sense of the Lords and Commons in the following Declaration viz. The Declaration of the Lords and Commons assembled at Westminister presented to their Highnesses the Prince and Princess of Orange at White-hall the 13th of February 1688 / 9. WHereas the late King James the Second by the Assistance of divers Evil Counsellors Judges and Ministers imployed by him did endeavour to Subvert and Extirpate the Protestant Religion and the Laws and Liberties of this Kingdom By Assuming and Exercising a Power of Dispensing with and Suspending Laws and the Execution of Laws without Consent of Parliament By Committing and Prosecuting divers worthy Prelates for humbly Petitioning to be excused from Concurring to the said Assumed Power By issuing and causing to be executed a Commission under the Great Seal for Erecting a Court called the Court of Commissioners for Ecclesiastical Causes By Levying Money for and to the use of the Crown by pretence of Prerogative for other time and in other manner than the same was Granted by Parliament By Raising and Keeping a Standing Army within this Kingdom in the time of Peace without Consent of Parliament and Quartering Souldiers contrary to Law. By causing several good Subjects being Protestants to be Disarmed at the same time when Papists were both Armed and Imployed contrary to Law. By Violating the Freedom of Election of Members to serve in Parliament By Prosecutions in the Court of King's Bench for Matters and Causes cognizable only in Parliament and by divers other Arbitrary and Illegal Courses And whereas of late Years partial corrupt and unqualified Persons have been returned and served on Juries in Tryals and particularly divers Jurors in Tryals of High Treason which were not Free-holders And excessive Bail hath been required of Persons committed in Criminal Cases to elude the benefit of the Laws made for the Liberty of the Subject And excessive Fines have been imposed and illegal and cruel Punishments inflicted And several Grants and Promises made of Fines and Forfeitures before any Conviction or Judgment against the persons upon whom the same was to be levied All which are utterly and directly contrary to the known Laws and Statutes and Freedom of this Realm And whereas the said late King James the Second having Abdicated the Government and the Throne being thereby Vacant His Highness the Prince of Orange whom it hath pleased Almighty God to make the Glorious Instrument of Delivering this Kingdom from Popery and Arbitrary Power did by the Advice of the Lords Spiritual and Temporal and divers principal Persons of the Commons cause Letters to be written to the Lords Spiritul and Temporal being Protestants and other Letters to the several Counties Cities Universities Boroughs and Cinque ports for the choosing of such Persons to represent them as were of right to be sent to Parliament to Meet and Sit at Westminister upon the 22d day of January in this Year 1688 in order to such an Establishment as that their Religion Laws and Liberties might not again be in danger of being Subverted Upon which Letters Elections have been accordingly made And thereupon the said Lords Spiritual and Temporal and the Commons pursuant to their respective Letters and Elections being now Assembled in a Full and Free Representative of this Nation taking into their most serious Considerations the best Means for attaining the ends aforesaid Do in the first place as their Ancestors in like Cases have usually done for the Vindicating and Asserting of their Ancient Rights and Liberties Declare That the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is Illegal That the pretended Power of Dispensing with Laws or the Execution of Laws by Regal Authority as it has been assumed and exercised of late is Illegal That the Commission for Erecting the late Court of Commissioners for Ecclesiastical Causes and all other Commissions and Courts of like nature are Illegal and Pernicious That Levying of Money for or to the use of the Crown by pretence of Prerogative without Grant of Parliament or for longer time or in other manner than the same is or shall be Granted is Illegal That it is the Right of the Subject to Petition the King and all Commitments and Prosecutions for such Petitioning are Illegal That the Raising or Keeping a Standing Army within the Kingdom in time of Peace unless it be with Consent of Parliament is against Law. That the Subjects which are Protestants may have Arms for their Defence suitable to their Condition and as allowed by Law. That Election of Members of Parliament ought to be free That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be Impeached or Questioned in any Court or place out of Parliament That excessive Bail ought not to be required or excessive Fines imposed nor cruel and unusual Punishments inflicted That Jurors ought to be duly Impannelled and Returned and Jurors which pass upon Men in Tryals for High Treason ought to be Free-holders That all Grants and Promises of Fines and Forfeitures of particular persons before Convicton are Illegal and Void And that for Redress of all Grievances and for the amending strengthening and preserving of the Laws Parliaments ought to be held frequently And they do Claim Demand and Insist upon all and singular the Premises as their undoubted Right and Liberty And that no Declarations Judgments Doings or Proceedings to the prejudice of the People in any of the said Premises ought in any wise to be drawn hereafter into Consequence or Example To which Demand of their Rights they are particularly incouraged by the Declaration of his Highness the Prince of Orange as being the only means for obtaining a full Redress and Remedy therein Having therefore an intire Confidence that his said Highness the Prince of Orange will perfect the Deliverance so far advanced by him and will still preserve them from the Violation of their Rights which they have here Asserted and from all other Attempts upon their Religion Laws and Liberties The said Lords Spiritual and Temporal and Commons Assembled at Westminster Do Resolve That William and Mary Prince and Princess of Orange be and be Declared King and Queen of England France and Ireland and the Dominions thereto belonging To hold the Crown and Royal Dignity of the said Kingdoms and Dominions to them the said Prince and Princess during their Lives and the Life of the Survivor of them And that the sole and full Exercise of the Regal Power be only in and exercised by him the said Prince of Orange in the names of the said Prince and Princess during their joynt Lives And after their Deceases the said Crown and Royal Dignity of the said Kingdoms and Dominions to be to the Heirs of the Body of the said Princess And for default of such Issue to the Princess Anne of Denmark and the Heirs of her Body And for default of such Issue to the Heirs of the Body of the said Prince of
Fortescue tells Hen. 6. That the King cannot alter the Laws of his Kingdom for he governs his People not only by a Regal but a Political Power when it is said the Princes Will hath the force of a Law this saith he is to be understood of a Regal or Absolute Power from which a Political Power much differs for such can neither change the Law nor charge the People with new Impositions against their Wills. And Bracton l. 1. c. 2. Leges Anglicanae cum fuerint approbatae Regis Sacramento confirmatae mutari non poterint and he adds l. 1. c. 17. Temperent ergo Reges Reges potentiam suam per legem quae est fraenum potentiae Let Kings therefore restrain their Power by the Law which is the Bridle of their Power and l. 1. c. 8. Rex in justitiâ recipiendâ minimo de populo comparatur The King in receiving Judgment is compared to the meanest of his People Claudius Sesil a French Historian says as much of their Kings That the Parliament was set as a Bridle to him though they have now cast it off Judge Jenkins says to this purpose We do hold only what the Law holds The King's Prerogative and the Peoples Liberties are both determined by Law and Charles the 1st in his Declaration at York says That his Prerogatives are built on the Laws of the Land And when the Parliament would have him grant an extraordinary Power to the Lords Lieutenants he tells them in his Answer to both Houses That if they would have him to grant more Power to those Lieutenants than by the Law of the Land was in the King himself it was fit that the same should be by some Law first vested in him with a Power to transfer it And Judge Jenkins says speaking of the Oath of Supremacy We do not swear that the King is above all Law nor above the safety of the People but his Majesty and we will swear to the contrary the Law and Safety of the People are his Honour Safety and Strength As to the Objection made from the Declaration viz. That it is not lawful on any pretence to take Armes against the King c. from the Statute 13 of Ch. 2d c. 6. That it is unlawful for the Parliament to levy War offensive or defensive against the King. Thô that be not much to their case who did not take up Arms against him or those that were duly commissioned by him There is a full answer given by the Earl of Clarendon to Mr. Hobbs who extended the King's power beyond the Law In dangerous circumstances says he men are not to resort so much to the words of Submission as to the intention of the Lawgivers which could not be that the Prince should have power to take away the lives of his innocent Subjects nor could such a Submission be ever supposed to be the mind of the Contractors For suppose that the late King had come armed with some Irish Papists into the House while that Parliament sate with a purpose to destroy them would they tamely have submitted and kept their Swords by their sides when the Swords of the Irish were aimed at their Throats If such a case had been proposed they would never have made such a Law as should be written in their bloud and therefore that Law must have some other interpretation such as this That a Defence against illegal actions committed by persons that are not qualified by Law is not levying War against the King for if any one or many be sent to take away my life without a due Trial he is not sent by the King for the Law is the King 's autoritive Command and that alloweth me a fair Trial for my life which if it be denied I may and ought to defend it against all such as come to take it away contrary to Law. And the Magna Charta declares such Commissions to be null where the words are That neither we i. e. the King nor our Heirs shall procure or do any thing whereby the Liberties hereby granted shall be infringed and if any such thing be procured it shall be of no force Now the Liberty granted Ch. 1. of that Charter is That no man should be punished or condemned but by Trial Per Sacramentum proborum legalium hominum de vireneto that is by a Jury of honest and lawful men of the Neighbourhood And this priviledge was purchased by the fifteenth part of the Subjects Goods and so becomes their Inheritance it is Libertas multoties empta If we may resist a person that is not qualified by Law though he act a thing that is just much more when a person that is not qualified comes to act an unjust thing for no man can want authority to defend his life against him who wants authority to take it away And not to resist in such a case is not only against the Law of Nature but against our own Law which always intends the good of innocent persons but such a Law would destroy the foundation of all our other Laws and the Government itself for it would turn a Limited into an Absolute Monarchy To make a Commission valid first the person that grants it must have just authority 2dly The person commissioned must be legally qualified 3dly It must be for the execution of a lawful action and malum ex quolibet de fectu the want of any of these renders the Commission illegal for the King himself hath no authority to grant Commissions against the rules of the Law for the executing of his own Will nor can any one execute such a Commission without Law but he is in danger of being judged by the Law And hence it is that the Acts of Pardon and Indemnity are extended to such as under Charles the First and Second acted by legal Commissions because they might have done in the heat of War what might have been judged Criminal in times of Peace St. Paul himself was much moved and shewed a kind of Resistance when he was but gently at the Command of the high Priest because it was contrary to Law And Bishop Hall in his practical Cases Decad. 2. Case the First says If a Thief rob me of my Treasure and flies my Conscience would not strike me if I pursue him and so strike him that he dies and our Law hath provided for the indemnity of such as slay another se defendendo as in the Case of Simpson mentioned by Sir Edward Cook in the fourth part of his Reports p. 333. when one would have seized him and carried him away was slain in the Attempt by Simpson it was adjudged to be done in his own Defence and found a chance medley and Simpson was acquitted And by the like Reason if a multitude of Armed Men that have no Authority or are not qualified by Law do assault me to take away my Life or my Goods I may resist them and as every Constable in case of an unlawful
or not appears by his first departure and returning again and then by departing still under his own Guards a second time when he was by contrary Winds driven into Feversham he still resolved to quit the Land So that if the late King had thought his carrying would have promoted his Interest he would have staid but being guided by better hopes of compassing his designs abroad it follows that he voluntarily and I may say maliciously deserted us destroying the Writs for calling a Parliament concealing the Broad-Seal leaving us under the power of an Army of Irish Papists whom he ordered to be Disbanded without Pay whereby he probably thought we would have crumbled into several Factions and sought it out among ourselves All men count those actions voluntary which were in their power to do or not to do and though after deliberation the will be for a while in equilibrio yet when other Reasons and Circumstances are added to make the Scales turn the Resolution and Actions that follow are our choice 2dly If it had been the present King's Design or Will to have hindred the late King's departure he might have done it and perhaps it might have been for his Interest to have so done but by not doing it he manifested that it was not his will to restrain him but the late King's choice for there was a Treaty offered and accepted by the late King who sent his Commissioners to treat with the Prince but being as by the event it appears resolved on his departure he tarried not for the return of his Commissioners and though he had appointed to meet his own Council in the Morning yet he deserted them in the Night before to which it is said he had engaged himself by Oath to the Queen So that all these pretences of his being willing to remain in his Kingdom were but to facilitate what he was more peremptorily resolved to do i. e. to forsake it So that tho' the consequents of his own Actions which were undoubtedly wilful as his raising a standing Army which revolted from him his abrogating the Laws submitting the Kingdom to the Pope and all those Grievances summ'd up by the Lords and Commons Feb. 12. brought a necessity on him to depart yet seeing that necessity was the effect of his own Voluntary Actions it must be imputed to his will and choice as the cause of it And doubtless the King deserted the Nation on some such deliberations as these He had followed such evil and rash Counsels as had involved him in unextricable Troubles his Counsellors were not able to defend him or themselves and by flight shifted for themselves The Army in which he confided forsook him the Affections of the People were generally alienated from him so that the only Refuge that was left him was his trusty Confederate the King of France to whom he chose to commit himself rather than to submit to a Treaty Object But it may be Objected That the Lords and Commons were too hasty in declaring that the late King had Abdicated his Kingdoms and that they ought to have treated with him and proposed such Terms as might have secured their Religion Laws and Liberties to which if he had consented all our Grievances might have been redressed Answ To this it is answered That the Parliament by their Votes against the Bill of Exclusion had done as much as in them lay to engage him to a Faithful Execution of the Trust reposed in him viz. To Govern according to the Established Laws And his Promise to the Privy-Council immediately on his Brother's Death did manifest what then was or at least ought to have been his Resolution for he declared That he would make it his Endeavour to preserve the Government both in Church and State as it was then established That he knew the Principles of the Church of England were for Monarchy and that the Members of it had shewed themselves good and Loyal Subjects therefore he would always take care to defend and support it I know said he that the Laws of England are sufficient to make the King as great a Monarch as I can wish and as I shall never depart from the just Rights and Prerogatives of the Crown so I shall never invade any man's Property I have often adventured my Life heretofore in Defence of this Nation and I shall still go as far as any Man in preserving it in all its just Rights and Liberties These were Solemn Promises to the performance whereof not only his Honour of which he boasted that he never had broken his Word with any Man but his real Interest should have obliged him I cannot omit that Observation of Job Chap. 34. ver 30. That God in his righteous Judgment will not that an Hypocrite Reign lest the People be ensnared These were Divine Sentences in the King's Lips but his Actions declared what was in his Heart namely to pull down and destroy all that he had promised to preserve and defend with his very Life to which the hope of salvation being then a resolved Papist so pre-ingaged him that in the perswasion wherein he then was his conscience must tell him he must perish eternally if he should perform his promises God only knows how to treat with such Princes It was not in the wisdom or power of men to confine such an Angel of light for if by a Treaty the late King under the circumstances to which he was reduced should have yielded to all the demands of his Subjects his Allies abroad might whenever they had an opportunity to assist him have made all void on pretence that he was under force all the time of such Treaty And if he had been re-admitted with that freedom honor and power which became a King of England who could not foresee that as long as the Jesuits had the guidance of his Conscience he would a second time have renewed his Promises of establishing our Religion Laws and Liberties only until he found another opportunity to destroy them to which the Name of a King and his Presence among his Subjects and the Subtil Counsels and Devilish Arts of the Jesuits the Credulity of some and the Discontents of many others for under the best Governments there will be Malecontents would have made plausible pretences and arguments for disturbance of our peace which our too powerful Neighbour the King of France hath for a long time had incouragement from the late King to do and only waited for an opportunity and now declares he will endeavour to effect by open War. Thus Coleman's Letter to Sir William Throgmorton Febr. 1. 1673 / 4. You well know that when the Duke comes to be Master of our Affairs the King of France will have reason to promise himself all things that he can desire And in another Letter to L' Cheese that his Royal Highness was convinced that his interest and the King of France 's were the same and if his Royal Highness would endeavour to dissolve
