Son or a Bastard he doth not say any other Person or any one out of the Royal Family before their own lawful Issue to succeed them in the Throne p. 363. Succession of the Crown The other is of Hubert A. C. at the Coronation of K. John he declares indeed that the King ought to be elected by the Pople perhaps a new Doctrine to many that heard it yet he qualifies that Election and tells them that if any one of the Race of the late King was more deserving than others the People ought pronius promptius more readily consent to his Election Now if the Descent of the Crown ought to be kept within the bounds of the Royal Family Is not this sufficient to constitute an hereditary Monarchy in a true sense tho with the former latitude Was it ever thought essential to an Inheritance to pass uncontroulably without any exception to the first in Blood Is it not enough for the nature of an Inheritance to be granted to me and my Heirs And may not Custom dispose it to the younger as well as the elder Hath not the Parent liberty to give it to whom he will Yea is it consistent with a Fee-simple to be unalienable or with Salus Populi in all possible Cases for the Crown to be so especially in our own Kingdom where frequent Practice seems to have established as the Common Law of the Crown in all Ages that upon urgent Reasons for the safety of the Kingdom the Inheritance is alieuable from the next in Blood. Nay I must presume that tho upon some extraordinary Revolution and some absolutely necessary Reason of State for our common Preservation a Stranger should be advanced to the Throne for one or more turns while that necessity continues I presume I say if when the Reason of that Violence is removed if care be taken to have the Crown restored to the Royal Family or any of its Branches capable of it the Hereditarines is not thereby extinct or the Constitution of the Government altered things may then run again in the old Channel and settle upon their old Bottom And since we are gone so far may I not without Offence advance one step farther Is there no Priviledg by Primogeniture Doth not Nature and the general course of Inheritances where there is no special Reservation or Exception point out the next Heir for the Possession Yea is there not very much to be found in our Chronicles and Laws and actual Succession of the Crown in favour of the next Heir by proximity of Blood Can we find by our most diligent search of our publick Records that ever the next in Blood was set aside without some Reason or pretence of Reason which very thing seems to allow his Right whilst it alledges something against his Possession Whence we may conclude that tho for sufficient reasons the next in Blood may be set aside yet without such reasons it seems neither just nor fit that he should The Royal Family have a Right in Actu primo the next Heir seems to have it in Actu secundo namely a Jus in re and as much a Right as can be conceived short of Possession if nothing can be justly objected against it from his Vnfitness for the Government Immediately upon the Decease of the Queen saith the Parliament in their Recognition of King James the first the Imperial Crown did by inherent Birth-right descend to you the next Heir of the Blood Royal. Thus the Royal Birth-right hath the Acknowledgment of the whole Kingdom or the whole Body of the Realm and every particular Member thereof as the Words of the Statute are and this Birthright hath been often claimed and often frustrated but I think never denied or so much as questioned Prop. 2. There was nothing done in Prejudice of our Hereditary Monarchy by our late Settlement This is the other Proposition I undertook to make good in defence of our present Government and reflecting upon what we have lately discours'd we are necessitated to take notice of and to set our selves to answer a very considerable Objection thence arising as some strongly fansy Obj. Hence we are faln upon the great Objection 'T is thus If the Right of the Crown be inherent in the next in Blood by Birth-right why upon the Demise of the late King did not the Government devolve on his Daughter the Princess of Orange By preferring the Prince of Orange before the Princess whose right it was seems not agreeable to an Hereditary Monarchy and so makes the Government Elective Answ I hope there are already sufficient Grounds laid for an Answer hereunto All that I have to do is to apply them in a few plain Propositions 1. We have found reason to distinguish thus The Crown may be thought alienable either absolutely or in a qualified sense that is such a sense as is consistent with its being Hereditary 2. One may think that the Crown is not absolutely at the Peoples Disposal in our or in any Case or alienable upon any Occasion or to any Person and yet may conceive that upon plain necessity created by Salus Populi the Supream Law and the very end of Government the Crown may be alienated from the next in Blood to the second and upon the like reason to the third 3. 'T is further evident to me That a Man of that Perswasion may yet judg that the next in Blood that is capable of the Government may of Right and by the Law of Inheritance claim the Crown which without Injustice cannot be denied him 4. It hence followeth That the Supream Power upon the Demise of the late King did not devolve upon the People nor imediately upon the Prince of Orange but upon his Princess Upon these grounds indeed it must be granted that the Princess should have been Queen as Queen Mary was that is in the place of the King and next to her the Princess of Denmark unless some very great Reason of State will justifie the preferring the Prince who is not next in Blood before them both 5. Doubtless those whom we intrusted to manage and methodize our Settlement saw as they judged unanswerable Reasons to advance the third in order before the first and second and methinks that should satisfie us 6. But moreover we are morally assured that both those noble Princesses were themselves satisfied of the Reason of it yea that both of them consented yea desired the Crown might be settled in the order as it is 7. And may it not be very reasonably granted that some great Considerations though we know not what they were might move them cedere de jure suo to wave their own Right and these such as might warrant and justify their so doing 8. Yea if there be such a thing as Abdication of Government did not both those noble Princesses expresly and not only by Implication so far abdicate the Government if they actually and voluntarily so far refus'd it Obj. But had not the
from this because the Vacancy was made by K. James and he could not make it further than he could He could not prejudice his Heirs or leave the Throne empty in all respects for the Statute of K. James the First declares agreeable to all times The Imperial Crown by inherent Birth-right doth immediately descend to the next Heir of the Blood Royal upon the Decease of the Predecessor The Royal Family have Jus ad Rem but the next in Blood if without just Exception hath Jus in Re and wants nothing but Livery and Seisin 3. This carries a plain Analogy with the Interest of others and if it be a Priviledg cannot be denied to our Princes The Estate is in the Heir immediately upon the Death of the Possessor and if the Estate be forfeited 't is immediately in the next Tenant though in neither case they may have yet got Possession And we use to say the Heir to the Crown is King before either the Coronation or Proclamation i. e. The Throne upon Demise is instantly fill'd and there is no Vacancy in that sense 4. If the right Heir before entry be kept out of Possession the Estate is not in Obeyance or in Nubibus but as the Lawyers say in Abatement the Estate is really in the Heir though they say the Law favours the intruder as the lawful Possessor till the Right of the true Heir is proved which I have no reason to apply 5. However 't is plain enough that the Convention supposed the late King by Abdication left the Throne void in some respect and what that was must certainly respect himself and not his Heirs he left the Throne void as to his own Person and as to his Possession and as to his own Right by relinquishing the Government 6. Yea he left it void as to any present Administration or Administrator and therefore it being so void ipso facto the great Men of the Kingdom first desired the Prince of Orange to take upon him the Administration of the Government till the Convention should meet This he did and this Vacancy was the natural Effect or Consequence of his Abdication but we may not strain the Word to the altering the nature of our Government neither may we imagine a Papist's Abdication should bar or prejudice his Protestant Children or change our Constitution 7. I hope I have said nothing in prejudice of any Limitations or Conditions of the Crown either in Law or from the necessary Nature of Government or by Act of Parliament if according to such Conditions the next in Blood be not qualified the Throne may be filled by the Right or the next When the Throne was declared void upon the Deposition of Rich. the 2d his Son was instantly admitted as were before the Sons of Edw. 1. and Ed. 2. upon their removal 8. We are told that before the Stat. 25. Edw. 3. de natis ultra mare it was a received Maxim that the next in Blood born beyond the Sea should not be King and by that of Eliz. 23. c. 1. Persons opposing the Execution of that Act are thereby disabled for ever Yet we still conceive that the next Heirs after them better capacitated and not guilty or defective as they might claim the Crown otherwise all other Persons are under the same Penalty though not at all guilty and the Penalty is not restrained to the Person offending or to the Crime mentioned in the latter or in the Incapacity in the former Instance The Statute of the Queen plainly supposeth that some may claim which cannot consist with an Elective Government and if the next in Blood are disabled by Law to claim it follows the Right is some where else and by Virtue of that Right the Throne is so far fill'd and Possession may be claimed Quest 2. Whether we have reason to think that the Convention did suppose a Vacancy in any other sense Sol. We may receive full Satisfaction