus imperant si nolentibus imperatur regnum esse desinit So that the King having first deserted the People and lost their affections and for this and other causes deserted the Kingdom and left it in confusion giving order to his General to disband his Army without Pay many of which were Papists and known Enemies to the Nation from whom they feared great mischiefs to themselves There being also another Army in the Nation which became successful it was highly necessary that the Nation to avoide utter ruine should by their Representatives freely chosen convene to consult and agree upon a fit person for the administration of the Government and whereas the person that headed the prevailing Army was by good Providence married to the Heir apparent of the Kingdom if he not only by his own merit in preserving the Crown which otherwise had been lost but by Marriage of the right Heir and with her and the Kingdom 's consent be chosen to a Consortship in the Administration of the Government it is no more than what Necessity and Right did require Nor is it more than what was done in the Case of Henry the Seventh who having overthrown Richard the Third in Battel was in a Parliament called by him acknowledged their King of which I shall give you the History as related by my Lord Bacon p. 10. of his History which may serve as a President to authorize what is now done and leads me to the Eighth Quere to which I shall answer first Historically and then Rationally in Justification of the late Proceedings The Coronation of Henry the Seventh was on the 30th day of October 1485 and on November the 7th the Parliament met in which without respect to his Queen's Title whose Coronation was deferred till almost two years after when danger taught him what to do he obtained that the Inheritance should rest remain and be in the King and the Heirs of his Body not mentioning his right Heirs so that the Entail seemed rather a personal Favour to him and his Children then a Disinherison of the House of York and this being obtained he married the Lady Elizabeth on the 18th of January which was celebrated with greater Triumph and Demonstrations of Joy and Gladness than either his Entry or Coronation which the King rather noted than liked and he shewed himself no very indulgent Husband to her though she were Beautiful Gentle and Fruitful So great an Enemy he was to the House of York that he caused Sir Will. Stanly who had saved his Life and set the Crown on his head in Bosworth-field to be executed for saying That if he were sure that young man Perkin Warbeck were King Edward's Son he would never bear Arms against him This Case seems much more unjustifiable than ours for here the King and Parliament did not only set the Crown on the head of the Conqueror but intailed it on his
〈◊〉 Authority to them to whom Obedience is to be yielded for Conscience-sake as our Saviour also Commands to give unto Caesar the things that are Caesar ' s. On which occasion also he mentioneth that Statute of Henry VII which indemnifieth those Subjects which acted under the King in being And he adds a Sentence from Nicetas Choniates nec Imperatorem qui absit quaerendum nec qui adsit pellendum esse So that I think the Cases in the 22 of Matth. and Rom. 13. may satisfie Conscience as to our present case for if those Caesars who were then in Possession were to be obeyed for Conscience-sake even then when the Right did belong to the Senate then we may also obey the King now in being tho' there be another to whom it is supposed the Right of Government doth belong without wounding our Consciences Now if the present Power be God's Ordinance we must obey for Conscience's sake for if we believe that God hath an over-ruling Providence in the Government of the World to set up one and pull down another though we see not a Reason of the Alterations that are made yet we must believe that there are great and just causes and such as are directed to good ends especially where it appears that God by such Revolutions brings Order out of Confusion and the changes that are made are effected more visibly by the Counsel of God than Conduct of Man. Another Rule of Conscience is the Glory of God that which tends most to the advancing of God's prescribed Worship the purity of his Ordinances a sound Faith and holy Life we may with a good Conscience submit to It is a saying of Polycarp when he was near his Martyrdom We owe all due Obedience to Princes and Potentates yet not so as thereby to endanger our eternal Salvation The Law of Charity is another Rule of Conscience which as it obligeth us to do good unto all men so more especially to them that are of the houshold of Faith for whom we should lay down our very lives that we may prevent their misery and destruction St. Paul could wish himself accursed from Christ for his brethren and kinsmen according to the flesh Rom. 9.3 And what he suffered and did for his Brethren according to the Faith of Christ appears as by his great Afflictions so by his ready complyance in the case of Circumcising Timothy Acts 16.3 because of the Jews which were at Lystra and Iconium though he were of a Persuasion that Christ could profit them nothing that were circumcised seeing that such became debtors to do the whole Law. And Acts 21.23 when St. James and the Elders informed him that the Jews would be offended by his teaching them that they ought not to Circumcise their Children nor to walk after their Customs he was perswaded lest he should offend them to purifie himself and in the Company of others to go into the Temple to shew that he kept the Law. From whence we learn that it is out Duty to part with many Opinions of our own not absolutely necessary to Salvation for the propagation of the true Religion I speak not this as if it were Lawful to do any evil that good may come of it which the Apostle utterly condemns but only on supposition that the late King