themselves As many Voices do make a Harmony which no one could do This Argument is like that of Socrates who would perswade Alcibiades to adventure himself in the Assembly of the People saying If thou dost contemn them singly thou need'st not to fear them altogether But seeing Empire doth consist in the Subjects Concessions of Non-resistance and of their Strength and Wealth at the dispose of the Emperour these are the Seeds of Majesty which lying hid and dispersed in single persons do by a combination and agreement exert themselves and produce a Majesty I cannot conceive how a wise Christian King can delight to hear what some Flatterers may suggest That God hath transferred on him that right of Government which by the Creation was only in himself and thence infer such things as rob God of his Authority to exalt the King and would make men doubt whether God had not abdicated all his Authority and left it to Kings and Kings conceive that they may do what they please impunely But suppose a company of Banditti grow so numerous as to set up an Emperour of their own and depose their lawful Prince doth God transfer the Majesty of this on that other And the most of Kings owe their rise to Conquests And it is not impossible but that the Father of a Family may have so numerous an Off-spring that they may constitute their common Father to be their King Doth this act transfer such a Majesty on him or if be appoint a Successour or the several Families set up another than such a one as was appointed by him perhaps a younger Brother or a Servant which is not against any Law of Nature doth God bestow such a Majesty on the Successour This is such a Metempsychosis of Majesty as no wise man will desire a farther disproof of seeing that whensoever a Kingdom doth become void it is left to the People to confer the Government by their consent and submission to his Successour So that this Author had no such notion of a Divine Majesty residing in the person of a King as imprinted an indelible Character on him which could not by any Vice or Miscariage of his own be obliterated Such Polititians as write of the Majesty of Governours do distinguish it into real and personal and affirm the real Majesty to be in the People who had the power to constitute what form of Government they pleased whether Monarchy or any other and in case the Governours in the Form constituted do fail of Heirs or Successours the restoring of the Government revolves on the Community What is held on Condition may be forfeited and on the Forfeiture returns to them that gave it Those Soveraigns that are limited by Law and have not the whole Legislative Power but are bound by Oaths to govern according to Law may forfeit Tyranni in Exertitio do decidere Jure suo Hereditario And if a King of England who hath Regnum Pactionatum makes himself an Absolute Prince he makes himself no King of England because he alters the Species of Government Puffendorph de Jure Naturae c. p. 1008. But this Sanctity none but such as are Absolute Kings do enjoy not such as are under the Power of the People nor such as desert the Government or abdicate the Kingdom against whom when they act things very injurious whatever is lawful against a private person is lawful against them As also if a King that is constituted by his People would alienate his Kingdom or alter the Form of Government it is evident that he not only cannot do it but if he continue to effect it by force the People may resist him by force Another difficult question is what is and what is not lawful in case of an unlawful Invasion Here observe that the Invasion by the Prince of Orange was not as to him unlawful and therefore much more may be due to him than to unlawful Invadors What obligation may the commands of such have being in possession of the Kingdom because force may compel a necessity of external Obedience but not of such an obligation of Conscience that if the Subject obey not he shall be guilty of Sin in this Case to avoid a greater evil a man may be by force constrained to do what else he would abhor which if we can by any means we ought to avoid But what if the Invador having by force and evil arts got the possession yet pretends he hath a right to it and behaves himself as a good Prince in this case it seems very probable that he who is thus in possession ought to be accounted a lawful Prince as long as there is no other that can challenge a better right for this is agreeable to reason Where the power of the Possessour doth prevail and he behaves himself as a good Prince every man should rather regard the publick Welfare rather than expose it to perpetual Troubles and Revolutions for the sake of an uncertain Governour therefore when the People give consent to such an Invader at least tacitly they are really bound to yeild them Obedience for thus it is known the first Caesars obtained the Empire yet St. Paul Rom. 13. attributes a lawful Authority 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to them and that we ought to obey them for Conscience sake And our Saviour commands us to give unto Caesar the things that are Caesar 's when none else could claim a better right And the Senate and People of Rome had deserted their ancient right for fear and want of strength than as allowing that Dominion To which purpose was that Statute of Henry the 7th which provided that none that obeyed the King de facto in being should be for that cause molested or troubled by any process of Law or Act of Parliament And that of Nicetas Coniates is to the same purpose That neither the Emperour that deserts is to be sought nor he which is present to be expelled even as in an Hereditary Kingdom where there are two or more Competitors while the Contest depends and is not determined by Treaty or Arms it is most safe to obey him that is in possession To this also agrees that Defence of Cassius that sided with Niger against Severus as Zephiline Epit. Dionis and Zonarus Tom. 2. relate it I neither knew you nor Niger but being found in those parts did not oppose you but Julian and seeing I endeavoured the same thing as you did I have not offended you no not in this that I did not afterward come over to you for neither would you have any of your Friends to go over to him But what is to be done when any one usurps the right of a lawful Prince that is expelled What shall a good Subject do as long as the lawful Prince is in being to whom he seems to owe Obedience In this case it is determinable that matters may be reduced to such a pass that it may not only be lawful but a duty to
Riot hath power to suppress the Riotous persons so hath every private person against such persons as assault him contrary to the Law and a fortiori much more a Community of Lords and Commons against an Army not qualified according to Law. Mr. Sheringham who most rationally defended the Power of our Kings doth grant That those Laws which are made for the benefit of the Prince and People are fundamental and cannot be altered without the Ruin of the whole Building if therefore any Law or Declaration in favour of the Prince against the People or of the People against the Prince shall be made it destroys the fundamental Laws and is invalid Among the Laws of King Edward c. 17. De Regis Officio The Liberties of the People being mentioned it is said That the King is constituted for the preservation of them which if he do not neo nomen Regis in eo constabit he shall not retain the Name of a King And Bracton says l. 2. c. 24. Est enim Corona Regis facere Justitiam Judicium pacem tenere sine quibus consistere non potest nec tenere i. e. The Crown of the King is to do Justice and Judgment to preserve Peace without which he cannot subsist and to this purpose is that which Matthew Paris mentioneth fol. 563. of the London Edition Comites Cestriae Gladium Sancti Edwardi qui Curtain dicitur ante regem bauclantes in signum quod Comes Palatinus regem si oberret habet de jure potestatem coercendi That the Earls of Chester carried a Sword which was called Curtain before the King to signifie that when the King did err that Earl had a Power to restrain him and that Parliament that deposed Richard the 2d did refer to a known Statute which they told him was not long since put in practice whereby it was provided That if the King through a foolish Obstinacy and contempt of his People or any other irregular way should alienate himself from his People and would not govern by the Laws of his Kingdom made by the Lords of the Kingdom but should exercise his own Will from thenceforth it was lawful for them with the consent of the People to depose him from the Crown Which Law was not denied nor indeed is it extant totidem verbis though it be implied in the Charter of King John where Liberty was granted the Lords and Commons in such cases to seize his Dominions and only to take care of the Persons of the King and Queen in a private Capacity And by the 24th Article against that King it was alledged That he had caused the Records and Rolls concerning the State of the Government to be erazed and embezelled to the great detriment of the People and disherison of the Crown And the Author of the Mirror p. 8. speaking of the rise of our Monarchy says That when 40 Princes chose one King to Reign over them to govern the People of God and to maintain the Christian Faith and defend their Goods and Persons in quiet by the rules of Right and to be obedient to the rules of Right if he did not so he should loose the Name of a King. These things are sufficient to prove an Original Contract so fundamental that no future Statute can abrogate it For the Common-wealth is still in the condition of a Minor that cannot be forced to stand to Laws made against its own benefit And Constantinus Leo in the Bizantine History says That the end of a King is the general good which if he perform not be is but the counterfeit of a King And Theodosius Junior in the Institute l. 1. Titul 24. says The Prince is bound to the Laws on which his Authority depends and to the Laws he ought to submit And submitted they have not only since the Norman Kings came to the Crown but long before as hath been shewn which Oaths do as much bind the Consciences of the Kings as of the People and so it hath and must be acknowledged notwithstanding any Dispensation of the Pope to the contrary it was a good King that said He shall not ascend to God's Holy Hill that keepeth not his Oath and Promises For by an Oath Gods Honour is given as an Hostage for the performance and though a King were surprised in giving such an Oath as Joshua was by the Gibeonites yet is he bound to the performance and so it seems are his Successors for when Saul acted contrary to the Oath of Joshua God avenged it on him 2 Sam. 21 12. Old Fleta speaking of the King's Oath says Ipse ad hoc specialiter ex virtute Sacramenti obligatur ideo Corona insignitur ut per judicia populum sibi commissum regat Tho. Walsingham's Hist Angl. p. 193. relates the Coronation of Richard the 2d that the Archbishop with the Marshal of England going before him declares to the People from one part of the Scaffolds to another that the King had taken the Oath and asks them if they would consent to have him their King and liege-Liege-Lord to which they Answer they would the breaking this Oath was one great Article against him And 15 of Edw. 3d Stat. 1. We considering how by a Bond of our Oath we be bound to the observance and defence of the Laws and Customs of the Realm and in the 20th of Edw. 3d 't is expressed more largely We perceiving that the Law of the Land which we by our Oath be bound to maintain is the less well kept and the Execution of the same disturbed we greatly moved in Conscience in this matter desiring as much for the Pleasure of God and Ease of our Subjects as to save our Conscience and to keep our said Oath the like is in the Statute of Provisors so in 3. Rich. 2. The King says he was bound by Oath to pass a new Bill brought to him against Extortion 6. Hen. 6. c. 5. By reason of our Regality we be bounden to the safeguard of our Kingdom So that how light soever the late King esteemed his Coronation Oath these ancient Kings in those dark times of Popery thought themselves strictly bound to the performance of them and the Nobles did retain so much Power in their hands as to enforce their Kings to the observation of them King James told his Parliament March 21. 1609. That the King is bound by a double Oath to preserve the Laws tacitly as being King and so bound to protect his People and the Laws and expresly by his Coronation Oath So as every just King is bound to observe that Paction made with his People by his Laws framing the Government thereunto and a King leaves to be a King and degenerates into a Tyrant as soon as he leaves off to govern by Law in which case the King's Conscience may speak to him as the poor Woman to Philip of Macedon either govern according to Law or cease to be King. And elsewhere he said If he should not keep