in this from what hath been said upon the first Query For what reason can we have in Justice or Charity to imagine the Constitution intended any further Vacancy than was or could be made by the late King's Abdication what reason is left us to think that they intended such a Vacancy as was inconsistent with the nature of our ancient Hereditary Monarchy or the Interest of the Persons that are now advanced to the Throne in their own Right of which we have given account before or why should we impose a groundless and an unreasonable sense upon the Proceedings of our Superiors as may forestal or prejudice our quiet and due Submission to the Government 2. For our further Satisfaction we ought to consider first the Persons whom they admitted to the Crown namely such as upon Avoidance upon their Inherent Birth-right might have claimed the Crown Secondly The Words of the Declaration by which they were admitted The Throne being thereby vacant we do resolve that William and Mary be and be declared King and Queen They do not say they make them so but resolve that they are so and then declare them to be what indeed they were 3. And now I must have leave to admire the Wisdom Foresight and Caution of that great Assembly they do not lay hold of a Forfeiture of K. James they do not pretend to depose him they do not insist upon his Resignation but they suppose and alledg strong Grounds of that Supposition that he had abdicated the Government so far as that with respect to him to all Intents and Purposes the Throne was void and therefore to maintain the Hereditarines of this Monarchy they allow the Right of the next Heirs viz. William and Mary and accordingly upon that their Title they declare them King and Queen Quest 3. Whether the sense of Vacancy thus explained imply an Interregnum This can be a Question no longer if we consider the Premises for such a Vacancy we have upon every Demise of the Crown yet no Interregnum CHAP. VII Of the Convention and how it became a Parliament The Third Maxim considered Obj. WE are arrived to the Consideration of the third great Exception viz. That it is a Maxim that nothing binds the People of England but an Act of Parliament But the present Government was made by a Convention and not by a legal Parliament therefore we are not bound to own it Sol. 1. To this first it may be replied That tho this Maxim be generally allowed yet not without some Exceptions For is not Custom and the Common Law the Rule of Right and Justice betwixt Man and Man yea and betwixt the Prince and the People Were there no Statute or Act of Parliament about Government and Subjection Yea were there no Coronation-Oath or Oath of Allegiance to be taken by the King or the Subject Yet from the nature of our Government and by Common Law the King ought to govern according to the Laws and Customs of the Kingdom and we ought to pay him our
being made by a King de facto with his Parliament but the reason why it could not oblige was taken from the matter of it it diverted the Descent and Succession of the Crown according to Right of Inheritance 3. The Argument that a King de facto hath no Power to make Laws to limit the Crown because he is supposed to have no Right to the Crown himself I say this seems not cogent 'T is true 't is supposed he had no Right at first and his Usurpation cannot be thought to create any just Title to the Crown yet when he hath it hath not he Right or rather Authority in Law by his Possession to use it that is to make Laws If not then all the Laws he makes even those for Peace and Justice are void for want of Authority which this very Law against the Entail of Hen. 4. denies I grant all positive Laws made by a rightful King or by an Usurper are equally voidable i. e. repealable But if we speak of such Laws as are void of themselves it seems to me they must be so one of these two ways Either for want of due Authority to make Laws Or with respect to something in the Matter of such Laws as is destructive of them For the first way 't is granted me that a King de facte only hath Authority enough to make Laws generally speaking if his Laws therefore be not of force to limit the Succession 't is for another reason mention'd before taken from that special Matter of the Right of Inheritance which it is thought cannot be infringed by any Law of Man. Hence 't is still a doubt with me whether a King de facto hath not an equal Power with the most rightful King to make any Law even touching the Crown as any thing else Suppose a King de facto after some Contests about the Succession settle the Crown as it ought to go Is not such a Law a good Law Wherein can it fail neither in Matter nor Authority Again the most rightful King in and by his Law limits the Crown as it ought not to be Is that Law a good Law No Power can make a Law that is malam in se to be bonam I confess I see no difference in the Legislative Power of a King regnant whether with or without Right especially seeing the Parliament which is the Body of the Kingdom choose the Matter and give Authority to the Laws as well as the King. But this Nicety need not trouble us under their present Majesties whose Title to the Crown I hope is unquestionable as well as their Possession of it Besides there is no room for this Objection among all our Scruples about the Oath of Allegiance for in our private Capacity we are not to answer for Errors in Government If the Succession can be supposed to be limited in any Point amiss how can we help it What 's that to our Duty how are we concerned The Law doth not require us to assert or swear to the Act of setling the Crown for the future it requires only our Obedience to our present gracious King and Queen and we do our Duty if we look no further CHAP. IX The Honour of the Church of England no just Objection against our taking the new Oath Obj. I Have heard it offer'd by some that tho it be lawful to submit to the present Government and to take the new Oath of Allegiance yet by our doing it the Church of England suffers in her Honour and her distinguishing Character of Loyalty Sol. I have some Reason to hope that with several Persons not perfectly reconciled or satisfied this is the last Objection that remains unanswered I shall therefore briefly with all the Strength I have at present set my self to remove it and so conclude 1. I confess Loyalty hath been reckoned the Character of the Church of England and in a great measure very deservedly but if we mean such Loyalty as doth distinguish her from all other Churches of Christians in the World it may be an Argument of Singularity and Reflection upon all other Protestant Churches as well as Popish Principles and Practices as some lately have made manifest demonstration And how honourable or laudable that is I determine not but it may be considered 2. I perceive the Movers of this Objection do not say that 't is unlawful to take the new Oath and indeed that is granted in the nature of the Objection for if the Oath be refused only because 't is dishonourable to take it 't is supposed to be in it self lawful tho not expedient And indeed the Argument would have force enough if there were not some heavier Thing than Honour to be put into the other Scale 3. And thus the present Argument is not directly Matter of Conscience but of Prudence For the Matter in genere and in its first Consideration is granted to be indifferent and 't is to be determined to be good or evil by the Addition of something to it in our special and secondary Consideration Now here you lay Honour and Reputation in the Scale and this hath its Weight but if we put Necessity against Honour and Reputation the Weight of these is inconsiderable and what is the Consequence Why that which we thought was not to be done because it was dishonourable we see it must be done because 't is necessary This is the Law of Prudence and Expediency changeth sides that which was expedient not to be done for the sake of Reputation 't is now expedient it should be done when the Necessity of it appears with its greater Weight 4. You already perceive how easily this applies it self to the Case in hand admitting something of Dishonour may in general and prima facie attend the Action for the very granting it to be an indifferent thing in it self whether I take this Oath or not plainly determines the Case and puts an end to the Controversy 5. For I boldly and peremptorily pronounce that if it be indifferent it hath such Additions and Circumstances as cannot but make it an indispensible Duty Rebus sic stantibus from the Argument or Ground of Necessity viz. both Precepti Medii 6. First There is a necessity of the Precept or Law that makes it to be our Duty to take this Oath which is but the Security of our Allegiance 't is required by the Nature of our Constitution and immemorial Custom which is our Common Law 't is required from the Paction betwixt Prince and People to secure each other by their respective Oaths 't is required by virtue of the Statute of Hen. 7. whereby we are to acknowledg the King regnant to whom alone we owe Allegiance and must secure it And lastly 'T is expresly required in the Laws of our own making by our Representatives in the present Parliament in and by which Parliament the King and Queen have equally sworn and plighted their Troth to us Whence Protection and