hath rendred himself uncapable of the Government and that the present King and Queen considering the Circumstances wherein we were are regularly advanced to the Government that we ought to pay our Allegiance to them The Question whether Humane Laws do bind the Conscience is much discoursed of by Divines who resolve that they do not bind the Conscience immediately by their own Authority but mediately by vertue of the Command of God who enjoyns Obedience to the Higher Powers But then if the matter of the Law be unjust or if it be not for the Publick Good which is the end of all Humane Laws they are not Obligatory to Conscience for the Rule for Conscience in things Political is the Publick welfare So the Ancient Roman Law Salus Populi Suprema Lex which is the same with that of the Apostle He is the Minister of God to thee for good i. e. not for thy Private Good only but for the Publick Good attending continually on this very thing i. e. the Publick Good wherein thy Private Good is concerned for the Laws do not respect this or that particular man's case but the Common good and good Laws may be grievous to this or that particular Man in some cases which yet highly conduce to the Publick Welfare and better is a private Inconvenience than a publick Mischief Those Laws therefore that tend most to the Publick welfare are the Rule of Conscience in Political Affairs And for the same Reason that when a Magistrate makes a Law against God's Law in Religious Matters it doth not bind the Conscience For the same Reason when a Magistrate makes a Law against the Publick welfare it doth not bind the Conscience in Political Affairs The Reason is because the Magistrates Power is derived from God and God hath limited and determined that Power for the Publick Good as its great end and such Laws as are contrary to that end have no Authority nor do oblige the Conscience It is truly said that some things are commanded because they are good other things are good because they are commanded Now our Obedience to Governors is good because it is commanded but a respect to the Publick welfare in all Laws is commanded because it is the chief good and end of Government and so is Prior and Paramount to all Politick Laws and hence it is that the Casuists do resolve that Humane Laws do not bind the Conscience when things grievous and intolerable are commanded But then the Question will be Who shall judge whether the Laws made are conducing to the Publick Good or not when not only the Magistrate but the Representatives of the People have pre-judged it and therefore past it into a Law Answ There are few Laws like those of the Medes and Persians unalterable what was for the Publick Good at the time of making the Law may afterward on the alteration of Times and Accidents prove to be otherwise and when the Reason of a Law ceaseth the Obligation of it ceaseth also as to Conscience There was a Law made against the use of that pernicious Weed of Hops as the Law termeth it because it was thought prejudicial to the Health of the Subject and though the Reason of the Law might be good as to some particular Men Yet long Experience taught that the use of Hops was more beneficial to the Publick and therefore though that Law was not repealed yet the use of Hops was continued Now the Question is whether such Brewers as continued the use of Hops against the Statute did sin or not in so doing If they did not sin it was because their Consciences were not obliged by that Law if they did
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
Reports one Shirly a French-man and some Subjects of the King of Portugal having conspired with Lopez for the death of the Queen were Indicted for acting contra Legiantiae suae debitum against their due Allegiance and were found Guilty and Executed And this the Law calls a local Allegiance When Cities and Souldiers are taken in War they may to preserve their Lives swear to the Conqueror never to bear Arms against him by which Oath the condition of their former Prince is no way made worse for had they refused such an Oath they should have lost their Lives which by this means being preserved they may be in a condition to serve their Prince in any thing else but in fighting against him who spared his Lise Besides it is well known that many good and wholesome Laws were made by such as were Kings only de facto not de jure which are still in force with us as they were with the Subjects that lived in their several Reigns whence it follows that we owe and ought to yield Allegiance to the King de facto and observe his Laws and to Pray for him as King. On the Deposing of Richard the Second in a Provincial Synod in Canterbury under Henry the Fourth whose Title was only de facto it was decreed that Prayers should be made pro ipsius Regni salute as he had desired And Arundel then Arch-Bishop of Canterbury tells the King that the Clergy did pugnare precibus sacrificiis apud deum pro victoriis ei obtinendis Aethelwolfe Anno 854. was made King while his Elder Brother was living yet Elston and Swithon Bishops prayed solemnly for him So the Bishops prayed for Will. Rufus his elder Brother living St. Anselme also though banished by Henry the First did him Homage and prayed for him And although our five first Kings beginning at William the Conqueror came irregularly to the Crown The first by Conquest the second and third while their elder Brother lived the fourth reigned when his Predecessor had a Daughter living which was Maude the Empress the fifth while his Mother the right Heir was living yet were the stated Forms of Prayers still continued in the Ancient Missals respectively Nor can we well be excessive in our deference to those who under God have been the chief Instruments of the Common Safety for if the Law of Nature which obligeth every particular person to self-preservation and much more to the preservation of the Publick Welfare