the Laws to which he was Sworn he should be Perjured And by what reason can a man be obliged to observe his Oath to a person that being mutual obliged to him hath notoriously violated his Oath and becomes a perjur'd Person it is well resolved by Amesius de Juramento l. 4. c. 22. Quum aufertur ratio Juramenti Juramentum cessat ratione eventus Qui easus est eorum qui Juraverunt se obedituros domino aut prinoipi alieui qui postea cessat esse talis When the reason of an Oath doth cease the obligation of the Oath ceaseth also by reason of the event which is the case of such who have sworn to obey a Lord or Prince who afterward ceaseth to be so King John's Confirmation of an Original Contract Anno 1214. upon granting the great Charter and that of the Forest it was enacted at Running-Mead That 25 Barons should be elected as Conservators of the Liberties thereby granted who upon Violation of them might no redress being made within 40 days after notice enforce the King by seizing his Castles and Lands and as a Security the four chief Captains of the Castles of Northampton Kenelworth Nottingham and Scarborough were sworn to the Barons and that none should be placed in them but such as the Barons thought to be faithful and also the Castles of Rochester and others which of right belonged to the Archbishop of Canterbury were delivered up and others to the Barons But the King by help of some Forreigners regain'd them all and was Master of all England except the City of London whose Suburbs he burnt And then the Bishops and Barons swore at St. Edmonds on the high Altar That if King John did not observe his Grants they would compel him to it by withholding their Allegiance and seizing his Castles and when the King would not restore their Liberties and Properties they raise an Army under Robert Fitz-Walker and regain all their Castles enter London and resolved never to desist until their Charters were better secured The King being generally forsaken having not above seven Knights with him whereas the Barons and Knights were reckoned 2000. besides Esquires of good Note He sent to the King of Morocco offering the Kingdom to him who having enquired into the difference between the King and his People despised the offer as Matthew Paris relates it He offered it also to Pope Innocent to be made Tributary to him if he would excommunicate the Archbishop of Canterbury and the Barons that he might be revenged on them all which notwithstanding they maintain the War and they elect Lewis of France for their King and their Actions were approved by the Peers of France assembled at Lyons I have read that in the Clause of the Charter confirm'd by H. 3. it was provided that if the King should invade those Rights it was lawful for the Kingdom to rise against him and do him what injury they could as owing him no Allegiance And much to this purpose is quoted out of King John's Charter in these words Et illi Barones cum communa totius terrae destringent gravabunt nos modis omnibus quibus poterint scilicet per captionem Castrorum terrarum possessionem aliis modis donec fuerit emandatum secundum arbitrium eorum And the practice of the Nobles and Commons in those days do evidence that they had some such Grants from their Kings for their justification and perhaps much more then doth now appear for it was made an Article against Richard the Second that he had erazed and imbezled the Records to the great dammage of the People and the disinherison of the Crown But this King Henry the Third upon a grant of the thirtieth part of his Subjects Goods ratified their Charters and Swore to preserve them inviolably as he was a Man a Christian and a King crowned and anointed and the Archbishop of Canterbury with the other Bishops denounced a Sentence of Excommunication against all such as should invalidate the Priviledges granted by the Charters throwing down on the ground the lighted Candles which were in their hands and saying So let every one who incurs this Sentence be extinct in Hell. And here I cannot forbear to repeat that Article of the Magna Charta which yet appears in the original Grant or Confirmation which the Bishop of Salisbury says he hath in his own hands under the great Seal See the Bishop of Sarum 's Pastoral Letter p. 27. whereby it is provided That in case the King should violate any part of the Charter and should refuse to rectifie what be had done amiss it should be lawful for the Barons and the whole People of England to distress him by all the ways they could think on such as the seizing on his Castles Lands and Possessions provision being only made for the safety of the persons of the King and Queen and their Children Now this being a fundamental Law and Contract and never repealed may abundantly justifie all that hath been done by the People of England in the late Revolution For whereas it is objected that the late Laws and Declaration That it is not lawful on any pretence whatsoever to take up Arms and that it is unlawful for both Houses of Parliament to levy War offensive or defensive against the King and the Recognition made the first of King James do supersede all former Laws I answer That such fundamental Laws cannot be abrogated without a particular recital of them and an express abrogation so that those Laws mentioned in the Charters for the restraint of illegal Actions and those that gave the Heretochs the power of the Militia and Officers by Sea and Land not being particularly repealed cannot be abrogated by those hasty Acts which have been since made for though the Militia be by those hasty Acts granted to the King yet it must be understood that they were so granted in trust and confidence that it should be imployed for the protection and safety of the People and Sir Edward Cooke in his Institutes on Magna Charta alloweth that the King hath no power over the Militia to Muster his Subjects but only in such cases and in such manner as the Parliament by special Acts hath prescribed and therefore those Heretochs or Lord-Lieutenants which had the power of the Militia for the word Heretoch by Selden in his Titles of Honour p. 603. is compounded of Here which signifies Exercitus and Togen ducere signifies Dux exercitus sive navalis sive terrestris and signifies a Commander of an Army by Sea or Land. See Spelman p. 232 348. That the Sheriffs of every County who had the Posse Comitatus or the power of raising the Militia were to be chosen by the People in the County-Courts is evident by express words of King Edward the Confessor's Laws Cap. de Herotochiis as Lambard's Arch. p. 135. and Sir Edward Cooke 3 Edw. 3. c. 17 19. And by the Articles against Richard the Second
charging him that he put out divers Sheriffs elected by the Freeholders and put in his own Favourites subverting the Laws contrary to his own Oath and Honor. And Anno 1261. the Barons by vertue of an Ordinance of Parliament made at Oxford 45. H. 3. made Sheriffs in divers Counties and called them Guardians of the Counties discharging them whom the King had made Novos repulere virilitur Vicecomites And in the 28th of Edw. 1. ch the King granteth to the People as of right that they shall have the Election of the Sheriffs And ch 13. for as much as the King hath granted to the Commons the Election of Sheriffs the King wills that they shall chuse such Sheriffs that shall not charge them c. And Sir Edward Cooke on Magna Charta proves p. 147. c. that the right of electing Sheriffs was anciently in the People as it was and is in London York Bristol Glocester and in all great Cities which are Counties and in Middlesex And generally all the great Officers of the Kingdom were chosen in Parliament So were the Heretoches or Lord-Lieutenants in every County chosen by a full Folkemote in every County of the Realm And it is evident throughout our Histories that the Kings of England never did or could raise or maintain a War without the consent and aid of their Parliaments Anno 1242. Henry the Third summoned a Parliament requiring their aid for a War against France to which he had sworn for recovering of his Rights but they answered That they would grant no Aids nor make any War till the Truce with France was expired and though he closeted the Nobles one by one and by persuasions and threats sought to ingage them yet they answered That they admired that without their Counsel and Consent he would undertake so difficult business So that unless the Nation by their late Acts did intend to destroy all their ancient Rights and Liberties we cannot suppose it to be their sence but that their General Rules might admit of some Exceptions and Restraints Suppose a King persuaded by Evil Counsellors and detained by them do break his Solemn Oaths raiseth a War against his Kingdom for subversion of the Laws and in defence of such Counsellors as persuaded him thereunto do appear in their Army where his person is in danger whether may the Subjects raise Arms and fight against such an Army wherein the King is personally ingaged Answ This was the Case of Henry the Third who with his Son Prince Edward was taken Prisoner in the Battel of Lewis by the Earl of Leicester who to countenance his designs carried him about as a Prisoner whereupon the Nobles raised an Army and in the Battel of Evesham slew the Earl and the King himself was wounded nigh to death as Matth. Paris relates yet in a Parliament at Winchester Anno 1266. the Earl and his Army were adjudged Traytors and Rebels and the Nobles and their Army were rewarded If the Owner of a Park grant to a Keeper a Lease thereof for Life the Condition though it be not express'd yet by Law is this that if he suffer the Deer to be killed and destroyed through his neglect or their Pasture eaten up he forfeiteth his Grant in the judgment of the Common Law. And though such a Keeper to preserve his Deer do wound or kill the Robber he is held guiltless by a Statute of 21 E. 1. as Rastal of Forrests 19. and Stamford's Pleas l. 1. c. 5 6. Doth the Law take care for Beasts and not for Subjects and are not these much better than they or their Goods Liberties and Properties than the Grass for Deer Some Kings have been so hardy as to ingage themselves in single Tilts and Combats with their Subjects to shew their Valor as Henry the Eighth did in the sixteenth Year of his Reign against the Earl of Suffolk wherein the King was like to be slain and Henry the Second of France Anno 1559. was slain in a Just by the Earl of Montgomery his Subject whose Spear pierced through his Eye to the Brain but these being provoked thereunto by their Kings were not adjudged Traytors having no design of evil against their Kings So that if a Prince voluntary ingage himself in an unnecessary Combate with his Subjects and they in defence of their Laws Liberties and Lives do chance not intentionally wound or slay their Prince I see not but they are as excusable as the others the blame lyeth on the wilful assaulter and not on them that defend themselves Charles the First King of France fell distracted in the head of his Army and slew some of his Souldiers whereupon they disarmed him and kept him close prisoner as a Bedlam till he was recovered nor were any questioned as Traytors for so doing The Case seems not much unlike to that of Walter Terril who shooting at a Deer by a a casual glance of the Arrow slew the King William Rufus Thus in cases of Manslaughter when one kills another se defendendo a Pardon by Law is granted of course It appears that David offered to assist the King of Achish in his Wars against Saul wherein Saul was slain by which it may also appear that an oppressed Subject may assist a Prince that gives him protection in a lawful War against his oppressing Soveraign though the Soveraigns life be in hazard of being destroyed in that War. This will appear in the Case of Saul and David Saul was Father-in-Law to David who was appointed by God to succeed him in due time for which cause among others it is probable that Saul hated him especially because the People extolled David above him Saul hath slain his thousands and David his ten thousands and sought occasion to slay him and to make void his Right of Succession of the Truth whereof David being informed by Jonathan he got about four hundred Men as a Life Guard seeing he could not confide in the Promises of Saul and Abiathar the high Priest complained of the Tyranny of Saul that he had commanded the Priests of God to be slain upon the Accusation of Doeg and David entertains Abiathar and such as fled to him for refuge 1 Sam. 22.23 Abide thou with me fear not for he that seeketh thy life seeketh my life but with me thou shalt be in safety Hereupon he with his Men got into Keilah and Saul raiseth his People to assault him but David enquireth of the Lord intending no doubt to make resistance against Saul whether Saul would come against him and whether the Men of Keilah would deliver him up to Saul and being answered that they would he leaves Keilah and flies into the Mountains where doubtless if Saul had assaulted him he would have defended himself but being too weak Saul's Men being more than six to one he roves up and down as he could and to shew that he only sought the defence of his own Life not the destruction of Saul's he spared it twice when
he was a very wise man and well acquainted with the Constitution of the Roman Government for by the Lew Regia granted by the Senate to Augustus it was declared Quicquid per Epistolum statuit cognoscons decrevit aut pro edictum perpalaâ—it Lâ—â— esto And Cicero De Legibus Regio Imperio duo sunto Militiae summum jus habento nemini parento So Dion of Augustus That he was free and of Absolute Authority both over himself and over the Laws for the Emperour is a Living Law and commands as much by word as the Law doth by writing But we are not under the Laws of the Romans Turks or Tartars And if God should for our sins now or had he in the late King's raign permitted the French King to invade us with his Dragoons I doubt not but we might Vim vi repellere resist his Tyranny and Usurpation And as to the Protestants under Q. Mary none of them were put to death until she had procured a Parliament to make Laws against them and then it was their Duty to submit And we are bound with all thankfulness to bless God who prevented the late King from procuring such a Parliament and such Sanguinary Laws which he had well nigh effected to the Extirpation of our Religion Laws and Liberties and fastning those heavy Yoaks of Popery and Slavery on us and the Posterities that were to succeed us This was the Lord's doing and as it is marvellous in our eyes so it ought with all humble thankfulness to be acknowledg'd and accepted But it is objected from Sir E. Cooke That the Regal Authority is so inherent in the person of the King that no separation can be made so that as long as he lives our Allegiance is due to him and to no other Ans Whatever that great Lawyer says the Law says otherwise for even while a rightful Prince is in possession the Law makes a difference between his private and his publick Capacity and as while the King acts by the Laws we owe him our Obedience so in those things wherein he acts arbitrarily by his own Will contrary to Law our Allegiance is not due in such cases Object We are sworn to the King and to his lawful Heirs and Successors now as the King while he lives can have no Heir to whom in his life time we owe our sworn Allegiance so when he dies there can be no lawful Successor but the Heir if there be any that survives Ans In the sence of the Oath there can be no Heir till the death of the King and in our case there is no obligation due from our Oaths to the Heir until he or she be actually King or Queen of England as our Law expounds itself And when the King dies in a natural or civil and political sence by deserting his Government and going over to an avowed Enemy to the Nation their Religion and Liberties or hath submitted his Kingdom to the Usurpations of the Pope and so renders himself not only as useless as if he were buried in a Cloyster but as destructive as an open Enemy there is in such cases a Demise made of the Crown and it descends to the Heir 2ly In this case if he that is not the next Heir by Bloud be by the unanimous consent of the people as well as by the good liking of the lawful Heir chosen and admitted into the actual possession of the Government all Rights that were due to the Heir become due to such a Successor in the eye of the Law So Bracton determins it Heredis verbo omnes significari successores si verbis non sint expressi So Littleton in his Tenures Title of Homage Sect. 85. Allegiance is due to every one in possession that becomes King and to no other Judge Popham in his Reports f. 16 17. mentions a Case to this purpose Richard the Third granted certain Priviledges to the City of Glocester with a Salvo to his Heirs in Q. Elizabeth's reign it was questioned whether the Salvo did pass to her she being not Heir to King Richard but Successor onely and all the Judges did resolve that the Salvo did pass to the Queen Grotius l. 2. c. 9. s 8 9. If a King dye without Issue in an Hereditary Kingdom the Empire remains in the Body of the People who may create another and limit him the People being sui Juris Now in such a case a Convention of the People duly assembled in their Representatives is the most August Assembly even beyond a Parliament for to be able to make a King is more than to be a King and as the Original of Majesty is fundamentally in the people a Parliament hath a great dependance on the King being his Subjects the Convention is Absolute and Independent it makes bounds for the Monarch and whereas one Parliament may repeal the Acts of another a Parliament cannot alter the fundamental Constitutions of a Convention when it first constitutes a Monarchy And this hath been the most ancient manner in cases of great Necessity the people assembled in a Folke mote in the several Counties and chose their Wittena Gemote or Meeting of Wisemen Object The King was forced to leave his Kingdom his Subjects failing to assist him against the Invaders Ans The question that comes here to be considered iâ— Whether the Kings departure were voluntary or forced It is certain that the actions of reasonable men are generally influenced by the proposed end for Omnes beati esse volunt nec possunt velle contrarium as all men desire to be happy so they cannot will any thing which they conceive to have a tendency to the contrary These two are generally the Originals of Humane actions viz. Necessity and Choice and Necessity is either that which we draw on ourselves or is imposed on us by others Pharaoh's Oppression of Israel was at first voluntary while he hardned his heart against the Command of God but when God gave him up to that hardness of heart though the execution of what he did became necessary yet the principle that led him to it was voluntarily espoused 'T is a Rule given by Rainaudus a good Casuist Modo preluceat notitia absit coactio intervenit voluntarium Where the understanding is satisfied concerning any design and there be no force to withhold the prosecution of it there our actions are voluntary The end which the late King had long endeavoured and with too much success had by many means well nigh effected was to make Popery the established Religion of the Nation He declared his desire that all his Subjects were of the same perswasion with himself and his actions tended to make them such and doubtless he was not willing to have all his labours frustrated when therefore he was reduced to some straits being such as he wilfully brought on himself he could not properly be said to act by constraint But this was not the King's case that he did deliberate whether to go