Populi the Preservation of three Kingdoms is concern'd and in danger and the more by the Colour of our pretended Allegiance I think there is much weight in the words of a late Author I can be sure saith he of nothing if I am out in this Notion That no Oath can bind any longer than the Obligation thereof is consistent and reconcileable with Salus Populi the Welfare the Spiritual and Temporal Welfare of the People which is the sole End of all Government And seeing the Safety and Preservation of the Community depends upon the Promise of Allegiance to the supream Governor for the time being and the Subjects are under a plain necessity either to hazard or ruine the Publick or to transfer their Allegiance they may certainly do it lawfully yea are bound to do it by the Law of Laws Salus Populi suprema Lex Secondly So much briefly for the Law of Nature Now do not the Holy Scriptures warrant the same Do we find any either in the old or new Testament that scrupled or were question'd for their Obedience to the Powers in being I think the present Reverend and Learned Dean of Sarum Dr. Pearse hath a Sermon in print to prove Submission to Governments a Fundamental of the Christian Religion I am sure our Saviour and more largely St. Paul require our Obedience to the Powers that are without any Consideration of their Title merely because of their Authority and Administrations in which the Apostle expresly founds the Duty of Subjection for Conscience sake The Arguments to this purpose lately urged from Romans 13. by several worthy Authors I despair of ever seeing tolerably answered to whom I refer my Reader only let us meditate those notable Counsels of God by the Prophet Seek the Peace of the City Babylon where the People were Captives to their Tyrannical Enemies and pray unto the Lord for it for in the Peace thereof ye shall have Peace Jer. 29. 7. Thirdly Lastly Is there not sufficient in our own Laws to justify our Allegiance to a King regnant without our being satisfied touching his Title Have we not the Authority of former Ages Is not our Statute-Book a clear Testimony of it In what time was it ever denied Who was ever censured or punished for granting it Are not all such Kings who reign'd without Right recorded as Kings of England and their Laws as authentick and obligatory Is it not evident then that Allegiance due to a King regnant with right or with none is agreable to the State and Principles of this Monarchy and founded in the Usage and Common Law of England But that which methinks should put the matter beyond Question is the known and often mentioned Stat. of 11 Hen. 7. 1. grounded as it speaks the sense of the Nation upon Reason Law and good Conscience And though the worthy Author of Considerations and others have with a great deal of strength argued hence to satisfy the Scruples of our Brethren and it cannot be expected that I should add any thing very considerable yet I shall very briefly observe a few things for our purpose from it 1. 'T is thereby acknowledged that a King de facto hath the Name and Stile of a King of England 2. We are to recognize such a one as our Soveraign Lord. 3. That Allegiance is due to such a King from all his Subjects 4. That by reason of the same Allegiance they are bound to serve him even in his Wars 5. That they are never hereafter to be question'd tho the lawful King should recover his Right for so doing their true Duty and Service of Allegiance as the Words are 6. That War made against such a King by his Subjects is Rebellion All these things are plain in the Letter of that Law which hath continued unrepealed or unquestion'd for above two hundred Years and consequently so long hath been the approved sense of the whole Nation That Allegiance and true and faithful Service is due to our soveraign Lord for the time being whatever his Title be Hence it follows that in the sense of the Law a King de jure only is not King. The Statute saith the King for the time being and seeing we can have but one King he that hath only right to be King is no King in being or for the time being Hereupon I suppose the great Lawyers inform us that the King de jure only is not within the Purview of the Statute of Treason is not as they say Seignior le Roy. Consequently if Treason cannot be committed against a King de jure while he is out of Possession Allegiance cannot be due to him which is a Duty we owe to the King as our Soveragin Lord and none in the Eye of the Law is so but the King in Possession thus the formal reason of the Oath of Allegiance to the late King ceasing if he be no King in Law because out of Possession the Obligation of that Oath with respect to him ceaseth also besides much of the matter of our former Oath is gone too for we were sworn to bear true Allegiance to him in revealing and preventing Treasons against him and now he is not an Object capable of Treason But they also tell us Treason may be committed against a King regnant without Right and if so 't is thence evident that Allegiance is due to him against which Treason is directly contrary Treason is an Offence against our natural Allegiance which appears from the form of Endictments the words are Contra debitum Fidei Ligeantiae suae against the Duty of Faith and true Allegiance so near are they to the very Words in the Oath of Allegiance In a word to apply it Are not William and Mary now regnant and in full Possession of the Government To deny this is to impose upon our Senses Are they not our Soveraigns also to whom we owe Allegiance This to question is against all kind of Law May we be guilty of Treason against them Then supposed Allegiance to their Enemy seems to be a degree towards that Treason and to be a treasonable Principle if brought into Act it tends apparently to the Death of the King and Queen and how far the very Opinion is from Imagination and consequently from the Formality of Treason should be soberly considered at least to abate our consure of the Government that with some Severity requires our Allegiance and if it may be to perswade us to timely Conformity therein The Sum is I think we cannot justify our refusing to take the new Oath of Allegiance to King William and Queen Mary without destroying Acts of Parliament changing the Laws of England and razing the Principles and Laws of Nature The Words of II Hen. 7. cap. 1. bearing to our Purpose are these The King our Sovereign Lord calling to his remembrance the Duty of Allegiance of the Subjects of this his Realm and that they by reason of the same are bound to serve their Prince
Reformation Upon this ground some have thought it a Point of commendable Prudence in the Church of England that her Reformation at first proceeded with so much Moderation and no greater Alteration either in the Service or Government of this Church whereby she quieted the Minds and drew into her Communion so many of the moderate Papists both in the Reign of Edw. 6. and in the beginning of Q. Elizabeth's and whereby thrô the wonderful Mercy of God she hath been so long preserved even in the midst of her Enemies on both sides Moderata durant And since that you have her candid Apology to this purpose in these words Accordingly we find saith her Preface before the Liturgy that in the Reigns of several Princes since the Reformation the Church upon just and weighty considerations hath yeilded to make such Alterations in some particulars as in their respective times were thought convenient yet so as that the main Body and Essentials of it as well in the chief Materials as in the Frame and Order thereof have still continued the same unto this day And we may remember that when some furious Zealots for Popery made a Commotion and Rebellion in the time of King Edward 6. their pretence was that there were great and intolerable Alterations in Religion and that in their Wisdom the King and his Council thought it a proper course to allay their Heats and to pacify and reduce them to Obedience to let them know how small and few the Alterations complained of were and that their Service before in Latin was now made English that they might understand it The Reformation in England was carried on without Affectation of Novelty though it justly abandon'd the former Superstitions and Idolatry 3. The Example of William called the Conqueror This like Policy is observable in William the first for though the Success of his Arms carried the Colours of a Conqueror yet he seem'd unwilling to trust wholly to that Title he shook all indeed but endeavour'd too that things might go back as they could and settle more firmly upon the old Basis He therefore added to or rather seconded his Sword with a Pretence of Right to the Crown Jure Haereditario vel Testimentario and then afterwards they say he proceeded to accommodate the Administration of his Government to the Humours of the English People and the ancient Rights and Customs I mean so as the time and present State of things would give way so that whatever his Title was he accounted the Satisfaction of his People the best Security to his quiet Government Certainly something he did to this purpose since we find it disputed by some learned Men whether this William the first was King by Conquest or Compact Petit. Brady and others If the former Maxim be allowed I may have leave to apply it to our present Establishment in two Inferences First Seeing as we have heard upon such Revolution a departing from the former Constitution beyond what is necessary in the very reason of the change is to be avoided as unsafe or dangerous we hence seem to owe that Charity yea that Justice and that Honour to those great and wise Instruments in our late Revolution as to presume they have done it with Prudence agreeable to that great Maxim that is that at least they intended not therein to depart farther from our former State or to alter any of our allowed Maxims or Customs that lie at the bottom of our ancient Constitution as our Common Law I mean beyond such Necessity or beyond what hath been declared by the King and Parliament For if any thing contrary or dissonant to our Rule was discours'd in some previous Debates before the Settlement was made and all such Debates were determined in the Law I say if any such things then happen'd they ought not now to be remembred or mention'd as other than the motion of particular and private Persons and by no Rule can they be thought to pass into or any way affect the Publique State as 't is now settled by Laws exclusive of them Again If any thing should yet be thought doubtful in the Laws or Method of our present Establishment methinks by the help of the same Rule all such Doubts may be speedily resolv'd I mean by an Interpretation favourable of our former State. Especially if it be seriously weighed how far such a sense may contribute to the Quiet of the Minds of a Multitude of Men among us that perhaps are too fond of old and averse to new things But principally for the saving of the Wisdom and Honour of our Governors and the better securing the Government upon a tried Basis and the more firmly rivetting it in the Affections and Satisfactions of the Generality of the Kingdom This is considerable when Unanimity and Unity by such Satisfaction