in which case we may vim in repellere be prior and paramont to any subsequent Law of a more private concern we of this Nation which were so near to destruction had all reason imaginable to secure our selves against such violent and illegal attempts as were made not only against our selves but against the whole Protestant interest throughout all Europe having such dreadful instances of Persecution in the neighbouring Nations of France and Piedmont for the Question is not whether we should chuse Sin rather than Affliction in which case the Apostle hath determined that we may not do evil that good may come of it but whether of two temporal evils the least is to be chosen or whether when we are left without a Governor we should set a Bramble over us to rent and tare our flesh or the healing Olive under whose branches we might set down in peace and security It is very observable what God says concerning Jehoiakim the wicked Son of a good Father Josiah Jer. 22.15 Shalt thou reign because thou closest thy self in Cedar did not thy Father eat and drink and do justice and judgment and then it was well with him But thine eyes and thy heart are not but for thy covetousness to shed innocent blood and for oppression and violence to do it therefore thus saith the Lord concerning Jehoiakim the son of Josiah King of Judah they shall not lament for him saying Ah Lord or Ah his Glory I shall therefore leave it to the serious consideration of my Brethren whether it be more eligible to pray for them in our Liturgy who have preserved us in the free use of it or for such as would have taken it from us and imposed the Mass book and Legends instead of that and the Scriptures by which we should have been reduced to this dilemma either we must obey to the violation of our Conscience or for our disobedience we and our Families must be utterly destroyed If yet upon consideration of what hath been here said and what our own judgments may add we are still in aequilibrio and do doubt to whom the Title of the Crown doth of right belong I doubt not but the Law of Charity to our selves our Families and love to the Protestant Religion may be of great weight to turn the Scales and warrant our resolution in a case so doubtful Bishop Sanderson Praelect 5. p. 176. puts this Question When any one takes the Government on him having by force driven out the lawful Prince or so streightned him that he cannot pursue his right which is invaded not on a doubtful right but by manifest wrong what shall a good Subject that hath sworn Allegiance to the oppressed Prince do in this Case His Answer is It seems to me that it is not only lawful for a good Subject to obey the Laws of the Prince in being and to do what he is commanded modo non sit factu turpe aut injustum if the thing be not in it self evil or unjust But also that if the condition of humane affairs require it there may be a necessity of obeying or he may be judged to fail of his duty and whereas he had said that Laws made by him that wanted lawful power did not bind in Conscience he answers that these things are not repugnant because though the Subject be bound to do what the Law requires yet he is not bound to that Law but to himself and his Country The Obligation is annexed to the Law that concerns himself and is truly a Law which he thus explains Seeing it is the duty of a pious and prudent man to consider not only what is lawful but what becomes him and may be expedient to others a good Subject may be bound to do that for the welfare of himself and fellow subjects to which by Law he is not bound which obligation ariseth from the duty he oweth to himself and to his Country that Wars and Rapines may be prevented and we may live peaceable under them without violating the Faith we owe to the rightful Heir But then he raiseth the Question Seeing no man can serve two Masters especially of contrary interest how can we please the one without displeasing the other His Answer is It may be presumed that the rightful Prince will consent because the Subject herein doth not so much serve the Possessor as the Common-wealth the safety whereof no less concerns the injured Prince than the present Possessor and probably more for as the
rule by Day and the Moon by Night and one Star differeth from another Star in glory And when he made the first man he gave him dominion over all the works of his hands he was to rule his Wife and she to live in subjection to him and when he became a Father his Children were to yield him obedience And when the Families of the Earth were multiplied so that one Father or Family could not claim Authority over the rest and considering the great corruption of Nature it was impossible but Violence and Injustice would be practised Mankind saw a necessity of setting up one Common Father over many Families to suppress Violence redress Injuries and distribute Justice To this purpose Mr. Hooker l. 1. c. 10. Two Foundations there are which bear up Publick Societies the one a natural inclination whereby all men desire a sociable life and fellowship the other an order expresly or secretly agreed on touching the manner of their union in living together for if when there was but one Family in the World the means of instruction Humane and Divine could not prevent shedding of Blood how could it be but when Families were increased each providing for it self strife contention and violence must grow among them To take away such mutual Grievances Injuries and Wrongs there was no way but only by growing unto composition and agreement among themselves by ordaining some kind of Publick Government and by yielding themselves subject thereunto that to whom they granted Authority to Rule and Govern by them the Peace and Tranquility of the rest might be procured No man might in reason take upon him to determine his own right therefore strife and troubles would be endless except they gave their