believe the French League for introducing of Popery and Arbitrary Government is worse than an Infidel Object But the King forsook the Land because his Subjects had first forsaken him contrary to their Duty Ans The peoples duty was to be governed according to the Law which is the measure of their Obedience and they being sensible that the King's design was to subvert the Laws and to that end had armed Irish and English Papists contrary to Law they could not joyn with such men in such a design The Papists themselves alway opposed their Kings in the reigns of King John Henry the Third and others that would have submitted the Kingdom to the Pope And if the Subjects had fought for the King in this Cause they had fought for the Pope and for Slavery against the Crown and Dignity of the King against their Religion and Liberties and against the Oaths of Supremacy and Allegiance which bound them pro posse as far as they were able to resist the Usurpations of the Pope by what means soever they should be introduced In brief let this Dilemma be considered either the King was forced to flye or else he deserted the Government willingly if he was forced then there was a Conquest and the Conqueror had right to what by lawful Arms he did obtain if he fled willingly then there was a renouncing of the Government that is an Abdication and so the Crown became void and our Allegiance to the late King ceased Object But the Subjects of England entred into an Association with the Prince and though they fought not yet were in Arms. Ans The Magna Charta granted by King John as well as the Law of Nature and confirmed by many Parliaments doth warrant such an Association for preserving their Lives Laws and Liberties when they are in imminent danger and such was the Case of England at that time Object If Subjects have Power to resist their Princes why then did the Primitive Martyrs cast away their Lives died Abner as a fool dieth Ans They had no Laws for establishing their Religion no Votes in choosing the Senators the Laws were against them and their Religion obliged them to submit to the present Powers who had an Absolute Command over them and if these Christians had such Oaths from their Emperors as we have it might be well questioned whether they would not have held him to the performance Object If we may not resist a King acting contrary to the Laws of God and Nature then neither when he acts contrary to the Laws of the Land. Answ The Laws of the Land do grant to Subjects more particular Rights and Liberties than the Law of God doth and the Law of God doth not destroy the Civil Constitutions of a Land which the People may claim and defend it is therefore observable that Queen Mary did not put any to Death for their Religion untill she had procured a Parliament that made void the Laws made on behalf of the Protestants and had reinforced the ancient Laws which were made in times of Popery and procured new ones against Protestants as Hereticks It is a strange account which Ecclesiastical Histories gives of the Primitive Christians that they were Candidati Martyris offered themselves to their Persecutors not only when they were accused and brought before Magistrates but when the Inimicum vulgus invaded them and they might have resisted such as had no Authority against them it was a Rule with Tertul. Quodcunque non licet in Imperatorem nec in quenquam licet By which Rule it was as unlawful to resist a Robber or Murtherer as the Emperor and in his opinion if the Emperor had been a Christian he might not have resisted any violent person but he was a Montanist and had his Errors as in matters of Doctrine so also of Fact as in his Account that the number of Christians were sufficient to have vanquished the whole Roman Empire that it was not lawful to fly in times of Persecution to which end he wrote a Tract De fuga c. which was contrary to our Saviours direction to his Disciples Matth. 10.23 And in truth if it be not lawful to resist a Persecutor neither is it lawful to fly when we are summoned to appear before a persecuting Magistrate for that is determined to be a kind of Resistance But the true Cause of the Non-resistance of the Primitve Christians was that which Tertul. observes Nos externi sumus We are Aliens from the Common-wealth of Rome they had no Laws no Votes in choosing the Senators but were accounted of as Out laws and Enemies to the Government by their Religion it was with them as with such Protestants as live under the Tyranny of the Pope who being apprehended and cast into the Inquisition had neither Power nor Right to defend themselves but it was their duty to give Testimony to the Truth by laying down their Lives for it They were under an Arbitrary Power in the nature of Slaves and Vassels and lookt on as Enemies to the Roman State being of a Religion contrary to what was established but we are Freemen that have our Religion and Properties established by Law and such as act contrary to the Government resist the Ordinance of God and oppose it and may be resisted And the Oaths by which we are obliged bind us primarily to the Government and to the Governours for the sake thereof and if the Government be not Arbitrary neither is our Allegiance due to one that would govern Arbitrarily So that suffering for the Faith of Christ is a distinct thing from suffering for the frame of the Government for if I may not resist I am overcome and yield consent to a change of the Government i. e. to an Arbitrary and Illegal Power contrary to the Constitution under wich I live and so promote the ends of an Oppressing and Usurping Governour and I cannot expect with comfort a Reward from God for casting away my own Life and endangering the Lives of many others when a Government is duely established God approves of it as his Ordinance and the People ought by all lawful means to preserve it for the Gospel of Christ doth no more destroy the priviledges of the People than of the Prince but if the Prince would destroy the Rights of the People they may contest them for in vain are Laws made and Liberties granted if they may not be defended And this may serve to answer the Objection concerning the behaviour of the Primitive Christians who as Bishop Abbot observed when they were armed with publick Laws and Priviledges under Constantine did not submit as when they lived under Dioclesian and Licinius but fought in their own Defence and would rather kill than be killed From the Death of Nero the Christians until Constantines Reign thought it a great happiness to injoy their Religion with Persecution they served the present Emperours fought their Battles and took the Military Oaths though the Emperor made
to their Power and beyond it have endeavoured to depose any Prince whom they judge Heretical the not owning of the Pope's Supremacy is thought a sufficient cause for excommunicating first and then deposing such a Prince and incouraging the People to withdraw their Allegiance and take Arms against them witness the Bull of Pope Pius against Queen Eliz. and the approbation of that hellish Powder Plot against King James for the contrivance whereof Garnet was numbred among their Saints at Rome and the deposing of Kings and Emperors of the Romish Communion hath been often practised by the Pope in Germany France and other Countries on frivolous pretences as the History of former and later times doth abundantly manifest And our own Chronicles shew what was practised by the English Nation when it was wholly at the devotion of the Pope in deposing one King and choosing another And God forbid that any Protestant Nation should be guilty of such Principles or Practices as have been received and allowed of by the Romanists Our case is vastly different as is evident by the Declaration of the Lords and Commons the many Grievances therein mentioned and the occasion of a just War given to the present King reduced the late King who had wholly destroyed the Foundation and Species of the Government to desert the Nation and to fly to France for refuge leaving his People in Confusion and made it necessary for them to do what they have done to prevent their utter destruction by those Flames which he having kindled fled from them for his own security Nor can any Protestant Nation be scandalized at our Transactions they having done the same thing on a like occasion Thus the Swedes excluded Sigismond the Third and his Heirs for altering the established Religion by introducing Popery and sending his Son to be educated a Papist for violating his Oath altering the Laws raising Souldiers and exacting Money contrary to Law causing a Nobleman to be assassinated for diswading him from his illegal Practices punishing such as would not receive the Romish Religion and deserting his Country without consent of his People for which causes he was adjudged to have Abdicated his Kingdom and the Nation chose Charles Duke of Sudermannia to succeed him Christiern the Second King of Denmark was so dealt with by his People and what the Hollanders did against the King of Spain and the Scot against Queen Mary is generally known and neither of these can be scandalized at us who have acted more innocently than the best of them Object From the Act of 13 of Q. Eliz. which makes it high Treason during her Reign and forfeiture of Goods ever after in any wise to hold or affirm that an Act of Parliament is not of sufficient Force and Validity to limit and bind the Crown of this Realm and the descent limitation and inheritance thereof It is objected that this Act concerns not the present case seeing what is to be done for the descent and limitation of the Crown is to be done by an Act of Parliament but a Convention is no Parliament and that Act was made only to serve the present Interest of the Queen against the Claims of the Queen of Scots Answ That in the circumstances wherein we were left there was this Remedy left us and no other the late King having immediately before his departure destroyed the Writs for calling a Parliament though he had prepared the Elections for such a one as might serve his purpose And an extraordinary Distemper requires unusual Applications yet this was the most usual and proper means for what could heal our Distractions but an unanimous agreement of the People in choosing a Convention when a Parliament could not be had And who were more able or likely to consult for the common welfare than the Lords Spiritual and Temporal and the Representatives of the People duly Elected with whom the King having left them in Person left his Authority with them and they became as August an Assembly as ever any Senate of the Ancient Romans when the Empire became void who had the Power to create an Emperor which also had been often practised by the Ancient Britains Nor was it fit that the Nation should continue without a King least every Man should have done what seemed good in his own Eyes as when there was no King in Israel And though a Convention have not the formality of a Parliament yet that being not to be had it hath a greater Power than a Parliament because they act not as Subjects but a free People who may choose their King and make such Laws for Government as shall not be in the Power of the King and Parliament to dissolve without the Dissolution of the Government itself as when the Foundations are destroyed the Fabrick must fall nor was there any one to invalidate the Acts of a free Convention as the King in Parliament might do by his Negative Voice 2. And whereas it is objected that the Act of 13 Eliz. respected only the Title of that Queen and was made to serve the present turn this is contrary to the express Letter of the Act which provides that ever after it should be punishable with forfeiture of Goods in any wise to hold or affirm that an Act of Parliament was not of sufficient force c. So that this Act still continues in force as the reason of it doth viz. to prevent the dangerous disputes concerning the Succession Object But the Convention ought to have set the Crown on the right Heir as the most likely means to prevent all Disputes Answ Quod fieri non debuit factum valet That which ought not to be done in more peaceable times may be warrantably done in case of imminent danger and Necessitas cogit defendit The Affairs of the Nation were involved in so many Intricacies by reason of a Confederacy of the Popish Princes against the Protestants throughout all Europe and the delivering up of Ireland into the Possession of the Papists who also had the Command of the strength of England by Sea and Land that the Courage and Conduct of a Woman though never so well qualified could not be thought competent to wrestle with so many and great difficulties and who more fit to unite so Noble but distorted a Member as the Kingdom of England to the Body of the Protestants than he who by mutual Consent of the Princes of that perswasion was chosen to be their Head who also being of the Bloud Royal and having married the right Heir was by her consent and by the consent of the Princess Anne as well as by the unanimous consent of the Nation chosen to stand as a Skreen between them and the Fury of the French King to defend their Title to the Crown which he had so successfully recovered from a lost condition Or who so fit to wear the Crown as he that won it for himself and the Right Heirs when otherwise they might have
despaired of it It was doubtless a commendable action of the Men of Israel to rescue Jonathan from the Fury of his Father Saul who sought to destroy his life as well as to defeat David of the Crown to which God had appointed him to succeed And it is as commendable in our Nation to commit the defence of the Crown of England to that Heroick Person who hath so wonderfully restored it to the right Line And who can pretend any Injury is done in that case wherein all Parties that are concerned do expresly agree and acquiesce Object But this was not agreeable to the Declaration of the Prince of Orange at his first coming to England Ans 1. The Prince declared That he would refer all Matters in question to the Determination of a Parliament freely Elected which doubtless he would have done had the late King been as willing to confide in the good will of his own People as the Prince was but having not Confidence to abide the Decision of a Parliament he frustrated that end of the Prince Ans 2. One end of the Prince's Invasion was to vindicate the Title of his Lady and that which he also had to the Crown which being by the late King's rashness and precipitation made void it was necessarily devolved on the Convention to supply and in the circumstance wherein we were they could not do otherwise Object The Convention is no Parliament and therefore can make no Laws much less can it dispose of the Crown Ans Though the Convention want the formality of being called by the King 's Writ yet it hath the power and authority of a Parliament and in some cases greater as hath been shewn and may thus farther appear In the 36 of Edward the Third we have this Clause in the Statute That for maintenance of these Acts viz. Magna Charta and others relating thereunto for the Publick Good and for the redress of Publick Greivances which daily happen a Parliament shall be holden every year as was ordained by another Statute viz. 4 Edw. 3. c. 14. These Laws were never yet formally repealed and the reason of a Law continuing it is reason the Law should be still in force especially when it concerns our Magna Charta and other Statutes made to prevent the Mischiefs and Grievances which daily happen And Judge Vaghan in his Reports says That in cases which depend on fundamental Principles millions of Presidents to the contrary are to no purpose So that the neglect of observing such a fundamental Law as maintains our Magna Charta cannot make those Laws void In the Act for Triennial Parliaments made in the Reign of Charles the First it was provided That if the King should fail to call a Parliament according to those Statutes viz. 4 36 Edw. 3. The People should meet without any Writs at all and choose their Parliament-men This Triennial Act of Charles the First was repealed by another Act for Triennial Parliaments at the return of Charles the Second because it was thought that it intrenched on the King's Prerogative to which as the effect shews they were too much devoted wherein yet they took notice That because by ancient Statutes of the Realm made in the Reign of Edw. the Third Parliaments were to be held very often it was enacted That within three years after the determination of that present Parliament Parliaments should not be discontinued above three years at most and should be holden oftner if need required but were omitted from October 1685 to the time that the Convention meâ— i. e. above three years Now if ever there was need for calling a Parliament it was in the case of our late Revolution and seeing the late King did then refuse to call a Parliament it was necessary that the People should for the maintenance of our Magna Charta and other Statutes relating thereunto otherwise we had been left without a remedy in our greatest extremity therefore I conclude that the Convention had the power of a Parliament and from thence that by the Statute 13 Eliz. this present Parliament had the power of limiting the Descent of the Crown which they have devolved on the present King and Queen and that they are legally in the possession of it and all the Laws made by the present Parliament are obligatory to the Subjects Concerning the Declaration That it is not lawful on any pretence whatsoever to take Arms c. What provocations the late great Indignities which both the Royal Family and all Loyal Families had suffered in the late Rebellion I need not say and what opposition was made by some Parliament-men of both Houses at the passing of the Declaration and by what secret and unsuspected Arts and Insinuations they were moved to pass it but certainly if the effects of it had been foreseen and they had considered maturely what ill conclusions might be inferred from those premises such as the establishing an Arbitrary Power and ruling by a standing Army and destroying many wholsome and fundamental Laws they would never have contributed to the establishing of their own Slavery by a Law. Of this design the Parliament-men in both Houses became sensible And when in the thirteenth Session of the Parliament 1675 the like Declaration was required as a Test of all Parliament-men in either House and of all Officers of Church and State viz. I A. B. do declare That it is not lawful on any pretence whatsoever to take up Arms against the King c. there was great opposition made against it as a Bill of dangerous consequence insomuch as it was debated five several days in the House of Lords before it was committed to a Committee of the whole House The Lords that opposed it were of great Quality for Paris and Interests their Names as I find them were Buckingham Bridgewater Wâ—â—â—chester Salisbury Bedford Dorset Aliâ—bury Bristol Dembigh Pagist Hollis Peter Howard of Berks Mohun Stamford Hallifax Delamore Eâ—re Shaftsbury Clarendon Grey Roll Say and Seal Wharton Audley Fitzwater The Bill was intituled An Act to prevent the Dangers which may arise from Persons disaffected to the Government Divers amendments and alterations were proposed some would have it run thus in the second part of it I do abhor that Traiterous Position of taking Arms by the King's Authority against his person or against those that are Commissioned by him according to Law in time of Rebellion or War c. And as to the third part concerning Church-Government some would have it run thus I do swear not to endeavour by force or fraud to alter c. Others thus I do swear that I will not endeavour to alter the Protestant Religion now by Law established in the Church of England But the first part about taking up Arms was most hotly disputed And first they debated the Form whether there should be any Oath in the Bill Here they argued against the multiplying of Oaths and that there was really no Security to any State by