cannot but be thought at least expedient for our common Preservation from the subtile Designs and threatning Attempts of our Enemies Pardon me if I make bold to demand why the general Sense of Publique Danger by means of the Offence so many take from the disagreeableness of too strict an Interpretation of some doubtful Words and Practices touching our present Settlement from our former why may not I say so general a Sense and Fear in the People who were represented in the Settlement be modestly thought to have some Right to reconcile such Doubts if such are left and not fully cleared by our Law-Makers to a Sense more agreeable to our former Constitution and as near as may be At least where the Law is not express it cannot in reason be interpreted by private Persons to such a sense as is counter to general Satisfaction and the Publique Safety both of the King and Kingdom and this we have heard is hazarded by forsaking the old beyond necessity and laying too much Stress upon a new Foundation We ought to be wary of wresting words or things that seem doubtful especially about Government to such ill Consequences as the cherishing Faction the Disturbance of Loyalty the Reproach of our Rulers the Scandal of the Law and the unsetling of the new Establishment wherein all our civil and religious Interests are undoubtedly concern'd Secondly From the Premises I must infer that an Essay to reconcile our present State with the former is at least pardonable if not reasonable and expedient not to say necessary Here I am incouraged to lay the ground of my Apology for this bold Adventure and I hope no peaceable or good Man will be offended much less any of our Rulers be provoked with a modest and well-meant Endeavour to prevent much harm and to do a great deal of good in my opinion If I am mistaken humanum est but I am sure I intend well and pursue a good Intention sincerely according to my own Apprehension This satisfies my self and methinks it should offend no body But I must speak plain For if unnecessary Alterations in the Frame of Government be indeed dangerous
Principle against Treason a faithful and loyal Mind keeping Treason out of its Seat which we know is not so much in our Actions as in the Mind and Imagination 2dly If Treason cannot be committed against the King that is out of Possession as he is not King according to Law so we cannot be thought to owe him our Allegiance that is Obedience according to Law for he is not King so as to rule or command us and then there is wanting the very Reason of Duty or of Fidelity to that Duty 5. It may not be unworthy our observation That if any one yet can be so weak or blind as to imagine that since the late King's Abdication the Crown is in Abatement and the Right lies somewhere else even in that case they say the Common Law favours the Abator and looks upon his Title to be good until the Right of the Heir be proved and the Matter of the Title be decided by Law and consequently all Duties in the mean time are to be paid by the Tenants to the Abator as if he had Right as well as Possession I need not apply it 6. However there is nothing in the Law of the Land or the Word of God that necessitates the Subject to trouble his Conscience with Scruples about the Titles of Princes or beyond the actual Possession and Administration of the Government 1. For the Word of God that supposeth Christians to be under the present Powers and strictly enjoins them peaceable and unscrupled Submission and Obedience to the Powers that are but this Argument hath been sufficiently enforc'd by others even to Demonstration 2. For the Law of the Land this justifies our Obedience to the present Power yea requires it and punisheth the contrary and will not endure any Scruples about the Right when the Possession of the Crown is once settled and terminates all Doubts of that kind in an Act of Parliament which is the publick Judgment and Sense of the Nation 'T was said by the Parliament of Richard the 3d after they had cleared his Title as grounded upon the ancient Laws and laudable Customs of the Realm according to the Judgment of all such Persons as were learned in those Laws and Customs they proceed and say Yet nevertheless forasmuch as it is considered that the most part of the People is not sufficiently learned in the aforesaid Laws and Customs whereby Truth and Right in this behalf of likelihood may be had and not clearly known to all People and thereupon put in doubt and question and over this how that the Court of Parliament is of such Authority that a Declaration made by the three Estates and by the Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the occasion of Doubts and seditious Language therefore they declare that he was the undoubted King. Whence 't is evident that the Reason of this Law supposeth that the Subjects in general are not capable of understanding the Laws and Customs upon which the Titles of our Kings depend and that the best Satisfaction that the Generality of the People can possibly have in those high Matters is the Sense and Judgment and Determination of the Kingdom by Act and Authority of Parliament wherein they should acquiesce for the preventing Sedition so much as in Language But to be short here the Law allows a King de facto the Name and Dignity and Authority and Defence of a King And doth it not require our Duty according to Law Was 't ever known the King being acknowledged to have the actual Government that the Subject was excused from Allegiance or an Oath of Fidelity as occasion required it Yea If Obedience according to Law be acknowledged due to the present Government as it now it seems is generally granted is not the Oath of Allegiance at this time required by Law as well as by the Relation of Subjects and so made a plain part of our Obedience according to Law Yet if the King in Possession be really our King do not our own Laws return upon us requiring Loyalty and Fealty forbidding Sedition and Scandalum Magnatum and all Endeavours to alter the Government that is at least by our peaceable and dutiful Carriage to acquiesce in the Work of Divine Providence in our late Revolution and the Acknowledgment of our Subjection due to William and Mary who as we have heard by the Laws of the Land heretofore made are our undoubted King and Queen because in possession of the Government their Right also is unquestionable by private Subjects being a Point determined according to the ancient Laws and laudable Customs of this Realm and their Right as well as Possession openly declared by the highest Authority of the Kingdom in Acts of the present Parliament Object But some are apt to say This is to prove that the Sun shines who denies that the present King and Queen are such de facto or that we ought to obey them Sol. 1. This is so far well But do we obey them without reserve for the late King Do we acknowledg that the Laws of the Land oblige us to give them our Obedience Or do we mean only that they have the Name of Soveraigns and a Power in their Hands to defend themselves against and to punish Disturbers of their Possession If it be so we do not take right Measures of their Authority or of our own Duty according to Law. 2. For they are really King and Queen by being in Possession and invested by the Laws with Regal Authority as well as Power otherwise they could not be within the purview of the Statute of Treason 3. Consequently all their Actions that are politick and for the matter agreable to Law are as valid and of as good Authority as the Acts of the most rightful Kings They have Authority and do effectually execute and make Laws while they are in Possession as they do protect us so they administer Justice dispose of Offices coin Mony make Peace and War punish all kind of Offences as well against the Subjects as the Government 4. And such Acts of a King de facto only without Right as concern and have Influence upon the Kingdom have ever been allow'd and reputed good and valid though the Title to the Crown hath been question'd and denied in after-Ages as we noted before 5. That very Parliament that condemned the Usurpations of Hen. 4 5 6. and all Acts that had entailed the Crown contrary to the course of Inheritance yet add these remarkable Words Howbeit that all other Acts and Ordinances made in the said Parliament since been good and sufficient against all other Persons I would infer hence that Obedience is due to the present King c. in his Authority by Law acknowledged as well as Power and therefore not only for Wrath but for Conscience sake Conscience I say not of their Title but of their Authority and our own plain Duty
Allegiance are both the natural and legal Results of the Relation betwixt King and Subject which very Titles do after a sort import so much 7. Nor is the taking this Oath necessary only by the Law of Nature and by the Common Law of the Land and Acts of Parliament but by the Law of God. If we should grant it to be perfectly indifferent without it yet we must grant that if it be determined by the Word of God it thereby becomes necessary Now I should think that to obey the Powers in Being is as clearly commanded by the Law of God in the Holy Scriptures as by any other Law whatsoever And that we cannot or do not obey the Powers in being if we refuse to take the Oath which we say is in it self indifferent when expresly required by the Laws of the Land. 8. I think it is the Sense not only of the Church of England but of all good Christians that the Word of God makes it our Duty to obey the Government in all indifferent things made necessary by our own Laws And that we are bound to such Obedience not only for Wrath but Conscience sake Conscience towards God his Ordinance and Command let us not misjudg it for our Honour or Reputation to change our boasted Loyalty into Disobedience which is scarce to be avoided without obeying the Laws of God and Man and taking the Oath Secondly But were there no other Law requiring us to take this Oath Doth not the necessity of it as it is a Means make it our Duty What if Reputation weigh something with us doth not the Danger of the Publick continued by our Stiffness weigh more Do we talk of Honour when the Commonwealth lies at stake Is it comely for a Souldier to be playing with a Feather in