common consent to be ordered by some whom they agreed on without which consent there was no reason one man should take on him to be Lord or Judge over another and over a multitude of Families impossible it is that any one should have compleat power but by consent of men or immediate appointment of God. All publick regiment of what kind so ever seemeth evidently to have risen from deliberate advice consultation and composition between men judging it convenient and behoofful And the corruption of Nature presupposed the Law of Nature doth necessarily require some kind of regiment and men saw that to live by one man's will became the cause of all mens misery this constrained them to come to Laws wherein all men may fee their Duties and know the Penalties of transgnessing them And tho' wise and good men are fit to make Laws yet Laws take not their constraining power from those that make them but from the power which gives them the strength of Laws And by natural Law the lawful power of making Laws whereto all Societies are subject belongs so properly to those entire Societies that for any Prince or Potentate of what kind so ever to exercise the same of himself and not either by express Commission from God or Authority derived from their consent upon whose persons they impose Laws is no better than Tyranny Laws they are not which publick approbation hath not made So far judicious Hooker in as evident a manner as any demonstration in Euclid to which add that observation of Mr. Selden Selden de Jure Nat. l. 1. c. 8. p. 106. By permission of Nature it hath been granted that whatsoever hath been by men joyned in society limited forbidden or constituted that they are bound to keep who have so consented according to the Conditions and Qualifications with which it is prescribed even as many as have and as they have given their consent But whence is it they are so bound from the Authority of a Deity i. e. of man's Superior even in those things the rise of the obligation is derived and therefore from some heads of the obligation of the Law of Nature Lod. Vives on St. Aug. de Civitate Dei l. 4. c. 5 6. takes notice of the first words of Justin viz. That in the beginning the rule of Nations was in the hands of Kings whom not popular ambition but their moderate carriage approved by the good advanced to that height of Honor on which he gives this comment That the People elected those Kings to themselves to be Guides Governors and Overseers of the Publick Interest and they were not compelled to take such a one as hapned any way to them neither did Nobility or the seeking of a party carry it every man 's own private good with the good of the Publick was so dear and near to him that it made him to make choice of none but the best And it is observable from Livy and other Roman Historians that their five first Kings were chosen by the Senate and People and that Tarquinius Superbus was by them deposed Neque enim ad jus regni quicquam praeter vim habe bat ut qui neque populi jussu neque patribus autoribus regnavit to which that of Juvenal agreeth speaking of the People Satyr 10. Qui dabat olim Imperium fasces legiones omnia In our Nation when the Romans invaded the Land the People chose Cassibilane their King. On the death of Hardicanute the third Danish King they chose Edward the Confessor and on the death of William the Conqueror they chose William Rufus and of four that succeeded the Conqueror not one had the right by neerness of descent It is objected against this Opinion of Electing our Governors That the People having no power over their own lives cannot give that power to any other Answ It is not the People that confer this power but God who by his Law hath given this power to all supreme Magistrates That he that sheddeth man's blood by man shall his blood be shed The People are only a Medium of conveying this power of the Magistrate to a particular person God is the Author of the Magistrates power to which the punishment of Murtherers is annexed for the general Rule is That the Magistrate shall bear the Sword for the punishment of evil doers and Capital punishment is in some cases just the People only apply this general Rule and determine the power to be in such a particular person for the terror of evil doers so that though I being a private person have no power over my own or another man's life yet the Magistrate hath by the Institution of his Office from God. St. Paul Acts 25.11 says as much If I have done any thing worthy of death I refuse not to die The Ordinance of Government is from God and Nature but the Species of it whether by one or more is from Men and the Rule for administration is by mutual agreement of the Governor and those that are to be governed from whence probably that which by St. Paul is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 God's Ordinance as to Government in general is by St. Peter 2.13 called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Humane Constitution as to the
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