of him no Action lying against him 2. Omnipotence having power of Life and Death over all his Subjects whom he might command to serve in his Wars 3. Omniscience by his Intelligence at home and abroad 4. Majesty in that nothing could be taken from him and being an inviolable Majesty 5. Infinity and Ubiquity being present in all his Courts and in all places with all persons 6. Perpetuity in that the King never dies 7. Justice in that the King can do no wrong 8. Perfection in that he is never in Infancy hath no corruption of Bloud but the Crown assoils all Crimes 9. And Truth in that he cannot be estoped or presumed to declare a Falshood 10. And lastly Clemency in dispensing with Laws and pardoning Offenders Nor are some Statesmen much behind Hobs de Cive c. 12. s 1 2. says That the Rules of Good and Evil Just and Unjust Honest and Dishonest are the Civil Laws and therefore whatever the Legislator commands that is to be accounted good what he forbids is to be accounted evil and therefore it is a wicked Speech that Kings are not to be obeyed unless they command just things That before Empires were established there was no such thing as Just or Unjust whose natures are relative to a command and that every action is in its own nature indifferent and that it becomes Just or Unjust is from the Law of the Emperour wherefore those that are Emperours make things Just which they command to be done and those things Unjust which they forbid but private men that would assume to themselves the cognizance of Good and Evil do aspire to be like Kings which cannot consist with the safety of Government Such blasphemous and pestilential Doctrines would confound Heaven and Hell and turn Men into Devils and Order into Confusion The Doctrines of such as Sibthorp and Manwaring on these Principles might deserve to be consured for saying too little rather than too much and Nero Dioclesian and all other Tyrants be justified in all their Cruelties against innocent Christians This were not only to stamp a Divine Character on all Kings but to grant them a Divine Nature whose will is the only Law. Now although these venomous Eructations of an Atheistical Spirit have not poysoned many yet some have been infected by them and the Opinion of an Absolute and Arbitrary Power in the King which the late King challenged to himself prevailed with too many and the many Addresses made to him in compliance therewith and the Doctrine of Non-resistance and Passive Obedience made him presume of effecting that Design the effects whereof were seen and felt in this Nation and had not God in his great Mercy created an unexpected Deliverance for us our condition might by this time have been as deplorable as those of our Neighbouring Nations And now my Bretheren I hope that as none of you can approve of the King of France his Violation of his solemn and repeated Edicts on the behalf of his Protestant Subjects and of the barbarous Cruelty executed on his Loyal and Innocent Subjects to make them Proselites to his own Perswasion so neither can you approve of those Endeavours which tended to the same end which are less justifiable in our Case where the Protestant Religion is established by Law than where Popery was so settled Nor can I blame the Hollanders for shaking off that Iron Yoak which the House of Austria would have rivited on their Necks It will therefore be no disparagment to any person to pursue a melius Inquirendum on those Principles which he hath assumed I know my Bretheren will not account it so in any learned Papist or other Dissenter nor think it a shame to any such if upon better information he should alter his Judgment especially when he shall find that many serious learned and uninterested men do upon very probable Reasons differ from him I have therefore chosen to deal mostly on the Authorities of such Men being prevented by the Learned and Elegant Author of the Case of Allegiance in the Rhetorical and Rational part And having in some haste drawn up my former Treatise I desire the Reader to add these to their proper places And first to qualifie the extravagant Expressions of Finch I oppose the Judgment of Fortescue who fol. 25. says Ad hanc potestatem a populo effluxam Rex habet quo non licet ei alia potestate populo suo dominari principatu namque nedum Regali sed politico populo suo dominatur The King is to Govern his People by no other Power then that which flows from his People i. e. a Political not a Regal Power And p. 32. Ad tutelam legis subditorum Rex erectus est The King is set up for the Safeguard of his Subjects Laws To the Freaks of Hobs the Concessions of King Charles the First in answer to the nineteen Propositions may be a full Answer There being three kinds of Government Absolute Monarchy Aristocracy and Democracy and all having particular Conveniencies and Inconveniencies The Experience and Wisdom of your Ancestors hath so moulded this out of a mixture of those as to give this Kingdom the Conveniencies of all three without the Inconveniencies of any one as long as the Ballance hangs even between the three Estates and they run joyntly in their proper Channels The ill of Absolute Monarchy is Tyranny of Aristocracy Faction and Division of Democracy Tumults Violence and Licentiousness The good of Monarchy is Uniting a Nation under one Head the good of Aristocracy is the conjunction of Counsel in the ablest persons for the Publick good the good of Democracy is Liberty and the Courage and Industry which Liberty begets The Lords being trusted with Judicatory Power are an excellent Screen and Bank between the Prince and the People by just Judgment to preserve the Law therefore the Power legally placed in both Houses is more than sufficient to prevent and restrain the Power of Tyranny and the Power of punishing is already in your hands according to Law. That Kings are bound by the Coronation-Oath we have the Acknowledgement of Edward the Third c. 15. declaring thus in Parliament We considering that by the Bond of our Oath we be tied to the Observance and Defence of such Laws c. King James the First speaks to the same purpose as King Charles the First did If says he we take the People as one Body or Mass then as the Head is ordained for the Body and not the Body for the Head so must a Righteous King know himself to be ordained for his People and not his People for him For though a King and his People be Relata yet can he be no King if he want People and Subjects Having met with two Discourses pertinent to the present Occasion in the Writings of Pufendorf a learned Civilian I have thought fit to translate them the Books being rarely in the hands of my Brethren The one describes the Nature of
an Absolute and a Limited Monarchy the other shews what Obedience Subjects owe to such Princes as presume to Govern contrary to the Established Laws Pufendorf Politica Inculpata Printed 1679 p. 107 c. What temperaments ought to be used in Commonwealths and of what force they are will cleerly appear if the difference betwixt an Absolute Empire and that which is Limited by Laws be rightly understood which will be more requisite because of the pernicious Abuse of the word Absolute which not being rightly understood hath given an opportunity to wicked Princes to vex the Common-wealth and to commit many Wickednesses it being easie for Flatterers thereby to blow up the Ambition and other Vices of Princes viz. You are an Absolute Prince therefore you may do what you please oppress your Citizens and Neighbours that you may be called a great Man c. which Inferences seeing the worst of men think to be naturally deduced from that word therefore it is become detestable in free Cities yea some learned men are not ashamed to say that an Absolute Prince may do all that Nero did under the notion of an Absolute Prince Therefore as this is the chief Liberty of particular men that they can dispose of their own things and actions yet within the bounds of Nature and this Liberty agrees with all men that are not subject to another's Empire So when more men unite into a Civil Society it is necessary that this Liberty should exist in them as in a common Subject viz. a Liberty to determine of the means requisite to their own preservation by their own discretion which Liberty as it hath a right annexed to prescribe those means to the Subjects and to compel them to Obedience is called Empire whence in every Government there is an Absolute Empire viz. in Habit though not in Exercise for it is a contradiction to be subject to none and not to have a right to dispose of what is his own Now that Absolute Empire is not in it self unjust or intollerable may easily be known from the end of the Institution of Government for we do not therefore constitute Governments that men may act according to their Wills without regard to the Law of Nature but that provision may be made for the security of each particular by the united strength and wealth of all therefore to Govern Absolutely is nothing else but a power to prescribe to the Subjects such means for procuring the Publick welfare as shall seem to the Governour 's discretion most conducing thereunto and as present occasions may require Because the Judgment of one Man in discerning what is expedient for the Publick safety may be easily deceived and there is not in all men such soundness of mind as to be able to restrain their wills within reason in so great a Power therefore it seemed expedient to many People nor to commit such an Absolute Power to one Man's Judgment subject to Errours and prone to Vices but to prescribe to him a certain form and manner of Administring the Government on the observation of which Form they obliged themselves to obey Nor is there any injury done to Princes by this Limitation of the Empire because they are advanced to that Empire by the Peoples choice for if it seemed grievous to hold a Government and not to have power to Administer it Arbitrarily he might have refused it nor is it consistent with his Obligation upon such acceptance of the Government to endeavour afterwards by Fraud or Force to subvert the prescribed Form. That which some object is very frivolous viz. That whereas Kings are appointed by God who hath commanded them to Govern well to which end a fulness of Power is requisite and therefore it must be presumed that God hath given them a certain measure of Power which neither they ought to suffer nor the People require to be restrained even as a Husband cannot consent that his Wife should usurp a Power over him or prostitute herself Doctus spectare lacunar Doctus ad calices vigilanti stertere naso Now though it be granted that Empires are from God i. e. God hath ordained that Government should be so it is left to the Arbitriment of such Nations to whom God hath not prescribed a particular Form to appoint what Form of Government they approve of As for Example There is no Divine Precept that a free People being about to choose a King should choose a Sigismond rather than a Henry nor is there any particular Form of Government by Divine Right wherefore it is wholly in the will of the People whether they will erect an Absolute or a Limited Empire provided that the Limitations contain nothing impious or contrary to the ends of Government And that you may rightly understand by what kind of promise a Government ceaseth to be Absolute we must consider that a King accepting a Government binds himself to Administer it justly either by a general or special Promise which commonly is confirmed by Oath a general Promise may be either tacite or express a tacite Promise must be understood in the very acceptance of the Government though it be not expressed yet most frequently it is exprest an Oath and solemn Rights being added nor is it unusual in such Promises to describe the Office of a King by enumerating the chief parts viz. to defend the Good to punish the Evil to administer Justice c. Now such Promises no way diminish the Absoluteness of Government the King by them is obliged to Govern Justly but in what manner or what means he shall use is left to his discretion but a special Promise in which both the manner and the means are exprest is two-fold viz. the one binds only the Conscience of the King the other rendereth the Obedience of the Subjects conditional also An Example of the first sort is this If a King promise that he will not commit Offices to a certain sort of people that he will grant to none such priviledges as shall be burdensome to others that he will make no new Laws impose no new Tributes nor use forreign Souldiers When as yet there is no Council established which the King is bound to consult in cases wherein the safety of the Nation the Supreme Law may force him to recede from his promise here the Administration of the Government is restrained to certain Laws and when the King without necessity shall do against the Laws he is guilty of breach of Faith yet the People have no power to refuse the King's Commands or vacate his Acts for if the King say that the safety of the people necessitates him to extraordinary Actions and it must be presumed that he says true the Subjects have nothing to reply seeing they did not reserve to themselves the cognizance of such extraordinary Cases from whence it is clear that a people doth not sufficiently provide for themselves in giving the King a limited Empire unless there be a Council