his Cap when Hannibal is at the Gates 1. Pardon me if Zeal hath eaten me up and I cannot contain O Jerusalem for my Brethren and Companions Sakes I will now say Peace be within thee yea because of the House of the Lord our God I will seek to do thee good 2. Who considers how much is owing to niceness and strangeness to the Government for the Hazards and Blood of Ireland and Scotland already Who weighs the further Consequences of it both at home and abroad Where is our Compassion to our Protestant Brethren our Concern for the Reformation our Charity to the Kingdom our Justice to our Protectors our Kindness to our Friend our Gratitude to our Deliverer from Popery and Tyranny These are substantial and weighty Things And what are the Colours of a pretended Reputation in comparison of these 3. What do we mean upon a point of Honour to throw a Glove to the Government Is it reasonable or fit for us to provoke the King to a quarrel who hath so many Enemies already and must stake three Kingdoms to our little Reputation Yea the Interest of the Protestant World too of which he is made the Protector 4. Is it not Satisfaction enough for you that you have plaid the Men and stood it out as long as there was the least hopes of serving the Interest of the late King and so long vindicated your Loyalty to him Is is not now become morally impossible he should ever return but by the Assistance of the French King that is without inslaving us openly to the Antichristian Powers of which he is the Head under a haughty cruel and most barbarous Conqueror 5. Besides how unaccountable are Principles that engage a Man against his own as well as the publick Interest as if a Man were bound to oppose and fight with himself and all about him certainly this is a miserable strait and such as one cannot imagine the wise and good Providence of God should bring us into 6. By disobeying the Law and our Distance with the Government we continue a Breach at which a common Destruction may enter then we know we are lost in the common Calamity If God in Mercy prevent that and preserve us with wonder against our own Averseness as he hath done then there is yet a Breach betwixt the Government and us If we do not destroy the Publick and our selves that way yet we may destroy our selves when we might help it A man may be Felo de se by destroying himself by our Law and Fur de se by depriving and stealing himself from him to whom his Service is due by the Imperial Law and Proditor de se by the Law of Nature if he descend from the Dignity of Humanity and submit to the danger which he might avoid I speak as to wise Men judg ye what I say 7. 'T is a plain thing I am about to speak which if duly pondered must needs put an end to the whole Controversy at least I think so 'T is this None can be ignorant that the late King hath put himself into that condition that the French King is now actually endeavouring to serve himself of him for the Conquest of these Kingdoms he hath put himself absolutely into the Monsieurs Power he truckles under him in the Irish Commissions he hath either sold his Dominions to that King or so delivered up his Interest in them to his Management that 't is a piece of Madness to imagine but that the French will reap the Advantage of any Success God may suffer to be obtained against us Perhaps we may think the poor King James was forced to it but I know you will say you had no hand in that force and you could not help it and is not the thing de facto so Is it any thing to you by what means or upon what Motives this came to pass but it being certainly so you cannot now think but that seeing the State of things is such your Allegiance to King James is ceased unless you owe it also to the King of France which God forbid for while you continue to discountenance the Government you cannot do more to further the Designs and Methods of our Ruin. 8. The Apostle makes Expediency the Rule of our Practice in things indifferent so that some things are to be done or not to be done because expedient or not expedient upon which this Objection is urg'd Now if it be indifferent in it self to take or refuse the Oath I hope what hath been said is enought to satisfy us where the Expediency lies All things are not expedient Why Because all things edify not much more if they ruine and destroy It is something Non promovent publicum Ecclefiae bonum if they do not promote the publick Good of the Church much more si magis destruant if they tend to its Destruction as Authors gloss upon the Text. 9. One would think this Consideration might fully convince us that our Obligation to the present King c. is widely different from that which lay upon the People during Oliver's Usurpation they had reason to refuse or at least to suspend the
due in the same sense to any other because the same Allegiance cannot be due to two Kings at once but King William c. are the Supreme Power in Being To this what can be replied but either that King William and Queen Mary are not the Supreme Power in Being against all sense or that Allegiance is not due to the Supream Power in being against all kind of Law as I shall shew presently Object But may it not be supposed that there may be a King de jure that is not so de facto And is there no Allegiance due to such a King especially if we have sworn it to him Answ But was he not King de facto as well as de jure when we swore Allegiance to him Was that Oath ever taken but to the King and under that very consideration as actually our King We suppose a King de jure but what 's that He hath Right to be King And doth not that very thing prove that he is not King as he hath Right to be And consequently he hath Right to our Allegiance no otherwise but as he hath Right to be King and dependently upon it that is remotely and upon the supposition that he obtain his Right and be actually King again as he was when we first sware Allegiance to him Here the Rule seems to have place Rebus sic stantibus we owe Allegiance to the King while he is actually so if he ceases to be so we do not owe him that Allegiance that is due to a King in Possession if he have a Right to be King we do not therefore owe him actual Obedience until he recover and enjoy or have that Right indeed upon which depends our Obebedience Our Oath at first included that known Condition Si res in eodem statu permanserint Object But we have sworn to King James and who can absolve us or how can our Obligation to him cease or be dissolved Answ The strict Question here is not whether that Obligation be suspended only or wholly taken off that is Whether there remains no Obligation upon us to King James but whether the Obligation be such as prevents or hinders our lawful swearing Allegiance to the Powers in being There is a Duty owing to the present Government which must be first allowed and then the supposed Obligation to the late King what ever it be must be such as may consist with that Duty I need not here mention how many Ways our Allegiance to the late King is ceas'd From the removal of the Object he ceasing to be King From the Rule of all Allegiance the present Laws the Reason and End of Government or the like 'T is enough to my present purpose to prove that Allegiance is due and consequently we may lawfully take the new Oath to our present King and Queen And therefore no consideration of any former Oath should make us deny or delay the performance of our Duty to them This is the Point I am come to prove which seems to me very easy to be done From the Law of Nature the Law of holy Scripture and the Laws of the Land. First Obedience to our Parents civil as well as natural is a Law of Nature Our actual Governours are our nursing Fathers and nursing Mothers this is of moral and eternal Reason and the Obligation thence upon us is antecedent to any Obligation that we can be supposed to contract by our Oath to any particular Person contrary thereunto which as our Law saith is but of human Provision Our Law-Books ground our Allegiance upon the same Reason Protectio trahit Subjectionem Allegiance is founded in Protection upon moral Arguments of Justice and Gratitude And the Casuist affirms Allegiance is intrinsecal and so essential a Duty and as it were fundamental to the Relation of a Subject qua talis as that the very Name of a Subject doth after a sort import it The Consequence is that Allegiance is not due to one that hath not Possession and therefore hath not power to protect us whatsoever his Right may be but it is due to the present King c. that doth in fact protect us without any Consideration of his Right to the Crown 2. Allegiance faith the Bishop again is a Duty that every Subject by the Law of Nature owes to his Country and consequently to the supreme Power thereof that is to his Country as the End to the King as the Means of that End. Now the End being more noble than the Means for which the Means hath both its Use and very Being as such if that which is ordained to be a means of Preservation of our Country change its Nature and proper Intention and becomes a Means and Instrument of its Destruction we cannot in the Reason of things be bound any longer to use it For as he saith in another place Whatsoever is done for any End is so far to be done as it doth seem necessary and profitable for that End. Now 't is not denied but that the Government in the hands of King James was used not for the Preservation of our Country but its Destruction and contrary to the Ends of all Government Yea such as pretend some Allegiance yet due to him do they not rather fear than hope for his Return to the Government which in all moral Assurance they know would be more pernicious to us than it was before he left us Besides we are now under Powers that do actually and happily serve the Ends of Government We must hence conclude that by virtue of our Allegiance due to our Country which is of first and greater Consideration our Allegiance to our late King as contrary or inconsistent therewith is dissolved and become due to the present Government 3. Further By the Law of Nature Salus Populi is both the supreme and the first Law in Government and the Scope and End of all other Laws and of Government it self Now how this can be preserved by our Allegiance to any other but the Government in being is I think unintelligible Perhaps some are yet to learn what that meaneth I will have Mercy and not Sacrifice What Sacrifice Why God's own Service What Mercy Why to save Life either of an Ox fallen into a Ditch or a sick Man. Now what was that Service of God that must yield to that Mercy to Man and Beast Was it the Observation of the Sabbath And what was that but as it were an Oath of Allegiance to God It is saith God a Sign between me and you yet this Oath binds not this Testimony is invalid this Service is no Duty when it comes in competition with Charity or Mercy to Man or Beast The Reason is There is a prior and eternal Obligation to those moral Duties Is not then the Service of the King though sworn in the Oath of Allegiance that Sign or Testimony between King and Subject is not this discharg'd or dispenc'd with when Salus