one as is a Minister for the publick Good only For a right understanding of those Scriptures of the New Testament which speak of Obedience to Magistrates as Matth. 22.21 Rom. 13.1 1 Peter 2.13 We are to consider the occasions of inditing them that of our Saviour was occasioned by such as accused him for any Enemy to Caesar that he would make himself a King and sought by this question to insnare him which our Saviour perceiving he only demands to see a piece of the Money with which they traded and finding Caesar's Image on it conceived him to be the Magistrate then in power commands to give unto Caesar the things that are Caesar's Moreover the Jews having from the beginning been governed by one of their Nation and as they boasted never in Subjection to any other thought it an Usurpation in any to exercise Dominion over them which made the Roman Power very jealous of them there being at that time great expectation of a Prince that should Govern the World and the frequent Seditions and Rebellions of that Nation against their own and the Roman Magistrates increased these Jealousies Judas of Galilee having made a great Insurrection and the Christians being called Galileans were thought to be of the same Spirit And as for the Gentiles that were converted to Christianity to which they were invited partly by the Priviledges of their Christian Liberty that they should not be the Servants of Men and partly by the Apostles Prohibition of going to Law before Unbelievers some weak and others licentious as the Gnostiks would acknowledge no Magistrates and as St. Chrysostome observes some of the Galileans would rather die than pay Tribute to the Romans St. Chrysostome hath divers observations on this 13 Romans very considerable first he stops the mouths of such as did object that the Apostle did abase his Christian Brethren by subjecting them to Earthly Princes for whom the Kingdom of Heaven was prepared To this the answer is That the Apostle did not so much subject them to those Princes as to God who appointed them Then he raiseth a question Is every Prince then ordained of God I say not so for I speak not now of any Prince but of the matter itself for that some should command and others obey this I call the Ordinance of God and he explains his meaning by the instance of Marriage that the Man and Woman are joyned by God i. e. Marriage is God's Ordinance not that all such as cohabit as Man and Wife are joyned by God but only such as are married according to the Laws of Wedlock Thus the Apostle doth not say there is no Prince but of God but there is no Power but of God. And on v. 5. for Conscience sake he thus comments 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That they might not be ungrateful to their Benefactors So St. Chrysostome from whose Comment we may observe that although Government be God's Ordinance yet the person in Government is not always so he only is God's Minister who doth administer the Government for the common Good. 2. That we owe Subjection to the person invested with the Government who takes care for the publick Welfare for Conscience sake i. e. as an acknowledgement of the Benefits that we partake of under his Administration of the Government Nor doth it appear that our Saviour Mat. 22.21 did determine that Caesar was the Supeme Power de Jure for if in a private case he refused to decide a controverted right Who made me a Judge or Divider over you Luke 12.14 much less is it probable that he intended to determine such a publick case And that the Apostle had no other respect but to the person in possession of the present Power may be doubted from what followeth As for the Observation of some Criticks that the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is constantly used for a Person in Lawful Authority we find it otherwise for St. Luke speaking of the power of darkness i. e. the Devil Luke 22.53 his words are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. the power of the Devil Nor could the Devil derive a Lawful Authority as he could if this word would bear it when speaking of the Kingdom of the World he saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 all this power will I give thee as if he had power to set up an universal Emperor over the World. And St. Luke is observed to have written most exactly agreeable to the Greek Idium of any of the Evangelists So that it cannot be inferred from this Scripture that the Persons then in Power were rightful Magistrates Grotius de Jure Belli p. 93. c. 4. § 20. In re controversa Judicium sibi privatus sumere non debet sed possessionem sequi sic tributum solvi Caesari Christus jubet Matth. 22.20 quia in possessione erat Imperii nummus ejus habuit imaginem From whence it followeth in the judgment of Grotius that our Saviour's Command to pay Tribute to Caesar was grounded on his being in possession of the Empire And if this be so as I cannot from the Command of our Saviour Matth. 22. or from Rom. 13. see any Reason to the contrary it will follow that it is our Duty in licitis honestis to yield Obedience to the present Powers Michael Salon an eminent School-man is of the same Opinion That the Romans possessed Judea by Tyranny when our Saviour enjoyned the paying of Tribute Q. 60. Art. 6. de justitiâ Jure where yet he affirms That the Catholicks of England were bound to obey the just Laws of Queen Elizabeth whom he calls an impious Woman Besides I think it will be a very difficult Task for any Man to shew where the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is applyed to any Person that is out of the Possession of the Power seeing it ordinarily signifieth the Person that is actually in possession of the Power For thus the Apostle speaks of the Powers that are in being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and to them he says we must be subject not only for fear of wrath which implyeth that we ought to prevent our Ruin to obey the Power that is in possession But then the Question is how this obligeth the Conscience when the Subject is formerly obliged to a Prince de Jure Now the Rule for directing Conscience is the Word of God and if that do enjoyn Obedience to the Prince in possession the Subject may safely yield it and ought to do it for Conscience-sake Puffendorf is of the same judgment p. 1009. de Jure Gentium where he says That the Senate and People of Rome were deprived of their Ancient Right through fear or want of strength not by approving the Dominion of the Caesars So Emanuel Thesaurus says that the People of Rome under Tiberius did tempori seraire non Regi And it is well known says he by what means the ancient Caesars invaded the Empire yet St. Paul Rom. 13. attributes 〈◊〉 〈◊〉 〈◊〉 〈◊〉
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