constituted without whose consent the Prince alone cannot determine such cases But then the Empire is more strictly limited if it be expresly agreed between King and People that he shall govern according to certain fundamental Laws and in certain Cases consult with his People and Nobles and if he shall do otherwise that the people shall not be obliged to obey him having promised not an absolute but a legal Obedience yet by such fundamental Restrictions the Government is not maimed for all such Acts as can be performed in an absolute Empire may be performed in this nor in such a Government doth a King cease to be Supreme for it doth not follow that because he cannot do all things after his own will therefore he is not Supreme nor because I am not bound to obey him in all things therefore I am his Superior or Equal for Supreme and Absolute are not the same the one excludes a Supreme or Equal the other implies a power of doing all things at his own pleasure Pufendorf de Jure Nat. p. 1002. Quid si Princeps innocentem Civem c. What is to be done if a Prince endeavours in an hostile manner to destroy an innocent Subject who cannot fly from him Answ A man can hardly conceive how the same person can sustain the Name of a Prince and an Enemy or how he can expect to be accounted Holy whose Zeal inspires him to sacrifice an innocent Subject to his own lust He would conclude The true Case of England that if he whose Duty it is to protect another do unjustly become his enemy he doth thereby release that other of his obligation to him so far at least that he may without using force seek protection from another against his furious assaults And such defence is then more favourable when the number of those whom such a Prince seeks to destroy is very great But seeing that an instance of such a Prince as seeks to destroy his innocent Subjects only for his lust is very rare a greater difficulty doth arise what is to be done when a Prince under pretence of Law becomes injurious to his Subjects by imposing unjust Commands such as the Subject thinks he cannot obey without sin which he judgeth worse than death If the executing of a Command be such as I cannot perform without sin and no reason can be offered either from any fault of mine nor from the consideration of the public welfare why I should be constrained to execute such an act it plainly appears that the Prince makes it his business to destroy an innocent Subject for his own lust and bears an hostile intention against me whereby he acting not as a Prince but as an Enemy I may well suppose that he hath released my obligation to him as a Subject And afterward p. 1004 1005. speaking still of an absolute Prince he says what if he impose grievous Taxes without summoning a Council that may judge of the necessity of the good of the Common Weal do require them what if some eminent men be unjustly cut off on pretence of Plots against the Prince and by orderly process of Justice what if he keep not his promises or observe not the priviledges formerly granted if such an absolute Prince pretend great Crimes or the necessity of the Common Weal he shall be thought to have acted rightly for all priviledges have this exception unless the safety or necessity of the Common Weal do forbid them But there is a great difference between these two positions 1. That the People hath power to resist the Magistrates and reduce them to better order if the Magistrate doth not govern according to their pleasure And 2. That the People or particular persons have a right in the case of extreme danger as when the Prince becomes an Enemy to defend their safety against him thus when it is said that a people which hath yielded themselves to subjection hath not thereby lost the right of vindicating their liberty or safety this must be understood in no other sence than that a people may defend themselves against the extreme and unjust force of the Prince which defence if it succeed well it redeems their liberty because when the Prince becomes an enemy he himself seems to absolve his Subjects from their obligation to him so that the Subject is not bound to return again under his yoak no not altho' the Prince should change his mind There is no natural connexion between these two viz. An absolute power to procure the welfare of any one And an absolute power to destroy him at his pleasure nor can it be shewn how such a power in the Prince for the peace and security of the Subject can oblige them when the Prince acts contrary Therefore they infer amiss who say That because the supreme Prince is accountable only to God therefore it was the will of the people when they made themselves Subjects to deprive themselves of all right against their Prince as if he that defends his life against a violent assaulter doth thereby call him to judgment as if such defence were an act of Jurisdiction or as if besides the necessity of self-preservation some special Call were required in him who defends his life against an unjust force any more than he that seeks to depel hunger or thirst with Meat and Drink for as Grotius says rightly if they who first set up a supreme power over them should have been demanded whether they would impose this burden on themselves that they would rather chuse to die than in any case repel with Arms the unjust violence of their Superiors they would have answered that they never so intended for that were a greater mischief than what they sought to avoid by their consenting to live under Government before which time they lay open to injuries but so as they might resist them but by such a consent they should have bound themselves to endure all manner of injuries from him whom they themselves had armed without any resistance A hazardous fight is a less evil than a certain death p. 1008. Now none but absolute Princes enjoy such an inviolable sanctity not such as are any way obnoxious to the People nor such as depart from the Government and plainly relinquish the Kingdom whatsoever is lawful against a private person is lawful against a Prince when they practice grievous Injuries As also when a King seeks to alienate his Kingdom or change the manner of Governing it is then evident that he doth not only do a vain act but that if he persist to effect his designs by force the Subjects may oppose him by force And p. 40. of his Politica inculpata he resolves this Case That a person taken in War may promise to do for his liberty what his enemy hath power to force him to do viz. he may swear never to bear Arms against his conqueror this may be done without injury to his Prince because if the conqueror should destroy
him he could never do his Prince service but if his Prince and Country should be afterward invaded by the conqueror that not only seeks to take away that life and liberty which he granted him but the lives and liberties of his Relations it may be lawful to defend himself by Arms against his conqueror notwithstanding his Oath which implied an offensive taking of Arms only for to what purpose were life and liberty granted for the present time if it should not be lawful to defend it when assaulted afterward After all my weak endeavours in a business out of my sphere I have reason to doubt that I shall not prevail with such persons as have withstood the declared judgment of that great Council to whom the cognizance of this Affair doth properly belong whose ability and integrity they cannot reasonably suspect Yet with what submission would I become a Petitioner to my Superiors on behalf of such of my Brethren as are known to be zealous Protestants of Consciences truly tender that fear an Oath Men that have strict Principles of Loyalty of pious and peaceable Lives and Conversations and whose number in the Nation is so few that they cannot be suspected of designing any disturbance to the Government may not some time and forbearance be indulged to such what if until a Convocation be called that they may be better infomed If any sort of Men deserve their Princes favour these are they and I pray God it may not be granted to Men of worse Principles But Cynthius aurem vellit I shall rather therefore expostulate farther with my Brethren Why should you not submit your private Judgments to the publick Judgment of the Nation What better Counsel could you chuse than what the Nation did chuse or what better Methods could they take to prevent Confusion They did not drive away the King by fighting against him neither did they fight for him that was their declared Enemy They set the Crown on the nearest in the Royal Line such as love our Nation and Religion Suppose the King had been actually dead and the Crown as it ought had immediately descended to the present Queen who considering the great trouble of the Administration thereof in such difficult times should have desired that the Administration might be committed to the present King who is every way qualified for it could such a Meet-help have been denied What Monsters of Ingratitude then are they who when that Great Prince took his life in his hands and parted with all to save our lives and all that we have if we shall refuse him that honor which without his running so great a hazard for us could we in Duty have denied it him I cannot think that either the Soveraignty of the Prince or the Allegiance of the Subjects do stamp such an indelible Character on them as can by no means be erazed I am not bound to take base Metal for currant Coin tho' it have the Royal Stamp and if when a Subject of England by reason of Poverty or Oppression goeth into France for his safety and subsistance and be enfranchised there his Allegiance to his former Prince doth cease What disparity of reason is there if a King of England having by Male administration made his Government uneasie and impacticable flies to France and becomes uncapable of governing and protecting his People to affirm that his Soveraignty and his Subjects Allegiance do cease together Once more we cannot but acknowledge that such an exchange of Princes as the hand of God and the People have made is a Blessing and no Robbery why then should we halt any longer between two Opinions whom we ought to follow If our present Soveraigns give us Protection it will be justly expected that we pay them our Allegiance If any think that the late King hath still a right why do they not declare for him a Neutrality in this Case is intolerable for tho' some few may think themselves obliged in Conscience by their former Oaths yet many others out of fear or hopes of interest or perhaps out of a secret affection to Popery may refuse to pay their Obedience to the present Government and our Governors not being able to discern and judge of the Consciences of Men will take all such Recusants for Enemies and that they that are not with them are against them and only wait for an opportunity to do them mischief and the People will be apt to condemn them for Papists in Masquerade For as the Historian says Non caret scrupulo societatis occultae qui manifesto facinori obviari definit He gives a just suspicion of a secret Confederacy that neglects to obviate an apparent Danger And then though deliverance should come such men cannot expect to partake of it for the Controversie now to be decided is like that which Cicero observeth between the Romans and Carthaginians Non an uter imperaret sed an uter esset Not which of the Kings shall Reign but which shall be Ruined And it would be a very ill requital to expose him again to ruine who once exposed himself to ruine that he might save us But I would ask the men of interest Cui bono what benefit they think to reap by hovering thus in the Air if you are Protestants can you think that the late King will preserve you in your Religion Laws and Liberties if you are Papists can you so depend on his crazy Life as to think that a Protestant Prince would not succeed and then by how much the more troublesom and triumphant you have been for a short time by so much the more will you be fettered by severe and just Laws that you may be so no more In a word they that in this juncture of Affairs will declare themselves friends to neither party do deserve to be declared enemies to both And as Livy says of Metius Suffetius who doubting of the event of the War between the Romans and Albans hovered at a distance with his Army until the Romans had gotten the victory That they condemned him to be torn in pieces with wild Horses The like is observed of Pub. Servilius Medium se gerendo nec plebis vetuit odium nec apud patres gratiam iniit by behaving himself as a Neuter in the Civil Wars of Rome thinking to retain the favour of the Senate and People he incurred the displeasure of both whereas Appius tho' he had taken the contrary party upon a mistake patribus mire fuit gratus was graciously reconciled and accepted of the Senate Therefore I conclude with Suetonius Quando alterum habiturus es inimicum aut socium jacienda est alea alterutri adherendum Seeing you must have one to be your Friend or your Enemy come to a resolution and adhere to him whom you chuse to make your Friend If after all that has been said be not satisfactory as to the Case of Allegiance to their present Majesties and the Voting the Crown vacant pray see the
obey him that is by what means soever in possession for although his commands for want of a lawful Power have not in themselves the force of Obligation yet the lawful Prince not being able to exercise his Office it is the duty of a wise man so far to consult his own affairs as not to abandon the care of his life and fortunes which if he should vainly resist the Possessour and provoke his wrath he might do without any service to his Country or the ejected Prince And this some do infer from Rom. 13. where the Apostle injoyns Obedience not only for wrath i. e. not contumaciously and unnessarily to provoke the wrath of him that bears the Sword and therefore for our own preservation we ought to obey 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Powers that are in possession for seeing the Commonwealth cannot subsist without Government and the Possessour doth supply it no good Subject ought to give occasion of imbroyling the Nation by new troubles But this is the greatest scruple How the Subject can at the same time be obliged to the Prince de Facto and only in possession and to the Prince de Jure that is put out of possession when each seeketh the destruction of the other for although the Subject should swear Allegiance to the Prince in possession that can no more make void his Allegiance to his rightful Prince than the right of a Landlord can be made void by an agreement between his Tenant and a Robber to alienate the Landlord's right It is the opinion of Grotius l. 1. c. 4. s 15. That the Acts of him that exerciseth the power of the Empire have the vertue of obliging the Subject not by any authority of his own which is none but because it is probable that he who hath the right of Government had rather have the coommands of the Possessour's to be valid than that the Laws and Justice being suspended Confusion should follow See Grotius l. 2. c. 6. s 5. And it is to be presumed that every Prince hath so much Humanity that he would rather have his Subjects preserved by whatsoever means then by striving in vain and shewing their impotent affections out of season to be destroyed without any good effect Compare 2 Sam. 15.25 26. and 1 Kings 3.26 Thus in Livy The Romans being desired by the Petellines to give them assistance declared that they could not protect them who were so remote from them advising them to return home and consult for their own safety See also the Oration of Ferdinand flying out of Naples in Guittardin l. 1. near the end In this case nothing appears more probable than that if the lawful Prince be reduced to such a condition that he cannot afford such defence to his Subjects as he ought and the strength of his Subjects is not so great as to resist the Invader without evident destruction it may be presumed that the expelled Prince doth so long release the obligation of his Subjects until there be a way opened for the regaining his Kingdom and such as is necessary for their preservation and to avoid destruction and thus far only the Faith promised to the Invader seems to oblige So that this Faith is only temporary and expires when the lawful Prince hath an opportunity to recover his right And this Faith proceeds not from any intrinsical obligation of the Conscience which is under a present fear See Grotius l. 3. c. 7. s 6. Yet where an external Right and Dominion is admitted I see no cause why an external Obligation which doth not touch the Conscience may not also be admitted See 2 Kings 11. 2 Cron. 23. on which place Hobbs rightly observes that Athaliah was justly cast out of the Government not by any right that the Priest had as a Priest but in right of the Child that was to succeed as King. All which things being considered there is scarce any case wherein private men may oppose an unjust Possessour of an Empire especially considering what experience doth shew viz. that by such Conspiracies the Invader is more exasperated to oppress the people See Justine l. 16. c. 5. at the end The only thing considerable in this Discourse is whether such Subjects as have been deserted and left in confusion by their King are bound to reserve and pay their Allegiance to him in case he should return or whether they are bound by their former Oaths to assist him in the recovery of his Dominions To which I answer That the case seems much like as if a man living in a City among his innocent Neighbours should set his own House on fire intending thereby to destroy his Neighbours Houses and though he flyes for this fact yet still imploys his Agents and Boutefeus to continue that fire to an utter destruction of the whole City Whether are the Citizens in reason or conscience obliged to receive such an ill Neighbour or to confide in him The resolution of this case will be a good answer to the Doubt proposed of which I shall speak more hereafter As to the Original of the English Government it is evident that the Saxons who subdued the Britains were descended of the Germans who were governed by such Kings as had their Comites i. e. Counts or Companions who were to hear and determine the Grievances of the people complained of against their Kings and Edgar the First was chosen by such Counts to be their Monarch and to defend the Rights of the people as Wigoniensis p. 355. Nor can it be thought consistent with the Divine Goodness and Wisdom that he should ever set up such an order of Men their corruptions and passions being considered as should have an uncontrolable power to kill and destroy whom and as many as they pleased the end of Government being the Welfare of the people and the Magistrate being appointed to be the Minister of God for the peoples good Sir Orlando Bridgman in his Speech to the Grand Jury of Middlesex p. 12 13. says That the Crown of England is an Imperial Crown as depending on no Earthly Potentate but on God onely yet it is not so Absolute says he but that the Subjects as to their Properties Liberties and Laws have as good a right as the King. And Sir Tho. Smith Privy Counsellor to Q. Elizabeth distinguisheth between the Concessions which the King makes That they are either of Right or of Grace The way of asking any thing in Parliament is by Petition yet the Petition of Right in K. Charles the First shews that the people had a right to the things they petitioned for and they have undoubtedly a right to petition for the confirmation of their Rights when they have been invaded and hence it is that Bracton l. 1. c. 17. says Superiores habet Rex Deum legem per quam factus est Rex item Curiam suam Comites Barones qui cùm viderint Regem sine fraeno fraenum sibi ponere tenenter And Chancellour