AGREEMENT Betwixt the Present and the Former Government Or a DISCOURSE of This Monarchy whether Elective or Hereditary Also of Abdication Vacancy Interregnum Present Possession of the Crown and the Reputation of the Church of England With an Answer to Objections thence arising against taking the new Oath of Allegiance For the Satisfaction of the Scrupulous By a Divine of the Church of England the Author of a little Tract entituled Obedience due to the Present King notwithstanding our Oaths to the Former LICENS'D Sept. 24. 1689. J. Fraser LONDON Printed for A. C. and are to be sold by Charles Yeo Bookseller in Exon 1689. THE CONTENTS OF THE CHAPTERS CHAP. I. AN Introduction grounded on a general Maxim That unnecessary Changes in Government are to be avoided as dangerous page 3. CHAP. II. The chief Maxims insisted upon as prejudiced by the late Settlement p. 11. CHAP. III. The Government whether Elective or Hereditary and how p. 12. CHAP. IV. Of Vacancy and the supposed Interregnum thereupon by the late King's Abdication p. 31. CHAP. V. Of ABDICATION p. 32. CHAP. VI. Of Vacancy and Interregnum p. 37. CHAP. VII Of the Convention and how it became a Parliament p. 42. CHAP. VIII Arguing from the Possession of the Crown p. 51. CHAP. IX Whether a King can make Laws limiting the Crown p. 58. CHAP. X. The Honour of the Church of England no just Objection against our taking the new Oath p. 60. The APPENDIX The Objection from the Word Allegiance considered p. 66. POSTSCRIPT p. 75. TO THE READER SCruple is an Ague of the Mind it sometimes shakes it and sometimes heats and disturbs the Brain If the Matter be unknown to the Patient and to Doctors we are not certain of the Cure and the less if the Stomach be untoward and the Appetite averse to Medicine in such a Case various Methods used to be tried and Remedies prescribed but through Ignorance of the Cause or some latent Obstruction Skill it self a long time is thrown away at length perhaps a vulgar Medicine given at a venture hits the Distemper and works the Cure. After many learned Doctors charitable Endeavours to deobstruct and ease some good Mens Minds that are shaken with Scruples about the new Oath of Allegiance hitherto in vain if it be yet in vain though I cannot boast of my Skill I make bold to trie a new Practice upon them And I hope my good Reader hath the like Reverence and Value for the worthy Persons that yet labour under may I call it the Disease and the same Zeal and Affection for the Health and Quiet of the Body Politick that I my self have and doth join with me while I do heartily that which I fear Physicians seldom do pray over my Patients for a Blessing from the Great Physician CHAP. I. An Introduction grounded in a general Maxim. The general Maxim Vnnecessary Changes in Government are to be avoided as dangerous UPON any great Revolution it seems much the Concern of the New State so to settle the Government as may offer least matter or occasion of Discontent to the People and consequently to make as little Alteration in the former Maxims and Customs that is in the old Constitution as is possible lest the old Leaven should work again to the prejudice of the new Establishment We may observe in our own History that such publick Grievances as from time to time have been objected by the People to the disquieting and sometimes hazarding of the Government have generally been aggravated with the charge of Innovation as being contrary to our ancient Liberties Rights and Customs and for some Ages in Instances infringing Magna Charta that great Record of the Subjects Priviledges and Codex of our ancient and common Law in which much of our old and happy Constitution consists indeed any Alteration in our Constitution seems to shake the Foundation and frightens the People like an Earthquake This Maxim is commended by three great and well-known Examples 1. Our Saviour's This Caution was sanctified after a marvellous manner by the Wisdom of God in our great Examplar Our blessed Saviour we know was sent into the World to put the Church into a new frame now in his so doing did he reject all that was old or leave out any thing that might be any way serviceable in the new Is it not remarkable that he did resume and make use of as many of the old Materials as could possibly be accommodated to the Edification of the Gospel-Church Did he not take both the Sacraments did he not collect the very Petitions of his Prayer out of the former Usage and allude much in the new Government to be established to that which he found in the old Did he not preach and expound upon the Law of Moses and the ancient Prophets and appeal for his Defence and Justification to their own Books Indeed he seems to have left out nothing of the old Dispensation but what was inconsistent with the new namely that which was typical and expired in the Truth and that which was purely judicial and therefore ceased with the temporal Government of the Jews which our Saviour was not then come to take upon him Now was not all this Accommodation of our Saviour to Moses wisely as well as graciously contrived that the People for whose sakes he was first sent might not be offended or startle and flie from him upon the Scandal of Innovation Yea so tender was our Saviour of them in this Point that during his whole Life both he himself and his Disciples by his Commission addressed only to the Jewish Nation that the greatest Scandal by the Call of the Gentiles might be avoided and they might still appear to be God's peculiar People while there was any the least hopes of them According to their Lord's method and example we afterwards find his Apostles in a great Council held and decreed it as a necessary thing for some time to retain and to practise some legal Ceremonies even after they were all really abolish'd in the Death of Christ that if possible they might thus gain that is reconcile the stubborn People to the new Establishment or at least leave them without excuse Afterwards the fear that possessed the Christian and believing Jews of too great Alteration to be made by the Gospel occasion'd that sober Advice we reade of in Acts 21. 20 21 23 24. of the Church to St. Paul Thou seest Brother how many thousands of Jews there are which believe and they are all zealous of the Law And they are informed of thee that thou teachest all the Jews which are amongst the Gentiles to forsake Moses saying That they ought not to circumcise their Children neither to walk after the Customs Do therefore this that we say unto thee that all may know that the Information against thee is nothing i. e. of no moment but that thou thy self walkest orderly and keepest the Law. 2. Of the Church of England in the
us that the Testamentary Heir that is one that comes to the Crown by the last King's Will tho not next in Blood is said to inherit But to apply this distinction methinks it doth two great things it first plainly yields the Cause so far as to the necessary descent of the Crown in Proximity of Blood Secondly It gives a shadow at least of Election if not in the People yet in the King if by his last Will he might pass by the next in Blood and name that is properly to chuse another to succeed him in the Throne Besides if this was anciently done both frequently and lawfully where shall we found hereditary Government in the strict sense of it in the Constitution of the Kingdom or how shall we defend it from being in no wise elective Yea if the King himself upon some considerations might chuse his Successor and set aside the next in Blood without wronging him certainly upon great Considerations the like may be done by both the King and People And we find that Testamentary Heirs of the Crown tho they were indeed named by the King are said to be chosen by the People and yet are also said to inherit and if we observe it narrowly we shall easily note that the words Hereditary and Elective with respect to the Government are some-times confounded in History Successione Haereditariâ eligere was no contradiction The Testament of Ethelwoph Florence of Worcester calls it Epistola Haereditaria by which it is said he set aside his own two Sons as the Doctor notes p. 363. where he tells us moreover what the Law of Succession as well as the Practice then was the Saxon Kings saith he might appoint a Brother's Son or a Bastard to succeed them before their own lawful Issue But to come a little closer I may demand where when or how this Maxim that the Crown of England is necessarily annex'd to Proximity of Blood in the Royal Family came to be of the Foundation or Constitution of our Government That it was never made so by Custom or any other Law or by any other means the learned Doctor yields us by his Refuge in a Testamentary Heir I am assured under the hand of a very learned Lawyer who is a great Friend of the Hereditary Monarchy that this Maxim in contradiction to the former the Crown was alienable and devisable was retained and never contradicted until the Resignation of K. John and since that time how hath it been contradicted or denied either in practice or the declared Judgment of the Kingdom It is evident enough what the sense of the King and Parliament was in Henry 8th's time and since in Queen Elizabeth's and since that in our late Parliaments And nothing to the contrary can I think be fairly inferr'd either from that Act of 7 Hen. 4. that limited the Succession of the Crown to his Sons in