it was in his power and was perswaded by his Men to have taken it away to whom he thus answers 1 Sam. 26.10 The Lord shall smite him or his day shall come to die or he shall descend into battle and perish i.e. he will assault me and may perish in that attempt which he wilfully attempting may be slain and then I shall be innocent but if I should slay him in cold Bloud and with an intention to destroy him I should be guilty nor was David affrighted from joyning himself with the King of Achish in a Battle against Saul in which Battle Saul perished which was more than his self-defence that so Saul's Army might be weakned or diverted from the pursuit of him Whence it follows that although we hold the King's Person be inviolable yet if he shall unjustly expose himself in a War to destroy his Subjects they may justly raise an Army to defend themselves and though the King should casually perish they are innocent The Blessing pronounc'd by Amasas on David shews Gods approbation of his intended Defence 1 Chron. 12 18. It follows also that a Prince in such a case as David was may joyn himself with the Enemies of his oppressing Soveraign which doubtless will hold in the case of our present King's uniting himself with the confederate Protestant Princes in Defence of their Religion Laws and Liberties which are in danger Albericus Gentilis Professor of Civil Law in Oxford under Queen Eliz. distinguisheth of a threefold lawful Defence 1. Necessary 2. Profitable 3. Honest and says He is necessitated against whom an Enemy comes Armed or prepares Arms on which the War against Methridates was accounted just because of his preparations which their Adversaries accounted a more real Declaration of War than any words Pia arma quibus nulla nisae in armis relinquitur spes He who would keep himself out of Danger must meet and prevent it which is a point of greater Wisdom and Courage than to expect it and revenge it it is also more safe and easie to prevent a future than to redress a present Evil. Turpius ejicitur quam non admittitur Hostis We presently slay a Serpent at sight not staying till he hurt us and suffer not noxious Weeds or Thorns to grow up but grub them up by the roots while they are young if we expect the first stroke it may kill or disable us Venjenti occurrite morbo is good advice to a body politick as well as natural If our Adversary have declared his will and is preparing a power to hurt us we may not carry to receive the first blow but anticipate the evil as Gladiators are wont to do Yea it hath been always practised to put a stop to the ambition of great Monarchs who have unjustly invaded one Man's Dominions lest he should attempt the like upon others and hence the Princes of Christendom have been careful to preserve an equal balance between growing Empires Posse nocere sat est quodque potest alios perdere perde prior We may as justly remove impendent evils as those that are actually befallen us The whole World is but one great City and tho some part of Mankind is nearer than others yet our Charity should extend to all Si non homini tamen humanitati Thus Baldus and both Civilians and Canonists determine That it is a fault to omit the defence of another but of ourselves a treachery Siracides Eccl. 4. Free him to whom injury is done out of the hand of the Injurious Constantine says We ought to account of the injuries done to others as our own And if this be the duty of private men much more of Princes and if in the other cases much more in the case of Religion Thus Justine answered the Persians That he ought to defend the Christians whom they would compel to forsake their Religion Thus Constantine helped the Christians that were oppressed by Maxentius and Q. Elizabeth assisted the Hollanders against the Spaniards who sought not only to destroy the Protestant Religion there but having broken down that Pale of Europe as Lipsius called it they should have extended their Tyranny farther Dr. Ferne pleading the Cause of King Charles the First grants That Personal Defence against the sudden Assaults of the King's Messengers if illegal tho' the King be present is lawful even to warding of the King's blows and to restrain his hands and rescue their innocent Brethren out of his hands as the People did Jonathan from the hands of Saul And if a King should joyn with Robbers or Pirates by Land or Sea the Subjects might lawfully defend themselves tho' the King were in their company It is well known that the Emperour the Pope and almost all the Princes in Christendom do joyn to prevent the ambitious Designs of the King of France insomuch that they will rather assist England and Holland than suffer them to fall into the hands of the French and if Popish Princes agree in this for the preservation of their Dominions from an ambitious and aspiring Monarch tho' of their own Religion much more may a Protestant Prince for the recovery of his own Right and for the preservation of the just Rights Laws Liberties and Religion of his Allies and Confederates Aeneas Sylvius If a King contemn the Laws and Subjects all to his Lust will not the States in such a case depose him and chuse another who shall swear to govern by Law as reason tells us it ought to be Aquinas speaking of deposing Tyrants says They are not guilty who do it though obliged to them by Oath for he deserves the People should not trust him who transgresseth the Duty of a King. Object The people of Israel might as well judge David to have abdicated his Kingdom as the people of England King James for great complaints were made against David by Absolom concerning the Male-administration of Government and his Adultery and Murther are in the Sacred Record besides upon the approach of Absolom's Army he fled out of the Land. 2 Sam. 19.9 Ans As to David's personal miscarriages they were done in secret scarce two or three made privy to those designs whence that expression in Ps 51. Against thee only have I sinned intimating that it was not known to his people So Nathan told him 2 Sam. 12.12 Thou didst it secretly but I will do this before all Israel And Uriah being dead and his Wife consenting there was none against whom David had sinned as some do Comment but these personal sins did not make him obnoxious to the censures of his people As for the Administration of the Kingdom it was a forged Accusation of Absolom to steal the hearts of the people from his Father for the Holy Ghost beareth witness to the contrary Ps 78. ult He fed them according to the integrity of his heart and ruled them prudently with all his power And Absolom's Conspiracy was secret and a sudden surprize the men that followed him went
the Election of Sheriffs and anciently the disposing of the Militia and many great Offices both by Sea and Land and the Judicial part was left to the King confined by certain Methods the King in Person not being able to decide the least Cause 3. I thus except against the Minor. The subjection required in the Text is due to the King's Person for the sake of the Power and therefore is not to be extended farther than the Power wherewith he is invested and with a Salvo to that part of the Power which is vested in another so that we owed no such subjection to King James as did derogate from anothers Right beyond the extent of his own Power which was not absolute but limited by Law. And let this be considered from the Objection Those actions which will produce mischeivous consequences should not be ingaged in without most clear evidence of being our duty But to refuse Submission to the present Government will produce c. therefore they are not to be ingaged in without most clear evidence which as things now stand cannot be accounted clear and undubetable in relation to King James Object 2. The King can do no wrong and therefore is not to be dealt with as a Malefactor Ans As to your Maxim The King can do no wrong if it be understood of the King 's private or personal capacity it may be thus retorted The King can do no wrong but he that oppresseth ravisheth or murders an innocent person doth wrong therefore he is not King i. e. in such actions he is not to be considered as a King. But this Maxim as many others is to be understood of the King 's political capacity in which respect the Law is his Will and the execution of the Laws are his Actions in which sence he can neither do wrong nor suffer wrong nor ever dyes The true sence of the Maxim is this as Sir Edw. Cooke Id potest quod jure potest and this he says is the King 's greatest priviledge which makes him like unto God who cannot act but agreeably to the eternal Rules of Justice but the King acting by his own Will against Law may do wrong and Judgment hath been given against him for unjust and illegal Actions And doubtless King John and Henry the Third that would have subjected the Kingdom to the Pope as King James also would cannot be exempted from doing wrong though as it was necessary he must use many Instruments therein Ahab did wrong Naboth in taking away his Vineyard as well as his Instruments that did act under colour of Law. Object 3. That King that is not accountable to his people for any wrong done is not by them Coercible into a private estate but the King of England is not accountable c. therefore he is not Coercible Ans The Argument is besides the Business for the People of England do not Coerce the King to a private Estate but if he attempt to alter the Government and Religion and enslave and destroy the People they may use the remedy which the Law of Nature allows Moderamen inculpatae tutelae The Law not having appointed a legal remedy against the unjust oppressions of Princes doth not render it sinful to use the remedies allowed by the Law of Nature for the Laws grew up gradually and legal remedies were introduc'd occasionally before the institution of which remedies it was not sinful to use extraordinary remedies as to kill se defendendo to pull down Houses in case of Fire c. 2. The Law provides remedies for cases within its own compass but not for cases that may happen when the Law itself shall be subverted it is unreasonable to expect from written Laws any directions how Subjects must behave themselves when the authority of the Laws ceaseth If our Laws have not provided for the cases of the King's Lunacy Extinction of the Royal Line wilful Desertion doubtfulness of Title c. but leave us to the general Rules of Prudence and Discretion the same may be affirmed in the present case 3. What is not prohibited is lawful the cases of extraordinary nature are not included in general Prohibitions according to that Maxim Consensus in rebus magni prejudicii ex verbiis quantumvis generalibus non presumitur And Concessione generali nemo presumitur ea concessisse quae in specie vere similiter non esset concessurus And it cannot be presum'd that the Law would consent that the King might at his pleasure destroy their Lives as well as their Laws considering how tender the Laws have been to preserve the Lives and Liberties of the Subjects who have been always accounted a free People Object 4. If the whole Executive Power of the Law is in the King then all Laws to Coerce the King are in effect null because Execution is the life of the Law But the whole Executive Power c. therefore c. To the minor it is already shewn in what cases and respects the Executive Power of the Law is in the People and in other cases the King cannot suspend the Execution of the Laws by his personal Command the Officers being bound by their Oaths as well as Law to the due Execution of them So that if the King in person should make unlawful Entries hinder the Execution of Writs and Judgments break the Peace head a Riot c. Sheriffs and other Officers are bound to suppress and oppose such by their Oaths If it be objected that the case of the King's presence makes an exception I answer Neither the Oaths nor the Laws makes any such exception And ubi Lex non distinguit non est distinguendum Again the Defence made against the King's illegal Assaults is not an act of the Executive Power which is in the King but of Natural Right for in cases where the Law hath not provided a remedy and particularly and expresly prohibited Self-preservation there we may recur to natural and moral Remedies and every man is allowed to be his own Judge in case of imminent danger when there is no time allowed nor any Judge to be appealed to You say that if the King will pervert the great end for which he was appointed and pervert the Laws c. then as Bracton says Datur petitioni locus licet ei fraenum ponere i. e. as you expound it to curb him by Petitions with holding Taxes and questioning his Ministers there is no ense recidendum in our Law. Ans To curb by Petition is to bind with Ropes of Sand to question Ministers if the Executive Power be in the King is to no purpose and so to with-hold Taxes if the King in the head of an Army may compel them nor yet is there any need of deposing or cutting off for Henry 3. was not so dealt with If a King mix himself with Outlaws and Cut-throats against which we may and in some cases are bound to rise and expose himself to Casualties the people cannot
prevent that the fault is his own The Murder of Edw. 2. and Rich. 2. was done by private Assassines disown'd by Parliament and punished or if that Age exceeded the limits of Self-defence it will not prejudice such as defend themselves with moderation And in vain are Rights granted and purchased if they may not by any means be defended As to the instance of Marriage the Indissolubility of that no way infers the Indissolubility of the relation between King and people for first Marriage itself in some cases admits a Divorce as in case of Adultery Impotency a vinculo and in cases of Cruelty a mensa toro and in case of Desertion after certain time the Law allows another Marriage 2. The Indissolubility of Marriage springs not from its being a Contract but from a positive Law of God super-added So that unless you can shew the like positive Precept for the Indissolubility of the relation between King and people the argument holds not 3. There ariseth another difference from the nature of the thing a Nation cannot want a present Governour so that if the King will not attend the Government there is an absolute necessity of seeking another which is not so in the case of Marriage for a deserted Woman is not so suddenly destroyed as a deserted Kingdom will be As to the Argument from our own and other Writers concerning Non-resistance c. I answer as formerly That general Rules reach not the particular cases which could not be foreseen or provided against And 2. It may be said without offence that good Divines are not alway good Lawyers and the Law is the measure of our Obedience as appears by the Authors of the Erudition and Bishop Bancroft the former makes the King's Proclamations as binding as a Law the later told King James in the presence of Cooke and other Lawyers that the King might call any Cause and judge it personally in his Chamber And there have been as eminent men in the Church of a contrary opinion Bishop Jewel Bilson Abbot and the Convocation in Q. Elizabeth's reign who contributed to the War which she undertook in behalf of the Hollanders which have been often quoted in the present Case and do all approve of a Defensive War in case of imminent Danger and Destruction contrary to the established Laws As to Dr. Sanderson's Judgment approved by the University i. e. That the Right of Subjection springs from the Right of Protection and the King's neglect of his Office doth not free the Peoples Consciences from the Bonds of Allegiance Ans 1. That besides the Right of Protection an actual Administration of Government is absolutely necessary to prevent Confusion and Anarchy 2. A neglect to perform Duty amounts not to the case in hand viz. visible Attempts to ruine and destroy the people which he should preserve wherein the King doth not abuse his power but acts beyond and without his lawful power 3. The people defending themselves in cases of extream necessity differs from the discharging of them from their Allegiance which the Doctor urgeth yet the discharge of them from their Allegiance may follow if the King will leave them to a state of Nature and Confusion or subject them to such Enemies as seek to destroy them Object 5. The King never dyes therefore when the Right passeth from the King it was immediately to be devolved on the Princess of Orange Ans 1. The descent of the Crown is limitable by the Supreme Authority of the Kingdom as appears first by practice frequently in King Henry the 8th's days and in the Marriage of Q. Mary with King Philip of Spain and in the crowning of Henry the 7th 2. It consists with reason the Right of Succession being but a Humane Constitution is alterable by a Humane Constitution If the Order of Succession had been a Divine Right it must have been so in all Nations and unalterable Nil magis naturale quam quo modo aliquid constituitur eodem dissoluitur And it appears 3. By the Act of Parliament 13 Eliz and whereas the Recognition of King James is pleaded as a bar to that Act. Ans Doth the Recognition say that henceforth the Succession should be as the Laws of Medes and Persians unalterable No they had another intent viz. To silence the Disputes that had been concerning King James his Title upon a Statute enabling Henry the 8th to settle the Succession which Settlement for not observing the forms prescribed by that Statute became void and so there was some cause for making the Recognition And whereas it 's said that the Act 13 Eliz. was made to serve a present turn viz. to secure Q. Elizabeth against the pretences of the Queen of Scots it is clear that it respects the future Succession by making the penalty of a Praemunire the Sanction of that Law for future Ages As for the Maxim viz. That a contrary declaration of the will of the Lawgiver doth abrogate the former Ans Where is the Contrariety The recognizing K. James his Title which had fallen under disputes is not contrary to that Act and besides it is averred that an Act of Parliament cannot be repealed but by express mention of it and as for the omission of it in the late Statute-Books for it still stands in the ancient Books this was rather done to serve a turn than the Act of Q. Elizabeth Anno 13 as is pretended 2ly The present Settlement is made by the Supreme Authority of the Nation for there is the consent of the right Heir and the People fully represented which are essentially the Supreme Authority the calling by Writs being only a formality and forms cease in cases of necessity because forms were introduc'd for common cases to obviate frauds c. But in cases of necessity and where no fraud is used the forms are not necessary 2. In cases of doubtful Succession the extinction of the Royal Line or Lunacy or as the case of restoring K. Charles the Second it is impossible to use all the Solemnities and yet a just Settlement may be made without them Object 6. The next Doubt is concerning the New Oath whether it be assertory or only promissory Ans First it is apparent that this New Oath leaves out the assertory part in the Oath of Supremacy and the alteration in so considerable a part implies an alteration in the matter of the Oath as to that particular 2ly The Law doth not bind the Vulgar to inquire into the Titles of Kings nor indeed are they capable to judge of Titles for we must swear in Judgment and if it be objected that the Law binds us to assert the rightfulness of the King's Title in the Oath of Supremacy that was only in opposition to the Pope's pretences and usurpations which are notoriously apparent therefore we have no reason to presume that the Legislators intended to bind us by this New Oath to assert the legality of the Title of the Governour The ancient Oaths of
Homage and Fealty required of every Lord from his Tenants hath the same expressions as the present Oath yet this Oath was not intended to assert the Lord's Title in point of right nor did it oblige the Tenant in case the Lord should forfeit alienate or be disseiz'd 4. An actual Obedience is sufficient to secure the Government and therefore we cannot presume that it requires more it doth not look backward to what is past but respect only the future time 5. If these reasons make not the case clear yet they render it doubtful and then this Maxim takes place Contra eum qui a pertius potuit loqui facienda interpretatio But of this more hath been said in Bishop Sanderson's Resolution of the Case of the Ingagement against which if it be objected That there is more included in the word Allegiance than in those of being true and faithful I answer There seems to be less required by that word for Allegiance signifies Obedience according to Law and not in illegal cases in which there is no Obedience due because there is no authority to require it Concerning the Lawfulness of Self-Defence 1. If the English people are so far at the Prince's disposal as to have no right to defend their Lives against his illegal Assaults then they are in the state of Slaves and Captives but we are not in such a state but Freemen and Proprietors as the Magna Charta and the Petition of Right do evidence 2. If to preserve our lives c. we may not use a defence then we prefer the means before the end but this is absurd therefore the first is so And if any Government do deprive us of that priviledge which Nature grants us it were better to have continued in a state of Nature and Anarchy then to come under such a Government 3. The Laws cannot be so interpreted as to be illusory but to bound the King's power and to give the people Rights and yet to suffer him to destroy all at his pleasure is a meer illusion of the Laws 4. What hath been publickly done and never been censur'd in the most setled times may be presumed lawful but the Defence of the Peoples Rights as in the Barons Wars was never publickly censured but the matters contended for were confirmed by several Charters ratified by dreadful Imprecations and vindicated by the expence of the Lives of the Nobles and People therefore it may be presumed to be lawful 5. What is permitted by the Law of God and Nature and is not forbidden by the Law of the Land is lawful but Self-defence is permitted c. and is not forbidden by the Law of the Land therefore it is lawful Object The Declaration that says It is not lawful on any pretence whatsoever to take up Arms c. forbids it Ans General Prohibitions must not be extended to such extraordinary Cases as would have been expresly excepted if they had been expresly proposed And they who united into Government and made Laws to preserve their Lives would never have consented to give one man power to cut all their Throats 6. Treason includes Felony and Felony Malice propense but self-defence implies no propense Malice therefore it is neither Fellony nor Treason Consider these Maxims Quod quisque obtutelam corporis sui fecerit jure fecisse videtur quando copiam sibi Judicis qui jus reddat non habet vim vi repellere omnia jura permittunt a jure civile approbatur modenamen inculpatae tutelae So Grotius Si corpus impetatur vi presente cum periculo vitae non aliter vitabili tunc bellum est licitum etiam cum interfectionem periculum inferentis ratio Natura quemque sibi commendat jus est cuilibet se defendendi contra immanem saecutiam So Barcl cont Monarchom l. 3. c. 8. Non sunt expectanda verbera sed vel terrorem armorum sufficere vel minas Of the King's Abrenunciation 1. To destroy the Government is to renounce and disclaim it for Animus perdendi retinendi non consistunt Nolle habere is the same with Renunciare but King James attempted to destroy the Government for to destroy the Essence and Form of a Government and alter its species is to destroy it 2. If the defence be lawful in the People and the Invasion in the Prince then the loss of the Crown or Right to govern doth legally follow But the Defence and Invasion c. therefore the loss of the Crown and Right of Goverment is ceased and consequently so is our Allegiance 3. To forsake a Kingdom and leave it in a state of Nature is to disclaim it but the late King did so therefore he disclaimed it The Major is clear because Government is necessary by an Antecedent Necessity to a particular Person 's being made a Governour and therefore rather than to continue a disbanded Multitude a particular Man's Right or Title must cease The Minor is clear because he suspended the Laws stopt their course carrying away the Broad Seal discharging the Judges and then withdrew leaving us in confusion If it be objected that he was forced to withdraw Answ It was what by many voluntary Acts he had drawn on himself and the last Act partakes of the Nature of those Actions from whence it flowed Object It will be a very great Scandal to the Nation and Church of England to disclaim their lawful King without Treating with him and seeking Reconciliation upon redress of their Grievances Ans The Clergy and Nobles did often Treat by way of Petition and humble Advice but were rejected with Contempt The Prince of Orange began to Treat with the late King's Commissioners who were returning with an Answer but the King left the City the day before and ever since hath put himself out of a Condition to Treat having given up himself to the Conduct of such as are Irreconcileable Enemies to our Nation and Religion None were more fit to Treat with the King than a free Parliament which as the King had made impossible by his Method so if it had been duly called and chosen yet a force would have been pretended while the Prince of Orange had any Army in the Nation And what if the King had complied as Christiern the Second King of Denmark who after his desertion was received again upon renewing his Oath and subscribing to Conditions who not only brake them all but inviting the Nobles and their Children to a Feast caused them all to be slain The King of France shews what Faith may given to the solemn and repeated Acts of Ambitious Princes and the observance of the Coronation Oaths and many publick Declarations by our King. 2. As to the case of Scandal I know not any sort of Christians that can justly be scandalized at such proceedings or condemn that practice in others which they allow in themselves As for the Papists the principles of their Religion oblige them not to endure a Prince of a different perswasion who
Oaths and that no private Person much less a Statesman would so order his affairs as to rely on them No man would ever sleep with open Doors or unlockt Treasure or Plate should all the Town be sworn not to rob Then was the Assertory part of the Declaration debated and it was urged That Assertory Oaths and Declarations were properly appointed to give Testimony of a matter of Fact of which a man may be assured by the evidence of his senses but not to confirm or invalidate Doctrinal Propositions and that the Legislative Power which imposeth such an Oath assumes to its self an Infallibility and must suppose all that take it to be infallible which could not be supposed in ignorant and illiterate Men and that Promissary Oaths in the judgment of Grotius De Jure Belli l. 2. c. 13. are forbidden by our Saviour Matth. 5.34 37. to be multiplied and that to declare upon Oath and to swear upon Oath were the same thing And that to declare upon Oath That it was not lawful upon any pretence whatsoever to take up Arms against the King might introduce a new Form of Government that it was better to leave such things in Generals as in the Law of 25 Edw. 3. which makes it Treason to take up Arms against the King and the restraint of it to any case whatsoever would destroy the distinction between Absolute and Bounded Monarchies if Monarchs have only the fear of God and no fear of Man to restrain them and that our Ancestors took care that the Prince's safety should be in them and never would endure a mercenary or standing Army though Commissioned by the King and that the declaring an Abhorrance of that Traiterous Position of taking Arms by the King's Authority against his Person being set down in universal Terms is not alway to be abhorâ—ed as Traiterous there being but one case and such as is not like to happen again wherein it was so i. e. the Case of the Long Parliament but other Cases might and did often happen wherein taking Arms against such as were Commissioned by the King might be the Subjects Duty as in the instance of Henry the Sixth being taken Prisoner by Edward the Fourth who pretended to the Crown and the Earl of Warwick who gave out what Commissions they pleased but his Wife and Son raised Arms against such Commissions and rescued the King's person by fighting against such Commissions And lastly that not to take Arms against any that were Commissioned by the King did evidently introduce Arbitrary Government and if whatever is by the King's Commission is not to be opposed by the King's Authority then a Standing Army is Law whenever the King pleaseth and that the King's Commission was never held sufficient to justifie any Man acting against his Authority which would destroy the most essential and fundamental part of Law for Liberty and Property and make the Government Arbitrary And it was urged That if a Man recovers possession of his House and is by the Sheriff put into it and the person outed procure a Warrant to some Commissioned Officers of a Standing Army to deliver back the Possession the person that is in possession by Law may defend himself by Arms against those who by Commission from the King come by force to Eject him out of his Possession So that such a Declaration and Oath was to establish another Government which the Oath of Allegiance knew not and then swear to maintain it as established All this and much more notwithstanding the Declaration as it stands after sixteen or seventeen days spent in arguing was confirmed and the Consequences plainly manifest how unreasonable it was in it self and how mischievous to the Subjects and therefore is by the Act 24 April last laid aside Concerning the Present Oath The Oath of Allegiance and Supremacy being abrogated our Allegiance was reduced to the Oath of Allegiance as it anciently stood and was to be administred in the Court-Leet the Form whereof runs thus You shall swear that from this day forwards you shall be true and faithful to our Soveraign Lord the King his Heirs and lawful Successors c. which words do not assert the Title to the Crown nor look backward to what is past but assures Fidelity for the future and our Legislators plainly declare that by the words in the late Oath I will be faithful and bear true Allegiance is the same Fidelity meant as in the Declaration ordered to be subscribed by some Dissenters viz. To be true and faithful And doubtless the Legislators who are of the same Communion in the Church of England could not think of laying a greater restraint or obligation on the genuine Members of that Church whom they have found to be always Faithful then upon such Dissenters as had been false And had the two Houses thought or suspected any snare in it they would have been so far from laying it on the Consciences of others that they would not have tought 〈◊〉 with one of their Fingers So that our Legislators have in the Subscription required from those Dissenters clearly resolved what they meant by the word Allegiance in the Oath namely To be true and faithful in which sence as many have declared they would take it without any farther scruple So I see no reason but all may except such unreasonable Men as bogling at shadows from the word Megiance are resolved to incur the sad consequences of being judged Rebellious I have one Request more which I intreat such of my Brethren as are yet Unresolved seriously to consider viz. That having devoted their Persons and Services to Almighty God in the Ministry of the Church of England they cannot without the guilt of Sacriledge in a high degree and upon very clear and demonstrable Arguments withdraw themselves from that Ministry especially in such a juncture of time when there are so many grievous Wolves some in Sheeps cloathing and others with open mouths roaring for their Prey that seek by all means to devour their Flocks and by the loss of her Ministers the Church itself may be in a short time destroyed for there are still too many that bear evil will to Sion and would down with it even to the ground And if it should be found that we have forsaken the Service of God on a Mistake or Prejudice when we shall be called to an account how we have fulfilled our Ministry and watched over the Flocks whereof the Holy Ghost had made us Overseers we must have some substantial Reasons to plead in our Excuse or we shall never render an Account with Joy. The Evil Spirit hath not without a Miracle been sorely cast out and is roving up and down seeking how to enter again and if we by our Divisions should make a breach for him to enter by he will bring with him seven-fold more and dwell among us and make our later end worse than the beginning It is sad when we shall be reduced to such a condition as sometime the Roman State was which could neither ferre Vulnera nec Remedia endure their Wounds nor the Remedies of them If we by our Obstinacy do frustrate all the means of our Salvation and receive the Grace of God in vain and being fond of kissing the Rod that smote us do resist the Hand that would heal us there must be a greater Miracle wrought for our Salvation than hitherto God hath wrought for any man that is to save us against our wills Cujus aures clausae sunt ut ab amico veritatem audire nolit hujus Salus pene desperanda est FINIS ADVERTISEMENT A Resolution of Certain Queries concerning Submission to the Present Government The QUERIES I. Concerning the Original of Government II. What is the Constitution of the Government of England III. What Obligation lies on the King by the Coronation-Oath IV. What Obligation lies on the Subject by the Oaths of Supremacy c. V. Whether if the King Violate his Oath and actually Destroys the Ends of it the Subjects are freed from their Obligation to him VI. Whether the King hath Renounced or Deserted the Government VII Whether on such Desertion the People to Preserve themselves from Confusion may admit Another and what Method is to be used in such Admission VIII Whether the Settlement now made is a Lawful Establishment and such as with a good Conscience may be Submitted to By a Divine of the Church of England as by Law Establish'd