order and their Issue or that of Hen. 7. that limited to the Heirs male of his Body and no farther Or the Recognition of K. James the first for by that of Hen. 7. it is plain the Parliament thought they had power to limit the Succession otherwise they would not have meddled with it besides they limited it indeed by extending it only to the Issue male of his own Body And as for the Recognition made to K. James it seems to be the clearest and fullest acknowledgment of an hereditary Succession yet we may observe how it is expressed 't is indeed declared that the Imperial Crown did belong to him and his Royal Progeny and Posterity for ever but 't is not said of necessity notwithstanding any Reason to the contrary it shall actually descend to the next in Blood in order for ever Besides they say in the same Act that this their Recognition could not be perfect or remain to Posterity without the King's Consent that is to make it an Act of Parliament And doth not that imply that hereditary Succession of the Crown was not accounted to be fundamental to our Government before For then it would have been perfect in it self without the King's Consent Besides it seems evidently to follow that the Kingdom at that time judg'd that the Succession of the Crown was limitable by Act of Parliament Yet lest after all this I should be mistaken I make this observable from our own Histories that tho sometimes the next in Blood hath been set aside and for ought I find to the contrary upon Reasons of State may be so again yet it seems the Royal Family have Jus ad Rem and have Right thereunto before any other if any Member of the Royal Family are capable of Government so I think we find it generally carried that is when the next in Blood hath been omitted generally some one either really or in pretence of the Royal Family hath been advanced to the Throne This general Right to the Crown by Blood hath been sometimes pleaded by our Kings and allowed by the People and Parliaments but never denied and tho we cannot say the next in Blood hath an uncontroulable and immediate Right beyond all exception to enjoy the Crown tho we cannot find this Right in the constant usage as Common Law and a Fundamental of our Government yet we may grant that in all Turns and Temptations to the contrary the Right of the Royal Family seems to have countenance if not plain and general Acknowledgment and to pass unquestionable with the silent Testimony of many Ages I am sorry to observe with Daniel that before this last Age seldom or never the third Heir in a right Descent enjoyed the Crown of England It cannot be denied but that our Parliaments have frequently concern'd themselves about the Succession and that our Kings both such as came to the Crown by proximity of Blood as well as those that came to it otherwise have often applied themselves to the Parliament not only for their own Security but to limit and qualify the Succession after them Yea further I think it must be granted as one saith smartly enough That 't is a most dangerous thing to have an Opinion prevail that the King in concurrence with his Parliament should not have power to change the direct Order of Succession though the Preservation of him and his People did depend upon it Yet after all this if Common Vsage be Common Law and continued Practice be our Rule of determining this great Point I think the Royal Family have a radical Right in the Government of England and bids fair for an Interest in the Constitution of the Kingdom for it seems to have governed the Disposition of the Crown all along both before as well as since William the first and that generally with our several Kings and Parliaments ever since we had any I shall leave this easy Observation only take notice of two Concessions which I apprehend considerable The first is that of Dr. Br. he saith the Saxon Kings might appoint a Brother's
be personally present Wherein we have two Propositions 1st That every particular Subject either in Person in the House of Peers or by Representation in the House of Commons are by the Laws of this Realm deemed personally present in Parliament 2dly That where the whole of the Realm are thus either in Person as Peers or by their Representatives upon their own free Elections present there is a Parliament 1. So that the Essence of a Parliament seems to consist in two things with respect to the two Houses The Presence of the Peers in their own Right and of the Representatives of the People by Virtue of their Election and to be entire without the Consideration of any previous Writs from the King. 2. Indeed we cannot well conceive that a Parliament properly so can be so without a King in being not for want of Writs to summon but for want of an occasion and reason of their being if the King be the Person with whom they are to parly caput Principium finis Parliament But seeing the Peers of the Realm and the Representatives of the Commons upon their own free Elections are assembled and the King in being allows approves and ratifies their Assembly to be a Parliament by his subsequent Assent as King to that manner of Summons which he before he was actually King invited them to and advises with them and makes use of them as his Parliament It is plain to me that they have the entire Substance of a lawful Parliament and that the King's Writs in such a case are but a separable Accident and that we should look upon our selves and the whole Body of the People as present there and acting or consenting to all the Laws made by the King and them 3. And lastly we are not without a plain and direct Precedent in the case upon King Charles the second 's happy Restauration as every one observes which is in terminis made the pattern by this King and Parliament in the late Act declaring themselves to be a Parliament though it wanted the previous Writs of Summons which could not be had And though 23 of the Statutes made by that Parliament were afterwards confirm'd 13 Car. 2. c. 7. yet the rest of the Acts made by them have been taken to be of as much force by the Judges though not so confirm'd And this of the 12 Car. 2. 1. is one of them as all other Laws made by our Kings whose Titles have been afterwards question'd with the Peoples Concurrence have been ever held valid Thus we have the Publique Judgment of two Kings and of the Body of the whole Kingdom in two Parliaments that such Writs of Summons before-hand are not necessary in all Cases and in particular in our Case to the Constitution of a true and Legal Parliament And who have most reason to understand and to judg and determine such publick and high Points concerning the Nature of Parliaments the King and Kingdom assembled together or Men of a single and private Capacity How far our Consent and Sense is concern'd in the Determination of those we have chosen and in some sort trusted with our politick Interest and in whom the Law lately mention'd saith We are deemed to be present I urge not but it may be worthy to be considered The Words of the Parliament being about to declare the Right of Richard the 3d. are these and I think them very pertinent The Parliament is of such Authority and the People of this Land of such a Nature and Disposition as Experience teacheth that Manifestation or Declaration of any Truth made by the three Estates of this Realm assembled in Parliament and by Authority of the same maketh before all other things most faithful and certain quieting of Mens Minds and removeth the Occasion of Doubts and seditious Language Which God grant CHAP. VIII Arguing from the Possession of the Crown I Have now finished the greatest part of my Undertaking and how I have vindicated the late Revolution and reconciled our present State to our ancient Constitution as an Hereditary Monarchy and admitting no Interregnum my Reader will be my Judg. As also of what I have said touching Abdication and Vacancy in the Throne of the Convention and their just and regular Proceedings in their Invitation of King William and Queen Mary to take upon them the Government of these Kingdoms and lastly of the Legality of the present Parliament and thereby obviated or answered the Objections made against the present Government From any or all of these as I intended I submit to his serious Consideration and candid Censure 2. But if all that I have hitherto said fail of my end in giving full satisfaction to such as scruple the taking the new Oaths of Allegiance to all the Arguments that have been so well inlarged upon by others I shall only resume that that hath been often insisted on taken from the Possession of the present King and Queen with the easy and just consequence of it If the Body of the Kingdom as represented by the Lords and Commons duly chosen or scattered over the Kingdom by their open uninterrupted and general Recognitions and Proclamations and their Coronations with all the Methods and Formalities of Law can give or can own and approve the Possession of the Throne and declare and manifest William and Mary King and Queen as no body can doubt they are certainly and must be acknowledged to be our King and Queen de facto Now hence it follows 1. Then we owe them Obedience due by Law for then we are their Subjects And we cannot conceive of Soveraignty without Authority nor of Subjection without Obedience This the Statute of Hen. 7. plainly supposeth due to the King in being and consequently that such an one is not a King in Name only but in Dignity and Power And the Subject may obey him fight for him and consequently take the military Oath an Oath to be faithful in that highest Act of his Service and doth assoil him from any Crime in so doing in Reason Law and Conscience 2. Hereupon the learned Lord Coke and Judg Hales affirm without Hesitancy That a King de facto and not de jure is within the great and ancient Statute of Treason 25 Edw. 3. 3. Now if we enquire why Treason may according to Law be committed against a King de facto the Reason is obvious namely because the Law looks upon him as really our King. As Treason they say cannot be committed against a King by Right only and hath not Possession which must be upon the like Reason because the Law doth not regard one out of Possession and cannot protect us or administer Justice to us as King of England 4. Hence it seems to follow first If the Subject may be guilty of Treason against the King in being it implies he owes the Duty that is contrary to Treason to the same King and what is that but Fealty or Fidelity that is a
at least for Conscience sake with respect to the publick Good to take the Oath of Allegiance which is part of our Obedience it being required by Law and therefore our Duty Obj. Your arguing seems to perswade us only to Obedience which we do not much scruple in the sense you explicate it The Swearing to bear true Allegiance is that which troubles us not knowing well the intended sense or meaning of it Sol. The Government hath given us reasonable Satisfaction in this Particular though not so clear as may be wish'd the very Title of the Oath even in this new Law is the Oath of Allegiance or Obedience Now if Allegiance in the sense of the Law as explained by the Law-makers be nothing but Obedience and Obedience in England is to be measured by the Laws what can Allegiance import more than Obedience according to Law which you say you are willing to yield and why now should you refuse to add this Sign and Security of such your Obedience by taking your Oath to do so 2. Moreover you find the Government insists not upon the Word Allegiance nor intends any strange or obscure Obligation upon us by it for in the Declaration they require of Quakers who refuse to swear they express Faith and Allegiance by those plainer Words I will be true and faithful to King William and Queen Mary 3. And as one lately hath very well observed the Parliament have avoided all occasion of Offence in wording this Oath that might consist with the Security of the Government for by omittting the assertory part of the former 't is evident they do not require us by this Oath to assert the Title but to secure the Possession and Peace of the Crown in King William and Queen Mary by our Obedience according to Law. Indeed we may perceive in the whole Proceeding of our late wonderful Revolution so much Sweetness Tenderness and Condescension to the Prejudices that the former state of things might leave in us both with respect to our late King and our own Obligations as if the Government had industriously studied to avoid all occasion of Offence as much as the nature of the Change suffer'd to be possible I have I think noted before that the Convention did not depose the late King did not declare the Crown forfeited did not require him to make a Resignation of it and tho they justly charge him with many intolerable Grievances yet they did not call the King to an Account for them Nay they did not so much as declare that the King is accountable so that the Minds of such as boast of excessive Loyalty have ease as to all these things that bear so hard a Contradiction to their Principles and as for our selves we have noted some Kindness and Condescension with respect to the Oath required thereby it it is neither required that we should abjure the Title of the late King nor assert the Title of the present God forbid therefore that there should be left any Prejudice in us from the hard Proceeding of the Government in either kind if it should it is plainly as false in its ground as 't is like to be evil in its Consequence especially if we stiffen our Disloyalty with the Continuance of a scandalous Impeachment of our Rulers and Legislators for Severity intended against the Church and a designed Alteration or Change of the ancient Constitution of this Hereditary Monarchy the one I hope is as true as the other Obj. The Statute of Hen. 7. so much depended on was made by a King that had no Title to the Crown himself Answ What then Doth it follow that the Statute is not of force Upon that ground we must blot out a great part of our Statute-Book which is full of Laws made by such Kings and the best of our Laws have no force if the Observation hath any truth that the worst Kings made the best Laws Object But 't is a Law mischievous to the Right of our Kings Answ It is much this Mischief hath not been discovered by our former Kings or Parliaments that so mischievous a Law should continue through so long a tract of time unrepealed 't is confess'd it may be inconvenient and prejudice the Interest of a King de jure but we ought in reason to set this against it that it is a Law at all times convenient and serving the Ease Quiet and Safety of the Kingdom for whose sake Kings themselves are 't is hereupon that the Lord Bacon tells us that the Spirit of this Law was wonderfully pious and noble upon this ground as one saith well because they who had no hand in the Sin should bear no share in the Punishment And the Lord Bacon adds That this wanted not Prudence and deep Foresight for it did the better take away occasion for the People to busy themselves to pry into the King's Titles for that however it fell their Safety was already provided for And as the late Author that cites my Lord Bacon for these Words adds very well The meanest Capacity will not be wanting for a Rule of that Subjection which every Soul owes to the higher Powers but if the Subject ought first to satisfy himself touching the Right of his Prince especially in such a time of contest as there was many Years betwixt York and Lancaster certainly every Soul could hardly be so well satisfied as to be subject for Conscience sake CHAP. VIII Whether a King can make Laws limiting the Crown Obj. THough it be acknowledged that a King de facto hath Power to make other Laws viz. Laws for Peace and Justice yet it is a Doubt whether a King that hath no right to the Crown can make Laws for limiting the Succession of the Crown as is now to be done Answ It is confess'd that when it was pleaded against the Title and Claim of the Duke of York that there were divers Entails made to the Heirs Males of Hen. 4. It was answered There had been none made by any Parliament heretofore as it is surmised but only in the seventh Year of K. Henry the Fourth But that Act taketh no place against him that is right Inheritor c. Howbeit all other Acts made in the said Parliament since have been and are sufficient against all other Persons Upon this Law the foresaid Distinction seems grounded but I think very weakly for these Reasons 1. Because this very Law mentions Henry the Fourth with the Addition and Title of King without any Diminution as appears in the Words cited 2. The ground upon which that Entail was declared Null was not a want of Power in King and Parliament to make a Law about the Succession but as they declare in the Dukes first Answer That no Oath being the Law of Man ought to be performed when the same is against the Truth and the Law of God implying as afterwards they speak out it was a Law though of Man it faileth not for want of Authority
for the time being for the defence of him and the Land against every Rebellion Power and Might reared against him And that 't is not reasonable but against all Laws Reason and good Conscience that the said Subjects any thing should lose or forfeit for doing their true Duty and Service of Allegiance It be therefore ordained that from henceforth no Persons that attend upon the King and Soveraign Lord of this Land for the time being in his Person and do him true and faithful Service of Allegiance be in no wise convict c. POSTSCRIPT IF in the foregoing Discourse I have abused the Law in Terms or otherwise as 't is not unlikely being out of my way I beg pardon of the Learned in that Faculty I have nothing to plead in Excuse but an honest Intention FINIS ERRATA Page 58. for Chap. VIII read Chap. IX Page 60. for Chap. IX read Chap. X. Books lately Printed for Awnsham Churchil at the Black Swan at Amen-Corner THE late Lord Russel's Case written by the Right Honourable Henry Lord De la Mere. fol. An Historical Account of making the Penal Laws by the Papists against the Protestants and by the Protestants against the Papists By Samuel Bluckerâ—… Barrister of Grays-Inn fol. Obedience due to the Present King notwithstanding our Oaths to the Former Written by a Divine of the Church of England 4 to A modest Enquiry Whether St. Peter was ever at Rome and Bishop of that Church 4 to The Spirit of France and the Politick Maxims of Lewis XIV laid open to the World. 4 to Memorials of the Method and Manner of Proceedings in Parliament in Passing Bills 8 o. Dr. Burnet's Tracts in Two Volumes 12 o. A Collection of Texts of Scripture with short Notes upon them And some other Observations against the Principal Popish Errors 12 o. Dr. Daniel Whitby's Treatise of Worship of Images Of Communion in one kind His Treatise of Tradition in two parts His Consideration for taking the Oaths to King William and Queen Mary Dr. Worthington of the Resurreâ—… 8 o. Mr. Masters of Submission toâ—… Providence 8 o. Foxes and Firebrands 8 o. 1st and 2d parts A Third Part in the Press Mr. Bold's Sermon on occasion of the Brief for Irish Protestants An Answer to Bishop Lake's late of Chichester Declaration of his dying in belief of the Doctrine of Passive Obedience c. Sir William Temple's Observations on Holland 8 o. Miscellania 8 o. Dr. Carswel's Assize Sermon at Abingdon August 6. 1689. Mr. Selden's Tabl 〈…〉 4 to A List of the present Parliament Lords and Commmons Present Cases stated about Allegiance to King William and Queen Mary Debates of the late Oxon and Westminster Parliaments 8 o. Monsieur Jurieu's Accomplishment of Scripture-Prophecies compleat New System of the Revelations 12 o. Voyage to Syam 8 o. Vid. Cron. Ecl. Licti Seld. 171. Fortise de Leg. Brad. Gloss p. 38. In Vit. Hen. 1. Rigâ—â—â—â—â—â— Royal Family Next Heir 25 Ed. 3. Stat. 6. Praemunire Provisors Ed. 1. Letter to the Pope Vid. Blounts Law dict Fâ—â— All Land in Abeyance or in Fie of some Man. Rule in Law. Edgar was set aside being neither in Body or Mind fit to govern Ingulph With full consent in Parliament the Queen of Scots was desired to be disabled Burl. Letter And of late the Duke of York Noted before Walsingham Hist As they did in Rich. 3. that famous Case Dr. Brad. p. 390. Vid. Dr. Brady p. 386. As Hen. 8. did Necessitas Pracepti Necessitas Medii Dr. Donne Oliver's Vsarpation answers not our Case 1. Nature Calv. Case By Sanderson Case of Engag p. 109 Lect. 5. de leg S. 19. Exod. 31. 13. 2. Scripture 3. Our Laws